Would Marvel/DC Sue?

[transmetahuman]

I've been thinking about campaigns where supers are recent phenomena, and history diverges when they show up. Also how "all the good names are taken" by Marvel, DC, etc.

 

Supposing supers do co-exist with our major comics companies, I'd assume that most would know better than to take a popular, well-known fictional super's name like Superman or Batman - those that did would be soundly mocked and the press/public might even refuse to use the name the real person chose, coming up with something else. But what about the less well-known characters? Especially the ones whose names were taken from even earlier stories or myths? If someone innocently calls himself Goliath, or Cyclops, or Medusa - what would Marvel do? If the super has a secret ID, what could Marvel do? Would it make a difference whether or not the powersets are similar?

 

I'm going to assume the idea of sponsoring the hero as a "real life" version of the fictional one won't often work - either the corporation requires more control or the super himself is uninterested. And of course there are the villains (can you imagine a dangerous meta holding a bankful of hostages, when one of them geeks out about how "he" was defeated by Captain America a hundred issues ago? And was shown to be gay when the character was revived last year?). Would the comics companies just drop the characters with the same name? Change the fictional characters' names? Try to sue? Ignore the whole thing?

 

Thoughts?

[Clonus]

Re: Would Marvel/DC Sue?

 

Legally, a name in itself doesn't mean all that much. For example both Marvel and DC have Rampages. Marvel's is a watered down Iron Man and DC's is a golden-skinned She-Hulk pastiche. So if some real person gets bit by a radioactive wolverine and sprouts claws and the ability to move at superspeed, he could be in trouble if he tries to call himself Wolverine, but he'd be fine if he called himself Rampage. But comic books would find themselves compelled to do disclaimers about the fictionality of their characters or storylines.

[BobGreenwade]

Re: Would Marvel/DC Sue?

 

Interesting... I knew both companies had a Captain Marvel, but not Rampage. Now I'm wondering how many others there are....

 

That said, the copyrightability of a name depends on how unique the name is. Feedback (the first-season winner of Who Wants to Be a Superhero?) was allowed to keep his name even though there's a Marvel character by that name, while Paragon had to change his name because of an existing superhero by that name whom I presume is the San Angelo: City of Heroes character. (It all makes me wonder if my own WWTBAS character, the Night Watchman, would need a name change since discovering that a superhero by that name apparently appeared in an issue of Teenage Mutant Ninja Turtles).

 

Take the assumption that someone truly iconic, like Superman or the Hulk, is probably Trademarked; that's where Wolverine would come in. A hero would probably get into trouble using an unusual name already in use, such as Red Tornado or War Machine, even if the character isn't trademarked. A character name that's already duplicated between companies is almost certainly free and clear. As for simple words like Cannonball, the Question, and the like, it'd be a tough call.

 

Even if there was an infringement, though, I think that the major companies would sue only if the offense was clear and egregious, such as in the use of iconic names. For any others the character would probably just get a cease-and-desist order, and the companies would likely try to help the offender come up with a better name (as NBC Universal did for the six -- yes, six -- second-season WWTBAS contestants who needed name changes). For example, Clonus' Wolverine character might be suggested as Mr. Wolverine, Wolfmaster, and others.

[JmOz]

Re: Would Marvel/DC Sue?

 

I'm not sure, but I think that companies will sometimes sue, not because they feel that there is an infringment but as a form of Copyright protection, basicaly they go to court expecting to loose on the right to use the name so that they show due diligince in protecting the character as a whole.

[transmetahuman]

Re: Would Marvel/DC Sue?

 

For any others the character would probably just get a cease-and-desist order' date=' and the companies would likely try to help the offender come up with a better name (as NBC Universal did for the six -- yes, [i']six[/i] -- second-season WWTBAS contestants who needed name changes). For example, Clonus' Wolverine character might be suggested as Mr. Wolverine, Wolfmaster, and others.

Interesting. The WWTBAS info is definitely relevant - but was NBC just going to extremes to cover its ass, or could there really have been legal trouble? This thread mainly came about because of my personal sense that most of the good names are taken, the list of old characters in Marvel and DC get more and more comprehensive, and truly original names seem to just get sillier and sillier (I think especially with homage characters/universes). Of course YMMV on that. But if I want a campaign where the players can freely use already-"taken" names, I'd like some ideas about how much things would need to diverge from our timeline.

 

I mean, "cannonball" is a word in the dictionary; Marvel can't own it. If DC (or the real supers in this supposed campaign) came up with a Cannonball who was a short fat female swimmer/diver with water shockwave powers - nothing like the southern mutant with all the siblings except the name - what could Marvel really do? Obviously both companies can have a Hercules, Zeus, Odin, etc. Just as obviously, names that aren't words (Spider-Man, She-Hulk) would cross the line. But can a company actually own the use of the word "hulk" or "flash", or just own the use in particular contexts, in conjunction with specific imagery?

[Enforcer84]

Re: Would Marvel/DC Sue?

 

My guess is even if they didn't have a leg to stand on they'd try to stop it. Or at least get some cash for using the name.

[Mister E]

Re: Would Marvel/DC Sue?

 

I'm not sure' date=' but I think that companies will sometimes sue, not because they feel that there is an infringment but as a form of Copyright protection, basicaly they go to court expecting to loose on the right to use the name so that they show due diligince in protecting the character as a whole.[/quote']

 

This was the case with "City of Heroes" vs. "Marvel" over the potential Hulk likeness, I believe. Marvel simply had to sue or they'd lose any rights they otherwise would have had... especially for any future superhero-themed MMO they tried to come out with.

 

So I guess if Marvel wants to ever sponsor an actual mutant crime-fighter named "Wolverine"... they are going to have to sue any real-life superheroes who currently have that name.

 

Which I guess begs the question: if there actually was a short mutant dude named Wolverine with an accelerated healing factor and adamantium claws running around; who used to be a Canadian para-military spec-ops agent, but now spends most of his time saving the world from the back of his motorcycle... what on Earth would give Marvel the right to sue him over his 'naturally' given name and likeness?

 

... silly.

[BobGreenwade]

Re: Would Marvel/DC Sue?

 

Interesting. The WWTBAS info is definitely relevant - but was NBC just going to extremes to cover its ass, or could there really have been legal trouble? This thread mainly came about because of my personal sense that most of the good names are taken, the list of old characters in Marvel and DC get more and more comprehensive, and truly original names seem to just get sillier and sillier (I think especially with homage characters/universes). Of course YMMV on that. But if I want a campaign where the players can freely use already-"taken" names, I'd like some ideas about how much things would need to diverge from our timeline.

 

I mean, "cannonball" is a word in the dictionary; Marvel can't own it. If DC (or the real supers in this supposed campaign) came up with a Cannonball who was a short fat female swimmer/diver with water shockwave powers - nothing like the southern mutant with all the siblings except the name - what could Marvel really do? Obviously both companies can have a Hercules, Zeus, Odin, etc. Just as obviously, names that aren't words (Spider-Man, She-Hulk) would cross the line. But can a company actually own the use of the word "hulk" or "flash", or just own the use in particular contexts, in conjunction with specific imagery?

 

I should point out that not all of the contestants's names had to be changed over copyright issues over existing characters; in fact, Paragon (Parthenon) is the only one I'm specifically aware of. Peaceman wanted to keep the rights to that name, and so came up with Mr. Mitzvah as a similar but distinct character. The others were Lady Reckoning, Takedown, Super Impact Man, and Omnicron, who respectively became Whip-Snap, the Defuser, Hyper-Strike, and Mindset.

 

As for owning use of a word such as Hulk or Flash, the companies would only own the names as they pertain to superheroes. My understanding (being a legal layman and all that) is that the character has to be iconic enough to Trademark for it to be a clear violation -- the Flash is certainly Trademarked, whereas the Blimp probably isn't. (Though I should point out that it's the company who decides what to Trademark and what not to; I'm not sure offhand what criteria would be used as to whether a character's name and image can be Trademarked. It could well be that the Blimp isn't even eligible.)

 

For reference, I look at the legal wrangles about a decade ago between Apple Music and Apple Computer, over the trade use of the word Apple. Apple Music came first and so had dibs on the Trademarked word, but was explicitly allowing Apple Computer to use the name for anything not related to music. Then, when Apple Computer built systems capable of music composition, the trouble began... I don't recall how it came out, but I'm sure you see the point.

[OddHat]

Re: Would Marvel/DC Sue?

 

Just a note that this is very campaign specific. In most games this would just be a comic relief sub-plot, and in many it wouldn't fit at all. Bloodpunk the Iron Age murderous vigilante doesn't have enough of a public identity for RealBadComics to sue him, and wouldn't care if they tried; Captain Galactic the Silver Age Cosmic Hero doesn't live in a world where this sort of thing happens at all.

 

In my own campaigns, supers who want to make money through endorsements and such get a Fictitious Name License, just like a small business. They couldn't register a name that had already been registered by a comic book company. If a super wants to call himself "Uber Dan" but doesn't get a license for the name, he can't conduct financial business under that name at all. If a super made public appearances under a fictitious name, but took payment under her own name (i.e. if Dragon Jane makes public appearances as Dragon Jane, but takes her checks as Jane Collins), she could be sued by someone with legal rights to the name Dragon Jane.

 

I guess I see this as something unlikely to happen in a world where a legal name registration process exists, save in cases where that process is ignored.

[Supreme Serpent]

Re: Would Marvel/DC Sue?

 

For someone just using the name to go out and do heroing stuff, probably not a big deal. I've known guys called 'Moose' before, and Archie Comics never came after them.

 

If said hero decided to start publishing comics, making movies and such using that name, there might be issues.

 

But for most ignore-the-laws-except-those-that-suit-you superhero types, I doubt it would be a big concern. "Sure, sue me. Have fun trying to serve the papers."

[transmetahuman]

Re: Would Marvel/DC Sue?

 

Yeah, totally a non-issue for most campaigns, and if it comes up I'll probably just assume that, though Marvel, DC, etc. do exist and did put out comics characters, their characters just happened to use different names than the ones me or my players want to use. Problem solved.

 

It wasn't for a traditional crimefighters-in-spandex game, anyway - I'd think that would lead to some weird self-consciousness issues, not to mention severe camp at times. An existing history of comicbook supers probably works best in worlds where real supers have existed since at least the Golden Age ("The comics are imitating us, not vice-versa"), or worlds where supers don't go that route at all.

 

This one is more of a cross between Gestalt, Willingham's Elementals, and Aberrant-without-the-rust-or-angst. More "demigods getting caught up in stuff" than "I want to fight crime, but I don't want to be a cop like normal people who want to fight crime" (absolutely no offense intended towards traditional supers, which I like too). I think some comicbook elements would be unavoidable for these guys, and there will be "code-names" for most, but the world's Marvel and DC would have a hell of a time even proving that they could be considered "super-heroes".

 

It led to some interesting speculation about comics in more traditional supers worlds, though.

[BobGreenwade]

Re: Would Marvel/DC Sue?

 

Given what you've just said about your world, I'd simply assume that only the iconic and other well-known character names would be off-limits, and the more obscure ones would be fair game. That way the issue only comes up if you want it to (or if a PC deliberately forces your hand).

[Mike W]

Re: Would Marvel/DC Sue?

 

I've been thinking about campaigns where supers are recent phenomena, and history diverges when they show up. Also how "all the good names are taken" by Marvel, DC, etc.

 

Supposing supers do co-exist with our major comics companies, I'd assume that most would know better than to take a popular, well-known fictional super's name like Superman or Batman - those that did would be soundly mocked and the press/public might even refuse to use the name the real person chose, coming up with something else. But what about the less well-known characters? Especially the ones whose names were taken from even earlier stories or myths? If someone innocently calls himself Goliath, or Cyclops, or Medusa - what would Marvel do? If the super has a secret ID, what could Marvel do? Would it make a difference whether or not the powersets are similar?

 

I'm going to assume the idea of sponsoring the hero as a "real life" version of the fictional one won't often work - either the corporation requires more control or the super himself is uninterested. And of course there are the villains (can you imagine a dangerous meta holding a bankful of hostages, when one of them geeks out about how "he" was defeated by Captain America a hundred issues ago? And was shown to be gay when the character was revived last year?). Would the comics companies just drop the characters with the same name? Change the fictional characters' names? Try to sue? Ignore the whole thing?

 

Thoughts?

 

Generally speaking, concepts are trademarked, not names. As long as you make the character distinct from anything Marvel or DC has going, you'll probably be OK. That said, I would stay away from borrowing any distinctive names. That's part of the reason why Marvel Comics ended up with the trademark on Hulk Hogan's name. WWF was billing him as "The Incredible Hulk Hogan" and Marvel said that was just a wee bit too close to their character. Also, Capt. Marvel was originally a character for Timely Comics, but DC won a lawsuit that said the character was too much like Superman. It wasn't just that he was strong, fast and flew. If you look at the characters, they look a LOT alike.

 

Now, characters from older literature(e.g. - Thor, Hercules) are part of the public domain. You can use just so long as you don't "adapt them to the new world" the same way.

[transmetahuman]

Re: Would Marvel/DC Sue?

 

Now' date=' characters from older literature(e.g. - Thor, Hercules) are part of the public domain. You can use just so long as you don't "adapt them to the new world" the same way.[/quote']Thanks, that was great info in the whole post. I focus on this section because I remember a Norse Storm God Guy living on the moon with a TV and a big hammer who very carefully wasn't called "Thor" (in the Elementals comic). Another example of excessive caution? Though now when I google it, it seems later issues than I ever saw did go ahead and call him Thor.

 

While I'm on the subject, I've seen tons of characters in comics, movies and shows that use the same names as RPG characters that predate them in publication. I always assumed they got away with it because RPG companies are too poor to go to court over that kind of thing (or too gentlemanly), and it always seemed unfair. Given what people are saying, though, it looks like it's more an issue of the names not being trademarked?

[Clonus]

Re: Would Marvel/DC Sue?

 

Well any character who had their own comic book named after them is a legal risk unless they are a public domain character like Hercules. I can't count the number of iterations of Hercules as a superhero there have been. But minor characters, including most villains are fair game as long as it doesn't duplicate their look and/or powers.

 

DC Copperhead: Snake villain

Marvel Copperhead: Copper plated armour

 

DC Nightshade: Darkness controller

Marvel Nightshade: Pheromone mind control

 

You can also get away with renamed recostumed derivative concepts. Thus DC has Captain Boomerang while Marvel just has Boomerang.

[eternal_sage]

Re: Would Marvel/DC Sue?

 

in my mutants game, Marvel does exist but DC does not. also, the "X-Universe" is the most popular of the companies properties, with Spider-Man and Captain America being the low level filler characters. this is because only mutants exist in my world (all supers are mutants or guys in tech suits or super martial artists).

 

thus, the X-Men are the fictionalized version of my team of heroes. it also explains away some of the similarities between the two (schools, giant mutant killing robots, ancient mutant who wants to kill humans, etc) in a way that makes sense in game. plus allows teen characters to have KS: X-Men, and know something about their own universe with it. even decided that the original creator of X-Men was a mutant who attended the school, so it was even autobiographical to an extent. my players enjoy it quite abit, and have even started referring to X-Events (like Age of Apocalyse) as "Not Kingdom of Syn" (my version of the Age of Apocalyse story). quite fun just tinkering with the situations that come out of that play.

[Doctor Agenda]

Re: Would Marvel/DC Sue?

 

If the 'real world super person' picked a name that just happened to be the same as some obscure comic book hero or villain they'd probably be fine as long as they didn't just happen to have the same concept, too. A Crimson Avenger who is a supersoldier with laser eyes would probably not overlap the 30s Mystery Man or current haunted pistol-wielder enough to cross up a trademark.

[McManus]

Re: Would Marvel/DC Sue?

 

My understanding . . . names cannot be copyrighted. Names can be trademarked but the protection is limited. Wolverine, for example is trademarked as a comicbook/movie character with a particular associated image. Wolverine boots and the UofM Wolverines are both different trademarks. As long as there is no danger of confusion between the trademarks in consumers eyes then they can co-exist. Trademarks have to be proactively protected or they can be lost. Aspirin was once a trademark, now it is a generic term.

 

There is a danger of trademark infringement between a fictional super and a real super trying to use his name/image form marketing/public relations purposes. I imagine the comic company might well feel obligated to file suit as a protection measure. How the court would decide is another matter and president would likely be set by the first big case.

 

I am not a lawyer.