Thursday, April 06, 2006

Infinite Crisis Conspiracy Theory

With the release of Infinite Crisis #6, there is also the beginning of a nice little conspiracy theory. Let's see what you folks think.

As I just wrote in a piece for Comic Book Resources, it appears as though DC has lost the copyright to Superboy. In fact, in my opinion, I think the decision is fairly straighforward, and not in a good way for DC. With that in mind, let us turn to Infinite Crisis #6, which ended with the death of, who else, but Superboy.

Please note that this issue was clearly planned well before the federal judge ruled that the heirs of Jerry Siegel owned the copyright for Superboy. However, the writing was pretty much on the wall. DC has a good case for owning Superman - not such a good case for owning Superboy, and you have to think that they knew that, themselves. If the decision went as it did, any use of Superboy by DC would be infringing upon the copyright owned by the Siegels. Luckily for DC, John Byrne's Superman revamp of the mid-80s eliminated the "Superboy" that the Siegels now apparently own, so all DC would have to do to keep their current Conner Kent character is to stop calling him Superboy. Well, killing him off would achieve the same purpose (especially if it entails bringing him back later, with a different superhero name).

There is certainly not enough evident to think this is definitely what DC did, but there's enough there to make the conspiracy theory not seem so far-fetched, doesn't it?

Read More (Infinite Crisis #6 Spoilers!)

25 Comments:

Anonymous Bllesed said...

On Newsrama was an article about the cover of IC#6, somebody said, that on the sketch we see a ripped superman cape. But when we see the collored version , it has become Superboys shirt. Hm conspiracy continue :)

4/06/2006 08:01:00 AM  
Anonymous Iron Lungfish said...

Would this possibly account for the unintentionally hilarious decision to make Superboy the villain of Infinite Crisis, too? Because I gotta say, I'm still scratching my head over that one.

4/06/2006 08:26:00 AM  
Blogger T. said...

The only things I would scratch my head over in Infinite Crisis is if a good story element appears. Something dumb like Superboy Prime as the big villain is dumb enough to fit into the rest of the book's themes perfectly.

4/06/2006 08:55:00 AM  
Blogger gschienke said...

Isn't it a rather moot point for the Siegel family to possibly gain the copyright to the Superboy stories when DC owns the trademarks involved and the trademarks are the marketable aspect? In the long run, DC will either (a) eliminate all mention of "Superboy" from its stories (something the company has been on its way to doing); or (b) the Siegel family will negotiate a licensing contract with DC at a higher rate, said contract to include an option that allows to buy the rights after a certain number of years. While there are comic fans aroused, one way or the other, at the thought of a mainstay DC property moving elsewhere, the reality is that without the trademarks all the Siegels own the right to is a superpowered character and those are a dime a dozen.

4/06/2006 09:14:00 AM  
Anonymous Iron Lungfish said...

The only things I would scratch my head over in Infinite Crisis is if a good story element appears.

This is true as far as it goes, but for the most part IC's badness has consisted of stretches of dull mediocrity occasionally punctured by gratuitous violence. The "goofball kid character played as cosmic menace" thing, though - that was just so weirdly out of place it came off as funny. I mean, they actually had him kicking Krypto the Superdog! If this were almost any other writer, I'd call it a clunky attempt at satire.

4/06/2006 09:27:00 AM  
Blogger Paul O'Brien said...

"Isn't it a rather moot point for the Siegel family to possibly gain the copyright to the Superboy stories when DC owns the trademarks involved and the trademarks are the marketable aspect?"

Depends what they're looking to achieve. As you say, they'll probably end up agreeing some sort of royalty deal with DC for future uses of Superboy - and they'll want to reprint their back catalogue at some point. That's still likely to be worth some real money to them. I very much doubt they were ever trying to stop DC using the character altogether.

4/06/2006 09:32:00 AM  
Blogger simon said...

The point isn't that it's Superboy, it's that it is Superboy-Prime. That is to say, the Superboy ostensibly from our very own Earth. The one that all of DC actually comes from. Superboy-Prime can destroy continuity because he is the stand in for the place where all continuity comes from. The writers (and fanboys) on Earth-Prime. You can see this even more clearly in the "Animal Man moment" Alex Luthor has towards the end of the book-- looking out at the reader in horror, saying only "You." In other words, we have met the enemy, and he is us.

4/06/2006 09:45:00 AM  
Anonymous Iron Lungfish said...

You can see this even more clearly in the "Animal Man moment" Alex Luthor has towards the end of the book-- looking out at the reader in horror, saying only "You"

Yeah, that didn't really work, either. First, Luthor's facial expression was rather poorly drawn, so he appeared to be "staring at the reader" more in boredom than in horror - which, oddly enough, mirrors my own reaction to twenty years of rehashing the "You!" panel from Animal Man. Second, if the entire point is to have this be one giant metaphor for cranky old fans on the internet grumbling about how it was back in their day, then that's not much of a point, is it? We have Byrne Robotics for that. Third, any story that functions on a metaphorical level should also be able to function on a non-metaphorical level, and on a non-metaphorical level this is the equivalent of "Jimmy Olsen, Shatterer of Worlds."

4/06/2006 10:35:00 AM  
Anonymous Anonymous said...

I'd totally buy a comic titled: "Jimmy Olsen, Shatterer of Worlds"

4/06/2006 11:33:00 AM  
Blogger Chris said...

I'm guessing this also helps explain why the Superboy Archives DC solicited some years ago has never actually materialized. And I can't help but wonder if it also explains why we haven't seen a Legion volume in three or four years.

4/06/2006 11:39:00 AM  
Anonymous Chuck T. said...

Doesn't Marvel have this some trouble with things that were licensed properties? Like trying to refernce Rom, or using the remaining Micronauts they still own. (As "the Microns." They used to have more members and more letters.) The Marvel Handbooks actually do a clever job of working around that, because otherwise some entries would read like a CIA memo under the black highlighter.
Conner could at least be name-checked by his first name, but his sacrifice is going to be like Supergirl's: never mentioned within the comics, ever again.
(Keep in mind I've pretty much bailed on DC's crossover stuff, and the IC I've read has been terrible.)

4/06/2006 12:10:00 PM  
Anonymous red_ricky said...

"Isn't it a rather moot point for the Siegel family to possibly gain the copyright to the Superboy stories when DC owns the trademarks involved and the trademarks are the marketable aspect?"--- gschienkr

No it's not.

First of all let me say that, to me, all this decision means is that DC will have to pay. Pay for future usage. Pay for past mistreatments. I other words... pay what they owe. And, they will have to continue to pay. Pure and simple.

Now for arguments sake, let's say that the Siegels wanted to take Superboy to Marvel. Could they?

Well, the answer is yes. You see, the Siegels now own Superboy, costume and all. They own Lana Lang, Smallville, Clark Kent, Ma and Pa Kent... and hell, maybe even Bizarro and Krypto (since they all debuted in the pages of Superboy.)

The only trademark DC still owns is the S shield, which thanks to all those DC retcons, versions and color changes; we now know, can be altered without the character losing marketeability.

But what about the name you ask? Well, here's the deal. DC can no longer use the Superboy name without infringing in the Siegel's copyright. And without a Superboy product in the market, the trademark will evetually expire. And I'm sure that in the mean time, Marvel would have two words for you:

ULTIMATE SMALLVILLE

4/06/2006 12:45:00 PM  
Blogger kelvingreen said...

Doesn't Marvel have this some trouble with things that were licensed properties? Like trying to refernce Rom, or using the remaining Micronauts they still own. (As "the Microns." They used to have more members and more letters.) The Marvel Handbooks actually do a clever job of working around that, because otherwise some entries would read like a CIA memo under the black highlighter.
I was quite surprised to see the Transformers and Doctor Who mentioned by name in Death's Head's entry in the most recent Handbook. They had to appear, as they're tied up in his origin, but the licenses have moved on by now, so it was odd but cool to see them there in print.

I wonder if there'll be similar shenanigans in ten years with the Halo licence Marvel just bought...

4/06/2006 01:08:00 PM  
Anonymous muldertp said...

"You see, the Siegels now own Superboy, costume and all. They own Lana Lang, Smallville, Clark Kent, Ma and Pa Kent... and hell, maybe even Bizarro and Krypto (since they all debuted in the pages of Superboy.)"

So, that does mean that they could cease production of the Smallville TV show also, right?

Under that explanation, there's not a single thing there DC owns besides Lex and the S shield (which they refuse to show as one of the show's "rules.")

Also (I don't know much about the background of the case), is this ruling the reason the Superboy show is finally coming out on DVD?

Sorry if it's a stupid question - it's been awhile since I took my Copyright class.

4/06/2006 02:04:00 PM  
Blogger Bill Reed said...

I'd totally *write* a comic called "Jimmy Olsen, Shatterer of Worlds."

4/06/2006 02:56:00 PM  
Anonymous red_ricky said...

So, that does mean that they could cease production of the Smallville TV show also, right?

I think that the Siegels already get compensation for the Smallville TV show. But even if they didn't, why would they stop production of the show when they could get DC's licensing fees, plus syndication royalties?

It's all about money. And people don't fight this hard for something so that they can put it in a vault somewhere. They do it because they want to be rich; like the guys that invented liquid paper and post-it notes!

On a side note, you all know that nothing is free in the world of Smallville and DC Comics. And just because Time-Warner-AOL own DC, the WB, Cartoon Network and make movies; that doesn't mean all those characters are free. I mean, DC still gets paid for the use of Aquaman (even if it is in a WB show); and the WB had to pay Cartoon Network for the right to rerun Teen Titans on Saturday Mornings, etc. Albeit, it's all done within the same accounting department; but they are still independent divisions. In fact, I wouldn't be surprised if the demise of Teen Titans and JLU had a little to do with the fact that the WB network wanted the exclusive use of Superman and Batman & Robin for their Saturday Morning line-up.

As for the Superboy-DVD series, you'd have to check www.supermanhomepage.com for the back story behind that.

4/06/2006 03:01:00 PM  
Anonymous Ron said...

I would totally run around saying, "I have become Jimmy Olsen, Shatterer of Worlds."

4/06/2006 04:11:00 PM  
Blogger Brian Cronin said...

Part of the complaint by the Siegels specifically asked for WB to cease production on Smallville.

So, no, the status of Smallville is still very much up for grabs, and despite Judge Lew's feelings on the case, I think DC has a good case for Smallville not being infringement.

4/06/2006 04:56:00 PM  
Anonymous tenzil said...

Asking to cease production of Smallville is stupid beyond belief.

It's a hit show and a huge revenue stream. As long as the show is on and generates income, the Siegels can get part of that income, a huge part since they can claim it violates their rights.

If they show stops and goes into legal limbo, it generates no income. Since NUMBER% of Zero is Zero, the Siegels get no money.

Yes, I know they have to defend their rights. But why would they want to defend them into the ground?

I suspect this case is not over yet by a longshot. Oh, and as for taking Superboy to Marvel, DC's got a pretty good case that a competing SuperBOY comic dilutes their rights to SuperMAN. Ask Fawcett Comics about that one. They lost with a completely different costume and origin. Superboy/Smallville = Superman from Krypton for 99.9% of the consumers out there

With a huge Superman movie and sequels on the line, I predict a huge cash settlement to the Siegels to shut them up real soon.

No, the real fun is the Simons taking Captain America to DC. There's no product confusion there.

4/06/2006 05:24:00 PM  
Anonymous Iron Lungfish said...

I'd totally *write* a comic called "Jimmy Olsen, Shatterer of Worlds."

You can't, the Siegels own the rights.

4/06/2006 06:15:00 PM  
Blogger gschienke said...

red_ricky wrote:

First of all let me say that, to me, all this decision means is that DC will have to pay. Pay for future usage. Pay for past mistreatments. I other words... pay what they owe. And, they will have to continue to pay. Pure and simple.

Well, that is, of course, open to interpretation. DC was found liable for copyright infringement of the "Superboy" character and the company entered into a licensing agreement with Siegel and Shuster because of that. Was the agreement written in favor of the company? Probably, as nothing I have read about Siegel or Shuster has given me the impression that they were businessmen; even after losing Superman to DC, they didn't seem to catch on the DC was going to screw them.

However, don't confuse moral rights with contractual obligations. DC never broke a contract with the pair, the company never gave them the full worth for their labors. You cannot blame a capitalist company for acting in a cut-throat manner, any more than you can blame a cat for chasing after a mouse. Such actions are just the nature of the beast. If it wasn't for the fact that there was a window of opportunity that allowed for licensees to regain their works when the Copyright Act was recently amended, this discussion would not even be happening. However, at least Siegel's wife and daughter (or their advisors) have some business sense and they are reclaiming the license.

Now for arguments sake, let's say that the Siegels wanted to take Superboy to Marvel. Could they? Well, the answer is yes. You see, the Siegels now own Superboy, costume and all. They own Lana Lang, Smallville, Clark Kent, Ma and Pa Kent... and hell, maybe even Bizarro and Krypto (since they all debuted in the pages of Superboy.)

Personally, I think you are stretching; I don't think that the Siegel family necessarily owns anything but the "Superboy" character, but none of trappings of the stories themselves. Once there was a time when your statement of ownership would have been correct; if you are familiar with comic strips and the newspaper business in the late 1800s/early 1900s, you know about the court decisions that allowed differently named comic strips run with the same characters to be in different newspapers in the same city. (For those interested, do a search for The Katzenjammer Kids/The Captain and the Kids or Hogan's Alley/McFadden's Row of Flats.)

A key thing to remember in this case is that copyright law and trademark law are different. Copyright law protects crative works, trademark law is consumer protection law enacted to prevent the fraudulent use of the same or similar trademark on the same or similar products by competitors of the trademark owner. Even if the Siegel family would go to Marvel with Superboy, what could Marvel do with it? Inside the comic, he can be called Superboy in every panel; he can put on his Clark Kent disguise and do chores for his adoptive parents (but would those parents be named Jon and Martha or Sara and Eben?). He can perform superfeats, though the character would probably be limited to the powers the originial characters provided him in the story the presented to DC.

However, on the outside, Marvel can't put "Superboy" anywhere on the cover since DC owns that trademark in relation to comic books. The S-Shield cannot be used on the cover because DC owns that trademark. The traditional Superman costume can't be used because DC owns that trademark; Marvel couldn't even circumvent the trademark problem by using different colors for the costume because trademarks are usually submitted in black and white because a producer may want to change the color, as in the logo of a magazine. (Color can be trademarked, as long as it isn't intrinsically necessary to the product.) Additionally, the traditional Superboy, that is Superman when he was a boy, can never grow up; the Connor Kent problem because of legalities. Sure, the Siegels' Superboy could grow up, but he can't use the name "Superman" and if the character doesn't eventually become Superman, the point of the character becomes moot. IMO.

Beyond a Marvel-published comic book, there could not be an action figure or video game based on the Siegel-owned version--well, there could be an action figure or video game, but "Superboy," the S-Shield, the costume couldn't be used on the package since DC owns the trademarks in those categories, too. In the end, IMO, this is the key problem facing the Siegels: What good does it do them to own Superboy when they can't tell (put the name on a cover or package) consumers what they are offering?

This suit is an inconvenience for DC; as we have seen, the company is more than willing to remove any trace of the original Superboy from its continuity, e.g. the current version seen in Teen Titans. Like Captain America and Joe Simon, the Siegel family, if they want to really obtain anything for regaining the copyright, will settle with DC, and earn a bigger royalty. IMO, DC has a much greater problem come 2013 when their rights to Superman could be terminated, but since the company owns all the associated trademarks, it again becomes a case of owning a character, but unable to use its name, symbol, and so on.

The only trademark DC still owns is the S shield, which thanks to all those DC retcons, versions and color changes; we now know, can be altered without the character losing marketeability.

As I wrote, color, unless specifically mentioned in the application, does not matter with regard to a trademark. It is the symbol, words, or combinations thereof that matters. For instance, whenever a comic book uses a new logo, a new application is submitted because the way appearance of the letters have changed or a new device has been added. However, if the trademark is yellow this month and orange next month, it doesn't affect the viability of the trademark.

As for trademarks that DC owns associated with this discussion, I offer the following a list at the end of this post. If you go to www.uspto.gov, you can do a trademark search using the serial numbers I've provided to see the various products for which DC has registered each. Of interest, to me at least, is that DC does not currently own a trademark for CLARK KENT or LANA LANG, but that doesn't mean that DC hasn't filed applications for them lately either.

But what about the name you ask? Well, here's the deal. DC can no longer use the Superboy name without infringing in the Siegel's copyright.

Copyright law and trademark law are different. Anyone can produce a comic book story with a character named "Superboy." Howver, if said character looks like the traditional, or even DC's current, version, if he has the same super powers that he uses in the same manner, has similarly named friends, or the story replicates an earlier published story, that is copyright infringement. If you don't copy any aspect of any previously published Superboy story, but then put SUPERBOY on the cover, then you are infringing the trademark. DC can use Superboy as often as it wants, in any story it wants because anyone can have a character named "Superboy," but only DC has the right to use SUPERBOY on the cover of a comic book and all the Superboys that the Siegel family can own cannot.

And without a Superboy product in the market, the trademark will evetually expire.

Absolutely correct, but (1) DC can maintain the trademark for a time even with no product on the shelf; and (2) all DC has to do is print a comic book titled Superboy every couple of years or so and they are properly maintaining the trademark. It doesn't even matter what the content of the comic is, all DC need do is publish a Superboy comic and the company retains control of the trademark.

And I'm sure that in the mean time, Marvel would have two words for you: ULTIMATE SMALLVILLE

Well, as you see below, since DC owns the trademark SMALLVILLE for a variety of products, that isn't going to happen. Technically, though, wouldn't Smallville already be "Ultimate Smallville" since the program obeys the underlying thesis of Marvel's Ultimate line in the first place: Reworking the classic characters for a modern audience without worrying about continuity.

Here there be trademark information:

SMALLVILLE Serial No. 78108313
78107430
78107426
78107418
78054112

KRYPTO Serial No. 78414109
78396425
78396438

LEX LUTHOR Serial No. 75490863
73813018

SUPERBOY Serial No. 73363777
71448096

S (the stylized "S" shield)
Serial No. 78698471*
78698463*
78698455*
74710429
74662947
73232324
73231896
73231868
73231860
73231856
73231853
73231849
73231846
73231823
73173809
73087920

LOIS LANE Serial No. 73190489

BIZZARO, if it is of interest, is owned by Mattel for "toy vehicles and accessories therefor" and by Chronicle Publishing Company for "sydicated cartoon features."

4/06/2006 10:23:00 PM  
Blogger gschienke said...

kelvingreen wrote:

I wonder if there'll be similar shenanigans in ten years with the Halo licence Marvel just bought...

Technically, a license is a rental. When you enter into a licensing agreement as a licensee, which is what Marvel is, you pay a certain amount of money for the use of a property in defined situations for a limited amount of time. Where Marvel went wild thirty or so years ago was that it tried to make every character it licensed from Conan to Doc Savage part of the Marvel Universe, never taking into account that licenses eventually run out. I'm sure Marvel will not attempt to incorporate Master Chief into its universe just because licenses end, just as I'm sure that Bungie and Microsoft wouldn't want their intellectual property intertwined with another company's.

4/06/2006 10:30:00 PM  
Blogger gschienke said...

muldertp wrote:

So, that does mean that they could cease production of the Smallville TV show also, right?

Not gonna happen. A legal footnote referring to a comic panel featuring a sign that reads "Welcome to Smallville!" Home of Superboy!" is just that, it has no legal weight, though it is an indication of how the judge may be thinking. Yet, if the case goes before a jury, what the judge thinks doesn't matter. I've only litigated one copyright infringement case, but I can think of a couple of ways that DC's/Time Warner's lawyers can argue that what appeared in a comic book X-number of years before the television show went on the air is irrelevant to the program itself.

4/06/2006 10:41:00 PM  
Blogger Brian Cronin said...

Oh yeah, Greg, I didn't get into it, but I, too, can think of numerous ways for DC to argue that Smallville should be left alone.

However, it IS interesting to see that Lew was pretty strongly coming down in favor of who HE thought should win that suit.

In any event, thanks for your comments! Interesting as always!

4/06/2006 11:15:00 PM  
Blogger kelvingreen said...

No, the real fun is the Simons taking Captain America to DC. There's no product confusion there.
Apart from the Guardian, obviously.

The Smallville credits say something along the lines of "Based on Superman, created by..." so either DC/WB don't know it's based on Superboy, don't care, or don't think the audience will make the distinction. Not sure if that's relevant to the case, but they may argue that the show is based on Superman, not Superboy.

In the end, IMO, this is the key problem facing the Siegels: What good does it do them to own Superboy when they can't tell (put the name on a cover or package) consumers what they are offering?

This would be the opposite of the Captain Marvel situation then. DC can publish his comic, but they can't put "Captain Marvel" on the cover.

I'm sure Marvel will not attempt to incorporate Master Chief into its universe just because licenses end
As you point out, it didn't stop them witth Godzilla, Rom, Doctor Who and the Transformers. You give Marvel too much credit. ;)

4/09/2006 05:25:00 PM  

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