How a $4 million lawsuit created 'Shazam!' and 'Captain Marvel' as we know them today

  • Comic-book history is full of wild stories, much like its host of larger-than-life superheroes.
  • DC Comics sued another company that originally owned Shazam, who was called Captain Marvel at the time, for $US4 million dollars and eventually won.
  • DC bought the rights to the superhero in 1972, but couldn’t call him Captain Marvel because Marvel took the name. So DC named him after the magic catchphrase that turns him into a superhero.
  • In 2019, the “Captain Marvel” and “Shazam!” movies were released just a month apart from one another.

The following is a transcript of the video.

Despite its recent resurgence in the pop-culture landscape, superheroes and comic books have been with us for over 80 years, and just like its host of larger-than-life characters, the history of comic books is chock-full of wild stories. They’re sometimes more entertaining than the heroes themselves. It also lets you see what others don’t, like the irony of these two movie adaptations opening only a month apart.

Though they might seem unrelated, these two heroes share a much longer history, and if it wasn’t for a single lawsuit, we might not have seen either of them at all. To tell this story, we need to go back to where it began, and it starts with one man that you will recognise in an instant.

The arrival of Superman on the comics scene was revolutionary. His 1938 debut in “Action Comics #1” essentially gave birth to the superhero genre and what is now referred to as the “Golden Age of Comics.” He was everywhere, in his own national radio program, newspaper comic strips, and animated short, as well as a TV series. It was shared in virtually every possible format imaginable except one: movies. That’s because someone else took his place.

Captain Marvel was another hero that made his debut in “Whiz Comics #2” in the late 1939 published by Fawcett Comics. It featured a 12-year-old orphaned newsboy named Billy Batson who can transform into an adult superhero by shouting one word. Captain Marvel became an instant success, launching his own new independent series “Captain Marvel Adventures,” which would later go on to sell more copies than “Superman.” In fact, for a while Captain Marvel was the most popular superhero of the time, so popular that it became the first superhero ever to be adapted into a motion picture.

Now, there’s more story behind this. The studio behind the film Republic Pictures was originally working with DC, or National Comics Publications at the time, to make a “Superman” picture, but they already had an existing cartoon deal with Paramount Pictures, which prohibited them from signing another. So Republic Pictures chose “Captain Marvel” instead. DC was obviously not pleased. Fawcett had already published “Master Man,” an obvious copy of “Superman” that they stopped publishing after DC had threatened with lawsuit. They believed “Captain Marvel” was just another imitation as well.

In June 1941, National Comics finally sued Fawcett for copyright infringement. This began National Comics Publications versus Fawcett Publications, one of the longest-running legal battles in the history of comic books, lasting over 12 years. Here’s what happened.

DC’s argument was simple, that Captain Marvel’s main powers and characteristics were too similar to Superman and therefore infringed on its copyright. Fawcett argued that although these two characters were similar, it wasn’t to the point of infringement and that similar feats have already been performed by other fictional characters like Popeye or Tarzan.

To prove their point, National Comics prepared a binder over 150 pages in length with panels from their comics of “Superman” juxtaposed with similar panels of “Captain Marvel.” Everything was in close scrutiny, from their costumes, boots, capes, the ability to leap great distances, the ability to fly, extraordinary strength and speed, invincibility to bullets, shells, explosives, and their secret identity. They went as far as to include that they both had clean-cut faces.

The verdict was clear, the judge eventually ruled that “Captain Marvel” was indeed a copy of “Superman,” but it was Fawcett who won the trial. It was all because of one tiny mistake, a mistake that looked like this. This was the copyright symbol used back in the 1950s. The lawyers from Fawcett discovered that McClure Syndicate, the newspaper company that published the “Superman” comics, had forgotten to place these symbols on several of their strips and argued that DC had no copyright to “Superman,” and the court agreed.

This was devastating news for DC. It meant that it did not own Superman and that anyone could publish Superman’s stories without legal repercussions. This lasted over two years. Out of 160 strips of “Superman,” published from January 1939 to April 1950, less than half of them were from Detective Comics.

DC immediately appealed, and despite the damage, the decision was reversed. The judge of the case, Learned Hand, declared “Captain Marvel” a deliberate and unabashed duplicate of “Superman” and told Fawcett to cease all of its publications and pay DC for the damage it owes. Fawcett settled.

By 1950, the Golden Age of Comic Books had come to an end. Sales were slumping to all-time lows, and Fawcett simply decided that it wasn’t worth fighting. They paid $US400,000 in damages, almost $US4 million by today’s standards, and with its last issue, it seemed like the end for “Captain Marvel.” As you well know, it was not.

A brand-new publication that no one knew at the time trademarked the name after it was abandoned by Fawcett. That publication was called Marvel. It took repeating slumps in sales and six different iterations until Carol Danvers, whom most of us are now familiar with, took on the mantle of Captain Marvel in 2012.

Meanwhile, DC Comics, looking for a new hero to add to their lineup, bought the rights to all of Fawcett’s superheroes in 1972, including the original Captain Marvel. The irony was that DC couldn’t call him Captain Marvel because Marvel had the name and decided to name him after the magic catchphrase that turns him into a superhero. And in 2019, these two movies are being released just a month apart from one another.

The National Comics Publications versus Fawcett Publications is a prime example of the thin line between plagiarism and inspiration, and the tricky balance that all artists had to find in the early years, a growing pain of sorts.

If it hadn’t been for Superman, a revolution in pop culture history, we wouldn’t have had Shazam, and if it hadn’t been for Shazam, we would not have had Captain Marvel. Ironically enough, Superman, as we know, might not have existed without Shazam, as well. During the first few years, “Superman” also drew lots of inspiration from the original “Captain Marvel,” like how his bald, mad scientist arch nemesis Doctor Sivana led to Lex Luthor, and as for Superman having the gift of flight, it was Captain Marvel who performed that feat first. A Superman who can’t fly, can you imagine that? Neither can I, and that alone might be a good enough reason why we need Shazam.

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