In Episode 12 – Comic Books, Geek Life, and Trademark & Copyright Law, Jim Cushing joins Anthony Verna to talk about comic books, some history of comic books (Jim and Anthony let their geek sides out), and the intellectual property issues of comic books.

James Cushing, Esq.

James Cushing, Esq.

A lightly-edited transcript of the podcast episode appears below:

Anthony Verna:
Welcome to the Law and Business podcast. I’m here with Jim Cushing. How are you doing, Jim?

Jim Cushing:
Hi, Anthony. Doing well, thanks. How are you?

Anthony Verna:
 doing great. Thank you. Tell everybody how to find you again. Plug away.

Jim Cushing:
Thanks. Jim Cushing, you can find me as James W. Cushing on the Internet. And I work for the law office of Faye Riva Cohen, f a y e r i v a c o  h e n in Center City, Philadelphia, Pennsylvania. I specialize in, or my office specializes in employment law, family law, and estate practice, mainly, and some smattering of other plaintiff’s side stuff. I also have a blog, at judicialsupport.wordpress.com. Oh, my firm’s website is fayerivacohen.com and you can reach me on the telephone at (215) 563-7776. Thanks, Anthony.

Anthony Verna:
No problem. And of course, if anybody listening has questions for me, I can be reached at anthony@vernalaw.com.

Jim Cushing:
This is my third time doing this and it seems like you ask me to come on when you have nerdy subjects to discuss, so…

Anthony Verna:
Well, you know, you’re a part of my advanced circle of friends. So, having first met many years ago and I think yes, there are a lot of nerds in our circles of friends.

Jim Cushing:
We’re being polite and that’s good.

Anthony Verna:
Of course, of course, but that’s half the fun. But yeah, so our nerdy topic today is of course the Marvel issues, for lack of a better word. And you know, to take that out to a further context because I actually did have a comic book case and there’s stuff about that that I can bring into this discussion and of course stuff that that is still, you know, attorney client privilege. But I think we can easily talk about some of those issues in general. And here, let’s start with Marvel. Jim, I’m going to let you take it away on describing exactly what’s going on with Marvel comics and ownership.

Jim Cushing:
Well, there’s a couple of things, one of which I find to be terribly confusing, but another one, not so much.

Anthony Verna:
Welcome to intellectual property law. As my friend Dave says, you guys live in a special level of hell.  

Jim Cushing:
What?  The intellectual property lawyers? Yeah. Well, Marvel comics and I think you can explain the legalities of this a better than I can, but there is a difference between owning a character and owning movie rights to that character. And, so Marvel comics, the characters are owned by three separate movie… I was going to say movie franchises, but it’s movie companies, I guess.

Disney which owns Marvel owns ironically what they believe to be the lesser characters of the Avengers, which is suddenly now the complete opposite. I mean, when Marvel… Basically back in the late nineties, Marvel were struggling to get movies going because they really couldn’t get anything sort of live action happening that was productive. As opposed to DC, which has, you know, the long history of Superman and Batman and so on.

Anthony Verna:
Absolutely.

Jim Cushing:
But Marvel…

Anthony Verna:
But really only Superman and Batman have been successful in the movies.

Jim Cushing:
Yeah. Of the high-end sort of success or Dick Tracy‘s in there. I don’t know who owns Dick Tracy, but I don’t know if that was successful.

Anthony Verna:
Yeah, well it was, and it was only one movie.

Jim Cushing:
That’s true. That’s true. And just thought it, for whatever reason that Disney came up, the Rocketeer was in there somewhere.

Anthony Verna:
Yes. No, that’s true.

Jim Cushing:
Swamp Thing was somewhere in there.
Anthony Verna:
Did anybody see Swamp Thing?

Jim Cushing:
Somebody did it because I made a second one.



But Marvel was never able to get like a … But you know, DC had Batman the tv show, Wonder Woman the tv show. But Marvel, for whatever reason, the live action stuff was never really much past the Incredible Hulk. And so, they saw the opportunity, with technology and CGI and so on to make movies and the o o’s for want of a better term, the aughts, whatever you call that.

Anthony Verna:
There you go. The  aughts.

Jim Cushing:
Yeah. And so they sold Sony the Spider-Man franchise and they sold Fox the X-Men franchise and the Fantastic Four franchise. And they believed at the time that those were their top franchises. Cause Spider-Man -obviously is arguably the most popular comic book hero of all time. Or perhaps Superman, I don’t know. And the Fantastic Four is their original super team and the X-Men, of course, that had crossed at gender popularity for years.

Anthony Verna:
Yes.

Jim Cushing:
Because a lot of women or girls or whatever follow the X-Men. And so, they sold them off so that  left the characters in the Avengers sort of doing nothing, in terms of movies that Disney never gave them up. And then Disney purchased Marvel and decided to make a set of movies about those characters. And like I said, those were the lesser ones for Marvel at the time. And now you have this weird situation where you have the X-Me people happening on these sets of movies. You’ve the rest of the Marvels over here and the Spiderman specific ones over here, none of which can cross over because they’re all owned by separate companies. And the only thing is the only way they’ve been able to do crossovers is with these really strange… You know, to the movie viewer, you might not notice it, but if you’re a comic book nerd or paying attention to this kind of stuff, you’d notice it. But like characters like Quicksilver, which a super-fast running mutant type character, is somehow for one reason, another shared for by the Avengers and the X-Men. So, that character now appears in both, though not by the same actor and not technically speaking the same character.

Anthony Verna:
Right. Because if I recall correctly, and I’m not gonna sit here and say that I recall correctly, the, the name has mentioned in one movie, but not both.

Jim Cushing:
That’s correct. And and he has a different last name in I think both. And then I just saw the X-Men movie. Quicksilver doesn’t appear until Avengers 2, which is in May. So I don’t know exactly how they’re going to present it, but in the, in the Avengers: Days of Future Past, excuse me, X-Men: Days of Future Past came out in the summer, which I did see, he is not, for whatever reason, mentioned as Magneto’s son, even though in the comic books he is. I don’t know why they wouldn’t play that up, but he has a different last name than Magneto in those movies too, whereas in the Avengers, they’re not allowed to use the word mutant. That’s owned by the X-Men people. Even though Quicksilver’s a mutant and his sister is the Scarlet Witch, which also appears in the Avengers movie or will be appearing.

Anthony Verna:
Is your head spinning yet?

Jim Cushing:
Yeah. Right. I don’t know if this is a spoiler for you people who haven’t seen this. While I’m saying this in the like two seconds, I’m gonna say this.
At the very end…

Anthony Verna:
Spoiler alert!
Jim Cushing:
Yeah. Right. At the end, the after-credit scene of Captain America, there’s an appearance of Quicksilver and Scarlet Witch being captured by his name is Casey[KR1] . Now one of the barons is a Nazi guy, Hydra guy and he calls them miracles as a way to avoid using mutants. Right. And so that’s sort of like the weird sort of movie conundrum that Marvel has found that stuff, which I don’t think applies in DC. Is that right, Anthony? Pretty much everybody’s sort of consolidated with DC?


Because no one’s made movies
besides Batman.

Anthony Verna:
Well, Warner brothers. Yeah. Warner Brothers owns DC and so I believe the DC movies are all a part of Warner Brothers.

Jim Cushing:
The main DC and I don’t know who owns the Watchman .
Anthony Verna:
Right, exactly. Exactly.

Jim Cushing:
The main  continuity of characters that we normally associate with DC.

Anthony Verna:
Yeah. I wasn’t considering comic book movies that have been disowned and royalties not taken by the original creator.

Jim Cushing:
That’s right. Yeah. Or Alan Moore is very much opposed to the movie making of the Watchman. For the record, that is one of my all-time favorite movies. So, I know it’s very controversial, but it can only be viewed in the nearly five-hour version.
Everything else is vastly inferior. I don’t know if you’ve ever seen it. There’s the ultimate cuts.

Anthony Verna:
And Allen Moore has disowned any movie version of anything he’s put…

Jim Cushing:
Including V for Vendetta?
Anthony Verna:
Yes, yes. Well, and for V for Vendetta and we’ll go off on a tangent here. He basically said that…

Jim Cushing:
Tangent? Isn’t that what podcasts are all about?
Anthony Verna:
Yeah, that’s true. It is. For V for, well we’re getting uber nerdy here. But for V for Vendetta, Alan Moore said that it was very Americanized. He saw all of the government parallels as Bush era America. And whereas in reality it was an English comic book about English politics and English beliefs. And he really saw it as very Americanized and disowned it and did not like it for that particular reason. He said it has nothing to do about Republicans versus Democrats. It’s about the form of government, whether it’s fascism versus a democracy. And I hope if anybody out there wants to correct me, they can certainly do that. And he saw it as very Americanized, even though they kept the setting of London, that they kept the English people for the most part.

Jim Cushing:
Exactly. I enjoyed it. I enjoyed the film. I’m not a big V for Vendetta fan and I’m gonna sort of reveal myself to the comic book fandom and that I’m really a Marvel person.

Anthony Verna:
That’s perfectly fine. That’s perfectly fine. I take no sides in the DC versus Marvel.
Jim Cushing:
Yeah, that’s right. You’re the Image comics. I don’t know. Maybe not.

Anthony Verna:
Hey, both have both of their strengths and weaknesses and that’s about it. But as for movie ownership, yes, the rights can be split into different media. Let’s step back into copyright law, the owner of a copyright and whether that owner is the original artists/creator/author, depending on how you want to define it or whether the owner is the corporation to whom those rights have been granted, the copyright owner can split those rights into different media. And so, there can be different television rights and there could be different paper rights and I’ll say paper for comic books or maybe novels themselves or some other kind of kind of creation, coloring books, for example. So, you can really divide and subdivide your media.

Jim Cushing:
Coloring books. I have two young sons and I read a lot of comic coloring books.

Anthony Verna:
Do your sons color inside the lines?
Jim Cushing:
Well they’re getting better at that. Yeah, my oldest, my older one has gotten, he takes it very seriously now .

Anthony Verna:
You know me, I’m going teach them how to do it right outside the lines, it’s fill in the negative space first rather than …

Jim Cushing:
Well, they’ll never see a negative photograph. So, they’ve got to start somewhere. So, let me ask you a question about the film rights. Everybody who is a comic book fan or what they used to call fanboys, I guess, will know that there was some really, really, really crappy movies made in the 90s that  only saw the light of day if you happened to go to your West Coast Video and rented them.

And I’m thinking of Captain America had a super terrible movie, well not super terrible. It was one of one of the better of the terrible. Fantastic Four is awful and you can watch it on YouTube.

Anthony Verna:
And by the way, if you caught the Netflix season of Arrested Development, they had an ongoing story arc about making a Fantastic Four movie that was utterly terrible.

Jim Cushing:
That’s true, about seeing a Thing. And just so if people who are listening to this don’t know, I’m not referring to Chris Evans in the Marvel movies and the Fantastic Four ones,  that came out with, what’s her name? Uh, Alba a couple of years ago, I’m)
talking about in the mid-nineties, where they’re out there, virtually no one ever saw them and they’re terrible. And so I think they’re called ashcan movies and my understanding you can correct me, is that you have to use your rights within certain number of years or else you lose them. And so, they make these films on virtually no budget just to say, they did something. Is that about right?

Anthony Verna:
Well, the reason that it’s that are the contracts and essentially those particular contracts, if I recall correctly, had options. And that’s where the options expired. If the options weren’t used, they expired, and they went to somebody else. So, a lot of these were made basically to fulfill the contract. And therefore the option is kept open for another x amount of years depending on the contract as well as the ability to make another movie even.

Jim Cushing:
Is there a certain amount of like good faith on these, because you know, if you watch the Fantastic Four movie, it’s pretty bad. I mean, like I said,  it’s on YouTube, people can go and look at it and if I were, let’s say Marvel, who was interested in getting my property back, could I make the arguments that obviously you had no good faith in making this film. I mean, it’s terrible and no one saw it and it’s only on like the back room of a West Coast Video.  


Anthony Verna:
I think that that argument’s a little more complex than you might think, because yes, that argument’s there, but what’s bad faith? Is bad faith the  requirement, and look, at the time, it’s not as if superhero movies had the cache[KR2]  that they do now. You know, we talked about it. There were Superman, there was Batman and there were a bunch of one-offs. But, you know, Swamp Thing didn’t really have a high budget. The Rocketeer was a successful movie, but there wasn’t a sequel. So, what would be good faith? Is it a $1 million movie? A $10 million movie? That’s really going to be the issue.


Jim Cushing:
Or a movie that’s released in a movie theater.

Anthony Verna:
Yes. But then they put this movie together and nobody liked it. And so, it was spiked and I think it’s not hard to make the argument that, look, we put some money into it. We had some actors, and at the end, this was so bad, we just spiked it. And there’s no way that we were going to spend the money to distribute and market it because that would’ve been even more of a loss. So while I hear you that this was not necessarily the work of something that felt like a good faith effort, I certainly think you could easily make that argument that it was a good faith effort.

Jim Cushing:
Yeah. I guess in that vein, in terms of good faith effort is that I don’t know if people remember this, but there was… Maybe you do, Anthony. In the 90s, there was an X-Men TV show. Do you remember that?

Anthony Verna:
You don’t mean the animated one?

Jim Cushing:
No, no. Live action. And I think I’m pretty certain it was by Fox and I’m trying to remember what it was called. I think it was called Mutant X or something like that.

Anthony Verna:
Well, let me see if I can…

Jim Cushing:
Yeah, it was.

Speaker 2:
Mutant X  tv show. Here you go. Mutant X. Oh, I do remember this.

Jim Cushing:
It was very sort of strange in terms of they didn’t have the traditional characters you may expect, but it was very mutantesque, X-Menesque, I should say. And Victoria Pratt was in it, who I think it was the biggest name in the show, which is that she’s sort of a… I don’t want to say a name, but she’s a purveyor of bed tv sci-fi.


Jim Cushing:
So, people who look at that stuff and wouldn’t know who she is.

Anthony Verna:
I remember this now. I don’t know that I saw it, but I knew that it existed. If I recall correctly, there was a lawsuit about that as well, but I’m not very familiar with it at all. Except that there was one. Part of the issue here is that stepping back and looking at the broader issues you can split those rights. And in Hollywood, look, there’s options all the time because it takes a long time to get a movie made or even a television show, especially when it’s going to be this complex.  

Jim Cushing:
Yeah. And if I remember right, I think making the new Man of Steel was like 20 years in the making?

Anthony Verna:
Something to that effect. Yes. Because it resulted… You might remember Superman Returns with Brandon Routh?

Jim Cushing:
As much as I’ve tried not to.

Anthony Verna:
I’ve actually avoided it completely. I never saw it. So, you had that and then Man of Steel took about 20 years after that to be made.

Jim Cushing
Maybe it was Superman Returns I’m thinking of. I mean it took a long time to get made.

Anthony Verna:
That did take a long time to get made. Yes, it did. And don’t forget with the Amazing Spider-Man, the new trilogy that was done basically because of an option as well. I believe Spider-Man is a part of Sony pictures?

Jim Cushing
 Yes, that’s correct. I don’t know if you’ve seen the movie, but you can’t help but know that it’s from Sony pictures when you watch it.

Anthony Verna:
I saw Spider-Man One and Two and then didn’t see three. I haven’t seen the Amazing Spider-Man series. At some point I’m like, this is a rehash. Cause I thought two was basically a rehash of one, but anyway,

Jim Cushing
Amazing Spider-Man Two was  not that good. Amazing Spider-Man one was pretty good.

Anthony Verna:
That doesn’t really thrill me to go see it, but the issue there was that there was an option up and Sony basically found lukewarm response to making Spider-Man four. And if I recall correctly, the original cast wasn’t going to do it. Sam Raimi didn’t want to direct again. So instead of making a Spider-Man four in the vein of doing Batman Forever, with a totally different cast and then Batman and Robin with yet another totally different cast. They just decided to reboot and try to start again, which is what they did. So, it was for some people, for some commentators, it was a very cynical move on Sony’s part to basically show us a movie that we already had seen maybe 10 years ago, with the Amazing Spiderman, but they did it to keep the option open. And that’s a part of the issue in in this particular contract or a series of contracts, cause it’s never just one, but ….

Jim Cushing
They’re doing the Same thing with the Fantastic Four sets of movies. They didn’t seem to think that the first set had a whole lot of success or not where they wanted to be anyway. So, they’re not doing a soft reboot like the, the last X-Men movie. They’re doing a hard one. They’re restarting the franchise.

Anthony Verna:
Do you know what studio that one’s with?
Jim Cushing
What? Fantastic Four?Oh that’s with Fox, it’s owned by the same as the X-Men people.

Anthony Verna:
Okay. So, it’s not going to be a part of the Marvel Cinematic Universe as they’re calling it, is it?

Jim Cushing
No, that’s not part of the cinematic universe as much as they would like it to be. In fact, strangely enough, the marvel cinematic is sort of confusing. So, I want to be clear that the Marvel Cinematic Universe is owned by Marvel comic books who makes the comic books and Disney, of course, is the umbrella. But my understanding, from my being in the comic book nerdy world, is that Marvel comics is more or less trying to passively resist the Fantastic Four movie, the new sets of Fantastic Four movies by basically shutting down the Fantastic Four comic book and discontinuing sort of advancing that franchise in the comic books because they’re hoping that it sinks and that Fox will be motivated to sell it off back to Marvel.


Anthony Verna:
You know, these days comic books themselves don’t make money and they just exist as loss leaders for other licensing properties such as television shows and the movies. So, that’s not really a surprising play that they’re making.


Jim Cushing
Yeah. I am personally surprised that the idea that  Fantastic Four will be that popular. I think they’re sort of, as much as I like the Fantastic Four, they seem to be sort of hokey in today’s comic book sort of reality. But maybe not, I don’t know.

Anthony Verna:
Well I guess you’re going to be getting a grittier, more realistic, Fantastic Four.

Jim Cushing
You know, all the rumors out there are, are ranged from terrible to ridiculous. So, I’m not sure.

Anthony Verna:
Wait, there are rumors. I didn’t, I’m shocked. I tell you the shock. You know, this ownership issue is not surprising to me because one, the comic book industry itself has a history of being, let’s just say all over the place. How does that sound?

Jim Cushing
Well, I mean, are you going to raise the Image comics revolution?

Anthony Verna:
No, not necessarily. I’m just saying in general. I mean, it’s interesting to me that a comic book company like DC or Marvel has their standard lines and those lines can cross with each other. They have their subsidiaries and of course none of those quote unquote universes may ever touch. And that’s true with Marvel as well. But you saw before Marvel was bought by Disney, one set of books having movie rights in one studio, another set of books being in another studio. And in a way what was precious in the comic books to them, being able to make those characters interact from time to time doesn’t exist in other media. And…

Jim Cushing
Well, that’s one of the things that make comic books a lot of fun is that, you know, Batman can meet Superman at some point.

Anthony Verna:
Yes, exactly, exactly. But it’s a new idea to do that in other in other media. You know, there never was a Batman and Superman movie, until next year.

Jim Cushing
I would note that Marvel really is the comic book company had revolutionized the idea of the crossover. They did that from the very, very beginning.

Anthony Verna:
But yet in other media, that wasn’t ever the case, so that’s all I’m I’m pointing out. In movies, it was we sold the rights to one set of characters or one character and that movie company gets it, the next movie company gets it. And it’s only until recently with the Avengers line has that been thought of as something to do in movies.

Jim Cushing
Yeah. There was truly a world-building effort with that, that has never been undertaken in that way, I don’t think.

Anthony Verna:
But like I said, I’ve known the, the comic book industry to be sloppy, for lack of a better word. I think I’ll use that word when it comes to dealing with their own rights and to protecting themselves. The lawsuit that I dealt with and I’m not going to give too many details, but I’m sure Dr Google could easily help anybody find the details that I was involved with, but I represented the artist and just to show you, you know why I’m saying what I’m saying? The artist, of course, for most of us would say, well, the artist isn’t the one that owns the work. It’s the comic Book company. And I think a lot of us inherently might agree with that particular statement. Copyright law says that, of course, it’s the artist that owns or the author that owns any work that falls under copyright law unless it’s given over.


And usually if it’s done by employment, then obviously, something that you do that falls under copyright law that furthers your employment belongs to your employer. That makes perfect sense. Anything that is done, if you’re an independent contractor in furtherance of what we call a work made for hire agreement, then that work belongs to the the contractee , I guess, the company that commissioned it. So my question, is if a comic book company basically says everybody’s an independent contractor and gives everybody an IRS 1099 form because they’re not employees and nobody gets  insurance or health benefits or retirement benefits because nobody’s an employee. They had better have their work for hire agreements sewn up and therefore making sure that they own the rights to all the work that is being created.


And I can tell you that might be the case  now, but 10 years ago and previous to that, a lot of comic book companies, were very sloppy with handling the rights and with the lawsuits that you see, whether it’s the Kirby suit. I know that Stan Lee has resolved his particular differences with Marvel and Disney. But I know that there are some people out there who are still claiming that’s not quite the case. Comic book companies are very sloppy with keeping their intellectual property straight and you see that on the front end coming out in different media and licensing and you see it on the back end with actual creation as well.

Jim Cushing
Well, isn’t that one of the reasons that sort of sparked or inspired the creation of Image comic books? Because there was a move… for the people who don’t follow a comic book history… In the beginning of the nineties, there became this sort of a loyalty to the artists, you know, Todd McFarland, Jim Lee, and people like that and they were sort of wielding a lot of influence and power in terms of sales and creation and so on. And so, they said, hey, this isn’t fair. This is my stuff. And people like Stan Lee said, “No, it has the Marvel name on it, so it’s mine or ours.” And so, they they went and created Image, which was the way to have preserved the creators’ rights within an umbrella, a greater umbrella of a comic book company.

Anthony Verna:
No, that’s absolutely, that’s absolutely correct. Part of that is frankly terrible corporate culture in the industry to begin with. And…

Jim Cushing
By that you mean the lack of respect for the creator?

Anthony Verna:
I would say  lack of communication, I don’t necessarily know about respect. I would say, if you’re being paid by the work, chances are where you’re working isn’t going to respect you as much as you think it should. And I think that’s endemic to society, but at least in the comic book industry, there really wasn’t a very good communication policy. I can tell you today that’s not the case. If you’re working for Marvel and you’re an artist and you will not just sign a work for hire agreement that’s very blanketed. You will also, for all of your pay vouchers be signing a work for hire agreement so that they have your agreement that what you made is a work made for hire so that Marvel owns that work, in the beginning and at each pay period. That might sound harsh, but, we don’t necessarily get all of these particular cinematic universes without that particular protection. And it, really does exist to protect lawsuits like the Kirby lawsuit. Like, whatever Stan Lee was doing. Superman’s creators, were still fighting with DC…

Jim Cushing:
They notoriously lost the rights until the movie came out.


Anthony Verna:
Yes, yes, exactly.


Jim Cushing:
I still think they got like $65,000 or something like really small.

Anthony Verna:
No, it, yeah, it was something like that. But of course, when Superman was created, in the 30s and 40s, when Superman and Batman were created in the 60s, when Stan Lee was at the height of his creation and Kirby, Jack Kirby was at the height of his creation, copyright law wasn’t as sophisticated as it is today because frankly, so many articles of work just fall under copyright law. But from a corporate policy standpoint, that’s what a company that has to deal with artwork and with a lot of work that falls under copyright law in order to use it, make money, license it, you really need to stay from the beginning. If we have a department of people who are creating work that falls under copyright law, we need to make sure that the company is the owner.


And you’re going to do that in either one of two ways. You’re either going to make them an employee and if somebody is an employee, you have to deal with the employee, work behind it, whether it’s health insurance and benefits and all those other good things. Or they’re independent contractors and you’re just going to have a ton of paperwork discussing what a work for hire is, and what those work for hire agreements look like. And you’re just going to have to have a ton of them signed.

Jim Cushing:
Right, right. But even with that though, it’s fair to say that there’s still individual issues or instances where, let’s say a creator gets attribution whenever the character is used. So like Batman movies always say, created by Bob Kane, for example. And aren’t there royalties that go to him or his estate for that at this point?

Anthony Verna:
Well, sure. I mean, look at every Star Trek movie since Roddenberry passed, based on Star Trek by Gene Roddenberry. Right There’s credit given and I’m sure there’s something worked out with the estates just to do that. Credit doesn’t speak here. Money speaks here, and credit is nice. Yeah. But it’s not the be all, end all because ultimately copyright infringement is that the infringer or accused Infringer made a work or sold a work or made copies of a work or public publicly performed a work. And presumably there was some aspect of money exchanging hands there to which would then create damages for copyright infringement. And so, the credit is nice, don’t get me wrong, but if a company is making movies that they don’t have the, right to, then ultimately there’s an exchange of money that has to take place.

Jim Cushing:
Um, yeah. So speaking of something like that, what is maybe… I don’t know if this is a sort of skew of what we’re trying to talk about, but what is it that makes character a character in terms of intellectual property rights?
Cause I have some specific questions in that regard. So, go ahead.

Anthony Verna:
That’s fine. Now we’re getting to nerdy law talk instead of nerdy comic book talk. But that’s okay. When an author takes an idea and puts it on a medium, copyright law attaches. And in an instance like this, if somebody has an idea, an artist has an idea for a character and we’ll just start off blank. And then that author starts going through iterations of what the hair might look like or what the costume might look like, or what the secret identity might look like, or whatever else. All of that falls under copyright law. Now there are also trademark rights once you’re taking these particular characters or the names and you’re making money with it. So, you’re selling a book series or you’re trying to license it to other media. And in that particular case, trademark law is all about what a consumer thinks of when a consumer sees a business brand name, logo, slogan, something like that. So while Batman and Superman are registered trademarks of DC comics… By the way, the word superhero is a registered trademark that is shared by DC and Marvel. They both own and enforce the word superhero.

Jim Cushing:
So, that word cannot be used without some kind of arrangement with somebody, like say Image.

Speaker 2:
In a comic book or other related media point of view. Yes, you are correct. Yeah. You and I can say the word superhero until our lungs turn blue. Nobody can do anything about it. Just like we can sit here and say Apple until our lungs turn blue. So anyway, copyright law attaches as soon as there’s this this drawing on a piece of paper or on a computer screen and that’s when copyright law starts. Now you need to register your copyrights. So, any artists out there needs to file that copyright registration… And trust me, when I say comic book companies register every issue. That’s required. I shouldn’t say it’s required. You can’t start a lawsuit without it. You can’t enforce a copyright without the registration. So, it’s important to get that registration even though copyright law attaches the second that is on that piece of paper.


There’s nothing that can be done about it. Now, the tricky part here, Jim, is if an artist is at home drawing characters and that artist happens to be let’s just say a full time employee of a comic book company. And then we can muddy the waters and say what if they’re an independent contractor? But if that person’s an artist and an employee of a comic book company is drawing on a piece of paper in furtherance of the job and who owns that particular copyright? Cause there is a copyright again that once there’s an idea on a fixed medium.

Jim Cushing:
Yeah. So, I guess that leads me to a couple of questions that I had penciled in before we made this call. For example, what does it mean to create a character? Right? So you have Bob Kane who’s the Batman Creator, but Bill Finger whose his, I guess his associate or assistant, or, I dunno. I dunno what his relationship, but they worked together DC or what was DC then. And Bill Finger came up with a ton of stuff that we would now associate with Batman, like the utility belt and the Batcave. And then the same thing with Superman, right? So, Jerry Siegel came up with this idea of like this strong guy from another planet, but you know, it was radio and TV. They gave him flight and it gave them the fortress of solitude and other things that we think of when we think of Superman. So, how did those guys get put into the sort of the stew for these characters?

Anthony Verna: (
That’s a harder question to answer because we’re dealing with one, another time when the law was different as well. And also, a core quote unquote corporate culture, for lack of a better phrase that I’m not going to claim to be familiar with because I’m sure that it wasn’t as formalized then as it would be today. So I’ll say this, there’s probably going to be for lack of a better word right now, credit given to each of them because they each had input and they are each authors. So, in today’s world, what we would do is we would say, well, this work has joint authors to it. And so, while one person may have created the outfits, somebody else created the stories behind it. And so, there’s some kind of joint authorship there and it’s gonna be hard to split the baby. So, copyright law, the statute does not really try to do that. The statute says if there are joint authors, then joint authors share equally. And so it doesn’t matter if you’re a 10% author or 90% author, if there are joint authors absent an agreement and there’s always that, then you’re going to be splitting credit 50/50, and you’re going to be splitting royalty rates 50/50, and also absent an agreement, a joint author can go license under the nose of any other authors.


Jim Cushing:
What is some of the comic book characters though? I mean, they’re around for literally a lifetime, right? Generations now. And so, you have elements of a character can be added in long after its creator is dead.


Anthony Verna:
Absolutely.
Jim Cushing:
So do we look at the…

Anthony Verna:
Look at the   does Superman shave or does he burn the hairs with his laser eyes off of a mirror?

Jim Cushing:
Oh yeah. I mean, how else would he shave? Of course.

Anthony Verna:
How was his hair trimmed so nicely also? Yeah.

Jim Cushing:
All the time. Well, it’s precision, right? I mean, come on.
I mean the idea that you’re asking is cause he has mirrors. His bathroom is a 360 mirror, of course. Maybe it can be cut with like a fortress of solitude icicle.

Anthony Verna:
But you realize that in the 90s when DC introduced that particular aspect, people were like flipping out about it or I think he have long hair in the 90s. Right?


Jim Cushing:
For a brief time. Yeah. He had something of a Nicolas Cage kind of mullet.

Anthony Verna:
Yeah. So, people were flipping out about it. But those were changes to the character.


Jim Cushing:
Well,  Wolverine is the classic example. I mean, he’s totally different than when he was started. They had no idea what he was going to be. Or Venom is another one.

Anthony Verna:
Right.

Jim Cushing::
So did those guys to get added into the mix as co-creators of this? I have this character now ?

Anthony Verna:
No, no, they wouldn’t. I mean, especially when it comes down the line like that, if you’re coming down the line and, and chances are everything that you’re doing would fall under what is a work made for hire, then chances are your additions are works that are made for hire and not really a part of the creation.

Jim Cushing:
Okay. Yeah. Even though sometimes your elements that you add are as known or more known than some of the original elements, it’s just the luck of the draw.

Anthony Verna:
Absolutely correct. Yeah. And I know that sounds harsh and unfair, but yes, you’re absolutely correct on that.

Jim Cushing:
So let me ask you another one. Let’s take the Hulk, for example, and I guess you can make an assumption that the laws are different in 1963 or whatever it was, but one of those little known facts outside the comic book circles that the Hulk wasn’t always green. Right? So, the, the first five  issues or so of the Hulk, he was gray. But for whatever reason, the colorist had a hard time maintaining the gray. So, he arbitrarily made them green. There’s no in-story explanation for that at the time. But they since, like as comic books are wanting to do, 10 years later they explain, “Oh yeah, we totally meant to do that. And this is why.” And even though it was… So I guess the question is, if you’re gonna copyright things as you were describing as by day almost, right?


So, or by contract, you know, the Hulk was, is a bruiting gray character. And so, if someone came up with the Incredible Bulk, he was gray and did whatever, or the Credible Bulk, he’s always tells the truth and he just happens to be large and gray or something. And so, obviously that will be a problem, but now that you sort of arbitrarily made him green, does Marvel now have some kind of copyright over the multicolored Hulk? Cause now there’s a red Hulk, right? Although that’s sort of an intentionally created character, but the blue, the gray, and green seems to be sort of an oops and they made them green for time memorial basically. And do they now have like some kind of ownership over a gray character that’s large and crazy and the green one, even though that was just sort of a coloristic technology problem?

Anthony Verna:
I would say the process matters as well. And let’s look at what happens with the comic book process. I mean, somebody creates a character, somebody else might draw a panel, somebody else might, or excuse me, somebody who might write the story and kind of do some stick panels and then somebody else might draw the panels and then somebody else will ink it done.

Jim Cushing:
Yeah. Usually they’re all separate jobs.

Anthony Verna:
Exactly. So on one hand, you know,  if a character’s color had to change or something like that, I don’t know that we would necessarily call that creative input. Although frankly that’s kind of how we see that character today. And that’s a part of that.

Jim Cushing:
Yeah, the Hulk is green, that’s part of who he is. But what about like if someone created a large character that’s gray would Marvel, say, “Hey, that’s the Hulk.” But even though everyone knows the Hulk is yellow and cause it’s causing confusion in the marketplace, which is one of the standards, right?


Anthony Verna:
Well that, that that would be a trademark standard, not a copyright standard. Okay. And, part of the issue there that you’re going to have is from a copyright infringement standpoint, how similar are they? Like, have I contributed something new or am I just really ripping off somebody else? And that’s going to be a part of that, is the new work really not new for lack of a better question to ask, but that’s where you’re going to start from a trademark standpoint because when we’re dealing with intellectual property, there’s always multiple rights. From a trademark standpoint, that’s going to be a little more tricky because the question there is right, the Incredible Hulk is probably a registered trademark. And my thought is that chances are the gray Incredible Hulk hasn’t really been used the way the green has in order to get consumers and to show that this is a Marvel product or something to that effect. And I’m not saying it hasn’t been done, I’m just guessing that it’s been less than the green. So, there might not be such strong trademark rights in a big, gray character as there is in a big, green character.

Jim Cushing:
Okay. That makes sense. So, you’re talking about rip offs, right. So, one of the reasons why I hate the Green Arrow, who is a popular television show right now called Arrow. Besides that, even though I can suspend my disbelief about the crazy alien come from another planet as a baby, I just can’t imagine some superhero walking around the city with a bow and arrow, but, be that  as it may, the Green Arrow started life as a Batman rip off. Right? So, he had the Arrow Cave…

Anthony Verna:
I didn’t realize that.

Jim Cushing:
Yeah. Yeah. The Arrow cave and the Arrow mobile. And he was a rich playboy who had this dark past. He was a superhero. Right. So, He’s like a Batman. I can’t remember who creator is at this very second. But yeah. So, I mean that seems pretty similar, but really, he’s a different character. I don’t know if that’s something that will be the subject of a lawsuit that like, Hey, he’s just a Batman who shoots arrows.

Anthony Verna:
Well, it very well could be. There’s the case of Lucas Arts or I should say Lucas Films. And then I forget which studio created Battlestar Galactica, but they basically sued each other. It was a Lucas Film started basically. And they basically said, here are all the lists of similarities between the Star Wars movies and Battlestar Galactica. And I think this lawsuit started, of course, in 79 or 80, and ultimately it went to the Ninth Circuit Appeals court. And basically, they said, “Yeah, if you line up all of these similarities, you see that Battlestar Galactica has some kind of derivative of Star Wars.” And I think today our sensitivities might be different. We might say, “Okay, but this is just what space operas do. Space operas have ships and they fight each other and, whatever other similarities are out there.”


You can’t have a space story without actually having ships and you have to have bad guys. And so, those particular similarities that the Ninth Circuit found back in 1980 probably or whenever the appeals decision was made, I should say 86 or so. It’s going to be different than I think what we find today. I think you could say that, in your example, Jim, that there’s a chance that there is some risk of being a defendant in a copyright infringement suit.

Jim Cushing:
Well, DC purchased the characters, so that sort of nullified that. But they had a very similar, they did actually file suit against the Fawcett Comics years back against the Captain Marvel and yeah, with Superman. Well, that’s a different one. See that’s the weird cause Captain Marvel became the subject of lawsuits but with Marvel comics and DC comics, what bad luck that is. Right. So, because DC said, “Hey, Captain Marvel is basically a Superman rip off.” and Marvel comics said, “Hey, he’s using our name, Marvel.” Because that was the very first Marvel comics number one. So, and now they had this weird thing
with Marvel where they can’t use his name on the cover of any comic book.

Anthony Verna:
Right. Which is why they just call them Shazam.

Jim Cushing:
In fact, in the new movie that’s coming out in the next couple of years, starring the Rock, I think the character in the title is gonna be Shazam. I don’t think they’re using the word because Captain Marvel is going to be a Marvel comic book character superhero movie coming out around the same time concerning the character called Carol Danvers. Cause originally it was Mar-vel. Right? Cause they had to make it interesting.

Right? So, you were just stuck with both because of the name and the look and the type of character he was, which is a super strong guy with a cape.

Anthony Verna:
Yes. Yeah. No, exactly. It had that particular issue with it. And I mean, I know that that lawsuit was settled and I don’t…


Jim Cushing:
DC took over the character, that one too. I mean I that seems to be their way of settling a lawsuit is buying the character.

Anthony Verna:
Not a bad way.

Jim Cushing:
Yeah. Right.

But you know, but that to me seems to be even more tenuous in Green Arrow and Batman because, yeah, they’re both sort of square jaw, dark hair guys,  with capes. But, you know what…

Anthony Verna:
By the way, just to let you know, cause I just pulled it up, but, the appeals court basically stated that the Superman copyright was valid, but while the character of Captain Marvel was not an infringement, certain storylines or other characteristics of the character could be infringement. It was sent sent down for another trial and before the second trial, because even in the 50s, nobody wants to go through two trials for any particular issue.

Jim Cushing:
That makes more sense because Captain Marvel, he’s not like an alien. He’s got like the the wisdom of Solomon, the strength of Hercules and like all these mythological characters. Yes. Oh, the speed of Hermes or something. I forget the S H A Z A M s.

Anthony Verna:
I have it up. I have it up in front of me. Solomon, Hercules, Atlas, Zeus, Achilles and….

Jim Cushing:
Yeah, there you go. Hermes, I meant Mercury. Not Hermes, like it’s the same person, but yeah, so he has a weird like shoulder’s cape and not the full cape, too. Right? It’s only on one side. Shazam had a whole… they create like the whole family of Marvels, like the Ms. Marvel, Kevin Marvel, mom, Kevin Marvel. It’s fun. I mean all these like the Marvel family, right. So, they all wore like different color outfits. So they obviously, that’s not really a Superman thing, but  Not to get you on that tangent, but you know, there’s the, at some point in the history of comic books, when having man attached to your name was like the thing. There was a whole variety of variants, right? There was Superman, Supergirl, Superboy, Superdog, literally.

So the Superman or Spider-Man, Spider-Woman, so there’s this weird thing, how does this work? And, and maybe it’s just the word wonder, I guess, isn’t trademarkable or copyrightable but Wonder Woman famous, a person who invented the lie detector test and he was very interested in female bondage, created Wonder Woman, who had a lasso that bound you and need to tell the truth. And she was, by the way, in bondage in every issue at least for like the first 20 years. So that’s an established DC character, no doubt. But then you have Wonder Man and DC apparently forgot to get that one. And that’s now a Marvel. That’s been a Marvel character for at least 40 years.


Anthony Verna:
Oh really? I have no idea.

Jim Cushing:
Yeah. Wonder Man, he’s an android and something or other. And he was involved with, he became sort of associated with the Vision and the original Human Torch and so-and-so. But anyway, so does that, I guess every iteration of a name isn’t automatically presumed to be yours just because you happen to use Wonder Woman? Is that about right?

Anthony Verna:
I mean let’s start that from a trademark standpoint. The first issue is, at this point in time, cause I’ve pulled up Wonder Man here, he’s been around since 1964 so, right. So, it’s a little late to put the cat back in the bag.

Jim Cushing:
Yes, but in 1964, could DC have said, hey, that wonder theme, that’s our thing?

Anthony Verna:
Yeah. I mean, you would have thought that that’s something that they would’ve done. Now, in today’s world, when you’re doing something like that, you would probably want to claim not just trademark infringement of one trademark, but if you have something like that, then it would be a family of trademarks. And, to me, the family of trademarks that looks good is, you know, anything from McDonald’s. They do mc everything, Chicken McNuggets, McCafe, almost anything from McDonald’s has mc in it. So, you need to look at that. And that’s a part of the, the issue. Now,  in here, it’s going to be a little trickier, cause I’m sure there really wasn’t like a Wonder Girl or Wonder Boy or something like that. So maybe there wasn’t necessarily a Wonder family of trademark.

Jim Cushing:
I think there’s Wonder Girl, I think Wonder Girl’s real. I think that’s true. Like her little cousin or sister or something.

Anthony Verna:
Yeah. So it’s, it’s a little, I know we’re being picky in here, but it’s a little hard to….

Jim Cushing:
We’re lawyers, of course we’re being picky. We make a living in being picky.


Anthony Verna:
But to me that might not necessarily be a family of trademarks. Two, might not necessarily be enough. And the question is, how are they used as well? A family of trademarks really needs to be used as a family. You need to show that consumers will see the Spider-Man and Spider-Girl and Spider-Boy as the same or Superboy or with the Wrath of the Supermen at the time and those particular issues need to be shown that consumers recognize a family of trademarks. So, it’s a powerful claim for trademark infringement if you, as a plaintiff, can do it. But it’s not necessarily something that everybody’s able to do.

Jim Cushing:
Yeah. I guess it’s the more unique of the words here, right? Cause the Spider is a character that exists that has nothing to do with Spider-Man. Cause spider is just a word. But I guess if you had, like I said, it’s sort of sort of being funny earlier about the Incredible Bulk. I mean that’s, that’s very similar to the word Hulk.

Anthony Verna:
Well and there comes into what we would call the dominant portion of a trademark. And for a lot of trademarks, for a lot of people who are being sued, the first thing I say is, “Well, you know, look at your first syllable or your first word. And if it’s something like that, if you’re coming up before with the Incredible Bulk…”

Jim Cushing:
Incredible Bulk, right? He’s the truth telling big guy.

Anthony Verna:
That sounds like a C grade wrestler, doesn’t it?

Jim Cushing:
That’s right. He’ll put you into submission and make you to tell the truth? Would he be a heal or a face? And this is really terribly nerdy. Okay. Moving on.

Anthony Verna:
What you’re going to find there is, hey, look, your first problem is that you’re dealing with the incredible. And then, two words that rhyme, yeah, so that’s going to be a little bit of an issue. I had a trademark case, last year where I… first off is one of the rare cases that went to the trademark trial and appeal board oral arguments. And that really is a rarity to go to oral arguments. Usually most people are happy after, after briefs[KR3]  …

Jim Cushing:
Alright, moving on. Humble brag.

Anthony Verna:
It’s not a humble brag. The board ruled…in this particular case, my client is making an epinephrine auto injector, like the EpiPen, and Mylan Pharmaceuticals was the plaintiff and my client is doing it in a key shape. So, EpiKey is what it was calling it and basically the board said, Epi which may or may not stand for epinephrine, and the shape of the device, along with epi and the shape of the device, so when you look at EpiPen versus EpiKey. My other argument on that was e p i really did stand for epinephrine and therefore it was descriptive, and you had to move on past the descriptive part of the trademark. So, the board didn’t recognize any of the evidence that we put in, but oh well, so we lost that case. But what I’m saying there is that the dominant part there does matter and if the only argument that you have to trademark infringement is to demystify the dominant portion and try to make it a descriptive portion then there may not be such a hard argument there for you.

Jim Cushing:
Okay, but what about, for example, The Avengers, which everyone knows is a movie, but there is also The Avengers which is also a tv show. I’m not sure that it was based on something else, but I’m sure that I was. You know what I’m talking about?

Anthony Verna:
Oh, yes.

Jim Cushing:
I think it was based on a series of books.

Anthony Verna:
Oh, yes. The British…

Jim Cushing:
Yeah, that’s right. It was a movie that came out in the 90s about The Avengers with like Uma Thurman.

Anthony Verna:
Oh, really?

Jim Cushing:
Yeah, I’m looking at it right now. Uma Thurman, Sean Connery. So, that’s two names of action adventure. Are they not comic booky enough?

Anthony Verna:[58:33]
Well, I would say on one particular issue, again, we’re dealing with after 30-40 years, it’s impossible to put the cat back in the bag. That would issue 1. Issue 2 is probably their origin. One is British and one is American so that’s going to be an issue as well. I would also say when you look at what’s in it, the contents themselves are radically different. So, while the Avengers may be a registered trademark of Marvel…I need to look this up…Magazine and published periodically. That is the goods and services described for the Avengers and while that might be true, basically the Avengers for other things isn’t necessarily going to be able to be enforced against something else that’s been around 30-40 years.  But, also, when you look at the Avengers tv show versus the Avengers magazine published periodically, those goods and services are different and so their entry points are radically different. And that’s where you’d have to start with.

Jim Cushing:
And then there’s, and I know I’m hitting you with a lot of stuff, have you ever heard of Squadron Sinister in Marvel comics?

Anthony Verna:
Squadron Sinister? No, I mean, you’re getting a little…

Jim Cushing:
Yeah, they’re a little whatever, but its basically a set of bad guys, that they’ve used the characters in other context, but not to get bogged down in the comics story, but each character in the squadron is basically a double of a Justice League DC character.

Anthony Verna:
Oh, so they’re like Bizarro…

Jim Cushing:
Kinda, but a different character. So, like there’s Hyperion, which is basically Superman or The Whizzer, who sounds like he just pees on people, but he’s a fast running Flash character. He whizzes around. Then there’s Nighthawk, who is obviously Batman. Then, there’s Dr. Spectrum is the Green Lantern.

Anthony Verna:
In a way, it’s their way of mocking DC.

Jim Cushing:
So satire is obviously one of the exceptions, right?

Anthony Verna:
To copyright infringement, you can always comment and criticize. I shouldn’t say always. There are going to be limits. It’s part of the Fair Use Doctrine of copyright. There are limits.

Jim Cushing:
What about an homage?

Anthony Verna:
But, yes, something that would be an homage or comment and criticism. That’s really the key, comment and criticism and if your work can comment and criticize another work, you can have fun with it all day. The hole that was blown into parody/satire/comment and criticism is the 2 Live Crew which took place, I think, when we were in high school, and in it…Your favorite rappers in the world, Jim. 2 Live Crew. I know they’re your favorite. They did a “parody” of Roy Orbison’s “Pretty Woman” and lyrics, not to be repeated here because I’d lose that clean label, they made these very crude lyrics about hygiene and as you can imagine, Acuff-Rose, who at the time owned the Roy Orbison catalog, filed a lawsuit for copyright infringement. Now, there are two really broad issues. One was the fact that the first 5-10 seconds really are the first 5-10 seconds of the original recording before it breaks out into the parody, for lack of a better word. Two is the fact that there’s a fact that there’s a parody. The court seemed to roll everything into one by saying, “This entire recording mocks the dating process in general.” Where “Pretty Woman” was an ode to running into somebody randomly and feeling forlorn at the inability to meet this person until the end where she’s “walking back to me” as Roy Oribson sang. Whereas the 2 Live Crew version mocked dating and sexuality in general by being crude. But, we don’t judge on crudeness under copyright law and comment and criticism, we judge on is there comment and criticism at all. Does it harken back to the original at all? And I’m not sure that I agree with the Supreme Court that in that particular case that it did harken back to the original or that it did mock the original. But, basically, the Supreme Court did say same song, different lyrics, it mocked the general thinking of the original, so it’s comment and criticism. I’m not a huge fan of the decision, I think it could have been done a little more narrowly, but basically anything that comments or criticizes the original is not going to be found an infringement of copyright law. So, in this particular instance, I’d say yeah, no, Marvel is making comments or criticisms on what DC characters are like and they’re having fun with it and it would be a-okay.


Jim Cushing:
Well, alright That’s interesting because the characters have taken on a life of their own.

Anthony Verna:
Oh I don’t doubt that.

Jim Cushing:
Except for in a part of their obvious analogs. I guess it would fall under one of these exceptions. I don’t know if you know this, but Spider-Man and Superman were the first intercompany crossover back in the mid70s. They did a treasury size which is the giant, massively…I mean dimensionally large issue. And eventually, Marvel did this comic book called What Ifs where basically what if this happened… And basically, in the first issue, there’s a what if super strong aliens came from another planet, referencing Spider-Man vs Superman, which is not in the continuity, and it has a blue arm with a fist, which is obviously Superman. But, I guess such a vague reference would not call upon the powers of intellectual property law to weigh in on.

Anthony Verna:
Probably not.

Jim Cushing:
Yeah, but I don’t know. It’s just one of those things, whatever gets the hackles up on someone when they see something. “Hey, that looks like something.” There’s this old character called the Shield who looks like Captain America’s original triangular shield. Cause he originally had a triangle shield and of course, he’s red, white, and blue World War 2 era character and Marvel, who was then called Timely Comics, they said, “Hey, that’s too much like our guy.” and they litigated that. Would it be fair to say that a lot of the stuff comes up with something that looks like something that is ours as opposed to some weird technicality of trying to line up criteria. Is that about fair? Because a lot of these characters are very similar because they’re comic book superheroes.

Anthony Verna:
That does come to the point of at what point are we treading on each other’s feet, there’s nothing new, things like that. That’s kind of my …from a philosophical standpoint, at what point are you just not copying from someone else?

Jim Cushing:
You brought up Swamp Thing and I think, Swamp Thing came out after Man Thing, which is a Marvel character. I’m not sure one of them came out first, but I’m pretty sure Man Thing came out first. They’re both pretty similar characters, but no lawsuit was filed because I guess…

Anthony Verna:
It probably wasn’t popular enough, frankly.

Jim Cushing:
And I guess you can create even similar looking characters, you can create a story and a backstory and adventures that are markedly different which would give it different context. Because you know, Man Thing and Swamp Thing are completely different characters even though they’re both swamp creatures. And they’re both, by the way, rip offs of another character called like The Muck Monster. They’re all very similar but we’re not going to fight over this because they’re just sort of goofy, little characters.

Anthony Verna:
It could be because the values just makes it not worth fighting. It could be because when you’re thinking of creativity and authorship, there may not have been any creativity and authorship in any of these particular characters.

Jim Cushing:
Oh, no, I’m sorry. It’s a character called The Heap.

Anthony Verna:
When you look at these and compare it to the Creature from the Black Lagoon, what’s the difference?

Jim Cushing:
That one isn’t made of moss. That’s sort of an undersea creature. Obviously, Anthony, obviously. All of these look like Moss Man from the He-Man continuity. For those of you who are He-Man fans. Cause Moss Man is a green guy who was made of moss and does all these weird things. I guess it’s fair to say, and this kind of harkens back to our Roger Dean podcast from a few months ago, that at some point, you have a creative type and at some point, you can’t own the type forever. So, you have muck monsters who are green and come out of the swamp and do certain things and that’s a sort of character[KR4]  and no one person can own that at some point. Just like when we were talking about Roger Dean, nobody can own a flying island because that’s just a thing that exists in a creative sort of way.

Anthony Verna:
I know exactly what you mean. If there’s not a work of authorship, so there’s no thought or creativity that goes into it because somebody has done it….

Jim Cushing:
It’s like a space opera. You can’t have a monopoly on the space opera at some point because then there’d be only one and that’d be, I guess, Star Wars or whatever predates Star Wars.

Anthony Verna:
Exactly and then you’d have to define what a space opera is. So, you’re not really going to be sitting there defending genres. It’s going to have to be what the work of authorship is, the stories, the characteristics. Anything that goes into authorship that’s what you have to go into, that’s what you have to delve into. When you’re dealing with character designs, it depends on the artist and what does the artist know. So, those are going to be difficult issues. One of the first copyright cases I handled, is from someone who worked as a camera man on a documentary and he was trying to film this documentary and the producer or director was doing an interview. The director had about three questions. After the third question, my client chimed in and said, “Is that all you have?” The director’s like, “Yeah, that’s all I have.” You’re not going to be able to make a feature length documentary without sitting here and talking with this person for 3-4 hours. So, the guy didn’t have any more questions and my client chimed in with a bunch of questions and got this person to speak. So, we argued, and we settled, by the way, that wasn’t going to be something that you take to court. But, our argument was, my client was hired, my client filmed, my client wasn’t hired to ask questions and my client wound up asking questions and my client ended up creating a lot of the interview time that you get your documentary from. So, sometimes the work of authorship argument can be a little tenuous but you really just have to be careful as to what really is a work of authorship and maybe not what’s a rip off but not all that original.

Jim Cushing:
How does ownership of a property happen or work where a character is already an established thing? So, for example, you have Marvel, the Mighty Thor. Obviously, Stan Lee…well, maybe he’s a time-traveling Norseman, but probably not and therefore did not create Thor as a person or a character, but he created a caricature of a Marvel character, so does he now own Thor forever and ever, or no?

Anthony Verna:
Well, again, you have to take it step by step and what was created and for whom and under what auspices. And I’m looking at today’s world, only because all of these old comic book arguments, for the most part, have been settled by other agreements or ruled upon. Looking forward, if you’re a comic book company, an emerging comic book company, or whatever the case may be, you need to make sure that your agreements are in place. You need to make sure that your work for hire agreements are in place, that these artists are not going to be employees.

Jim Cushing:
No, that’s true, but I mean in terms of the character, like Thor, I mean, that’s not a comic book…well, it is now, but its something that pre-dates comic books and he just made it into something…

Anthony Verna:
And he made it into something and what I would say is, if you want to do something to the effect of a comic book yourself about Norse mythology, as long as you’re not stepping over what Marvel has done, you’ll be okay because Thor is Norse mythology. If you wanted to do something about the 300, that’s historical story. So, you’re able to do that. That’s in the public domain. Those things are in the public domain. The comic book companies’ expressions of those stories are not in the public domain, but if you aren’t doing their expressions of those stories, you’ll be okay. Jim Cushing:
I see comic books do that all the time. Like, Marvel uses Goliath as a name. Hercules is all over the place. All the gods and goddesses are used pretty fairly commonly. I guess it’s their expression…so Goliath is a biblical person. Goliath as Hawkeye using Pym particles is different.

Anthony Verna:
You hit the nail on the head.

Jim Cushing:
You’re the purveyor of all intellectual property knowledge. That’s why I grill you when I get a chance.

Anthony Verna:
I do my best. Sir, on that note, I have an answer to go write so I should probably go…

Jim Cushing:
So can I say that you’re going to go fight for truth, justice, and the American way or is that also copyrighted by Superman?

Anthony Verna:
My client’s Chinese.

Jim Cushing:
That’s a good response. Good one.

Anthony Verna:
Jim, thank you so much for joining us.

Jim Cushing:
Any time. Thanks, Anthony, for having me.

Anthony Verna:
No problem. I’ll talk to you soon.

Jim Cushing:
Okay, bye bye.