S uperheroes in comics and on screen can have immense powers. But there seems to be one thing even stronger from which they cannot break free: the law of intellectual property. These characters are big business, and among the most valuable commercial assets in the world.
For a genre dominated by extraordinary exploits, vivid illustrations and special effects, the mundane reality is that superhero worlds are often defined not by the imagination of writers, artists and filmmakers, but by copyright and trade marks. The Marvel cinematic universe—a successful sequence of films and now television programmes—has been shaped largely by which characters the producers have access to, and which they do not.
To understand the comics industry today—and indeed the derived films, television and video game spin-offs—perhaps requires an understanding of the law more than lore. What can be done with characters and storylines is strictly regulated by an intricate and lucrative system of permissions and licences. This dominance of law is not new; legal issues have dominated from the very beginning of superhero comics in the 1930s, because of the very nature of the creative and commercial process. On one hand, you had the jobbing artists and writers who created the characters and storylines; on the other, the publishers capable of producing and distributing comics at scale.
At the heart of the industry was a simple “work-for-hire” contract. The creators assigned ownership of their products to the publishers for often small amounts—those behind Superman were paid $130—and once the rights were assigned, the control and rewards were with the publishers. Many creators sank into poverty, while some of their characters were worth millions. Larger publishers then used the law of intellectual property to crush emerging competitors. If a rival’s character had some bare similarity to, say, Superman, then lawyers’ letters would follow and smaller publishers would cease and desist. Alternatively, new publishers were bought up and their characters integrated into existing comics. This created the dominance of the “big two” publishers, Marvel and DC.
Almost all the value in Marvel and DC is in their intangible intellectual property. This property is not just in the distinctive looks of certain costumed characters (Batman, Superman, Spider-Man) but their worlds and the way they interact with them (Gotham City, the Daily Planet, Spider Sense), related characters (Joker, Lois Lane, Aunt May) and origin stories (parents’ shooting, Krypton escape, radioactive spiders).
Each major character exists in an established context, and all the elements—and any stories deriving from them—are protected by aggressive lawyers and owner-friendly laws. The returns on these properties go to the businesses. Of course, the distinction between creatives and businesses exploiting their work is not unique to comics. It is a problem throughout the media and entertainment industries. But it is in the comics industry that the distinction has perhaps been most stark.
But the old creator/owner distinction is becoming unsustainable, and publishers and their film, TV and video game adapters are starting to reform on a more equitable basis. This is partly because many writers and artists are no longer willing to work under one-sided contracts without access to the value of their works. They are instead working with publishers like Image, which allow them to retain control of their characters and storylines. And the rise of the internet means it is less important to have ready access to printing presses.
Marvel and DC still have access to established characters and stories. But without fresh and inventive writing, they will be left with samey plots and generic visual devices and fight scenes. This means readers and viewers will soon be looking elsewhere. Sending lawyers’ letters and buying up competitors are no longer enough. There needs to be change.
Wiser heads in the industry realise this, and are seeking to give creatives real power. For example, DC not long ago attempted to squeeze revenue from its Watchmen characters with questionable sequels, but more recently licensed them for an innovative HBO programme, ceding a degree of creative control. DC also licensed the Joker character for an Oscar-winning film that had almost nothing to do with its comics universe. Similarly, the unfolding Marvel cinematic universe owes much to the refreshingly creativity-driven overview of studio president Kevin Feige and various experimental directors and writers. The Wandavision and Loki television series are wonderful studies in playful cleverness. DC is hoping for similar results by allowing the writer Neil Gaiman to steer the upcoming television adaptation of Sandman. Creators are increasingly being given their heads in commercial development.
After decades of treating superheroes and their stories as mere intellectual property to be exploited, the industry is realising there is more to success than returns on business assets. This is no surprise. The real value in the characters and their storylines was never just as dry commercial products, but in their imaginative tellings and re-tellings, with legal rights and licences as tools rather than constraints. The law of intellectual property may be mighty, but the powers of imagination should be greater.
This piece has been amended to say that the DC Watchmen characters were licensed to HBO, not Netflix
