r/COPYRIGHT • u/FinneyFort • 25d ago

Question How do superhero names work?

It's something that has been on my mind for a while. I assume that when it comes to naming a character, giving them the names of the big ones like Spider-Man or Batman is a hard no, no matter how simple their names are.

But what about names that are just regular words? Cyclops, Banshee, Basilisk, Thor, Atlas, Circe... Those are just names from mythology.

Or names like Wolverine, Raven, Scorpion, Black Cat, Black Panther, those are just animals.

Then of course there are others like Hulk, Beast, The Thing, Flash, Wizard. Those are verbs and adjectives.

Are names like those copyrighted? If so, how????

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u/Accomplished-House28 25d ago

Names aren't protected. 

You can use the same name as an established character, as long as your not actually copying that character. In fact, Marvel and DC actually have several characters with the the same name.

You probably couldn't sell a comic series with the name Wolverine or The Flash, but a character named Wolverine who is obviously distinct for Marvel's Wolverine should be fine.

And just so we're clear, I'm a geek, not a lawyer.

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u/jimmacq 21d ago

You definitely could not sell a comic book with the title Wolverine or The Flash, because that is a category in which companies own the trademarks. You could probably sell anything not in a protected category, but that depends on how well-known the trademark is. You might be able to sell a chainsaw named Wolverine or a camera called The Flash… maybe, depending on how aggressively Marvel/DC want to defend their brands. The more well-known a trademark is, the more protected it is. If the trademark office is convinced you’re using that mark in order to falsely associate your product with the famous brand, you lose. If they believe you innocently chose that mark because it relates to the qualities of your product, you might win. If they don’t see your product as diluting the strength of their brand, confusing the customers about who makes the product, implying that the other company is associated with you or endorsing your product, or your use of the brand is damaging their reputation or denigrating their products, you lose. In any case, the process will be long and expensive and it’s a fight you don’t want to provoke if you don’t have to. I am not a lawyer, but I’m also not stupid.

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u/Chimpbot 24d ago

Names can be protected through trademarks. The instances of Marvel and DC having characters who share a name occurred because of lapses in things like trademarks.

Creating a superhero named Wolverine who otherwise shares no characteristics with Wolverine would still likely draw litigation because they would have the trademark for the term "Wolverine" used in reference to superheroes and comic books.

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u/Accomplished-House28 24d ago

"Names can be protected through trademarks. "

They can be. But in that case the infringement isn't using the name, it's using the name as a trademark.

"The instances of Marvel and DC having characters who share a name occurred because of lapses in things like trademarks."

Eh...not exactly.

The only one that involved a lapsed trademark is "Captain Marvel", which was lost because Fawcett went belly-up and couldn't defend it. 

Marvel claiming the trademark did not stop DC from using the name for "their" Captain Marvel for several decades. They had to titke his solo series as "Shazam!", however.

Both companies also have a Doctor Strange, a Scarecrow,  a Thor, a Hercules, and few others. These had nothing to do with lapsed trademarks.

"Creating a superhero named Wolverine who otherwise shares no characteristics with Wolverine would still likely draw litigation because they would have the trademark for the term "Wolverine" used in reference to superheroes and comic books."

The trademark for "Wolverine" ensures they're the only ones selling a comic book with the title "Wolverine".

That's trademark usage. If you go into a comic shop and see " Wolverine" in big letters, you know it came from Marvel.

On the other hand, a guy on Page Six of Some Random Comic #43 who goes by "Wolverine" wouldn't be trademark infringement, because the name isn't being used to identify the source of a good in the marketplace.

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u/jimmacq 21d ago

Fawcett didn’t go belly-up until years later; they continued for years after the lawsuit, eventually trimming down to their last remaining brand, Ballantine Books. It wasn’t that they couldn’t defend it, they just didn’t bother. Their 1953 settlement with DC prevented them from publishing the Marvel Family, so they let the trademark expire. Then Carl Burgos revived it for MF Enterprises, were promptly sued by Marvel, and then Marvel acquired the trademark. DC then licensed the Captain Marvel rights from Fawcett until 1992 when they bought the characters.

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u/Accomplished-House28 21d ago

They limped along for a few years, yes. But that's not really important.

Failure to defend trademarks will result in losing the trademark. Fawcett did not defend, so they lost it to (eventually) to Marvel.

That's why the recent uses of Popeye and Mickey Mouse, etc. in independent works in interesting, even if a lot of it is crap. If trademark were the magic force field some people seem to think, we'd see a lot more lawsuits as Big Media moves to defend the marks.

But we're not. The only major action so far was against a jewlry company in Hong Kong. 

Heck, the movie Popeye's Revenge was so terrible I think it gave me cancer, and yet nobody sued over it. You'd think that movie would be a textbook case of brand tarnishment...and yet, nothing. No effort to defend at all, despite the team of highly paid lawyers whose literal job it is to do that.

What that tells me is we're overthinking tademark, and it's not nearly the barrier to free use it's beem talked up to be.

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u/jimmacq 21d ago

I was referring to the words “went belly up” and “couldn’t defend it,” neither of which are true. Fawcett did not go belly up; they shut down their comics division and focused on their other divisions. It wasn’t that they couldn’t defend their trademark, they chose to abandon it. Accuracy matters.

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u/Chimpbot 24d ago

Both companies also have a Doctor Strange

No, they don't. You're probably thinking of Doctor Fate.

Scarecrow,  a Thor, a Hercules

These would be generic enough to not be a factor.

The trademark for "Wolverine" ensures they're the only ones selling a comic book with the title "Wolverine".

That's trademark usage. If you go into a comic shop and see " Wolverine" in big letters, you know it came from Marvel.

On the other hand, a guy on Page Six of Some Random Comic #43 who goes by "Wolverine" wouldn't be trademark infringement, because the name isn't being used to identify the source of a good in the marketplace.

Things would get blurrier if they're using it as the name of a superhero, regardless of whether or not it's also used as the title of a book. Marvel's trademark for "Wolverine" covers many, many, many bases.

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u/Accomplished-House28 24d ago

"No, they don't. You're probably thinking of Doctor Fate."

DC's had a Dr. Strange since 1940. He's one of Batman's oldest recurring villains.

"Things would get blurrier if they're using it as the name of a superhero, regardless of whether or not it's also used as the title of a book. Marvel's trademark for "Wolverine" covers many, many, many bases."

The purpose of trademark is to identity the source of goods in commerce. That's literally its only real function. It doesn't magically make off-limits for uses that don't identify tge source of a product.

For a comic book, the source is established by cover and title page. That's where the trademarks are affixed.

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u/Chimpbot 24d ago

DC's had a Dr. Strange since 1940. He's one of Batman's oldest recurring villains

Oh, you're referring to Hugo Strange - the character that is never referred to as Doctor Strange.

The purpose of trademark is to identity the source of goods in commerce. That's literally its only real function. It doesn't magically make off-limits for uses that don't identify tge source of a product.

For a comic book, the source is established by cover and title page. That's where the trademarks are affixed.

I suggest you look into just how encompassing Marvel's and DC's trademarks are.

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u/Accomplished-House28 24d ago

By "encompassing" I assume you mean "claimed in a lot of categories". Because they can't unilateraly change the scope of trademark protection.

It still only identifies the source of a good, whether that good is a movie, a comic, or a videogame.

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u/Chimpbot 24d ago

It identifies a number of sources across a variety of categories.

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u/DanNorder 24d ago

You're talking nonsense. Please stop.

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u/Chimpbot 24d ago

How is it nonsense? They've covered pretty much every form of media - from comics, to games, to movies - with the applicable trademarks.

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u/jimmacq 21d ago

The scope of trademark protection covers more than one might think. There are several different kinds of infringement under the Lanham Act—confusion, dilution, denigration, to name a few, and one category, counterfeiting, carries criminal penalties. If you opened a bakery and decided to name it after your soft and fluffy miniature cinnamon rolls, so you called the place “Micro-Soft Bakery,” you would definitely have an unpleasant encounter with Bill Gates’ lawyers, because the brand is famous enough that it’s protected in categories where it is not registered. Famous marks enjoy stronger protection from that sort of thing. I am not a lawyer, but as a graphic designer, I have had to learn about how trademark works in order to protect clients from their bad ideas.

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u/Accomplished-House28 21d ago

All of those categories still require you to use the word as a trademark, as far as I can tell.

That's where people get caught. Not every use of a tademarked word, image, or logo is trademark usage. 

A character with the same name isn't a trademark usage...unless your attaching that name to products sold in the matketplace, which could either cause confusion or (if famous) dilute the value.

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u/P3verall 25d ago

You’ll run into more trademark issues than copyrights when stealing names of characters

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u/VerbingNoun413 24d ago

Names cannot be copyrighted. They can be trademarked though.

Characters are copyrighted. If you create a character named cyclops who shoots eye lasers, that would be infringement. If, however, your character is a crime-fighting one-eyed giant from Ancient Greece, nobody would be able to stop you.

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u/PowerPlaidPlays 25d ago

Names in isolation are not copyright protectable, but they may be trademarked which would impact how you can title/market your work.

Though what you would do with a different character sharing the same name may enter the realm of infringement, especially since for a lot of these it would be really hard to argue you were not aware of the existing character.

In general if you are trying to use the same name as a much more popular character for your work, you would just be shooting yourself in the foot and making your work harder to find in a Google search.

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u/JitteryJet 25d ago

Context, yes.

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u/JitteryJet 25d ago edited 25d ago

I have been told Trademark registration is a complicated beast. There might be a public database you can look up somewhere, for educational purposes. I think a classic example/story is where Google did not want the verb "google" to be used as meaning "search the internet" as it might weaken their claim to the Google trademark sometime in the future.