The Litigious History of DC and Marvel’s Rival Captain Marvel Characters

Carol Danvers is just one of many heroes to hold the Captain Marvel mantle for Marvel
Carol Danvers is just one of many heroes to hold the Captain Marvel mantle for Marvel
Marvel Entertainment

Behind-the-scenes struggles and legal wrangling have played just as big of a part in the history of comic books as the colorful battles on the pages themselves. And one of the most complex and long-lasting disputes in the industry has focused on Captain Marvel—or at least the two distinct versions of the character that have coexisted in a state of confusion at both Marvel and DC for decades.

Like many comic book tangles, this dispute was made possible because of the debut of Superman. Soon after his first appearance in 1938's Action Comics #1, there was a deluge of knockoffs from publishers looking for a piece of the Man of Steel pie. Though most of these were fly-by-night analogues, Fawcett Comics’s attempt at its own superhero wasn’t an inferior model—it quickly became real competition.

ENTER: THE BIG RED CHEESE

Fawcett’s Captain Marvel was created in late 1939 by Bill Parker and C.C. Beck and debuted in Whiz Comics #2. On his first cover, Captain Marvel is shown carelessly throwing a car against a brick wall, as two criminals bolt out of the windows. In Action Comics #1, Superman made his debut by hoisting a similar car over his head and driving it into the Earth, as the criminals inside fled.

The similarities were unmistakable: Here were two caped strongmen with heroic squints and circus tights leaping around cities and battling mad (and bald) scientists. But while Clark Kent got his powers from his Kryptonian physiology, Captain Marvel was, in reality, a young boy named Billy Batson who would receive his powers by shouting the magic word “SHAZAM!” If Superman was the straitlaced Boy Scout, Captain Marvel earned his moniker of "The Big Red Cheese" through sheer camp, a wink, and a nod.

Seniority mattered little to young comic book readers, and once Captain Marvel found his footing, he was outselling Superman at the newsstand and beating him to the screen by receiving his own live-action film serial in 1941. But as Captain Marvel reached larger audiences, DC was in the midst of legal action against Fawcett for copyright infringement. The claim was simple: Captain Marvel was a bit too close to Superman for DC's comfort.

DC wanted Fawcett to cease production of the serial and comics by the early 1940s, but Fawcett fought to delay a court battle for years. It wasn’t until 1948 that the case actually went to trial, with the dust finally settling in DC's favor in 1954. Legally, Fawcett would never be allowed to print another Captain Marvel book. By now, though, the superhero market was near extinction, so for Fawcett, it wasn’t even worth it to appeal again. Instead, the publisher closed shop, leaving Superman to soar the skies of Metropolis without any square-jawed competition on the newsstands.

MARVEL CLAIMS ITS NAME

The next decade would see a superhero revitalization, beginning with DC’s revamped takes on The Flash and Green Lantern in the late 1950s, and exploding just a few years later when Timely Comics changed its name to Marvel Comics and launched a roster of heavy-hitters like The Fantastic Four, Spider-Man, and The Hulk, all by 1962.

Marvel was a buzzword again, and in 1966, a short-lived company called M.F. Enterprises tried to capitalize with a new character named Captain Marvel—generally considered one of the worst superheroes ever put to paper.

Marvel now needed to stop inferior comics from using its name on their covers, so it obtained the trademark for the Captain Marvel name and went about protecting it by introducing yet another character named Captain Marvel. This new alien version of the hero made his debut shortly after in 1967's Marvel Super-Heroes #12.

The character was born purely for legal reasons. According to comic book veteran Roy Thomas, Stan Lee only created a Captain Marvel at publisher Martin Goodman's insistence: "All I know is the basis of the character came from a resentment over the use of the ‘Captain Marvel’ name."

Comics are nothing if not needlessly confusing at times, and by the early 1970s, Superman wasn’t quite the sales force he used to be. In need of some fresh blood, DC turned to an unlikely source for help: Fawcett. The company had reemerged in the late 1960s as the publisher of Dennis the Menace comics, but its hands were tied when the superhero business revived since it was legally forbidden from producing new Captain Marvel books. So they did the next best thing by agreeing to license the character and his supporting cast to DC in 1973.

CAPTAINS IN DISPUTE

Now the world’s two biggest publishers both had high-profile characters named Captain Marvel. But there was a catch: Since Marvel owned the rights to the name, DC couldn’t call its new Captain Marvel comic Captain Marvel. Instead, all of his comics went by the title Shazam, as did the character’s live-action TV revival in the mid-1970s. Oddly enough, the name of the character himself was still—wait for it—Captain Marvel. So DC could retain the character’s name in the stories but couldn’t slap it onto book covers or TV shows. Only Marvel could monetize the name Captain Marvel.

Right after Captain Marvel’s first DC book launched in 1973, there was an immediate hiccup. The full title of the series was the slightly antagonistic Shazam: The Original Captain Marvel. That lasted all of 14 issues before a cease and desist order from Marvel turned the series into Shazam: The World’s Mightiest Mortal. Marvel, on the other hand, found itself in the position to keep its trademark by continuously pumping out more books with Captain Marvel on the cover, which is why the company’s history is littered with reboots and new versions of the character turning up every two years or so.

By the 1990s, DC had outright purchased its Captain Marvel from Fawcett, but it could barely promote him. There are only so many times you can put Shazam on a comic cover but refer to him as Captain Marvel on the inside without confusing your readers. So in 2012, DC and writer Geoff Johns decided to end the decades of confusion and simply rename the character Shazam, because, as John said, “everybody thinks he's called Shazam already.”

In 2019, these two characters that are seemingly forever linked will have another shared milestone when they both make their big screen debuts. Marvel’s Captain Marvel will hit theaters on March 8, 2019, with Brie Larson playing the Carol Danvers version of the character. And after nearly 80 years of switching publishers, changing names, and lengthy legal battles, Zachary Levi will play the title role in Shazam! a month later on April 5.

Batmania: When Batman Ruled the Summer of 1989

JD Hancock, Flickr // CC BY 2.0
JD Hancock, Flickr // CC BY 2.0

“Flop” is how marketing research group Marketing Evaluation Inc. assessed the box office potential of the 1989 Warner Bros. film Batman. The big-budget production, directed by Tim Burton and co-starring Michael Keaton as Batman and Jack Nicholson as the Joker, was expected to be one of the rare times a major Hollywood studio took a comic book adaptation seriously. But according to the marketing data, the character of Batman was not as popular as the Incredible Hulk, who was then appearing in a slate of made-for-television movies. And he was only a quarter as appealing as the California Raisins, the claymation stars of advertising.

That prediction was made in 1988. The film was released on June 23, 1989, and went on to gross $253.4 million, making it the fifth most successful motion picture up to that point.

While Marketing Evaluation may have miscalculated the movie’s potential, they did hedge their bet. By the time profits from the movie’s merchandising—hats, shirts, posters, toys, bed sheets, etc.—were tallied, the company said, Warner Bros. could be looking at a sizable haul.

When the cash registers stopped ringing, the studio had sold $500 million in tie-in products, which was double the gross of the film itself.

In 1989, people didn’t merely want to see Batman—they wanted to wear the shirts, eat the cereal, and contemplate, if only for a moment, putting down $499.95 for a black denim jacket studded with rhinestones.

Batmania was in full swing. Which made it even more unusual when the studio later claimed the film had failed to turn a profit.

 

The merchandising blitz of Star Wars in 1977 gave studios hope that ambitious science-fiction and adventure movies would forever be intertwined with elaborate licensing strategies. George Lucas's space opera had driven audiences into a frenzy, leading retailers to stock up on everything from R2-D2 coffee mugs to plastic lightsabers. It was expected that other “toyetic” properties would follow suit.

They didn’t. Aside from 1982’s E.T., there was no direct correlation between a film’s success and demand for ancillary product. In 1984 alone, Gremlins, Ghostbusters, and Indiana Jones and the Temple of Doom were smash hits. None of them motivated people to flock to stores and buy Gizmo plush animals or toy proton packs. (Ghostbusters toys eventually caught on, but only after an animated series helped nudge kids in their direction.)

Warner Bros. saw Batman differently. When the script was being developed, producers Jon Peters and Peter Guber were urging writers to make sure scenes were aligned with planned merchandising. They scribbled notes insisting that no onscreen harm come to the Batmobile: It should remain pristine so that kids would want to grab the toy version. As Batman, millionaire Bruce Wayne had a collection of vehicles and gadgets at his disposal—all props that could be replicated in plastic. Batman's comic book origins gave him a unique iconography that lent itself to flashy graphic apparel.

In March 1989, just three months before the film's release, Warner Bros. announced that it was merging with Time Inc. to create the mega-conglomerate Time-Warner, which would allow the film studio to capitalize on a deep bench of talent to help drive the “event” feel of the film.

Prince was signed to Warner's record label and agreed to compose an album of concept music that was tied to the characters; “Batdance" was among the songs and became a #1 hit. Their licensing arm, Licensing Corporation of America, contracted with 300 licensees to create more than 100 products, some of which were featured in an expansive brochure that resembled a bat-eared Neiman Marcus catalog. The sheer glut of product became a story, as evidenced by this Entertainment Tonight segment on the film's licensing push:

In addition to the rhinestone jacket, fans could opt for the Batman watch ($34.95), a baseball cap ($7.95), bicycle shorts ($26.95), a matching top ($24.95), a model Batwing ($29.95), action figures ($5.95), and a satin jacket modeled by Batman co-creator Bob Kane ($49.95).

The Batman logo became a way of communicating anticipation for the film. The virtually textless teaser poster, which had only the June 23 opening date printed on it, was snapped up and taped to walls. (Roughly 1200 of the posters sized for bus stops and subways were stolen, a crude but effective form of market research.) In barber shops, people began asking to have the logo sheared into the sides of their heads. The Batman symbol was omnipresent. If you had forgotten about the movie for even five minutes, someone would eventually walk by sporting a pair of Batman earrings to remind you.

At Golden Apple Comics in Los Angeles, 7000 packs of Batman trading cards flew out the door. Management hired additional staff and a security guard to handle the crowds. The store carried 36 different kinds of Batman T-shirts. Observers compared the hysteria to the hula hoop craze of the 1950s.

One retailer made a more contemporary comparison. “There’s no question Batman is the hottest thing this year,” Marie Strong, manager of It’s a Small World at a mall in La Crosse, Wisconsin, told the La Crosse Tribune. “[It’s] the hottest [thing] since Spuds McKenzie toward the end of last year.”

 

By the time Batman was in theaters and breaking records—it became the first film to make $100 million in just 10 days, alerting studios to the idea of short-term profits—the merchandising had become an avalanche. Stores that didn’t normally carry licensed goods, like Macy’s, set up displays.

Not everyone opted for officially-licensed apparel: U.S. marshals conducted raids across the country, seizing more than 40,000 counterfeit Batman shirts and other bogus items.

Collectively, Warner raked in $500 million from legitimate products. In 1991, the Los Angeles Times reported that the studio claimed only $2.9 million in profit had been realized from merchandising and that the movie itself was in a $35.8 million financial hole owing to excessive promotional and production costs. It was a tale typical of creative studio accounting, long a method for avoiding payouts to net profit participants. (Nicholson, whose contract stipulated a cut of all profits, earned $50 million.)

Whatever financial sleight-of-hand was implemented, Warner clearly counted on Batman to be a money-printing operation. Merchandising plans for the sequel, 1992’s Batman Returns, were even more strategic, including a tie-in agreement with McDonald’s for Happy Meals. In a meta moment, one deleted script passage even had Batman’s enemies attacking a toy store in Gotham full of Batman merchandise. The set was built but the scene never made it onscreen.

The studio was willing to give Burton more control over the film, which was decidedly darker and more sexualized than the original. Batman Returns was hardly a failure, but merchandising was no longer as hot as it was in the summer of 1989. Instead of selling out of shirts, stores ended up marking down excess inventory. McDonald’s, unhappy with the content of the film, enacted a policy of screening movies they planned to partner with before making any agreements. By the time Warner released 1995’s Batman Forever, the franchise was essentially a feature-length toy commercial.

It paid off. Licensing for the film topped $1 billion. Today, given the choice between a film with Oscar-level prestige or one with the potential to have its logo emblazoned on a rhinestone jacket that people would actually want to buy, studios would probably choose the latter. In that sense, the Batmania of 1989 endures.

Theory Explains How Avengers: Endgame Could Introduce X-Men Into the MCU

Ben Rothstein, Marvel and Twentieth Century Fox Film Corporation
Ben Rothstein, Marvel and Twentieth Century Fox Film Corporation

Earlier this week, the long-talked about merger between Disney and Fox Entertainment became official (to the tune of $71.3 billion), meaning that the door has opened to see many of your favorite Disney characters, including the Avengers, hang out with Fox family favorites like the X-Men. It's a potential alliance that comic book movie fans have long dreamed about, and studio officials are already considering the possibilities.

In an interview with The Hollywood Reporter, Disney CEO Bob Iger was asked specifically about whether Marvel Studios would absorb the X-Men franchise, and if Marvel head Kevin Feige would oversee that. "I think it only makes sense," Iger said. "It only makes sense for Marvel to be supervised by one entity. There shouldn't be two Marvels."

This, of course, has led to wild fan speculation about how the studio might align the two superhero groups. According to Hindustan Times, one Redditor believes we could see the groups introduced as early as next month, when Avengers: Endgame arrives in theaters.

According to the theory: Endgame could see the Avengers destroying the Infinity Stones, which will in turn create the mutant gene that all X-Men have. They give an example of this with Captain Marvel and the tesseract, which gave her the powers she currently possesses. The tesseract is now in Thanos’s Infinity Gauntlet, but if the Avengers take the stones, it could cause a chain reaction like it did with Carol Danvers, and start a mutant gene.

While no one knows for sure how the X-Men will join the Marvel Cinematic Universe, it likely will be a little while before Disney starts up any new films based on these characters. As of right now, Fox is still releasing the Marvel films Dark Phoenix, which hits theaters on June 7, 2019, and The New Mutants, which has yet to land a definitive release date. Still, it's safe to say that fans are pretty excited to see what could happen if Wolverine and the gang joined forces with Captain Marvel and her fellow Phase 4 MCU characters.

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