The Tease of Things I Don't Need

Superhero™-ic Exclusionism?

It doesn't seem very heroic (of course, I'm not a shareholder), but it's obviously all about trying to corral the cash as Marvel and DC apparently continue to press or at least establish their claim of co-ownership of the term superhero - a claim they've been making for at least two years, and judging by Marvel's continued push during a "science of superheroes" exhibition is being maintained.

IMHO Cory (unless he's operating with additional evidence that DC has formally bowed out of this and has publicly conceded "superhero" to the public domain) is betraying his own negative take on Marvel by calling for fan press action against Marvel which comes to a head in the following:

Here's a proposal: from now on, let's never use the term "super-hero" to describe a Marvel character. Let's call them "underwear perverts" -- as Warren Ellis is wont to -- or vigilantes, or mutants. Let's reserve the term "super-hero" exclusively to describe the heros of comics published by companies that aren't crooked word-thieves.

Not only is Cory letting DC off the hook here (again, unless they've formally gotten off the stage on this; being quiet about it now isn't the same thing) he's going to shoot himself in the foot with this by invoking the combination of Warren Ellis' name and the "we're too cool for that" attitude terms such as "underwear perverts" have. They're derisive of the genre itself. Lean on that and it immediately becomes another divisive Marvel vs DC or Marvel vs any other comics company issue which will only cause some fans to stick up for the characters they care for - the point of the crusade instantly lost. That's not going to help anyone but people whose meaning in life comes from the never-ending pursuit of put-downs and verbal bullying on messageboards and blogs.

If there is an important and potentially useful part to his campaign it's to be sure to use the term superhero to describe appropriate characters at other companies and to use it generically, since the test of the legal test of the case will appear to be whether or not the Marvel and DC will be able to make a claim of strong brand-claim association with the term(s) super hero, super-hero, or superhero -- which are used interchangeably. Leaning on alternate descriptive terms such as vigilante or mutants as Cory suggests is also a nice touch where each is appropriate. I'd be inclined to refer to Batman as a vigilante anyway, not a superhero. Sure, it can be seen as semantics but wordplay and specific meanings are what all of this is about, right?

Since the word superhero is already a dictionary entry it would seem that any lawyer worth his business card could simply submit a properly highlighted copy of a dictionary to the court as part of a declaration that the term is already long since in the pubic domain. However, so is superman. We're talking about trademark protection here, so little things between whether or not it's used in any way as a proper term - with leading capitalization or otherwise implying something exclusive - or most importantly used as part of a title on a cover or otherwise attached prominently to merchandise are the important things.

This is where the threatened legal actions are based, not so much out in public chatter. While - as was the case with Xerox whenever anyone was generically talking about photocopies - they would likely prefer the rest of us don't fling the term around casually, they'd be insane to try to police the casual usage of the term in online discussions and articles, or even those in newspapers and magazines. Talk about a never-ending battle. Oh, they could try by choosing the highest profile offender and making a very public matter of it, but there's too much textual commentary going on these days. Too many tiny targets.

What I'd like to know is if any non-Marvel or DC titles in the past two years have gone to press with some form of superhero somewhere on the cover and continued to be printed, unchallenged by a cease and desist order? That's really important.

Did threats of action such as the one delivered to Geekpunk Press over their Super Hero Happy Hour simply prevent others from even trying? Marvel and DC have dedicated legal departments who are being paid whether or not they're sending out due diligence cease and desist orders, so they can always be ready for a fight. Small press operations are sweating out every penny and not only can't afford to consider engaging counsel but have to look at what it'll cost them in additional advertising if they have to re-title one or more series. In this respect Marvel and DC may have already won, since if they've managed to keep exclusive cover use of the term for over two years then their trademark claim on it has been greatly solidified. Indeed, such a lapse accompanied by the continued use of the trademark symbol after superhero could mean that they've already won and at best simply have to maintain a nominal defense.

So, the true arena of combat appears to be print use of the term in a banner/cover/title.

My suggestion for trying to do something about it in the online community (aside from simply making people aware of it) is to use the term in website or blog titles, develop the site with content that brings you substantial traffic, then see if any official notices come through and make a very public deal about it even if you do end up changing the title in ther end. Maybe they won't crack down because such sites are still small fry and no direct profit could be seen to be made on it... so setting up Google ads or whatever set-up Amazon.com or some other online retailer offers for ad reference-link revenue might be a good move, too.

I'm not claiming I'm going to do any of it, but if you're moved to action that would be the first, easiest and least expensive (costing only precious time) way I'd suggest.