Who Owns the Superhero: Landmark Copyright and Trademark Battles

70 questions on who owns the superhero, answered and cited by the UpLaw editorial team.

• Can a creator sign away the termination right in advance?
• Can a fictional character be copyrighted separately from its story?
• Can a superhero costume be copyrighted?
• Can trademark be used as a backdoor to keep a character locked after copyright expires?
• Does a disclaimer immunize a fan work?
• How did a 2001 letter sink the Superman recapture?
• How did Goldsmith sharpen the transformative inquiry?
• How did Judge Posner resolve the joint-authorship question in Gaiman?
• How did the Second Circuit apply that test to Kirby?
• How did the Siegel and Shuster Superman story begin?
• How did the "Super Hero" registrations finally fall?
• How does CCNV v. Reid decide who is an employee?
• How does Star Athletica apply to a superhero suit?
• How does superhero IP travel into video games?
• How does the modern statute define work made for hire?
• How does the two-clock asymmetry sort superhero cases?
• How do trademark expressive defenses apply to fan works?
• How do two fan projects compare on fair use?
• How early was Superman's copyrightability confirmed?
• How is termination accomplished procedurally?
• How many shields can a single action figure carry?
• How should creators treat the termination right?
• Is a contractor's work automatically for hire because someone paid for it?
• Is cosplay legal?
• Is ownership of a creative work a one-time event?
• Were Marvel and DC ever partners?
• What are the four fair-use factors as applied to fan works?
• What are the two termination provisions and their windows?
• What default rules govern joint copyright owners?
• What did Marvel v. Simon establish for creators?
• What did Neil Gaiman contribute to Spawn?
• What did the cancellation actually change?
• What did the cancellation NOT change?
• What did the district court initially award the Siegel heirs?
• What did the Kirby heirs seek, and how did Marvel respond?
• What does Towle tell us about the real fight?
• What happens to Superman when the 1938 copyright expires?
• What happens when only some of a character's copyrights expire?
• What is the closing lesson of the superhero ownership wars?
• What is the first rule of a creator's IP playbook?
• What is the giant escape hatch from termination?
• What is the idea/expression dichotomy in the superhero context?
• What is the "instance and expense" test?
• What is the primary significance test?
• What is the Star Athletica separability test?
• What is the Towle three-part test for character copyrightability?
• What is the transactional lesson of the 2001 letter?
• What layer does a real performer's likeness add?
• What privilege holding came out of the Pacific Pictures litigation?
• What structural lesson unites Superman and Kirby?
• What three lessons does the Superman saga teach?
• What turns a doodle into protectable character property?
• What two regimes protect a superhero?
• What universal lesson unites Superman, Kirby, and Spawn?
• What was Mark Towle's defense in the Batmobile case?
• What were the two Ninth Circuit strands on character copyrightability?
• What will the post-2033 world for early Superman look like?
• When does copyright in a comic character arise?
• Who inherits the termination right?
• Why can a trademark last forever when a copyright cannot?
• Why did Congress create the termination of transfer right?
• Why did the Batmobile satisfy the Towle test?
• Why did the Shuster termination fail?
• Why did the Supreme Court never rule on Kirby?
• Why does parody fare better than straight copying?
• Why is incontestability no shield against genericness?
• Why is the "Super Hero" saga the cleanest illustration of the two-shields theme?
• Why might Marvel and DC have declined to defend?
• Why should a brand owner avoid weak marks and proportion its policing?
• Why was the "Super Hero" registration always legally awkward?