Why, Will: How Did Donny Do It? ‘Crossover’ and the Magic of Fair Use

Beyond this point lie spoilers for “Crossover” #1. Ye be warned…

The Splash

“Crossover,” the meta comic-book-about-comic-books from the mind of writer Donny Cates and artist Geoff Shaw, has a heap of stuff to talk about — the merits of which have already been ably discussed by Big Boss Zack and Dan “the Man” McMahon. But because the intricacies of intellectual property law interest me (guy with a law degree who gets paid to teach the stuff), I wanted to look at three specific examples of possible IP issues from “Crossover” #1: the inclusion of the name “Superman” in the text, a Shazam-looking character featured prominently in one panel and the final page that included a sketch of who we might fairly assume to be Superman.

At the outset, let’s differentiate the two general fields we might have a problem with here: copyright (the thing that protects the rights of authors and artists) and trademark (the thing that identifies the source of goods in commerce). While you might figure the former is a bigger problem in publishing, the latter has been at least a recent headache in comics by forcing name changes for series “Dead Rabbit” and “Tommy Gun Wizards.” In those cases, other businesses outside the core area of comic book publishing argued the marketplace might have been confused had those series continued under their original names. (“Dead Rabbit,” the Gerry Duggan/John McCrea series eventually renamed “Dead Eyes,” had a weird story behind its trademark dispute — there was a bar that also published its cocktails as comic books? Strange. Dark Horse and/or anyone else didn’t say much about the fracas that turned the other series into “Machine Gun Wizards.”)  

So let’s assume that since this would be between Image and DC rather than marketplace confusion between Image and some other random business, we’re looking at copyright rather than trademarks in a potential dispute. Furthermore, let’s also assume there was no attempt to license the properties, a fair idea since I didn’t see anything signalling such in the first couple of pages even as there was a prominent acknowledgement of Chris Sebela and Ibrahim Moustafa’s “Wertham Was Right” shirt. 

Now, to those three examples:

1. How Come “Crossover” Can Mention “Superman” by Name?

“Superman,” as a brand and signifier as a source of goods, is a strong trademark for DC, but since we’re putting aside that question, does DC have a copyright in the character itself? That’s a big “yes” — between his shield and other aesthetics, his biography and even his name, he exists as a unique character in the superhero world. Compare him, for example, to Perry White; you can probably picture one more distinctly and list off many different facts about him while the other is a fairly shallow stock character. (We’ll come back to this point later, the idea of trying to claim exclusivity over ideas.)

Again, we’ll assume DC could assert a copyright claim over the mere mention of Superman in “Crossover” #1. What then? Does it mean the book has to get pulped? Not quite. There’s an out — a “fair use” defense — for copyright infringement that enables us to borrow the protected intellectual property of others so long as we can justify it and it is a generally reasonable accommodation between the infringement and the rights of the IP’s owner.

Fair use has four factors under statutory law:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
2. Nature of the copyrighted work
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. Effect of the use upon the potential market for or value of the copyrighted work

In this case, Cates would be asserting a transformative use under the first factor; he’s trying to comment on and analyze the Superman mythos, much as I’m commenting on his work. The second factor favors DC in valuing its original, creative work, where the third would again favor Cates, as he’s taking so little of the overall character in just mentioning his name a few times. Finally, this specific use and similar uses aggregated across the marketplace are going to do little to harm the value of DC’s “Superman” portfolio. 

2. What about that Character Who Looks like Shazam?

There are a few splotches in “Crossover” #1 that resemble superheroes, namely Spider-Man, Hulk and Thor (I think?). But the most prominent appearance of another company’s superhero character is Shazam/Captain Marvel:

“But, Will,” you might say, “that ain’t Shazam. That’s some blue guy. Don’t know who he is. Why are you even talking about him?” 

You see, though, he wasn’t always blue, as this art over at some other website shows. That original art — that first draft or whatever it was — was straight up copying the Shazam visuals without attempting to say anything about him. While I couldn’t conclude it would have been an unfair use, it’s a much more difficult thing to defend simply because there’s no good reason to plop DC’s character down on that page. Whoever made the decision to redo the colors, they were right.

3. Sure, but that Superman Sketch at the End Can’t Be OK, Right?

Which one of us went to law school and teaches media law again? The final page is a child’s drawing of a hero with an S on his chest, and while that sounds pretty close to the core of Superman, DC can’t fairly claim a copyright in the idea of a hero with an S on his chest. Take that image and add it back to his bio and you might have something, but standing alone, it’s simply too generic to support a copyright claim.

Taken together, this issue — at least in its intellectual property aspects — reminded me oddly enough of Mark Waid (who edited “Crossover”) and his “Irredeemable” when the latter wasn’t too busy being all weird and sexual assault-y. It had characters who clearly spoke to the DC roster with analogs to Superman, Batman, Robin and more, although they were never identified by name. The conclusion of the series specifically referenced the creation of Superman, though he wasn’t mentioned by name (if I remember correctly). 

Commentary. Criticism. Analysis.

I don’t know what’s coming up in the series, but ol’ Donny probably doesn’t have to worry about any copyright issues — so far. 

And Now, Your Questions

Tweet me (@willnevin) or just scream at me with some stupid thing you want answered. If you don’t ask me questions, I’ll find you and beg you for them. Don’t make me beg. 

@asimov_fangirl: Hi! To promote the arts, the Quiet Council of Krakoa authorizes the formation of an X-Men team to create and distribute a comic (any length and format). Who are the members and what task does each take (writer, penciler, editor, etc.)?

I tossed this idea around in my brain a little because it’s so fun to think about. We’re going to start up top with the publisher, Xavier. He’s got the dignity and the stature to lend the project some gravitas. But we need someone to keep the personalities in line, and that’s the job of our editor, Magneto. Do you want to piss him off? No, I didn’t think so. For writing duties, I’d have to think the Quiet Council would turn to its captain commander, Cyclops. As far as the art goes, I like Beast on pencils and inks and Jubilee on colors.

The book itself? I think the council would commission something like “The Other History of the DC Universe” — a book created to demonstrate a viewpoint that has been neglected and marginalized.  

@FieldsofAthnry: WHY, WILL, is the choice in “The Dark Knight Rises” between feudal autocracy (Batman) and feudal anarchy (Bane/Talia al’Ghul)? What would a consolidated-democracy Gotham look like?

There is a full Ryder truck worth of stuff to unpack here, but the basic question is what’s Batman’s place in a democracy? Is he a constrained agent of the state (a la Batman ’66), or is he the state with his propensity for surveillance and control taken to its rankest excesses? One of the reasons I didn’t care for “Rises” is that its world was so stark and silly, with a neutron (or whatever) bomb and a major American city simply turned over to anarchists for reasons (I guess). There was no recognizable order or political system in “Rises” as compared to “The Dark Knight,” which seemed like a real world pushed to just past its breaking point.

I think a consolidated democracy in Gotham (meaning a system in which democracy is firmly established and recognized as legitimate with little chance of devolution to other, less free systems) is a city without Batman. He’s too much of a variable and represents the autocracy too well; as long as he’s around, citizens will either crave the stability and security only he can bring or look to someone bigger and stronger to put him down. 

@born2____; Will, why does it have to be like this?

I think about this a lot, about the state we find ourselves in as a nation and as a global community. Humanity (as a whole) has never been so wealthy, fed and educated as it is right now, and yet I feel as if we’re sliding into the darkness, primarily because the internet — the thing that has brought us closer together and enabled something like Xavier Files to exist — gives everyone a voice, but so many of those voices spread nothing but chaos, ignorance and hate.

And it’s not just social media. Take this thread from AL.com reporter Connor Sheets. He went out on Election Day to talk to some of the people of Alabama, and most of what he found seemed to be based in reality, like when one Trump voter said he went for the bad man because the stock market went up. But that same guy told Sheets he also opposed Biden because of “this democratic socialism” and “this late-term abortion.” Those are talking points pulled directly from the frothing mouths of Laura Ingraham, Tucker Carlson, Sean Hannity and the rest of the clown corps of the Fox News infotainment outrage machine. Distortions. Caricatures of positions. Nothing that resembles meaningful political discourse.

I’m not naïve enough to think this problem is a new one to our time; it simply seems especially bad now, with people taking to media to have their worst fears confirmed and amplified and then using that fear and bigotry to elect officials who carry out policies to perpetuate those darkest of shadows. A perpetual motion machine of ignorance.

I don’t know how we escape it, but it will at least require the Fox Newses of the world to realize the harm they are doing to society and take action to mitigate it.

In short: We’re fucked. 

@BigDadEnergy_: Was NuMetal actually good?

As a whole? Abso-fuckin-lutely not. When a list of the genre’s fashion includes (white guy) dreadlocks, JNCO jeans and “chin beards,” we have fallen short of the light of God and find ourselves in a dark, dark place. But I’m not going to say that it doesn’t have its bangers — I can’t tell you how many times Evanescence’s “My Immortal” has come up on my running playlist to kick me right in the ass when I needed it. (I wouldn’t say Evanescence is NuMetal, but it’s on the Wikipedia article, so I can’t argue with that.) Limp Bizkit had a couple of songs that weren’t trash. Staind had that great acoustic version of “Outside” that got Fred Durst a credit just for shouting some random shit at a Mississippi crowd.   

So, yeah, I’m not gonna toss the whole genre. But “good” is an awfully strong word.

@danielpgrote: If the Ninja Turtles wore colors that corresponded to their most likely roles on the Enterprise, what colors would they wear and why? Thanks, love the show.

Shit, how much time we got? This is the nexus, the center of the WHY, WILL universe, and I could fill great, immense tomes with my thinking here. I’ll start from the understanding that we’re talking Next Generation/DS9/Voyager colors, but I will point out the original series shades where there might be a difference.

• Leonardo (TNG red, TOS gold): Leo was destined for the command branch, and in Next Gen, we’re talking Picard crimson. (Why the change from Kirk’s gold? Check out nerds arguing about the canon here.) There’s simply no other answer for Leo.
• Donatello (TNG gold…or maybe blue): Donny can easily slide into one of two divisions: operations or sciences. I see him more naturally as an engineer, which means he’s in gold (TNG) or red (TOS). But with his big brain, he could also work in the sciences division, which — as of Next Gen — was a shade of teal (as to separate it from the bluer medical branch).
• Raphael (TNG gold/TOS red): Raph, like Leo, doesn’t have many options: On the Enterprise, he’s working security, and in TNG, that means operations gold, while in TOS, he’d wear the infamous “red shirt.” If you push me, I guess I could also see him in command as a roguish “tell the captain exactly how it is” type.
• Michelangelo (washout): On NCC-1701-D, we had two featured(ish) characters who were not members of Starfleet: Mott (the ship’s barber) and the much more famous Guinan (the Enterprise’s bartender). Mikey is not Starfleet material — he’s too much of a goof without any clear expertise, but it’s clear he has a role on the ship. Maybe as the Enterprise’s party planner or DJ — and certainly not in uniform.  

Your ‘Why, Will’ Weekly Planner

Today, Wednesday, Nov. 11: Not a lot to point you to in terms of the funny books: “Iron Man” #3, “Marvel Zombies: Resurrection” #4, “Darth Vader” #7 and “The Vain” #2 are prolly your best picks.

Also out today in select theaters only to garner the Oscar nominations I hope aren’t coming, Ron Howard’s adaptation of “Hillbilly Elegy,” a shameless memoir written in bad faith with the added stink of a film that sees Glenn Close and Amy Adams (two people who should know better) traipse around in white trash cosplay. What a fucking mess.

Thursday: The PS5, the new console that looks like a cross between someone’s idea of a video game system from “WALL-E” and an actual albatross given its girth, makes its way to the living rooms of those lucky and monied enough to secure a pre-order. While I still fully anticipate Best Buy fucking something up on my end, I am looking forward to setting this 10-pound hunk o’ plastic up — if for no other reason than to see if “Spider-Man: Miles Morales” looks as fun as it seems. It’s not going to touch that Christmas when I got “Super Mario All-Stars” and the SNES — but nothing will. [Grote’s note: SNES or GTFO]

Friday: It’s Friday the 13th — or in the language of 2020, just another day in an interminable disease-ridden hellscape in which a failed reality television star is either shitting on democracy in an effort to massage his wounded ego or trying his best to maintain power in defiance of said democracy. Fun times! This is the second and final Friday the 13th of the year and the last until Aug. 13, 2021. 

Saturday: Speaking of that totally normal time our democracy is having, two rallies are planned for Saturday in the nation’s capital: the “Million MAGA March” and a more generalized “Stop the Steal” event. Super and totally normal, yup. Not at all evidence of a dangerous break from reality provoked by the president of the United States of America and supported by one of the nation’s political parties because it’s too afraid to run afoul of the literally crazy people at the core of its base. TOTALLY. FUCKING. FINE.  

Sunday: This doesn’t have anything to do with this week, but ABC has announced a “Celebrity Wheel of Fortune” series set to premiere next year, and I can’t think of anything this side of “Some Pointless Fucking Talent Show” or “Another Stupid Dance Contest” that I’d rather watch less. I think — in addition to all of those points above when I talked about Fox News and America’s brain rot — this is why we’re at where we’re at: because there are people who would willingly sit down in front of their televisions to watch D-list celebrities try to spell. Christ almighty.  

Monday: It’s National Fast Food Day in the United States, and I do not have a single bad thing to say about the industry: It’s cheap, convenient and a rational choice for a lot of people who don’t have the time or other resources to prepare that fresh, “organic” food at home. Not gonna lie — I feel like crushing a 20-piece McNugget and a large order of fries. 

Tuesday: “Batman” #103, “Joker/Harley: Criminal Sanity” #6, “Looney Tunes” #257 (because it has a funny cover) and that’s all, folks.

Stay safe. Stay sane.

Have a good week, y’all.