I recently had a consultation with a potential client, Sam, who designs mobile phone covers. His designs range from geometric patterns to superhero insignia and symbols. We are not talking about superheroes of his own creation. But of the more famous ones from DC and Marvel such as, Captain America’s shield, Spiderman’s spider symbol, Batman’s bat symbol, and Flash’s lightning symbol. And he was looking to copyright his mobile cover designs consisting of these iconic superhero logos.
According to Sam, because he had added something more to his designs in conjunction with each superhero logo, that it was a completely different design and subject to copyright protection. But by selling mobile covers consisting of famous superhero insignia and symbols, Sam was exposing his business to a copyright and/or trademark infringement lawsuit from DC and Marvel.
I mean, we’re talking about two companies who teamed up to co-own the word “superhero” and jointly registered it as a trademark. And they have been actively enforcing their trademark registration against infringers – they prevented, among others, a developer from trying to register “Super Hero Battleground” for a game, they enforced their trademark against children who started a doughnut brand, “Superhero Donut”, as part of a church project, and stopped “Teenage Zombie Superhero”.
While superheroes have their super powers and gadgets to fight crime and enemies, what protects them from imitators? They have the power of intellectual property to protect their gadgets, insignia, symbols, and catchphrases. All of this intellectual property is protected either by copyright and trademark law. Superhero symbols and insignia are registered trademarks.
Copyright law protects original works of authorship which have some minimal degree of creativity. The threshold for creativity is very low and most things will pass as being creative. So while Sam’s designs may pass the Copyright Office’s test of creativity, it still leaves open the risk of a lawsuit for copyright and trademark infringement from the owners of superhero insignia and symbols.
Ideally, if Sam wants to use these symbols, he should purchase a license from DC and Marvel (owned by Disney). But of course it comes at a steep price. Moreover, these giants may not even begin talks unless Sam’s business was likely to generate royalties in the six figures or more to DC and Marvel. Further, Sam would be paying royalties of 15%-30% , which means that he would have to sell his mobile covers at a premium in the market.
Small business owners often make what they love. But they don’t realize that what they love is someone else’s intellectual property. Before creating a piece of work, check if the work is protected by some form of intellectual property.