Picture two teenagers from Cleveland in 1938, hunched over a kitchen table, dreaming up a man who could leap tall buildings in a single bound. They sold the rights to their creation for $130 and a contract to keep producing comics. The character was Superman. The teenagers were Jerry Siegel and Joe Shuster. And nearly ninety years later, courts are still sorting out who owns the Man of Steel.

That is the strange and wonderful thing about superheroes from a lawyer's point of view. They are simultaneously among the most beloved cultural objects we have and among the most ferociously contested pieces of property on the planet. A single character like Spider-Man or Batman can generate billions of dollars across comics, films, streaming series, video games, theme-park rides, lunchboxes, and Halloween costumes. When that much money rides on a fictional person in a cape, the question "Who actually owns him?" stops being a fan-forum debate and becomes a federal lawsuit.

This article is a tour through the great intellectual property battles of the superhero world, written so that a comics-loving layperson, a working attorney, and a judge can all follow along. We will explain, in plain language, how a fictional character becomes legally protectable property in the first place; how copyright and trademark protect a hero from two completely different directions; and why creators and their families keep coming back to court decades after the ink dried. We will dig into the marquee cases — the Superman termination wars, Marvel's showdown with the estate of the legendary artist Jack Kirby, the Ninth Circuit's remarkable ruling that the Batmobile itself is a copyrightable character, the joint-authorship brawl over Spawn, and the 2024 unraveling of Marvel and DC's jointly held trademark on the very phrase "Super Hero." We will also talk about the things ordinary creators care about: fan fiction, cosplay, and where the law draws the line between homage and infringement.

None of this requires a law degree to appreciate. But by the end, you will understand why the people who dream up our heroes so often have to fight like supervillains to keep them.

The Two Shields: How the Law Protects a Superhero

Before we get to the courtroom drama, we need to understand the legal armor a superhero wears. There are really two big shields here, and people constantly confuse them. They are copyright and trademark, and they protect completely different things.

Copyright protects original works of authorship — the actual creative expression. A comic book panel, the artwork, the script, the specific story, and (crucially) the character as drawn and developed are all in copyright's domain. Copyright arises automatically the moment an original work is "fixed in a tangible medium of expression," meaning the moment Siegel and Shuster drew Superman on paper (17 U.S.C. § 102(a)). You do not have to register a copyright to own it, though registration unlocks important advantages we will get to. Critically, copyright protects only expression, never the ideas underneath it — the "idea/expression dichotomy" codified at 17 U.S.C. § 102(b). If you want a deeper orientation, our copyright FAQs lay out the fundamentals, and copyright registration — a comprehensive guide explains the mechanics of securing it.

Trademark protects something different: source identifiers. A trademark is a word, name, symbol, or design that tells consumers where a product comes from — the bat-symbol on a t-shirt, the word "BATMAN" on a video game box, the stylized "S" shield. Trademark rights flow from use in commerce, not from creativity, and they protect against consumer confusion about the source of goods. Trademark, unlike copyright, can last forever as long as the mark stays in use. The clearest single explainer we have is copyright vs. trademark — what is the difference, and the gentler on-ramps are our trademark basics and trademark FAQs.

Here is why this matters enormously for superheroes: the same character can be protected by both at once, and they expire on completely different clocks. Superman's earliest comic-book appearances will eventually fall into the public domain when their copyrights run out (the 1938 Action Comics #1 copyright is set to expire at the end of 2033, ninety-five years after publication). But the trademarks — the "SUPERMAN" name, the shield logo — can persist indefinitely so long as Warner/DC keep selling Superman products. So even when copyright lets the public freely copy the original 1938 Superman story, trademark law may still stop a competitor from slapping "SUPERMAN" on a cereal box in a way that confuses shoppers about who is behind it. (For how to think about that brand-protection layer, see brand protection online — a strategic guide for businesses.)

This dual-shield reality is the secret engine behind almost every dispute in this article. Copyright fights are usually about ownership and reversion — who controls the character and for how long. Trademark fights are usually about branding and confusion. Keep the distinction in your back pocket; we will return to it constantly.

Can You Even Copyright a Character?

There is a threshold question that surprises a lot of people: can a fictional character be copyrighted at all, separate from the particular story she appears in?

The answer is a qualified yes, and the qualification is the whole ballgame. Not every character qualifies. Courts have long worried that giving an author a monopoly over a "character" might let them lock up basic stock figures — the wise mentor, the brooding loner, the plucky sidekick — that belong to everyone. The classic statement came from Judge Learned Hand in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930): the less developed a character, the less it can be copyrighted, because at some point a "character" is just an idea, and copyright never protects ideas — only their specific expression. A "vampire" is an idea; Dracula as Bram Stoker rendered him is expression.

Over the decades the Ninth Circuit, which hears most of Hollywood's disputes, developed two strands of doctrine. One asks whether the character is "especially distinctive" or "constitutes the story being told," a formulation that traces to Warner Bros. Pictures v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954) — the famous "Sam Spade" case, where the court was skeptical that the detective from The Maltese Falcon was protectable apart from the plot. The other, more modern strand asks whether the character is sufficiently delineated and recognizable. Both strands point in the same direction for a fully realized superhero: Superman, Batman, and their peers are about as far from a vague stock figure as a character can get. They have consistent appearances, names, powers, costumes, catchphrases, and personalities maintained across thousands of pages. They are textbook copyrightable characters.

The case that crystallized the modern test, hilariously, was not about a person at all. It was about a car.

The Batmobile Is a Character: DC Comics v. Towle

Mark Towle ran a business in California called Gotham Garage. He built and sold full-size, drivable replicas of the Batmobile — both the sleek 1966 television version and the tank-like 1989 Tim Burton film version — for around $90,000 apiece, and he sold kits and accessories online under domain names like batmobilereplicas.com. DC Comics, which owns Batman, sued for copyright and trademark infringement.

Towle's defense was clever. A car, he argued, is a "useful article." Copyright does not protect useful articles — you cannot copyright the functional design of an automobile any more than you can copyright a toaster. And anyway, he said, the Batmobile changed so much between 1966 and 1989 — different shapes, different gadgets, different everything — that it was not a single consistent "thing" you could own. How can you copyright something that keeps changing?

The Ninth Circuit was not persuaded. In DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), the court held that the Batmobile is a copyrightable character in its own right, and it laid down a clean three-part test for when a character — animate or not — earns copyright protection. To qualify, the character must (1) have "physical as well as conceptual qualities"; (2) be "sufficiently delineated" to be recognizable as the same character whenever it appears, displaying consistent, identifiable traits and attributes; and (3) be "especially distinctive" and contain "some unique elements of expression." Towle, 802 F.3d at 1021.

The Batmobile cleared all three. It has physical and conceptual qualities (it is a car you can see and touch, but also a recurring fictional object). It is consistently recognizable — across every incarnation it is a sleek, high-tech, bat-themed crime-fighting vehicle with the latest gadgetry, "swift, cunning, strong and elusive," as the court memorably put it, almost like a sidekick to Batman himself. And it is distinctive — there is no other car like it. The fact that its precise shape and features changed over the years did not matter, the court reasoned, any more than James Bond stops being James Bond when a new actor plays him. The character persists through changing depictions. As for the "useful article" argument, the court explained that what DC was protecting was not the functional design of a particular automobile, but the Batmobile as a character — and a character is not a useful article.

Towle is now the workhorse precedent for character copyrightability on the West Coast, cited in essentially every modern dispute over whether a fictional figure is protectable. For our purposes it does two things. First, it confirms beyond argument that a fully developed superhero (and even his car) is protectable property. Second — and this is the part that should make creators sit up — it underscores just how valuable these characters are, and therefore how high the stakes are when the question turns from "is this character protectable?" to "who owns the protectable character?" That second question is where the real wars are fought.

Hypothetical. Suppose an independent artist creates "Captain Aurora," a recurring heroine who appears across a dozen self-published comics: same silver-and-violet costume, same aurora-manipulation powers, same catchphrase, same wisecracking personality, drawn consistently throughout. A toy company starts selling unlicensed "Captain Aurora" figurines. Under Towle, Captain Aurora is almost certainly a protectable character — she has physical and conceptual qualities, is delineated consistently across appearances, and is distinctive. By contrast, if the artist had drawn only a single panel of a generic "glowing space heroine" with no recurring traits, she would likely be an unprotectable stock idea. The lesson is that consistency and distinctiveness over multiple appearances is what converts a sketch into property.

The Superman Wars: Termination Rights and the Longest Fight in Comics

If you want to understand why superhero ownership is so litigious, you have to understand a peculiar and powerful feature of U.S. copyright law called the termination of transfer right. It is the legal mechanism at the heart of the Superman saga, the Kirby fight, and a dozen others. So let us build it up carefully, because it is genuinely one of the more humane — and one of the more disruptive — ideas in all of intellectual property.

Why Congress Gave Creators a Second Bite

Imagine you are a struggling young artist. A publisher offers you a contract: assign us all rights to your creation, forever, and we will pay you a modest sum. You have no leverage and no idea whether your creation will be worth anything. You sign. Then your creation becomes a global phenomenon worth billions — and you got $130.

Congress recognized this problem decades ago. The basic worry is that creators systematically lack bargaining power at the moment of sale, because the value of a creative work is impossible to know up front. So when Congress overhauled copyright law in the 1976 Copyright Act (effective January 1, 1978), it built in a remarkable safety valve: even if you signed away every right "forever," you — or after your death, your statutory heirs — get a chance to take it back. This is the termination right, and it is codified in two parallel provisions:

  • 17 U.S.C. § 304(c) governs grants made before January 1, 1978 (the old regime). It lets authors or their heirs terminate the original transfer during a five-year window that opens 56 years after the copyright was originally secured. (A related provision, § 304(d), creates a second, narrower window for certain older works whose § 304(c) window had already lapsed.)
  • 17 U.S.C. § 203 governs grants made on or after January 1, 1978. It opens a termination window 35 years after the grant (or, for grants covering the right of publication, 35 years after publication or 40 years after the grant, whichever ends earlier).

Both provisions share a demanding procedural skeleton: termination is effected by serving an advance written notice on the grantee within statutory time limits (generally two to ten years before the chosen effective date), specifying the effective date, and recording a copy with the Copyright Office. Miss a deadline, name the wrong grant, or compute the window incorrectly, and the right can evaporate. The Copyright Office's regulations on termination notices (37 C.F.R. § 201.10) are unforgiving on form and timing — a point the Superman litigation drives home.

Two substantive features make this right extraordinary. First, it cannot be waived or contracted away. The statute provides that termination may be effected "notwithstanding any agreement to the contrary," including any agreement to make a will or to make a future grant (17 U.S.C. §§ 203(a)(5), 304(c)(5)). A creator literally cannot sign it away in advance, no matter what the contract says. Second, it passes to specific statutory heirs — a surviving spouse, children, and grandchildren in defined shares — by operation of the statute, not by the creator's will. You cannot bequeath the termination right to your favorite charity; the statute decides who holds it and what fractional shares they must muster to terminate. (We explore this estate-planning wrinkle in who will inherit your intellectual property, because it genuinely surprises people who assume a will controls everything.)

You can already see why this provision is a time bomb under the entertainment industry. Every blockbuster character created in the mid-twentieth century is reaching the age where termination windows open. And there is one giant exception that the studios cling to like a life raft: termination does not apply to works made for hire. If a character was created as a "work made for hire," then the publisher is considered the author from the start, the creator never owned a transferable copyright, and there is nothing to terminate (17 U.S.C. §§ 203(a), 304(c)). That single exception — work made for hire — is the fault line along which almost every superhero ownership war is fought. Remember it. It will come up again and again.

Round One: Siegel, Shuster, and a Heartbreaking History

Jerry Siegel and Joe Shuster created Superman and sold the rights to Detective Comics (the predecessor of DC) in 1938 for $130, along with a work contract. Superman exploded. The creators saw almost none of the upside, and they spent decades in and out of disputes and hardship — Shuster's eyesight failed and he fell into poverty; Siegel waged repeated legal battles, including an unsuccessful 1947 lawsuit and a 1969 renewal-rights case he also lost. In 1975, after public embarrassment on the eve of the first Superman film, Warner agreed to pay the two men annual stipends and grant them a "created by" credit. That was a moral victory, not a legal reconquest.

The legal reconquest attempt came later, through the termination machinery the 1976 Act had just created. After Siegel died in 1996, his widow Joanne and daughter Laura Siegel Larson served notices under § 304(c) seeking to terminate the original 1938 grant and recapture Siegel's share of the Superman copyright. Because Superman was created before 1978, the § 304(c) window applied. This kicked off litigation in the Central District of California that ran for years under the caption Siegel v. Warner Bros. Entertainment Inc.

In a series of rulings around 2008, District Judge Stephen Larson handed the Siegel heirs a significant partial victory: he held that they had successfully recaptured Siegel's share of the copyright in certain early Superman material — essentially the core elements introduced in Action Comics #1 in 1938 (Superman's origin, his alter ego Clark Kent, his early costume, and his powers as then depicted), while material introduced later (such as the ability to fly, kryptonite, and much of the supporting cast) remained DC's. It looked, for a moment, as though the heirs had clawed back a piece of the most valuable character in comics. The old version of this very article (and a great deal of contemporaneous press) reported it as a clean win for the heirs.

It was not a clean win, and it did not last. Here is the crucial correction that the early reporting missed.

The Twist: An Old Settlement Letter Sinks the Recapture

The Siegels' apparent 2008 victory came apart on appeal, and the reason is a cautionary tale every lawyer should tattoo on the inside of their eyelids: be careful what you put in a settlement letter.

Back in 2001, the Siegel family and DC had exchanged correspondence in which the family's then-lawyer indicated that the family had accepted the principal terms of a settlement of their Superman claims. The deal was never reduced to a long-form signed agreement, and the family later repudiated it and pressed forward with termination. DC argued that the October 2001 letter was itself a binding contract that settled the claims. The Ninth Circuit agreed. In Larson v. Warner Bros. Entertainment, Inc., 504 F. App'x 586 (9th Cir. 2013), the court held that the October 19, 2001 letter constituted an enforceable agreement settling the Siegels' Superman claims, and it remanded for the district court to enforce that agreement — which effectively foreclosed the later termination recapture. Bottom line: DC retained Superman. The heirs' dramatic district-court win evaporated because a decade-old letter was treated as a done deal.

The takeaway transcends comics. A settlement does not have to be signed, formalized, or labeled "final" to bind you; under ordinary contract principles, a letter confirming agreement on material terms can be enforceable. If you are negotiating the disposition of valuable IP, treat every piece of correspondence as a potential contract.

The Shuster Side and DC Comics v. Pacific Pictures

Joe Shuster's heirs ran a parallel campaign — and lost on different grounds. The architect of much of the heirs' modern litigation strategy was an attorney named Marc Toberoff, who acquired interests in the families' claims. DC fought back aggressively, including with allegations about the propriety of those arrangements, in litigation captioned DC Comics v. Pacific Pictures Corp.

The Shuster claim ultimately failed for a technical-but-decisive reason rooted in the timing rules described above. After Joe Shuster died, his sister and brother entered into a 1992 agreement with DC under which DC agreed to pay the family's debts and provide a pension in exchange for a release of all claims to Superman. The Ninth Circuit held that this 1992 agreement re-granted whatever rights the Shuster estate had and superseded the original 1938 grant. Because the operative grant was now a 1992 grant — made after January 1, 1978 — it fell under § 203, not § 304. That timing mattered enormously: the heirs had served their termination notice under § 304(c), which by its terms reaches only pre-1978 grants, so it could not reach a 1992 grant; and § 203's separate machinery and windows did not rescue them. The Shuster termination therefore failed, and DC kept Superman from that direction too.

The discovery side of DC Comics v. Pacific Pictures Corp., 706 F.3d 1009 (9th Cir. 2013), also produced an important attorney-client privilege ruling about whether voluntarily disclosing privileged documents to a federal investigator waives the privilege. The Ninth Circuit held that it does — there is no "selective waiver" that lets a party share privileged material with the government while keeping it from civil adversaries. That holding gets cited well beyond the comics world.

What the Superman Saga Teaches

Strip away the capes and the Superman saga delivers a master class in copyright transactions:

  1. Termination rights are powerful but technical. The difference between a pre-1978 grant (§ 304) and a post-1977 grant (§ 203) decided the outcome. Serve your notice under the wrong section, or aim it at the wrong grant, and you lose even if your moral claim is strong.

  2. Settlements and re-grants can quietly reset the clock. The Shusters' 1992 deal and the Siegels' 2001 letter each replaced the original 1938 transaction and changed which termination rules applied. A later agreement can extinguish the very rights you are trying to exercise — and the anti-waiver rule does not save you, because a genuine re-grant is not the same thing as a forbidden advance waiver of the termination right.

  3. The studios usually win — but only because they were careful. DC did not retain Superman by magic. It retained Superman by papering its relationships, settling old claims, and litigating relentlessly on the precise statutory mechanics.

The Superman wars are functionally over, with Warner/DC in control, though the looming 2034 entry of the earliest material into the public domain guarantees the conversation is not finished. For anyone managing valuable IP — or planning an estate around it — the lesson is that ownership of a creative work is not a one-time event. It is a relationship that the law keeps reopening. Our guides on copyright registration and renewal of copyright explain the underlying duration and reversion rules in detail.

Marvel vs. the King: The Jack Kirby Work-for-Hire Fight

Cross the aisle to Marvel and you find the mirror image of the Superman story, with the same statutory machinery — termination — but a different villain in the cross-hairs: work made for hire.

Jack Kirby was, by wide agreement, one of the most important comic artists who ever lived. Co-creating or shaping the Fantastic Four, the X-Men, the Hulk, Thor, Iron Man, and countless others in the early 1960s alongside Stan Lee, Kirby was so foundational that fans simply call him "The King." When he died in 1994, his children inherited his interests — and in 2009 they served § 304(c) termination notices on Marvel, seeking to recapture Kirby's share of the copyrights in the characters he had helped create at the start of the 1960s.

Marvel sued for a declaration that the notices were invalid. Its argument was the work-made-for-hire exception in its purest form: Kirby's 1958–1963 contributions, Marvel said, were works made for hire, so Kirby never owned a terminable interest. If that was true, there was nothing for the heirs to take back, because Marvel — not Kirby — was the legal "author" from day one.

The "Instance and Expense" Test

Because the relevant works predated the 1976 Act, the courts applied the older common-law standard for work made for hire that had developed under the 1909 Copyright Act, which itself said only that the term "author" includes an employer in the case of a work made for hire (former 17 U.S.C. § 26). Out of that thin statutory language courts built the "instance and expense" test. Under that test, a work is "for hire" if it was created at the instance (the inducement, direction, or motivation) and expense (the financial risk and payment) of the hiring party. Critically, the test was not limited to traditional salaried employees — courts applied it to freelancers too, and once the hiring party showed instance and expense, a presumption of work-for-hire arose, shifting to the creator the burden to prove an agreement to the contrary.

In Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013), the Second Circuit applied that test and ruled for Marvel. The court found that Kirby's contributions during the key period were made at Marvel's instance and expense: Marvel paid him a per-page rate, the work was created within the scope of the freelance relationship Marvel directed and depended on, and Marvel bore the financial risk of publication (including paying even for pages it chose not to use). The heirs' attempt to characterize Kirby as an independent genius who pitched finished work and merely sold it did not overcome the presumption. Because the works were for hire, Kirby never held a copyright interest he could transfer — and therefore the heirs had nothing to terminate. The § 304(c) notices were invalid.

It is worth pausing on how brutal the "instance and expense" test was for creators. Marvel had earlier lost a related fight in Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2d Cir. 2002), the Captain America case, where the Second Circuit held that the work-for-hire question turns on the actual relationship of the parties and that a creator cannot be bound by a later agreement reciting that earlier work was "for hire" if the underlying relationship says otherwise. Simon gave creators hope; Kirby showed how high the wall still was when the facts (per-page pay, publisher direction, publisher financial risk) lined up the other way.

Cert Granted — and a Settlement on the Courthouse Steps

The Kirby family petitioned the U.S. Supreme Court, and the case attracted heavyweight attention. Friend-of-the-court briefs poured in from former Register of Copyrights officials, the Screen Actors Guild, the Writers Guild, and other creator groups, all worried that the "instance and expense" test had grown so broad it was swallowing the very termination right Congress meant to protect. The Supreme Court granted certiorari in 2014, setting up a potential landmark on the meaning of work made for hire.

Then, in September 2014 — days before the Justices were scheduled to consider the case — Marvel and the Kirby estate announced a settlement. The terms were confidential, the petition was dismissed, and the Supreme Court never ruled. (Marvel by then was owned by Disney, which had ample incentive to make the looming uncertainty disappear before a divided Court could either entrench or upend the test.) The practical effect: the Second Circuit's ruling stands as the law in that circuit, Marvel kept the characters, and the Kirby family obtained compensation and, in time, restored "created by" credits in the films.

The Kirby fight is the Superman fight from the other side of the table. In both, heirs invoked § 304(c) termination; in both, the publisher won; and in both, the decisive issue was whether the creator ever owned a transferable copyright in the first place. For Superman it was settlements and re-grants; for Kirby it was work made for hire. The doctrines differ, but the structural lesson is identical: termination only reaches what the creator originally owned, so the entire war is usually fought over original ownership. If you are an employer commissioning creative work, our guides on employee invention assignment agreements and drafting enforceable non-disclosure agreements explain how to get ownership right at the start rather than litigating it forty years later.

A Quick Word on Modern Work-Made-for-Hire Law

For works created today under the 1976 Act, the "instance and expense" test is gone. Instead, 17 U.S.C. § 101 defines work made for hire in two mutually exclusive boxes:

  1. A work prepared by an employee within the scope of employment; or
  2. A work specially ordered or commissioned for use in one of nine enumerated categories (a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas) — but only if the parties expressly agree in a signed writing that the work shall be considered a work made for hire.

The Supreme Court explained in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), that whether someone is an "employee" turns on the common-law of agency — a multi-factor inquiry that looks at the hiring party's right to control the manner and means of the work, the skill required, who supplies the tools and workspace, the duration of the relationship, the method of payment, whether the work is part of the hiring party's regular business, the provision of employee benefits, and the tax treatment of the worker — not on what the parties call themselves. Reid, 490 U.S. at 751–52. Lower courts have emphasized that some factors carry more weight than others: the Second Circuit in Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992), singled out the right to control, the worker's tax treatment, the provision of benefits, and the skill required as especially probative, and courts have rejected attempts to label someone an "employee" by contract when the agency factors say otherwise.

The upshot for creators is concrete. If you are an independent contractor, your work is not automatically for hire just because someone paid you; absent the signed written agreement that § 101 requires for the nine enumerated categories, the copyright stays with you (subject to any separate assignment you sign). And note the asymmetry highlighted by Reid and Simon: paying a lump sum on completion, with no benefits and no tax withholding, points strongly toward independent-contractor status — which is exactly why so much hangs on getting the paperwork right at the outset. Getting this unglamorous detail right is what determines who owns a billion-dollar character. For freelancers and the publications that hire them, see also contributions to a collective work and legal protection of software, which applies the same ownership logic to code.

When Co-Creators Collide: Gaiman, McFarlane, and Spawn

Not every superhero fight is creator-versus-corporation. Sometimes it is two creators who agreed to make something together and then disagreed about who owns what. The classic example — and one the original version of this article rightly flagged — is the Spawn litigation between Neil Gaiman and Todd McFarlane.

In 1992, McFarlane, a superstar artist, helped found Image Comics and launched Spawn. To boost the new title, he invited celebrated writers to script guest issues. Neil Gaiman wrote Spawn #9, and in doing so introduced three characters: Medieval Spawn (a knightly version of the hero), the angelic warrior Angela, and the ancient figure Count Nicholas Cogliostro. There was no written contract spelling out ownership — a recurring theme in these stories. When the relationship soured and McFarlane kept using and licensing the characters without paying Gaiman, Gaiman sued, claiming co-ownership of the copyrights in the characters he had helped create.

The Seventh Circuit, in an opinion by Judge Richard Posner, sided largely with Gaiman in Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004). Two points from that decision are worth understanding.

First, on joint authorship and copyrightable characters, the court held that Gaiman's contributions were protectable. McFarlane argued that Gaiman supplied only "ideas" — a knight, an angel, an old man — and that ideas are not copyrightable. Posner's response was that while a generic character sketch might be a bare idea, these characters as expressed through the combination of names, visual depiction, dialogue, backstory, and traits were sufficiently delineated to be protected, and the collaboration made them joint works. A character can be a joint creation even when one collaborator writes and the other draws; you do not have to be able to slice the contribution into separable, independently copyrightable halves. That holding sits comfortably alongside Towle: distinctiveness plus delineation equals a protectable character, regardless of how many hands shaped it.

Second, the case is a vivid reminder that co-creators need to paper their deals. Gaiman and McFarlane were friends and professionals who simply trusted each other and skipped the contract. Years of litigation — including a later round over the character Angela, who eventually migrated (through settlement) into the Marvel universe — flowed from that single missing document. Joint authorship also carries default rules that surprise people: absent an agreement, each co-owner may independently license the work non-exclusively, but must account to the others for profits. If two people might jointly own valuable IP, the time to define the split, the licensing rights, and the credit is before the work succeeds, not after.

The Spawn saga rounds out our picture nicely. Superman shows creator-versus-corporation over termination. Kirby shows it over work-for-hire. Gaiman shows creator-versus-creator over joint authorship. Different doctrines, one universal lesson: ownership disputes are almost always failures of upfront clarity.

The "Super Hero" Trademark Saga: Marvel and DC Lose Their Shared Word

Now switch shields — from copyright to trademark — for one of the most delightful stories in this whole area. For decades, Marvel and DC, the fiercest commercial rivals in comics, were secret partners on one narrow front: they jointly owned U.S. trademark registrations for the term "SUPER HEROES" (and variants like "SUPERHERO" and "SUPER HERO"), covering comic books and related goods. The two companies held registrations dating back to the 1960s and 1970s and, over the years, would jointly send cease-and-desist letters to smaller publishers and merchandisers who used "super hero" in product names, effectively policing the generic-sounding phrase as if it were their shared brand.

To many observers, this was always legally awkward. A core principle of trademark law is that generic terms cannot be trademarks. A generic term is one that names the genus — the category — of goods rather than identifying their source; the Supreme Court described a generic term in Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985), as "one that refers to the genus of which the particular product is a species." If a word is simply the common name for a category of goods — "aspirin," "escalator," "thermos" all famously became generic — then no one gets to own it, because consumers do not perceive it as a single-source identifier. "Super hero" sure sounds like the generic name for a genre of fiction, not a brand that signals "this comic comes from Marvel-and-DC."

The Legal Vulnerability: The Primary Significance Test

The doctrinal hook for challenging the marks was the primary significance test, codified in the very provision that allows cancellation of generic registrations. The Lanham Act provides that a registration may be cancelled if the registered mark "becomes the generic name for the goods or services" and instructs that "[t]he primary significance of the registered mark to the relevant public . . . shall be the test for determining whether the registered mark has become the generic name of goods or services" (15 U.S.C. § 1064(3)). The TTAB and the Federal Circuit operationalize this as a two-step inquiry drawn from H. Marvin Ginn Corp. v. Int'l Ass'n of Fire Chiefs, Inc., 782 F.2d 987 (Fed. Cir. 1986): first identify the relevant genus of goods or services, then ask whether the relevant public primarily understands the term to refer to that genus. If yes, the term is generic and unregistrable, full stop — no amount of marketing can confer trademark significance on a word the public reads as the category itself.

Several features of genericness doctrine made the "Super Hero" registrations especially exposed:

  • Incontestability is no shield. A registration can become "incontestable" after five years of continuous use, defeating many challenges — but genericness is a permanent vulnerability. Section 1064(3) allows a cancellation petition on genericness grounds to be filed at any time, regardless of how old or incontestable the registration is.
  • Laches generally does not bar a genericness claim in TTAB proceedings, because the public interest in freeing generic terms outweighs the registrant's reliance on delay. So the fact that the marks had survived for decades did not immunize them.
  • The challenger's burden is a mere preponderance. In a TTAB cancellation, the petitioner must prove genericness by a preponderance of the evidence — not by clear and convincing evidence (Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638 (Fed. Cir. 1991)). For a phrase as transparently descriptive of a genre as "super hero," that is a low bar to clear with dictionaries, media usage, and ordinary consumer perception.

Critics had grumbled for years that the joint registration should never have survived a genericness challenge. But challenging Marvel and DC together is expensive and intimidating, so the marks endured.

The 2024 Cancellation

The marks did not endure forever. In 2024, the registrations finally collapsed. A London-based comic creator (operating through a small company associated with the project "Super Babies") filed a petition with the Trademark Trial and Appeal Board (TTAB) — the USPTO's in-house tribunal — seeking to cancel the joint "Super Hero" registrations on the ground that the term is generic and incapable of identifying a single commercial source. The petitioner argued, in effect, that "super hero" belongs to the public and the language, not to two companies.

Here is the punchline: Marvel and DC did not defend. They failed to file an answer to the cancellation petition within the deadline. As a result, in September 2024 the TTAB entered a default judgment cancelling the registrations, and the long-contested joint "Super Hero" marks were stripped from the federal register. The companies' silence spoke volumes — likely a recognition that, given the primary significance test and the low preponderance burden, a fully litigated genericness fight was a near-certain loser, and that defending it would only generate a published precedent and the publicity confirming that the term belongs to everyone. A quiet default produces a result that binds those particular registrations without creating a citable opinion dissecting why the marks were generic.

What It Means (and What It Doesn't)

It is easy to over-read this story, so let us be precise about what changed.

The cancellation means Marvel and DC no longer hold federal registrations for "super hero" as a trademark for comics and related goods. Other creators can use the phrase "super hero" descriptively or generically in titles and marketing with far less fear of a joint cease-and-desist letter. It is a genuine win for the commons and for small publishers — and a reminder that overbroad trademark policing carries its own risks, because the more aggressively you assert a weak mark, the more you invite the challenge that cancels it.

But it does not mean Marvel and DC lost their characters or their real brands. Every specific hero — Spider-Man, Iron Man, Batman, Wonder Woman — remains protected by its own copyrights and its own distinctive trademarks. Cancelling the registration of the generic phrase "super hero" does nothing to the registration of "SPIDER-MAN" or the bat-symbol. Recall that genericness is product-specific: a term can be generic for one category and a perfectly valid mark for another ("ivory" is generic for elephant tusks but arbitrary for soap). "Super hero" is generic for the genre; "SPIDER-MAN" is a coined source identifier for a particular character. The companies lost a word they arguably never should have owned; they kept everything that actually matters. If you are wondering how a brand owner is supposed to police a mark without overreaching into territory it cannot legitimately claim, our guides on drafting a trademark cease-and-desist letter and responding to a trademark cease-and-desist letter walk through the strategy and the risks of bullying, and when to trademark your brand explains how to choose marks that are strong rather than generic in the first place.

The "Super Hero" saga is the perfect illustration of our two-shields theme. Copyright protects the specific creative characters; it cannot reach a generic genre word. Trademark protects source-identifying brands; it likewise cannot reach a generic genre word. The phrase "super hero" fell through the gap between the two — too generic for either shield to hold. The fight ended not because a court issued a grand pronouncement, but because two giants quietly declined to defend a position they could not win.

Costumes, Cosplay, and the Star Athletica Question

Superheroes are not just stories and brands — they are also looks. The cape, the cowl, the chest emblem, the color scheme. Halloween, Comic-Con, and a multibillion-dollar costume industry all run on those looks. So a natural question arises: can you copyright a superhero costume?

This bumps into one of the trickiest doctrines in all of copyright: the rule that "useful articles" are not copyrightable, but the separable artistic features applied to them sometimes are (17 U.S.C. §§ 101, 113). Clothing is the paradigmatic useful article — its job is to clothe you — so the cut, fit, and function of a garment cannot be copyrighted. But a design printed on or incorporated into the garment might be, if it can be conceptually separated from the garment's utilitarian function.

The Supreme Court tackled this in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017), a case about cheerleading uniforms. The Court announced a two-part separability test: a feature incorporated into the design of a useful article is eligible for copyright protection if it (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work — either on its own or fixed in some other medium — if it were imagined apart from the useful article. Star Athletica, 580 U.S. at 417. The arrangements of lines, chevrons, and colors on the cheerleading uniforms passed: you could imagine those designs as standalone artwork, so they were protectable, even though the uniform itself (the cut, the fit, the function) was not.

Apply that to a Batman costume. The idea of a cape, the function of a mask, the cut of a bodysuit — those are utilitarian and not protected. But the specific graphic design of the bat-emblem, the particular sculptural ornamentation, the original two-dimensional artwork on the chest — those can be conceptually separated and may qualify for copyright. (And of course the bat-symbol is also a registered trademark, giving DC a second shield against confusingly branded merchandise, and potentially trade-dress protection for distinctive non-functional configurations — see copyright vs. trademark — what is the difference.)

So where does that leave cosplayers? Mostly fine, and here is the practical reality. Sewing a costume for yourself and wearing it to a convention is not a commercial use that competes with the rights holder, and studios essentially never go after fans for cosplay — it is free marketing and fan goodwill, and the legal theory against a private hobbyist is weak on both copyright (no market harm, arguable fair use) and trademark (no use "in commerce" likely to confuse). The line gets real when you start selling costumes or merchandise that copy protected designs or use protected trademarks in a way that suggests official endorsement. A homemade Spider-Man suit on your kid is one thing; a storefront mass-producing and selling "official-looking" Spider-Man suits is another, because that implicates both the copyrightable artwork and the trademark, and it competes commercially. The dividing line, as so often in IP, is between personal enjoyment and commercial exploitation.

Fan Works and Fair Use: How Far Can Fans Go?

Cosplay's cousin is fan fiction, fan art, and fan films — the vast creative ecosystem that grows around beloved characters. Fans write Batman novellas, draw Spider-Man comics, edit "fan-cut" movies, and build elaborate parodies. How much of this is legal?

The honest answer is "it depends, and the doctrine that decides it is fair use." Fair use, codified at 17 U.S.C. § 107, is an equitable, fact-intensive defense that permits unauthorized use of copyrighted material in certain circumstances, weighed across four non-exclusive statutory factors:

  1. The purpose and character of the use — including whether it is commercial, and whether it is "transformative" (adds new meaning, message, or expression rather than merely substituting for the original);
  2. The nature of the copyrighted work (creative, expressive works like comics sit near the core of copyright and weigh against fair use);
  3. The amount and substantiality of what was taken, qualitatively as well as quantitatively; and
  4. The effect on the potential market for, or value of, the original.

No single factor is dispositive; the Supreme Court has stressed that the factors must be weighed together "in light of the purposes of copyright," as an "equitable rule of reason" (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577–78 (1994); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448 (1984)). The first and fourth factors tend to dominate, and they are linked: the more a use is transformative and non-commercial, the less likely it is to usurp the original's market.

The Supreme Court has refined the "transformative" inquiry significantly in recent years, most notably in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), which warned that a new work is not automatically transformative just because it conveys a different message or meaning. The Court put real weight on the first factor's commercial dimension and on whether the challenged use shares the same or a highly similar purpose as the original and competes with it commercially — there, licensing a stylized image of a musician to a magazine served the same essential purpose (illustrating an article about the musician) as the original photograph. Translation for fans: the more your fan work substitutes for something the rights holder sells (or could license), and the more commercial it is, the weaker your fair-use position, even if you have added your own spin.

This is why parody tends to fare well and straight copying tends to fare poorly. A genuine parody that comments on or criticizes the character itself can be strongly transformative — the Supreme Court protected parody in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the "Pretty Woman" case, precisely because parody must conjure up the original to make its point. A faithful, non-commenting reproduction — say, a fan film that simply retells a Batman story for a wide audience — is much riskier, because it neither transforms nor stays out of the rights holder's market. Real-world practice has borne this out: studios have shut down ambitious, professionalized fan films that started to look and earn like commercial productions, while leaving the ocean of nonprofit, clearly-amateur fan art and fiction alone.

Hypothetical. Two fans each make a "Batman" project. Fan A writes a short satirical comic in which Batman, mocked as an out-of-touch billionaire, can no longer afford his gadgets after a tax reform — a pointed parody of the character, distributed free online. Fan B crowdfunds $200,000 to produce a feature-length, straight-faced Batman origin film, sells streaming access, and sells tie-in merchandise. Fan A has a strong fair-use argument: transformative parody, non-commercial, little market substitution. Fan B is in serious jeopardy: the use is commercial, non-transformative (it tells a Batman story the way DC tells Batman stories), takes the heart of the character, and competes directly with DC's market — and the "BATMAN" title independently raises a trademark sponsorship-confusion problem.

Two practical notes for fans and creators. First, fan works almost always also implicate trademark, not just copyright — using "BATMAN" in your title can suggest official sponsorship and create confusion, independent of any copying of artwork. Second, a disclaimer ("not affiliated with DC") helps but does not immunize you; it can reduce confusion for trademark purposes but does nothing to cure copyright infringement. If you are navigating user-generated content, takedowns, and platform liability, see our pieces on how to file a DMCA takedown notice and respond to one, section 230 reform and platform liability for user-generated IP infringement, and what are the consequences of pirating intellectual property.

Characters, Games, Merchandise, and the Broader Universe

Superhero IP does not stop at comics and films. Characters power video games, board games, trading cards, theme parks, and merchandise, and each medium adds its own wrinkle. Video games are protected as both audiovisual works and software, but the rules and mechanics of a game are not copyrightable — only the expression is, a point we develop in copyright registration of games. A superhero appearing in a game therefore travels with its copyright (the character, art, and story) and its trademarks (the name and logos), even though the gameplay systems themselves are free for others to imitate.

The same layering shows up in merchandising. A Batman action figure can simultaneously embody copyrightable sculptural artwork, a trademark (the name and bat-symbol), trade dress in a distinctive non-functional configuration, and sometimes even a patented mechanical feature. Sorting out which shield applies to which element is exactly the kind of analysis IP lawyers do every day, and it is why "Who owns Batman?" is never a one-sentence answer. A further layer appears whenever a real actor's face and voice are bound up with the character — say, a specific film performance — which brings in the state-law right of publicity, an entirely separate body of doctrine. As studios increasingly recreate performers digitally, that issue is moving to the foreground; see right of publicity basics and the right of publicity meets digital doubles. For a foundational tour of how copyright and trademark fit together, copyright vs. trademark — what is the difference and trademark basics are the right starting points.

Key Takeaways for Creators (Even If You'll Never Draw a Superhero)

You may never invent the next Superman. But the lessons of these battles apply to anyone who creates valuable intellectual property — a logo, a novel, a software product, a brand, a song.

  • Get ownership right at the start. Nearly every dispute in this article — Superman, Kirby, Spawn — traces back to murky or unfavorable original deals. Define authorship, assignment, and work-made-for-hire status in writing, before the work succeeds. Remember that the modern statute only permits work-for-hire status for commissioned works in nine narrow categories, and only with a signed agreement. Our guide to employee invention assignment agreements shows how.

  • Understand the two shields. Copyright and trademark protect different things on different timelines. The smartest IP strategies use both deliberately — and recognize what neither can reach (like the generic phrase "super hero").

  • Termination rights are a feature, not a loophole. If you are a creator, you (and eventually your statutory heirs) may have a non-waivable second bite under 17 U.S.C. §§ 203 and 304(c). If you are a publisher, you must plan around it. Either way, the statutory mechanics — which section, which grant, which heirs, which notice deadlines under 37 C.F.R. § 201.10 — decide outcomes.

  • Settlements and re-grants reset the clock. A later agreement can extinguish the rights you are trying to exercise, and even an unsigned settlement letter can bind you. Read every release like it could matter in forty years, because it can.

  • Plan your IP estate. Termination rights and royalties pass by statute to defined heirs and can override your will. If you own valuable creative work, coordinate copyright with your estate plan — see who will inherit your intellectual property.

  • Choose strong marks and don't overreach. A generic or highly descriptive term makes a weak, vulnerable trademark; genericness can be challenged at any time, by a low burden, with no laches or incontestability defense. Build brands around distinctive, coined terms — and police them proportionately.

  • Personal use is usually fine; commercial exploitation is where the danger lives. Cosplay for yourself, write fan fiction for fun. The moment you sell, advertise, or compete with the rights holder, the analysis changes sharply — and after Goldsmith, a "different message" alone will not save a commercial, market-substituting use.

  • Register early. Copyright registration unlocks the ability to sue and the possibility of statutory damages and attorney's fees; trademark registration provides nationwide constructive notice and presumptions of validity. Start with our copyright registration guide and trademark registration guide.

Superheroes save the day with strength and courage. Their creators, it turns out, save the day with contracts, registrations, and a careful reading of the Copyright Act. The cape is optional. The paperwork is not.

Frequently Asked Questions

Can a fictional character really be copyrighted on its own? Yes, if the character is sufficiently developed and distinctive. Under the Ninth Circuit's test in DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), a character qualifies if it has physical and conceptual qualities, is sufficiently delineated to be recognizable across appearances, and is especially distinctive. Vague stock figures (a generic detective, a generic vampire) are not protectable, because at that level a "character" is just an unprotectable idea under 17 U.S.C. § 102(b). Fully realized superheroes — and even the Batmobile — easily qualify.

Who owns Superman today? Warner Bros./DC Comics. The heirs of Jerry Siegel and Joe Shuster waged decades of termination litigation under 17 U.S.C. § 304(c) and even won a partial district-court recapture in 2008, but those gains were undone on appeal. The Siegels were held bound by a 2001 settlement letter (Larson v. Warner Bros., 504 F. App'x 586 (9th Cir. 2013)), and the Shusters' claim failed because a 1992 agreement re-granted their rights — moving the operative grant into § 203 territory and defeating the § 304(c) notice they had served. The earliest Superman material's copyright is currently set to expire at the end of 2033, ninety-five years after the 1938 publication of Action Comics #1.

What is a "termination of transfer" right, in plain English? It is a non-waivable right that lets authors (or, after they die, their statutory heirs) take back rights they once signed away, despite any contract saying "forever." Grants made before 1978 can be terminated under 17 U.S.C. § 304(c) (a five-year window opening 56 years after copyright was secured); grants made in 1978 or later can be terminated under § 203 (a window opening 35 years after the grant). It is exercised by serving and recording a precise written notice within strict deadlines. The right does not apply to works made for hire, which is why so many fights focus on whether a work was "for hire."

Why did Marvel beat the Jack Kirby estate? Because Kirby's early-1960s contributions were found to be works made for hire under the old common-law "instance and expense" test, meaning Marvel was the legal author from the start and Kirby never owned a copyright interest he could transfer — so there was nothing for his heirs to terminate. The Second Circuit ruled for Marvel in Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013). The Supreme Court granted review, but the parties settled confidentially in September 2014 before the Court could rule, so the Second Circuit's decision stands.

How is work made for hire decided for works created today? Under 17 U.S.C. § 101, a work is "for hire" only if (1) an employee created it within the scope of employment, or (2) it was specially commissioned for one of nine enumerated categories and the parties signed a written agreement saying it is a work made for hire. Whether someone is an "employee" turns on the common-law agency factors set out in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) — control, skill, source of tools, benefits, tax treatment, and so on — not on the label the parties use. An ordinary independent contractor's work is generally not for hire.

Did Marvel and DC really lose the trademark on "Super Hero"? Yes. The two rivals had jointly held federal registrations for "SUPER HEROES" and similar terms for decades. In 2024 a third party petitioned the Trademark Trial and Appeal Board to cancel them as generic under 15 U.S.C. § 1064(3), Marvel and DC failed to file an answer, and in September 2024 the TTAB entered a default judgment cancelling the registrations. Genericness can be challenged at any time — incontestability and the passage of decades do not protect a generic term — so the marks were always vulnerable. The companies kept all their actual character copyrights and brand trademarks (Spider-Man, Batman, the bat-symbol, and so on); they lost only a generic genre word they arguably never should have owned.

Can I get in trouble for cosplay or fan fiction? Wearing a costume you made and writing fan fiction for fun are very low-risk — rights holders almost never pursue private, non-commercial fans, and the legal theories against them are weak. The risk rises sharply when you sell costumes or merchandise, run advertising, or create works that compete with what the rights holder sells. Commercial use implicates both copyright (the protectable artwork and character) and trademark (the names and logos), and fair use becomes much harder to claim under the framework of Andy Warhol Foundation v. Goldsmith, 598 U.S. 508 (2023), which discounts a "different message" when the use is commercial and serves a similar purpose.

Can a superhero costume be copyrighted? The garment's useful, functional aspects (the cut, the fit, the cape's basic function) cannot be copyrighted, but separable artistic features can be. Under Star Athletica v. Varsity Brands, 580 U.S. 405 (2017), a design feature is protectable if it can be perceived as standalone art and would qualify as a protectable work if imagined apart from the garment. So the specific chest emblem or original ornamental artwork on a costume may be protected — and the emblem may also be a registered trademark.

What happens to Superman and other heroes when their copyrights expire? The earliest copyrighted material enters the public domain, meaning anyone can freely copy that specific original version. But the trademarks (names like "SUPERMAN," logos like the shield) can persist indefinitely as long as they remain in use, and later additions to the character (powers, supporting cast, and storylines introduced in subsequent years) stay protected until their own copyrights expire. The result is a patchwork: some elements free, some still locked, and trademark law guarding the brand even after copyright lets go of the oldest stories. Trademark cannot, however, be used as a backdoor to re-monopolize the now-public-domain expression itself.

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This article provides general information for educational purposes only and is not legal advice. Intellectual property law is fact-specific and evolves; for advice about your situation, consult qualified counsel licensed in your jurisdiction.