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Abstract

In just a decade and a half since the modern superhero film exploded onto the scene, the comic books and graphic novels that have long been the very definition of a fringe or niche interest, have morphed into a multi-billion dollar film, television and video game empire. The two main players in this industry, Marvel and DC, are owned by juggernauts in the entertainment industry. More importantly, some of these characters have been around for over three-quarters of a century. Readers keyed into intellectual property law, particularly copyright, should begin to see the issue. The copyright protection on these characters will expire in the coming years, and could potentially open up a wide range of other works based on these venerable and valuable properties. While trademark law may provide some limited protections, there may in fact be another way for these characters to be protected.

There are several exceptions to copyright, but the one most applicable to our case is the prohibition against recognizing copyright protection for “Scènes à Faire.” Succinctly put, the doctrine prohibits copyrighting a scene that is indispensable to conveying basic information about the overall copyrighted work. In other words, using a skyline shot of New York City to convey that a film is set in New York City is not copyrightable on its own, even though the rest of the film is certainly eligible for protection. In a similar manner, facts may not be copyrighted. However, fictional facts may be. For example, the fact that Superman was born on the planet Krypton and sent to Earth as a baby to be raised in Smallville by the Kent family are ‘facts’ of a sort, but as fictional facts they are subject to copyright protection.

The world of comic books is full of hypothetical questions regarding competing forces. Can Thor’s hammer (the irresistible force) destroy Captain America’s shield (the immovable object)? Who is faster, Superman or The Flash?

In this mix we bring a legal conundrum to join the debates that swarm around conventions and online message boards. What happens when fictional facts interact with scènes à faire in the manner that occurs in films based on comic books? Which wins, the protectable nature of fictional facts or the generic scenes that are bereft of protection? In this note I will argue that when fictional facts interact with scènes à faire in comic book movies, the previously unprotected scenes gain copyright protectable status. While this may seem a moot point, it is not. The extensive protections offered by copyright will enable those copyright holders to continue exploiting the vast commercial value of those rights for decades to come.

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