::: dahlbergcentral.com ::: i don't need to pee pee, i just need to rock

Attention Conservation Notice/Of interest only to folks who follow comics.

Artist and one-time Publisher (I believe) of Time Warner's DC Comics (not president, as the story indicates), has sued TW and DC over the rights to the Flash and Batgirl, who he says he created for DC in the 1950s while he worked for them as a freelance artist.

The story, as is so often the case when it comes to news media discussing the intricacies of copyright, is maddeningly vague about the claim itself or the theory upon which Infantino bases his case. But let me break some things down for you:

The character of the Flash was initially created by Gardner Fox and Harry Lampert, appearing in the first issue of FLASH COMICS in 1940. In 1956, Infantino revived the character, still called the Flash, giving him a new secret identity, origin and backstory, in books published by what would become DC Comics.

I'm gonna go out on a pretty thick limb here and say that the revival of the Flash in 1956 will almost 100% certainly be considered a derivative work based upon the initial Fox/Lampert creation, which means that Infantino has no copyright interest in the underlying character. I don't see how it can be anything else. Maybe Infantino has some claim to the Flash's new backstory and the characters he populated it with, but that's kind of separate and distinct from "claiming the copyright to the Flash". (This argument's even stronger with Batgirl -- if you doubt Batgirl is a derivative work from the original Finger/Kane character of Batman, well, I've got a great bridge you might be interested in.)

Something else: DC probably doesn't have a really specific work-for-hire agreement between themselves and Infantino, but neither, I suspect, does Infantino have any kind of document granting DC a license of any kind to publish his characters. I'd be VERY surprised if that were the case. DC's been claiming copyright and trademark to these characters for the last FIFTY YEARS -- during which time Infantino himself not only worked for and at DC, but was THE HEAD OF THE COMPANY. Which means that any trademark claim Infantino's making is probably gone. Copyright wouldn't necessarily be affected by that fact, but there's certainly some argument to be made that Infantino was fully aware that DC was asserting copyright claims over these characters, and that he tacitly agreed with this assertion in his role as Publisher, since the indicia in every book recited that fact -- even more so if DC pursued or actively engaged in legal action over the characters while he was presiding over the company.

Which leads me to wonder: who's the legal muppet advising this guy?

Carmine, baby: get new counsel.

EDIT/UPDATE: Conversations elsewhere have reminded me of the Gaiman/McFarlane case, in which the Seventh Circuit Court of Appeals ruled that Neil Gaiman could share in the copyright to Medieval Spawn, clearly a derivative work based upon Todd McFarlane's Spawn character, but distinct enough to rise to the level of copyrightability. Do the Silver Age Flash and Batgirl meet this test? Again, I have grave doubts -- but the precedent, I suppose, is out there...

posted by Gus at 1:03 PM | |