The Case of the Silly Pictures: Superman versus Captain Marvel (With Republic in the Middle)

Much of the information in this article may be old news to many serial buffs, but I thought the following account of Republic’s failed attempt to make a Superman serial, and the tangled legal aftermath, might be of interest to my readers. If nothing else, it gives me a chance to write about my hobby (movie serials) and my profession (law) at the same time.


Above: An item from the Film Daily of April 1940. The cancellation option may be a rumor; Jack Mathis, who recounts the contract negotiations in great detail (see below) does not mention it at all. 

Part 1: The Deal is Made

As every comic-book devotee knows, Superman (aka the “Man of Steel” and the “Man of Tomorrow”) debuted in 1938, in Action Comics–one of the titles published by Detective Comics, Inc. The character’s comic-book exploits quickly acquired national popularity, and in 1939, Jack Liebowitz, the owner of Detective Comics, created a separate corporation, Superman, Inc., to exploit Superman in other media. In October, 1939, Superman Inc., through agent Paul Kohner, began soliciting bids on a potential Superman film from Hollywood studios.

The success of Flash Gordon and the other comic-strip serials that followed in its wake made the serial-producing studios eager to acquire Superman; in late 1939, Republic bid $5000 and Columbia $6000 for the rights to make a Superman serial. Superman Inc., began negotiations with Columbia (whose serial department at that time would have been the high-budgeted in-house unit headed by Jack Fier, responsible for The Spider’s Web), but Columbia was reluctant to give Superman Inc. the script approval and box-office percentage that the publishing company demanded. The negotiations with Columbia died, leaving the field open to Republic, which upped its bid to $7000 in early 1940. Universal then got into the picture as well, offering $7700 for the chance to make a Superman serial, but Republic matched this offer and also agreed to pay the expenses of a Superman Inc. writer/representative who was to come to Hollywood and provide screenplay input. Kohner, acting for Superman Inc., accepted this offer in April 1940, and Republic announced the upcoming Superman serial to the trade papers, although the final contract had not yet been drafted.

Part 2: The Deal Falls Apart

In the last week of May 1940, Republic assigned Sol Shor and Joseph Poland to start drafting a screenplay for Adventures of Superman. The writing team was augmented by Franklin Adreon, Ronald Davidson, Norman Hall, and Barney Sarecky; together, they labored on the script through June and July, while Republic and Superman Inc. attempted to finalize their initial agreement. There were four major sticking points. Superman Inc. insisted on the right to approve the casting of Superman/Clark Kent, and was unwilling to allow Republic the right to re-release the serial as a feature film or via the then-embryonic medium of television. Rather absurdly, Superman Inc. also wanted Superman’s name to be included in the title of every chapter. More understandably, they also wanted Republic to promise to use Lois Lane, Perry White (who had debuted on the Superman radio show earlier that year), and other members of Superman’s supporting cast; one suspects that this condition had something to do with the fact that Republic had not bothered to transfer Dick Tracy’s comic-strip supporting cast to the screen in its Tracy serials (except Junior, and even he had been dropped after Republic’s first two Tracy outings).

The top men on both sides got together in mid-July, and Republic managed to win on three of the four disputed points. They agreed to forego any feature-film or television rights, but were allowed the last word on chapter titles, casting, and the use of Superman’s supporting cast. The final contract was drawn up, but not signed by Superman Inc.; Republic asked that it be signed by July 31, but that date passed without action by Superman Inc. Assuming that the contract had been voided after the July deadline was missed, Superman Inc. quickly pivoted and by mid-August had reached a deal with Max Fleischer and Paramount for production and distribution of a series of Superman cartoons.

Part 3: Transmuting Steel into Copper

When the Republic/Superman Inc. deal fell apart on July 31, Shor, Poland, and the rest of the writing team had scripted seven episodes of the planned Superman serial, which was to pit the Man of Steel against a mad scientist with a lethal robot. On August 1, the writers were advised in an all-department memo that “the next serial to go into production will be Mysterious Doctor Satan, and not Adventures of Superman as previously announced.” They were then faced with the unenviable task of reworking the first half of their script and writing the second half before September 20, the date filming was scheduled to begin. They retained the mad scientist and his robot, replaced Superman with an original non-powered masked hero named the Copperhead, and managed to have a script ready for directors William Witney and John English to shoot in September. As I wrote in my review of Mysterious Doctor Satan, the fact that the end result turned out to be an excellent serial is a tribute to Republic’s production team. Only a few telltale signs in the re-purposed first half of Doctor Satan point to its origins–a scene in which the Copperhead rather improbably climbed up the side of an office building (Superman would have simply leaped up), the title “Doctor Satan’s Man of Steel” for the robot’s debut chapter (the original inference was obviously that the villain now had a Man of Steel pit against the Man of Steel), and a reporter heroine with the first name of Lois (Republic evidently did intend to use at least one member of Superman’s comic-book cast).

Part 4: Captain Marvel Swoops In

Variety announced on August 16 that Republic would not be making a Superman serial; this notice caught the attention of Fawcett Comics, and three days later the studio was contacted by Fawcett’s west coast manager E. J. Smithson about the possibility of a Republic serial based on Fawcett’s new superhero, Captain Marvel. The Captain had debuted in February 1940 in Fawcett’s Whiz Comics; similar enough to Superman to ride the wave of that character’s popularity, but different enough to avoid seeming like an inferior knockoff, he would become Superman’s biggest competitor during the 1940s. Fawcett obviously saw a movie serial as a way to grow their fledgling superhero’s fame, and by October 9, 1940, the publishing company had signed a contract with Republic to bring Captain Marvel to the screen.

The deal was extremely favorable to Republic; Fawcett evidently felt that gaining big-screen exposure for Captain Marvel would be more economically rewarding in the long run than obtaining upfront money from the studio. The contract gave Republic the right to produce a Captain Marvel serial free of charge, and also gave the studio television and feature-film rights for seven years. In contrast to the Superman negotiations, there was little quibbling about conditions; Republic only had to guarantee to use “Captain Marvel” in the serial’s title, give Fawcett screen credit, and release the serial as part of its 1940-41 production slate. The studio also was granted the option to produce two additional Captain Marvel serials; , Republic would have to purchase $2100 worth of advertising in Fawcett’s publications to exercise the first option, and $4200 worth of advertising to exercise the second option.

Republic’s effects specialists, the Lydecker brothers, had already begun to plan ways and means of making Superman “fly” for the camera, and those plans would now be put into effect to help Captain Marvel take flight instead. The serial was released in March 1941, and (as all serial buffs know) became one of Republic’s most successful and fondly-remembered releases. The serial also helped to boost Fawcett’s circulation considerably; the sales figures for their title Captain Marvel Adventures jumped from 2,291,629 in 1941 to 6,874,650 in 1942.

Part 4: Rise of the Super Suits


Above: An item from the July issue of the trade publication The Exhibitor. 

Before Adventures of Captain Marvel hit theaters, another event occurred which would have long-term consequences for Republic, Fawcett, and DC. Republic boss Herbert Yates had not taken kindly to the termination of the negotiations between Republic and Superman Inc., and in December 1940 the studio launched a lawsuit against Superman Inc. for breach of contract. Legally speaking, there was a credible basis for such a suit; the final contract had never been signed, but a judge could easily have found that the initial deal agreed on in April contained all the essential terms of the parties’ agreement, making a breach-of-contract action supportable.

Republic’s demand for damages was somewhat more questionable; they sought to recover $5388 for costs expended on writing the screenplay for Adventures of Superman, and $50,000 in profits lost on the unmade  serial. Lost profits are a speculative form of damages that courts are typically reluctant to award, and while the studio deliberately omitted to mention that it had recouped some the writing costs by turning the Superman script into Mysterious Doctor Satan, this fact would almost certainly have come out at some juncture in the proceedings.

Superman Inc. struck back in June, 1941, while Adventures of Captain Marvel was still running in theaters. Attorney Louis Nizer, acting for Superman Inc., demanded that Republic cease distributing Captain Marvel or face a lawsuit for copyright infringement of the Superman comics. Republic ignored the demand and Superman Inc. filed suit against them and Fawcett as well in September, 1941.

Part 5: The Serials They Dared Not Make

The contract lawsuit and the copyright lawsuit would both drag on throughout the 1940s, and would have an impact on Republic’s serial-making plans on multiple occasions. When the deadline for exercising the first option for an additional Captain Marvel serial drew near in 1942, Republic explained to Fawcett that it would like to exercise the option, but was leery of throwing more fuel on the copyright-infringement fire. Fawcett then agreed to extend to the option period, and continued to do so every year while the litigation continued. Ultimately, neither of the options would be exercised, and Captain Marvel would never have a sequel serial.

Another potential Republic serial stayed permanently in limbo because of the copyright lawsuit. In June, 1941, Universal, impressed by the success of Republic’s Captain Marvel serial, decided to make their own deal with Fawcett and offered the company $5000 for the rights to make serials based on the Fawcett characters Spy Smasher and Bulletman. Fawcett, however, wanted to preserve its profitable relationship with Republic if possible, and E. J. Smithson thus offered them the chance to acquire both characters for only $1500–provided the Republic front office acted immediately. Yates quickly signed off on the purchase, and Republic snapped up two new costumed heroes.

Republic began fast-tracking a script for Spy Smasher–Fawcett’s second-most-popular character–early in August 1941, but Bulletman was another matter. This character, like Captain Marvel and Superman, was capable of flight, and with Republic already on notice of Superman Inc.’s threatened copyright infringement suit, Yates was gun-shy about bringing another Superman-style flying hero to the screen. After discussions with Republic production head Morris Siegel, Yates had decided by August 19 not to make a Bulletman serial; the character would never make it to the screen in any form. The non-powered Spy Smasher, on the other hand, was considered a safe bet where potential litigation was concerned, and became the star of another of Republic’s best serials.

Part 6: End of the Super Suits


Above: A 1948 item from the trade publication Boxoffice. A “reserved decision” simply means that, after the parties presented their cases, the judge decided to conduct further review of the evidence before issuing a final ruling. Note the embarrassing misidentification of Captain Marvel as “Captain Marble.” 

In 1946, with both the contract and copyright lawsuits still underway, National Comics Publications, Inc., into which Detective Comics Inc. and Superman Inc. had recently merged, extended an olive branch to Republic by attempting to interest the studio in producing a color Superman feature. Republic, however, was only interested in a Superman serial, and National took its proposition to Columbia, which had earlier produced a serial based on Detective Comics’ other star character, Batman. Columbia proved equally uninterested in the idea of a Superman feature but ultimately agreed to terms with National for the production of a Superman serial, which was released in 1948 and followed by a sequel in 1950.

In December, 1949, just before trial began, National and Republic reached a settlement in the contract action, whereby National paid Republic $15,000 in damages (Republic evidently knew that its original damages demand of $50,000 was unlikely to be granted by a court). The copyright action against Republic and Fawcett was another story; it had been tried in March 1948 in the US District Court for the Southern District of New York before federal judge John Coxe, who issued a decision in April, 1950. Coxe concluded that Fawcett had engaged in actual copying (a key determination in a copyright action) of the Superman comics–but also found that National had abandoned its copyright in its Superman publications, making it impossible for National to prevail in an action for infringement of the Superman comics.

This latter finding was based on the fact that the McClure Newspaper Syndicate, which had been given newspaper rights to the Superman comic strip by Detective Comics Inc., had failed to include proper copyright notices in some of the syndicated Superman strips. This omission was legally charged to National by the judge, who concluded that Detective Comics Inc., National’s predecessor, had been engaged in a “joint venture” (essentially, a partnership) with McClure to syndicate the Superman strips. Coxe did not award attorneys’ fees to Fawcett, in view of his finding that they had engaged in actual copying, but did allow Republic, as a secondary infringer who had not directly engaged in copying, to receive $1000 in attorneys’ fees.

National, of course, was not willing to accept the conclusion that it no longer held a valid copyright on the adventures of its flagship character, and it appealed Judge Coxe’s 1950 decision to the US Court of Appeals for the Second Circuit. The appeal was heard by the famous jurist Judge Learned Hand, whose 1930 decision in the case of Nichols v. Universal Pictures Corp. was one of the landmarks of copyright law. Hand made his disdain for comic books quite clear (“In the case of these silly pictures nobody cares who is the producer”) but nonetheless gave this dispute over “silly pictures” an exhaustive analysis in an opinion delivered on August 30, 1951.

Hand’s key finding was that Coxe had cut too broad a swathe in concluding that “publication of the McClure syndicated newspaper strips without proper copyright notices resulted in the abandonment by plaintiff of the copyrights on the ‘Action Comics’ stories.” On the contrary, Hand opined that the case could be “disposed of only by determining the validity of the copyright on each ‘strip’ separately.” In other words, copyright was not lost on all Superman comics simply because the copyright had been lost on some Superman comic strips. Hand sent the case back to the lower court for determination of which of the allegedly copied comic strips and comic books were protected by copyright and which were not.

Now that it was apparent that the litigation would continue, Republic cut its losses and reached a separate settlement with National in May, 1952, whereby Republic was released from all liability for past and future theatrical showings of the Captain Marvel serial. The status of Republic’s television rights in the serial (a much more economically important matter in 1952 than it had been back in 1940) was made dependent by the agreement on the ultimate outcome of National’s suit against Fawcett. This suit was settled as well, when Fawcett and National agreed in 1953 that Fawcett  would stop publishing Captain Marvel stories altogether; sales of superhero comics had been flagging in the postwar period anyway, and Fawcett clearly felt it was not worth the court costs to continue to fight over the Captain.

Republic also was obliged to sign off on the National-Fawcett settlement agreement, which required the studio to pay $15,000 to National (National’s lawyers clearly remembered the settlement sum paid to Republic in the contract case) and prohibited them from releasing the Captain Marvel serial to TV or making any sequel serials. Fortunately, the earlier Republic-National settlement agreement concerning the theatrical rights to the original serial was left undisturbed; had Republic given up its theatrical rights as well, their print of the serial would probably have been sold or destroyed, and Adventures of Captain Marvel could well have become one of the handful of Republic serials that never received an official home video release.

Epilogue

Fawcett stopped publishing comics altogether not long after its settlement with National, although Captain Marvel would have an afterlife when National’s successor company–by then known simply as DC–licensed the right to create new Captain Marvel comics from Fawcett in 1972. Captain Marvel, his name ultimately switched to Shazam (due to other ramifications of trademark and copyright law too complicated to go into here), is now the property of Warner Brothers–which also owns Superman and the other DC characters, and which produced a big-budgeted “Shazam” feature as recently as 2017, capitalizing on today’s unquenchable demand for superhero movies based on Judge Hand’s “silly pictures.”

As for Republic’s original attempt to spin silly pictures into a superhero serial, although that attempt didn’t result in an Adventures of Superman serial, as the studio had hoped, it did ultimately lead to the production of three great Golden Age serials–Mysterious Doctor Satan, Adventures of Captain Marvel, and Spy Smasher. The first two would definitely never have have existed had the Republic Superman deal gone through, and the third would probably never have been made without the relationship between Fawcett and Republic established by Captain Marvel. The end result definitely represents a net gain for serial buffs, although it will always be tempting to wonder just what Republic’s Adventures of Superman would have looked like.

Acknowledgements: Most of the information in this article comes from the Mysterious Doctor Satan, Adventures of Captain Marvel, and Spy Smasher sections in Jack Mathis’ incomparable book Valley of the Cliffhangers. My other main sources were the opinions issued in National Comics Publications, Inc. v. Fawcett Publications, Inc., 93 F. Supp. 349 (D.N.Y. April 10, 1950) and Nat’l Comics Publs., Inc. v. Fawcett Publs., Inc., 191 F.2d 594 (2d Cir. N.Y. August 30, 1951).

2 thoughts on “The Case of the Silly Pictures: Superman versus Captain Marvel (With Republic in the Middle)

  1. Terrific post, it’s fun to think about what serials Republic might have made if events had happened a little differently. A Republic Superman or Bulletman would have been great I’m sure.
    I’m sure you know that Fawcett published a Nyoka comic series based on the Republic serials. I wonder if the rights to that were a completely separate deal or if it figured in with the movie deals. Do you have any information on that?

    • Mathis, in his Perils of Nyoka entry in Valley of the Cliffhangers, does not specify whether it was a separate deal or not, but I would think it was. The first Nyoka comic was a Fawcett one-shot adaptation of Perils of Nyoka, published in 1942; Republic had arranged for comic tie-ins of this kind before via other publishers, and it makes sense that, in view of their good relationship with Fawcett at the time (the Spy Smasher/Bulletman purchase took place earlier the same year), they would strike a deal with Fawcett for this particular tie-in. Fawcett didn’t start publishing a regular Nyoka title until 1944; I would guess that a new deal was struck at that time, although it’s possible that there was an option of some kind in the original 1942 adaptation arrangement.

      There is a popular story (I’ve been guilty of repeating it myself in the past) that, following the success of Captain Marvel, Republic and Fawcett struck a deal whereby each was free to adapt any of the other’s characters, but the fact that Republic had to purchase Spy Smasher and Bulletman obviously destroys that legend. Mathis also notes that Fawcett had to get Republic’s permission to use a bunch of the supporting characters from the Captain Marvel serial in the comics, meaning there was not even a reciprocity agreement where that particular serial was concerned, let alone a blanket deal covering all of Republic’s and Fawcett’s characters.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s