The Daraprim story

This is Joseph.

The drug Daraprim jumped in it's cost from $13.55 a pill to $750 per pill after it was purchased by a new company:

“This isn’t the greedy drug company trying to gouge patients, it is us trying to stay in business,” Mr. Shkreli said. He said that many patients use the drug for far less than a year and that the price was now more in line with those of other drugs for rare diseases.

“This is still one of the smallest pharmaceutical products in the world,” he said. “It really doesn’t make sense to get any criticism for this.”

Aaron Carroll is skeptical:

“Trying to stay in business”? If the company couldn’t make money at the same price the old company was, then why did they buy the drug? And asking people to pay WAY more to fund other drug development seems like gouging sick people with no choice. I’m having trouble understanding the optics of this. 

The ability to boost the price dramatically was certainly a way to maximize profits, but it does so at the cost of increasing health care costs.  And because the drug is infrequently used, it is unlikely you will see a lot of competitors manufacturing the drug. This is especially true, here, with a closed distribution system being used.  If you can't get enough drug to do a bioequivalence study, then you can't enter the market.

How we navigate these issues is tricky . . .  That said, there is something to be said about competitive market failure if the barriers to entry allow one to increase the price by so much and yet you don't immediately lure competitors to get their share of the $749 per pill (or so) in profit. Similarly, blocking the proof of equivalence between two agents is also a complete barrier to entry and not necessarily helping matters at all.

EDIT: The company has dropped prices from the $750/pill level.  However, the underlying issue of market failure remains, unless we think that social media should be a way of enforcing market discipline on companies.  Usually, this only influences the most egregious cases. 

Did you know Happy Birthday was copyrighted?

This is Joseph

I did not.  Nor was I aware of a lawsuit trying to change this until quite recently.  But the actual arguments have become rather odd:

Last week, they submitted evidence that they called “a proverbial smoking gun”: a 1922 songbook containing “Good Morning and Birthday Song,” with the birthday lyrics in the third verse. While other songs in the book are given with copyright notices, “Good Morning and Birthday Song” says only that it appears through “special permission” of the Summy Company. Under the laws of the time, an authorized publication without proper copyright notice would result in forfeiture of the copyright, according to lawyers involved in the case. Furthermore, under the 1998 law, anything published before 1923 is considered part of the public domain.

Warner argued that while earlier versions of the birthday song may have been published, they were not authorized by the sisters themselves. Also, no copyright covered “Happy Birthday,” the label argues, until it was registered in 1935, so there was no copyright to be invalidated in 1922.

So a song that was extant in 1922 can be copyrighted in 1935 -- making the term of copyright last until 2030 (presuming no additional extensions).  This is 108 years past the original songbook and 95 years after the formal copyright. 

I think intellectual property protections are extremely important.  Many artists depend on these rights in order to make a living by producing works of lasting value.  My question is becoming more one of "what is the socially optimal length of a copyright".  I am suspicious that we are on the wrong side of the curve (copyright increases innovation by increasing reward but stifles it by setting up things that others cannot use without cost/permission).  In this case, the copyright term extension act didn't even incent this innovation -- all of the prior copyright holders had innovated under the previous reward levels (including this song). 

Now I don't want to go too far here in proposing solutions.  But I think a robust discussion of 50 year terms for artistic works might be of great help in this debate.  That would make things in the mid-1960's leaving copyright now, which seems like a decent run to allow compensation for innovation. 

An under-appreciated consequence of extremely long copyrights

This is one of the unforeseen consequences of extremely long copyright terms:

Not only have many copyright holders failed to keep their older works in print, but there are now many books whose copyright holders can't be identified at all. In many cases, the original copyright holder is dead and records about who now holds the copyright aren't available. These "orphan works" have become a serious problem for projects such as Google Books, which aims to digitize books and make them available to the public. Google can't obtain the rights to reproduce these books at any price because it can't figure out who it needs to negotiate with. The older a work is, the more likely it is to be orphaned, so copyright extensions have made the problem much worse.

At some point the interests of the creator of the work are more likely served by allowing their creation to be published and enjoyed rather than left to wither on the vine.  If nobody can even figure out who owns these rights then precisely who is being protected? 

Intellectual Property

We have not talked about copyright for a while, but this is an evergreen point:

More recent characters never enter the public domain because a handful of 1930s-vintage characters—Mickey Mouse, Batman—are owned by corporations that are still powerful today and have successfully lobbied congress to retroactively extend copyright terms. What we ought to do is go back to a sensible regime of finite copyright—perhaps the lifespan of the author or 50 years, whichever is longer—so that creators can still benefit from their works but that new generations of characters will enter the mythic realm of the public domain.

 I think the piece here that is underappreciated is the retroactive nature of the copyright extension.  There is no way that extending copyright on Batman (today) will provide incentives to people in the 1930's to create more comic book characters. 

I don't know where the right balance is.  Matt proposes something vaguely sensible above, although one may be tempted to quibble with what is the correct period of protection.  But infinite copyright isn't going to really serve the original public policy goals of intellectual property protection, and should definitely be rethought. 

Intellectual property and genes

More on intellectual property:

Advocates of tough intellectual property rights say that this is simply the price we have to pay to get the innovation that, in the long run, will save lives. It’s a trade-off: the lives of a relatively few poor women today, versus the lives of many more women sometime in the future. But this claim is wrong in many ways. In this particular case, it is especially wrong, because the two genes would likely have been isolated (“discovered,” in Myriad’s terminology) soon anyway, as part of the global Human Genome Project. But it is wrong on other counts, as well. Genetic researchers have argued that the patent actually prevented the development of better tests, and so interfered with the advancement of science. All knowledge is based on prior knowledge, and by making prior knowledge less available, innovation is impeded. Myriad’s own discovery — like any in science — used technologies and ideas that were developed by others. Had that prior knowledge not been publicly available, Myriad could not have done what it did.

I think that this is one of the themes of intellectual property arguments; the advocates claim that the huge positional benefits of these policies (in generating revenue for incumbents) are necessary to encourage progress.  But it makes all sorts of tough assumptions, like incumbents will deploy these resources to encourage social benefit. 

One thing that makes a lot of sense is to look at times and places that showed evidence for fast growth and innovation.  It seems that tight trade guild rules, for example, seem to be anti-correlated with fast progress on industrial or technological progress.  That should be a cautionary note.

And, as Mark has carefully noted before, there isn't a binary choice here between massive intellectual property protection and no intellectual property protection.  There are some pretty reasonable middle ground positions that are less extreme than the modern regime but still protect the rights of private discovery.  Nor should we entirely rule out government funded research programs -- these can be much less expensive than the private sector (see the NSF, for example) but still ensure that innovation is not under-supplied. 

Intellectual Property

Mark Thoma points us towards a potentially really important finding:

By linking a number of different datasets that had not previously been used by researchers, Williams was able to measure when genes were sequenced, which genes were held by Celera's intellectual property, and what subsequent investments were made in scientific research and product development on each gene. Williams' conclusion points to a persistent 20-30 percent reduction in subsequent scientific research and product development for those genes held by Celera's intellectual property.
 

As we have long discussed on this blog, the justification for intellectual property is to encourage and promote innovation.  There has long been a concern that the innovation would have happened with or without the patent (software patents are a good example of this phenomenon) but a general consensus that the profits from patents increase innovation (due to the rewards generated by a successful innovation).  However, if the granting of a patent were shown to decrease innovation then the argument for granting them would be weakened.

If granting a patent reduces future innovation and the patented innovations would have occurred with or without the patent then the patent process becomes pure rent seeking.  It's clear that these two conditions do not universally hold (i.e. medication discovery as currently constructed is too expensive without a clear path to future profits).  But the possibility that this could be true for same areas of technology is a sobering thought indeed. 

When Patents attack

Kevin Drum has an interesting story about a software patent case:

This hits home for me in two ways. First, the alleged patents date from 1996, and I was personally involved in a project to put scanners on networks starting around 1994. It was cleverly called NetScan, and it eventually failed for a variety of reasons, but by 1996 we had an actual box on the market that allowed you to connect a scanner and program it to send documents to your internal email account. I have no doubt that the patent trolls in this case would argue that the technology we used was subtly different from theirs (we emailed TIFF files, for example, while their patent covers PDFs), but that's almost certainly legalistic nonsense. You connected a scanner to our box, entered a bunch of data identifying users, and then you could scan documents and have them automatically emailed to your desktop. We didn't even bother patenting it because the idea was pretty obvious.

I think that this makes it pretty clear how silly a lot of modern patent law has become.  There is not really any innovation being protected here and, instead, we have a lot of lawyers becoming rich because somebody decided to take out a patent on what people were already doing. 

This makes me extremely skeptical that patents are a direct correlate with innovation, unless you sub-group them very carefully.   And it is highly disturbing to see small businesses (which don't have deep pockets for legal fees) being increasingly targeted by patent lawyers.  There are already a lot of barriers to being a small business.  A catalogue of patents for simple things (like scanning a document to email) would be cumbersome and trying to be compliant with it would be the most onerous set of regulations I can imagine.

Has anyone patented rounded corners yet? If not, I see an opportunity

From Matt Yglesias via Alex Tabarrok:

…Apple has been awarded a patent on wedge-shaped computers. Once again it is difficult to see why this sort of competition-stifling government-enforced monopoly would be beneficial to the overall cause of innovation. It’s absolutely true that the record should reflect the fact that Apple made wedge-shaped computers popular and the new wave of Ultrabooks are slightly lame imitators. But we progress as a society because of imitators! People come up with good ideas and then those ideas spread.

Works moved out of the public domain?

Seriously?

The Supreme Court on Wednesday upheld a federal law that restored copyright protection to works that had entered the public domain. By a 6-to-2 vote, the justices rejected arguments based on the First Amendment and the Constitution’s copyright clause, saying that the public domain was not “a category of constitutional significance” and that copyright protections might be expanded even if they did not create incentives for new works to be created. The case, Golan v. Holder, No. 10-545, considered a 1994 law enacted to carry out an international convention. The law applied mainly to works first published abroad from 1923 to 1989 that had earlier not been eligible for copyright protection under American law, including films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.

 How exactly does this act to promote the creation of new works?  Any possible incentive to the creaters is long past.  Notice that this period ends in 1989 -- how many people would have created more works jsut in case they could get copyright protective in a foreign market 23 years later? 

I am not against intellectual property rights (rather the converse) but I question is need for such long term protection for pieces that are decades old.  At some point the public domain is the right place for these older works, as it gives them a chance to be rediscovered by people looking for inexpensive content.  That is probably a better legacy for the creators than any minimal stream of royalties could be at this late date.

I think we also need to page Mark Palko

Today's new patent is from Apple, US patent #8,082,523.  It is best described as:

In other words, anything you’d recognize as a smartphone seems to be covered.

Matthew Yglesias asks the smart question:

The issue is that there's just no sound public interest case for granting monopolies over certain features to the first-to-market firms in this industry. Apple has already gained a very large competitive advantage from the fact that they were the first people to deploy a working touchscreen smartphone and even without patents clearly has a strong financial need to continue investing in improving its product lest lower-margin Android-powered phones eat away at its profits.

But the general trend seems worrisome.  Not only does it vastly increase business complexity (searching the patent office for thousands of potentially applicable patents), but it stifles innovation by making new entry into the smartphone field more difficult.

Mark?  

Intellectual property: the story that never ends

More on intellectual property rights from Matt Yglesias, who is worried about Google patenting basic features of driverless cars:

If you look at the cars we have, they're all of course different but they have a lot of really profound similarities. You almost always turn a key in the ignition. You have your gas pedal and your break, and you push them both with your right foot. You steer them with a wheel. There's a spedometer and a fuel indicator in more-or-less the same place. They use mirrors so you can see where you're going without constantly turning your head. Would it be a better world if for twenty years someone had held a patent on a Using Mirrors To Allow Drivers To See Behind Them Without Turning Their Head? I say, no. Absent the inability of new entrants into the automobile market to copy some of the basic concepts of what a usable car looks like, we would have had much less competition and much less innovation around the real cutting edge of the automobile industry.

This was not the most interesting thing that was on Moneybox today, but it fit really well into an an evolving theme that we have been seeing recently about how the patent industry is formalizing rent-seeking.  This cannot be good in the long run.

Now, it is true that I think that the driverless car is an over-rated concept.  Like the jetpack, it is a neat idea that has a lot of very difficult implementation issues.  In the case of the driverless car, the main issues, in my opinion, are rethinking the complex web of liability we have constructed around vehicles and smoothly integrating them into mixed use roadways.

The risk of bicycle commuting has been an extremely favorable development, despite the occasional tension between cars and bikers.  But I wonder if driverless cars will be able to handle treating cyclists as other vehicles or might the smaller profile of the bike make it harder for the car to account for them?  The same concerns come up with pedestrians, especially in large cities.

Intellectual Property

Apple appears to be suing as part of its business plan:

Apple makes great products, but you wouldn’t know it from the way it’s attacking Samsung. Rather than let the marketplace decide whose products are better, Apple wants the courts to decide. Specifically, Apple is slugging it out with Samsung in a minimum of 19 lawsuits in 12 courts in nine countries on four continents.

Let that sink in for a minute. Apple is trying to use intellectual property law as a bludgeon around the world to protect its sales.

I think that we need to think carefully about what these laws exist to do and to promote. Apple is a profitable and successful company even with competitors. It might well be less profitable and successful if competitors could not enter into it's space. Imagine if the basic functionality of the telephone (talking remotely to people) was under patent. What would be the incentive for innovation?

Intellectual property is a very slippery idea; the gap between compensating for innovation and creating rent-seeking behavior seems razor thin.

Still more intellectual property silliness

I've got an actual post on this in the works but in the meantime check out these stories.

From the New York Times:

When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.

The provision also permits songwriters to reclaim ownership of qualifying songs. Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office.

“In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” said Don Henley, a founder both of the Eagles and the Recording Artists Coalition, which seeks to protect performers’ legal rights. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.”

With the recording industry already reeling from plummeting sales, termination rights claims could be another serious financial blow. Sales plunged to about $6.3 billion from $14.6 billion over the decade ending in 2009, in large part because of unauthorized downloading of music on the Internet, especially of new releases, which has left record labels disproportionately dependent on sales of older recordings in their catalogs.

“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth J. Abdo, a lawyer who leads a termination rights working group for the National Academy of Recording Arts and Sciences and has filed claims for some of his clients, who include Kool and the Gang. As a result the four major record companies — Universal, Sony BMG, EMI and Warner — have made it clear that they will not relinquish recordings they consider their property without a fight.

“We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

And from Andrew Gelman:

Christian Robert points to this absurd patent of the Monte Carlo method (which, as Christian notes, was actually invented by Stanislaw Ulam and others in the 1940s).

The whole thing is pretty unreadable. I wonder if they first wrote it as a journal article and then it got rejected everywhere, so they decided to submit it as a patent instead.

More intellectual property silliness

From TPM:

The New York Stock Exchange now claims that you have to get their permission (express or implicit) before you use images connected to the New York Stock Exchange. So if you find a wire photo of the trading floor and use it to illustrate a story on Wall Street, you're violating the NYSE's trademark because they've trademarked the trading floor itself.

We found this out yesterday when we got a cease and desist letter from the NYSE based on an article published at TPM back in November. You can see the letter here.

TPM is represented on Media and IP matters by extremely capable specialist outside counsel. And we've been advised that the NYSE's claims are baseless and ridiculous on their face. But this is yet another example of how many large corporations have given way to IP-mania, trying to bully smaller companies into submission with inane and legally specious claims of intellectual property rights.

Well, TPM's small but we have big teeth. And we don't like being pushed around. So we're again posting the same picture as an illustration for this post. But really, what's next? Mayor Bloomberg trademarks his face and the city newspapers have to get his permission to publish photos of him so not to infringe the Bloomberg face trademark? Or more likely, the Empire State building trademark's the image of the Empire State building and demands a fee or bars photographs of the New York skyline.

...

So in the spirit of the moment I propose a contest. We know that NYSE now says you need their permission to show photographs of the Exchange in the context of news coverage. And if I understand their logic you'd actually need their permission to show a sketch you drew of the Exchange floor.

So here's the contest, what do you think NYSE's next preposterous claim of intellectual property rights will be? Can you say the words 'New York Stock Exchange' without their permission? Can you do a line drawing of the facade of the exchange without running it by the NYSE's lawyers?

As many have observed (including Thomas Jefferson who refused to patent any of his inventions), intellectual property laws are a necessary evil. They restrict the creation of new work in often onerous ways but they provide an increased incentive to create work that qualifies for protection. Even more importantly, they encourage dissemination of that work.

Over the past few decades, however, we've seen less interest in the necessity and more emphasis on the evil. The result is unfair, economically suboptimal, and undeniably silly.

[We've been down this rabbit before as you can see here.]

The middle of January and already in reruns -- Alice in Lawyerland

This post from Matt Yglesias on intellectual property (with additional comments by Joseph here), got me thinking about this post from a few months ago. I apologize for repeating myself, but this is one of my favorite examples of copyright hypocrisy:

Alice in Lawyerland: would the laws Disney lobbied for have prevented Disney from existing in the first place?


(disclaimer: I have cashed a number of royalties checks over the years so the following is obviously not an attack on the concept of intellectual property. I like royalty checks. I'm just worried about the consequences of taking these things to an extreme.)

In 1998, the Walt Disney company had a problem: their company mascot was turning 70. Mickey Mouse had debuted in 1928's "Mickey Mouse In Plane Crazy" which meant that unless something was done, Mickey would enter the public domain within a decade. This was a job for lobbyists, lots of lobbyists.

From Wikipedia:

The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.

This law, also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or pejoratively as the Mickey Mouse Protection Act,[2] effectively "froze" the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again. Unlike copyright extension legislation in the European Union, the Sonny Bono Act did not revive copyrights that had already expired. The Act did extend the terms of protection set for works that were already copyrighted, and is retroactive in that sense.

Mickey had been Disney's biggest hit but he wasn't their first. The studio had established itself with a series of comedies in the early Twenties about a live-action little girl named Alice who found herself in an animated wonderland. In case anyone missed the connection, the debut was actually called "Alice's Wonderland." The Alice Comedies were the series that allowed Disney to leave Kansas and set up his Hollywood studio.

For context, Lewis Carroll published the Alice books, Wonderland and Through the Looking Glass, in 1865 and 1871 and died in 1898. Even under the law that preceded the Mouse Protection Act, Alice would have been the property of Carroll's estate and "Alice's Wonderland" was a far more clear-cut example of infringement than were many of the cases Disney has pursued over the years.

In other words, if present laws and attitudes about intellectual property had been around in the Twenties, the company that lobbied hardest for them might never have existed.

There's nothing unusual about a small company or start-up exploiting lapsed or unenforced copyrights to get a foothold. The public domain has long been fertile ground for stage companies, record companies, publishers, and producers of movies or radio and television; it's just been getting a lot less fertile lately.

Other degrees of patent protection

Mark has a very interesting post on the length of copyright of intellectual property. I thought that I would compare these laws (which appear to give nearly 100 years of protection) to those for pharmacuetical drugs. From wikipedia:

In the US, drug patents give twenty years of protection, but they are applied for before clinical trials begin, so the effective life of a drug patent tends to be between seven and twelve years.

Medications have enormous development costs, the low end of the estimates are $100 to $200 million dollars (the cost of the clinical trials, alone, is enormous). Yet we are content to give them an effective period of copyright of seven to twelve years.

This is an area of copyright law where we have attempted to balance the need to reimburse development costs with the value of allowing an innovation into the open market. Why do we see laws that are so much stricter with ideas like "Mickey Mouse" and "Superhero"?

It is certainly food for thought!

Alice in Lawyerland: would the laws Disney lobbied for have prevented Disney from existing in the first place?

(disclaimer: I have cashed a number of royalties checks over the years so the following is obviously not an attack on the concept of intellectual property. I like royalty checks. I'm just worried about the consequences of taking these things to an extreme.)

In 1998, the Walt Disney company had a problem: their company mascot was turning 70. Mickey Mouse had debuted in 1928's "Mickey Mouse In Plane Crazy" which meant that unless something was done, Mickey would enter the public domain within a decade. This was a job for lobbyists, lots of lobbyists.

From Wikipedia:

The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.

This law, also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or pejoratively as the Mickey Mouse Protection Act,[2] effectively "froze" the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again. Unlike copyright extension legislation in the European Union, the Sonny Bono Act did not revive copyrights that had already expired. The Act did extend the terms of protection set for works that were already copyrighted, and is retroactive in that sense.

Mickey had been Disney's biggest hit but he wasn't their first. The studio had established itself with a series of comedies in the early Twenties about a live-action little girl named Alice who found herself in an animated wonderland. In case anyone missed the connection, the debut was actually called "Alice's Wonderland." The Alice Comedies were the series that allowed Disney to leave Kansas and set up his Hollywood studio.

For context, Lewis Carroll published the Alice books, Wonderland and Through the Looking Glass, in 1865 and 1871 and died in 1898. Even under the law that preceded the Mouse Protection Act, Alice would have been the property of Carroll's estate and "Alice's Wonderland" was a far more clear-cut example of infringement than were many of the cases Disney has pursued over the years.

In other words, if present laws and attitudes about intellectual property had been around in the Twenties, the company that lobbied hardest for them might never have existed.

There's nothing unusual about a small company or start-up exploiting lapsed or unenforced copyrights to get a foothold. The public domain has long been fertile ground for stage companies, record companies, publishers, and producers of movies or radio and television; it's just been getting a lot less fertile lately.

The ultimate superpower is litigation

As part of our ongoing series on the surreal world of intellectual property (see the last post), here's a fun fact from comic book writer and historian Don Markstein:

Marvel and DC Comics are arch-rivals when it comes to market share in the comic book industry. But they're capable of an amazing degree of cooperation when it comes to maintaining their shared position as the industry's leaders. One of the ways they cooperate is in maintaining a joint trademark on the word "superhero" — as if Charlton, Harvey, Archie, ACG and Gold Key, to name only a few of the dozens that used both the genre and the word back before they established their mutual legal hegemony over it, never existed — to say nothing of Dark Horse, Image and others that use the genre today and aren't permitted to use the word.

In fact, here's a Dell comic book that actually made the term its very title, long before Marvel and DC decided to sew up rights to it. This should serve as a beacon to anyone willing to attempt to withstand the mighty onslaught of their lawyers, and point out that the word was in general use, with nobody even attempting to prevent others' using it, even before Superman.