(I told you I'd connect Stan Lee to
this)
For about the past fifty years the company which is now Marvel
entertainment, has made a spectacular amount of money and has done it in
virtually every medium from comics to television to film to video games
to novels to even, Heaven help us, the stage.
This is all the more remarkable when you consider that shortly before
its period of dominance the company was a third rate imprint that was,
by some accounts, on its last legs.
The rise was a remarkable achievement both in American publishing and
pop culture. In economic terms alone, it shows how a small company with
almost no resources or structural advantages can come to dominate an
industry and generate billions of dollars.
One aspect of that story which is particularly relevant given our recent
posts on the subject is the way Stan Lee used public domain (and in
some cases, not-quite-public domain) intellectual properties as an
important part of his business model.
First a quick and hopefully painless bit of comic book history.
Superheroes were the first big original content hit of the medium.
Starting with Superman in 1938, they dominated that side of the industry
for almost a decade. Licensed titles (like Dell's Disney line) were, by
some sources, bigger sellers but if you were creating characters
specifically for comics in the early Forties, superheroes were where the
money was. By the end of the decade, though, the boom was largely over
and other fads such as crime, horror, Western, funny animals, funny
teenagers and (with a
very unlikely origin) romance took turns as the next big thing.
Of course, comic book publishers kept trying to bring back the genre
that had started it all. Lots of companies tried to introduce new
superheroes or dust off old ones but without real success. Among others,
the company that would become Marvel was particularly badly burned by a
superhero push in the mid-Fifties). The big exception here is Magazine
Enterprise's
Ghost Rider
in 1949 but as Don Markstein pointed out, that character blended the
faded superhero genre with the up-and-coming genres western and horror.
It was not until 1956 that a team working under DC editor Julius
Schwartz came up with a workable formula: take a dormant mid-tier
character from the Forties; completely rework the character (sometimes
keeping only the name) with a science fiction origin, streamlined
jump-suit inspired costumes and a heavy emphasis on space age themes.
In rapid succession and generally with great success, Schwartz applied
this rebooting approach to a number of properties and soon other
companies were trying their hand. As early as 1959, Archie Comics (which
had been known for a relatively successful and very violent collection
of superhero titles in the Forties) had hired Joe Simon and Jack Kirby
to rework their character the Shield. As the Sixties got going almost
everyone was in on the act.
In 1961, Marvel Comics joined in. Marvel was a small part of Martin
Goodman's middling publishing company but it did have a couple of
significant assets: a few well-remembered Golden Age characters (the
Human Torch, Namor and Captain America) and comics auteur Jack Kirby.
Given the market conditions of the time, Kirby's brand was extremely
valuable. There was a tremendous demand for all things associated with
the previous era of superheroes and Kirby had been a major player with
an exceptional level of prominence. In an era when most stories went
unsigned, his name was a big enough selling point to be featured
prominently on the covers.
Much myth has accumulated around the creation of the Fantastic Four,
partially because of the impact the title would go on to have and
partially because none of the people involved (Goodman, Lee, Kirby) can
be considered reliable narrators, but if you simply look at the book
itself and what had been going on in the industry at the time, FF #1 is
about what you would expect, combining Schwartz's formula with the group
dynamics of Kirby's team comics and elements of the monster comics
Marvel had been producing (the two most unusual aspects, the lack of
costumes and secret identity were completely dropped when Marvel
introduced Spider-man less than a year later).
I don't mean any disrespect for Marvel here. This is usually how
companies really work. You find an existing business model, modify it
slightly, then use it to establish a revenue stream and a loyal customer
base. That's what Lee did. That's what Sam Walton did with Ben Franklin
stores. The big ideas and innovation tend to come only after you have a
successful stable operation (which was certainly the case with Marvel).
That leads to a much bigger point.
We have seen over the past few years a tendency to grant intellectual
property protection to ideas that would previously have been considered
general parts of a business plan (for example, offering free wi-fi to
customers). What if the ability to borrow and recombine elements of
business plans in kind of a de facto genetic algorithm is an important
part of a creative economy? What if being derivative is the first step
for coming up with something original?
There are also some interesting IP questions involving the creation of Spider-man (Wikipedia has a good
summary), but that's a discussion for another time. The part of the story that's most relevant comes a couple of years later.
As mentioned previously, from approximately 1956 to 1966, the big thing
in comics was to modernize and reboot Golden age characters. This left
Marvel with a problem: With the exception of Captain America, the Human
Torch and Namor, the company had a very thin bench. You very soon got
down to really obscure characters. The whole purpose of the reboot model
is to cash in on name recognition so rebooting the virtually forgotten
is of limited value. (You have to wonder how many readers in the Sixties
had ever heard of the Thirties Tarzan knock-off Ka-Zar.)
Lee's solution was to launch characters using at least the names of three of the biggest sellers of the Golden Age: Daredevil;
Ghost Rider;
and Captain Marvel, none of which actually belonged to Marvel, but were
instead arguably in the public domain. It is the third one that
required considerable nerve.
Captain Marvel had been, by some standards, the most successful
character to come out of the Golden Age, outselling even Superman
(nuisance suits from DC were a big factor in the decision to eventually
cancel the series in 1953). What's more, the publisher, Fawcett was big
and, though out of the comics business, still very active, publishing
title including Family Circle, Woman's Day, Mechanix Illustrated and
Gold Medal paperbacks.
Lee was betting (correctly as it turns out) that Fawcett either wouldn't
notice or wouldn't bother to sue an obvious copyright infringement. It
was a bold but not a reckless move. Attitudes toward copyrights have
changed greatly and many of those changes involve the earlier emphasis
on active properties and going concerns. Up until recently, the primary
reason you acquired and held copyrights was because you wanted to do
something with those properties. As a result, if someone went out of the
comics business and no one had an immediate interest in their
properties, the copyrights were often allowed to lapse or (in the case
of Fawcett) go unenforced.
There's a lesson here about creative destruction. Companies,
particularly those in the creation business, often start out by
borrowing business plans and skirting copyright and patent laws. You can
certainly argue that this lowers the value of the intellectual property
they are making use of, but I think you can also argue, as or more
persuasively, that the returns on tolerating this behavior from small,
young companies far outweigh the cost.
For more on the IP beat, click
here,
here, and
here.