Copyright as a general principle is under attack. Too many times in the popular press and media we see copyright portrayed as a barrier to doing something, not a reward to creative artists whose work enriches our lives. So, one would think that writers, who depend upon copyright for their very existence, would have the incentive, indeed the obligation, when discussing copyright to at least get the facts correct.
A few weeks ago, I took my wife on a Disney Cruise for her birthday. While on the ship we had the opportunity to watch the new Marvel movie “Thunderbolts.*”
Spoiler Alert: if you have not seen the movie, please stop here.
The reason for the asterix is revealed at the end of the movie. In the finale, our band of heroes are duped by the villain of the movie into appearing before the press, in which they are announced as the “New Avengers.” The next scene is the Thunderbolts griping about the fact that Sam Wilson, (who if you have been following along in the Marvel Cinematic Universe, Sam Wilson used to be The Falcon but is now the new Captain America) has “copyrighted” the name Avengers in an attempt to stop the Thunderbolts from being called the “New Avengers.” This is not just a one-off joke. The scene continues with Alexei Shostakov a/k/a the Red Guardian explaining how they can get around this by calling themselves the “Avengerz,” and proudly displays his crudely altered uniform to use a “Z” instead of an “S,” spelling “AVENGERZ.”
Now this scene is played for laughs, as throughout the film the Red Guardian has been the comic relief, being portrayed as a not very bright, overbearing oaf, but still this made me wince. I know, I know, cranky old copyright lawyer being pedantic, but as I thought about it, the negative effect of this lingers.
Once again, copyright is being portrayed as a barrier to prevent someone from doing something, and here, something as noble as forming a group to fight evil. Even worse, what we are really talking about here is a TRADEMARK not a copyright, something the writers should have known.
Because you cannot have a copyright on an individual word. According to the Copyright Office, Circular 33:
Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words.
Examples of names, titles, or short phrases that do not contain a sufficient amount of creativity to support a claim in copyright include
- The name of an individual (including pseudonyms, pen names, or stage names)
- The title or subtitle of a work, such as a book, a song, or a pictorial, graphic, or sculptural work
- The name of a business or organization
- The name of a band or performing group
- The name of a product or service
- A domain name or URL
- The name of a character
- Catchwords or catchphrases
- Mottos, slogans, or other short expressions
So, no matter how you slice it, Sam Wilson could not have obtained a copyright on the word “Avengers.” He would have to have obtained a trademark. And the Patent and Trademark Office is a lot more stringent, some would say picky, than the Copyright Office.
Further sending this joke down the rabbit hole of no return is the question of whether a band of superheroes could obtain a trademark in the first place. If they are performing a service, what kind of service might that be? I would love to hear a Trademark Examiner’s opinion on that.
Next, the final coup de grace for this attempt at legal humor is that having the Thunderbolts call themselves the “AVENGERZ” instead of the “AVENGERS” would make no difference whatsoever, as they would both be identifying as “Superhero Groups” if such a category even existed. Under the trademark law, words that are pronounced the same are treated as being identical, even though they are spelled differently. So, calling your soft drink “KOKA-KOLA” does not escape infringing the “COCA-COLA” Trademark.
Adding to the puzzlement is that Marvel movies are created by Disney, who have never been shy about aggressively enforcing their copyright and trademarks. So, amongst the director, two screenwriters and the Disney legal department, no one detected this mis-statement of copyright law, one that has the effect to undermine the public’s perception of the purpose and usefulness of copyright in general.
C’mon, Mickey. You can do better.