Judge Hand in the Land of Superheroes

I was intrigued by the opening of an essay by Peter Coogan in A Comics Studies Reader, just published by the University Press of Mississippi. The book says this article was excerpted from Coogan's book Superhero: The Secret Origin of a Genre, which is less widely available--perhaps because it comes from a publisher called Monkeybrain Books. (Just a hunch.)

The essay starts this way (at least as the Reader presents it):

In his 1952 ruling that Wonder Man copied and infringed upon Superman, Judge Learned Hand provided a succinct definition for the superhero. The characteristics of mission, powers, and identity are central to Hand's determination that Wonder Man copied Superman.

Legal scholars often call Hand the greatest American jurist never to serve on the Supreme Court. He was especially influential in defining the law of intellectual property, a topic that came up a lot in his New York circuit. The thought that Hand had a hand in providing a legal definition of a superhero--on the level of circuit-court precedent--was intriguing.

But the date nagged at me; the Wonder Man lawsuit, I recalled, occurred early in the history of superhero comics. And when I looked into this statement further, it turned out to be wrong in other ways. It mixes up two separate suits involving Superman, misstates Hand's role, and reads too much into the pertinent ruling.

The first suit was filed in 1939 by DC Comics soon after Fox Comics published the first Wonder Man story, commissioned from Will Eisner and his studio. DC claimed that the story infringed on its copyrights for the early Superman stories. Fox responded that both characters were based on older, more general heroic archetypes, so there was no copyright. Don Markstein's Toonopedia describes the proceedings this way: "Fox carefully instructed Eisner on how to testify. Instead, Eisner told the truth," which was that Fox had indeed asked him to come up with a hero as much like Superman as possible.

Judge John M. Woolsey ruled in favor of DC, and Fox appealed. In 1940, a panel of three judges upheld the decision. One of those circuit-court judges was Learned Hand. But the judge who wrote that 1940 decision was actually Learned's cousin, Augustus Noble Hand.

Learned Hand returned to the field of superhero law in 1952, at the end of a lawsuit between DC and Fawcett over whether a more successful comic-book hero, Captain Marvel, infringed on the Superman copyright. A lower court had ruled that the Big Cheese would have done so except that DC had made a legal blunder in not registering some Superman comic strips with the US Copyright Office. Hand reversed that decision to declare that Captain Marvel was a copyright infringement anyway.

So, to return to the quotation above, the Wonder Man suit was in 1939-40, not 1952, and Learned Hand didn't write the decision. Which brings me to the final point: that decision really didn't address what defines a superhero.

The judges were ruling on a narrow question: Was the Wonder Man story in Wonder Comics, #1, an infringement on DC's copyrights for Action Comics, #1-12, featuring the Man of Steel? They saw several points of similarity:

The attributes and antics of "Superman" and "Wonderman" are closely similar. Each at times conceals his strength beneath ordinary clothing but after removing his cloak stands revealed in full panoply in a skintight acrobatic costume. The only real difference between them is that "Superman" wears a blue uniform and "Wonderman" a red one.

Each is termed the champion of the oppressed. Each is shown running toward a full moon "off into the night", and each is shown crushing a gun in his powerful hands. "Superman" is pictured as stopping a bullet with his person and "Wonderman" as arresting and throwing back shells. Each is depicted as shot at by three men, yet as wholly impervious to the missiles that strike him.

"Superman" is shown as leaping over a twenty story building, and "Wonderman" as leaping from building to building. "Superman" and "Wonderman" are each endowed with sufficient strength to rip open a steel door. Each is described as being the strongest man in the world and each as battling against "evil and injustice."

If those traits actually defined a superhero, then comic-book heroes who don't run toward a full moon, who are shot at by more or less than three men, or who have powers other than being the strongest man in the world wouldn't qualify. And the ruling didn't touch on other qualities Coogan's essay says are distinctive ingredients of a superhero, such as a "codename and iconic costume, which typically express his biography, characters, powers, or origin."

So the essay opening that intrigued me instead reinforced my feeling that research in this field needs to be more rigorous and less wishful. Learned Hand's contribution to the definition of a superhero is as much a myth as Elvis Presley's imitation of Captain Marvel, Jr., or DC planning to cancel Batman in the early 1960s.