Protecting Superhero Intellectual Property Across Different Media

It comes as no surprise that superhero movies have not only become a genre, but they have also come to dominate the box office. In 2021, it was estimated that superhero movies generated almost 1.44 billion dollars in revenue in Canada and the United States alone. Yet, with dominance also comes fatigue. In a survey conducted in the United States, the number of moviegoers tiring of superhero movies grew steadily from 17 to 23 percent during the period of 2018-2021.

Superhero Movies and Intellectual Property

With the utter dominance of the box office has also come growing criticism of the genre. In Hollywood, some believe these movies have become formulaic and overly dependent on the intellectual property derived from numerous comic books. These critics argue these movies are solely driven by the intellectual property they reflect. In other words, moviegoers go to see “Thor” regardless of who dons the cape.

Famed director Quentin Taratino voiced this opinion recently, stating the “Marvel-ization” of Hollywood has led to a number of previously unknown actors becoming mega movie superstars. While their fame was not necessarily undeserved, Taratino stated “it’s these franchise characters that become a star.”

Famed actor Robert Downey Jr. retorted with his own view on the matter. Downey Jr., famous for his portrayal of Marvel superhero, Ironman, disagreed with Taratino’s assessment. In a recent interview, Downey Jr. stated “IP’s only as good as the human talent you get to represent it….” He went on to explain how IP can be a “double-edged sword” because there are times where IP takes “precedence over principle and personality.”

Do Superhero Actors Become Famous for Their Acting or the IP They Portray?

This brings us to the question, does the IP make the man or does the man make the IP? Arguably, both sides have compelling arguments. On one hand, the source material of Ironman (the comic books) holds a distinct copyright regarding the characteristics, origin story, costume design, etc. These comic book heroes also have distinctive personalities that have made them recognizable to fans across the globe. On the other hand, the portrayal of Ironman on the big screen requires substantial input from the actor. In this case, Downey Jr. had full artistic license to decide how he would bring Ironman to the big screen. In the moviegoers’ eyes, Downey Jr. may as well be synonymous with Ironman. Many even credit Downey Jr.’s portrayal as invigorating the box office and making superhero movies popular and viable in the first place.

Then, while it follows that Downey Jr.’s performance also has its own distinctive copyright (in the form of the film’s) the question is: did Downey Jr.’s execution of a role, which already has rich source material, significantly increase the value of Ironman as a commodity and protected work? Further, would there have been a significant difference (i.e., decrease) in value if a different actor had been involved? And, if an actor’s performance fails to resonate with a crowd, are there negative ramifications for the original work’s future progeny?

The answers to these questions are never readily apparent because a myriad of factors must also be taken into account for such calculus. Thus, it behooves counsel to consider these conflicting views and copyright issues when representing clients in the entertainment industry. As distinctive characters from protected works increasingly become source material for television shows, movies, and web series, counsel should consider these implications in contract negotiations, licensing agreements, and the overall valuation of the work, etc. 

Key Takeaways on Superheroes, Movies, and IP Protection

There are diametrically opposed views on the impact of source material upon the portrayal of recognizable characters from protected works. These conflicting views inform attorneys that:

• Some industry players believe that the strength of IP alone can make or break a movie, regardless of the actor;

• Others believe that the actor’s portrayal is critical to success and can directly result in increased value of the source material; and

• Each separately protected work reciprocally affects the value of the other, this understanding can be useful in future contract negotiations, valuation of protected works, and potential licensing opportunities.

For more information about copyright licensing and protection, see our Software Protection & Copyright Services and Industry Focused Legal Solutions pages.