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 During Marvel’s bankruptcy proceeding, one of their former writers and editors Marv Wolfman filed a pro se proof of claim asserting ownership over many Marvel characters, including "The Man Called Nova." Wolfman had previously published a character called "Black Nova" whom he claimed was the same as the Nova character he had introduced at Marvel. Black Nova appeared in two 1967 issues of Wolfman's fan-magazine ("fanzine") "Super Adventures," and The Man Called Nova was introduced by Wolfman in an eponymous Marvel comic book in 1976. |
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 The very first appearance
of Black Nova, from Marv Wolfman's Fanzine
SUPER ADVENTURES 7 (Marvin Wolfman, 1967) |
  Images from the first two
appearances of The Man Called Nova,
from THE MAN CALLED NOVA 1 and 2 (Marvel Comics Group, Sep. and Oct. 1976) |
Wolfman claimed Nova was thus not created under the work-for-hire agreements he had signed with Marvel and that he owned the character. Although there was contractual evidence that Wolfman had no claim, the court compared Black Nova with The Man Called Nova to see if the preexisting character was “ready for publication” and thus was not an original contribution under the Marvel work-for-hire agreement. Under this theory, if Black Nova and The Man Called Nova were sufficiently similar, they would fall under the “Siegel exception” and Wolfman would own rights in both. If they were sufficiently different, then the character introduced to Marvel was new and was created under a work-for-hire agreement, which would deny Wolfman any rights to the character. "[C]iting Siegel v. National Periodical Publications, Inc., 508 F.2d 909 (2d Cir. 1974), Wolfman contends that because he developed Nova, Janus, Skull the Slayer, Blade, and Deacon Frost prior to his employment with Marvel, the characters were not made at Marvel’s instance and expense," thus were not works for hire, and were properly owned by him and not Marvel. |
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| Compare Len Wein,
Marv Wolfman, Who Can Defeat a God?,
SUPER ADVENTURES
7 (Marvin Wolfman, 1967) (the images on the left in black and
white) with,
e.g., Marv Wolfman, John Buscema, Joe
Sinnott & Michele Wolfman, Nova,
THE MAN CALLED NOVA
1 (Marvel
Comics Group, Sep. 1976) (the images on the right in color), reprinted in MARV WOLFMAN
ET AL., ESSENTIAL
NOVA VOLUME ONE (Marvel
Comics 2006).
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The court establishes six factors for finding similarity between superheroes: name, powers, costume, background story, personality, and mission. The names and costumes were clearly similar. However the court found that the background stories and powers were different, and that Black Nova had no clearly defined mission at all. There was no analysis of the personalities. This led the court to find in Marvel's favor—that The Man Called Nova was sufficiently different from Black Nova to be considered an original and non-infringing character. The result of this analysis seems to be based on a desire to settle the bankruptcy case without the Wolfman complication, rather than on whether the two characters actually were substantially the same. |
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The court's finding that Black Nova and The Man Called Nova were not substantially similar is indefensible to the point of absurdity. The degree of character development required in a superhero case is a considerably lower obstacle as articulated by Judge Posner in Gaiman v. McFarlane. However, the case provides a good framework for determining which features are appropriate for comparison of superheroes, in particular, power combinations. |
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More has been written about Black
Nova by Doug Smith, Genesis Of Nova:
The Evolution of Marvel’s Ultimate Super-Hero!, NOVA'S
PRIME PAGE, http://home.mchsi.com/~nova64/star.htm.
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court’s analysis ignores the fact that with
the thousands of superhero and supervillain properties, the
combinations of powers are so widely reproduced in comic book practice
that it is almost ensured that there will be no exclusive use of
particular power combinations, no matter how innovative. |
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  JUSTICE LEAGUE OF AMERICA 31 (DC Comics, Nov. 1964)  |
The early Justice League of
America charter acknowledges the frequency
of power replication by forbidding duplication of powers among its
membership, although the initial reason for denying membership to
Hawkgirl was based on a "one new member at a time" clause. See Garnder Fox, Mike Sekowsky
& Bernard Sachs, Riddle of the
Runaway Room!, JUSTICE LEAGUE OF AMERICA
31 (DC Comics, Nov. 1964), reprinted
in JUSTICE LEAGUE OF AMERICA
ARCHIVES: VOLUME FIVE
(DC Comics 1999). For readers concerned with comic book minutiae, the duplication clause was subsequently changed under duress to allow membership to Hawkman’s identically powered wife Hawkgirl. See Steve Englehart, Dick Dillin, Frank McLaughlin & Anthony Tollin, Inner Mission!, JUSTICE LEAGUE OF AMERICA 146 (DC Comics, Sep. 1977). The whole process is further summarized at Scott Tipton, Comics 101: Final Recruits – The Justice League Of America, Part IV, MOVIE POOP SHOOT, http://www.moviepoopshoot.com/comics101/101.html (last visited Dec. 5, 2005)). |
  JUSTICE LEAGUE
OF AMERICA 146 (DC Comics, Sep. 1977)
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The industry has tolerated power duplication where other elements are different, like costume and name. However, duplication of other elements is not excused by power differentiation, so powers should not be a significant factor in superhero analysis. |
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| Black Nova,
Super Adventures TM and (c) Marvin
Wolfman |
Nova TM and (c) Marvel Entertainment, Inc. All Rights Reserved. Used with Permission. |
| Justice
League of America, Hawkman, Hawkgirl, Atom, Superman, Red Tornado TM
and (c) DC Comics. All Rights Reserved. Used with
Permission. This site is a supplement to an article in a scholarly legal journal for educational use only. No affiliation or endorsement is actual or implied by the use of these images Special thanks to Marv Wolfman for telling so many great stories, and Doug Smith for hooking me up with a copy of Super Adventures #7 Terms and Conditions of Use |
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