2000: Flex Mentallo: Parody Can Protect Obvious Copying of a Character

A Legal Comparison of Charles Atlas Ads and Flex Mentallo

Charles Atlas, Ltd. v. DC Comics, Inc., 112 F. Supp. 2d 330, 331 (S.D.N.Y. 2000)


Charles Atlas sued DC Comics for its clear copying of the famous "Hero of the Beach" advertisement, where a skinny kid gets revenge on his sand-kicking tormentor by developing a muscular physique using the Atlas bodybuilding courses.1 DC Comics used a copying of the advertisement as the origin for its new hero Flex Mentallo in the pages of their comics Doom Patrol and the subsequent Flex Mentallo.2 Since the advertisement was not protected by copyright, Atlas sued on a trademark theory.3 The court noted that DC Comics "replicate[d] key elements of the artwork and dialogue," including layout, costume, and the phrase "Hero of the Beach."4

In spite of the "obvious visual resemblance,"5 there was an equally obvious parody. Thus, the application of the Lanham Act was construed narrowly, balancing the public interest in free expression against the public interest in avoiding consumer confusion.6 DC Comics had expressly tried to copy the Atlas characters for its purposes, and the court simply accepted the substantial similarity between Flex Mentallo and Mac as "indisputable."7 The court's analysis was strongly influenced by DC Comics' intent behind its copying.8 In spite of the ultimate ruling that the expression was protected as parody,9 the intent to copy made a finding of copying that much more compelling.10

NCsoft and Cryptic would not likely be able to avail themselves of a fair use defense on the grounds of parody.11 Their attempt to create a world of superheroes is sincere and is not critical in any way. There may be other fair use arguments, but as discussed later in this note, they will not likely succeed.12


1  See Charles Atlas, Ltd. v. DC Comics, Inc., 112 F. Supp. 2d 330, 331 (S.D.N.Y. 2000); see also Gene Kannenberg, Jr., The Ad That Made an Icon Out of Mac, Hogan's Alley, http://www.cagle.com/hogan/features/atlas.asp (last visited Dec. 3, 2005) (detailing the history and incarnations of the Atlas advertisement and its parodies).

2  See Atlas, 112 F. Supp. 2d at 332. Compare, e.g., Hey SKINNY! . . . Yer Ribs are Showing!, Detective Comics 182, at Inside Back Cover (Nat'l Comics Publ'ns Apr. 1952) and Charles Atlas, Our Museum, http://charlesatlas.com/classicads2.htm (last visited Jan. 19, 2006) with, Grant Morrison, Mike Dringenberg, Doug Hazlewood & Daniel Vozzo, Musclebound, Doom Patrol (Vol. 3) 42, at 5 (DC Comics Mar. 1991). See also Grant Morrison, Frank Quitely & Tom McCraw, After the Fact, Part One: Flowery Atomic Heart, Flex Mentallo 1 (DC Comics June 1996).

3  See Atlas, 112 F. Supp. 2d at 333.

4  Atlas was troubled that DC Comics' advertisement, which ended with the newly muscular Mac punching the other boy for being a bully, was turned into a scenario with the newly muscular character punching the girl in the face for being a shallow tramp. See id. at 332. For further comparison of the Atlas advertisement and Flex Mentallo's origin, see below.

5  See id.

6  See id. at 337.

7  See id. at 332. The court does, however, note that the muscular man in leopard-skin trunks is not exclusive to Atlas as much as it describes Tarzan, challenging the originality of the Atlas character. See id. at 341 n.16.

8  See id. at 340.

9  Id. at 340-41.

10 Had the work been protected by copyright, the result would not likely have been different.

11 "Modern dictionaries accordingly describe a parody as a 'literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,'" Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1172 (quoting American Heritage Dictionary 1317 (3d ed. 1992)). City of Heroes is not attempting to ridicule superhero culture but to embrace and profit from it. See Ruling on Marvel's Motion to Dismiss Counterclaims, supra note 81, at 1-2.

12          See infra Part I.C.




Atlas 1938

Atlas 1940s

Atlas 1943

Atlas 1947

Atlas 2001







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