The Patron Saint of Superheroes

A “super hero” is a “superhero” is a “super-hero.” It’s a trademarked term. Marvel and DC have owned it jointly since 1979. They argued that consumers associate the word with their products, and so any other company marketing a character as a superhero would be exploiting them.

That may have been true in 1979. Charlton Comics (they dropped out of the superhero comic book market in the late 70’s) called their superpowered do-gooders “Action Heroes.” It seems considerably less true after the emergence of other major comic book publishers, such as Dark Horse in 1986 and Image in 1992. Only in a legalistic sense are Hellboy, Spawn, and Michael Chabon’s The Escapist (Dark Horse published the comic book version) not superheroes.

My professional expertise is in literary analysis not law, but I do not expect Chevron and Gulf would have much luck barring other oil companies from using “gas station” on the grounds that Chevron and Gulf were the first to open ones. The term is used too generically now. Of course Marvel and DC can’t control generic use of “superhero” either. Other companies can call their characters “superheroes” within a text, just not in a title or an advertisement.

So someone tell me: Is Nostalgia Ventures following or breaking trademark law with the phrase “THE FIRST SUPERHERO” on the cover of their Doc Savage reprints? (This sounds like a job for those guys over at the “Law and the Multiverse” blog.)

Some dictionaries trace “superhero” to the early 60’s, fueling Marvel and DC’s claim since their Silver Age characters reinvented the genre then. But the word goes back much further. Popular wisdom has it originating shortly after 1938: since Superman established the hero type, imitations were dubbed “superheroes.” It’s a reasonable claim. Except that Joe Shuster used the term himself while sketching early drafts, describing Superman as “THE GREATEST SUPER-HERO OF ALL TIME!” years before he saw publication.

Pulp publishers Street and Smith advertised Doc Savage as a “SUPERMAN!” but in house they were referring to the Shadow and other mystery men as “superheroes” as early as 1932. Future DC publisher Harry Donnefeld launched Super-Detective magazine in 1934, but the prefix had been popular for at least a decade. Bruce Graeme opens his 1925 novel Blackshirt with a complaint: “A super-criminal—bah! It is all tommy-rot, this ‘super’ business.

The first published use of “super-hero” appears in Alan Bott’s 1917 Airman Outings. It was a complaint then too. Bott was objecting that members of Parliament were exaggerating the powers of British fighter pilots by calling them “the super-heroes of the war.”

The prefix had been circulating in variations on “ubermensch” for over a decade. Nietzsche made the word famous (or infamous), but he borrowed “ubermenschen” from Goethe’s Faust. The first English translator of Nietzsche’s Thus Spoke Zarathustra named his ubermensch “beyond-man.” The second went with “superman.” But he was only following George Barnard Shaw. His play Man and Superman introduced the word to English in 1903. And “super-heroes” soon followed.

So conventional wisdom is right. If you subtract 35 years and forget that it’s a different superman (Shaw had Don Juan in mind). By the time Jerry Siegel attached it to his hero, the word was everywhere. Type it into The New York Times archives, and you’ll find hundreds of listings.

Superman appeared most regularly on sports pages. While Jack Dempsy insisted that “It will take a superman to beat” boxer Tom Heeney, football stars Red Grange and Frank Johavac were both declared “Superman.” Babe Ruth was a “Baseball Superman,” as was Giants pitcher Red Ruffing, and golfer Cecil Leitch was a “superwoman of the links.”

Other Supermen leapt from the arts pages: dancer Michel Fokine was a “Superman of the toe,” actor Robert Loraine a “Superman of the Stage,” Stravinsky a “Superman of Jazz,” Schoenberg another musical “Superman,” and singer Enrico Caruso had the “lungs . . . of a superman.”

According to book reviews, any person worthy of a biography was by definition a superman: Napoleon, Charles II, Garibaldi, Genghis Khan, Cromwell. Ben Franklin was honored as a “Super-man” on his 217th birthday. Among living politicians, Woodrow Wilson, Franklin Roosevelt, and Mussolini were all repeatedly called or compared to supermen.

By 1938 the word was generic for any kind of excellence. Jerry Siegel wasn’t even the first author to apply it to a pulp hero. The honor goes to Edgar Rice Burrough, whose Tarzan is called a “superman” in his 1912 debut.

Using the word for a name today would be the modern equivalent of calling a character “Genius” or “Epitome.”

Or, better still, “Superhero.”

I doubt Marvel and DC’s lawyers mentioned any of this when presenting their trademark case. “Superhero” is the definition of a generic term. Their companies briefly capitalized on it, but they did not coin it, and its exclusive association with their products was temporary. It wasn’t the case for the thirty years before Action Comics #1, and it hasn’t been the case for the last thirty years either.

Tags: DC, George Barnard Shaw, Jerry Siegel, Marvel, Superman, trademark, ubermensch