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Agent: America and Litigation

Sometimes the process of creating derivative comics involves little more than innocent fun and the satisfaction of nostalgic urges by audiences who miss a departed period of comics publishing. However, some occasions mark it as a deadly serious business. For instance, when DC Comics slew Fawcett Comics through its lawsuit over the similarities between Superman and Captain Marvel, almost no one involved would have described the proceedings our outcome as "fun."

Rob Liefeld found this out when Marvel took him to court over a character named "Agent: America," a figure who had a great deal in common with Captain America.

Living the Fanboy Dream

Liefeld, in some ways, generates a disproportionate amount of ill-will by having received a great deal of good fortune. He managed to break into comics at just the right time to become one of the founders of Image Comics and, for a time, a celebrity in his own right. He managed to forge a very idiosyncratic art style in an era which placed a premium on just such signature approaches to comics.

Then, in the dark days when Marvel attempted, for a short span, to reinvent itself as Image Comics, junior, he managed to grab the dual plum assignments of Avengers and Captain America in the "Heroes Reborn" line of books.

In the middle of this, the light of Liefeld's celebrity began to dim as Marvel, then enmeshed in litigation centering around the collapse of that company's market value, realized that Liefeld's books had failed to sell as well as they expected. Marvel released Liefeld from both assignments.

Making Do with Substitutes

Liefeld, however, did not want to give up so easily on working on pieces like Captain America. Since he had managed to sail under the litigious radar on pieces like Supreme, a work becoming closer and closer to its source material the more stories Alan Moore wrote for it, Liefeld may not have recognized that he chose exactly the wrong place and time to begin a book that so obviously owed conceptually to one from whose creation Marvel Comics had so recently released him.

Liefeld created Agent: America, and Marvel took him to court. The similarities more or less implicated Liefeld as the red-handed perpetrator of creating a derivative character. Agent: America centered around patriotic themes, carried a shield, had a sidekick very similar to the female Bucky he had created for Captain America during his short run on that title, and even strove against a villain with a great deal in common with the Red Skull.

Going to Court

If Liefeld's decision to create a derivative character reflective of Captain America at exactly the wrong time represented naivete on the part of that young cartoonist, his actions during litigation suggested that Liefeld had some intelligence and imagination in figuring how to answer Marvel's legal action.

Amid the business of the lawsuit, Liefeld cannily made a gamble that may have saved some of the day. He purchased the rights to the Simon and Kirby creation Fighting American, another creation that definitely owed to the antecedent Simon / Kirby creation Captain America. Then Liefeld fused the Fighting American concept to his Agent: America. At that point, he could claim that he indeed owned a character that he had purchased, and that this character shared key traits with Marvel's Captain America.

Many of the traits that Agent: America held in common with his prototype, Captain America, after all, also belonged to Fighting American. Liefeld's success or failure in the case then depended on making it seem relevant to a judge, since his publication of his own derivative character predated his purchase of the rights to the Simon / Kirby hero. Much, here, depended on concealing the dates of the transaction; in a sense, Liefeld had kited a copyright as one might kite a check.

The Decision

The court decision left both sides claiming victory, though one might note that the strength of Marvel's case made it somewhat unlikely that Liefeld had, indeed, carried the day in this lawsuit.

Perhaps Liefeld did have to produce some money, but he came away with the syncretic property he had created by fusing his derivative creation to the purchased Fighting American concept.

However, some legal restrictions did attach to Liefeld and his ability to publish this new, syncretic version of the Fighting American. Terms of the settlement included seemingly pointless restrictions on the manner in which Liefeld (or his agents) could depict the character's costuming; in some detail, going so far as prescriptions of the color of cuffs, the decision constrained Agent: America / Fighting American's costume. Other restrictions made more sense: Liefeld's property could carry a shield, but he could not throw it as a weapon.

Did Liefeld lose on this one, or did he get away with a great deal? The politics of the aesthetic loyalties of comics fans and comics historians tends to distort matters involving controversial figures like Rob Liefeld. We might have to wait for a biography of the man, if a decent one ever appears.

The Object Lesson

Liefeld's previous success with Alan Moore's interpretation of Supreme, Liefeld's Superman knock-off, may have suggested to the cartoonist that he had more leeway in the design of derivative characters than comics publishers would actually allow him.

Some things clearly differed in the creation of Agent: America and Supreme. For instance, in Supreme's beginnings, his powers, but not his mythos, reflected the character's origins strongly. Only later would Alan Moore attach to the character a history that strongly implicated his roots. When Moore did graft a version of Superman backstory to Supreme, he centered on just those elements that John Byrne had scraped off the character in his mid-eighties redesign. Thus, Moore reworked Supreme into a version of Superman that DC essentially had abandoned.

In Agent: America's case, though, Liefeld did several things wrong. He didn't appropriate abandoned elements; more or less, Captain America doesn't have them, excepting his short history of anticommunism, a history stripped away by writers who couldn't see that any good could come out of objecting to communism. Captain America hadn't enjoyed the kind of revision that Superman had; Marvel's sole attempt at this involved the ill-fated "Heroes Return" project from which they had dismissed Liefeld in the first place. Thus, Liefeld attempted to recreate an active character, and attach to this character current details of that character's origin and mythos.

As Moore knew, and the creators of Image Comics' Big Bang Comics know, one risks less by recreating the versions of heroes as they existed in a previous generation. One avoids much of the risk of lawsuit, and furthermore does more to reach a target audience: Where a reader must pick between today's superhero and a copy of the superhero, he will most likely pick the original. Where a reader seeks yesterday's superhero, the tribute / derivative magazine often has a monopoly.

One may suppose that this entire ugly business left Liefeld considerably more cautious and almost certainly wiser. In his current, vastly reduced role in writing, art, and character design for his Awesome Comics line, one might not note any particular change; but, at the least, Liefeld can still sell occasional work to Marvel Comics. He managed to avoid chasing himself out of work-for-hire altogether.

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Email the author at ouzomandias@mailexcite.com.

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