Diversity and overlapping IP rights in the comic world

By Franziska Kaiser, Department for Economics and Data Analytics, WIPO

Who is your favorite comic superhero? Batman? Wonder Woman? Black Panther? Comic superheroes are an integral part of contemporary pop culture and a multi-billion dollar global industry. New research by WIPO reveals that, over the last 40 years, Batman, Dracula and Spiderman are the top three most-used franchise characters for movies and video games in the United States, the world’s biggest media market. Franchises are derivative works which build on characters developed in original creative works for use in a variety of mediums.

The study, Batman forever? The economics of overlapping rights, explores how comic characters are protected under both copyright law (commonly used to protect creative works) and trademark law and what this means in economic and policy terms. For example, from a legal perspective, the overlapping of IP rights which arise from the use of both copyright and trademark law to protect comic characters is sometimes considered dysfunctional as rules laid out in both legal frameworks are not always consistent. And from an economic perspective, registering a comic character as a trademark can increase transaction costs for cross-media uses of characters, but may also help build the character’s brand across multiple sales channels.

The WIPO study, which analyzes the use of comic characters in the book, movie and video game publishing industries, explores how overlapping copyright and trademark rights affect the franchising of comic characters. Are they expanding opportunities for character use and media franchising or are they reducing them and causing a dip in content sales?

According to the study, the comic character Batman has seen the most revivals in franchise media (i.e. movies and video games). Since 1980, the character has appeared in 73 movies and 84 video games, generating more than USD 2.8 billion in movie and video game sales. Similarly, The Avengers, Captain America, Black Widow, and Hulk have evolved beyond comic books to become hugely successful franchises with top grossing movies and video games. Given the transmedia appeal of comic characters, when analyzing reuse of copyrighted content for franchising purposes, it is important to consider the different media platforms and formats from which revenues are generated. Although a given comic character may appear in fewer films or video games than others, franchises with which it is associated may still generate higher sales. WIPO’s research points in this direction.

Pros and cons of overlapping rights frameworks

Batman forever? The economics of overlapping rights builds on an extensive matched data set from the crowdsourced Grand Comics and TM Link databases. The authors collected data on the reuse in film and video games of almost 2,000 copyright-protected comic characters between 1980 and 2019 to analyze whether complementary US trademark registration helped or hampered any corresponding media franchising and the implications of this in economic and policy terms.

Over the last 40 years, Batman, Dracula and Spiderman are the top three most-used franchise characters for movies and video games in the United States, the world’s biggest media market.

More specifically, the WIPO study provides empirical evidence that trademark registrations affect franchises in different ways. Trademark registration boosts the average number of movie franchises for the same character by up to 15 percent per year, but does not lead to a systematic increase in sales and box office revenues. The study suggests that trademark protection results in such an increase because it allows for more effective branding and merchandising, enabling the owners of comic characters to take advantage of the growing popularity of franchise characters. Trademark rights on top of copyright protection may also open up new financing opportunities as they can sometimes be used to back investments in new movie franchises.

However, for video games, overlapping rights may deter production companies from integrating comic characters into new video game franchises  and may thereby reduce the diversity of characters appearing on gaming screens. This could be related to higher licensing and transaction costs, especially if the cost of copyright and trademark licenses takes up a bigger portion of the total production budget of a video game (which is generally much lower than for making a movie). However, fewer options to find a comic character could also lead to higher average prices and may help boost sales revenues once trademarks are registered and brand popularity increases. For video games, the data predict an average 75 percent increase in sales revenue with a trademark registration.

Over the last decade, the superhero universe has become more diverse, with Black Panther and Black Widow now featuring among the official top ten.

From a policy perspective, the impact of overlapping IP rights really depends on the type of media franchise the character enters; each deserving separate consideration. As noted above, the WIPO study shows that overlapping copyright and trademark rights can block some characters from appearing in franchise video games. At the same time, franchises around fewer characters are generating higher sales in that sector. However, if competition between new franchises is limited, there is a risk that sales and IP rights become increasingly concentrated. It follows that policies around overlapping rights that support the development of a variety of content may also help keep markets competitive. For film franchises, overlapping rights seem to have a different economic impact, because of the financing and merchandising opportunities they might help to create in that sector.

Where are the female comic creators?

Drawing on global data by the Lambiek Comiclopedia, the authors of the WIPO study have also tracked the participation of female cartoonists in the industry from the early 20^th century.

A brief look at the history of the comic industry in the United States reveals a number of stand-out female cartoonists. These include figures like Nell Brinkley, the “Queen of Comics,” and creator of the Brinkley Girl (circa 1907); Jackie Ormes, the first successful African-American female cartoonist (1940s); and Barbara Brandon-Croft, the first nationally syndicated African-American female cartoonist (1990s). The global data suggest, however, that labor markets for comic creators were slow to pick up on gender and ethnic diversity trends in society. The data reveal persistent low levels of participation by women in the creation of comics for much of the 20^th century. In the United States and the rest of the world, women’s participation in the industry declined in the post-war years. And of the comic designers born in the 1950s and 1960s, only 10 percent were women.

Only in the late 1970s, with the rising popularity of feminism, did women’s participation in the industry begin to increase. Since then, the global community of comic creators has steadily become more diverse. Today, in the United States, more than 50 percent of cartoon creators between the ages of 30 and 40 are women. Globally, women represent around 40 percent of cartoon creators in this age group, reflecting a dramatic change in gender diversity in recent years.

Notwithstanding the recent success of comic superheroines, the diversity of characters in the comic universe remains limited.

A more inclusive world of comic heroes and heroines?

The rich data from the WIPO study make it possible to draw a detailed picture of franchise reuse per comic character and their evolution over the past 40 years. The data also help to identify the latest trends in gender and ethnic diversity among cartoon characters, which reflects, to some extent, the societal changes outlined above.

Over the last decade, the superhero universe has become more diverse, with Black Panther and Black Widow now featuring among the official top ten franchised heroes and heroines. Black Widow trails Batman as the second most used franchise character in video games. So far, the games in which she appears have generated global sales of USD 15.3 million.

In the past, major game sales were dominated by Star Wars’ heroes like Yoda, Luke Skywalker, and Darth Vader. By 2010, two female characters, Harley Quinn and Catwoman, which respectively have generated USD 31.3 million and USD 32.2 million in sales, started competing with Batman and Robin, which respectively have generated USD 108 million and USD 21.3 million in sales, for the top spot in video games.

Similar trends can be observed in franchise movies, with more heroines rising to the top ranking. Four female comic characters – Wonder Woman, Black Widow, Harley Quinn, and Lois Lane – feature among the top 15 characters used in movies since 2010.

The success of Wonder Woman may be attributable to the fact that at last, in 2017, an eponymous blockbuster was released. She is the only non-male comic character among the top three franchise characters in movies since 2015. Over the last decade, Wonder Woman alone has generated movie and video game sales of USD 418 million. She has, without doubt, shaken up the male-dominated comic universe!

Notwithstanding the recent success of comic superheroines, the diversity of characters in the comic universe in terms of gender and ethnic diversity remains limited. This is also true of the Avengers movies, the most successful comic franchise movies ever produced. Moreover, non-male comic characters are often represented in outmoded stereotypical ways, suggesting that the comic world still has some way to go in terms of gender equality and has significant scope to expand its universe with more ethnically diverse characters.