On the left, Black Nova, the character created and published independently by Marv Wolfman in 1967. In the middle, The Man Called Nova, the character published by Marvel Comics in 1976, as written by its then-employee Marv Wolfman. The decision in In re: Marvel Entertainment Group, Inc, 254 B.R. 817, 820–22 (D.C. De. 2000) whether or not they are the same character. On the right, a Nova character as depicted in the recent Marvel Studios blockbuster film “Guardians of the Galaxy.”
There is an assumption among comic book fans that Marvel will continue to use the Nova characters in future movies, perhaps even as a title character. But will Marv Wolfman, the creator of Nova, get his due?
Marv Wolfman’s creations get tangled up in Marvel’s bankruptcy
Marvel is now a very successful entertainment company, but in earlier decades, it had financial troubles that led it to several bankruptcy proceedings. In its 1996 bankruptcy filing, Marvel had to list its assets, which included the various characters in its library. Marv Wolfman had created many of those characters when he worked there in the 1970s, and wanted to reclaim them under various legal theories. In particular, he claimed that he had created Nova prior to coming to Marvel as Black Nova, had modified the character at Marvel, and thus under his contract and the operation of copyright law, he was the rightful owner of the character, not Marvel or its creditors. Marvel and its creditors fought him on it, claiming that Nova had been created while Wolfman was under contract with Marvel, and that Black Nova was an entirely different character. So the judge had to decide: when Wolfman introduced Nova at Marvel in 1976, was it an existing character or a new character?
Left: the cover of Black Nova’s first appearance in “Super Adventures” in 1967. Right: the cover of Nova’s first appearance at Marvel in 1976.
When is a character created?
The court was guided by the so-called Siegel rule. Since Jerry Siegel and Jerome Shuster had created Superman before being employed by DC Comics, the character was not a work made for hire. Siegel v. Nat’l Periodical Publications, Inc., 508 F.2d 909 (2d Cir. 1974). The only changes made to the character once they got hired by DC Comics were not substantial, and the court found it was clear that the Superman character was fully formed prior to coming to DC Comics. Wolfman relied on the Siegel rule, but the pre-creation of Nova is not as clear as it is for Superman. When comparing Black Nova and Nova, the court could have used standard infringement analysis, looking for substantial similarity between the characters. Instead, it looked at the differences. 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. The analysis would have been further illuminated by the recent Sherlock Holmes decision, which rejected the “doctrine of continuing creation.” That case found that the first publication of a Sherlock Holmes story established the character, rejecting the author’s estate’s argument that it wasn’t until the last Holmes story was published that the character was completely created.
Black Nova v. The Man Called Nova
With the pictures below, you can put together your own thoughts. The black and white pictures are from the 1967 pre-Marvel publication, and the color pictures are from the 1976 Marvel publications.
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. I also wrote about this subject in 2005, an excerpt of which is here.
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