This article is inspired by the many mentions on this site of Star Wars, Marvel, Disney and how their SJW leanings may be hurting their business. I have a theory that centers on trademark and copyright law about how in the cases of Marvel many of these crazy SJW stunts are actually evidence of Disney playing the long game and in the case of other properties such as Star Wars and The Muppets show that the company is largely being propelled by a few divisions while the rest coasts or bumbles around aimlessly.
I will start with a basic and not at all legally sound explanation of trademarks and copyrights. Trademarks are basically legal claims towards branding, brand names and mascots can be trademarked in perpetuity as long as they remain active. This can be confusing because characters can have works that exist in the public domain such as certain books or films but still be trademarked characters. This is possible because the copyright of the work which features that character can expire without the characters trademark expiring allowing that particular book or film to be reproduced for free while other uses of that character would still be protected by trademark or copyright.
Copyright is the other half of the equation and the concept is pretty clear from the term, it is the right to copy something. Copyright protects specific works rather than brands the way trademarks do. The original post colonial copyright in the United States was 14 years with the option to renew for another 14 years; by the early 20th century this had expanded to 28 years with an option for a renewal of another 28 years. In 1976, this was expanded to 75 years for corporate owned works or the life of the author plus 50 years, and in 1998–with a major push from Disney–it was expanded to 120 years after creation or 95 years after publication for corporate works or the life of the author plus 70 years.
The impact copyright can have on media franchises can get very complicated. A great example of this is the Wizard of Oz franchise. Wizard of Oz started out as a media franchise in the early 20th century with books, plays and silent films but it is the 1939 film that has become the definitive version in the minds of the general public. The original wave of books, plays and silent films are all in the public domain which means free of copyright but the 1939 film is still under copyright.
There are distinct elements to the 1939 film such as songs, plot points and design elements such as the ruby slippers that are not public domain. The shoes were originally silver but were changed to red to showcase the then still novel format of technicolor film. The books status as public domain allows anyone to create a sequel or new interpretation of Wizard of Oz but the copyright protecting the distinctive elements of the definitive version along with the lack of a young Judy Garlands has prevented any of these from becoming seen as legitimate entries of the franchise, including two attempts by Disney. The extension of copyrights benefits almost every media company but I would argue that this is a major element of Disney’s business strategy and is used to add value to their merchandising and theme park divisions. The affect of this is most notable in the Disney Princess franchise which earns Disney millions from trademarked versions of public domain characters. It is also used recently in their live action film division through the remakes of their animated films.
The deeper use of the ins and outs of copyright laws hasn’t really expanded to companies they have purchased, such as Pixar and Lucasfilms which is responsible for Star Wars and allegedly more Indiana Jones. The exception to that I would say is Marvel. I think the difference is because of the age of Marvel places much more of the companies value closer to entering public domain. Marvel started in the late ’30s with characters such as Captain America, Sub-Mariner and other members of The All Winners Squad with the majority of Marvels most famous characters from the ’60s or ’70s. Marvel began their version of using the ruby slipper like leverage before they were bought by Disney and it has accelerated since then. I think that a major reason Marvel even still publishes comics is to strengthen their copyrights covering more and more situations making it harder and harder to write a story using their characters without infringing on a copyright. Evidence of this is how their publishing strategy changed after the success of the X-men and Spider-man films.
Marvel’s top property for decades was X-men to the point where often any book with an X on it would sell better than most of The Avengers solo books. Marvel began to shift the focus of their comics away from the X-men with events such as House of M removing power from many mutants and towards the Avengers adding Spider-man and Wolverine to the line up. This was done without any certainty that the sales of the comics would be maintained. Before this the Avengers were a team of former A-listers who had been surpassed in popularity by Spiderman and the X-men who previously were too valuable to be in The Avengers. This shift took place because the film rights to many of their characters were no longer owned by Marvel, because they were sold off during a bankruptcy. The Avengers film rights were the ones that didn’t sell and adding their star characters to the franchise helped move the focus to the avengers.
Another example is the comics recent focus on The Inhumans. Marvel intended to replace the mutants with the inhumans because of their loss of the film rights. They did things like making some of the recently depowered mutants inhumans, retconning characters who were assumed-but-not-certain-mutants as mutants, and even in a few cases retconning characters who had previously been retconned to be mutants to cash in on the xmen’s popularity. The Inhumans before this were supporting characters in Fantastic Four who had never sustained an ongoing series more than a couple years. They also had major event series around this time which connected them with all the other ongoing comics. Marvel’s emphasis was no longer on selling comics but using the comics to lay down more copyright, and retrain and test what people think of the characters to prep for future movies and tv shows. They do something similar in the cartoons which feature upcoming characters such as Nova and Amadeus Cho.
I also believe that much of their SJW recasting of their characters is Marvel woke-proofing their franchises. Peter Parker’s adventures will eventually become public domain even if eventually is a long time from now (especially if it counts as 70 years after Stan Lee’s death) but Marvel can keep the trademark of Spider-Man in perpetuity and they just have to change who the public thinks of as Spider-man. They have tried this with several characters but the only major character they have made significant progress with is Spider-man and the upcoming animated film starring Miles Morales (a half black half Hispanic alternate universe character) Into the Spiderverse will reinforce this.