Celebrating the Unpopular Arts

Blazing battle action, plus some questions: Fantastic Four Annual #4

The original Human Torch made his one-and-only Silver Age appearance battling Johnny Storm in Fantastic Four Annual #4. There are several aspects of the book that make it worth a blog post, but first let’s review the story.

In “The Torch That Was” by Stan Lee and Jack Kirby, the Mad Thinker is back. He’s looking to settle scores with Johnny Storm, having lost to him a couple of times in Johnny’s Strange Tales strip (he doesn’t say this outright but it’s a logical conclusion) and to that end he’s built himself the ultimate AI, Quasimodo, the Quasimotivational Destruct Organism β€”β€”and reactivated the original android Human Torch. We don’t know how the Thinker found the Torch but of course, miraculous predictions are his shtick. Nor do we learn what shut the android down in the first place; we wouldn’t find out until Steve Englehart worked the Human Torch into his backstory for the Vision in Avengers almost a decade later.

Confused by his resurrection, the Torch remembers only the destruction he caused after Professor Horton first activated him, not his subsequent heroism. When the Thinker to declare there can be only one β€” either the Human Torch kills Johnny or Quasimodo blows the android up real good β€” the Torch decides as he’s a destructive monster he might as well go along.

It’s a fun story with peak Kirby art on the fight scenes.Β 

Eventually, of course, Torch I’s innate decency comes to the fore and he turns on the Thinker at the cost of his own life (or so it seemed until Englehart’s Avengers run). Besides the story itself there are, as I said, other aspects of interest, starting with what might have been going on behind the scenes. The Human Torch’s creator, Carl Burgos, had been making noises about reclaiming the copyright but right after this issue came out he dropped his plans. As noted at the link, that’s led to the theory Marvel revived the Human Torch right before the copyright term expired, resetting the copyright clock and defanging Burgos’ suit before it began.

I don’t buy this. While trademark rights depend on continuous use of the mark, copyright doesn’t (I’m not a lawyer but I believe I’m on solid ground here). That’s why both Siegel and Shuter and Jack Kirby could file copyright lawsuits even though their characters were still in constant use. If I’m right, the timing of the Human Torch’s return might be complete coincidence. Perhaps Burgos got his copyright law wrong β€” lots of writers do β€” or he was reacting to something unrelated. I don’t know if anyone knows for sure.

Then there’s Quasimodo, a character I find surprisingly sympathetic. He has less to do with the Hunchback of Notre Dame than Pinocchio, because all he wants is to be a real boy.

As the story makes clear, Quasimodo is a less an agent of destruction than a slave, doing the Thinker’s will from fear of punishment.Collaborating isn’t heroic; unlike the Vision or the Silver Surfer or the android Human Torch in this story, Quasimodo never turns against his maker. In Quasimodo’s defense, he doesn’t have the Avengers or Alicia Masters prompting him to be a better person. Even though he’s promising more evildoing at the end of the story, it feels a little like a terrified dying man bargaining with God.While Marvel has a long history of reformed villains and deformed outcast heroes, that’s not the direction Stan and Jack took him. In the 1967 annual, the Silver Surfer discovers the computer and grants him life.The subsequent pages show, however, that Quasimodo loves to destroy things, forcing the Surfer to turn him into a statue. There’s no sign of this malevolence in his first appearance though it can’t be ruled out (not wanting to destroy on command isn’t the same as not wanting to destroy); there’s also no reason why he turns out ugly other than his name is Quasimodo. And of course, Stan Lee loved tormented cripple cliches. In any case, he’s remained a deformed fiend ever since.

The third aspect is how the story treats the original Torch as if he were an obscure character like Blue Diamond rather than one of Timely’s A-listers. Look at this early scene.Ben hasn’t heard of the first Torch at all. You’d think a scientist such as Mr. Fantastic would know all about Horton’s groundbreaking experiments in artificial life β€” an area Reed has dabbled in too β€” but nope; Reed clearly knows little more than his buddy. By contrast, when Cap shows up in Avengers #4, everyone’s heard of him and completely awed to meet him in the flesh; Strange Tales #114 establishes Johnny loved the old Captain America comic books (yes, Earth-616 had ’em).

The last time I read the annual I wondered if this was a slap at Burgos, a way to trivialize his Golden Age success. But then again, when Namor showed up in Fantastic Four #4, the story made him out to be equally obscure, someone Johnny only remembers from Sue mentioning him once.

Perhaps it’s simply that as Jack Kirby co-created Cap, he had more affection for him than the Sub-Mariner or the Torch. Or that Marvel didn’t care as much about the Golden Age as DC did. Even Roy Thomas, a massive Golden Age fan, portrayed most of Marvel’s Golden Age characters as fictional when Rick Jones recreates them in Avengers #97 (though Thomas did use Red Raven in an earlier X-Men story).As so often happens I have no firm answers but I did enjoy speculating.

#SFWApro. All art by Kirby except Gil Kane’s Avengers cover.


  1. Jeff Nettleton

    Not a lawyer; but, there is a misconception about the copyright. prior to the 1976 revision to the copyright laws, a copyright expired after 28 years. it didn’t reset. It just expired. However, there was a provision in the 1909 law, which was still enforce at this point, that required copyright notices to be affixed. Comic book publishers could be sloppy about such things and it did lead to some works entering into the public domain, at the end of the 28 year period. Brugos was likely banking on either the copyright expiring or the fact that Marvel had failed to make copyright notices. The 1976 revision took away the requirement to affix copyright notices, while also extending the length of copyright protection.

    I am betting Burgos either was trying to pursue the idea that Marvel abandoned the copyright by not affixing notices or that is wasn’t copyrighted by them, or even that the work for hire agreement was not valid, since proper copyright notice wasn’t made. marvel publishing the story established a copyright notation, though it might have proven iffy, in court. however, either way, a lawyer might have advised Burgos that he had poor chances and he just threw in the towel. Joe Simon similarly was pursuing reclaiming Captain America,; but, marvel had Kirby sign an affidavit to the effect that it was created work-for-hire and Simon just dropped the whole thing.

    Trademark requires the continued use and defense of the trademark, or the rights can expire or be considered abandoned. That might have been more of a factor, as regardless of copyright expiration, Marvel had a trademark, then, on the original Torch, by adding it for that story. So, even if he ended up with the copyright, he might not be able to use the title on a cover, similar to Captain Marvel. The original Big Red Cheese was still under copyright, for Fawcett’s stories, when marvel acquired the trademark, for the name, for a comic book title. They could use captain Marvel as a title, but couldn’t stop DC from licensing the character and calling him Captain Marvel, in the comic. They could only prevent DC from using Captain Marvel in the title, which is why they went with Shazam, for the comic title.

    It would be similar to the Tarzan situation. The earliest Tarzan stories have gone into the public domain, meaning anyone can publish them and create stories derived from characters and situations in those stories. However, Burroughs, Inc, which holds Burroughs literary rights, had trademarked the name Tarzan, preventing anyone from doing a movie or other work titled Tarzan. They tried to use that fact to stop Dynamite from doing their Tarzan comics, under Lord of the Jungle, but the courts ruled in Dynamite’s favor that the character was public domain and they were only using material derived from the story, without using the name in the title; so, Burroughs Inc’s rights hadn’t been violated.

    Copyright and trademark law is like the Schleswig-Holstein Question of the legal profession.

    1. Thanks, that makes much more sense of the Human Torch situation. I think Marvel trademarking the Johnny Storm Human Torch would be enough to bar a HUMAN TORCH COMICS from Burgos.
      The Conan Doyle estate has tried arguing that Holmes’ character changes so much by the end of the Canon, films such as Enola Holmes clearly draw on later stories which weren’t public domain at the time (didn’t work).
      The Burroughs estate has tried a variety of tactics to keep control of Barsoom adaptations (https://frasersherman.com/2019/01/10/john-carter-of-trademarked-mars/), even though the early books are public domain β€” for example arguing Dynamite’s adaptation hurts the brand (so to speak) by drawing scantily clad women β€” ERB is wholesome family entertainment (I suspect anyone who’s read the books describing Martian women snickers as much as I do at this).

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