(Updated with heirs and estate lawyer statement) Now here is one Hell of a What If?
The blockbuster home of Spider-Man, Doctor Strange, Iron Man and many more Avengers and costumed crusaders is fighting back against termination notices on many of its biggest heroes.
“Any contributions Steve Ditko made to the Works were done at Marvel’s expense
because Marvel paid Steve Ditko a per-page rate for his contributions, Steve Ditko made those contributions to the Works with the expectation that Marvel would pay him, and Steve Ditko did not obtain any ownership interest in or to his contributions,” said Marvel’s heavy hitter outside counsel Daniel Petrocelli said to the estate of the famed Spider-Man artist in one of five complaints for declaratory relief filed in federal court in California and New York today.
In the past several months, Marvel has received termination notices sent to the U.S. Copyright Office from the estates and heirs to legends like Ditko, Stan Lee, Don Rico, Gene Colan and the still living Larry Lieber. Addressing cutting loose for Marvel “all pre-January 1, 1978 exclusive or non-exclusive grants of the transfer or license of the renewal copyright(s),” the terminations would be effective “ranging from May 29 to July 17, 2023,” according to Marvel’s filing(s) Friday.
The Copyright Act of 1976 allows heirs to pull the plug on licenses granted or transferred for a copyrighted work in particular situations with a fully executed notice — as the heirs and estates have tried to do here.
Important to note here: Marvel will not lose ownership of the lucrative characters if they came up short in court. The Disney-owned superhero giant would retain a co-ownership that would involve payouts to the other co-owners, among other requirements. Along with that profit sharing, regardless of what happens in the federal courts, these rights only apply to the United States, not elsewhere.
So, in that context…
“A declaration is necessary and appropriate at this time in light of the purported
effective termination dates and the ongoing exploitation of the Works and the development of new works derivative of the Works,” said Marvel’s complaint(s), asking the courts to step in against the moves orchestrated to some degree by corporate thorn Marc Toberoff.
If this and attorneys Petrocelli and Toberoff sound familiar that’s because the two lawyers faced off over the rights to Superman a few bitter years ago.
In terms of the Marvel specific copyright dust-up, the heirs of the legendary Jack Kirby went to the mat with the company over the rights to Captain America, The Fantastic Four, the Hulk, Iron Man, Thor, the original X-Men and the plethora of other characters. As with now, Marvel’s POV was that Kirby was under a work-for-hire deal and held no tangible claim.
The Superman matter bit the Kryptonite bullet in January 2014 as O’Melveny & Myers’ Petrocelli won Warner Bros yet another court battle and the potential threat to billions being lost by the DC Comics-owner faded away. In the Kirby case, Marvel and the Toberoff repped heirs came to a meeting of the minds in September 2014 just before the matter was scheduled to go to the Supreme Court and settled. Among the portions of that resolution, Kirby’s name now is among the credits in MCU films and TV series featuring characters he created or co-created.
So, going into a low tail Round 2 of sorts, both Petrocelli and Toberoff have their own definitions of what this is all about and where it is going.
“Since these were works made for hire and thus owned by Marvel, we filed these lawsuits to confirm that the termination notices are invalid and of no legal effect,” Petrocelli told Deadline today.
Marc Toberoff had a bit more to say, as you can see below:
I represent Larry Lieber (Thor, Iron Man, Ant Man) , the estates of Steve Ditko (Spiderman, Dr. Strange), Don Heck (Iron Man, Black Widow, Hawkeye), Don Rico (Black Widow), and Gene Colan (Captain Marvel, Falcon, Blade). In 2010-2014 I successfully represented the family of Jack Kirby, the co-creator of Marvel’s most famous superheroes, in a case where Marvel similarly sued Kirby’s family for exercising their rights under the Copyright Act.
Here, Marvel has done the same; but make no mistake, “artist-friendly” Disney is calling the shots.
At the core of these cases is an anachronistic and highly criticized interpretation of “work-made-for-hire” under the 1909 Copyright Act that needs to be rectified. We had tremendous support from the artistic community, the former Register of Copyrights, the former Trademark Commissioner, all the Guilds (WGA, SAG, DGA), PEN America, and 237 artists, including a dozen Pulitzer winners. The Kirby case went all the way to the US Supreme Court, which showed keen interest, at which point Disney settled. At the time, I was asked whether I regretted not righting the legal injustice to creators – which I indeed did. I responded that there would be other such cases.
Now, here we are.
Either way, a series of federal judges will be making the next call – Avengers Assemble or otherwise.
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