The legal battle over ownership goes on and Marvel faces the possibility to lose all its rights over Spider-Man and other superheroes in 2023.
There is a “civil war” going on at Marvel. Copyright infringement has always been a continuous battle for Marvel for years. And the latest addition is the lawful faceoff between Marvel and the heirs of the Marvel authors. This could culminate in Marvel losing the rights of popular Marvel characters like Spider-Man, Doctor Strange, Thor, Iron-Man, and many more. How? Read on.
Watch: Stan Lee speech about the SpiderMan!
Claim by the Heirs
The heirs of five Marvel authors filed termination notices (in other words: reclaim copyrights) with the US Copyright Office. Veteran copyright attorney Marc Toberoff represented them. He has a history of fighting similar battles on behalf of several Marvel veterans like Jack Kirby, and Joe Shuster, and Jerry Siegel, the creators of Superman.
The base of the notices was that the wealth collected by huge multibillion-dollar franchises (Marvel and Sony), out of the works of the Marvel authors, needs to be shared with their heirs. It wouldn’t prevent Marvel from using the characters in dispute. But the studio will have to pay the heirs out of the profit.
Marc Toberoff represents Larry Lieber, the brother of Stan Lee and a co-creator of Spider-Man, Iron Man, Thor and Ant-Man, Steve Ditko (co-creator of Spiderman, Dr. Strange), Don Heck (Iron Man, Hawkeye, Black Widow), Gene Colan (Falcon, Captain Marvel, Blade) and Don Rico (Black Widow).
Lawsuits by Marvel
In return for the heirs’ notices, Marvel filed up to 5 lawsuits on Friday. It claimed that the characters are not eligible for copyright termination since they were made as “work-for-hire”. This means that Marvel paid the people to create the characters for the company. And thus the characters are owned by the company. It also points to the famous Kirby case of 2011 where a federal judge ruled that the heirs of Jack Kirby cannot claim rights to the characters created by him as they were made “for-hire” for Marvel. Thus, the characters are exempt from the copyright which states that the creators or their heirs can reclaim the rights after a particular period.
Led by lawyer Dan Petrocelli, the lawyers of Marvel stated that the five cases in question carry “virtually identical circumstances.”
“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.
Marvel filed the suits against Larry Lieber (brother of Stan Lee), Patrick S. Ditko (brother of Steve Ditko), Michelle Hart-Rico and Buz Donato Rico III (heirs of Don Rico), Keith A. Dettwiler (nephew of Don Heck) and, Nanci Solo and Erik Colan (children of Gene Colan).
According to the Copyright Act 1976, the heirs of the creators can (in certain circumstances) terminate a license’s grant or a copyrighted work’s transfer through a properly executed notice.
Marc Toberoff, the lawyer for the heirs, argues against the point that work-for-hire was the basis on which the creators sold the characters to the publishers. “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,” Toberoff added.
He further stated that the creators/authors were independent contractors/freelancers. They only provided their work (copyrighted) to the publishers in return for payment. Thus, he argues, that the heirs can reclaim the copyrights.
“This is the deep dark secret of the comic book industry, if not now the entire entertainment industry, due to the explosion of these superhero franchises,” Toberoff told Variety. “It’s about artists’ rights. It’s literally about injustice.”
Although the termination notices are several months old, the Copyright Office website only began to show them this very week. The notice by Patrick Ditko (brother of Steve Ditco) pertains to the first appearances of Spider-Man (1962) and Doctor Strange (1963). This notice gives Marvel the end date of June 2023.
The termination notices of Nanci Solo and Erik Colan (children of Gene Colan) took into their consideration dozens of comic books. These include Volume 1, #12 of “Marvel Super-Heroes”. This issue had the first appearance of Captain Marvel. Also, there were multiple early editions of “Captain America” that had Falcon’s first appearance as well.
So overall, the characters that Marvel can lose at least partial control of include Spider-Man, Iron Man, Doctor Strange, Thor, Ant-Man, Black Widow, Captain Marvel, Falcon, Hawkeye, Blade, and potentially even more.
While the legal complications are certainly tough to understand, the potential results are clearer. What will happen if the original plaintiffs successfully establish that the disputed characters are eligible for copyright termination? Disney will lose a lot of control over its intellectual property. It will however maintain some equity due to the profits from international distribution. This is because the copyright law only applies within the United States. Thus they can continue to produce and distribute films and shows. Also, as far as Spider-Man is concerned, Disney has an agreement with Sony as well. This will bring in some profit too. And some profit is better than no profit at all.