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Disney’s Marvel unit is suing to hold on to full control of Avengers characters including Iron Man, Spider-Man, Dr. Strange, Ant-Man, Hawkeye, Black Widow, Falcon, Thor and others.
The complaints, which The Hollywood Reporter has obtained, come against the heirs of some late comic book geniuses including Stan Lee, Steve Ditko and Gene Colan. The suits seek declaratory relief that these blockbuster characters are ineligible for copyright termination as works made for hire. If Marvel loses, Disney would have to share ownership of characters worth billions.
In August, the administrator of Ditko’s estate filed a notice of termination on Spider-Man, which first appeared in comic book form in 1962. Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time. According to the termination notice, Marvel would have to give up Ditko’s rights to its iconic character in June 2023.
Marvel is facing other termination notices. For example, Larry Lieber (who worked at Marvel as a writer, too) filed termination notices over creations in May.
The heirs of the comic book creators are being represented by Marc Toberoff, who once famously represented Superman creators Jerry Siegel and Joe Schuster in an unsuccessful termination attempt against DC Comics.
DC staved off termination by counterclaiming against Toberoff and asserting tortious interference of its rights. The publisher was represented by Dan Petrocelli at O’Melveny, who just so happens to be representing Disney now in its efforts to keep rights to various Avengers.
Petrocelli is filing several lawsuits in New York and California against Lieber, Don Heck, Patrick Ditko, Don Rico and Keith Dettwiler. The cases will focus on the creation of famous comic book characters and who should be deemed the statutory author.
The litigation figures to focus on the “Marvel Method,” a loose collaborative working atmosphere where initial ideas were briefly discussed with artists responsible for taking care of the details. The Marvel Method has been the subject of prior litigation such as a dispute a decade back over “Ghost Rider.”
And it will again. For example, one of the complaints filed today (read here) asserts, “Marvel had the right to exercise creative control over Lieber’s contributions and paid Lieber a per-page rate for his work.”
Toberoff has a lot of experience doing this type of case.
Almost a decade ago, he represented the estate of comic book legend Jack Kirby over whether he could terminate a copyright grant on Spider-Man, X-Men, the Incredible Hulk and the Mighty Thor. In August 2013, the 2nd U.S. Circuit Court of Appeals affirmed a lower court ruling that determined Kirby’s heirs couldn’t wrest back his share of rights to these characters because the former Marvel freelancer had contributed his materials as a work made for hire.
The Kirby case was then petitioned up to the Supreme Court, with the late Ruth Bader Ginsburg signaling some interest in taking up the case. Marvel at the time fought hard against any high court review, and before the justices decided, the case was settled.
Now comes new litigation, which figures to pick up where earlier ones left off. Marvel’s suit calls the latest controversy “virtually identical circumstances” to Kirby’s.
If the plaintiffs win, Disney expects to hold on to at least a share of character rights as co-owners. The studio would have to share profits with the others. Additionally, the termination provisions of copyright law only apply in the United States, allowing Disney to continue to control and profit from foreign exploitation.
Sept. 24, 1 p.m. Updated to clarify that Disney is only facing the loss of full ownership of the characters.
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