Since its print debut in 1963, Marvel’s The Avengers franchise has battled some of the most fearsome villains in the galaxy. But their greatest foe might ultimately prove to be federal copyright law.
On September 24th, Marvel filed lawsuits against some of the comics’ most notable creators and their heirs. The Disney subsidiary is invoking the “works made for hire” doctrine to retain complete control over some of their most popular characters, including Spider-Man, Black Widow, Iron Man, Thor, Ant-Man, and Hawkeye.
U.S. Copyright Termination Notices Bubbling Up
The suits are a reaction by Marvel to a flurry of copyright termination notices from the same creators. In August, the estate of Steve Ditko filed termination notices with the United States Copyright Office on two of Marvel’s most significant intellectual properties: Spider-Man and Doctor Strange. The late Ditko was the artist of the comic books featuring these characters and created them alongside vaunted Marvel producer Stan Lee (born Stanley Lieber).
Ditko’s filing came on the heels of another: Lee’s surviving brother, Larry Lieber, filed termination notices of his own in May. Lieber is an illustrator who made artistic contributions to Iron Man, Ant-Man, and Thor.
These two most recent filings are just the tip of the iceberg for Marvel, as many more of their iconic characters face copyright claims and counterclaims for what seems to be the foreseeable future.
While Disney is not in danger of losing its stake in these characters outright, a loss here would seriously impact the company’s use of the characters and its ability to profit from that use. That said, these termination notices apply only to Marvel’s intellectual property rights in the U.S., and the company would still retain its ability to control and profit from the characters in foreign markets.
Works Made For Hire and the “Marvel Method”
Judging from Friday’s filings, Disney’s legal strategy to fight these terminations seems to be claiming that the artists’ contributions constitute works made for hire. Section 101 of the Copyright Act broadly defines a “work made for hire” as any work made under the scope of someone’s employment or a “contribution to a collective work.” However, case law has made the analysis much more complicated.
Certain to factor into these suits is the collaborative “Marvel Method” of comic book writing pioneered by Stan Lee, which bucked the industry trend in the 60s. Comic book writers would traditionally script out a story and provide detailed notes for artists to follow in their illustrations. But Lee utilized a much looser approach, allowing Marvel artists greater freedom to draw loosely detailed stories however they saw fit. Consequently, the illustrators bestowed many novel and unique flourishes to the plot that have endured to the present day—and are now at issue in the recent lawsuits.
Marvel’s catalog of intellectual properties boasts some of the most profitable characters throughout history. Spider-Man alone rakes in $1.3 billion in annual sales, eclipsing not only Marvel’s other characters but those of competitors, such as DC Comics’ Batman and Superman.
Marvel’s suits were filed by Dan Petrocelli of the law firm O’Melveny & Myers. The attorney will already be familiar to comic fans; he also represented DC Comics in their long-running copyright litigation with the heirs of Superman creators Joel Siegel and Jerry Schuster. Marc Toberoff represented the estates of Siegel and Schuster in that case, albeit unsuccessfully. Since then, and perhaps unsurprisingly, Toberoff has represented many of the same creators filing copyright terminations on Marvel—for example, former Marvel artist Jack Kirby.
With franchises like Spider-Man and Dr. Strange anticipating motion picture releases this year, it remains to be seen how this current stream of litigation will affect the depiction of titular characters in the years to come. And with billions at stake, Disney won’t be giving up ground without a significant legal fight.
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