Marvel Hit Once Again By Estate For Some Spider-Man, Doctor Strange Copyright Terminations

from the protect-artists dept

It's no secret that we haven't been huge fans of the termination rights that exist in current copyright law. Not because we don't want original artists to be able to profit from their own work, of course. Rather, the problems are that copyright is already simply too long, which makes the termination issue far too often not about artists themselves profiting from their work, but rather about their families doing so. Add to that the more salient issue that these termination rights tend to be mostly useful for creating massive messes and disputes between parties over the validity of termination requests and the fact is that this stuff gets really icky really fast.

But, the current reality is that termination rights in the law exist, so there is no reason why creators shouldn't use that part of the law. You may recall that a decade ago Marvel was hit by a series of termination requests for copyrights on all kinds of superhero stories and characters by Jack Kirby. Kirby's estate lost in court every step of the way up to the Supreme Court, with Marvel arguing that all of Kirby's work was work for hire, but Marvel and the estate reached a settlement before SCOTUS could take up the case. For termination requests for work that occurred prior to the Copyright Act of 1976 coming into force, how those requests should be ruled upon is still an open question.

But perhaps we have another shot at getting clarity on this and, what do you know, it concerns Marvel yet again. Another creator has petitioned for termination on some specific copyrights around Spider-Man and Doctor Strange.

In a move that will have copyright lawyers at The Walt Disney Company sweating, the estate of comic book artist Steve Ditko has filed two notice of copyright termination with Disney/Marvel with regard to the copyright for both Spider-Man and Doctor Strange. What makes the notice of termination hard to achieve for creators and their families comes down to the classification of how it was created. Marvel will no doubt make the case that Ditko created Spider-Man and Doctor Strange as "Works for Hire," which would give Marvel the copyright permanently and not entitle the Ditko estate to any compensation. Ditko's family will make the argument that these creations were made by Ditko and then sold/licensed to Marvel at the time (perhaps under an unfair deal) which would make them not a work for hire creation.

I obviously don't currently have access to whatever contract was in place between Marvel and Ditko, if one even exists, so I cannot be certain that there wasn't some work for hire provision within it. But this sure as hell sounds like Jack Kirby all over again. I fully expect Marvel to make the work for hire argument, which will hopefully come along with some kind of written document. If it doesn't, it seems certain that this will once again end up in the courts. From there, the only question is whether or not we get final answers through the court system, or if this also ends up in a settlement.

As of this writing the notices from the Ditko estate say that the termination will become effective on June 2, 2023 and that for Doctor Strange the termination will become effective on June 9, 2023. Marvel and Disney will no doubt fight these copyright termination notices so look for further updates on this to happen in the coming years (this will almost certainly take a while).

But what is certainly not in question is that cases like this, successful for the original artists or not, throw into sharp relief the contrast between the messaging from Marvel as to the reason for its regular aggressive copyright enforcement -- to protect content creators and artists -- and Marvel's willingness to bus-toss those very same artists over copyright should it mean retaining all of that sweet, sweet cash it makes.

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Filed Under: copyright, doctor strange, spider man, steve ditko, termination rights, works made for hire
Companies: disney, marvel


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  1. icon
    Wyrm (profile), 1 Oct 2021 @ 3:22pm

    This is more of a "contract" vs "copyright law at the time" issue.
    And the fact that copyright can change retroactively after a work was created, regardless of the contract. Which is a huge stupid point of copyright law. And how there is no clear ownership tracing available to all.
    But that's details compared to the larger problem at hand.

    Copyright needs to be changed, both in duration and scope.

    A duration based on the life of the author is bad enough as it is unpredictable. (An author could die the day after authorship, or live another 50 years...) Adding basically a full additional life-time is just crazy, and doesn't incentivize the author to create new works after his death. (Until we manage to make necromancy work in real life at least.)

    As for the scope, there is a proper duality between "idea" and "expression" that is sadly too unclear to be reliable in copyright disputes. The law should be clearer about the fact that only a very particular "expression" is protected. You should be able to claim copyright on a particular story of Batman, not the idea of Batman's adventures entirely. (Sadly, it has been ruled the other way in court and you can copyright an entire character.)

    How can you defend your work on Batman against people claiming to write Batman stories? Authorship. You're the original author and you can prove it, so you're free to tell people that someone else's works are not canon. That's all the power you should have.
    (In this case, obviously, claiming that the original author acknowledges your work to build credibility is as much of a fraud as claiming to be the author of someone else's work.)
    If the public prefers to stick to the canon material, all the best to you. If they consider that other authors did better work from your original idea, all the best to them. That's how you encourage competition and reward quality, how you incentivize good creation rather than the industrial production of trash.

    Also, canon recognition could be monetized, if it comes to it. This way, anyone can create anything (by himself or by being asked to), then the original author (or his "estate") can make a (free or paid) announcement that this is canon. "Work for hire" becomes essentially obsolete. The clauses of the "canon" contract would rule, be it in a one-time payment or share of sales or anything else. No need to alter the whole copyright law to share money in creative ways.

    Also, public domain needs to be actively defended for two reasons.

    • The first is that there are a lot of abuse of copyright on public domains that go unpunished because nobody is allowed to claim standing in such cases. The obvious fix here is to make clear that anybody can claim standing for public domain works.
    • The second is to fight the idea that everything has to be owned somehow, be it material items or abstract creations. As was the case of the monkey selfie. There was this assumption that it was owned, and that the only problem was to determine the owner. Which is simply missing the mark.

    (Not sorry for the rant here. :D)


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