I was trying to keep a vaguely chronological order to these columns and, wouldn’t you know it, a juicy news item pops up that cries out for coverage here. I am always one to oblige. Especially when I was going to cover the history of the subject in a future episode.
Late last week, Marvel Comics filed suit against Larry Lieber and the estates of Steve Ditko, Don Rico, Don Heck and Gene Colan. Marvel is looking for declaratory judgements in each of the cases stating that Marvel, and Marvel alone, owns the right to the characters these creators worked on. This comes in response to a copyright termination notice sent over the characters co-created by Lieber, Ditko, Rico, Heck and Colan.
And what characters would they be? They would be, and stop if you see a trend, Iron Man (Lieber, Heck), Black Widow (Heck and Rico), Falcon (Colan) , Spider-Man and Doctor Strange (Ditko), Hawkeye (Heck), Carol Danvers (a.k.a Captain Marvel) (Colan), Thor and Ant-Man (Lieber) and Blade (Colan). And if the “trend” you saw was that all the characters have Movies or TV shows recently released or set to be released soon, give yourself a treat.
Note: Larry Lieber is Stan Lee’s younger brother, causing some sites (including the Hollywood Reporter before they corrected it) to say he was filing termination notices on Stan Lee’s creations as his heir. This misses the fact that A) Lieber also worked for Marvel and, as seen above, had a hand in creating so major characters and B) that Lieber isn’t Stan Lee’s rightful heir. Lee’s daughter J.C. Lee is. She would be the one who would have to sue for copyright termination, not Lieber. As such, these termination notices will give these creators’ estates only partial rights to the character, with Stan Lee’s rights as co-creator staying at Marvel. That would only change if J.C. Lee decides to file a termination of copyright or they somehow argue these five created the characters without Lee’s help. There have been rumblings that Marvel’s creative process, where a majority of the plotting is done by the artist, might be used as part of that latter argument.
The fact that heirs are allowed to terminate copyrights draws the ire of many comic book fans, who believe that people who had no hand in the creation of the characters are trying to gain financial remuneration for them. If you head on the Internet now, you’ll find a number of people saying that Steve Ditko’s brother Patrick filing for termination of copyright is a violation of his brother’s wishes. They’ll point out that Gene Colan, when faced with health problems at the end of his life (he died in 2011) worked with Marvel (and the Hero Initiative) to help pay his medical bills instead of suing the company. Whether or not these people have points, legally the heirs have the right to terminate the copyrights and the companies have to obey–as long the creation wasn’t done as part of work for hire.
And there is the rub. “Work for Hire” is a dirty, filthy phrase in the world of comic books. It is the foundation the entire industry was built on and it has screwed over countless creators time and time again. The comic book companies have stated that any work done by the writers and artists throughout history has been has essentially been commissioned by them and that the creators signed over all rights to the companies when they cashed their paycheck for the work. At first glance, it seems like the flimsiest of agreements. But the practice has held up time and time again in the courts. It survived a challenge from the estates of Jerry Siegel and Joe Shuster, and it survived an attack by the heirs of Jack Kirby.
Both of those parties in the above legal proceedings were represented to attorney Marc Toberoff. It should come as a surprise to almost no one that Toberoff represents Lieber and the four estates in this struggle. Toberoff issued a statement to Deadline about the brouhaha:
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.
Here we are, indeed.
While Toberoff paints himself as a knight in shining armor for creator’s rights, that armor might not be quite as shining as it seems. In 2010, DC Comics filed suit against Toberoff over undue interference in a 2001 contract agreement between the Siegel and Shuster families and DC Comics. As part of the suit, DC provided a timeline they received from a Toberoff employee. Part of what was revealed is that Toberoff made a deal with the Siegel and Shuster families where, if the copyright termination was successful, he would end up owning 47.5% of the Superman character. It painted Toberoff less as a hero than another manipulator taking advantage of Superman’s creators.
Does Toberoff have a similar agreement this time too? I don’t know and we might never know. We only found out and the Siegel and Shuster agreement because one of Toberoff’s team broke ranks and the judge allowed the documents to be admissible. Suffice it to say, his involvement here doesn’t make me feel all warm and cozy.
Toberoff’s victory lap in the Kirby case might be a bit unearned. Yes, Marvel settled with the family days before the Supreme Court was set to vote on whether or not to hear the case. But the Kirbys had lost at the trial court level and the Second Circuit of the U.S. Court of Appeals, both courts declaring that the law was on Marvel’s side. And yes, the Supreme Court was thinking about hearing the case, mainly because he changed up strategies (to one suggested by comic book law journalist Jeff Trexler). There was no guarantee that the court would hear the case or, if they did, they’d rule in favor of the Kirbys.
But Toberoff thinks he won in game of chicken with Marvel and thinks he could do so again. For as much as he claims to want to take on the 112-year law copyright law, I bet he was hoping that Marvel would be so frightened of going before the Supreme Court–and potentially losing “work-for-hire” forever–that they would make a settlement immediately. Marvel’s suit shows that if he was thinking that, he was thinking wrong.
Why would Marvel be so brave? Well, for one, if you click Jeff Trexler’s name above, it will take you to an article by him where he makes the argument for their bravery. In case you don’t want to click, basically he says if the Supreme Court had heard the case back in 2014, they likely would have ruled in favor of Marvel. And in the years since, the court has gotten far more conservative and, as a result, more corporation friendly.
But we won’t know until years in the future. But if you were able to place a bet on whether or not “work-for-hire” will still be around in six years, I’d bet yes. If the bet is whether or not these creators with regain the copyrights to these characters, I’d bet no.
Next Time: We cover pastiche and how lack of originality does not necessarily mean lack of creativity.