Marvel filed five lawsuits on Friday seeking to block the heirs of comic book creators from reclaiming copyrights to many of its most popular characters, including Spider-Man, Iron Man, Thor, Black Widow, Captain Marvel, Ant-Man and Doctor Strange.
The move comes after heirs of five Marvel authors filed dozens of termination notices with the U.S. Copyright Office. If the notices were to succeed, they would not prevent Marvel from using the disputed characters, which were created by multiple collaborators. But they would require the studio to make payments to the heirs.
The termination notices were filed by Marc Toberoff, a veteran copyright attorney who fought similar battles on behalf of the heirs of Jack Kirby, a co-creator of several Marvel heroes, and of Jerry Siegel and Joe Shuster, the co-creators of Superman. Toberoff argues that the Marvel authors’ work led to multi-billion dollar franchises, and that their heirs should be allowed to share in the wealth.
“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 in an interview. “It’s about artists’ rights. It’s literally about injustice.”
Toberoff represents Larry Lieber, the brother of Stan Lee and a co-creator of Thor, Iron Man, and Ant Man; as well as 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 the lawsuits, Marvel argues that the characters were created under “work for hire” arrangements, and that the heirs have no valid claim to the copyrights.
Marvel points to the Kirby case, in which the federal courts sided with Marvel, finding that the characters were made under work-for-hire arrangements.
Marvel’s lawyers, led by Daniel Petrocelli, say the five new cases present “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 said in a statement.
Marvel filed the suits in New York and Los Angeles against Lieber, Patrick S. Ditko, Michelle Hart-Rico and Buz Donato Rico III, Keith A. Dettwiler, and Nanci Solo and Erik Colan. Patrick Ditko is the brother of Steve Ditko. Solo and Colan are the children of Gene Colan. Dettwiler is the nephew of Don Heck. Hart-Rico and Rico III are the heirs of Don Rico.
Marvel is seeking a declaration that it holds the valid copyrights to the disputed characters. The company is not pursuing any damages.
Under the Copyright Act 1976, heirs are permitted, in certain circumstances, to terminate the grant of a license or transfer to a copyrighted work — such as a comic book — via a properly executed notice.
Toberoff argues that the comics were not done on a work-for-hire basis, as the law was understood at the time. He says that the authors were freelancers and independent contractors, and that they assigned their copyrighted work to the publisher in exchange for payment. In that case, he argues, their heirs should be allowed to reclaim the copyrights.
“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 said in a statement.
In the Kirby case, U.S. District Judge Colleen McMahon ruled that Kirby’s work was done at Marvel’s “instance and expense,” and that therefore Marvel owned the copyright. The case involved deposition testimony from Stan Lee, who has since passed, in which he described the “Marvel Method” of farming out work to various freelance writers and illustrators.
An appellate court upheld the ruling in 2013. Toberoff then appealed to the U.S. Supreme Court, but the case settled before the court decided whether to take the case.
“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,” Toberoff said. “Now, here we are.”
Though Toberoff filed the termination notices over the last several months, they began to appear on the Copyright Office website this week. Patrick S. Ditko’s notice of termination pertains to the first appearances of Spider-Man and Doctor Strange, in 1962 and 1963 respectively. His termination notice gives Marvel an end date of June 2023.
Nanci Solo and Erik Colan gave notice of termination to Marvel regarding dozens of comic books, including “Marvel Super-Heroes” Volume 1, #12, which features the first appearance of Captain Marvel and dozens of early editions of the “Captain America” comics, in which Falcon first appears.
There has been ongoing debate about how comic creators have been unfairly remunerated in light of the cinematic juggernauts their creations inspired.
When Ditko died in 2018, reports suggested his estate was worth only $1.3 million, despite having co-created one of the most famous comic book characters in the world.
It is a practice that continues to this day. Ed Brubaker, who created many of the storylines used in “Captain America: Civil War” — including the character of “The Winter Soldier,” played by Sebastian Stan on screen — spoke earlier this year about how he was treated by Marvel, both in terms of additional compensation (which he suggested was so paltry as to be insulting) and at the film’s premiere, where he was forced to watch in an “overflow” theater as opposed to the one with the film’s cast and Marvel executives.
“I have made more on SAG residuals than I have made on creating the character, for my one line that got cut,” he reportedly told Kevin Smith on his “Fatman Beyond” podcast.
Updated with comment from Petrocelli and Toberoff and additional background.