Disney sues to retain full rights to Marvel characters
LOS ANGELES – Moving to defend its Marvel superhero franchises, The Walt Disney Company filed a series of lawsuits Friday to strike down copyright termination notices served by artists and illustrators involved with famous characters like Iron Man, Spider-Man and Thor.
Daniel M. Petrocelli, a high-profile Los Angeles litigator, has filed the claims on behalf of Disney in federal courts in New York and California.
The dispute began in the spring when a prominent intellectual property lawyer, Marc Toberoff, served Disney-owned Marvel Entertainment with copyright termination notices on behalf of five clients. They include Lawrence D. Lieber, 89, a screenwriter and comic book artist known for his 1960s contributions to basic Marvel characters. Mr. Lieber’s older brother, Stan Lee, was a screenwriter and editor-in-chief of Marvel Comics. Mr. Lee died in 2018.
Mr. Toberoff’s other clients are the estates of comic book illustrators Steve Ditko and Don Heck, and heirs of writers Don Rico and Gene Colan. They are seeking to reclaim the rights related to the Marvel characters they helped create, including Doctor Strange, Black Widow, Hawkeye, Captain Marvel, Falcon, Blade, and the Wizard – several of whom have become star revenue generators for Disney, appearing in movies and TV shows, as well as a plethora of merchandise.
Recovery attempts arise from a copyright provision which, under certain conditions, allows authors or their heirs to regain ownership of a product after a certain number of years. Such efforts depend on whether the authors worked as wage laborers or produced the material themselves and then sold it to publishers. The 1976 Copyright Revision Act, which opened the door to attempted dismissals, prohibits dismissal of persons who have provided work “at the authority and expense” of an employer.
“As these were works rented and therefore owned by Marvel, we have filed these lawsuits to confirm that the termination notices are invalid and without legal effect,” Petrocelli said by telephone. (Mr. Petrocelli is also representing Disney in its legal fight with Scarlett Johansson, who sued the company in July for compensation related to the sale of tickets to “Black Widow.”)
For example, Disney’s complaint against Mr. Lieber argues that “Marvel assigned stories for Lieber to write, had the right to exercise control over Lieber’s contributions, and paid Lieber a per page rate for his contributions.” . These conditions make his contributions “work done for remuneration, to which the provisions of the Copyright Act do not apply,” according to the complaint.
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Mr. Toberoff strongly disagrees. “At the time all of these characters were created, their material was certainly not ‘paid work’ under the law,” he said in an email in response to Disney’s statements. “These guys were all freelancers or independent contractors, working piecemeal for car expenses out of their basements.” Therefore, not “traditional full-time employees,” he said.
“At the heart of these cases is an anachronistic and much criticized interpretation of ‘work done for hire’,” Toberoff said in a separate email, adding that the interpretation “needs to be rectified.”
The termination notices expressed the intention to recover the copyright in certain creations as early as 2023. If successful, Mr. Toberoff’s clients would receive a portion of the profits from the new works based on one of the material protected by the copyright.
Rights issues have become a point of vulnerability in a film industry that increasingly relies on ‘branded entertainment’ – anything based on popular material, including comics, TV cartoons, and toys. classic. An existing fan base decreases the financial risk of a film.
Disney is no stranger to intellectual property battles. The company spent 18 years fighting a rights violation case involving Winnie the Pooh, ultimately winning. Disney pushed so hard for an extension of copyright terms in 1998 that the resulting law was derisively called the Mickey Mouse Protection Act. The brothers who wrote the original screenplay for the 1987 film “Predator” are fighting with Disney for the franchise; the brothers, Jim and John Thomas, seek to reclaim their rights.
Mr. Toberoff has built a reputation in Hollywood for representing people who claim ownership of old TV shows, movies, or comic book properties. In the 2000s, he scored a notable victory over Warner Bros. involving “The Dukes of Hazzard”. Then came a ruthless legal battle between Mr. Toberoff and Warner over Superman’s rights, with Mr. Petrocelli representing the studio. Warner ultimately won two favorable court decisions.
From 2009 to 2013, Mr. Toberoff represented the heirs of Marvel comic artist Jack Kirby. They were trying to reclaim the rights to dozens of characters created or co-created by Mr. Kirby between 1958 and 1963, including the Hulk, Captain America and the X-Men. Two courts sided with Marvel – which argued that Mr. Kirby’s work was done at Marvel’s request and expense – and the case was later settled as the United States Supreme Court was considering hearing the case.
“At the time, I was asked if I regretted not fixing the legal injustice to creators – which I actually did,” Toberoff said in an email. “I replied that there would be other cases like this. Now we are there.