Disney‘s Marvel unit is suing a slew of legacy comics creators and their estates to hold on to full control of various Avengers characters, including Iron Man, Spider-Man, Dr. Strange, Ant-Man, Hawkeye, Black Widow, Falcon, Thor and others, according to Deadline.
This all stems from a Marvel receiving a number of termination notices, a legal term that means a copyright holder is terminating their agreement for someone else to use a piece of intellectual property, in the past several months, from a number of estates and heirs of comics creators like Spider-Man artist and writer Steve Ditko, Stan Lee, Don Rico, Don Heck, Gene Colan and the still living Larry Lieber.
Marvel’s outside counsel, Daniel Petrocelli, filed five declaratory relief complaints in federal court in California and New York on Friday addressing the various termination notices, including an argument that the work arrangement between Ditko and Marvel precluded any ownership interest.
“Any contributions Steve Ditko made to the Works were done at Marvel’s expense because Marvel paid Steve Ditko a per-page rate for his contributions, Steve Ditko made those contributions to the Works with the expectation that Marvel would pay him, and Steve Ditko did not obtain any ownership interest in or to his contributions,” Petrocelli said.
Should the terminations go through, they would be effective ranging from May 29 to July 17, 2023, according to Marvel’s filings.
If Marvel ends up on the losing side of the court battle, that doesn’t necessarily mean they won’t be able to use the characters at all in films anymore. To the contrary, it would mean Disney would retain a co-ownership that would involve payouts of the billion-dollar properties to the other co-owners–the estates, heirs and living legacy comics artists–among other requirements. The legal battle only applies to the United States, meaning Disney’s foreign profit and control of its assets are not at risk of being diminished.
Attorney Marc Toberoff is representing Larry Lieber, Steve Ditko, Don Heck, Don Rico, and Gene Colan. The attorney expressed regret not following through on other intellectual property cases along similar lines cases in the past.
“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. “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.”
It’s important to point out here that the Kirby case not actually heard before the Supreme Court, but they showed an interest in the case before the out of court settlement was reached.
The estate of comics creator Jack Kirby, represented by Toberoff, was able to secure a credit of his respective characters in any film or television show they appear in thanks to a settlement agreement with Disney. The case between Disney and Kirby proved to be a landmark IP case that dragged on from 2010 to 2014.
In addition, Petrocelli and Toberoff previously faced off in a legal battle of the rights to Superman a few years ago. In that case, Petrocelli won on behalf of Warner Bros, who secured yet another court battle and squashed the threat of the DC Comics owner potentially losing billions.
It remains to be seen if payouts by Marvel will start to be mandatory for the many Avengers characters’ legacy comics creators or if Disney will win this battle and retain full rights and not have to spare a cent.