It's a well-known fact at this point that Disney doesn't pay much of anything to the original creators of their most famous characters, such as Bucky Barnes . However, it's been revealed that it has either given a measly $5,000 check or not paid at all.
The estate of Jack Kirby, famed comic book artist, writer, and editor for Marvel, had similar issues and "sued Marvel to terminate copyrights and gain profits from [Kirby's] comic creations." Four years later, both parties settled out of court before reaching the United States Supreme Court.
After this legal battle, the representative for the Jack Kirby estate, Marc Toberoff, said , "this is precedent that needs to change" and "there will be other cases."
Marc Toberoff has been proven right. Multiple estates of famous comic book artists and writers have done the same against Marvel for numerous characters, with Toberoff returning to represent them all.
Marvel Back to Court Over Avengers
According to The Hollywood Reporter , Disney's Marvel is suing to maintain the copyright on multiple characters, including Iron Man, Spider-Man, Doctor Strange, Ant-Man, Hawkeye, Black Widow, Falcon, Thor, and others.
The new copyright terminations are from the estates of the late Stan Lee, Steve Ditko, and Gene Colan. Disney is arguing that these characters are ineligible for copyright termination as they were works made for hire, which was the same argument used against the estate of Jack Kirby.
One such termination notice was filed by the estate of Steve Ditko for Spider-Man, who first appeared in comic book form in 1962's Amazing Fantasy #15. According to the termination notice, Marvel would lose full ownership of its iconic character by June 2023 and share ownership with the estate.
So, if the plaintiffs win, it's expected that Disney would hold onto at least a share of character rights as co-owners, leading to the studio having to share profits with them. Additionally, these copyright terminations only apply within the United States, meaning that Disney would still control and profit from foreign markets.
Marc Toberoff will be representing Ditcko's estate, as he did the creators of Superman, Jerry Siegel and Joe Schuster after an unsuccessful termination attempt against DC. The publisher was represented by Dan Petrocelli at O'Melveny, who will also be representing Disney in its efforts to keep its copyrights to various Marvel characters intact.
Petrocelli will be filing five lawsuits against Larry Lieber, Don Heck, Patrick Ditko, Don Rico, and Keith Dettwiler.
One primary focus of this litigation will be the "Marvel Method," which was an in-house collaborative effort between writers and artists. Writers would discuss baseline ideas with artists being responsible for the more essential details.
Prior litigation involving Ghost Rider's co-creator, Gary Friedrich, over a decade ago had Marvel using the "Marvel Method" as to why Friedrich had no case. It stated that the character was created through this collaborative process using Marvel personnel and resources.
How Does This All Work?
Copyright termination is the termination of a transfer of one's copyright rights. After the termination, those rights are transferred under the grant back to the original creator of the copyrighted work. One famous case involving the Siegel estate revolved around this when they went to court with DC Comics over Superman and other characters affiliated with him.
It's still difficult today to define when a license or transference of copyright can be terminated. How copyright works has changed many times over the decades, but at least under the Copyright Act of 1976, enacted in 1978, the previous duration of copyright protection changed to 56 years.
Termination could be taken into effect at any time within a five-year window if the works were created before 1978, which opens exactly 56 years from the date copyright was originally secured.
As an example, Amazing Fantasy #15 was published in 1962, which was the debut of Peter Parker's Spider-Man as a character. After 56 years, that would mean the window for copyright termination began in 2018 and will finish in 2023, hence why Marvel is listed as potentially losing copyright by June 2023.
However, considering that this isn't the first case of copyright termination that Marvel and Disney have been involved in, it's unlikely that they will lose. It appears they will be using similar arguments from the cases of the estate of Jack Kirby and against the Siegel estate.
Much like with the estate of Jack Kirby, it's more than likely that Disney will settle out of court with all these estates being paid an undisclosed amount of money. It's a shame that it always has to come to this, as these creators should be appropriately compensated for their work that became multi-billion-dollar franchises.
Abusive structures such as "work for hire" and the "Marvel Method" strip much of their contribution to the characters and rights for fair compensation for helping create characters that now have films, cartoons, live-action shows, and video games based upon them.