Uh-oh, Disney’s Marvel team is prepping a lawsuit to keep the rights to Avengers characters including Iron Man, Black Widow, Doctor Strange, Black Panther, Ant-Man, Spider-Man, Hawkeye, and more from copyright termination.
According to The Hollywood Reporter, the big lawsuit is being filed against the heirs of comic book legends Stan Lee, Steve Ditko (also Disney Legend), and Gene Colan. The suit seeks declaratory relief that these blockbuster characters are ineligible for copyright termination as works made for hire. If Marvel were to lose the rights to these characters they would be losing billions of dollars in revenue used from these characters and properties.
It should be noted, that Disney is only facing the loss of full ownership.
Last month, the administrator of Ditko’s estate filed a notice of termination on Spider-Man. Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time. According to the termination notice, Marvel would lose rights to its iconic character in June 2023, as films such as Ant-Man and the Wasp Quantumania, Guardians of the Galaxy Vol. 3, and more are set to debut theatrically.
Ditko is being represented by Marc Toberoff, who once famously represented Superman creators Jerry Siegel and Joe Schuster in an unsuccessful termination attempt against DC. Ironically, representing Marvel is the team that saved DC from early termination, Dan Petrocelli at O’Melveny.
Petrocelli is filing five lawsuits in various jurisdictions against Larry Lieber, Don Heck, Patrick Ditko, and others. The cases will focus on the creation of these characters and whether they should be deemed as works made for hire. If so, then the publisher would be deemed the statutory author. The litigation figures to focus on the “Marvel Method,” a loose collaborative working atmosphere where initial ideas were briefly discussed with artists responsible for taking care of the details.
Toberoff has a lot of experience doing these type of cases.
Almost a decade ago, he represented the estate of comic book legend Jack Kirby over whether he could terminate a copyright grant on Spider-Man, X-Men, The Incredible Hulk, and The Mighty Thor. In August 2013, the 2nd Circuit Court of Appeals affirmed a lower court’s ruling that determined Kirby’s heirs couldn’t wrest back his share of rights to these characters because the former Marvel freelancer had contributed his materials as a work made for hire. The Kirby case was then petitioned up to the Supreme Court, with Ruth Bader Ginsburg signaling some interest in taking the case. Marvel at the time fought hard against any high court review, and before the justices decided, the case was settled.