Disney’s Marvel unit is suing to maintain copyright as they claim their characters are ineligible for copyright termination as works made for hire. The news comes from THR, who said the filing was being made today. What makes the five lawsuits a bit different than in the past–the most recent being Jack Kirby’s estate losing their ability to gain back their share of rights–is how the looser character creation of the “Marvel Method” could prove it was not one single creator who created these characters, but the publisher as a statutory author.
Dan Petrocelli at O’Melveny is representing Disney’s Marvel unit who has filed lawsuits against Larry Lieber, Don Heck, Patrick Ditko, and others. Petrocelli recently successfully prevented representative of the Superman estate Marc Toberoff from successful termination attempt against DC Comics. Toberoff currently represents Ditko’s estate who filed a termination on Spider-Man just last month. In the case of Spider-Man, Marvel would lose rights to its character in June 2023 if the termination was successful.
For those that don’t know, the “Marvel Method” starts with a writer developing the plot, handing that to the artist who then pencils from a loose design. Then, the writer comes back to add captions and word balloons. Denis O’Neil is quoted as saying in The Education of a Comics Artist: Visual Narrative in Cartoons, Graphic Novels, and Beyond “plots were seldom more than a typewritten page, and sometimes less,” but in some cases, plotting could end up being even lengthier than the comic itself.
So the question stands, does the “Marvel Method” prevent creators from proving in court they were the sole creator of a character since creation was more fluid and collaborative? If so, does that collaborative process shift creation from the creators themselves allowing Marvel to claim authorship and prove the characters were made for hire? What makes this process even more difficult is that the original creators have passed away and cannot defend themselves.
Billions of dollars are at stake if Disney were to lose these lawsuits so don’t expect them to back down even if they lose these five lawsuits. On the reverse side, if creators and their families now run by estates won these cases it’s more than likely we’d still get new MCU films, comics, and television shows it’s just that the estates and families of the creators of these characters would likely get some of the profits. There’s absolutely no way Disney would stop using these characters.
Given past cases like this in the comics industry, the courts will likely side with Disney though the five lawsuits could be drawn out. Disney is likely fine with that, the dollars to be made on these characters are too damn high. As recently as July the public learned Disney isn’t afraid to have a public battle as beloved actor Scarlett Johansson sued Disney over profits made from Black Widow. In a case that likely could have been resolved and not gone to court the case still carries on.
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