Siena Stanislaus
On September 24th, 2021, Marvel Characters, Inc. (“Marvel”), a subsidiary of The Walt Disney Company, filed a complaint with the District Court for the Southern District of New York against artist Lawrence Lieber’s attempt to reclaim copyright ownership over several widely known Marvel characters.[1] Lawrence Lieber, also a writer and the brother of famous Marvel contributor Stan Lee, sent six notices of termination to Marvel between the months of May and August of 2021. These termination notices argue that according to the Copyright Revision Act of 1976, Lieber has a right to terminate grants of transfer or license prior to 1978 of “works authored or co-authored by Lieber,” specifically works published by Marvel between 1962 and 1964.[2]
The Copyright Revision Act of 1976 allows some creators the right to “terminate [an] exclusive or nonexclusive grant of a transfer or license of an author’s copyright in a work or of any right under a copyright.”[3] The exact period of termination depends on a number of factors specific to the work, including “when the grant was made, who executed it, and when copyright was originally secured for the work.”[4] Lieber’s termination notice articulated prospective termination dates ranging from May 29th to August 5th of 2023.[5] Within their complaint, Marvel argues that Lieber’s termination notices are not valid because his right to terminate is not supported by the Copyright Revision Act of 1976. Particularly, the act does not apply to works made for hire. Marvel asserts that the works of Lieber were made for hire, created at the “instance and expense” of Marvel.
Whether a specific creative process constitutes a work made for hire is a legal question that has led to consistent litigation. Most famous is the case Community for Creative Non-Violence v. Reid, which involved a community organization (CCNV) and sculptor James Earl Reid, who fought for control over the creative work, a sculpture called “Third World America.”[6] Ultimately, this case demonstrates that the status of an artist, whether he is an employee producing work for hire or an independent contractor, greatly influences the copyright ownership of the work. Particularly in the case Marvel and Lieber, the right to terminate under the Copyright Revision Act of 1976 does not apply to works made for hire.[7]
Marvel argues that work for hire status is evident through employee-like characteristics of their relationship with artists, including Lieber, during that time. Such includes the right of Marvel’s editorial staff to exercise control over Lieber’s work and Marvel’s payment to Lieber at a per-page rate for his contributions. Conversely, Lieber argues that his works were not made for hire, and that he served as an independent contractor.
Ultimately, the decision will be up to the court. Although legal precedent indicates court’s treatment of works in similar circumstances as works made for hire. In the case Marvel Worldwide, Inc. v. Kirby, the estate of artist Jack Kirby sued Disney over rights to several works, including the famous superhero creations Spider-Man and X-Men.[8] While this case was settled out of court, the Second Circuit Court of Appeals affirmed the trial court’s ruling that Kirby’s work constituted work made for hire.[9]
Various artists have also filed termination notices for their contributions as co-authors for several well-known Marvel characters, including artists Steve Ditko and Gene Colan, and the heirs of Stan Lee. The characters whose ownership is being challenged include Spider-Man, Doctor Strange, Iron Man, Black Widow, Hawkeye, Falcon, Captain Marvel, Blade, Thor, and Ant-Man.[10] While this may not be as detrimental as Thanos collecting the final Infinity Stone, failure to win this case could potentially result in Disney’s ownership of many Marvel characters gone with the snap of a finger.
[1] Complaint, Marvel Characters, Inc. v. Lieber, Civil Action No. 1:21-cv-07955
[2] Id.
[3] U.S. Copyright Office, Notices of Termination, https://www.copyright.gov/recordation/termination.html.
[4]17 USC §§ 203, 304(c), and 304(d)
[5] Complaint, Marvel Characters, Inc. v. Lieber, Civil Action No. 1:21-cv-07955
[6] Community for Creative Non-Violence v. Reid, 490 U.S. 730.
[7] 17 USC §302.
[8] Marvel Worldwide, Inc. v. Kirby, 777 F.Supp.2d 720 (2011).
[9] Id.
[10] Bryan Sullivan, Disney Fights for Rights to Popular Marvel Characters. https://www.forbes.com/sites/legalentertainment/2021/10/01/disney-fights-for-rights-to-popular-marvel-characters/?sh=214ead0652f0. (Last visited October 3, 2021).