Marvel Files Five (5) Lawsuits to Keep the Rights to the ‘Avengers’ Characters
Steven T. Lowe
On September 24, 2021, Marvel initiated five separate lawsuits in California and New York Federal District Courts against writer Larry Lieber and four other artists (or their heirs) of Marvel Comics (collectively, the “Writers”). The lawsuits were in response to efforts by the Writers to initiate “termination” of their assignments of creative works to Marvel.
In the 1950s, 60s, and 70s, the Writers all wrote and illustrated Marvel comics, including a slew of classic comic books, which introduced some of Marvel’s most famous and lucrative characters. During the summer of 2021, attorney Marc Toberoff, who is representing the Writers, sent termination letters to Marvel, seeking to terminate the Writer’s grants of copyrights to Marvel under Section 203 of the Copyright Act. Many of the characters included in the termination letters are key to the Marvel Cinematic Universe, one of the most successful film franchises in history, which includes the “Avengers” film series.
In Marvel’s complaints, they are seeking the courts to find that the writers can’t terminate Marvel’s copyright interests in the characters that the Writers co-created, including Iron Man, Spider-Man, and Thor.
Under the Copyright Act of 1976, termination rights allow artists to reclaim a grant of rights to copyrighted works and “recapture” the rights for a second term after 28 years. However, the Copyright Act’s termination provisions do not apply to ‘works made-for-hire.’
According to Marvel, the underlying contracts assigned the Writers the task of writing stories maintained that Marvel had the right to exercise creative control over their contributions, and paid the Writers a per-page rate for these contributions. Thus, Marvel asserts that these contributions were at Marvel’s instance and expense, rendering the Writer’s contributions as ‘work-made-for-hire,’ to which the Copyright Act’s termination provisions do not apply.
However, the Copyright Act of 1976 did not purport to extend termination rights to ‘works made-for-hire,’ which remains defined by the older 1909 Copyright Act. Toberoff claims that the 1909 Copyright Act is “an anachronistic and highly criticized interpretation” of ‘work-made-for-hire that needs to be rectified, and therefore Marvel should not obtain any ownership interest in or to his contributions.
In 2010, Toberoff sent similar termination notices to Marvel on behalf of the artist, Jack Kirby. Marvel filed a similar lawsuit against Kirby in response to the termination notice sent over the copyrights to the Incredible Hulk and X-Men. In 2014, Marvel and Kirby settled the dispute just days before the U.S. Supreme Court was scheduled to hold a hearing on the case.
Marvel is represented by Daniel Petrocelli of O’Melveny & Myers LLP.
Lieber and the other defendants are represented by Marc Toberoff of Toberoff & Associates.
The cases are Marvel Characters, Inc. v. Lieber, case number 1:21-cv-07955, in the U.S. District Court for the Southern District of New York; Marvel Characters, Inc. v. Ditko, case number 1:21-cv-07957, in the U.S. District Court for the Southern District of New York; Marvel Characters, Inc. v. Hart-Rico et al., case number 2:21-cv-07624, in the U.S. District Court for the Central District of California; Marve Characters, Inc. v. Dettwiler, case number 1:21-cv07959, in the U.S. District Court for the Southern District of New York, and Marvel Characters, Inc. v. Solo et al., case number 1:21-cv-05316, in the U.S. District Court for the Eastern District of New York.
* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.
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