Marvel Entertainment is suing to keep full rights to it’s comic book characters. I am an intellectual property and copyright lawyer here to answer any of your questions. Ask me Anything!

The same attourney is representing the family of Marvel creators that represented those in a similar lawsuit against DC comics. What has changed That they think they can win now?

u/neuromorph, technically, they did not win or lose, last go 'round! What happened was that the Circuit Court disagreed with the artists who created the characters, but they appealed it all the way to the Supreme Court of the United States (SCOTUS) and then it settled outside of court before SCOTUS heard the case.

Would love to see this answered.

Yeah, for real! That's why it's so significant that these new lawsuits were filed

How would Disney/Marvel losing this case affect other, non-entertainment companies that hire employees that design products like engineers? Would engineers have grounds to sue their current/former employers for money related to products they’d designed while employed?

Yes, it could have monumental effects. Like I said earlier to u/angelisticth0ughts, there's a major "gig worker economy" (almost 30% of all workers) that could argue that the IP they create (like you said, product/software engineers) that could then use that case holding against the employer and argue that they do in fact own the IP they created.

What do you think the implications could be with regards to how this may impact DC Comics and Disney's power as one of the Big Five major studios?

Could Disney get into anti-trust territory, or is that not relevant in IP/creative law?

u/billsilverman1124 that's a very interesting idea. Anti-trust law has not, to my knowledge, been applied against copyright IP before, at least not in a case of this magnitude. Obviously the studios are merging a great deal, but I think it's a stretch to consider ownership of comic book copyrights a "monopoly." They can't, for example, prevent other studios from making movies about super heroes, so long as the new movies are not about marvel copyrighted heroes. Said another way, as long as they create entirely new super heroes, Marvel couldn't stop them, and therefore, do not have a monopoly that anti-trust laws would or could prevent.

Will we ever see these characters enter the public domain or is the idea of the public domain essentially dead and gone?

What are your thoughts on shortening copyright lengths?

u/PYTN, sadly I think public domain rights are dying out. Disney, and others, appear to be able to extend the rights indefinitely, and I think the economics involved have sort of "locked in" the status quo.

This actually reminds me of housing prices. After WWII, the government wanted to incentivize people to buy new homes, so they created the "Homestead Exemption," meant as a temporary incentive (this allows people to reduce a solid amount of their taxes for the home they purchased). But, it worked like wonders, too well even, and caused millions of families to go out and buy homes. This raised the price of homes, and home values, which was then what a lot of family's money was tied up in. So, if the government discontinued the Exemption, housing prices would plummet, which would cause people's net worths to also fall, and may even cause a market crash! Because of all of that, they locked in the exemption, even though it was intended to be only temporary. We still have it today!

I don't think this example is nearly as dramatic as the Homestead Exemption, but I think that's illustrative of what could happen, economically, and probably why Disney and other similar companies will shell out loads of money to maintain the status quo.

Do you think Disney is taking this aggressive approach to Marvel Copyright because of how their lawsuit with Spiderman and Sony ended?

u/Vegetable-Golf4022, they're asking the judge to essentially make a "declaratory judgment" on the facts as it stands, so that they can invalidate the prior termination filings made by the creators (and their estates). If this judge agrees that the artist's termination filings are invalid, Disney (Marvel) gets to basically keep ALL royalty income generated by all of this intellectual property (IP), which is apparently billions annually

Doesn't the law also say that it can be considered "work made for hire" if they sign something agreeing to that? Otherwise, couldn't anyone that's done commission work come back and claim copyright?

u/unibrow4o9, yes, you've got it right, but the laws on this are, as we say in the legal world, very "squishy." There's no bright line rule, it's not black and white whether or not these artists were "work for hires" or creating the IP and selling licensing rights to Marvel. There's a moral issue, too. Typically, these guys were paid a very low rate "per page," and that was all. So, this one guy created The Hulk, was paid let's say $100 for that page (it was probably less in the 60s), and that's ALL HE EVER GETS. Does that make sense? So, Disney makes billions off of the IP, literally, and the artist who made it gets like a week's rent or something. It just looks bad, on its face. Legally, I think Disney has it, but morally, it just seems harsh...

Also, to your Q, they didn't sign anything saying it was in fact a WFH (work for hire) b/c they weren't thinking that far ahead, back then, they just didn't imagine that comic books made for kids with low publication rates would become such a behemoth and be so profitable. They were, however, paid that flat rate, and in some (not all) cases, Marvel would tell them what to do and what not to do. That "creative direction" helps Marvel's case out b/c it looks more like they were hiring the artists to create something that Marvel already had the idea to create, rather than artists making a character and licensing it to the highest bidder.

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We can argue that it sets a precedent, yes, but I don't think it's a very strong precedent.

And yes, Disney definitely has way more money to "throw at" this problem than the artists do, and sadly, that's definitely a factor.

Is there any chance that the big mouse will actually lose those IPs, or is it more likely they’ll keep everything like normal?

u/cdman2004, there's definitely a chance that they lose the IPs. I just imagine that Disney would shell out a ton of money in a settlement before allowing it to get to a judge who may side with the artists. If that were to happen, then I'd expect that 50% or so of Disney's IP may be up for grabs by the hired artists that worked on them throughout the last hundred years!

So, yeah, Disney is very incentivized to settle this one outside of court unless they feel very strongly that the judge will side with them.

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u/dexter30, Many other countries have laws that are a great deal more favorable to the artists than US based law. There's a special set of laws in the EU, for example, that allow the artist to remain in more control of how their art is utilized, even if they were hired to create it. As it stands, now, it's common for songwriters to have politicians (that the artists themselves hate) use their songs on their campaigns. Normally, this is fine as long as they pay the copyright owners a royalty, but since it's literally promoting a politician they dislike, the artists can get upset. In the US, there's little they can do, but in Europe, they have much more options. I'm no European lawyer, though, so take my response with a grain of salt :-)

Why shouldn't these characters be public domain by now?

u/phillipkdink, I don't disagree. I think my earlier post about what would happen to Disney if they gave over the royalty rights, since they're a publicly traded company, should answer at least why it's not happening right now.

I'm not sure I understand the argument that "work made for hire" only applies to full-time employees. It's true that work done as a full-time employee is covered in the act, but the next section outlines the other circumstances including "Work specially ordered or commissioned for use as a contribution to a collective work" which I think pretty accurately describes comic book creation. Also, I don't know the Marvel contracts inside and out, but there's a potential that "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." So could you elaborate on that?

u/generalzee, sure thing! First off, it doesn't sound like there was any signed contract specifying it as a "work for hire." I think that, if there was, the artists wouldn't really have a leg to stand on, and it probably wouldn't be worth it to them to even try suing.

Also, these (mostly verbal) agreements were made in the 50s-70s, for the comic characters at issue, and one of our main Copyright Acts is from 1976, so one could argue that no one really used those legally active words "work for hire," back then, because they had not yet been codified into law as legally active words.

TBH, I think the artists have a pretty decent case. They definitely created the art in question, and they can argue that they only sold the "pages" to Marvel, and maintained the copyrights to the characters within them.

Work for hire laws are a lot like misclassicifation laws: it's a squishy test that you need to do to determine if they were truly independent or if they were "misclassified as a 1099 but should have been treated and paid as a W2."

What if you created a character in a story and that story was kept for sale, say as a book (/graphic novel, etc.) on a website but no one bought it for say 10 years (maybe it wasn't advertised well, or at all). Would that still count as actively being used? I think IP law is designed to incentivise creation and use-in-commerce/ economic growth, so how strict are abandonment issues with a scenario like this?

u/Waikiki_Kush, that's a great question! You can abandon property by failing to use it, yes, but if there's any button on the site to pay for it, I'd say it's a thin argument. I guess someone could (maybe?) get by with a donations appreciated link, but not sure without really researching it.

But yes, your economic arguments are the types of arguments these artists will be making--it's better for society if people get paid royalties for artwork they create.

It id my belief that Disney intends to deliberately loose this case, returning control of Spider-Man (And others, but crucially Spider-Man) to the estate of Steve Dikto. From there I believe they intend to negotiate for the use of Spider-Man with Dikto's estate for exclusive use of the Spider-Man character in their movie properties.

In short, whilst this is my instinct, I don't know the legality and ins and outs of such a plan. Is it feasible that this is what could be taking place?

u/Amanda-the-Panda, as a major comic book fan, I sincerely hope that that is their intention. However, as a lawyer that works with these sorts of cases, I seriously doubt that that will take place. Disney is a publicly traded company, and the IP we're talking about is worth hundreds of millions of dollars, if not billions. If they were to just give it back to the artists, the Disney Shareholders would have a case to sue the crap out of Disney for mis-management, adding to their already steep losses that they'd be looking at.

Do you foresee any end to the Mickey Mouse copyright extensions? Would you come out in favor or against such extensions?

I'm actually a bit inclined to think that while a character remains in active service of its original creator (in this case, Walt Disney Animation), it should stay under copyright. I can't imagine a scenario where knock-off non-Disney cartoons featuring Mickey or Minnie or other protected characters would A. be good for Disney (most definitely not) and B. be good for consumers (issues with quality).

u/baltinerdist, yeah, I agree that the copyright extensions likely won't end anytime soon. Disney has kept extending them every decade that their copyrights come up.

As an artist, though, I'd love to see people's new versions of those characters, untethered from Disney's control. I think that could make for some very interesting derivative works.

I don’t know much about the history of comic books but i did think that the majority of heroes and storylines were written by multiple different people, for instance Spiderman might have been originally conceived by Stan Lee but multiple writers have used in him in the past in their comics. How does this come into play when considering who actually has the rights here or even whether or not they would be considered a work for hire?

u/joeytheconqueror, yeah, good Q, it does get confusing. I think the derivative rights to copyrights that I explained below u/Blackdoomax begins to answer it.

That said, once the Copyright Act of 1976 was put in place, most companies had a signed work for hire contract that plainly laid out the terms--namely, that Marvel (Disney) owns full rights to everything they create, no matter what. So it really doesn't matter that more people worked on it after the first artists--since they'd all be under a work for hire contract.

Can I copy some artwork and change it up a little bit so it doesn't look obvious?

u/Blackdoomax, LOL, like copying people's homework in grade school? That'd give you a "derivative work" copyright, which sort of sits on top of the main copyright.

A good example of this is the Obama artwork used for his 2008 campaign, where those color blocks were used--it was a picture of his face.

Later, the photographer who took the photo that was then changed in that artistic way, sued for copyright infringement. That photographer did in fact own the rights to the copyright, and I believe they won the lawsuit against the Obama campaign. However, the Obama campaign would have rights to their derivative work--how they changed the photograph from a normal one to one using color blocks.

I am about to complete the first deraft of my novel. Do I have copyright rights, or does that only apply to finished works?

u/newbillbecause, so, call us first :-) Yes, though, technically by way of the 5th Amendment, you are the owner of that copyright, however, without a copyright registration, it's a lot more difficult to prove your ownership. I'm writing a novel as well, and recently copyrighted it (even in its draft form) so that I don't have to worry about losing rights to what I've written so far.

Seriously, though, call someone to get it copyrighted, that can save you tens of thousands.

If I understand this correctly, this lawsuit is specifically dealing with ownership of characters whose creators are dead. It’s not about returning rights to the creators (who largely did this creative work on a for hire basis) but returning rights to their creator’s estates and families.

Why is the estate or descendants of a creator any more entitled to owning the rights of a property than a company that has spent several decades and potentially millions of dollars developing and marketing that same property?

u/wwhsd, yes, though there's 1 surviving artist, who is now 89 years old I believe.

I'd love to wax philosophical with you on that one, I guess it gets down to how much we want heirs to be able to inherit wealth from their late ancestors.

But yes, Disney does have that argument.

Don't you agree that the writers/creators should be allowed to reclaim their rights to their work? If they do, it's not even that Marvel cannot continue making movies with these characters, they simply have to share the profits right!? Seems like a lot of work for Disney to go through and makes them look pretty bad. What are your thoughts?

u/alexbovs, yes I do agree, and you're right--Disney can definitely continue making movies and everything, they'd just have to pay the royalty rights to the artists. These royalty rights, however, are very very large, and Disney's a publicly traded company, so they have to make decisions "in the interest of their shareholders (profitability)." If they just gave back the rights, they'd lose hundreds of millions (not sure of an exact number, but it'd be very large for all the movies, merchandising, theme parks even), and that'd make Disney vulnerable to what are called "derivative suits" from shareholders.

I think that in order for Disney to give back the rights, we'd need to have public outcry that makes it more profitable for Disney, as a company, to give back the rights to the artists (and the public goodwill that would result from that) than it is for Disney to keep that royalty money "in house."

I'd say this was a bit like it was for Nike when they hired Colin Kaepernick for their ad campaign. At the time, athletes that were taking a knee during the anthem made some Nike customers very angry, but I think Nike made a lot more profit from choosing to support Mr. Kaepernick, even though they may have lost some customers that were mad at Nike for supporting him.

is this so other theme parks can suddenly not use marvel anything and thus killing 1/2 of universal studios? I guess it also goes to Sony since spider-man is now 'unofficially' done with marvel and now with sony and I can't see how they won't want venom and spiderman in a movie after I see 'no way home' and the new venom since they're both fully sony.

u/Edwardc4gg, not exactly--you can continue to make movies and theme parks with the copyrighted works, you'd just have to send royalties to the artists.

As an attorney with an interest in Marvel characters, how often do you disguise yourself with a mask and go out to fight crime?

This year, I plan to be The Crow, which isn't a mask, per say, but plenty of face paint.

schnickty-schnickty-shine!

A friend designs custom patterns for fabrics. How can his designs be legally protected?

u/paul99501, protecting fabrics is pretty difficult to do. Normally, the Copyright office doesn't allow copyrights for fashion. Sometimes, you can try and get a patent, but that's an uphill battle, and very expensive. My advice would be to create an awesome Trademark, and have a lawyer file to protect it. If you have your friend call my office, I'll waive the consult fee. 470-268-5234, just mention this article.

How do you personally hope this gets resolved?

u/silveraith personally, as an artist, I'd love for the US to issue a sort of "Moral Rights" law that's a bit like laws in the EU, so that artists could control some of the use of their artwork.

I don't really see that happening, though, at least not from this case.

I'm kind of on the fence with this one, since the creators have all passed away (except 1), and Disney has invested a huge amount of time and money into developing these characters and making them into the franchise we all know and love--to take that away from them seems a little unfair. But, it was also unfair that the artists didn't see any meaningful money during their lifetimes for the great characters they created, either.

What does this mean for the potential re-release of Marvel vs Capcom 2?

Man, can't wait! I've still got my SFII arcade in my basement!

It'd just mean that royalties for the release would need to be paid to the artists, but shouldn't impede their ability to release it. It's like that post I made earlier u/dexter30 about musicians that hate their songs being used by politicians they don't like. Copyrights (in the US, not so much the EU) only gives you royalty rights, not the right to control or stop someone from using the copyright to make something.

I’ve come up with original characters based on mouse character lineage any chance I would have any leg to stand on if I changed their origins?

u/Twinsgohome, so it's a gradient range or risk for you. If you make a character that's not at all like the Disney Mouse, who just happens to be a mouse, or even just some nondescript "rodent," then Disney doesn't really have a case against you. However, if you make a character that's exactly like Mickey except for he's 4 feet tall rather than 3 feet, or something trivial like that, then Disney can easily argue that you're infringing on their copyright. I did a blog post about the DJ Mouse guy, and his troubles with Disney many years ago, so clearly Disney gets litigious if there's any argument that it's similar:

https://sparkslawpractice.com/blog/trademark-basics-part-1-disney-sues-famous-dj-for-infringement/

I always see digital artists create and sell fan art online of big IP. I am assuming they are small enough to fly under the radar. How legal is this practice, and what would happen if the original ip decided to pursue legal actions as against an individual?

u/piches, yes, you're correct. If the big companies decided to go against them, they'd assuredly lose, but unless they're making more than the legal fees it would cost the big companies to litigate it, and they could recoup that money (the artist doesn't just file bankruptcy after losing the lawsuit) it's probably not worth it for the big companies to go against them.

I was at a Velvet Revolver concert (the old Guns and Roses guys with Scott Weiland) and bought a shirt from a vendor that wasn't "sanctioned" by the label or band, so he just took the money. I went to get Slash's signature on it, and he figured out what had happened, winked at me, and wrote F Off on the shirt.

I still felt cool, LOL

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Gonna go with the BLT

I’m on your side, sir, and think you’re doing great work, but quick question: will you be billing your clients for this hour long AMA?

u/Smerbles, LMAO, I mean, I guess I could post a PayPal link for folks to buy me a couple rounds, but no, just having fun :-)