The Avenger’s Next Biggest Battle: Copyright Termination
The Copyright Act of 1976 allows artists to terminate a transfer of copyrighted material, thereby recapturing those rights, after the initial term has expired.[1]A copyright transferee cannot lose their copyrighted material for 35 years, unless the copyright was obtained before 1978 (which is the case here), in which the initial term can last up to 56 years.[2] Once this initial term expires, the original copyright holder has an additional five years to terminate the transfer of the copyright and reclaim ownership of their material.[3] So, if a writer assigns the rights to their creation to someone else for compensation, they will have another shot to retain the copyright after the initial term expires.[4] However, the Copyright Act of 1976 prohibits termination for people who produced work at the “instance and expense” of an employer, otherwise known as “work made for hire.”[5]
To determine whether a work was made for hire, courts tend to look to a number of factors first mentioned in CCNV v. Reid.[6] These factors include, amongst others, the level of skill required for the task; who provided the tools; who set the work schedule; the duration of the relationship; whether the hiring party could assign other tasks to the hired party.[7] In the present case, legal experts believe that the court may focus on whether Lieber et al. can be viewed as an employee under copyright law.[8]
Both parties claim that they were the original creators of the copyrighted superheroes. Marvel argues that Lieber et al. cannot terminate the copyright because the work was done for hire.[9] Marvel may focus their argument on their right to exercise creative control and that the artists were paid a per-page rate for their work, both of which would be relevant in the Reid factor analysis.[10] Lieber et al. claim that their work was not made for hire, as they worked as freelancers or independent contractors.[11] If Lieber et al. were to prevail, they would receive compensation any time Marvel uses one of their works in the future, as the copyrighted material would be jointly owned. [12] Although Lieber et al. will likely not directly contribute to future depictions of their characters, any future material from Marvel would be considered “derivative works” of the jointly owned copyrighted material, thus entitling Lieber et al. compensation.[13]
This is not the first time the comic book behemoth has fought with a former writer to retain their copyright over certain characters. In 2010, Marvel filed a similar lawsuit against artist Jack Kirby, in a case whose facts are “virtually identical,” according to Marvel, to the one at bar. [14] However, this dispute was settled before the Supreme Court could decide whether to hear the case.[15] Before settling, the Second Circuit ruled that Kirby was an employee of the company and that Marvel’s copyright could not be terminated.[16] If the settlement had not occurred, the Second Circuit verdict would have allowed Marvel to retain the copyright and Kirby would not be entitled to compensation.
While precedent may lead one to believe that Marvel will certainly prevail, a recent case may give Lieber et al. hope. Victor Miller, the screenwriter of the first installment of the Friday the 13th franchise, recently prevailed on his copyright termination claim against longtime producer of the franchise, Sean Cunningham.[17] The court ruled that Miller’s work was not done for hire, even though the screenplay was registered with the Copyright Office as such.[18] Miller convinced the court that, along with several other factors, he had significant creative control of the product and that his relationship with the producers of the film did not fit the definition of employee under copyright law.[19]
Fortunately for Marvel, the facts in the Friday the 13th case are distinguishable from the present dispute against Lieber et al. First, the Friday the 13th case focused on a movie franchise, while the Lieber et al. case focuses on printed material (the underlying comic books). One of the key Reid factors that this case may turn upon is the amount of creative control the writer/artist had when developing the character. [20] Marvel comic book writers use a collaborative model, where each writer is subject to Marvel’s editorial control.[21] This may demonstrate that Lieber et al. were employees of Marvel at the time the original copyright was filed. Miller, however, received sole screenwriting credit and was not viewed as an employee by the Writers Guild of America. [22] Further, the rights to Friday the 13th are not worldwide, meaning that Miller must still be prepared to negotiate with the studios who have the international rights if he wants to be compensated going forward.[23]. On the other hand, Marvel owns the complete worldwide right to its characters, which means that if Lieber et al. prevail, they will be compensated from any profits made internationally, provided it is a derivative work of the jointly owned material. [24] So, while Marvel should feel comfortable about their chances, the Friday the 13th verdict may cause them to be more worried this time around.
Footnotes
