Hero Rights – Chapter 1 | Dunlap Bennett & Ludwig LLC
Exploring the Law: Content Creators, Comics, and Copyright
Many of us grew up reading comics, watching cartoons on Saturday mornings and/or after school, and we’re currently in phase two of the most ambitious and successful film project of all. time: The Marvel Cinematic Universe. And DC also makes movies. While many of us debate whether Toby Maguire or Tom Holland is the better Spider-Man, few of us explore the decades-long history between Spidey’s origin and his current adventures. This applies even more to older heroes like Superman and Batman. For most of us, that’s not important. For publishers (and their many business partners) and for artists and their families, this could be essential to financial health.
These types of works are covered by copyright law. Much of modern American copyright law was codified and developed after the existence of some of these heroes. Comic strips in newspapers evolved into comic strips, which sometimes evolved into television series, movies, video games, and every type of merchandise imaginable. There are few properties more iconic than Superman or Captain America.
Compare that to properties in the public domain. Anyone can reference Tarzan, Sherlock Holmes, Robin Hood, King Arthur, Hercules, and yes, even non-Marvel versions of Thor. So, true believers, the first chapter of this blog will explore the law.
The Copyright Act allows authors or their heirs, in defined circumstances, when prescribed procedures are followed, to terminate the exclusive or non-exclusive grant of a license of the creator’s copyright of content on a work or of any right under a copyright. Content creators include writers, artists, and others. Termination provisions are codified in 17 USC §§ 203, 304(c), and 304(d). The specifics make this a more complicated analysis, with the applicable provision depending on a number of factors, including when the grant was granted and when the copyright was originally established. The law was intended to protect authors and their heirs from “unpaid deals.” In other words, when they were paid little for successful work. The law gives content creators a process to reacquire the rights to enjoy the subsequent success of their works by allowing authors or their heirs, within specified time periods after the initial grant of rights, to reclaim the rights to previous authors.
These rights are not exhaustive. Additionally, there is a limitation on termination regarding derivative works. This is also US law. These aspects are not necessarily part of our story (yet) and will be set aside for the rest of these Chapters.
Here is an overview of how a content creator or heirs can reclaim their copyright: A written and signed notice of termination must be served on the applicable current beneficiary. In our cases, Marvel or DC. Note that both comic book publishers are owned and/or part of larger corporate structures. For simplicity, we use “Marvel” and “DC”. Because ownership of a registered copyright is public information, a copy of the notice served must be filed with the Copyright Office. Their required form and content are listed in 17 USC §§ 203, 304(c), or 304(d), as applicable; 37 CFR § 201.10; and the Compendium of US Copyright Office Practices (Chapter 2300: Registration).
To terminate a grant, one must qualify under one of the termination provisions of Title 17, Section 203, 304(c), or 304(d). Some of the relevant factors have been noted above. But, to complicate matters, the date of grant is often decisive for the law that applies since the laws have changed over time.
- Article 203 applies to concessions executed by the author from January 1, 1978.
- Section 304(c) applies to grants executed by the content creator (or appropriate heirs) before January 1, 1978, only if copyright in the work was established before January 1, 1978.
- Section 304(d) applies to grants executed before January 1, 1979, only if the copyright in the was obtained between January 1, 1923 and October 26, 1939.
- In addition, the grant may be a “gap grant”. These occur when a creator awarded a grant before January 1, 1978, for a work created on or after that date. The Copyright Office has determined that “gap grants” may be terminated under Section 203 because a transfer prior to the existence of the copyrighted work cannot be effective/executed as long as the work has not seen the light of day. In cases of “gap grants”, the Copyright Office may file a notice of termination under Section 203 if the notice indicates that the date of performance of the grant is the date on which the work was created.
There are additional factors in determining who is eligible to apply for termination of grants/reacquisition of copyright, but these are not in issue regarding the subject of this blog.
Grants may be terminated during a specific statutory period and must specify the date on which termination takes effect. The effective date must be within a five-year “termination period”. The notice must be served at least two years and not more than ten years before the effective date. It must be registered with the Copyright Office before the effective date. The Copyright Office has published appendices and resources to help determine which rights apply to them and applicable filing procedures.
So what caused this blog? In actual comic book form, two particular lawyers have positioned themselves as opposing heroes (Think Magneto and Professor X). One represented content creators and their heirs. The other represented publishers. They fought for the rights of Superman, The Fantastic Four, X-men and others. With the huge success of the Marvel Cinematic Universe, the war escalated and Marvel affirmatively sought court intervention to preemptively ban copyright reversions on many MCU characters. Despite these past and ongoing battles, some cases have settled before the theoretical final adjudication. But, so far, cases appear to have been settled on what many might call a decades-old loophole – a tiresome but critical legal difference listed in contracts.
The key difference was whether the content creators were under contract for what is called “work for hire” or not. To summarize, “work done for hire” means that the creator was a mercenary, working on behalf of another and never had any expectation or right to believe that the work belonged to him or his heirs.
As it turns out, for a while DC didn’t list the status of work done for hire, while Marvel, which was created years after DC, clarified the status of work done for hire.
Stay tuned for Chapter 2…