Marvel sues comic book artists over rights to Iron Man, Spider-Man, others

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A giant spider-man balloon is seen above the red carpet along a closed Hollywood Blvd. outside the TCL Chinese Theatre for the World Premiere of Marvel Studios' "Spider-man: Far From Home" in Los Angeles, California, U.S., June 26, 2019. REUTERS/Danny Moloshok

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  • Co-creators of 60s Marvel characters filed termination notices over works
  • Marvel says artists can't terminate rights because works made for hire

(Reuters) - Marvel sued comic book artist Larry Lieber and the estates of artists Steve Ditko, Don Heck, Gene Colan, and Don Rico on Friday, seeking court orders that the artists can't terminate its copyright interests in characters they co-created including Iron Man, Spider-Man, and Thor.

The artists' creations were works made "for hire" for Marvel, Marvel owns them in perpetuity, and the artists can't reclaim rights in them under the Copyright Act, Marvel argued in the complaints.

The artists all wrote and illustrated Marvel comics in the 1950s, 60s, and 70s. Lieber and the estates of Ditko, Heck, Colan and Rico filed several notices this summer claiming to terminate their grants of copyrights to Marvel and its parent company Disney in comics they wrote.

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Marvel sued Lieber and Ditko and Heck's estates in Manhattan federal court, Colan's estate in Brooklyn federal court, and Rico's estate in Los Angeles federal court asking the courts to declare that their termination notices were invalid.

The artists' attorney, Marc Toberoff of Toberoff & Associates said the lawsuits were based on "an anachronistic and highly criticized interpretation of 'work-made-for-hire' under the 1909 Copyright Act that needs to be rectified."

Marvel attorney Dan Petrocelli of O'Melveny and Myers said in a statement that "since these were works made for hire and thus owned by Marvel, we filed these lawsuits to confirm that the termination notices are invalid and of no legal effect."

Under the Copyright Act, an artist can terminate a copyright assignment after 35 years by giving notice at least two years in advance.

The artists' notices supposedly terminate Marvel's rights "along with all the characters, story elements, and/or indicia appearing therein," and "all material" they authored that was "reasonably associated with these works" and registered or published in the termination window. The notices say the copyrights will revert to the artists beginning in 2023.

The Copyright Act's termination provision doesn't apply to works made for hire, however, and Marvel argued this prevents the artists from recovering the copyrights.

In the Friday complaints, Marvel argued that it assigned the artists stories to write and illustrate, had creative control over them, and paid them at a per-page rate.

Marvel also said that a Manhattan federal court and 2nd U.S. Circuit Court of Appeals previously ruled for it in "virtually identical circumstances" against illustrator Jack Kirby's heirs. The heirs had filed termination notices for works with characters he co-created including the Hulk and the Fantastic Four.

That case settled in 2014, as the U.S. Supreme Court was set to consider whether to take it up.

Toberoff also represented Kirby's heirs in that case.

"At the time, I was asked whether I regretted not righting the legal injustice to creators - which I indeed did," Toberoff said. "I responded that there would be other such cases. Now, here we are."

The stories listed in Lieber's notices feature Iron Man, Thor, Ant-Man and The Wizard. Lieber is the younger brother of late Marvel legend Stan Lee.

Heck's estate also claims rights to Iron Man, as well as Hawkeye and Black Widow. Rico's estate also filed to terminate his rights related to Black Widow.

Ditko's estate filed notices over stories featuring Spider-Man and Doctor Strange. Colan filed notices related to Captain Marvel, Falcon, and Blade.

The cases are Marvel Characters Inc v. Lieber, U.S. District Court for the Southern District of New York, No. 1:21-cv-07955; Marvel Characters Inc v. Ditko, U.S. District Court for the Southern District of New York, No. 1:21-cv-07957; Marvel Characters Inc v. Dettwiler, U.S. District Court for the Southern District of New York, No. 1:21-cv-07959; Marvel Characters Inc v. Colan, U.S. District Court for the Eastern District of New York, No. 1:21-cv-05316; and Marvel Characters Inc v. Hart-Rico, U.S. District Court for the Central District of California, No. 2:21-cv-07624.

For Marvel: Dan Petrocelli and Molly Lens of O'Melveny & Myers

For the artists: Marc Toberoff of Toberoff & Associates

Read more:

Comic book legend Jack Kirby's heirs settle with Marvel

Marvel artist Kirby's heirs lose appeal over copyrights

Marvel artist Kirby's heirs lose copyright claim

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com