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  1. #31
    Dark Dimension Clea's Avatar
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    The Mouse has now weighed in. Disney is suing for control of all of the Avengers characters: https://www.hollywoodreporter.com/bu...on-1235020110/
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  2. #32
    Cosmic Curmudgeon JudicatorPrime's Avatar
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    Quote Originally Posted by Revolutionary_Jack View Post
    That's late'90s not 2019. Congress didn't pass any PD extension in 2019 (for one thing it's gotten more controversial now that people know about this stuff).
    1990s? Are you sure?

    My understanding is that the original copyright laws allowed for protection of an initial period of 28 years, plus a renewal period of equal length, or a total of 56 years. Even without the Copyright Act of 1976 law or the 1998 Copyright Term Extension Act, Spider-Man's copyright protections would have expired at the end of 2018 (1962 + 56) with him entering public domain January 1, 2019. The effect of both acts do forestall Spidey entering the public domain until much later.

    I'm admittedly not an attorney or legal scholar, but I gladly welcome insight from anyone who is. This stuff can be a little confusing.

  3. #33
    Astonishing Member Drops Of Venus's Avatar
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    Not to sound like a shill for corporations, but I don't think it's unreasonable for Marvel to own their characters. Like, yes, Ditko & Lee were essential for the Spider-Man stories in the early days... but they stopped creating stories for the character ages ago, and he has been through the hands of many other creators over the years. I don't know enough about US law, but it sounds exactly like work for hire: people come, they make something for the company, then they leave and that thing they made keeps going, changing, developing through the work of others, with the only constant being Marvel, the company, controlling the character and making sure he sticks around. If Ditko created Spider-Man and continued to be the one and only source of Spider-Man content up until the day he died, controlling every single piece of media that gets made about him... I would totally agree his estate should have the rights over the character. But we know that's not how things went down. Spider-Man, like pretty much every Marvel character, outgrew their creators. So how do you legally argue that a single individual owns the character in this particular scenario? Who can truly own Spider-Man, when Spider-Man is not the work of one person, but a collaborative effort that's been happening, and hasn't stopped, for over 60 years? I think it's a very complex situation, and I can see why the companies tend to be favored in those cases, because they are the ones who put the characters where they are today.

    I do think that creators should be compensated better, though. If they or their heirs want more money, I won't say they don't deserve it. So I'm all for a good settlement so they can get their due. I just don't think that copyright ownership is a hill they should die on when it comes to a company like Marvel or DC.
    Last edited by Drops Of Venus; 09-24-2021 at 02:20 PM.

  4. #34
    Cosmic Curmudgeon JudicatorPrime's Avatar
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    Quote Originally Posted by Jabare View Post
    No chance. NO Chance!

    This is why Disney keeps all those lawyers on retention.

    I don’t know how strong their case is, but let’s just assume they have a very strong case. That there is a strong precedent for this.

    Disney’s going to win regardless. They’ll either give them the carrot or the stick.

    Ain’t no way this justice system or this Supreme Court sides against Disney, if it even gets that far.
    It wouldn't surprise me if the plaintiffs sought this legal action fully intending to settle. But if this goes to trial, things could get really ugly, fast. The Mouse, unfortunately for them, has row after row of shark teeth and resources aplenty to retain law firms that make O'Melveny's per partner revenue look like the spare change that you find in between the sofa cushions at a homeless shelter.

  5. #35
    Extraordinary Member Revolutionary_Jack's Avatar
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    Quote Originally Posted by Clea View Post
    The Mouse has now weighed in. Disney is suing for control of all of the Avengers characters: https://www.hollywoodreporter.com/bu...on-1235020110/
    It's a counter-suit and a typical legal response. Absolutely to be expected.

    Quote Originally Posted by useridgoeshere View Post
    Please. It's insulting to real historical injustices to act like a guy willingly doing his job, getting paid, and living freely is some crime.
    The comics business was fundamentally exploitative and based on contracts that contravened laws and legal protections in any other business, so in that respects yes it is "some crime" that has taken place with Marvel exploiting Ditko's creations without paying him due royalties and fair shares, while creating a coercive labor market that represses union representation and collective bargaining.

    These are not even direct descendants of Ditko.
    That's irrelevant as far as the law is concerned. They are the Ditko Estate and the legally recognized custodians and inheritors of Stephen John Ditko and his works. The Estate is headed by Ditko's brother and his family. Steve Ditko in multiple accounts before his passing and afters was reported to have had close relations with them (as opposed to Stan Lee and his daughter, let's say) and there's no suggestion or claim of disinheritance.

    The Estate is entirely within its rights to prosecute for benefits on behalf of the deceased.

    This is two money-driven entities and their IP lawyers each trying to grab as much cash as they can. I'm not going to pretend otherwise.
    I would argue, that equivocating the world's biggest entertainment corporation and a family estate of an individual artist as equivalent (morally, economically, socially) in power level, is the true pretense.

    Quote Originally Posted by Drops Of Venus View Post
    Like, yes, Ditko & Lee were essential for the Spider-Man stories in the early days... but they stopped creating stories for the character ages ago, and he has been through the hands of many other creators over the years.
    There's mountains of evidence that one can point and unearth that Marvel kept using Steve Ditko's name and legacy to justify and promote later storylines and ideas. Marvel Editors and writers of multiple generations from the 1970s to the 2000s and the 2010s all claimed that they derived their ideas from "Sta[n, Jack and Steve" and new writers and others keep justifying ideas and concepts based on their interpretations of Steve Ditko, so I think claiming that Marvel evolved from the Lee and Ditko days, to the point of having no connection to them, is impossible to argue.

    Marvel prides itself on continuity unlike DC with its multiple reboots and that works against them when people use these kinds of reasoning.

    Besides that creates a double-edged sword. If Marvel argue that Spider-Man and others evolved away from Ditko, that leaves open the door for later writers and artists to go to the mattresses with regards to characters, concepts, stories they developed for the character. Like Gerry Conway could claim full rights, if he so chooses to fight it, over The Night Gwen Stacy Died.

    I do think that creators should be compensated better, though. If they or their heirs want more money, I won't say they don't deserve it.
    Here I agree.

    I just don't think that copyright ownership is a hill they should die on when it comes to a company like Marvel or DC.
    Here I disagree.
    Last edited by Revolutionary_Jack; 09-24-2021 at 02:35 PM.
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  6. #36
    Dark Dimension Clea's Avatar
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    Quote Originally Posted by Revolutionary_Jack View Post
    It's a counter-suit and a typical legal response. Absolutely to be expected. ...
    Yes, Disney's countersuit was expected, but they appear to have broadened the scope far beyond the Ditko-related characters to all of the Avengers (possibly any MCU character and possibly all Marvel characters. This Hollywood Reporter article is a bit fuzzy on the details). I think Disney wants to shut down all future lawsuits involving any Marvel legacy/work for hire created content. I see both sides of this situation. If I represented Disney/Marvel, I'd probably do the same thing. If I was a content creator who signed a work for hire agreement because that's pretty much all that was available if you wanted to work for one of the major comics companies, I'd probably sue. I personally side with the creators, even when the work for hire status of the character is clear. They deserve a piece of the billions that Disney/Marvel is making from their work. I think that Disney/Marvel ought to give a decent payment to the content creators (or their estates) now that these characters have been transformed from a bit of throw away, ephemeral entertainment into a multi-billion dollar film and tv franchise.

    I expect the Ditko suit will be settled privately and the estate will get some sort of lump sum payment, and Disney will put Steve Ditko's name in sparkly credits in future Spider-Man and Doctor Strange MCU appearances. Nobody wants to see these characters end up in lawsuit limbo.
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  7. #37
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    I've seen a lot of discussion on this subject over the years that often doesn't understand the basics of how a) things were not as clear in the early 1960s as subsequent developments would like and b) these cases are based on laws passed after the 1960s. I am not a lawyer but I did do some intellectual property when reading law at a British university and have since read a bit on the US copyright laws as they apply to the various comic cases. So here's my best attempt to explain the basics of the copyright laws and how they apply in this case:

    Back in 1962/3 when Spider-Man was created US copyright was governed by the 1909 Copyright Act. The key relevant provisions were as follows:

    * Works would be copyrighted for a first period of 28 years from publication.
    * At the end of 28 years the work would lapse into the public domain unless the creator renewed the copyright for a second period of 28 years.
    ** This provision (which goes all the way back to the 1790 Copyright Act) recognised that many creators sign uneven deals early in life and by allowing those who created a successful copyright to reclaim it they could then negotiate a better deal for the second term. However this was undermined by contracts that assigned the renewal rights to the purchaser at the time of creation with the Supreme Court upholding this in, IIRC, 1943. In practice signing over "all rights" at the outset became a default standard.
    * The right only applied to the legal creator. In the case of a work made for hire the employer was deemed to be the legal creator and so the writer or artist etc... did not transfer a copyright and did not have a renewal right.
    * What constituted a work made for hire was not clearly defined in law. It applied in the case of people employed to create (staff writers etc...) but it was ambiguous as to whether it applied in the case of works specifically commissioned.
    ** A succession of court rulings applied the "instance and expense" test that generally found commissioned works to be work for hire. But this was also not clear in 1962 - I think the test was defined in 1965.

    It is a struggle to see what practical difference there was between a work for hire and an all rights copyright transfer in 1962. Either way the publisher got a copyright & renewal right for a total of 56 years and the creator got paid. And this is key because the contracts from the time often a) weren't in writing and b) didn't clearly anticipate subsequent changes in the law that would make this significant.

    Now the same year that Spider-Man was created the US Congress started passing a series of extensions to copyrights designed to keep works in copyright pending a major overhaul of the legislation that would make terms longer and also bring the US law closer to international norms (although it didn't join the Berne Convention until 1988 but some of these changes were essential to allow it to do so; please also note that US intellectual property law changes have often been following international developments as the US moved from its days as a copyright pirate to a net exporter rather than just Congress being concerned about a mouse).

    In 1976 a new Copyright Act was passed taking effect from the start of 1978. The key provisions were:

    * For works created before 1978 and still in copyright the second term was extended from 28 to 47 years for a total combined period of 75 years.
    * Creators who had transferred copyrights or their heirs (narrowly defined to widow/ers, children and grandchildren) were given the right to reclaim the copyright for the new extended period. (After all when they agreed the contract these extra 19 years were not there.)
    * This right was inalienable and could only be exercised in a specific window of time. It could not be signed away in earlier contracts or disavowed.
    * Work for hire was now defined in law going forward with a requirement for commissioned works to be explicitly agreed to be work for hire in contracts at the time of commissioning.
    * But pre 1978 work for hire questions still had to be determined by the court tests.
    * (Plus various other provisions about copyright lengths for works created from 1978 onwards but that's not so relevant here.)

    In 1992 the requirement to register for the second period was removed with all works from 1964 onwards automatically renewed. Creators and heirs could still file to claim the renewal.

    In 1998 the Sonny Bono Copyright Term Extension Act was passed. This:

    * Added another 20 years to the period of copyright (just a few years earlier the European Union had made the same extension).
    * Allowed creators or heirs to reclaim the copyright for the additional 20 years.
    * Relaxed the definition of heirs allowing executors and/or next of kin to file for termination.


    So what does all this mean in this case?

    1). The same laws that created & extended the lengths of copyrights have provided for them to be reclaimed. All the parties to the case potentially benefit from those laws in different ways.
    2). Whatever Steve Ditko believed or said or did in his life about the copyright transfer is irrelevant. His heirs have every legal right to revert copyrights he transferred no matter what his wishes or for that matter just how much he was paid at the time or in subsequent decades.
    3). An agreement made in 1962 was made in the (presumed) knowledge of the law in 1962. Not in the knowledge of what the law would become from 1978 onwards (or legally even in the knowledge of what Congressional committees and government offices were talking about in 1962 as they contemplated a possible legal change).
    4). The window for when a copyright transfer can be terminated is narrow so it's irrelevant what was said and done in the 1960s through 2000s.
    5). A key points in the case will be whether Steve Ditko's work for Marvel done as work for hire or did he create a copyright and transfer it? Only in the latter will there be anything to reclaim.
    6). If there is a transfer to be terminated then there is the subsequent question as to how the copyright in a comic is actually divided up between separate collaborators - I'm not sure the copyright laws had comics in mind when they were written.
    7). The Ditko Estate has not sued Marvel. Rather they have filed termination notices. Marvel have sued on the grounds that the Ditko Estate does not have the right to make such a claim.


    There are a lot of similarities with the Kirby heirs case a few years ago though some of the points of fact may be different (for instance did Ditko get asked to come up with something for Strange Tales and came up with Dr Strange or did he have the idea and pitched it to Marvel with the option of trying elsewhere if it was refused?) but the precedents are strongly on Marvel/Disney's side with all courts that heard the Kirby case ruling for Marvel. A settlement was made just before the Supreme Court would have decided whether or not to take the case. Given the case history it's likely that Marvel or more likely Disney decided settling was the best option but opinion is divided on what the Supreme Court would likely have ruled if it had and thus whether this decision was done because of the legal risk was deemed to great or if it was a political decision given the way the talent unions were signing onto the case.

  8. #38
    Incredible Member chicago_bastard's Avatar
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    Quote Originally Posted by Clea View Post
    Yes, Disney's countersuit was expected, but they appear to have broadened the scope far beyond the Ditko-related characters to all of the Avengers (possibly any MCU character and possibly all Marvel characters. This Hollywood Reporter article is a bit fuzzy on the details).
    They have countersued those who sued them first. Not only Ditko but others like Larry Lieber, Gene Colan, and Don Rico (or their heirs) have filed termination notices, this is Marvel's response to them.
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  9. #39
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    Quote Originally Posted by Reviresco View Post
    I don't know if the Everetts are interested. I'm not sure his son is still alive. His daughter Wendy was around ten years or so ago.
    IIUC the window for reclaiming Namor has now passed.

    Quote Originally Posted by Clea View Post
    Yes, Disney's countersuit was expected, but they appear to have broadened the scope far beyond the Ditko-related characters to all of the Avengers (possibly any MCU character and possibly all Marvel characters. This Hollywood Reporter article is a bit fuzzy on the details). I think Disney wants to shut down all future lawsuits involving any Marvel legacy/work for hire created content.
    Or it could be that multiple creators/heirs have filed termination notices and to stop such a termination Marvel/Disney has to sue to protect its interests and get a court to that there was no transfer to terminate thus the notices are invalid. The window for terminating transfers for early 1960s Marvel is closing up soon so if a creator or their estate isn't happy with what they're currently getting then they have incentive to try this now but not for much longer.

    If I was a content creator who signed a work for hire agreement because that's pretty much all that was available if you wanted to work for one of the major comics companies, I'd probably sue. I personally side with the creators, even when the work for hire status of the character is clear.
    If it was clearly work for hire then the case would be easy to shoot down in court. It's not about what is fair or what was all that was available at the time. It's about what is was and is legal.

  10. #40
    Extraordinary Member Revolutionary_Jack's Avatar
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    Quote Originally Posted by Clea View Post
    Yes, Disney's countersuit was expected, but they appear to have broadened the scope far beyond the Ditko-related characters to all of the Avengers
    That's because it turns out that the Ditko Estate was one of many copyright termination notices filed. Larry Leiber, Gene Colan's Estate, Black Widow's creator have all filed termination notices.

    It seems that all of them have pooled together on this.

    So that's why Marvel is counter-suing.

    I think Disney wants to shut down all future lawsuits involving any Marvel legacy/work for hire created content.
    They want to be intimidating certainly.
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  11. #41
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    Quote Originally Posted by chicago_bastard View Post
    They have countersued those who sued them first. Not only Ditko but others like Larry Lieber, Gene Colan, and Don Rico have filed termination notices, this is Marvel's response to them.
    Just to clarify but filing a termination notice is not suing. Of course once the legal notices have been issued it will take a court order to invalidate them and so Marvel/Disney have sued to get that but it is not the heirs or their creators who are the plaintiffs.

  12. #42
    Extraordinary Member Revolutionary_Jack's Avatar
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    Quote Originally Posted by timrollpickering View Post
    Just to clarify but filing a termination notice is not suing. Of course once the legal notices have been issued it will take a court order to invalidate them and so Marvel/Disney have sued to get that but it is not the heirs or their creators who are the plaintiffs.
    Obviously they filed these notices with the knowledge of how Marvel would react, right? One can presume the lawyers representing the Estates knew this would happen.
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  13. #43
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    Quote Originally Posted by Revolutionary_Jack View Post
    Obviously they filed these notices with the knowledge of how Marvel would react, right? One can presume the lawyers representing the Estates knew this would happen.
    Since Marc Toberoff seems to be representing at least some of them and represented the Kirbys when they did the same it would be extremely strange if such a leading IP lawyer did not know this.

  14. #44
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    Quote Originally Posted by Drops Of Venus View Post
    Not to sound like a shill for corporations, but I don't think it's unreasonable for Marvel to own their characters. Like, yes, Ditko & Lee were essential for the Spider-Man stories in the early days... but they stopped creating stories for the character ages ago, and he has been through the hands of many other creators over the years. I don't know enough about US law, but it sounds exactly like work for hire: people come, they make something for the company, then they leave and that thing they made keeps going, changing, developing through the work of others, with the only constant being Marvel, the company, controlling the character and making sure he sticks around. If Ditko created Spider-Man and continued to be the one and only source of Spider-Man content up until the day he died, controlling every single piece of media that gets made about him... I would totally agree his estate should have the rights over the character. But we know that's not how things went down. Spider-Man, like pretty much every Marvel character, outgrew their creators. So how do you legally argue that a single individual owns the character in this particular scenario? Who can truly own Spider-Man, when Spider-Man is not the work of one person, but a collaborative effort that's been happening, and hasn't stopped, for over 60 years? I think it's a very complex situation, and I can see why the companies tend to be favored in those cases, because they are the ones who put the characters where they are today.

    I do think that creators should be compensated better, though. If they or their heirs want more money, I won't say they don't deserve it. So I'm all for a good settlement so they can get their due. I just don't think that copyright ownership is a hill they should die on when it comes to a company like Marvel or DC.
    If anything, Spider-Man's popularity increased under Stan Lee & John Romita Sr. There were many other successful runs too...Todd McFarlane, JMS & JRjr. Comic book characters that have been around as long as Spider-Man have many contributors. If Sony decided to do a movie version of One More Day (don't throw rocks!), the credit and one would think some compensation would have to go to Joe Q and JMS.

  15. #45
    Latverian ambassador Iron Maiden's Avatar
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    Quote Originally Posted by Mark Trail View Post
    Maybe I'm wrong, but part of me feels like Ditko would not have wanted this, given his objectivist beliefs, "A is A," etc. From what little I understand of Rand and objectivism, parties are presumed to enter into a contract via free will and without coercion. A contract is void only if one party was "forced" to enter into same. As such, there could be an implication that Ditko entered into his contracts with Marvel under duress and I'm not sure he'd want that image put forth in the public record.
    I tend to agree with this. As someone else pointed out, when he was working at Marvel all the artists knew it was work for hire. It was printed on the back of the check and they had to endorse the check right under it. I haven't come across an interview yet where Ditko complains about this but then he didn't give out many.

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