Disney & Marvel vs Ditko, Heck, Colan, Rico and Lieber

None of this should have come as any surprise to anybody really. It was always going to happen once Disney acquired Marvel Comics, lawsuits would be flying all over the place. Disney is one of the most litigious publishers in existence. It protects it's characters, trademarks and copyrights with a zeal that is rarely seen with any other company. And once it Marvel, those same rules of litigation would be applied to the characters it bought. After all, you don't spend $4,000,000,000 for a company and it's assets only to let creators and their heirs come back and claim them for peanuts. Well, Disney doesn't.  

It all kicked off on the 24th of September 2021 when Marvel Characters, Inc., which is owned by Disney, filed multiple lawsuits against the heirs of various Marvel artists. Marvel have already fought Joe Simon over Captain American and settled, and they famously fought Jack Kirby and Gary Friedrich. With Kirby they fought for virtually everything Kirby drew and co-wrote/plotted/what have you over his first five years and Friedrich for Ghost Rider.

The cases of Simon, Kirby and Friedrich, they were forced to fight as the family of Kirby filed suit and Simon and Friedrich did the same. Now it would appear that Marvel is taking the lead and filed suits against some of the most loyal artists that they once employed.

Here's who's being taken to court over copyright terminations and ownerships for characters:

The Estate of Don Heck: Iron Man, Black Widow and Hawkeye

The Estate of Don Rico: Black Widow

The Estate of Gene Colan: Blade, The Falcon and Captain Marvel

The Estate of Steve Ditko: Dr Strange and Spider-Man

Larry Lieber: Ant Man, Thor, Iron Man and The Wizard

Make no doubt here, the dockets say Marvel Characters, Inc., but this is being run by Disney. Whereas Marvel might have had some sympathy for creators that built their empire, Disney simply does not. Write something officially crediting the creation of Mickey Mouse to Ub Iwerks and Walt Disney and watch Disney tell you that no, that character was created by the Walt Disney Company. That's how deep they run. Nothing gets into the public domain and Disney has deep pockets.

There's a lot of cash being thrown about the place and you can see why. Film wise, Spider-Man is now a tentpole for Sony/Marvel, Dr Strange is suiting up for a major, Marvel universe defining film, the Black Widow, Iron Man, Falcon and Hawkeye are all part of the Avengers and the latter two are subject to streaming series. The only character not licensed to Disney for film is Spider-Man, but, that'll happen eventually. If Disney can't cut a deal, they'll simply buy Sony. 

As I wrote yesterday, there's bullions of dollars at risk here, so one would hope that Marvel will appeal to Disney and reach settlements in all cases and proceed with payments and future film and streaming royalties, as they did with Kirby and Friedrich. After all, the precedent has been set. 

Most of the characters involved in these cases were dealt with in the Jack Kirby case. Marv Wolfman famously sued Marvel in the 1990s for ownership of Blade and lost (a Blade reboot is now in the works). As cruel as it sounds, it's highly doubtful that the estates in question will win any character or copyright. 

As Marvel/Disney is suing them, the estates, and Larry Lieber, who is aged 89, will have to find the money to hire lawyers. This means Marc Toberoff has popped his head up once more. 

To be fair, Toberoff is an expert when it comes to such fights, but his services generally come with a caveat in which he ends up owning a large part of the characters and concepts being fought for. If Toberoff should win, and, again, it's doubtful that he will, he could very well end up owning a controlling interest in the characters in question. As it stands, he will make money from all of these suits as he will get a portion of any potential settlements.

Toberoff filed termination suits against Marvel for the Ditko estate in August, he filed for Larry Lieber in May. He is also representing the other estates. The cases will be fought on the famous Marvel Method, which  saw entire comic books written and drawn from verbal outlines provided by writers (although Larry Lieber has always maintained that he wrote full scripts). Characters that appeared in subsequent issues were, arguably, created by the artists in question. 

This Work For Hire and spontaneous creation by the artist was the basis of the Jack Kirby case. In the Kirby case, the argument for Work For Hire was found to not be the case. That case went all the way to the 9th Circuit of Appeals, when a settlement was agreed to. It's doubtful that the courts will change their minds now. 

As an aside, it also makes a bit of a mockery that Toberoff is now insisting that comics he argued Jack Kirby created, wrote and drew on his own are the same issues he's now arguing that Lieber, Rico, Ditko, Colan and Heck wrote, co-wrote and drew on their own - check out the lists. Thor, Iron Man, Spider-Man and Ant Man are just four of the characters on multiple lists.

Fighting for Marvel is Daniel Petrocelli, who soundly beat Toberoff in the Superman cases. These will be cases that I will be following very closely.

For those who like to know what's at stake, here's the lists of comics in question that Marvel are fighting for. Astute readers will notice that a lot of the comics appear on different artists lists.






And, just for the record


These copyright terminations have already been fought for and are now solely owned by Disney/Marvel


Ben DuBay said…
Marvel v. Kirby settled on the eve of the SCOTUS conference. Why? Simple answer, the Courts have held, for 62 years now, that WFH applies only to employees. More than that, Marvel creating an ex post facto arrangement, by way of a restrictive endorsement on the creators' checks, only proves that wasn't the agreement initially. I believe it was Friedrich in the 2nd Cir, where this was held. The plain truth is that SCOTUS has yet to hold that characters are separately protected and the scope of that protection, or how the characters are compared in infringement actions. Unless established, infringement suits involving characters are a farse. SCOTUS starts the new term tomorrow. There is a case that may establish just that. I guess time will tell. Yours truly, The Rook.
Manqueman said…
A few lost thoughts.
1. Given the Kirby affair, I expect these cases to be resolved quickly. Hope so especially in Larry Lieber's case for what should be obvious reasons.
2. On the Kirby scale, Ditko's case for Dr. Strange is at least as strong as Kirby's claims, probably stronger. Spider-Man is a mystery. It's pretty clear that Kirby gave Lee, as Ditko told the latter, pretty much a copy of the Fly. Now, what Ditko may have done on his own after that discussion is, I think, a huge mystery. OTOH, there's the angle Stan Taylor discussed in his essay in which he credits Kirby a lot for the Peter Parker character. That is, Parker, not Spidey.
3. The other claims I think are relatively weak.
4. The Toberoff/Petrocelli sequel's going to be something of a bore.
5. My bona fide, such as it is, I was certain the ScarJo/Disney mess was going to be settled. Just a little surprised how quickly. The only leg she had to stand on unless the controlling contract was ineptly drafted (highly unlikely) was that Disney didn't want her to be sad. Only issue was how much her happiness cost. And no, here in the real world, she had no choice but to sue. It's like a ritual dance to get to the desired outcome.

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