The Walt Disney Company on Friday stepped in to defend its Marvel superhero franchise, seeking invalidation of copyright notices issued by artists and illustrators associated with Marquee characters such as Iron Man, Spider-Man and Thor.
Daniel M. Petroselli, a high-powered Los Angeles attorney, has filed lawsuits on behalf of Disney in federal courts in New York and California.
The controversy began when Mark Toberoff, a prominent intellectual property lawyer, served Disney-owned Marvel Entertainment with copyright revocation notices on behalf of five clients. Among them was Lawrence d. Liber, 89, is a comics writer and artist best known for his 1960s work on Marvel characters. Liber’s older brother, Stan Lee, is the lead author and Marvel comics editor. Lee died in 2018.
Toberoff’s other clients are comics illustrators Steve Ditko and Don Heck, and descendants of authors Don Rico and Jean Colon. They want to reclaim the rights to the Marvel characters they created, including Dr. Strange, Black Widow, Hockey, Captain Marvel, Falcon, Blade and the Wizard – many of which have become star revenue generators for Disney. Movies and television shows, along with many other items.
Restoration efforts stem from the provision of copyright law, which, under certain circumstances, allows authors or their heirs to regain ownership of the product after a certain number of years. Such efforts begin with whether the authors worked as hired hands or made their own items and then sold them to publishers. The Copyright Review Act of 1976 opened the door to termination attempts, prohibiting termination to persons who provided work at the employer’s “example and expense”.
“Since these are made for rent and are owned by Marvel, we have filed these lawsuits to ensure that the cancellation notices are invalid and have no legal effect,” Petroselli said by phone. (Petroselli is representing Disney in a legal battle with Scarlett Johansson, who sued the company in July over payment for ticket sales for “Black Widow.”)
For example, Disney’s complaint against Liber “assigns Marvel Liber to write stories, has control over Libre’s writings, and Liber pays a rate per page for his writings.” Those conditions stated in the complaint that his contribution was “work done for hire, the provisions of copyright law do not apply”.
Toberoff did not take it seriously. “At the time all these characters were created, their material law was not ‘work done for hire’,” he said in an email in response to the Disney filing. “All these guys are freelancers or independent contractors, working as pieces for car fares from their basements.” Therefore, not “traditional, full-time employees”, he said.
“At the core of these cases is a nonsensical and highly critical comment that means ‘hire-work-made-hire’,” Toberoff said in a separate email, “that should be corrected.”
The cancellation statements state that they intend to reclaim copyrights for some creations by 2023. If successful, Toberoff’s clients will receive a portion of the profits from new works based on any copyrighted material.
Rights issues in the film industry, which relied heavily on “branded entertainment” – anything based on popular content, including comic books, TV cartoons and classic toys – became a vulnerable issue. The number of existing fans will reduce the financial loss of the film.
Disney is no stranger to intellectual property struggles. The company fought for 18 years with a rights violation case involving Winnie the Pooh and eventually won. In 1998, Disney worked hard to extend the copyright terms, and the resulting law was renamed the Mickey Mouse Protection Act. The Brothers, who wrote the original screenplay for the 1987 film “Predator”, broke with the Disney franchise; The brothers, Jim and John Thomas, are seeking to reclaim the rights.
Toberaff represented people claiming ownership of old television shows, movies, or comic book features in Hollywood. In the 2000s, he appeared on Warner Bros. “The Dukes of Hazzard” and had significant success. Representing Petroselli Studios, Toberoff and Warner had a brutal legal battle over Superman rights. Warner eventually won two favorable court rulings.
From 2009 to 2013, Toberoff represented the descendants of Marvel comic book artist Jack Kirby. They are seeking to reclaim the rights to dozens of characters created or co-created by Kirby between 1958 and 1963, including the Hulk, Captain America and the X-Men. Both courts sided with Marvel – arguing that Kirby’s work was done with Marvel’s example and expense – and that the matter was resolved as the U.S. Supreme Court considered whether to hear the case.
“At the time, I was asked if I regretted not correcting the legal injustice to the creators – in fact I did,” Toberoff said in an email. “I responded that there would be other such cases. Now, we are here.”