Termination Rights: Are Original Marvel Illustrators and Writers Entitled to a Piece of Disney’s Profits?
Crystal Broughan, Intellectual Property Attorney Sep 30, 2021 in Copyrights
Currently, Disney faces multiple termination of copyright notices filed on behalf of five comic writers and artists of the original Marvel Comics.
The artists (or their heirs) claim that they played pivotal development roles in creating characters like Spider-Man and Iron Man. Even though Disney owns Marvel, these writers and artists want to take back the copyrights for their characters. Bottom line, this means once the creators own the copyright they could receive a percentage of Disney’s profits from any Marvel media going forward.
How is this possible? It comes back to something called “termination rights.” What are termination rights and why do they exist? To understand, you have to look at how rights transfers typically work for copyright owners.
What It Means to Transfer the Rights of Your Copyright — Now, and in the Future
When an artist initially negotiates the terms of transferring their copyright to an interested buyer, how do they obtain the fairest compensation? How do they know the value of the copyright before a work of art has been distributed or popularized?
The answer, naturally, is that they do not know. Short of seeing the future, creators often have a very loose grasp of what profits their work may turn.
This means that they can end up with a pretty raw deal, especially since artists often live in dire financial straits prior to any commercial success. A contract that pays rent now can look quite enticing… but end up feeling like peanuts in 30 years.
Copyright Law to the Rescue!
Copyright law has accounted for this potential long-term distortion in the form of “termination rights.” The Copyright Act of 1976 gave artists the opportunity to reclaim their ownership 35 years after a copyright transfer was granted. This opened the door for new negotiations in light of the actual value developed by the intellectual property over time.
There is an exception to this right. If an artist created a property as part of their duties as an employee of a business, this is a “made for hire” situation. In that case, the company owned the copyright from the start, since the property was created at their “instance and expense.”
Sometimes this “made for hire” territory is clear. In other instances, it becomes a sticking point for lawsuits.
Which brings us back to the dispute between Disney and Marvel illustrators and writers.
Are Comic Book Characters “Made for Hire” or Not?
Disney’s lawyer argues that the writers and artists created the characters as employees of Marvel.
He cites the following reasons:
- Marvel assigned the stories to be written
- Marvel exercised control over the writers’ and artists’ contributions
- Marvel paid a per-page rate for the work
The intellectual property lawyer for the claimants refutes this “made for hire” excuse. He asserts that the writers and artists were working as freelancers and independent contractors — not employees. That means their copyrights were granted to Marvel at the time, and now it should be returned or re-negotiated. Disney has a reputation for obstinacy in rights disputes, so we shall see how long this battle lasts in court.
With the tidal wave of recent “branded entertainment” culture — movies adapted from books, graphic novels, and even video games — termination notices have become a more frequently-used play by original creators.
Because of this, it would behoove any creator to become acquainted with the terms of their work contract and their ability to claim the rights to copyrights of work they create — both presently and decades from now. Consult with an intellectual property lawyer to get a head start.Share