By: Jeff Lippman & Farzad Panjshiri [3/14/22]

Chapter 1

Exploring the Law: Content Creators, Comics, & Copyright

Many of us grew up reading comic books, watching cartoons Saturday mornings and/or after school, and we are currently in Phase Two of the most ambitious and successful cinematic project of all time: The Marvel Cinematic Universe. And DC makes movies too. As many of us debate whether Toby Maguire or Tom Holland is the best Spider-Man, few of us explore the decades-long history between the origin of Spidey and his current adventures. This applies even more to older heroes like Superman and Batman. To most of us, this is not important. To the publishers (and their many corporate partners) and to the artists and their families, it might be essential to financial health.

These types of works are covered by copyright law. A fair amount of modern U.S. Copyright law was codified and expanded upon after some of these heroes existed. Comic strips in newspapers evolved into comic books, which at times evolved into TV series, movies, videogames, and every type of merchandise one can imagine. There are few properties more iconic than Superman or Captain America.

Compare this to public domain properties. Anyone can reference Tarzan, Sherlock Holmes, Robin Hood, King Arthur, Hercules, and yes, even non-Marvel versions of Thor. So, true believers, Chapter One of this blog will explore the law.

The Copyright Act allows authors or their heirs, in defined circumstances, when prescribed procedures are followed, to terminate the exclusive or nonexclusive grant of a license of the content creator’s copyright in a work or of any right under a copyright. The content creators include writers, artists, and others. The termination provisions are codified in 17 USC §§ 203, 304(c), and 304(d). The specifics make it a more complicated analysis with the applicable provision depending on a number of factors, including the date the grant was made and when copyright was originally established. The law was intended to protect authors and their heirs against “unremunerative agreements.” In other words, when they were paid little for a work that became successful. The Act gives content creators a process to reacquire the rights to enjoy the later success of their works by allowing authors or their heirs, within specified periods of time after the original grant of rights, to regain the previously copyright rights.

These rights are not all-inclusive. Additionally, there is a limitation on termination regarding derivative works. This is also U.S. law. These aspects are not necessarily part of our story (yet) and shall be set aside for the balance of these Chapters.

Here’s an overview of how a content creator or the heirs can obtain their Copyrights back: An executed, written notice of termination must be served on the relevant current grantee. In our cases, Marvel or DC. Note both comic publishers are owned and/or part of larger corporate structures. For simplicity, we are using “Marvel” and “DC.” Because ownership of a Registered Copyright is public information, a copy of the served notice must be recorded with the Copyright Office. Their required form and content is enumerated in 17 USC §§ 203, 304(c), or 304(d), as applicable; 37 CFR § 201.10; and the Compendium of U.S. Copyright Office Practices (Chapter 2300: Recordation).

To terminate a grant, one must be eligible under one of the termination provisions of Title 17, section 203, 304(c), or 304(d). Some of the relevant factors were noted above. But, to make matters more complicated, the date of grant is often critical to which law applies since the laws have been amended over time.

  • Section 203 applies to grants executed by the author on or after January 1, 1978.
  • Section 304(c) applies to grants executed by the content creator (or appropriate heirs) before January 1, 1978, only if the copyright in the work was established before January 1, 1978.
  • Section 304(d) applies to grants executed before January 1, 1979, only if the copyright in the was secured between January 1, 1923, and October 26, 1939.
  • Additionally, the grant may be a “gap grant.” These occur where a creator made a grant before January 1, 1978, involving a work created on or after that date. The Copyright Office determined that “gap grants” may be terminated under section 203 because a transfer that predates the existence of the copyrighted work cannot be effective/executed until the work has come into existence. In the cases of “gap grants,” the Copyright Office may record a notice of termination under section 203 if the notice states that the date of execution for the grant is the date that the work was created.

There are additional factors to determine who is eligible to seek termination of the Grants/reacquisition of Copyright Rights, but those are not at issue regarding the subject of this blog.

Grants may be terminated during a specific statutory time period and must specify the date that the termination goes into effect. The effective date must fall within a five-year “termination period.” The notice must be served no less than two years and no more than ten years prior to the effective date. It must be recorded with the Copyright Office before the effective date. The Copyright Office has published schedules and resources to help one determine what rights apply to them and the applicable filing procedures.

So, what caused this blog? In true comic book form, two particular attorneys have positioned themselves as opposing heroes (Think Magneto and Professor X). One has represented content creators and their heirs. The other has represented publishers. They have done battle over rights to Superman, The Fantastic Four, X-men, and others. With the enormous success of the Marvel Cinematic Universe, the war has escalated, and Marvel has affirmatively sought Court intervention to preemptively disallow Copyright reversions to many MCU characters. Despite these past and ongoing battles, some cases have settled before theoretical final adjudication. But, so far, the cases seem to have been decided on what many might call a decades-old loophole — a dull but critical legal difference enumerated in contracts.

The critical difference has been whether the content creators were contracted under what is known as “work made for hire” or not. To boil it down, “work made for hire” means the creator was a hired gun, working for the benefit of another and never had any expectation or entitlement to believe the work belonged to them or their heirs.

As it turned out, for a while, DC was not enumerating the work made for hire status, while Marvel, which was created years after DC, did clarify the work made for hire status.

Stay tuned for Chapter 2…

To learn more about Dunlap Bennett & Ludwig and how we assist you, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


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Posted in: Copyright, Intellectual Property

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