Who Created Wolverine?

 

            Roy Thomas has been in the news recently because he is asserting that he is a co-creator of Wolverine. Zach Rabiroff has a great recap article on the situation at The Comics Journal that is worth reading, and it covers some of the nuances that I will not. I am going to discuss the concept of creation and ownership through the lens of copyright.

            To briefly recap, Thomas was a Marvel editor, and according to most accounts, suggested to Len Wein that he create a Canadian character named the Wolverine for the Hulk to fight. Wein worked with John Romita Sr. to develop the look of the character, and then the character made his cameo debut at the end of The Incredible Hulk #180, which was written by Wein and drawn by Herb Trimpe.  

            Copyright law protects “original works of authorship fixed in any tangible medium of expression.”[1] Copyright law does not protect an “idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”[2] Generally speaking, copyright law protects the expression of an idea and not the idea itself. It rewards the person who creates the work that was published. Protecting ideas are notoriously difficult to do, as I previously discussed in the article on Why Creators Don’t Want to Hear Your Idea.

            In my opinion, Thomas had an idea. He told his idea to Wein, and Wein, Romita, and Trimpe did the work to bring the idea to life. Copyright law would reward those three with ownership. It would not reward Thomas.

Suggesting that an editor contributing an idea to a writer or artist, who goes on to flesh out the idea and bring it to life, equates to co-creation is problematic, and it goes against the norms of the publishing industry. Editors, depending on their roles, assign stories, edit stories, and make sure they are readable and/or follow established continuity. It is part of their job to assist the artists and writers in creating the best stories possible. If they make suggestions, it doesn’t mean that they get to claim authorship, co-creation, or co-ownership over the final work.

While Thomas may feel some responsibility for the creation of Wolverine, he should not be credited a co-creator. He had an idea, and he passed it on to others to do the work to bring it to life. If he had done the work, then he could be a co-creator. From all accounts, he did not.

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[1] 17 U.S.C. § 102(a)

[2] 17 U.S.C. §102 (b)

Legal musings on the marvelous and miraculous existence of Marvelman (and Miracleman)

 

                The announcement of a new collected edition of Miracleman being released prompted me to finally start reading the collected Marvelman books I bought a few years ago. I was inspired to buy them after reading Pádraig Ó Méalóid’s book Poisoned Chalice: The Extremely Long and Incredibly Complex Story of Marvelman (and Miracleman). It’s an interesting read, and you can find my previous review of the book here. Reading these stories makes me think of how fascinating it is that this character managed to exist in the first place.

                To briefly summarize, Marvelman was born in the U.K. after Fawcett publications stopped fighting the copyright infringement lawsuit brought by DC Comics against Fawcett’s Captain Marvel. The licensed publisher of Captain Marvel comics in the U.K., L. Miller & Sons, Ltd., chose to transition the publication of Captain Marvel comics into Marvelman by announcing Captain Marvel’s retirement and laying the groundwork for the title to transition to Marvelman. The publisher even kept the same issue numbers.

 The publisher hired Mick Angelo to create Marvelman and make some changes. Billy Batson, Captain Marvel’s alter ego, became Micky Moran. Batson worked as a cub reporter for a radio station. Moran worked as a copy boy for a newspaper. Batson received his powers from an old wizard. Moran received his powers from a scientist. Batson had to utter the phrase “Shazam!” in order to turn into Captain Marvel, while Moran had to utter the phrase “Kimota!” to turn into Marvelman. Even though there were differences between the two characters, it is easy to see similarities.

Much of this is informed speculation on my part, but Marvelman, and subsequently Miracleman, could have had a much shorter life than it did. Clearly, at least in my mind, Fawcett could have taken action against L. Miller & Sons.

Taking into consideration the copyright infringement lawsuit that they just lost to DC Comics, the similarities between Marvelman and Captain Marvel are much closer than those between Superman and Captain Marvel. Further, Fawcett could have asserted trademark claims arising from the similarities of the two characters’ names and confusion arising from the launch of Marvelman. Fawcett also could have asserted a breach of contract claim, depending on the terms of their agreement. Why didn’t Fawcett take action? My guess is that they just didn’t care after losing the lawsuit to DC.

DC Comics also could have taken action. They just had a court find Captain Marvel to be a copyright infringement of Superman. It is likely they might have been successful in finding the derivative Marvelman to also be a copyright infringement. Unfortunately, I do not know why they didn’t do so. My initial guess is because it was in the U.K., and they (i) either didn’t feel threatened by it or (ii) didn’t think the copyright law was as favorable to them there. In the intro to Marvelman Classic vol. 1, Derek Wilson notes the many countries where Marvelman was distributed; the U.S. is absent from that list. Would DC have taken action if Marvelman had made its way to the U.S. during that era? It’s an interesting thought.

Marvelman fascinates me because of so much of the legal wrangling that had occurred involving the character and because of the legal what-if’s that the character managed to avoid. The original Marvelman comics were only published for nine years, but the character’s legacy and history continues to this day—and is still as complicated as ever.

Work-made-for-hire and Copyright Termination

 

                I recently came across an article discussing a copyright lawsuit involving the original script to Road House. You can read the article here. But, in short, the original writer filed for a copyright termination of transfer to reclaim ownership of the script, and the studio counterclaimed stating that the work was done as a work-made-for-hire and is therefore ineligible for copyright termination of transfer. The wrinkle in this story is that the company employing the writer was the writer’s own company. This is a good reminder to be aware of who you are structuring your business deals and making sure you are not inadvertently losing your IP rights.

                It is common for many creators to start an LLC or company. In many cases, it can be financially advantageous to do so. However, if you are contracting with other companies through your own company, it is possible that the work you perform for your own company could be considered a work-made-for-hire for your own company.

                I covered the basics of copyright termination previously, but to recap, after 35 years, an author can file to reclaim ownership of a copyright that they previously transferred. However, this right does not apply to works-made-for-hire.

                If you work through a company, you should carefully consider how the company is structured and set up and the contractual arrangements you enter via it. If you are concerned about copyright ownership issues and want to preserve your ability to terminate a copyright transfer, you should consult with an attorney to evaluate your options.

Do you need media liability insurance?

 

                Something that I often ask the artists and writers I work with is if they have insurance. In particular, I ask if they have media liability insurance. Most don’t, but it is a type of insurance coverage more artists and writers should consider obtaining.

                In most publishing contracts, you are guaranteeing the publisher that your work will not infringe upon another’s intellectual property nor will it cause harm to a third party via defamation, libel, etc. If you or your publisher is sued because of your work that they published, you are likely responsible for paying their legal fees because you agreed to indemnify them.  

                These types of lawsuits can be very expensive. If you have basic insurance, typically known as a CGL (Commercial General Liability), it likely will not cover your expenses and legal fees. However, if you have media liability insurance, you are more likely to be covered. A typical media liability policy should cover the following: defamation, invasion of privacy, emotional distress, copyright and trademark infringement, misappropriation, and negligent publication.

                If you do have one, or you decide to get one, make sure that any agreement you sign complies with any requirements in the policy. If you sign an agreement that does not comply with your policy requirements, then the insurance company may not provide coverage.

                A media liability insurance policy may not be right for everyone, but if you are worried about being sued for copyright or trademark infringement or any of the other areas mentioned above, you should strongly consider obtaining one.

The name of the policy may differ depending on the insurance carrier. It may fall under an E&O policy (errors and omissions) or a professional liability policy. It is a good idea to ask questions and make sure the insurance carrier offers the coverage you are looking for.

Should all comics be considered works-made-for-hire?

 

                Recently, the American Bar Association’s Forum on the Entertainment and Sports Industries’ Entertainment & Sports Lawyer periodical published a new article of mine. The article is titled “Heroes for Hire No More: Rethinking the Presumption That Comic Books Qualify As A Work-Made-For-Hire Under the Copyright Act of 1976.” You can read the article in its entirety via the link, but I will provide a brief summary below.

                I have spent a fair amount of time thinking about this over the years, and I do not believe that comic books automatically quality as a work-made-for-hire under the Copyright Act of 1976. In order for a work to be considered a work-made-for-hire under the Copyright Act, it must either (i) be created by an employee or (ii) fall into one of nine specific categories and be part of a written agreement.

                As most people know, the comic book industry primarily runs on freelancers and contractors. Because most comic book creators are not employees, that primarily rules out the ability to claim comics as works-made-for-hire under the first prong. 

Comic books also do not fall neatly into any of the nine categories that can be designated as works-made-for-hire under the Copyright Act. Comic books are joint works, with each contributor considered to be a joint owner in the work, and joint works are not a work-made-for-hire category. The only way for comic books to be considered a work-made-for-hire would be if they are considered a compilation or collective work. Both of these require many copyrighted works be put together with each work having different ownership.

In my opinion, in order for a comic book to be a work-made-for-hire, it must be published in a format that contains multiple creative works owned by different owners. Based on this criterion, it is uncertain if a monthly issue of a comic book or a graphic novel would meet this standard. A trade paperback, anthology-style work, or collected edition might meet the standard if they contain multiple works owned by different owners.

Whether or not comic books can be considered to be work-made-for-hire is an important question for publishers and creators. If they are not, then publishers would have to rethink how they employ creators or how they publish their books. For creators, it means that they may have additional rights, such as termination rights, that they would not have been entitled to if a comic book was a work-made-for-hire.

As stated above, this is a brief summary. If you want to read about this in more detail, you can read the original article here.

An Invincible Lawsuit - Part 2

 

                Following up on a post from two years ago detailing the the lawsuit filed by colorist William Crabtree against Robert Kirkman over Invincible , the case has now settled. The two sides reached a confidential settlement, and the case was dismissed.

                In November, the judge overseeing the case issued a declaratory judgment ruling that denied some of Crabtree’s claims and allowed some to proceed. In particular, the court allowed Crabtree to pursue claims related to breach of contract and to seek invalidation of the Certificate of Authorship he signed in 2008, but only to the extent relating  to lack of consideration given for the agreement or to clarify the meaning or scope of the agreement. Due to the statute of limitations, the court denied Crabtree’s claims to seek declaratory relief that he was a joint author of Invincible, claims for promissory fraud, and invalidation of the Certificate of Authorship due to fraud.

                As I pointed out when it was first filed, this case could have been an interesting case to shed light on the copyright ownership rights of colorists. Does the work of a colorist entitle them to an ownership in the copyright of a comic book? Can their work be considered work-made-for-hire? Unfortunately, the court found that Crabtree waited too long to file the lawsuit. Under the copyright act, there is a three year statute of limitations in which to bring claims. The court found that Crabtree had definite notice in 2012 that Kirkman was denying his claims of ownership and waiting until 2022 to file the lawsuit exceeded the time to bring a claim.

                This is an important reminder to understand your rights, and if you feel they are being denied, to seek an attorney’s advice on next steps. Had the lawsuit been filed earlier, then the case may have turned out differently.

Adventures in Fan Fiction - Lord of the Rings Edition

                Recently, a few decisions were issued involving an unauthorized sequel to The Lord of the Rings (“LOTR”). In one, a court found that Amazon and the Tolkien Estate did not infringe upon the author’s book. In the second, the court found that the author’s book infringed upon the rights of the Tolkien Estate.

                Demetrious Polychron filed a lawsuit in April against Amazon, the Tolkien Estate and many others. In the filing, Polychron claimed that he wrote a sequel to LOTR called The Fellowship of the King. He sent copies to Tolkien’s grandson asking for the work to be published, and he did not receive a response. He subsequently published the work himself, and he intended to publish a seven-book series. Polychron’s lawsuit claimed Amazon’s Rings of Power series copied elements from his works and constituted copyright infringement. He sought at least $250,000,000 from the parties involved for copyright infringement.

                In a summary judgment ruling, the court found that Amazon’s Rings of Power did not infringe upon Polychron’s book. In fact, the court found that because Polychron’s book was an unauthorized derivative work based on LOTR, he was precluded from bringing a copyright infringement claim.[1] In analyzing the work, the court reiterated the rule that copyright owners have the exclusive right to prepare or authorize derivate works based upon their preexisting work. Polychron’s work used characters from LOTR and was a direct continuation of the work. As such, it was a derivative work and not entitled to copyright protection[2].

In the second case, the Tolkien Estate filed a copyright infringement lawsuit against Polychron. The court recently issued an permanent injunction forbidding Polychron from making further derivative works based on LOTR and to destroy any existing copies of the current works.

This case continues a fairly strong line of cases showing that unauthorized derivative works will likely be found to infringe upon copyright. When a work utilizes characters, worlds, and plot elements from a previous work, it runs the risk of a copyright infringement claim. The risk significantly increases when the work is being sold for profit and directly competes with the market for the original work. The only derivative works that have been found to be fair use are those that tend to provide commentary on the original. A work that is just a continuation of the story in the original will likely not be a fair use.

If you want to write fan fiction, it is important to be aware of these cases, and if possible, structure your work in such a way as to avoid a copyright infringement claim.

Final notes about this case:

1)      Polychron received a copyright registration for his work. This is a reminder that the copyright office does not usually weigh the merits of whether a work is an infringement when processing registrations.

2)      Polychron sold his work. Selling your fan fiction for profit raises the chances of a lawsuit.

3)      Suing the original copyright owner for infringement of your unauthorized derivative work rarely turns out well.

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[1] See page 10, Order Granting Defendants’ Motions to Dismiss the First Amendment Compaint, 2:23-cv-02831-SVW-E.

[2] Id. at page 12.