There has been a lot written about Steve Ditko’s heir (his brother, Patrick) filing a notice to terminate the copyright on Spider-Man and Doctor Strange and Marvel responding by filing legal notices against Larry Lieber and the estates of other Marvel artists to preemptively determine that the works by all of the creators were “work for hire,” and much of it can be confusing, especially with social media getting people riled up with stuff like “This means no new Spider-Man comic books!” So let’s examine some frequently asked questions about the situation.
WHAT IS A COPYRIGHT
Copyright is a legal right that gives the creator of an original work specific rights to the original work, such as the right to control who can copy the work, who can adapt the work, who can publish the work or heck, who can financially benefit from the work, period.
WHO OWNS THE COPYRIGHT TO SPIDER-MAN?
As of right this moment, the copyright to Spider-Man (and Doctor Strange) is held by Marvel Entertainment. Patrick Ditko is trying to terminate Steve Ditko’s half of the copyright.
HOW CAN DITKO TERMINATE HALF OF THE COPYRIGHT?
The Ditko estate’s position is that Spider-Man was a joint creation by Steve Ditko and Stan Lee and then was purchased by Marvel Comics. Back in 1962, the status of copyrighted material in the United States was that they lasted for 28 years, with the right to renew for an additional 28 years – making it a total of 56 years. In 1976, Congress extended the renewal period from 28 years to 47 years (an increase of 19 years), making it a total of 75 years. At the time, Congress decided that people who transferred a copyright before 1978 (when the extension kicked in) deserved a chance to terminate the transfer to gain the benefit of the extra 19 years. Their theory was that when people sold their copyright, they did so under the idea it would be for 56 years, and since it was now for 75 years, the creator of the original work, or their heirs, should get back the copyright for the extra time, presumably to get financially compensated again, if the copyright still had value.
Therefore, any time within five years of the original 56-year original copyright expiration, the original owner of the copyright who transferred their claim can file a termination to get the copyright back. Of course, even if Ditko’s position is held, the estate would only get half of the copyright, since the Stan Lee half is still under Marvel control (Lee worked out different deals with Marvel over the years).
WHY DOES MARVEL SAY DITKO’S ESTATE CANNOT TERMNIATE ITS HALF OF THE COPYRIGHT?
If a copyright was created under work-for-hire, then it is not eligible for termination, as the copyright is considered to have been created by the company who employed the creators, not the creators themselves. For instance, various employees of Walt Disney created Donald Duck in the early 1930s, but because he was created by Walt Disney Company employees, Donald Duck is considered to be a creation of the Walt Disney Company and thus the copyright is owned by the Walt Disney Company, not the individual workers.
Marvel, naturally, says that Ditko created Spider-Man under the “work for hire” standard and that the copyright on the character has always been owned by Marvel Entertainment.
HOW DO YOU DETERMINE IF SOMETHING WAS “WORK FOR HIRE” OR NOT?
That is really the key here. The original 1976 Copyright Act introduced the concept of “work for hire” (it did not exist before that point) and it was defined thusly:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Was Steve Ditko a Marvel employee? Or was he an independent contractor? In a previous case involving Jack Kirby’s estate trying to terminate Kirby’s half of the copyrights to HIS past work for Marvel, the courts initially ruled that Kirby’s work WAS considered work for hire. But then the Supreme Court considered taking Kirby’s case on appeal and perhaps coming up with a new definition of whether creators like Kirby were “work for hire” or not and Marvel Entertainment obviously did not want to see that happen, so the company instead settled with Kirby’s estate.
Marvel is currently using the earlier rulings in the Kirby case (before Marvel settled) as evidence that Ditko and the other creators were all doing their work as “work for hire,” as well. The issue is, of course, whether more appeals might again hit the Supreme Court and see the highest court in the land revisit what it means to be “work for hire” and if that decision went against Marvel, it would be devastating. So it is very possible that all of these suits will eventually end in settlements.
After the 1976 Copyright Act, by the way, companies just started adding “work for hire” clauses to all of their deals, to avoid these arguments in the future.
So that’s where we currently stand, but just for fun, let’s say that Ditko’s estate ever DID win the right to terminate Ditko’s half of the Spider-Man and Doctor Strange copyrights. What then?
SO WHAT WOULD THE DITKO ESTATE OWN, EXACTLY?
The Ditko estate would own half of the copyright to everything introduced in Amazing Fantasy #15, which, really, is the vast majority of everything folks associate with Spider-Man. The name Spider-Man, the secret identity of Peter Parker, his superpowers, his famous costume, and his beloved Aunt May. The Ditko estate would co-own all of that, which is a whole lot.
WHAT ABOUT THE TRADEMARKS?
Marvel still owns all of the notable trademarks, specifically the name Spider-Man and the visual look of Spider-Man.
WHAT DOES THAT MEAN THAT THEY OWN THE TRADEMARKS?
Trademarks are for commerce purposes, so advertisements and the covers of comic books or toys. So no one can advertise a Spider-Man comic book or toy, in an ad or on the cover of a comic book or toy, other than Marvel Entertainment.
WHAT WOULD THAT MEAN FOR THE DITKO ESTATE’S RIGHTS TO SPIDER-MAN?
It would severely limit them, as no other company would be able to use the actual name or look of Spider-Man to promote a Spider-Man product, which is significant. So there would be little point in really pursuing other licensing agreements. It would simply be about getting paid half of whatever Marvel took in on its various deals. So it would purely be a financial concern. After all, as half owners of Spider-Man, Marvel Entertainment would still be allowed to continue putting out Spider-Man comics, it would just have to compensate Ditko’s estate while doing so.
BUT WHAT ABOUT OTHER RIGHTS THAT THE DITKO ESTATE WOULD GAIN?
It is fair to note that international law is a bit different and in Canada, for instance, joint copyright owners are able to prevent the copyrighted work from being adapted in Canada without their permission. And, of course, the Ditko Estate could theoretically still try to license Spider-Man elsewhere just without the name or the costume being involved in the promotion for the project (not a very appetizing offer, but it’s not nothing).
If you have other questions, feel free to drop me a line at brianc@cbr.com and I can expand/amend the FAQ, if necessary.
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