Just three months ago, Disney’s Marvel unit filed a series of lawsuits seeking to retain full ownership rights in characters such as Spider-Man, Iron Man, Dr. Strange, and the Mighty Thor. Since the wheels of justice often turn slowly, one might not expect a resolution of these cases for years. But guess what? Last weekend’s astonishing $ 260 million box office opening for Spider-Man: No Path Home wasn’t the only excitement in recent days for the Marvel Cinematic Universe. There was also action on the role of the Supreme Court that teases a potential game changer for Hollywood. One that could have an impact on the plans for the Spider-Man franchise and beyond. And now Ari Emanuel is involved.
As we detailed at the time of Marvel’s lawsuits, the termination provisions of copyright law allow authors and their heirs to reclaim rights once granted to publishers and studios after waiting for a period of time. time defined by law. Thus, Disney is faced with termination notices on famous superheroes. However, not everything is subject to termination. Work created as part of the job, for example, cannot be picked up by the employee. Where it becomes more complicated legally, it is the situations of entrepreneurs. Especially for older works before documentation on “works made for hire” became the norm. How to classify the material produced for Marvel Comics in the 1960s: this is what is at issue in these Disney cases.
Of course, the freelance world goes far beyond comic book authors and illustrators. And this is where the The game of life comes into play. In recent years, this popular board game has been at the center of a legal dispute over its creation. Now the case has reached the high court, and it’s Hollywood insiders very interested.
First sold in 1960, the The game of life was intended to mark Milton Bradley’s centenary. The toy company wanted something special – an updated version of “The Checkered Game of Life”. Reuben Klamer, a toy developer, took charge of the project and brought in Bill Markham, a game designer, who pitched concepts and ultimately created the prototype.
Decades later, the Markham Heirs sought a declaration from the court that they could exercise copyright termination, but after a lawsuit the judge determined that the game was created as a work for hire. , meaning Milton Bradley – later acquired by Hasbro – was considered the author. No termination was possible. Last June, this decision was confirmed by the Court of Appeal of the 1st circuit.
Now the Markham heirs are asking the Supreme Court for a review. Specifically, they want judges to look at when older commissioned works are made to be hired. In 1989, in CCNV c. Reid, Thurgood Marshall discussed testing new commissioned works under the Copyright Act of 1976, but did not set out the rules for works created under the Copyright Act of 1909 The Markham Heirs take issue with how district courts in some – not all – circuits have since used the “instance and expense” test to determine a job’s eligibility for termination.
“What is at stake is the ownership of the copyrights to thousands and thousands of works written before the 1976 law, including many paintings, sculptures, films, plays and other creative works. like the board game here, ”the petition says. “Given the extraordinary duration of copyright under the 1909 Act (approximately a century), these ownership disputes will continue to arise for decades to come, subject to fundamentally conflicting rules unless and until what this Court intervenes. “
If the Supreme Court takes the case, it will undoubtedly have an impact on Marvel superheroes, as Disney’s main argument for resisting termination of copyright is that independent contributors such as Dr. Strange, Black Widow, and Loki have already been made at Marvel’s initiative and expense. It doesn’t matter, according to the studio, that Steve Ditko, Gene Colan, Don Heck and others made creative choices and often did so with financial risk, only getting paid after acceptance. Disney feels confident in its legal position thanks to some legal success a decade ago in fighting Jack Kirby’s copyright termination – but that confidence gets a bit shaky when it comes to the Supreme Court. Ten years ago, when Kirby’s heirs filed a petition very similar to Markham’s in the High Court, Disney paid tens of millions of dollars to settle the case rather than risk an overturn.
On December 15, Larry Lieber (Stan Lee’s brother and a comic book artist as well) along with the estates of Ditko, Colan, Heck and Don Rico filed an amicus case in favor of Markham (read here). This is not surprising, given the way the judges play the The game of life could end up giving them a huge advantage in their own case.
But perhaps more intriguing is a court friend memoir from William Morris Endeavor, also filed on December 15. What does Emanuel’s talent agency care about? WME has a “growing practice of representing estates and heirs of creators,” the brief says, citing Tom Clancy, Andy Kaufman and the Notorious BIG as examples.
WME says the interpretation of “work for pay” would be “economically meaningful – both for creators and for the talent agent industry,” and also nudges Disney with a nod to another franchise: Star wars movie (Episode IV – A New Hope, 1977), covered by the law of 1909, would be subject to an interpretation of the doctrine of work for remuneration until at least 2070 ”, indicates the amicus brief of the agency (read here). ” But after Star wars the consequences, covered by the 1976 Act, would be the subject of an entirely different interpretation. In the years to come, this mismatch could lead to business and administrative complications for talent agencies such as friend. “
SAG-AFTRA, the industry’s guild of performers, also supports Markham and suggests that the “instances and expense” test is a “boon” to those who acquire intellectual property without bearing the burdens or obligations of ‘be in a working relationship. The union also points out how the subject will be meaningful enough for music. “For example, a review of Rolling stone The magazine’s list of 500 best songs of all time reveals that the majority was created before the 1976 law came into force, ”says SAG-AFTRA’s amicus brief (read here). “Of these, nearly 200 were created and published before the forum was created and the spend test was done. While not all of these songs are subject to the same issues, many were and therefore will be subject to the same uncertainty or injustice as their statutory termination windows approached.
Supreme Court justices to discuss whether to take up the The game of life case at a private conference on January 7. Typically, the decision to grant or deny certiorari comes a few days after the conference (although other actions, such as postponing or requesting responses, are also possible).
In the event of a review, Disney could then decide to intervene with its own amicus file in favor of Hasbro. But even so, the entertainment giant would immediately live with new possibilities for the Spider-Verse.