Copyrights and Work for Hire Doctrine
Stan Lee, the co-creator and ambassador of the Marvel Universe, died this week. From a copyright perspective, Lee’s legacy is a complicated mess. Marvel, one of the original comic book publishers introduced over 8,000 characters including those created by Stan Lee, Jack Kirby, Joe Simon and Steve Ditko. This includes, Iron Man, Spider-Man, Hulk, Blade, Thor, X-Men, Silver Surfer and Fantastic Four.
IP and Comics
Intellectual Property is typically associated with comic books in two ways, usually involving Trademarks and Copyrights. Copyright typically protects the story, characters, textual and graphical elements of the work. It gives artists the power over the way their artwork is reproduced, display or adapted. Trademarks control the branding elements of comic works and allows Marvel and DC comics to build customer loyalty to the characters through licensing and merchandising of characters. For example, both DC and Marvel have a co-branded right to use the mark SUPER HEROES for use on toys and comic books.
As artists, the creators of the Marvel Characters, including Jack Kirby and Stan Lee have endeared generations of readers and viewers. Their legacy in terms of popular culture is epic. In terms of dollars, the financial success of their characters including Spider Man and Captain America is vast, where Disney has earned almost 20 billion dollars off the Marvel Universe Franchise. However, as artists they have received little financial benefit from their character’s success off of their Copyrights and Work for Hire exception has limited their claim to any share in that success.
Copyrights are originally owned by the artist that means the copyright
is the property of the author who created the work of art. Under Copyright law, only the author or those who may have obtained those rights from the author can rightfully claim a copyright to a work.
Based on copyright law, Stan Lee, Jack Kirby, Joe Simon and Steve Ditko should be billionaires, right? Unfortunately, no. If a work is made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary.
There is an exception to ownership of Copyrights and work for hire is the exception. Under the Work for hire doctrine, if a work is made for hire, an employer is considered the author even if the artist actually created the work. The employer can be a firm, an organization, or an individual who retains the artist to create the work.
Copyright Law transfers the artists rights automatically if: 1) The work of art is prepared by an employee as part of their employment; or 2) The parties have agreed in writing that the work is a work for hire and the work is 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.
Because most comic book artist were employees, the rights to their comics and characters are owned by their employer which over time became Marvel Comics and DC Comics. Because they were paid as an employee to create characters Copyright law transferred their copyrights to their employer. Therefore, most of the artists lost any right to receive a royalty or payment for use of their characters in the Marvel Movies. Their rights were transferred automatically. You can read more about Copyrights here or if you have any questions about copyrights and works for hire please contact us.