Marvel Suing to Keep Rights to ‘Avengers’ Characters From Copyright Termination

[batguy]

IMO we could use a few basic "bill of rights" laws for IP creators. Just to prevent the situations from getting too stupid. Don't apply it for every little throwaway character/franchise on earth, just the major ones.

Something like this:

#1 - royalties can never be entirely given up. Let creators risk 95% or whatever but not all of it. It should not be possible to create a character the size of Superman and end up living on food stamps. The corps owe that creator thousands of dollars per year no matter what contract he signed.

#2 - Maximum contract lengths. Like 25 or 30 years. The rights automatically revert to the creator (read: the creator gets a chance to re-negotiate the deal) periodically no matter what. And it would help deal with the changes in tech/mediums. Think of the video game market in the early 1990s compared to today.

 

[Lightning]

Don't apply it for every little throwaway character/franchise on earth, just the major ones.

How on Earth would you define that? That's also a great way to prevent obscure characters from getting promoted, for risk of crossing the threshold. (Yes, I'm aware that's short sighted, welcome to quarterly profits) Do you only pay for Title characters? How do Team comics work? Also there's no more Robin comics, they are all published under the Batman banner now to save money.

The scenario that is to be avoided is writers not wanting to use characters created by other people because using all original characters would maximize future payouts. Writers might also avoid using characters created by people they have a grudge with, to prevent them from getting paid more money. We also don't want the publisher placing limits on the number of characters that can appear in a story, which they would if it was cheaper.

Right now the accountants are (for the most part) not in the decision making process of what characters to use in any given story. And we really don't want to invite them in.

 

[batguy]

How on Earth would you define that? That's also a great way to prevent obscure characters from getting promoted, for risk of crossing the threshold. (Yes, I'm aware that's short sighted, welcome to quarterly profits) Do you only pay for Title characters? How do Team comics work? Also there's no more Robin comics, they are all published under the Batman banner now to save money.

The scenario that is to be avoided is writers not wanting to use characters created by other people because using all original characters would maximize future payouts. Writers might also avoid using characters created by people they have a grudge with, to prevent them from getting paid more money. We also don't want the publisher placing limits on the number of characters that can appear in a story, which they would if it was cheaper.

I'm thinking of a high threshold, not a low one. The rules I rattled off would apply to the person who creates Superman, not every creator of every character in every book. If you have to ask whether they qualify then they probably don't.

Right now the accountants are (for the most part) not in the decision making process of what characters to use in any given story. And we really don't want to invite them in.

Think beyond comics. The accountants are definitely helping decide who appears in which movie or video game, and which studio gets to handle it. IMO it's pretty much inevitable once the IP gets really big. That's why I'm saying just apply it to the big ones.

 

[sbaxter]

There is also the fact that with many of these long-standing characters, it isn't as clear-cut a matter as litigating copyright protection. Some of these characters -- Mickey Mouse, for example (I don't know about Marvel characters, but I'd be surprised if they are any different) -- are also registered trademarks. Copyrights expire. Trademarks do not.

I think generously taking care of those who create hugely popular, money-making characters would be the right thing to do. At the same time, I also think it is ridiculous to suggest that Disney (or Marvel in this case) doesn't have a perfectly reasonable interest in protecting the image of their characters. Just dismissing it all as "corporate greed" is hyperbolic.

SSB

 

[Picard102]

I think generously taking care of those who create hugely popular, money-making characters would be the right thing to do.

Sure, but the people involved in the lawsuit are not the same people as those who created the characters. It's their heirs who never did any of the work, and are looking to get a payout on work their parents did as an employee of a company.

 

[sbaxter]

Sure, but the people involved in the lawsuit are not the same people as those who created the characters. It's their heirs who never did any of the work, and are looking to get a payout on work their parents did as an employee of a company.

And that's a fair point.

SSB

 

[signeddiamond]

Sure, but the people involved in the lawsuit are not the same people as those who created the characters. It's their heirs who never did any of the work, and are looking to get a payout on work their parents did as an employee of a company.

Moreover it is not even really the families that are hurt and seeking this kind of judgement. The lawyer bringing this case has done similar ones before. It is he who approaches the extended families and tells them “Hey, how would you like millions of dollars for work you never accomplished? Of course I get a cut of whatever the settlement is...”

Its a grift. If you can get out into the media that it’s Disney vs the poor mistreated families then Disney will likely settle to save face and the lawyer gets a paycheck regardless of merit. It’s just a scummy lawyer stiring up controversy To cash in on the settlement and nothing more.

I also feel like many people in this thread are not even looking at the suit and are just reading the title with their assumptions. This is not the case of Disney attempting to stop their property falling into the public domain. While they do that frequently that is not what is happening here. Thats just part of the flashy headline to make Disney seem greedy and publicly pressure a settlement.

 

[HeartBlade]

Maybe I read it wrong but it seems to be iffy on both sides.

Disney is suing to retain 100% rights to the Marvel characters and apparently not pay the families if I read that correctly. Winning this case means they keep all the revenue, losing means they need to give a portion to the estates.

Legally, its likely an easy win for Disney. The same lawyers seem to have been involved in a previous case for DC where DC won so there is legal precedent on Disney’s side. Its also the same lawyers that were involved in the DC case so unless the estate lawyer makes a new and more compelling case, its a win for Disney.

 

[Trebor]

In a somewhat related issue, many creators are saying Disney hasn't been paying them agreed on royalties for work. In some cases this dates back years. In other cases Disney is claiming that when they bought an intellectual property, say Star Wars, they purchased the right to keep selling already produced material, but did not accept the related obligation to keep paying royalties to those creators.

This whole, "The new company gets the rights but not the obligations" model is scary if it isn't stopped as then the new trend will be for all media companies to spin off properties to new companies who would continue publishing and producing content but who wouldn't honor old royalty obligations.

 

[Riceball]

In a somewhat related issue, many creators are saying Disney hasn't been paying them agreed on royalties for work. In some cases this dates back years. In other cases Disney is claiming that when they bought an intellectual property, say Star Wars, they purchased the right to keep selling already produced material, but did not accept the related obligation to keep paying royalties to those creators.

This whole, "The new company gets the rights but not the obligations" model is scary if it isn't stopped as then the new trend will be for all media companies to spin off properties to new companies who would continue publishing and producing content but who wouldn't honor old royalty obligations.

Maybe that's why Disney/Disney artists have been ripping off so much fan art and tracing things in their comics lately. No sense in putting in a whole lot of effort into creating something original or even drawing existing things from scratch if you aren't incentivized to. That, and I'm sure that their artists are being put under tight deadlines so there is no time for original drawings or designs.

 

[Lightning]

Maybe that's why Disney/Disney artists have been ripping off so much fan art and tracing things in their comics lately.

What's the legality of that anyway? The fan can't sell it obviously, but should be allowed to create it for personal use, right? Is it technically illegal to publish it for free online? Disney owns the character, but does that give them the right to own the fanart, which the artist automatically has a copyright to upon creation? Is it technically art that no one is allowed to publish anywhere? Does the law actually require Disney to purchase a fan made work if they want to use it themselves? Pretend that it was never published online for free, and they know about it through word of mouth.

 

[Riceball]

What's the legality of that anyway? The fan can't sell it obviously, but should be allowed to create it for personal use, right? Is it technically illegal to publish it for free online? Disney owns the character, but does that give them the right to own the fanart, which the artist automatically has a copyright to upon creation? Is it technically art that no one is allowed to publish anywhere? Does the law actually require Disney to purchase a fan made work if they want to use it themselves? Pretend that it was never published online for free, and they know about it through word of mouth.

Well, from what I understand it's not so much character designs but ship designs from large capital ships to fighters. Apparently, Disney has been taking fan designs and incorporating them unchanged into official publications.

From a legal standpoint, the fan artist has no leg to stand on. It's Disney's IP and they're letting you play in their sandbox, so to speak. Fan art based on an existing IP, to the best of my knowledge, is not (legally) owned by the artist and the IP holder can do anything they want with it. But from a moral and professional standpoint, it's pretty low and it makes you wonder if the artist on the Disney side is either just plain lazy or being given ridiculously tight deadlines and told by higher-ups to co trace and use fan designs if it means meeting the deadline.

I've also seen something mentioned about these artists also using the likeness of celebrities without their prior consent and, supposedly, straight up traced their faces to boot. I don't know if they're doing the actors that played certain characters in Star Wars or if they're taking random celebrities and putting them into these comics without permission.

 

[Egon Spengler]

I am not putting this out there as 100% fact, but I have also heard talk that allegedly Disney is NOT paying some authors back pay for work on books that the authors were owed before Disney took over Lucasfilm and it's properties.

 

[signeddiamond]

I would be interested in some sources for these claims. So far the claim that some people are saying Disney isn’t paying royalties has turned into a bunch of hypotheticals and further speculation.

How about we start by looking at the claim, who made it, and why...

 

[wayouteast]

I would be interested in some sources for these claims. So far the claim that some people are saying Disney isn’t paying royalties has turned into a bunch of hypotheticals and further speculation.

How about we start by looking at the claim, who made it, and why...

Here's a start. And nothing hypothetical about this one.

Star Wars novelist says Disney won’t pay him royalties it owes him

Disney only just recently settled with Alan Dean Foster over long-term non-payment of royalties for his Star Wars and Alien novelisations, and only after the SFWA and other high profile writers and writers' organisations became involved. Basically Disney were claiming that when they acquired 20th Century Fox and Lucasfilm they bought the rights to profit from those companies' existing contracts but had no legal responsibility to continue paying creators under those same contractual obligations. Google #DisneyMustPay for a slew of further articles about it.

As I say, they were eventually forced to settle (with the usual obligatory NDA to avoid scrutiny of the settlement). But it does seem part of a developing pattern of them doing their damnedest to avoid paying the people who actually create the material they profit from, and at the same time trying to create legal precedent that allows them to renege on contractual agreements.

As witness the recent bruhaha with Scarlett Johanssen over terms in her Black Widow contract... again, recently settled in her favour, with Disney - despite an aggressive legal pushback (that her claim was 'without merit' and trying to smear her as 'uncaring' about the pandemic) - eventually being forced to pay a substantial proportion of the money she claimed she was owed.

 

[signeddiamond]

I suppose I would be interested in seeing the contract that they signed with George Lucas. Does that outline the current contract liabilities? If not then I can’t see an issue with what Disney paid for. That is of course speculation on my part. If such a contract does say that Disney must honor all existing contracts as written then I completely agree this is a pretty scummy move.

Also I think that many people confuse settlements with an admission of guilt. Honestly such things are strictly a cost calculation. If the cost to settle is less then the cost to defend legally and endure negative publicity then they will settle.

I do also feel like this is not what this case is about. These are not existing contracts being discussed here. These are old work for hire creators (their families really) asking for a cut of something they have no contractual obligation to receive. They may decide to settle but again, that is more of an act to save money and public opinion. Cases like this have already been won by the legal property owners so any money that goes to these families should be considered charitable.

 

[MattBlack]

I am not putting this out there as 100% fact, but I have also heard talk that allegedly Disney is NOT paying some authors back pay for work on books that the authors were owed before Disney took over Lucasfilm and it's properties.

It absolutely is fact. Multiple writers and artists of comics previously owned by Dark Horse (Star Wars. Aliens, Predator etc) have come forward saying Disney, though now publishing new editions of those comics, have not paid a single royalty to the creators.

Film quality aside, Disney is and always has been utterly awful with IP, copyright and creators. I still remember when fanboys all over the web were gleefully celebrating when Disney bought Fox, because it meant the X-Men would be in the MCU, thinking this would be really bad in the long run.

You can read more here:

 

[signeddiamond]

Again it really comes down to the contract signed when these properties were acquired by Disney.

Let’s pretend I’m spending a couple billion to acquire a few IPs. I don’t want to also pay some guy I never hired for the rest of eternity so in the contract that likely contains the stipulation that I honor all existing contract liabilities I just have my lawyers remove that part. Nothing has been signed and this is still a negotiation and there is nothing wrong with me asking for this. It puts the ball in their court to resolve all these contracts and pay these people off even if not explicity stated because at this point those contracts are still their responsibility.

The previous property owner can always say that that is an unacceptable change that they won’t sign off on. But maybe they don’t consider it important, get blinded by the billions of dollars, or are generally just apathetic to letting old contracts fall apart now that they won’t need to deal with it pretty soon. So they sign the contract and the deal is done. The previous owner now has billions of dollars and has not negotiated to pay off the previous contracts. They just walk off with the cash. I on the other hand have a signed contract saying that I am not responsible for past liabilities but am getting harassed by the public for not doing something the previous owner should have handled.

Who is in the wrong here? If you were the purchaser what would you have done? My point here is that to my knowledge these contracts have not been made public. Before we vilify anyone maybe it’s important to actually understand who is responsible for what and not just assume that Disney = Bad because they currently hold the ball. Maybe they are at fault and are pushing their weight around to much but the actual answers are out there in the contracts and not in The Verge articles.

 

[Lightning]

in the contract that likely contains the stipulation that I honor all existing contract liabilities I just have my lawyers remove that part.

I don't see how that could possibly be legal. Where is the law that says you are allowed to remove liabilities in that way?

 

[Picard102]

You could just be purchasing the rights to IP and not any of the associated debts or obligations of the former IP holder.