Marvel's intellectual property issues

Marvel's intellectual property issues

A paper I wrote in law school about the intellectual property rights that burden Marvel's characters.

Avengers Assemble! … Fans May Never See All of Marvel’s Heroes Together in a Live Action Movie

*** This is my first article and I know it is long, but it is well researched and even though I wrote it in November of 2010 the issues are still relevant today. I didn't get an A on it, but I had a lot of fun writing it.***

*** Please see footnotes (FN) at the bottom for appropriate legal siting of sources ***


I. Intro


Every Marvel Superhero has his own comic book and storyline and they all live with in what is referred to as the Marvel Universe. Every few years a big event takes place within the Marvel Universe and all or almost all the heroes are assemble together to save earth, the universe, or sometimes just themselves. These events are usually pretty epic and only the best writers and artists are put together to create them.
One of the latest events was “Civil War” in which the heroes were placed against each other and forced to choose sides. Marvel hired the great Mark Millar to write this event. Millar is the creator of “Wanted” and “Kick-Ass,” both of which became major motion pictures. These epic Marvel events sell a lot of comic books and build a big fan base, because of the involvement of so many big name writers, artists, and all the heroes themselves. It is only a matter of time before the Marvel company will want to make live action movies about these events, because the fans already want it.
Since Spiderman first spun his way on to the big screen in 2002, comic book movies have been “Hulk Smashing” box office records. The comic book movie industry is so powerful right now that there are seven movies to be released next year based on the heroes from comic book heroes. Also, in 2012 Marvel will be releasing the first team up movie, “The Avengers.” The Avengers movie will combine four heroes that will have their own movies first: Iron Man, Thor, Hulk, and Captain America. The only problem is that not all the heroes that have been a part of the Avengers will be in the cast, because of intellectual property rights.
While Marvel does own copyrights for all of their super heroes (DC and Marvel have actually co-own a trademark on the term “Super Heroes.” You can find this by going to http://www.uspto.gov/trademarks/index.jsp (select “Search Marks”; then select “Basic Word Mark Search (New User)”; then enter the term “super heroes” in to the “Search Term” box; then select the trademark to view its owner), they licensed out their rights for some of the most popular characters to different studios years ago for the right to make live action movies. The problem Marvel has now is that they cannot get the intellectual property rights back for all the big characters they will need to make a movie about the “Civil War” or any other big event in the Marvel Universe.
Will Marvel ever be able to make a live action movie about a big event with all of its heroes? That is a hard question to answer because there a so many intellectual property issues involved with comic book heroes. This paper will analyze the various intellectual property protections awarded to comic book characters and how these rights affect the heroes. First, Part II will analyze the background of the different intellectual property law concepts that give legal protections to comic book heroes. Then, Part III will argue what would be the best way for Marvel to make a motion picture about a major Marvel event, with all of its characters. Lastly, Part IV will conclude as to whether Marvel will ever actually be able to make a move with all of their superheroes.



II. Background


A number of intellectual property issues surround comic book heroes, the two main ones being Copyright and Trademark protections. These issues are especially difficult because ever since Action Comics (now DC) released the first Superman comic, courts have constantly battled over who owns the intellectual property rights of the heroes. Copyright laws have been changing through the years to help protect authors and the original owners of the copyrighted material. The reason the original owners are being given more protection is clear in the case of comic book heroes because often the author will transfer his rights in the material before anyone knows the true value of the intellectual property. Protective intellectual property laws, such as copyright and trademark protections are in place to help original authors to renegotiate their transferred intellectual property, but there is still issues that need to be settled.


A. Copyright


Copyright law provides authors with certain exclusive rights, for a limited time, to promote creativity and enrich the public (FN 1). For comic book heroes, copyright protection allows authors to control the use of their artistic creations, including the exclusive right to reproduce and perform the work, as well as the exclusive right to prepare derivative works for the duration of the copyright term (FN 2). The public also has the right to make fair use of the work, as well as the right to copy the creation when it becomes part of the public domain (FN 3). Copyright law is based upon the premises that “the public benefits from the creative activities of authors” and that is why there needs to be copyright protections (FN 4).
With copyright protections, authors are given the power to control the use of the heroes and characters they create. Authors get this power from Chapter 17 of the United States Code:

Subject to sections 107 through 122, the owner of copyright under this title [17 USC § 106] has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. (FN 5)

The Supreme Court has recognized that these protections can cause a problem by causing an “inherent tension in the need [to] simultaneously protect copyright material and to allow others to build upon it (FN 6).” This tension is from the protection of exclusive rights and how the public domain will benefit from the works. An author’s exclusive right in their creation allows them to benefit from their creativity. While the right of the public to benefit from the authors creation is based on the assumption that once a copyrightable creation enters the public domain, others should be allowed to benefit from it and possibly make it better for the good of all.
The development of copyright protection for comic book heroes has grown as courts have struggled to fit fictional heroes into a facet of copyright law (FN 7). Comic book characters are arguably a new issue for the courts, they have only been around since 1934(Superman was reviled in volume one of Action Comics in 1934), while characters of novels have been around for a lot longer and are not normally visually depicted as ever super hero is in comic books. Instead of using words to tell the story, comic books rely more on drawings. Despite the struggle with these concepts, courts have come up with a two prong inquiry to determine whether heroes are able to have copyright protection.
The first prong of the inquiry is the distinct delineation standard, originated in the 1930 decision Nichols v. Universal Pictures Corp (FN 8). In Nichols, the court decided a character is “sufficiently delineated” it will be entitled to protection. The more highly developed the hero is the greater intellectual property protection will be given to it. The court in Nichols found that the Plaintiff’s characters are no more unique than the archetypal Jewish and Irish characters that have appeared in literature for decades, and the Defendant has not taken anything more than what is contained in these stock figures’ prototypes. As such, the Defendant’s use is not an infringement since the Plaintiff has no copyright in these “stock characters.” The distinct delineation standard rests upon the assumption that “the more developed a character is, the more it embodies expression and less a general idea.
The second prong of the inquiry is the story being told test, originated in 1954 with the Warner Bros. v. Columbia Broad (FN 9). In Warner Bros decided that in order to be afforded individual copyright protection, a character must constitute the “story being told.” The court found it “conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of the story he is not within the area of the protection afforded by copyright.” The character must be more than a “mere chessman,” a mere vehicle for the telling of the story.
The second prong, the story being told test, was significantly limited in Walt Disney Productions v. Air Pirates in 1978 (FN 10). The court in Air Pirates held that visually depicted characters are easier to give protection to and thus the “story being told” test may not be so necessary for visually depicted characters. The reasoning for this is simple because when a character is visually depicted more thought goes into their appearance then a character in a book and that extra thought, if unique enough, should be copyrightable by itself. Then in 1989 the court in Anderson v. Stallone decided that while it seems that the “story being told” test applies less to visually depicted characters than it does to literary characters, in the interest of caution, both tests (“sufficiently delineated” and “story being told”) should be applied (FN 11). The court in Metro-Goldwyn-Mayer v. American Honda, a 1995 case, further agreed with the court in Anderson, when it decided that it is in the court’s best interest to evaluate the copyright ability of visual characters under both tests (FN 12). Therefore, currently the courts are applying both tests in determining whether comic book heroes are protected by copyright laws.
In 2001 the court in New Lin Cinema v. Russ Berrie & Co. extended copyright protections to the component parts of a character that significantly aid in identifying the character (FN 13). Therefore, things like Captain America’s shield, Iron Man’s armor, and Thor’s mjǫllnir (his hammer) are all protected by copyright laws. Once all of these copyright protections are given to the comic book heroes themselves and their component parts, the issue becomes who actually owns the copyrights.

1. Authorship


The basis for statutes that protect author’s rights to his/her writings comes from the United States Constitution (FN 14). The Constitution is explicit in its goal: “to promote the Progress of Science and Useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings . . . .”(FN 15) In order to promote science and the useful arts, the provision grants authors temporary control over their creations (FN 16). Often referred to as the “Copyright Clause,” this constitutional provision gives Congress the authority to enact a broad range of federal statues designed to offer authors and artists incentive to create and protect their financial interests in their creations (FN 17). The first of these statues was the Copyright Act of 1909.
Under the Copyright Act of 1909, an author was entitled to a copyright in his work for twenty-eight years from the date of its publication (FN 18). Upon expiration of the first twenty-eight year term, the author could renew the copyright for a second twenty-eight year term by applying to the United States Copyright Office (FN 19). The Supreme Court has noted that the renewal term operated to “permit the author, originally in a poor bargaining position, to renegotiate the terms of the grant once the value of the work has been tested (FN 20).” This renewal term helps authors with their rights by alleviating the problem of the author’s inability to know the true monetary value of their works prior to commercial exploitation (FN 21). Therefore once the comic book hero became popular the author had a second chance to reap the benefits of his/her creation. This protection, the authors renewal right, was seriously damaged by the Supreme Court in 1943.
In 1943 the Supreme Court held in the case of Fred Fisher Music Co. v. M. Witmark & Sons that renewal rights were assignable by an author during the initial copyright term, before the renewal right vested (FN 22). Consequently, after Fisher Music publishers began to insist that authors assign both their initial and renewal rights to them in one transfer (FN 23). This ruling effectually eliminated the author’s renewal right under the 1909 Act (FN 24). Therefore, Congress enacted a new revision of the Copyright Act in 1976 to remedy this problem as well as other copyright issues.
In the 1976 Copyright Act, congress extended the duration of copyrights then in the renewal terms for an additional nineteen years (FN 25). More significantly, however, the 1976 Act gave new protections to authors (FN 26). It allowed authors to terminate the rights of a grantee to whom the author had transferred rights in the original work (FN 27). Section 304 provides that terminations may be “effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured (FN 28).” This act also provided a very important exception to the author’s right to transfer their rights and the right to terminate that transfer, it is called the work-made-for-hire doctrine, which will be discussed later.

2. Joint Authorship


The authorship of a super hero is very complicated in the comic book world because it actually takes at least three people, a writer (the story teller), a penciler (draws the characters), and an inker (gives that pages color), to create a hero and they could all potentially be considered authors.
When there is just one author, the question of who owns the copyright is pretty simple (not withstanding that they were hired or contracted to prepare the works). Things get confusing when there is more than one person involved in creating a copyrightable work. The issue then becomes: who and what contributions will merit copyrights to the other authors. The 1976 copyright act defines joint work as: “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole (FN 29).” Therefore, the question of who is a joint author or not depends on the intent of the parties involved.

3. Work Made for Hire


The issue of authorship is mute in the comic book world today because of the work-made-for-hire doctrine. Congress gave a detailed definition of the work-made-for-hire doctrine in the 1976 Act:

A “work made for hire” is
(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 written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting, upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial or graphic work prepared for publication and with the purpose of use in systematic instructional activities. (FN 30)

With the work-for-hire doctrine there is no issue of who owns the copyright to a comic book character because once these individuals are under Marvels payroll all the intellectual property rights that are vested into a comic book, the heroes in them, and the heroes’ component parts are all owned by Marvel.

B. Trademark


Trademark laws give comic book heroes a second form of intellectual property protection that is different from the protections available under copyright law. Copyright law seeks to protect the original writings of an author and is mainly concerned with the character’s development and individualization as a threshold protection (FN 31). While trademark laws actually seek to protect the commercial value of trademarks and are concerned with the ability of a mark to symbolize the source of goods or services (FN 32).
Trademarks “are designed to guard consumers against confusion as to the source or authorization of an item connected to a trademark (FN 33).” This protection allows consumers to rely on the information conveyed by the mark, thereby significantly reducing consumer search costs and encouraging manufactures to invest in the creation of quality product and consumer goodwill (FN 34). Therefore, a trademark owner is given control over the use of the mark in connection with those goods and services for which the mark has the ability to serve as an indication of source (FN 35). Trademark protection exists so long as a mark has a source-identifying capacity (FN 36).
Once a comic book hero is given protection under trademark law, it must determine what elements of the heroes are to be protected. Trademark protections have been granted to a variety of elements including: character names, nicknames, costumes, and even key phrases associated with a character(FN 37). For a comic book hero to serve as a trademark, they must be capable of indentifying the comic book author or publisher that they come from. For example, Spiderman’s name, nicknames (“Web Head,” “Wall Crawler,” “Web Slinger,” and most famously “Spidey”), costume (the red and blue tights with the black web pattern and the black spider on his chest), and key phrases (“Your friendly neighborhood Spider-Man,” “My Spider-sense is tingling!,” and “With great power comes great responsibility”) are or potentially are all trademarks for Marvel and Spiderman comic books. These protections given by trademark law are governed and come from the Lanham Act.
The Lanham Act provides the basis for trademark protection and defines a trademark as, “any word, name, symbol or device or any combination thereof used . . . to identify and distinguish . . . goods . . . from those [of] others and to indicate the source of goods . . . .”(FN 38) To satisfy this distinctive requirement a marks distinctiveness must be either inherent or acquired through prior use of the mark establishing secondary meaning (FN 39). Marks are inherently distinctive if they are suggestive (requires imagination, thought and perception to reach a conclusion as to the nature of goods), arbitrary (involve the use of common word applied in an unfamiliar way), or fanciful (usually applied to words invented solely for their use as trademarks) (FN 40). Marks gain secondary meaning when indistinctive marks “become distinctive of the applicant’s goods in commerce” by the use of the marks, which creates public recognition that the particular mark is associated with the applicant (FN 41). Therefore most comic book hero trademarks acquire their distinctiveness through the use of the character developing a secondary meaning associated with Marvel’s comic books.

C. Moral Right Considerations


The subject of moral rights reveals the greatest difference between current United States law and the law of many foreign nations (FN 42). In a sense, moral rights address a completely different set of rights and interests that authors might possess (FN 43). Instead of focusing on the author’s economic rights, with is designed to create financial incentives for creative effort, the moral rights scheme focuses on the author’s personal rights to honor, reputation, artistic integrity, and attribution (FN 44).
The moral rights theory is based on a natural law conception of an author having moral connection to his or her work over and beyond the economic incentive, which is inalienable from the author (FN 45). Though moral rights are not the basis for intellectual property laws in the United States, there is still something morally compelling about authors fighting against giant corporate publishers for the fruits of their labors (FN 46). There is an appeal of appreciating the creator of something, therefore even though United States intellectual property laws are not based on them, moral rights may still play a part in a court’s decision.
Examples of the courts possibly acknowledging the moral rights of the creators of comic books are in the cases of Marvel Characters, Inc. v. Simon and Siegel v. Warner Brothers Entertainment, Inc. In Simon, the court was willing to discard a work-for-hire agreement and said that Simon is not equitably estopped from raising his purported authorship of Captain America (FN 47). Then in Siegel, the court applied an extremely narrow reading of the previous agreement between the parties, allowing the author to later recapture their rights to works created before the working relationship with the publisher began (FN 48). Though these cases are not a complete validation of moral rights, they do show the courts may be willing to consider some moral rights, even though the United States does not widely recognized moral rights as the basis for our intellectual property law (FN 49).

D. Licensing


While licensing is more a contract law issue, it is still very important to the intellectual property protection given to comic book heroes. A licensing agreement is a legal document signifying the agreement between at least two parties, giving official permission to use something that someone else owns or has the rights too. Marvel has entered into many licensing agreement whereby they have licensed the use of their heroes for a wide variety of things to include: toys, apparel, interactive games, electronics, home wares, stationery, gifts and novelties, footwear, food and beverages, collectibles, and most importantly the right to create, produce, distribute, and market theatrical motion pictures. Films and licensed product represent 85.4% of Marvel’s gross profits (FN 50). Therefore, Marvel makes its money from licensing and not from publishing (FN 51).
Marvel used to license out the rights for motion pictures in their characters to other film studios, because Marvel could not afford to make their own motion pictures. Therefore, it was more profitable for Marvel to license out the rights in an exchange for a substantial fee and a percentage of the gross proceeds from the films. Sony pictures owns the live action movie rights to all things Spider-man and Ghost Rider, Lionsgate Entertainment owns The Punisher, and 20th Century Fox owns the Fantastic Four, Silver Surfer, Daredevil, and X-Men (if you have seen any of the X-Men movies you know that it is a complete tragedy that Fox owns the rights) (FN 52). When Marvel made these licensing agreements it seemed like a great plan, but with the success of the movies and Marvel getting rich off of it they now want to make their own movies, instead of licensing it out to other companies. Unfortunately, with some of the most well known characters licensed out Marvel will have a hard time making a live action movie about a major Marvel event.
Fans should not fear though because most of these license agreements contain a clause which allows the rights to revert back to Marvel if the studio does not meet a deadline, by starting principal photography by a certain date or designated time period. This is exactly what happened with the Incredible Hulk, Universal made one movie about him that did not do so well. Therefore, Universal did not intend to make another Hulk movie and they missed the dates to start the next one, so Marvel got the rights back and came out with their own Incredible Hulk movie (this movie was way better, despite the change from Jennifer Connelly to Liv Tyler) (FN 53). Something similar happened in 1994 when Fox filmed a Fantastic Four movie, but they never actually released it, they only filmed it to ensure they retained the right to the heroes (the 1994 Fantastic Four movie is on youtube and is just as bad as the comic book movies Fox makes today). Fox is now revamping the Fantastic Four franchise and will be making a completely new movie with a new cast (which is a pity because Jessica Alba was an awesome Sue Storm). Fox is also doing this with the X-men movies, as their next movie (X-Men: First Class) will take the X-men back to their early years. Sony Pictures is doing the same thing with Spiderman, as their next film will take Peter Parker back to his high school years.
Back before Marvel started making its own movies, it was very beneficial to them to license out these movie rights to other studios. Unfortunately, now that Marvel has its own studios and is making their own comic book hero movies, they cannot just terminate their licensing contracts for some of the most popular heroes in the Marvel Universe. Marvel has no option now, but to wait for the other studios to break one of the licensing contracts or to buy the rights back, that is if the studios are willing to sell.


III. Argument

For this argument I will assume that Marvel will want to make a live action motion picture about the Civil War event that took place in the Marvel Universe a few years ago. This event involved just about everyone in the Marvel Universe, except for Silver Surfer and a few other characters. It started over a piece of legislation, the Superhuman Registration Act, that was being passed by the United States that would require all costumed heroes to unmask themselves before the government and subject themselves to federally mandated standards (FN 54). The superheroes of the Marvel universe were split as to whether to support the Act or not, so they were pitted up against one another, Iron Man lead the side that was in support of registration and Captain America lead the side that opposed it. Though Iron Man and Captain America were the lead characters there were several characters that were involved, most significantly Spider-man who was always very protective of his identity revealed himself as a key moment in this event. The Fantastic Four and the X-Men were also significantly involvement in this event.
Since Marvel granted an exclusive license of its rights for the derivative works of a motion picture for Spider-man to Sony and the Fantastic Four, plus the X-Men, to 20th Century Fox, they cannot make a motion picture about this event. They would have to get the intellectual property rights back from these other studios before they could start production on such a major film without being sued by one of the other studios. Marvel may not be worried about making such a big film just yet, because they have so many projects lined up already with the money makers like Iron Man, the Norse god of thunder Thor, the incredible Hulk, and fan favorite Captain America. The Avengers movie, which will combined all of the above name characters, is set for release in 2012 and will mark a new beginning for comic book movies. The Avengers will be the first time in film history that so many superheroes, who have their own movies, will be brought together in a collaborative effort to “Punish” all box office records.
If the Avengers movie is as successful as Marvel hopes it will be it is only a matter of time before they look to do more of the same to keep that money coming faster than Wolverine can regenerate. Though even Reed Richards would be impressed by the genius of Marvel’s plan, there will be problems if the individual superheroes’ movies do not do well before the Avengers movie is released. The Iron Man movies have now set the standard on how much a comic book movie should bring in. Marvel’s Incredible Hulk movie did a lot better then its predecessor from Columbia Pictures, but it did not do as well as Iron Man, thus you will not see another Hulk movie before the Avengers movie. There are talks about another Hulk movie possibly after the Avengers or even a television show, but actor Edward Norton has already parted ways with the Hulk’s human form Bruce Banner, and will not be playing the part in the Avengers movie. If the Thor and Captain America movies do as well as the first Iron Man, then most likely the Avengers movie will be a hit and Marvel will be looking towards making many more collaborative movies like this.

A. The Bad News


The Sony and Fox contracts are as rock solid as the Thing (FN 55). If comic book movies continue to make more money than Tony Stark, then there is no way Fox or Sony will willingly give up their intellectual property rights to their comic book heroes. For example, 20th Century Fox is moving full steam ahead with X-Men: First Class, X-Men Origins: Wolverine 2, Deadpool and other spinoffs currently in the works (FN 56). Also, Sony already is planning on revamping the Spider-man franchise and the new movies will focus on a younger (high school age) Peter Parker.
On one hand it is great that comic book movies are making so much money, because if not then there would never be the possibility of an Avengers movie in the first place. Then on the other hand, Marvel will never own all of their heroes’ rights to be able to make a movie about the Civil War or any other Marvel event.
Even though Marvel does own the copyrights and trademarks to all their characters, they licensed out the rights to make live action motion pictures to other studios before they had any idea how much those rights were worth and that they would actually be in the movie making business themselves. One could almost make a moral rights argument that Marvel should have complete control over any derivative works from their characters, but they already have that right and they licensed it out. Another possible argument would be similar to that of the reversionary right previously discussed in dealing with copyrights. Authors have a right to transfer their intellectual property rights, but those rights will revert after a period of time to allow the author another chance to reap a benefit from their creation before they knew how much it was worth. This does not really apply here because Marvel still owns the copyrights in its characters, but they did license out the right to make motion pictures before they knew the true worth of them. Therefore, the same logic could be used to make an argument, but licensing has more to do with contracts and that is not governed by the same concepts that make up intellectual property law.

B. The Good News


Marvel has recently been bought by Disney and if any one company has a great reputation for protecting the intellectual property rights of its characters it is the Walt Disney Company. Disney’s lawyers are already pouring over the licensing agreements with Fox and Sony to try and find a loop hole. Though there is little hope that the Mickey Mouse lawyers can save the day and rescue heroes like the Fantastic Four from the evil Victor Von Fox or Spiderman from the venomous Sony. Disney is also talking about entering into negotiations with Fox and Sony about getting the rights back (FN 57). There are a few other ways that Marvel may get the rights back.
One other possibility is to wait for the same thing that happened with the Hulk and Columbia pictures to happen with the other heroes. The only way this could happen is if the next X-Men and Spider-man movies do horribly in the box office. Though Fox has made it clear that if it ever came to the point where they were going to lose any property they own because of failing to have a movie in production, they would simply produce a low budget, straight-to-DVD feature and "four wall it," which basically means, stick it in any theater to fulfill their theatrical release clause (FN 58). This strategy may also leave Marvel waiting around for awhile for the studios to default on their agreement. With that being said Marvel should seek a different path.
Another way would be to straight up buy the rights back. Marvel did something like this last year when they bought back Marvelman (FN 59). Buying the rights back would probably be very expensive. Even if Marvel had as much money as Stark Industries (Stark Industries is also and later known as Stark International, Stark Innovations, Stark/Fujikawa, Stark Enterprises, and currently Stark Resilient), Fox and Sony may not be willing to sell their rights back for any price. Therefore, Marvel look at other options.
Currently, Marvels best chance to ever make a Civil War movie or a movie about any Marvel event is to make them in collaboration with Fox and Sony. They would have to go through very long negotiations of how the movies would be made, how would direct, write, act, and whatever else. This option also does not look promising because when there is money to be made greedy people usually have a hard time getting along. Therefore, such negotiations would probably fall through if they ever even took place. Marvel’s fans are the last hope for a movie to be made.
The power of the fans should not be underestimated, especially with the internet to unit them. If the fans boycott any Marvel super hero movie not made by Marvel Studious, they could force the other studious to sell back the rights or allow them to revert back. An example of the power of fans on comic book movies was demonstrated in the last X-Men movie when the character the Juggernaut was given the line “I’m the Juggernaut bitch!” because of a fan video that became very popular online. Therefore the fans also have the power to get the heroes back to Marvel.

IV. Conclusion


Will Marvel ever be able to make a live action movie about a big event with all of its heroes? No, even with all the intellectual property protections vested in comic book heroes, Marvel cannot overcome the licensing agreements. Currently, the fans and Disney are Marvels last hope for a Marvel Universe event movie to be made. The Disney lawyers need to negotiate and do whatever is possible to get the rights back or Disney needs to pay for the rights. Also, fans can fight back by boycotting Fox and Sony comic book movies. Marvel needs more than the power cosmic to get its heroes back for a live action Civil War movie.


Footnotes

1. U.S. Const. art. I § 8, cl. 8.
2. 17 USC §§ 106, 302 (2000).
3. Id. § 107.
4. Kathryn M. Foley, Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide, 41 Con. L. Rev. 921 (2009) quoting Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.12 (1990).
5. 17 USC § 106 (2000).
6. Campbell v. Acuff-Rose Music, Inc., 510 US 569, 575 (1994).
7. Kathryn M. Foley, Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide, 41 Con. L. Rev. 921 (2009).
8. Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930) (cert denied 282 US 902).
9. Warner Bros. v. Columbia Broad. Sys., 216 F.2d 945 (9th Cir. 1954).
10. Disney v. Air Pirates, 581 F.2d 751 (9th Cir. Cal. 1978).
11. Anderson v. Stallone, 1989 WL 206431 (C.D. Cal. Apr. 25, 1989).
12. Metro-Goldwyn-Mayer v. American Honda, 900 F. Supp. 1287 (C.D. Cal. 1995).
13. New Line Cinema v. Russ Berrie & Co., 161 F. Supp. 2d 293 (SDNY 2001).
14. Sean McGilvray, Judicial Kryptonite?: Superman And The Consideration Of Moral Rights In American Copyright, 32 COMENT 319 (2010) referencing Michael H. Davis, Extending Copyright and the Constitution: “Have I Stayed Too Long?”, 52 Fla. L Rev. 989, 994 (2000).
15. U.S. Const. art. I, § 8, cl. 8.
16. Sean McGilvray, Judicial Kryptonite?: Superman And The Consideration Of Moral Rights In American Copyright, 32 COMENT 319 (2010).
17. Id. quoting Margeth Barrett, Intellectual Property: Cases and Materials, 404 (3d ed. 2007).
18. 17 USC § 24, repealed by Copyright Act of 1976, 17 USC § 101 et seq.
19. Id.
20. Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2002) quoting Stewart v. Abend, 495 US 207, 218-19 (1990).
21. Woods v. Bourne Co., 60 F.3d 987, 982 (2d Cir. 1995).
22. Fred Fisher Music Co. v. M. Witmark & Sons, 318 US 643, 656-659 (1943).
23. Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2002).
24. Id.
25. 17 USC § 304(b)
26. Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2002).
27. Id. See 17 USC § 304(c); Woods, 60 F.3d at 982.
28. 17 USC § 304(c)(3).
29. 17 USC § 101 (2000).
30. Id.
31. Kathryn M. Foley, Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide, 41 Con. L. Rev. 921 (2009) referencing Leslie A. Kurtz, The Methuselah Factor: When Characters Outlive Their Copyrights, 11 U. Miami Ent. & Sports L. Rev. 437, 444-53 (1994) see also Nichols v. Universal Pictures, 45 F.2d 119 (2d Cir. 1930) (cert denied 282 US 902).
32. Id. see 15 USC § 1125 (2006).
33. Id. quoting Christine Nickels, The Conflicts Between Intellectual Property Protections When a Character Enters the Public Domain, UCLA Ent. L. Rev. 133, 155 (1999).
34. Id. referencing William M. Landes & Richard A. Posner, Trademark Law: An Economic Perspective, 30 J.L. & Econ. 265, 269 (1987).
35. 15 USC § 1125 (2006).
36. Id. § 1058 (2006).
37. Kathryn M. Foley, Protecting Fictional Characters: Defining the Elusive Trademark-Copyright Divide, 41 Con. L. Rev. 921 (2009); see Premier Pabst Corp. v. Elm City Brewing Co., 9 F. Supp. 754, 760 (D. Conn. 1935) (finding trademark protection for the Old Maestro character); Edgar Rice Burroughs, Inc. v. Manns Theatres, 159, 162 (C.D. Cal. 1976) (finding trademark protection for the nickname Tarz based on public recognition of the name Tarzan and the likelihood that the use of the nickname Tarz would cause confusion or mistake about the source of origin of the defendant’s film); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema Ltd., 604 F2d 200, 204 (2d Cir. 1979) (finding “the combination of the white boots, white shorts, blue blouse, and white star-studded vest and belt” to be a trademarkable costume); Lone Ranger, Inc. v. Cox,124 F.2d 650, 652 (4th Cir. 1942) (protecting the phrase “Hi-yo, Silver, away!”); and Universal City Studios, Inc. v. Kamar Indus., 217 USPQ 1162, 1164-65 (S.D. Texas 1982) (protecting the phrase “E.T. Phone Home!!”).
38. 15 USC § 1127 (2006).
39. Id. § 1052.
40. Gary Myers, Principles of Intellectual Property Law: A concise Hornbook, § 7.03 (2008) quoting Abercrombie & Fitch Co. v. Hunting World, Inc. 537 F.2d 4, 10-11 (2d Cir. 1976).
41. 15 USC § 1052 (2006).
42. Gary Myers, Principles of Intellectual Property Law: A concise Hornbook, § 4.03 (2008)
43. Id.
44. Id.
45. Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int’l L.J. 353, 359-62 (2006).
46. Sean McGilvray, Judicial Kryptonite?: Superman And The Consideration Of Moral Rights In American Copyright, 32 COMENT 319 (2010).
47. Marvel Characters Inc. v. Simon, 310 F.3d 280 (2002).
48. Siegel v. Warner Bros. Entmt, Inc., 542 F.Supp.2d 1098, 1124 (C.D. Cal. 2008).
49. Sean McGilvray, Judicial Kryptonite?: Superman And The Consideration Of Moral Rights In American Copyright, 32 COMENT 319 (2010).
50. Joshua L. Simmons, Catwoman or the Kingpin: Potential Reasons Comic Book Publishers Do Not Enforce Their Copyrights Against Comic Book Infringers, 33 Colum. J.L. & Arts 267 (Winter 2010) quoting Marvel 2008 Annual Report, supra note 81, at 1.
51. Id.
52. http://screenrant.com/marvel-comics-movies-characters-carl-6766/
53. Id.
54. http://marvel.com/universe/Civil_War
55. http://www.iesb.net/index.php?option=com_content&view=article&id=10238:iesb-exclusive-disney-targeting-sony-and-20th-century-fox-marvel-franchises&catid=41:news&Itemid=71
56. http://www.iesb.net/index.php?option=com_content&view=article&id=10238:iesb-exclusive-disney-targeting-sony-and-20th-century-fox-marvel-franchises&catid=41:news&Itemid=71
57. Id.
58. Id.
59. http://marvel.com/news/comicstories.8869.marvelman_now_a_part_of_marvel_comics~excl~
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