As we have previously observed, superheroes often take starring roles in disputes relating to copyright protection for fictional characters. This makes sense, as they frequently appear in long-lived series of works in various media (comic books, television shows, films, etc.) sporting a consistent set of identifying characteristics – physical appearance, personality traits, “origin story,” and the like. Indeed, many such disputes take it as a settled conclusion that the superhero character is entitled to copyright protection, and rather center on disagreements over which party in fact owns the right to exploit the character in new stories and new media.
Ghost Rider Enters the Fray
A recent example of the latter type of dispute has been playing out in the Southern District of New York and the Second Circuit. Plaintiff Gary Friedrich has sued Marvel Characters and a host of other defendants for infringement of the copyright in the character of Ghost Rider, a stuntman named Johnny Blaze who, as a result of a deal with the devil, has been transformed into – in the Second Circuit’s words – a “motorcycle-riding superhero with supernatural powers and a flaming skull for a head.”
Friedrich claims he created the character of Ghost Rider in the late 1960s and early 1970s and presented a synopsis to Marvel in 1971 describing Ghost Rider’s origin story and the appearances of the main characters. Marvel had the story illustrated by a freelance artist, and Ghost Rider debuted in a 1972 publication called Marvel Spotlight, Vol. 1, No. 5. Friedrich filed suit in 2007 – the same year Marvel came out with a Ghost Rider movie starring Nicholas Cage – alleging that the copyright in the Ghost Rider character had reverted to him when the original term of copyright expired in 2001, and that he held the copyright for the renewal term. Under the 1909 Copyright Act, which controls the 1972 work at issue, copyright protection was divided into separate terms, with the intention of giving authors the opportunity to renegotiate exploitation of their works after their commercial value had been established.
In late 2011, the District Court granted summary judgment for defendants, finding that Friedrich had assigned his copyright in Ghost Rider to Marvel for both the original and renewal terms of copyright protection via a 1978 contract, and denying Friedrich’s cross-motion for summary judgment on authorship. Last month, the Second Circuit reversed and remanded the case for trial.
The Second Circuit’s Analysis
With regard to ownership of the right to renew the Ghost Rider copyright when the original term of protection expired, the Appeals Court noted that there is a strong presumption against finding that renewal rights have been conveyed. The court found the language of the 1978 contract, which Marvel required all of its freelancers to sign shortly after the 1976 Copyright Act went into effect, to be ambiguous, and indicated that it could reasonably be construed simply as an effort to ensure that future work created by freelancers would qualify as work-for-hire under the new copyright regime. The court observed that the contract could not retroactively make the 1972 work a work-for-hire, since that question that would turn on the circumstances surrounding the work’s creation under the 1909 Copyright Act. Finally, the court noted that there was little evidence to suggest that the parties intended to affect renewal rights in Ghost Rider by means of a subsequent standard-form agreement that did not mention either Ghost Rider or renewal rights. Therefore, the Second Circuit remanded for fact-finding as to the parties’ intent with respect to the 1978 agreement – with, it seems, a thumb on the scale in favor of a finding that renewal rights were not conveyed.
The Second Circuit also rejected Marvel’s alternative argument for affirmance of its summary judgment victory, based on a statute of limitations defense. The Appeals Court found a genuine dispute in the record as to when Marvel publicly, privately, or impliedly repudiated Friedrich’s claims to copyright ownership, so as to start the statute of limitations clock running.
Finally, however, the Second Circuit upheld the District Court’s rejection of Friedrich’s cross-motion for summary judgment declaring that he was the author, or at least a co-author, of Ghost Rider. The court found that Marvel had presented evidence supporting an alternative version of the creation of Ghost Rider, under which a jury could conclude that the comic and character were works made for hire, of which Marvel was the sole statutory author.
What Happens Next?
On remand, the District Court will conduct a bifurcated trial, to address the issue of copyright ownership first, and then, if necessary, the question of infringement. Defendants have moved to strike plaintiff’s jury demand with regard to the first phase, which they assert is simply an equitable claim for a declaratory judgment of ownership. Plaintiff’s response to the motion is due on August 1, and trial is scheduled to begin – before judge or jury – on November 4.
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