Just three months ago, Disney’s Marvel unit filed a series of lawsuits aimed at retaining full ownership rights to characters including Spider-Man, Iron Man, Dr. Strange and the Mighty Thor. Given that the wheels of justice often turn slowly, one might not expect a resolution to these cases for years. But guess what? This past weekend’s stunning $260 million box office opening for Spider-Man: No Way Home wasn’t the only excitement these past few days for the Marvel Cinematic Universe. There’s also been some action on the Supreme Court docket that teases a potential game-changer for Hollywood. One that could impact 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 a statutory set period of time. Thus, Disney finds itself facing termination notices on famous superheroes. Not everything is subject to termination, though. A work created in the scope of employment, for instance, can’t be reclaimed by the employee. Where it gets legally complicated is contractor situations. Especially for older works before documentation on “works made for hire” became standard. How to classify material produced for Marvel Comics in the 1960s: That’s what’s at issue in these Disney cases.
Of course, the world of freelancing goes well beyond comic book writers and illustrators. And that’s where the Game of Life comes into play. For the past few years, this popular board game has been the center of a legal squabble over its creation. Now, the case has hit the high court, and that’s got Hollywood insiders very interested.
First sold in 1960, the Game of Life was meant to mark Milton Bradley’s centennial. 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 eventually created the prototype.
Decades later, Markham’s heirs sought a declaration in court that they could exercise copyright termination, but after a trial, the judge determined the game was created as a work made for hire, meaning Milton Bradley — later acquired by Hasbro — was deemed the author. No termination was possible. This past June, that ruling was affirmed by the 1st Circuit Court of Appeals.
Now, Markham’s heirs are petitioning the Supreme Court for review. Specifically, they want the justices to address when older commissioned works are made for hire. In 1989, in CCNV v. Reid, Thurgood Marshall addressed the test for newer commissioned works under the 1976 Copyright Act, but didn’t lay down the rules for works created under the 1909 Copyright Act. Markham’s heirs take exception to how district courts in certain circuits — not all — have since been using the “instance and expense” test to determine a work’s eligibility for being terminated.
“Hanging in the balance is the ownership of the copyrights in thousands upon thousands of works authored before the 1976 Act, including numerous paintings, sculptures, movies, plays, and other creative works like the board game here,” states the petition. “Given the extraordinary duration of copyrights under the 1909 Act (approaching a century long), those ownership disputes will continue to arise for decades to come, subject to fundamentally conflicting rules unless and until this Court intervenes.”
If the Supreme Court takes up the case, it will undoubtedly impact Marvel superheroes too because Disney’s primary argument to resist copyright termination is that freelanced contributions like Dr. Strange, Black Widow and Loki were once done at Marvel’s instance and expense. It matters not, as the studio sees it, that Steve Ditko, Gene Colan, Don Heck and others made creative choices and often did so with financial risk, getting paid only upon acceptance. Disney feels confident in its legal position thanks to some court success a decade ago in the Jack Kirby copyright termination fight — but that confidence gets a little shaky with respect to the Supreme Court. A decade ago, when Kirby’s heirs filed a very similar petition as Markham’s to the high court, Disney forked over tens of millions of dollars to settle the case rather than risk a reversal.
On Dec. 15, Larry Lieber (Stan Lee’s brother and a comic artist too) plus the estates of Ditko, Colan, Heck and Don Rico filed an amicus brief in support of Markham (read here). That’s not surprising, given how justices playing the Game of Life could end up conferring them an enormous advantage in their own cases.
But perhaps more intriguing is a friend-of-the-court brief from William Morris Endeavor, also filed Dec. 15. What does Emanuel’s talent agency care? WME has a “growing practice representing the estates and heirs of creators,” states the brief, mentioning as examples Tom Clancy, Andy Kaufman and the Notorious B.I.G.
WME says that interpretation of “work for hire” would be “economically consequential – both for creators and for the talent agent industry,” and also sticks its elbow out at Disney with a nod to another franchise: “The original Star Wars movie (Episode IV – A New Hope, 1977), covered by the 1909 Act, would be subject to one interpretation of the work-for-hire doctrine until at least 2070,” states the agency’s amicus brief (read here). “But subsequent Star Wars sequels, covered by the 1976 Act, would be subject to an entirely different interpretation. In the years to come, this mismatch could lead to commercial and administrative complications for talent agencies such as amicus.”
SAG-AFTRA, the guild for the industry’s performers, also weighs in for Markham and proposes that the “instance and expense” test amounts to a “windfall” for those acquiring intellectual property without bearing the burdens or obligations of being in an employment relationship. The union also emphasizes how the subject will be quite meaningful for music. “For example, a review of Rolling Stone magazine’s top-500 songs of all-time list reveals that the majority were created prior to the effective date of the 1976 Act,” states SAG-AFTRA’s amicus brief (read here). “Of these, nearly 200 were created and released before creation of the instance and expense test. While not all of these songs will be subject to these same issues, many were and thus will be subject to the same uncertainty or inequity as their statutory termination windows approach.”
The justices of the Supreme Court are scheduled to discuss whether to take up the Game of Life case at a private conference on Jan. 7. Typically, the decision on granting or denying certiorari comes within days of conference (although other actions, such as deferral or requesting responses, are also possible).
Should review come, Disney may then decide to intervene with its own amicus brief in favor of Hasbro. But even so, the entertainment giant would immediately be living with new possibilities for the Spider-Verse.
