Marvel & Mouse sue broke Ghost Rider creator

[Colin YNWA]

Not making a comment on the case per-say but its worth remembering that we have a thread on this very site were we the fans of 2000ad look out for what we think are copyright infringements for characters we care about. Characters owned by a company that's bought the rights from others that no longer sit with the creators who made them. We do this to protect the comic we love, so I'm not questioning the motives for that thread.

There are a lot of variables in this specific case that don't sit well, or make it easy to glare at Marvel and people might well be right to do so. At the end of the day, right or wrong though, if we defend the right of Rebellion to protect the copyright on characters they own are we not on sticky ground then damning Marvel for doing the same thing?

[Professor Bear]

Claiming copyright ownership of the character because Marvel neglected to "top-up" their own copyright claim doesn't sit well with me. It smacks of Friedrich thinking, "Hey, look, they screwed up! I reckon I can make money from this!"

That's one interpretation of Friedrich's actions, but it's worth bearing in mind that this wasn't some clever loophole he discovered, it's how Marvel and a great many other companies conduct their business in order to safeguard their franchises from the kind of IP squatting where someone buys the rights and then does nothing with them, preventing others from exploiting the property (as happened with Spider-Man throughout the 1980s and 1990s).  After a certain amount of time of a property not being used it reverts back to the original owners - this is actually quite fair and Marvel fully endorses this process, they're just on the other side of it for once and rather than quash it appropriately and send a message that they (probably) have the law on their side, they chose the path of the bully and stripped Friedrich of his right to be identified as the creator of Ghost Rider in any collections, adaptations or continuations of the property.

I'll grant you that Friedrich was undoubtedly a bit cheeky trying it on the way he did, but this isn't about the way he went about things, it's how Marvel went about establishing that they can now stop crediting a creator for his work, an approach that has larger implications not just for comics, but for other media as well.

[Emperor]

Gary Friedrich worked for Marvel on a work-for-hire basis, fully aware that he would have no rights to anything he created for them. He created Ghost Rider as part of this contract. In 1978 he even signed an agreement with Marvel that he had no rights to the character.

It's even more complex than that. Ghost Rider was originally a western character who they called Phantom Rider when the Johnny Blaze character came out:

http://en.wikipedia.org/wiki/Phantom_Rider

The Johnny Blaze character kept that old timey button down the side western jacket look, then they put him on a motorbike and set his head on fire. So, as well as the name, elements carried over from the previous character. Then things get more complicated because Roy Thomas (the editor at the time) says he and the artist created the character when Friedrich wasn't around:

http://en.wikipedia.org/wiki/Ghost_Rider_(comics)#Origins

So proving who designed the character would have come down to "he said, she said" with no easy way to resolve that (especially as the movie design is based on Daniel Ketch, other than the flaming skull). However, this wasn't required as the contract issue seems straightforward:

In a decision on Wednesday, however, New York federal judge Katherine Forrest says that it's unnecessary to "travel down the rabbit hole of whether the Character and Work were in fact originally created separate and apart from Marvel, whether they are a 'work for hire,' or whether during an initial conversation in which Friedrich obtained consent to proceed with the project that eventually became the Work, he had thoughts about what rights he might want to retain."

That's because the judge looks at two contracts and decides they plainly give copyright authority to Marvel.

The first contract was at initial creation where Friedrich gave rights in exchange for payment. Friedrich believed that he held onto non-comic derivative versions of the work, but...

The second contract was signed in 1978 where Friedrich agreed to grant "to Marvel forever all rights of any kind and nature in and to the Work."

Judge Forrest says the language of this agreement "could not be clearer" and rejects various arguments such as consideration and adhesion why this contract is not in full force.

http://www.hollywoodreporter.com/thr-esq/nicolas-cage-ghost-rider-marvel-comics-276589

Now I believe at least one of those contracts is a cheque and endorsing the cheque means you abide by the  accompanying rules, which is a bit of a sneaky move but it was pretty standard in the industry. Also if I remember correctly the Jack Kirby lawsuit revolved around this kind of practice but they haven't had any success yet and there is a lot more at stake there.

The copyright allegedly lapsed on Ghost Rider and Friedrich's claim comes from his re-asserting his rights to the character technically in a legal limbo at that time (1),

...

(1) I'm not sure on the specifics, but the rough gist is that if a company doesn't publish a book featuring a character and that character's distinct likeness/logo/whatever within a five year period, they're ceding certain rights to retain that character/character likeness/logo/whatever, or at least leave themselves open to some sort of legal challenge from rival parties.  Basically, that's why Marvel put out small print runs of limited series like Darkhawk and Captain Marvel out of the blue every couple of years by people you've never heard of - no-one cares how these books sell, they're just keeping the IP in circulation.

I've not looked into the details of this specific case but what you are describing is a trademark issue, not copyright. At least with regards to Captain Marvel, otherwise Marvel could just have used that character:

This is why, when DC got around to publishing Fawcett's Captain Marvel characters in the 1970s, they had to call the book "Shazam!," as the name Captain Marvel was a trademark owned by Marvel (note the difference between trademark and copyright. Fawcett still owned the copyright on Captain Marvel, so when they licensed the character to DC, DC was able to use the name Captain Marvel IN the comic book, just not when promoting or advertising the comic book. That is where trademarks come into play).

http://goodcomics.comicbookresources.com/2005/08/18/comic-book-urban-legends-revealed-12/

Although there are complicated situations with copyright on older works (anything published between about 1923 and 1964 had to have its contact renewed) with the more modern examples all you need are copyright notices on what you release* and then you have copyright until it lapses (70 years after the creators death most places, 50 years in others like Australia).

So it isn't that the copyright lapsed, it is that it wasn't ever registered in the first place:

The writer asserted he created Johnny Blaze/Ghost Rider in 1968 and, three years later, agreed to publish the character through Magazine Management, which eventually became Marvel Entertainment. Under the agreement, the publisher held the copyright to the character's origin story in 1972′s Marvel Spotlight #5, and to subsequent Ghost Rider works. However, Friedrich alleged the company never registered the work with the U.S. Copyright Office and, pursuant to federal law, he regained the copyrights to Ghost Rider in 2001.

http://robot6.comicbookresources.com/2011/12/marvel-prevails-in-lawsuit-over-rights-to-ghost-rider/

The problem is, even if copyright did revert to him, by endorsing the cheques from Marvel he transferred copyright back to them.

* Night of the Living Dead is public domain because it was going to be called "Night of the Flesh Eaters" until the last minute and the distributor swapped in a new title card, which didn't have the copyright information on.