Writer Assigned Rights in “Ghost Rider” Character by Endorsing Marvel Comics’ Freelancer Checks
December 28, 2011
A comic book writer’s endorsement of Marvel Comics’ freelancer checks in the 1970s conveyed any ownership rights he may have had in the “Ghost Rider” character and films, toys, and video games made based on that character, the U.S. District Court for the Southern District of New York ruled Dec. 28 (Gary Friedrich Enterprises LLC v. Marvel Enterprises Inc., S.D.N.Y., No. 08 Civ. 1533, 12/28/11).
Fight Over “Ghost Rider” Rights.
This battle between Marvel Enterprises Inc. and writer Gary Friedrich centered on rights in the motorcycle-riding “Ghost Rider” character with a skeletal head that at times has fire blazing from it. The court found no dispute that Friedrich conceived and wrote the text of the first comic book to introduce this new being (“the Character), which was published in Marvel Spotlight, Vol. 1, No. 5, (“the Work”) in April 1972. Before the introduction of this mystical superhero, the Ghost Rider of the 1950s and early 1960s was a “Western” character who rode a horse and was mortal, explained Judge Katherine B. Forrest. She also noted that Friedrich never raised any issue about exploitation of the Ghost Rider he created for 30 years, until 2004. This suit against Marvel, film studio Columbia Pictures Industries, Inc., toy maker Hasbro, Inc., video game maker Take-Two Interactive Software Inc., and others was brought in 2007—the year of the release of the Ghost Rider film starring Nicolas Cage and Eva Mendes.
Here, both Marvel and Friedrich moved for summary judgment on the question of ownership.
Rights Assigned When Checks Were Endorsed.
Forrest said that both parties aimed their arguments at whether Friedrich created the Ghost Rider character and the Work as a “work for hire.” If so, then all rights passed to Marvel. On the other hand, if the Character and Work were not created as works for hire, then at the expiration of the original copyright term (conceded by the parties to be 2001), the renewal rights to both the Character and the Work reverted to Friedrich. In that case, Marvel would have no remaining property rights in either the Character or the Work.
However, Forrest said it was “unnecessary for this Court (or a jury) 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. She instead focused on two key moments in time—the time of payment for the initial creation of the Character and Work in 1971 and the time Friedrich executed a freelancer agreement in 1978. Forrest went on to conclude that “[e]ither one of those contractual transfers would be sufficient to resolve the question of ownership.”
When Friedrich worked as an employee, he was paid with a payroll check; for his freelance work, he and other freelancers were paid separately with a check containing an assignment legend, Forrest added. She said there was “no triable issue of fact as to whether (a) in 1971, Friedrich conveyed any rights he may have had to both the Character and the Work to Marvel and (b) in 1978, he again conveyed to Marvel any rights he then had or could have in the future in the Character and the Work.” Even if Friedrich had any rights after the 1971 agreement, there is nothing to show that that Friedrich was paid in any manner other than the routine and typical manner in which he was paid for his other freelance work--and that this would have included a check with a legend of assignment that became operative upon endorsement. “As a result, if Friedrich (and thus, Plaintiffs) had any rights to the Character or the Work at the time he endorsed the checks (a question we need not resolve), he relinquished those rights to Marvel,” Forrest wrote.
With emphasis, the court pointed to the following language on the Marvel check for freelancers:
“SUPPLIER [i.e., Friedrich] expressly grants to MARVEL forever all rights of any kind and nature in and to the Work, the rights to use SUPPLIER’s name in connection therewith and agrees that MARVEL is the sole and exclusive copyright proprietor thereof having all rights of ownership therein.”
The law is clear that when an individual endorses a check subject to a condition, he accepts that condition, the court observed, citing Archie Comic Pubs., Inc. v. DeCarlo, 258 F. Supp. 2d 315 (S.D.N.Y. 2003). Whether the renewal rights asserted here fall under either the 1909 or 1976 Copyright Act, the presumption against the conveyance of renewal rights may be overcome “where the author includes language which expressly grants rights in renewals of copyright or extensions of copyright,” the court said, quoting P.C. Films Corp. v. MGM/UA Home Video Inc., 138 F.3d 453 (2d Cir. 1998). “The language of the 1978 Agreement could not be clearer,” it stated. “By this assignment, in 1978 Friedrich undoubtedly conveyed whatever renewal rights he may have retained, if any.”
The district court granted summary judgment to Marvel and the other defendants and concluded that this ruling in their favor as to ownership “necessarily resolves the infringement claims relating to the Ghost Rider movie, video games, toys and promotional products.”
Read the Gary Friedrich Enterprises LLC v. Marvel Enterprises Inc. decision.