Creators rights activists take note: The Great Thanos War is brewing

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Marvel is going all cosmic in the movie world, and Thanos, a character created by Jim Starlin, is at the heart of it.

The evidence is unavoidable. First it was the Thanos cameo at the end of the Avengers—supposedly thrown in because director Joss Whedon was a fan of the character and a cosmic storyline is integral to keeping him on board for Avengers 2.

Now it’s the news that The Guardians of the Galaxy are getting a movie in 2014, a team which includes arch Thanos foe Adam Warlock and many other characters from the cosmic Marvel universe created and developed by Starlin in his Warlock and Infinity Gauntlet books.

And Marvel has just announced a high profile Thanos 5-issue miniseries, Thanos: Son of Titan, to be written by Joe Keatinge (himself recently known for the cosmicky Moebius/Kirby mashup Extreme relaunch) and art by Richard Elson. “I don’t go Forrest Gump on it, but aspects of the Marvel Universe have been born that directly turn Thanos into who he is,” Keatinge told USA Today.

What’s so interesting about all this? Well, besides what sounds like an exciting movie storyline, it is an incontrovertible fact that Jim Starlin created Thanos, Gamora and many other elements of the Guardians/Infinity Gauntlet/Cosmic Cube in various Marvel comics. Adam Warlock was a Stan and Jack creation (completely revamped and developed by Starlin) but Thanos? Starlin all the way.

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And in case you’re wondering about that, Starlin has coyly posted the followed imageon his Facebook page:

This is probably one of the first concept drawings of Thanos I ever did, long before I started working at Marvel. Jack Kirby’s Metron is clearly the more dominant influence in this character’s look. Not Darkseid. Both D and T started off much smaller than they eventually became. This was one of the drawings I had in my portfolio when I was hired by Marvel. It was later inked by Rich Buckler.


So yep, Jim Starlin created Thanos. No two ways about it. And in theory he then signed a check with a voucher on it for work for hire. But Marvel hasn’t been able to produce any records from that period (mid ’70s) so proving that rests entirely on the goodwill of the company-friendly New York state courts.

Starlin has remained pretty mum on the subject to the press—he declined to comment on earlier Beat stories, for instance—but he did open up to the LA Times:

It’s nice to see my work recognized as being worth something beyond the printed page, and it was very cool seeing Thanos up on the big screen. Joss Whedon and his crew did an excellent job on “The Avengers” movie and I look forward to the sequel, for obvious reasons. But this is the second film that had something I created for Marvel in it — the Infinity Gauntlet in “Thor” being the other – and both films I had to pay for my own ticket to see them. Financial compensation to the creators of these characters doesn’t appear to be part of the equation. Hopefully Thanos’s walk-on in “The Avengers” will give a boost to a number of my own properties that are in various stages of development for film: “Dreadstar,” “Breed” and the novel “Thinning the Predators.”


So here you go people, a test case is looming. And as we mentioned previously, instead of the great sainted memory of the real King of Comics as the rallying point, you have a living breathing creator…who has archives that are better than those of the company he was working for.

Hopefully, as we’ve mentioned previously, Marvel/Disney is going to give Starlin the proper compensation should they continue with the movie Thanos plans.

If not, well…Jim Starlin, I hope you have a good lawyer.

Comments

  1. But if we accept that Thanos was created before he was working for Marvel, then the simple creation of Thanos could not have been work for hire.

    We’re more likely to run into the Blade situation, which ended up resting (in my not-a-lawyer understanding of the case) not on the question of whether it was work for hire, but on the question of whether the similarities between the original Blade and the movie Blade were sufficient to be infringing.

  2. Dan Burke says:

    It does not matter if he “Invented” Thanos in the third grade. He was a work for hire artist. He sold his ideas, his script and art, and he got paid. Marvel could have taken the book and never PUBLISHED it. They still OWN it.
    Work for Hire is what it says. You work you get paid. If a client, like MArvel, makes 10 cents or loses money or makes a billion on your “ideas” that you sold to them–they don’t owe you a thing. Marvel paid Starlin, that completed the deal.

  3. Dan Burke says:

    I have about 300 characters I have created. If Marvel buys (one or all) my ideas, or my comic book, they bought the ideas and own them. It’s that simple.
    Unless I have a contract that says..”Dan still owns these ideas.” If that contract exists, then we have different situation.
    If I write a jingle for your product. I don’t “own” the jingle. I sold it to you so you could use it. If you run it night and day on TV for 1000 years or 10 minutes..it does not matter. You bought the work (in this case a jingle) from me, the producer. You own it.
    That’s the way it works.

  4. I imagine whether or not you create something BEFORE being hired to create it is irrelevant if you sign something that states it was work for hire and you’ve given up any rights to it.

    A creator could come up with ideas for comic book villains as a kid and never do anything with them other than sketches or whatnot. But if they get hired by a company to create characters and write stories as work for hire, and they use ideas they had earlier, and they sign a contract that all work will become the property of the company hiring them, then they’re giving up any claim of ownership, even if it was all actually created beforehand.

    It would have to be explicit in the contract, though. So if Starlin never signed anything that could be interpreted as signing over usage of the character, he’d definitely have a case.

    Did Marvel ever trademark Thanos? Has there ever been a Thanos action figure where Marvel claimed ownership?

  5. swampy says:

    What if Marvel doesn’t have the receipt of sale?

  6. PAUL D HOUSTON says:

    Just take care of the guy, he’s made you thousands if not millions of dollars. Why is that such a big deal? Chip him off a little extra for his hard work.

  7. George Mink says:

    I don’t think Joss Whedon, nor anyone else, aside from Jim Starlin has the right to write Thanos. You need only read every Thano story ever written. Those not written by Jim were sorry and pathetic(Like Mark Waid having Thanos going up against Ka-Zar. That’s like having Tarzan fist fight Galactus. And let’s not forget that atrocity written by Dan Jurgans during his Thor run. Both of which, Starlin “Fixed” with the “Infinty Abyss” story. Tell Whedon to go back to writing vampires,and pandering to those with blood drinking and cannibalistic sexual fetishes. Leave the Cosmic stuff to the Cosmic writers.

  8. George Mink says:

    We should have a Nihilist like Thanos trample Hollywood…oh, that’s right we did…that gay porn actor who left a severed head by the Hollywood sign, and mailed other body parts to police, college professors, and others. The people of this word are completely insane, and Hollywood made it happen. And now Disney owns Marvel, and thus Jim Starlin’s creations? Hurmph. I don’t see printed comic books lasting much longer, sadly.

  9. It’s always so nice to see people leap to the defense of multi-national corporations and the laws they have bought and paid for.

    We’re not turning into a fascist state, no sir, and there’s no one out there in favor of that happening!

  10. Talmidge says:

    Doesn’t he get compensation for the reprinted material that marvel has been pushing like crazy?

  11. Talmidge says:

    and where is all this righteous indignation with the Batman movie coming out?

  12. Synsidar says:

    This might be more about aesthetics than about money. If Thanos, in the movie, is recognizably the same, nihilistic character that Starlin wrote about, then he can claim some credit for whatever critical success the movie enjoys because of Thanos’s presence in it. But if the character concept is different, and he does things and behaves in ways that Starlin’s Thanos wouldn’t have, then the connection is superficial.

    Mantis was created by Steve Englehart, but the Mantis who appeared in Giffen’s STARLORD miniseries and in the Guardians of the Galaxy storylines since then, resembles Englehart’s Mantis in name and appearance only. And, if you examine the “origin” of the current Mantis more closely, she appeared in Giffen’s miniseries because she and others (e.g., Deathcry) were considered throwaway characters that could be killed in a parody without upsetting many people. Crediting Englehart as the creator of Mantis as she now exists could be considered insulting to Englehart.

    So, crediting Starlin for the use of Thanos will depend a great deal on how he is used, and whether he’s used well.

    SRS

  13. “And in theory he then signed a check with a voucher on it for work for hire”

    There was an interview in Back Issue with Starlin, and I’m sure he said that he always crossed out any vouchers on the back of checks.

  14. Alistair Robb says:

    The problem with all these people saying ” oh, it was work for hire, so anything they created while offering up their creative teats to the “Parasiticus Bigtwoicus” is not theirs!” is that up to, including and after Jim “gave”(?), “introduced”(?) his characters the industry was different. Artists were incredibly naïve and happy to be working in a job they enjoyed (I presume). Creators like Starlin and Kirby were not like artists like Buscema(J) and Chan et al, who really didn’t create but contributed, designed and executed a collective collaboration, skillfully and beautifully if I may say. I mean, guys like Starlin, Kirby, Ditko and, yes even, Lee, brought new elements, new characters into the corporate money-machine. Probably giving them enough fodder to make stacks of cash, as they are now doing.

    You guys who sit there, imperiosly waving the WFH ticket are playing into the hands of the faceless dickheads who run these companies today, or you are naïvely thinking that you stand a chance working with these talent-suckers (HAH!). We, as fans, have a moral duty to stand behind these creators and show our support. If it were not for the Kirbies and the Starlins of this world, the stuff you suck up every month wouldn’t exist in such quantity as it does. I know creative talent, I know that these guys would have found some way to make their voices heard ( through self-publishing or some such thing, which on reflection would probably have been a better thing.

    Don’t get me wrong, I don’t mean to imply that Jim Starlin is some kind of bumbler who walked blindly into stuff, especially after a certain age, he learned fast–you just need to look how he handled his Dreadstar property for evidence of that. I just mean to say that at a certain time in the industry,creators were led to expect a certain kind of treatment and deal and then it was renegged on. Nothing is a better illustration of that than “Watchmen”, which Paul Levitz was the last hold-out on, and after he left DC they didn’t even let his seat get cold before they were whoring that out. So, what we as fans need to do is make the industry big-wigs honour past agreement (formal and informal) and play ball with the people that have given them the means to make the wads of dough they do.

  15. >> It does not matter if he “Invented” Thanos in the third grade.>>

    Yes, it does. That’s why, for instance, Superman wasn’t a work-for-hire creation. Because work-for-hire law isn’t allowed to be retroactively applied.

    If you created it beforehand, then you’re selling it to them. You’re performing a rights transfer, and some rights transfers are subject to reversion, including those that date back as far as Thanos.

    If it’s work-for-hire, then you’re hired to do the work — it covers work done after you’ve been hired. If you have a portfolio piece that predates your being hired, then that’s proof that what happened was a rights transfer, not a work-for-hire commission.

    This is why, for example, George Perez’s many JLA/AVENGERS commission pieces aren’t collected in the JLA/AVENGERS collected edition. We wanted to collect them, but DC said that since they weren’t done for DC originally, they’re not work for hire, and couldn’t be made WFH retroactively. And they didn’t want to publish work they didn’t own that featured DC characters.

    >> I imagine whether or not you create something BEFORE being hired to create it is irrelevant if you sign something that states it was work for hire and you’ve given up any rights to it.>>

    You imagine incorrectly. It’s entirely relevant.

    Whether you created it before signing the deal or after is the difference between selling them the work (rights transfer) and working for hire.

    Proving you created it before signing the deal is often much harder, of course. Not in the case of Superman, which bounced around in submission form for years before DC/National bought it. But when you created something — and by created, I mean wrote and/or drew something in concrete form, not just thought it up — is highly relevant.

    There’s lots of different ways to make publishing deals, and they’re not all the same. If I were to sell Marvel Comics all the rights to ASTRO CITY tomorrow, it wouldn’t and couldn’t be work-for-hire. It’d be a sale of rights, one that would last for the term of the sale (which the contracts would say would last for the entire period of copyright, of course, but then if Congress altered the period of copyright, that might change). But I’d never be deemed to have created the series on a work-for-hire basis, because it doesn’t extend backward beyond the point of the hiring.

    kdb

  16. It’s still unknown if Whedon will return to make an Avengers 2, but apparently Thanos is one of his all time favorite villains. Whedon often referenced Avengers Annual #7 & Marvel Two-In-One Annual #2 as some of his all time favorite comics as a kid. These 2 comics wrap up Jim Starlin ‘s big Thanos & Warlock battle storyline from the late 70’s. If anything brings back Whedon for more Avengers, I imagine it will be to have Thanos as the big bad.

  17. The Beat says:

    Dan Burke: That is exactly now it does NOT work.

    Under current copyright law—law partially inspired by Siegel and Shuster, and passed in the highly liberal 70s—when you create something you own it until you expressly transfer the rights to someone else.

    This law would not have a chance of passing nowadays when the corporation is our savior.

  18. Beaten to the punch by Kurt Busiek. The whole Superman victory rests on the fact that they created the character before National asked them for one. That’s why Marvel/DC doesn’t take blind submissions of new characters. Starlin is not posting this as a treat for the fans, it’s a real claim if the date can be verified. But man he does look like Metron.

    Still, Thanos was in the movie for seconds, the Infinity Gauntlet in Thor for less than one. I don’t think the franchise is making money on a character with .01 cultural saturation. That will change by Avengers 2, but not on the level of any of the heroes. That’s why it is interesting — this is not an A-level character.

  19. in order for Marvel to “Own” a character Starlin created before he worked for them, there would have to be an IP transfer and all that stuff. Its very complex. Marvel technically could owe Starlin millions for decades worth of unlicensed character usage. Under current copyright law, you own something the second you make it and have full protection under the law. Even if Marvel filed a trademark on Thanos, it could be voided quite easily with proof like this.

    Now there are some situations where creatives work for a company and everything they create during that time is under an exclusive first right of refusal with the company…very common in the Toy industry and the center of the “Bratz dolls” ownership dispute, but i don’t think marvel had that kinda thing in place back then.

    This could be a legal clusterf#ck for Marvel if what Starlin is saying is true.

    And its very crappy that Marvel can’t even comp the guy a ticket to the damn movies.

  20. Talmidge says:

    Starlin comes across pretty nice here. He’s always been pretty cool and level headed from everything I’ve read with him (with the exception of the weird Galactus being compared to U.S military thing but even then he was cool)Hopefully that will give him a little more goodwill as far as getting compensation where a lot of creators have been less than genial about things.

  21. >> in order for Marvel to “Own” a character Starlin created before he worked for them, there would have to be an IP transfer and all that stuff. Its very complex. >>

    It really isn’t that complex.

    It’s just not work for hire, that’s all. In some ways it’s simpler than work for hire.

    But it’s different. And thus it’s subject to different rules.

  22. Apollo9000 says:

    If Marvel is going to reprint many of Starlins’ Cosmic story lines with the telegraphed intention of using them as templates for their future movies, it’s best to pay the man.

    It’s clear the man created much of what will be used as a basis for some of their upcoming films. And with the if record keeping by Marvel, it would be in their best interest to set up a new form of compensation. It’s clear that Starlin outperformed is past contract.

  23. I like Starlin approach here too, He using this, not only to give awareness of what he did, but really to showcase the fact he created many characters and that he still owns a few and is willing to let those also go into some sort of production for him.

  24. The tricky thing about work-made-for-hire is that it isn’t just whatever the folks spending the money choose it to be. Dan, if you -purchase- a jingle, then its quite possibly not to be yours for the 1000 years you speak of, not only because the copyright elapses at some point, but because if they sell you the jingle, that means they owned it and can apply for rights reversions a few decades in. Is it a work-for-hire? Well, that depends on a few things. Is the composer an employee with composing as part of their employment, or are they a freelancer? Did they sign a WFH contract before beginning the work? And is the jingle being intended for radio or fo TV? Because if they’re a freelancer, then only if there’s a WFH contract in place before the commencement of the work is it WFH… and then only if it fits into one of the categories eligible for WFH. And looking at the law, it’s at least questionable whether a radio ad would qualify. Whether you think that is -just- is not particularly important under the law.

    Work For Hire is not just a vague concept, it’s grounded in specific laws. The definition is tighter now than it was when Thanos was introduced, but even then WFH was work you created upon being hired to do so.

  25. Talmidge: “where is all this righteous indignation with the Batman movie coming out?”

    The recognized creator of Batman, Bob Kane, reached a lucrative agreement with DC after the property was already a success. And DC has a very good reputation when it comes to cutting checks to people whose creation appear in their movies – not just as the lead, but as the supporting characters. So if there’s some specific indignation to be had, you’ll have to point me toward it.

  26. Two words @ Nat: Bill Finger

    Check out the new Finger bio by Marc Tyler Nobleman and Ty Templeton called Bill: The Boy Wonder (just came out). It’s a YA picture book, but very factual, very moving, and ends with a lengthy, in-depth author’s note that reveals more about Finger than anything ever published.

  27. Steve Leialoha says:

    My first job at Marvel was inking Thanos in Warlock #9. This was before the WFH copyright revisions and I never signed a WFH agreement. Did you know it’s possible to cash a check without signing it? I make no claim on the character, but this is another level not covered by WFH.
    I must say there’s a remarkable number of people opining with great surety about things they clearly know nothing about. It’s good that Kurt’s here to set everyone straight!

  28. Mikael says:

    Interesting how the Before Watchmen naysayers criticize DC and yet they offered Alan Moore movie money and he deferred it to Dave Gibbons. DC gives percentages of money from the Batman franchise to the creator (Len Wein?) of Lucius Fox. Lucius flipping Fox. But Marvel? Not much if any. And yet DC remains the bad guy. What a world.

  29. Brad: Is there a known Bill Finger Estate to be addressed? And do we know that DC has not addressed them?

  30. Jason Michael says:

    I really have nothing to add to this discussion other than saying that I am a huge fan of Starlin’s work and that I want to thank Steve Leialoha for his great finishes on some of my favorite comics (I also loved your full art on such strips as Trypto the Acid Dog. But I think I’ve digressed enough!).
    It’s unfortunate that lobbyists can pressure people tp pass laws that can deprive people of the fruit of their labour. As George Mink posted earlier, a Thanos story not written by Starlin just isn’t the same as the other appearances of the character. Starlin has a vision and his voice defines Thanos. So even though it is possible that Starlin could go to court and lose, anyone who reads carefully knows who owns the character artistically, if not by the ever-changing law.

  31. >> Brad: Is there a known Bill Finger Estate to be addressed? And do we know that DC has not addressed them? >>

    As I understand it, and as someone (I forget who) colorfully put it, DC didn’t screw Bill Finger, Bob Kane did.

    Doesn’t mean Finger didn’t get screwed, but he was working for Kane directly, and Kane made the deal with DC. And then re-made it when Batman became successful, because his father lied about his age and claimed he was a minor when he signed the original contract, thus voiding it. So Kane made a new, better deal, because he had some leverage.

    And having made this new, better deal, he shared zilch with his collaborator.

    The lesson to be learned is: Don’t just make sure your deals with publishers are fair. Make sure your deals with everyone are. Because this stuff doesn’t just happen way back when. Ask the guy who created the MEN IN BLACK.

    kdb

  32. Kurt: the deal Sandy Carruthers (the Men In Black artist) signed -was- with Malibu, not with writer Lowell Cunningham. See http://www.collectortimes.com/2006_02/Clubhouse.html

  33. Nat – I wasn’t claiming otherwise. Just expanding from the specific to the general: This stuff isn’t “stuff that used to happen.” It still does, if people aren’t careful.

    Know what the deals are. Agree ahead of time, and consider the ramifications.

    I know you know all this. I’m just soapboxing, now.

  34. Ashby says:

    “in theory he then signed a check with a voucher on it for work for hire. But Marvel hasn’t been able to produce any records from that period (mid ’70s) so proving that rests entirely on the goodwill of the company-friendly New York state courts.”

    Has anyone asked them to produce such documentation? I mean, I’ve never seen documented proof of [insert any number of examples], but it’s pretty clear that these things happened. Otherwise lawsuits would have happened long before now. If the character was first PUBLISHED by Marvel, when Starlin was working for Marvel, then Marvel owns it. To suggest otherwise is like saying that an author who had an idea in his head since he was a kid, or an author who write a book before taking it to a publisher, has the right to sue the publisher 40 years after signing a deal with the publisher.

    It just doesn’t make sense and it smacks of the recent wave of “Hate Marvel and DC at all costs and pretend that the little guys are ALWAYS right even when they sign contacts of their own free will.”

    Being for “Creators rights” shouldn’t mean that you take the creators’ sides even when they pretty clearly did work for hire in legally binding contracts. You’re just banging your head against the wall for no reason if you’re challenging that. Though it must make some people feel really noble and righteous. And for all this talk of greedy corporations (most of which is obviously justified), why is it that these “activists” only seem to care NOW, when the money starts to roll in? If you guys really cared about Starlin’s “ownership” of Thanos, you’d’ve been raising concerns decades ago. But neither you nor Starlin did. That’s not saying that Marvel shouldn’t, out of the goodness of their non-existent heart, break Starlin off a couple million. But they’re not legally bound to.

    I’m all for creators rights. They definitely deserve to make more money going forward, and I totally support everything Chris Roberson, to give one example, has done. Creators rights should obviously be supported, big time. But that doesn’t mean we have to cling to revisionist history excuses. Marvel pretty clearly owns Thanos. Just like they pretty clearly own Wolverine, for example. But we don’t hear much about that because Len Wein isn’t as cool with the hipster crowd as Jim Starlin is.

  35. >> Is there a known Bill Finger Estate to be addressed? And do we know that DC has not addressed them? >>

    As it happens, there is a Finger Estate, yes. And to whatever extent tea leaves can be read, Bill Finger’s granddaughter Athena and her family have attended Batman film premieres with all indication of great pleasure and will likely be at the new one, as well.

    kdb

  36. WorseHorse says:

    It seems to me TWO things are being missed in the discussion:

    (1) Even if Thanos is determined to not be WFH (which I could certainly see), I don’t see how it could be claimed that the copyright wasn’t transferred to Marvel. Therefore, best case scenario, Starlin can try to reclaim the copyright in 2029 (1973 + 56 years).

    http://www.copylaw.com/new_articles/copyterm.html

    (2)Starlin might claim that he only sold first US publication rights and that he owns the movie rights to Thanos. But even if his legal team can beat Disney’s, he may be shooting himself in the foot by going on record this soon. This article is the first whisper I’ve heard about “… a cosmic storyline is integral to keeping [Whedon] on board for Avengers 2.” Even if that’s the case, isn’t it likely Marvel’s attorneys would mandate swapping Thanos out for, say, Annihilus once they realize Marvel’s ownership may be shaky?

    I would love to see Stalin get some profit participation for Thanos if the character gets significant use in the sequel, and applaud DC’s efforts in this area. Apparently under Paul Levitz, Denny O’Neil was asked to go through BATMAN BEGINS and detail all comics-derived elements so that bonuses could be appropriately paid. Neal Adams got a nice check for R’as Al Ghul, I believe, and I even read that Christopher Priest was compensated just for being the first writer to specify that Batman got ninja training on a mountaintop!

    That said, I do think Starlin is asking a bit much to be invited to the premiere or paid based on the material used thus far. He should be paid for a 5-second cameo by Thanos or for the creation of a glove seen in the background of a shot in THOR, neither of which likely added not one ticket sale? Not in my book. Opinions will vary, of course.

  37. Kurt: I’m just being protective of Lowell Cunningham in what could be read as a comparison to Kane… and whose most recent work I published: http://indyplanet.com/store/product_info.php?products_id=7156

    Ashby: the assumption that lawsuits would’ve happened well before now if legitimate is grounded in false assumptions (not that, to the best of my knowledge, Starlin has sued or is planning to). Lawsuits against a large corporation can be quite expensive to bring; it can be far easier to get lawyers involved if there’s a sizable payoff to be had.

    “Has anyone asked them to produce such documentation?” As I recall, Marvel has been asked to produce such previously, as in the Blade case.

    I’ve seen at least as much grumping out there about Wein as about Starlin. With regards to Wolverine, Len is in a somewhat different position, as I believe that first came out during Len’s run as editor-in-chief, making him Marvel staff (but not automatically making all of his writing work-for-hire; it would depend if the writing was considered part of his staff work.) And Len is also in a different position in general, as while he obviously co-created now big-screen characters for Marvel, he also did so for DC, who have been rewarding him for their big screen successes.

    (Am I part of the hipster crowd? That sounds so unlikely. But it’s improbable that I would’ve made statements about Starlin’s ownership of Thanos decades ago, as I would’ve been unaware of any statements he made in 2012 on his Facebook page then.)

  38. >> If the character was first PUBLISHED by Marvel, when Starlin was working for Marvel, then Marvel owns it. To suggest otherwise is like saying that an author who had an idea in his head since he was a kid, or an author who write a book before taking it to a publisher, has the right to sue the publisher 40 years after signing a deal with the publisher.>>

    You do know that authors who write books before taking them to the publisher retain ownership of those books unless the contract is specifically written to transfer rights, correct? If a book is first PUBLISHED by Random House, it doesn’t for a moment mean that RH owns it.

    As noted before, it’s not about when you have the idea, but when you put it down on paper in concrete form, since copyright doesn’t protect ideas, it protects concrete expressions of them.

    As for having the right to sue 40 years later, of course people have the right to sue. Whether they win or not would depend on what they’re suing over, the strength of their case, the judge’s interpretations of the law and more. But who first published the character is not a legal standard for ownership — again, that’s why Superman, who was first published by DC, was subject to rights reversion while many other characters weren’t.

    There are some differences in the creation of Wolverine and the creation of Thanos that would affect their status as work for hire (Wolverine was created at company request, for instance, and I don’t recall offhand whether Len was a staff employee at the time, John Romita, who designed him, certainly was). And really, even if Thanos was a situation of a sale (a rights transfer) rather than a work-for-hire commission, that doesn’t mean that Marvel was using him illegally; rights transfers are not only legal in publishing, they’re common. But it would mean that Thanos might be subject to reversion when the appropriate moment arises — and I don’t think material from those years has come up for reversion yet, so nothing would be able to happen legally yet.

    But if it could, then that’d be a reason Marvel might want to head it off by making some sort of settlement ahead of that date.

    As for those back-of-check assignation clauses, they certainly existed, but when Marvel started using them and what they said in any given year (the wording changed over time) is something Marvel has indeed been asked to show proof of, and so far they don’t seem to have been able to. This has not, so far, resulted in a court loss for them, but that doesn’t mean that it never will, or that one can assume that all character creations are governed by the same laws. They’re not.

    And why would creators sue after the money starts rolling in? In some cases, because there are specific times that various legal options are available, and at other times because lawsuits are expensive, and you can’t get lawyers to sign up for them unless there’s enough money at stake to make them worth fighting over. It should also be noted that some of those legal options — including copyright reversion — aren’t about “suing,” they’re about filing papers. In those cases, it’s the publishers who’ve sued to attempt to stop the reversion, not the creators who’ve sued.

    [And it gets more complicated still: I know of one case where a publisher commissioned WFH work on a licensed title, so they were the uncontested legal creator of the work, making a rights transfer to the licensor -- and the _publisher_ has filed for copyright reversion when the legal window opened, reverting the ownership back from the licensor.]

    This is a lot messier than, “Well, the publishers MUST own the characters and they MUST be work-for-hire because it stands to reason!” It doesn’t, and as we get to the era where comics were created more often by fans who were more likely to have created material before they started working for a publisher and are more likely to be alive to contest matters, there are likely going to be more cases, and there is no such simple assurance that the publishers will win every time.

    kdb

  39. @WorseHorse:

    Except the Infinity Gauntlet from Thor was also used as a prop at SDCC to promote the movie, leading to fan speculation and excitement in thinking Thanos and the Gauntlet would have a larger part in the movie. I’d say it’s a fair bet that some fans were excited about that and wanted to see the movie even more, although it’s impossible to say whether they wouldn’t have gone already. Either way, the prop did get Marvel a good bit of publicity – I didn’t go to the Con but still read all about it on the news sites.

  40. Marilyn Merlot says:

    “That said, I do think Starlin is asking a bit much to be invited to the premiere or paid based on the material used thus far. He should be paid for a 5-second cameo by Thanos or for the creation of a glove seen in the background of a shot in THOR, neither of which likely added not one ticket sale? Not in my book. Opinions will vary, of course.”

    Disney sure as hell doesn’t have the kind of money lying around to pay for one guy’s movie ticket! I mean, come on.

  41. Blade X says:

    Since Marvel under Quesada has essentially blacklisted Starlin (they told him that he has a better chance of winning the Lotto then getting work from them), I hope that he publicly embarrasses/shames them into treating him both fairly and with respect.

  42. J North says:

    Would really appreciate if BEAT didn’t throw movie spoilers up on the front page, even minor ones.

  43. Marilyn Merlot says:

    Darth Vader is Luke Skywalker’s dad.

  44. If you sign a contract stating a character you created was work for hire, when in actuality you created the work BEFORE being hired for it, then you go and sue the company for using the work that they thought they owned, wasn’t it then fraudulent of you to sign the contract?

    If a company gives you a work for hire contract, you can’t just lie and sign it saying “yes, this is work you hired me for, you now own it as per the terms of the contract” and then years later go “ha-ha! I created this work BEFORE you hired me and because I lied by signing the contract, it’s invalid, and you own nothing!”

    It all obviously comes down to the terminology on any paperwork. If Starlin never signed anything that is equivalent to a rights transfer for the character as a whole, as opposed to signing over rights to individual images or stories the character appears in, then he definitely has a case for him owning the character and Marvel just had a license for those instances.

    One question is, if he never contested any times Thanos has appeared without his involvement, does that set a precedent? Most likely every comic Thanos appeared in has said “all characters within are copyright and trademark Marvel.”

  45. John: Your question seems to assume a process that wasn’t actually in place at the time. Creating comics was not a matter of agreeing to a contract, signing it, then doing the work. You’d be asked to create the comics story, create it, and then when you went to cash the check they paid you with, you’d discover that signing that would also place certain terms on the agreement.

    But as Kurt noted earlier, the courts can judge that something that was created under a WFH contract for which WFH was not appropriate to have been a copyright transfer. This would allow Marvel to use the work in many ways, but creates the possibility of a rights reversion.

  46. >> If you sign a contract stating a character you created was work for hire, when in actuality you created the work BEFORE being hired for it, then you go and sue the company for using the work that they thought they owned, wasn’t it then fraudulent of you to sign the contract? >>

    No one has suggested any such thing happened, except people who are imagining it. Marvel was sloppy about contracts until the late Seventies or later.

    Nor has anyone sued Marvel over Thanos, or said that Marvel doesn’t currently own the character.

    Again: Work for hire and ownership are not synonyms. WFH is one kind of ownership. But saying something may not have been WFH is not the same thing as saying the company didn’t own the character and can’t legally use it.

    >> If a company gives you a work for hire contract, you can’t just lie and sign it saying “yes, this is work you hired me for, you now own it as per the terms of the contract” and then years later go “ha-ha! I created this work BEFORE you hired me and because I lied by signing the contract, it’s invalid, and you own nothing!” >>

    That’s essentially how Bob Kane got his really good deal on Batman, by lying and saying he was underage when he signed the first contract, so it was void. But no one’s saying any such thing here; you’re assuming that “It may not be work for hire” means “You own nothing,” but that’s not remotely the case.

    >> If Starlin never signed anything that is equivalent to a rights transfer for the character as a whole,>>

    No, if Starlin never signed anything that it would have been first North American print rights only, I believe. Or maybe that was after the law changed a few years later. But rights transfers don’t just happen without signing things.

    And a rights transfer isn’t work for hire; they’re two mutually-exclusive concepts.

    >> One question is, if he never contested any times Thanos has appeared without his involvement, does that set a precedent? >>

    No.

    >> Most likely every comic Thanos appeared in has said “all characters within are copyright and trademark Marvel.”>>

    And Superman was ™ & © DC, but that didn’t mean the rights weren’t revertible. Wonder Woman was ™ & © DC for decades when they didn’t actually own her (they do now, but they didn’t for about 50 years). Being copyright and trademark Marvel does not mean it’s work-for-hire, or that the rights can’t ever revert. Heck, contracts can be written that allow a publisher to list themselves as owner of a copyright when the author is actually the owner, and vice versa — there are some “creator-owned” deals where the creator ownership was basically fiction, and the company had complete control.

    Look, if you want to know more about intellectual property law, study up on it; it’s pretty interesting. But you seem to be just making assumptions and then declaring that it must be that way.

    I could write a deal where I sell you a character for 5 years, and during that time you’d be absolutely correct to say it was © and ™ you. But it wouldn’t be work for hire, and five years later it’d be mine again (I’ve signed at least one deal a lot like that). I could write a contract where it says we share ownership, with a deal clause that says when the book is cancelled, all the stuff you owned gets transferred to me (actually, there are numerous books being produced under contracts like that today). This stuff just isn’t as one-size-fits-all as you seem to be imagining.

    There’s a reason people specialize in intellectual property law. It’s a field so full of different possibilities and variations that it’s something you can spend a whole career on. Not all deals are the same, and what you see on the outside does not always reflect what’s going on on the inside.

    And Starlin hasn’t said a thing about suing Marvel, nor has anyone involved suggested Marvel doesn’t currently own Thanos. What the terms of that ownership are, though, may be open to discussion, and perhaps weren’t fully understood by anyone at the time IRON MAN #55 was drawn, because it may well have been that nobody was paying attention to the law, they were just assuming it would never matter.

    kdb

  47. Rights transfers and work-for-hire may be two mutually-exclusive concepts, but that doesn’t mean just because a contract may say “work-for-hire” on it it doesn’t have a clause that transfers every and all rights to the work.

    Most of the WFH contracts I see contain language like “Publisher shall exclusively own without reservation all right, title and interest in the Work, including, without limitation, all copyrights in the Work and the right to use all or any portion of the Work in any manner or medium in perpetuity throughout the universe. Artist hereby assigns to Publisher all now known or hereafter existing rights of every kind throughout the universe in perpetuity to the Work.” Granted, I’m talking about modern contracts, this obviously doesn’t apply to the Thanos issue since Marvel’s contracts/vouchers/paperwork was “sloppy” back then. But today a contract like that would seem to make it difficult to claim all rights to a character that was included as part of “the work” weren’t transferred. If I were to create a character I wanted to retain any part of, I wouldn’t sign a contract with this wording in it.

    Without any paperwork stating otherwise, does that make Marvel’s right to Thanos a non-exclusive license? From http://www.citmedialaw.org:

    Non-exclusive licenses do not require a writing in order to be valid, and the existence of a licensing arrangement can even be implied from conduct (an “implied license”). Your conduct may give rise to an implied license when it indicates that you intend to extend a license to those using your work, but you never agree to specific terms for the license. The user of your work acquires some right to use it, but only to the extent that you would have agreed to, had you negotiated an agreement.
    —–

    The last line of that seems important in this case, as it’s reasonable that Starlin would not have agreed to Thanos being used in movies.

    Also from that site:

    Nonexclusive licenses also do not require consideration in order to be valid. However, nonexclusive licenses are revocable (meaning the copyright owner can revoke the license at any time) in the absence of consideration. This means that, whether or not you set a fixed time limit for the duration of the non-exclusive license in the licensing agreement, you (as the copyright owner) can revoke the license at any point if you do not receive consideration for it. Conversely, if you (as the copyright owner) receive consideration in return for the grant of the license, then you cannot revoke the license unless you provide for revocation in the license agreement. Note, however, that consideration for the grant of a license does not have to be something valuable, and it certainly does not have to be equivalent to the market value of the grant. Consideration is mostly a symbolic gesture. If the licensee gives up anything in exchange for the grant of the license, then that likely would qualify as consideration.
    —–

    That makes it sound like if Marvel/Disney was to give Starlin just a bunch of tickets to the premier, that would qualify as consideration and they’d be able to keep using Thanos.

  48. eallengd says:

    “Did you know it’s possible to cash a check without signing it?”

    If you live in Canada you can. I haven’t signed a clients check in over 20 years without a problem.

  49. @Nat read Nobleman’s book, it’s fascinating, esp. his discoveries about who was actually receiving royalty checks from DC for Finger’s work.

  50. Talmidge says:

    @Nate there are just as many DC guys who got screwed over the years as marvel guys but for whatever reason the comic “news” sites don’t want to cover that. Hell a guy who created a dc character who was a successful cartoon just died a homeless man. If that had been the creator of a marvel character these people would have screamed murder.

    Mark Waid for one has been very vocal about the Justice League: Doom movie and royalties from Bart Allen appearances and then of course there is Alan Moore.

  51. @eallengd: Indeed; that’s the case in the States, too, at least in my experience. I don’t think I’ve ever endorsed a check; I used to write “Deposit Only” on them but I stopped doing that years ago. They still clear. Not sure if that was the case in the 1970’s, though.

    I know that back-of-the-check contracts held up in DeCarlo’s case against Archie and Friedrich’s against Marvel, but they were thrown out in Marvel v Kirby (the court found for Marvel, but not because of back-of-the-check contracts, since Marvel couldn’t actually produce any that Kirby himself signed).

    What, if anything, did Starlin sign? I don’t know; I imagine Marvel’s looking for cancelled checks at this very moment.

    I’ve heard tell that he crossed out the legend before signing contracts, but that’s just messageboard gossip and I haven’t seen a primary source back it up. (And even if Starlin says he did, that doesn’t make it so.) It WOULD be interesting to see a crossed-out back-of-the-check contract tested in court, but again, there’s no indication that anything like that is going to happen here.

  52. George Bush (not that one) says:

    There is no way in hell that anyone will ever win against Marvel.

  53. “and where is all this righteous indignation with the Batman movie coming out?”

    Bob Kane’s covered.
    Bill Finger and Jerry Robinson both deserved cuts for various things they conceived and contributed to the Bat-Legacy.
    Unfortunately, they’re both gone from this mortal coil, and it’s unlikely their estates will receive anything besides reprint royalties (which was unheard-of before the 1980s).

  54. @Talmidge: I’m not sure what you mean about comics news sites not covering DC complaints; The portion of the comics news world I look at didn’t exactly hide Watchmen complaints or the Superman legal struggle.

    I don’t believe I made a general defense of DC; my noting that Wein was better treated by DC in regard to his properties licensed out is an impression that comes from speaking to Len himself briefly about the topic. My noting their rep with regards to movies is just that, speaking of movies. Your call for righteous indignation about the Batman movie without pointing to any particular thing about the movie that we’re supposed to be indignant about just looks like a distraction technique. (For that matter, I see little indignation in this thread; a few stray posts, but it’s more talk about the fine points of rights ownership.)

  55. The ruling in the Wolfman v. Marvel case (click here to read) is the most relevant to Starlin’s situation with Thanos if–and it’s a big if–he decides to pursue a legal challenge to Marvel’s ownership.

    In my humble opinion, he should not waste his time.

    There are two standards regarding what constitutes work-for-hire creations–one governed by the 1976 copyright law, and one governed by the 1909 copyright law.

    In short, the 1976 copyright law, which applies to material produced after 1978, requires that everything be acknowledged in writing.

    However, under the 1909 copyright law, which applies to Wolfman and Starlin’s situation, a written agreement was not required for Marvel or any other publisher to gain ownership of a contributor’s work. In the case of a challenge, all that is necessary is for the publisher to make a reasonable showing that the material was produced at the publisher’s “instance and expense.” This is why Wolfman lost his suit, and why the Kirby heirs lost theirs, too.

    While Wolfman was able to show that he had created versions of Nova, Skull the Slayer, and the Tomb of Dracula character Janus prior to writing stories featuring them for Marvel, the court found that the versions Marvel published were substantially revised and developed beyond Wolfman’s initial conceptions. As such, the court ruled they weren’t the same characters and were determined to be produced at Marvel’s instance and expense.

    Nat Gertler’s claim above that Wolfman lost because of differences between the movie version of Blade and the comics one is incorrect. The differences between the movie and comics versions didn’t factor into the judge’s decision. The judge found that the comics versions of Blade (and Deacon Frost) were created at Marvel’s instance and expense and therefore Wolfman had no claim to ownership.

    By Starlin’s own account, Thanos underwent substantial development in between that portfolio drawing and the Iron Man story that introduced him to readers. Unless he can show documentation indicating that development preceded his creation of the Iron Man story, such as Siegel and Shuster could with the rejected Superman proposals, the court is likely going to side with Marvel in the case of a challenge.

    My gut tells me Marvel will make an effort to mollify him in the next couple of years. If they don’t, and Thanos is prominently featured in Avengers 2 or whatever, they’re risking an enormous PR fiasco. Starlin is an intelligent, articulate guy, and he comes off well on camera.

  56. @Robert: You are correct; I had flipped elements of the Blade aspects of the ruling with those of Nova.

  57. >> But today a contract like that would seem to make it difficult to claim all rights to a character that was included as part of “the work” weren’t transferred.>>

    Yeah, they’re much more careful these days.

    >> Without any paperwork stating otherwise, does that make Marvel’s right to Thanos a non-exclusive license? >>

    Marvel sure wouldn’t want that.

    If it was non-exclusive, Starlin would be able to then license the character to others simultaneously.

    kdb

  58. R-Prime says:

    I not a lawyer but I agree with Robert Stanley: Thanos has changed from his initial conception. And that change happened in the Marvel universe, with Marvel resources. Starlin may have rights to the original but Marvel would seem to have rights to the evolution and the end product. Most companies stake rights to what employees develop on the job.

  59. jonboy says:

    I always love how the same people will argue that the Marvel characters belong to Marvel, but the DC characters should go back to the creators.

    Kirby? Starlin? Nope. Marvel owns the characters.

    Shuster? Siegel? Finger? DC screwed the creators.

    Can’t have it both ways folks.

  60. Sir John Cool says:

    Yeah Starlin trying to bring some type of legal action. Will more then likely just be shooting himself in the foot at this point.

    If marvel is intimidated and removes Thanos, Starlin gets nothing from the deal. And a great creation just stays in the moth balls.

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