In the past week the comic book industry has been abuzz with the recent outcome of the Gary Friedrich, co-creator of Ghost Rider, and Marvel/Disney. Many of you have expressed your anger and unjust treatment to Gary due to the court’s ruling. However, I’m not writing this blog to express who was right or wrong in the case. The truth is both parties could have done things differently. However, it is up to us to EDUCATE OURSELVES AND LEARN FROM CASES LIKE THESE.
In order to understand why things happen, we need to clearly state some facts. Here’s a short summary in chronological of key points in this case:
- Gary Friedrich along with Roy Thomas and Mike Ploog conceive and wrote the 1972 story of the motorcycle-riding character with a blazing skull for a head called Ghost Rider. It was published by Marvel.
- According to a Wikipedia entry, in the early 2000s Gary Friedrich said the following in response to a 2001 Roy Thomas interview:
“Well, there’s some disagreement between Roy, Mike and I over that. I threatened on more than one occasion that if Marvel gets in a position where they are gonna make a movie or make a lot of money off of it, I’m gonna sue them, and I probably will….”
- In May 2005, Sony Pictures launched the official website for Ghost Rider.
- On February 16, 2007, the film Ghost Rider starring Nicholas Cage as Johnny Blaze was released.
- By April 2007, Gary Friedrich and his company filed the 61-page complaint April 4 in federal court in Illinois claiming 21 violations based on the production and marketing of Sony’s recent “Ghost Rider.” Friedrich claims the copyrights used in the film and in related products reverted from Marvel to him in 2001.
- The case was transferred to the federal New York State Southern District Court on February 14, 2008.
- In May 2010, a judge dismissed the claims made under state law after determining that the Copyright Act of 1976 is the relevant federal statute.
- In December 2010, Marvel countersues accusing Friedrich of the unauthorized sale of Ghost Rider posters, T-shirts and cards online and at comic conventions.
- In March 2011, Gary Friedrich amended his complaint in an attempt to have the counterclaims dismissed.
- In December 2011, U.S. District Judge Katherine Forrest in Manhattan ruled that Gary Friedrich signed over all rights to the character to Marvel in 1971 and again in 1978.
- In February 2012, Marvel agreed to drop its countersuit, if he pays this $17,000 and undertakes no longer to profit from selling unlicensed Ghost Rider paraphernalia or his status as the character’s creator. He can still sign autographs, but only on approved merchandise.
Let’s start with the copyright law, which basically says that it is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. However, there are exceptions to the rule like “Work for Hire.” In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
Now, let’s go back to the Gary vs. Marvel case. The question is not weather or not Gary was a work for hire or not. It is irrelevant in this case because this is not what Gary was disputing. According to Gary, Magazine Management (aka Marvel) allegedly never registered the work with the Copyright Office and, pursuant to federal law, Friedrich regained the copyrights to Ghost Rider in 2001. However, that is not true because there are two proven instances in which Gary Friedrich signed over the rights to Marvel.
The first instance was at the time of payment for the initial creation of the Character and Work in 1971 and 1972. The law is clear that when an individual endorses a check subject to a condition, he accepts that condition, that an endorsement on a check assigning “all right, title and interest” to the comic book publisher by the artist assigned all rights, including copyrights, to the publisher.
The second instance happened in a separate contract signed in 1978 by Friedrich and Marvel Comics Group, a division of Cadence Industries Corporation (and defined therein as “Marvel”). According the case file, there is 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.
Basically, he never issued a statement in 1971 and in 1978 that he wanted or thought he had any rights to the Ghost Rider character. It wasn’t until the movie was released that Gary decided he should profit.
Let’s move to Marvel’s countersuit.
Because the court ruled that the copyrights belong to Marvel, technically Gary Friedrich has been breaking the law. Yes, I know. It sucks. Actually, many illustrators in Artist Alley have been breaking the law at Comic Conventions for years. This is called Copyright infringement, the unauthorized or prohibited use of works under copyright, infringing the copyright holder’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. It often refers to copying intellectual property without written permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work’s creator. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In this case, Marvel is demanding $17,000.
Also to note, Marvel (along with other big companies) has known about all the illustrators at Comic Cons for years and has never “gone after” any of these artists. They simply look the other way. Brigid Alverson wrote on Comic Book Resources that “publishers have tended to turn a blind eye to this, because it doesn’t really cost them anything, it increases the visibility of the characters, and enforcing it harshly would make them look like, well, a bunch of jerks.”
The second part of this settlement is that Gary can no longer profit from selling unlicensed Ghost Rider paraphernalia AND call himself the character’s creator. However, he can sign approved Marvel merchandise.
Let’s make this clear: This doesn’t mean he can’t call himself creator of Ghost Rider at all. It means he can’t call himself create of Ghost Rider on unauthorized reproductions. Big difference.
Bottom line is that Gary is in a rough spot right now and no one wants to be in his shoes. Avoid being in the position. It is ugly – legally, emotionally and financially.
If anything, know the law. I recently read an article that an illustrator doesn’t care about copyright laws, work-for-hire, etc. The truth is this: If you want to be successful, you NEED to know these laws. Otherwise, you won’t get anywhere.
Fellow comic book creator, Steve Niles, has helped create a donation fund for Gary.