Every year thousands of costume clad geeks, fan boys, and even lawyers flock to the San Diego Comic Con, a comic book convention of super hero sized proportions. In honor of this annual pilgrimage, (and because I am an old school comic book dork), I decided to put together my top 5 comic book lawsuit list. If you disagree with my choices or have suggestions of your own, leave a comment and let me know.
#5 – NBC’s Heroes Sued for $60 million Over Carnival Copyright Infringement
A lawsuit filed in May 2010 by Jazan Wild, author of a 2005-2006 comic series called Carnival of Souls, against NBC and Heroes creator Tim Kring, alleges that the storyline carnival depicted in the final season of the recently cancelled show was lifted right from his work. According to Comic Book Resources’ website, Wild seeks “to prevent NBC from rebroadcasting the season, and seeks compensatory and punitive damages for copyright infringement, intentional interference with prospective economic advantage, unfair competition and unjust enrichment.”
CBR has even posted a side-by-side panel comparison from the complaint showing panels from the comic book against still photos from the show’s final season. What do you think? Is this scenes a faire or infringement?
#4 – Kirby Estate Fighting a Hulk-sized Battle Over Copyright Terminations
Iron Man, Spider-Man, Fantastic Four, The Avengers, and Hulk; created years ago by legendary artist Jack Kirby, these characters are some of the hottest properties in comic books and movies today. Not wanting to let any of that money go, Marvel comics and parent Walt Disney Co. have filed “a preemptive strike to halt the Kirby family’s bid to reclaim the characters,” says the LA Times Blog.
Last year, Kirby estate attorney Marc Toberoff sent a series of letters to licensors and copyright holders informing them of the estate’s intent to terminate copyright to these valuable properties in the coming years. If the estate is correct in their rights to terminate this would give them serious leverage in any future negotiations with Marvel and Disney.
Many of these characters were created in the 1960′s, what is known as the “Silver Age” of comics. Does anyone have insight or opinion as to whether the copyright terminations will be successful? Feel free to comment below. You can read more about Jack Kirby and the Silver Age here.
#3 – Gaiman v. McFarlane: Co-Owners of Hell Spawns?
Neil Gaiman is a critically acclaimed writer of well-known works like the Sandman series, Coraline, and Stardust (the last two have been made into feature films). Todd McFarlane is a popular artist and creator of the Spawn series, which has also been made into a feature film.
In the early, 1990′s McFarlane decided to open his own publishing house called “Image Comics,” in a move to break away from the big boys. He based his business model on the concept of creator owned works rather than the industry standard, work-made-for-hire arrangement.
One of his first commercial successes was the Spawn series, which he both wrote and drew, but it was criticized as being “badly written.” McFarlane decided to bring on some of the best writers in the business to give his series a literary boost, one of whom was Gaiman. From the Second Circuit opinion by Judge Posner (available here for free on the LexisONE community):
In his script for Spawn No. 9, Gaiman introduced three new characters–Medieval Spawn (as he was later called by McFarlane–Gaiman had not named it and in the issue he is just referred to as a Spawn, with no further identifier), Angela (no last name), and Count Nicholas Cogliostro. Gaiman described, named, and [*9] wrote the dialogue for them, but McFarlane drew them. Gaiman contends that he and McFarlane are joint owners of the copyrights on the three characters by reason of their respective contributions to joint (indivisible) work.
The Second Circuit affirmed the lower courts opinion that Gaiman was a joint owner in the work and gave him the relief he sought. Posner’s opinion is worth the read.
#2 – National Comics Publications v. Fawcett Publications: Super Marvel
This case involved a 12-year legal battle (the longest running one in comic book history) starting in 1941, which eventually resulted in the dissolution of Fawcett Comics and the cancellation of it’s superhero related properties. The fight started over claims that Fawcett’s character Captain Marvel infringed on NCP’s (today known as DC Comics) character Superman.
NCP argued that Captain Marvel’s main powers and characteristics (super-strength, speed, invulnerability, costume and cape, and an alter ego) were based entirely on Superman. Fawcett argued there were differences between the characters, (Marvel’s powers were magic based and his alter ego was a child) which made Captain Marvel non-infringing. The lower court found in Fawcett’s favor based on a copyright abandonment theory.
In 1951, Judge Learned Hand sitting on the Second Circuit, reversed the lower court, holding that Superman’s copyright was valid and that Captain Marvel infringed. The case citation is 191 F.2d 594 (2d Cir. 1951).
Signed in members of martindale.com Connected can access a full version of this case with editorial analysis by requesting access to our Members Only: Free Intellectual Property Resources group. To get it you have to register for martindale.com Connected, and that is free and easy to. Just go to this link and fill in some information.
#1 – Superman No More: Time Warner Loses Most of Copyright to Creators’ Family
The Man of Steel has been one of the most beloved and popular comic book heroes of all time. When teenage writers Jerry Siegal and Joe Shuster came up with a Superman comic strip in 1933 they had no idea that a major media company would be fighting with their heirs over rights well into the 21st Century. In 1938 the two writers signed an employment agreement with DC Comics acknowledging the publisher as the exclusive owner of Superman for $130 each.
As the years went on the parties fought over small sums and DC reaffirmed their rights to Superman in the 1970′s. In 1997, however, Siegal’s heirs served statutory notices of termination to DC. After years of unsuccessful negotiations the Siegal heirs sued “seeking a declaratory judgment that the terminations were effective.” The court found that for the most part, they were, meaning that DC stands to potentially lose one of it’s most profitable characters in the next few years unless a new deal can be reached. Perhaps the Siegals and Shusters will finally get the compensation they deserve?
To read an clear and concise overview of the complicated laws involved in this copyright termination case, read the article Time Warner Loses Superman Copyright to Creator’s Family, by the law firm of Robinson, Bradshaw & Hinson available for free here on our Legal Library.
What do others think? Are these cases in your Top 5 Comic Book Lawsuits? What should be here that isn’t?