Tag Archives: work made for hire

Ghost Rider vs. Free Riders?

Ghost_RiderNews from the Second Circuit Court of Appeals:

The man who might have created the Marvel Comics superhero/anti-hero Ghost Rider… well, might in fact have created Ghost Rider, and might not have transferred all of his rights in the character forever. In both are true, then Marvel might have infringed upon his copyright many times over, but most significantly recently when it produced the awful, awful Ghost Rider movie of 2007 and the sequel that this writer didn’t even bother to see because the first one was so bad.

On appeal from a summary judgment granted to the defendants (for all relevant intents and purposes, Marvel Comics) by the United States District Court for the Southern District of New York (by way of the Southern District of Illinois), the Second Circuit reversed the dismissal of plaintiff erstwhile freelance comic book writer Gary Friedrich’s amended complaint alleging infringement on the grounds that Friedrich had, in 1978, assigned to Marvel the renewal term rights he held in Ghost Rider (the character) by way of a form work-for-hire agreement. “The facts,” the Second Circuit notes, with admirable succinctness, “are heavily disputed.”

But what the appellate court took particular issue with is the language of the one-page form purported work-for-hire agreement that Marvel asked Friedrich to sign in 1978, when the current Copyright Act took effect and, among other things, provided specific rules about works made for hire. Marvel, apparently desiring and intending to get its ducks (including Howard) in a row, had its freelancers execute brief, standard contracts purportedly providing that all work would be owned by Marvel. But the language of the agreement—indeed, the “critical sentence defining the ‘Work’ covered,” notes the Second Circuit, “is ungrammatical and awkwardly phrased.” Well, what do you expect, Your Honors? These guys write comic books! You know… for kids!

Make mine Marvel.

Make mine Marvel.

Mindful that the purpose of the renewal term allowed by the Copyright Act for works still in their initial term of protection on January 1, 1978, is “to provide authors a second opportunity to obtain remuneration for their works” and “to renegotiate the terms of the grant once the value of the work has been tested,” there was no way the Second Circuit was going to let stand the decision that Friedrich had re-granted his rights (whetever they might be) to Marvel in an ungrammatical and ambiguous document. In any event, summary judgment was not appropriate, because of those pesky issues of fact. Indeed, “[t]he district court concluded that genuine disputes of material fact surrounded the authorship of the work, but it nonetheless granted Marvel’s motion [for summary judgment] and denied Friedrich’s.”

Because that’s another thing: When reconsidering the dismissal of the plaintiff’s complaint, the Second Circuit assumed as true all of the facts as alleged by Friedrich. But there was also Friedrich’s own motion for summary judgment, which the district court had of course denied and which the appellate court had as well to reconsider, to do which it had to then look at the alleged facts in the light most favorable to Marvel. And these include allegations that Friedrich actually had very little if anything to do with the creation of Ghost Rider—one of the sillier “heroes” in the Marvel pantheon, really. At least both Spider-Man and Captain America make cameo appearances in the decision. Now those guys are heroes.

Excelsior!

UPDATE:  Analysis from Pamela Chestak.

©hild Labor & You

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Best of 2012: Moldy oldies

Originally posted March 29, 2012.

Album cover was found very appealing by some

Cohen the “Trademark Attorney” (his SEO people told him to sign blog posts as “Trademark Attorney” I guess; I think it worked, too!) has this phenomenal item about some really fresh fruits (lawsuits, that is) for rotting vegetables (incredibly old IP rights):

Many people would recognize the Andy Warhol stylized print of a banana as the Velvet Underground’s unofficial logo.  Many of the same people would also know that the banana was created by Warhol, who often collaborated with the band.  But who owns the rights to the iconic print?

Explaining that Warhol never registered the copyright, he continues:

The Velvet Underground recently filed a trademark infringement lawusit that claims that the print was taken from a newspaper ad that was part of the public domain.  The Andy Warhol Foundation currently owns most of Warhol’s copyrights, which are valued at over $120 million.  The foundation earns about $2.5 million a year by licensing these copyrights.  When the foundation decided to start using the banana print as part of its copyrighted repertoire, the band sued.  According to the lawsuit, the band wants a judicial declaration that the foundation has no copyright protection for the banana icon.

I love when hippies or their heirs fight over money, don’t you?  As Michael says, the Warhol banana evidently became a sort of de facto logo for the band, but they never attempted to perfect those rights by registering the mark, either — which of course would have been dicey, considering that the logo was someone else’s creative work.  They did have permission to use the banana logo — Warhol made it for the album cover.  But he didn’t give them any other permission, so, as Michael explains, the question is the extent of the rights included in this case of a work made for hire.

As Art News reports it, though, there is a trademark question here too:

Lawyers and intellectual-property experts say that to win its case, the Velvet Underground will have to show the design has come to be associated by the public with the band itself.

“This isn’t necessarily going to be easy,” said Marc Reiner, a trademark and copyright lawyer at Anderson Kill & Olick P.C., in New York. “After all, Andy Warhol’s name is also on the cover.”

Okay, maybe not so easy, but this is one old banana!  And Warhol’s estate can’t really claim trademark rights in it, you’d think.  Pretty interesting issues.  Glad they are finally getting around to settling questions involving these old fruits.

UPDATE:  Settled.

Moldy oldies

Album cover was found very appealing by some

Cohen the “Trademark Attorney” (his SEO people told him to sign blog posts as “Trademark Attorney” I guess; I think it worked, too!) has this phenomenal item about some really fresh fruits (lawsuits, that is) for rotting vegetables (incredibly old IP rights):

Many people would recognize the Andy Warhol stylized print of a banana as the Velvet Underground’s unofficial logo.  Many of the same people would also know that the banana was created by Warhol, who often collaborated with the band.  But who owns the rights to the iconic print?

Explaining that Warhol never registered the copyright, he continues:

The Velvet Underground recently filed a trademark infringement lawusit that claims that the print was taken from a newspaper ad that was part of the public domain.  The Andy Warhol Foundation currently owns most of Warhol’s copyrights, which are valued at over $120 million.  The foundation earns about $2.5 million a year by licensing these copyrights.  When the foundation decided to start using the banana print as part of its copyrighted repertoire, the band sued.  According to the lawsuit, the band wants a judicial declaration that the foundation has no copyright protection for the banana icon.

I love when hippies or their heirs fight over money, don’t you?  As Michael says, the Warhol banana evidently became a sort of de facto logo for the band, but they never attempted to perfect those rights by registering the mark, either — which of course would have been dicey, considering that the logo was someone else’s creative work.  They did have permission to use the banana logo — Warhol made it for the album cover.  But he didn’t give them any other permission, so, as Michael explains, the question is the extent of the rights included in this case of a work made for hire.

As Art News reports it, though, there is a trademark question here too:

Lawyers and intellectual-property experts say that to win its case, the Velvet Underground will have to show the design has come to be associated by the public with the band itself.

“This isn’t necessarily going to be easy,” said Marc Reiner, a trademark and copyright lawyer at Anderson Kill & Olick P.C., in New York. “After all, Andy Warhol’s name is also on the cover.”

Okay, maybe not so easy, but this is one old banana!  And Warhol’s estate can’t really claim trademark rights in it, you’d think.  Pretty interesting issues.  Glad they are finally getting around to settling questions involving these old fruits.

UPDATE:  Settled.