Posts Tagged ‘copyright’

Disney acquired Marvel Entertainment last year for quite a chunk of change. One of the most important assets of Marvel is its superhero collection, many of which were developed by Jack Kirby who has since passed away. The heirs of Kirby sent out a notice of copyright termination under Section 304(c) of the Copyright Act to both Marvel and Disney to have the copyrights in their father’s work revert to them. The Copyright Act permits the heirs to terminate the copyrights effective 56 years after the establishment of the copyright – which apparently occurred between 1958 and 1963 when the comics were originally published. On the west coast, Kirby’s children have asked the court for a declaratory judgment acknowledging the validity of the termination notices, spelling out the profit sharing going forward on any co-owned works, the return of their father’s original artwork, and to give their father credit for the movies based on his creations (The Incredible Hulk and X-Men Origins) in the case of Kirby v. Marvel, et. al. SACV10-00289 CJC (C.D. Cal. 2010). On the east coast, in the case of Marvel v. Kirby, 2010-cv-141, (S.D. NY 2010), Marvel is suing the heirs to have the notices declared invalid. Although Marvel claims that its relationship with Jack Kirby was a “work-for-hire,” the heirs allege that Kirby worked out of his home without a written agreement. If this is true, the relationship was most definitely not a work for hire situation. A work-for-hire requires either an actual employment relationship or a written agreement transferring the ownership in works created by an independent contractor. Since Marvel could have easily disposed of both cases by presenting a copy of such a written agreement or proof of employment, one can assume that they are unable to document their position. Since I can’t imagine that Disney was unaware of the ability of Kirby’s heirs to terminate the copyright, my guess is that as a part of the $4.3 billion dollar transaction, Marvel agreed to indemnify Disney for these claims by Kirby’s heirs. (To indemnify means that Marvel will defend Disney at Marvel’s cost and be responsible for any damage award against Disney). This is why Marvel filed the suit instead of Disney. Regardless, the Kirby children have requested a jury trial. When the jury hears how much Marvel made off of Kirby’s work, someone will need to get their checkbook out. Something tells me it won’t be Disney.

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It is South by Southwest® here in Austin this week. While most of the students are away, the town is full of music, films and interactive events. In searching for something with a legal angle that I could write about, I came across a potential legal dispute involving the movie “MacGruber” of SNL fame, which premieres tonight at the Paramount. The dispute stems from a cease and desist letter sent by the attorneys of the creator of the original MacGyver TV series. Apparently, MacGyver is also being made into a movie. The letter did not stop the premier, but raises the issue of copyright infringement.

Essentially, before a suit for infringement can be brought in federal court, the work must be registered at the Copyright Office. The courts will examine whether the alleged infringing work is “substantially similar” to the original work, and if the look and feel, among other things, of the original work was improperly copied. Although it is unlikely that anyone would think that MacGruber was created independently, it was clearly based on the MacGyver character, there is an exception to infringement called “fair use.” One type of fair use is parody. A parody is the copying of a work in a satirical and humorous manner. I don’t think anyone will claim that MacGruber is anything but a copying of MacGyver in a satirical and humorous manner, but not all parodies are automatically fair use.

The most prominent case involving this issue is Campbell v. Acuff-Rose Music which was decided by the Supreme Court in 1994. Essentially, 2LiveCrew recorded a parody of Roy Orbison’s “Oh, Pretty Woman,” and like the creator of MacGyver, the owner of the Pretty Woman copyright felt that the parody was an infringement. Although the lower court held that the commercial nature of the 2Live Crew version of the song automatically excluded it from fair use, the Supreme Court ruled that because the work was so transformative (different from the original), the work would not impact the commercial value of the original work as they operated in completely different markets (one of the factors in fair use).

What does this mean for MacGruber? I would predict that a court would find MacGruber to be transformative parody and serving a different market than MacGyver and thus a fair use. I wish them a successful premiere.

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