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Marvel lawsuit pits superhero artists against the corporations that exploit them

For far too long, the creators of comic book superheroes have had to watch as their work has been exploited for millions, then billions, of dollars by gigantic corporations with deep pockets and lawyers for their lawyers. What did the men and women who wrote and drew the adventures of your favorite costumed adventurers get for their trouble? Too often, too little.

That may change.

The Ditko estate isn’t trying to stop Marvel from making more Spider-Man movies or television shows or underpants. It simply wants a fair share of the profits.

The estate of Steve Ditko, genius co-creator of Spider-Man, Doctor Strange and sundry other Marvel and DC Comics heroes and villains from the 1960s to the 1990s, has served a notice of copyright termination to Marvel Characters Inc. (owned by the Walt Disney Company since 2009) announcing that it will reclaim the late artist’s stake in his multibillion-dollar body of work when the copyright expires. Joining the Ditko estate are Larry Lieber, 89, a longtime Marvel writer (and brother to Marvel’s most famous editor in chief, Stan Lee), and the heirs of Gene Colan, Don Heck and Don Rico — co-creators of superheroes Iron Man, Black Widow, Hawkeye and The Falcon, all of whom have appeared in Marvel Studios’ leviathan movie franchise.

It’s important to state at the outset what this does not mean: The Ditko estate isn’t trying to stop Marvel from making more Spider-Man movies or television shows or underpants. It simply wants a fair share of the profits. Ditko’s heirs have notified Marvel that the company will no longer have the legal rights to make all that stuff without permission after June 2023.

It has been profoundly depressing to watch dozens of comic book movie fans respond to news of the Ditko heirs’ suit by shrieking in comments sections and on Twitter that Ditko’s estate doesn’t deserve anything but that the company that exploits his work deserves a steady stream of billions of dollars annually.

Partly that’s a result of strategic revisionism on the part of one of the world’s largest entertainment conglomerates. Disney has seen to it that the marquee reads “Marvel’s The Avengers,” not “Jack Kirby and Don Heck’s The Avengers,” so people respond to claims of ownership as though the company logo wrote and drew the stories. Left to its own devices, Disney would most likely do to the memory of the men and women who created the Marvel universe exactly the same thing it did to Ub Iwerks, the largely forgotten animator who designed Disney’s signature work: Mickey Mouse.

As with the heirs of Superman co-creator Jerry Siegel, who prevailed in a lengthy legal battle to recoup some of the future proceeds from the character’s many lucrative appearances, Ditko’s heirs are reclaiming their partial rights, not pulling the emergency brake on Spider-Man output. (Their claim, like Siegel’s, is partial because the copyright on work with multiple authors, such as the Spider-Man comics, is divided among all of them).

Under the Copyright Act of 1976, all authors can cancel the copyright they’ve granted to others for their original work after a period of time that depends on when the work was made; they are also explicitly entitled to threaten to cancel the copyright to negotiate a better deal. But Marvel is countersuing, contending that Spider-Man, Doctor Strange, Squirrel Girl and the rest shouldn’t be considered original artwork to which it purchased the rights but instead “work made for hire,” like building a house or drawing the Pepsi logo — a kind of work explicitly excluded from this provision of the copyright law.

“Marvel paid Steve Ditko a per-page rate for his contributions,” Marvel attorney Daniel Petrocelli told the entertainment trade site Deadline. “Steve Ditko did not obtain any ownership interest in or to his contributions.” This is a bit like saying Marvel Comics owns the peanut butter sandwich I just made because I didn’t file the correct paperwork about the knife I used to spread the peanut butter.

Marvel knows that the rights to many of its characters are on shaky legal ground, and it takes preventive measures to avoid seeing those grounds hashed out in public. Dozens of artists already receive payments based on ownership interests in their characters — Marvel is accused of being stingy and late with these payments, but they do exist, and they are paid to artists and writers who have been with the company since at least the early 1970s. In return, the artists and writers generally agree not to hold Marvel liable for any further payment, so the question of copyright, conveniently for Marvel, never gets adjudicated.

Rumor (or legend; the two were more or less interchangeable when it came to Ditko, who was as private as he was influential) has it that the Spider-Man artist wanted a full reckoning from Marvel but without having to duke it out in a courtroom: every penny he was owed and not one more or less, going all the way back to the company’s first cartoons that swiped art from his panels. This wouldn’t have been out of keeping with the man’s character: He was a perfectionist in his work and a devotee of Ayn Rand, notoriously picky about his collaborations and perfectly willing to walk away if he felt he was dealing with someone who would try to cheat him.

For Ditko, everything was a matter of principle, including not going to war in the courts with the people who had wronged him; instead, he preferred to stop working for Marvel, even as he nursed an understandable bitterness over what he was owed. If you wrote to him asking for comment on the industry built around his work (as I did in an unsuccessful effort to get him to talk about the first “Doctor Strange” movie), he would reply that he wasn’t interested in anything he had done at Marvel, only in what was next.

Ditko was an artist’s artist, and if I had to guess, I would say that nothing — not being cheated, not obscurity — would have made him unhappier than spending his declining years in a courtroom. It’s a shame that the only way he will get any retroactive justice is for his heirs to become professional litigants.

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