Comics Only The Leading Edge Of Copyright Fight

Most readers of comic book news sites are now familiar with the legal battles being fought by attorney Marc Toberoff over the rights to Superman and the many characters Jack Kirby co-created for Marvel. But these are only the beginning of a major shift in popular culture copyright ownership made possible under the 1976 revision of the copyright laws. The Copyright Act, which extended the number of years a concept could be copyrighted, also gave creators who had assigned their rights (and their heirs) the ability, under certain conditions, to reclaim ownership of characters after the original 56 year term expired. But  another provision of the Copyright Act allows creators of works made on or after Jan. 1, 1978, to terminate deals (with some restrictions) in which they transferred ownership of material they created to a company.  And this has got the big media conglomerates, who control the most lucrative pop cult franchises, reaching for their big legal guns.

Variety is reporting:

This is likely to set off “a flood of termination notices by artists seeking to regain rights previously granted to record labels, book publishers, advertising agencies and other content owners,” attorneys James Trigg and Sabina Vayner wrote in a recent article on Law Technology News. This has been particularly true for songwriters, and is expected to create friction with record labels that depend on the exploitation of oldies. (Boomers, take note: the ’70s are well within that category.)

But for the time being, comicbook characters are at the forefront of the legal tussle, partly because it comes at the very moment that studios are mining the past for franchise fortunes.

The intent of the 1976 revision of the Copyright Act was to give creators an opportunity to share in the rewards of their creations after they reached their full potential. The rationale was that it was all too common for eager artists, anxious to get their material published, to sign away rights for little money so early in their careers.

Even so, as the litigation proves, claiming ownership via the Copyright Act isn’t as easy as just serving notice and reaping the rewards. There’s a five-year window to do it, and the courts have been sticklers to following the letter of the law.

The heirs to Edgar Rice Burroughs, for instance, sought to recapture their rights to Tarzan in 1978. But according to a 2nd Circuit Court of Appeals decision in 1982, that could not stop MGM from exploiting the character because the heirs, in their notice of termination, failed to include ownership claims on five Tarzan stories. The issues were far from settled, and even in a concurring opinion, Judge Jon O. Newman hinted at the prospect of dueling versions of a character.

“The upshot is that a victory by the heirs in court will translate into higher licensing fees and royalties for those heirs,” says Jack Lerner, a USC assistant professor of law and director of the school’s Intellectual Property and Technology Law Clinic. “And it is going to translate into more litigation and legal fees for both sides.”

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