As reported by Reuters, Marvel Comics has reached an agreement to settle a copyright infringement litigation brought by a comic book writer who claims that he created the “Ghost Rider” character that has appeared in Marvel’s comic books. The settlement would resolve claims that have been pending for five years.
The “Ghost Rider” character, described as a “flaming-skulled motorcycle-riding vigilante,” first appeared in Marvel’s comic books in 1972. Gary Friedrich, who formerly worked as a freelance writer for Marvel, claims that he created the character and therefore owns the copyright. Since 2007, the “Ghost Rider” character has been prominently featured in two motion pictures. After learning of the release of the first motion picture, Friedrich brought suit for copyright infringement, claiming that he owns the copyright in the “Ghost Rider” character and therefore the right to control its use in connection with motion pictures and merchandising such items as toys and video games.
Generally speaking, a writer or artist who creates a character owns the copyright in the character. An exception occurs when the character is created at the behest of another party, who may then claim ownership on grounds that the character was a work made for hire. Often, work for hire agreements are used to memorialize the fact that, although a work has been created by a freelancer, independent contractor or employee, it is owned by the party commissioning such work.
A U.S. federal district court previously dismissed Mr. Friedrich’s claims and entered judgment in favor of Marvel on its copyright infringement counterclaims, holding that Mr. Friedrich assigned all rights in the renewal term of the “Ghost Rider” copyrights to the predecessor of Marvel in a 1978 work for hire agreement.
The U.S. Court of Appeals for the Second Circuit, however, recently overturned the decision and remanded the case to the district court for a trial, which was set to begin in December. The Court of Appeals concluded that the 1978 work for hire agreement was ambiguous and that issues of material fact as regards the parties’ intent precluded the district court’s judgment in favor of Marvel. The Court noted that the language of the work for hire agreement is “ungrammatical and awkwardly phrased,” ambiguous as to whether it covers a work published six years prior, and ambiguous as to whether it covers renewal rights. A trial was therefore deemed necessary in order to determine the parties’ rights.
Work for hire agreements should be clearly drafted and, to the extent possible, identify the specific works and rights that are covered. An experienced intellectual property/copyright attorney can guide you in incorporating appropriate language to ensure that your work for hire agreement will have its intended effect.
