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Gary Friedrich v. Marvel Enterprises

December 28, 2011

GARY FRIEDRICH ENTERPRISES, LLC, ET AL.,
PLAINTIFFS,
v.
MARVEL ENTERPRISES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Katherine B. Forrest, District Judge:

MEMORANDUM OPINION & ORDER

The Ghost Rider has been an iconic character for several decades. He has appeared in numerous comic books, movies, video games, toys and other specialty items. The first phase of the instant lawsuit, commenced in 2007 by plaintiffs Gary Friedrich Enterprises, LLC and Gary Friedrich ("Friedrich," and collectively with the LLC, "Plaintiffs"), comes down to one determinative question: do Plaintiffs own any rights in the Ghost Rider character (the "Character") and/or, what is referred to in the comic book and character industry as the Character's "origin story" (which first appeared in a volume of Marvel Comics called "Spotlight 5" and referred to herein by that name or the "Work")? If Plaintiffs own any rights--either as sole or as a joint author of the Character and Work--then Plaintiffs' claims against Marvel*fn1 for copyright infringement could result in a damages award.*fn2 After several years of litigation, including substantial document productions and numerous depositions, both sides have now moved for summary judgment on the question of ownership.

A substantial amount of effort throughout the litigation and the majority of the briefing on these dueling motions relates to the question of whether Friedrich created the Ghost Rider character and the Work as a "work for hire." If so, then Plaintiffs effectively agree that all rights passed to Marvel. See Pls.' & Counterclaim-Defs.' Mem. In Supp. of Mot. for Summ.

J. (Dkt. No. 312) at 3-4. If, on the other hand, the Character and Work were not created as works for hire, then at the expiration of the original copyright term (conceded by both sides to be 2001), the renewal rights to both the Character and the Work reverted to Plaintiffs. If that were the case, Marvel would have no remaining property rights in either the Character or the Work.

For the reasons set forth below, the Court finds that it is unnecessary to reach the question of whether or not the Character and Work were created as works for hire: all of the briefing--and what would certainly amount to triable issues of fact on those questions--are irrelevant to the determination of the instant motions. This Court finds that there were at least two moments in time when Friedrich definitively conveyed by contract to Marvel all rights of whatever nature, including any renewal rights to the Character and the Work: (1) at the time of payment for the initial creation of the Character and Work in 1971 and 1972; and (2) in a separate contract signed in 1978 by Friedrich and Marvel Comics Group, a division of Cadence Industries Corporation (and defined therein as "Marvel") (the "1978 Agreement").*fn3 There is no triable issue of fact as to whether (a) in 1971, Friedrich conveyed any rights he may have had to both the Character and the Work to Marvel and (b) in 1978, he again conveyed to Marvel any rights he then had or could have in the future in the Character and the Work. Either one of those contractual transfers would be sufficient to resolve the question of ownership. Together, they provide redundancy to the answer that leaves no doubt as to its correctness.

Accordingly, Defendants' motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED.

BACKGROUND: THE GHOST RIDER RIDES AGAIN*fn4

While the parties agree on very little, the evidence in the record is clear that in 1971 Friedrich worked on, and in April of 1972 the Marvel Comics Group division of Magazine Management Co., Inc. ("MMC," a predecessor-in-interest to defendant Marvel Characters B.V.) subsequently published, "Marvel Spotlight, Vol. 1, No. 5." Defs.' Stmt. Of Undisputed Facts ("Defs. Stmt.") (Dkt. No. 306) ¶ 33; Pls.' Stmt. Of Undisputed Facts ("Pls.

Stmt.") (Dkt. No. 311) ¶ 103. Spotlight 5 introduced a newly created Ghost Rider character. By all accounts, the Ghost Rider in Spotlight 5 differed significantly from another, earlier Marvel Comics character by the same name. The Ghost Rider of the 1950's and early 1960's was a "Western" character who rode a horse and was apparently mortal in all respects. Defs. Stmt. ¶ 5; see also Pls.' Resp. to Defs. Stmt. (Dkt. No. 325) ¶ 5. The 1972 Spotlight 5 publication introduced readers to a new, motorcycle-riding Ghost Rider whose head was skeletal and at times had fire blazing from it. Defs. Stmt. ¶ 6; cf. id. ¶ 60; Pls. Stmt. ¶ 34. The new Ghost Rider had superhero characteristics and was somewhat mystical. A supporting cast of (the Ghost Rider's alter ego), Roxanne Simpson, and Crash Simpson, were also first introduced in Spotlight 5. Cf. Pls. Stmt. ¶¶ 59, 111.

There is also no dispute that Friedrich conceived and wrote the text of the first Spotlight 5 comic book that introduced the new Ghost Rider and the supporting cast. The parties do not dispute that on the first publication of Spotlight 5 in April 1972, the "credits box" inside the book's "splash page" stated that the Work was "conceived and written by" Friedrich. Pls. Stmt. ¶ 89; see also Defs. Resp. to Pls. Stmt. (Dkt. No. 329) ¶

89. The Work also bore a copyright notice in the name of "Magazine Management Co., Inc., Marvel Comics Group." Defs. Stmt. ¶ 34; see also Pls. Resp. to Defs. Stmt. ¶ 34. In spring and summer of 1972, MMC published Issue III of Spiderman and other comics that contained a feature called "Marvel Bullpen Bulletin" (i.e., an article within comic books through which MMC "spoke to its fans") which told readers to look out for Spotlight 5 because it would introduce the new Ghost Rider character. Pls. Stmt. ¶ 118; see also Defs. Resp. to Pls. Stmt. ¶ 118. The Bullpen article attributed the Character to Friedrich, stating that he had "dreamed the whole thing up." Pls. Stmt. ¶ 121; see also Defs. Resp. to Pls. Stmt. ¶ 121.

It is also undisputed that Friedrich never raised an issue regarding Marvel's exploitation of the Ghost Rider character and the creation of numerous subsequent episodes until sometime in or after 2004. Defs. Stmt. ¶ 68; see also Pls. Resp. to Defs. Stmt. ¶ 68. It is undisputed that Friedrich only wrote several episodes of the Ghost Rider, but that others also wrote Ghost Rider episodes, even while Friedrich continued to write as a freelance comic book writer for Marvel. Defs. Stmt. ¶ 42; see also Pls. Resp. to Defs. Stmt. ¶ 42.

There is extensive testimony in the record and recited in the briefs regarding the general process Marvel used to create comic books. Plaintiffs agree that Marvel employed a process to create comic books called the "Marvel Method," but state that there were a variety of methods to which that moniker was attributed. Pls. Resp. to Defs. Stmt. ¶¶ 8-9; see also Defs. Stmt. ¶ 8. As discussed below, Plaintiffs, however, dispute only one (irrelevant) step in the Marvel Method used to create the Work. As discussed below, it is useful for this Court to understand the characteristics of the Marvel Method used in the context of creating the Work when it interprets the 1978 Agreement.

The parties disagree as to whether the first step of what would typically have initiated the Marvel Method was followed here--i.e., assignment or independent development of a synopsis of a character or work. Defs. Stmt. ¶ 10; see also Pls. Resp. to Defs. Stmt. ¶ 10. Frankly, that step is not relevant here. From that point forward, Plaintiffs agree with the description of the Marvel Method. In addition to the first step, the typical method involved (2) an artist (not the writer) illustrating a work based on the synopsis, (3) providing the illustrated panels to the writer for text to be written (for the Ghost Rider episode in Spotlight 5, there is no disagreement that plaintiff was the writer), (4) a "letterer" placing the text in the appropriate spot on the illustration (sometimes in consultation with the writer), (5) an "inker" applying color, and (6) finally, printing and distribution of the comic book. See Defs. Stmt. ¶ 8. All of that occurred ...


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