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The estate of comic legend Steve Ditko is attempting to reclaim copyright on Ditko’s co-creations, Spider-Man and Doctor Strange, from Marvel Comics
The estate of comic book legend Steve Ditko has filed notice of termination with the United States Copyright Office with regards to the copyrights of Spider-Man and Doctor Strange that are currently held by Marvel Entertainment. Ditko, as the co-creator of both of the characters, is attempting to use a right introduced in the 1976 Copyright Act that allows creators to terminate copyrights of works that the creators had previously assigned to another person or entity.
The trick here, though, is that that right only exists if you transferred the copyright of the character to the other person/entity. If you instead, created the character as “work for hire,” the other person/entity is considered the originator of the copyright and thus you cannot request termination. Here, Marvel Entertainment claims that Steve Ditko created these characters as “work for hire” and thus cannot actually terminate the copyrights of the characters.
Here is a quick explainer of what the difference is between assigning your copyright to another person/entity versus creating the copyrighted work as “work for hire.” When Jerry Siegel and Joe Shuster created Superman, they had the character already written out and drawn when they agreed to sell it to National Allied Publications (now DC), so that is clearly a case where Siegel and Shuster assigned their rights to National Allied/DC. Therefore, DC (and its current owner, Warner Bros) had to work out deals with the Siegel and Shuster estates to maintain copyright on Superman.
When Siegel and Shuster sold the character, copyrights lasted 28 years, with the right to renew for an additional 28 years – making it a total of 56 years. In 1976, Congress extended the renewal period from 28 years to 47 years, an increase of 19 years, making it a total of 75 years. At the time, Congress decided that people who transferred a copyright before 1978 (when the extension kicked in) deserved a chance to terminate the transfer to gain the benefit of the extra 19 years. Their theory was that when people sold their copyright, they did so under the idea it would be for 56 years, and since it was now for 75 years, the creator of the original work, or their heirs, should get back the copyright for the extra time, presumably to get financially compensated again, if the copyright still had value.
Patrick J. Ditko, Ditko’s nephew and heir, is the one who is requesting this termination. Here is the termination notice for Spider-Man and here is the one for Doctor Strange.
Now, under work for hire, if you are hired by a company to create a work for them, they would be considered the owner of the work and you would not be able to reclaim the copyright, as the original copyright owner would be, in this instance, always Marvel Comics and never Steve Ditko.
A few years back, Jack Kirby’s heirs attempted to terminate all of the copyrights for Jack Kirby’s creations for Marvel, claiming that Kirby did not create his works as work for hire, but rather as an independent contractor who then transferred the rights to his creations to Marvel for money. There are a lot of different tests to determine whether someone was “work for hire” or not. Marvel never moved from its position that Kirby’s creations were done as “work for hire,” but the company ultimately settled with Kirby’s heirs for millions of dollars.
It is possible that Ditko is looking for a similar settlement or he may believe that he can prove that Ditko did not create Spider-Man and Doctor Strange as “work for hire.” In the case of Doctor Strange, here is how Stan Lee described his creation back when Doctor Strange debuted, “Well, we have a new character in the works for Strange Tales, just a 5-page filler named Dr. Strange. Steve Ditko is gonna draw him. It has sort of a black magic theme. The first story is nothing great, but perhaps we can make something of him. ‘Twas Steve’s idea. I figured we’d give it a chance, although again, we had to rush the first one too much. Little sidelight: Originally, we decided to call him Mr. Strange, but thought the ‘Mr.’ was a bit too similar to Mr. Fantastic — Now, however, I remember we had a villain called Dr. Strange just recently in one of our mags. I hope it won’t be too confusing!”
Whether that would be considered Ditko creating the character and selling him to Marvel versus creating him for Marvel as a work for hire is an interesting question and one that might play out in copyright court unless a settlement is reached between the two parties.
Source: JL Mast on Twitter
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