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The last couple of days have seen a bit
of a firestorm erupt online among the comics community over the
ruling in Gary Friedrich Enterprises v. Marvel Enterprises (Friedrich
v. Marvel), which I believe was initially publicized on a blog
(http://ohdannyboy.blogspot.com.au/2012/02/gary-friedrich-enterprises-llc-et-al-v.html
). Primarily, the uproar has been over the ruling in which the
destitute Gary Friedrich must pay the Marvel (a multi-million,if not
billion, now that they are a part of Disney) corporation $17,000.
This smacks most everyone who hears about it as bully behavior by
Marvel against a human being. There are more than plenty of websites
out there covering and analyzing the story, but I have also seen a
lot of misunderstanding of exactly what is happening here. So, I am
going to attempt to pull it all together in as objective, concise,
and clear manner as I can and then I will give my concerns and
feelings about it.
It took a bit of searching, but I did
find a copy online of the docket of the claim transferred from
Illinois and filed in the District Court of the Southern District of
New York on Valentine's Day 2008 by Friedrich against Marvel at
http://www.scribd.com/doc/76730989/Friedrich-v-Marvel-DOCKET-S-D-N-Y
. I also found a copy of the 2011 ruling at
http://www.iplawalert.com/uploads/file/Friedrich%20v%20Marvel.pdf
that details the claims and counterclaims on record. This lets us
see the chronological procession of events. Just for the record,
Friedrich's original claim against Marvel includes 7 pages listing
defendant after defendant. So, we might want to keep in mind that
while the case is consolidated under the banner of Marvel
Enterprises, it also lists Hasbro, Columbia Pictures, and a slew of
others who fell under his claim and, yes, The Walt Disney Company is
one of them listed. I mention this just to make it clear that
Friedrich did not go up against “Goliath” unwittingly and that
when we speak of “Marvel,” we are not just talking about Marvel
Comics (although they are the primary one involved in the factual
background that determined the outcome).
After a lot of legal back and forth
nonsense for 2 years, on December 15, 2010, Marvel filed a
counterclaim against Friedrich. So what were the pertinent claims by
Friedrich and Marvel's counterclaims? Essentially, Friedrich claimed
copyright ownership over the character of “Ghost Rider” and
claimed that as the copyright owner that his rights had been
infringed by Marvel and the other defendants for their use of the
character in movies, toys, video games, etc. It is an important
distinction to be noted that he is not claiming ownership of the
character in regards to Marvel's use of the character within the
comic books and graphic novels. Friedrich acknowledges Marvel as the
owner of the copyright to the character in relation to publishing but
asserts that when he signed over his rights to Marvel in 1978 that he
believed he was retaining the rights to the character in regards to
other media. In a sense, it is similar to someone here in Texas
selling a plot of land but retaining the mineral rights on that land
just in case they find oil on it. Unfortunately, there was no
evidence in the text of the agreement signed that made his
understanding explicit and thereby, near impossible to prove.
Marvel's counterclaims against
Friedrich are based on their assertion that Friedrich's use of the
image and name of “Ghost Rider” in marketing himself and selling
merchandise is a violation of Marvel's copyright and trademark
ownership. They demanded that he account for and pay them for each
violation over the years and that is where the $17,000 comes into
play. They also claimed Trademark Infringement, False Description,
False Representation, and False Designation of Origin.
I find it interesting as well that
there was little to no interest in this story back in December of
last year when the ruling on Friedrich's claim was entered. It
wasn't until this week when the final ruling was entered on Marvel's
counterclaim that the proverbial “shit hit the fan” on this
issue. So, let's back up a little bit and first lay out what
happened in the ruling back in December. In the legal system, there
is a little thing called “Summary Judgment”. When one party or
the other requests a “Summary Judgment,” what they are hoping
will happen is that the presiding trial judge will review the facts
of the case before trial and if the judge determines that
there is actually no genuine issue in the facts will rule that the
party is entitled to a judgment without ever even going to trial.
Basically, the judge is saying that going before a jury and having a
trial would be a waste of time and money because there's actually
nothing to argue about in the claims.
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| "Back of Check" Contract from the '70s |
In this case, both sides asked for
“Summary Judgment” on one issue only: the question of ownership
of the character. Remember Friedrich was claiming not just ownership
but also multiple instances of infringement that hinged upon a ruling
in his favor on the question of ownership. If he failed on that
issue then the allegations of infringement fall away because how can
his rights be infringed if he does not own the character?
Unfortunately for Friedrich, that is what happened back in December.
The court cited well-settled jurisprudence that taken on its face
means Friedrich has no legal claim to ownership of the character.
The judge's ruling was based on 2 facts in the record: (1) back in
the early 70s, when Friedrich endorsed his payment checks from Marvel
for his work on Ghost Rider, there was a simple contract
acknowledging the work as a “work-for-hire” on the check that he
accepted when he signed; and (2) as a prerequisite to be allowed to
freelance again for Marvel, in 1978, Friedrich was required to sign a
specific agreement assigning any rights he may have in the property
over to Marvel (the text of the agreement was: “SUPPLIER [i.e.,
Friedrich] expressly grants to MARVEL forever all rights of any kind
and nature in and to the Work, the rights to use SUPPLIER’s name in
connection therewith and agrees that MARVEL is the sole and exclusive
copyright proprietor thereof having all rights of ownership therein.”
So for the first phase of this case, in
December of 2011, the court ruled in Summary Judgment that Marvel is
the copyright owner of Ghost Rider and not Gary Friedrich. This
ruling does not say he is not the creator of the character or
limit his ability to market himself as the creator of the character.
It is very simply, a definitive declaration that a work-for-hire is a
work-for-hire and that means Friedrich does not have a personal stake
in the copyright and, therefore, is not legally entitled to money
from the films, video games, etc. We can disagree on the morality of
whether he is due some level of compensation, but in terms of the law
it is settled, just as it was similarly settled when Jack Kirby's
heirs tried to claim ownership of pretty much the whole of Marvel's
stable in the 1960s and when Marv Wolfman attempted to claim
ownership of Blade. The work-for-hire system is well established and
near impossible to defeat when it's one little guy against the
corporate monster.
But there was that little counterclaim
by Marvel still out there and they apparently did not want to dismiss
their counterclaim after winning the original claim. So the second
phase was completed last week and the final ruling on the
counterclaim was entered. What has set the internet on fire was
related to Marvel's “stipulations” and the injunctions agreed to
by Friedrich. First of all, we need to clear up what a “stipulation”
is. A “stipulation” is an agreement made between the parties
that is intended to simplify or shorten the litigation. In other
words, if one side can agree to “stipulate” to a certain set of
facts, then that may shorten or even prevent the case from needing to
go to trial.
Secondly, we need to see what Marvel
actually “won” here on their counterclaim. Let's look again at
what Marvel counterclaimed: (1) Copyright infringement over the sale
and distribution of goods depicting Ghost Rider; (2) Trademark
Infringement; and (3) False Description, False Representation, and
False Designation of Origin. (I'm not quite sure what that third
counterclaim is because the court never had to address it because of
the stipulation.)
What Marvel and Friedrich did here is
come to an agreement to avoid going to trial. Presumably, in light
of the fact that Friedrich had lost the original claim, he was
strongly urged by his attorney to “settle” or it could turn out
to be a much worse financial loss. So, the settlement appears to be
this – Marvel agreed to drop the claims of Trademark Infringement,
False Description, False Representation, and False Designation of
Origin if, and only if, Friedrich consented to some very specific
demands from Marvel.
Remember, the court did not order
Friedrich to do this, he consented to it on his own because Marvel
told him that if he did that they would drop the second and third
counterclaims against him. What Friedrich agreed to was to no longer
refer to himself as the creator of Ghost Rider. He may not sell or
distribute any merchandise (other than signed copies of Marvel's own
comic books that he has purchased) with Ghost Rider on it. This will
be an ongoing burden for him in marketing himself to conventions and
such but not being able to overtly mention Ghost Rider. But I notice
in the injunction that Marvel is allowing the possibility of him
using the character so long as he obtains a license or permission
from them. What a corporate mensch, right?
However, Marvel is not letting go of
their first counterclaim for “copyright infringement” and that is
where the court accepted the amount of $17,000 as damages owed to
Marvel by Friedrich, and they are sticking to their guns even in the
face of mounting negativity in the fan press over this ruling.
Briefly, here are my thoughts on it.
Friedrich, unfortunately, has been forced into an untenable position
by the corporate monster known as Disney/Marvel – I'm not talking
legal now, but purely in terms of humanity and morality. The
freelance field of the time period in which Friedrich originally
created the Ghost Rider character was pretty slimy in terms of
business practices. Taking these freelancers who are working their
asses off for mere scrapings of a living wage with no retirement and
no health insurance and no job security and then requiring them to
have to sign these ridiculous contracts on the back of their checks
before they can receive payment for work they have already completed
is just about as low as it gets. In my view, it is analogous to
signing a contract because a bruiser is standing there with a stick
ready to break your legs if you don't sign. In a moral world those
would be retroactively voided across the board. However, the modern
legal field is anything but moral. These vile contracts are
consistently upheld by the courts as valid. The 1978 contract that
Friedrich signed is also, in my mind, an extortive contract in which
they dangled the possibility of future work before him if he would
sign away any rights he might have (in other words, they realized
they were on shaky ground with the back-of-the-check contracts by
then). And now, Marvel is doing it again to him. They have put him
in a position where he really has no choice, and even now, he ends up
owing thousands of dollars to them which they know perfectly well he
cannot pay.
In my opinion, Friedrich is like many
writers of his generation, and has been taken advantage of by
unscrupulous businesses and business practices for the bulk of his
career as a writer. He is not the first and he won't be the last,
however, the modern crop of writers is much more knowledgeable about
contracts and copyrights so perhaps it will continue to lessen in the
field. I find nothing dishonorable in what Friedrich did in filing
against Marvel in an attempt to gain some rights of ownership in a
character that he did indeed create and which Marvel has profited by
hundreds of millions of dollars. That he lost was foreordained by a
legal system that is all too often led down predictable paths lined
by corporate dollars and high-priced attorneys. That Marvel did not
just drop their counterclaims in full against Friedrich is
pathetically mean-spirited and a clear attempt by Marvel to “send a
message” to any and all out there who might try and mount a similar
joust with them over the ownership of other characters.
The long-term effect of this ruling,
however, is its effect on the common practice by current and former
comic book artists of selling and distributing prints, posters,
commissions and other materials with characters who are copyright to
Marvel, DC, or other companies. The injunction against Friedrich and
the win on Copyright Infringement have set a precedent now of Marvel
coming in after the fact and requiring former comic pros to pay them
for profits received as a result of product they sold at conventions
or created as commissions. I see a future, not so far away, in which
artists will have to obtain explicit permission from Marvel or DC
each and every time in order to sell, display, or distribute
materials with their characters on it. On that day, the comic
convention as an organic coupling of fan and creators becomes a thing
of the past and all that remains is a publicity circus of corporate
control. That's not a legacy to be proud of and Friedrich does not
deserve to be ground into the dirt by Marvel for simply deigning to
challenge them. It is simply stupefying and debased that he has been
forced into the position of having to choose between being sued for
who-knows-how-much money and asserting the truth that he created
Ghost Rider for Marvel Comics.
If you feel so inclined, you can donate on behalf of Gary Friedrich at http://www.steveniles.com/gary.html
