Disney and the estates of numerous comic book legends are disputing over whether the character creators have a claim to potential millions as MCU goes forward. 

Since this spring, Disney has been locked in an ownership battle over the characters that have appeared in the Marvel Cinematic Universe.

Recently, the company filed lawsuits against copyright-termination notices that have been filed on behalf of legendary Marvel writers and artists. Among the creators cited are Steve Ditko, co-creator of Spider-Man and Doctor Strange, Gene Colan, co-creator of Captain Marvel and Falcon, and Lawrence Lieber, brother of Stan Lee and a contributor to Iron Man and Thor.

Litigating for them is Marc Toberoff, renowned IP attorney who led similar cases for the heirs of Superman creators Jerry Siegel and Joe Shuster and the heirs of Marvel legend Jack Kirby.

Disney is arguing that since all of these creators were under ‘work for hire’ agreements with Marvel at the time, they could not have gained any ownership over them. Under the Copyright Revision Act 1973, this would mean their heirs do not have the right to issue the termination notices. The exclusive owner under copyright would therefore be the editorial staff under Disney’s employ.

While Disney’s continued exploitation of these characters is not in any danger, they will have to pay millions if the comic artists are recognised as co-owners. Leading the case for Disney is Dan Petrocelli, who has faced Toberoff before in the Superman dispute as Warner Bros’ representative.

Unsurprisingly, the artists themselves don’t agree with Disney’s assessment. Going back to Marvel co-founder Jack Kirby, these creators saw themselves as ‘independent contractors and freelancers’. Toberoff has referred to Disney’s use of ‘work for hire’ as ‘anachronistic’ and ‘highly criticised.’

For long-time comic fans, this is hardly a novel debate. The ‘Marvel method’ that has existed since Stan Lee and Jack Kirby did not represent a traditional boss-employee relationship. Imagine a loose working atmosphere where editors and artists collaborated to turn initial ideas into iconic characters. One side might only create the look while the other creates the dialogue and backstory. Usually the latter persists for longer and that may be the artist’s contribution rather than the editors.

The Marvel method not only led many creators leaving to form their own companies, but was the basis of the previous Kirby case. However, Disney settled before the US Supreme Court gave their judgement. Whether this second dispute will lead Toberoff and Disney back into the Marble Palace remains to be seen.