If you ever wondered how Jerry Siegel’s 1970s lawsuit against National Periodical Publications would have turned out if it had been decided today, this week’s Second Circuit ruling in the Gary Friedrich case has your answer.
As Heidi explained in her post earlier today, the Second Circuit U.S. Court of Appeals has reversed the district court’s summary judgment in favor of Marvel in Gary Friedrich’s lawsuit over the renewal of the Ghost Rider copyright. This is a different situation from the recent lawsuits by the Siegel & Shuster families — copyright is now a single term, with creators & their heirs having the right to terminate earlier transfers of copyright after a period of time specified in the 1976 Copyright Act, as amended. Instead, the Friedrich case is a repeat of the very situation that gave rise to the Second Circuit’s 1974 National Periodical Publications ruling that ended the attempt by Siegel to claim the Superman copyright’s renewal.
The connection between Friedrich and the 1974 Siegel opinion is not just a thematic coincidence. The Second Circuit’s Friedrich opinion discusses the National Periodical Publications ruling and distinguishes it from the facts in Friedrich. However, as is sometimes the situation when courts are distinguishing one case from another, what they’re really doing is trying to accommodate changes in the law and public policy.
To understand what’s going on & what it could mean for the Friedrich case going forward, let’s take a quick look at the Siegel lawsuit from the early 1970s. Back then, copyright had a 28-year term that could be renewed just one time. Siegel had transferred the Superman copyright in 1938, and in the lawsuit he was asking the court to declare that he, not National Periodical Publications, held the renewal right. The district court found that Superman was actually a work-for-hire owned by the company. The Second Circuit disagreed, noting that the Superman character was substantially developed prior to being sold to DC. Nonetheless, the Second Circuit also determined that because the contractual language stated that the company would hold the right “forever,” the original sale of rights also included the right to renew.
The Friedrich case also revolves around the questions of whether the original work was work-for-hire and whether the contract giving all rights to the company includes the right to renew the copyright. The copyright at issue: the Ghost Rider material in the character’s debut in Marvel Spotlight #5. The district court, citing the Second Circuit’s 1974 Siegel ruling, determined that because Friedrich likewise transferred all rights “forever,” Marvel held the renewal right. The Second Circuit disagreed and sent the case back down for trial.
However, the appeals court also denied Friedrich’s request for a ruling in his favor on the work-for-hire question, making note of two key aspects of the case that make things look not so good for Friedrich going forward. The court observes that Friedrich only sold his idea for Ghost Rider, not a work fixed in a tangible form – because ideas can’t be copyrighted, that would leave Marvel with both the original copyright and the right to renew. In discussing this, the appeals court further noted that there was substantial evidence that the Friedrich Ghost Rider was in fact work-for-hire, from the earlier Western version of Ghost Rider to the involvement of Stan Lee, Roy Thomas and Mike Ploog.
In essence, the Friedrich appellate court ruling is a mirror world version of the Siegel appellate ruling. Siegel lost on the renewal issue; Friedrich won. Siegel won on the work-for-hire issue, with the court noting why he and Shuster most likely held the original copyright; the Friedrich court sent the case back down with reasons why Friedrich is likely to lose.
From the perspective of copyright history, it’s a revealing outcome. Precedent under the copyright law before the 1976 Act had effectively made the renewal right useless for anyone who had transferred a copyright. It’s a line of legal interpretation that more recent courts and commentators have recognized as having been in the tank for corporate interests to the point of being unjust — indeed, this was a factor in the 1976 copyright reform, which gave subsequent creators a set procedure for re-claiming copyright through termination after 35 years.
Without the Supreme Court decisively scuttling the precedent interpreting the earlier copyright statute, the cleanest way to get around it is to claim that the facts in a current case are actually different. In the Friedrich case, the court finds some rather clever ways to qualify the contractual language as ambiguous, based in part on the fact the Friedrich contract was signed several years after Ghost Rider’s first appearance–not coincidentally, in the year that the 1976 Copyright Act took effect.
Had the earlier Siegel case been decided more recently, there’s a good chance that the Second Circuit would have found a way to achieve a similar outcome to that of Friedrich in regard to the renewal right. That said, today’s Second Circuit would have been more likely to find that Detective Comics’ creative contributions to the first Superman story gave it a substantive copyright interest in the work, at the very least as co-owners with Siegel and Shuster.