A copyright battle could be brewing over two of the Marvel Universe’s biggest stars. Patrick S. Ditko, brother of the late artist Steve Ditko, has filed for copyright termination on both Spider-Man and Doctor Strange, characters that were first drawn by and (at least) co-created by Steve Ditko.
The termination notices were filed with the US Copyright office on August 26th.
Copyright termination is a process included in the 1976 Copyright Act, and allows creators or heirs to terminate a copyright agreement after a period of 56 years. According to the filings, the termination for both characters would go into effect in 2023 if backed up by courts.
It’s a big if. Ditko was the artist on the first appearances of both characters, in Amazing Fantasy #15 and Strange Tales #110, and drew them through their formative periods. His groundbreaking work has been heavily referenced in the MCU. But Disney is expected to fight reassignment by claiming that the work was done as “work for hire” — creative work made under WFH assigns all rights to the publisher, and cannot be reclaimed.
Several comics creators have previously filed for copyright termination, notably the Jack Kirby estate, which filed some 45 copyright termination notices on various Marvel characters during their long-running battle with Disney/Marvel. Although courts ruled that Kirby’s work was work for hire, Disney eventually settled with the family, and all seems amicable at this point.
Disney/Marvel will undoubtedly put up a similar fight to retain copyright to Spider-Man and Doctor Strange. Going against them: There are very, very few financial records from that era and Marvel is notoriously lacking in paperwork on most of their characters. Also co-creator Stan Lee is no longer alive to provide expert testimony.
Despite this, court have consistently ruled that comics characters were created under work-for-hire circumstances. Exceptions include Siegel and Shuster, who signed an incredibly bad contract for Superman, but clearly created him on their own (which is why the estate were eventually able to get credit and some compensation for Superman); and Bob Kane, who had the wherewithal to keep “created by” rights to Batman, even for the parts he didn’t create.
The aughts and ‘teens saw several older creators or their families suing for the characters they created that were now starring in multimillion-dollar movies, including Joe Simon for Captain America. None of the suits were successful except the Superman case (although that is a simplification of a very long legal battle). With the rise of vocal internet fandoms who have an opinion on everything, movie studios have learned that it’s much better to just settle than to have the unfavorable publicity of older creators, often living in poor circumstances, complaining about being ripped off.
These suits have become far less common simply because the original creators have mostly passed on, and Disney and WB have become much more savvy about dealing with comic book creators, as they discover the amount of “shut up money” needed is quite low. Thus, the Ditko copyright termination filing is perhaps the last of these that we’ll ever see.
News of the termination filing was first reported in the comments on this article about the recent “DitkoCon” and picked up on Twitter by JL Mast.
Although Ditko didn’t like to talk about his Marvel years, he remained a prolific creator and correspondent, and reports that he was a recluse are inaccurate. The DitkoCon piece has a lot of information about Ditko’s surviving family: his brother Patrick, who is the executor of Steve’s estate, and nephew Mark, who is very much the keeper of the Steve Ditko flame.
Mark is an engineer who has written his own texts on the subject, and his father, Patrick, is an architect. Mark certainly has taken it upon himself to study his uncle’s snail mail exchanges, essays published under Robin Snyder, and his comics work. My impression is that his uncle would be proud of his nephew’s journey to become the ultimate Steve Ditko historian. Mark’s brother, Pat, lives in Arizona, and enjoys his favorite pastime of hiking. (Mark also has an older brother, Stephen Paul, and two sisters, Joanna and Helena, whom I did not meet.) Both Mark and Pat regaled me with stories of Uncle Steve being very competitive during the family pinochle game. Mark mentioned that Uncle Steve kept a collection of every article he had seen on his character, Spider-Man, which meant he kept tabs on the character’s influence in the news.
Given this long-running interest in his creation, this copyright termination filing seems quite appropriate to Steve Ditko’s wishes. Hopefully the “shut up money” will be a sizable amount.
Steve wasn’t interested in putting up a fight with Marvel, but I’m fine with his family trying. Even Ayn Rand said it’s reasonable for a creator’s heirs to collect royalties for the 50 years between the death of a creator and the work entering the public domain. It’s in Disney’s best interests to negotiate a “shut up” contract with the Ditkos.
I don’t know why the writer says that this is appropriate to Steve Ditko’s wishes – Ditko has stated in several interviews that he fully understood his work for Marvel was work-for hire, and Marvel owned everything he got paid for.
Alex Harper, could you please cite and directly quote from two of the “several interviews” with Ditko you’ve seen where he says anything remotely resembling what you’ve attributed to him?
I don’t see Ditko or Lieber having much success here, especially in the case of Spider-Man, which passed from Kirby before going to Steve. It seems like he had a huge hand in what we’ve come to think of as “Spider-Man,” but unraveling what he came up with and what Stan did is going to be a huge Gordian Knot. He might have a better case with Dr. Strange, but it all seems like work-for-hire to these legally-untrained eyes. (That Marc Toberoff has anything to do with it gives off the distinct aroma of ambulance chasing.) And wasn’t Lieber an expert witness for Marvel in the Kirby trial? Don’t see how he changes sides now.
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