Gary Friedrich Enters., LLC v. Marvel Characters, Inc.
| Decision Date | 11 June 2013 |
| Docket Number | Docket No. 12–893–cv. |
| Citation | 716 F.3d 302 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | GARY FRIEDRICH ENTERPRISES, LLC, and Gary Friedrich, Plaintiffs–Counter–Defendants–Appellants, v. MARVEL CHARACTERS, INC., a Delaware corporation, Defendant–Counter–Claimant–Appellee, Marvel Enterprises, Incorporated, a Delaware corporation, Marvel Entertainment, Incorporated, a Delaware corporation, Marvel Studios, Inc., a Delaware corporation, Hasbro, Inc., a Rhode Island corporation, Take Two Interactive Software, Inc., a Delaware corporation, Columbia Tri–Star Motion Picture Group, a joint venture, Columbia Pictures Industries, Inc., a Delaware corporation, Crystal Sky Pictures, a California corporation, Relativity Media L.L.C., a California corporation, Michael De Luca Productions, Inc., a California corporation, Sony Pictures Entertainment, Inc., Marvel Characters B.V., Marvel International Character Holdings, Inc., Marvel Worldwide, Inc., Defendants–Appellees, 3 Day Blinds, AAGlobal Industries, ABDO Publishing, Adorable Kids, Art.Com Inc., Artimonde Trading Inc., Asgard Press, AST Sportwear Inc., Becker and Mayer LLC, Berkshire Fashions, Best Brands Consumer Products Inc., Biodome, Bowen Designs, Brown Shoes, Buster Brown & Co., Buy Rite Designs, Calego International, CDVisionary, Clicks Worldwide, Corbis Corporation, Comic Images, Conopco Inc., d/b/a Unilever, d/b/a Unilever Canada, Inc., CSS Industries, DCL Motion Pictures LLC, Courage Brands Inc., DCL Motion Pictures, LLC, Desperate Enterprises, Inc., Diamond Select Toys And Collectibles LLC, Doris Kindersly Ltd., Every Pictures Tells A Story, Fantasy Flight Games, Funline Merchandise, Gamer Graphics, Gelaskins, Gentle Giant Ltd., Graphics Imaging, Hands–On Mobile America Inc., Hewlett Packard, Hot Topic, Inc., Hugh, Lauter, Levin And Associates, Jago Corp. Asia Limited, JAKKS Pacific, Inc., Jasman Asia Ltd., Jay Franco & Sons, Inc., JPI Acquisition Group, d/b/a Disguise Inc., Johnny Blaze Sportswear, K2, Inc., Kellytoy (USA), Klutz, Kotobukiya, KHQ Investment LLC, KDT USA, KSM Superhero Ltd., KSM Enterprise Inc., LaserMarch Inc., Leap Year Publishing, LF USA Inc., Lowrider Technology Group, Inc., Mad Engine Inc., Maisto International Inc., Master Replicas Inc., Mattel Inc., Mattel Europa, Mattel Asia Pacifica, Mattel Overseas, Meredith Corporation, MCA Inc., MGA Entertainment, Inc., Mforma Americas Inc., Mforma Holdings, Ltd., Medicom, Mighty Fine, Inc., Mob Town, Monogram International, MZ Berger and Company, NECA Inc., National Entertainment Collectibles Association Inc., NMTC, d/b/a Matco Tools, Inc., NR2B Research, Inc., NTD Apparel, Nubytech, Photo File, Inc., Planetwide Games, Pop Culture Graphics, Inc., R and International, Raven Software, RC2 Corporation, Rittenhouse Archive, Ltd., Sara Lee Corporation, d/b/a Klutz, Screenlife LLC, Sega Corporation, Sega of America, Inc., Sideshow Collectibles, Inc., Sota Toys LLC, Spencer Reed Accessories Ltd., Spin Master Ltd., Street Flyers, Stretch–O–Rama, Inc., Swicherz LLC, THQ Inc., TM International, d/b/a Saavi, d/b/a VSI, Upper Deck Company, Toy Island Manufacturing Company, Ltd., Toy Things, Trends International LLC, Tri–Coastal Design, Tupperware Brands Corporation, US Nutrition Inc., Ultimate Licensing Group LLC, Union Underwear Company, Inc., d/b/a Fruit of the Loom, Universal City, Universal Designs, Ltd., Vetement Adorable Too, Wagerlogic Limited, Walgreen Company, Wear Me Apparel Corp., What Kids Want International, What Kids Want, Inc., Wilton Brands, Inc., Wilton Industries Inc., Wiz Kids LLC, Yellowman LLC, York Wallcoverings, Inc., Zazzle, Inc., Zizzle Holding Limited, MVL International C.V., Marvel Entertainment, LLC, Activision Blizzard, Inc., Scholastic, Inc., DCL Motion Products, Walt Disney Company, Defendants. |
OPINION TEXT STARTS HERE
Charles S. Kramer (Joseph D. Schneider, on the brief), Riezman Berger, P.C., St. Louis, MO, and Eric W. Evans and Dawn K. O'Leary, Evans Blasi, Granite City, IL, for Plaintiffs–Counter–Defendants–Appellants.
R. Bruce Rich (Randi W. Singer, Gregory Silbert, and Adam B. Banks, on the brief), Weil, Gotshal & Manges LLP, New York, NY, and David Fleischer, Haynes and Boone, LLP, New York, NY, for Defendant–Counter–Claimant–Appellee and Defendants–Appellees.
Before: WINTER, CHIN, and DRONEY, Circuit Judges.
IMAGE
In 1972, the Marvel Comics Group published a comic book featuring the “Ghost Rider”—a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue—which sold for twenty cents—told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.
In this case, plaintiff-counter-defendant-appellant Gary Friedrich contends that he conceived the Ghost Rider, the related characters, and the origin story, and that he owns the renewal term copyrights in those works. While acknowledging that Friedrich contributed his ideas, defendant-counter-claimant-appellee Marvel Characters, Inc. (“Marvel”) contends that the Ghost Rider characters and story were created through a collaborative process with Marvel personnel and resources, and that Marvel owns the renewal rights in question.
The district court granted summary judgment in favor of Marvel on the ownership issue, holding that Friedrich had assigned any rights he had in the renewal term copyrights to Marvel when he executeda form work-for-hire agreement in 1978, six years after the initial publication of the issue in question. Friedrich and his production company, Gary Friedrich Enterprises, LLC, appeal. We vacate and remand for trial.
The facts are heavily disputed. They are presented here in the light most favorable to Friedrich, with all reasonable inferences drawn in his favor. See Garcia v. Hartford Police Dep't, 706 F.3d 120, 126–27 (2d Cir.2013) (per curiam). To the extent Friedrich argues that he is entitled to summary judgment on the issue of authorship, we construe the facts in Marvel's favor and set forth that alternative version below.
A fan of comic books and motorcycle gang movies, Friedrich began to imagine, in the 1950s, a motorcycle-riding superhero who wore black leather. The hero developed into a motorcycle stuntman when Evel Knievel rose in popularity in the late–1960's. Then in 1968, after seeing his bony-faced and red-headed friend on a motorcycle, Friedrich was inspired to give his hero a flaming skull for a head. This epiphany caused Friedrich to flesh out an origin story in which his hero became a demon after making a deal with the devil.
Friedrich was a part-time freelance comic book writer, scripting issues of existing comic book serials when solicited by Marvel 1 and other publishers. In 1971, Friedrich decided to try to publish a comic book starring his flaming-skulled hero after the Comics Code Authority relaxed its standards to permit comic books to contain more adult-themed and supernatural content. After refining the origin story and the characters' appearances, Friedrich created a written synopsis on his own initiative and at his own expense. The synopsis detailed Ghost Rider's origin story and the main characters' appearances.
Friedrich presented his written synopsis to his friend Roy Thomas, an assistant editor at Magazine Management Co., Inc. (“Magazine Mgmt.”), the then-publisher of Marvel comics.2 Thomas liked the idea, so he gave the synopsis to Marvel chief Stan Lee and arranged for Lee to meet with Friedrich. Lee agreed to publish the Ghost Rider comic book in the series Marvel Spotlight, a vehicle used to audition new superheroes. In return, Friedrich agreed to assign his rights in the Ghost Rider characters to Marvel. Friedrich and Lee never discussed renewal rights and did not execute a written agreement.
At Marvel's suggestion, Friedrich gave the synopsis to freelance artist Mike Ploog, who illustrated the comic book according to Friedrich's instructions. Friedrich supervised the entire production of the comic book, advising Ploog on how the characters should look and what to draw.
The first Ghost Rider comic was published in Marvel Spotlight, Vol. 1, No. 5 (“ Spotlight 5”) in April 1972, bearing a copyright notice in favor of “Magazine Management Co., Inc. Marvel Comics Group.” The first page of the comic, reproduced above, contained a credit box that included the following:
CONCEIVED & WRITTEN
At the same time Spotlight 5 was published, Marvel advertised the new superhero in a contemporaneous issue of The Amazing Spider–Man. In a feature called “Marvel Bullpen Bulletins,” Marvel encouraged fans to read Spotlight 5 and acknowledged that Friedrich had “dreamed the whole thing up.”
Ghost Rider quickly became one of Marvel's most popular comic book heroes. After Spotlight 5, Ghost Rider stories appeared in the next six issues of Marvel Spotlight. By May 1973, Marvel launched a separate Ghost Rider comic book series. Friedrich wrote the stories for several of these later comics on a freelance basis and does not dispute that these subsequent stories were “works made for hire.” 3 Marvel promptly filed registrations for several of these subsequent Ghost Rider comic books, even though it had not filed a registration for Spotlight 5.4 In October 1974, Marvel reprinted the original Spotlight 5 as Ghost Rider Vol. 1, No. 10, leaving Friedrich's “Conceived & Written” credit intact.
The Ghost Rider comic book series ran, in successive volumes, from 1973 to 1983, 1990 to 1998, and 2001 to 2002. In total, Marvel published over 300 comic book stories starring Ghost Rider and reprinted Spotlight 5 five times, including as late as 2005. Marvel never removed Friedrich's “Conceived & Written” credit from any of the Spotlight 5 reprints.
Friedrich continued to write Ghost Rider and...
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