Wednesday, June 12, 2013

Gary Friedrich Can Take His Ghost Rider Case to Court

Reversing a lower court’s decision, Gary Friedrich will be allowed to take his case for the ownership of the copyright of Ghost Rider to a jury. Two years ago a federal judge ruled against his case going to trial, contending that the evidence was overwhelming against Friedrich’s claim that he, alone, created the Ghost Rider and had the right to reclaim ownership when it became due under the copyright laws.  That decision was overturned by a three judges on a higher Federal Court on Tuesday.

This is a is a limited victory. There is no guarantee that Friedrich will win at trial, it just means that the facts of the case must be decided by a jury, not by the judge who first ruled on the case.  

Briefly the copyright law allows a creator to regain, after 28 years, a copyrighted item he has sold. he Ghost Rider was introduced in Marvel Spotlight #2. Friedrich contends that was the original creator of Ghost Rider and that this was not a “work for hire" situation where Marvel would be considered the original copyright owner. Work for hire means that he was given an assignment from Marvel and, working with others, created this character for Marvel. Marvel claims that Ghost Rider and it’s characters were created through a collaborative process with Marvel’s personnel.

Now a jury will have to decide who create Ghost Rider, was it Friedrich alone, or with others working for Marvel.

Here is what Roy Thomas had to say in an interview with John Cooke a decade ago:

Roy Thomas: “I had made up a character as a villain in Daredevil — a very lackluster character — called Stunt-Master...a motorcyclist. Anyway, when Gary Friedrich started writing Daredevil, he said, “Instead of Stunt-Master, I’d like to make the villain a really weird motorcycle-riding character called Ghost Rider.” He didn’t describe him. I said, “Yeah, Gary, there’s only one thing wrong with it,” and he kind of looked at me weird, because we were old friends from Missouri, and I said, “That’s too good an idea to be just a villain in Daredevil. He should start out right away in his own book.” When Gary wasn’t there the day we were going to design it, Mike Ploog, who was going to be the artist, and I designed the character. I had this idea for the skull-head, something like Elvis’ 1968 Special jumpsuit, and so forth, and Ploog put the fire on the head, just because he thought it looked nice. Gary liked it, so they went off and did it in back office for three hours.”

A ruling for Friedrich means that Thomas and Ploog were legally not the co-creators of Ghost Rider, something many fans might be uncomfortable with.

Friedrich had claimed and was awarded received copyright registration for his work in Marvel Spotlight #5. He later sued Marvel and their licensees for copyright infringement and other claims.

The first judge ruled that Friedrich signed a form that said he gave "to Marvel forever all rights of any kind and nature in and to the Work." Now, Judge Denny Chin says that the 1978 contract "is ambiguous on its face,” because it is "ungrammatical and awkwardly phrased. " And it was not clear "whether it covered a work published six years earlier" and "whether it conveys renewal rights… "The contract contains no explicit reference to renewal rights and most of the language merely tracks the 1976 Act's definition of 'work made for hire,'" writes Judge Chin.

In other words, Judge Chin wrote that a 1978 work for hire contract would not necessarily  cover work that was done years earlier.  However, Friedrich could still lose this case over the issue of the statute of limitations having run out.

 "The Agreement could reasonably be construed as a form work-for-hire contract having nothing to do with renewal rights. "Spotlight 5 had been published six years earlier by a different corporate entity (Magazine Mgmt.) and had grown so popular that Marvel had already reprinted it once and had launched a separate Ghost Rider comic book series. Given that context, it is doubtful the parties intended to convey rights in the valuable Ghost Rider copyright without explicitly referencing it. It is more likely that the Agreement only covered ongoing or future work. Hence, there is a genuine dispute regarding the parties' intent for this form contract to cover Ghost Rider."
The appeals court wrote: "When construed in Marvel's favor, the record reveals that Friedrich had nothing more than an uncopyrightable idea for a motorcycle-riding character when he presented it to Marvel because he had not yet fixed the idea into a tangible medium."

The appeals court states that a jury could reasonably conclude that artists and others at Marvel at the time developed Ghost Rider through collaborative efforts, which would indeed make it a "work made for hire" and Marvel, the sole statutory author. But that will be decided at trial, assuming there's no settlement or some unexpected twist. 

Gary Friedrich had previously created Hell-Rider a short-lived, black-and-white comic for Skywald Publications. It lasted two issues, (Aug. & Oct. 1971). Brick Reese had a bike with many gadgets, including a flamethrower. He gained temporary super-strength courtesy of the experimental drug Q-47.

Below are the actual court papers.

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