Gary Friedrich vs. Marvel: is Ghost Rider in the Public Domain?



In 2007 comic book writer Gary Friedrich sued Marvel, Columbia Pictures, Sony and a long list of other companies over ownership of “Ghost Rider”, comic book character he created, with art by Mike Ploog, that appeared first on Marvel Spotlight #5, in 1972.

marvelspotlight5

Ploog had been hired by Marvel to draw Friedrich’s creation: according to Friedrich, he gave Ploog indications on how the character should have looked, thus making Friedrich more than a “co-creator” of the character. This was reflected in the original comic book credits:

ghostrider01

Friedrich claimed ownership of the character that has supposedly “reverted” to him in 2001. This meant particularly getting a fair share of royalties from movie adaptations of the character. Marvel countersued in 2010 since Friedrich was selling Ghost Rider merchandising online and at comic book conventions.
Finally, Friedrich had to apparently surrender to Marvel last year, being ordered to pay $17,000 in damages to the publisher, renouncing to further advertising himself as Ghost Rider creator and stopping the sale of any related merchandise.

One year later, it seems Friedrich’s case will go back to trial: on June 11, 2013, Second Circuit Court of Appeals judge Denny Chin overturned the original decision:

The district court held as a matter of law that plaintiff-counter-defendant-appellant Gary Friedrich assigned any rights he retained in the renewal term of the 1972 Ghost Rider copyrights to the predecessor of defendant-counter-claimant-appellee Marvel Characters, Inc. in a 1978 form work-for-hire contract. We conclude that – 4 -the contract language is ambiguous and that genuine disputes of material fact, as to the parties’ intent and other issues, preclude the granting of judgment as a matter of law.

While judge Chin made interesting statements about the contract language and the fact that a 1978 work-for-hire contract could regulate something that had been created and published 6 years before, it seems something is still missing in all this absurd story.

Judge Chin also says:

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.”

Here is a scan of the copyright notice on the first page of the comic book:

ghostrider02

Before 1989, the U.S., a missing (or wrong) copyright notice would have meant instantly falling into the public domain.
All sorts of popular works, from “Night of the Living Dead” to adult movie “Debbie Does Dallas” suffered issues like that.
The comic book had a copyright notice, at least.

But in those days, before copyright law changed in 1978 and the old 28-years renewal system disappeared, Copyright Office registration was mandatory.

Searching for post-1978 copyrighted works today is easy: it just requires a visit to Copyright.gov’s search page.

Searching for older works or their renewal notices is often more difficult. But it does not require physically visiting some office in the U.S.; many of the records are carefully scanned and archived at Archive.org.
By searching the catalogues at Internet Archive, what we get is the “Catalog of Copyright Entries: Third Series, Volume 26, Part 2″ containing records about “Periodicals, January—December 1972″.

Here is the relevant info about Marvel Spotlight:

MARVEL SPOTLIGHT. © Magazine Management
Co., Inc., Marvel Comics Group,
v.l, no .

3, May72. © 23Nov71; B718327-

4, Jun72. © 29Feb; B739641.

6, 0ct72. © 27Jun; B767424.

7, Dec72. © 22Aug; B779223-

Marvel Spotlight #5 was never properly filed with the Copyright Office, and thus never properly copyrighted.

Let’s move onto the previously mentioned Copyright.gov.

In 2007, Gary Friedrich tried to file a renewal to the Ghost Rider issue:

Type of Work: Text
Registration Number / Date: RE0000929199 / 2007-02-26
Renewal registration for: Not reg.; addedendum submitted under PL
102-307. / PUB 1972-04-30
Title: Ghost rider.
Series: Marvel spotlight ; vol. 1, no. 5
Copyright Claimant: Gary E. Friedrich (A)
Copyright Note: C.O. correspondence.
Names: Friedrich, Gary E.

Normally, a renewal request carries the number of a previous copyright registration: it basically says you are applying to extend copyright of a certain work.
Note the absurd line: “Renewal registration for: Not reg.”. There is no number here.
How could one “renew” something that was never registered in first place? And why “renew” it since no renewal was necessary under the current American copyright law?

Three years later, in 2010, even Marvel tried to “renew” something that could not be renewed, filing this:

Type of Work: Text
Registration Number / Date: RE0000931110 / 2010-12-13
Renewal registration for: Not reg.; Addendum submitted under PL
102-307. / PUB 1972-04-25
Title: Marvel Spotlight. Vol. 1, no. 5, Aug. 1972 / Artwork & text
for cover and interior story pages, including the Ghost Rider logo on
the cover by Magazine Management Company, Inc.
Copyright Claimant: Marvel Characters, Inc. (PWH)
Names: Magazine Management Company, Inc.
Marvel Characters, Inc.

They don’t even seem to agree on the date of publication. Both renewal requests mention “PL 102-307″. It stands for Public Law 102-307, Copyright Amendments Act of 1992.

Among other provisions, this law says:

Any copyright, the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured.

This means no renewal is needed, provided you have “secured” a copyright, originally, and it was still effective on January 1, 1978. But nowhere it says you could recreate a copyright for something that was not properly registered.
Finally, the fact that the work-for-hire contract between Marvel and Friedrich was signed AFTER January 1, 1978 might create further argument for a funny “legal short circuit”.

Let’s go back for a moment to the attempts Friedrich and Marvel did at registering the work with the Copyright Office. Let’s say their lawyers might argue: okay, if we could not renew, we could still be registering a new copyright.

Good idea. But the timeframe to do so, according to the current U.S. copyright law, ended in year 2000.

As we saw, Marvel Spotlight #5 appeared in 1972 and had a copyright notice in favor of Magazine Management co.; according to Circular 22 (“How to Investigate the Copyright Status of a Work”, rev.02/2013, page 3) issued by the Copyright Office,

Works published with notice prior to 1978 may be registered at any time within the first 28-year term“.

A couple other facts on the “Ghost Rider” copyright and trademark:

Marvel recycled a public domain character that originally belonged to Magazine Enterprises, after the original copyright and trademark had lapsed. The Marvel version, later renamed “Phantom Rider” after the appearance of Johnny Blaze/Ghost Rider in 1972, was co-created by Gary Friedrich, Roy Thomas and Dick Ayers. The name Phantom Rider wasn’t exactly original, too.
– In 1971, Gary Friedrich created a vigilante motorcyclist character called Hell-Rider, that appeared in two 64-page issues for defunct Skywald Publications. it also seems nobody registered it with the Copyright Office. Neither before 1978, nor within the following 28 years timeframe. Oh well.

hell-rider

Confused? I am too.

In conclusion, Marvel, Sony, Columbia and others may not have to pay millions in royalties to Mr. Friedrich. But surely I don’t see why he should be paying damages to anyone for reusing a Public Domain character.

p.s.: free legal advice. In a somewhat similar case, porn movie distributors VCX and Arrow settled out of Court, before a judge could state what the rest of the world already knows (and another judge actually stated in part at the end of the 1980s). That the works they were fighting for, had fallen in the Public Domain.