“Work for Hire,” Copyright and IP Lawsuits

By Rene Dial

It never ceases to amaze me how often we hear of lawsuits over comic book characters once the studio decides to turn it into a movie. Most recently the creator of Ghost Rider lost in court to Marvel Entertainment in a copyright lawsuit that was filed in 2007.

Not long ago I wrote an article dealing with the same subject with regard to the Avengers and the X-Men.  The family of Jack Kirby filed suit to terminate copyright grants to Marvel.  The ending in both cases was that the characters were created as works for hire belonging to the employer.  Since this subject keeps popping up I think we should have a better understanding of what a work for hire is.

A “work for hire” defined under Section 101 of the Copyright Law is

1. a work prepared by an employee within the scope of his or her employment

or

1.  a work specially ordered or commissioned for use as a contribution to a

collective work, as a part of a motion picture or other audiovisual work, as

a translation, as a supplementary work, as a compilation, as an instructional

text, as a test, as answer material for a test, or as an atlas, if the parties

expressly agree in a written instrument signed by them that the work shall

be considered a work made for hire. For the purpose of the foregoing sentence,

a “supplementary work” is a work prepared for a publication as a secondary

adjunct to a work by another author for the purpose of introducing,

concluding, illustrating, explaining, revising, commenting upon, or assisting

in the use of the other work, such as forewords, afterwords, pictorial illustrations,

maps, charts, tables, editorial notes, musical arrangements, answer

material for tests, bibliographies, appendixes, and indexes; and an “instructional

text” is a literary, pictorial, or graphic work prepared for publication

and intended to be used in systematic instructional activities.

What it boils down to is unless you have an agreement stating otherwise and someone requests and pays you for creating a work of art such as a comic book character there is a pretty good chance that the person that hired and paid you owns your creation.  I feel for artists that create these awesome characters.  Out of the hundreds if not thousands of characters they create one sticks and becomes famous and the creator gets their agreed upon paycheck while the studio makes millions if not billions of dollars.  The good is that the artist gets paid to do what they love and create while the employer foots the bill.  Bad news is they do not own their creations and have no control over the future of their creation or profits.  These artists need to take a lesson from photographers because you hire them to take pictures and somehow they still charge you for the copyright to the pictures you paid them to take!

Have  a great weekend!