Red, White, and Sued: Captain America’s Copyright Battle

Red, White, and Sued: Captain America’s Copyright Battle

February 14 is Valentine’s Day. This year, it also is the release date of the new Marvel movie “Captain America: Brave New World.” If you are planning to take your Valentine to see the film, you might also wow them with the copyright saga of Captain America.

Illustrator Joseph Simon first sketched the Captain America superhero character, and his alter ego Steve Rogers, in 1940, and it was published by Timely Comics (predecessor to Marvel Comics) that December. Sixty years later, Simon and Marvel were still battling in court over the copyright to Captain America.

Under US copyright law, when an employee (like a comic book illustrator) creates artwork (like a comic book illustration) as part of their job duties, the work-for-hire doctrine applies. This doctrine states that in such cases, the employee-illustrator does not own the copyright in the artwork created. Instead, the employer-company is the legal author and owner of the copyright. But when companies use contractors, instead of direct-hire employees, the work-for-hire doctrine may not apply, and a separate assignment is needed to transfer the copyright from the contractor to the employer.

Back in the 1940’s assignments by independent contractors could be permanent and irrevocable. Things changed in 1976, when Congress overhauled the Copyright Act. One particular reform expanded authors’ rights to allow copyright transfers and licenses to be terminated after a certain period of time. The intent was to give artists (or their heirs) a second chance to control their creative works after previously assigning their copyrights. By reclaiming rights after a set period, creators can benefit from the long-term success of their work.

In 1999, Simon filed and served Marvel with a Notice of Termination for Captain America. He did so despite having signed a settlement agreement in 1969 in a previous lawsuit, in which he stated that his contribution to Captain America was made as an employee. His status as an employee would mean that Simon never owned the copyright in Captain America, but that those rights belonged to Simon’s employer, Timely Comics/Marvel.

Marvel filed a lawsuit against Simon seeking a declaratory judgment stating that Marvel—not Simon—owned the copyright to Captain America. The case went to trial and the court sided with Marvel and held that Simon’s prior agreement barred him from invoking his termination rights.

Simon appealed, and—plot twist—the Second Circuit disagreed with the trial court. It held instead that the Copyright Act’s termination rights are inalienable, and so, it did not matter what Simon had agreed to in 1969. The case was sent back for a jury to determine whether Simon created Captain America as an employee (automatically vesting Marvel with the copyright), or as an independent contractor (in which case, Simon would be entitled to terminate the prior transfer, reverting the copyright to Simon).

The case ultimately settled in 2003, and Simon (once again) assigned any rights he had in Captain America to Marvel. It is probably safe to assume that Simon ended up with a better royalty rate than whatever he had enjoyed prior to the termination-litigation-negotiation-settlement chain of events. Since the settlement, Captain America (in various incarnations) has appeared or starred in 10 movies—which have generated around $12.5 billion USD in combined worldwide box office gross. We are left to wonder what the merchandising figures must look like.

Not all drama takes place on the silver screen. If your Valentine doesn’t share your enthusiasm for the Captain America copyright drama, it might be time to reconsider your definition of compatible. But then again, they do say opposites attract.