The Rebooted "Keep Hope Alive" (that the rights can revert back to Marvel) Thread - Part 10

[Zant]

I'm pretty sure Surfer is part of the FF rights.

 

[wobbly]

I would guess that Elektra film delayed the reversion for Daredevil,so spin offs are fair game. SONY is going spin off crazy for a reason.

Elektra was originally part of the Daredevil rights. I dont believe the same applied to the Surfer. At least from what I have heard.

The Surfer, Galactus and other characters related to him were originally a separate deal. I'm not 100% on whether the contracts were combined for ROTSS so he is now bundled with the FF, or is still his own deal (Marvel did try to get him & Galactus back as if they were a separate thing), but I would think he was combined with the FF or he would have reverted by now (it's 10 years now since FF2).

 

[Willie Lumpkin]

( Also, for those who feel glee at Marvel literally never getting the rights back, two words: statutory reversion. Marvel *will* get the rights back. Its just a question of whether it happens prior to the 2030s. )

I was wondering about that. Unless there is some clause in the contracts that gets by that, in theory Marvel could file for that next year as the original agreement (made with Constantin first and transferred to Fox later) was made in 1983.

I suspect it would go to the '90s when they created a new contract with Fox, but in any case I've heard there was a limit.

But I know very little about it. I'm certainly interested in learning more.

 

[Willie Lumpkin]

https://www.copyright.gov/docs/203.html

Termination of Transfers and Licenses Under 17 U.S.C. §203

Section 203 of the Copyright Act permits authors (or, if the authors are not alive, their surviving spouses, children or grandchildren, or executors, administrators, personal representatives or trustees) to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978 when certain conditions have been met. *Notices of termination may be served no earlier than 25 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 30 years after the execution of the grant or 25 years after publication under the grant (whichever comes first). *However, termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).

Because notices of termination under section 203 may be served, at their earliest, 25 years after the execution of a post-1977 grant, the first date on which any section 203 notices of termination could be served was January 1, 2003.

Notices of termination must comply in form, content, and manner with requirements in a regulation issued by the Register of Copyrights. The Register of Copyrights proposed a regulation governing notices of termination under section 203, and sought comments on the regulation. *The proposed regulation was based on the existing regulation governing notices of termination under section 304 of the Copyright Act. *Section 304 permits termination of grants of copyright assignments and licenses during the extended renewal term for pre-1978 works, and authors and other qualified successors have been serving notices of termination under section 304 since 1978.

On December 23, 2002, the Register published an interim regulation virtually identical to the proposed regulation, effective January 1, 2003, until the effective date of a final regulation.

On April 8, following a public comment period on the interim regulation, the Register published a final regulation, which is effective May 8, 2003.

 

[Willie Lumpkin]

From this ( https://www.wired.com/1994/09/fan-four/ ), it looks like Fox had the rights in '94.

*Edit* It seems like a worst case scenario would have Marvel serving notice in 2024 with full reversion in 2034. But it could be sooner than that depending on interpretation and details I'm not sure of.

 

[Spiderine]

The Surfer, Galactus and other characters related to him were originally a separate deal. I'm not 100% on whether the contracts were combined for ROTSS so he is now bundled with the FF, or is still his own deal (Marvel did try to get him & Galactus back as if they were a separate thing), but I would think he was combined with the FF or he would have reverted by now (it's 10 years now since FF2).

But would making a separate Surfer film extend the rights of the FF property like Elektra did for DD if it wasnt originally part of the bundle? Thats what Im wondering.

 

[Vader's Fist]

The rights deadline is 2022. Ok, that's fine. Something that I've recently become curious about though is when in 2022 do they have to return by. Or is it a case that they automatically return at midnight on December 31st, 2021? The last part sounds like a stupid question, lol, but it's still one I wouldn't mind knowing the answer to.

 

[terry78]

A Silver Surfer movie is something I really think needs to be done, as his entire origin is an epic unto itself. If they could just get their collective **** together.

 

[Zarex]

After what FOX did with FFINO its troubling to think of what a low budget, "grounded" Surfer would look like.

 

[wobbly]

But would making a separate Surfer film extend the rights of the FF property like Elektra did for DD if it wasnt originally part of the bundle? Thats what Im wondering.

Possibly. It depends on how the contract was revised for ROTSS.

Thinking about it Marvel may have forseen that possibility after Elektra and made sure Fox couldn't use that loophole.

 

[Chris B]

The rights deadline is 2022. Ok, that's fine. Something that I've recently become curious about though is when in 2022 do they have to return by. Or is it a case that they automatically return at midnight on December 31st, 2021? The last part sounds like a stupid question, lol, but it's still one I wouldn't mind knowing the answer to.

I think its been said that Fox has seven years since the release of the previous film to make another movie in the case of the FF. So that would mean they would have to have another film in production by August 2022 (Trank's film came out in August 2015 as you will likely recall) or else the rights will automatically revert to Marvel.

 

[ADollarADay]

These are things Marvel could have asked for instead of FF movie rights:
- Higher fees for extension rights to XMen and FF (after every movie Fox probably has to pay a fee to extend the rights, like Sony has to)
- Higher percentage of the BO gross for XMen, FF, Deadpool (it was said they get 2% for XMen and presumably FF. Deadpool is a little higher, but probably only about 5%)
- Different gap to make FF movies (I'm assuming it's 6 years 11 months to start production, 8 years 11 months to release. Spiderman is 3 years 9 months and 5 years 9 months respectively)
- Rights to certain characters or things (such as ability to use the words mutant)
- Higher participation than your average TV show

We all say that Fox won't make another Fantastic Four film, which is more than likely true. However, what's to stop them making something like a Silver Surfer spin off, delaying the rights reversion even further? I hate to be that guy who punctures people's hope, but it doesn't seem like a scenario anyone else is considering.

They might have to use FF in the title, IIRC Sony has to use Spiderman in the title to keep the rights, presumably it's the same with X-Men. So Fox couldn't do Silver Surfer, Galactus, Doom, Reed and Ben, Sue and Johnny, etc for the next 20 years and keep the rights.

( Also, for those who feel glee at Marvel literally never getting the rights back, two words: statutory reversion. Marvel *will* get the rights back. Its just a question of whether it happens prior to the 2030s. )

I think that is true for authors, not sure if it's true for companies. I did some brief research, but not extensive, so if you know more, please provide some insight. For those who don't know, he's talking about the rights reverting back to its owner after 35 years. That's why James Cameron will get the rights to Terminator in 2019.

FF was signed away in 1986, but that might have been some amendment in the late 1990s, early 2000s. X-Men in 1993, Spiderman in the late 90s, Deadpool in early 2000s. If statutory reversion is true for companies, then FF could come back by 2021 and X-Men by 2028.

I was wondering about that. Unless there is some clause in the contracts that gets by that, in theory Marvel could file for that next year as the original agreement (made with Constantin first and transferred to Fox later) was made in 1983.

Have you read the MCA agreement with Marvel for theme park rights? I'm not a lawyer, so I don't know if those would revert as well (if statutory applies to companies).

Litigate the hell out of Fox if they try anything again.

That's something we have discussed in the past. After Amazing Spiderman 2, Perlmutter sent an email to Sony saying they were incredibly concerned about the quality of Spidey and whatnot. Obviously they didn't take them to court or anything, but they made it seem like litigation could be possible if the movie was low quality. It's hard to say what "low quality" is though, especially after you spend 100MM on a movie. Just because it sucked doesn't mean the care and effort wasn't put on it. Litigation over something like this is something Marvel/Disney wants to avoid.

From this ( https://www.wired.com/1994/09/fan-four/ ), it looks like Fox had the rights in '94.

*Edit* It seems like a worst case scenario would have Marvel serving notice in 2024 with full reversion in 2034. But it could be sooner than that depending on interpretation and details I'm not sure of.

25 years after 1994 is 2019 with reversion in 2029 (and 2018/2029 for XMen). I think that's a best case scenario though because we don't know if statutory reversion applies to companies.

 

[Willie Lumpkin]

I think that is true for authors, not sure if it's true for companies. I did some brief research, but not extensive, so if you know more, please provide some insight. For those who don't know, he's talking about the rights reverting back to its owner after 35 years. That's why James Cameron will get the rights to Terminator in 2019.




Have you read the MCA agreement with Marvel for theme park rights? I'm not a lawyer, so I don't know if those would revert as well (if statutory applies to companies).




25 years after 1994 is 2019 with reversion in 2029 (and 2018/2029 for XMen). I think that's a best case scenario though because we don't know if statutory reversion applies to companies.

This should come with a BIG grain of salt because I'm not a lawyer and am only going off a couple paragraphs on the internet, but with that disclaimer in place, here's my take.

Let's start with this: "authors (or, if the authors are not alive, their surviving spouses, children or grandchildren, or executors, administrators, personal representatives or trustees)"


In this case, the authors would seem to be Kirby/Lee, but since the characters were created while Kirby and Lee were working for a corporate entity (Marvel Comics), Marvel is technically the "author" (I wrote a patent, but I did so while employed by a corporation, so even though my name is on it and I did the work, they own everything).

So in answer to your question 'Does this apply to companies', yes, I would be willing to bet Marvel is considered the "author" of these characters.

The big question I'm stuck on is: Do these licenses include the "right of publication". My gut tells me 'no' - Marvel is still publishing, so the studios don't have the right of publication.

That is a key detail because it looks like notification can be given after 25 years, but termination can't happen until 35 years if the right of publication isn't licensed, but that goes to 30 and 40 if the right of publication is included.

So the most conservative interpretation would be notice in 2024 and termination in 2034, but the more I read and think about it, the more I believe the most likely scenario is Marvel can serve notice in 2019 and terminate in 2029.


And it's a near certainty Marvel will give notice on the first day they are legally able. So Marvel will probably be sending a letter in two years, and that will give Fox 10 years from that point to get whatever they can out of the rights.

That would seem to limit the possibility that Fox can just continue to make crap films and hold on to the rights forever. At best, it seems Fox might be able to squeeze three FF films out by 2029, and that would seem to reduce the already slim likelihood they would try again.

 

[wobbly]

All the example cases I've seen for statutory reversion do apply to individuals, but I would have thought a company would hold that same right. For example had the Kirby estate won their case against Marvel the copyright for many characters would have reverted to them, and that would have affected current deals with Sony & Fox too.

What I take from that is Marvel are the creators and company or no, they should have the same rights as an individual creator.... Maybe, lol. I'm not a lawyer, but that seems like the logical conclusion.

 

[Vader's Fist]

Just a little observation here, but after looking back through this thread, it's ironic to think that the company who's film rights are in total chaos (Marvel), is wiping the floor with the company who's film rights are all safely under one roof (DC). Funny how life works sometimes.

 

[Dark Raven]

Just a little observation here, but after looking back through this thread, it's ironic to think that the company who's film rights are in total chaos (Marvel), is wiping the floor with the company who's film rights are all safely under one roof (DC). Funny how life works sometimes.

You should look back further in the thread to 2015, if that's possible. It would be a laugh.

 

[ADollarADay]

So in answer to your question 'Does this apply to companies', yes, I would be willing to bet Marvel is considered the "author" of these characters.

The big question I'm stuck on is: Do these licenses include the "right of publication". My gut tells me 'no' - Marvel is still publishing, so the studios don't have the right of publication.

That is a key detail because it looks like notification can be given after 25 years, but termination can't happen until 35 years if the right of publication isn't licensed, but that goes to 30 and 40 if the right of publication is included.

So the most conservative interpretation would be notice in 2024 and termination in 2034, but the more I read and think about it, the more I believe the most likely scenario is Marvel can serve notice in 2019 and terminate in 2029.


And it's a near certainty Marvel will give notice on the first day they are legally able. So Marvel will probably be sending a letter in two years, and that will give Fox 10 years from that point to get whatever they can out of the rights.

That would seem to limit the possibility that Fox can just continue to make crap films and hold on to the rights forever. At best, it seems Fox might be able to squeeze three FF films out by 2029, and that would seem to reduce the already slim likelihood they would try again.

I do hope you're right, but I have a feeling that it is only relevant to authors, not private entities. I would think we would be hearing people talking about it now if Marvel could do that because 2018 is 25 years since the 1993 deal between Marvel and Fox on the XMen and the MCA/Marvel contract on theme park rights.

 

[ADollarADay]

That's an overstatement. It's not like DC books are selling astronomically or are, at least in my opinion, anything fantastic themselves. They're just beating Marvel's due to Marvel going downhill. Admittedly though, Marvel editorial has been making just awful decisions for a few years in a row now, so I won't defend that at all.
Marvel editorial: Let's ditch all our most popular characters all at once! What could go wrong!

DC is not even beating Marvel in comics, a niche market, they just closed the gap. That's all.

All the example cases I've seen for statutory reversion do apply to individuals, but I would have thought a company would hold that same right. For example had the Kirby estate won their case against Marvel the copyright for many characters would have reverted to them, and that would have affected current deals with Sony & Fox too.

What I take from that is Marvel are the creators and company or no, they should have the same rights as an individual creator.... Maybe, lol. I'm not a lawyer, but that seems like the logical conclusion.

If that's the case, then someone would have ran a podcast or something on this by now. Not only would Marvel get FF, but XMen, Hulk, Namor, Spiderman, etc in a decade or so at the latest.

If that's the case though, I can see why Disney would greenlight the horrible spiderman deal.

 

[Willie Lumpkin]

I do hope you're right, but I have a feeling that it is only relevant to authors, not private entities.

I'm nearly certain "author" as a legal term isn't limited to individuals. Think about this: Some authors incorporate themselves for various reasons. I highly doubt those authors lose their rights once their copyrights are owned by their corporate entity rather than them personally.

 

[Dark Raven]

This might possibly be the most legal thread on the Hype. Many of the posts over the years have just been about intellectual property law.

 

[ADollarADay]

I'm nearly certain "author" as a legal term isn't limited to individuals. Think about this: Some authors incorporate themselves for various reasons. I highly doubt those authors lose their rights once their copyrights are owned by their corporate entity rather than them personally.

I've done some more research and I'm finding conflicting statements, but it seems you are correct. Companies can be authors, and by that rationale, Marvel could invoke the statutory reversion next year for XMen and 2 years from now for FF and theme park rights, presumably around that time for Hulk and everything else, 2024 would be Spiderman. Deadpool would be a few years later.

I'm still not convinced though. Iger didn't say anything about being asked on theme park or movie rights with other studios, universal exec said theme park rights were with them forever if they wanted, Lucas never invoked such rights for SW: ANH, etc. Furthermore, a company authoring a copyright means that copyright pretty much never expires.

EDIT: Lucas couldn't get the rights to SW: ANH back because license was granted in 1977 and the statutory reversion is for work granted after 01/01/1978.

 

[wobbly]

If that's the case, then someone would have ran a podcast or something on this by now. Not only would Marvel get FF, but XMen, Hulk, Namor, Spiderman, etc in a decade or so at the latest.

If that's the case though, I can see why Disney would greenlight the horrible spiderman deal.

I can only think of a couple of possibilities.

1) It might indeed be that a company cannot pursue statutory reversion as an individual can. I don't see why they can't have that same right, but like I said before, I aint a lawyer.

2) They could, but the contracts (written when Marvel were gullible noobs at the movie rights game) might have clauses that cover the studios butts against that outcome (the old 'perpetuity' gotcha). Statutory reversion was a thing before they made these deals so it wouldn't be out of bounds to think the studio suits knew how to cover that one. They hosed Marvel on near everything else after all.

In the Kirby case, had they took it to court and won, any 'perpetuity' agreements made by Marvel for the characters handed back to his estate would have been rendered void (afaik).

Regarding the theme parks I'm guessing that one's different as it involves real estate purpose built and continually maintained for Marvel attractions. Movies, Tv Shows, cartoons, etc are disposable entertainment at the end of day, but bricks and mortar is a different beast. Would imagine there's more protection for the company licensing, building, promoting and maintaining those rides. Maybe...

 

[ADollarADay]

I can only think of a couple of possibilities.

1) It might indeed be that a company cannot pursue statutory reversion as an individual can. I don't see why they can't have that same right, but like I said before, I aint a lawyer.

2) They could, but the contracts (written when Marvel were gullible noobs at the movie rights game) might have clauses that cover the studios butts against that outcome (the old 'perpetuity' gotcha). Statutory reversion was a thing before they made these deals so it wouldn't be out of bounds to think the studio suits knew how to cover that one. They hosed Marvel on near everything else after all.

In the Kirby case, had they took it to court and won, any 'perpetuity' agreements made by Marvel for the characters handed back to his estate would have been rendered void (afaik).

Regarding the theme parks I'm guessing that one's different as it involves real estate purpose built and continually maintained for Marvel attractions. Movies, Tv Shows, cartoons, etc are disposable entertainment at the end of day, but bricks and mortar is a different beast. Would imagine there's more protection for the company licensing, building, promoting and maintaining those rides. Maybe...

I don't think B is really possible in this circumstance. Cameron sold Terminator rights for a dollar (lol) and no other contingencies other than he couldn't be fired as a director for 1984's Terminator. Yet, he's still getting it back next year. I'm actually doing some research on this right now and have made no progress whatsoever.

Section 203 says nothing about brick and mortar being different. It's "except work for hire, the exclusive or nonexclusive grant of a transfer or license of copyright...is subject to termination"

 

[Willie Lumpkin]

I've done some more research and I'm finding conflicting statements, but it seems you are correct. Companies can be authors, and by that rationale, Marvel could invoke the statutory reversion next year for XMen and 2 years from now for FF and theme park rights, presumably around that time for Hulk and everything else, 2024 would be Spiderman. Deadpool would be a few years later.

I'm still not convinced though. Iger didn't say anything about being asked on theme park or movie rights with other studios, universal exec said theme park rights were with them forever if they wanted, Lucas never invoked such rights for SW: ANH, etc. Furthermore, a company authoring a copyright means that copyright pretty much never expires.

EDIT: Lucas couldn't get the rights to SW: ANH back because license was granted in 1977 and the statutory reversion is for work granted after 01/01/1978.

As you point out, Marvel wouldn't have even sent any letters yet, and as long as they haven't sent any letters, based solely on the contracts, there probably are no limits. And until that letter is sent, I don't think either studio will want to make a big deal about the fact a letter could come.

Just because Marvel may be able to legally send a letter next year on X-Men doesn't mean they will ( though I think most of us will agree Marvel isn't likely to just let Fox slide even if they're happy with what they're doing on X-Men ).

And here's a possibility - Marvel could offer to give Fox a couple extra years on X-Men if Fox turns over FF now.

 

[Willie Lumpkin]

A marriage is a contract that is never-ending... until one party dies or files for divorce. We don't really spend a lot of time thinking about or talking about the idea that someone can file for divorce until it actually happens, and I think that's the situation here.

Until Marvel actually files for divorce, I don't think either Fox or Marvel are going to say: " Don't forget, Marvel could file for divorce next year."