A “Deal with the Devil”? Ghost Rider Creator Asserts that Contract Did not Give Marvel Perpetual Ownership of Copyright in Comic Book Character

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

GhostRiderBigPoster (2)As we have previously observed, superheroes often take starring roles in disputes relating to copyright protection for fictional characters.  This makes sense, as they frequently appear in long-lived series of works in various media (comic books, television shows, films, etc.) sporting a consistent set of identifying characteristics – physical appearance, personality traits, “origin story,” and the like.  Indeed, many such disputes take it as a settled conclusion that the superhero character is entitled to copyright protection, and rather center on disagreements over which party in fact owns the right to exploit the character in new stories and new media.

Ghost Rider Enters the Fray

A recent example of the latter type of dispute has been playing out in the Southern District of New York and the Second Circuit.  Plaintiff Gary Friedrich has sued Marvel Characters and a host of other defendants for infringement of the copyright in the character of Ghost Rider, a stuntman named Johnny Blaze who, as a result of a deal with the devil, has been transformed into – in the Second Circuit’s words – a “motorcycle-riding superhero with supernatural powers and a flaming skull for a head.”

Friedrich claims he created the character of Ghost Rider in the late 1960s and early 1970s and presented a synopsis to Marvel in 1971 describing Ghost Rider’s origin story and the appearances of the main characters.  Marvel had the story illustrated by a freelance artist, and Ghost Rider debuted in a 1972 publication called Marvel Spotlight, Vol. 1, No. 5.  Friedrich filed suit in 2007 – the same year Marvel came out with a Ghost Rider movie starring Nicholas Cage – alleging that the copyright in the Ghost Rider character had reverted to him when the original term of copyright expired in 2001, and that he held the copyright for the renewal term.  Under the 1909 Copyright Act, which controls the 1972 work at issue, copyright protection was divided into separate terms, with the intention of giving authors the opportunity to renegotiate exploitation of their works after their commercial value had been established.

In late 2011, the District Court granted summary judgment for defendants, finding that Friedrich had assigned his copyright in Ghost Rider to Marvel for both the original and renewal terms of copyright protection via a 1978 contract, and denying Friedrich’s cross-motion for summary judgment on authorship.  Last month, the Second Circuit reversed and remanded the case for trial.

The Second Circuit’s Analysis

With regard to ownership of the right to renew the Ghost Rider copyright when the original term of protection expired, the Appeals Court noted that there is a strong presumption against finding that renewal rights have been conveyed.  The court found the language of the 1978 contract, which Marvel required all of its freelancers to sign shortly after the 1976 Copyright Act went into effect, to be ambiguous, and indicated that it could reasonably be construed simply as an effort to ensure that future work created by freelancers would qualify as work-for-hire under the new copyright regime.  The court observed that the contract could not retroactively make the 1972 work a work-for-hire, since that question that would turn on the circumstances surrounding the work’s creation under the 1909 Copyright Act.  Finally, the court noted that there was little evidence to suggest that the parties intended to affect renewal rights in Ghost Rider by means of a subsequent standard-form agreement that did not mention either Ghost Rider or renewal rights.  Therefore, the Second Circuit remanded for fact-finding as to the parties’ intent with respect to the 1978 agreement – with, it seems, a thumb on the scale in favor of a finding that renewal rights were not conveyed.

The Second Circuit also rejected Marvel’s alternative argument for affirmance of its summary judgment victory, based on a statute of limitations defense.  The Appeals Court found a genuine dispute in the record as to when Marvel publicly, privately, or impliedly repudiated Friedrich’s claims to copyright ownership, so as to start the statute of limitations clock running.

Finally, however, the Second Circuit upheld the District Court’s rejection of Friedrich’s cross-motion for summary judgment declaring that he was the author, or at least a co-author, of Ghost Rider.  The court found that Marvel had presented evidence supporting an alternative version of the creation of Ghost Rider, under which a jury could conclude that the comic and character were works made for hire, of which Marvel was the sole statutory author.

What Happens Next?

On remand, the District Court will conduct a bifurcated trial, to address the issue of copyright ownership first, and then, if necessary, the question of infringement.  Defendants have moved to strike plaintiff’s jury demand with regard to the first phase, which they assert is simply an equitable claim for a declaratory judgment of ownership.  Plaintiff’s response to the motion is due on August 1, and trial is scheduled to begin – before judge or jury – on November 4.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.