By: Bayani B. Loste

News has been circulating that Disney is facing copyright termination concerns with the heirs of Marvel comic book superhero creators. Back in the 1960s, when Stan Lee, et al. were churning out Spider-Man, Mighty Thor, Captain America, and the rest of the Avenger characters and stories for Marvel, they were considered freelancers under a “co-author” arrangement with the comic book publisher. After the lapse of a certain period, copyrights over the Marvel superheroes would revert to the creators’ heirs and be free to do as they please with the intellectual property.

Copyright, as everyone knows, provides a limited monopoly for creators of original artistic and literary materials (including comic book superheroes) to be compensated for reproducing said works and producing works that can be derived from the same materials. Copyright (just like patents and trademarks) is protected by jurisdiction: while intellectual property principles are commonly held, countries have their respective laws to protect IP in their territories. Even though the entire world agrees that copyrightable work is protected upon the moment of creation or authorship, term limits may be different from country to country.

In the Philippines, Republic Act No. 8295 or the Intellectual Property Code provides a 50-year term of protection in favor of the heirs after the demise of the creators. The policy here allows the creators (and their families after the creators pass away) to benefit from the artistic works monetarily. These works then become part of the public domain after the 50-year term. For the Trese comic book team of Budjette Tan and Kajo Baldisimo, assuming their publication contract follows the IP Code, they have a right to earn money from the sales of their series starting from the time when Volume 1 was published in 2005, going through their lifetime plus an additional 50 years.

The copyright of the heirs under RA 8285 also includes the right to create derivative works from the original work, which provides for adaptations (such as screenplays and movies) and alterations (“crossovers”). These “derived works” do not extend the original “lifetime plus 50” protection but are given the same but separate protection period.

For the limited Netflix series of Trese, assuming again that Tan and Baldisimo’s contract with the streaming service is consistent with the RA 8295, their derivative work is protected starting 2021 and for 50 years after the creative duo themselves start haunting Balete Drive. For both the publication of the graphic novels and the limited streaming series, the grandchildren of millennials today may be able to read and watch these materials without paying for these original works.

The situation between Disney with the Marvel superhero heirs is a bit complicated.  In its contract with the freelancers, Marvel agreed to a term over the copyright, and, after the lapse of the period, the publication company (now owned by Disney) would have to return the IP to the heirs.  Disney has settled with the heirs of Jack Kirby (of Spider-Man, X-Men, the Incredible Hulk and the Mighty Thor fame) in 2014. Now Disney is facing the heirs of Steve Ditko, Don Heck, Don Rico, and Gene Golan (Spider-Man, Doctor Strange, Black Widow, Hawkeye, Captain Marvel, Falcon, Blade, and the Wizard) in legal proceedings in the US. If no settlement is reached between the parties, some Marvel heirs will be able to control how to earn from the creative work of their parents and also how to derive more copyrightable works from the original superhero stories.

Under RA 8295, for freelance or commissioned work, the creator retains all copyright to the artistic work except for the actual work itself. Think of it as Commonwealth President Manuel L. Quezon commissioning his portrait by Fernando Amorsolo. Absent any express agreement, the President gets his painting, but the right to make reproductions of the artwork, the right to be attributed as the artist, and the right to make a screenplay from the portrait are all retained by the National Artist.

If the Marvel heirs exert their copyright in the Philippines, assuming that there is no settlement with Disney, they may be able to argue that their parents had all the copyright to the superhero IP and what Marvel had at the time the first comic books were published was only the right over the first edition release. Even if the Marvel heirs were to waive the copyright their parents had over the first edition, they could still eke out derivative works, e.g. movies and merchandize, as adaptations or alterations from the original 1960’s literary publications. This is a big ‘What If” (pun intended).

Of course, Disney will eventually settle with the Marvel heirs in this round of copyright terminations, including consolidating all the copyright (economic, moral, derivative, right of resale) to the Marvel IP. Still, it is nice to imagine the Web-Slinger traversing through Taft Avenue just in time to save the late-night LRT commuters from being eaten by a gang of aswangs while Alexandra Trese is somewhere in Quezon City investigating the “death” of the White Lady of Balete Drive?

(Bay Loste practices Intellectual Property Law and heads the IP Practice Group of the Firm. He may be reached at [email protected].)


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