'Ghost Rider' Rides Back to Court; Hopefully Not to Theatres

Anyone remember that pair of Nicholas Cage abominations masquerading as "superhero films" from a few years back? Yeah. Those were awful. They also led to this lawsuit.

Though Marvel already had a horse-riding "Ghost Rider" character as early as 1966, freelance writer Gary Friedrich proposed a man on a motorcycle in 1972. Credit for the flaming skull head and the "pact with Satan to save [loved one's] life" cliché are still in dispute.

Back in 2011, the district court kicked Friedrich to the curb, citing a 1978 written agreement that said seems to classify all work, past and present, as “work for hire,” and giving all rights to Marvel forever. The Second Circuit, however, reversed, calling the contract “ambiguous” and holding that there were too many facts in dispute for summary judgment to be appropriate.

The “Work for Hire” Contract

We’ll start by agreeing with and paraphrasing the court: this is a terribly written contract. Here is the short version (the long version is on pages 12-13 of the opinion.)

[A]ny and all work … which have [sic] been or are in the future created, prepared or performed by SUPPLIER for the Marvel Comics Group have [sic] been and will be specially ordered or commissioned for use as a contribution to a collective work and that as such Work was and is expressly agreed to be considered a work made for hire.

SUPPLIER expressly grants to MARVEL forever all rights of any kind and nature in and to the Work, … and agrees that MARVEL is the sole and exclusive copyright proprietor thereof having all rights of ownership therein… (Emphasis added.)

Despite the poor drafting, the intent seems clear. All work, past and present, is Marvel’s property. One would think would include the copyright renewal term.

That was the district court’s reading when it granted summary judgment. The Second Circuit, however, mocked the grammar before holding that because there is a strong presumption that renewal rights aren’t granted (unless it is absolutely explicit), the language is too ambiguous for summary judgment.

Also, according to the court, such an agreement can’t reclassify past work as “for hire” ex post facto. It has to be “for hire” when created, which in this case, was around 1972.

Statute of Limitations

For the three-year SOL, we look to when Friedrich’s rights were expressly repudiated. Here, the repudiation must’ve occurred before April 4, 2004 (three years before he filed suit) and after his renewal right kicked in, in 2001.

The court seems to be bending over backwards here to avoid the SOL, glossing over a series of comic books, toys, and video game cameos that came before the horrific (yet moneymaking) movie. Apparently, an unambiguous spectacle, such as a Nicholas Cage atrocity, is required for summary judgment. And Marvel’s express repudiation of Friedrich’s right to movie proceeds didn’t happen until April 16 — eight days too late.

We can only hope that the now-revived battle over Ghost Rider in the lower courts will halt further sequels.

Related Resources:

• Gary Friedrich Enterprises v. Marvel Characters, Inc. (Second Circuit Court of Appeals)
• Marvel’s ‘Ghost Rider’ Legal Victory Overturned (The Hollywood Reporter)
• ‘Ghost Rider’ Belongs to Marvel, Federal Judge Rules (FindLaw’s Decided)