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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.

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THE LAW IS A ASS for 02/18/2003

"The Law is a Ass" Installment # 184

Originally written as installment # 297 and published in Comics Buyer's Guide issue # 1523, January 24, 2003 issue

Joe Simon, loooong before he became the editor-in-chief of Cracked, either created or co-created Captain America, he of the "mighty shield."

Not so fast, says Marvel Comics, no he didn't either.

And that's why we presently have a big lawsuit designed to settle exactly that question, who created Captain America and who's entitled to it's copyright now, fifty-plus years after Captain America # 1; Marvel, which presently owns the copyright, or Simon, who's presently trying to regain the copyright on Captain America under the trademark termination provisions of the new Copyright Law.

Yes, I said presently. I know last year Simon lost the initial trial in the lawsuit. You didn't think anything in the law could be settled that easily, did you?

So where does the law suit stand now?


Installment # 184

Let me tell you what it doesn't mean first; it doesn't mean that Joe Simon has won Captain America back.


What it means is that Joe Simon gets to have a trial to see whether he's won Cap back. I realize that last sentence might confuse those who thought Joe already had his trial and lost. But what's the law for, if not to confuse people? So let me try to unconfuse you: Joe did have his trial and he didn't.

Okay, that didn't go a long way toward unconfusing. Let me try again, this time by going back farther.

In a recent revision of the copyright law, Congress extended the life of a copyright. This was boon to corporations such as Disney or Time-Warner, which don't want to see their valuable copyrights like "Steamboat Willie" or Action Comics # 1 fall into public domain. But Congress also threw a boon to the original creators of these copyrighted properties by giving them the right to terminate a copyright fifty-six years after its creation. Using this law, fifty-six years after the publication of Captain America # 1, Joe Simon filed a notice of termination and sought to have Cap's copyright returned to him.

Marvel didn't go gentle into that good night. It filed for summary judgment and asked the trial judge to rule there are no material issues of fact for a jury to decide, because the judge can decide the case on the law alone. See, in a jury trial, a jury decides all questions of fact and a judge decides all questions of law. If a party can persuade a judge there are no questions of fact and the case can be decided solely on questions of law, the court can rule in its favor without letting the case go to the jury. Marvel argued that in 1969, Simon signed an out-of-court settlement with Marvel in an earlier lawsuit which acknowledged that his contributions to Captain America were work for hire. Marvel further argued that, as 17 U.S.C. 304(c) excepted works for hire from the copyright termination provisions, then, as a matter of law, Cap was exempt from termination.

The trial court agreed and granted Marvel's summary judgment without letting the case go to the jury. That's what I meant, when I said Simon did have his trial but didn't. He had the start of a trial, but it ended before a jury got to decide who won.

One thing that can be said about the law, other than that it's confusing, it gives the losing side another bite at the apple, called the appeal. (Apple. Appeal. That's a fruit joke, son!)

Anyway Joe Simon appealed the trial court's decision to the Second Circuit Court of Appeals. He argued that the trial court erred in granting Marvel's summary judgment, because arguing the trial court was right would be counterproductive. He cited some language from 17 U.S.C. 304(c)(5), "Termination of the grant [of copyright] may be effected notwithstanding any agreement to the contrary," and argued his 1969 settlement was just such an "agreement to the contrary," that wasn't withstanding, so had no effect on him.

Marvel, naturally, didn't agree with Simon's argument. But that's not important. What is important is that the Court of Appeals did.

The Second Circuit quoted a long-standing principle of law: summary judgment can be granted only, if the case has no genuine issue of any material fact. If there is a question of fact then the jury must make that decision and a summary judgment isn't appropriate. (That's a little trick of the trade: when in doubt start with long-standing principles of the law. Makes you look like you know what you're doing.)

Next the Second Circuit addressed the question of "whether an agreement made subsequent to a work's creation that declares it is a work created for hire constitutes an 'agreement to the contrary,' " under that "notwithstanding" clause of the copyright law. The Second Circuit examined the legislative intent and determined that Congress created the termination process "to protect authors from unequal bargaining positions" so that publishers couldn't force authors to agree their work was for hire as a condition of publication. The Second Circuit held an "agreement to the contrary" included an agreement made after a work's creation which stipulated it was work for hire. Any other construction of the law would thwart the legislative intent of protecting the author from a publisher's unfair bargaining power. Having decided that the 1969 settlement was one of those notwithstanding agreements to the contrary," the Second Circuit ruled the 1969 settlement did not preclude Simon from seeking termination of the copyright.

Marvel also argued that Simon was on staff when he created Cap and work by staffers was, by definition, work for hire, which was exempt from termination. But Simon submitted testimony that he was a freelancer and not on Timely's staff when he created Captain America. As whether Simon was on staff of freelance when he created Cap sounds suspiciously like one of those questions of fact, the Second Circuit ruled that the trial court erred in granting summary judgment and not letting a jury decide the case. So the Second Circuit reversed the trial court and remanded the matter for further proceedings.

Does this mean the case is over? Of course not. The law could never be that simple. First, Marvel can try to appeal the Second Circuit's decision to the Supreme Court. And if they take it, who knows what they'll do with the case. The Supreme Court's still rather busy cleaning all those chads out of its courtroom. Moreover, if the Supreme Court either doesn't take the case or takes it but agrees with the Second Circuit, then the case goes back for the actual trial. You know, the one that lets the jury decide who wins.

Hmmm, letting a jury decide who wins a jury trial. That's not so very confusing, now is it?


BOB INGERSOLL, lawyer, comic book fan and resident legal analyst is happy to report that the case of Simon versus Marvel is exactly what a legal analyst such as myself needs it to be: far from over.

Bob Ingersoll

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