New lawsuits calls into question some of Marvel’s most valuable intellectual property
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Last week Steve Ditko’s estate filed intent to sue Marvel for the rights of characters credited to the famed comics writer. Foremost among these are Spider-Man and Doctor Strange–characters who Marvel, not coincidentally, is soon to feature in major film releases. But Steve Ditko is responsible for far more characters than that. Perhaps most infamously, he crafted the conspiratorial character The Question for Charlton Comics, less well-known than the character Rohrsach from Watchmen which he directly inspired. Rohrschach, a bit of a nut prone to mentally ill reactionary rambling internal monologues, was a not particularly subtle parody of Steve Ditko’s own objectivist beliefs.
I bring this up not to try and cancel Steve Ditko, but to emphasize that he was a really weird guy. While abuse by major comic labels of their writers and artists is well-documented, Steve Ditko stands unique among his contemporaries in not really caring about personal benefit, expecting his work to matter for its artistic merit rather than its association with his brand name. Steve Ditko thought of himself as a mere hired gun who Marvel paid to create as a collaborator, and not the unique or sole creative force behind the characters most commonly associated with him.
For the Steve Ditko estate to thus consider itself the true proprieter of Steve Ditko’s output is thus quite ironic, given that Steve Ditko himself didn’t believe that. But the Steve Ditko estate’s existence itself is bizarre. Pursuant to his libertarian values, Steve Ditko didn’t leave behind a will. Nor did he leave behind children. It’s unclear who the Ditkos actually executing the will of his estate even are in relation to Steve Ditko. They may well have never actually met him.
Still, whatever Steve Ditko’s personal beliefs, surely they’re more entitled to Spider-Man profits than the Disney empire, right? Well, it’s a bit more complicated than that. Because of the convoluted way trademarks and copyrights work, the single most important Steve Ditko properties that fall under this dispute are the Spider-Man film rights. You might recall that Disney doesn’t actually own those. Sony does. In the unlikely event the Steve Ditko estate’s lawsuit actually succeeds, Disney would be a huge beneficiary because they could easily scoop them back up again, with the moral authority of the Steve Ditko estate empowering to boot.
Disney’s last attempt to grab more of the Spider-Man film profits went poorly for the corporation. Playing hardball with Sony to keep Spider-Man in the Marvel Cinematic Universe resulted in fans siding with Sony against the entertainment juggernaut, because it was plain to everyone that Disney was the one altering the terms of the deal and risking the ejection of Spider-Man from the MCU for no other reason than simple greed.
A multinational corporation itself, Sony wasn’t really the good guy in that conversation. But neither is the Steve Ditko estate, as their motivation is rather obviously not to preserve Steve Ditko’s legacy but to simply get a hold of some of that sweet, sweet Disney money in exchange for shutting up. Such is the farce of modern copyright law, where the best-case scenario often just involves empowering a new set of petty nobility.
Basically, Ditko was right. It’s completely absurd to take a frequently-modified work of fiction, one that’s completely unrecognizable compared to its original form, and act as if the original creator and only the original creator deserves any credit for its existence.
Take a look at Golden Age Superman and Batman comics, and compare them to the present-day versions. Or even the ones a couple decades afterwards. Superman is far from his current messianic archetype, unless you count the scene in the Bible where a furious Jesus drives the moneylenders from the temple. He openly tussled with corrupt Depression-era capitalists who prioritized profits over people, and would gleefully engage in property destruction just to make a moral point. And despite Bob Kane’s protestations, early Batman comics have far more of an Adam West style camp vibe than the grim, hard-boiled interpretation that’s now considered the “real” Batman.
Nevertheless, Jerry Siegel and Joe Shuster are considered the “real” creators of Superman, and Bob Kane similarly the inheritors of the Batman mythos, with a recent belated acknowledgment of Bill Finger’s contributions. But the matter of who receives royalty checks has mattered little to the evolution of these characters. What they have affected is contract law, as Marvel specifically designed work-for-hire contracts in order to avoid similar legal pitfalls. While this is questionable ethically, the main victims have always been the legions of writers and artists not allowed to partake in the profits of their creations over a character’s entire run, not just the ones who happened to be there for the first issue.
The creation of pop-culture icons and mythos extends beyond paid writers and artists. Take Scooby-Doo. Or more specifically, Fred, Daphne, and Velma. They have almost no characterization to speak of in the original cartoon. Yet a shared fever dream of 70s-era children high on sugar-coated cereal have created commonly understood assumptions in further adaptations. Fred is a noble yet dimwitted leader, Daphne the social and emotional glue, while Velma’s the smart one. To whom do we credit this collective wisdom?
Steve Ditko may have held lots of questionable opinions, but he was right in that creativity is a process, not something anyone really owns. Copyright law is a huge mess in this regard, possibly an unfixable one as lawmakers change the rules as necessary to protect big corporations, with participants like Steve Ditko’s estate only having a fighting chance because of grandfather clauses rather than actual merit. Now word comes down that Marvel has counter-sued, not only the estate of Steve Ditko, but also those of Gene Colan and Stan Lee himself. It’s going to be ugly. Whoever wins this particular fight, the rest of us will lose.