I love John Carter, as is well-documented.  I’m also fascinated with inside Hollywood stories, so I had to read John Carter and the Gods of Hollywood.  This book by a Hollywood filmmaker examines why this movie did so poorly at the box office.

As I discussed last year, I was pleasantly surprised by the movie when I finally watched it.  In fact, after seeing it, I was disappointed that it had been written off as such a disaster.  And that meant we probably won’t be getting any sequels.  So, given all that, I had to read Michael Sellers’ book just to find out what the heck happened to my beloved John Carter!

The book starts off with some great background on Burroughs himself, along with Hollywood’s interest in his other creation, Tarzan.  Then it goes into the early efforts to put John Carter on the big screen.  While Tarzan worked well on film, trying to replicate Barsoom and its inhabitants wasn’t feasible for most of the 20th Century (although there was some early talk of doing an animated film).

Robert Rodriguez and Jon Favreau were both attached to direct a John Carter movie when Paramount had the film rights a decade ago, which they had purchased from the family company started in 1923 to protect Burroughs’ creations, Edgar Rice Burroughs Inc. (“ERB”).  Nothing ever came of these efforts, however, and the rights reverted to ERB.  But then Andrew Stanton, of Finding Nemo fame, talked Disney into acquiring the rights and letting him direct the $250 million epic.

Fast forward to the marketing for the movie.  Sellers spends much of his book detailing Disney’s failed efforts – and, more importantly, its general lack of effort – to market the movie.  At times, his book reads like a textbook on social marketing.  He also details his attempts, through his website, www.thejohncarterfiles.com, to make up for Disney’s feeble marketing.  He and a friend made a fan trailer that was better than the official trailers.  They even highlighted the fact that everyone from George Lucas to James Cameron has poached Edgar Rice Burroughs’ legacy with a great slogan: The epic tale that inspired 100 years of filmmaking.

Throughout the book runs a theme of hopefulness – the author keeps thinking that he or Disney will do something to turn around the impending disaster, although we all know nothing worked (which makes the constant dreams of a turnaround in the book a bit annoying).  The book even ends with one last wish – that the fans could join together and inspire a sequel.

I’d love a sequel but I don’t hold out much hope that it will happen after what Disney did to the first John Carter movie – a travesty Sellers documents well in his book.  My only complaints about his book have to do with the editing – there were too many typos and the book was far too long.  He could have cut out much of the detail on the social media front, along with multiple pages he included of cut and paste comments from online sources, without hurting his story.

On the legal side, it’s interesting to see that ERB is still effectively using the law to protect John Carter.  Having been written over a hundred years ago, A Princess of Mars is in the public domain.  That’s because, under U.S. copyright law, any works published before 1923 are now in the public domain.  Generally, works published now are protected for 70 years after the death of the author, although there are exceptions.  So Burroughs’ early works are now in the public domain, while the rest of his works are only protected through 2020 (seventy years after his death in 1950).  This only applies to the US, however.  In other countries, such as Great Britain, ERB still has copyright protection for all of Burroughs’ stories.

But because its US copyright protection is rapidly eroding, ERB is now turning to trademark law to protect its marks – John Carter and Tarzan primary among them – in order to keep profiting from Burroughs’ genius.  Last year it filed suit against a comic book distributor, alleging trademark infringement and unfair competition – not copyright infringement.  If only ERB could have sued Disney for bungling the marketing of the John Carter movie!

Unless you’re Stan Lee, working for Marvel seems like a frustrating gig.  As I’ve written about before, Marvel has profited mightily from the blood, sweat, and tears of many a Marvel artist, thanks to the work-for-hire rule in copyright law.  But Marvel’s standard work-for-hire defense may finally be vulnerable.

This issue has come up in Gary Friedrich Enters., LLC v. Marvel Characters, Inc., a dispute over the Marvel character Ghost Rider.  I never had much interest in the Ghost Rider character, and the movie with Nicholas Cage seemed pretty lame, but the few tastes of the comic I got from the opinion intrigued me.   (The opinion even includes the cover of the first Ghost Rider comic book, which is pretty cool!)

 Opinion at p. 5.

The character was introduced in 1972 – a motorcycle stunt driver who promised his soul to the devil, becoming a demon in exchange for saving his adoptive father from cancer.  As the front page of the comic book acknowledges, Gary Friedrich, who brought this suit, conceived of this character and wrote the story.  Stan Lee, of course, edited the story.

Friedrich filed suit a few years ago, claiming that he owns the renewal term copyright to Ghost Rider.  The district court ruled against him, finding that Marvel owned the copyright because Friedrich had assigned his rights to the renewal term copyright when he executed a form work-for-hire agreement in 1978.  Friedrich appealed this decision and the appellate court remanded the case for trial.

The appellate decision laid out the disputed facts, describing in part the inspiration for the Ghost Rider character.  Although there’s a dispute as to how the character was developed, it seems clear that Stan Lee agreed to publish the comic book in exchange for Friedrich assigning his rights in the Ghost Rider characters to Marvel, although there was never any discussion of renewal rights and no written contract.  The Ghost Rider character was very popular and Marvel ended up publishing over 300 Ghost Rider stories, including some as late as 2005.

Friedrich wrote many of the Ghost Riders stories on a freelance basis.  In 1976, Congress changed the copyright law to provide, in part, that a work created outside the scope of employment could only be a “work-for-hire” if there was an express written agreement to that effect.  See 17 U.S.C. § 101.  When Friedrich was asked to sign such an agreement in 1978, he was supposedly told that the written agreement only covered future work and that he had to sign it if he wanted to continue working with Marvel.  He was not paid for signing the agreement and, in fact, he was never hired to do any more work for Marvel.

The initial 28-year copyright term for Ghost Rider expired at the end of 2000.  Normally, Friedrich, as the original author, would have held the right to the renewal copyright that began in 2001.  See id. § 304(a)(1)(C)(i), (2)(B)(ii).  Marvel continued to use the Ghost Rider character – a fact that Friedrich only became aware of in 2004 when he learned of the plans to make a movie on his character.  Despite having his attorney assert his right to control the copyright, Marvel insisted they still owned the rights to the character under the work-for-hire law.

After filing suit, the district court found that the agreement Friedrich signed in 1978 included his assignment of all rights to both the original copyright term as well as the renewal term.  That issue (along with two other related issues) is what was addressed on appeal.

The appellate court first explained the purposes of a renewal term (of 76 years), which is to “‘provide authors a second opportunity to obtain remuneration for their
works'” and “‘to renegotiate the terms of the grant once the value of
the work has been tested.'”

The court then looked to the contract to see if that intent had been clearly expressed.  Interpreting the contract under New York state law (an issue I’ve discussed before in relation to Howard Stern’s contract dispute with Sirius), the appellate court found that it was not clear that Friedrich had assigned his renewal rights to Marvel under the 1978 agreement.  This finding was based in part on the “strong presumption against the conveyance of renewal rights” under copyright law.  The court then went on to find that the wording of the entire agreement was ambiguous and it was not clear whether it would have even covered a work created six years earlier.  Nor was it clear that the agreement addressed renewal rights.

Because the contract language was ambiguous, the court looked to evidence outside of the terms of the agreement itself to see if the parties intended to address renewal rights in the agreement.  Finding that there was a genuine dispute as to what the parties had intended (at the summary judgment stage there cannot be disagreements over facts key to resolving the legal dispute), the court sent the case back to the district court for trial.

There were two other related issues that were raised on appeal but both of those issues were also found to have factual disputes, so this decision by the appellate court didn’t resolve anything in either the plaintiff’s or defendants’ favor.  But what it means is that, unlike so many of the other legal efforts made by Marvel comic book artists, Friedrich at least has a chance to take his case to a jury.  It’s unlikely, of course, that the case will ever actually make it to trial – instead, the parties will probably settle based on the appellate court’s ruling.

It makes me happy, however, to know that at least one of the Marvel artists has a chance to get some proper compensation for his hard work and creativity!