Robot 6

Gary Friedrich appeals Ghost Rider ruling

Ghost Rider co-creator Gary Friedrich has appealed a December 2011 court ruling that he gave up all claims to the fiery spirit of vengeance when he endorsed checks from Marvel’s predecessor 40 years ago.

The writer filed a lawsuit in April 2007, shortly after the release of Columbia Pictures’ Ghost Rider movie, accusing the studio, Marvel, Hasbro and other companies of copyright infringement, false advertising and unfair competition, among other counts, contending he had regained the copyright to the character some six years earlier. Friedrich argued he created Johnny Blaze/Ghost Rider in 1968 and later agreed to publish the character through Magazine Management, which eventually became Marvel Entertainment. Under the agreement, the publisher held the copyright to the character’s origin story in 1972′s Marvel Spotlight #5, and to subsequent Ghost Rider works. However, Friedrich alleged the company never registered the work with the U.S. Copyright Office, permitting the rights to revert to him in 2001.

Marvel fired back in 2010, accusing Friedrich of violating its trademark by using the phrase “Ghost Rider” and selling unauthorized posters, cards and T-shirts online and at comic conventions. In December 2011, a federal judge rejected Friedrich’s lawsuit, finding the writer gave up ownership to the property when he endorsed checks that contained language relinquishing rights to Marvel’s predecessors. The judge said Friedrich signed over all claims to the character in 1971 and again in 1978 in exchange for the possibility of more freelance work for the publisher. Two months later, Marvel agreed to abandon its countersuit if Friedrich would pay $17,000 in damages and stop selling unauthorized Ghost Rider merchandise, a move that drew sharp criticism from creators and fans alike.

But Daniel Best now reports Friedrich filed an appeal earlier this month with the 2nd Circuit, arguing most notably that U.S. District Judge Katherine Forrest erred when she ruled the language on the back of Marvel paychecks in the earlier 1970s and in the 1978 freelance contract — both loom large in any discussion of creator rights in that era — were sufficient to constitute a transfer of copyright. Friedrich quibbles with the language of the standard 1978 agreement, in which a creator granted to Marvel “forever” all rights to a work and agreed “not to contest Marvel’s exclusive, complete and unrestricted ownership.” More importantly, however, his attorney reasserts the claim that the agreement was entered into under duress, with Friedrich told “if I wanted to continue to work for Marvel that I would have to sign it.”

Best, who posts Friedrich’s opening brief, also notes what he views as a potential oversight in the case: When Friedrich was deposed, he was asked whether he was aware of any other freelance writer working for Marvel between 1971 and 1978 who owned the rights to any of the characters or stories. While he replied no, but Best points out that the 1978 Silver Surfer graphic novel lists Stan Lee and Jack Kirby as the copyright holders (a scan of the page appears on his website). However, that seems as if it could be easily explained as typographical or clerical error made by Simon & Schuster, which actually published the book. (In fact, the paragraph beneath specifies “this book is based on material copyrighted by Marvel in which all rights are reserved.”)

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19 Comments

Alright enough man. I donated to his case a few months ago and am happy to do it but if I hear about him needing money again I’m going to be a little annoyed. When i was 16 I totaled the car my parents gave me, it was an old car that was clearly on its last legs but still a wreck is a wreck. They gave me a new one about a year later and it wasn’t long before I put a good sized dent in the thing. Now I know how my dad felt.

I hope Friedrich argues his cause loudly and for a long time to come.

Chris Jones
July 31, 2012 at 3:31 pm

“I hope Friedrich argues his cause loudly and for a long time to come.”

You must be his lawyer.

Seriously though I wish him well and I’d love for ALL the creators of Ghost Rider to get what they deserve.

^I absolutely agree. I think the whole “Roy Thomas and Mike Ploog didn’t get their fair share so Friedrich shouldn’t either” argument that some people have been using has been beyond laughable.

Knut Robert Knutsen

July 31, 2012 at 4:54 pm

The Silver Surfer graphic novel and the circumstances around it have been discussed up-and-down in the Comics Journal and elsewhere decades ago. Yes, it’s copyright Lee and Kirby. That was a condition for Kirby doing work with Lee and on the character again. And the only way for Marvel to work around company policy to do that at the time was to license Lee and Kirby to do the book through Simon & Schuster.

Far from poking holes in the claim that Marvel didn’t share copyrights at the time, this affirms it. If Lee and Kirby needed to go outside Marvel to get copyrights (only to the book itself, not any claim to pre-existing characters, copyrights or trademarks) then how could Friedrich get such a deal inside Marvel?

“I think the whole “Roy Thomas and Mike Ploog didn’t get their fair share so Friedrich shouldn’t either” argument that some people have been using has been beyond laughable.”

That’s not really the argument. On Friedrich’s claim that he created the character then sold it to Marvel (which is necessary for there to be a reversal of rights situation), the involvement of Thomas (as defacto editor) instructing specific changes (including the use of a trademark already owned by Marvel) and assigning Ploog to design and draw the character, makes it a work-for-hire situation. So he has no legal claim to get a reversal of rights.

Add to this that Friedrich had done another Motorcycle hero for Skywald a few years earlier called Hellrider. According to the version of events given by Thomas and Ploog (and partly Friedrich) what Friedrich brought with him into the discussion of Ghost Rider was essentially very similar to Hellrider, which was copyright to Skywald and unusable to Marvel as a concept. Thomas introduced significant elements from his own Stunt Rider character and the original Western Ghost Rider character and Ploog added the designs, possibly the flaming skull.

All of this just bolsters the case that this was a WFH character. The editorial and financial framework was there and the character without the editorial contribution cannot be Ghost Rider but has to be something else.

The “back of the check” contract, although it may come across as underhanded, can only be seen as “duress” if it’s the first time you sign it. If you’ve done work, expected to be paid and then got a contract forced on you after the work is done and before you get what you’re entitled to. Friedrich had worked for Marvel for some time, reading and signing that contract several times over, before working on Ghost Rider.

It is when we come to the follow-up assertion that even IF the character was created WFH, Friedrich was somehow MORALLY entitled to a share, that the argument then becomes “what about the others involved in creating and shaping the characters/property/mythology used in the comics series/films?” If we’re talking about a “moral” claim to money based on actual work, not legal niceties, then Friedrich clearly wouldn’t be the only claimant.

So it’s not “Thomas didn’t get anything, so Friedrich shouldn’t either”. It’s neither that simple nor that petty nor that devoid of sound legal argument.

The sad fact is that Ghost Rider as a character is so clearly NOT something that Friedrich could possibly lay any legal claim to that his lawyer ought to be disbarred for malpractice if he said there was a case. This is why it would ridiculous for Marvel to settle. Because his claim is so absurd (legally) that there are dozens of creators whose cases have no legal validity, yet that are closer to legal validity than this, who might be encouraged to sue if this case settles and he makes money from it.

Best case scenario: the Friedrich appeal is simply denied. Worst case: Marvel’s countersuits get thrown back in and Friedrich lands in REAL trouble.

Okay, I am sick of all this. If I had the chance, I would march right down to that courthouse, bang the door open, walk right to the middle between the defendant/prosecutor tables and the judge’s desk, look all parties straight in the eye, and say these words:

“Ladies and gentlemen–and I DO use that term loosely–please, please lend me a moment of your time. Once I am finished, I will escort myself out of the courtroom and you may continue. I have many a thing to say, but let me start with this: this trial is a sham, nothing more than yet another prolonged legal war that, if not ended soon, will wind up like Vietnam, Iraq and Afghanistan. So, let me make this FACT clear: Gary Friedrich is NOT the sole creator of Johnny Blaze, the SECOND character called Ghost Rider. MARVEL is not the creator, nor should the company be the sole owner. The character, and everything about him that appeared in Marvel Spotlight #5, was created by Gary Friedrich, Roy Thomas, AND Mike Ploog. Not one man, not two men, not an entire company–THREE men, combining their unusual and even intriguing ideas into one flaming skull-headed, motorcycle-riding package. THOSE three are the creators of the character, who at best, is a cult favorite. So listen here and listen now–END this travesty of justice by simply doing the following: Marvel, give those three their dues, and stop wasting your money and the taxpayer’s money on yet another legal Iraq. Give all three of them co-ownership of the character. They own a combined half of the character, you own half, both of you profit from the character–if that does not equal ‘win-win’, I don’t know what does. But please, PLEASE stop wasting precious time, money, breath, and other resources trying to strip a guy of the one thing in his life he contributed to the vast landscape that is American pop culture. Thank you, and good day.” And true to my word, I would leave the courtroom on my own.

Here’s my feelings on the matter.

A lot of writers/artists have entered these “work for hire” deals with ideas/characters that they had in mind before they entered into a contractual relationship with “ABC Comic Company”, signed the contract willingly acknowledging it was indeed “work for hire” and then claimed years later that it couldn’t be “work for hire” because 1) they had the “idea” pre-company relationship/publishing 2) it was signed “under duress”

First of all, if you’re a FREELANCER, making conditions of employment/getting work known to the “worker” previous to getting more work is not “under duress” any more than saying if you want to work here you have to wear a suit. They’re essentially “at will” employees. I have a right to hire him or not the next time, for any reason at all, as long as I’m not being discriminatory (and making it known).

As for bringing the “ideas” to the company, being that as an adult we’re not blank slates, I’d assume we all bring some previous knowledge/actions/tidbits before we walk into a company, moreso for a creative type. If you walk into Company ABC with a “new creation” that you had thought of previously pre-contract and tried to pass it off as “work product”, I’d say at that point it becomes work product, unless you were trying to pull fraud upon the company.

It’s a bit different with Siegel & Shuster because when they brought Superman to DC he was alredy a fully established “idea” that they had shopped around for 2 years before entering into their contract with DC. Even then, they sold the character to DC for some cash as well as ongoing studio work. They entered into a crappy deal, but a deal nonetheless.

That being said, since Shuster & Siegel, creators at DC/Marvel were for the most part very aware of the problems of “work for hire” at the Big Two. Friedrich was of the generation of creators who knew this tale inside out, so for him to cough up the same ignorance is shameful.

A crappy deal, is still a deal.

If being told you won’t get paid unless you sign a check that steals everything you’ve made isn’t duress I don’t know is.
Such bullsh*t.
Seriously, it’s no less duress than Marvel saying they’ll break your fingers if you don’t give ‘em everything.

Knut Robert Knutsen

August 1, 2012 at 12:48 am

Think of it this way: If a girl tells you she won’t sleep with you unless you marry her, you can’t come back years later and say “I want an annulment, I only married her out of duress”.

Marvel, in order to maintain control over their characters and library of stories the way they wanted to, needed people to do work-for-hire. So they told people: if you want to work for us, those are the conditions. And then they re-affirmed that by printing a contract on the back of the check.

This is no different than any other job. Every workplace has rules. If you refuse to acknowledge and commit to follow those rules you don’t get hired.

Now, withholding work from a freelancer is not duress. If he had done a lot of work without a contract or without being appraised of the rights situation, and his payment was being withheld until he signed, that could qualify as duress.

Once.

But Friedrich had freelanced for Marvel for quite some time and cashed a lot of checks before entering into this. He knew what the deal was before.

“Give all three of them co-ownership of the character. They own a combined half of the character, you own half, both of you profit from the character–if that does not equal ‘win-win’, I don’t know what does. ”

Then you really don’t know what does. What you describe is not a win-win because Marvel wins absolutely nothing by this.

This lawsuit is (legally speaking) frivolous and groundless, and what’s more it’s about a “legacy” character, a new character that uses an established trademark. If they settle on this their lawyers would argue that it would only serve to encourage others to launch frivolous lawsuits and hope for a similar settlement. Which would mean even more legal cases and even more such pleas for “win-win” settlements.

Yes, Marvel has considerable legal costs with this. And when they waived recouping their legal fees on top of the 17000 that Friedrich technically stole from them through the sale of illegal, unauthorized copies, they were still vilified.

But standing fast on this case sets a precedent that may deter future lawsuits. That’s what a win for Marvel looks like.

You know what actually qualifies as “duress”? Filing a baseless lawsuit against someone and then saying “I’ll push this until you give me a share of a property that I have no legal rights to, forgive me the money I owe for ripping you off, pay my legal expenses and pay me a lot of money that I’m not owed. And remember, the worse this ends up for me, the more destitute and penniless I end up as a result of going into debt to sue you, the more sympathy I’ll get and the more I’ll tarnish your image. So settle or I’ll just keep going.”

That’s duress.

Snowball meet hell.

good for him for hated that marvel keeps making the claim that signing a paycheck is actully a work for hire contract not to mention Fredrick only signed it with the promise of more work not to mention Marvel telling him he can not sell his own art of his own creation at cons to make money that is stupid. hope he keeps fighting marvel in court long enough for Dismarvel to work out a nice royatly agreement for Gary and also the court finaly some where tells Marvel that their singing the paycheck is a work for hire contract is bs in the end and does not count as signing over copy right.

It’s absolutely work for hire. He was paid and Marvel took all the risks in publishing. They produced the book. If it failed then it would have been totally their loss; he still would’ve gotten paid. Ghost Rider wasn’t the huge money maker until it was reimagined in the 90s. If creators don’t want companies to own their creations then they shouldn’t use them in company work. And for the record, he wasn’t selling his own “art.” That’s completely legal, so long as it isn’t a mass produced print. Gary can draw Ghost Rider and, if someone is willing to pay for the piece, sell the original to his heart’s content. He was selling prints of the cover (drawn by Mike Ploog) and other prints of other people’s artwork. As far as I know, when creators’ work is reprinted, they do get royalties now (at least I often read of this).

One of the things I do find suspect about Gary and his side of the story is that a lot of people are disputing his claim that he is the sole creator of Ghost Rider. There are account that Roy Thomas had a huge role and that Mike Ploog did a lot of the work. I’m happy to donate when creators are in need and I try to give the Hero Initiative but ever since I gave to him in February things have come up that make me just a little bit suspect of his side of the story.

I should add that if you follow Neal Adams he’s very good about setting up charity events that specifically support creators in need but don’t go to their inane lawsuits.

I think one of the biggest problems fans have with these types of lawsuits is that they attempt to apply morals and values into the legal system and business world. Sometimes we get caught up in the notion of black and white. Right or wrong. There is not one shred of proof that he created the Ghost Rider on his own and that he has any claim to the character. Just like with the asinine Kirby case. These people in many ways dug their own holes. The biggest reason that work dried up for Gary at Marvel was because he was chronically late and there were alleged reports of substance abuse issues. I love this hobby and have enjoyed it for almost fourty years. I just wish I could log on to one of these websites without reading about another creator or his heirs suing for something they have no claim. They have made bad financial decisions and now they are after a quick money grab. They employ some morally bankrupt ambulance chaser. I know it is easier to vilify these major corporations, but I wish the fans would research the creators and people that represent them before making ridiculous comments. We live in the information age. We have more knowledge at our fingertips than ever before. There is no reason to post ignorant statements.

He is in the wrong. He has been in the wrong since day 1. That said, he had he day in court… AND LOST. This is even more groundless than anything before it. Someone needs to look up “duress”. He is not going to win. He is just going to waste more of Disney’s and, (well, I would say his, but it’s not his, is it?) donated to him money. Here’s an idea: maybe you should have done something, ANYTHING else of note in the last FORTY years other than waste time and money on something you will NEVER win anything out of. Disney needs to counter-sue him into even more obscurity. The part I will never understand is, like Moore, why anyone takes his side. Do people not understand the law or do they live in some fairy-tale land with pixies and unicorns? This has nothing to do with what is right or just or whatever, it is about the law, and on that front, he is completely in the wrong and always as been, as has been upheld over and over. I’m really not seeing what his point is at this stage.

Ignoring some of the claims he’s made about being the sole creator and some of his questionable ways of cashing in on Ghost Rider he’s right, especially about the endorsing the back of a check being tantamount to signing your rights away. A check is not a contract between two parties, but I think it’s time for him to move on and try to live his life. Of course he deserves royalties and everything for the movie (although I don’t think there were any profits for him to get a cut of but that’s another issue)

yes, lets all ignore the FACT: that the original horseback ghost-rider was at magazine enterprises, when marvel was “timely-comics”. and that the two were fierce competitors back in the early 40′s when the original was created. ..& lets forget the fact that daredevil, the original one, was created by: jack binder and jack cole, and published by liv gleason productions. lets also forget that wonder-man got into a law suit situation with superman, decades before stan lee stated he created him. lets forget about captain-marvel/billy batson, because we all know marvel supposedly created everything right?> especially decades before marvel became marvel, from having been timely comics. the spider, the black-panther, black cat, yellow-jacket, doc strange, white tiger, and dr. doom, were all competitors of timely comics, published by other companies during the 1940′s as well. stan lee created the x-men, and a few others. he has outright lied about most he supposedly created.

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