Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`MARVEL CHARACTERS, INC.,
`Plaintiff,
`
`v.
`LAWRENCE D. LIEBER,
`Defendant.
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`
`
`
`Civil Action No. 1:21-cv-07955
`COMPLAINT FOR
`DECLARATORY RELIEF
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`Plaintiff Marvel Characters, Inc. (“MCI”), for its complaint against defendant Lawrence
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`D. Lieber (“Lieber”), alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`Over its long history, MCI and its predecessors in interest (individually and
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`collectively, “Marvel”) have engaged numerous writers and artists to contribute to Marvel’s
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`comics. Lieber, who started working for Marvel in or around 1958, is one such writer. Marvel
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`assigned Lieber stories to write, had the right to exercise creative control over Lieber’s
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`contributions, and paid Lieber a per-page rate for his contributions. As a result, any
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`contributions Lieber made were at Marvel’s instance and expense, rendering his contributions
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`work made for hire, to which the Copyright Act’s termination provisions do not apply. This case
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`thus involves an invalid attempt, by means of termination notices purportedly issued under that
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`Act, to acquire certain rights to iconic Marvel comic book characters and stories published
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`between 1962 and 1964.
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`2.
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`In virtually identical circumstances, this Court, as affirmed by the Second Circuit,
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`granted Marvel summary judgment, finding that all of illustrator Jack Kirby’s contributions
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`between 1958 and 1963 were done at Marvel’s instance and expense and thus were works made
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`MARVEL CHARACTERS, INC.,
`Plaintiff,
`
`v.
`LAWRENCE D. LIEBER,
`Defendant.
`
`
`
`
`Civil Action No. 1:21-cv-07955
`COMPLAINT FOR
`DECLARATORY RELIEF
`
`Plaintiff Marvel Characters, Inc. (“MCI”), for its complaint against defendant Lawrence
`
`
`
`
`
`
`D. Lieber (“Lieber”), alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Over its long history, MCI and its predecessors in interest (individually and
`
`collectively, “Marvel”) have engaged numerous writers and artists to contribute to Marvel’s
`
`comics. Lieber, who started working for Marvel in or around 1958, is one such writer. Marvel
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`assigned Lieber stories to write, had the right to exercise creative control over Lieber’s
`
`contributions, and paid Lieber a per-page rate for his contributions. As a result, any
`
`contributions Lieber made were at Marvel’s instance and expense, rendering his contributions
`
`work made for hire, to which the Copyright Act’s termination provisions do not apply. This case
`
`thus involves an invalid attempt, by means of termination notices purportedly issued under that
`
`Act, to acquire certain rights to iconic Marvel comic book characters and stories published
`
`between 1962 and 1964.
`
`2.
`
`In virtually identical circumstances, this Court, as affirmed by the Second Circuit,
`
`granted Marvel summary judgment, finding that all of illustrator Jack Kirby’s contributions
`
`between 1958 and 1963 were done at Marvel’s instance and expense and thus were works made
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`Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 2 of 7
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`for hire. Because termination rights do not exist for works made for hire, the Kirby heirs’
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`termination notices—which covered many of the very same comics that Lieber’s termination
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`notices do—were held to be invalid and of no legal force or effect. See Marvel Worldwide, Inc.
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`v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011), aff’d in relevant part, 726 F.3d 119 (2d Cir.
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`2013).
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`3.
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`Similarly, the District Court for the District of Delaware held in In re Marvel
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`Entertainment Grp., 254 B.R. 817 (D. Del. 2000), that contributions by an individual similarly
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`situated during the same period at issue here were works made for hire. There, a writer claimed
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`that he owned certain characters during Marvel’s bankruptcy proceedings. The district court
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`rejected that claim, holding that all of the writer’s work was done at Marvel’s instance and
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`expense and was thus work made for hire.
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`4.
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`Kirby and In re Marvel Entertainment dictate the same result here. As with the
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`artists in those cases, Marvel had the right to exercise creative control over Lieber’s
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`contributions and paid Lieber a per-page rate for his work. As with the artists in those cases,
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`when Lieber worked for Marvel, he did so with the expectation that Marvel would pay him. And
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`as with the artists in those cases, Lieber does not hold the copyright in the famous Marvel
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`characters and comics on which he worked; rather, Marvel does, as evidenced by the relevant
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`copyright registration notices themselves. Marvel thus brings this declaratory relief action,
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`pursuant to 28 U.S.C. § 2201, in response to Lieber’s improper attempt to acquire Marvel’s
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`intellectual property.
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`PARTIES
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`5.
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`MCI is a Delaware corporation with its principal place of business in Burbank,
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`California. MCI owns the intellectual property contained in the comic books and characters at
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`Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 3 of 7
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`6.
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`Upon information and belief, Lieber is a resident and citizen of New York, New
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`issue.
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`York.
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`JURISDICTION AND VENUE
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`7.
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`This is an action for declaratory relief brought under 28 U.S.C. §§ 2201, et seq.,
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`and under the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. This Court has federal question
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`subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
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`York.
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`8.
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`9.
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`This Court has personal jurisdiction over Lieber because he is domiciled in New
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`Upon information and belief, venue is proper in this Court pursuant to 28 U.S.C.
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`§ 1391(b)(1) because Lieber resides in this District in New York, New York. Venue is also
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`proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) for the additional reason that a
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`substantial part of the events giving rise to this action occurred in this District. Specifically,
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`most if not all of the contributions by Lieber were made in this District, and all of the comic
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`books at issue were published in this District.
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`ALLEGATIONS
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`10.
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`At all relevant times, Lieber was engaged as a comic book writer by Marvel in
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`New York, New York to contribute to various comic books (the “Works”).
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`11.
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`Any contributions Lieber made were at Marvel’s instance and expense.
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`12. Marvel editorial staff had the right to exercise creative control over Lieber’s
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`contributions, and Marvel paid Lieber a per-page rate for his contributions. When Lieber worked
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`for Marvel, he did so with the expectation that Marvel would pay him.
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`13.
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`Lieber did not obtain any ownership interest in or to any contributions he made.
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`Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 4 of 7
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`14. Marvel registered copyrights in and to the Works, which are copyrightable subject
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`matter under the copyright laws of the United States. The Register of Copyrights recorded the
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`registrations, as set forth in Exhibit 1 to this complaint. Marvel has complied in all relevant
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`respects with all laws governing copyright.
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`15.
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`Between approximately May 28 and August 4, 2021, Lieber served six notices of
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`termination on Marvel. Lieber claims to have a sufficient interest in the Works to exercise
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`purported rights of termination under the termination provisions of the Copyright Act, 17 U.S.C.
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`§ 304(c), and the regulations thereunder.
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`16.
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`The notices specifically seek to “terminate all pre-January 1, 1978 exclusive or
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`non-exclusive grants of the transfer or license of the renewal copyright(s) in and to” certain
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`“illustrated comic book stor[ies]” that were allegedly “authored or co-authored” by Lieber and
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`published by Marvel between 1962 and 1964. The notices specify various effective termination
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`dates, ranging from May 29 to August 5, 2023.
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`17.
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`The comic book titles identified in the notices include Tales to Astonish, Journey
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`Into Mystery, Strange Tales, and Tales of Suspense. The notices purportedly terminate alleged
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`grants of copyright interests in all characters, story elements, and “indicia” in the comic books,
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`as well as “all material” allegedly “authored or co-authored by Larry Lieber (in any and all
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`medium(s), whenever created) that was reasonably associated with” these works and “registered
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`with the United States Copyright Office and/or published within the termination time window, as
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`defined by 17 U.S.C. § 304(c), and the” purported “effective date of this Notice of Termination.”
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`18.
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`True and correct copies of these notices are attached hereto as Exhibits 2 through
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`9.
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`Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 5 of 7
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`COUNT I: ACTION FOR DECLARATORY RELIEF
`[As to the Validity of All Notices]
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`19. Marvel repeats and realleges each allegation contained in paragraphs 1 through 18
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`of this complaint as if fully set forth herein.
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`20.
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`Lieber has served Marvel with the termination notices described above. On
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`information and belief, Lieber submitted the notices for recordation with the U.S. Copyright
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`Office.
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`21.
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`The notices are invalid as a matter of law because the Works were created as
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`works made for hire, and there are no termination rights for works made for hire. See 17 U.S.C.
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`§ 304(c).
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`22.
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`The Works were made for hire because they were created at Marvel’s instance
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`and expense.
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`23.
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`Any contributions Lieber made to the Works were done at the instance of
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`Marvel’s editorial staff, who had the right to exercise creative control over Lieber’s
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`contributions.
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`24.
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`Any contributions Lieber made to the Works were done at Marvel’s expense
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`because Marvel paid Lieber a per-page rate for his contributions, Lieber made those
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`contributions to the Works with the expectation that Marvel would pay him, and Lieber did not
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`obtain any ownership interest in or to his contributions.
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`25. Marvel has a real and reasonable apprehension of litigation over any claim by
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`Lieber that Marvel’s exploitation of the Works after the alleged termination dates infringes
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`Lieber’s purported rights.
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`26.
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`There now exists between the parties an actual and justiciable controversy
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`concerning the validity of the termination notices and Marvel’s and Lieber’s respective rights.
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`Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 6 of 7
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`27.
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`A declaration is necessary and appropriate at this time in light of the purported
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`effective termination dates and the ongoing exploitation of the Works and the development of
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`new works derivative of the Works.
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`28. Marvel has no adequate remedy at law.
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`29.
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`Accordingly, Marvel seeks, pursuant to 28 U.S.C. § 2201, a judgment from this
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`Court that the notices are invalid and therefore that Marvel will not lose its copyright interests in
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`the Works on the alleged termination dates.
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`PRAYER FOR RELIEF
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`WHEREFORE, Marvel prays for a judgment against Lieber as follows:
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`A.
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`B.
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`C.
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`For a declaration that the termination notices are invalid;
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`For Marvel’s attorneys’ fees and costs incurred; and
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`For such other and further relief as the Court deems just and equitable.
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`Case 1:21-cv-07955-LAK Document 1 Filed 09/24/21 Page 7 of 7
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`Respectfully Submitted,
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`O’MELVENY & MYERS LLP
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`By: /s/ Molly M. Lens
`
`Daniel M. Petrocelli*
`dpetrocelli@omm.com
`Molly M. Lens
`mlens@omm.com
`Danielle Feuer*
`dfeuer@omm.com
`1999 Avenue of the Stars, 8th Floor
`Los Angeles, California 90067
`Telephone: (310) 553-6700
`Facsimile: (310) 246-6779
`
`Kendall Turner*
`kendallturner@omm.com
`1625 I Street NW
`Washington, DC 20006
`Telephone: (202) 383-5300
`Facsimile: (202) 383-5414
` Pro hac vice admission pending
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`Attorneys for Plaintiff Marvel Characters,
`Inc.
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` *
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`Dated: September 24, 2021
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