Case 1:21-cv-07957 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,
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`v.
`PATRICK S. DITKO, in his capacity as
`Administrator of the Estate of Stephen J.
`Ditko,
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`Defendant.
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`Civil Action No. 1:21-cv-07957
`COMPLAINT FOR
`DECLARATORY RELIEF
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`Plaintiff Marvel Characters, Inc. (“MCI”), for its complaint against defendant Patrick S.
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`Ditko (“Patrick Ditko”), 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. Stephen J. Ditko (“Steve Ditko”), who started working for Marvel in or around 1957, is
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`one such artist. Marvel assigned Steve Ditko stories to illustrate, had the right to exercise
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`creative control over his contributions, and paid him a per-page rate for his contributions. As a
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`result, any contributions Steve Ditko made were at Marvel’s instance and expense, rendering his
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`contributions work made for hire, to which the Copyright Act’s termination provisions do not
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`apply. Nevertheless, defendant Patrick Ditko, in his capacity as the administrator of Steve
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`Ditko’s estate, has served termination notices purportedly issued under that Act, in an invalid
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`attempt to acquire certain rights to iconic Marvel comic book characters and stories published
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`between 1962 and 1966.
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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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`Case 1:21-cv-07957 Document 1 Filed 09/24/21 Page 2 of 7
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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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`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 Patrick Ditko’s
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`termination notices do—were held to be invalid and of no legal force or effect. See Marvel
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`Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011), aff’d in relevant part, 726 F.3d
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`119 (2d Cir. 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 Steve Ditko’s
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`contributions and paid him a per-page rate for his work. As with the artists in those cases, when
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`Steve Ditko 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, Steve Ditko never held 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 Patrick Ditko’s improper attempt to acquire
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`Marvel’s 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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`issue.
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`6.
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`Upon information and belief, Patrick Ditko is the brother of Steve Ditko and the
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`administrator of Steve Ditko’s estate.
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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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`8.
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`This Court has personal jurisdiction over Patrick Ditko because he claims to have
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`any termination rights possessed by Steve Ditko in his capacity as the administrator of Steve
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`Ditko’s estate. Upon information and belief, that estate is domiciled in New York.
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`9.
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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 Steve Ditko’s estate is domiciled in this District in New York, New York.
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`Venue is also proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) for the additional reason
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`that a substantial part of the events giving rise to this action occurred in this District.
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`Specifically, most if not all of the contributions by Steve Ditko were made in this District, and all
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`of the comic 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, Steve Ditko was engaged as a comic book artist and writer
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`by Marvel in New York, New York to contribute to various comic books (the “Works”).
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`11.
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`Any contributions Steve Ditko made were at Marvel’s instance and expense.
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`12. Marvel editorial staff had the right to exercise creative control over Steve Ditko’s
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`contributions, and Marvel paid Steve Ditko a per-page rate for his contributions. When Steve
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`Ditko worked for Marvel, he did so with the expectation that Marvel would pay him.
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`13.
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`Steve Ditko did not obtain any ownership interest in or to any contributions he
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`made.
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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 July 16, 2021, Patrick Ditko served four
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`notices of termination on Marvel. Patrick Ditko claims to have a sufficient interest in the Works,
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`as administrator of Steve Ditko’s estate, to exercise purported rights of termination under the
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`termination provisions of the Copyright Act, 17 U.S.C. § 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 Steve Ditko
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`and published by Marvel between 1962 and 1966. The notices specify various effective
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`termination dates, ranging from May 29 to July 17, 2023.
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`17.
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`The comic book titles identified in the notices include Amazing Spider-Man,
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`Amazing Fantasy, Journey Into Mystery, and Strange Tales. The notices purportedly terminate
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`alleged grants of copyright interests in all characters, story elements, and “indicia” in the comic
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`books, as well as “all material” allegedly “authored or co-authored by Stephen J. Ditko (in any
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`and all medium(s), whenever created) that was reasonably associated with” these works and
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`“registered with the United States Copyright Office and/or published within the termination time
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`window, as defined by 17 U.S.C. § 304(c), and the” purported “effective date of this Notice of
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`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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`6.
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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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`Patrick Ditko has served Marvel with the termination notices described above.
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`On information and belief, Patrick Ditko submitted the notices for recordation with the U.S.
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`Copyright 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 Steve Ditko 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 Steve Ditko’s
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`contributions.
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`24.
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`Any contributions Steve Ditko made to the Works were done at Marvel’s expense
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`because Marvel paid Steve Ditko a per-page rate for his contributions, Steve Ditko made those
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`contributions to the Works with the expectation that Marvel would pay him, and Steve Ditko did
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`not obtain any ownership interest in or to his contributions.
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`Case 1:21-cv-07957 Document 1 Filed 09/24/21 Page 6 of 7
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`25. Marvel has a real and reasonable apprehension of litigation over any claim by
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`Patrick Ditko that Marvel’s exploitation of the Works after the alleged termination dates
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`infringes Patrick Ditko’s purported rights, as the administrator of Steve Ditko’s estate.
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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 the respective rights of Marvel and Patrick
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`Ditko, as the administrator of Steve Ditko’s estate.
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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 Patrick Ditko 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-07957 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
`Molly M. Lens
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`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
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`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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