Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 1 of 7
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`MARVEL CHARACTERS, INC.,
`Plaintiff,
`
`
`
`v.
`KEITH A. DETTWILER, in his capacity as
`Executor of the Estate of Donald L. Heck,
`Defendant.
`
`
`Civil Action No. 1:21-cv-07959
`COMPLAINT FOR
`DECLARATORY RELIEF
`
`Plaintiff Marvel Characters, Inc. (“MCI”), for its complaint against defendant Keith A.
`
`
`
`
`
`
`Dettwiler, 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. Donald L. Heck, who started working for Marvel in or around 1954, is one such artist.
`
`Marvel assigned Heck stories to illustrate, had the right to exercise creative control over his
`
`contributions, and paid him a per-page rate for his contributions. As a result, any contributions
`
`Heck 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. Nevertheless, defendant
`
`Dettwiler, in his capacity as the executor of Heck’s estate, has served termination notices
`
`purportedly issued under that Act, in an invalid attempt to acquire certain rights to iconic Marvel
`
`comic book characters and stories published between 1962 and 1975.
`
`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
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`MARVEL CHARACTERS, INC.,
`Plaintiff,
`
`
`
`v.
`KEITH A. DETTWILER, in his capacity as
`Executor of the Estate of Donald L. Heck,
`Defendant.
`
`
`Civil Action No. 1:21-cv-07959
`COMPLAINT FOR
`DECLARATORY RELIEF
`
`Plaintiff Marvel Characters, Inc. (“MCI”), for its complaint against defendant Keith A.
`
`
`
`
`
`
`Dettwiler, 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. Donald L. Heck, who started working for Marvel in or around 1954, is one such artist.
`
`Marvel assigned Heck stories to illustrate, had the right to exercise creative control over his
`
`contributions, and paid him a per-page rate for his contributions. As a result, any contributions
`
`Heck 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. Nevertheless, defendant
`
`Dettwiler, in his capacity as the executor of Heck’s estate, has served termination notices
`
`purportedly issued under that Act, in an invalid attempt to acquire certain rights to iconic Marvel
`
`comic book characters and stories published between 1962 and 1975.
`
`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
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 2 of 7
`
`
`
`
`for hire. Because termination rights do not exist for works made for hire, the Kirby heirs’
`
`termination notices—which covered many of the very same comics that Dettwiler’s termination
`
`notices do—were held to be invalid and of no legal force or effect. See Marvel Worldwide, Inc.
`
`v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011), aff’d in relevant part, 726 F.3d 119 (2d Cir.
`
`2013).
`
`3.
`
`Similarly, the District Court for the District of Delaware held in In re Marvel
`
`Entertainment Grp., 254 B.R. 817 (D. Del. 2000), that contributions by an individual similarly
`
`situated during the same period at issue here were works made for hire. There, a writer claimed
`
`that he owned certain characters during Marvel’s bankruptcy proceedings. The district court
`
`rejected that claim, holding that all of the writer’s work was done at Marvel’s instance and
`
`expense and was thus work made for hire.
`
`4.
`
`Kirby and In re Marvel Entertainment dictate the same result here. As with the
`
`artists in those cases, Marvel had the right to exercise creative control over Heck’s contributions
`
`and paid him a per-page rate for his work. As with the artists in those cases, when Heck worked
`
`for Marvel, he did so with the expectation that Marvel would pay him. And as with the artists in
`
`those cases, Heck never held the copyright in the famous Marvel characters and comics on which
`
`he worked; rather, Marvel does, as evidenced by the relevant copyright registration notices
`
`themselves. Marvel thus brings this declaratory relief action, pursuant to 28 U.S.C. § 2201, in
`
`response to Dettwiler’s improper attempt to acquire Marvel’s intellectual property.
`
`PARTIES
`
`5.
`
`MCI is a Delaware corporation with its principal place of business in Burbank,
`
`California. MCI owns the intellectual property contained in the comic books and characters at
`
`issue.
`
`
`
`
`
`
`
`- 2 -
`
`
`
`
`
`Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 3 of 7
`
`
`
`
`6.
`
`Upon information and belief, Dettwiler is the nephew of Heck and the executor of
`
`Heck’s estate. Upon information and belief, that estate is domiciled in New York.
`
`JURISDICTION AND VENUE
`
`7.
`
`This is an action for declaratory relief brought under 28 U.S.C. §§ 2201, et seq.,
`
`and under the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. This Court has federal question
`
`subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
`
`8.
`
`This Court has personal jurisdiction over Dettwiler because he claims to have any
`
`termination rights possessed by Heck in his capacity as the executor of Heck’s estate and that
`
`estate is domiciled in New York.
`
`9.
`
`Upon information and belief, venue is proper in this Court pursuant to 28 U.S.C.
`
`§ 1391(b)(1) because Heck’s estate is domiciled in New York. Venue is also proper in this Court
`
`pursuant to 28 U.S.C. § 1391(b)(2) for the additional reason that a substantial part of the events
`
`giving rise to this action occurred in this District. Specifically, most if not all of the
`
`contributions by Heck were made in this District, and all of the comic books at issue were
`
`published in this District.
`
`ALLEGATIONS
`
`10.
`
`At all relevant times, Heck was engaged as a comic book penciler by Marvel in
`
`New York, New York to contribute to various comic books (the “Works”).
`
`11.
`
`Any contributions Heck made were at Marvel’s instance and expense.
`
`12. Marvel editorial staff had the right to exercise creative control over Heck’s
`
`contributions, and Marvel paid Heck a per-page rate for his contributions. When Heck worked
`
`for Marvel, he did so with the expectation that Marvel would pay him.
`
`13.
`
`Heck did not obtain any ownership interest in or to any contributions he made.
`
`
`
`
`
`
`
`- 3 -
`
`
`
`
`
`Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 4 of 7
`
`
`
`
`14. Marvel registered copyrights in and to the Works, which are copyrightable subject
`
`matter under the copyright laws of the United States. The Register of Copyrights recorded the
`
`registrations, as set forth in Exhibit 1 to this complaint. Marvel has complied in all relevant
`
`respects with all laws governing copyright.
`
`15.
`
`Between approximately June 4 and July 2, 2021, Dettwiler served three notices of
`
`termination on Marvel. Dettwiler claims to have a sufficient interest in the Works, as executor of
`
`Heck’s estate, to exercise purported rights of termination under the termination provisions of the
`
`Copyright Act, 17 U.S.C. § 304(c), and the regulations thereunder.
`
`16.
`
`The notices specifically seek to “terminate all pre-January 1, 1978 exclusive or
`
`non-exclusive grants of the transfer or license of the renewal copyright(s) in and to” certain
`
`“illustrated comic book stor[ies]” that were allegedly “authored or co-authored” by Heck and
`
`published by Marvel between 1962 and 1975. The notices specify various effective termination
`
`dates, ranging from June 5, 2023 to February 12, 2031.
`
`17.
`
`The comic book titles identified in the notices include The Avengers, Iron Man,
`
`Daredevil, Strange Tales, and Tales of Suspense. The notices purportedly terminate alleged
`
`grants of copyright interests in all characters, story elements, and “indicia” in the comic books,
`
`as well as “all material” allegedly “authored or co-authored by Donald L. Heck (in any and all
`
`medium(s), whenever created) that was reasonably associated with” these works and “registered
`
`with the United States Copyright Office and/or published within the termination time window, as
`
`defined by 17 U.S.C. § 304(c), and the” purported “effective date of this Notice of Termination.”
`
`18.
`
`True and correct copies of these notices are attached hereto as Exhibits 2 through
`
`4.
`
`
`
`
`
`
`
`- 4 -
`
`
`
`
`
`Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 5 of 7
`
`
`
`
`COUNT I: ACTION FOR DECLARATORY RELIEF
`[As to the Validity of All Notices]
`
`19. Marvel repeats and realleges each allegation contained in paragraphs 1 through 18
`
`of this complaint as if fully set forth herein.
`
`20.
`
`Dettwiler has served Marvel with the termination notices described above. On
`
`information and belief, Dettwiler submitted the notices for recordation with the U.S. Copyright
`
`Office.
`
`21.
`
`The notices are invalid as a matter of law because the Works were created as
`
`works made for hire, and there are no termination rights for works made for hire. See 17 U.S.C.
`
`§ 304(c).
`
`22.
`
`The Works were made for hire because they were created at Marvel’s instance
`
`and expense.
`
`23.
`
`Any contributions Heck made to the Works were done at the instance of Marvel’s
`
`editorial staff, who had the right to exercise creative control over Heck’s contributions.
`
`24.
`
`Any contributions Heck made to the Works were done at Marvel’s expense
`
`because Marvel paid Heck a per-page rate for his contributions, Heck made those contributions
`
`to the Works with the expectation that Marvel would pay him, and Heck did not obtain any
`
`ownership interest in or to his contributions.
`
`25. Marvel has a real and reasonable apprehension of litigation over any claim by
`
`Dettwiler that Marvel’s exploitation of the Works after the alleged termination dates infringes
`
`Dettwiler’s purported rights as executor of Heck’s estate.
`
`26.
`
`There now exists between the parties an actual and justiciable controversy
`
`concerning the validity of the termination notices and the respective rights of Marvel and
`
`Dettwiler, as executor of Heck’s estate.
`
`
`
`
`
`
`
`- 5 -
`
`
`
`
`
`Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 6 of 7
`
`
`
`
`27.
`
`A declaration is necessary and appropriate at this time in light of the purported
`
`effective termination dates and the ongoing exploitation of the Works and the development of
`
`new works derivative of the Works.
`
`28. Marvel has no adequate remedy at law.
`
`29.
`
`Accordingly, Marvel seeks, pursuant to 28 U.S.C. § 2201, a judgment from this
`
`Court that the notices are invalid and therefore that Marvel will not lose its copyright interests in
`
`the Works on the alleged termination dates.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Marvel prays for a judgment against Dettwiler as follows:
`
`A.
`
`B.
`
`C.
`
`For a declaration that the termination notices are invalid;
`
`For Marvel’s attorneys’ fees and costs incurred; and
`
`For such other and further relief as the Court deems just and equitable.
`
`
`
`
`
`
`
`- 6 -
`
`
`
`
`
`Case 1:21-cv-07959-UA Document 1 Filed 09/24/21 Page 7 of 7
`
`
`Respectfully Submitted,
`
`O’MELVENY & MYERS LLP
`
`By: /s/ Molly M. Lens
`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
`
`Attorneys for Plaintiff Marvel Characters,
`Inc.
`
` *
`
`
`
`- 7 -
`
`
`
`
`
`
`
`
`
`
`
`Dated: September 24, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
