• Name the Owner

    by  • May 26, 2015 • copyright • 2 Comments

    Below are the facts, and here’s the question—who owns the copyright? Answer in a later post.

    In 1966, songwriter and plaintiff Jack Urbont was aspiring. A friend introduced him to Stan Lee of Marvel Comics fame who was developing a television show called “Marvel Super Heroes.” Urbont wasn’t familiar with the Marvel superheroes, so Marvel gave Urbont comic books to use as source material. Marvel could reject the works if it wanted, but accepted theme songs for segments for Captain America, Hulk, Thor, and Sub-Mariner, the opening and closing songs and, the subject matter of the lawsuit, the Iron Man Theme. There was no written agreement.

    After Marvel accepted the Iron Man Theme, Urbont said he hadn’t been paid and he needed money to pay recording costs. Urbont was paid $3,000 and created the sound recording for the Iron Man Theme. Urbont recalled receiving some royalty payments.

    Urbont registered the copyright in 1966 and renewed it in 1994. He licensed the theme for use in the 2006 Iron Man movie and on other occasions. He entered into a settlement agreement with various Marvel entities to permit the rebroadcast of the original program; in the settlement agreement Urbont is identified as “Owner” and Marvel as the “Licensee.”

    Urbont alleges that hip-hop artist Ghostface Killah infringed the copyright in the Iron Man Theme on his album Supreme Clientele, on the Epic Records label, in the first track “Intro” and the last track “Iron’s Theme ‐ Conclusion.” Sony, the parent of record company Epic Records, claims that Urbont’s music was a work made for hire and owned by Marvel, and Urbont claims he owns the copyright. Who is right?

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    2 Responses to Name the Owner

    1. Fred Wilf
      May 26, 2015 at 2:55 pm

      The work was created in 1966, and subject to the Copyright Act of 1909. As I recall, the term “works made for hire” was used in the Act, but not defined.

      Subsequent cases look at a variety of factors including money paid and the intent of the parties. Subsequent agreements between Urbont and Marvel in which Urbont is identified as the owner of the songs may serve as (1) evidence under the 1909 Act that the works are not works made for hire, and (2) a collateral estoppel on the issue of copyright ownership.

      If the works had been created under the 1986 Act (eff. 1988), then the facts probably would not sustain a finding of works made for hire. Urbont was not an employee of Marvel (so definition 1 of “works made for hire” fails), and there was no written agreement (so definition 2 of “works made for hire” fails).

      Your thoughts?

      Fred

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