Marvel Litigation: Gene Colan, Steve Ditko, Don Heck, Don Rico (estates of) & Larry Lieber

An Ongoing Series Looking At Who Claimed What

This was one of big cases of the past few years. Between June 22 and July 2, 2021, old mate Marc Toberoff filed a series of Copyright Terminations against Marvel for the estates of Gene Colan, Steve Ditko, Don Heck, Don Rico and on behalf of Larry Lieber (the last man standing). These notices were to ‘terminate all pre-January 1, 1978 exclusive, or non-exclusive grants of the transfer of or license of the renewal copyright(s) in and to certain illustrated comic book stor(ies) that were allegedly authored or co-authored by (the parties) and published by Marvel between 1967 and 1975.’

Why those dates? it meets the required cut off time for one. Also, post 1978, everyone had signed those agreements turning everything over to Marvel, lock, stock and barrel.

Once served with the Termination notices, Marvel brought suit against all the named families, and Larry Lieber. Ultimately the court consolidated the cases into one, which made things easier, but, as fights go, it got a bit dirty.

Marvel relied on two cases. The first was the Kirby case, which was almost identical - copyright terminations.

In virtually identical circumstances, the Southern District of New York, 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 for hire. Because termination rights do not exist for works made for hire, the Kirby heirs’ termination notices were held to be invalid and of no legal force or effect.

The second case Marvel relied on happened during their bankruptcy.

Similarly, the District Court for the District of Delaware held in In re Marvel Entertainment Grp., that an artist’s contributions to many of the very same works that are at issue here were works made for hire. There, the writer who worked on these comics claimed that he owned many of the characters at issue in Marvel’s bankruptcy proceedings. The district court rejected that claim, holding that all of the writer’s work was at Marvel’s instance and expense and was thus work made for hire.

That writer was none other than Stan Lee.

In short, Marvel argued that none of the named ever held the copyrights and that all work was done at the direction of Marvel - work for hire. The terminations were a longshot, but worth fighting.

Here’s what was being claimed. Note that the Copyright Terminations claimed each issue and the contents/characters involved. As with the Kirby case, it wasn’t designed to argue who created what, just who owned the copyrights to the work.

Steve Ditko: Amazing Fantasy #15. Amazing Spider-Man #1 - #38, Amazing Spider-Man Annual #1 - #2. Strange Tales #102 - #147, Strange Tales Annual #1. Fantastic Four Annual #1

Gene Colan: Captain America #117 - #137. Captain Marvel #1 - #4. Marvel Super-Heroes #12 - #13. Tomb of Dracula #1 - #37

Don Heck: Amazing Spider-Man Annual #3. Daredevil #103 - #106, #109, #118, #119. Giant-Size Avengers #4. Iron Man #26 - 37. Strange Tales #101, #103, #105, #140, #145, #146, #147, #148. Tales of Suspense #34 - #36, #38 - 40, #42 - #47, #50 - #72, #80. The Avengers #9 - #15, #17 - #40, #45, #47, #108 - #112, #119 - #121, #123. The Avengers Annual #1, #2. The X-Men #45

Larry Lieber: Journey Into Mystery #83 - #104. Strange Tales #102 - #113. Tales of Suspense #39. Tales to Astonish #35 - #58

Don Rico: Tales of Suspense #52, #53

When it came to the major characters, they were no-brainers. Spider-Man. The Falcon. Iron Man. Black Widow. Hawkeye. Blade. Captain Marvel. Dr Strange. Thor. Ant Man. The Wizard - and all the supporting casts. Again, the creation of those characters wasn’t being litigated here, just the ownership.

All the families were deposed, along with Larry Lieber. All had to give accounts of how the work was done, and other depositions were called up, Roy Thomas, Mark Evanier, Stan Lee - they all spoke, with Lee’s words coming from previous cases. And it wasn’t entirely pleasant.

Nanci Solo, Gene Colan’s daughter, was grilled about two daughters that Gene had from his first marriage. Marvel kept pushing this issue as they wanted to show the court that Nanci and her brother, Erik Colan, weren’t the rightful heirs of Gene Colan. There were others. The problem was that Gene’s first marriage ended in acrimony and he didn’t really talk about it to his children.

As Nanci said,

I looked through all of the belongings, papers that I put away in a couple of boxes that I have in the house and even went through photographs that were in a separate box and didn't come across anything, like a document or written proof of any kind about -- about any of the girls or their father.

I know he had a first marriage. I did not know that until I was an adult. And I was told that there were two girls that were then adopted shortly after his divorce and that there had been no contact.

Marvel wanted Nanci to admit that the two children from Gene’s first marriage were, in fact, his biological children, something she didn’t really know for sure.

I never knew that to be a fact, honestly, didn't know that to be a fact. The circumstances of my father's first marriage sounded actually terrible. And I remember learning of it and wondering how he had no contact with two girls that he may have brought into the world. And he had no pictures. He had nothing to show from it.

And it actually struck me as unusual and made me question whether or not they were actually his. His love was for his art. And I guess it kind of made me realize a thing about him that wasn't great, like, or just questioned what was that connection, really? Were they really his?

I just know that there were two girls in that marriage. And the way it ended, in his words, was extremely swift. And she very quickly remarried. It was what she wanted. There was financial insecurity already in that first marriage. And she was highly motivated to bring somebody else into her life that would be able to financially support them. So biological conversation, things like that, that wasn't part of what was discussed.

He said that there were two girls with his first wife. And he had no details, no pictures, no memories to share with me about it. He was very much married to his work and remained so and kind of removed from family -- family interactions in general.

Larry Lieber, now well into his 90s, was asked about events from 40, 50 even 60s years ago and expected to have a sharp memory.

I live alone and my powers of recollection are not as good as they once were. Also, I feel I should tell you that although I worked with most of the people you mentioned, I did not really know them well. A few of them, I have never even met.

He was insistent that Stan did come up with all the characters that he wrote, and that Stan provided plots. He also insisted that he gave scripts to the artists he worked with, including Jack Kirby. The more he was question, the more confused he got, instead Marvel relied on what he had said in interviews over the years. His whole testimony can be summed up in one line.

I -- I -- I believed it, when I said it.

Patrick Ditko, Steve Ditko’s brother, was questioned about how Steve worked and his life in general. It was a waste of time. Steve kept his professional life very separate from his family. Steve Ditko had a rule, what happened in New York stayed in New York. This meant none of his family were to ask about his work. As Patrick recalled.

…he was that private. He told that to my mother, my mother relayed it to me, and we -- and then it got through all the kids and everything else; so it was the golden rule.

There wasn’t much, if anything, that could be added. And you get the drift.

Much like the Kirby case, people were expecting some kind of a Perry Mason court case where people would break down, or explode into speeches and shouting matches. It wasn’t to be. On 6 December 2023, the court was advised that Patrick Ditko and Marvel had ‘amicably resolved their dispute’.

June 13 2023, the court was told that Keith Dettwiler and Marvel had also resolved their dispute, as did Michele Hart-Rico. Nanci Solo and the Colan estate and Larry Lieber did the same on 18 May 2023. Each party was responsible for their own costs, which wouldn’t have been cheap.

As with all such cases, nobody really wins, other than the lawyers.

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