CHIN, Circuit Judge.
In 1972, the Marvel Comics Group published a comic book featuring the "Ghost Rider" — a motorcycle-riding superhero with supernatural powers and a flaming skull for a head. The issue — which sold for twenty cents — told the story of Johnny Blaze, a motorcycle stunt rider who promised his soul to the devil to save his adoptive father from cancer.
In this case, plaintiff-counter-defendant-appellant Gary Friedrich contends that he conceived the Ghost Rider, the related characters, and the origin story, and that he owns the renewal term copyrights in those works. While acknowledging that Friedrich contributed his ideas, defendant-counter-claimant-appellee Marvel Characters, Inc. ("Marvel") contends that the Ghost Rider characters and story were created through a collaborative process with Marvel personnel and resources, and that Marvel owns the renewal rights in question.
The district court granted summary judgment in favor of Marvel on the ownership issue, holding that Friedrich had assigned any rights he had in the renewal term copyrights to Marvel when he executed
The facts are heavily disputed. They are presented here in the light most favorable to Friedrich, with all reasonable inferences drawn in his favor. See Garcia v. Hartford Police Dep't, 706 F.3d 120, 126-27 (2d Cir.2013) (per curiam). To the extent Friedrich argues that he is entitled to summary judgment on the issue of authorship, we construe the facts in Marvel's favor and set forth that alternative version below.
A fan of comic books and motorcycle gang movies, Friedrich began to imagine, in the 1950s, a motorcycle-riding superhero who wore black leather. The hero developed into a motorcycle stuntman when Evel Knievel rose in popularity in the late-1960's. Then in 1968, after seeing his bony-faced and red-headed friend on a motorcycle, Friedrich was inspired to give his hero a flaming skull for a head. This epiphany caused Friedrich to flesh out an origin story in which his hero became a demon after making a deal with the devil.
Friedrich was a part-time freelance comic book writer, scripting issues of existing comic book serials when solicited by Marvel
Friedrich presented his written synopsis to his friend Roy Thomas, an assistant editor at Magazine Management Co., Inc. ("Magazine Mgmt."), the then-publisher of Marvel comics.
At Marvel's suggestion, Friedrich gave the synopsis to freelance artist Mike Ploog, who illustrated the comic book according to Friedrich's instructions. Friedrich supervised the entire production of the comic book, advising Ploog on how the characters should look and what to draw.
The first Ghost Rider comic was published in Marvel Spotlight, Vol. 1, No. 5 ("Spotlight 5") in April 1972, bearing a copyright notice in favor of "Magazine Management Co., Inc. Marvel Comics Group." The first page of the comic, reproduced above, contained a credit box that included the following:
At the same time Spotlight 5 was published, Marvel advertised the new superhero in a contemporaneous issue of The Amazing Spider-Man. In a feature called "Marvel Bullpen Bulletins," Marvel encouraged fans to read Spotlight 5 and acknowledged that Friedrich had "dreamed the whole thing up."
Ghost Rider quickly became one of Marvel's most popular comic book heroes. After Spotlight 5, Ghost Rider stories appeared in the next six issues of Marvel Spotlight. By May 1973, Marvel launched a separate Ghost Rider comic book series. Friedrich wrote the stories for several of these later comics on a freelance basis and does not dispute that these subsequent stories were "works made for hire."
The Ghost Rider comic book series ran, in successive volumes, from 1973 to 1983, 1990 to 1998, and 2001 to 2002. In total, Marvel published over 300 comic book stories starring Ghost Rider and reprinted Spotlight 5 five times, including as late as 2005. Marvel never removed Friedrich's "Conceived & Written" credit from any of the Spotlight 5 reprints.
Friedrich continued to write Ghost Rider and other superhero stories for Marvel on a freelance basis until approximately 1978. In 1976, Congress repealed the 1909 Copyright Act and replaced it with the current Copyright Act. See Pub.L. No. 94-553, 90 Stat. 2541 (1976) (codified at 17 U.S.C. § 101 et seq.). Under the 1976 Act, which took effect on January 1, 1978, id. § 102 (codified at note preceding 17 U.S.C.), a work created outside the scope of employment was considered a "work-for-hire" only if the parties had executed an express written agreement to that effect, see 17 U.S.C. § 101 (defining "work made for hire").
The full agreement was a page long and read in pertinent part:
July 31, 1978 Agreement between Friedrich & Marvel (the "Agreement"). Cadence told Friedrich that the Agreement only covered future work and that he had to sign it without alteration if he wanted to obtain further freelance work from them. Thus, Friedrich filled in his name and address by hand as the "Supplier" and signed the Agreement on July 31, 1978. Friedrich was not paid anything for signing the Agreement. After he signed, neither Cadence nor any subsequent Marvel publisher solicited any more freelance work from him.
The initial copyright term for Ghost Rider expired at the end of 2000, twenty-eight years after Spotlight 5's original publication in 1972. See 17 U.S.C. § 304(a)(1)(A). Beginning in 2001, the renewal copyright would have vested in Friedrich, as the original author, by operation of law. See id. § 304(a)(1)(C)(i), (2)(B)(ii). Nonetheless, Marvel exploited the Ghost Rider character after 2000 by: publishing reprints of Spotlight 5 in 2001, 2004, and 2005; publishing six issues of a new Ghost Rider comic series that ran from August 2001 to January 2002; offering a single Ghost Rider toy for sale in catalogs in 2003 and 2004; having Ghost Rider make cameo appearances in other characters' video games released in 2000 and 2006; filming the Ghost Rider movie in 2005 and releasing it in 2007 (pursuant to a licensing agreement entered into in 2000); and releasing a Ghost Rider video game, based on the movie, in 2007. While most of these items did not credit Friedrich, all the Spotlight 5 reprints published during the renewal term contained Friedrich's "Conceived & Written" credit.
Friedrich was not aware of Marvel's use of the Ghost Rider character during the renewal period until around 2004, when he learned Marvel was preparing to make the Ghost Rider movie. On April 6, 2004, Friedrich's attorney wrote a letter to Sony Pictures, the company producing the movie, asserting Friedrich's rights to the Ghost Rider copyright. In a response dated April 14, 2004, Marvel advised Friedrich that Ghost Rider was a work-for-hire. Despite taking this position, however, Marvel
Friedrich first learned about the concept of renewal rights in 2005 or 2006. He filed for, and received, a Renewal Copyright Registration in Spotlight 5 and Ghost Rider in February 2007. He then assigned the rights to his company, Gary Friedrich Enterprises, LLC.
On April 4, 2007, plaintiffs filed a complaint in the Southern District of Illinois against the current owners of Marvel and their licensees, alleging copyright infringement and various state law claims. The action was transferred to the Southern District of New York. The district court (Jones, J.) dismissed plaintiffs' state law claims because they were either preempted by the Copyright Act or failed to state a claim for relief. See generally Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 713 F.Supp.2d 215 (S.D.N.Y.2010). The district court (Forrest, J.) thereafter denied Friedrich's motion for reconsideration, which sought to reinstate his state law accounting claim under federal law.
On May 17, 2010, Marvel and the related defendants filed their answer, asserting that Ghost Rider was a "work-for-hire." On December 15, 2010, they amended their answer to include a compulsory counterclaim for copyright infringement. Plaintiffs also amended their complaint in March 2011 to add additional licensee defendants.
After discovery on the ownership issues, both sides moved for summary judgment. Plaintiffs argued that Friedrich was the sole author, or at least a joint author, as a matter of law. Defendants argued primarily that Friedrich's ownership claim was barred by the statute of limitations, but alternatively that he had assigned his renewal rights to Marvel in the Agreement. The district court concluded that genuine disputes of material fact surrounded the authorship of the work, but it nonetheless granted Marvel's motion and denied Friedrich's. See generally Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 837 F.Supp.2d 337 (S.D.N.Y.2011). The court reasoned that even if Friedrich were the sole author, by executing the Agreement, he had conveyed all his remaining rights in the work to Marvel "forever." See id. at 344-45.
After the court issued its order, the parties stipulated that Friedrich realized $17,000 in profits from exploiting the Ghost Rider copyright. Defendants also agreed to voluntarily dismiss their trademark counterclaims without prejudice, pending this appeal. The district court then entered final judgment dismissing all outstanding claims, awarding damages to
On appeal, Friedrich argues that the district court erred in granting Marvel's motion for summary judgment because the Agreement did not convey the renewal rights in the 1972 Ghost Rider copyright. While Marvel argues that we may affirm on that basis, it primarily argues that we should affirm on the alternative ground that Friedrich's ownership claim is barred by the Copyright Act's three-year statute of limitations. Finally, Friedrich asks us to reverse the district court's denial of his cross-motion for summary judgment on the issue of authorship, leaving only the issue of damages on remand.
We address each of the three arguments in turn.
We review de novo both the grant of summary judgment and the district court's interpretation of the Agreement. See Ment Bros. Iron Works Co. v. Interstate Fire & Cas. Co., 702 F.3d 118, 120-21 (2d Cir.2012); Mullins v. City of New York, 653 F.3d 104, 113 (2d Cir.2011). In reviewing a grant of summary judgment, we must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Mullins, 653 F.3d at 113.
For artistic works still in their initial term of copyright protection on January 1, 1978, the Copyright Act establishes two terms of protection: an initial term of twenty-eight years from "the date [the copyright] was originally secured" and a renewal term of sixty-seven years. 17 U.S.C. § 304(a)(1)(A), (a)(1)(C). The renewal term of a copyright is "not merely an extension of the original copyright term but a `new estate ... clear of all rights, interests or licenses granted under the original copyright.'" P.C. Films Corp., 138 F.3d at 456-57 (quoting G. Ricordi & Co. v. Paramount Pictures, Inc., 189 F.2d 469, 471 (2d Cir.1951)). Its purpose is "to `provide authors a second opportunity to obtain remuneration for their works'" and "`to renegotiate the terms of the grant once the value of the work has been tested.'" Id. at 457 (alteration omitted) (quoting Stewart v. Abend, 495 U.S. 207, 217, 218-19, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)).
An author may assign his renewal rights during the copyright's initial term, but "there is a strong presumption against the conveyance of renewal rights." Corcovado Music Corp. v. Hollis Music, Inc., 981 F.2d 679, 684 (2d Cir.1993). This presumption may be rebutted by an express assignment of "renewals of copyright" or "extensions of copyright," or by "general words of assignment," such as "forever," "hereafter," or "perpetual," if the parties' clear intent was to convey renewal rights. P.C. Films Corp., 138 F.3d at 457 (quoting Corcovado Music Corp., 981 F.2d at 684-85; Siegel v. Nat'l Periodical Publ'ns, Inc., 508 F.2d 909, 913 (2d Cir.1974)) (internal quotation marks omitted). In Siegel, we explained that words like "forever" may be indicative of an intent to convey renewal rights, but this "intent is to be determined by the trier of the facts." Siegel, 508 F.2d at 913.
We construe the Agreement according to state law principles of contract interpretation, even though the subject matter of the Agreement concerns issues of federal copyright law. See Kennedy v. Nat'l Juvenile Detention Ass'n, 187 F.3d 690, 694 (7th Cir.1999); P.C. Films Corp. v. Turner Entm't Co., 954 F.Supp. 711, 714 n. 6 (S.D.N.Y.1997), aff'd sub nom., P.C. Films Corp. v. MGM/UA Home Video Inc., 138 F.3d 453 (2d Cir.1998); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B][3][a] (rev. ed. Supp. 2013) ("[T]he vast bulk of copyright contractual issues must be resolved under state law, given the silence of the Copyright Act in addressing such issues as ... how to construe ambiguous contractual language...."). Because the Agreement was made entirely in New York and performance was complete upon execution, New York law governs its construction. See Brink's Ltd. v. S. African Airways, 93 F.3d 1022, 1030-31 (2d Cir.1996); P.S. & E., Inc. v. Selastomer Detroit, Inc., 470 F.2d 125, 127 (7th Cir.1972).
"When interpreting a contract [under New York law], the `intention of the parties should control, and the best evidence of intent is the contract itself.'" Cont'l Ins. Co. v. Atl. Cas. Ins. Co., 603 F.3d 169, 180 (2d Cir.2010) (alterations omitted) (quoting Hatalmud v. Spellings, 505 F.3d 139, 146 (2d Cir.2007)). At the outset, the court must determine whether the language the parties have chosen is ambiguous, see Lockheed Martin Corp. v. Retail Holdings, N.V., 639 F.3d 63, 69 (2d Cir.2011), after giving all "words and phrases ... their plain meaning," Olin Corp. v. Am. Home Assurance Co., 704 F.3d 89, 99 (2d Cir.2012) (quotation omitted). Furthermore, we do not consider particular phrases in isolation, but rather interpret them in light of the parties' intent as manifested by the contract as a whole. See JA Apparel Corp. v. Abboud, 568 F.3d 390, 397 (2d Cir.2009). The language is unambiguous only if it "has `a definite and precise meaning, unattended by danger of misconception in the purport of the contract itself, and concerning which there is no reasonable basis for a difference of opinion.'" John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 461 (2d Cir.1994) (alteration omitted) (quoting Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989)). But if the terms "suggest
Applying the "strong presumption against the conveyance of renewal rights," Corcovado Music Corp., 981 F.2d at 684, we conclude that the district court erred in holding as a matter of law that Friedrich had assigned his renewal rights to Marvel by signing the Agreement. We reach this conclusion for the following reasons.
The Agreement is ambiguous on its face. First, the critical sentence defining the "Work" covered by the Agreement is ungrammatical and awkwardly phrased:
This opaque cluster of clauses is simply not clear and parsing through its dense provisions does little to elucidate its meaning.
Second, the language is ambiguous as to whether it covered a work published six years earlier. The introductory recitals indicate that the "SUPPLIER wishes to have MARVEL order or commission" work and that "MARVEL only orders or commissions such ... work on an employee-for-hire basis." There is no explicit acknowledgement that the generic "SUPPLIER" ever performed work for Marvel previously, and certainly no specific mention of the Ghost Rider works. Marvel attempts to extract the phrase "all work... which have [sic] been ... created, prepared or performed by SUPPLIER for the Marvel Comics Group" from the dense sentence quoted above, but the entire agreement suggests that this was a forward-looking contract only intended to cover work submitted after the Agreement was signed.
Third, the language is ambiguous as to whether it conveys renewal rights. The contract contains no explicit reference to renewal rights and most of the language
Finally, Marvel relies heavily on the provision "grant[ing] to MARVEL forever all rights of any kind and nature in and to the Work." Cf. Siegel, 508 F.2d at 913-14. In context, however, for the reasons discussed above, it is not clear whether this broad language applies to work performed by Friedrich some six years earlier. The broadness of the language would be of no help to Marvel if the Agreement were intended to cover only future work. Moreover, that sentence goes on to provide that "Marvel is the sole and exclusive copyright proprietor thereof having all rights of ownership therein," which again suggests Marvel is the statutory author by virtue of the fact that the work was "made for hire." Thus, the Agreement could reasonably be construed as a form work-for-hire contract having nothing to do with renewal rights. Accordingly, the language by itself fails to overcome the "strong presumption against the conveyance of renewal rights." Corcovado Music Corp., 981 F.2d at 684.
Because the Agreement is reasonably susceptible of more than one meaning, it is ambiguous and we next look to extrinsic evidence in the record to determine whether there is a genuine dispute regarding the parties' intent at the time of the Agreement. See Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 51 (2d Cir.2011).
Here, the record demonstrates that Cadence extended this same one-page, forward-looking form contract to all its freelance artists to ensure that commissioned work would be deemed a "work made for hire" under the new 1976 Copyright Act. It did so shortly after the 1976 Act took effect on January 1, 1978. See 17 U.S.C. § 101; see also Copyright Act of 1976 § 102, Pub.L. No. 94-553, 90 Stat. 2541 (codified at note preceding 17 U.S.C.) (noting effective date of 1976 Act was January 1, 1978); Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 380 F.3d 624, 633-34 (2d Cir.2004) (explaining that 1976 Act only governs whether a work "created on or after January 1, 1978" is a work-for-hire). When Friedrich signed the Agreement, he was doing other freelance work for Marvel and he believed the Agreement would only cover future work because that was what Cadence told him at the time. He was not paid anything separately for signing the Agreement. Moreover, Spotlight 5 had been published six years earlier by a different corporate entity (Magazine Mgmt.) and had grown so popular that Marvel had already reprinted it once and had launched a separate Ghost Rider comic book series. Given that context, it is doubtful the parties intended to convey rights in the valuable Ghost Rider copyright without explicitly referencing it. It is more likely that the Agreement only covered ongoing or future work. Hence, there is a genuine dispute regarding the parties' intent for this form contract to cover Ghost Rider.
Even if the parties intended the definition of "Work" to extend to Ghost
Second, there is little extrinsic evidence to suggest that the parties actually intended to assign anything other than an initial term of copyright and much evidence to suggest that they did not. See P.C. Films Corp., 138 F.3d at 457 ("`[G]eneral words of assignment can include renewal rights if the parties had so intended.'" (emphasis added) (quoting Siegel, 508 F.2d at 913)). Friedrich was unrepresented by counsel, was told that the Agreement only covered future work, and did not learn about the concept of renewal rights until 2005. There was no discussion about renewal rights when he signed the Agreement in 1978. A jury could reasonably conclude that the parties never even considered renewal rights when they made this contract. Accordingly, the district court erred in granting summary judgment based on the Agreement.
Because Marvel asserts that there is an alternative ground for affirming the district court's judgment, we next consider its argument that Friedrich's claim is barred by the statute of limitations. We may affirm the district court's order granting summary judgment "on any ground supported by the record, even if it is not one on which the district court relied." McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir.2012).
Under the Copyright Act, all civil actions, including claims of ownership, must be commenced "within three years after the claim accrued." 17 U.S.C § 507(b); see Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir.2011). "An ownership claim accrues only once, when `a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right.'" Kwan, 634 F.3d at 228 (quoting Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992)). If "the ownership claim is time-barred, and ownership is the dispositive
Although an alleged author is aware of his claim to ownership of the work "from the moment of its creation," Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996), the author does not need to bring suit until there has been an "express repudiation" of that claim, see Zuill v. Shanahan, 80 F.3d 1366, 1370-71 (9th Cir.1996). "[A]ny number of events can trigger the accrual of an ownership claim, including `[a]n express assertion of sole authorship or ownership.'" Kwan, 634 F.3d at 228 (quoting Netzer v. Continuity Graphic Assocs., Inc., 963 F.Supp. 1308, 1315 (S.D.N.Y.1997)); see also Zuill, 80 F.3d at 1369 ("[C]laims of co-ownership, as distinct from claims of infringement, accrue when plain and express repudiation of co-ownership is communicated to the claimant, and are barred three years from the time of repudiation."). For example, a claim can accrue: when a book is published without the alleged co-author's name on it, see Kwan, 634 F.3d at 229; when alleged co-authors are presented with a contract identifying the defendant as the "sole owner and copyright holder," Zuill, 80 F.3d at 1368; see also Gaiman v. McFarlane, 360 F.3d 644, 652 (7th Cir.2004); or when alleged co-owners learn they are entitled to royalties that they are not receiving, see Merchant, 92 F.3d at 53, 56; Stone, 970 F.2d at 1048.
Marvel is not entitled to summary judgment on its statute of limitations defense. Friedrich filed his complaint on April 4, 2007 and thus Marvel had to have repudiated Friedrich's claim to ownership of the renewal rights prior to April 4, 2004 for his claim to be untimely. We conclude the district court could not have granted summary judgment on this basis because there are genuine disputes of fact regarding whether and, if so, when Marvel: (a) publicly repudiated Friedrich's claim; (b) privately repudiated Friedrich's claim in its communications with him; and (c) implicitly repudiated Friedrich's claim by conspicuously exploiting the copyright without paying royalties.
First, there is a genuine dispute whether Marvel publicly repudiated Friedrich's claim. There is evidence that, over the years, Marvel repeatedly and publicly recognized that Friedrich created the work. Marvel publicly credited Friedrich with "conceiv[ing]" Spotlight 5 each time it reprinted the original comic — including as late as 2005. When the comic was originally published in 1972, Marvel explained in a contemporaneous publication that Friedrich had "dreamed the whole thing up." Moreover, Marvel did not register a copyright in Spotlight 5 or Ghost Rider before Friedrich filed this action, even though it had registered nearly all of its other characters and several later Ghost Rider stories.
Marvel argues that the copyright notice on Spotlight 5 declared that Marvel was
Second, the record is unclear as to whether Marvel privately repudiated Friedrich's claim in its communications with Friedrich before April 4, 2004. Although Marvel contends that it told Friedrich that it considered Ghost Rider to be a "work made for hire" either at the time of the comic book's creation or at the time he executed the Agreement in 1978, the circumstances surrounding those events are in dispute. Only Marvel's letter dated April 16, 2004 clearly communicates that position to Friedrich. Because Friedrich filed his complaint less than three years later, his ownership claim would be timely if that was the first time Marvel privately repudiated his ownership claim. Accordingly, there is a genuine dispute as to when Marvel first told Friedrich that it intended to take sole credit for Ghost Rider.
Finally, there is a genuine dispute as to whether Marvel's exploitation of the Ghost Rider copyright during the renewal term,
Marvel points out that its agreement to license a Ghost Rider movie had been highly publicized since 2000 and argues that this implicitly repudiated Friedrich's ownership of the renewal copyright. We conclude that there are genuine disputes of fact regarding whether these news reports repudiated Friedrich's claim.
First, it is unclear whether this conduct even occurred during the renewal term. Because the copyright appears to have been first secured in 1972, the renewal term would not have vested in Friedrich until January 1, 2001. See 17 U.S.C. § 304(a)(2)(A)(i); 3 Nimmer on Copyright § 9.05[C][2] (explaining that the initial term for a work first published on March 12, 1969 would end December 31, 1997 — at the end of the twenty-eighth year — and the renewal term would vest on January 1, 1998). Marvel entered the license agreement on May 15, 2000, before the initial term expired. Therefore, news of that agreement would not necessarily have repudiated Friedrich's ownership of the renewal term.
Second, it was not clear that Marvel would refuse to pay royalties to Friedrich when the movie was released. According to Merchant and Stone, an ownership claim is triggered by knowledge of an entitlement to royalties that are not being paid, rather than by mere knowledge of the exploitation. See Merchant, 92 F.3d at 53, 56; Stone, 970 F.2d at 1048. Of course, in many cases, these two will go hand-in-hand. For example, a co-owner is aware of his claim of co-ownership from the moment the work is created, see Merchant, 92 F.3d at 56, and thus learning that another joint author is exploiting the work is sufficient notice that royalties are due. Here, however, Friedrich alleges primarily that he is sole author and alternatively that he is a joint author.
As to his claim of sole authorship, Friedrich would not have a right to royalties with respect to the movie, but a claim for damages. But as explained above, it is not clear that entering the agreement infringed Friedrich's ownership rights as it may have occurred during the initial term. With respect to the alternative co-authorship claim, it is unclear whether the agreement entitled Friedrich to any royalties before the movie was released and began generating profits in 2007. Moreover, there is evidence that Marvel did pay Friedrich royalties when it reprinted Spotlight 5 in 2005, suggesting that Marvel also might pay him royalties when the movie was released. Hence, a jury could find that a reasonably diligent person would not have known that Marvel was exploiting Ghost Rider, without paying royalties, during the renewal term but before April 4, 2004. Because there are genuine disputes regarding whether Friedrich should have known about Marvel's repudiation of his claim of ownership, his claim is not untimely as a matter of law.
On appeal, Friedrich also asks us to review the district court's decision to deny his cross-motion for summary judgment on the issue of authorship. Friedrich contends that the record establishes as a matter of law that he was the author, or at least a joint author, of the Ghost Rider work.
Because we have jurisdiction over the grant of summary judgment, we have the discretion to review the otherwise unappealable order denying Friedrich's cross-motion for summary judgment. See Barhold v. Rodriguez, 863 F.2d 233, 237 (2d Cir.1988). Although we have already decided to vacate the judgment in favor of Marvel, we exercise our discretion to review this portion of the district court's order in the interests of judicial economy. See id. As with the grant of summary judgment, we review the district court's denial de novo, but this time we construe the record in favor of Marvel, "the party against whom summary judgment is sought." Mullins, 653 F.3d at 113 (quotation omitted).
The Copyright Act protects "original works of authorship fixed in any tangible medium of expression," but not ideas. 17 U.S.C. § 102; see H.R.Rep. No. 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5670 (indicating 1976 Act did not change "the basic dichotomy between expression and idea" embodied in the 1909 Act). The author of a work owns the copyright in that work,
Although the 1976 Act requires the parties to execute an express agreement that a work is "made for hire," see 17 U.S.C. § 101, works created prior to 1978 are governed by the 1909 Copyright Act, Martha Graham Sch., 380 F.3d at 633-34. That Act did not require an express agreement; instead, "[t]he copyright belong[ed] to the person at whose `instance and expense' the work was created." Id. at 634-35. "A work is made at the hiring party's `instance and expense' when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out," even if that right is never exercised. Id. at 635.
We agree with the district court that there are genuine disputes of material fact that preclude granting summary judgment on the issue of authorship. While Friedrich points to evidence that would demonstrate
Marvel had published comic books starring a cowboy named Ghost Rider since 1966. In 1971, Friedrich was working on an issue of Daredevil when he approached Thomas with an idea, not a written proposal, for a motorcycle-riding villain named Ghost Rider. Thomas thought the character was better suited as a superhero in his own comic book and arranged a meeting with Lee. Lee authorized the comic book, deciding Ghost Rider's alter ego would be named "Johnny Blaze," even though both Friedrich and Thomas disliked that name. Friedrich began writing Ghost Rider's origin story only after this meeting. Thomas and Ploog scheduled a meeting to design the character, but Friedrich failed to attend that meeting and did not provide any instruction on what Ghost Rider should look like beforehand. Therefore, Ploog modeled the new character after the original cowboy, incorporating Thomas's idea for an Elvis-like leather jump suit and a skull head, and then spontaneously drawing flames to frame the skull. The rest of the book was produced according to the "Marvel method," with Marvel retaining editorial control throughout and paying all costs, including a page rate for Friedrich's contributions as a freelance writer.
When construed in Marvel's favor, the record reveals that Friedrich had nothing more than an uncopyrightable idea for a motorcycle-riding character when he presented it to Marvel because he had not yet fixed the idea into a tangible medium. See 17 U.S.C. § 102(b). A jury could find that Marvel then "induce[d] the creation of" the flaming-skulled superhero Ghost Rider and Spotlight 5, and had "the right to direct and supervise the manner in which the work [was] carried out." Martha Graham Sch., 380 F.3d at 635. Under this version of the facts, Thomas, a Marvel employee, was the one who decided that Ghost Rider should be a superhero in his own comic book. Lee, the head of Marvel, commissioned the work by authorizing the comic's production. Ghost Rider's appearance and origin story developed through the collaborative efforts of Friedrich, Thomas, Lee, and Ploog, all of whom were paid by Marvel. If accepted as true, a jury could easily conclude from these facts that Ghost Rider was a "work made for hire" and thus that Marvel was the sole statutory author. Accordingly, we affirm the district court's denial of Friedrich's motion for summary judgment.
We conclude that the district court erred in granting summary judgment because the Agreement is ambiguous and there are genuine disputes of material fact regarding the parties' intent to assign renewal rights in that Agreement, the timeliness of Friedrich's ownership claim, and the authorship of the work. Accordingly, the judgment is VACATED and the case is REMANDED for trial.
