Spider-Man and Likeness Rights

Today we have a question from Hurley, who writes:

In [Ultimate Spider-Man #109]  Wilson Fisk, A.K.A. the Kingpin, points out to Spider-Man that the costume he wears and his name were given to him by a now-defunct wrestling company. Kingpin bought said company [in issue #106], which he says gives him merchandising rights to all things Spider-Man related. Clothing, toys, etc. Is this legally correct?

(If you’re interested, this storyline is collected in Ultimate Spider-Man vol. 18.)

Here’s the complete history: As usual, Spider-Man tried to make some extra money on the wrestling circuit.  The company that organized the matches was Hercules Wrestling, Inc., and apparently Parker signed away the Spider-Man name and merchandising rights to Hercules.  Later, a Spider-Man movie came out, and the studio managed to prevent Hercules from putting out Spider-Man merch, resulting in Hercules going bankrupt.  Apparently a company called C and C Licensing picked up the rights from Hercules in bankruptcy. C and C is a subsidiary of GG Enterprises, which Fisk purchased.  Thus, through this chain of subsidiaries, Fisk owns the rights to the Spider-Man name as well as the licensing rights for his likeness.  As a result, Fisk actually wants Spider-Man to keep doing his thing because Fisk makes more money from the merchandise sales than he loses from Spider-Man meddling in his affairs.  Pretty villainous, eh?

There are three major questions here.  First, what rights are involved, exactly?  Second, could Fisk have purchased them that way?  Third, is Spider-Man really powerless to do anything about it?

I. Name and Likeness Rights

Name and likeness rights generally fall under the right of publicity, which is something that we (and guest author Brad Desnoyer) have talked about before.  As Brad noted, the right of publicity “protects an individual’s ability ‘to control the commercial use of his or her identity.’” (quoting 31 Causes of Action 2d 121).  In Spider-Man’s case, the rights of publicity at issue would likely cover his “stage name” and his likeness.

Since this all happens in New York, we can use the New York right of publicity statute.  The statute covers a person’s “name, portrait or picture.” N.Y. Civil Rights Law § 51.  A “name” can include a stage name, if it “has become known to the public and identifies its bearer virtually to the exclusion of his true name.”  See, e.g., DeClemente v. Columbia Pictures Indus. Inc., 860 F.Supp. 30, 53 (E.D.N.Y. 1994).  Under this standard, Spider-Man would qualify, as he is nationally known as Spider-Man and is essentially unknown as Peter Parker.  And of course his image would qualify as a “portrait or picture.”

So the rights at issue are pretty much as described in the comics (at least at the beginning; later on Spider-Man refers to Fisk owning “his copyright,” which is not accurate, unless Spider-Man was engaging in a little fourth wall-breaking.).

II. The Chain of Title and IP Holding Companies

From what I can tell from the comic, this all seems believable enough.  It’s not 100% clear to me how the movie studio drove the wrestling company into bankruptcy, but admittedly I haven’t read those earlier issues yet, so maybe that’s explained in more detail.  In any event, the maze of holding companies and subsidiaries is par for the course.  Many media companies have separate holding and licensing companies for characters, trademarks, and other IP.  For example, Marvel Entertainment, LLC (itself now a subsidiary of The Walt Disney Company) has three IP holding companies, including Marvel Characters, Inc.

You might be wondering why businesses bother creating IP holding companies.  The answer, as is so often the case with strange corporate behavior, is tax reduction:

Specifically, if a holding company is created to own the trademarks of the operating company, it can license those marks back to the operating company. In some states, tax income from royalties from license agreements owned by the holding company is exempt. Further, the state from which the income is paid, cannot tax that payment either. Finally, the operating company may deduct the royalty payments as operating expenses.

Allan J. Sternstein et al., Designing an Effective Intellectual Property Compliance Program, in Corp. Compl. Series: Intell. Prop. § 3:7 (2011).  Pretty sweet setup, huh?

III. So is Spider-Man Out of Luck?

Probably, unless his original contract with the wrestling company is invalid or unenforceable.  The New York statute allows a person to sign away (in writing) their right of publicity.  Interestingly, if the person is a minor, then their parent or guardian must give their written consent.  N.Y. Civil Rights Law § 50.  Ultimate Spider-Man is apparently a minor at the time, and I doubt Aunt May or Uncle Ben (who was still alive at the time) signed off on the wrestling contract, so that might be a way out.

Another issue might be whether the contract made the right of publicity assignable or available for sublicense.  If the contract was solely with Hercules Wrestling, then it might not have been properly assigned to C and C, leaving Fisk with nothing.  Unfortunately, Fisk’s storyline gets wrapped up before we find out whether Spider-Man had any legal way out.  Too bad, since he was already teamed up with Daredevil, and I’d think Murdock would like to not only see Fisk behind bars but also a piece of his business empire taken away from him.

IV. Conclusion

This was a nice application of what should be a significant issue in comics: within the fictional comic book world, superheroes and supervillains are real people and so have rights of publicity and privacy that would be worth a lot of money.  Shady licensing deals would likely abound, but some superheroes could become rich from merchandise sales and endorsements (or they could donate it to charity, as it is sometimes suggested that Superman does).  At the same time, a lot of the copyright issues that surround comic books in the real world wouldn’t exist.  Thus, instead of comic book authors getting raw deals, the superheroes themselves would.  Progress!

20 Responses to Spider-Man and Likeness Rights

  1. Funnily enough (or appropriately), wrestling itself is an excellent place to look for this. There are a number of wrestlers who’ve lost control of the use of their stage names. Arguably, that’s one of the reason you see so few wrestlers wrestle under their own names, since said name could be barred from them if they ever leave the promotion.

  2. Wait. Unless the Ultimate costume is wildly different from the original recipe, Spider-man wears a mask, and it’s duplication of the mask (and uniform) that is at issue. I would tend to argue that rather than NY’s right of publicity law, the correct starting point is NY’s trademark and unfair business practices law.
    Peter would have a right of publicity interest in Spider-Man’s voice, because that is his. In looking for analogies, I keep coming to actors who play characters with either makeup that obscures their true features, or a full mask. So, for instance, Dave Prowse doesn’t have any right of publicity in Darth Vader’s mask, and neither does any of the many actors who’ve played Jason Voorhees. On the other hand, neither (I think!) do the movie studios have rights of publicity in the masks… they have to make do with copyright and trademark protections on them. They seem to do all right.

    • The difference is that Darth Vader is not David Prowse’s public persona, nor is Jason Vorhees the public persona of any actor who has played him. They are clearly characters in self-contained fictional films. Since the actors can’t have a right of publicity in those characters, there’s nothing for the studio to own.

      A better example might be someone like Groucho Marx. His true name was Julius Henry Marx, but the public knew him as Groucho. For most of his film career his famous moustache and eyebrows were just stage makeup, not his actual likeness, but that’s how the public knew him, in public appearances as well as movies (here’s a couple pictures of him without a moustache). I don’t know that it ever came up in court, but I think that he would have had a good case that he had publicity rights in the Groucho name and likeness.

      In this case, Spider-Man isn’t an actor playing a role but rather the nationally known public identity of a real person (in the context of the fictional universe). The vast majority of the public has no idea what Spider-Man’s real name or appearance are, nor do they even have a way to find out. That seems to satisfy the standard outlined in the cases.

      • James Pollock

        But when it was created, “Spider-Man” was the stage name of a professional wrestler, completely unknown outside of that area, and all subsequent fame associated with the mask and costume developed AFTER this. (I think the nature of pro wrestling is well-enough understood to be considered “playing a role” rather than the actual real persona of the person participating.

        If Mr. Prowse had, back in 1978, embarked on a career in crime-fighting while wearing either the original or a good likeness of the Vader mask, that wouldn’t give him any rights in it… even if “Star Wars” had been a flop and Mr. Prowse’s heretofore undiscovered crime-fighting abilities so prodigious as to make him nationally known.

        P.S. I think you understate Vader’s nature in describing him as “merely a character in a self-contained film”. Vader’s also about a million different toys (1977-), and star (sort of) in a couple of nationally prominent ads for VW (2010-2011), and plenty of other stuff in between.

      • But when it was created, “Spider-Man” was the stage name of a professional wrestler, completely unknown outside of that area, and all subsequent fame associated with the mask and costume developed AFTER this.

        I don’t think that’s relevant. Many cases consider fame and celebrity status as important only to the measure of damages. From the moment Spider-Man started making use of a public persona in a commercial setting, he had a right of publicity, however minimal. That right later became extremely valuable, but Hercules Wrestling owned it nonetheless.

        I think the nature of pro wrestling is well-enough understood to be considered “playing a role” rather than the actual real persona of the person participating.

        That’s not the important bit: the important bit is that the character is the only persona the public sees. That is not true of David Prowse, for example, who has done many other roles and does not habitually appear in public as Vader. In Spider-Man’s case, by contrast, that’s the only persona the public knows him by.

        I think you understate Vader’s nature in describing him as “merely a character in a self-contained film”

        Yes, but all of that happened via copyright and possibly trademark, not a right of publicity. There is no person whose public persona is Darth Vader such that he or she would have a right of publicity to sell to Lucasfilm.

      • James Pollock

        “Yes, but all of that happened via copyright and possibly trademark, not a right of publicity. There is no person whose public persona is Darth Vader such that he or she would have a right of publicity to sell to Lucasfilm.”

        Yes, this is my point. Lucasfilm owns trademark and copyright in the Darth Vader mask and costume… but not right of publicity. Dave Prowse owns rights of publicity in his own name and likeness, but not in the mask and costume associated with the role he was hired to play. Hercules owns copyright (probably) and trademark in the Spider-Man costume… but not right of publicity. Peter Parker owns rights of publicity in his own name and likeness, but not in the mask and costume associated with the role he was hired to play. I think Kingpin would have ownership of the copyright (if any) in the costume, and ownership of the trademarks.
        This is why Clayton Moore was legally prevented from wearing a Lone Ranger mask in public for decades… he didn’t have any trademark rights in the Lone Ranger mask or costume, the studio did… and Clayton appearing in public for a reason not associated with a Lone Ranger motion picture would have been likely to confuse consumers.
        Now, I THINK Spider-Man would be able to escape the trademark trap by pointing out that HIS “Spider-Man” A) can do things other wrestlers wearing the uniform never could do, thus negating likelihood of confusion, and B) he’s changed costumes a few times over the years. Finally, C) trademarks have to be in continuous use to retain their status.

      • Again, all of those examples are inapposite because they were actors with preexisting public personas, namely their real names and likenesses. Spider-Man is different. He could have likeness rights in his “stage name” and persona because that is his public (and effectively only) persona.

      • James Pollock

        I don’t see the difference, and I don’t think that it matters anyway. Fisk isn’t making money from paying somebody to take on the persona of Spider-Man, he’s making money licensing the mask, costume, and derivitive works. It would be different if Peter’s face were associated with the costume, but it isn’t. Right of publicity protects likeness, voice, and persona… Peter obscures his likeness when he appears as Spider-Man.

  3. Craig A. Glesner

    Thanks again, your blog has pointed out to me while creating my own universe that I did not cover huge swaths of the law. I only concentrated on the criminal aspect (and thanks to you I discovered i missed some of that too).

    Excellent work and keep it up. Loving the blog.

  4. “Spider-Man refers to Fisk owning “his copyright,” which is not accurate, unless Spider-Man was engaging in a little fourth wall-breaking”

    Most of the general public seems to use “copyright” as an all purpose word for all IP other than patents.

  5. Regarding “At the same time, a lot of the copyright issues that surround comic books in the real world wouldn’t exist. ” – not at all. I recall from early Fantastic Four that there’s an in-universe comic book of them, presumably properly licensed as minor property of FF, Inc. There was a Batman arc at least once about a publisher making an in-universe Batman comic book (which had a lot of fun with the idea of how Batman might be portrayed by writers who lived in world with aliens and demons, and didn’t know he was just a highly trained human). One issue of Blackhawks had them commenting on old in-universe comics about them, as a way for the writer to make some points about past portrayals (particularly the racist stereotype of Chop-Chop). Since none of these comics were written by the heroes themselves, the authors have plenty of opportunity to get raw deals.

  6. Regarding Groucho, and the rest of the Marx Brothers for that matter, their names and act were well established on Vaudeville before they started making movies. I believe they would have always retained rights to their characters and personas even after they signed with a studio. Peter’s persona on the other hand was created at the time he started wrestling.

    • Not necessarily. They could have sold their likeness rights to the studio as part of the movie deal (I’m not saying they did, just that it’s possible). And note, by the way, that even if Groucho signed an exclusive licensing deal with the studio, Groucho himself could continue to use his name and likeness; he just couldn’t sell another license to a different company.

  7. For Spider-Man’s contract with the wrestling company to be enforceable, wouldn’t it have had to be under his name as “Peter Parker”? I don’t believe that the story has him revealing this to the company – or else anyone who did the research would have had his secret identity for all this time. If he was anonymous (or pseudonymous) in that contract, would it still be binding?

    • A signature can be an alias. “The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.” Restatement (Second) of Contracts § 134. That’s why, for example, an illiterate person may sign with an X or other mark. To avoid having to reference Peter Parker’s real name, the contract could be worded like so: “I, the undersigned, hereby consent to Hercules Wrestling’s use of my name (“Spider-Man”), portrait, picture, and voice. Signed, /Spider-Man/”. In a real contract there would be more to it, but that’s the basic idea.

      • Most of this seems predicated on the identity being Peter’s originally and then signed over to Hercules Wrestling. It’s been awhile since I’ve read early Ultimate Spiderman, but is there any evidence that the identity was in any sort of use by Peter before he started wrestling? Even if he created the persona, couldn’t it be a “work for hire” if he created it for the (original) sole purpose of an identity to wrestle for Hercules Wrestling under?

      • James Pollock

        In order for copyright to be “work for hire”, the creator has to agree specifically to it being “work for hire”. Not only that, but the contracts handed to creators who do “work for hire” typically ALSO include a perpetual assignment of all rights to anything that is found to be not “work for hire”. (The enforceability of such contracts is dubious (can you agree to assign something before you’ve even created it?) but the person confronted by such a contract is under no impressions that they are to own the creations contracted for.)

  8. Pingback: The Amazing-Spider Man: Background | Law and the Multiverse

  9. What are the chances that Peter Parker could get the contract thrown out because he was a child when he signed it?

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