12-893-cv

Gary Friedrich Enters., LLC v. Marvel Characters, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2012

(Argued: February 20, 2013 Decided: June 11, 2013)

Docket No. 12-893-cv

GARY FRIEDRICH ENTERPRISES, LLC, and 

GARY FRIEDRICH,

PlaintiffsCounter-DefendantsAppellants,

v.

MARVEL CHARACTERS, INC., a Delaware corporation,

DefendantCounter-ClaimantAppellee,

MARVEL ENTERPRISES, INCORPORATED, a Delaware corporation, MARVEL 

ENTERTAINMENT, INCORPORATED, a Delaware corporation, MARVEL 

STUDIOS, INC., a Delaware corporation, HASBRO, INC., a Rhode 

Island corporation, TAKE TWO INTERACTIVE SOFTWARE, INC., a 

Delaware corporation, COLUMBIA TRI-STAR MOTION PICTURE GROUP, a 

joint venture, COLUMBIA PICTURES INDUSTRIES, INC., a Delaware 

corporation, CRYSTAL SKY PICTURES, a California corporation,

RELATIVITY MEDIA L.L.C., a California corporation, MICHAEL DE 

LUCA PRODUCTIONS, INC., a California corporation, SONY PICTURES 

ENTERTAINMENT, INC., MARVEL CHARACTERS B.V., MARVEL INTERNATIONAL 

CHARACTER HOLDINGS, INC., MARVEL WORLDWIDE, INC.,

Defendants-Appellees,
3 DAY BLINDS, AAGLOBAL INDUSTRIES, ABDO PUBLISHING, ADORABLE 

KIDS, ART.COM INC., ARTIMONDE TRADING INC., ASGARD PRESS, AST

SPORTWEAR INC., BECKER AND MAYER LLC, BERKSHIRE FASHIONS, BEST 

BRANDS CONSUMER PRODUCTS INC., BIODOME, BOWEN DESIGNS, BROWN 

SHOES, BUSTER BROWN & CO., BUY RITE DESIGNS, CALEGO INTERNATIONAL,

CDVISIONARY, CLICKS WORLDWIDE, CORBIS CORPORATION, COMIC IMAGES,

CONOPCO INC., d/b/a UNILEVER, d/b/a UNILEVER CANADA, INC., CSS

INDUSTRIES, DCL MOTION PICTURES LLC, COURAGE BRANDS INC., DCL

MOTION PICTURES, LLC, DESPERATE ENTERPRISES, INC., DIAMOND SELECT 

TOYS AND COLLECTIBLES LLC, DORIS KINDERSLY LTD., EVERY PICTURES

TELLS A STORY, FANTASY FLIGHT GAMES, FUNLINE MERCHANDISE, GAMER 

GRAPHICS, GELASKINS, GENTLE GIANT LTD., GRAPHICS IMAGING, HANDS-ON 

MOBILE AMERICA INC., HEWLETT PACKARD, HOT TOPIC, INC., HUGH,

LAUTER, LEVIN AND ASSOCIATES, JAGO CORP. ASIA LIMITED, JAKKS

PACIFIC, INC., JASMAN ASIA LTD., JAY FRANCO & SONS, INC., JPI

ACQUISITION GROUP, d/b/a DISGUISE INC., JOHNNY BLAZE SPORTSWEAR,

K2, INC., KELLYTOY (USA), KLUTZ, KOTOBUKIYA, KHQ INVESTMENT 

LLC, KDT USA, KSM SUPERHERO LTD., KSM ENTERPRISE INC.,

LASERMARCH INC., LEAP YEAR PUBLISHING, LF USA INC., LOWRIDER 

TECHNOLOGY GROUP, INC., MAD ENGINE INC., MAISTO INTERNATIONAL 

INC., MASTER REPLICAS INC., MATTEL INC., MATTEL EUROPA, MATTEL 

ASIA PACIFICA, MATTEL OVERSEAS, MEREDITH CORPORATION, MCA INC.,

MGA ENTERTAINMENT, INC., MFORMA AMERICAS INC., MFORMA HOLDINGS,

LTD., MEDICOM, MIGHTY FINE, INC., MOB TOWN, MONOGRAM 

INTERNATIONAL, MZ BERGER AND COMPANY, NECA INC., NATIONAL 

ENTERTAINMENT COLLECTIBLES ASSOCIATION INC., NMTC, d/b/a MATCO 

TOOLS, INC., NR2B RESEARCH, INC., NTD APPAREL, NUBYTECH, PHOTO 

FILE, INC., PLANETWIDE GAMES, POP CULTURE GRAPHICS, INC., R AND 

INTERNATIONAL, RAVEN SOFTWARE, RC2 CORPORATION, RITTENHOUSE 

ARCHIVE, LTD., SARA LEE CORPORATION, d/b/a KLUTZ, SCREENLIFE LLC,

SEGA CORPORATION, SEGA OF AMERICA, INC., SIDESHOW COLLECTIBLES,

INC., SOTA TOYS LLC, SPENCER REED ACCESSORIES LTD., SPIN MASTER 

LTD., STREET FLYERS, STRETCH-O-RAMA, INC., SWICHERZ LLC, THQ

INC., TM INTERNATIONAL, d/b/a SAAVI, d/b/a VSI, UPPER DECK 

COMPANY, TOY ISLAND MANUFACTURING COMPANY, LTD., TOY THINGS,

TRENDS INTERNATIONAL LLC, TRI-COASTAL DESIGN, TUPPERWARE BRANDS 

CORPORATION, US NUTRITION INC., ULTIMATE LICENSING GROUP LLC,

UNION UNDERWEAR COMPANY, INC., d/b/a FRUIT OF THE LOOM, UNIVERSAL 
- 3 -

CITY, UNIVERSAL DESIGNS, LTD., VETEMENT ADORABLE TOO, WAGERLOGIC 

LIMITED, WALGREEN COMPANY, WEAR ME APPAREL CORP., WHAT KIDS WANT 

INTERNATIONAL, WHAT KIDS WANT, INC., WILTON BRANDS, INC., WILTON 

INDUSTRIES INC., WIZ KIDS LLC, YELLOWMAN LLC, YORK WALLCOVERINGS,

INC., ZAZZLE, INC., ZIZZLE HOLDING LIMITED, MVL INTERNATIONAL 

C.V., MARVEL ENTERTAINMENT, LLC, ACTIVISION BLIZZARD, INC.,

SCHOLASTIC, INC., DCL MOTION PRODUCTS, WALT DISNEY COMPANY,

Defendants.

Before:

WINTER, CHIN, AND DRONEY, Circuit Judges.

Appeal from a judgment of the United States 

District Court for the Southern District of New York 

(Forrest, J.), dismissing the amended complaint for 

copyright infringement brought by the purported creator of

the comic book character Ghost Rider, and awarding damages 

to the publishing company on its counterclaim for copyright 

infringement. The district court held as a matter of law 

that plaintiff-counter-defendant-appellant Gary Friedrich

assigned any rights he retained in the renewal term of the 

1972 Ghost Rider copyrights to the predecessor of 

defendant-counter-claimant-appellee Marvel Characters, Inc.

in a 1978 form work-for-hire contract. We conclude that 
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the contract language is ambiguous and that genuine 

disputes of material fact, as to the parties' intent and 

other issues, preclude the granting of judgment as a matter 

of law.

VACATED AND REMANDED.

CHARLES S. KRAMER (Joseph D. Schneider, on 

the brief), Riezman Berger, P.C., 

St. Louis, Missouri, and Eric W. 

Evans and Dawn K. O'Leary, Evans 

Blasi, Granite City, Illinois, for 

Plaintiffs-Counter-DefendantsAppellants.

R. BRUCE RICH (Randi W. Singer, Gregory 

Silbert, and Adam B. Banks, on the 

brief), Weil, Gotshal & Manges LLP, 

New York, New York, and David 

Fleischer, Haynes and Boone, LLP,

New York, New York, for DefendantCounter-Claimant-Appellee and 

Defendants-Appellees.
- 5 -

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.
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In this case, plaintiff-counter-defendantappellant 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 a form work-forhire agreement in 1978, six years after the initial 

publication of the issue in question. Friedrich and his 

production company, Gary Friedrich Enterprises, LLC, 

appeal. We vacate and remand for trial.
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STATEMENT OF THE CASE

A. The Facts

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.

1. Friedrich Creates the Ghost Rider

A fan of comic books and motorcycle gang movies, 

Friedrich began to imagine, in the 1950s, a motorcycleriding 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.
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Friedrich was a part-time freelance comic book 

writer, scripting issues of existing comic book serials

when solicited by Marvel1 and other publishers. In 1971, 

Friedrich decided to try to publish a comic book starring 

his flaming-skulled hero after the Comics Code Authority

relaxed its standards to permit comic books to contain more 

adult-themed and supernatural content. After refining the 

origin story and the characters' appearances, Friedrich 

created a written synopsis on his own initiative and at his 

own expense. The synopsis detailed Ghost Rider's origin 

story and the main characters' appearances.

2. Marvel Agrees to Publish the Comic

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.2 Thomas liked the idea, so he gave the 

 

1 Ownership of the comic book brand "Marvel Comics

Group" has changed hands multiple times over the years. For 

simplicity, the term "Marvel" will be used to refer generally to 

the publisher of the comics, and the specific corporate owner 

will be identified only when relevant.

2 In 1968, Martin and Jean Goodman sold the Marvel 

Comics Group brand and their other publishing assets to Perfect 

Film & Chemical Corporation ("Perfect Film"). Perfect Film then 
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synopsis to Marvel chief Stan Lee and arranged for Lee to 

meet with Friedrich. Lee agreed to publish the Ghost Rider 

comic book in the series Marvel Spotlight, a vehicle used 

to audition new superheroes. In return, Friedrich agreed 

to assign his rights in the Ghost Rider characters to 

Marvel. Friedrich and Lee never discussed renewal rights

and did not execute a written agreement.

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.

3. The Comic Is Published in 1972

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 

 

assigned the Marvel brand to its wholly-owned subsidiary 

Magazine Mgmt. 
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of the comic, reproduced above, contained a credit box that 

included the following:

CONCEIVED & WRITTEN

GARY FRIEDRICH

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."3 Marvel promptly filed registrations for several 

of these subsequent Ghost Rider comic books, even though it 

 

3 Friedrich only alleges authorship of the main 

characters and origin story contained in Spotlight 5.
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had not filed a registration for Spotlight 5.4 In October 

1974, Marvel reprinted the original Spotlight 5 as Ghost 

Rider Vol. 1, No. 10, leaving Friedrich's "Conceived &

Written" credit intact.

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.

4. The Agreement

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 

 

4 Marvel would not register Spotlight 5 until 2010, 

after this action was filed.
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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").

5 Thus, in 1978, Cadence Industries, Inc. 

("Cadence"), the then-publisher of Marvel comics,6 required 

Friedrich and all of its other freelance artists to sign a 

form work-for-hire agreement.

The full agreement was a page long and read in 

pertinent part:

MARVEL is in the business of 

publishing comic and other magazines 

known as the Marvel Comics Group, 

and SUPPLIER wishes to have MARVEL 

order or commission either written 

material or art work as a 

contribution to the collective work 

known as the Marvel Comics Group. 

MARVEL has informed SUPPLIER that 

MARVEL only orders or commissions 

such written material or art work on 

an employee-for-hire basis.

 

5 The statute defines "work made for hire" as, inter 

alia, "a work specially ordered or commissioned for use as a 

contribution to a collective work . . . if the parties expressly 

agree in a written instrument signed by them that the work shall 

be considered a work made for hire." 17 U.S.C. § 101.

6 Magazine Mgmt. assigned the Marvel Comics Group brand 

to Cadence, Perfect Film's successor, in 1972.
- 13 -

THEREFORE, the parties agree as 

follows:

In consideration of MARVEL's 

commissioning and ordering from 

SUPPLIER written material or art 

work and paying therefor, SUPPLIER 

acknowledges, agrees and confirms 

that any and all work, writing, art 

work material or services (the 

"Work") which have been or are in 

the future created, prepared or 

performed by SUPPLIER for the Marvel 

Comics Group have been and will be 

specially ordered or commissioned 

for use as a contribution to a 

collective work and that as such 

Work was and is expressly agreed to 

be considered a work made for hire.

SUPPLIER expressly grants to 

MARVEL forever all rights of any 

kind and nature in and to the Work, 

the right to use SUPPLIER's name in 

connection therewith and agrees that 

MARVEL is the sole and exclusive 

copyright proprietor thereof having 

all rights of ownership therein. 

SUPPLIER agrees not to contest 

MARVEL's exclusive, complete and 

unrestricted ownership in and to the 

Work. 

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 
- 14 -

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.

5. The Renewal Term Beginning in 2001

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 
- 15 -

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-forhire. Despite taking this position, however, Marvel paid 

Friedrich with checks labeled "roy," meaning "royalties," 

when it reprinted Spotlight 5 in 2005.

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 
- 16 -

and Ghost Rider in February 2007. He then assigned the

rights to his company, Gary Friedrich Enterprises, LLC.

B. Proceedings Below

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.

7

On May 17, 2010, Marvel and the related defendants 

filed their answer, asserting that Ghost Rider was a "work-

 

7 Friedrich argues on appeal that the district court 

erred in dismissing his state law claims and denying the motion 

for reconsideration. After an independent review of the record, 

we affirm the dismissal of the state law claims for 

substantially the reasons set out in the district court's 

orders.
- 17 -

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 344-45.8 

 

8 The district court also noted that Friedrich was paid 

for his work on Spotlight 5 with checks bearing legends 
- 18 -

The district court reasoned that the term "forever" clearly 

indicated the parties' intent to convey the renewal term to 

Marvel. See id. at 344-46 (citing P.C. Films Corp. v. 

MGM/UA Home Video Inc., 138 F.3d 453, 457 (2d Cir. 1998)).

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 Marvel for Friedrich's 

copyright infringement, and enjoining Friedrich from using 

the Ghost Rider copyright. This appeal followed.

DISCUSSION

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 

 

assigning, in general terms, all of his rights to Marvel. See 

Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 837 F. 

Supp. 2d 337, 343-44 (S.D.N.Y. 2011). But the record does not 

reveal the exact language of these check legends and Marvel 

concedes that only the Agreement contains language that could 

have even arguably conveyed Friedrich's renewal rights.
- 19 -

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.

A. Renewal Rights

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.
- 20 -

1. Applicable Law

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 (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." 
- 21 -

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 

913.9 In P.C. Films Corp., we affirmed the district court's 

conclusion, reached after a bench trial, that the term 

"perpetual" indicated a clear intent to convey renewal 

rights. 138 F.3d at 454. There, the parties had agreed to 

 

9 This is not to suggest that summary judgment may never 

be granted when a contract contains only general words of 

assignment. Rather, it means that general phrases like 

"forever" are merely some evidence of the parties' intent to 

convey renewal rights. As always, summary judgment should be 

granted if the record as a whole demonstrates there is no 

genuine dispute regarding the parties' intent. See Fed. R. Civ. 

P. 56(a).
- 22 -

use the term "perpetual" after "months of negotiations 

conducted by sophisticated and expert parties, each 

represented by counsel." Id. at 455. Furthermore, there 

was undisputed testimony that the assignee would not have

entered the agreement "for less than a perpetual term and 

that, in his understanding, the term 'perpetual' . . . was 

not coterminous with the initial copyright term." Id. at 

457.

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 . . . ."). 
- 23 -

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).10

"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,"

 

10 While this case was originally filed in the Southern 

District of Illinois, we conclude that New York law would govern 

the contract whether we applied Illinois's or New York's choiceof-law rules. See Van Dusen v. Barrack, 376 U.S. 612, 639 

(1964) (explaining that federal court sitting in diversity must 

apply choice-of-law rules of state where action was originally 

filed, even after a transfer for improper venue); see also 

Ferens v. John Deere Co., 494 U.S. 516, 531 (1990) (holding that 

"transferor law should apply regardless of who makes the 

§ 1404(a) motion").
- 24 -

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 more than 

one meaning when viewed objectively by a reasonably 

intelligent person who has examined the context of the 

entire integrated agreement," then the agreement is 

ambiguous and extrinsic evidence may be considered to 

determine the parties' intent. Law Debenture Trust Co. of 

N.Y. v. Maverick Tube Corp., 595 F.3d 458, 466 (2d Cir. 

2010) (quotation omitted). 
- 25 -

2. Application

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.

a. The Plain Language

The Agreement is ambiguous on its face. First, 

the critical sentence defining the "Work" covered by the 

Agreement is ungrammatical and awkwardly phrased:

In consideration of MARVEL's 

commissioning and ordering from 

SUPPLIER written material or art 

work and paying therefor, SUPPLIER 

acknowledges, agrees and confirms 

that any and all work, writing, art

work material or services (the 

"Work") which have been or are in 

the future created, prepared or 

performed by SUPPLIER for the Marvel 

Comics Group have been and will be 

specially ordered or commissioned 

for use as a contribution to a 

collective work and that as such 

Work was and is expressly agreed to 

be considered a work made for hire.
- 26 -

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-forhire 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.

11 Read in this context, work that "have [sic] been

. . . created" -- to the extent the phrase has a 

 

11 Indeed, after reading the Agreement for the first time 

during a deposition, a Marvel representative concluded that the 

form contract appeared to only cover work created after the 1976 

Act.
- 27 -

discernible meaning -- may refer to work that was inprogress when the Agreement was executed, even though 

Marvel may have commissioned that work, and the freelance 

artist may have begun working on it, before the Agreement 

was formally reduced to writing. See, e.g., Agreement 

("MARVEL has informed SUPPLIER that MARVEL only orders 

. . . work on an employee-for-hire basis. . . . SUPPLIER 

acknowledges, agrees and confirms that any and all work 

. . . have [sic] been and will be specially ordered or 

commissioned . . . [as] a work made for hire.").

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 merely 

tracks the 1976 Act's definition of "work made for hire." 

See 17 U.S.C. § 101 (defining term as "a work specially 

ordered or commissioned for use as a contribution to a 

collective work . . . if the parties expressly agree in a 

written instrument signed by them"). If the contract only 

covers "work made for hire," Marvel would be the statutory 

author, see id. § 201(b); Cmty. for Creative Non-Violence 

v. Reid, 490 U.S. 730, 743-44 (1989) (citing 1909 Copyright 
- 28 -

Act § 62, 17 U.S.C. § 26 (repealed 1976)), and the 

"SUPPLIER" would not have any renewal rights that could be 

assigned to Marvel.

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.
- 29 -

b. Extrinsic Evidence

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). 
- 30 -

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 Rider, that alone would not mean 

that they intended the Agreement to convey Friedrich's 

remaining renewal rights in that work. First, the 

Agreement appears to create an "employee for hire" 

relationship, but the Agreement could not render Ghost 
- 31 -

Rider a "work made for hire" ex post facto, even if the 

extrinsic evidence shows the parties had the intent to do 

so. The 1909 Act governs whether works created and 

published before January 1, 1978 are "works made for hire," 

see Martha Graham Sch., 380 F.3d at 633-34, and that Act 

requires us to look to agency law and "the actual 

relationship between the parties, rather than the language 

of their agreements," in determining the authorship of the 

work, Marvel Characters, Inc. v. Simon, 310 F.3d 280, 291-

92 (2d Cir. 2002).12 Thus, regardless of the parties' 

intent in 1978, the evidence must prove Ghost Rider was 

actually a "work made for hire" at the time of its 

 

12 Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2d 

Cir. 2002), is instructive. There, an artist had sued Marvel, 

alleging he created the comic book character Captain America and

therefore owned the renewal copyright in that work. Id. at 283. 

To settle the action, the artist agreed to assign the renewal 

rights to Marvel and stipulated that Captain America was a "work 

for hire." Id. at 283-84. In 1999, the artist attempted to 

exercise his statutory right to terminate the assignment of 

renewal rights. Id. at 284 (citing 17 U.S.C. § 304(c)). 

Because the work was subject to the 1909 Act, we held that "an 

agreement made subsequent to a work's creation which 

retroactively deems it a 'work for hire' constitutes an 

'agreement to the contrary' under § 304(c)(5) of the 1976 Act." 

Id. at 292. Thus, the settlement agreement did not preclude the 

artist from proving that he actually was the author and had the 

statutory right to terminate the assignment. Id. at 292-93.
- 32 -

creation. But the circumstances surrounding the creation 

of the work are genuinely in dispute.

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. 

B. Timeliness of Ownership Claims

Because Marvel asserts that there is an 

alternative ground for affirming the district court's 

judgment, we next consider its argument that Friedrich's 
- 33 -

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).

1. Applicable Law

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 issue, any attendant infringement claims must 

fail." Id. at 230.

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 
- 34 -

"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
- 35 -

they are not receiving, see Merchant, 92 F.3d at 53, 56; 

Stone, 970 F.2d at 1048.

13

2. Application

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 

 

13 Friedrich argues that the statute of limitations 

merely restricts his recovery to damages suffered in the three 

years before filing. In Stone v. Williams, 970 F.2d 1043 (2d 

Cir. 1992), we permitted the illegitimate heir of a famous 

singer to seek royalties for the three years prior to filing 

even though she was charged with knowledge of her ownership 

claim well before that. See id. at 1051. We have subsequently 

made clear, however, that a stale ownership claim bars recovery 

for all subsequent infringement claims. See Kwan v. Schlein, 

634 F.3d 224, 228 (2d Cir. 2011). Stone represents a narrow 

exception in those rare situations "where uncertainty 

surround[s] the relative's status as a member of the author's 

family." Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996).
- 36 -

conspicuously exploiting the copyright without paying 

royalties.

a. Public Repudiation

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 the owner and publicly 

repudiated Friedrich's claim. But in 1972, the notice 

would have only indicated that Marvel held the rights to 

the initial term of copyright. It would not have 
- 37 -

conclusively demonstrated that Marvel was the author or 

otherwise had the right to register the renewal term.

14 

See, e.g., P.C. Films Corp., 138 F.3d at 456 (explaining 

that agreement permitted alleged assignees to "register[] 

the renewal copyright in the[ir] names . . . as coclaimants [just] as [their predecessors] had done for the 

original copyright registration"). At a minimum, there is 

a genuine dispute regarding whether this notice publicly 

repudiated Friedrich's claim of authorship, and thus his

claim to ownership of the renewal rights.

b. Private Repudiation

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 

 

14 Under the 1909 Act, copyright protection was not 

renewed automatically. See 3 Nimmer on Copyright § 9.05[A][1]. 

Only certain parties could file for renewal and formal renewal 

was an "absolute condition" to continued copyright protection. 

Id. § 9.05[A][1], [D][1][a]. While subsequent amendments made 

it possible for the renewal rights in works published between 

1964 and 1977 to vest without formal registration, see Copyright 

Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264; 3

Nimmer on Copyright § 9.05[A][1]-[2], this historical fact 

indicates that the name on the original 1972 copyright notice 

was not necessarily a public repudiation of Friedrich's claim to 

ownership of the renewal copyright. 
- 38 -

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.

c. Implied Repudiation

Finally, there is a genuine dispute as to whether 

Marvel's exploitation of the Ghost Rider copyright during

the renewal term,15 without paying royalties, implicitly 

repudiated Friedrich's claim to ownership. In Merchant v. 

Levy, 92 F.3d 51 (2d Cir. 1996), and Stone v. Williams, 970 

F.2d 1043 (2d Cir. 1992), the alleged co-owners were 

 

15 Marvel's extensive exploitation of Ghost Rider during 

the initial term is irrelevant, as it would be merely consistent 

with Friedrich's claims that he is the author and assigned only 

the initial copyright term to Marvel.
- 39 -

charged with notice of their ownership claim once they knew 

they were entitled to receive royalties, but the works in 

both those cases were hit songs regularly played on the 

radio. See Merchant, 92 F.3d at 52-53, 56 ("Why Do Fools

Fall in Love" by Frankie Lymon and the Teenagers);16 Stone, 

970 F.2d at 1046, 1048 (songs of Hank Williams). In 

contrast, Marvel used the Ghost Rider copyright sparingly 

and in non-obvious ways between 2001 and 2004. Cf. Zuill, 

80 F.3d at 1370 (analogizing statute of limitations for 

ownership claims to doctrine of adverse possession, which 

requires an "express or implicit ouster" to put the owner 

on notice); 3 Am. Jur. 2d Adverse Possession § 62 (2d ed. 

supp. Feb. 2013) (explaining that "the possession of the 

adverse claimant must be open and notorious"). During the 

renewal period but before 2004, Marvel merely: published 

six issues of a short-lived Ghost Rider comic book series

from August 2001 to January 2002; advertised a single Ghost 

Rider toy in each of its 2003 and 2004 toy catalogs; and 

used Ghost Rider for a cameo appearance in a video game

 

16 In Merchant, the jury decided when the alleged coowners should have been charged with knowledge of their claim. 

See Merchant, 92 F.3d at 56.
- 40 -

entitled Spider-Man. There is a genuine dispute as to 

whether a reasonably diligent person would have been put on 

notice by this activity.

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 
- 41 -

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 
- 42 -

the initial term. With respect to the alternative coauthorship 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.17

 

17 We also reject Marvel's arguments that Friedrich is 

barred by the doctrines of laches, see New Era Publ'ns Int'l, 

ApS v. Henry Holt & Co., 873 F.2d 576, 584-85 (2d Cir. 1989), 

and equitable estoppel, see Veltri v. Bldg. Serv. 32B-J Pension 

Fund, 393 F.3d 318, 326 (2d Cir. 2004). Marvel has not suffered 

any "prejudice," New Era Publ'ns, 873 F.2d at 584, or 

"injustice," Veltri, 393 F.3d at 326, warranting the invocation 

of these equitable remedies. The loss of evidence and the 

deterioration of key witnesses' memories are the products of the 

twenty-eight year initial copyright term and the parties' joint 

failure to properly document the ownership of the Ghost Rider 

copyright at the time of its creation. Furthermore, Marvel was 

on notice of a competing claim to the Ghost Rider renewal 
- 43 -

C. Authorship and Work-for-Hire

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 crossmotion 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 

 

copyright since at least 2004 and chose to proceed with the 

production and release of two Ghost Rider movies, including one 

produced entirely after this lawsuit was filed.
- 44 -

against whom summary judgment is sought." Mullins, 653 

F.3d at 113 (quotation omitted).

1. Applicable Law

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,

18

unless it was a "work made for hire," in which case "the 

employer or other person for whom the work was prepared is 

considered the author for purposes of this title." 17 

U.S.C. § 201(a), (b); see also Cmty. for Creative NonViolence, 490 U.S. at 743-44 (citing 1909 Copyright Act 

§ 62). 

Although the 1976 Act requires the parties to 

execute an express agreement that a work is "made for 

 

18 If the work is a "joint work," that is "a work 

prepared by two or more authors with the intention that their 

contributions be merged into inseparable or interdependent parts 

of a unitary whole," then the authors are co-owners of the 

copyright. 17 U.S.C. §§ 101, 201(a).
- 45 -

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.

2. Application

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 that he 

was the sole author or a joint author of the work, Marvel 

has presented evidence supporting the following

contradictory account of the creation of Ghost Rider:

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
- 46 -

with an idea, not a written proposal, for a motorcycleriding 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 
- 47 -

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.
- 48 -

CONCLUSION

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.