If Raphael, Michelangelo, and Leonardo (painters or turtles) were to decide to paint something together, who gets to hold the brush? In Intellectual Property (IP) terms, working with multiple parties with competing IP interests can feel like many artists working on the same canvas. Let me provide some backstory before I answer this question.
Before law school I worked for an advertising agency that made promotional material for major studio films. We made trailers, Instagram videos, and other advertisements for upcoming releases. One of the last projects I worked on was a recent G.I. Joe film that was an origin story about one of the franchise’s more popular characters. The studio (Paramount) wanted us to bridge the gap between old and new fans. Our task was clear: woo those 50-year old G.I. Joe fanboys who had been following the characters since the 60’s into theaters with our reverence of pulp comics.
After careful consideration we decided to create animated character introductions of the characters in the upcoming film. They would be 15-second trailers that would start with a series of images from the G.I. Joe comics, first flying past the screen as static panels and then slowly start to animate until they fully transitioned into the live-action actor doing a similar motion. We assembled some mockups (samples) for the studio, and they loved it! They wanted an entire series featuring side characters in addition to the main cast.
There was just one problem.
My company was hired by Paramount to create these trailers. However, the studio did not have the IP rights to all the G.I. Joe comics (including the one we used in our mockup). According to the studio, when they contracted with Hasbro to do the movie, they licensed the rights from a specific writer. We’ll call him Carl. Carl owned the rights to some of the comics, but only the ones he had written. And even though Carl had invented the character the movie was about, he didn’t have the rights to every comic the character appeared in.
We had been hired by Paramount, so we were only able to use the IP rights that they had contracted from Carl and Hasbro. Paramount had a licensing agreement with only these two. This meant that my company did not have any rights to the material ourselves, so we could only use materials that Paramount had licensed and then gave us permission to use. A further complication was that Carl and Hasbro both retained the right to revoke Paramount’s license to the materials if they didn’t approve. So, everything we made had to have Paramount’s, Hasbro’s, and Carl’s consent before we could finalize anything.
WITH GREAT IP POWER COMES GREAT RESPONSIBILITY
Who owns IP over superheroes? Working with multiple parties, all of whom have different rights and privileges, is tricky. The character was owned, in part, by Carl, Paramount, and Hasbro and everyone had an idea of what they wanted. But in this case, the prevailing questions were – 1) who could create new media for the character, and 2) how much influence did each party have?
If, for example, Paramount wanted to create a sitcom featuring the character as an unwilling father of three, could Carl protest and if so, what legal authority did he have? If Carl wanted to write a series where the character gives up his fighting ways and becomes a pacifist, could Hasbro stop him? And where did my company fit in? What if the studio loved the comic transitions, but Hasbro and Carl didn’t?
A character’s consistency and integrity as he evolves is critical to the success of a franchise. However, everyone involved has their own interpretation of what that character development should look like. Fans also feel a sense of ownership over the character. If the fans don’t agree with a writer’s take on a character, the reception can be harsh. If Paramount, Carl, or Hasbro disagreed about what fans might like, who had the final say? Who could nix a version of the trailer if they didn’t feel it was “true to the character”?
THE HERO’S JOURNEY
This was the tension we dealt with every day. Each time we submitted a version of the trailer, we would get notes back from the studio, Carl and Hasbro. Often the notes would conflict.
We had to figure out a way to implement each of the notes without undermining the others. It felt akin to painters trying to create a masterpiece while all holding the same brush. Each party tried to pull the brush in the direction they wanted while the other two resisted and tried to pull the brush in different directions. And to my company, caught in the middle of all these different tensions, what were its rights? We felt like the brush, pushed and pulled between the different wants and needs of the three painters. And it was our job to make sure that the end product was a masterpiece.
Now throw in some unexpected warps in the canvas. Everyone had to make a lot of compromises before we reached the final product. The studio further restricted the comics my team could use in the trailer, because the studio could not get the rights from Hasbro past a certain date. So, we had to remove some images from the trailerSome comics by Carl had other copyright issues with other illustrators, so we couldn’t use them Some of the images we in our trailer used characters that Hasbro didn’t want to license, but didn’t inform anyone until a cut of the trailer was in front of them. My company had to change one of Paramount’s favorite versions of the trailer because of this hiccup. So, we replaced more images.
In the end the transitions were a hit and the movie was a success. The three painters/turtles managed to paint a beautiful work of art. Through the complications of IP rights and advertising, we managed to work together to make something great. I am excited to learn more about this intersection of IP rights and apply these learnings to future opportunities!
Loyola University Chicago School fo Law, JD 2024