On September 24, 2021, Marvel Characters, Inc. (“MCI” or “Plaintiff”), represented by Daniel M. Petrocelli, Danielle Rebecca Feuer, Kendall Kelly Alexis Turner and Molly Mather Lens of O’Melveny & Myers LLP, filed an intellectual property lawsuit against Michele Hart-Rico (“Hart-Rico”) and Buz Donato F. Rico III (“Buz Rico”), (together, the “Defendants”). Plaintiff filed suit seeking declaratory relief, along with attorneys’ fees and costs, for deciding the actual and justiciable controversy concerning the validity of the alleged termination notice and the respective rights of Marvel, on the one hand, and Hart-Rico and Buz Rico, on the other. This case was filed in the U.S. District Court in the Central District of California with Judges Diane Gujarati and Taryn A. Merkl presiding.
In the complaint, Plaintiff alleged that, “At all relevant times, Don Rico was engaged as a comic book writer by Marvel to contribute to various comic books (the “Works”).” “Marvel editorial staff had the right to exercise creative control over Don Rico’s contributions, and Marvel paid Don Rico a per-page rate for his contributions. When Don Rico worked for Marvel, he did so with the expectation that Marvel would pay him.” “Don Rico did not obtain any ownership interest in or to any contributions he made.”
Plaintiff further alleged that, “Marvel registered copyrights in and to the Works, which are copyrightable subject matter under the copyright laws of the United States. The Register of Copyrights recorded the registrations, as set forth in Exhibit 1 to this complaint. Marvel has complied in all relevant respects with all laws governing copyright.”
Plaintiff further alleged that, “On or about June 10, 2021, Hart-Rico and Buz Rico served a notice of termination on Marvel. Hart-Rico and Buz Rico claim to have a sufficient interest in the Works to exercise purported rights of termination under the termination provisions of the Copyright Act, 17 U.S.C. § 304(c), and the regulations thereunder.” “The notice specifically seeks to “terminate all pre-January 1, 1978 exclusive or non-exclusive grants of the transfer or license of the renewal copyright(s) in and to” certain “illustrated comic book stor[ies]” that were allegedly “authored or co-authored” by Don Rico and published by Marvel in 1964. The notice specifies an effective termination date of June 11, 2023.”
The only claim for relief laid down by Plaintiff is for the declaratory relief as to the validity of the notice, wherein Plaintiff alleged that, Hart-Rico and Buz Rico have served Marvel with the termination notice which is invalid as a matter of law because the Works were created as works made for hire, and there are no termination rights for works made for hire. The Works were made for hire because they were created at Marvel’s instance and expense. Any contributions Don Rico made to the Works were done at the instance of Marvel’s editorial staff, which had the right to exercise creative control over Don Rico’s contributions.
In the prayer for relief, Plaintiff requested the court for a judgment against Hart-Rico and Buz Rico for a declaration that the termination notice is invalid, and for Marvel’s attorneys’ fees and costs incurred and for such other and further relief as the court deems just and equitable.
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2:21-CV-07624
09/24/2021
Pending - Other Pending
Intellectual Property - Copyright
Dolly M. Gee
Karen E. Scott
Marvel Characters, Inc.
Michele Hart-Rico
Buz Donato F. Rico III
Allen W. Burton
Daniel M. Petrocelli
Danielle Rebecca Feuer
Kendall Kelly Alexis Turner
Molly M. Lens
Marc Toberoff
(#19) ORDER by Judge Dolly M. Gee: Granting Application of Non-Resident Attorney Allen Burton to Appear Pro Hac Vice on behalf of Plaintiff Marvel Characters, Inc., designating Danielle F as local counsel #18 . (iv) (Entered: 11/05/2021)
Proposed Order
Main Document
(#17) NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Burton, Allen W. to Appear Pro Hac Vice on behalf of Plaintiff Marvel Characters, Inc. (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-32277929) #16 . The following error(s) was/were found: Local Rule 83-2.1.3.3(a) Application not complete: state and/or federal courts to which the applicant has been admitted are not listed. Local Rule 83-2.1.3.3(d) Attached Certificate of Good Standing not issued within 30 days prior to filing of the application. Other error(s) with document(s): Certificates of Good Standing have been required since 9/08. See LR 83-2.1.3.3. See Instructions for Applicants (1) (G-64). (lt) (Entered: 11/05/2021)
Proposed Order
Main Document
(#15) NOTICE of Pendency of Other Action or Proceeding Pursuant to Local Rule 83-1.4.2 filed by Plaintiff Marvel Characters, Inc.. (Petrocelli, Daniel) (Entered: 10/27/2021)
(#14) NOTICE of Appearance filed by attorney Marc Toberoff on behalf of Defendants Michele Hart-Rico, Buz Donato F. Rico III (Attorney Marc Toberoff added to party Michele Hart-Rico(pty:dft), Attorney Marc Toberoff added to party Buz Donato F. Rico III(pty:dft))(Toberoff, Marc) (Entered: 10/12/2021)
(#13) WAIVER OF SERVICE Returned Executed filed by Plaintiff Marvel Characters, Inc.. upon Michele Hart-Rico waiver sent by Plaintiff on 9/28/2021, answer due 11/29/2021; Buz Donato F. Rico III waiver sent by Plaintiff on 9/28/2021, answer due 11/29/2021. Waiver of Service signed by Marc Toberoff. (Petrocelli, Daniel) (Entered: 10/07/2021)
(#12) INITIAL STANDING ORDER upon filing of the complaint by Judge Dolly M. Gee. (kti) (Entered: 09/28/2021)
(#11) ORDER RETURNING CASE FOR REASSIGNMENT UPON RECUSAL by Magistrate Judge Maria A. Audero. ORDER case returned to the Clerk for random reassignment Discovery pursuant to General Order 05-07. Case randomly reassigned from Magistrate Judge Maria A. Audero to Magistrate Judge Karen E. Scott for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:21-cv-07624 DMG(KESx). (rn) (Entered: 09/27/2021)
Exhibit 2 - Termination Notice
Exhibit 1 - Chart of Relevant Copyright Certificates
Main Document
Docket(#19) ORDER by Judge Dolly M. Gee: Granting Application of Non-Resident Attorney Allen Burton to Appear Pro Hac Vice on behalf of Plaintiff Marvel Characters, Inc., designating Danielle F as local counsel #18 . (iv) (Entered: 11/05/2021)
[-] Read LessDocket(#18) APPLICATION of Non-Resident Attorney Allen Burton to Appear Pro Hac Vice on behalf of Plaintiff Marvel Characters, Inc. (Pro Hac Vice Fee - $500 Previously Paid on 11/4/2021, Receipt No. ACACDC-32277929) filed by Plaintiff Marvel Characters, Inc.. (Attachments: #1 Proposed Order) (Feuer, Danielle) (Entered: 11/05/2021)
[-] Read LessDocket(#17) NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Burton, Allen W. to Appear Pro Hac Vice on behalf of Plaintiff Marvel Characters, Inc. (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-32277929) #16 . The following error(s) was/were found: Local Rule 83-2.1.3.3(a) Application not complete: state and/or federal courts to which the applicant has been admitted are not listed. Local Rule 83-2.1.3.3(d) Attached Certificate of Good Standing not issued within 30 days prior to filing of the application. Other error(s) with document(s): Certificates of Good Standing have been required since 9/08. See LR 83-2.1.3.3. See Instructions for Applicants (1) (G-64). (lt) (Entered: 11/05/2021)
[-] Read LessDocket(#16) APPLICATION of Non-Resident Attorney Burton, Allen W. to Appear Pro Hac Vice on behalf of Plaintiff Marvel Characters, Inc. (Pro Hac Vice Fee - $500 Fee Paid, Receipt No. ACACDC-32277929) filed by Plaintiff Marvel Characters, Inc.. (Attachments: #1 Proposed Order) (Feuer, Danielle) (Entered: 11/04/2021)
[-] Read LessDocket(#15) NOTICE of Pendency of Other Action or Proceeding Pursuant to Local Rule 83-1.4.2 filed by Plaintiff Marvel Characters, Inc.. (Petrocelli, Daniel) (Entered: 10/27/2021)
[-] Read LessDocket(#14) NOTICE of Appearance filed by attorney Marc Toberoff on behalf of Defendants Michele Hart-Rico, Buz Donato F. Rico III (Attorney Marc Toberoff added to party Michele Hart-Rico(pty:dft), Attorney Marc Toberoff added to party Buz Donato F. Rico III(pty:dft))(Toberoff, Marc) (Entered: 10/12/2021)
[-] Read LessDocket(#13) WAIVER OF SERVICE Returned Executed filed by Plaintiff Marvel Characters, Inc.. upon Michele Hart-Rico waiver sent by Plaintiff on 9/28/2021, answer due 11/29/2021; Buz Donato F. Rico III waiver sent by Plaintiff on 9/28/2021, answer due 11/29/2021. Waiver of Service signed by Marc Toberoff. (Petrocelli, Daniel) (Entered: 10/07/2021)
[-] Read LessDocket(#12) INITIAL STANDING ORDER upon filing of the complaint by Judge Dolly M. Gee. (kti) (Entered: 09/28/2021)
[-] Read LessDocket(#11) ORDER RETURNING CASE FOR REASSIGNMENT UPON RECUSAL by Magistrate Judge Maria A. Audero. ORDER case returned to the Clerk for random reassignment Discovery pursuant to General Order 05-07. Case randomly reassigned from Magistrate Judge Maria A. Audero to Magistrate Judge Karen E. Scott for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:21-cv-07624 DMG(KESx). (rn) (Entered: 09/27/2021)
[-] Read LessDocket(#10) REPORT ON THE FILING OF AN ACTION regarding a copyright (Initial Notification) filed by Marvel Characters, Inc.. (Petrocelli, Daniel) (Entered: 09/24/2021)
[-] Read LessDocket(#9) NOTICE TO COUNSEL RE: Copyright, Patent and Trademark Reporting Requirements. Counsel shall file the appropriate AO-120 and/or AO-121 form with the Clerk within 10 days. (ghap) (Entered: 09/24/2021)
[-] Read LessDocket(#8) 21 DAY Summons Issued re Complaint (Attorney Civil Case Opening), #1 as to Defendants Michele Hart-Rico, Buz Donato F. Rico III. (ghap) (Entered: 09/24/2021)
[-] Read LessDocket(#7) Notice to Counsel Re Consent to Proceed Before a United States Magistrate Judge. (ghap) (Entered: 09/24/2021)
[-] Read LessDocket(#6) NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (ghap) (Entered: 09/24/2021)
[-] Read LessDocket(#5) NOTICE OF ASSIGNMENT to District Judge Dolly M. Gee and Magistrate Judge Maria A. Audero. (ghap) (Entered: 09/24/2021)
[-] Read LessDocket(#4) Certification and NOTICE of Interested Parties filed by Plaintiff Marvel Characters, Inc., identifying The Walt Disney Company. (Petrocelli, Daniel) (Entered: 09/24/2021)
[-] Read LessDocket(#3) Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), #1 filed by Plaintiff Marvel Characters, Inc.. (Petrocelli, Daniel) (Entered: 09/24/2021)
[-] Read LessDocket(#2) CIVIL COVER SHEET filed by Plaintiff Marvel Characters, Inc.. (Petrocelli, Daniel) (Entered: 09/24/2021)
[-] Read LessDocket(#1) COMPLAINT Receipt No: ACACDC-32040447 - Fee: $402, filed by Plaintiff Marvel Characters, Inc.. (Attachments: #1 Exhibit 1 - Chart of Relevant Copyright Certificates, #2 Exhibit 2 - Termination Notice) (Attorney Daniel M. Petrocelli added to party Marvel Characters, Inc.(pty:pla))(Petrocelli, Daniel) (Entered: 09/24/2021)
[-] Read Less