Stan Lee: Writer, Creator, And Marketer Of Intellectual Property

By Dave Davis, Copyright Clearance Center

Excelsior!

As the many and well-deserved accolades for Stan Lee pour in on the occasion of his death after a career in content creation —mostly in writing— that spanned six decades, I thought now might be a suitable moment to add an additional perspective.  I’m focusing on his success as someone who brought his creative expression to market, to the enjoyment of what eventually became an audience of millions. Stan Lee was many things, and among them, he was an outstandingly successful entrepreneur of intellectual property.

Origin Story

As it turns out, in 1941 Lee scripted a story which ran in the wartime Captain America (affectionately known as ‘Cap’) comic. The business entity – and IP owner — was then known as Timely Comics, later Atlas Comics, and eventually, at the dawn of the 60’s, Marvel Comics. Cap was the creation of Jack Kirby and Joe Simon, creative names with which Lee’s would long be entwined.

Returning to the firm after his service in World War II, Lee apparently nearly gave up on writing for comics but, in creative partnership with Kirby, they broke through with The Fantastic Four in 1961.

Fortunately for Lee and Marvel, Captain America, the Human Torch (later a member of the Fantastic Four) and Namor the Submariner were each already in the Marvel family, enabling the company to build on a solid foundation.  They were inherited from Timely’s publications in the late 30’s and early 40’s. Had early stage Marvel needed to acquire the rights to these, the costs might have been prohibitive.

Although Lee took on a more managerial role in this period, he remained a writer and strong creative contributor across many of the titles. Marvel become known for what came to be called “the Marvel System,” which was a project management & production arrangement entailing multiple inputs from multiple contributors, who were thus kept busy cranking out product. This, however, led to IP difficulties later.

With Great Power Comes Great …Liability

Later —as happens with much successful IP it seems— there arose disputes about rights. While Lee stayed with Marvel until his retirement from active writing, editing and publishing in the 1990s (but remaining as Chairman Emeritus of the company until his death in honor of the tremendous value he brought to the company over the years)—Jack Kirby and other contributors such as Joe Simon and Steve Ditko were positioned more like freelancers. They created characters for other comics’ industry outfits, including arch-rival DC.  Most of their work was (very probably, but not certainly and not always) created under the “work made for hire” doctrine of copyright. And therefore remained under the control of the publisher. After Kirby’s passing and some court-based recognition of the limitations of the “work made for hire” doctrine, his family brought a suit which resulted in a settlement, providing Kirby with recognition and attribution credits, as well as providing the family with an income stream and it appears that both sides are now satisfied[1]

A Superhero Trademark, or a Trademark Superhero?

Lee was also deeply involved in developing Marvel’s licensing business. Merchandise licensing, when successful in the marketplace, can be very lucrative. Marvel has made a huge amount of money from licensing its trademarks – which range from the names of characters to the look of many of those characters – not only in toy-related fields but further afield.  It’s become part of our culture, worldwide: ‘Everybody knows’ about Spider-Man, The Hulk, Iron Man and the rest. This indicates how powerful good IP can really be, both in making money and in developing “mind share” among both kids and adults.

Licensing Saves the Day

Trademark rights, of course, are distinct from those of the copyright in characters. Basically, trademark applies to things a consumer could physically handle, such as toys, tee-shirts, and coffee mugs. Outside of the comics industry, not many people know that the term “Super Hero” (and a few variants thereof) is a registered trademark for a variety of products. The mark is controlled jointly by DC and Marvel, I suspect that the wily Mr. Lee had a hand in crafting that arrangement also.

Having those rights in hand may have proved more than just a wise precaution. Despite its market success in the 60’s and 70’s – including some Saturday Morning Television animation as well as a couple of live action television series– by the 80’s and 90’s Marvel, as a corporate entity, was sliding into serious debt. In this period, Lee pushed for movie licensing as a revenue source— and although some film properties such as Spider-Man were removed from their portfolio as a result[2], by 1998 Marvel was back in profitable territory.[3]

“Stan Lee’s Greatest Creation was Stan Lee”

If somehow the foregoing saga were not enough, Stan Lee also appeared as a character in films. He usually played someone named “Stan,” or “Stan Lee,” and occasionally, “Fred’s Dad.” He wrote an autobiography, “Excelsior,” (2002) and in many other ways was an effective promoter of the company, and of himself (as a brand).  At one point he even appeared as a Spidey-ized version of himself in a (rather bizarre) video game. Maybe his superpower was that, when it came to intellectual property, he was willing to try anything.[4] The lesson for other creators here may be, try everything, and go with what works.

Not Ragnarok, but truly The End of an Era

Seen through this lens, Stan Lee’s career may be taken as essentially that of a writer who stuck with it and made good. Through the “Marvel System,” he managed and developed a booming portfolio of characters and stories, and helped give the comics industry, and the genre of graphical, episodic fiction, a new life. As well as many, many new works, some of which eventually found audiences that span multiple generations and formats, and genres.

Considering Stan Lee’s output as a creator and rights holder across entertainment media, spanning the decades of his work, I don’t know how one could hope to do better than that.

‘Nuff said.

Dave Davis joined Copyright Clearance Center in 1994 and currently serves as a research specialist. He previously held directorships in both public libraries and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. Davis is fascinated by copyright issues, content licensing and data. Also, rock and roll music. His musings on these issues have appeared in TechCrunch and IP Watch. Copyright Clearance Center is a leader in advancing copyright, accelerating knowledge, and powering innovation.

[1] “Marvel & Jack Kirby Heirs Settle Legal Battle Ahead Of Supreme Court Showdown” ( Dominic Patten, Deadline, 2014)

[2] In 2009, Disney bought Marvel, bringing their stable of characters and rights into the largest entertainment company in the world. In 2017-2018, Disney acquired the IP of 21^st Century Fox, repatriating the Fantastic Fox to the successor-in-title of their home. (It is a little complicated with the X-Men.) Spider-Man, however, is still under the control of Sony. There’s never a safe bet against the Mouse, however: Stay tuned.

[3] “How Marvel risked everything to go from bankruptcy to billions.” (Mike Sampson, ScreenCrush, 2015)

[4] See also: “Stan Lee’s greatest creation was Stan Lee” (Tom Spurgeon, Washing Post, Nov., 2018), as well as this excellent tribute by David Sims, “Stan Lee Was Synonymous with American Superhero Comics” (The Atlantic, Nov 2018).

 

Image Credits: Copyright Clearance Center