August was dominated by reports that Spider-Man would be leaving the Marvel Cinematic Universe following an impressive theatrical run of the newest movie “Spider-Man: Far From Home.” Spider-Man’s possible departure is due to Disney and Sony failing to reach an agreement on funding and revenue sharing for future Spider-Man films. The very concept of this kind of split raises wider questions regarding intellectual property law and the future of the entertainment industry.
Fictional characters are often protected by copyright laws. An author’s copyright over a character provides them with the exclusive right to use, adapt, or market the character as they see fit. Because the rights are exclusive, no one can use the character unless they are given explicit permission from the author. However, permission is not all or nothing, and authors can place conditions on how the character is used and how long the permission lasts. This kind of permission is referred to as a license and is what Marvel originally sold to Sony in 1999. At that time, Marvel sold Sony Pictures an exclusive license to make Spider-Man movies. Because the license was exclusive, Marvel lost the right to produce its own Spider-Man movies. Marvel had previously granted merchandise rights to Sony in 1995. Because of the agreement, Marvel received 5% box office revenue of Sony-produced Spider-Man pictures while Sony was entitled to 5% gross of all Marvel merchandise sales.
Sony’s Spider-Man license came with numerous conditions, including one stating that it would lose the license unless it releases a new Spider-Man movie every 5.75 years. Over the course of the last several years, Marvel and Sony have renegotiated the terms and conditions of the film license on numerous occasions. In 2015, Sony hit a snag and struggled to produce commercially successful Spider-Man movies. Marvel, which had been recently acquired by Disney, gained considerable bargaining power and negotiated a new deal. In this deal, Marvel would assist Sony in production of Spider-Man movies in exchange for 5% gross revenue and the right to use Spider-Man in Marvel produced movies (MCU), while Sony would retain creative control, marketing and distribution. Marvel was also able to re-acquire all merchandising rights, generating an estimated $200 million per year.
This resulting deal is a shared license agreement. A 2011 amendment made to the license agreement between Sony and Disney lays down the groundwork for what the deal entailed for Sony and Marvel. The leaked documents reveal a series of conditions that limit how Sony can depict Spider-Man, including requiring that the character be a heterosexual male and abstain from sexual relations before the age of 16. The leaked documents also provide a precise account of exactly which characters are covered by the license — including a test that could be used to determine whether future characters would be covered. Those terms provide some insight into how Sony and Disney approached the character-sharing question and accounted for the possibility that Spider-Man would join the MCU for just a limited time. The agreement states that Sony “holds exclusive film rights to all characters in the Spider-Man universe,” and refers to an explicit list of characters covered by the agreement. This list includes 627 covered characters (Black Cat/Felicia Hardy, Mysterio, Electro, etc.), 70 “Teams/Groups/Gangs” (The Sinister Six), 544 “Supporting Characters” (Uncle Ben, etc.), and 82 businesses (Oscorp, etc.).
Finally, the agreement contains provisions that apply to new characters, which are defined as “characters first appearing” after the agreement becomes effective. The agreement states that Sony has the rights to any new character who first appears in a work with “Spider,” “Spider-Man,” “Peter Parker,” or another Sony-exclusive character in its main title, and to new characters who shoot webs, have “Spider” in their name, or have a spider or spider web on their costume. While the specific terms of the leaked draft agreement are five years old and may not have ended up in the final agreement, it nevertheless provides a high-level understanding of how Marvel and Sony approached the license negotiations. It is clear that both studios had a plan for what they would do if their Spider-Man-sharing agreement broke down.
This shared license agreement initially seemed like a win-win: both companies would enjoy increased revenue at the box office in their respective productions through the shared-use of characters. However, in 2019, renegotiations collapsed and the exclusive film rights to Spider-Man reverted to Sony with Sony Pictures CEO stating that the “door on any potential deal is closed for now.” This may signal a permanent divorce between Sony and Disney.
Naz Khan is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current LLM Candidate at Durham University.