Seeing Double – Two Quicksilvers on the Silver Screen?

Whether you grew up an avid comic-book fan, or just plan on seeing X-Men: Days of Future Past (recently released on May 23, 2014) as well as Avengers: Age of Ultron (scheduled for release on May 1, 2015), you might just “Hulk out” when you see two different Quicksilvers in each film. However, this doesn’t implicate a plot line involving parallel universes, only uncanny intellectual property licensing.

Since the Quicksilver character came into being in the Uncanny X-Men comics, but became a member of The Avengers in 1965, each upcoming summer sequel (X-men produced by 20th Century Fox and Avengers produced by Marvel Studios) will feature a different actor playing dissimilar versions of Quicksilver on the silver screen with likely disparate back stories and characterizations.

Researching the Marvel Cinematic Universe reveals an interesting occurrence – commonly called The Quicksilver Clause – which pertains to trade-mark, copyright and licensing issues surrounding Marvel Studios’ creative assets and intellectual property. This clause in a 1993 licence agreement is the source of the division of various intellectual properties between Marvel and Fox.

Twentieth Century Fox Film Corp v Marvel: A Rip-Off Use of Fox’s Mutants by Marvel?

Between the late 1970s and the early 90s, Marvel licensed-out the names and likenesses of many of its superheroes. This trade-mark strategy enabled Marvel to distribute its comic-book characters across multiple media formats – including film, television, and video games. One of these licensees was Twentieth Century Fox Film Corp (Fox), which acquired certain rights from Marvel in the X-Men comic book series such that they could produce theatrical motion pictures. Fox painstakingly developed its X-Men film franchise, finally releasing the first live-action installment in 2000. It was an instant success, both critically and financially, but led to litigation primarily centered on the following key contractual clauses of the 1993 licence agreement between Fox and Marvel:

“The ‘X-Men’ comic book series, referred to in the [1993] Agreement as the ‘Property’, includes the X-Men Characters, specifically the ‘core’ Characters and the Characters of the ‘X-Universe’; their origin stories; storylines from individual comic books; and ‘all other elements relating to the Property and the Characters’. The rights granted to Fox included ‘the right to use the title (or subtitle or portion of the title) of the Property or any component of the Property as the title of any Picture or related exploitation’. The Agreement reserved all television rights to Marvel, subject to a proviso, critical to Fox’s pending contract claim, that Marvel would not ‘produce, distribute or exploit or authorize the production, distribution or exploitation of any live-action motion picture’ without Fox’s consent (the ‘Freeze’)”.

This provision proved problematic mostly because Marvel then made a Mutant X live-action television series and released it one year later in 2001. Fox complained of infringement of its exclusive rights to develop X-Men, and essentially claimed that these “hour-long episodes of movies made for TV” were so substantially similar that “Mutant X [became] a rip-off” of the X-men film. However, Fox’s efforts proved unfruitful – both at the trial and appellate levels – which ultimately allowed Mutant X to go forward until 2004. At this point, the parties reportedly signed a confidential settlement agreement to resolve the dispute. Nonetheless, a key contractual term can be inferred, largely based on subsequent developments in the following years such as the establishment of the mutant-less Marvel Cinematic Universe in 2006.

It is reasonable to presume that the agreement requires Marvel to abstain from using mutant characters in either film, or television. This is likely what has led to a bifurcation of the Quicksilver character into a mutant character in X-Men, and a non-mutant variety that will likely appear in The Avengers.

Can Marvel Studios Ever Get All Their IP Rights Back?

Now that Fox has the rights to X-Men mutants, it has been reported that they are keen to hold onto the source of a lucrative revenue stream:

“Word on the street is Fox has made it very clear that they will not let go of any of the properties under their control for any live action medium. We’ve also been told that if it ever came to the point where they were going to lose any property they own because of failing to have a movie in production, they would simply produce a low budget, straight-to-DVD feature and stick it in any theater to fulfill their theatrical release clause…Bottom line, the Sony and Fox contracts are rock solid”.

The one avenue for Marvel to reacquire their IP rights, and what is alluded to in the quote above, is what is known as a theatrical release clause. This clause is included in Marvel’s contracts, and has been public knowledge since the 2002 dispute. In that dispute, it was revealed that the rights to X-Men would revert back to Marvel if Fox failed to film sequels by contractually-set control dates.

Over the years, the reversion of other character IP rights back to Marvel have shown this specific clause appears in most, if not all, of the company’s confidential licensing agreements. Furthermore, past experiences show this is also the primary means by which Marvel can claw back some of its desired film rights in the future. For instance, after New Line Cinema spent several years unsuccessfully developing Iron Man, the rights reverted back to Marvel in 2005 and the character’s use in his own film trilogy as well as The Avengers was thus made possible. Similarly, when Universal Studios failed to initiate principal photography of a Hulk sequel and make significant payments towards filming by a specified date in 2006, the rights also reverted back and made the Hulk available for use in The Incredible Hulk, The Avengers, and at least five other films.

Other than the theatrical release clause, Marvel’s primary contractual protection in the case of licensed-out characters concerns its right to define the logistics of the licensee’s film production plans. In the 2002 X-Men dispute, the following protective clause was also revealed to exist which requires that Marvel must approve:

“(i) the “fundamental elements” of the story, namely the basic storyline, character integrity, living habitat, and conformity with the so-called “X-Men Handbook” written by Marvel; (ii) the screenplay, to the extent it substantially alters a fundamental element; (iii) costumes; (iv) the photography of scenes, to the extent it substantially alters a fundamental element; and (v) the content of director’s cuts, to the extent it substantially alters a fundamental element.”

However, even without these contractual provisions, it should be noted that Marvel is still financially protected to some extent by its trade-mark strategy should it ultimately be unable to regain control of its characters’ film rights in the future. Over the years, Marvel’s merchandising reach has been shown to have few limits, as it can include anything ranging from perfume to toys and luxury cars to clothing. Indeed, protecting the names and likenesses of its characters has allowed Marvel to significantly profit from film-related merchandise sales even when the film (produced by another studio) itself disappointed at the box office. This was the case with Ang Lee’s 2003 Hulk film where costumes and role-play toys like “Hulk Hands” became valued at $100 million.

Conclusion

So when you’re checking out X-Men: Days of Future Past and Avengers: Age of Ultron and Quicksilver doesn’t seem to look quite the same – don’t worry! There’s nothing wrong with your eyes or 3D glasses, it’s simply uncanny intellectual property rights dealings at play. If you’re seeing double in the coming years, don’t think your eyes have mutated, its only strange licensing agreements that have created parallel universes for our beloved characters.

Harjot Atwal is an IPilogue Editor and recent graduate of the JD program at Osgoode Hall Law School.