Can Venom and Spider-Man legally co-exist in the same film?

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With the upcoming Venom film set to be released in October, it has come time to address the huge question on everyone’s mind: Copyright Law. Okay, okay. I get it. Maybe for most people, including my 13-year-old-self, that wasn’t the first question that popped up when seeing Tom Hardy morph into an amorphous, black, brain-eating symbiote from space. In fact, truth be told, if my 13-year-old-self found out that he would someday get to see a Venom trailer and the first thing that would come to his mind was seminal Supreme Court cases, then I assume he would have kicked his own ass just in an effort to avoid that life’s destination. But since Marvel’s Captain America: Civil War, which featured Spider-Man in the MCU for the first time, it kind of begs the question: what impact this upcoming film starring Venom, one of the most important villains in the Spider-Verse, could have on the Marvel Cinematic Universe. And, ladies and gentlemen, this question all goes back to copyright law *insert nerdy-lawyer-villainous-venom-tongue-out-laugh.* So, without further ado, it’s time to talk legally about what Disney and Marvel can do into the Spider-Verse.

Copyright and Contractual Background

Back in the 1990’s Marvel Comics had a rough patch. Not to get into too many specifics (and if you’d like to read more about it, Den of Geek did a great history of the ruin and rise of Marvel Comics), the comic book industry had reached a point of diminishing returns. Comic books, which were once billed as a collector’s industry, began to reach a point where comic book fans started to see through that fallacious collector logic (just like those damned beanie babies). They simply stopped buying comics as investments. Marvel Comic’s stock drop from $35.75 a share in 1993 to $2.38 a share just 3 years later, creating a financial crisis. In an effort to raise revenue and also due to some failed attempts on their own (hi there, Howard the Duck), Marvel decided to sell the film rights piecemeal to various studios. What is important to note about most of these deals, when selling the copyright to make a film, Marvel retained the rights to continue to create comics. Even more importantly they also added a small provision in the contract that if a film of some sort was not made within five years, the film rights reverted back to Marvel’s control. This has become extremely important in the last few years both for negotiating purposes but also explains why there have been so many reboots of Spider-Man, Fantastic Four (ugh, they have been just awful) and even unnecessary sequels to Ghost Rider.

In another post, I plan to detail what was sold and to which entity, including the rights to Men in Black, which in itself is extremely interesting. But suffice it to say, in 1999, Sony purchased the rights to Thor, Ghost-Rider, Luke Cage, and Black Panther. Thor, Luke Cage, and Black Panther never materialized into any Sony-produced movies and per the five-year rule, returned to Marvel.  Nothing is easier in Hollywood than predicting hits in hindsight, but if you take a look at what Sony missed out on with Thor and Black Panther, you are looking at almost a billion dollars ($974 million) in domestic box office revenue alone for four films including the 3rd highest grossing film OF ALL TIME in Black Panther. But instead, they decided to make two Ghost Rider films that, well, sucked. After an extremely ill-advised sequel, that followed very ill-advised casting (casting Nick Cage for anything other than ironic purposes is almost amoral), Sony allowed the five years to pass on that entity and it found its way back to Marvel and eventually into the MCU through Marvel’s Agents of Shield. However, that same year, Sony also purchased the film rights to Spider-Man and the following Spider-Man characters:

  1. Mary Jane
  2. Aunt May
  3. J. Jonah Jameson
  4. Shocker
  5. Vulture
  6. Black Cat
  7. Silver Sable
  8. Sandman
  9. Carnage
  10. Lizard
  11. Rhino
  12. Mysterio
  13. Doctor Octopus
  14. Hobgoblin
  15. Green Goblin
  16. Gwen Stacey
  17. Electro
  18. Kraven
  19. And of course…Venom

As a result of this deal, following the sale of Marvel to Disney in 2009, the MCU films could not include mention of anything related to a Spider or a Spider-Man or any of those listed characters. Here is a good infographic on what Marvel/Disney owns in the character catalog:

Not to get into too much of the specifics, but after the Amazing Spider-Man 2 flopped, Sony was anxious to make a deal with the much more successful MCU about the inclusion of Spider-Man in their Universe. The intent was to maybe piggyback off of the MCU momentum to kick-start Spider-Man. What resulted is the above ven diagram. However, the deal itself needs a bit of scrutiny to determine if Venom and Spider-Man can co-exist in an MCU movie.

The Deal

Sony and Disney came to a mutual agreement to allow Spider-Man to join the MCU which we all now know and have experienced in three films. As part of the deal, Spider-Man: Homecoming and the subsequent sequel Spider-Man: Far From Home are financed and distributed by Sony Pictures, which allows Sony to get all of the box-office money and all sales. It also allows them the rights to streaming services, which covers only all stand-alone Spider-Man films. This does not include films where Spider-Man is an ensemble cast member (Civil War and Infinity War). However, Disney agreed to produce the film and serve as creative lead. Meaning Disney/Marvel Studios has creative control over the story, the casting, and choice of directors. Disney also already owns the merchandising aspect of it. Incidentally, Universal Studios owns the rights to a Spider-Man Theme Park, but that’s a topic for another rollercoaster of an article. I’ll be here all week, folks. Tip your servers.

What does this mean, as it relates to the deal, for the upcoming Venom film? Well, that gets a bit complicated. Last year, trying to drum up anticipation, Sony Pictures tweeted out a picture of the star of Venom, Tom Hardy, with a caption that reads “Tom Hardy is Eddie Brock in #Venom, the upcoming film from Sony’s Marvel Universe releasing October 5, 2018 – production starts this fall.”

Not to be confused with the Marvel Cinematic Universe, Sony has decided to create their own “universe.” The question is, will Spider-Man show up in the upcoming Sony Marvel Universe films? Maybe. But here’s the kicker. Per the deal, if Tom Holland or any of the other characters that have appeared in Spider-Man: Homecoming (e.g. Aunt May, Vulture et. al) appear in any Sony films, that triggers a clause in the contract that allows Marvel to take creative control over that entity. And subsequently, this would allow Marvel to include these characters as part of that deal and use them in those other Spider-Man and Ensemble films. So, even if Spidey were to show up briefly in a Venom film, then Marvel would get to pick the casting of that Venom film, create the story-line, choose a director, AND Venom would then be fair game for Disney to use in their other Spider-Man contracted films. And you had better believe if Sony made that mistake, Disney would make them pay. 

Understanding this aspect of the deal, it is highly unlikely that Spider-Man will show up in the Venom movie even in name. With the Venom film seemingly taking a page out of the Deadpool book and accepting a rated-R audience, it seems as though Sony is trying to go for a completely separate tone, and one that the MCU may not want to embrace even if Spider-Man were to be included. On top of that, it has been confirmed that Kevin Feige and the Disney Marvel team was not part of the creative process of Venom nor were they involved in casting. That would suggest that this film will be devoid of any red spiders.

This would also explain why Sony has developed the upcoming Into the Spiderverse film. It represents a different Spider-Man than the Peter Parker we all know. This upcoming film portrays Spider-Man in an alternate universe as Miles Morales an Afro-Latino teenager. Contractually this is important for Sony because Disney doesn’t have any control over Miles as a character nor over the film’s tangential characters like Gwen Stacey who likewise is not permitted in the MCU per copyright protection. This seems like a great attempt to branch outside of the contracted terms and see if a non-Peter Parker Spider-Man, or even a Spider-Gwen, can carry an entire film universe. And if you don’t know who Spider-Gwen is, trust me, she can carry a universe.

But, to answer the lingering question; no, Venom will most likely not be part of the MCU. Not yet, anyway, as both Kevin Feige, President of Marvel Studios and Amy Pascal, former Chairperson of Sony Pictures Entertainment who oversaw the deal, have stated that this upcoming Venom film is adjacent (whatever that means). But interestingly enough this deal with Sony and Disney, as it relates to Spider-Man, is a reported six films. Three of these have already come to fruition (Civil War, Homecoming, and Infinity War Part I) with two more already announced (Infinity War Part II and Far From Home). After the sixth film, Disney and Sony could re-up their contract, negotiate a whole new one, or Sony could walk away and take Spider-Man completely away from the MCU, feeling like they got the kick-start they needed.

All of this leads to a collision course in a sixth film showdown. Disney could try to REALLY  kill Peter Parker off (no-spoilers on Infinity War) since they have creative control making it harder for Sony to walk away. Disney could also delay the sixth film simply to deny Sony that right and maybe attempt to wait out a five year window to force it back into the hands of Disney (this seems highly unlikely as it would be acting in bad faith, but let’s be honest, Disney isn’t always the most honest broker on things of this nature). We could even see Sony moving on from Tom Holland and trying their hand at a Miles Morales Spider-Verse, injecting him into their Sony Marvel Universe. Much of that will have to do with the reception of those upcoming films, specifically Venom and Black Cat and Silver Sable (already set with Thor director Christ Yost) and whether or not those individuals can carry not just their own stories but a universe. And while Marvel tends to make this look easy, you need to look no further than across the proverbial comic pond to the DC Suicide Squad and Jared Leto to see how difficult that may be. Suffice it to say, Sony has a whole universe riding on this movie in the fall.

Again, as a 13-year-old, if you would have told me that in the course of a year, I would get a Spider-Man film, a Marvel battle royale film with Thanos and over 70 specified Marvel characters, an Ant-Man Film, A Thor film that featured a battle between Hulk and Thor, AND a Venom stand-alone film that might even say the F-word in it, I would have personally invented the Flux Capacitor strapped Delorean that I was obsessed with and traveled 88 miles per hour to get to here. But looking at the issues currently, I am a tad skeptical about this Venom film and even more concerned whether its success signals the success that I currently want. There is a very real scenario where Venom does well and as a result, Tom Holland is no longer Spider-Man and he exits the MCU. Five of the six people in my home (my wife, myself, and my four daughters), who currently have a crush on Tom Holland, would probably really struggle with that reality (you try to guess which one doesn’t. Hint: it’s not me). But really, the truth is, we just don’t know how this will play out. But what we do know is that I could totally kick the ass of my 13-year-old self, so if he happens to travel through time and shows up with any ill-intentions, he better be prepared for my 20 years of shadow practicing my shoryuken and my heightened spidey senses.

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