Decoding Sony’s leaked Spider-Man Memo (Pt. 1)

Occasionally I get accused of doing proper journalism and I suspect this may turn out to be one such occasion. At the very least what I hope I’ll achieve with this article is a clear illustration of the difference between click-bait “journalism” – specifically last week’s “No Blacks, No Gays, No Spiders” non-story (see the first page of comments for the speed with which it was picked to pieces) – and some proper investigative and analytical blogging.

So let’s start the story off with the basic facts.

Around the middle of last week, WikiLeaks published another sizeable batch of documents sourced from last November’s cyber-attack on Sony Pictures. In this latest batch of documents there’s a 71 page executive summary which outlines the creative elements of the license agreement that the studio entered into with Marvel during the period that Sony was working on its 2012 reboot of its own Spider-Man franchise, “The Amazing Spider-Man”. The terms set out in the memo are dated to come in effect on 15 September 2011, at which point in time the film was in post-production ahead of its premiere in Tokyo on June 30 2012..

The memo describes this agreement as a “Second Amended and Restated License Agreement” between the two companies, one which appears to have been necessary due to their having been a few problems with the first agreement. Amongst the list of characters and other creative elements that are identified as being exclusive to SPE (Sony) there’s this statement.

All existing (as of 9/15/11) characters and other Creative Elements that are “Primarily Associated With” Spider-Man but were “Inadvertently Omitted” from Schedule 6. The Agreement contains detailed definitions of these terms, but they basically conform to common-sense meanings. If SPE and Marvel cannot agree as to whether a character or other creative element is Primarily Associated with Spider-Man and/or were Inadvertently Omitted, the matter will be determined by expedited arbitration.

So when this first version of this agreement was put together an unspecified number of characters and other creative element that should have been licensed exclusively to Sony were “inadvertently omitted” from the schedule that lists all those characters and creative elements – and that really shouldn’t come as any great surprise.

Marvel’s film rights are to say the least complicated, in part due to the history of the company and some of the deals it entered into before film-making became a major focus of its activities and in part because of the long and complex history of its comic book multiverse, in which there are numerous different alternate realities and time-lines.

For the purposes of this agreement alone, Sony got the rights not only to the original version of Spider-Man, Peter Parker, but also to thirty-two alternative versions of the same character, not all of which are actually called Spider-Man. Some of those alternative characters such as Scarlet Spider, of which there are two that are officially considered to be alternative versions of Spider-Man, also have their own alternative versions that aren’t also alternative versions of Spidey.

That’s complicated enough but then you get on to the question of which other Marvel characters are and aren’t primarily associated with Spider-Man for the purposes of assigning the rights to use those characters with Sony’s films.

The list of characters to which Sony does have the film rights includes, for example an alternative version of Spider-Woman who is also an alternative version of Peter Parker’s girlfriend/wife, Mary Jane Watson. That character appeared in a series called Exiles in which she has a lesbian relationship with an alternative female version of the Japanese mutant superhero Sunfire who is also an alternative version of Sunfire’s cousin in the main Marvel universe, Mariko Yashida, and that character is a former fiancée of The Wolverine and the one that appeared as that character’s love interest in Fox’s 2013 film The Wolverine. Sony doesn’t have the rights to use any of those other characters because those rights are owned by Fox as part of its rights to the X-Men.

You could also look back to the history of the first superhero comic that was ever released under the Marvel brand, The Fantastic Four. The first 100 issues of that title, spanning the period from 1961 to 1969, included significant story line appearance by a range of other Marvel characters including; Namor the Submariner, The Hulk, The Avengers, the original X-Men team (Angel, Beast, Cyclops, Iceman and Jean Grey, who went by the name “Marvel Girl” at the time), Dr Strange, Daredevil, The Inhumans, Black Panther and Adam Warlock. It was the first superhero title created by Stan Lee and Jack Kirby, the company’s first major success in that market and the title that the company relied on in its early years as Marvel to introduce many of its other newly created characters to its growing audience.

So without exercising a great deal of care when its packaging up its film rights for sale, a company like Marvel could easily end up giving away the rights to half it’s creations on the back of a deal for just a handful of its best-known characters.

This, perhaps more than anything else, explains why the schedule detailing the characters and creative to which Sony has the exclusive rights runs to all of forty pages with lists of named characters, groups, supporting characters and businesses and other intellectual property. Somewhat amusingly, the latter list shows that amongst the businesses and other elements that you’d expect to go hand-in-hand with Spider-Man, such as the Daily Bugle and Oscorp, Sony also got the exclusive rights to the Animal Liberation Front (???) plus a couple of dubiously-named rock bands (Molten Man and Razor and the Shriekers), a group of Canadian Bicycle Safety Promoters called “The Right-Riders” and they also got custody of the Spider-mobile.

Drawing up these contracts is an extremely complex and time-consuming business in which there are bound to be a few omissions and disputes over whether or not certain secondary characters and other creative elements are sufficiently associated with a particular main character or series to warrant their inclusion in the film rights for that character/series or, indeed, whether they need to be treated separately and dealt with separately.

That’s the position in this agreement for one of Spider-Man’s major villains, Wilson Fisk (Kingpin), who is included in Sony’s rights but only on a non-exclusive basis because rights to use that character in another Marvel franchise, Daredevil, were held at the time of this agreement by New Regency, which had a long-term distribution deal with Fox.

The other non-exclusive character in the deal is Jessica Drew, who can be used by Sony as Spider-Woman but also by Marvel provided their version does not include any of the character’s Spider-Man related elements. The list of related characters that goes with Drew and which are also held by both Sony and Marvel on a non-exclusive basis includes SHIELD agent Jerry Hunt and her business partner and actress Lindsay McCabe plus the rights to “Drew & McCabe Investigations” so it appears that around the time these rights were original assigned, Marvel (or someone else who held those specific rights) may have had some thoughts towards either a film or TV series set during the period when Drew lost her Spider-Woman powers and was working as a private detective in California in the course of which the character might also have had some dealings with SHIELD.

What’s clear is that under this deal only Sony had the rights to either make a Spider-Woman movie using Drew or use the character in that role in any of its other Spider-Man related films.

So, the agreement include a very long schedule that lists all the major and minor characters, groups and other creative elements, e.g. The Daily Bugle, Oscorp, etc. to which Sony has exclusive film rights and a schedule that covers two non-exclusive characters and their related characters and creative elements.

There’s also third schedule listing “frozen” characters, etc. which neither Sony nor Marvel can use, at least for the time-being, some of which are parodies and character mash-ups, e.g. Spider-Ham, Spider-Hulk, Spider-Thor, and there’s a general rule that any future mash-up characters that Marvel might create are also automatically frozen which uses the example of a Spider-Wolverine. The frozen list also covers characters like the Ashley Barton and Kitty Pryde versions of Spider-Girl and Spider-Boy 2099 (Mig-El Gand) where there are also significant rights issues, and a longish list of characters that were created specifically for Spider-Man and Spider-Woman animated series between the late 1960s and the early 1980s. There’s also note relating to several frozen characters and all the characters from the animated TV shows to the effect that if Marvel can ever manage to sort out the rights to those characters then they’ll add them to Sony’s exclusive package.

The final schedule dealing with characters and creative elements covers those which Marvel is retaining for its own use, although the memo also states that it’s a non-exhaustive list that’s included for the sake of clarity. Some of the characters and other items on this is are only what you’d expect in the wake of the development of the Marvel Cinematic Universe (MCU). Most of the key Avengers characters are listed – Hawkeye, Captain America, Hulk, Thor, Iron Man/Tony Stark although curiously not Natasha Romanova (Black Widow) which may stem from the fact that the Black Widow name has also been used at times as alternative name by the Ultimate (Earth-1610) universe version of Jessica Drew/Spider-Woman. The list also includes several characters to which Marvel currently doesn’t own the film rights including two members of the Fantastic Four, Reed Richards and Susan Storm Richards, Wolverine, Magneto and Phoenix (X-Men) and some that were held by other companies/studios at the time but which have since reverted back to Marvel, such as Elektra and The Punisher and there’s at least one typo – “Darkedevil” – that could have given Marvel’s lawyers a few sleepless nights as its not at all clear whether that’s intended to be Daredevil or Darkdevil, both of whom could plausibly put in appearance alongside Spidey. Exactly why Marvel has reserved a number of characters that it didn’t have the film rights to at the time isn’t made clear but this was possibly to prevent Sony making an end-run around the company by cutting deals with the companies that do/did hold those rights in order to, at least temporarily, expand the scope of their franchise.

This is probably interesting stuff for out-and-out and movie nerds but does it really amount to anything that’s actually newsworthy?

In my view, yes, because those lists alone serve to define the full scope that Sony had, until very recently, for developing its own Spider-Man cinematic universe (or maybe just “Cinematic Spider-Verse”) as a rival to Marvel’s MCU or any others that rival film studios might seek to develop, and despite the obvious popularity of Spider-Man, Sony aren’t in a particular strong position.

When Sony bought the rights to Spider-Man back in 1999 through Columbia Picture, what they were looking for was a reliable ongoing franchise that would deliver a more or less guaranteed box office hit every three years, something that would do the same job for them that the James Bond and Star Trek franchise had been doing for MGM/UA and Paramount and that Superman and Batman had done for, at least up to the point that Warner had flushed both those franchise down the toilet by releasing genuinely terrible fourth films. And a franchise is what Sony got and did very nicely out of between 2002 and 2007 when Sam Raimi’s three Spider-Man films collective raked in not far short of $2.6 billion in box office receipts.

Then along comes Marvel with its MCU shared universe which, certainly since The Avengers which is current the third highest grossing film of all-time, completed changed the parameters of the game. Instead of straightforward linear franchises that deliver hit movies every 3 or 4 years, what the big movies studios want – because Marvel’s MCU has convinced them it can be done – is at least one expansive multi-character shared universe that’s capable of guaranteeing them a hit every year. Marvel, which is owned by Disney, has its MCU. Warner owns DC comics and is using its upcoming Batman v Superman movie to launch its DC shared universe. Fox is looking to build on its rights to Marvel’s X-Men with a solo movie for Gambit and plans for X-Force and New Mutants film plus – inevitably – another Wolverine movie and could use its soon-to-released reboot of the Fantastic Four to bring those characters into the same film universe as X-Men. Even Universal appears to be trying to get in on the shared universe act with plans to use reboots of The Mummy and Van Helsing to create a shared horror-themed universe into which they’re planning to slot the rest of their classic movie monsters; Dracula, Frankenstein, the Wolfman, etc.

Sony’s plans, until the beginning of this year, included a third film in its rebooted Amazing Spider-Man series which was set for 2016, a Venom (or Venom-Carnage) movie that was expected to take up a 2018 release slot that was previously thought to have been reserved for a third Amazing Spider-Man sequel and a Sinister Six movie, which was expected to be release before Amazing Spider-Man 4.

Then there was the untitled, female-character led, Spider-verse movie that Sony pitched to the public last year as much, perhaps as a PR move in response to the relentless blokeyness of most of the other studios’ superhero offerings and particularly the clear audible rumblings of discontent surrounding Marvel’s failure to schedule a solo Black Widow movie any time soon.

At least some of those plans have altered substantially in the last six months due to a new deal between Sony and Marvel under which Sony’s core Spider-Man franchise will get another reboot in 2017, this time with the direct assistance of Marvel who’ll be getting the rights to incorporate Spidey into their MCU as part of the upcoming Captain America: Civil War with the same actor – revealed this week to be Tom Holland – moving over from his MCU debut to star in Sony’s as yet untitled new Spider-Man film.

Where that leaves Sony’s other planned Spider-verse films is, to date, rather unclear. At the time that the new Marvel/Sony deal was announced it was suggested that Sony would be “moving forward” with its other planned movies, which wouldn’t see any Marvel involvement, but that they would be delayed so the company could focus on the core Spider-Man reboot, and then… static.

The new Marvel/Sony deal has caused a fair amount of head-scratching outside the companies, not least because of the limited information that’s been released regarding the financial parameters of the deal under which it appears that Marvel got the rights to include Spider-Man in its MCU without any money changing hands while Sony will retain its full rights to its movies but will pay Marvel a fee based on the rebooted film hitting specific box office targets rather that Marvel taking a percentage share of those receipts. It also directly aligns Sony’s version of Spider-Man and the cinematic universe it inhabits with Marvel’s MCU, which may mean that it’s other planned Spider-verse movies have to follow suit, at least if Sony has any thought towards Spider-Man making at least a cameo appearance in any of those film.

The general impression some people have formed is that Marvel have got by far the better end of this particular deal and appear to be holding most of the cards in their relationship with Sony, even if Sony still hold the rights to Marvel’s best known and most popular character, which leaves one wondering exactly how Marvel managed to manoeuvre itself into such a strong position. The leaked Sony memo appears to offer a number of clues, one of which is that 40 page list of characters and other creative elements that Sony got exclusive rights to alongside Spider-Man.

Yes, in addition to the Parker Classic version of Spidey and the 32 officially recognised alternative versions, which incidentally includes Miles Morales who’s mentioned by name, Sony also got eight different versions of Spider-Woman (including Jessica Drew and the new Gwen Stacy “Spider-Gwen” version) three versions of Spider-Girl and Silk (Cindy Moon) would be covered by the same provisions as Spider-Gwen which gives Sony the rights to any new Spider-Man related characters created after the agreement.

Sony also got a pretty well-stocked cupboard of signature villains, including a veritable horde of Green Goblins and Hobgoblins and nine different Venoms, and a solid supporting cast with some very recognisable characters; Mary Jane Watson, Gwen Stacy, J Jonah Jameson, etc. – and not too much else besides.

On the hero side, the package Sony got is – well – very spider-heavy with the exception of Black Cat (Felicia Hardy), who’s slated to appear as a member of the Sinister Six to give that film a “redemption story” angle that will, presumably, help Sony to establish the character as part of heroic roster, and Silver Sable (Silver Sablinova) – and that’s pretty much it unless Sony can find a plausible way of turning one or two of its other villains in order to widen their options. It might be possible, for example, to turn Kraven the Hunter by building a film around the critically acclaimed story, Kraven’s Last Hunt, but with a change to the ending leading to Kraven’s redemption rather than his suicide but then there can be considerable risks involved making such a significant to a story that is held in such high regard within the Spider-Man canon, if that spawns a negative critical reaction.

Once you realise just how limited Sony’s options are with the rights they have compared to both Marvel and Fox then you can see why they might jump at the chance of bringing Marvel back on board to help reboot their own Spider-Man franchise if, as the announcement indicated, Marvel are prepared to explore opportunities for some of its MCU characters to appear in Sony’s Spider-Man films, giving the franchise a bit of variety that it would otherwise lack.

It’s not going to have been the only reason that Sony took Marvel’s offer. The relative failure of its Amazing Spider-Man reboot compared to Marvel’s recent MCU movies – the only MCU film since the Avengers that didn’t make more than Sony’ Amazing Spider-Man 2 was 2013’s Thor: The Dark World – and the mixed critical reception that film received will certainly have helped to convince Sony that it’s next Spider-Man outing would need a bit of whatever box office magic Marvel has currently got in order to ensure that the film didn’t become a franchise-killer like Batman and Robin.

But its obvious limitations do help to explain why Marvel appears to have gained the upper hand in its recent dealings with Sony and has come away from them with agreements that seem much more favourable to its long-term interests than those of Sony.

The roster of characters and other creative elements is also far from being the only element of this leaked memo that offers some potentially interesting insights into the shifting dynamics of the Marvel/Sony and, in some cases, Marvel’s altogether more fractious relationship with Fox but unpicking those clues requires a considerable amount of background research and an element of Kremlinology, which means they’ll have to wait for a future article.

For now we’re left with a situation in which Marvel came away from its last set of negotiations with Sony with a major prize – the rights to bring Spider-Man into its rapidly developing Marvel Cinematic Universe and, by extension, also the means to align the key elements of Sony’s potential Cinematic Spider-verse with its own project in a manner that would ease the way towards their future integration into a single entity, and that does raise the question of whether Marvel might be inclined to go back for more in return for going beyond merely “exploring opportunities to integrate characters from the MCU into future Spider-Man films”.

The obvious target for Marvel would almost certainly be Jessica Drew who, as Spider-Woman, is currently tied up in Sony’s rights albeit on a non-exclusive basis due to Marvel having retained the rights to a version of the character that it can use without any of her Spider-Man related elements or powers. Given the character’s history, which ties her into both HYDRA and SHIELD, and her spells as a member of a post-Civil War version of The Avengers and a Black-Ops version run directly by SHIELD (Secret Avengers) she would slot very nicely into a next-generation MCU Avengers team the first hint of which we may have seen at the end of Avengers: Age of Ultron in a scene which shows Black Widow and Captain America preparing to train a group consisting of James Rhodes (War Machine), Wanda Maximoff (Scarlet Witch), Sam Wilson (The Falcon) and The Vision. Drew was also a member of the Avengers during Marvel’s 2013 Age of Ultron crossover storyline alongside Carol Danvers (Captain Marvel) – who’ll be joining the MCU with her own film in 2018 – and the addition of either or both of these characters to the group that appeared at the end of the Age of Ultron movie would balance out team and go a long way towards addressing criticism of the project’s current shortage of female heroes.

So it’s an option that Marvel might easily find very tempting if it feels it has the leverage in its relationship with Sony to cut another deal, either in return for actually bringing across MCU characters into Sony’s rebooted Spider-Man franchise or even as part of similar deal to one its brokered for the rights to include Spider-Man in the MCU.

That’s all speculation – at least for the time being – but the fact that it could even be considered a viable possibility shows just how far the dynamics of Marvel’s relationship with Sony have changed in a relatively short space of time.