One of the most polarizing discussions in the theme park community is whenever rumors start up that a Marvel Comics-themed idea is coming to Universal Orlando or Walt Disney World. When The Walt Disney Company bought Marvel Comics in 2009 for $4 billion, it provided more headaches to the never-ending “Rights” debate. Like clockwork, fans go back and forth on which resort can use who, what, when, where, why, how, etc. and go through mental gymnastics as to why they are right.
Yet, no matter how many other blogs, or websites put out articles saying “Here’s the reality of the contract” – we end up right back at square 1.
When Universal Orlando announced the Incredible Hulk Coaster was going down in 2016, many fans (read: fanatical Disney fans) thought it was a sign that Universal was moving on with Marvel properties. That wasn’t the case.
More Marvel talk spiked when Disney announced a Guardians of the Galaxy attraction coming to Epcot at 2017’s D23 Expo. Every time one of the Marvel Cinematic Universe (MCU) films becomes a box office smash, people ask “Can this character be added?”. The latest announcement of Marvel-themed lands coming to the Disneyland Resort, Hong Kong Disneyland, and Disneyland Paris is sure to spark some more “but what about Orlando?” conversations.
So what exactly are the terms of the contract and what does it mean for the future of Disney and Universal Parks and Resorts?
“You have to know the past to understand the present.” – Carl Sagan
Here’s the gist:
In 1994, the Marvel Entertainment Group entered into a binding contract with Universal Orlando’s then-overlord, MCA, Inc. The contract allowed Universal Orlando to construct and maintain a “Marvel Universe” within their planned second gate (a.k.a the future Islands of Adventure). The contract remains in perpetuity, or indefinitely, unless Universal decides to close Marvel Super Hero Island, stop making payments for property usage, or Marvel opts out of the contract feeling their brand is suffering through Universal’s usage of the property.
The official excerpt from the agreement:
Once THE MARVEL UNIVERSE opens within the above time period, the term of this agreement shall continue for so long as a THE MARVEL UNIVERSE shall remain open (and operated consistent with the standards of the next paragraph below) at any Universal Theme Park (allowing for temporary closures for force majeure events or refurbishment/maintenance provided they are being diligently pursued), except for termination for material breach (with written notice and a reasonable opportunity to cure).
Each THE MARVEL UNIVERSE shall be operated and maintained in a first class manner consistent with the highest standards of the theme park industry and shall be deemed “open” only when operated in such manner (subject to temporary closures for force majeure events as described in the prior paragraph).
At such time as any THE MARVEL UNIVERSE is no longer open at a particular Universal Theme Park, all exclusivity and marketing rights acquired by MCA as a result of the opening of such THE MARVEL UNIVERSE at such Universal Theme Park, as set forth in Section IV below, shall terminate and this Agreement shall thereafter be construed as if the notice of intent to open THE MARVEL UNIVERSE had not been given by MCA.
After Disney’s purchase of Marvel in 2009, the contract did not become void; meaning all verbiage stated in the 1994 contract still takes precedent.
With the foundations of the contract now set and hopefully understood; what rights do Universal and Disney currently own?
The most important verbiage is that Universal owns the rights to Marvel “in perpetuity”; meaning for as long as the contract is in good standing. Either party may terminate the contract; however, Marvel must have a legitimate, legal reason to why the contract is void (poor upkeep, not upholding the quality of the IP, etc.)
Either party may terminate this agreement upon a material breach of the other party, subject to written notice and a reasonable opportunity to cure.
Although the parties may ultimately enter into a more formal agreement containing the above terms, until such occurs, the terms of this Agreement shall be binding on the parties.
Universal Orlando owns the rights to Marvel usage for all areas East of the Mississippi River for any property they are currently using. Per the contract:
East of The Mississippi – any other theme park is limited to using characters not currently being used by MCA at the time such other license is granted. [For purpose of this subsection and subsection iv, a character is “being used by MCA” if (x) it or another character of the same “family” (e.g., any member of THE FANTASTIC FOUR, THE AVENGERS or villains associated with a hero being used) is more than an incidental element of an attraction, is presented as a costumed character, or is more than an incidental element of the theming of a retail store or food facility;
Universal Orlando currently has 4 attractions in use based on properties from The Avengers, X-Men, Spider-Man, and Fantastic Four.
Due to this verbiage, Disney cannot install any attraction with these families for use in Orlando. The utilization of those 4 “families” includes a lot of characters in the Marvel Universe, specifically the “big ticket” characters – such as Wolverine, Spidey (obviously), and Iron Man. In addition, Universal Studios Japan features a Spider-Man ride clone, so Tokyo Disney cannot utilize Spider-Man.
Other than that – Disney is free to use Marvel in any other Disney park they wish.
“So what about Guardians of the Galaxy?”
Per the agreement, a Marvel-based attraction cannot be featured at Walt Disney World if the family is in use at Universal Orlando. With Guardians of the Galaxy: Cosmic Rewind at Epcot, it is clear that those characters are not related to any of the families that Universal uses in their park, which is why Disney is allowed to bring the characters to Walt Disney World.
In regards to other recent popular films/characters:
Dr. Strange seems to not fall under any family Universal owns. While he may have been an Avenger and had crossover appearances in other comics, his comic publication history dictates he was essentially a stand-alone character. This is why he was featured in a Meet & Greet at Disney’s Hollywood Studios during marketing for the 2016 film.
Captain Marvel is a bit clearer and won’t be coming to any Orlando parks, especially as she has Marvel in her name. In the comics, she was an Avenger and played pivotal roles in several X-Men stories, including a pretty big Rogue story arc. During promotion for the film, she was featured as a Meet & Greet in several Disney parks except for Orlando. However, how they market it is still in question since she does feature the Marvel name.
With the success of Black Panther, many have wondered as to whether or not we will see the character head to Orlando. Unfortunately, T’Challa has deep connections to the Avengers and the Fantastic Four so he cannot be used at Walt Disney World. This is why Disneyland featured a Black Panther Meet & Greet while Walt Disney World did not. Whether or not Wakanda as a location could be added is a little more tricky as the contract doesn’t clarify whether locations can be used, but in our opinion – you don’t build Wakanda without its king.
As far as Disney using buses and/or monorails to advertise upcoming films, it seems to fall into a category of movie advertising, not an attraction. In that aspect, Disney can advertise upcoming films per the contract regardless of what family Universal owns.
Regardless of Disney’s ability to use characters, they still may not refer to any attraction as a “Marvel” attraction. For example, when the announcement was made for the Guardians ride – it was referred to as “the popular superhero franchise” with no connections to the MCU.
“What about Disneyland?”
Here’s where things get sticky. Per the contract, from Section 10 to 12:
West of The Mississippi – any other theme park may use any Marvel characters whether or not used by MCA.
iii. East or West of The Mississippi – permitted uses shall be limited to the use of specific Marvel characters and Marvel may not permit a licensee to use the name “Marvel” as part of the attraction name or marketing.
iv. East or West of The Mississippi – The foregoing permitted uses will be subject to the following marketing restrictions:
If the particular character is used by MCA (as defined above), such character will not be advertised or promoted East of The Mississippi, except by means of national Network buysof television, within printed materials such as brochures, or by print advertisements in periodicals directed to readers more than 300 miles from Orlando; and with regard to any of the foregoing permitted marketing, if the marketing is for a group of theme parks located both East and West of The Mississippi, the marketing shall make abundantly clear that the character only appears in the parks West of The Mississippi and shall not be subject to confusion on such point (such as would occur by visual inclusion of the character in a generic, multipark advertisement subject to a small print explanation of the parks where the character is present).
(b)If the particular character is not used by MCA, such character will not be advertised or promoted by means of (x) spot television buys, billboards, personal appearances, or print advertisements which are (y) viewed, located or primarily directed to persons within 300 miles of Orlando. In other words, regional (i.e. covering a multi-state geographic region) or national television or print media buys, or brochures would not be prohibited within such 300 mile radius.
Here it’s noted that characters can be used by other parks, but have limited advertising opportunities. Marvel also cannot permit the use of the name Marvel as part of an attraction or marketing, this is why at Disneyland Super Hero HQ is the name for the meet and greet and it’s the Super Heroes Half Marathon Weekend. The recent opening of Avengers Campus at Disney California Adventure makes sure the Marvel name isn’t used; even going as far as using “new Super Hero-themed land” during the initial announcement to avoid violating the agreement.
Finally, when it comes to the future of Universal Orlando, they have the right to change and/or update Marvel Super Hero Island as long as it is “reasonable”:
i. Marvel will reasonably cooperate in making information, artwork, archive material, key personnel, etc. available to MCA in order that MCA can creatively develop THE MARVEL UNIVERSE and exploit its rights hereunder. MCA will reimburse Marvel for its reasonable costs in this regard, including time of non-executive personnel and their reasonable travel expense.
ii. Whenever Marvel has “reasonable” rights for rejection of approval hereunder, the basic criteria to be used by Marvel may include inconsistency with (i) basic story line, (ii) the powers, (iii) basic personality traits, (iv) physical appearance (including clothing or costume), and/or (v) living habitat or environment relating to such character as portrayed in Marvel’s exploitation of such character in comic books or other products for the particular time period being depicted by MCA.
iii. MCA shall take appropriate action, as directed by Marvel to protect all copyrights and trademarks in connection with the uses granted hereunder, including in-park uses, merchandise and packaging.
In Layman’s terms, Marvel/Disney has to comply with any reasonable changes, upgrades, or additions unless Universal intends to create a notably inferior product; or misrepresent the characters’ story, powers, appearance, and other basics (sorry those wanting to see a purple, villainous Spider-Man who can shoot lasers out of his eyes).
For example, many have speculated that Universal is looking to upgrade their very 90’s looking Marvel Super Hero Island to reflect the modern look of the characters. By the letter of the law (or contract), Disney cannot deny Universal unless they can prove it’s bad for Marvel’s business and/or a poor representation of the product.
However, Universal’s usage of the characters as they appear in the MCU is not a possibility. Since the films fall under the Disney umbrella, Universal may not use the official look of the films. With that said; they can, in theory, add an Iron Man attraction with Robert Downey, Jr. lending his voice.
Many have suggested Disney and Universal could enter into an agreement allowing certain rights to be used. If there is a silver lining for those wanting to see Marvel used in Walt Disney World, the contract has been amended twice. Once in 1995 with regards to payment and fees; the other shortly after the Walt Disney Company purchased Marvel. That amendment protects Universal from allowing Disney free access to certain information and financial documents.
Having said that, Universal has no reason to relinquish any rights for these properties, especially considering the amount of success it brings. Giving Disney any rights to the Marvel name and its characters for use at Walt Disney World could arguably weaken Universal Orlando Resort’s brand by diluting its offerings. In addition, both Disney and Universal have stated several times there are no plans or desires to enter into any agreement allowing the use of the Marvel name and characters at Walt Disney World. Now that’s not to say an agreement can be reached in the future, but it is a highly unlikely scenario; but if a change were to be made, any amendment would be made publicly available online at sec.gov.
The recent news of the merger between the Walt Disney Co. and 20th Century Fox has also raised some questions as to what the future holds for the Resorts. While Disney would now be adding the likes of X-Men, Fantastic Four and Deadpool to the MCU films, this would change nothing in regards to the theme park usage rights. In addition, Universal Orlando uses the X-Men and Fantastic Four predominantly around the Island so they could not appear at Walt Disney World; but Disney could add the characters to Disneyland if they so choose to.
So where does this leave us? Universal Orlando Resort has exclusive rights to the Marvel property. Any characters featured in Marvel Superhero Island, and characters associated with those characters’ “families”, cannot be used east of the Mississippi as an attraction in the United States. Changes made to Marvel Superhero Island must be approved by Marvel, who cannot veto any “reasonable” changes. Finally, Universal owns the exclusive rights for the use of the Marvel name and characters in perpetuity, meaning forever.