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Marvel/Disney Hits PUNISHER Fan Film With Cease & Desist… But Why?

Filmmaker Mike Pecci shocked his fans today when he revealed, via his website, that his long-awaited Punisher fan film, The Dead Can’t Be Distracted, may never see the light of day: He received a cease and desist letter from Marvel Studios, which demanded that he “immediately stop [the] unauthorized use, advertising, sale and/or distribution of any production of The Punisher or any other Marvel character-based films.” In Pecci’s words, “According to Marvel it would ‘confuse the audience’ into believing that it’s an official Marvel production.” Confusion, though, seems unlikely, which makes the whole thing all the more baffling. What’s even more odd is there have been dozens (if not more) quality fan films produced based on Marvel characters and stories, and, to my knowledge, none have been taken down by a cease and desist from Marvel.

But for Punisher fans this leads to a more interesting question: could the real reason Marvel/Disney is trying to halt this production (which is based on a very popular storyline from Greg Rucka) be because they could be planning to use it as the basis for a third Punisher film? Or maybe a Punisher television series, since none of the previous three movies set the box office on fire, and Disney might be trying to make the character work in another medium? That, of course, is purely speculation, but by sending Pecci this cease and desist, it could be showing their hand regarding their future plans for the character. Or they could just be flexing their legal muscle to protect their rights to the material. What do you think? Speculate for yourself in the comments below.

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16 comments

  • Hi guys,I’m an italian Marvel fan and I would like to do a brief fan movie/teaser dedicated to x-men and avengers.All the no professional actor and actress are codplayers, everyone with his/her costume and armors.It’s a no profit and very low budget project and we wanna do this fan movie just only for a tribute opera to out favourite comics characters.There won’t be any commercial intentions and movie’s plot is not based on comics books but it’s all completely original. We wion’t confuse the people and It’s not an official Marvel product.There will be any problems about this?Thanks a lot for your kind answers.See ya!Greetings from Italy!

  • Hi guys,I’m an italian Marvel fan and I would like to do a brief fan movie/teaser dedicated to x-men and avengers.All the no professional actor and actress are codplayers, everyone with his/her costume and armors.It’s a no profit and very low budget project and we wanna do this fan movie just only for a tribute opera to out favourite comics characters.There won’t be any commercial intentions and movie’s plot is not based on comics books but it’s all completely original. We wion’t confuse the people and It’s not an official Marvel product.There will be any problems about this? Thanks a lot for your kind answers.See ya!Greetings from Italy!

  • My only opinion on this matter is ,Marvel/Disney own The Punisher ,and they have the say so on everything to do with the character . They are not allowing IDW to use Circuit Breaker in Transformers Regeneration One ,which even though she is owned by Marvel ,her roots and most appearances were in The Transformers . Us TF fans have to live with that ,so whoopee-do if a “fan” can’t make a stupid movie ,using someone else’s character .
    I have an idea for the film maker ,come up with something original ,and stop riding on the coattails of Marvel .

  • @ Cursethosefourknocks,
    I get what you’re saying, but couldn’t they set up one of the non-profits like Colbert did ‘way back’? I know those are intended for ‘public interest & campaigning’, but couldn’t one argue that a fan-film is in the ‘public’s interest’? Considering that’s all they’re really doing is making a film “for the fans” of said material. As long as they’re not intending to make any profits and it’s only being done in the interest of ‘artistic expression’, and not for commercial use, wouldn’t something like that hold up under Copyright laws?

    This sounds like a perfect case for some up-and-coming copyright lawyer to take on. If anyone like that is reading this, get in touch with this guy.

    Sorry if some of this may sound like an idiot commenting on something he knows very little about. I just feel like we should at least keep the conversation going, and maybe somebody who does know what can ‘really’ be done to help this guy will hear about it.

  • One word- “Disney”

    The only difference between this film and the many others is Disney now controls Marvel and if anything is blatantly clear about Disney is they protect their investments. Once huge corporations like Disney get involved with companies like Marvel and LucasFilm…the days of fan films will most likely be numbered. It is such a disappointment.

  • Very interesting indeed. Well if they stop a fan made film what is stopping them from going to a Con and handing out cease and desist letters to all the artist’s there. This has been a concern for some friends of mine that are artist and sell their art work at these Con’s. So I am thinking they are planing on doing something with the Punisher which is why they did this. Or we just may see more cease and desist letters pop up now. Oh and what about the Star Wars universe have books stopped being made as Disney owns the rights to that Universe as well.

  • Future film use seems unlikely since the 3 attempts at that have met with lukewarm success at best in the box office and a bit of cult status afterwards. I would guess that this is more from the Disney side of things, trying to make all the Marvel properties a bit more palatable for families.

  • i’ve been a punisher fan for decades and i think one of the reasons is definitely his very un-family friendly method of dispensing justice that doesnt sit too well with his new mouse eared overlords. Deadpool gets a pass because he so comical and popular. sadly my boy Frank has never been all the popular.

  • Unfortunately, it is not a simple a creating a 501(c) and distributing through it. If an individual wants to use a copyrighted work when they do not hold the copyright, they have to show that it is fair use. There is no cut and dry definition of fair use, but the courts look at a few factors including: the purpose and character of the use, the nature of the copyrighted work, the amount of the copyrighted work being used, and the effect of the use on the potential market for the copyrighted material.

    While courts have held that non-profit educational uses are often fair use, it is very much a case by case scenario. Since this case is primarily entertainment, based on a fictional work, using a large portion of the original source material and Disney/Marvel could make a convincing case that it could effect their use by being a competing version of the same story, I think Mr. Pecci would have a steep uphill battle convincing a judge that this is fair use.

    Nothing contained in this post is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.

  • I would think that he could easily get around this by stating that it was being done not-for-profit. Unless I´m mistaken, Copyright laws allow even copyrighted material (which would include characters) to be used in a case like that. He should set up a 501(c) non-profit to handle any revenues he might collect and as the organization’s manager he can pay himself a salary. You nerdist even have a advertiser that can help him do this (LegalZoom). So drop this guy a line and help connect him with the right ppl so he can figure his way out of this BS. And just maybe he can finish what he started.

    I’m not a lawyer, so don’t take my word for it. But, hopefully some of that will help.

    As usual,
    ‘Thoughts from a mind with too much imagination.’

  • Most likely reason the other fan-films never got cease and desist letters,, was Marvel owned by Disney at the time these other films were made? Disney is kind of Nazi-ish when it comes to their properties..

  • It’s also worth noting that occasionally these cease and desist letters are sent out near automatically, as in a legal aid somewhere is doing it without any decision made about this specific fan film. Often once appealed and the right person actually looks at the situation, they revoke the cease and desist.

  • Knowing Disney and Marvel, I think it could be either one. Most likely, they are flexing their legal muscle, and trying to protect one of their trademarks.