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In a conversation a while back with a senior executive at Marvel I was told that the movie and animated rights to ALL mutant characters who were around at the time of the first X-Men movie have been licensed with the X-Franchise, and the deal is that they stay that way until there's some specified number of years passed without them being used. There was a long actual list naming all the characters, perhaps running to hundreds of names.
That's largely what I've heard before. However, it's interesting to note that the currently being filmed X-Men First Class has actors cast as mutant characters that had not been created yet at the time of the original X-men deal, including the black, female Angel, Nightcrawler's demonic father and retroactively added early X-Man Darwin... So the deal obviously has some room to evolve, so to speak.
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Wanda and Pietro are on that list, which makes their appearance in the Avengers movies and cartoons that much less likely. However, the case for Wanda is slightly more optomistic because she was also a cartoon property in the United We Stand series and there may be leeway for arguing the toss. Or a financial deal might be done to license or buy back rights if the Avengers movie goes down well and Whedon wants the Scarlet Witch for a sequel.
It's this kind of thing that makes the lack of a simple, straight answer on these two characters interesting. Combine that with the fact that Fox has dug up all sorts of obscure mutants over the course of 4 X-men films but haven't used either of Magneto's most famous children for so much as a cameo, and still apparently aren't putting them into a film about the earlier lives of Prof X and Magneto.
They've been common elements of the more recent X-Men cartoons, but the cartoon deals are different than the film deals, I know. (Hence Super Hero Squad can use Wolverine, or Cap and Hulk can appear in X-Men cartoons.) regardless of their movie rights, I would think they likewise could be used in the Avengers cartoon, at least as guests if not cast members... But again, Marvel might not want to promote them if they're still a Fox property.
As for Namor, they had been trying to set him up in his own film at Universal a few years ago, so I assume he's not tied up with the X-men mutants. However, Kevin Fiege has come out and admitted he misspoke when he said the Invaders would be appearing in Captain America. He apparently meant The Howling Commandos would be appearing instead.
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One of the reasons Marvel is promoting the Avengers comics line so heavily now relative to the Spidey and X-teams is that the Avengers/heroes line is the one they retain direct movie control over and is therefore their most lucrative potential cash cow. But Wolverine, Spidey, Wanda, Pietro, Firestar, and Justice won't be assembling in any motion picture form without some clever legal work or large cash transfers.
Hatty and I discussed how Marvels film rights might be affecting their publishing strategies a while back, when we noticed that non-mutants were being announced as X-Men cast members, Fantastic Four members being Avengers, and other cast mash-ups were coming. I suggested that Marvel was more willing to put some focus on non-Avengers books if their entire line was less segregated, so that a push for X-men or the FF still increased reader interest in characters linked to the Avengers.
