Taylor Vanderhelm is a JD candidate at the University of Alberta.
Marvel Worldwide Inc. won its case to retain the copyrights to comic characters against the estate of legendary comic creator Jack Kirby. The suit was in response to Kirby’s heirs filing of 45 notices of copyright termination in order to reassert their claim to the creations.
Kirby’s estate filed the notices with Marvel and its licensees shortly after Marvel was acquired by Walt Disney Co. for 4 billion dollars in 2009. The 45 characters in question had been created between 1958 and 1963 and included many valuable entities such as Spider-Man, Fantastic Four, X-Men, and the Incredible Hulk. Marvel countered with a lawsuit claiming that Kirby’s creations should be considered “works for hire” and thus free from the termination claim.
US District Judge Colleen McMahon sided with Marvel citing the lack of evidence presented by the Kirby Estate in rebutting the strong “work for hire” presumption under the 1909 Copyright Act. McMahon referenced evidence that the work was created at the expense and instance of Marvel as well as a written agreement signed by Kirby in 1972 stating he was not entitled to retain any ownership he may have of the creations. McMahon also stated:
This case is not about whether Jack Kirby or Stan Lee is the real 'creator' of Marvel characters, or whether Kirby (and other freelance artists created culturally iconic comic book characters for Marvel and other publishers) were treated 'fairly' by companies that grew rich off their labor, it is about whether Kirby's work qualifies as work for hire under the Copyright Act of 1909.
Marc Toberoff, lawyer for the Kirby estate and no stranger to copyright disputes with movie studios, acknowledged that while it was a difficult case given “the various arcane and contradictory 'work for hire' decisions under the 1909 Copyright Act[,]" the case was not finished and that the estate planned to appeal the decision.
The New York federal court’s decision to side with Marvel undoubtedly came as a relief to many Hollywood studios and entertainment enterprises given the widespread nature of Marvel’s business. Although an appeal is likely, its success appears questionable given McMahon’s strong statements, even with an experienced copyright wrangler in Marc Toberoff.