Marvel Countersues Kirby Heirs to Invalidate Their Copyright Claims
Back in September, we reported that the heirs of Jack Kirby, had filed 45 notices of copyright termination to Marvel Entertainment, Disney, Sony Pictures (which owns movie rights to Spider-Man), 20th Century Fox (owner of movie rights to the Fantastic Four and X-Men), Paramount Pictures (which has a film distribution deal for four upcoming Marvel-produced films) and Universal Pictures (which has distribution rights to Hulk movies) and others who have been making films and other forms of entertainment based on characters created by Kirby.
Yesterday, Marvel Entertainment filed a countersuit against Kirby’s heirs, seeking to invalidate their claims, based on the fact that “all of Kirby’s contributions to Marvel’s publications, like those of other comic book writers and artists of the same period, were works made for hire, making Marvel the sole owner of the copyrights”.
They also pointed out that “Marvel editors determined which publications Kirby would work on, just as they did with all the other artists and writers engaged to work on the publications, and always retained full editorial control. In addition, Kirby was paid for his contributions. As a result, all of Kirby’s contributions were solely owned by Marvel, which was standard practice in the comic book publishing industry”.
They also highlight the fact that this case is completely different from the one being faced by DC Comics over the rights to Superman, because in that case, the character was created before it started to appear in DC’s publications. All of Kirby’s creation were created while he was under the employment of Marvel, and therefore are the property of the publisher.
Sounds like a pretty solid case to me. Fair? No, but this is the nature of work for hire contracts, and Kirby knew what he was getting in to when he created the characters.
Here’s the full press release:
Marvel Seeks Judicial Declaration that Kirby Heirs’ Copyright Claims are Invalid
NEW YORK, Jan. 8 /PRNewswire/ — Subsidiaries of Marvel Entertainment, LLC today filed suit in federal court in Manhattan seeking a declaration that notices of termination of copyright assignments served by the heirs of long-time Marvel artist Jack Kirby are invalid.
Last September, attorneys acting for the Kirby heirs sent 45 notices to Marvel seeking to terminate purported assignments by Kirby of copyright interests in Marvel Super Hero characters such as X-Men and Fantastic Four. Kirby’s heirs are claiming that from 2014 to 2019 various rights supposedly transferred to Marvel will revert to them. The Marvel lawsuit asserts that those claims are baseless because all of Kirby’s contributions to Marvel’s publications, like those of other comic book writers and artists of the same period, were works made for hire, making Marvel the sole owner of the copyrights.
“The notices filed by the heirs are an attempt to rewrite the history of Kirby’s relationship with Marvel,” said John Turitzin, Marvel’s General Counsel. “Everything about Kirby’s relationship with Marvel shows that his contributions were works made for hire and that all the copyright interests in them belong to Marvel.”
Under federal copyright law, works that were created at the “instance and expense” of a publisher during the time Kirby was a creator for Marvel were “works made for hire” and owned by that publisher. If, for example, Marvel gave a writer or artist an assignment to create a comic book story populated with new characters or to illustrate a comic book story with depictions of its characters – and paid the writer or artist for carrying out the assignment – the publisher, not the writer or artist, would own the copyright. All of Kirby’s contributions to Marvel comic books the heirs are claiming for themselves fall into this category.
Marvel editors determined which publications Kirby would work on, just as they did with all the other artists and writers engaged to work on the publications, and always retained full editorial control. In addition, Kirby was paid for his contributions. As a result, all of Kirby’s contributions were solely owned by Marvel, which was standard practice in the comic book publishing industry.
Kirby’s situation at Marvel is completely different from the facts that gave rise to the Superman litigation. The initial Superman story was written and illustrated by its creators well before they had any business relationship with its ultimate publisher.
“The purpose of the lawsuit filed today is simply to set the record straight and obtain a judicial declaration that the Kirby termination notices have no effect,” said Mr. Turitzin.
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