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Rights wrangle over superheroes

Kirby case raises claim questions

A federal judge could decide who has a claim to the rights to Spider-Man, the Incredible Hulk, Iron Man and dozens of other characters after she refused to throw out a claim brought by the heirs to comicbook artist Jack Kirby against Marvel Entertainment and Disney.

The Kirby heirs are seeking to terminate the copyrights to the characters, created or co-created by Kirby in the 1950s and ’60s.

A provision of the Copyright Act allows original authors or their heirs to re-obtain copyrights to their creations 56 years after the original grant, meaning that the Kirbys could claim an ownership stake in some of the characters starting in 2014 if they prevail in court. The heirs are seeking a determination

that their efforts at terminating the copyrights are valid, having served notices to Marvel in September 2009.

But U.S. District Judge Colleen McMahon’s Nov. 22 ruling was largely was procedural, and she has yet to rule on the merits of the rights termination as well as Marvel and Disney’s defense. They say that the heirs cannot obtain the copyrights because they were works “made for hire,” which are exempt from rights termination efforts.

But McMahon did dismiss other aspects of the heirs’ case, including claims that Kirby should have gotten credit as the author or co-author of “The Incredible Hulk” and “X-Men Origins: Wolverine.” She also dismissed efforts by the Kirby heirs to get a court ruling on how future profits from the copyrights should be allocated, calling the latter declaration “premature.”

And she threw out claims for Marvel to return of some of Kirby’s original artwork, ruling that it was barred by the statute of limitations. But she said that Marvel’s admission in August that it still had some 60 pages of original Kirby artwork (and offered to return 37 of them) was “deeply troubling.” The company had previously said that charges it was keeping the artwork were “baseless,” McMahon noted.

The Walt Disney Co. acquired Marvel on Dec. 31, 2009. McMahon ruled that it was “perfectly appropriate” to include Disney as a co-defendant in the suit because the conglom is in a position to exploit Marvel’s assets.

The Marvel heirs are represented by attorney Marc Toberoff, a specialist in rights termination. He also is repping the heirs to the creators of Superman, who aim to obtain the rights from DC Comics and Warner Bros. in 2013.

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