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Marvel wins big in Kirby case

Comic creator's heirs can't reclaim character rights

A federal judge has handed a key victory to Marvel Entertainment, ruling that the heirs to comic creator Jack Kirby cannot claim rights to a platoon of characters including Spider-Man, Fantastic Four, the Avengers, X-Men and the Incredible Hulk.

U.S. District Judge Colleen McMahon ruled that Kirby’s works were made “for hire,” meaning that they are exempt from a provision of copyright law that allows authors and artists to obtain rights to their original creations after a certain passage of time.

McMahon concluded that “none of the evidence” submitted by the Kirby heirs “makes so much as a dent in the ‘almost irrebutable’ presumption that the Kirby Works were works made for hire,” even if he worked as a freelance artist. She said they had not “raised any genuine issue of fact necessitating a trial.”

McMahon’s granting of summary judgment to Marvel is not just a victory for the company but for parent Walt Disney Co., which had staked its acquisition of the comicbook giant on its ability to exploit its library of characters, as well as for other studios engaged in projects featuring the popular superheroes.

Disney said in a statement, “We are pleased that in this case, the judge has confirmed Marvel’s ownership rights.”

Marc Toberoff, representing the heirs to Kirby, “We knew when we took this on that it would not be easy given the arcane and contradictory state of ‘work for hire’ caselaw under the 1909 Copyright Act. However, the 1976 Copyright Act’s termination provisions at issue were specifically designed to correct the unfairness inherent in the author/publisher relationship and there is no better example of that then Jack Kirby and Marvel.”

He added that they “respectfully disagree” with the ruling and intend to appeal to the Second Circuit. “Sometimes you have to lose to win,” he said.

Kirby, who died in 1994, holds a special place in the annals of comicbook history, but the suit focused on the work that he did as an artist between 1958 to 1963, when some of the most valuable characters in the Marvel library were developed and created. Kirby provided his own tools, worked his own hours, paid his own taxes and benefits and used his own art supplies.

In September 2009, the heirs served 45 notices of termination to Marvel for works published during that time, which also include the Mighty Thor, Iron Man and Nick Fury. In January 2010, Marvel sought a declaration from a federal court that it retained the copyright, and the Kirby heirs then filed for a ruling that their termination notices were valid.

In deeming Kirby’s works “for hire,” McMahon gave particular credence to the testimony of Stan Lee, Marvel’s editor during that period, noting the control over which he held over artists and his testimony that he did not purchase work from artists that was not an assignment from him. In a two-day deposition, Lee described inventing the “Marvel Method,” in which he would give a plot outline to an artist and then the artist would draw a story along the lines of Lee’s “main theme.” After the artist completed the drawings, Lee would edit the work and add dialogue and captions, and send the work back to the artist if he wanted changes.

For example, McMahon noted that Lee did not like Kirby’s initial pencil renderings of Spider-Man, so he assigned it to another artist, Steve Ditko.

“From Lee’s testimony, it appears that Kirby was a freelancer who was retained to create comic book artwork at Lee’s instance and was paid an agreed-upon fee for doing so,” she wrote.

Disney has a deal with Lee’s POW Entertainment! and owns an ownership stake in the company.

In her opinion, McMahon also noted that Kirby did not receive royalities for his work but flat per-page rates for the artwork and scripts they produced. She also rejected the Kirby heirs’ contention that a 1972 agreement between Marvel and Kirby, in which the artist assigned rights to Marvel, proves that he had copyrights to give away. Instead, she noted that the agreement cited copyrights he “may” have but did not say what he actually did have.

McMahon refused to consider the testimony of two of the Kirby heirs’ expert witnesses, comicbook writer and historian Marc Evanier and writer, archivist and publisher John Morrow. She said that they both lacked “Lee’s ‘I was there’ experience.”

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