Kirby Heirs Lose Case Against Marvel
Super-Menace
> One of the most closely watched legal cases in modern comics history
> has ended for now as today New York federal judge Colleen McMahon
> declared that the heirs of legendary artist Jack Kirby had no claim to
> copyrights on the superheroes he co-created for Marvel Comics in the
> 1960s from the Fantastic Four to the Hulk and beyond.
> The 50-page decision spells out the ins and outs of the trial in some
> detail, although McMahon spelled out what was really at stake very
> early when she wrote, "At the outset, it is important to state what
> this motion is not about. Contrary to recent press accounts [including
> two pieces in the New York Times], 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 who created culturally
> iconic comic book characters for Marvel and other publishers) were
> treated 'fairly' by companies that grew rich off the fruit of their
> labor. It is about whether Kirby's work qualifies as work-for-hire
> under the Copyright Act of 1909, as interpreted by the courts, notably
> the United States Court of Appeals for the Second Circuit. If it does,
> then Marvel owns the copyright in the Kirby Works, whether that is
> 'fair' or not. If it does not, then the Kirby Heirs have a statutory
> right to take back those copyrights, no matter the impact on recent
> corporate acquisition or on earnings from blockbuster movies made and
> yet to be made."
> In the end, the judge agreed with Marvel's version of the events,
> writing that there were "no genuine issues of material fact, and that
> the Kirby Works were indeed works for hire."
The Kirby family was represented by Marc Toberoff, who's also
representing the heirs in the case against Warner concerning the rights
to Superman.
The full story is here:
KalElFan
case]
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Here's another report on it at Deadline:
It mentions an issue of New York State having had the law
that Disney/Marvel knew would be most favorable and so
they sued there. The case precedent that went to the
second circuit, as alluded to above, presumably the same
thing. The Superman case is being heard in California
and in the ninth circuit.
It may be that Toberoff has to go through the inevitable
appeal that may be lost in the second circuit, but then
SCOTUS takes up the issue and decides. Perhaps the
circumstances are sufficiently different enough that
Siegel & Shuster were clearly not work for hire, while
Kirby clearly was. But if there's anything conflicting in
the two state or circuit rulings, in terms of rationale(s)
in the opinions, SCOTUS might resolve it.
In the Deadline piece, Toberoff seemed to clearly be in
appeal mode, so it's the flip side of California where the
ruling was on his side and in New York it's not.