The adult children of Jack Kirby, the main artist behind “Spider-Man,” “X-Men,” “The Incredible Hulk,” and other famous comic books, have lost their attempt to reclaim his works through a mechanism known as “copyright termination.” U.S. District Court Judge Colleen McMahon in the Southern District of New York granted a motion for summary judgment in favor of Disney (the media conglomerate was assigned the various properties by Marvel Comics, for whom Kirby worked for decades), setting the stage for an appeal the Kirbys’ lawyer has promised.
Kirby died in 1994, and his heirs claimed in their suit that his work at Marvel Comics was done as an independent contractor as opposed to a Marvel employee. The heirs have also claimed that, as a major creative force, Kirby was never given the appropriate payment or credit for his work on the iconic comics. A New York Times opinion piece recently sided with the heirs, calling comic book execs in the early 20th century “con men who stripped artists of their creations, then moved on to the next mark.” Brent Staples averred that the artists “were paid virtually nothing for work on characters now worth billions at the movies.”
But Judge McMahon stressed that her decision was based on the law regarding “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” (where she sits)—not on principles of fairness or whether early comic book writers were treated well by the powers that were and continue to be.
The crucial piece of evidence for McMahon was an agreement signed by Kirby in which he was called “an employee for hire” for Marvel and the family who owned Marvel at the time. Marc Toberoff, attorney for Kirby’s heirs (and a prominent player in other comic-book-related cases), suggested the judge should have turned to updated legislation–specifically, the work-made-for-hire doctrine under the 1976 Copyright Act, which is more forgiving to those claiming independent contractor status).
“We knew when we took this on that it would not be easy given the arcane and contradictory state of ‘work for hire’ case law under the 1909 Copyright Act,” Toberoff wrote in an email. “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 than Jack Kirby and Marvel.”
Not surprisingly, Disney, which owns Marvel Entertainment, believes the court reached the right decision. “We are pleased that in this case, the judge has confirmed Marvel’s ownership rights,” the company said in a statement.
Although copyright law has come a long way since 1909, it is always good to remember that if you’re producing work for someone else, you should make sure everyone is clear about which rights each party maintains and which they do not. Litigation in this area is expensive and lasts a long, long time.