Comics artist Jack Kirby's children move to reclaim character rights from Disney, Marvel, studios

Walt Disney Co. may not end up with full ownership of many of Marvel Entertainment's most famous super-heroes if new copyright claims by the children of the late artist Jack Kirby prove successful.

The four children of Kirby, who co-created a number of Marvel's best-known super-heroes, including the X-Men, Fantastic Four, Thor and the Hulk, have served so-called notices of copyright termination for 45 characters to Marvel Entertainment, Disney (which recently agreed to buy Marvel for $4 billion), 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).

The filings came just a week after Disney unveiled its $4-billion agreement to purchase Marvel but were in the works before that deal was announced.

The children of Kirby, who died in 1994, are being represented by Los Angeles law firm Toberoff & Associates, which has represented Superman co-creator Jerry Siegel in a similar claim against Warner Bros.

Kirby, who is widely considered to be one of the most influential comic book artists of all time, served as penciler and a co-plotter with writer Stan Lee on most of the Marvel characters in question. If Marvel, Disney or any of the other companies challenge his claims, it may be a complex legal process to determine what exact role Kirby played as creator or co-creator of various characters who first appeared nearly 50 years ago.

While Lee, who has also been Marvel's editor in chief, has been a public face of the company for decades, Kirby is less well known publicly despite the fact that he worked closely with Lee on many of the publisher's best-known characters. That's in part because Kirby left to work for competitor DC Comics in 1970.

Under copyright law, creators and co-creators can seek to regain copyrights they previously assigned to a company 56 years after first publication and can give notice of their intentions to do so up to 10 years before that.

Kirby's children would be eligible to claim their father's share of the copyright of the Fantastic Four in 2017, while the Hulk would come up in 2018 and X-Men in 2019. The copyrights would then run for 39 more years before expiring, after which the characters would enter the public domain under current law.

A representative for Marvel declined to comment. A Disney spokesperson said, "The notices involved are an attempt to terminate rights seven to 10 years from now and involve claims that were fully considered in the acquisition."

Should their claims stand, the Kirby children could choose to assign their portion of the rights to current copyright holders for a fee or sell them to a new licensee. The actions could possibly benefit Disney if the Kirby children were to take movie rights to Spider-Man or the X-Men, currently held in perpetuity by Sony and Fox, respectively, and sell them to Disney, for instance.

Kirby also co-created Captain America, for whom Marvel is currently preparing a new film, but the patriotic super-hero first appeared in 1941, so he is not currently eligible for such a copyright claim.

-- Ben Fritz

Photo: Cover of Fantastic Four No. 50, from May 1966, illustrated by Jack Kirby.

Comments

[Daedalus Howell]

So the X-Men go public domain in 2058? Somehow, I doubt the Mouse House will let that transpire given their uncanny ability to stave off the copyright expiration of their characters (thanks, most recently, to Sonny Bono's Copyright Term Extension Act of 1998, otherwise known as the "Mickey Mouse Protection Act," which keeps the mouse in-house until 2023). This is assuming Disney gets to keep their new toys out of the Kirby Kids' reach...

[N. W.]

In the case of the Siegels (and soon, the Shuster estate,) the question of authorship is clear. The first Superman story was finished long before DC purchased it.

When Kirby created all of those 60s characters, he was working in a collaborative environment as an employee of Marvel. Most of his characters were co-creations with Stan Lee. The Kirby kids can't get the rights to these characters. They could at best win a portion of the rights, but that would not actually grant them copyright on Kirby's material, or the right to create derivative works. These characters, meanwhile, would be rendered unusable until Kirby's portion of the rights was sold back to Marvel.

That's the best-case scenario, where they can actually obtain any part of the rights. It remains to be seen if Kirby's works will actually be determined to have been made "for hire," a case which would grant Marvel unquestionable ownership. That's a complicated situation with many factors unknown to the public. It's difficult to predict the outcome.

What happens now is going to depend on what Toberoff has been promising the Kirbys. If all they're looking for is a large settlement, they can get it. If Toberoff has convinced them there's some point in imitating the Siegels and pursuing a decade-spanning legal battle in order to secure that portion of the rights, Kirby's legacy will be gradually dismantled. Film and television projects are all that keep these characters in the public consciousness.

[Eloise]

Kirby did it all - Stan Lee is just a brand name

[TAG]

Kirby created all of these characters, Not to mention Captain America and the x-men and everything else that made Marvel. Stan took the credit. (not to mention the money).

http://www.marvunapp.com/list/appkirby.htm

[Phill]

I don't know why these articles (here and in the NYT) keep mentioning Sony and Spider-Man. Steve Ditko created Spider-Man with Stan, and while I think he should be given a similar deal to what Jack's heirs are looking for (although he may never pursue it), I'm pretty sure there aren't any Kirby creations in any of the Sony Spider-Man films.

[Rodney M.]

Its interesting to see how Disney will resolve the claims of Kirby's children -- a lot of folks consider to be the actual creator of these popular comic book characters. But since copyrights are transferable or where all or part of the rights in a work may be transferred by the owner to another, Disney can probably buy out the claims of Kirby's heirs.

[PatrickSMcNally]

> Kirby did it all - Stan Lee is just a brand name

Bollocks. I remember in the mid-1970s when Kirby returned to Marvel as both a writer and artist for Captain America & The Falcon. His characters were like wood, especially after Steve Englehart's outstanding portrayal of the characters when he had been the author. Kirby's Captain America & The Falcon was effectively divorced from the Marvel Universe as a whole, and never showed much sense of depth. It was obvious from Kirby's performance as the writer/artist of Cap in the mid-1970s that he had always depended upon Stan 'The Man' Lee to really put the stories together. It doesn't depreciate Kirby to point out that he simply was not very good as a writer/artist the way Jim Starlin was. Starlin could weave great plots and produce the artwork to go with it. Even he sometimes depended on Steve Englehart to do some of the writing. But Starlin produced some real classics as a writer/artist. All of Kirby's memorable work was done as the artist for a writer like Stan the Man. No doubt about that. If he had been so talented as to claim the credit for The Fantastic Four then his later return to Marvel would have shown more than it did. Stan Lee was indispensable for making the FF and others what they were.