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Category: Jack Kirby

Judge rules in favor of Marvel in suit brought by Jack Kirby's heirs [Update]

Judge rules in favor of Marvel in suit brought by Jack Kirby's heirs

A federal judge in New York has ruled in favor of comic book publisher Marvel Worldwide in a dispute over who owns the rights to such popular characters as the Fantastic Four, Spider-Man, the X-Men, Iron Man and the Incredible Hulk.

The heirs of comic book artist Jack Kirby sought to assert their rights to such iconic characters in 2009, shortly after Disney announced it would acquire Marvel for $4 billion. Kirby's estate filed 45 notices of copyright termination, seeking to take back rights to characters created from 1958 to 1963, which they claimed were Kirby's creations.

Marvel argued that Kirby's work constituted "work for hire" -- that it was done by a freelance artist, under the direction and control of a company, which therefore retained the rights for such creative works.

"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 created culturally iconic comic book characters for Marvel and other publishers) were treated 'fairly' by companies that grew rich off their labor," wrote Judge Colleen McMahon. "It is about whether Kirby's work qualifies as work for hire under the Copyright Act of 1909."

McMahon found the Kirby works qualified as works for hire.

Marc Toberoff, an attorney representing the Kirby family, vowed to appeal the ruling.

"We respectfully disagree with the Court's ruling and intend to appeal this matter to the Second Circuit," Toberoff said. "Sometimes you have to lose in order to win. We knew when we took this on that it would not be an easy fight given various arcane and contradictory 'work for hire' decisions under the 1909 Copyright Act."

Updated:  2:40 p.m.: The Walt Disney Co. issued a statement, applauding the ruling. “We are pleased that in this case, the judge has confirmed Marvel’s ownership rights.”

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

-- Dawn C. Chmielewski 

Photo: Actor Chris Hemsworth as the title character in the movie "Thor," from Paramount Pictures and Marvel Entertainment. Credit: Paramount Pictures and Marvel Studios

Marvel owners seek to invalidate Kirby heirs' copyright claims

HulkmovieThe battle between Marvel Entertainment and the Jack Kirby estate is bringing out each side’s inner Hulk.

The comic book publisher and movie producer, which was recently acquired by the Walt Disney Co. in a $4-billion deal, has unleashed a lawsuit that seeks to invalidate the copyright termination claims made by the heirs to the iconic artist. It's the latest tactic in the fight over profits from some of the most lucrative superhero characters.

The suit, filed in federal court in Manhattan on Friday, against the Kirby heirs is essentially a preemptive strike to halt the Kirby family’s bid to reclaim the characters. It follows a series of letters from Kirby estate attorney Marc Toberoff in September in which his clients notified various copyright holders and licensors of their intent to terminate copyright to a slew of properties at various points in the coming decade (when they will, in the heirs' view, become available). Those properties include The Hulk, Iron Man, Spider-Man, Thor, The Avengers and many others from which the movie blockbusters are adapated.

Jack Kirby was a renowned artist instrumental in the creation and shaping of these characters, his family argues, and is thus entitled to profits like any other copyright-holder. Disney has maintained that Kirby’s work was considered for-hire and that his heirs are thus not owed any further profits. 

Like other heirs to 20th century comic book artists, Kirby’s progeny have become more aggressive in seeking to recoup their share of the profits.

The battle could impact Hollywood properties in a number of ways. If the heirs were granted copyright, it could force studios to hand a slice of movie and merchandising profits over to the family (making their tentpole franchises less profitable) or give the heirs a say on how and to whom those properties are licensed; in a worst-case scenario, it could hold up the development process for these films.

Nearly all the properties to which Kirby is seeking to terminate copyright are active Hollywood franchises. Paramount licenses Iron Man, for instance, and will release a new film this spring. Sony is working on a new Spider Man sequel (that may or may not see the light of day in 2011). And Marvel itself is preparing both Thor and Avengers pictures.

Neither Toberoff nor Disney immediately returned calls seeking comment.

--Steven Zeitchik

Photo: The Incredible Hulk; Credit: Universal Pictures

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

JackKirby

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."

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