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Character Copyrights at Issue: Who Will Control The King's Crown Jewels

Posted on January 13, 2010 by Geoff Gerber

It was just a matter of time. As reported in The New York Times and blogged by the LA Times, Marvel Entertainment has sued Jack Kirby's heirs to invalidate their efforts at copyright reclamation. Jack "King" Kirby's legacy is substantial.

Last fall, Kirby's heirs sent 45 Notices of Termination under the 1976 Copyright Act on Marvel Entertainment, Inc. and others. At the time, Geoff Boucher did a nice article on Kirby's legacy. The most notable and probably prolific period in his long and critically acclaimed career, would be his time as an artist for Marvel often collaborating with Stan Lee.

Marvel's lawsuit seeks to declare the termination notices invalid, arguing in large part that the creations were works-made-for-hire. From a practical perspective, at stake is ownership of a wide-ranging portfolio of some of the most iconic, pop-culture characters of last century and this (e.g., The X-Men, The Fantastic Four, The Avengers). From a legal perspective, this lawsuit could clarify work-made-for-hire law for an entire industry.

If the creations that Kirby's heirs seek to reclaim were originally owned by Kirby and sold to Marvel, then Kirby's heir have a right (through appropriate compliance with termination notice requirements) to recover ownership of his original rights. If, on the other hand, Kirby created these works as works-made-for-hire, then Marvel would have owned the copyrights from their inception and Kirby never had rights to assign or for his heirs to reclaim.

Other, high-profile, character-copyright lawsuits such as Marvel Characters, Inc. v. Simon (over Captain America, co-created by Joe Simon and Jack Kirby - pdf) and Siegel v. Warner Bros. Entertainment Inc. (a pair of cases over Superman - pdf and Superboy - pdf), have touched on these issues and resulted in favorable outcomes for the artists.

But, perhaps the most analogous case (pdf) in this instance appears to be In re Marvel Entertainment Group, Inc., in which the court concluded that much of Marv Wolfman's work for Marvel (including the character Blade) was done as a work-made-for-hire.