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In the recent Captain America movie, Captain America responds to Dr. Abraham Erskine’s question “Do you want to kill Nazis?” with “I don’t want to kill nobody. I don’t like bullies; I don’t care where they’re from.” But alas, Captain America was not available to save the day for his creator’s estate in its battle with real-life bully Marvel Comics.
Jack Kirby was the co-creator of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor. A recent New York Times editorial criticizes the way Marvel bullied Kirby–”There is no doubt that the King of Comics contributed far more to Marvel — and pop culture — than he has received credit for.” However, a bully or no bully, Judge Colleen McMahon ruled on Thursday that Kirby’s work for Marvel was “works for hire under the Copyright Act of 1909″ and cannot be reclaimed by the Kirby estate.
The Copyright Act of 1909 (PDF) allows for freelance workers to “reclaim” their works after a certain number of years have passed. However, this right of reclamation is not available to non-freelance workers or “workers for hire.” The Kirby estate filed a notice to reclaim the copyrights on the works that Jack Kirby co-created following Marvel’s 2009 sale to Disney. The parties entered into settlement negotiations soon thereafter, but the negotiations ended once Marvel/Disney filed suit in January 2010 in the Southern District of New York, attempting to invalidate the notices given by the Kirby estate.
On Thursday, Judge McMahon granted summary judgment for Marvel and found that the Kirby estate’s evidence did not make “so much as a dent” in Marvel’s assertion that Kirby worked for hire. Marc Toberoff, lawyer for the Kirby estate, plans to appeal to the Second District.
– Paul Russell
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