An epic legal battle between the famous comic creator Jack Kirby and Marvel Comic was settled just days before the Supreme Court was scheduled to discuss the case. The parties were involved in an extensive legal dispute regarding the ownership rights to legendary comic characters such as X-men, Iron Man, and Spider-Man. The question before the Supreme Court was whether the works created by Kirby over 50 years ago belonged exclusively to Marvel under federal copyright law. Although Kirby passed away in 1994 his children initiated the legal confrontation with Marvel and its parent company Walt Disney in hopes of protecting their alleged rights and interests in their father’s creations. His family sought to terminate Marvel’s copyrights to works published from 1958 to 1963 but Marvel fought back arguing that the family lacked termination rights because Kirby created the comic characters while working for Marvel.

The Second Circuit affirmed the trial court’s determination that the works belonged entirely to Marvel because they constituted work-for-hire under the Copyright Act of 1909, a legal determination that rendered the family’s claims invalid under the Act. Under the “instance and expense test,” Kirby created the characters under the direction of Marvel and was in turn duly compensated. Under this test Marvel was the full owner and the Court agreed with Marvel’s argument that it alone bore the risk and potential expense if the works were entirely unsuccessful. Kirby’s children appealed arguing that their father was not a work for hire employee, but rather an independent contractor.

Due to the possible implications of the case for the entertainment industry, the case was closely watched. Kirby’s request for cert was accompanied by a handful of amicus briefs from organizations representing inventors who argued that their rights were continuously torn away by the work “made for hire” test. According to a brief written by the Screen Actors Guild the “instance and expense test” used to determine work-for-hire provides “a windfall to purchasers at the expense of the creative community.” To many the case highlighted the struggle between creative contributors and large companies who managed those contributors’ work. In addition, the case brought attention to a common issue of re-creating or building large franchises based on old creations such as superheroes, comic strips, television cartoons, or classic toys. These recreations can reap huge profits but also raise serious intellectual property concerns and costly litigation disputes.

The highly anticipated legal battle was brought to an abrupt end last Friday. Rather than an epochal battle at the Supreme Court, the parties reached an agreement to settled and released the following statement:

“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.”

The settlement may not come as much of a surprise with the stakes relatively high for Marvel if the Court sided with Kirby. The outcome could have resulted in royalties on billion dollar movies such as Iron Man, The Avengers, and the recent summer hit Guardians of the Galaxy. A loss for Marvel may have even allowed Kirby’s children to terminate copyright claims to a vast number of characters Kirby created. Unfortunately for all watching, the actual terms of the settlement remain a mystery.


–Sarah Robbins

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One Response to Marvel—Kirby Dispute Ends “Amicably”

  1. Daniel Rheiner says:

    While Marvel settling in this case makes sense, given their potential to lose a significant amount of money from their movie franchises, it will be interesting to see if this represents a trend toward future litigation. Since comic book characters are typically jointly created by a writer and an illustrator, there are many potential plaintiffs for such a case. Additionally, as DC Comics begins to catch up to Marvel, with plans to produce new movies focusing on Superman, Batman, and Wonder Woman, comic book movies will become an even larger source of revenue. The amount of money being brought in at the box office by comic book movies may tempt more writers and artists to pursue legal action, with the hope of gaining loyalties or a lucrative settlement.

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