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Kirby heirs sue Marvel and Disney for stake in characters, profits [Updated]

by  in Comic News Comment

The children of legendary artist Jack Kirby have sued Marvel and Disney to terminate copyrights to, and receive a share of profits from, characters created or co-created by their father.

The lawsuit, filed last week in U.S. District Court in Los Angeles, follows the 45 copyright-termination notices sent in September to Marvel, new owner Disney, Sony Pictures, Universal Pictures, 20th Century Fox and others who have made films and other forms of entertainment based on characters that Kirby co-created. Marvel responded in early January with a lawsuit asserting that Kirby’s work for the company was “for hire,” and asked that a judge invalidate the claims of the heirs.

In the Kirby lawsuit, attorney Marc Toberoff lays out the characters and comic books at the heart of the family’s claims: properties created or co-created by Jack Kirby between 1958 and 1963, including the Fantastic Four, X-Men, Iron Man, Spider-Man, The Incredible Hulk, Thor, The Avengers, Nick Fury and Ant-Man. (The extent of Kirby’s involvement in the creation of Spider-Man is the subject of much debate.)

Under U.S. copyright law, authors or their heirs and estates may file to regain copyrights, or partial copyrights, at a certain period of time after the original transfer of rights. However, if the property is determined to be “work made for hire,” the copyright would belong to the company that commissioned it.

Marvel argues that the company’s editors determined which titles Kirby and other creators worked on, “and always retained full editorial control.”

However, the family’s lawsuit asserts that Jack Kirby wasn’t an employee but rather a free-lancer who “authored or co-authored” numerous stories that Marvel and its predecessors then purchased and published. That echoes the earlier response to Marvel’s January lawsuit. The plaintiffs claim it wasn’t until May 1972 that Kirby assigned his copyrights to the properties to Magazine Management Co., then the parent company of Marvel Comics, for “additional compensation.”

Lisa Kirby, serving as trustee for the Rosalind Kirby Trust, also alleges that Marvel didn’t return all of Jack Kirby’s original artwork in its possession — a bitter dispute that goes back decades — despite its claims to the contrary.  The company’s alleged efforts to conceal the art are characterized as “willful, wanton, malicious, and oppressive, and justify the awarding of exemplary and punitive damages.”

The plaintiffs also seek damages under the Lanham Act, claiming that Kirby wasn’t properly identified as co-creator of the original works in the advertising and promotion of the movies The Incredible Hulk and X-Men Origins: Wolverine (the latter presumably because of the X-Men, Professor X, Scott Summers and the Blob, not Wolverine). The lawsuit contends the omissions amount to “false or misleading descriptions or representations of fact in interstate commerce,” prohibited by the Lanham Act, and cause injury to the interests of the Kirby estate. The plaintiffs assert they’re entitled to “up to three times the damages they sustained and will sustain” because of the omissions, but don’t give an actual figure.

The Kirby lawsuit doesn’t state how much money the family believes it’s owed in total but, as The Hollywood Reporter‘s Eriq Gardner notes, “any termination of copyrights could be worth tens of millions of dollars, if not more.”

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