Kirby family attorneys respond to Marvel lawsuit

Attorneys for the heirs of Jack Kirby call Marvel's assertion that the late artist's contributions were work made for hire "a standard claim predictably made by comic book companies to deprive artists, writers and other talent of all rights in their work."

The statement comes in response to a lawsuit filed Friday by Marvel asking for a judge to invalidate 45 copyright-termination notices issued in September related to such creations as the Fantastic Four, the Incredible Hulk, Thor, The Avengers, the X-Men and Spider-Man.

Marvel maintains that Kirby's work for the company was "for hire," invalidating the claims of his four children.

However, a press release issued late Friday by Kirby attorneys Toberoff & Associates points out that Marvel was unsuccessful when it made a similar argument in its legal battle with Joe Simon concerning Captain America.

"The truth is that Jack Kirby was his own man," the release states. "Like so many artists in the fledgling comic book industry of the late 1950's/early 1960's, Kirby worked with Marvel out of his own house as a free-lancer with no employment contract, no financial or other security, nor any other indicia of employment. ... Kirby's wonderful creations, which leapt from the page, were not Marvel's 'assignments,' but were instead authored by Kirby under his own steam and then published by Marvel. It was not until 1972 that Kirby by contract granted Marvel the copyrights to his works. It is to this grant that the Kirby family's statutory notices of termination apply."

According to Toberoff & Associates, the Kirby terminations would become effective beginning in 2014. However, it's unclear to which property that date refers. (What notable Kirby co-creations debuted at Marvel in 1958?)

When Congress increased the duration of copyright, lawmakers included a provision that, after a lengthy waiting period, permits authors or their heirs or estates to terminate the grant of rights. However, if the property is determined to be "work made for hire," the copyright would belong to the company that commissioned it.

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