The heirs of Jack Kirby were engaged in settlement talks with the Walt Disney Co. in December, just weeks before Marvel filed a lawsuit to invalidate the family’s copyright claims.
That’s according to a motion filed last week in U.S. District Court in New York by Kirby attorney Marc Toberoff seeking to dismiss Marvel’s case for lack of jurisdiction.
The motion is dated March 9, the same day the four Kirby children sued Marvel and Disney to reclaim the copyrights to characters and stories their father created or co-created for the comics publisher between 1958 and 1963. The lawsuit followed copyright-termination notices the Kirbys 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 the characters.
When Congress extended the duration of copyright from 56 years to 95 years in 1976, it included a provision that permits authors, their heirs and estates to recapture copyright at the end of that original term. If a property is determined to be “work made for hire,” the company that commissioned it is considered the author.
The Kirby children claim their father was a free-lancer (and not an employee) who created or co-created stories, which Marvel or its predecessor then purchased and published. They assert 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.” In its Jan. 8 lawsuit, Marvel argued that all of Kirby’s work for the company was “for hire,” invalidating the heirs’ copyright claims.
According to Toberoff’s motion, that lawsuit came as a surprise to the Kirby children, as there had been settlement talks with Disney on Dec. 9 and again on Dec. 16.
“At the conclusion of the second settlement conference, it was expected that Disney and Plaintiffs would get back to Defendants after the Christmas holidays,” Toberoff wrote. “Instead, Plaintiffs filed the present action on January 8, 2010 without warning and without any indication that such settlement discussions had concluded.”
In his motion, Toberoff argues that Marvel’s lawsuit should have been filed in U.S. District Court in the Central District of California, rather than in New York, because Marvel Characters, MVL Rights and parent company Disney are headquartered in Los Angeles and Marvel Worldwide regularly conducts business in California. In addition, two of the Kirby chidren, Lisa and Neal, live in California, while the other two have consented to the court’s jurisdiction.
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