The legal showdown between Marvel and the heirs of Jack Kirby will take place in New York, Eriq Gardner reports.
The decision by New York District Judge Colleen McMahon gives Marvel an important victory in what's sure to be a prolonged court fight over the copyrights to lucrative characters like the Fantastic Four, the X-Men, Spider-Man, Thor, The Avengers and the Incredible Hulk.
Kirby's four children filed a lawsuit last month against Marvel and new owner Disney seeking to reclaim copyrights to properties created or co-created by their father. The action followed copyright-termination notices the Kirbys sent in September, as prescribed by U.S. copyright law. The Kirby heirs also sought to dismiss Marvel's preemptive lawsuit, arguing it 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.
But in an April 14 decision, Judge McMahon ruled that "by virtue of having mailed the termination notices to Marvel, all four Kirbys ... projected themselves into New York and into the local commerce." She found that Marvel's lawsuit should be given priority, which means the case will be heard in New York.
Gardner, who writes for The Hollywood Reporter's THR, Esq., blog, asserts that McMahon's decision could end up tipping the scale in Marvel's favor: "there's been a split developing between two major jurisdictions over how to treat the topic. California, in the Ninth Circuit, has given authors favorable treatment in cases involving Superman and Lassie, among others. Meanwhile, New York, in the Second Circuit, has given studios and publishers a slight upper hand in cases involving John Steinbeck books. The East Coast takes a more favorable view about whether late agreements can supersede termination rights."