Marvel Wins Copyrights Over Kirby Heirs

One of the most closely watched legal cases in modern comics history has ended for now as today New York federal judge Colleen McMahon declared that the heirs of legendary artist Jack Kirby had no claim to copyrights on the superheroes he co-created for Marvel Comics in the 1960s from the Fantastic Four to the Hulk and beyond.

The 50-page decision spells out the ins and outs of the trial in some detail, although McMahon spelled out what was really at stake very early when she wrote, "At the outset, it is important to state what this motion is not about. Contrary to recent press accounts [including two pieces in the New York Times], this case is not about whether Jack Kirby or Stan Lee is the real 'creator' of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated 'fairly' by companies that grew rich off the fruit of their labor. It is about whether Kirby's work qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts, notably the United States Court of Appeals for the Second Circuit. If it does, then Marvel owns the copyright in the Kirby Works, whether that is 'fair' or not. If it does not, then the Kirby Heirs have a statutory right to take back those copyrights, no matter the impact on recent corporate acquisition or on earnings from blockbuster movies made and yet to be made."

In the end, the judge agreed with Marvel's version of the events, writing that there were "no genuine issues of material fact, and that the Kirby Works were indeed works for hire."

The decision is an undeniable victory for Marvel and their new parent company Disney who can now move forward with exploitation of the properties in full faith that they control all rights to the Marvel Universe. CBR legal expert Michael L. Lovitz of Lovitz IP Law put it this way: "Essentially, the Kirby heirs were unable to overcome the presumption that the works were 'work-for-hire' because they were created at Marvel's instance and expense."

Lovitz noted that a key factor in the decision was "testimony that Kirby 'didn't do work on spec, he was getting paid by the page' and while he would pitch ideas, he didn't draw anything without approval or an assignment."

The document also goes into detail on the legal maneuverings both sides went through to make their case with Marvel taking action to strike down testimony from witnesses including Jim Steranko and Joe Sinnott and experts Mark Evanier and "Jack Kirby Collector" publisher John Morrow. While the publisher was unable to get the first hand accounts of the former witnesses stricken, the opinions of Evanier and Morrow were excluded from the final decision.

The court saw fit to note that while many witnesses and defendants in the proceedings "challenged the credibility" of Stan Lee "general attacks on Lee's honesty or credibility, without more, are insufficient to raise a genuine issue of fact." In other words, no real evidence suggests that Lee or Marvel misrepresented themselves when dealing with Kirby.

Overall, it was Lee's testimony as well as Steranko and Sinnott's that helped seal the case for Marvel. As direct witnesses to Marvel Editorial policy at the time, those men had the closest take to how the work was really created. How this new decision may effect other pending legal action by Kirby family lawyer Marc Toberoff against Warner Bros. over the rights to Superman in the name of Jerry Siegel's heirs remains to be seen.

Stay tuned to CBR News for all the updates on the legal actions over the rights to both Marvel and DC's biggest heroes.

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