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Marvel And Jack Kirby’s Heirs Settle Copyright Dispute

Jack Kirby by Jack Kirby


“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.”

Well, those are words no one expected to read on Friday morning — or maybe ever — but they were indeed issued in a joint statement. The heirs of Jack Kirby, the late cartoonist responsible for many of Marvel’s most enduringly popular and profitable characters, including the Hulk, Captain America, the X-Men, Thor and many more, have come to terms with the Disney-owned company from whom the family sought to claim copyright.

The crux of the litigation was whether or not works produced by Kirby and published by Marvel between 1958 and 1963 were work-for-hire. The Kirbys contended that Jack was a commissioned contractor, and as such his estate ought to be allowed to terminate Marvel’s copyright claim. The case actually began when the Kirby estate attempted to do exactly this in 2009. The Southern District Court of New York sided with Marvel in 2011, and the Second Circuit Court of Appeals rejected an appeal by the Kirby estate in 2013.

The conclusion reached by the courts was that Kirby produced the work in question under direction from Marvel and was duly compensated for it. The Kirbys sought satisfaction from the U.S. Supreme Court, causing Marvel and Disney to file formal paperwork requesting that the Supreme Court reject the case, saying it didn’t “remotely merit this Court’s review.”

As recently as this summer, it seemed that the Supreme Court might take up the case. Back in May, the nine justices asked Marvel to offer a response — and the company initially declined — because the court planned to take the case into conference. That’s the first step towards a possible full Supreme Court hearing. The conference was postponed when Marvel promised and later delivered its response. According to Variety, the high court was set to review the case at its conference on Monday.

The Kirbys’ attorney Marc Toberoff also represents the family of Superman co-creator Jerry Siegel in its similar litigation with DC Comics. Toberoff has been characterized in the media as seeking nothing less than the copyright to Kirby’s (and Siegel’s) creations, although some lawyers agree it’s a negotiating tactic. Terms of this settlement have not been made public. Unless there is a public component to the terms, such as a change in the way Marvel credits its creators in films and comics, it’s unlikely that the details will ever be revealed.

While good news for Marvel and Kirby’s heirs, this settlement marks a disappointing and anti-climactic outcome for anyone who hoped this case might provide a bellwether to reconsider the rights of a past generation of creators both in comics and in other creative fields.

The case was never likely to have an impact on present-day work-for-hire relationships, which are contracted under very different circumstances, but it might have changed the way the industry rewards and recognizes the achievements of the architects of what is now at least a billion-dollar industry. There are no doubt other parties that might wish to bring similar cases before the courts, but there are surely very few who can hope to bring as much status or attention as the Kirby estate.

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