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Bang! Boom! Pow! Marvel Defeats Heirs' Copyright Claims

By Gabriella Khorasanee, JD | Last updated on

Marvel Comics has experienced a renaissance of sorts over the last few years, with comic book characters hitting the big screen and raking in millions. So who can blame the heirs of artist Jack Kirby, the man who drew "The Fantastic Four," "The Incredible Hulk," "The X-Men" and "Spider-Man," to want in on the action?

Well, you can't blame them for trying, but the Second Circuit didn't think their claims had any merit.

From 1958 to 1963, Jack Kirby was a freelance artist, with the vast majority of his works during this time published by Marvel. He worked closely with Stanley Lieber (aka Stan Lee) who assigned and oversaw his work. Kirby passed away in 1994, and in 2009, his four children served Marvel with copyright termination notices. Marvel countered with a suit seeking a declaration that the Kirby heirs didn't have any copyright rights to terminate.

The central question in this case was whether Jack Kirby owned the copyrights to the characters he drew, or whether they were considered "work-for-hire." Applying the "instance and expense" test, if Kirby's drawings were made at the "instance and expense" of Marvel, then the works would be deemed work-for-hire, and Marvel would be considered the copyright owner.

Here, the following facts helped establish that the works were made at the "instance" of Marvel:

  1. Kirby's "close and continuous" working relationship with Marvel;
  2. The drawings were made due to Marvel's assignments;
  3. Marvel was involved in the creative process;
  4. The works built on existing Marvel copyrights;
  5. Marvel could reject the drawings and seek revisions; and
  6. Kirby collaborated with Lee, a Marvel employee, on many of the works.

The case to establish "expense" was not as concrete, but the Second Circuit found that the works were created at Marvel's expense nonetheless. The determining factor was that Kirby was paid a flat rate for his drawings, rather than a royalty. Marvel's creative and production contributions were also factors in determining Marvel's expense.

With the rise in comics-based Hollywood hits, it's likely we may see more claims like the ones made by Kirby's heirs. However, without any proof indicating otherwise, it's very likely that courts will follow the lead of the Second Circuit and find that they were works-for-hire.

What's more, this is a great lesson for in-house counsel to make sure that their relationships with freelancers are clear. Agreements should spell out that projects are "works for hire" with the company retaining the copyright for the original -- and expectancy -- terms.

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