Marvel Lodges Lawsuit to Counter Lawsuit Lodged by Jack Kirby’s Estate
Back in September it was reported that the estate of Jack Kirby had issued termination of copyright notices to Marvel, Disney and any studio that produces films based on characters created or co-created by the late Jacob Kurtzberg (Jack Kirby). The characters impacted by the termination notices include the iconic Captain America, the X-Men, Hulk, and of course, the Silver Surfer.
The basic purpose of the Kirby lawsuit was to place the Kirby Estate in a position to be able to negotiate with Marvel over their terms to continue publishing comics based on Kirby’s work which, in turn, would extend into Marvel/Disney’s use of those properties in film.
If the Kirby Estate’s claims are found valid, word is they would regain their copyright ownership to those characters in 2014. Obviously this wouldn’t have an impact on the current Silver Surfer movie, but it could impact future movies if the film’s were to evolve into a franchise (and let’s hope they do!). It doesn’t mean they wouldn’t get made, it simply means Kirby’s Estate would be in a position to influence their development and, obviously, reap more financial reward from them, something the studios don’t want as an additional financial burden.
It’s taken a few months, but today Marvel formally announced that they’ve lodged their own lawsuit to counter the Kirby Estate’s claims. You can read the entire lawsuit after the jump, but in a nutshell they are seeking, as would have been expected, to obtain judicial approval that the notices of termination are invalid.
From Marvel Entertainment:
Subsidiaries of Marvel Entertainment, LLC today filed suit in federal court in Manhattan seeking a declaration that notices of termination of copyright assignments served by the heirs of long-time Marvel artist Jack Kirby are invalid.
Last September, attorneys acting for the Kirby heirs sent 45 notices to Marvel seeking to terminate purported assignments by Kirby of copyright interests in Marvel Super Hero characters such as X-Men and Fantastic Four. Kirby’s heirs are claiming that from 2014 to 2019 various rights supposedly transferred to Marvel will revert to them. The Marvel lawsuit asserts that those claims are baseless because all of Kirby’s contributions to Marvel’s publications, like those of other comic book writers and artists of the same period, were works made for hire, making Marvel the sole owner of the copyrights.
“The notices filed by the heirs are an attempt to rewrite the history of Kirby’s relationship with Marvel,” said John Turitzin, Marvel’s General Counsel. “Everything about Kirby’s relationship with Marvel shows that his contributions were works made for hire and that all the copyright interests in them belong to Marvel.”
Under federal copyright law, works that were created at the “instance and expense” of a publisher during the time Kirby was a creator for Marvel were “works made for hire” and owned by that publisher. If, for example, Marvel gave a writer or artist an assignment to create a comic book story populated with new characters or to illustrate a comic book story with depictions of its characters – and paid the writer or artist for carrying out the assignment – the publisher, not the writer or artist, would own the copyright. All of Kirby’s contributions to Marvel comic books the heirs are claiming for themselves fall into this category.
Marvel editors determined which publications Kirby would work on, just as they did with all the other artists and writers engaged to work on the publications, and always retained full editorial control. In addition, Kirby was paid for his contributions. As a result, all of Kirby’s contributions were solely owned by Marvel, which was standard practice in the comic book publishing industry.
Kirby’s situation at Marvel is completely different from the facts that gave rise to the Superman litigation. The initial Superman story was written and illustrated by its creators well before they had any business relationship with its ultimate publisher.
“The purpose of the lawsuit filed today is simply to set the record straight and obtain a judicial declaration that the Kirby termination notices have no effect,” said Mr. Turitzin.
Obviously I’ll be keeping an eye on these legal proceedings as they unfold. For now, we can only watch to see how it all plays out and hope that, in the end, the whole process has no negative impact on current or future superhero films, Silver Surfer or otherwise.
