ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, August 1, 2011

Marvel Comics Wins a Round in the District Court

The Southern District of New York issued its opinion last week in Marvel Worldwide v. Kirby.  The New York Times describes the decision, which granted summary judgment to Marvel, as a major victory for the comic book company and its parent, the Walt Disney Company.

Jack Kirby, whose heirs brought the suit, played a key role in developing a number of important characters in recent movies, such as The Incredible Hulk, Spider Man, Iron Man, Thor (trailer below), and the X-Men.  We learn from the Southern District's opinion that these stars of the silver screen got their start as comic book characters.  Who knew?!?  Kirby's heirs send notice to Marvel in 2009 that they intended to reclaim ownership of Mr. Kirby's creations under the 1909 Copyright Act, but Marvel brought suit seeking a declaration that the property at issue belonged to Marvel and not to Mr. Kirby, because Mr. Kirby had created them as part of a "work for hire" arrangement.  Under federal copyright law, the work product created in such circumstances belongs to the employer.  

 Although Mr. Kirby's heirs argued that his work product was not the result of a "work for hire" agreement with Marvel, the District Court disagreed and ruled that the property belonged to Marvel alone.  During the relevant period when Mr. Kirby created the characters at issue, Mr. Kirby never had a written contract with Marvel.  Rather, he was a freelance writer paid based on the number of pages that he drew that Marvel used in its comics.  Later, in 1972, Mr. Kirby entered into an agreement with a Marvel predecessor assigning all rights he might have in material that he created to Marvel.  The same agreement acknowledged that Kirby had created such material in the context of a work for hire relationship.

The Kirby heirs tried to argue that the lack of a written contract during the relevant period meant that there was no contractual relationship between Kirby and Marvel at the time the characters were created.  The District Court pointed out that the contract arose through conduct.  The court found that the characters at issue were created at Marvel's "instance and expense" and that the Kirby heirs could not rebut the resulting presumption in favor of Marvel's "authorship" for copyright purposes of the characters.  

Marc Toberoff, the Kirby family's attorney was respectfully defiant.  As quoted in the New York Times, he said, “We respectfully disagree with the court’s ruling and intend to appeal this matter to the Second Circuit. Sometimes you have to lose to win.”


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