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Corporate Counsel Connect collection

August 2014 edition

Supreme court may review Jack Kirby/Marvel Comics copyright dispute

Jeremy Byellin, JD

Jeremy ByellinIt's not very often – that is, to say, it's almost never – that I find myself talking about comics during my writing (which is unfortunate, since doing so more often would certainly make for more interesting reading on some topics).

Today, however, is one such occasion where the subjects of comics and legal developments intersect in the form of Marvel v. Kirby, which has been appealed to the U.S. Supreme Court. Although the high court has yet to agree to review the case, but the amicus are already lining up supporting certiorari.

The case

The creations of Jack Kirby are the central issue of the case. Anyone familiar with comics already knows that Jack Kirby created some of today's most iconic Marvel Comics characters, including Captain America, Thor, the Hulk, the Avengers, the Fantastic Four, and the X-Men (Kirby also created some less-known characters for DC Comics).

Copyright to all of those characters created by Kirby and more are held by Marvel. Seeking to change that, heirs to Kirby's estate (his four children) served terminations notices on various Marvel entities in September of 2009. These termination notices were sent pursuant to section 304(c)(2) of the Copyright Act of 1976, which gives an author (or his heirs) the right to terminate any exclusive or nonexclusive license or transfer of copyright. These notices related to 262 works in total, including all of the major moneymakers for Marvel listed above.

That's right: These notices meant that Marvel was facing having its most lucrative intellectual properties stripped away from it.

In January 2010, Marvel filed for a declaratory injunction that the Kirbys have no termination rights under section 304(c)(2), and that the termination notices are thus ineffective. After discovery was completed, the court granted Marvel's motion, finding that Jack Kirby's creations were "made for hire."

Under the "made for hire" doctrine, the law treats the financial backer of the author-in-fact as the actual author. Thus, since Kirby's works were deemed to be "made for hire" for Marvel, the law treats Marvel as the author of the works – meaning that Kirby is not legally the creator of these properties and, thus, has no termination right to them.

The district court case came out of federal court in the Southern District of New York, which, as part of the Second Circuit, uses the "instance and expense" test to determine whether a work is "made for hire." Under this test, a work is made for hire if "the motivating factor in producing the work was the employer who induced the creation" and the employer has the right to "direct and supervise the manner in which the writer performs his work."

The district court found that the evidence was "overwhelming" that Kirby's works were created at Marvel's instance and expense, and the Second Circuit affirmed on August 8, 2013. The Supreme Court is set to consider the case in its September 29, 2014 conference.

Should the supreme court review?

Obviously, the prospect of Marvel of losing ownership of the majority of its properties would be the most direct and significant outcome of a ruling in the Kirbys favor. But such a decision would make a far larger impact beyond Marvel's properties – indeed beyond the comic world at large. Such a ruling could grant termination rights to vast numbers of authors of works currently owned by large corporations thanks to "made for hire" relationships.

Would this spell financial ruin across multiple industries? Almost certainly not, especially in regards to works after January 1, 1978, for which the Supreme Court has held that the "instance and expense" test does not apply.

Possible outcomes

However, even for the industries that would be impacted, financial ruin is a remote possibility. What would happen is that authors and artists would find themselves able to pursue termination of copyright from the respective companies that currently own their created works. Those companies may – and, of course, would – renegotiate for the copyright, or even just the license, to those works.

Unfortunately for the Kirbys, the Court is unlikely to bring about such a radical legal change, and will either affirm the Second Circuit, or find a narrower way to rule on the matter that may give the Kirbys some relief, just not the relief that they are looking for.

If that happens, there will not likely be any major changes to the legal landscape, and the case will find itself to be primarily a historical interest alongside the legal battles of Superman co-creators Joe Shuster and Jerry Siegel.

We'll have a better understanding of the path that this case will take after the Court looks at it on September 29.

About the author

Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.

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