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Marvel struck back today at the heirs of Jack Kirby, asking a judge to invalidate notices sent in September to terminate the copyrights to such characters as the Fantastic Four, the X-Men and Spider-Man.
In a lawsuit filed today in New York City, lawyers for Marvel assert that Kirby’s work for the company was “for hire,” invalidating the claims of the heirs.
“The notices filed by the heirs are an attempt to rewrite the history of Kirby’s relationship with Marvel,” John Turitzin, Marvel’s general counsel, said in a press release. “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.”
The heirs, represented by Marc Toberoff — he’s the attorney who helped the wife and daughter of Jerry Siegel regain a share of Superman — issued 45 copyright-termination notices to Marvel, Disney, Sony Pictures, Universal Pictures, 20th Century Fox, Paramount Pictures and others who have made films and other forms of entertainment based on characters that Kirby co-created.
Under U.S. copyright law, authors or their heirs and estates may file to regain copyrights, or partial copyrights, at a certain period of time after the original transfer of rights. However, if the property is determined to be “work made for hire,” the copyright would belong to the company that commissioned it.
Marvel argues that the company’s editors determined which titles Kirby and other creators worked on, “and always retained full editorial control.”
“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,” the press release asserts. “All of Kirby’s contributions to Marvel comic books the heirs are claiming for themselves fall into this category.”
If the Kirby children are successful, they would reclaim their father’s portion of the copyright to key characters and concepts from the Marvel Universe as early as 2017 for the Fantastic Four. In most cases, that would seem to mean co-ownership with Marvel, as Stan Lee agreed to waive claim to any of the characters. With Spider-Man, one-third ownership could be possible if the Kirbys were to prevail yet the judge recognized Steve Ditko’s interests.