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Appeals court upholds Marvel victory in Kirby copyright feud

kirby marvel charactersThe Second Circuit Court of Appeals handed Marvel a significant victory this morning, upholding a 2011 ruling that Jack Kirby’s contributions to the publisher in the 1960s were work for hire, and therefore not subject to copyright reclamation by the artist’s heirs.

However, as Tom Spurgeon first reported, the appellate court vacated the New York district judge’s summary ruling against two of Kirby’s children, California residents Lisa and Neal, on jurisdictional grounds; the judgment against Susan and Barbara stands.

Secondarily, the Second Circuit upheld the lower court’s exclusion of expert testimony offered by John Morrow and Mark Evanier on behalf of the Kirby heirs, agreeing that “their reports are by and large undergirded by hearsay statements, made by freelance artists in both formal and informal settings, concerning Marvel’s general practices towards its artists during the relevant time period.”

Kirby’s children filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such Marvel characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk. Marvel fired back four months later, asking a federal judge to invalidate the notices on the grounds that Kirby’s work for the company was “for hire,” with the editors always retaining “full editorial control.”

U.S. District Judge Colleen McMahon ultimately sided with Marvel, finding in 2011 that there were “no genuine issues of material fact, and that the Kirby Works were indeed works for hire.”

In today’s decision, the Second Circuit concluded, “In sum, the district court made no error, in our view, in determining as a matter of law that the works were made at Marvel’s instance and expense, and that the parties had no agreement to the contrary. The remaining Kirbys, Barbara and Susan, are therefore without termination rights under section 304(c), and the district court properly granted Marvel’s motion for summary judgment as to them.”

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There is a difference between being an expert and being a shill. As Marvel succinctly put it when pointing out that Evanier’s sole purpose was to disagree with Stan Lee’s account of events in the early 1960s (when Evanier was still in grade school):

“In sum and substance, then, and based on no direct personal knowledge, Evanier is put forward to declaim that his opinion is that he disagrees with the facts.”

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