Appeals court refuses rehearing in Jack Kirby copyright battle
With just nine words — “It is hereby ordered that the petition is denied” — the Second Circuit Court of Appeals on Tuesday seemingly ended a four-year effort by the children of Jack Kirby to gain a copyright stake in many of the characters their father created or co-created for Marvel.
As Deadline reports, the Kirby heirs had petitioned for rehearing, either before a panel of the Second Circuit or the full bench of judges, of whether they had the right to file 45 copyright-termination notices in 2009 for some of Marvel’s best-known, and most lucrative, characters, including the Avengers, the X-Men, the Fantastic Four, Iron Man and the Incredible Hulk.
Quickly responding to those notices, Marvel (later joined by then-new parent company Disney) sued to invalidate the heirs’ claims, arguing that Kirby’s creations for the publisher were work for hire, made at the company’s direction and expense, and therefore weren’t eligible for copyright termination. A federal judge agreed, ruling in July 2011 that, as works for hire, the copyrights to those characters belong to Marvel.
The Kirby family appealed, but in August 2013 a three-judge panel of the Second Circuit upheld the district court’s decision, reaffirming that the heirs had no termination rights. The judges also 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.”