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Appeals court refuses rehearing in Jack Kirby copyright battle

Fantastic FourWith 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.”

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22 Comments

YAY!!

Good. Jack Kirby may have been a legendary artist, but he was a twisted, angry, jealous man. All of his interviews came off as being smug, uptight, and insecure. Say what you want about Stan Lee, but I’m glad that someone with as much charisma and joy (even if it’s fake as some say) became the face of comics. It should be no surprise that the apple didn’t fall far from the tree in this family.

Good riddance!

Brian from Canada

October 23, 2013 at 9:04 am

The appeal had to happen. So did the denial. But this may signal the start of clarification on where ownership rights for most comic book characters should be focused.

smug, twisted, who cares….angry?? he has more than every right to have been. He is the reason that so many characters exist and has had so much influence and direction on countless other characters.

The Mighty Derf

October 23, 2013 at 9:15 am

Kirby’s contract was a “work for hire” contract. He never had any rights to the characters.

“a twisted, angry, jealous man.”

holy shit, this is one of the trolliest comments i have ever read.

” he was a twisted, angry, jealous man.”

Really!! What kind of person attacks dead people based on the actions of their children after their death?

I won’t touch the “twisted, angry, jealous” comment, and Kirby’s runs on Captain America 200+, The Eternals, and DC Fourth World were stellar – but his pre-FF and golden age work at times left a lot to be desired. Unless his work load completely dictated carelessness, costume and accessory changes from panel to panel (mask-no mask, cape-no cape, gloves-no gloves) bordered on the ridiculous.

They wasting time and money on these bullshit suits. It is time to move on.

If no one else is going to stand up for Kirby, I will.

I don’t know if the Kirby case had any legal merit. I don’t blame the estate and Jack’s kids for trying. It can’t be fun seeing a multi-billion dollar empire that your dad built make tons of money without even paying reprint fees for the comics your dad drew. You can argue that Jack had nothing to do with an Avengers movie, but when that movie generates reprint volumes of old Kirby comics without paying the estate, you’ve really got to scratch your head.

But the notion that Jack was a “twisted, angry, jealous man” is absolutely ludicrous. Was he angry at times? Sure. But from all accounts of anyone that ever knew him, Kirby was generous with his time, energy, passion, and spirit. I’ve read tons of testimonials from people who got the chance to meet Kirby while he was alive just rave about how much fun it was to meet him and how much he loved his fans. Stan Lee, the man that was praised in that crap response, believed Jack was instrumental towards creating the Marvel Universe and wanted him at Marvel as long as possible. By the way, Stan got better terms than Kirby did- partially because Stan was related to the owner of Marvel at the time.

Go read the Jack Kirby books that TwoMorrows puts out. Go read Mark Evanier’s website, since he actually worked with Jack. Talk to the people at Fantagraphics that championed Kirby during the 80s, when the company wanted him to sign away any rights he had for a pittance. You’ll never see anyone who was there talk crap about Kirby. He was a great guy who gave us great comics, and if you can’t appreciate him for that, then it’s your loss.

The case had no merit (unlike the Siegel case where the heirs have every right to the character). Let’s correct a few inaccuracies; Kirby didn’t have a contract so saying his contract was work for hire is false.
Goodman, in spite of his name, was everything but. He even intended to screw Stan Lee with whom he was only related through his wife. And after he sold Marvel, when his plan to have his son Chip succeed him as publisher fell through, he attacked the company and his nephew by marriage Stan Lee who had built it. Goodman was also the one who made false promises of royalties to Kirby and Ditko. It’s absurd to blame Kirby’s treatment on Lee or to deny Kirby his anger. It doesn’t have to be one or the other, not when there was a third party who put them at odds at every turn with his pinchiness.

It’s responses like some of the above, that make me hate fanboys in general or being identified as one. Some of you are ugly, hateful little people with no sense of history or fairness. Yeah the law is ultimately on the side of the money and Kirby just a poor hardworking schmuck out of the Great Depression who couldn’t even get health coverage from Marvel at one time.

Jack Kirby was a very nice, generous and kind man. Angry at times? Yeah…and with good reason. He was often promised things that he never got, often uncredited for work he did.

I met him in ’69, knew him until his death and met just about everyone I could meet who ever worked with him. The opinion I just expressed of him seems to be pretty much the opinion of those who ever actually knew Jack Kirby.

I suppose they could all be wrong and an anonymous guy who I’ll bet never met Jack could be right…

I still lay all this on Stan Lee. He got on the stand and took credit for everything Jack Kirby did. Yes, Martin Goodman and all the other owners of MARVEL up to the current ones cut not only Kirby but all the creators out of any rights. But the owners weren’t there when the creating was being done. Stan Lee was. Stan Lee knows the truth. His testimony is what led to this injustice.

‘but his pre-FF and golden age work at times left a lot to be desired. ‘

Hmm, whatever you think about his talent… or if you feel he deserved payment or compensation for his creating half of Marvel comics single-handedly, but to make a statement like that showcases an obvious lack of knowledge of his talent and his work.
If you just compare his art to the other art being created at the time, in the 40s, 50′s and especially the 60′s… his work was either as good, on a bad day or simply the best thing being published by a mile. I understand, taste is individual, but please, we are talking about possibly the single most important talent who ever worked in comics.

Edhoo your post is the biggest load of shit I’ve ever read. Kirby was entitled to as much if not more credit than Stan Lee who has enriched himself down through the years on the backs of artists such as Steve Ditko and Jack Kirby. Go away and read some history and learn a thing or two about what you’re talking about. People such as Mark Evanier should not have to come on here and defend Jack’s reputation as a person or an artist.

OMG-
How can anyone be on the side of big business?
If you guys only knew how big companies screw normal Americans on a daily basis…
Artists especially…

Sad but probably just. If he signed over his rights then the company has them. I think it’s wrong and the Kirby estate should get a cash settlement. Marvel isn’t Marvel without Kirby but do his creations see the light of day without Marvel? Who knows.

Work for hire or not when a guy gives a company a whole damn universe of characters that they will be making money on til the end of time was it ever really gonna break the bank to give him due credit,stake, and financial reward reasonably proportionate to the breadth of his contribution? This wasn’t just a guy cranking out pages (though he did that masterfully.) Without Jack Kirby there is no Marvel Universe and DC would missing a sizable chunk of their own as well.

But hey you’re a comics fan so why should you care?

Thanks MattComix-
These companies make billions…
Can’t give the Kirby estate a dime???
You people wouldn’t believe how many people are out there who are rich and living the high life
because of what their parents did-
You imbeciles should get a clue on how the world works….
Sorry to insult you people, but you should stop and think bout the true world around you….

Nasty comments about Kirby as a person are certainly unwarranted, especially by people who never even knew him personally. But I’d say the same about nasty comments about Stan Lee as a person.

Both of these guys created characters and entire worlds that thrill many of us decades later. And we should all be grateful.

Did Kirby get shafted financially? Probably, though it could have been worse, and the company was certainly within its rights. Its a shame, but we can’t change what’s already happened. The important thing is for current and future creators to learn from the mistakes of the past.

But at the end of the day, why should his kids benefit from his work? Let them make their own way and stop trying to leech off their ancestor’s legacy.

Eventually, these creations should pass into the public domain, as they belong to all of us.

neil feigeles, your assumptions about me are wrong. Kirby fanboys think unless your praise 100% of his work and call him “King”, you’re somehow doing him an injustice. I’m closing in on 60 years old and bought a great majority of Kirby’s craft for 12 cents off the spinner rack. I got an autograph from Jack before most people on here were born. I also praised his Marvel and post 1970 DC work.

Suggesting that he was careless in the golden age.is just fact. The mistakes in some of his art were grandiose in nature and there were many of them in strips like Manhunter, the Newsboy Legion and the original costumed Sandman. Manhunter, The Guardian and Sandman had simple, spandex and cowl type costumes. Kirby was either way overworked or careless to not make them consistent through a 10 page story.

And as far as Kirby’s legacy…when it comes to golden age art, he was indeed great – but in my opinion, far from the best. Russ Manning, Bill Everett, Will Eisner and Herge’s works are fantastic. You feel that they’re living in the world they create and still, remain meticulous in consistency

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