Marvel's Win Against Kirby Heirs Affirmed

     (CN) - Children of the late comic book icon Jack Kirby do not have a claim to the famous Marvel characters their father co-created, the 2nd Circuit ruled.
     Kirby's four adult children sued Marvel in September 2009, claiming that their father, who co-wrote "X-Men," "Spider-man," "The Fantastic Four," "The Incredible Hulk" and other iconic comic titles, died in 1994 without proper payment or recognition for his work.
     In 2011, a federal judge upheld Marvel's copyright claims, finding that Kirby's signing of an agreement that designated him as "an employee for hire" for the Goodman family, which owned Marvel at the time, left little ambiguity how to rule.
     At 87, former Marvel president Stan Lee testified for deposition in that case that he gave Kirby assignments and had final say over the material.
     Kirby was nevertheless acknowledged as Lee's "best artist," and was allowed far more creative freedom than other Marvel freelancers, often thinking up and drawing characters of his own, and coming up with plot lines.
     A three-judge panel of the 2nd Circuit affirmed the court's ruling in favor of Marvel on Thursday.
     "Kirby's works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel's assignment or with Marvel specifically in mind," Judge Robert Sack wrote for the panel. "Kirby's ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby's creation of the works."
     While acknowledging that Kirby had more creative leeway than other artists, the court focused on the fact that Kirby worked within the scope of Marvel's assignments.
     "Questions of who created the characters are mostly beside the point," Sack wrote. "That Marvel owes many of its triumphs to Kirby is beyond question. But the hired party's ingenuity and acumen are a substantial reason for the hiring party to have enlisted him. It makes little sense to foreclose a finding that work is made for hire because the hired artist indeed put his exceptional gifts to work for the party that contracted for their benefit."
     Kirby was not an employee, but he and Marvel had established a relationship in which Kirby consistently expected Marvel would pay him for his work. In addition, the works he created were within the Marvel comic universe and could not be sold to another publisher, the court found.
     "It is all too likely that, if the parties thought about it at all, Kirby's assignments at the time he was paid or later were redundancies insisted upon by Marvel to protect its rights; we decline to infer from Marvel's suspenders that it had agreed to give Kirby its belt," Sacks concluded.