MANHATTAN (CN) – The children of late comic book icon Jack Kirby do not have a valid claim to their father’s works, published and owned by Marvel, a federal judge ruled, insisting that fairness did not factor into her decision.
While Kirby’s estate said it will appeal, Disney, which owns Marvel Entertainment, lauded the decision in a short statement.
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.
A recent New York Times op-ed agreed that Marvel’s early executives treated Kirby shabbily in the nascent days of the comic book industry when exploitation was the norm.
“The comic book industry began life in the early 20th century as the province of con men who stripped artists of their creations, then moved on to the next mark. The artists who were paid virtually nothing for work on characters that are now worth billions at the movies are nearly all dead,” Brent Staples’ editorial began.
Though courts have given partial copyright benefits to the heirs of a co-creator of “Superman” and the creator of “Captain America,” Staples said those cases were “small fry” compared to the suit filed by Kirby’s children.
U.S. District Colleen McMahon acknowledged that her decision rejecting the claims of Kirby’s heirs is bound to be controversial, but it is founded on the letter of the law rather than a sense of fair play.
“At the outset, it is important to state what this motion is not about,” the 50-page order states. “Contrary to recent press accounts and editorials, […] this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruit of their labor.”
“It is about whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts, notably the United States Court of Appeals for the Second Circuit.”
On this issue, McMahon found that Kirby’s signing of an agreement calling himself “an employee for hire” for the Goodman family, which owned Marvel at the time, left little ambiguity how to rule.
“Although 87 years old, Lee gave a two-day deposition in this matter: Marvel’s motion stands or falls on his testimony,” the order states.
Lee testified that he assigned the works Kirby wrote as a freelancer and that he had final say over the material.
The Kirbys’ lawyer, Marc Toberoff, wrote in an email that the 1909 Copyright Act is “arcane and contradictory,” and that McMahon should have deferred to later legislation.
“We knew when we took this on that it would not be easy given the arcane and contradictory state of ‘work for hire’ caselaw under the 1909 Copyright Act,” Toberoff said. “However, the 1976 Copyright Act’s termination provisions at issue were specifically designed to correct the unfairness inherent in the author/publisher relationship and there is no better example of that than Jack Kirby and Marvel.”
Toberoff said the Kirby estate plans to appeal. “We respectfully disagree with the court’s ruling and intend to appeal this matter to the Second Circuit,” he said. “Sometimes you have to lose to win.”