Kirby vs Marvel (& Disney)

Highlights from the legal combat over the years

The ownership of the famous pop-icon characters that Jack Kirby created (and co-created with others) is the center of the past legal battles between the Jack Kirby estate and Marvel Entertainment LLC., along with the legal team from Marvel's parent company, Walt Disney Co.

Jack Kirby, generally referred to as one of (if not "the") key architect of the Marvel Universe, was deeply involved in the creation of characters like the X-Men, Fantastic Four, Hulk, and Thor, among others. For decades, Kirby's contributions were recognized legally as "work for hire," meaning Marvel retained full ownership and the legal assignment of "authorship" of the characters and Kirby's function in creating them was solely in exchange for a page payment for stories he drew and wrote or in payment from other contracts of employment with marvel's owners.

However, in 2009, the Kirby estate sought to reclaim copyright to these characters, arguing that Kirby was an independent contractor rather than a traditional employee, and thus his heirs should be entitled to rights under the Copyright Act’s termination provisions which allowed for a creator to reclaim ownership after a set amount of time determined by copyright law.

This led to a high-profile legal battle between Kirby’s estate and Marvel (backed by Disney, which acquired Marvel in 2009). The case made its way through the courts, with both sides presenting arguments on the nature of Kirby's work and the implications of copyright law.

In 2014, just as the case was poised to reach the U.S. Supreme Court, both parties reached a confidential settlement, with many external observers saying that the risk of the case going to the Supreme Court and perhaps resulting in a ruling that overturned 'work for hire" law was too great for Disney to bear. "Work for hire" law was the bedrock of ownership for not only Marvel's stable of characters but for countless other comic book creations belonging to myriad companies.

The agreement between the Kirby estate and Disney resolved the dispute, with Disney/Marvel retaining ownership of the characters, while the Kirby estate likely received financial compensation and recognition for Jack Kirby’s contributions. This case was significant as it underscored the ongoing tension between creators' rights and corporate ownership in the comic book industry, and by extension, all of the deals made external to comic book publishing involving TV shows, Movies, and games.

Kirby Estate takes on Marvel/Disney

2014 September: Last-minute deal before Kirby case might have travelled to the Supreme Court

2014 September: Settlement to please Disney shareholders

2014 September: Disney relieved

2014 April: Kirby heirs file with Supreme Court for ruling

2011: Steve Bissette calls for Marvel boycott over their treatment of Jack Kirby

2010 August: Kirby Estate losing their case

2010 July: Disney joins the fight with Marvel against Kirby Estate

Legal smack down ends with hand-shakes and an unknown deal between Marvel/Disney and the Kirby heirs.

"11th hour deal should come as no great surprise"

Sept 26, 2014: Deadline Hollywood on the Kirby - Marvel case:

"It was a long legal road for them and Marvel to get to today’s deal. After failing repeatedly in lower courts, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the High Court on March 21 for a hearing on the matter. In their petition, the heirs wanted SCOTUS to rule in favor of their assertion that they had the right in 2009 to issue termination notices on 262 works that the comic legend helped create between 1958 and 1963. Those 45 notices went out to Marvel/Disney, Fox, Sony, Universal and Paramount Pictures and others who’ve made films based on the artist’s characters under the provisions of the 1976 Copyright Act. Marvel sued in 2010, after failing to reach an agreement back then with the Kirby family to invalidate the termination notices.

All things considered, and with the billions that Marvel/Disney have made off the films filled with characters Kirby marvel-disney-created, this 11th hour deal should come as no great surprise – except for how long it took them. The bottom line and PR risk that the media giant was taking if SCOTUS had agreed to move the family’s petition up to an actual hearing would have sent a shudder through the market and the town."

"The settlement, which will surely please shareholders of Marvel parent Disney"

Sept 26, 2014 Hollywood Reporter :

"Marvel and the family of Jack Kirby have amicably resolved their legal disputes and are looking forward to advancing their shared goal of honoring Mr. Kirby's significant role in Marvel's history," read a joint statement from Marvel and the Kirby family. The settlement, which will surely please shareholders of Marvel parent Disney as much as it will disappoint many others in the entertainment industry, brings an end to a contentious lawsuit that started after Kirby's family, represented by attorney Marc Toberoff, began sending termination notices to Marvel and its licensees Sony, Fox and Universal over such superhero characters as Spider-Man, X-Men, Captain America, Iron Man, Incredible Hulk and others. Marvel sought a declaration that the termination notices were invalid."

"Disney shareholders are likely breathing a collective sigh of relief"

Sept 126, 2014: International Business Times:

"Marvel sought a court decision to invalidate the notices, and a judge and appeals court agreed. However, the Kirby estate and Toberoff requested a Supreme Court review, and a number of intellectual property experts agreed.

The terms of Marvel’s agreement with the Kirby family have not been released publicly, but Disney shareholders are likely breathing a collective sigh of relief. Kirby's characters continue to create revenues for the company from movies, action figures and other related merchandise."

April 2014

Kirby heirs file with Supreme Court for ruling

Heirs hope Supremes will overturn Court of Appeals ruling from last October, 2013.

Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby have filed a 39 page brief detailing why the action from the Court of Appeals constitutes a denial of their rights exercised when they issued copyright termination notices in 2009 based upon the 1976 Copyright Act. In 2009 they sent out 45 notices of termination to Marvel/Disney, Sony and 20th Century Fox.

On the block in this case are copyrights for various characters such as Avengers, X-Men and more. (We've tried to find a list of the 45 termination notices without success.) The Supreme Court will have to decide whether to accept this appeal or to allow the Court of Appeals ruling to stand.

Most media outlets are reporting Captain America as one of the characters in question, but since the Captain dates from 1941, it probably doesn't figure in this matter. But without a list of those 45 termination notices, its hard to say which characters are part of this long-shot at claiming ownership.

It has been pointed out that currently Sony has a indefinite lock on Spiderman for movie production, and 20th century Fox has a lock on the X-Men... if the Kirby heirs were able to nullify all of that by getting a nod from the Supreme Court, they could conceivably sell off those movie rights on these characters back to Marvel/Disney, which would then leave the Mouse Factory in complete control over the pantheon of traditional Marvel superhero characters.

August 2011

Steve Bissette calls for Marvel boycott
over their treatment of Jack Kirby

From Heidi McDonald's Comics Beat

Quoted below:

* I don’t question the legal logic Marvel’s attorneys made, and the court decision reflects. However, nothing is being said about the conditions under which Kirby signed, and was pressured to sign, the contracts presented. I don’t think “extortion” is too unfair a word to use, particularly in the very public case of the Marvel artwork “return” contracts.

That is a moral issue here, and Marvel’s pattern of decades of effectively slandering, maligning, and dimissing Kirby and his legacy is, too.

* If, in the 1970s, Neal Adams and Jerry Robinson hadn’t rallied around Siegel & Shuster, who had multiple signed settlement contracts with National Periodicals to wield against them, agreements they had signed over their lifetimes (agreements they and their legal reps—like Albert Zugsmith—had negotiated), nothing would have changed.

Adams and Robinson brought to the public the moral case, the moral outrage, over the treatment of the creators of Superman.

At that time, the legal matters were considered “settled.”

C’mon, folks: Jack changed a century, the medium, the industry, our lives, and Marvel.

Let’s change how the rest of this onfolding story goes.

* The very public pattern of undercutting Kirby’s legacy as a co-creator of properties of great value to Marvel Comics (see Stan Lee’s and Martin Goodman’s revisionism on Captain America) dates back to 1947, and the first edition of Stan Lee’s “The Secrets of Comics” pamphlet.

Steve Bissette web site here

Aug 2, 2010

Jack Kirby Family loses legal case against Disney/Marvel

The judge cited the 'work for hire' laws in play at the time of Kirby's employment at Timely/Marvel, also the 1909 Copyright laws which controlled the legal landscape of the time in question (these laws have since been overhauled several times. For more on this, see this page on the Superman Copyright Wars involving the Jerry Siegel and Joe Shuster's family fight with Warner Bros/DC Comics).

There seems to be a remarkable symmetry between the Superman case that has been fought and refought for decades, and the plight of the Kirby heirs (in fact, the same attorney team under Marc Toberoff is working for both family groups). Toberoff is appealing the decision.

At stake are the ownership of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor, along with a number of other characters making the entire list estimated at over three-dozen (I haven't seen a complete list).

Marvel/Disney had filed against the Kirby family in January 8, 2010 (defendants: Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan N. Kirby).

Many names of Comic Book history were drawn into this case. Take a look at this docket entry from August 16, 2011:

"CLERK'S JUDGMENT That for the reasons stated in the Court's Memorandum Opinion and Order dated July 28, 2011, Plaintiffs' motion for summary judgment is granted; defendants' cross-motion for summary judgment is denied; plaintiffs' motion to strike the expert reports of Mark Evanier and John Morrow are granted; plaintiffs' motion to strike the declarations of Sinnitt and Steranko are denied, and judgment is entered is favor of plaintiffs'; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/8/11) (Attachments: # 1 Notice of Right to Appeal)"

And this one from March 26, 2011:

"DECLARATION of Gene Colan in Opposition re: 60 MOTION for Summary Judgment.. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit A (Filed Under Seal), # 2 Exhibit B (Filed Under Seal), # 3 Exhibit C (Filed Under Seal), # 4 Exhibit D (Filed Under Seal))(Toberoff, Marc)"

Evanier's exhbiits on behalf of the Kirby's in interesting stuff. here for example is Evanier discussing Jack Kirby's refusal to sign the four-page release forms Marvel gave him in order to release his original artwork back to him:

DECLARATION of Mark Evanier

July 2010

Disney joins Marvel in fight against Kirby estate claims

CBR reports that Walt Disney is throwing their legal team into the fight against the copyright claims made by the Jack Kirby estate:

"The Walt Disney Co. has waded into the legal battle over many of Marvel's best-known characters, filing a memo in support of the publisher's efforts to dismiss copyright claims by the heirs of Jack Kirby.

Marvel sued the Kirby children in January, seeking to invalidate notices sent almost four months earlier to terminate copyrights to such characters as the Avengers, the Fantastic Four, Thor, the Incredible Hulk, the X-Men, Iron Man and Spider-Man. The Kirby family responded in March by suing Marvel and its new parent company Disney."

Related:

Jack Kirby

Related: The Superman Copyright Wars

Five famous legal battles over comic book copyrights

Vaguely related:

Disney Co buys up Marvel Comics

Jack Kirby Captain America mens shorts