Kirby Lawsuit Dismissed

Thanks to all the readers sending in news that apparently the Kirby suit against Marvel has been dismissed. Here are a couple sources reporting on it:

‘Incredible Hulk’ Copyright Is Marvel’s in Ruling Against Co-Creator Heirs

By Don Jeffrey and Chris Dolmetsch – Jul 28, 2011 8:32 PM ET .


Walt Disney Co. (DIS)’s Marvel Entertainment owns the rights to the Incredible Hulk and X-Men comic-book characters, a federal judge said, ruling against the heirs of the superheroes’ co-creator Jack Kirby.

The children of the late cartoonist didn’t have the legal right to terminate the comic-book publisher’s copyrights for the characters, U.S. District Judge Colleen McMahon in Manhattan said today in a court order. Marvel said it owned the rights because Kirby was an employee of the company.

“This case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters,” McMahon said in her order. “It is about whether Kirby’s work qualifies as work-for- hire under the Copyright Act of 1909.” The Kirby works “were indeed works for hire,” she said.

The decision affects the rights to the characters in movies as well as comic books. The 2008 Marvel-produced film “The Incredible Hulk” grossed $263.4 million worldwide, according to Burbank, California-based Disney bought Marvel last year for $4.2 billion.

“We are pleased that in this case, the judge has confirmed Marvel’s ownership rights,” Disney said in a statement e-mailed by Zenia Mucha, a spokeswoman.

In 2009, Kirby’s adult children sent 45 notices to Marvel to terminate license renewals for the characters in comics published from 1958 to 1963. Marvel sued in January 2010, seeking a judgment that the termination notices were invalid.

“We respectfully disagree with the court’s ruling and intend to appeal,” Marc Toberoff, a lawyer for the Kirbys, said in an e-mail. “Sometimes you have to lose to win.”

Kirby, who died in 1994, also created or co-created the Fantastic Four and the Avengers. His heirs said their father was a freelance artist paid by the page who received no benefits from Marvel. Stan Lee, who worked for Marvel as an editor, is credited as co-author of the Hulk.

Kirby’s adult children, Lisa, Barbara, Neal and Susan, asked the court to declare the termination notices valid because their father owned his work.

“The uncontroverted evidence shows that Marvel had no legal obligation to purchase Kirby’s artwork, and that Kirby, who worked out of his basement and paid for his own supplies, bore the financial risk of creation not Marvel,” they said in their motion for summary judgment.

Marvel said in court papers that Kirby granted the company rights to the characters in 1972 and that his children waited too long to make their copyright claims.

Marvel Wins Big In Jack Kirby Estate Lawsuit – Comics studio wins summary judgement in a case that could’ve cost them millions. By Matt Rorie – July 28, 2011


Toberoff was leading the estate of Jack Kirby, who famously co-created much of the Marvel universe with Stan Lee, in a lawsuit against Disney, Marvel, Sony, Universal, 20th Century Fox, and Paramount Pictures. So, basically, every major studio in Hollywood. Why? Well, in the aftermath of the Superman ruling, it must’ve made sense to the Kirby heirs that they owned part of the rights to whatever Kirby helped create, a list of characters that includes the X-Men, the Avengers, Thor, Iron Man, Hulk, The Fantastic Four…the bulk of the Marvel universe, that is, with the exception of some of the Steve Ditko co-creations like Spider-Man and Doctor Strange.

Toberoff apparently didn’t manage to repeat his success in his lawsuit against Marvel, however; his suit was summarily dismissed today. The Kirby heirs were seeking to terminate Marvel’s copyright over their father’s creations and retain a portion of all of the profits stemming from their use starting in 2014. Depending on their definition of “portion,” that could’ve wound up earning them, and costing Marvel and their partner studios, hundreds of millions of dollars in the future. This affects the comics, of course, but the bulk of the money that Marvel’s making now is no doubt coming from film projects and copyright licensing.

Unfortunately for Toberoff and the heirs, U.S. District Judge Colleen McMahon thought that Kirby’s works were made on a “for hire” basis, which means that they aren’t considered to be under the same laws that allow creators to re-obtain the rights to their creations after a certain amount of time. In her words (as quoted by Variety):

“McMahon concluded that “none of the evidence” submitted by the Kirby heirs “makes so much as a dent in the ‘almost irrebutable’ presumption that the Kirby Works were works made for hire.” She said that they had not “raised any genuine issue of fact necessitating a trial.”„This is a clear-cut victory for Marvel, although we’ll see what longer-term ramifications it has. With millions of dollars at stake, I’d bet that Toberoff and the Kirby heirs try taking a different tack in their legal battle going forward.