January 07, 2015 Articles

Marvel-Kirby Dispute Settles on Eve of SCOTUS Conference

Legendary comic book characters deemed "works for hire."

By Jessica S. Nam

On September 26, 2014, Marvel Entertainment and the Jack Kirby estate reached a settlement ending their longstanding dispute over the rights to Kirby-created characters and concepts, just days before a U.S. Supreme Court conference was scheduled to discuss whether the nine justices would hear the case. See Vaneta Rogers, "Jack Kirby Estate and Marvel Announce Settlement," Newsarama (Sept. 26, 2014). Jack Kirby (1917–1994) was a legendary comic book artist and writer who was heavily involved in the creation of the X-Men, Thor, the Hulk, and the Fantastic Four—iconic characters that have become cash cows for Marvel Entertainment and its parent, the Walt Disney Company. The central issue in this legal dispute was whether Kirby was the true copyright holder to the characters and concepts he created, or whether his creations were merely a "work for hire." See Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720, 737 (S.D.N.Y. 2011), aff'd in part, vacated in part sub nom, Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013), cert. dismissed, 135 S. Ct. 42 (2014). Of larger consequence than Kirby's rights to the characters he created is the persistent issue of freelancers attempting to reclaim copyrights to work they sold before the Copyright Act of 1976 was enacted. Prior to the settlement, the U.S. Court of Appeals for the Second Circuit had affirmed the district court's grant of summary judgment in favor of Marvel, holding that Marvel was the rightful copyright holder under the "instance and expense" test. Unfortunately for freelancers, because of the settlement between the Kirby estate and Marvel, the Second Circuit's decision will remain the controlling authority in the Second Circuit on independent contractors' rights to pre-1978 work.

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