Federal District Court Judge Colleen McMahon ruled on November 19th that the core counter-claim in the litigation between Marvel Entertainment and the estate of famed comic artist Jack Kirby (see “Kirby Heirs Sue Marvel”), which revolves around the question of whether Kirby’s work for Marvel was work for hire, can go forward.   The Kirby estate has sent Marvel termination notices on Marvel’s copyrights on key works drawn by Kirby involving some of Marvel’s most important characters.  If Kirby’s work was work for hire, those notices would be invalid.  If it was not, the Kirby estate can terminate Marvel’s copyrights in those works. 

The judge also ruled that Disney is now a party to the suit because of its acquisition of Marvel.

Judge McMahon did rule against the Kirby estate on some issues.  She ruled that it’s too early for the estate to demand an accounting from Marvel of its profits from the works, since the core issue has not yet been decided.

McMahon also ruled that the statute of limitations had expired on the estate’s claims for un-returned Kirby artwork.  McMahon considered several alternative reasons why the issue might remain open, but concluded that too much time had passed from the time Marvel had agreed to return all art for suit to be filed now.

Marvel did reveal in communication with the Kirby estate in August that it is still in possession of some 60 pieces of Kirby artwork and offered to return 37 of them.

McMahon also ruled against the Kirby estate’s claims under the Lanham Act that Marvel should have credited Kirby as co-creator of works on which the recent films The Incredible Hulk and X-Men Origins:  Wolverine were based.