Marvel was awarded a big victory at the Federal District Court level in its litigation with the Kirby heirs on Thursday.  Judge Colleen McMahon issued a summary judgment in favor of Marvel, ruling that Jack Kirby, whose heirs had issued termination notices for the copyrights to a number of key works in which major Marvel characters originated, had done his work for Marvel as “works for hire within the meaning of the Copyright Act of 1909.”  As a result, the “Termination Notices did not operate to convey any federally-protected copyrights in the Kirby Works to the Kirby Heirs,” the ruling said. 

McMahon clearly laid out the limited scope of her ruling.  “[T]his 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,” she wrote.  “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.  If it does, then Marvel owns the copyright in the Kirby Works, whether that is ‘fair’ or not.  If it does not, then the Kirby Heirs have a statutory right to take back those copyrights, no matter the impact on a recent corporate acquisition or on earnings from blockbuster movies made and yet to be made. “

Last fall, McMahon had ruled that the case could proceed, although ruling against the Kirby heirs on some issues (see “Judge Rules Kirby-Marvel Case May Proceed”).  But by this ruling, she indicated that she thought there were not enough disputes over the facts to require a trial. “There is no evidence of any contemporaneous written contract between Marvel and Kirby relating to any of the Kirby Works,” her ruling said.  “From [Stan] Lee’s testimony, it appears that Kirby was a freelancer who was retained to create comic book artwork at Lee’s instance and was paid an agreed-upon fee for doing so.”  McMahon also notes a 1972 agreement signed by Kirby which re-affirmed Marvel’s rights to his work. 

The Kirby heirs vow to fight on, with attorney Marc Toberoff telling Hollywood Reporter, “We respectfully disagree with the court’s ruling and intend to appeal this matter to the Second Circuit.”