Earlier this year I questioned whether Disney’s acquisition of Marvel Comics would have any effect on the long-running battle between Marvel and the heirs of Jack Kirby over the ownership rights to his creations (which are legion). To date, the answer appears to be “No.” The production of the new Captain America film continues apace, the studio remains mum on issues surrounding Marvel, and the lawsuits quietly drag on. The Kirby heirs, of course, want back the copyrights to Captain America, Thor, the Fantastic Four, and all the myriad characters created over the course of Kirby’s long association with Marvel, and have sent notices to Marvel seeking to reclaim them under the termination provisions of the Copyright Act of 1976. This (quite frankly understandable) desire to reclaim ownership of material created by kith and kin has resulted in the pending lawsuit in New York in which Marvel seeks a declaration that Kirby’s creations are work-for-hire, and a separate lawsuit by the Kirby heirs seeking recovery of the ownership rights of those creations (or, presumably, several hundred million dollars).
Although nothing of moment appears to have happened in the litigation, and the parties continue to position themselves for the arduous fight ahead, the latest news is that the Kirby heirs have dismissed their California case, and will seek resolution of their dispute with Marvel in New York.
For a detailed description of the history leading up to the Kirby vs. Marvel lawsuit, as well as in-depth briefing on similar copyright lawsuits involving other superheroes (e.g., Superman), please see Paul Slade’s superb recent article, Superheroes in Court. And for those of you who want an explanation of how copyright termination works, jump to the recent podcast on that topic by the IP Colloquium.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.