The marvel of intellectual property rights: How Jack Kirby will be remembered for his contributions
Wednesday 29th October 2014
Article written by: Thomas Huthwaite
In early 2013, the US 9th Circuit Court of Appeals affirmed Warner Bros and DC Comics’ ownership of all Superman intellectual property rights.  That decision marked the end of 75 years of legal battles between DC Comics and the heirs of Superman’s creators, Jerry Siegel and Joe Shuster.
This year, the heirs of comic book legend Jack Kirby have done what the heirs of Siegel and Schuster could not, by reaching a settlement agreement with Disney and Marvel Comics.  While the terms of the agreement remain confidential, a joint statement from both parties acknowledged that Kirby would be honoured as having played a significant role in Marvel’s history.
Kirby is known as having been heavily involved in creating and illustrating a number of Marvel superheroes, including the famous and lucrative characters Spiderman, Iron Man, Captain America, the Incredible Hulk, and the X-Men.
Kirby’s intellectual property rights became a live issue in 2009 (15 years after his death), when his four heirs served Marvel with 45 termination notices, purporting to terminate any assignment of copyright from Kirby to Marvel in a number of works that Kirby created between 1958 and 1963. Those works included a number of now iconic Marvel characters. At the time of the purported assignments of copyright, Kirby was a freelance artist who was being paid by the page and had no ongoing license arrangement with Marvel.
In response, Marvel sought a declaration that the 45 termination notices were a nullity. Marvel argued that it owned all copyright to the relevant characters because Kirby’s drawings were “works made for hire”, and that Kirby and his heirs had no real claim to copyright ownership.
In July 2010, the US District Court found in Marvel’s favour, holding that Kirby’s work was completed while he was employed by Marvel, that Marvel was therefore deemed to be the author and owner of the relevant copyright works, and that Kirby’s heirs had no right to terminate any purported assignment of copyright.
That decision was upheld by the 2nd Circuit Court of Appeals in August 2013, who confirmed that Kirby had created the characters under Marvel’s instruction, direction and expense, and that Marvel had the right to reject Kirby’s work or require it to be amended where necessary. Those factors were enough for a presumption that Marvel employed Kirby to create the works, the copyright in which would be owned by Marvel.
Kirby’s heirs attempted to petition that decision, but on 26 September 2014, agreed to withdraw their petition having reached a confidential settlement agreement with Marvel.
While some of the major publishers have in recent years been willing to engage and remain on good terms with their past creators and illustrators, this convoluted saga again illustrates the need for creators to ensure that they receive appropriate legal advice before entering into agreements to use or commercialise their intellectual property.