Marvel Comics vs Jack Kirby Decision: Marvel Wins
Just received 50 page judgment of the United States Southern District Court of NY in Marvel vs Kirby and counterclaim Kirby vs Marvel.
Grants plaintiff’s motion for summary judgment against Kirby, and denies Kirby’s motion for summary judgment against Marvel.
Key quotes:
The expert opinions of Mark Evanier and John Morrow on behalf of Kirby were roundly dismissed as hearsay.
The court paper goes into Marvel’s business practices with regard to creation of comics and payment of freelancers in detail, so it’s worth a read for that alone.
A 1972 agreement signed by Kirby reads:
And a 1986 document signed by Kirby:
VERY important note here: the “instance and expense test” is applied. I could be wrong about how I’m reading this, but that may be very important for future WFH lawsuit decisions.
If you have ever hired an avaricious also-ran to do minor work, this is great news for you if the also-ran climbs out of the woodwork 30 years later and wants the whole copyright enchilada.
If you are a primary creator doing major work for a big publisher: um, not so good.
Speak up if I’m misunderstanding here.
The conclusion:
Plaintiffs (Marvel) motion for summary judgment granted. Defendant (Kirby) cross motion summary judgment denied. Morrow and Evanier export reports are stricken. Plaintiff’s motion to strike Sinnot and Steranko testimony denied.
Click on link below to go to pdf of court decision. Then click on KIRBY DECISION to download PDF.
8 Comments
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DCM
Do we need anymore evidence that we’re living in a world where individual rights are ignored at the whim of corporations? Marvel owes everything to the family, and yet, they did everything they could to prevent them from getting what they deserve….why? because corporations can do whatever they want, even alter history.
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mstein609
@DCM – As Chester Karrass put it, you don’t get what you deserve, you get what you negotiate.
Having read the decision, I fail to see how Marvel altered history. You may argue that Marvel should have behaved similarly to DC in they way they gave more money to the Siegel and Schuster families before they had any legal obligation to do so. You may argue the law should have been different all along and should have given more rights to the artist. The law was changed in 1976 to do just that to a limited extent. Unfortunately, it only applied to grant of copyright. The work-for-hire provisions under the old law remained intact.
The Kirby case hinged on whether Kirby created the work on his own or was asked to do it in exchange for money upon delivery of an acceptable product. The decision holds that there was a large body of settled law regarding the defining features of work for hire under the 1909 statute, and that Marvel presented sufficient evidence – with no valid evidence presented to the contrary – that Kirby’s work constituted work for hire as the law defined it. It is instructive to read and compare the decision in the Superman case, which explained why Action #1 was not a work for hire and therefore could have the assignments terminated under the 1976 law as the Kirby family contended they should have been able to do. See:
http://uncivilsociety.org/siegel_superman_032608.pdf
The work-for-hire provision may be unfair, especially when the entity commissioning the work is free to pay nothing if they don’t like it, but gets all the rights once they accept and pay for it. But I’d say that’s really the fault of Congress, not the court.
Colleen Doran
@ Mstein
Thank you so much for your perspective. For many years lots of people (including me) did not understand the way the 1909 copyright law was applied to WFH. I think most creators believed that there was no WFH provision until 1976, which is (in a way) true, but does not alter how the 1909 law is applied.
I’ve asked an acquaintance of mine, a noted IP attorney, to take a look at this and I am watching his blog like a hawk to see if he comments. Oh, wait, just double checked, he just did:
http://www.copyhype.com/2011/08/marvel-v-kirby-work-for-hire-and-copyright-termination/
I’m afraid I don’t see an out for the Kirby estate legally, but like most fans, would hope there is some kind of gift or other benefit that could be granted to the Kirby estate.
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