Kirby heirs go after rights to characters
As reported by the Los Angeles Times, Jack Kirby’s heirs have served notices of copyright termination for 45 characters they believe Kirby to have created or co-created. The companies named include Marvel Entertainment, Disney, Sony Pictures (owners of movie rights to Spider-Man), 20th Century Fox (owners of movie rights to X-Men and Fantastic Four), Paramount Pictures (distributor of Iron Man, Captain America, Thor and Avengers) and Universal Pictures (distributor of Hulk).
The Kirby children have hired Los Angeles law firm Toberoff & Associates, which represented Jerry Siegel’s heirs in a similar case involving Superman.
The LA Times explains:
Under copyright law, creators and co-creators can seek to regain copyrights they previously assigned to a company 56 years after first publication and can give notice of their intentions to do so up to 10 years before that.
Kirby’s children would be eligible to claim their father’s share of the copyright of the Fantastic Four in 2017, while the Hulk would come up in 2018 and X-Men in 2019. The copyrights would then run for 39 more years before expiring, after which the characters would enter the public domain under current law.
This is all interesting stuff, though ultimately what exactly will happen? Hard to say. I know Kirby contended he was involved in the creation of Spider-Man, but I can’t really see a court giving him creator or co-creator status, so you’d think Spider-Man would be in the clear. (Except in the event the reclusive co-creator Steve Ditko were to file suit.) Marvel, I believe, owns Lee’s rights in perpetuity as part of the deal they signed with him not too many years ago.
Another question would be the X-Men. While Lee and Kirby created the original team, most of the breakout characters throughout the years were created by other writers and artists. Could Marvel still field an X-Men film featuring Wolverine, Storm and Nightcrawler, for example, and call it “The X-Men”? Not sure if the name of the team is part of the deal. That’s something else I guess we’ll have to see. (And of course, Chris Claremont, Len Wein or Dave Cockrum’s estate could file down the line for other X-Men characters, I suppose. But that would be another 12 or so years down the line.)
I’m also not sure how “work for hire” agreements would enter into this. Kirby’s status at the time of creating these characters may very well have been different than that of Siegel and Shuster at the time of creating Superman.
In any case, a court will likely work all this out. I wonder if plans are afoot to file similar paperwork with DC over the Fourth World characters?
- Matt Price
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You are absolutely right about the potential lawsuits down the line. My article about all of this appeared in L.A. Lawyer in 1996, which members of both the Siegel and Shuster family saw. I am not sure that the courts have read the law correctly, but at least they’ve recognized there is a right on behalf of those two creators to go for reversion rights.
There would be a difference between the way the law treated characters created before 1978 (Len Wein’s characters in the X-men and elsewhere would fall into that) and those post 1977, which would encompass a lot of Chris Claremont’s work. Then there’s the really big issue no one has taken on: are comic books actually subject to the work for hire provisions of the copyright act when freelance work is considered? A strict reading of the law says absolutely not. A comic book or a graphic novel is really a joint work, but it does not fall within the listed types of work which can be work made for hire when a freelancer is involved.
Joe Simon went down this road and I believe he got a settlement out of Marvel for Captain America. Dave Cockrum got some money out of Marvel for Nightcrawler before he died. How anyone else will fare is a crap-shoot.