August 15, 2011 1:58pm PT by Matthew Belloni
Jack Kirby Estate Files Appeal in Marvel Superhero Lawsuit (Exclusive)
The estate of comic book legend Jack Kirby has appealed a U.S. District Court ruling tossing several key copyright claims against Marvel over such iconic characters as Thor, Iron Man, Incredible Hulk and others.
The notice of appeal to the Second Circuit Court of Appeal was filed today. No additional briefing was filed, and both sides will have months to prepare their appellate briefs.
As we've reported, the Kirby estate and its lawyer, Marc Toberoff, are trying to terminate early copyright grants of more than 45 lucrative characters. The estate sent notices of termination to Marvel and its licensees Sony (Spider-Man), Fox (X-Men), Universal and others.
Marvel then sued in New York federal court claiming Kirby's creations were "works for hire" and thus not subject to termination. The two sides filed summary judgment motions, and last month the circuit court sided with Marvel, ruling that Kirby created the characters as works for hire.
The appeal was expected, as Toberoff told us his plans when the ruling came down.
"We respectfully disagree with the court's ruling and intend to appeal this matter to the Second Circuit," Toberoff said. "Sometimes you have to lose in order to win."