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Marvel is relaxing on Thursday after an appeals court affirmed a ruling that work made by comic book legend Jack Kirby falls under an employment context known as “work made for hire,” which means it won’t be eligible for termination.
Kirby’s estate attempted to send notices of termination to Marvel and its licensees Sony, Fox and Universal over such iconic creations as Spider-Man, X-Men, Iron Man, Incredible Hulk and others. Represented by Marc Toberoff, the estate did so with an eye on exploiting a provision of copyright law that allows authors another bite of the apple by enjoying the fruits of their creation in the latter period of the copyright term.
After the termination notices were sent, Marvel sued the Kirby family in 2010, looking for declaratory relief that the artist had made contributions with others — like Stan Lee — and as such, the work belonged as a “work for hire.” A New York federal judge accepted this theory, meaning that for purposes of copyright law, Marvel is deemed the “author” of those works.
On Thursday, the 2nd Circuit Court of Appeals affirmed the ruling, while at the same time, saying that a New York court had jurisdiction only over Kirby’s two of four children. That potentially opens up the door for two of Kirby’s spawn — Lisa and Neal — to challenge the effectiveness of termination in another circuit.
The loose working relationships known as the “Marvel Method” has been the subject of many legal disputes and most recently produced a ruling at the 2nd Circuit that said it wasn’t clear whether Gary Friedrich had handed over rights to “Ghost Rider,” working as a freelancer for the studio in the 1970s.
Kirby, too, was a freelancer for Marvel at the time, and he received no benefits, no fixed salary and was not reimbursed for expenses when he worked from home and contributed hundreds of pages of comic books each year for decades.
“Despite the absence of a formal employment agreement, however,” the 2nd Circuit judge Robert Sack notes, “the record suggests that Kirby and Marvel were closely affiliated during the relevant time period. Lee assigned Kirby, whom he considered his best artist, a steady stream of work during that period. … And Kirby seems to have done most of his work with Marvel projects in mind.”
In some instances, Lee or others assigned Kirby work. But in others, it’s said that “Kirby had a freer hand within this framework than did comparable artists” contributing to Marvel.
According to precedent in the 2nd Circuit, what needs to be looked at is whether a work is made at the hiring party’s “instance and expense,” and that happens when the “employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out.”
But there are all sorts of quirks that go into the analysis of the working arrangement, including time spent and the manner of payments made.
Ultimately, Judge Sack concluded that the works were created at Marvel’s instance and expense.
“Although Jack Kirby was a freelancer, his working relationship with Marvel between the years of 1958 and 1963 was close and continuous,” says the ruling. “Understood as products of this overarching relationship, Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby’s creation of the works.”
It’s acknowledged that Kirby enjoyed more creative discretion than most artists did under the “Marvel Method,” but the appeals judge points to the evidence on record that he “worked within the scope of Marvel’s assignments and titles.”
And as for the issue of expense, while the appeals court says it presents a more difficult question, “Marvel’s payment of a flat rate [to Kirby] and its contribution of both creative and production value, in light of the parties’ relationship as a whole, is enough.”
The ruling underscores the difficulty that arises sometimes for artists looking to exploit the termination provisions of the Copyright Act. The Kirby family attempted to avoid this fate by having the dispute tried in a California court — a jurisdiction which, up until recently, has been more favorable to termination attempts. But Toberoff has recently experienced setbacks on behalf of the estates of Superman co-creators Jerome Siegel and Joseph Shuster there, so it’s reputation as being friendly to the terminators is somewhat in doubt.
Still, if there’s any relief for Kirby’s heirs, it’s that the ruling only applies to two of Kirby’s children — Barbara and Susan — not to two others (Lisa and Neal), without much connection to New York. Because of this situation, the 2nd Circuit analyzes things like whether a majority of the family needs to be held to the ruling. The court will only say, “The judgment here will declare the existence vel non of Barbara and Susan’s termination rights, and whatever the practical effect of this declaration, it can do no more or less.”
Marvel was represented by Bruce Rich at Weil, Gotshal & Manges. A spokesperson for Marvel said in a statement, “We are gratified by the appellate court’s definitive ruling that there is no legitimate basis to terminate our ownership of the copyrights at issue.”
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