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Marvel Prevails in Copyright Appeal

Weil, Gotshal & Manges represented Marvel Entertainment, LLC and several of its subsidiaries in their victory in the Second Circuit Court of Appeals over the heirs of Jack Kirby, a noted comic book artist. The Kirby heirs, whose father had worked for Marvel during the late 1950s and early 1960s when Marvel created many of its iconic comic book superheroes, claimed ownership rights in the copyrights to some of Marvel’s most iconic and enduring comic book characters, including The Fantastic Four, Spider-Man, The Incredible Hulk, Iron Man, The X-Men, Thor and The Avengers. The appeals court held unanimously that the Kirby heirs held no copyright ownership rights in those works, because they had all been created for Marvel as “works made for hire.”

After The Walt Disney Company announced a deal to purchase Marvel for $4.2 billion in 2009, the defendants served purported copyright termination notices on Marvel, Disney, and various other entities claiming that Kirby alone had “created” these and other classic Marvel comic book characters. In early 2010, Marvel filed suit in federal district court in New York seeking a declaratory judgment that the termination notices were invalid and that the heirs had no basis to “reclaim” the copyrights. On July 28, 2011, the district court granted Marvel’s motion for summary judgment. The Kirby heirs appealed to the Second Circuit, which heard argument in October 2012.

On August 8, 2013, a unanimous panel of the Second Circuit, in a precedential 57-page opinion authored by the Hon. Robert Sack, rejected all of the Kirby heirs’ arguments concerning copyright ownership, finding that the undisputed evidence established that the works at issue were created for Marvel as works made for hire as a matter of law. The Second Circuit found that two of the four Kirby heirs were not subject to jurisdiction in New York, but that they were not indispensable parties because all of their interests were aligned and they were all represented by the same counsel. Were it otherwise, the court noted, since two siblings were in NY and two siblings were in CA, Marvel could never bring an action unless the heirs consented to be sued. Accordingly, the district court had been correct to declare the termination notices invalid and because the parties had agreed that a majority (3 out of 4) of the heirs were required to act together to exercise termination rights, the court’s holding concerning the work-for-hire nature of the works as to the remaining two heirs precludes such termination.

The Weil team included partners Bruce Rich, Randi Singer and Gregory Silbert, associates Sabrina Perelman, Jessica Costa and Andrey Spektor and paralegal Herb Chan. The law firm Haynes & Boone LLP served as co-counsel.

This news appeared in the following outlets (may require registration/subscription):

  • The Litigation Daily: Pow! Weil Scores for Marvel in Superhero Copyright Case (August 8, 2013)
  • Law360: Marvel Beats Artist's Heirs In 2nd Circ. Copyright Row (August 8, 2013)
  • Hollywood Reporter: Appeals Court Denies Jack Kirby Estate's Bid to Overturn Marvel Copyright Ruling (August 8, 2013)
  • New York Law Journal: Marvel's Right to Profitable Comic Characters Is Upheld (August 9, 2013)