Kirby vs. Marvel: A Simple Explanation of the Case

We often talk about the Kirby case, so let’s try to take a simple look at it! When Congress extended the copyright law, from about 50 years to about 100, the law allowed the original copyright holder to reclaim his copyright after 50 years because he had only sold it for a specific time. The Kirby Estate filed to have the copyrights revert to them (or for them to have co-ownership) for 45 books including Fantastic Four #1 and Amazing Fantasy #15 and the characters that appeared in them. (I will ignore the details of the filings and the procedures unless they are relevant to our understanding of the case)

Important: This is not about fairness, as the judge said, or what we feel is morally correct. This is simply about the judge applying the law as she sees it. Many people feel, incorrectly, that the conditions under which Kirby worked are an important issue. However, this was 50 years ago and the boat has sailed on those issues a long time ago. Judge McMahon wrote,”This case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters” It was also, she wrote, not about whether artists in Kirby’s situation “were treated ‘fairly’ by companies that grew rich off their labor….”It is about whether Kirby’s work qualifies as work for hire under the Copyright Act of interpreted by the courts… If it does, then Marvel owns the copyright in the Kirby Works, whether that is “fair” or not. If it does not, then the Kirby Heirs have a statutory right to take back those copyrights. . .”

Following legal procedures (each side filing suits against the other) a hearing was held to see if a full trial was necessary. You need to show a judge that at first glance there is enough evidence to proceed. At this point the burden of proof was totally on the Kirby Estate. They had to show they had evidence that validates their claim, otherwise a full trial would not be granted. After this hearing, the judge ruled against the Kirby Estate, preventing the case from proceeding to an actual trial. Simply, the judge ruled, the Kirbys did not present any evidence that showed that Jack ever owned the copyright to these properties. (“I conclude that there are no genuine issues of material fact, and that the Kirby Works were indeed works for hire …”) Marvel had to do very little because they already had the copyrights registered in their name. Beside, and they did not want to show the Kirby Estate what evidence they have in their favor. And they don’t have to. Only at a full trial would Marvel need to defend itself.

Some people don’t understand reversible error and thought it could apply here in an appeal. The transcripts in this case do show some inaccuracies in some statements made during this procedure. These inaccuracies do not matter to the judge because they do not relate to the core issues of ownership of copyright. So, it doesn’t matter what order the comics were printed, or that the judge thought that Nick Fury Agent of S.H.I.E.L.D., replaced Sgt. Fury and his Howling Commandos. Also, Stan Lee forgot the year he became publisher and said 1968, not 1973. Those issues are not relevant to whether or not Kirby had a copyright on those 25 comics. So there can be mistakes during the hearing, even in the judge’s ruling, but none of these make a decision reversible.

All Marvel needed to do was set down the procedures in which Jack Kirby worked, which Marvel claims was “work for hire.” This is a legal term that means Marvel owned the property and gave Kirby assignments and was supervised by Marvel. Marvel also showed that most assignments were verbal, there was nothing written. The judge also made an important point during her decision. Kirby, said the judge, took no risk in producing the comics, He was paid for everything he did. Goodman however, risked money on publishing comics that might not have sold and would have fully taken the loss. This, to the court, was more evidence that that Kirby was “work for hire” and not part of ownership or management.

The Kirby estate needed to show evidence that directly linked Jack Kirby to the copyright of those comics. The Kirby estate had no paperwork, but had people testify. However, none of them were at Marvel in 1958-62, when these comics were created. Since they were not witnesses to the actual events, the judge ruled that their testimony was not relevant and it was not admitted. With no evidence in Kirby’s favor, the judge ruled against going to the trial, and that means that Marvel keeps those copyrights. The Kirby Estate has now appealed.

There have been discussions that during the appeal process that the Kirby estate would present more evidence in Kirby’s favor. This includes the unseen, and maybe non-existent, sketches that led to Kirby’s version of Spider-Man. However, an appeal is not a second trial; it’s a review to see if all legal issues were addressed properly. Usually, new evidence is not allowed, the courts feeling that you had your one best “shot” at the hearing.

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