The heirs of Jack Kirby, creator/co-creator of the Hulk and many other iconic comic book characters who permeate the movie business such as Iron Man, Spider Man, the Avengers, the X-Men and Thor, have been battling Marvel over the basis for Marvel’s copyright to these characters. The main dispute is as to whether the creation of these characters was work for hire (Marvel’s position) or if Kirby was a freelancer who sold the copyright to Marvel when it purchased the comic book story including the characters (the Kirby heirs’ position).
Under either scenario, Marvel currently owns the copyrights. However, under the scenario claimed by the Kirby heirs, the Kirby heirs would have an opportunity to terminate the copyright transfer in a few years. This is because changes made in the Copyright Act of 1976 extended the life of a copyright from 56 to 75 years, but also allowed copyright holders who had previously transferred a copyright to reclaim it for the additional unanticipated years. The Kirby heirs’ position is that since Kirby created/co-created these characters in the 1950s and 60s, they can terminate the copyright and regain at least partial ownership to the characters. There is no question that many of these characters are expected to continue to generate substantial additional profits, which is supported by the fact that Disney paid $4 billion for Marvel in 2009.
A federal judge in New York has ruled in favor of Marvel Entertainment, concluding the creation of the characters constitutes work for hire under the Copyright Act of 1909. The Kirby heirs have already indicated their intent to appeal, which is not surprising given the significant expected profits from the movie franchises and other licensing.
