Jack Kirby is best known for creating, The Fantastic Four, The Avengers, The Incredible Hulk, and co-creating Spider-Man. The Kirby estate sent notices to Marvel that its rights to use Kirby’s characters terminate in 2014. Basically, in 2014, the rights to use and copy Kirby’s characters will return to the Kirby estate. How is this possible, dear reader? The Kirby Estate is enforcing their rights bestowed upon them by Section 203 of the U.S. Copyright Act. The section was enacted to give artists the ability to regain rights that they gave away then they had little bargaining power. For example, Jack Kirby, probably did not know the future value of the characters he created. Nor, was he powerful enough to negotiate royalties from Marvel. So, Congress passed Section 203 of the act to help artists like Kirby.
To take advantage of this law, Kirby needed to serve a notice of termination within 35 years of the character’s first publication and register the notice with the U.S. Department of Copyright. If Marvel did nothing, then the copyright automatically return to the Kirby estate on the termination date. Under this act, the earliest date of termination is 2013. In essence, Section 203 gives an artist a second bite at the apple to control and own his or her work.
The law’s only exception that may apply to Kirby is the “work made for hire” exception. Work for hire refers to any creative work that an artist created while employed by someone else. For example, if Kirby was hired by Marvel to create comic book characters, naturally any characters he created would belong to Marvel. Or if Marvel hired Kirby to contribute to a larger collective work, then those characters would also belong to Marvel, as work for hire. It’s important to note that work for hire is determined by examining the parties’ actual conduct and behavior during the relevant time period, especially if the parties do not have a written agreement. Marvel claims that Kirby’s characters are work for hire, but of course, Kirby’s family states that he was “his own man”. As you can imagine, Marvel and Kirby did not sign an employment agreement or a license agreement.
Marvel filed a declaratory judgment action in federal court in New York on Friday asking a judge to determine who owns the copyright to the characters–Marvel or Kirby?
What can you learn from this case, as a business owner? Understand that an artist owns the copyright to her creative work as soon as she creates it. If you wish to own that work, then the artist must assign or transfer her rights to you. This transfer should be memorialized in an agreement signed by you and the artist. Drafting the agreement will give you and the artist the opportunity to fairly negotiate the terms of the agreement and to discuss issues that you may not have considered before signing. For example, how long do you have permission to use the art? What happens to this license, if either one of you dies or files bankruptcy. What happens if either one of you changes your mind about this agreement? Discussion like this will help mitigate future disputes and reduce the amount of time you spend in the courthouse.
If you are interested in learning more about this law, please read this law review article: “A Second Bite of the Apple: A Guide to Terminating Transfers under Section 203 of the Copyright Act” by Margo E. Crespin and published by Columbia Law School in 2005. The article is well-written, and explains these legal concepts in plain English.
If you have questions about copyright law and your business, please contact us. You can chat live with a business attorney at www.mckeeoffice.com
Sharmil McKee
McKee Law Office
Philadelphia, Pennsylvania
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