Los Angeles: When the Walt Disney Co. agreed in August to pay $4 billion (Rs18,200 crore) to acquire Marvel Entertainment Inc, it snared a company with a library that includes some of the world’s best-known superheroes, including Spider Man, the X-Men, the Incredible Hulk and the Fantastic Four.
Comic genius: Jack Kirby created some of the best-known superheroes. The New York Times
The heirs of Jack Kirby, the legendary artist who co-created numerous Marvel mainstays, were also intrigued by the deal. Kirby’s children had long harboured resentments about Marvel, believing they had been denied a share of the profits rolling out of the company’s superheroes franchises.
They spent years preparing for a lawsuit by enlisting copyright lawyer Marc Toberoff to represent them. When the Marvel deal was struck, Toberoff—who helped win a court ruling last year returning a share of Superman profits to heirs of one of that character’s creators—sprang into action.
Pow! Wham! Another high-profile copyright fight broke out in Hollywood, and this one could be the broadest the industry has yet seen.
Last September in a prelude to a lawsuit, Toberoff—using a provision in copyright law that, under certain conditions, gives authors or their heirs the right to regain ownership of a product after a given number of years—sent 45 notices of copyright termination to Marvel, Disney and other studios. The notices expressed the family’s intent to regain copyrights to some of Kirby’s creations.
Marvel and Toberoff entered settlement talks. But on 8 January, Marvel surprised the Kirbys with a lawsuit seeking to invalidate the notices.
“We took the initiative because we have a very strong legal position,” said James W. Quinn, a Marvel lawyer. “There is no question that Kirby was a great artist. But that’s not the law.”
The family has since filed a lawsuit against Marvel and Disney. Aside from seeking dismissal of Marvel’s lawsuit, Kirby’s children accuse the firm of depriving the Kirby estate of credit—and thus profits—from movies such as X-Men Origins: Wolverine. Quinn dismissed this claim as frivolous.
The dispute is also emblematic of a much larger conflict between intellectual property lawyers and media firms that, in Toberoff’s view, have made themselves vulnerable by building franchises atop old creations. So-called branded entertainment—anything based on superheroes, comic strips, TV cartoons or classic toys—may be easier to sell to audiences, but the intellectual property may also ultimately belong in full or in part to others.
Paul Goldstein, who teaches intellectual-property law at Stanford’s law school, said cases like the one involving Marvel are only the tip of an iceberg. A new wave of copyright termination actions is expected to affect the film, music and book industries as more works reach the 56-year threshold for ending older copyrights, or a shorter period for those created under a law that took effect in 1978.
Toberoff is tackling what could be one of the most significant rights cases in Hollywood history; it’s certainly the biggest involving a superhero franchise. Complicating matters are licensing agreements Marvel has made over the years with rival studios for characters Kirby helped to create. Sony holds long-term movie rights to Spider Man; 20th Century Fox has the equivalent for X-Men and Fantastic Four. Universal Studios holds theme park rights to Spider Man and the Incredible Hulk. And more films stemming from Kirby’s work are coming: Marvel is spending hundreds of millions to bring Thor and the Avengers to theaters.
If Kirbys succeed in their reclamation effort—and that’s still an enormous if—they would be entitled to a share of profits from new works based on any of the copyrighted material.
And the Kirby heirs could acquire a non-exclusive right to initiate new projects based on characters partially created by their father, as long as they accounted to Marvel for its share in any of them.
In many ways, the Marvel case is simple. It turns on whether Kirby was working as a hired hand or whether he was producing material on his own that he then sold to publishers. The Copyright Revision Act of 1976 bans termination for people who delivered work at the “instance and expense” of an employer.
Toberoff is poised to argue that Kirby—and, by extension, others like him—were selling work on a freelance basis, rather than serving as hired hands. If Toberoff has his way, the picture painted in court will be one of chaos. He says that during Marvel’s early days— when Kirby was creating his superheroes—the firm was a shoestring operation that was barely afloat.
“There was no bullpen; there was a one-man office,” he said, contending that an industrywide decency code put so much pressure on Marvel that few at the company were worrying about contractual niceties with artists like Kirby that would have tidied up all of the legal issues surrounding work arrangements. “It’s easy to imagine that nobody at the time was thinking about work for hire.”
©2010/THE NEW YORK TIMES