They tried again, but they did not succeed. Today the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby were denied their recent petition to the 2nd Circuit Court of Appeals for a rehearing or a full rehearing en banc on whether the estate had the right to issue termination notices to Marvel on his characters back in 2009. The brief order (read it here) from the panel at the NYC-based federal court comes just more than two and a half months after the appeals court shut down the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling that the comic legend was under a work-for-hire deal and hence had no rights to terminate. Four years ago, Lisa Kirby, Susan Kirby, Barbara Kirby and Neal Kirby sent 45 notices terminating copyright to publishers Marvel and Disney, as well as film studios including Sony, Universal, 20th Century Fox and Paramount Pictures that have made movies and TV shows based on boatloads of characters Jack Kirby created or co-created with Stan Lee and others. Jack Kirby died in 1994.
Captain America co-creator Joe Simon has died. The legendary Simon, who collaborated with Jack Kirby on other characters as well, died Wednesday night in New York City after a brief illness. He was 98. Athough Simon was a successful …
EXCLUSIVE: Intellectual property lawyer Marc Toberoff has a winning track record when he goes after Hollywood studios on behalf of rightsholders. But not today. I’ve just learned that he lost big in Federal Court for the Southern District Of New York after suing Disney/Marvel for the Jack Kirby Estate. The federal judge not only granted the studio motions for summary judgment but also denied the Toberoff/Kirby’s cross-motion for summary judgment. The ruling revolved around the fact that Kirby was a freelance writer and did work-for-hire and so didn’t retain the copyright. Well, you win some and you lose some. But all the Hollywood studios are chortling because they now see Toberoff as vulnerable and not invincible. “This is just the beginning,” Toberoff just told me, noting that, after the Kirby Estate exercised their termination rights under the Copyright Act, Marvel (backed by Disney) was in the middle of settlement negotiations in December 2009 and sued the Kirbys on January 8, 2010 in NY to benefit from that state’s more favorable work-for-hire case law. UPDATE: The
Walt Disney Companyissued this statement regarding the Marvel Worldwide Inc. v. Kirby ruling: “We are pleased that in this case, the judge has confirmed Marvel’s ownership rights.”
Specifically, the estate of comic book superhero legend Jack Kirby, co-creator of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor, sent notices terminating copyright to publishers Marvel and Disney, as well as film studios that have made movies and TV shows based on characters he created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. Normally these kinds of lawsuits are run of the mill for Hollywood. But not when they’re litigated by Toberoff, who is the bane of Big Media.