Marvel Comics vs Jack Kirby - Could Marvel lose?

In the next few days the US Supreme Court should decide what they are going to do about a legal dispute involving the 1976 Copyright Act, the outcome of which could have an unprecedented impact on creative/entertainment industries. It’s the long running, possibly cosmic, definitely epic battle between the Jack Kirby Estate and Marvel/Disney.

During a career that spanned seven decades Jack Kirby created or co-created so many of the characters that appear on our movie screens, t-shirts, lunchboxes & novelty bathrobes today. Captain America, Thor, the Avengers, the Fantastic Four, the X-Men, the Incredible Hulk, the Silver Surfer, Galactus, Black Panther, the Inhumans, New Gods … I could go on all day, Kirby was behind them all. He was the most influential artist in comics history & his properties have made more money over the years than the work of any other single person, alive or dead.

Jack Kirby died in 1994.

Before his death, there was bitterness between Kirby and his former employers. As soon as left Marvel, he tried to sue them for ownership of the characters he'd created, the legal dispute lasted years and ended in Marvel’s favour. He saw others making fortunes from his creations while he felt treated like a hired gun, not given the recognition, respect, or financial reward, that he deserved.

Today, Kirby continues to lack recognition for the work he did, the characters he created and the incredible influence he has on so much of our modern media.

His four children (Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby) have tried a few times to take legal action to reclaim some of the copyrights on characters their father created. With the help of intellectual property attorney Marc Toberoff, they filed 45 copyright-termination notices in 2009. Marvel countered with a lawsuit, which all led to the 2011 ruling that the Jack Kirby creations in question were defined as work for hire and not subject to copyright reclamation. In August 2013 the Second Circuit Court of Appeals upheld this decision. Rounds one and two to Marvel. Kirby down but not out.
It is hard to imagine a monopoly like Marvel/Disney ever losing a legal battle, but maybe this time the Kirby Estate have a chance. Why? Because this time round they have the backing of some powerful allies in their corner-

• Bruce Lehman - Former chief adviser to President Bill Clinton on intellectual property rights, he was responsible for significant changes to United States patent laws.
• Ralph Oman - Former U.S. Register of Copyrights and Professorial Lecturer in Intellectual Property and Patent Law
• The Screen Actors Guild American Federation of Television and Radio Artists (SAG-AFTRA)
• The Writers Guild of America (WGA)
• The Directors Guild of America (DGA)
• Marc Toberoff – He’s still here. Attorney specializing in copyright and entertainment litigation. He was the guy who represented Superman’s co-creators, Jerry Siegel and Joe Shuster against Warner and DC Comics over the original copyright to Superman. 

Toberoff has tried before for the Kirby Estate a few times over the last decade, with Marvel coming out on top each time, but now it seems like the tide is turning. The Hollywood guilds, unhappy that the 2013 appeal court ruling that favoured Marvel sets a dangerous precedent and could have repercussions across the creative industries, want this case to be heard by the Supreme Court.


If the case gets upheld, potentially Marvel could lose the rights to key characters like the Avengers, the X-Men and the Fantastic Four. Characters that are the foundation of just about every successful movie they have ever done. Without Jack Kirby characters, the Disney/Marvel superhero franchise falls apart. Even if Guardians of the Galaxy does well, see if you can guess who co-created Groot?

The ruling would also set an interesting precedent, especially for all those artists whose pre-1976 works continue to make a lot of money for companies while they see little revenue from them. Whatever happens, it’s one to watch. Unsurprisingly, I’m rooting for the Kirby kids, if this case gets heard, and if the Kirby kids win, it will rock the foundations of Marvel and Disney in a way that would make their father proud.

To find out more about Jack Kirby visit The Jack Kirby Museum & Research Centre