Spidey’s Slippery Slope: The Kirbys’ Spectacular Case Against Marvel

Just how serious is Disney/Marvel about producing an Ant-Man movie? Few in the world are likely to be more interested than the children of comics author Jack Kirby who have named  Ant-Man along with Spider-Man, Iron Man, the Fantastic Four, X-Men, The Incredible Hulk, The Avengers, Thor, Nick Fury a seemingly endless list of comics titles and specific issues in a lawsuit claiming they are the rightful (co-)owners of these creations.

Filed on March 9 in the US District Court in the Central District of California, the complaint filed by Lisa, Barbara, Neal and Susan Kirby as well as the estate of Kirby’s wife, Rosalind, rebquests a trial by jury, seeking unspecified damages against previous and current earnings on these properties of which Disney/Marvel has current control.

Making a very persuasive argument, particularly if it’s all true, the complaint inks a portrait in which a financially strapped Marvel purchased the comics from freelancer Jack Kirby ad hoc — sans contracts and that Kirby created everything on his own time in his own place of residence with his own tools so that he was at no time able to be considered ‘work for hire’ as Disney/Marvel has contended.

Where things get a bit clouded, however, is that Kirby did assign his copyrights over to a predecessor of Marvel (then Magazine Management Co., Inc.) in 1972 in exchange for compensation, but the Kirbys maintain that the United States Copyright Act has now allowed the rights to revert back to the original author and therefore had served dozens of termination notices and the intent to not renew the agreement to Disney, Marvel and many licensees in 2009. If anything, this agreement does imply that even Marvel admitted at one time that Kirby was the original copyright holder.

The complaint then goes on to what the Kirbys are seeking in damages and restitution. For works that Jack Kirby had co-authored, the Kirbys are demanding a pro rata ownership of the properties and thus claim they are owed an equal amount of the profits of any new projects (derivative works) featuring the claimed characters, going back to the purported contract termination date which includes any projects completed since that time.

The Kirbys also claim that as equal owners in the properties, they too would be free to exploit the properties any way they see fit, a move not likely to sit well with the ever image-conscious Disney.

The lawsuit also claims that Marvel had taken possession of much of Kirby’s original art over the years and while Marvel has returned some of the art (after a reported investigation by the New York State Board of Equalization had been launched over a question of sales tax), there is art not yet returned and as Marvel, who denies being in any possession of additional art, is the only party that knows the truth of that statement, the Kirbys want financial restitution in an amount to be determined at trial.

In yet another claim in the lawsuit, the Kirbys, who consider themselves in direct retail competition with Marvel, claim damages against Marvel for its promotion of The Incredible Hulk and X-Men Origins: Wolverine for not naming Kirby as (co-)creator in the marketing materials, thus misleading the public and hurting sales for the Kirby family.

As we have reported earlier, what the Kirbys are seeking is not without precedent. In 2008, the heirs of Superman creator Jerome Siegel successfully sued Time Warner over the rights of Superman and, as a result, Time Warner/DC will stand to lose ownership completely of the man of steel in 2013.

For interested parties, we have made the court documents in the Kirby vs Disney/Marvel available to our readers below.

Kirby vs. Marvel (Docket #SACV10-00289-CJC (ANx)) (Adobe Acrobat Required)

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