As regular readers of this blog will know, comic book superheroes frequently find themselves at the center of legal disputes over copyright in fictional characters. In many cases, both sides agree that the characters in question are sufficiently delineated to merit copyright protection, but disagree over which party owns the copyright (and the lucrative royalty stream from sequels, movies, etc.). The answer is often complicated by the historical structure of the comic book publishing industry, in which artists and writers frequently collaborated, wrote to specifications, and/or did not receive name credit for their contributions.
These traditions played a role in the recently settled dispute between Marvel Comics and the heirs of Jack Kirby, the artist who drew and created or co-created many of Marvel’s most famous characters in the late 1950s and early 1960s, including the Fantastic Four, X-Men, Thor, the Incredible Hulk, and the Silver Surfer. In 2009, Kirby’s heirs attempted to reclaim ownership of these characters by serving Marvel with notices of termination under 17 U.S.C. § 304(c). This provision of the copyright statute is intended to allow authors to renegotiate with publishers for the rights to successful works that may have been originally granted on the cheap at a time when the publisher held all the bargaining power. Marvel, however, argued that the notices were invalid because Kirby’s works were actually “works made for hire,” for which the company is deemed the author, and there is no termination right.
Both the district court and the Second Circuit sided with Marvel, holding that Kirby’s drawings and characters were indeed works made for hire under the 1909 Copyright Act, because they were created at the “instance and expense” of Marvel. As the Second Circuit explained, “‘instance’ refers to the extent to which the hiring party provided the impetus for, participated in, or had the power to supervise the creation of the work,” and the “‘expense’ component refers to the resources the hiring party invests in the creation of the work.” The Second Circuit observed that, although Kirby was a freelancer, he produced nearly all of his work during the relevant period for Marvel, and he did so pursuant to “a standing engagement whereby Kirby would produce drawings designed to fit within specific Marvel universes that his previously purchased pages had helped to define.” Kirby’s drawings, the Court pointed out, “built on preexisting titles and themes that Marvel had expended resources to establish.”
The Kirby heirs petitioned the Supreme Court for certiorari, arguing that the “instance and expense” test applied by the Second Circuit was flawed and had been overruled. The Court was set to confer on September 29 regarding whether to grant certiorari over Marvel’s opposition, but just three days before the conference, the parties announced that they had reached an “amicabl[e]” resolution of their disagreements. For the time being, then, the world must await another day for a resolution of the “instance and expense” issue, and Marvel and the Kirbys can go back to “advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history” – and presumably, their shared goal of continuing to exploit the enduring money-making superpowers of the characters he drew.