UPDATE: Fed. App. Ct. Zaps Cartoonist's Heirs in Marvel Copyright Suit

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In the 57-page opinion this week in Marvel Entertainment, Inc. v. Kirby (Case No. 11-3333) by Judge Robert D. Sack, the United States Court of Appeals for the Second Circuit sided with Walt Disney Co.-owned Marvel Entertainment in a copyright termination rights suit involving the heirs of renowned cartoonist Jack Kirby.

The federal appeals court upheld the decision of United States District Court for the Southern District of New York Judge Colleen McMahon, who in 2011 granted summary judgment to Marvel (see "TUOL" post 8/1/11), finding that the company held exclusive ownership of copyrights on characters including Iron Man, Spiderman, The Fantastic Four and The Incredible Hulk, and that Kirby's comic book artistry was a work for hire.

The case involved 262 titles between the years 1958-1963. The Second Circuit agreed with the trial court that Barbara and Susan Kirby did not have copyright termination rights under 17 U.S.C. sec. 304(c)(2). The three-member appellate panel concluded the trial court lacked personal jurisdiction over the late cartoonist's other two children, Lisa and Neal Kirby, vacating the judgment against them. "The judgment here will declare the existence vel non of Barbara and Susan's termination rights," Judge Sack wrote, "and whatever the practical effect of this declaration, it can do no more or no less."

The disputed works were created at Marvel's instance and expense, and the heirs failed to prove the existence of any agreement to the contrary, the court concluded.