Archives for July 2011

Doctor Doom Prevails: SDNY holds Jack Kirby’s Iconic Contributions to Marvel Comics Characters Were Works For Hire

  Another decision has come out of the SDNY, Marvel Wolrdwide, Inc. v. Kirby, holding that work commissioned from an independent contractor was work made for hire under the 1909 Act.

In this case, comic book industry Galactus, Marvel, filed a declaratory judgment action seeking a ruling that the Section 304(c) termination notices served by the heirs of legendary comic book artist and co-plotter Jack Kirby were invalid.  The work for hire issue is crucial in termination cases because if work is made for hire, the employer or commissioning party is treated fictionally as the author in the first instance, and the individual who actually created the work can never terminate any transfer to recapture copyright ownership in his or her work.

Kirby, who jointly created many of Marvel’s greatest characters with Stan Lee (including the Fantastic Four as shown in the first issue cover by Kirby depicted above), was not an employee of Marvel at the relevant time period, but rather was an independent contractor, working for 12-14 hours a day and paid on a per-page basis.  There was no written agreement.  Together with Marvel editor Stan Lee, Kirby created several of Marvel’s most famous (and profitable) characters, co-writing the stories and drawing the artwork.

As noted above, the issue in this case was whether Kirby’s contributions to the Marvel canon were works made for hire under the 1909 Act, and the district court granted summary judgment for Marvel, holding that they were. [Read more…]

Seventh Circuit: Modifications to Architectural Plan Made at Direction of Commissioning Party Held Not Sufficiently Original to Engender Copyright Protection

Creative Commons License photo credit: Johnnie Utah

On July 26, 2011, the Seventh Circuit affirmed the dismissal on summary judgment of an architectural copyright infringement claim in Nova Design Build, Inc. v. Grace Hotels, LLC.  The plaintiff architectural design firm sued a former client, alleging that the owner of a Holiday Inn Express location infringed the plaintiff’s “design copyright” (whatever that is) by building the hotel based upon the plaintiff’s plans after failing to pay all of the money allegedly due for those plans.

The district court had dismissed the case on the ground that the identifying materials submitted with the plaintiff’s copyright application were not “bona fide” copies and therefore the registration was invalid.  The court found that the original plans had been burgled from its offices (!) and therefore it had to re-construct the plans from memory.  The district court held that this fact was sufficient to invalidate the registration, foreclosing any relief for copyright infringement. [Read more…]

Copyright Society Program: Viacom vs. YouTube Appeal – Register Now!

Creative Commons License photo credit: elmorsa

Registration Deadline Monday, July 25 – Limited Seats Available!

I encourage anyone in D.C., or anyone who can make it down for a day, to quickly register for a great program on the ongoing Viacom v. YouTube copyright litigation:


The Washington D.C. Chapter of the Copyright Society of the U.S.A. is holding a membership building event on Wednesday, July 27th, 2011 from 4 p.m. to 6 p.m. [Read more…]

Copyright Act Preempts All State Law Claims Based On Fraudulent DMCA Notice

Horse by Paul Jackson
Creative Commons License photo credit: dcbaok

I guess you could call this the law of the virtual horse.  In a new copyright preemption case, Amaretto Ranch Breedables, LLC v. Ozimals, Inc., the District Court for the Northern District of California held that any of the plaintiff’s state law claims premised upon the defendant’s alleged fraudulent DMCA takedown notices were preempted by the Copyright Act.  [Read more…]

Music Video Owner Takes One In The . . . : South Park Spoof Held Fair Use

Comedy Partners, and other entities behind the still-going-strong animated comedy show South Park, won big recently in the Eastern District of Wisconsin when they won a dismissal on fair use grounds. It is relatively rare for a copyright defendant to prevail on fair use at the motion to dismiss phase, before an answer is filed or discovery is taken.   In this case, however, the court was able to take judicial notice of the plaintiff’s music video and the allegedly infringing South Park episode and found fair use without recourse to any other external evidence necessary.

The case involves the music video for a song titled “What What (In the Butt).”  As described by the court, “[t]he heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: ‘I said, what what, in the butt’ and ‘you want to do it in my butt, in my butt.'”  Not every day you read something like that in a judicial opinion, but when you do it almost invariably is in a copyright case. . . [Read more…]