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…]