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…]