If you are a fan of superheroes, you must be already familiar with names like Captain America, The Fantastic Four, and X-Men. Those are legendary characters of Marvel that have dominated pop culture. However, behind these characters, there is a legal battle between Marvel vs Jack Kirby.
As one of the most powerful comic book artists in history, Kirby helped co-create legendary Marvel characters, which contributed to the company’s worldwide success.
That’s why this case is interesting, as it highlights the importance of copyright for both creators and corporations. If you’re interested in learning more about copyright cases, explore our insights page on Am Badar & Am Badar.
Who is Jack Kirby
To understand the background of this Marvel vs Jack Kirby case, you must know who Jack Kirby is, the central figure in this lawsuit. Born Jacob Kurtzberg in 1917, Jack Kirby is among the most famous comic book creators in history.
Often called “The King of Comics,” Kirby’s imaginative craftsmanship and energetic narrative transformed the comic book business. Among the numerous legendary characters he co-created during his career are Thor, Iron Man, the Hulk, and Doctor Doom.
Saying that his creations were more than simply art—that they were the DNA of Marvel Comics’ 1960s rebirth—is not hyperbole. His creative approach gave superheroes who had genuine life and weaknesses that would appeal to readers relevance.
Though Kirby made enormous contributions, he worked as an independent contractor or freelancer, which led to the Marvel vs Jack Kirby legal dispute decades later.
His creations were assigned to Marvel under agreements that, at the time, didn’t account for the big value these characters would eventually hold.
The Chronology Marvel vs Jack Kirby
The legal battle between Marvel and the Kirby family unfolded over several years, with key moments shaping the dispute. Here are the details:
The Beginning: Kirby’s Contributions and Contracts
From 1958 until 1963, Kirby worked as a freelancing Marvel Comics artist. Unlike Stan Lee, an employee, Kirby worked alone in his home studio developing the stories and characters.
At that time, he provided his own supplies and bore the financial risks associated with his work, a point that later became central to his heirs’ arguments.
Marvel paid Kirby per-page without any promises about the publication of his work or royalties. Although this configuration fit the times’ industry standards, it left Kirby without any official claim to the copyrights of the characters he co-created.
The Heirs Assert Their Rights (2009)
In 2009, the Kirby heirs exercised their rights under the Copyright Act of 1976, which allows creators or their heirs to reclaim transferred copyrights after a set period. They issued 45 termination notices to Marvel and its affiliates, including Walt Disney Pictures, 20th Century Fox, Sony Pictures, and Universal.
The notices mark the start of the Marvel vs Jack Kirby case, and it covered key works Kirby created between 1958 and 1963, challenging Marvel’s ownership of these creations.
The Kirby heirs presented a compelling case: Kirby’s work wasn’t “made for hire,” as defined by copyright law. Rather, it was freelance work sold to Marvel under terms that allowed for termination and reclaiming of rights decades later.
Marvel’s Lawsuit (2010)
Marvel, which now is owned by Disney, responded by suing in 2010 to challenge the termination letters. Marvel said that Kirby’s creations were “made for hire”, meaning Marvel would be the original creator and exclusive copyright owner. Under the law, this position would invalidate the legal termination rights of the Kirby heirs.
The basis for Marvel’s claim was the “instance and expense” test, which holds that any work commissioned by and created at the expense of a hiring party is considered a work-for-hire. This would nullify the Kirby family’s termination rights.
Lower Court Rulings
Next, the Marvel vc Jack Kirby went to court, and the district court sided with Marvel, granting summary judgment in its favor. The court ruled that Kirby’s works met the “instance and expense” criteria, effectively classifying them as “made for hire”.
The Kirby heirs appealed, but the Second Circuit Court of Appeals upheld the lower court’s decision. The appellate court reinforced Marvel’s ownership, leaving the Kirby family without termination rights. This decision was widely criticized for its reliance on a judicial test that many viewed as outdated and overly favorable to corporations.
Escalation to the Supreme Court
The Kirby heirs then asked the U.S. Supreme Court to look at the matter. They said that the “instance and expense” standard ran counter to Congress’s objective in the Copyright Act of 1976, which sought to protect artists against exploitative contracts.
At that time, this case garnered significant support from artists, writers, and industry groups, with several filing amicus briefs urging the Supreme Court to intervene.
Settlement Before the Supreme Court Hearing
Just days before the Supreme Court could decide whether to hear the case, Marvel and the Kirby family finally reached a confidential settlement in September 2014. Both parties released a joint statement expressing their mutual respect and commitment to honoring Kirby’s contributions to Marvel’s legacy.
Although the specifics of the settlement are still unknown, the Kirby heirs clearly got the win. Also, the timing of the settlement points to Marvel’s attempt to avoid a Supreme Court ruling that may have upset its profitable series, The Avengers and Guardians of the Galaxy, among others.
The Impact of The Marvel vs Jack Kirby Lawsuit
Overall, this lawsuit is not just an ordinary fight over copyright. It was a case that highlighted the struggles of freelance creators in protecting their rights.
First, the case exposed the shortcomings of the “instance and expense” test, which many critics argue unfairly tilts the balance toward corporations. By relying on this test, courts risk undermining the intent of the Copyright Act of 1976, which was designed to give creators and their heirs a second chance to benefit from their works.
Also, it emphasized the importance of clear, comprehensive contracts that define ownership and compensation terms upfront for creators like artists, writers, and freelancers.
So, what are the lessons of this Marvel vs Jack Kirby case? If you want to safeguard your creations, make sure to partner with professional IP services like Am Badar & Am Badar to advocate for clear copyright agreements, especially in creative industries.
Contact us or explore our copyright services to learn how we can assist you. Also, check our insights page to read more interesting cases, such as “Shogi Copyright Infringement: Essential Lessons & Insights“.
