jack kirbyNope, there’s no superhero rescue to be found in court for the heirs of comic book artist Jack Kirby.  The U.S. Circuit Court of Appeals for the Second Circuit upheld a lower court decision in favor of Marvel, finding that his works at issue — such as Iron Man and the Hulk — were done for hire, meaning his heirs lack termination rights under section 304(c)(2) of the Copyright Act of 1976.

In 1940, Kirby and Joe Simon created and sold the Captain America comic series to Marvel. In later years, under the legendary Stan Lee, Kirby helped to create other iconic characters of the genre, such as the Iron Man, Hulk, X-men, Fantastic Four and Thor — all properties that only have burgeoned in value with Hollywood’s current fixation on making blockbuster films based in comic books.  Both sides agree Kirby was a free-lancer, not a formal Marvel employee.  He was paid by check, at a per-page rate, for his drawings; he didn’t draw a fixed wage nor salary. Lee said that for many years, he and Kirby used the “Marvel Method” to develop comics, a system consisting of Lee meeting with the artist and providing a brief outline of an issue or idea; from that inspiration, the artists drew and Lee followed up  with dialogue and captions.

While Lee said he “maintained the ability to edit and make changes or reject what the other writers or artists had created,” a U.S. District Court said: “It is beyond dispute … that Kirby made many of the creative contributions, often thinking up and drawing characters on his own, influencing plotting, or pitching fresh ideas.”

In 2009, Kirby’s children served various parts of the Marvel empire with Termination Notices, purporting to exercise statutory termination rights under section 304(c)(2) of the Copyright Act of 1976, 17 U.S.C. 304.

Marvel responded by suing for a declaration that the Kirby heirs had no such rights under section 304(c)(2) and their notices, therefore, were invalid. Marvel argued that Kirby made all the works “for hire.” His heirs moved in court to dismiss this suit, saying the court lacked personal jurisdiction over two of the four siblings, Lisa and Neal Kirby.

The lower court concluded the case facts established as a matter of law that the disputed creations were made at Marvel’s instance and expense; they, thus, were works made for hire, nullifying the Kirbys claim for termination rights voiding their Termination Notices.

The appellate court concurred, with U.S. Circuit Judge Robert Sack writing: “Marvel’s inducement, right to supervise, exercise of that right, and creative contribution with respect to Kirby’s work during the relevant time period is more than enough to establish that the works were created at Marvel’s instance.”  The higher court said the district court lacked personal jurisdiction over Lisa and Neal Kirby and vacated the judgment against them but affirmed it in favor of Marvel against Barbara and Susan Kirby.

Marvel faces another comic book artist in court this December, as the U.S. Court of Appeals in the Second Circuit reversed a 2011 lower-court decision that dismissed a suit by Gary Friedrich, who claims to have ownership rights to the Marvel character the Ghost Rider.