... Today the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby were denied their recent petition to the 2nd Circuit Court of Appeals for a rehearing or a full rehearing en banc on whether the estate had the right to issue termination notices to Marvel on his characters back in 2009.
The brief order from the panel at the NYC-based federal court comes just more than two and a half months after the appeals court shut down the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling that the comic legend was under a work-for-hire deal and hence had no rights to terminate.
Four years ago, Lisa Kirby, Susan Kirby, Barbara Kirby and Neal Kirby sent 45 notices terminating copyright to publishers Marvel and Disney, as well as film studios including Sony, Universal, 20th Century Fox and Paramount Pictures that have made movies and TV shows based on boatloads of characters Jack Kirby created or co-created with Stan Lee and others. Jack Kirby died in 1994. ...
Kirby's kids were relying on copyright law that says: "An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright."
Good theory, but one teeny tiny problem: According to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire."
And Marvel (also Disney) maintained that Kirby was a hireling doing work, not, you know, an author handing over copyright.
This whole "work for hire" thing got rolling in a significant way with the Copyright law of 1909 when corporations wrenched copyrights away from employees. As law professor Catherine Fisk puts it:
The creation of the modern doctrine preceded its first appearance in the federal Copyright Act of 1909. Along the way, courts experienced some difficulty in accommodating the perceived demands of corporate control of intellectual property to a misty-eyed regard for the prerogatives of authors, artists, and composers. ...
Prior to 1909, you see, companies often had to negotiate with employees to gain copyright. That was time-consuming and demeaning. Far better to simply embed the doctrine of corporate authorship in law, and eliminate "difficulties."
Why negotiate if you can buy yourself some congressional legislation that says you don't have to?
Mr. Kirby's heirs never really had the tiniest chance of prevailing. The playing field got tilted in companies' favor more than a century ago. But unlike campaign finance laws that are equally old, the U.S. Supreme Court shows no desire to alter the "work for hire" status quo. There's a surprise.