Marvel Prevails In Copyright Termination Case: Famous Artist Jack Kirby Found To Have Created His Comic Drawings As A 'Work Made For Hire'

In what can fairly be interpreted as a favorable decision for any business whose success depends upon copyrighted intellectual property, on August 8, 2013, the Second Circuit Court of Appeals issued its decision in Marvel Characters, Incorporated, et al v. Kirby, et al, __ F.3d __, 2013 WL 4016875 (2d. Cir. 2013), determining that the late Jack Kirby, one of the most influential comic book artists of all times and who produced drawings for Marvel Comics from his home as a freelancer without a written contract, did so as a "work made for hire" and therefore neither he nor his heirs possessed a right to terminate the grant of copyrights under Section 304(c)(2) of the Copyright Act of 1976. As a result, Marvel is free to continue to create additional derivative works such as movies and television series based on Jack Kirby's drawings at issue in the case.

"Copyright Termination" is the legal term for the right of an author to terminate any transfer of his or her interest in a copyrighted work. This includes any sale or grant of any rights in a copyright, including licenses, such as a literary purchase or option agreement for a screenplay.

The right to terminate a copyright transfer does not apply to works created as a "work made for hire", such as when a motion picture studio engages a writer to create or revise a screenplay (in which case the studio is the author of the literary work). However, the right to terminate a copyright transfer would apply to an underlying literary work, such as a treatment or screenplay, which the writer is hired to revise.

The issue of whether a work was created as a "work made for hire" can be hotly contested, and different tests apply depending upon whether the works were created before or after January 1, 1978, the effective date of the Copyright Act of 1976. The "old" Copyright Act of 1909 governs copyrights issued prior to January 1, 1978. The "new" Act governs copyrights issued on or after January 1, 1978.

Subject to some variations, copyrights governed by the old Act are generally protected for a total of 95 years under current law, assuming they are properly renewed. This includes an initial 28-year copyright term and a 67-year renewal term. On the other hand, copyrights governed by the new Act are protected for the life of the author plus 70 years.

For terminations, the key date is when the agreement you wish to terminate was entered into. If the agreement was executed before January 1, 1978, then the...