Work-for-hire: the Kirby-Marvel cautionary tale

Alessandra Kelley · Aug 10, 2013

Alessandra Kelley said:
http://www.nytimes.com/2011/07/29/business/media/disney-wins-marvel-comics-copyright-case.html?_r=1&

Judge Colleen McMahon of the United States District Court for the Southern District of New York granted a summary judgment a week or so ago to Marvel Entertainment and the Walt Disney Company in the ongoing legal dispute between Marvel and the children of artist / writer Jack Kirby, who created many of Marvel's most iconic characters, including, as no doubt everyone here knows, the Fantastic Four, the X-Men, and the Incredible Hulk.

Kirby's work was work-for-hire. Everything he did was wholly owned by Marvel Comics, and if they chose to never give him a share of the very expansive profits his creations generated for them, they were fully within their rights by law.

Work-for-hire is supposed to be an arrangement where in return for relinquishing all rights to the work, the creator gets substantial benefits -- extra high pay, say, or health insurance or steady employment.

But it does mean that the employer is not obliged to give the creator anything else, ever, and owns the work and its copyrights.

I would recommend that anyone doing graphic or design work make sure that the contract is clear about whether the work is work for hire or not.

thothguard51 · Aug 10, 2013

Kirby not only did the artwork for Marvel, but he also wrote the storylines for some of the work. So the work for hire contract hit him double as an artist and writer.

Frank Frazetta did a lot of Fantasy art work during the days of pulp and early SF&F. Most of his artwork, was work for hire. But Frazetta kept his rights to his artwork, which are still on display in his museum. (Apparently his heirs are arguing over his artwork.)

Which goes to show that all artist; photogs, artist, writers, sculptors, etc all need to plan out how their intellectual property is to be handled after their deaths. Leaving it to children or family alone is not always sufficient to make sure the work is handled properly.

Gale Haut · Aug 10, 2013

I'm confused...

Judge McMahon provided a detailed review of the disputed Marvel works, and concluded that the Kirbys’ evidence did not make “so much as a dent” in the assertion that Mr. Kirby had worked for hire, and thus did not own the copyrights.

Huh? So they have to prove that he wasn't working for hire, not the other way around? My brain might not be working properly, but this sounds like a bias ruling.

CAWriter · Aug 15, 2013

Gale Haut said:
I'm confused...

Huh? So they have to prove that he wasn't working for hire, not the other way around? My brain might not be working properly, but this sounds like a bias ruling.

I think it was understood he worked for the company and therefore the work was the property of the company. They would have to prove it wasn't work for hire, the company doesn't have to prove it was (I think maybe that was already established; the family was trying to make a contrary case, so the burden of proving their case lands on them).

A friend of mine was the pen behind a huge, multi-million selling book. He got nothing from the first few million as he did it in the course of his job at the publisher. The author did eventually agree to let the writer's name be on the book and I think there might have been some additional sharing the success of the book, but that was at the good will of the author, it wasn't contractually (or even ethically) required.

aibrean · Sep 2, 2013

You don't have to state in your contract that it's not work-for-hire. Contractors by default are not work-for-hire. At least, that is what US Copyright law dictates. If you are an employee it is always work-for-hire.

Work-for-hire: the Kirby-Marvel cautionary tale

Alessandra Kelley

Sophipygian

thothguard51

A Gentleman of a refined age...

Gale Haut

waxing digital artistic

CAWriter

aibrean

Author, Designer, Imaginative Being