Copyrights in Works For Hire

What can the Hulk, Spiderman and the X-Men teach us about copyrights? Well, artists and authors alike must understand the terms under which they are creating their works, or potentially lose any copyrights they, and their heirs, might otherwise enjoy. IP Law360 recently reported on Marvel Worldwide v. Kirby from the Southern District of New York, which underscores the importance of such understanding.

In short, a “work for hire” exists when an artist or author creates a work on behalf of, or commissioned by, another. Typically, this arises in an employer-employee situation when an artist or author creates a work in the regular course of employment. Copyrights under such circumstances generally belong to the employer.

The Marvel case concerned legendary comic book artist Jack Kirby, who in 1972 assigned to Marvel all rights he “may have or control” in any of the works he created for Marvel. Importantly, Kirby acknowledged that he had created the subject works “as an employee for hire” of Marvel in the 1960’s (when the Copyright Act of 1909 was in force). In 2009, Kirby’s heirs attempted to terminate these assignments based on the Copyright Act of 1976, which gives authors or heirs the right to terminate a prior copyright assignment 56 years after the date of the original copyright. Of note, the 1976 Act was enacted, inter alia, to address apparent flaws in the 1909 Act. While the heirs gave timely notice to Marvel, the Court ruled that the 1976 Act specifically excluded copyrights in a work for hire, which is what the Court determined Jack Kirby’s creations were pursuant to the 1909 Act.

The Court thus concluded that Kirby’s heirs cannot claim rights to these creations, because they were works for hire, and specifically exempted from the 1976 Act.

The Intellectual Property Department at Gibbons P.C. is available to counsel on copyrights and all other intellectual property matters.

Ralph A. Dengler, a former Director in the Gibbons Intellectual Property Department, and Todd M. Nosher, a former Associate in the Gibbons Intellectual Property Department, co-authored this post.
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