Copyright Law: Captain America Comic Artist Kirby Copyrights KO'd - SDNY

Captain America Comics #1 (March 1941) Copyright Marvel

In Marvel v. Kirby, 10 civ. 141 (SDNY July 28, 2011), District Judge Colleen McMahon of the Southern District of New York determined that Jack Kirby's artistic contributions to such characters as The Incredible Hulk, The Mighty Thor, Spider-Man, Iron Man, the X-Men and the Avengers were works for hire under the 1909 Copyright Act.

Accordingly, the Court found notices of copyright termination sent by Kirby's heirs to be invalid and granted summary judgment to Marvel based largely on the written testimony of Stan Lee.

The decision is detailed and interesting for students of comic books and those interested in the "instance and expense" test of the 1909 Copyright Act.

The complaint is here.  Decision below:


Marvel v Kirby McMahon Order 7 28 11

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SDNY: Copyright Transfer Termination Notices Subject California Copyright Heirs To Jurisdiction In New York

Kirby & Roussos Courtesy Wikipedia

In Marvel Worldwide, Inc. v. Kirby, 2010 WL 1655253 (April 14, 2010), SDNY Judge Coleen McMahon found that two defendants, heirs of comic artist Jack Kirby, submitted themselves to transactional jurisdiction under New York's long-arm statute by sending copyright transfer termination notices pursuant to 17 USC 304(c).   The decision discusses acts by non-domiciliaries that may trigger jurisdiction over foreign defendants for the purposes of being subjected to claims relating to the transaction in New York and uses the "minimum contacts" of International Shoe and Worldwide Volkswagen.

The Kirby heirs sent a notice of termination and Marvel responded with a declaratory judgment action.  The heirs moved to dismiss and simultaneously filed an action in California.   The court distinguished transfer termination notices from cease and desist letters which, if properly drafted and addressed (see Copyright Litigation Handbook Chapter 6) ordinarily (there are exceptions and murky case law), absent other contacts with the forum, should not, standing alone, subject the sender to personal jurisdiction in a foreign jurisdiction.

The Marvel v. Kirby decision does not discuss the copyright venue statute, 28 U.S.C. 1400 which provides:

§ 1400. Patents and copyrights, mask works, and designs

(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.

(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.