Bloomberg News

‘Incredible Hulk’ Copyright Belongs to Marvel, Judge Rules

July 28, 2011

(Updates with Kirbys’ lawyer comment in seventh paragraph.)

July 28 (Bloomberg) -- Walt Disney Co.’s Marvel Entertainment owns the rights to the Incredible Hulk and X-Men comic-book characters, a federal judge said, ruling against the heirs of the superheroes’ co-creator Jack Kirby.

The children of the late cartoonist didn’t have the legal right to terminate the comic-book publisher’s copyrights for the characters, U.S. District Judge Colleen McMahon in Manhattan said today in a court order. Marvel said it owned the rights because Kirby was an employee of the company.

“This case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters,” McMahon said in her order. “It is about whether Kirby’s work qualifies as work-for- hire under the Copyright Act of 1909.” The Kirby works “were indeed works for hire,” she said.

The decision affects the rights to the characters in movies as well as comic books. The 2008 Marvel-produced film “The Incredible Hulk” grossed $263.4 million worldwide, according to boxofficemojo.com. Burbank, California-based Disney bought Marvel last year for $4.2 billion.

“We are pleased that in this case, the judge has confirmed Marvel’s ownership rights,” Disney said in a statement e-mailed by Zenia Mucha, a spokeswoman.

In 2009, Kirby’s adult children sent 45 notices to Marvel to terminate license renewals for the characters in comics published from 1958 to 1963. Marvel sued in January 2010, seeking a judgment that the termination notices were invalid.

‘Intend to Appeal’

“We respectfully disagree with the court’s ruling and intend to appeal,” Marc Toberoff, a lawyer for the Kirbys, said in an e-mail. “Sometimes you have to lose to win.”

Kirby, who died in 1994, also created or co-created the Fantastic Four and the Avengers. His heirs said their father was a freelance artist paid by the page who received no benefits from Marvel. Stan Lee, who worked for Marvel as an editor, is credited as co-author of the Hulk.

Kirby’s adult children, Lisa, Barbara, Neal and Susan, asked the court to declare the termination notices valid because their father owned his work.

“The uncontroverted evidence shows that Marvel had no legal obligation to purchase Kirby’s artwork, and that Kirby, who worked out of his basement and paid for his own supplies, bore the financial risk of creation not Marvel,” they said in their motion for summary judgment.

Marvel said in court papers that Kirby granted the company rights to the characters in 1972 and that his children waited too long to make their copyright claims.

Freelance Work

Martin Goodman founded Marvel’s predecessor company, Timely Comics, in 1939, according to court papers. In the 1950s, after the U.S. Senate began hearings on the effects of comic books on children, the company fired its artists and had them submit art as freelancers working out of their homes, the Kirbys said in court filings.

Disney fell 12 cents to $39.40 at 4:15 p.m. in New York Stock Exchange composite trading. The shares have risen 5 percent this year.

The case is Marvel Worldwide Inc. v. Kirby, 10-00141, U.S. District Court, Southern District of New York (Manhattan).

--Editors: Andrew Dunn, Mary Romano

To contact the reporters on this story: Don Jeffrey in New York at djeffrey1@bloomberg.net; Chris Dolmetsch in New York federal court at To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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