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August 4, 2011 / gavinlaw

Fantastic Four, Captain America, Thor, Iron Man, X-men, the Hulk, and the Avengers: All Products of Work for Hire

by Tony Guo

In a previous blog we discussed the interaction between “work for hire” and copyright laws. The results of a “work for hire” agreement may have unforeseen consequences for the artist. One of the saddest stories in this genre is Jack Kirby’s.

Jack Kirby helped design the Fantastic Four, Captain America, Thor, Iron Man, X-men, the Hulk, and the Avengers for Marvel Comics. He left Marvel over working conditions. Before leaving he created many of Marvel’s most famous superheroes and villains. He created them however under a “work for hire” agreement. The Federal Court denied Kirby’s heirs of any copyrights to his creation at Marvel. The decision by Judge McMahon was a lengthy one. Within the fifty page commentary was the Court’s ruling that Kirby’s superheroes were indeed covered by a “work for hire” agreement.

Judge McMahon was careful with her words and set the moral issue apart from the legal issue: “Contrary to recent press accounts, this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruit of their labor.”

The legal issue was not difficult to understand. The burden of proof rested with the plaintiff (Kirby’s heirs) to prove that the creations were not “work for hire.” Unable to meet this bar, Kirby heirs were out of luck. Had Kirby still been alive, there may have been greater media support and pressure for Marvel to settle.

The real issue is the money Kirby’s estate lost. Assuming a 1 percent royalty on all movie productions the breakdown must be unnerving for Kirby’s estate.

Title Gross Date 1 Percent

X Men: 157,299,717 (USA) (19 November 2000) 1.57 million
X 2: 214,948,780 (USA) (21 September 2003) 2.15 million
X-Men Last Stance: 234,360,014 (USA) (24 September 2006) 2.34 million
X-Men Origins: 179,883,016 (USA) (27 September 2009) 1.80 million
X-Men First Class: 144,210,364 (USA) (24 July screen 2011) 1.44 million
Thor: 437,077,239 (Worldwide) (30 June 2011) 4.37 million
Hulk: 245,284,946 (Worldwide) Most Recent 2.45 million
Incredible Hulk: 263,427,551 (Worldwide) Most Recent 2.63 million
Iron Man: 318,298,180 (USA) (28 September 2008) 3.18 million
Iron Man II: 312,057,433 (USA) (15 August 2010) 3.12 million
Fantastic Four: 330,120,875 (Worldwide) Most Recent 3.30 million
FF Silver Surfer: 131,920,333 (USA) (14 October 2007) 1.32 million
Captain America: 65,058,524 (USA) (24 July screen 2011) .65 million
Avengers: ???,???,???

Counting only recent movies (2000 and later), Kirby’s estate could produce its own Marvel movie (we probably know who the villain would be). The most glaring statistic is that Marvel made five X-men movies. Marvel made two Hulk movies (strange considering that first one was a disaster), two Fantastic Four movies, two Iron Man movies, and it would not be surprising if they produced another Thor or Captain America movie.

With copyright power, Kirby’s estate could limit the “dilution” of his characters. With a new Avengers movie on the docket and the recent flood of superhero movies, we can look forward to future movies such as: X-Men Origins Gambit; X-Men Teenage Times; The Really Incredible Hulk; Fantastic Four Galactic’s Revenge; Loki’s Love Story; and Avengers II featuring Spiderman and Wolverine.

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