Pow! Biff! Bam! Copyright dust-up over superhero rights

Residents of Metropolis take note… your illustrious superhero is the subject of an American copyright dispute on course for the federal court in ‘downtown’ Manhattan.  Even Superman may be powerless to stop this battle, which has broken out between comic book publisher, Marvel Entertainment LLC, and the heirs of Jack Kirby (long-time Marvel artist and responsible for creating many superhero favourites).

In September 2009, the heirs to Kirby’s estate sent 45 notices to Marvel seeking to terminate purported assignments by Kirby of copyright interests in some of Marvel’s most famous characters, including the Fantastic Four and X-Men.  Kirby’s heirs say that between 2014 and 2019 various rights will revert to them.

Marvel maintains that, as Kirby produced the works at its “instance and expense”, the works were “made for hire” under US copyright law.  As a result, Marvel says that it owns all copyright in the characters.  Last month, Marvel filed a suit in New York seeking a declaration that the heirs’ termination notices were invalid.

It’s interesting to consider how such a dispute might play out in Australia.  Of course, as a starting point, our Copyright Act 1968 (Cth) says that the ‘author’ of a work owns copyright in it.  Kirby is clearly the ‘author’ in this scenario.  However, in line with basic labour law principles, the Act provides that a work made under a ‘contract of service’ (an employment relationship) gives rise to the employer owning copyright in it.  Works produced pursuant to a ‘contract for services’ (a contractor relationship) are generally owned by the author.  Importantly, though, this general principle can be modified by agreement.  The dispute between Marvel and Kirby’s heirs is a reminder that a clause dealing with ownership of intellectual property is paramount in all agreements, particularly where the relationship between the parties is not entirely clear.

It’s also worth noting that our Act contains a special provision on ownership of copyright for both literary and artistic works produced under a contract of service in a “newspaper, magazine or similar periodical”.  In short, the section says that, while the general principle that the employer will own copyright still applies, the author will have limited ownership rights, but only in relation to the reproduction of the work for inclusion in a book or as a photocopy.

The question which remains, though, is whether a Marvel comic book would come within the definition of “magazine” or even “periodical”.  On the one hand, there is no definition of either term in the Act and commentators have suggested that ordinary dictionary definitions should apply.  On the other hand, it is clear that Parliament’s intention in enacting (and amending) this provision was to protect the interests of journalists.  Is the author of Superman a ‘journalist’?  Probably not.

We’ll be sure to keep you updated.  Until next time, Superman fans…

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