NY court: Marvel can keep Spider-Man, X-Men comics

NEW YORK -- Spider-Man, Iron Man and The Incredible Hulk can continue to reside in Marvel's offices after a federal appeals court on Thursday rejected an ownership claim by the children of an artist who helped create them.

The 2nd U.S. Circuit Court of Appeals in Manhattan agreed with a lower court judge who denied claims by the family of Jack Kirby, the legendary artist who died in 1994 and whose work spanned more than half a century.

Kirby's heirs in California and New York wanted to terminate Marvel's copyrights from 2014 through 2019 to comics published from 1958 to 1963.

Marvel Worldwide Inc. sued in January 2010 to prevent it, leading U.S. District Judge Colleen McMahon in July 2011 to conclude the work was done "for hire," a legal term that rendered the heirs' claims invalid.

She said the 1909 copyright law that applies to the case presumed that Marvel was considered the author and owner of Kirby's creations because the characters were made at Marvel's expense.

The appeals court agreed, saying that when "Kirby sat down to draw, then, it was not in the hope that Marvel or some other publisher might one day be interested enough in them to buy, but with the expectation, established through their ongoing, mutually beneficial relationship, that Marvel would pay him."

It added: "Kirby's completed pencil drawings, moreover, were generally not free-standing creative works, marketable to any publisher as a finished or nearly finished product. They build on pre-existing titles and themes that Marvel had expended resources to establish -- and in which Marvel held rights -- and they required both creative contributions and production work that Marvel supplied. That the works are now valuable is therefore in substantial part a function of Marvel's expenditures over and above the flat rate it paid Kirby for his drawings."

The appeals court traced the early history of Marvel, noting that it fell on hard times due to bad business decisions in the 1940s and 1950s but did well again after the release of the first issues of "The Fantastic Four" in 1961.

Other comics in the case included "The Mighty Thor," "The X-Men," "The Avengers," "Ant-Man," "Nick Fury" and "The Rawhide Kid."

In a statement, Marvel said: "We are gratified by the appellate court's definitive ruling that there is no legitimate basis to terminate our ownership of the copyrights at issue."

Lawyers for the Kirby family did not immediately return messages seeking comment.

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