Marvel Characters, Inc. v. Kirby

726 F.3d 119 (2013)

Quick Summary

Marvel Characters, Inc. (plaintiff) and the heirs of Jack Kirby (defendants) disputed over copyright termination rights concerning Kirby’s drawings. The central issue was whether these creations were ‘made for hire.’

The Second Circuit Court found that two heirs could not be subjected to personal jurisdiction in New York and vacated the judgment against them. However, it upheld the ruling that the works were made for hire as to the other heirs.

Facts of the Case

Jack Kirby, a renowned freelance comic-book artist, created numerous drawings for Marvel Comics (plaintiff) from 1958 to 1963. After his death, his children—Susan, Neal, Barbara, and Lisa Kirby (defendants)—served Marvel with termination notices under copyright law, aiming to end Marvel’s rights to Jack’s works and reclaim them.

Marvel contested this move, arguing that Kirby’s works were made for hire and thus not subject to termination rights. The case pivoted on the nature of Kirby’s relationship with Marvel during the years in question and whether his creations were indeed made for hire.

Procedural Posture and History

  1. Jack Kirby’s children issued termination notices to Marvel Comics under copyright law.
  2. Marvel filed a lawsuit seeking a declaration that Kirby’s works were ‘made for hire’ and thus not subject to termination rights.
  3. The district court granted summary judgment in favor of Marvel, leading to the appeal by Kirby’s children.

I.R.A.C. Format


Whether Jack Kirby’s comic book drawings created for Marvel Comics constitute ‘works made for hire,’ thereby negating his heirs’ termination rights under copyright law.

Rule of Law

Works made for hire are created within the scope of employment or specifically ordered or commissioned for certain types of work. Copyright termination rights do not apply if a work is deemed made for hire.

Reasoning and Analysis

The court analyzed the ‘instance and expense’ test to determine if Kirby’s works were made for hire. Despite Kirby’s status as a freelancer, evidence suggested a close affiliation with Marvel during the relevant period. Stan Lee assigned Kirby a steady stream of projects, and Kirby had significant creative input in their execution.

The court also addressed personal jurisdiction issues concerning two of Kirby’s children who resided outside New York, ultimately concluding that they were not subject to personal jurisdiction in New York.


The judgment was vacated concerning Lisa and Neal due to lack of personal jurisdiction. The court affirmed the judgment as to Susan and Barbara, concluding that the works were ‘made for hire’ and not subject to termination rights.

Key Takeaways

  1. The ‘instance and expense’ test is crucial in determining whether a work is ‘made for hire.’
  2. Personal jurisdiction is required for a court to impose a judgment against a defendant.
  3. The sending of termination notices under copyright law does not alone establish personal jurisdiction in New York.

Relevant FAQs of this case

What factors determine a work to be 'made for hire' under copyright law?

The determination hinges on whether the work was created within the scope of employment or if it was specially ordered or commissioned for use in certain categories, such as a contribution to a collective work or as a motion picture. The creator must also be an employee or agree in writing that the work is made for hire.

  • For example: An illustrator creates characters for a children’s book after signing an agreement that explicitly states the drawings are ‘made for hire’ for the publishing company.

How does personal jurisdiction affect a court’s ability to enforce judgments?

A court must have both subject-matter jurisdiction over the case and personal jurisdiction over the defendants to issue binding judgments. Personal jurisdiction is based on the defendant’s connections with the forum state, ensuring fair and reasonable legal proceedings.

  • For example: A small business owner in Texas may not be sued in Maine unless they have substantial ties, such as regularly conducting business or having a physical presence in Maine.

What are copyright termination rights and when can they be exercised?

Copyright termination rights allow authors or their heirs to reclaim rights previously granted to publishers or other entities after a specific time period, usually 35 years after the grant. However, this does not apply if the work is made for hire.

  • For example: A musician who sold rights to their songs in the 1980s might serve notice to regain control over their music three and a half decades later, provided they retained termination rights initially.


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