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Marvel artist Kirby's heirs lose appeal over copyrights

By Nate Raymond

NEW YORK (Reuters) - A federal appeals court ruled on Thursday that the heirs of comic book artist Jack Kirby had no rights to characters such as the Hulk and Fantastic Four that are now owned by Marvel Entertainment, a Walt Disney Co subsidiary.

The 2nd U.S. Circuit Court of Appeals upheld an earlier decision finding that creations amounted to "works made for hire" under the federal copyright laws and belonged to Marvel.

Kirby, who died in 1994, was an influential comic book artist, and fans closely associated him with the rise of Marvel Comics in the 1960s along with former editor and writer Stan Lee.

Kirby helped create iconic characters including the Fantastic Four, the Hulk, the X-Men, Captain America and Thor, many of which have become the subjects of recent blockbuster films.

Walt Disney Co bought Marvel for $4 billion in 2009. "Iron Man 3," the latest Marvel movie based on a character Kirby helped create, has grossed $1.2 billion worldwide since May, according to Box Office Mojo.

The lawsuit stemmed from documents Kirby's heirs served Marvel in 2009, claiming rights to works he created from 1958 to 1963, when he was a freelance artist and drew some of Marvel's most prized characters.

Marvel subsequently sued the Kirbys in January 2010, seeking a court ruling declaring they had no rights to terminate the company's rights to the characters.

U.S. District Judge Colleen McMahon in July 2011 ruled for Marvel, finding the works constituted works for hire under the Copyright Act of 1909.

In its ruling, the three-judge appeals panel upheld part of McMahon's decision.

"Marvel's inducement, right to supervise, exercise of that right, and creative contribution with respect to Kirby's work during the relevant time period is more than enough to establish that the works were created at Marvel's instance," U.S. Circuit Judge Robert Sack wrote.

The ruling follows other fights by comic book writers, artists and their heirs to reclaim the rights to famed comic book characters.

In June, the 2nd Circuit revived a lawsuit by former Marvel freelancer Gary Friedrich against the company over his rights to the motorcycle-riding vigilante character Ghost Rider.

Trial in that case was pushed back to December 16 while Marvel and Friedrich pursue mediation and hopefully achieve a resolution," according to an August 1 letter by a lawyer for Marvel.

Jeff Klein, a spokesman for Marvel, said in an email that the comic company was "gratified by the appellate court's definitive ruling that there is no legitimate basis to terminate our ownership of the copyrights at issue."

Marc Toberoff, a lawyer for the Kirbys, did not respond to requests for comment.

The case is Marvel Characters, Inc. v. Kirby, 2nd U.S. Circuit Court of Appeals, No. 11-3333.

(Reporting by Nate Raymond; Editing by Leslie Gevirtz and Ken Wills)

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