Important, and saddening, also enraging, news: The US Court of Appeals for the Second Circuit has just issued a decision (dated today, August 8) reaffirming Marvel’s legal victory in the case of Marvel v. Kirby and rejecting the Kirby family’s appeal.
The text of the judgment, available here, declares that the original ruling against the Kirbys (rendered in July 2011 by the US District Court for the Southern District of New York) should stand because “the district court correctly determined that the works at issue [i.e. Jack Kirby's pioneering works for Marvel] were ‘made for fire’ under section 304(c)” of the Copyright Act of 1976.
I profess to no expertise in matters of law, but my opinion and my feelings on this issue, as stated on this blog, remain constant and intense, and my determination to boycott Marvel comics, films, and other products remains firm.
Here is the basic, bare-knuckle truth, not to be parsed out of existence by legal hair-splitting or the revisionist application of a law that postdates the works at issue: there is nothing in work-for-hire law that can account adequately for the facts of Jack Kirby’s foundational, indispensable, and still generative contributions to Marvel. The legal umbrella of work-for-hire is baldly, tragically, inadequate to the circumstances of Kirby’s work and of Marvel’s rise, and fundamentally inadequate to the imaginative gift that Kirby—none more so than Kirby, none more prodigally, more heroically, more inspiringly than Kirby—gave to Marvel. To call this gift work-for-hire is a basic insult, and blurs the truth of Marvel’s rise, enshrining company myth in the public record at the expense of historiographical accuracy and plain justice.
This is a sad, damaging, and infuriating decision. Work-for-hire law cannot begin to understand, to describe, the wealth of material that Jack Kirby brought to Marvel: the raw material of a story-world, a universe.
Go read the decision. And if you care at all about comics, hang your head.