NY judge: Marvel wins Spider-Man, X-Men lawsuit

By LARRY NEUMEISTER - Associated Press Writer | AP

NEW YORK (AP) — Spider-Man, X-Men, Iron Man and The Incredible Hulk can save the world from evil through superhuman feats, but it took a federal judge Thursday to decide who legally owns the rights to their lucrative characters.

U.S. District Judge Colleen McMahon ruled that they and other Marvel Worldwide Inc. superheroes will remain the property of the company, despite claims by heirs to the artist who played a key role in creating them that they are entitled to the copyrights.

The Manhattan judge cited statements made by artist Jack Kirby before his 1994 death to support her finding that his creations must remain Marvel's property.

She noted that he said in a 1986 affidavit that he did his work at a time when it was common practice that vested ownership of his creations belonged to the company that paid him to draw. She said he also signed a written agreement in the spring of 1972, well after the creation of the characters, admitting that he was not entitled to retain ownership of the work.

Marvel filed a federal lawsuit in January 2010 seeking to invalidate 45 notices sent by Kirby's heirs to try to terminate Marvel's copyrights, effective on dates ranging from 2014 through 2019. The comics were published between 1958 and 1963. Those at issue in the case included The Fantastic Four, The Incredible Hulk, The Mighty Thor, Spider-Man, Iron Man, The X-Men, The Avengers, Ant-Man, Nick Fury and The Rawhide Kid.

Marvel had said the work was done "for hire," a legal term that would render the heirs' claims invalid. McMahon said the plain language of contracts she reviewed made it clear that all of Kirby's work for publications owned by Marvel was work for hire. 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.

McMahon said the case had parallels to one involving a book about Gen. Dwight D. Eisenhower's account of World War II. A federal appeals court concluded in that case that the book was created at the expense of the publisher and thus was a work for hire.

"Like Eisenhower, Kirby took on none of the risks of the success of the many comic books he helped produce. His contribution to the enterprise was plainly critical, but Marvel, not he, bore the risk of its failure," she wrote.

A lawyer for the Kirby family did not immediately return a telephone call for comment. Kirby is survived by his wife and their four children.

In a statement, The Walt Disney Co., which purchased Marvel in 2009, said: "We are pleased that in this case, the judge has confirmed Marvel's ownership."

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Follow Larry Neumeister at http://twitter.com/Lneumeister

Legal Battles Over E-Book Rights to Older Books

By MOTOKO RICH

Published: December 12, 2009

William Styron may have been one of the leading literary lions of recent decades, but his books are not selling much these days. Now his family has a plan to lure digital-age readers with e-book versions of titles like “Sophie’s Choice,” “The Confessions of Nat Turner” and Mr. Styron’s memoir of depression, “Darkness Visible.”

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William Styron in 1983.

Related

The Letter From Mr. Dohle (pdf)

But the question of exactly who owns the electronic rights to such older titles is in dispute, making it a rising source of conflict in one of the publishing industry’s last remaining areas of growth.

Mr. Styron’s family believes it retains the rights, since the books were first published before e-books existed. Random House, Mr. Styron’s longtime publisher, says it owns those rights, and it is determined to secure its place — and continuing profits — in the Kindle era.

The discussions about the digital fate of Mr. Styron’s work are similar to the negotiations playing out across the book industry as publishers hustle to capture the rights to release e-book versions of so-called backlist books. Indeed, the same new e-book venture Mr. Styron’s family hopes to use has run into similar resistance from the print publisher of “Catch-22” by Joseph Heller.

On Friday, Markus Dohle, chief executive of Random House, sent a letter to dozens of literary agents, writing that the company’s older agreements gave it “the exclusive right to publish in electronic book publishing formats.”

Backlist titles, which continue to be reprinted long after their initial release, are crucial to publishing houses because of their promise of lucrative revenue year after year. But authors and agents are particularly concerned that traditional publishers are not offering sufficient royalties on e-book editions, which they point out are cheaper for publishers to produce. Some are considering taking their digital rights elsewhere, which could deal a financial blow to the hobbled publishing industry.

The tussle over who owns the electronic rights — and how much the authors should earn in digital royalties — potentially puts into play works by authors like Ralph Ellison and John Updike.

Some publishers have already made agreements with authors or their estates to release digital editions. All of Ernest Hemingway’s books, for example, are available in electronic versions from his print publisher, Scribner, a unit of Simon & Schuster.

But with only a small fraction of the thousands of books in print available in e-book form, there are many titles to be fought over.

“This is a wide open frontier.....[more at http://www.nytimes.com/2009/12/13/business/media/13ebooks.html#]

A version of this article appeared in print on December 13, 2009, on page A1 of the New York edition.
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And people ask why I publish my own works. Yes, it's work and like a voice crying in the wilderness all alone; but, it's my voice. And autonomy and independence and knowing my titles aren't ignored or pulled out of rotation for no apparent reason except boredom in waiting for the BIG NUMBERS by "my publisher" for a huge, star customer other than myself--I'm my own star!--is worth the sleep at night.--Neale Sourna