COPYRIGHT TERMINATION - WATCH OUT FOR WORK FOR HIRE

I predict a continuing stream of litigation arising from the termination provision of the Copyright Act in coming years. In extremely bold strokes, the termination law permits authors of works, or their heirs, to terminate any transfer or exclusive license within certain time periods after the date of the grant. To terminate, an author or his heirs needs to give a prescribed form of written notice to the grantee within a certain window of time. Affected parties may dispute the timing and sufficiency of the termination notice, as well as whether the work at issue is eligible for termination. Works made for hire are not subject to termination.

An example of the type of litigation we may continue to see in the eligibility category is Marvel Worldwide v. Kirby . That case looks like it could be a battle royale concerning whether Jack Kirby’s heirs can terminate Marvel’s rights in certain comics, with mega law firms on both sides.

The Kirby heirs contend that Jack Kirby is the author of certain comics published by Marvel. Kirby is known as the creator of the fantastic Four, X-Men and the Incredible Hulk. The Kirby heirs served termination notices purporting to end Marvel’s rights to publish the comics. The Marvel companies contend that the comics at issue are works made for hire, which would make Marvel the “author” and prevent Kirby heirs from terminating their rights.

Work made for hire issues are often fertile ground for litigation. Disputes concerning termination rights are just another context in which such disputes may arise. 

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