THE LAWYERS WEEKLY
May 7, 2010 | 9
COPYRIGHT
over
COMICS
BATTLES
REVERSIONARY INTERESTS
CREATE CHALLENGES
BOB
TARANTINO
A HANDFUL of individuals can
count on being called “King” — the
next heir to the throne of England,
for instance, or Elvis Presley. But for
aficionados of comic book art, only
one man earns the sobriquet: Jack
“the King” Kirby.
Co-creator of fictional legends
such as Captain America, the
Incredible Hulk and the X-Men,
Kirby is also widely regarded as one
of the most innovative and influen-
tial artists in the history of what is
referred to as “sequential art.” Kirby
passed away in 1994, but the trad-
itional proclamation, “The king is
dead; long live the king!” remains
apt: Kirby’s heirs are embroiled in
legal proceedings with Marvel Com-
ics, arguing that they are rightfully
the sole or joint owners of copyright
in various characters created by
Kirby. The heirs claim entitlement
to a share of profits earned from
various derivative works based on
those characters, a potentially vast
sum — gross revenues from just the
North American theatrical release
of the three most recent X-Men
movies exceed $600 million.
Twenty-five years
following the author’s
death, the copyright
interest in the
work reverts to the
author’s estate,
irrespective of any...
grants of rights which
purport otherwise.
MARVIN LAW FOR THE LAWYERS WEEKLY
the transfer to Marvel Comics is
possible, but if not, then the law
provides what is referred to as a
“reversionary interest.”
In 2009, the widow and daugh-
ter of Jerry Siegel, co-creator of
Section 14 of the Copyright Act
(Canada) contains a reversion
mechanism which is similar to that
found in the U.S. Copyright Act.
Under Canadian copyright law,
where the author of a work is the
first owner of the copyright interest
in the work, twenty-five years fol-
lowing the author’s death, the copy-
right interest in the work reverts to
the author’s estate, irrespective of
any licenses, assignments or grants
See Comics Page 14
Why popular
works warrant
weak copyright
protection
LUIS MILLAN
When Australian Federal Court
judge Peter Jacobsen ruled recently
that a famous flute riff from the hit
“Down Under” by the pop group
Men At Work plagiarized a popular nursery rhyme from the Girl
Guides, it underscored divisions
over the implicit and explicit role
that popularity should play in the
copyright debate.
In a ruling that marked the
end of a three-year legal battle,
Judge Jacobsen held that the riff
in the song, which topped the
charts in the U.K. and America in
early 1982, infringed on the copyright of “Kookaburra” because it
replicates a substantial part of
the song written by teacher Marion Sinclair.
While the ruling held strong to
the unstated position that popularity sometimes can and does
actually increase the protection a
work is afforded, not everyone feels
that such views should hold true in
the digital age.
“It comes down to conflicting
perspectives on the purpose and
nature of copyright interest,”
explained Carys Craig, a law pro-
fessor at Osgoode Hall who spe-
cializes in international intellec-
tual property law. “This is to
simplify it, but if the focus is on
reward for success or reward for
creating a valuable thing, then the
more successful it is, the more
popular it is, then the greater pro-
tections we would accord it. The
scope of the right then flows from
the value of the thing.”
Often it is an evidentiary issue,
adds Craig. The factual question of
whether the plaintiff’s works were
copied or were the source of the
defendant’s work is often resolved
in favour of the plaintiff when the
plaintiff is famous, or at least very
well known. Besides the “Down
Under” hit, Craig points to the
infamous case involving ex-Beatle
George Harrison, whose song “My
Sweet Lord” was held to be “sub-
consciously” plagiarized from a
song called “He’s So Fine,” recorded
by the Chiffons in 1962.
But there is another perspective
that makes a simple but counterintuitive argument—the most
