They tried again, but they did not succeed. Today the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby were denied their recent petition to the 2nd Circuit Court of Appeals for a rehearing or a full rehearing en banc on whether the estate had the right to issue termination notices to Marvel on his characters back in 2009. The brief order (read it here) from the panel at the NYC-based federal court comes just more than two and a half months after the appeals court shut down the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling that the comic legend was under a work-for-hire deal and hence had no rights to terminate. Four years ago, Lisa Kirby, Susan Kirby, Barbara Kirby and Neal Kirby sent 45 notices terminating copyright to publishers Marvel and Disney, as well as film studios including Sony, Universal, 20th Century Fox and Paramount Pictures that have made movies and TV shows based on boatloads of characters Jack Kirby created or co-created with Stan Lee and others. Jack Kirby died in 1994.

The termination notices were sent out under the provisions of the 1976 Copyright Act. At the time, Marvel and Disney said the family simply had no rights to terminate but tried to find an arrangement with the heirs. After attempts to strike a deal faltered, they sued the Kirbys on January 8, 2010, to invalidate the notices. Marc Toberoff, who also represented the heirs to the Superman creators in their long legal copyright battle with Warner Bros, served as the Kirbys’ attorney.

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