72 Am. U. L. Rev. 657 (2022).

Download PDF Here!

Abstract

From Spider-Man to Ms. Marvel, superheroes are beloved by many, but owned by the few. Marvel Entertainment retains the copyright to iconic characters such as these, despite the fact that Marvel’s employees did not create them. These characters were created by freelance artists Jack Kirby, Steve Ditko, and Lawrence Lieber, among others. Yet, the Second Circuit ruled in Marvel Characters v. Kirby that these freelance artists have no claim of copyright over their own masterful works. The Second Circuit relied on the instance and expense test for copyright, as opposed to the Supreme Court’s leading copyright decision, Community for Creative Non-Violence v. Reid. The former generally benefits publishing houses; the latter provides a thorough analysis into twelve factors surrounding the artist’s relationship with the hiring party, the nature of the disputed work, the method of payment, etc.

The artists are back in court to fight for the copyrights to these beloved characters. This Comment argues that Reid effectively overruled the instance and expense test, and that Lieber and Ditko’s pending cases should be decided in accordance with the Supreme Court’s twelve-factor analysis. In the alternative, the cases should be decided under the doctrine of conventional employment, which was the controlling test for works made for hire during the relevant time period.

* Editor-in-Chief, American University Law Review, Volume 72; J.D. Candidate, May 2023, American University Washington College of Law; B.A., International Relations and Political Science, magna cum laude, May 2020, State University of New York at New Paltz. It has been my honor and privilege to lead the American University Law Review, and I am humbled to also be an author in this publication. Alhumdolillah.

I would like to thank my Law Review editors, Luke Hancox, Rebecca Dresner, and Ryan Kaiser, for their unwavering support throughout the writing process. I would also like to thank my sisters for consistently believing in my abilities and empowering my ambitions. Most significantly, thank you to my Mom and Dad for their prayers and for giving me my love of superheroes—by showing me what they looked like.