However, the right of copyright termination does not apply to work done for hire, and Marvel’s suit claims that Captain America’s creation was a collaborative effort by Simon, Jack Kirby and publisher Martin Goodman under conditions of work for hire.

Simon’s attorney Ross Charap told the Journal, "Joe says Jack did the pencilling at his direction and I have not seen any hard evidence to the contrary. Joe’s the only one left from that period, and there are no documents … In my view he was always a freelancer. You find that pulp houses didn’t have people on staff."

Simon last went up against Marvel to reclaim the character in 1968, when the property’s first 28-year term of copyright expired. Simon filed to extend the copyright in his own name, but did not have the 1978 law to back him up, and the case was settled out of court, with Simon giving up his claim to the character for an undisclosed sum. Marvel now points to that settlement as proof that Simon has no right to claim ownership. In its suit, Marvel seeks a judgment that Simon’s notice of intent to termination the Captain America copyright has no legal validity.