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Claiming an appeals court “unconstitutionally appropriated” Jack Kirby’s copyrights and gave them to Marvel, the late artist’s heirs have taken their fight with the comics publisher to the U.S. Supreme Court.
In a petition filed March 21, and first reported by Law 360, Kirby’s children argue “it is beyond dispute” that the artist’s Marvel work between 1959 and 1963 was not produced as “work for hire” and, therefore, is subject to a clause in the U.S. Copyright Act that permits authors and their heirs to reclaim copyrights transferred before 1978.
The appeal follows an August decision by the Second Circuit upholding a 2011 ruling that Kirby’s Marvel works were indeed made at the “instance and expense” — that term plays a significant role in the heirs’ petition — with the publisher assigning and approving projects and paying a page rate; in short, they were “work for hire.” As such, the courts found, the 45 copyright-termination notices the artist’s heirs filed in 2009 for such characters as the Avengers, the X-Men, the Fantastic Four and the Hulk were invalid.
However, the heirs insist the Second Circuit’s “instance and expense” test, which considers the amount of influence and money a company has in the creation of a work, is overbroad. (They take a shot at both Marvel and the Second Circuit, noting that although most of the Kirby children live in California, the publisher “raced to New York” to file its 2010 lawsuit against them “to take advantage of the Second Circuit’s presumptive ‘instance and expense’ test, which invariably finds that the pre-1978 work of an independent contractor is ‘work for hire’ under the 1909 Act.” Of course, Marvel isn’t alone in that; most companies in similar disputes prefer the Second Circuit to, say, the Ninth Circuit.)
Kirby family attorney Marc Toberoff, who also represents the estates of Superman creators Jerry Siegel and Joe Shuster in their epic battle with DC Comics, frame the problem with the “instance and expense” test in wide-reaching terms, arguing that this case is “of significant importance not just to the petitioners but to a substantial portion of the nation’s intellectual and artistic community.”
“Kirby, the creative genius who redefined an industry from a small drafting board in his basement, without financial security or any participation in the success of his creations, epitomizes the very author/publisher imbalance Congress sought to remedy in enacting the termination provisions,” the petition states. “If this unsupported, overbroad ‘test’ is left unchecked, the ‘work for hire’ exception will swallow the rule, and gut, as it did here, the vital termination interests of numerous authors and heirs as to a vast number of works.”
The U.S. Supreme Court accepts only 100 to 150 out of the more than 7,000 cases that it’s asked to review each year.