Robot 6

Jack Kirby’s heirs take Marvel copyright fight to Supreme Court

Jack KirbyClaiming 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.

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35 Comments

sadly Disney and marvel have already won. for there is no chance the justices will take and hear kirbys appeal. and even if they did odds are they would rule for disney and marvel any way.

@Kevin — Do you know what, in this case, may make the court’s instance and expense reading overbroad? I’m wondering what constitutes actual instance and expense and how interpretable it is. Does a company need to supply an office space and supplies and contract terms to make it theirs, or does money simply need to exchange hands? Or does nobody know and that’s why this is going to the Supreme Court?

@Jessie Post This case hasn’t gone to the Supreme Court yet. At this point, all that has happened is the the Kirby estate has asked the court to take the case. The court has to decide to accept the case, which is no sure thing.

@Jesse Post

No, you don’t have to have an office or anything. You just have to create something while under contract. It’s my understanding that the contracts back then weren’t as explicitly worded to explain this, but the fact still remains. If Marvel is paying you to make comic books, you’re making them FOR Marvel, unless you have a deal worked out otherwise.

Jesse, the argument is that, at least in this case, the role of the publisher/editors in the creation of the Kirby works is being oversold. However, I imagine the heirs are framing it as a much larger problem with the Second Circuit’s application of the “instance and extent” test — which, perhaps while not “invariably” as they state, but largely favors the publishers/studios, etc. — because that’s what will likely pique the interest of the Supreme Court.

“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.””

Marvel works out of New York, they publish out of New York, the alleged infringements of Kirby’s rights took place exclusively in New York, why would they be required to file in California just to suit the kids? Don’t these kids feel like they need to do ANYTHING AT ALL to earn this money besides hiring a lawyer?

“the role of the publisher/editors in the creation of the Kirby works is being oversold”

Keeping in mind that the Kirby heirs are attempting or have previously attempted to claim Spider-Man as a Kirby creation, this accusation is pretty laughable.

If this were Jack Kirby himself I’d be more sympathetic, but this just feels like his kids being greedy and trying to reap the benefits of their father’s work (no better than the corporation they’re fighting). What exactly would they do with the rights if they actually got them?

@Alex W
They would only have half. Stan Lee sold his half to the company long ago, and became a millionaire. Kirby and Ditko got dick.

When are both sides going to learn–co-own or go home!!!

akkadiannumen

April 3, 2014 at 8:27 am

Sigh… What a waste of time and money.

“What exactly would they do with the rights if they actually got them?”

They’d make a new deal with Disney-Marvel as soon as the lawyers found an empty room where they could talk.

Knut Robert Knutsen

April 3, 2014 at 8:32 am

The problem with the Kirby heirs saying that it’s “beyond dispute” that Kirby’s work was work-for-hire, is that technically and in the eyes of the law it’s the other way around.

There exists no written record, in the form of contracts, vouchers or letters, that affirms this as NOT work-for-hire. The only two people present in the room when any such deal was made were Stan Lee and Jack Kirby.

Jack Kirby made no statement that his work was not work-for-hire in a form that could be submitted to the court. He may have said something to that effect in conversation, but not “on the record”.

Stan Lee, however, has asserted quite firmly that there was never any talk of it being anything but work-for-hire.

In the absence of physical evidence to the contrary or testimony by Kirby himself, there is no way to impeach that testimony. His version is, in this case literally, beyond dispute.

Now the lawyers of the Kirby heirs provided some interesting circumstantial evidence and witness statements that strongly suggested that Kirby did a lot of work on spec, meaning that Stan Lee would get unsolicited (i.e. not at the instance of Marvel) pages of story, concepts and characters from Kirby that he was free to either accept and pay for or reject and not pay for (i.e. not at the expense of Marvel) .

Even Stan Lee’s brother was awitness for the Kirby heirs on this.

Had Kirby himself been available to contradict Lee’s testimony and assert that some of his work was made on spec, then that circumstantial evidence could have been sufficient to prove that the requirements for work-for-hire was not in place, due to mishandling by Stan Lee.

However, since Kirby knew (this has been referenced in many articles and interviews) that Stan Lee could not accept work on spec or in any other form than work-for-hire, but required the approval of Martin Goodman, even that might not be enough.

Even Stan Lee had to go to his bosses to get the okay to retain some rights on a very few projects. He had literally no power to approve of any arrangement that was NOT work for hire. Kirby knew that.

I think it’s doubtful that the Supreme Court will hear this case, and if they do, it’s probably to land on the other side of this: to more firmly establish work-for-hire.

The idea that the children deserve nothing because they didn’t create the characters is like saying they don’t deserve the family house they were raised in because they didn’t nail the boards together themselves. The idea that they’re simply greedy and money-grubbing is just unfair and disgusting.

@Alex W.

Jack and Roz started this fight for his property back in the 90′s (I think it began in 1992) and their children are seeing it through, unlike the Siegels where the family just wants the cash and the creator had already accepted numerous pay outs.

Darrell–Stan never sold them anything. He owned as much of those characters as Jack or Steve ever did. The only money he got from Marvel was from his own job and a salaried emeritus position.

“Darrell–Stan never sold them anything. He owned as much of those characters as Jack or Steve ever did. The only money he got from Marvel was from his own job and a salaried emeritus position.”

Unlike Kirby, Ditko or his other collaborators, Lee was a Marvel employee; as he himself states, he never owned a stake in the characters. However, in his later $1 million-a-year lifetime contract, Marvel included a waiver in which he gave up any claims to his co-creations.

“Stan Lee sold his half to the company long ago, and became a millionaire.”

No. Lee NEVER owned any of it. He made his millions by being editor in chief. He held something like the “chief creative officer” position that Joe Q and Geoff Johns hold today. He thrice offered Kirby a similar role (“artistic director”), but thrice Kirby turned it down.

But here’s an easy fix for everything: Just finally abolish the ridiculously lengthy copyright laws and make ALL of these characters PUBLIC DOMAIN.

Oh, I guess that would make too much sense.

Kirby’s heirs are just as greedy in their own way as Marvel is. A pox on BOTH their houses.

Bill Williamson

April 3, 2014 at 9:09 am

@ Darrell – What you said couldn’t be more inaccurate.

Firstly, Stan Lee didn’t have any rights to sell. All the work Stan did while he was head writer and editor was work-for-hire for Marvel, meaning that Marvel always owned the rights. The same goes for anything Ditko or Kirby (or anyone else) did. They didn’t have such things as creator-owned projects back then.

Secondly, I don’t know if Stan is indeed a millionaire, but he makes far less money off of Marvel properties than people seem to think. I don’t think he gets paid royalties, he certainly didn’t get any when the books were coming out and selling very well and he certainly didn’t get any for The Avengers movie when that came out. All the money Stan has made from Marvel comes from both his tenure at the company, his position as Marvel’s public face and from his creator cameos that he makes in all the movies.

akkadiannumen

April 3, 2014 at 9:23 am

@Zomburai!: ahh… it’s nice to see the old apples and oranges comparison is still alive and healthy. The simple fact is Kirby’s heirs ARE after money (do you think they’re doing this because they love comics and want to publish them the right way? Heh…). Money which Kirby himself, if alive, would have no clear legal claim to in the best case.

If you are an ethical person, don’t give Marvel your money until they give the Kirby’s their rightful due.

Talmidge Mcgulliger

April 3, 2014 at 9:39 am

“If you are an ethical person, don’t give Marvel your money until they give the Kirby’s their rightful due.”

I believe Jack’s family should get something, but if you’re going to go that far you should also include DC for what they did to Finger and Robinson. Not to mention all movies made by Warners, Universal, and Fox for what they did to Buster Keaton, Harold Lloyd, Orson Welles, Dalton Trumbo, and probably a few dozen others. There are not a lot of clean hands in mainstream entertainment and in all reality what Marvel did to Jack is on the extremely low end of screwing over talent.

Talmidge Mcgulliger

April 3, 2014 at 9:43 am

Well, maybe not extremely low end but still,

I don’t buy DC Comics for thr exact same reason as well. Image, Dark Horse and independents all day. And I didn’t know that those movies guys creatively founded those other corporations.

It should be interesting to see how this one turns out.

Maybe it could set a precedent.

akkadiannumen, I fail to see how it’s an apples to oranges comparison at all. Intellectual property is just that — property, and Kirby’s heirs (or Siegel’s, or Shuster’s) have a right to pursue it if they feel it rightfully and/or legally belongs to them, and there are a million different reasons that they might feel that way. The sheer vitriol that some throw at them, or claims that they don’t deserve the ownership because they never worked on it themselves … basically, a lot of the opinions that get tossed out when news breaks on this issue I *really* take issue with.

For what it’s worth, I think Marvel legally has its ass covered, and I very much doubt that there’s any chance that Marvel/Disney relinquishes any stake in ownership on any of its characters. I just think it’s wrong to think of them as trying for the world’s most expensive cash grab until and unless there’s good reasons to believe that.

“do you think they’re doing this because they love comics and want to publish them the right way?” … I dunno. Anybody asked them? Or are we just putting words in their mouths?

From how this post on CBR reads it will surely set a precedent. Thankfully the Kirby heirs will get some kind of settlement. What’s fair is fair folks.

That’s IF the Court agrees to hear the case, and IF they find for the heirs, Emil.

Why do they deserve anything? Imagine what they could have created had they spent half as much time working on something as they have on suing someone. I would be ok if Jack was suing but its not him its his kids and their kids. They don’t deserve anything.

@jheintz: If Kirby did, indeed, have a legal claim to those characters

… I hate my phone sometimes.

As I was saying, if Kirby ‘ s estate had a claim to those characters, why WOULDN’T his heirs deserve them? Property is handed down to successive generations, whether it’s money, items, real estate, or IPs.

I don’t feel Kirby ‘ s estate does have that claim, but obviously his family has a different opinion.

doc cunningham

April 3, 2014 at 3:44 pm

Rumour has it that the Kirby family intends on sharing the financial settlement with other Marvel “employees” of the Kirby years. 50% of the remaining funds will go to the Jack Kirby Foundation for the Visual Arts. Of course this info came to me two days ago…

There’s no way the SC would hear this case or rule in the family’s favor if they even did-they are corporate puppets.

Disney/Marvel would be smart to cut a good deal with Kirby’s kids.

I love when people write the kids are being greedy.
If u only knew how many trust fund heirs are out there doing nothing except counting money.
Should they not have and want money their parents had or should have?
Kirby was king and his kids deserve it

Knut Robert Knutsen

April 4, 2014 at 3:54 am

I certainly get a bad taste in my mouth when I hear people saying the heirs don’t “deserve” anything. That’s not the issue. “Deserving” is a moral judgement, not a legal one. If Kirby had a legal right here, then so do his heirs.

There is no reason to think the heirs are any less “morally deserving” than any Marvel shareholder when it comes to profiting from Kirby’s work.

The only room for moral judgement would be if people thought the heirs were making stuff up to bolster their legal argument. But I don’t think anyone believes that the testimony in their favour, by people like Mark Evanier and Larry Lieber, was perjury.

Did they pursue a case when they had too little evidence to prove it satisfactorily? A Hail Mary pass to maybe get a settlement? Possibly. That doesn’t mean they didn’t believe in the case, only that they failed to prove it.

While I see no way this case can or should (legally speaking) be resolved in favor of the Kirby Heirs, I did find the argument compelling: That Stan Lee treated Kirby’s work like spec work that could be approved or rejected on delivery, where he would receive work he had never discussed and was free to accept or reject (thus removing “instance and expense”).

But it is an argument that could only have succeeded when Kriby was alive.

If, however, any other artists at the time worked under similar conditions and are able to testify to that fact and provide similar supporting testimony, they might have a case. Unfortunately the only people who might reasonably be surmised to have had such working conditions with Stan are either dead or Steve Ditko.

So, no lawsuit, then.

I sincerely doubt this will go to the Supreme Court, and if it does, the chances of it being resolved in favor of Marvel are so strong that Disney’s legendary ruthless lawyers won’t see it as a reason to settle, but rather as an opportunity to strengthen the defenses of corporate IPs.

Bill Williamson

April 4, 2014 at 9:24 am

I can certainly see the pro-corporate side here. People are concerned that if this lawsuit is successful, rights issues could make things complicated with regards to Kirby’s characters continuing to appear in current Marvel Comics. People are resentful because they think the Kirby family is going to screw up ‘art’ just so they can make money.

But, like people have said, Kirby’s heirs deserve just as much of the pie as Kirby did. Marvel and DC make billions off of Kirby’s work. Kirby barely saw a penny of that money. If he were still alive people would have no qualms about him suing Marvel for his fair share, why should it be any different for his children and grandchildren?

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