Supreme Court to decide next week whether to hear Kirby case
The U.S. Supreme Court will debate in a private conference on May 15 whether to weigh in on the five-year copyright battle between Jack Kirby’s heirs and Marvel/Disney, Deadline reports.
The odds are against the artist’s children, as the Supreme Court receives about 10,000 petitions each year, but hears oral arguments in only about 75 to 80 of those cases. However, if the Justices decide to take up the case, oral argument will be scheduled later this month for the court’s next session.
The Kirby family filed a petition with the high court on March 21 arguing “it is beyond dispute” that the artist’s Marvel output 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 rights transferred before 1978.
That appeal followed an August decision by the Second Circuit upholding a 2011 ruling that Kirby’s Marvel works were indeed made at the publisher’s “instance and expense” and, therefore, fell under “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 Incredible Hulk were invalid.
However, the heirs, who are represented by attorney Marc Toberoff, 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 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.”
Deadline notes that Disney attorney R. Bruce Rich opted not to file a response to the Kirby family’s petition.