Robot 6

Supreme Court to decide next week whether to hear Kirby case

kirby-kirby4heroesThe 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.



sadly odds are the justices will turn down the thing and disney and marvel will have complety denied kirby some of the fortune for the legacy he helped create. for other then captain america marvel will and can say that all the characters kirby helped create are work for hire.

Work for hire.

Even if the Supreme Court does decide to pick up the case, I can’t imagine it boding well for the Kirby’s, or for any creative artist out there.


Marvel isn’t denying Kirby anything. They paid him to do a job, and he did it. Sure, it would be great if he could have been rich, but that’s not how it worked out. As for legacy, he’ll forever be remembered as one of the best around, and that’s largely thanks to the Marvel work he did and the fact that they continue to showcase his work.

This is simply his family trying to take something that isn’t theirs to take. It’s very unlikely that the Supreme Court will hear this, and it’s even less likely that they’d rule in the Kirby family’s favor.

Although I have great respect for Jack Kirby, I think this should just be dropped. Were it Kirby himself making the claim, I would support it 100% as it was himself doing the work. His children filing though, perhaps with the support of a lawyer who won’t see a dime unless they win, that is where I have the problem.

Kirby is without doubt one of the most influential artists in this medium. His acknowledgements are already present and all those who know the medium know of his influence. Instead of making his estate look bad for trying to recoup the monies “owed” (which the courts already determined are not owed), the focus of his estate should be to ensure that his name and legacy continue to showcase what he brought to the table.

Kelly, Kirby himself DID get the ball rolling on this claim long before he died. After his death, his wife, Roz, took over and then their daughter took it up after Roz’s death. They’ve been battling Marvel (and now Disney) for decades.

“His children filing though, perhaps with the support of a lawyer who won’t see a dime unless they win, that is where I have the problem.”

I seriously doubt the lawyer has been working this long on a case he is this unlikely to win purely on contingency. I’d sooner believe that he is milking the family out of the money they do have with the promise of money they will never ever get.

I take issue with people saying his kids shouldn’t have a claim to what he might or might not be owed. Generally speaking, if you are working on something and building something you’re absolutely doing it to better your family. A family has to sacrifice if their dad can’t go on vacation, doesn’t have the time to play catch, and b/c he’s working all the time providing for them. If something is owed to their parents…children are absolutely entitled to it. Saying if he was alive it’d be OK, but he’s dead so they are owed nothing makes zero sense. If he would have gotten paid the day before he died who do you think would have been entitled to his estate? Plus, tying things up in court becomes a reward system within itself if the claim died when the person suing did.

Also, the country’s government has a tendency to protect to the crap out of Disney when it comes to copyright laws.

The Kirby family absolutely has every right to stake a claim and it would be very honorable if Disney/Marvel gave them their cut. Unfortunately they have to fight for it.

This whole nonsense about work for hire is ridiculous. The contracts back then were designed to rip off the artists who were barely scraping by to feed their families. Kirby created entire worlds for both Marvel and DC they they use to this day to generate billions.

This isn’t about some no good kids trying to cash in. Kirby himself tried getting what was his but never got the chance.

“he’ll forever be remembered as one of the best around, and that’s largely thanks to the Marvel work he did and the fact that they continue to showcase his work.”

No. He’ll be remembered because he worked his butt off and was a brilliant creator and artist. Not because they showcase his work. They don’t showcase his work, they exploit it and rape it and barely give him credit in their movies and in the books.

And if your family isn’t heir to your legacy then who is? Greedy lawyers who never read a comic or studio execs barely old enough to even know who Kirby is? The studios make billions- the least they can do is pay the Kirby’s what they deserve.

Scott St. Pierrre

May 6, 2014 at 10:42 am

I agree with Nick Pitarra, because he’s a sexy man-beast.

Dalton Munnal

May 6, 2014 at 10:53 am

Jack Kirby deserves respect, and nothing more. He signed the contract that he signed, and you’re not going to convince the courts that he is owed more than he agreed to being owed. Is it a shame that he (well, his family now) are not benefiting from his substantial contributions to one of America’s only original art forms? Sure. Should we correct it by tarnishing the very meaning and point to a contract? Hell no.

“I seriously doubt the lawyer has been working this long on a case he is this unlikely to win purely on contingency. I’d sooner believe that he is milking the family out of the money they do have with the promise of money they will never ever get.”

Lawyers work on contingency precisely because they think they can win — and in this case, and in those involving the Siegel and Shuster heirs, Toberoff clearly believed that he could. To the best of my knowledge, Toberoff is indeed working on contingency (likely in the neighborhood of 30 percent); I doubt the Kirby children could afford his services for this long otherwise.

You know what, just over ALL of Kirby’s original artworks in Marvel to the Kirby family. And in terms of royalties, I hope that the Supreme Court will finally resolve this litigation once and for all.

Can Marvel/Disney sue the Kirby Family for all the characters that lost money if it was not work for hire?

Andrew Breneman

May 6, 2014 at 11:57 am

Whether or not someone has impacted culture is largely irrelevant. How many famous painters are getting royalties for paintings they did a few hundred years ago that go to their families Just because they did them?
That is without a contract. Kirby had a contract which specifically gave up his right to such things.

Saying someone who has no legal foothold should be entitled to X when there are legal documents saying they are not is only slightly different than the classical artists comment – it assumes that the artist in question is somehow more influential than those other Late Greats. Thus this becomes more of a “Art snobs versus big business” thing.

While I love Kirbys work, after he died I had no inkling of a thought about the money I spent/spend on things he has done needing to go to his heirs OR that he is somehow owed money for comics he had no part in after he finished his work.

Harry Lucey was a great Archie artist but that doesn’t mean people would be more likely to recognize him over Dan Decarlo.

@Nick Pitarra

I totally agree that saying “if he was alive this would be ok” makes no sense. But that’s not what this is about. Even if he was alive, the court would likely still say the same thing. Kirby’s work was obviously to provide for his family, but if the contract was work for hire, it was work for hire. The work he did was great – unparalleled, even; that doesn’t mean he owns it, though.


The contract may have been designed to rip him off, but that just makes 1960s Marvel mean/greedy/whatever-you-want-to-call-them business men. However, this is a legal debate, not a moral one. Marvel said “Jack, we’ll pay you to draw these comics for us” and he drew them. Full stop.

Sure, Marvel owes a lot of thanks to Kirby, and they could (even SHOULD) surely pay his family a lot of money in thanks. But they’re by no means required to.

A case like this has already happened and the person who did the creating won.

The person who created the Nike logo did it as “work for hire” but since it’s become a huge thing that they’re known for the logo creator won, this isn’t to far from that.

Jason Madwell

May 6, 2014 at 2:18 pm

If Kirby was alive to plead his case, his chances would be slim. A bad contact is still a contract and was comparable to other contracts of its time. He may have created, wrote, and drew more than what he gets credit for, but he never owned anything. At no point did he ever pay a salay to himself. Somebody else was always paying his salary.

I do not blame the family though. Toberoff is the ambulance chaser of the comic book world.

@Arcke –

Either you’re talking about a different logo, or you’re misremembering things. From everything I can find, Carolyn Davidson (creator of the Nike Swoosh in 1971) was paid $35 for her work. Later the company thanked her with a ring and 500 shares of Nike stock (then worth $150, but over $600k in 2011 according the the article I found – and she still hasn’t sold it).

The later gift was in no way necessary or required, though. It was just a nice gesture by Nike, one that Marvel could offer to the Kirby family. But again, they don’t have to.

So unless the logo case was for another company, that sets no precedent for this case.

I wish the Kirby’s all my best but I don’t think they have a hope in hell.

from the deadline article comment section:

“Marvel has to date produced no documents signed by Jack Kirby prior to 1972. (See court documents.) Nor is Marvel likely to. In fact, Marvel is currently in the process of quietly approaching any and every creator responsible for any property that is being used in the films, TV, Netflix, wherever, in the order of priority, offering either buyouts or as little as they possibly can. Marvel does not want any brush fire to burn out of control as a result of one creator achieving success through the courts, and they know their biggest weakness is the lack of documentation throughout their company’s history.”

Marvel should offer a One time settlement to the Kirby family in deference to the major influence on creating many of these Marvel characters.

Kirby was well aware of the difference between “Work for Hire” and “creator owned” before he went back to Marvel in the late 50’s. That’s how he retained the rights to Fighting American which he co-created in 1954. No sympathy for the Kirby heirs in this case. Dad made a bad deal, suck it up and get a life of your own.

Ender Harris

May 6, 2014 at 5:21 pm

I think most people here are accidentally missing the point. The issue that the Court is considering involves one main question: Did Kirby create everything as a work for hire, or did he create it and then transfer ownership to Marvel? If he created it as a WFH, then Marvel owned it all right from its inception. If he created it and then transferred it, then a later exception in copyright law lets him (or his heirs) reclaim it after a certain amount of time.

That’s really the *only* question here; not whether Kirby understood copyright law, whether his heirs should have the right to enforce his claims, whether either side is being greedy, etc. etc.

So, how does a court decide if something is a WFH? Well, there are a few ways. The easiest is if the creator was an employee doing his job. For example, if I’m a copywriter for an ad agency; I write copy, my company uses it, makes millions of dollars from the account, and I collect my ordinary paycheck. They hired me, and I worked. End of story.

Another very common way is if it’s put in writing ahead of time. Copyright law normally grants the copyright to the creator from the moment something gets created; he can then sell it to someone else, which is called a transfer of copyright. So, to avoid that, companies have creators sign WFH contracts before they create anything. That means the company owns it from the moment it’s created, and it never is owned by the creator, never gets transferred, etc.

So, what if neither of those things happen? Well, there’s a third way, and it comes from case law (precedent) rather than statute. It’s called the “Instance and Expense” test, and it means that, if the whole reason you created something was because the publisher asked you to, and it was the publisher who carried the expense and risk rather than you, then it really was a work for hire — because you’ve behaved *exactly* the way you would have if you’d actually signed a WFH contract.

But, because it’s from case law rather than statute, the exact dimensions on how this test works and what’s the right way to apply it becomes rather murky. The appellate court here applied it a certain way that did not favor the Kirby heirs, but it’s their position that it was applied incorrectly. So, they’ve appealed to the Supreme Court, hoping it will agree and issue a clarification on how this test is supposed to be applied.

This by itself doesn’t mean they’ll win the overall case, even if they prevail in proving their position. The Court could issue a clarification and send it back down to the lower courts (where they could still lose); or the Court could also say that yes, the lower court applied it incorrectly, but if it had applied it correctly you still would have lost. So, the Kirby family needs to dodge a lot of bullets before it finally wins in the end.

I enjoy so much of Kirby’s work, but I believe the Supreme Court is too important. There are other important matters to deal with, before a case for a specific family and company. I think the lower courts did a great job. Not what I wanted to hear either for such an incredible artist, but they made a choice that was justified.

As a creative artist, our rights are something that I hold a very high importance on. I think credit should be given where credit is due. That being said: Kirby was paid for the work he did for Marvel. I’m sorry, but that is work for hire. Should Kirby have been given rights and privileges regarding the characters he’s helped create? Absolutely, and the laws are much more clear on this now. But he made agreements based on the market as it was when he made them. It’s crazy to go grabbing for rights now, especially when they’re owned by a corporate power-house like Disney.

@ACMC: I agree with where you’re coming from, but remember this is how the courts are setup. Once you have gone through local and appellate, if you want to continue to press your case you must go to the Supreme Court next. It is a waste-of-time hearing, but cest la vive. At least it’s around something moderately legit vs. suing McDonalds for making you fat lol

Claude Parish

May 8, 2014 at 8:54 pm

The sad bit is that even though Kirby created most of what Marvel is making a fortune from, the history is so clouded by lies, damned lies and Stan Lee’s lying ass. If this were dealt with back in the 80s when Gary Groth was running around with his petition (which a lot of industry professionals signed on to) with half the vigor they display today, this would have been settled one way or another long ago. It’s beyond heinous how Marvel treated Kirby in his final days and his family DOES deserve to dip into the well of his legacy, legalities be damned. It’s so long ago and so much of contract law has changed over the years that ‘work for hire’ may not mean the same today as it did fifty years ago. It’s not like I can go back to the building that I dug a ditch around and demand royalties today. Kirby built something that enriches the company he worked for and they’ve grown far beyond what they ever dreamed that they could. Circumstances change. Laws change or are adjusted. It may be time for Marvel to run a line though a few bits of their employment agreements that, let’s face it, if the artists or writers didn’t live up to their side, would bury them in a legal swamp they’d never get out of. A codicil can be made for those rare creators like Kirby, Ditko and even Lee for their unique contributions to a monolithic corporation that, without them, would be pushing religious tracts or pamphlets about global warming. Marvel/Disney might fear a pile on from others if they acquiesce, but special circumstances can create a perpetual stipend that will not damage the company. Those special circumstances are ‘You wouldn’t have a business without these creative geniuses’. So, no worries over John Romita or Gil Kane’s family surrounding the place with torches and pitchforks. There was only one Jack Kirby. One Joe Simon. One Steve Ditko. A few others as well, but not so many that Marvel can’t afford it. It can be absorbed into the cost of doing business. I am pessimistic of the chances of the Supreme Court looking at this, though. Legacies only mean anything if you are connected to them.

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