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Three organizations representing Hollywood actors, directors and screenwriters have thrown their weight behind an effort to convince the U.S. Supreme Court to hear an appeal by the heirs of Jack Kirby that could have ramifications far beyond Marvel and the comics industry.
The case, as most readers know by now, involves the copyrights to the Avengers, the X-Men, the Fantastic Four, Thor and other characters created or co-created by Kirby during his time at Marvel in the 1960s. The artist’s children filed 45 copyright-termination notices in September 2009, seeking to reclaim what they believe to his stake in the properties under the terms of the U.S. Copyright Act. Marvel responded with a lawsuit, which led to a 2011 ruling that Kirby’s 1960s creations were work for hire and therefore not subject to copyright reclamation. The Second Circuit Court of Appeals upheld the decision in August 2013, which brings us to the Kirby family’s petition to the Supreme Court.
According to The Hollywood Reporter, the Screen Actors Guild-Federation of Television and Radio Artists, the Directors Guild of America and the Writers Guild of America have filed an amicus (“friend of the court”) brief that insists the Second Circuit’s ruling “jeopardizes the statutory termination rights that many Guild members may possess in works they created.”
At issue is the appeals court’s definition of employer and its application of the “instance and expense” test, which considers the amount of influence and money a company has in the creation of a work. That test came under fire in both the Kirby heirs’ petition to the Supreme Court and in an amicus brief filed by Bruce Lehman, former director of the U.S. Patent and Trademark Office, on behalf of himself, former U.S. Register of Copyrights Ralph Oman, the Artists Rights Society and others.
The Kirbys’ attorney, Marc Toberoff, argued that the Second Circuit’s “instance and expense” test “invariably finds that the pre-1978 work of an independent contractor is ‘work for hire’ under the 1909 Act,” which the Hollywood guilds charge threatens the termination provision of the 1976 U.S. Copyright Act, intended to benefit creators even as the extension of copyright term benefited publishers, studios and labels.
“By creating an impossible hurdle for creators to overcome, the instance-and-expense test hands purchasers a windfall gift,” the brief states, “particularly in light of Congress’ extensions of the copyright term in the 1976 Act and the 1998 Copyright Term Extension Act.” The brief can be read at The Hollywood Reporter.
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.