Robot 6

Hollywood guilds join push for Supreme Court to hear Kirby case

jack kirbyThree 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.



sadly even now with the guilds backing who also could find themselves in the same boat as the kirby heirs someday. odds are the justices will proably turn down the appeal for the siegel and shuster families would have a better chance for their superman appeal then kirbys heirs will in getting the justices to finaly maybe do the right thing and at last give kirby benfit from his co creations in royalties. the justices are going to proably say no

yea this case should be one of the 150 or less to be heard out of more than 7000 because whats more important than a bunch of people trying to get a paycheck for something they had nothing to do with

I think the ideal us for these lawsuits to be resolved in a creators life time. Absent that, there is value ti the heirs prevailing. Then a corporation can’t just count on outlining the creator and the lawsuit.

Hey, it sure would be nice if the guilds refused to work on superhero properties that didn’t recognize and compensate the original creator. They’ve made three Punisher movies without crediting or compensating Gerry Conway (who is himself a WGA member!). The guilds could directly affect positive change there, and small victories are just as important as these grand statements.

Highly unlikely they’ll even hear it. On the off chance they do hear it, they’ll side with Marvel. Traditionally the court is reluctant to overturn appeals court decisions in these types of cases. The Kirbys claim has always been tenuous at best.

Work for hire sucks. No ifs, ands or buts about it.

Captain Sensible

June 24, 2014 at 11:21 am

to be honest, i don’t see why the “Kirby” estate should get the rights back. if 2 or 3 court assessments find against the claim, why should it be dragged on and on? besides which, how much is Toberoff set to gain compared to Kirbys family. i loved Kirbys Marvel work but it was work for hire, would the characters have been as successful without Lee? and would we be hearing so much about this if the characters had fell into obscurity after a few years?

It’s always sooooooo wonderful to read comments from “fans” who are siding with those poor, abused misunderstood multinational corporations with billions of dollars in assets who are supposedly being bled dry by those ungrateful parasitic relatives of the comic book creators who actually did work of conceiving all of those characters & intellectal properties which are now worth a fortune. Because if anyone deserves that money, it should be some soulless corporate executive who already owns half a dozen mansions & yachts rather than, say, Jack Kirby’s grandkids.

Captain Sensible

June 24, 2014 at 2:04 pm

it’s also very refreshing to hear joe public raving against “the man” in favour of the little guy. do you honestly think Toberoff gives a fudge about what’s right by the Kirby family?it’s all about the money bub. if not for those corporate monsters, there wouldnt have been a platform for these wonderful characters. and honestly? it won’t improve my life if the Kirby family get millions of dollars or not, so why people get so eat up about these debates is beyond me. bigger issues to worry about in the world

@Dave: It’s pretty tough for suits regarding termination of copyright transfer to be settled during a creator’s lifetime, as works are not eligible for termination until 56 years after publication.

If you’re arguing that the requirement for termination — or copyright in general — should be shorter, then I’m inclined to agree, but that’s a legislative issue, not a judicial one.

Hi Dwayne. Maybe you will support us in getting back our land since you had nothing to do with colonizing it you are sure to understand.

….. if the Kirby’s get their rights and turn around and sell them to a IP hording Chinese company who wants to suck billions of $ out the US via entertainment, how would you all feel about that?

“….. if the Kirby’s get their rights and turn around and sell them to a IP hording Chinese company who wants to suck billions of $ out the US via entertainment, how would you all feel about that?”

I don’t know, but what if Marvel and Disney kept the rights and devise a way to mass-produce killer robots?

@Ben Herman –

Nice straw man argument there. I’ve never once seen someone say that Marvel deserves to win because they need the money. Your comment shows that you likely have no understanding of how work for hire works.

Yes, Kirby did a LOT of work (amazing work), and is one of the main reasons why these characters are so great. However, he did so under a contract with Marvel. They footed the bill; they’re the reason we even know who the Fantastic Four are. If he wanted to own everything, he could have self-published these comics.

Now, the case is about whether or not it actually WAS work for hire, and I can’t claim to know the answer there. I lean towards it being WFH, but I’ve not seen any of the real evidence, so I’m admittedly working off very little.

But your comment just reeks of biased disdain for corporations. The creators who do this work understand what they are getting into; if they don’t, they’re naive. There are plenty of options for creators who want to own their stories.

Stan Lee has said that the work they did at that time was work for hire. With Kirby being deceased I would think Lee’s testimony would be the deciding factor.

I personally would like to see the supreme court ignore this one. the marvel comic they keep claiming Marvel stole were created by Stan lee not Kirby . Kirby was the artist . I know a lot people love Kirby but he really did not have a successful product that he did not do with Stan lee.

@Jim yea sure land that was stolen, it is good to know you support theft when it benefits you :)

Brian from Canada

June 24, 2014 at 11:11 pm

@Ben Herman –

Emotional appeals don’t change the truth: while Jack Kirby did create an awful lot for Marvel with his writing partner Stan Lee, neither presented themselves as anything but employees of Marvel who were producing new characters and new concepts as part of their job.

The narrative from 1961 — unchallenged even by Kirby himself — was that they got permission to bring something new to Goodman. The Fantastic Four, then, were not created independently and offered to a publisher coldly as Superman was; The Fantastic Four were a response to the assignment of “bring me something I might look at,” which turns it into work for hire.

The Kirby estate challenges it was freelance work because there was no formal contract for work, and that Jack created the work independent of Marvel’s control — but that assumes Jack was not instructed to produce a book by Marvel with Marvel’s permission under the tacit agreement that he would only be paid for pages they approved of.

That was how the industry worked back then. You didn’t have the use of formal terms like “work for hire” because they hadn’t been defined yet. You got told by the publisher what they needed on a month-to-month basis, and you were paid for any issue that they agreed to print. (This is why Toberoff didn’t go after writes to The Spectre for the Shuster and Seagel families — that was produced when the studio was clearly working to produce content for National Periodicals, not when the studio was still looking for any publisher.)

The Guilds have to back the Kirby estate because they worry about future negotiations where the studios might use past practice to defend their ownership of the projects. And there’s quite a few people in Hollywood who don’t care about research of the truth and go based on emotional feelings that artists shouldn’t get screwed out of royalties.

But the reality is that the courts have recognized that the situation is not the same as pure freelance and there was an expectation of being paid for specific work — making it work for hire and therefore keeping the rights at Marvel. (Lee, on the other hand, got paid from Marvel to specifically not ask for his rights back.)

Brian from Canada

June 24, 2014 at 11:13 pm

@Dwayne Young:

The US knows it has stolen land. Agreements were signed in the 18th century to return the land confiscated from the Loyalists who were forced to flee to British Canada for their lives, and that land has never been returned. A petition and lawsuit was brought before the US courts and ignored despite the legally-binding contract to do so, simply because it’s America’s now.

I don’t really care who has what in the bank, how many mansions or who is a person or corporation, because the reality is that Kirby did work for hire assignments and WAS OKAY WITH IT for the most part. He didn’t die in obscurity without two pennies to his name, he didn’t grumble and gripe about getting his payday while Bob Kane and others were kicking up a fuss. Kirby was okay with the work he did. His CHILDREN, who did NONE of the work, are trying to lay claim to something that Jack himself would not. What’s fair is fair and it’s insane to think that anybody who does work for somebody else should be due more because that company is successful with their marketing and sales. I contribute quite a bit to my company and have laid the groundwork of ideas that have increased efficiency and productivity allowing for higher profitability. I’d be embarrassed if my kids sued my employer to say they were owed money because I did my job well for the salary I agreed to.

Leave a Comment


Browse the Robot 6 Archives