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Marvel asks Supreme Court to deny Kirby heirs’ petition

marvel logoMarvel has urged the U.S. Supreme Court not to review a petition from the heirs of Jack Kirby in a copyright-termination dispute that could have implications beyond comics, extending into film, music and publishing.

In papers filed Monday with the high court, and first reported by Deadline, Marvel insists the case doesn’t “remotely merit” review, as, “It implicates no circuit split, no judicial taking, no due process violation, and no grave matter of separation of powers.”

Kirby’s heirs have argued, so far unsuccessfully, that the legendary artist’s contributions to the publisher between 1958 to 1963 — among them, the X-Men, the Avengers, the Fantastic Four and the Incredible Hulk — weren’t produced as “work for hire” and, therefore, are subject to a clause in the U.S. Copyright Act that permits authors and their heirs to reclaim rights transferred before 1978. Marvel and Disney dispute that claim, saying Kirby’s output was indeed work for hire, a position supported in 2011 by a federal judge and last year by the Second Circuit Court of Appeals.

But in a March petition to the Supreme Court, the Kirby family took aim at 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, saying it “invariably finds that the pre-1978 work of an independent contractor is ‘work for hire’ under the 1909 Act.” The heirs received notable support from Bruce Lehman, former director of the U.S. Patent and Trademark Office, who insisted in a friend-of-the-court brief that the Second Circuit disregarded both history and precedent in its definition of “employer” and application of “the instance and expense” test,” “shouldn’t be underestimated.” (Three Hollywood guilds also weighed in on behalf of the the Kirbys).

Marvel, however, noted in its Monday filing that the courts “have uniformly reaffirmed the use of the instance and expense test in disputes arising under [the] 1909 Act.”

Stating that the Second Circuit was correct in determining the artist’s contributions were work for hire, the publisher reiterated that Stan Lee “supervised the creation of Kirby’s work from conception to publication,” providing a plot synopsis and retaining the authority to approve the art or seek revisions; Kirby was also paid a page rate.

“It was Marvel — not Kirby — that bore the ‘risk’ and potential expense if the publication of the works was unsuccessful,” the filing states. “And all of the evidence offered by petitioners in support of the existence of a contrary agreement either provided them no aid or reaffirmed the conclusion the instance and expense test compelled. Indeed, Kirby himself repeatedly confirmed that Marvel owned all the rights to the work.”

The publisher also attempts shoots down the heirs’ “smoking gun,” saying the purported “contemporaneous agreements” between Marvel and Kirby, in the form of the legend on the back of checks to Kirby that assign his copyrights to the company, aren’t “contemporaneous” at all. Rather, Marvel insists, those checks were issued between 1973 and 1974, a decade later. “To be clear,” the company states, “there are no checks from Marvel to Kirby issued ‘contemporaneous[ly]‘ with the creation of the works at issue in this case.”

As we’ve noted before, the Supreme Court accepts only 100 to 150 out of the more than 7,000 cases it’s asked to review each year.

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35 Comments

Sounds like Marvel/Disney is nervous if they don’t want the SCOTUS to even review the case. Sounds like the Kirbys have a stronger case than many believe….

Of course Marvel doesn’t want SCOTUS to review the case, but it has nothing to do with whether or not the Kirbys have a “strong case”. They’ve already prevailed, multiple times; they want SCOTUS to reject the petition so the lower courts’ opinions stand. Why on earth would they want this to drag on any longer?

@Mac You should read up a little more about this case. Marvel initially ignored the Kirby petition ot he Supreme Court. It was only after the Court itself asked for a response that Marvel bothered to respond at all. And it has nothing to do with being nervous. TheKirby heirs have been rebuffed at every court hey have been to. It is obvious to Marvel that this case is a waste of time for everyone, and they don’t want to waste their time or money on a case that the Supreme Court shouldn’t even take the time to hear.

Good luck having an individual win a case against a corporation in Robert’s Supreme Court. Not terribly optimistic about the Kirby estates claim here.

It’s SCOTUS – Supreme Court of the United States – not “scoutus”. If you’re going to be aggressive toward others’ use of a term you don’t understand, at least spell the bloody thing correctly.

Kirby was a creator. Not a legal scholar.
Every push like this helps creator rights. Am I personally invested in the children of past creators getting ownership and royalties? Not really. However, am I all for anything that helps today’s creators maintain more and more of their intellectual property? Absolutely. Am I interested in today’s creators being able to pass down those rights to their children? Absolutely.

This industry is built on the brilliance of young creators who often died with little more than the change in their pockets. Creators making Disney sweat is good.

I understand our legal system needs to interpet the law, even when it doesn’t seem right (a murderer or rapist getting out on a technicality, etc) but I can’t help but wish there was some way to pull a “this isn’t right” button with certain circumstances that the law didn’t account for. I know I know, it would be the end of the world as we know it, blah blah…but I can’t help feeling that way. The Kirby’s, The Schusters, all of them – I mostly see folks berating them, but I tell you – if it was your family who had to see those creations exploited every day for aggregate billions, you too would likely change your tune. I wish the companies would just do the “right thing” and throw these folks a small royalty yearly. I mean, would it kill DC/WB to throw a half a million bucks at the Schusters once a year? That’s how much they pay for a friggin’ TV spot to promote a film that character is in.

I understand why it is the way it is, but I can’t help but think they could make this right.

@The Rev – not sure why you’re so irritated or even who you’re correcting since I don’t see where anyone spelled “scoutus”.

I agree with AWade. I don’t think the Kirbys have much legal ground to stand on here, but I certainly do believe Marvel/Disney should throw them a few million on moral grounds.

I’ve been surprised by the breadth and prominence of people who’ve signed the amicus briefs, but Marvel’s got a pretty strong case that there’s no lower-court split for the SCOTUS to resolve here.

I don’t know if the Court will take it. And if it does, I find it very unlikely it’ll rule on the Kirbys’ behalf. But I agree with Jorge: even if the Kirbys lose (again), keeping the pressure on Marvel may benefit other creators. And if it weren’t for Kirby’s campaign against Marvel in the ’70′s and ’80′s, Marvel wouldn’t made the reforms that it did in terms of profit sharing and returning art.

I do believe without Stan Lee being the pitch man that Stan was, Kirby’s work would remain non commercial even though he did the lions share of the work, plus he created many dogs for Marvel comics should marvel ask for compensation? As a kid reading many comics over 20K I really didn’t find Kirbys work to my liking, not as much as Gene Colan or Kile Kane. Just my opinion

sorry Gil Kane

sounds like Dismarvel is scared that the justices may take the case and rule that kirby estate can under the copyright act somehow reclaim his share of the marvel universe he helped stan lee create and could open up the flood gates for other creators to go after marvel for their creations. plus maybe if the justices did take the case help the creators of supermans estate finaly reclaim their copyright too.

larry the loon

July 15, 2014 at 12:22 pm

Too many Marvel Fanboys commenting.

Well the Superman case doesn’t have much to do with the Kirbys’. DC never claimed that Shuster and Seigiel were work for hire. They have admitted they were free-lancers. The difference is that DC DID pay for the rights permenantly (more than once.) And considering the Seigiels settled DC would only have half a share to lose. Plenty of room to negociate and rangle. Besides Shuster’s family was paid so I doubt a legal technicality will win the day.

As for the Kirbys I don’t feel sorry fro them either. Stan Lee came up with ideas and Kirby fleshed them out. He wasn’t the big creator they want to make him out to be. He was a designer. Did Kirby maybe deserve something better? Sure. Do his kids, no.

I know we want to consider corporations evil but look at it from Marvel’s point of view. They spent a majority of a century telling stories with these characters and fleshing them out. They are the ones who got the movie deals and the toys, and etc. They took the risk to make these characters a world-wide phenom. There are a lot of people working behind the scenes.

Now you have the children of a former creative employee demanding money. How would you feel if you worked for Marvel? The Kirby kids didn’t do jack squat and they want a gaint peice of the pie. Disney did throw them and their ambulence chasing lawyer a deal but they wanted more. I would be incensed if I worked for that company.

Ulitmately this will amount to nothing. The Supreme Court, if it even listens, will find for Disney/Marvel because the court has a history of doing so and Disney/Marvel have a good argument and the other courts on their side. Even if they were to loose it won’t affect the fans. The Kirbys won’t want Marvel to stop making books and movies or they won’t get paid. Or Disney will find another way to challenge them. A deal would be reached…

But wouldn’t that just be sad to see someone profit so much for doing nothing.

I have no faith in the Supreme Court. If they were to review the case, I am sure they would fall in favor with Marvel/Disney.

Josh: You’re wrong. Kirby came up with most of the ideas AND fleshed them out. Stan put the polish on them and sold them.

Well Mr. Bill that depends on who you believe. Stan Lee and most others state that Lee came up with the rough idea and Kirby fleshed them out. I tend to believe Lee. Either way he was working for Marvel and commissioned to create a specific character.

I’m still confused on WHY the Kirby heirs feel they even have a lawsuit. Their father did, not them. Because of his contract/deal/whathaveyou with Marvel were the Kirby heirs denied food, shelter, or clothing? Did they not receive a fair and equal education? Then what do they want than to be able to sit around and collect money on work their father did 60-70 plus years ago? It’s greedy kids who don’t want to do any work, and feel entitled to the work their father did.

It’s not a matter of Marvel fanboys vs Kirby fanboys nor Corporation fanboys vs Individual fanboys. When I look at the case, I don’t see how the Court could rule in favor of the Kirbys. It’s the legal fanboy speaking if you wish. By the way I’d say the Siegels have a case.
By the way the Kirbys have a number of properties to exploit: Galaxy Green, Captain Victory, Silver Star, Phantom Force and a plethora of designs plus many Simon & Schuster creations. They should groom these characters, make sure good writers update them and create good stories that will stand the test of time.

@Carl, you should go notify the ER Burroughs heirs, the Charles Schulz heirs, and others that they don’t deserve the money they get.

@Rob – good to know that Kirby really didn’t do much to build Marvel simply because you don’t really dig Kirby’s art.

@Josh

I’m sorry but you are wrong, the Siegels have settled nothing with DC (I don’t know where you have read that), they are still in conflict, and they still have Toberoff like lawyer for the right of Superman; so there are still a possibility that DC will lose 100% of the right for Superman.

The court ruled in favor of DC, saying SIegel and Shuster estates separately settled with DC before they ever hired Toberoff (and then tried to renege after they hired him). That was the whole point of the ruling in DC’s favor

had they not settled, they would have reclaimed the rights.

This is all so confusing – can someone explain where the Superboy rights are versus the Superman rights?

From these comments (mostly) mainstream comic fans don’t give ashit about creators no matter how much lip service is done.

Kirby created most of the important characters of the marvel universe. Stan lee is a corporate man with a side of carnival barker, he helped sell it. read about the marvel method artists in those days did just bout everything except stan awesome dialogue. which if i can quote barry smith “which stab at my eyes.”

Whether or not it is the case legally, I feel that Kirby deserves the same benefits Stan Lee has. If it was Kirby himself disputing it, I would fully support him. However, it is his heirs so I’m not as sympathetic, although Lee’s heirs will end up getting a bunch of money and Kirby’s won’t.

Jorge, the Siegel settlement included Superboy as well as Superman.

The time for the Siegels to file an petition with the Supreme Court has passed – their federal lawsuits are done, though they could sue in state court re the interpretation of the agreement. The Shuster cert petition has been filed, but it’s a longshot.

@bob

Yes the Siegals did. The whole reason the recents comics have added the “with special thanks to the Siegal family” in addition to the Superman created by Shuster and Siegal credit was part of the settlement. After the court ruling that DC and the Siegal family deal in. 2001 was legally blinded they went back to the tables. The Shuster estate is the only one left and they really don’t have a great legal argument.

IN OTHER NEWS———PEOPLE WHO CAN’T ACCEPT DEFEAT!

Get the founders of image to testify and build a case of repetitive theft from artists.

Talmidge Mcgulliger

July 16, 2014 at 7:20 am

Nick- Lee’s heirs get nothing. The contract he signed giving him an emeritus position for life only covers him and his wife as long as they live. Other than that, the only money Lee ever made off those characters was from his job as the writer and editor. And it’s not Stan’s fault Jack pissed off Ike so he didn’t want to offer him the same deal.

M- saying Stan just came in and did the dialogue isn’t entirely true. Yeah, Jack came in with fully formed characters and designs but you really can’t compare the stuff Jack did on his own and the stuff he did with Stan and say that Stan didn’t have a significant roll in crafting those stories.

@Josh

No, they are not in their point of view, for them, the settlement was not “complete” and was not a real contract, they have lost recently in appeal, but in 2008, a judge have agreed with the heirs… the Siegel wait another trial for to have back the right for Superman, it’s far from finished for them; they are probably in the better situation than the Shusters because of their past victory in 2008.

http://www.hollywoodreporter.com/thr-esq/warner-bros-gets-advantage-lingering-672911

“The Siegels’ breach and repudiation defenses do not affect the enforceability of the agreement, but rather constitute grounds for termination or a breach-of-contract action,” wrote the judge.

So the Siegels may have another avenue towards future litigation, but in the meantime, there’s still an appeal pending on that May ruling concerning whether a valid copyright transfer was made. The Siegels are presently scheduled to file a brief in February. Warner Bros. gets to respond the following month. And so on.”

If the appeal don’t work, they still have a way to breach of contract; you have cited your example of the “special thanks” for the settlement, but if I remember correctly, it’s the judge recently who have recently forced them to do that; for years DC don’t have this reference in their comics, despite the supposed “contract”; DC are also forced to do a movie everytimes if they want to keep the contract (that for that DC/Warner was forced to do “Man of Steel”).

Toberroff have already said that he think that DC/Warner don’t have respected lot of these elements of this supposed settlement; so he will don’t hesitate if the appeal don’t work, and he will use the Supreme court in the last resort like for the Shuster and the Kirby.

@Jeff Trexler

I don’t think the time have passed, if the Siegels have waited another appeal (according the article I have posted); I guess Toberoff simply try to have in the same time the judgement of the Shuster; and just after the Siegel, for to be sure to have 100% of Superman; and the judgement is not onely for Superman; Superboy but also the Spectre.

On the one hand, I feel like the disposable way of treating writers and artists is a travesty and feel that Jack’s heirs should probably get SOMETHING, being as their father co-created characters who turned out to be worth billions.

On the other hand, a glance at Kirby’s bibliography will show you that he didn’t work on any of his co-creations (or his sole creations) all that long and he didn’t work alone. Giving them full control of the rights would be a bit of a slap in the face to guys like Stan Lee, Roy Thomas, Walt Simonson, Chris Claremont (would they get only the Original X-Men or would they get all of the X-Men as fruits of their father’s work?), et al who either helped make those characters or helped make them great.

There’s also the fact that I enjoy Marvel in all its forms and I really don’t want to see it disintegrate as it spends the next decade sussing what characters they’ve lost, what characters they’re going to lose, etc.

Knut Robert Knutsen

July 17, 2014 at 4:41 am

I know a lot of people saw the many Amicus Briefs from respectable sources as a show of support for the Kirby Estate and as a sign that their arguments had merit, but it really knocked the feet out from under any possible win.

The Kirby Estate argues that Kirby didn’t do WFH, but everyone else did. This is what would allow the Kirby Estate to leverage an “initial creation” enough to block Marvel from using the rest. As the only party Marvel would have to settle with, that could mean a big payday.

The “supporting briefs” were really only thrown in because the case dealt with Work for hire issues , which allows these arguments to be presented, The parties involved in the briefs have conflicting or contrary goals to the Kirby estate.

The briefs are an attack on the presumption of WFH in ALL non-contractual situations before 1976. Which means that, yes, the Kirby Estate would succeed in their claim that Kirby’s work wasn’t work-for-hire, but this would also apply to everyone else. Don Heck, Dick Ayers, Steve Ditko, John Buscema, George Tuska and even inkers like Colletta and Sinnott.

So instead of Marvel dealing with just the Kirby estate for a single payment-structure to get all the rights back, Marvel would have to deal with hundreds of artists and writers who worked for Marvel between 1939 and 1978.

The Kirby Estate’s claim would drown in the claims of all the people with a stake in it. Since the Kirby estate could no longer claim a “sole ownership” stake, they couldn’t prevent Marvel from publishing or making deals and as long as Marvel did that they would remain in control. The remaning issue would be how much of the profits each party gets.

Which would probably result in the court ordering some sort of large scale arbitration, where fixed royalties would be apportioned according to pages, participation etc.

This would affect ALL comics of the period, except those creator-owned or in the pyblic domain.

That royalty money bag is big, but not necessarily big enough to amount to much when divided up like this.

For instance, on strips like Iron Man, Avengers and X-men, Don Heck might be due a hell of a lot more than Kirby.

I don’t think the Kirby Estate’s case will be heard, but even if it is heard and they miraculously win, the Kirby Estate might not profit from it in the way they think.

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