The Second Circuit Court of Appeals in August upheld a 2011 ruling that Kirby’s Marvel creation in the 1960s were work for hire, and therefore not subject to copyright reclamation by his children. (They had filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk; Marvel fired back with a lawsuit.) In their March petition to the Supreme Court, the Kirby heirs took aim at the Second Circuit’s “instance and expense” test, arguing that it “invariably finds that the pre-1978 work of an independent contractor is ‘work for hire’ under the 1909 Act.”
Gardner points out the the justices discussed the petition at a May conference, and then requested that Marvel respond (the company initially didn’t file a response). Those p0tential portents were followed by a pair of friend-of-the-court briefs: one 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, and the other by attorney Steven Smyrski on behalf of longtime Kirby friend Mark Evanier, Kirby historian John Morrow and the PEN Center USA.