Jack Kirby's Estate Intends To Challenge Marvel At The Supreme Court

Jack Kirby's Estate Intends To Challenge Marvel At The Supreme Court

Kirby Thor

It's unlikely to work, but the estate is trying out an interesting tactic in the long-running battle over ownership of some of Marvel's most successful characters.

In what amounts to a last ditch attempt against overwhelming odds, the estate of Jack Kirby filed a petition yesterday with the United States Supreme Court that seeks to overturn prior court rulings denying them rights to characters Kirby created or co-created for Marvel comics that are now worth billions.

The legendary artist co-created most of Marvel's most successful characters, including The Incredible Hulk, Iron Man, The X-Men and Fantastic Four during his employment with the company in the 1960s. After leaving Marvel, Kirby chose not to challenge the publisher for ownership of these characters - he chose instead to fight for ownership of physical copies of his art - but since his death in 1994, his family have waged an uphill battle against Marvel to assert control over his creations

That effort culminated with a 2009 attempt to issue a termination notice to Marvel (which would force the rights to these characters to revert to the Kirby estate) under the terms of the Copyright Act of 1976. In 2011, a lower court rebuffed these claims, ruling that Kirby's freelance contract was a work for hire deal, which are expressly exempted from termination of rights under US copyright law. This was followed by a ruling last year from the 2nd Court of Appeals in New York that upheld the lower court's decision.

Now the estate is pinning its hopes on a novel, and potentially earthshaking strategy to win.

The petition, available online courtesy of Deadline, notes that a 1972 Second Circuit Court Decision expanded the definition of work for hire to include contract workers, under what is known as "the instance and expense test." The instance and expense test, first articulated in a 1965 Ninth Circuit Court decision, holds that if a contract does not specifically secure rights for the employee, if "the motivating factor in producing the work was the employer who induced the creation," and if said employer is able to "supervise and direct" the contractor in their work, the contract worker cannot claim the right to copyright ownership. (See more here.)

The rulings against the Kirby Estate in 2011 and 2013 rested on that definition of instance and expense. But the Kirby's estate is now arguing that since Kirby paid for his own expenses and further, since "Marvel was not obligated to pay, nor paid, for Kirby submissions it did not wish to publish," Kirby was not actually confined to a work for hire scheme. In other words, the Kirby Estate is asking the Supreme Court to drastically narrow the definition of what falls within the "issues and expense test." That is absolutely huge.

It goes without saying that if SCOTUS were to rule in favor of the Kirby estate, it has potential to alter the current reality not only for comics creators, but freelancers of all stripes. Unfortunately, given how the current court has recently ruled in a score of issues that touch, at least tangentially, on the issues discussed in this case, one should probably not be optimistic it will even decide to hear the case. And if it does, a lopsided decision in favor of Marvel may be likely.

Marvel and Disney have until April 28 to issue a response. We will be paying close attention.

Source: Law360.com

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Greed knows no bounds. What the hell would they do with those characters anyway? They just want a piece of that delicious pie because they're pie eating parasites.

Good luck suing Disney and winning!

On the one side the interpretation of the law from Kirby's estate would strengthen the right of the individual artist over the rights of the publisher or the corporation which I'd find pretty good, actually.

On the other hand Jack Kirby is 20 years dead now and even 40 years ago he didn't want to take his characters away from Marvel, this is just heirs fighting at the very prolonged funeral feast, so to speak...

I kinda want them to win, not actually wanting them to "win" if you know what I mean... :\

RoonMian:
On the one side the interpretation of the law from Kirby's estate would strengthen the right of the individual artist over the rights of the publisher or the corporation which I'd find pretty good, actually.

On the other hand Jack Kirby is 20 years dead now and even 40 years ago he didn't want to take his characters away from Marvel, this is just heirs fighting at the very prolonged funeral feast, so to speak...

I kinda want them to win, not actually wanting them to "win" if you know what I mean... :\

I know exactly what you mean. And I largely agree. Disney and Marvel tried to come to some kind of arrangement with the estate back in '09, but the estate couldn't agree. We don't know what was offered of course, but I imagine it was enough to make them rich. Of course, they're wanting the big big money, and somewhat, it's hard to blame them. But really, I don't think anyone, corporate entity or descendent, is entitled to be rich forever because of the work one of their ancestors did. I'd like to see copyright die with the creator. But first, I'd like for copyright to actually go to creators, of course.

RossaLincoln:

RoonMian:
On the one side the interpretation of the law from Kirby's estate would strengthen the right of the individual artist over the rights of the publisher or the corporation which I'd find pretty good, actually.

On the other hand Jack Kirby is 20 years dead now and even 40 years ago he didn't want to take his characters away from Marvel, this is just heirs fighting at the very prolonged funeral feast, so to speak...

I kinda want them to win, not actually wanting them to "win" if you know what I mean... :\

I know exactly what you mean. And I largely agree. Disney and Marvel tried to come to some kind of arrangement with the estate back in '09, but the estate couldn't agree. We don't know what was offered of course, but I imagine it was enough to make them rich. Of course, they're wanting the big big money, and somewhat, it's hard to blame them. But really, I don't think anyone, corporate entity or descendent, is entitled to be rich forever because of the work one of their ancestors did. I'd like to see copyright die with the creator. But first, I'd like for copyright to actually go to creators, of course.

Exactly. The big problem with both current copyright and patent law is it isn't about protecting the originator's ability to derive a comfortable living from their IP. It's about extending the control and revenue stream as long as possible. If the people currently holding rights, that isn't their own creation, had their way there would be no such thing as "public domain".

They estate can't have a leg to stand on. Kirby himself wasn't interested in ownership of the characters. If he had been fighting them and died fighting them, it would mean one thing. But good old Jack Kirby only cared about the art, which I can't blame him on. It's like a piece of himself.

Yeah, way past time to let it go.

SilverStuddedSquirre:
Good luck suing Disney and winning!

Suing Marvel AND Disney? That's like declaring war on Mordor and the Galactic Empire. At the same time. Poor Kirby.

Of course, this is dumb, it should enter the public domain, with half of Disney's other assets.

Yet another reason for copyright to be set back to 50 years, or Death of the Creator +10 years, whichever comes first.

The other side of the copyright coin.

Scummy family members trying to sue the previous employers of their dad/granddad so they don't have to do any actual work. He never wanted them back, he never cared about getting the rights to characters that he was hired to create, all he wanted was the actual physical stuff that he made because that might actually have some sentimental value.

Personally I think neither of these entities should own any rights.

Marvel shouldn't own the work of a dead artist because what the hell is being protected here? The dead artists interest? By protecting these characters how the hell are we stimulating the artist to create more? The scummy family members? What the hell did they ever do to create? I could see maybe giving them the rights if there was some sentimental value, like Kirby basing a character of his son or something, then you have likeness rights to contend with, but otherwise this is just people fighting for the last scraps that they couldn't get through the will.

RossaLincoln:

I know exactly what you mean. And I largely agree. Disney and Marvel tried to come to some kind of arrangement with the estate back in '09, but the estate couldn't agree. We don't know what was offered of course, but I imagine it was enough to make them rich. Of course, they're wanting the big big money, and somewhat, it's hard to blame them. But really, I don't think anyone, corporate entity or descendent, is entitled to be rich forever because of the work one of their ancestors did. I'd like to see copyright die with the creator. But first, I'd like for copyright to actually go to creators, of course.

Wait a minute. we got a news staff whose views on copyright are at least reasonable. Aprils fools day was 3 days ago you know :P
Yeah, copyright needs a massive rework. The author should be the owner at any case and everything else should be a "Work-for-hire" publishing contracts and what not. Add to that that instead of increasing the age we should lower it. For starters, lets make copyright 30 years. If you cannot turn a profit on a thing you made for 30 years your not really getting rich of it, let libraries have it "for culture". Id actually be up for a shorter time, but small steps works better. Oh and copyright dieing with the author is also an interesting concept, however it needs to avoid the problem of "we want to reuse his very popular character, lets stage an accident resulting in his death" type of greedy evil people.

Friv:
Yet another reason for copyright to be set back to 50 years, or Death of the Creator +10 years, whichever comes first.

50 is too long. When copyright was first drafted, it was 26 years, and it worked fine, untill they lobbied for 50 years.

Gezzer:
If the people currently holding rights, that isn't their own creation, had their way there would be no such thing as "public domain".

there, sort of, isnt anyway. currently its 95 years or death+90 years (not sure who gets to decide which one to take because yay unclear laws). This means that pretty much everything that can be "owned" by companies are. they even allowed to re-register trademarks previuosly in public domain when they extended time. the only thing in public domain is over decade old books, few movies that are actually older than that period and abandonware that is more than 50 years old. well yeah, there probably are some radio broadcasts too, never cared much for those personally.
Always lovely to see when libraries loose their rights to stock 70 year old books because Disney has bought a company that released it 50 years ago and now decided to re-register trademark.

What this really boils down to is if Kirby had and used any input on whatever characters/scenarios/etc. he was working on. If Kirby did, then Kirby's family and heirs do and probably should receive something. Besides, don't contracts have expiration dates or something? What happens to the contract when one of the employees that worked on something is deceased? Doesn't some inheritance go to the family/friends/heirs?

Aaaand what are they intending to do with the rights to these characters?
Something tells me the estate lacks the talent and creativity that Kirby had...

If it was Kirby himself fighting for a piece of the pie his creations are enjoying I'd be inclined to support him. However, since he chose not to pursue ownership in the 50s to the 70s then his "estate", aka not the creator, has no right to do so now.

I will concede that artists and writers are horribly abused in the comic book industry, however, there's nothing I hate more than the concept of "estates."

AKA the degenerate offspring of great people using said great person's legacy to not accomplish anything themselves. They need to get real jobs.

I just wish there were less estates in the real world.

 

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