Just days before Captain America: The Winter Soldier opens, the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby are asking the Supreme Court to hand them back the rights to the comic legends from Marvel and Disney. “The Court of Appeals unconstitutionally appropriated Kirby’s valuable copyrights and gave them outright to Marvel, effecting a transfer of wealth on a massive scale,” says the 39-page petition (read it here) filed with the high court on March 21. The petition is the latest legal attempt by Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby to assert that they had the right in 2009 to issue termination notices to Marvel and others on the artist’s characters under the provisions of the 1976 Copyright Act. A response is due from Marvel and Disney on April 28.
The fact that the Kirby heirs are petitioning SCOTUS is a pretty clear sign that it hasn’t been a successful effort in getting those rights so far. In October last year, the 2nd Circuit Court of Appeals denied the Kirby heirs’ request for a rehearing or a full rehearing en banc. That followed an August 2013 denial by the appeals court of the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling that the comic legend was under a work-for-hire deal and hence had no rights to terminate. The estate begs to differ on that. “Kirby, the creative genius who redefined an industry from a small drafting board in his basement, without financial security or any participation in the success of his creations, epitomizes the very author/publisher imbalance Congress sought to remedy in enacting the termination provisions,” says the petition. Kirby died in 1994.
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The 45 termination notices sent out in 2009 went to publishers Marvel and Disney, as well as film studios that have made movies and TV shows based on characters Kirby created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. Five years ago, Marvel and its corporate parent company said the heirs simply had no rights to make the move but tried to accommodate an arrangement with the heirs. After that failed, Marvel and Disney sued the Kirbys on January 8, 2010, to invalidate the notices. Kirby collaborated with then-Marvel editor-in-chief Stan Lee on Fantastic Four, Iron Man, Hulk, The Silver Surfer and Thor among many others — which, unless you’ve been living under a rock the past decade, you’d know most of who have found very lucrative new life on the big screen and in other mediums beside comics.
The appeal that’s fueling this petition to the Supreme Court was argued in front of the Court of Appeals on October 24, 2012. Marc Toberoff, who also has represented the heirs to the Superman creators in their long copyright battle with Warner Bros and DC Comics, serving as the Kirby heirs’ main lawyer. If SCOTUS agreed the hear the case, Toberoff would be arguing for the estate in Washington, D.C. Of course, that is far from certain now and, given the case’s history, not necessarily something the justices would be wading into anytime soon as their calendar is full for the rest of this term.