Just eight days before X-Men: Days Of Future Past opens everywhere on May 23, the mutant team’s co-creator Jack Kirby will be getting some marquee attention from the Justices of the Supreme Court. Attention that could lead to Marvel and Disney arguing in front of the High Court against the Kirby heirs over the rights to the numerous characters from the X-Men to The Avengers and the Fantastic Four and many more that the comic legend co-created.
On May 15, the nine Justices will debate in private Conference whether or not to get involved in the Kirby heir’s 5-year attempt to gain back the rights from the media giant. If the High Court agrees to the March 21 filed petition from Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby, an oral argument date will be scheduled later this month for the SOCTUS’ next term.
Marvel and Disney are probably shocked that after their successive victories in lower courts this case is even been discussed in Conference. They certainly didn’t seem to take the initial petition very seriously. On April 24, the media giant’s attorney R. Bruce Rich filed a waiver (read it here) with the Supreme Court. The lawyer from NYC firm Weil Gotshal & Manges LLP said the respondents “did not intend to file a response to the petition…unless one is requested by the Court.” Being that the Kirby heirs’ petition was distributed among Chief Justice John Roberts and the other Justices 5 days later, Disney and Marvel might want to rethink that move or rather lack thereof now.
Still, it’s not hard to see where Disney and Marvel were coming from with their April 24 filing. The Kirby heirs, efforts to assert they had the right in 2009 to issue termination notices to Marvel and others on the artist’s characters had not been getting any traction before. Those notices went out 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 X-Men distributors Fox, Sony, Universal and Paramount Pictures. Kirby himself passed away in 1994.
On January 8, 2010, Marvel and Disney sued the heirs to invalidate the notices. In October 2013, the 2nd Circuit Court of Appeals denied the estate’s 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 of termination. The legal tug-o-war came after a failed attempt by Disney and Marvel to strike some sort of deal with the heirs over Kirby’s co-creation of Captain America in the 1940s and his 1960s work with then Marvel editor-in-chief Stan Lee on Fantastic Four, Iron Man, Hulk, The Silver Surfer and Thor among various others.
Stressing that the 2009 notices were correct under the provisions of the 1976 Copyright Act, Marc Toberoff has been serving as the Kirbys’ attorney. This isn’t the lawyer’s first caped copyright fight. Toberoff also represented the heirs to the Superman creators in their long legal battle with Warner Bros and DC Comics.
Jack Kirby was no fan of the work-for-hire system himself. The artist drew the first 5 issues of Destroyer Duck back in 1982 in the hopes that the publication would help raise money for writer Steve Gerber’s legal dust up with Marvel over the rights to the Gerber co-created Howard The Duck character. The two sides in that case eventually settled.