To quote the Thing from the Fantastic Four – “It’s clobberin time!” Just two days after Jack Kirby was honored at Comic-Con, lawyers for the heirs of the comic legend have replied to Marvel and Disney with a pummeling brief filed at the Supreme Court. “Respondents, although called to respond, do not address the legal issues. Instead, they focus on the wrong questions and the wrong court,” say lawyer Marc Toberoff and Tom Goldstein, a new attorney on the case, today. After failing repeatedly in lower courts, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the High Court on March 21 for a hearing. The heirs want SCOTUS to rule in favor of their assertion that they had the right in 2009 to issue dozens of termination notices to Marvel and others on the artist’s characters under the provisions of the 1976 Copyright Act.
In a requested response after the Justices initially agreed to take matter into conference, Marvel unsurprisingly rejected the idea that the matter should go to the High Court. Today’s filing is a reply to that July 14 response. “Their opposition reduces to the argument that because the ‘instance and expense’ test for work-for-hire is entrenched in circuit precedent, it should evade review, no matter how capricious and indefensible it may be. Respondents thus mistake the problem for the solution in an area of the law that badly needs this Court’s authoritative voice,” the Kirby heir’s lawyers add in the filing (read it here) Marvel has been the winner in the courts so far since suing the Kirbys back in 2010 to invalidate the notices. Those victories have in large part been because the bench has agreed with their argument that the 262 works in question in this case that the iconic Kirby helped create or co-created with Stan Lee between 1958 and 1965 were done under a work-for-hire deal. That means, Marvel has insisted, that neither Kirby, who passed away in 1994 nor his heirs have any rights of termination to issue to Marvel/Disney or others such as Fox, Sony, Universal and Paramount Pictures.
That’s not on, say the Kirby heirs.
“Many of our most celebrated literary and musical works were created before 1978 and signed away to publishers in un-remunerative transactions,” today’s reply says, taking aim at the Second Circuits use of the 1909 Copyright Act in its decision in this case. The Kirby’s side argues that termination rights in the 1976 Act were put in place to protect authors and creators who were previously taken advantage of in negotiations. “It would be hard to find a better example of this than the prolific Jack Kirby who worked in his basement with no contract, no financial security, and no employment benefits, but without whom Marvel might not even be in business today.”
No word yet of course on when the SCOTUS will actually take the petition into conference or if that will lead to a hearing next term. (UPDATE July 30: The matter has been distributed to the Supreme Court for conference on September 29) However, with the interest Justice Ruth Bader Ginsberg took in the case allowing the Kirbys more time to file, the fact that the petition was originally set to be distributed for a conference among the nine Justices on May 15 and the push to get Marvel to respond after they waived their right, somebody in D. C. has their eye on this one and its wide ranging implications. Several people in L.A, are watching the case too with SAG-AFTRA, the WGA and the DGA back in June ubmitting an amicus brief to the High Court in favor of having the Kirby’s petition granted.
“Even if the legal rule at issue affected only the multi-billion dollar franchises based on Kirby’s creations—X-Men, Thor, The Avengers, Captain America, Iron Man, and Hulk, for example—that would justify review,” the 18-page brief adds. “But the implications are much broader.” The brief is certainly right there as a finding by the Court in Kirby’s favor would not only upend things for the Disney-owned Marvel but a plethora of copyrights across the entertainment industry as writers, composers and others designated under a freelancer status could suddenly gain a piece of what they created in what would now be seen as a much more traditional employee/employer arrangement.
With steam picking up on this case, Kirby lawyer Toberoff has now joined up with Goldstein, the publisher and co-founder of the influential SCOTUSblog. The Goldstein & Russell founding partner has argued before the SCOTUS on numerous occasions, a point that can’t be lost on Marvel going forward. Maybe they’ll go for a settlement and try to restart talks on a deal with the heirs, like they did before this all turned to lawyers in 2009. Maybe they’l roll the SCOTUS dice.