EXCLUSIVE: No big surprise that today Marvel and Disney asked the Supreme Court to deny a petition from the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby. “This case presents a factbound application of a test uniformly adopted by the lower courts under a statute that does not apply to works created after 1978,” said a response filed today (read it here). “It implicates no circuit split, no judicial taking, no due process violation, and no grave matter of separation of powers. It does not remotely merit this Court’s review,” added the media giant’s main attorney in the matter, R. Bruce Rich. In case, Marvel’s rejection of the heirs desires were not clear enough, the Disney-owned company really hits it hard elsewhere in today’s response. “In likely recognition of the fact that the statutory question does not satisfy the requirements for this Court’s review, petitioners turn to a series of bizarre constitutional arguments raised for the first time in this Court,” says Marvel. “Those arguments only underscore that none of the questions presented merits this Court’s plenary consideration.”
In a move that could have huge copyright implications for the entertainment industry if it went before the nine justices and they found in the heirs’ favor, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the SCOTUS this spring to hear their much-denied case. The heirs contended they had the right in 2009 to issue 45 termination notices to Marvel and others including Fox, Sony, Universal and Paramount Pictures on the artist’s characters under the provisions of the 1976 Copyright Act. While Kirby was publicly identified with much of the comic company’s prolific period along with Stan Lee, Marvel has won before in the courts under the understanding that the 262 works in question in this case the comic legend helped create between 1958 and 1963 — including many of the brightest stars in the Marvel Universe — were done under a work-for-hire deal and hence he nor his heirs have any rights of termination. With that in mind, Marvel initially waived any response to the SCOTUS petition. However, then the High Court itself requested they respond as the justices took the matter into conference. That initial scheduled May 15 conference was postponed as the Court awaited Marvel’s response.
“Petitioners alleged that their father, Jack Kirby — a freelancer who contributed to Marvel works in the form of commissioned drawings and under Marvel’s continuous supervision — held copyright interests in those works,” said Marvel today summing up the other side’s case. Now the response from Marvel is in, the Justices could take the matter under consideration. If they agree to hear the petition, it will be scheduled most likely for their next term which begins in October.
Getting that far is a long shot for the heirs and their lawyer Marc Toberoff. But after previous legal denials and losses, it is a long shot that could pay off. In January 2010, Marvel and Disney sued the heirs to invalidate the 2009 notices. In October 2013, the 2nd Circuit Court of Appeals denied the estate’s request for a rehearing or a full rehearing en banc. Before that there was an August 2013 denial by the appeals court on the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling on the work-for-hire arrangement with Kirby, who passed away in 1994.
The case is starting to attract some superfriends now that it is in the big court leagues. Last month, SAG-AFTRA, the WGA and the DGA submitted an amicus brief to the Supreme Court in favor of having the petition granted. “The Second Circuit’s holding in this case reaffirms a test that created an onerous, nearly insurmountable presumption that copyright ownership vests in a commissioning party as a work made for hire, rather than in the work’s creator,” said the 32-page filing of June 13 (read it here). “In doing so, it jeopardizes the statutory termination rights that many Guild members may possess in works they created. Accordingly, the Guilds and their members have a significant interest in the outcome of this critically important case.”
The thing is Marvel and the Kirbys did try to work out a deal on all this a few years back but when that failed is when everyone headed for the lawyers. Now the High Court may be aiming to work out a new deal for them both.