Just days before the Supreme Court was set to take the matter into conference, Marvel and the family of Jack Kirby have settled their long running legal dispute over the comic legend’s rights to the characters he created or co-created. Here’s their joint statement:
“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.”
Widely viewed as one of the Kings of Comics, Kirby created or co-created some of the biggest names on the page and now on the big screen in the superhero blockbusters that Hollywood has profited from in recent years. However, while his often partner Stan Lee was a Marvel employee, Kirby was a work for hire and had no rights to Captain America, The Fantastic Four, the Hulk, Iron Man, Thor, the original X-Men and the plethora of other characters he played a pivotal part in bringing to life. The settlement between Marvel/Disney is confidential, but you don’t have to be a Supreme Court Justice to know that if a deal was reached this late in the process, it must be a healthy one for the Kirbys – who were holding a lot of the cards for once. Further concluding the matter, the Kirbys today have also notified the SCOTUS that they now want their petition dismissed.
It was a long legal road for them and Marvel to get to today’s deal. 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 on the matter. In their petition, the heirs wanted SCOTUS to rule in favor of their assertion that they had the right in 2009 to issue termination notices on 262 works that the comic legend helped create between 1958 and 1963. Those 45 notices went out to Marvel/Disney, Fox, Sony, Universal and Paramount Pictures and others who’ve made films based on the artist’s characters under the provisions of the 1976 Copyright Act. Marvel sued in 2010, after failing to reach an agreement back then with the Kirby family to invalidate the termination notices. Jack Kirby himself passed away in 1994.
All things considered, and with the billions that Marvel/Disney have made off the films filled with characters Kirby created, this 11th hour deal should come as no great surprise – except for how long it took them. The bottom line and PR risk that the media giant was taking if SCOTUS had agreed to move the family’s petition up to an actual hearing would have sent a shudder through the market and the town. As well, if there had been a hearing and if then the High Court had found for the Kirbys, the results would have thrown Marvel/Disney into turmoil as they would have to negotiate for millions and millions with the family on everything from The Avengers, this summer’s big hit Guardians Of The Galaxy, with the popular Groot character a Kirby creation, and the all the characters in the notices if they wanted to keep the franchises going at Disney and other studios. And there would have been royalties on the already made movies like the 2008 hit Iron Man and 2012’s The Avengers with its billion dollar plus box office, to name a few. As well a wide variety of copyrights across the industry, including those at Warner Bros and DC Comics, would suddenly be in play as the work of writers, composers and others designated under a freelancer or the work for hire status could suddenly gain a piece of what they created in what would now be seen as a much more traditional employee/employer arrangement.
Despite initial indifference and then objections from Disney-owned Marvel, SCOTUS agreed to take the case into conference to consider if they would actually hear it. That conference, where the nine Justices would ostensibly be sitting around talking about comic as well as copyright, was scheduled for September 29. The Kirby family and their legal point had a lot of support and not just among the fanboys. SAG-AFTRA, the WGA and the DGA back in June submitted an amicus brief to the High Court in favor of having the Kirbys’ petition granted.
Today’s deal between the parties has to come as a victory for Kirby main lawyer Marc Toberoff. Long a fighter for heirs and estates for rights, the LA-based attorney was more successful here than in his work representing the heirs to the Superman creators in their long copyright battle with WB and DC. R. Bruce Rich led a team from NYC’s Weil, Gotshal & Manges LLP representing Marvel.