It was expected that intellectual property lawyer Marc Toberoff, who is suing Disney/Marvel on behalf of the heirs of legendary comics artist Jack Kirby, would appeal the decision by a federal judge in U.S. District Court for the Southern District Of New York that went against him. The judge not only granted the studio motions for summary judgment but also denied the Toberoff/Kirby’s cross-motion for summary judgment. The ruling revolved around character ownership and the fact that Kirby was a freelance writer who did work-for-hire and so didn’t retain the copyright. As Toberoff had told me at the time, “This is just the beginning.” The notice of appeal to the Second Circuit Court of Appeal was filed today. Specifically, the estate of comic book superhero legend Kirby — co-creator of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor — sent notices terminating copyright to publishers Marvel and Disney, as well as film studios that have made movies and TV shows based on characters he created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. Normally these kinds of lawsuits are run of the mill for Hollywood. But not when they’re litigated by Toberoff, who is the bane of Big Media studios because he has a winning track record.
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