It looks like the final skirmish in the estate of Jack Kirby’s battle to regain copyrights for the characters he co-created at Marvel Comics is over and the Kirby family lost.The Second Circuit court has refused a new hearing on an appeals court ruling against them. Jeff Trexler has some commentary below, but it is worth noting that the Deadline story above mentions that at one point Marvel did try to settle with the Kirby Family; although we’ll probably never know what the terms of the settlement were, it’s notable in that attorney Marc Toberoff, who represented both the Kirbys and the Jerry Siegel Estate, had an aggressive approach to trying to get copyrights returned.
The Second Circuit’s decision not to rehear the Kirby appeal isn’t at all a surprise – as I noted over on The Comics Journal, the Circuit’s position on pre-1977 work-for-hire, the instance & expense test and independent contractors is well established. If that’s going to be flipped, it would have to be by the Supreme Court. A circuit court doesn’t have the authority to reverse its own precedent, despite the Second Circuit’s having done exactly that in the 1960s & 1970s when it created a mirror-universe goateed opposite of its earlier previous presumption that an independent contractor merely transferred his or her copyright for a single 28-year term.
What’s interesting about Toberoff’s petition from my perspective is that the crux of its argument is the argument from my TCJ piece,Taking Back the Kirby Case. The first part of the petition, regarding essential parties, is jurisdictional wrangling that in the end wouldn’t make much if any difference, given the 9th Circuit’s own precedent re the instance-expense test. The rest distills the main argument to its basics, stripping out a lot of the history, supporting precedent & jurisprudential gambits that one would include in a Supreme Court brief, where they would have a greater chance of having some impact.
(Also worth noting: there was some serious back-and-forth about whether Toberoff should be allowed to file an over-long brief for the rehearing petition).
As before, I’m not saying the Supreme Court will necessarily go for the TCJ argument, but if the Second & Ninth Circuits’ approach to pre-1977 work-for-hire & the instance-and-expense test are going to be reversed, that’s likely how it’s going to happen. This is a Supreme Court petition for cert that would be great to write – there’s some really interesting stuff that could be done with it.
Here are non-watermarked copies of the petition for rehearing and the court’s response.
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