Kirby Case to SCOTUS more likely?

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captain victory Kirby Case to SCOTUS more likely?

The family of Jack Kirby’s quest to regain some rights to the Marvel characters still has a chance to go all the way to the Supreme court, as THR’s sturdy legal expert Eriq Gardner reports. Gardner quotes some amicus (friend of the court, i.e. supporting document) briefs by experts as weighing in favor of it being heard:

It was authored by Bruce Lehman, former director of the U.S. Patent and Trademark Office and the chief advisor to President Bill Clinton on intellectual property matters. He writes on behalf of himself, former U.S. register of copyrights Ralph Oman (who served as chief minority counsel of the Senate’s IP subcommittee during the consideration of the 1976 Copyright Act), the Artists Rights Society (whose past members included Jackson Pollock and Pablo Picasso), the International Intellectual Property Institute and others.

But before getting into what’s said in this brief (provided below), we’ll turn to another amici curiae brief (also below) that offers a better set-up to what exactly is disputed. This one comes from Mark Evanier, a comic book historian who once apprenticed for Kirby and has been an advisor to Marvel, DC Comics and Dark Horse Comics. He joins John Morrow, another Kirby historian, as well as the PEN Center USA, one of the most prestigious organizations of novelists, poets, playwrights and screenwriters.


Although the Kirby case has gotten much further along in its journey to the Supremes than most of us ever thought, observers still pint out that it has one element that makes it being heard unlikely: a lack of division among lower court rulings. Marvel/Disney has won at every level of the court system. And the business-friendly current make-up of the Supreme Court makes a Kirby victory kind of unlikely, no matter how many heavy hitters weigh in on the amicus briefs.

That said, Kirby was always an underdog. And the fact that the underlying elements of the case—the meaning of the ‘instance and expense’ test to prove whether work was work for hire/on staff or independent—have been prominent enough that the court has actually ASKED for brief is telling as well.

Looks like this is going to go all the way down to the wire. 


Comments

  1. Nicholas Winter says:

    And when did one or more Justices agree for this case to be on the docket for oral arguments? Could someone cite a reputable news source that confirms this?

    As much as it’d social justice for Kirby himself to have gotten a better contract, his heirs haven’t shown any novel legal angle that’d make SCOTUS consider this as a case worth hearing.

    Oh and does anyone know if Kirby expressed dissatisfaction with his work for hire status?

  2. The Kirby case isn’t on the docket for oral agreements, at least not yet. The judges are still deciding whether or not to take it up.

    A major reason the Supreme Court may hear the case is to clear up the controversy with CCNV v. Reid. While the substance of that ruling, which was unanimous, isn’t under dispute, a problem has arisen from a tangential passage in the decision’s text. .

    The purpose of the CCNV decision was to affirm that the 1976 Copyright Act means what it says with regard to work-for-hire from 1978 onward, i.e., the relationship has to be agreed to in writing beforehand. (The work in question in the case was a sculpture that was done in the early 1980s.) However, Thurgood Marshall, who wrote the ruling, included a historical narrative in which he asserted at one point that the 1976 law implicitly made this retroactive to work created under the 1909 law. That assertion is the basis for much of the Kirbys’ appeal.

    Now since that issue had no relevance to the CCNV case, lower-court judges up to now have refused to treat the assertion as having any precedental value. (One judge dismissed it as “mere dicta.”) They’re right to the extent that it’s a matter that probably shouldn’t have been discussed in the CCNV ruling, and needed to be adjudicated separately.

    If SCOTUS is going to be deciding that the 1976 Copyright Act’s work-for-hire provisions were implicitly retroactive to work created under the 1909 law, it’s best to do that in a case involving work that was created under the 1909 law, with arguments being made from both sides of the issue. The Kirby case gives them that opportunity.

  3. That should be “oral arguments,” not “oral agreements.” Sorry.

  4. Zaragosa says:

    @NicholasWinter

    “Oh and does anyone know if Kirby expressed dissatisfaction with his work for hire status?”

    In the final decade or so of his life, Kirby expressed a metric shit-ton of dissatisfaction with all aspects of how he had been treated by Marvel. From their refusal to return thousands of pages of his original art to the lack of credit he received for essentially co-writing every story he ever did with Stan Lee to, yes, his spurious “work for hire” status. Seek out the interview Kirby did with Gary Groth fromTCJ — it’s a particularly rich vein of (justifiable) anger from Kirby, directed at the venerable House of Ideas (his, mostly). Kirby was never even close to properly remunerated for what he did. And I’m quite sure he would rather have his grandkids and their families rightfully share in the financial legacy he clawed out — instead of the now multi-billion dollar corporation that crapped on him. It would never have been hard for Marvel to “make this right” — they have chosen not to. Crooked, one-sided contracts signed under duress decades ago are far from iron-clad legal documents, despite what corporate apologists may wish. Viva Kirby, Gerber, Wolfman and all else who deserved a whole hell of a lot better than this industry gave them.

  5. patrick ford says:

    Zaragosa , I’d suggest people seek out earlier interviews. Not because TCJ isn’t a good example, but because it is often claimed Groth manipulated Kirby during the interview. There are numerous earlier interviews where Kirby says the same things he repeats in the interview with Groth, while he is being interviewed by people who seem interested in the idea of the “Happy Bullpen.” I’d recommend the interview with Mark Borax from AMAZING HEROES, The interview with Howard Zimmerman from COMICS SCENE (1982) or the interview with Leonard Pitts. The Howard Zimmerman interview is particularly good and predates the Groth interview by seven years.

  6. patrick ford says:

    http://asip-repro.org/lehman_bio.html

    “Prior to entering private practice, Mr. Lehman worked for nine years in the U.S. House of Representatives as counsel to the Committee on the Judiciary and chief counsel to the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. He was the Committee’s principal legal adviser in the drafting of the 1976 Copyright Act…”

  7. Bruce “Ban Fair Use” Lehman, as some academic friends call him, is an enemy in neon to arts journalists, scholars of all stripes, and their readerships. If he had his way, sites such as this one and tcj.com would not be economically feasible, as they would be required to pay a licensing fee for every last piece of art they publish that isn’t in the public domain. In general, the man’s view of copyright law is as pro-corporate as can be. It is best described as fascist. Regardless of whether people like what he wrote in his amicus brief for the Kirbys, I really do not get the enthusiasm comics people have for him lending his support. Would civil libertarians jump for joy if Robert Bork came out in public support for one of their causes? Would human-rights advocates be so enthused if John Yoo or David Addington backed one of theirs?

  8. Zaragosa says:

    “…The idea Kirby’s story changed is largely inaccurate. Kirby was saying as early as 1969 while he was still at Marvel that he created the characters. The idea Groth manipulated Kirby is even more inaccurate. There are interviews with Kirby by Leonard Pitts, Mark Borax, Howard Zimmerman, and many others from the same era where Kirby relates many of the same stories he told Groth.”

    – Patrick Ford
    TCJ Comments Thread:
    Taking Back the Kirby Case
    By Jeffrey Trexler
    August 31, 2013
    2:31PM

    Patrick, your comment from last year quoted above appears to contradict the spirit of your recent comment to me on the issue of whether Groth manipulated Kirby in the famous TCJ interview. Not trying to play “Gotcha!”… But I am genuinely curious as to what may have caused your evolution of thought on this issue?

  9. patrick ford says:

    Zaragosa, I don’t see the contradiction. In both cases I’m saying Groth did not manipulate Kirby, and Kirby had told very much the same story in earlier interviews. I’m not sure what you see in the two comments which is contradictory. As far as I can tell they say the exact same thing.

  10. Pedro Bouça says:

    Not sure if the Siegel case would have been a better choice. The Siegels actually won on the first tier and the reason the lost at a higher court was because a past agreement with DC that the publisher hadn’t followed on.

    Seems to me a stronger case than the Kirby one. Note that if the Kirbys lose (very likely), it’ll become a reference case against creator rights in the future!

  11. Torsten Adair says:

    Two sidebars:
    1) The Copyright Term Extension Act expires in 2019. That is, works created in 1923 will enter the public domain that year, unless Congress passes another law.

    2) The music business is now starting to see the beginning of copyright reversion. Warners just settled with Prince. He gets his master recordings, Warner gets to re-release those recordings.
    Of course, the RIAA is fighting this with the Work For Hire defense.
    http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html?pagewanted=all&_r=0

    There are two copyrights in music: the actual printed composition (sheet music) and the recording. Generally, the sheet music is copyrighted by the musicians immediately, and licensed to whichever publisher issues the recordings. (Karaoke fans notice these lengthy copyright notices at the end of each video.)

    It is also possible that a rock star, when extending a contract or moving to another publisher, can negotiate the rights for future works. (Comic strip artists have done this to escape from syndicate contracts.)

  12. Pedro–

    The legal issues in the Siegel case aren’t the same as the ones in the Kirby suit. The original Superman story in Action Comics #1 wasn’t produced on a work-for-hire basis. Siegel and Shuster had been shopping it around for years before DC took interest. DC purchased it from them; they didn’t commission it.

  13. Another great resource for details of Kirby’s “dissatisfaction” (to put it mildly!) is Sean Howe’s book, “Marvel Comics: The Untold Story.” The interviews mentioned above are great, but Sean has the benefit of hindsight and impartiality; he puts each step of the dispute into a human context and it’s the only account I’ve found so far that gets to some of the emotional aspects of the situation. Like most bad things in life, the bitter end was the result of a long series of slights and misunderstandings, and Kirby and Lee seem to have spent their primary working years trying to resolve them with no success. Kirby may not have started off upset, but years of simmering some rage boiled over in that famous TCJ interview.

    Kirby never tried to regain any ownership of the characters he created at Marvel, but his “work for hire status” is not as cut and dried as that sounds. No one at Marvel before the ’70s even thought about these terms; since no (or few) contracts were in place then, all of today’s legal decisions about Kirby and work-for-hire depend on a modern interpretation of circumstances fifty years ago.

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