Supreme Court to decide whether to hear the Kirby case later this month

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The Kirby vs Marvel battle is not quite over yet. According to Dominic Patten the Supreme Court will actually discuss whether to hear the case on May 15th. As you may recall, the case involves Jack Kirby’s heirs suing Marvel for rights to the characters he co-created during his long Marvel career. Although Marvel has prevailed at every step of the legal process, including many appeals, it has still got this far, perhaps due to the issues that Jeff Trexler discussed here, which suggested that an obscure legel facet of the case might be of interest to the Supremes. According to Patten, Marvel/Disney did not take the possibility of SCOTUS taking on the case very seriously:

Marvel and Disney are probably shocked that after their successive victories in lower courts this case is even been discussed in Conference. They certainly didn’t seem to take the initial petition very seriously. On April 24, the media giant’s attorney R. Bruce Rich filed a waiver (read it here) with the Supreme Court. The lawyer from NYC firm Weil Gotshal & Manges LLP said the respondents  “did not intend to file a response to the petition…unless one is requested by the Court.” Being that the Kirby estate’s petition was distributed among Chief Justice John Roberts and the other Justices 5 days later, Disney and Marvel might want to rethink that move or rather lack thereof now.


While it’s still a very long shot that this will be herd or that Marvel won’t win again…never say never.

The second comment on the Deadline story contains a long post that reads as if it came from the Kirby lawyer Marc Toberoff, but it does contain some interesting reminders:

2) Marvel has to date produced no documents signed by Jack Kirby prior to 1972. (See court documents.) Nor is Marvel likely to. In fact, Marvel is currently in the process of quietly approaching any and every creator responsible for any property that is being used in the films, TV, Netflix, wherever, in the order of priority, offering either buyouts or as little as they possibly can. Marvel does not want any brush fire to burn out of control as a result of one creator achieving success through the courts, and they know their biggest weakness is the lack of documentation throughout their company’s history.


I’ve been hearing whispers about this for a while, and Marvel’s lack of actual paperwork remains a ticking time bomb under the desk that even Alfred Hitchcock would find suspenseful.

Comments

  1. patrick ford says:

    Thanks for highlighting that comment. It was not there when I read the story yesterday and I probably would never have gone back and noticed it.

  2. John Layman says:

    The Roberts court will always defer to corporations. Kirbys don’t stand a chance.

  3. If it is heard, it’ll be interesting to see who files an amicus brief and for which side. That’s the point things get really interesting.

  4. Torsten Adair says:

    That reversion clause applies to other copyrights as well…

    http://www.billboard.com/biz/articles/news/legal-and-management/6069987/prince-gets-masters-back-which-labels-say-scares-us

    “Despite its title, the act took effect in 1978 — copyrights to albums released that year and onward began to expire in 2013. As a result, in recent years, dozens of acts, including the Eagles, Billy Joel, The Police, Blondie and Journey, have filed termination notices, which sets the stage for a watershed moment that one label executive says “scares us silly.”
    Not surprisingly, label executives say they prefer negotiation to litigation over termination notices for fear of triggering a landmark ­precedent-setting case. One says that since artists can only reclaim their master-recordings rights in the United States, a label might agree to pay enhanced international royalty rates, if a termination notice is waived. Or, a label may offer the master copyright when facing an artist’s audit or lawsuit over digital royalty payments.”

  5. I’m all for supporting creators, but i would rather the money Kirby makes after his death go to some museum of his work, not his kids that seem a little too money hungry for me. And is it that crazy that Marvel didn’t keep their business documents from 40+ years ago, most company’s don’t keep files that long. For example, American Banks only are required to keep records for 8 years.

  6. horatio weisfeld says:

    I’m all for supporting creators, but i would rather the money Kirby makes after his death go to some museum of his work
    >>
    @tomstewdevine:
    Not following your logic here — if the Kirby heirs happen to win the case then (far as I understand) they would simply be receiving whatever assets came to them as “inheritance” — so since all sorts of people pass on their wealth and all sort of people (who had nothing to do the creation of that wealth other than being related) receive (all sorts of) wealth in this manner – and you say you are supporting creators – then why do you think to (or “rather”) discriminate against creators in this manner?

  7. The upside for the Kirby name is that all this legal wranglings is improving brand recognition. In other words, Jack Kirby’s name is becoming more and more familiar to the general public.

  8. @horatio – I’m of the mind that most inheritance is B.S. , but then it’s tough to stomach that when the company can continue to rake in billions off the character. I’m torn here.

  9. horatio weisfeld says:

    @chris:
    I wasn’t suggesting anything in regard to the whole concept of inheritance — merely that (things being as they may) I don’t subscribe to the notion that creators (or, in this case, creator’s heirs) are somehow less deserving than, say, members of the family that owns the corner gas station – or the investment banker who lives next door and may leave his kids a pile of Disney stock — I don’t think artists or their heirs (who see fit to hire lawyers) have become “money hungry” — HEY ARTISTS: LAWYER UP! (LOL)

  10. Let me put it this way. Kirby would have wanted the money to go to his kids and grand kids. Since none of that money would have existed without him and it needs to go in somebody’s pockets, then it should go to his family.

  11. patrick ford says:

    Torsten makes an important point above. If the Supreme Court decides to take a look at the case it won’t be because of the lawsuit Disney filed against Kirby heirs.
    There are a lot of these copyright reversion cases going forward and set to go forward and the interpretation of the law seems to be all over the place on the part of various courts. Even the Second Circuit Court of Appeals seems to issue different rulings depending on which panel of judges is reviewing a case.
    So it may well be the Supreme Court thinks there is a need for clarity.

  12. horatio weisfeld says:

    Kirby would have wanted the money to go to ..
    >>
    @Jamie Coville:
    I don’t think it matter what Kirby might have have possibly wanted either – what does matter is that the particulars of law stand somewhere today and maybe somewhere else tomorrow – and the heirs of an artist/creator have the same rights under law as everyone else.

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