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On Friday, Marvel ended a long and bitter feud with the estate of comic book legend Jack Kirby, announcing a settlement just days before the U.S. Supreme Court had scheduled a conference to discuss whether to take up a case with potentially billions on the line.
“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,” read a joint statement from Marvel and the Kirby family.
The settlement, which will surely please shareholders of Marvel parent Disney as much as it will disappoint many others in the entertainment industry, brings an end to a contentious lawsuit that started after Kirby’s family, represented by attorney Marc Toberoff, began sending termination notices to Marvel and its licensees Sony, Fox and Universal over such superhero characters as Spider-Man, X-Men, Captain America, Iron Man, Incredible Hulk and others. Marvel sought a declaration that the termination notices were invalid.
The case never got to trial after a judge — and later the 2nd Circuit Court of Appeals — determined that when Kirby was doing most of his work in the 1950s and 1960s with colleagues such as Stan Lee in a working environment dubbed the “Marvel method,” he had contributed his materials as a “work made for hire.” As such, Marvel was considered the statutory author, and Kirby (and his heirs) never had any termination rights under the 1976 Copyright Act.
The lawsuit seemed like it was headed toward a historical footnote when all of a sudden, the Kirby estate’s attempt to get high court review gathered steam. Most petitions for cert are denied, but after some respected intellectual property veterans weighed in with amicus briefs, the Supreme Court ordered Marvel to respond. The studio eventually did just that, but the hot dispute also was commanding the attention of both Hollywood labor guilds as well as the respected lawyer who founded Scotusblog, who signed on to represent the Kirby side.
Why the dispute was being closely watched went beyond whether Kirby could grab back a share of iconic characters. It even went beyond whether Marvel would have full control over profits from these characters as it launched new Avengers movies.
As those supporting Kirby’s drive to the Supreme Court would tell it, the case represented the balance of power between creative contributors on one side and studios who manage production and distribute works on the other. It dealt with how to interpret who is an “employer” under the 1909 Copyright Act — before copyright law got amended — and whether courts should go broad by adopting the “instance and expense” test and fitting all commissioned works under the umbrella, or whether the courts should go narrow, potentially allowing other iconic works like James Bond to be terminated.
The appellant believed that Congress created the termination provisions in the 1970s as a bargain — to allow authors and their heirs to enjoy the fruits of the latter part of the newly extended copyright term. Without wide birth, however, the terminators, who often signed away rights when they were in the early stages of their careers, would never get to exploit such rights.
On the other hand, Marvel told the high court that this case was a poor vehicle to explore such issues.
The case now ends, and hopefully, the terms of the agreement are told at a later date. Surely Kirby’s estate got something (money, promise of credits or the return of original art). Meanwhile, the Hollywood unions and IP observers who hoped for some legal clarity will have to wait for the next superhero involved in an epic struggle that only the nine justices of the Supreme Court can solve.
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