Kurt Busiek -- a creator best known for his work on series like "Astro City," "Marvels," "JLA/Avengers" and many more -- is also something of an expert when it comes to the Marvel/Jack Kirby estate legal battle that was recently settled before it went under consideration to go to the Supreme Court. In two separate posts on the CBR Community -- here's Busiek's first post on the Kirby situation and his second on the matter -- the Eisner-winning writer gives not only a detailed timeline of how the legal battle began but also the reasoning behind it, and theorizes why Marvel decided to settle out of court.
Part of Busiek's post was a clarification: the Kirby estate did not sue Marvel, Marvel sued the Kirby estate when it filed for termination of copyright assignment, a move that Jack Kirby himself was in support of before his passing.
"So what happened wasn't that the Kirby family sued Marvel just because they one day decided to up and want more money. They didn't even sue. What they did was file for termination of copyright assignment -- the very thing that the law allows creators to do. They didn't do this against the wishes of Kirby himself -- Kirby had been all for doing it, ever since the law had been changed. But they had to wait a certain amount of time, and Kirby didn't live long enough to see it happen. But he was always on board with it."
According to Busiek, the "crux of the case" is actually a question of ownership: "It's not about whether Kirby knew Marvel got all rights -- both work-for-hire and an all-rights-sale would give Marvel all rights anyway," Busiek wrote. "It's about whether Kirby owned the rights and sold them, or whether he was just an employee, and Marvel owned all his ideas before they even came out of the pencil."
Additionally, Busiek posits a theory as to why Marvel decided to settle -- and it has to do with various organizations, including the Writer's Guild, the Director's Guild, the Screen Actor's Guild and more, filing amicus briefs that argued Marvel's current definition of employee is "not workable."
"[I]f the Supreme Court upholds it, it'll create chaos for other industries, where things that used to be classed as rights sales suddenly got redefined as work for hire. So they wanted the Supreme Court to hear the case and decide that no, the rules of work for hire don't work that way.
"And that's where things sat until Friday, when Marvel and the Kirbys settled, on the last possible business day before the Supreme Court started discussing whether to take the case.
"Based on that, it sure doesn't look like Marvel's throwing the Kirbys a few bucks to go away. If that's what they wanted to do, they could have done that any time within the last few years. Whoever blinked, it was the side that had the most to lose if the case went to the Supreme Court and risked a ruling they didn't like.
"That wasn't the Kirbys -- they were already getting nothing, so the Supreme Court deciding against them wouldn't hurt them any.
"But Disney/Marvel has billions on the line. They don't want to risk losing that. Not even with a pro-business Supreme Court likely to rule for them. Because they're not sure the Court would rule for them. Not with a bunch of people on the other side who make IP contracts their life -- including one of the guys who helped write the 1978 Copyright Law. If that guy is saying, "No, no, it doesn't work that way," there's too much of a chance that the Court will listen.
"So my prediction is: All the public changes you see coming out of this are going to be favorable to the Kirbys. Probably the first thing you see will be creator credits. And the family's going to suddenly be financially secure, like their father/grandfather wanted them to be."
For Kurt Busiek's full breakdown, read his CBR Community posts explaining the situation.