Deadline reports that Marvel and the family of Jack Kirby have settled their legal battle in advance of the Supreme Court taking the case into conference. A joint statement has been released and reads as follows:
“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.”
Kirby’s children filed 45 copyright-termination notices in September 2009, under a clause of the 1976 U.S. Copyright Act, seeking to reclaim what they saw as their father’s stake in such Marvel characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk. Marvel fired back four months later, asking a federal judge to invalidate the notices on the grounds that Kirby’s work for the company was “for hire,” with the editors always retaining “full editorial control.”
A federal judge in July 2011 ruled in favor of Marvel and parent company Disney, a decision upheld in August 2013 by the Second Circuit, which found the Kirby works were made at the “instance and expense” of the publisher, which assigned and approved projects and paid a page rate. In short, the appeals court affirmed, Kirby’s contributions to Marvel between 1959 and 1963 were “work for hire,” and therefore not subject to copyright termination.
The Kirby family petitioned the U.S. Supreme Court in March, arguing the appeals court “unconstitutionally appropriated” the legendary artist’s copyrights and gave them to Marvel. The took issue with the Second Circuit’s “instance and expense” test, which considers the amount of influence and money a company has in the creation of a work, claiming it “invariably finds that the pre-1978 work of an independent contractor is ‘work for hire.'”
The heirs received notable support from Bruce Lehman, former director of the U.S. Patent and Trademark Office, who insisted in a friend-of-the-court brief that the Second Circuit disregarded both history and precedent in its definition of “employer” and application of “the instance and expense” test,” “shouldn’t be underestimated.” (Three Hollywood guilds also weighed in on behalf of the the Kirbys).
Although Marvel initially declined to respond the Kirbys’ petition, at the prompting of the Supreme Court, the company filed papers in July saying the case didn’t “remotely merit” review. Insisting the Second Circuit was correct in determining the artist’s contributions were work for hire, the publisher reiterated that Stan Lee “supervised the creation of Kirby’s work from conception to publication,” providing a plot synopsis and retaining the authority to approve the art or seek revisions; Kirby was also paid a page rate.
“It was Marvel – not Kirby – that bore the ‘risk’ and potential expense if the publication of the works was unsuccessful,” the filing states. “And all of the evidence offered by petitioners in support of the existence of a contrary agreement either provided them no aid or reaffirmed the conclusion the instance and expense test compelled. Indeed, Kirby himself repeatedly confirmed that Marvel owned all the rights to the work.”
The Supreme Court, which accepts only 100 to 150 out of the more than 7,000 cases it’s asked to review each year, had been expected to decide Monday whether it would take the case.
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