Jack Kirby Estate Settles

[The Ultimate Nullifier]

Marvel & Jack Kirby Family Settle Long-Running Legal Dispute

Marvel and the family of Jack Kirby have reached an 'amicable' agreement, settling their legal battle in advance of the Supreme Court taking the case into conference.


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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.

[The Ultimate Nullifier]

deadline.com/2014/09/jack-kirby-marvel-settlement-lawsuit-supreme-court-hearing-841711/

Just days before the Supreme Court was set to take the matter into conference, Marvel and the family of Jack Kirby have settled their long running legal dispute over the comic legend’s rights to the characters he created or co-created. Here’s their joint statement:



“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.”

Widely viewed as one of the Kings of Comics, Kirby created or co-created some of the biggest names on the page and now on the big screen in the superhero blockbusters that Hollywood has profited from in recent years. However, while his often partner Stan Lee was a Marvel employee, Kirby was a work for hire and had no rights to Captain America, The Fantastic Four, the Hulk, Iron Man, Thor, the original X-Men and the plethora of other characters he played a pivotal part in bringing to life. The settlement between Marvel/Disney is confidential, but you don’t have to be a Supreme Court Justice to know that if a deal was reached this late in the process, it must be a healthy one for the Kirbys – who were holding a lot of the cards for once. Further concluding the matter, the Kirbys today have also notified the SCOTUS that they now want their petition dismissed.

It was a long legal road for them and Marvel to get to today’s deal. After failing repeatedly in lower courts, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the High Court on March 21 for a hearing on the matter. In their petition, the heirs wanted SCOTUS to rule in favor of their assertion that they had the right in 2009 to issue termination notices on 262 works that the comic legend helped create between 1958 and 1963. Those 45 notices went out to Marvel/Disney, Fox, Sony, Universal and Paramount Pictures and others who’ve made films based on the artist’s characters under the provisions of the 1976 Copyright Act. Marvel sued in 2010, after failing to reach an agreement back then with the Kirby family to invalidate the termination notices. Jack Kirby himself passed away in 1994.



All things considered, and with the billions that Marvel/Disney have made off the films filled with characters Kirby created, this 11th hour deal should come as no great surprise – except for how long it took them. The bottom line and PR risk that the media giant was taking if SCOTUS had agreed to move the family’s petition up to an actual hearing would have sent a shudder through the market and the town. As well, if there had been a hearing and if then the High Court had found for the Kirbys, the results would have thrown Marvel/Disney into turmoil as they would have to negotiate for millions and millions with the family on everything from The Avengers, this summer’s big hit Guardians Of The Galaxy, with the popular Groot character a Kirby creation, and the all the characters in the notices if they wanted to keep the franchises going at Disney and other studios. And there would have been royalties on the already made movies like the 2008 hit Iron Man and 2012’s The Avengers with its billion dollar plus box office, to name a few. As well a wide variety of copyrights across the industry, including those at Warner Bros and DC Comics, would suddenly be in play as the work of writers, composers and others designated under a freelancer or the work for hire status could suddenly gain a piece of what they created in what would now be seen as a much more traditional employee/employer arrangement.

Despite initial indifference and then objections from Disney-owned Marvel, SCOTUS agreed to take the case into conference to consider if they would actually hear it. That conference, where the nine Justices would ostensibly be sitting around talking about comic as well as copyright, was scheduled for September 29. The Kirby family and their legal point had a lot of support and not just among the fanboys. SAG-AFTRA, the WGA and the DGA back in June submitted an amicus brief to the High Court in favor of having the Kirbys’ petition granted.

Today’s deal between the parties has to come as a victory for Kirby main lawyer Marc Toberoff. Long a fighter for heirs and estates for rights, the LA-based attorney was more successful here than in his work representing the heirs to the Superman creators in their long copyright battle with WB and DC. R. Bruce Rich led a team from NYC’s Weil, Gotshal & Manges LLP representing Marvel.

[The Ultimate Nullifier]

deadline.com/2014/09/jack-kirby-marvel-settlement-lawsuit-supreme-court-hearing-841711/

Just days before the Supreme Court was set to take the matter into conference, Marvel and the family of Jack Kirby have settled their long running legal dispute over the comic legend’s rights to the characters he created or co-created. Here’s their joint statement:



“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.”

Widely viewed as one of the Kings of Comics, Kirby created or co-created some of the biggest names on the page and now on the big screen in the superhero blockbusters that Hollywood has profited from in recent years. However, while his often partner Stan Lee was a Marvel employee, Kirby was a work for hire and had no rights to Captain America, The Fantastic Four, the Hulk, Iron Man, Thor, the original X-Men and the plethora of other characters he played a pivotal part in bringing to life. The settlement between Marvel/Disney is confidential, but you don’t have to be a Supreme Court Justice to know that if a deal was reached this late in the process, it must be a healthy one for the Kirbys – who were holding a lot of the cards for once. Further concluding the matter, the Kirbys today have also notified the SCOTUS that they now want their petition dismissed.

It was a long legal road for them and Marvel to get to today’s deal. After failing repeatedly in lower courts, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the High Court on March 21 for a hearing on the matter. In their petition, the heirs wanted SCOTUS to rule in favor of their assertion that they had the right in 2009 to issue termination notices on 262 works that the comic legend helped create between 1958 and 1963. Those 45 notices went out to Marvel/Disney, Fox, Sony, Universal and Paramount Pictures and others who’ve made films based on the artist’s characters under the provisions of the 1976 Copyright Act. Marvel sued in 2010, after failing to reach an agreement back then with the Kirby family to invalidate the termination notices. Jack Kirby himself passed away in 1994.



All things considered, and with the billions that Marvel/Disney have made off the films filled with characters Kirby created, this 11th hour deal should come as no great surprise – except for how long it took them. The bottom line and PR risk that the media giant was taking if SCOTUS had agreed to move the family’s petition up to an actual hearing would have sent a shudder through the market and the town. As well, if there had been a hearing and if then the High Court had found for the Kirbys, the results would have thrown Marvel/Disney into turmoil as they would have to negotiate for millions and millions with the family on everything from The Avengers, this summer’s big hit Guardians Of The Galaxy, with the popular Groot character a Kirby creation, and the all the characters in the notices if they wanted to keep the franchises going at Disney and other studios. And there would have been royalties on the already made movies like the 2008 hit Iron Man and 2012’s The Avengers with its billion dollar plus box office, to name a few. As well a wide variety of copyrights across the industry, including those at Warner Bros and DC Comics, would suddenly be in play as the work of writers, composers and others designated under a freelancer or the work for hire status could suddenly gain a piece of what they created in what would now be seen as a much more traditional employee/employer arrangement.

Despite initial indifference and then objections from Disney-owned Marvel, SCOTUS agreed to take the case into conference to consider if they would actually hear it. That conference, where the nine Justices would ostensibly be sitting around talking about comic as well as copyright, was scheduled for September 29. The Kirby family and their legal point had a lot of support and not just among the fanboys. SAG-AFTRA, the WGA and the DGA back in June submitted an amicus brief to the High Court in favor of having the Kirbys’ petition granted.

Today’s deal between the parties has to come as a victory for Kirby main lawyer Marc Toberoff. Long a fighter for heirs and estates for rights, the LA-based attorney was more successful here than in his work representing the heirs to the Superman creators in their long copyright battle with WB and DC. R. Bruce Rich led a team from NYC’s Weil, Gotshal & Manges LLP representing Marvel.

[The Ultimate Nullifier]

variety.com/2014/biz/news/marvel-jack-kirby-heirs-settle-dispute-over-superhero-rights-1201314563/

The family of Jack Kirby and Marvel Entertainment have resolved a long-running legal dispute over the rights to some of the most popular characters in Marvel’s library, including “Spider-Man” and “X-Men.”

“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,” the litigants announced in a joint statement on Friday.

The family had been seeking Supreme Court review of their appeal of lower court rulings that largely sided with Marvel.

Kirby’s heirs had sought to terminate grants of copyrights to the characters, under a clause of the 1976 Copyright Act, but Marvel contended that they continued to own the characters because Kirby was working “for hire.” The latter is an exception to artists and families who seek to terminate grants of copyrights.

After the Kirby heirs sent out 45 notices in 2009 seeking to terminate the assignment of copyrights in comics featuring works like “The Incredible Hulk,” “The Avengers” and “The Fantastic Four,” Marvel sued, seeking a court determination that Kirby’s work on the characters was “for hire.” The litigation concered a total of 262 works published between 1958 and 1963.

A federal court sided with Marvel in 2011, and an appellate court upheld the determination that Kirby’s work was “for hire.”

The family, represented by Marc Toberoff, had been seeking Supreme Court review, and the high court was set to consider whether to take it at its conference on Monday. Their writ of certiorari had drawn the support of organizations like SAG-AFTRA, which argued that the 2nd Circuit Court of Appeals decision in favor of Marvel created “an onerous, nearly insurmountable presumption that copyright ownership vests in a commissioning party as a work made for hire, rather than in the work’s creator.” Bruce Lehman, former director of the U.S. Patent and Trademark Office, also weighed in in favor of the Kirby heirs, arguing that the law in the late 50s and early 60s was that the definition of a work made “for hire” applied only to traditional employees and not freelancers.

Marvel, however, argued that Kirby’s contributions to the works were made at Marvel’s instance, under the editorial and stylistic direction of its editor at the time, Stan Lee.

If the Supreme Court had taken the case, it would have had tremendous implications not just for Marvel, a unit of the Walt Disney Co., but DC Comics as well, as it put into question the definition of what constituted works made “for hire” during the golden age of comics in the 1950s.