With “Captain America: The Winter Soldier,” “The Amazing Spider-Man 2” and the upcoming “X-Men: Days of Future Past” hitting theaters in a tight frame of time, Marvel Studios is sitting high up on the catbird seat. In turn, the estate for legendary Marvel artist and co-creator, Jack “The King” Kirby, will debate over the rights to numerous comic book characters such as the Fantastic Four, The Avengers and the X-Men in front of the nine Justices of the Supreme Court.
On May 15th, a private Conference will be held to decide whether the Justices will get involved in the Kirby estate’s five-year attempt to gain back the rights from Marvel. If the High Court agrees to the March 21st filed petition from Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby, an oral argument date will be scheduled later this month for the SCOTUS’ (Supreme Court of the United States) next term.
The decision to have a private Conference has dealt a blow to Disney and its’ Marvel Studios property due to their successive victories in the lower courts. The initial petition was dismissed by Disney’s attorney R. Bruce Rich when a waiver was filed with the Supreme Court. New York City based law 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.” Five days later, the Kirby estate’s petition was distributed among Chief Justice John Roberts and the other Justices. Disney and Marvel are in the precarious position of having to rethink their strategy.
Disney and Marvel’s nonchalant demeanor stems from the Kirby estate’s attempt to assert that they had the right in 2009 to issue termination notices to Marvel and others using the artist’s characters where they had no traction before. Those notices went out to publishers Marvel and Disney, as well as film studios that have made movies and television shows based on characters Kirby created or co-created, including X-Men distributors 20th Century Fox, Sony, Universal and Paramount Pictures. Kirby passed away in 1994.
On the other side of the table, Marvel and Disney sued the estate to invalidate the notices on January 8, 2010. In October 2013, the Second Circuit Court of Appeals denied the estate’s request for a rehearing or a full rehearing en banc (by the full court.) That followed an August 2013 denial by the appeals court of the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling that the comic book legend was under a work-for-hire deal and hence had no rights of termination.
The legal problem began after Disney and Marvel attempted to strike up some sort of deal with the heirs over Kirby’s co-creation of Captain America in the 1940s and his Silver Age 60s work with then Marvel editor-in-chief Stan Lee on such comic book titles as Fantastic Four, Iron Man, The Hulk, The Silver Surfer and Thor and many, many others.
The Kirbys’ attorney Marc Toberoff stressed that the 2009 notices were correct under the provisions of the 1976 Copyright Act. Toberoff is an experienced lawyer in this field who has represented the heirs to Superman creators’ Jerry Siegel and Joe Shuster in their long and tumultuous battle with Warner Bros. and DC Comics.
From the late Jack Kirby’s perspective, he was no fan of the work-for-hire system. The legendary artist drew the first five issues of Destroyer Duck in 1982 in the hopes that the publication would raise awareness and money for the late writer Steve Gerber’s legal struggle over the rights to Gerber’s co-created Howard the Duck character.
In the spirit of keeping the rights and creative control to his characters, Kirby created Captain Victory and the Galactic Rangers for Pacific Comics in 1981. Comic book publisher, Dynamite Entertainment, will relaunch the series in July with a slew of top notched artists lined up to follow in the footsteps of the man who drew his characters bigger than life.