In 2009, Disney paid a stunning $4 billion to scoop up Marvel Entertainment, at which point the booming comic book giant had Captain America: The First Avenger, Thor, and The Avengers in development. What’s the common denominator across those three movies? They’re all based on characters Jack Kirby co-created. How much was Jack Kirby’s family set to make in this $4 billion Disney takeover? Nada. Zilch. Zero. So, within days of the Disney announcement the Kirby family met with lawyers, and a month later they delivered 45 copyright-termination notices, seeking to reclaim their father’s stake in not just Cap, Thor, and The Avengers but also X-Men and Fantastic Four, among many others. This was perfectly in keeping with the Copyright Act of 1976 which allows creators to re-claim copyrights after 56 years as long as the copyright pre-dates 1978. Thus began a 5-year battle of consistent defeats mixed with minor victories in the court system until the Kirbys sought to take their case to the United States Supreme Court.
Then, the day before the Supreme Court was to decide whether or not to hear the case, Marvel settled with the Kirbys out-of-court. Prior to this point, the Kirbys were getting absolutely nothing from Marvel. Now, they’re presumably getting a tiny piece of the action, or at least a one-time-only big pay-out. Good for them. However, speaking to Laws.com, Kirby family attorney Marc Toberoff warned the entertainment industry, “At some point there will be another case like this.”
Well, of course he would say that because in addition to representing the Kirbys he’s also been representing the heirs of Superman creators Jerry Siegel and Joe Shuster, who similarly sought assistance from the Supreme Court this year. That’s not to say that the Kirby and Siegel/Shuster cases are exactly similar. Marvel settled with the Kirbys because they might actually have had a legitimate case. DC isn’t going to settle with Siegel/Shuster because in their opinion they already settled with them back in 1992 after Shuster died. In the aftermath of his death, his sister, Jean Peavy, asked DC to pay her brother’s final debts and expenses, which they agreed to. They also granted increased survivor benefits, and added the following language into the contract, “This agreement would represent the author/heir’s last and final deal with DC and would fully resolve any past, present, or future claims against DC.”
Well, that was a stroke of brilliance. The Siegel/Shuster heirs were seeking to execute copyright terminations as per the Copyright Act, just as the Kirbys were. However, the courts decided that the 1992 agreement voided any legal claim they might have had under the Copyright Act. The only option left was the Supreme Court. That’s not going to happen. Earlier this morning, the Supreme Court denied Siegel/Shuster’s appeal, offering no explanation for their rejection, as is often the Supreme Court’s way.
So, Jack Kirby’s been taken care of. Nobody at Fox has to worry about legal challenges to its film rights to The Fantastic Four and The X-Men just as Marvel can continue cranking out Avengers-related films. Now, it appears that Siegel/Shuster has been dealt with. Warner Bros. can crank out all the Superman product it wants now. This is great news for Hollywood, right?
Kind of. The Screen Actors Guild of America, Directors Guild, and Writers Guild had each thrown their support behind the Kirby estates’ efforts to get their case to the Supreme Court, as explained by THR:
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.
It’s all very technical, but basically the Kirby case was defeated through a utilization of the “instance and expense” test to determine if he was “work for hire.” This “instance and expense” test was first established by the 9th Circuit in 1965:
[W]e believe that when one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature, that in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done
So, anyone who’s a work for hire has no copyright claim meaning that the publisher (or movie studio, record label, etc.) obviously owns the copyright. The fear is that anyone in Hollywood looking to seek copyright terminations as per the provisions of the Copyright Act of 1976 can, after what happened to Kirby’s heirs, be defeated through usage of the “instance and expense” test. Even if they could actually win, that test has set up a legal barrier which could make litigation far too costly. There was hope that the Kirby suit would clear everything up in the Supreme Court, but now that’s not going to happen nor will it with the Siegel/Shuster case.
For now, our comic book movies should be safe from future legal challenges, at least the Kirby and Superman-related ones. Plus, Jack Kirby’s heirs are finally getting some credit/piece of the action. It’s a win-win, though obviously not so much for Siegel/Shuster. There were those who thought the Jack Kirby case was far bigger than just some kids of an old comic book guy looking for a fair deal. It was going to be the case to decide whether or not certain musicians or directors or writers are going to be legally hosed down the road or successfully reclaim their share of copyright as per the law. As Marc Toberoff warned, “At some point there will be another case like this.” That’s so tomorrow, though.