The Jack Kirby Estate Has Reached Settlement With Marvel

The Jack Kirby Estate Has Reached Settlement With Marvel

Kirby Thor

At almost the last possible moment, the heirs to comics legend Jack Kirby have accepted an unspecified offer from Marvel. Meanwhile, critical issues related to the case will remain unresolved.

Holy crap. With less than a week to go before the United States Supreme Court began considering whether or not to hear arguments between the estate of Jack Kirby and Marvel Comics, the two parties have announced that a settlement has been reached.

A statement was issued just over an hour ago:

"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."

Confirming this state of affairs, the Kirby estate has also moved to request that SCOTUS dismiss its petition.

At issue were the copyrights pertaining to numerous characters Kirby created or co-created during his long tenure with Marvel including Thor, Iron Man, Groot, The Incredible Hulk, and many more. These characters have earned billions for The House of Ideas, but famously, Kirby never saw a cent in royalties from their exploitation. He died without the issue ever being resolved, but his surviving family have since 2009 been fighting Marvel in courts to secure ownership of the copyrights to those characters under provisions of the 1976 US Copyright Act.

However, courts in 2011, 2012 and 2013 ruled against the Kirby estate on the basis of what's known as "the instance and expense test." That concept, first articulated in a 1972 Second Circuit Court Decision, holds that if a contract doesn't specifically secure a freelancer's rights, if the work in question was created at the specific request of the employer, if the employer provides or funds materials necessary for the work, and if that employer is entitled to "supervise and direct" the work, the contract worker cannot claim the right to copyright ownership.

Related: Is Jack Kirby's Family Greedy? Who Cares!?

Marvel's position was that Kirby, always employed on a freelance basis, created work on demand (on a work-for-hire basis), thus the business relationship met all the criteria for the instance and expense test. However, in April of this year, the Kirby estate changed tactics, arguing that Marvel was never actually obligated to accept any of Kirby's submissions. Kirby retained ownership of submissions Marvel did not accept, and in addition, so his estate says, he was required to cover his own expenses. Therefore, the argument went, his work did not fall within the parameters of the issues and expense test.

This had potentially huge implications. Had SCOTUS ultimately ruled in the Kirby estate's favor, it would have radically narrowed the definition of work-for-hire and drastically affected the relationship between publishers and freelancers, particularly involving work created prior to the Copyright Act of 1976. Most importantly, such a decision could have become cited precedent for cases like the bubbling legal battle between the estate of Batman co-creator Bill Finger and DC Comics.

Though it is far from certain that SCOTUS would have ruled in favor of Kirby's estate (this court has been wildly inconsistent when dealing with issues of copyright), the possibility must certainly have given Marvel enormous incentive to settle out of court. Alas, while this settlement is most likely great news for the Kirby estate, it unfortunately punts these issues. Details of the settlement are, for now at least, confidential. As a result, at present we have no idea what Marvel offered the Kirby estate. But as Deadline notes, it must have been a substantial offer.

Source: Deadline

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Sounds like they were playing a game of chicken.

Kirby's estate knew that it was unlikely to win, and lose everything, but had remote possible to win.
Disney knew that they were likely to win, but a possible loss would be devastating to the entire industry.

Both had ample reason to make sure this ended. Took long enough.

It would have been nice to see it go to court if only to establish some non-financial rules about copyright and ownership. Disney can throw enough money at any problem to solve it, but an open resolution on what exactly it means to create something, and what kind of credit a creator is due, was what I was hoping would happen. I don't blame either party for doing what was in their best interest and settling, but this is something that will be dealt with sooner or later (especially now that so many people are doing contract work full-time as a career in a variety of fields, with little hope of ever getting the idealized lifetime position with a company).

I think Disney may have also realized that there was a significant cash value to not having a case with potential negative PR value ("Disney screws artist who helped create classic characters, news at 11") get as high as the Supreme Court.

Not sure how to feel about this, I really wish I knew what the conditions where when Steve Gerber settled decades ago.
Marvel has done a good job over the years of stifling any legal precedence being made in their realm of "Work for Hire"!

I think the estate played chicken as long as they could. But there was so low of a chance of this being heard by SCOTUS as to make it all but negligible. Disney was willing to pay a bit to cover those slight odds. But they were insanely slight. With no conflicting lower court decisions on an issue that has fairly current precedent and minimal broader implications (this really is simply a financial civil suit between parties regarding contracts. Contrary to what the rabid Kirby fans will tell you it is not something with broad societal implications). Unless there were a couple of SCOTUS justices that grew up reading Jacks work chances are there is nothing in this that would have sparked their attention.

So, in the end, a bunch of people who had absolutely nothing to do with this creation get a bunch of money, without even resolving anything. Bleh.

In my opinion I think the artist that creates something should have rights to some of the profit from it regardless if it is a freelance/contractor doing the work or an employee. They should also be recognized for it in some fashion like credits in movies or books.

If artists will get some of the profits until copyright expires I think more will work harder to innovate and create something better. If the employees are busting butt to do that so they can get a share of profits it will help the company out far more than having all employees bored and not giving a shit even if they have to share profits.

JET1971:
In my opinion I think the artist that creates something should have rights to some of the profit from it regardless if it is a freelance/contractor doing the work or an employee. They should also be recognized for it in some fashion like credits in movies or books.

If artists will get some of the profits until copyright expires I think more will work harder to innovate and create something better. If the employees are busting butt to do that so they can get a share of profits it will help the company out far more than having all employees bored and not giving a shit even if they have to share profits.

And most modern publishers will agree with you. Most have evolved to be more inclusive in this regard. But it does not change the terms and contracts from earlier generations.

am i the only one who thinks scotus is a horrible acronym
please, let's never use scotus again

 

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