Settling is not how Marvel fights usually end
October 7, 2014 2:53 AM Subscribe
Marvel and the Kirbys’ eleventh-hour settlement—just as SCOTUS was poised to decide whether to take up the case—has been interpreted by some as an admission on Marvel’s part that the Kirbys’ case was stronger than they first allowed. It does seem reasonable to infer that Marvel was incented to settle before things got more complicated, or hazardous, for them. Yet the fact that the case never came to trial (the original 2011 decision was a summary judgment, not a trial verdict) makes it hard to know just what the calculations were on both sides. Interpreting the result as an unalloyed triumph or affirmation for either side would probably be too big a leap. Again, nothing is yet known publicly beyond the official joint statement: a single sentence.The long running lawsuit Marvel had undertaken against the estate of Jack Kirby was recently settled. Kirby scholar Charles Hatfield examines what this settlement might mean for the Kirby estate and comics in general.
In a CBR forum thread, comics writer Kurt Busiek explains how the Kirby estate could file for copyright reversal and why Marvel sued:
So when the Fantastic Four were created, under the law, Marvel only expected to own them for a maximum of 56 years, since that was the maximum length of copyright at the time. At the end of that period, the FF would go into the public domain.Alison Frankel further explains why this case was of importance beyond just comics, because it could've decided whether or not many freelancers would be able to file for copyright reversal:
So if Congress was saying that sale was actually going to be for much longer (95 years, I believe), then the buyer was getting a much better deal, and the seller should get a chance to get a better deal too. So Congress allows the creator to revert the sale, thus being able to make more money off of the extended copyright period.
So Marvel's argument is that everybody knew it was work for hire, and because Marvel assigned Kirby work and paid him whether the work was accepted or not, then that makes it work for hire. The Kirby Estate's argument is that no, everybody didn't know it was work for hire, and because Kirby made up stuff on his own and didn't get paid for rejected work, he was an independent contractor making an all-rights sale, which is now revertible under the law.
And various organizations started filing amicus briefs -- the Writer's Guild, the Director's Guild, the Screen Actor's Guild and others, including the former head of the US Patent and Trademark Office and the former US register of copyrights (who helped write the very laws this case is based on) and others. And they argued that Marvel's definition of employee is not workable, and that if the Supreme Court upholds it, it'll create chaos for other industries, where things that used to be classed as rights sales suddenly got redefined as work for hire. So they wanted the Supreme Court to hear the case and decide that no, the rules of work for hire don't work that way.
But Disney/Marvel has billions on the line. They don't want to risk losing that. Not even with a pro-business Supreme Court likely to rule for them. Because they're not sure the Court would rule for them. Not with a bunch of people on the other side who make IP contracts their life -- including one of the guys who helped write the 1978 Copyright Law. If that guy is saying, "No, no, it doesn't work that way," there's too much of a chance that the Court will listen.
Granted, 1976 seems like a long time ago, but not when you think about all of the movies, shows, books and records based on old works. A brief by the Screen Actors Guild and other unions representing creative artists, for instance, says that 200 of the songs on Rolling Stone’s top 500 of all time list were released before 1978. As record labels’ copyrights on those songs expire, the brief said, the artists who sold their rights won’t be able to reclaim them under the so-called “instance and expense” test applied in the Kirby case.More background information can be found on Hatfield's Kirby v Marvel page. There's of course also the Supreme Court's case page.
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