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You may have never heard of Jack Kirby, but you've heard of X-Men, The Fantastic Four, and The Incredible Hulk? Kirby created, or co-created, all of them -- and more -- between 1958 and 1963, when he was an independent contractor for Marvel Comics.
Last Friday, a surprise announcement sent a shockwave through the legal-comics community. The estate of Jack Kirby and Marvel Entertainment had reached a settlement, meaning the Kirby v. Marvel cert petition would likely be withdrawn from the Supreme Court's consideration.
The Copyright Act of 1909 gives a deceased author's heirs the authority to terminate prior copyright transfers. Kirby's children did exactly this in 2009 -- the same year Disney acquired Marvel Entertainment. (Kirby died in 1994.)
Marvel countered that there was one exception to this transferability, and that was "works for hire," which generally means any copyrighted material an employee creates during the scope of his employment. Marvel contended that, even though Kirby was an independent contractor, "work for hire" encompasses independent contractors, too.
The Second Circuit brought down the Hammer of Thor, finding Kirby's characters were created at Marvel's "instance and expense," meaning Kirby created them at Marvel's request, Marvel was involved in the entire process, and Marvel had the last word on the drawings. For purposes of the Copyright Act, said the court, it didn't matter how Kirby was classified as an employee; what mattered was whether his relationship with Marvel satisfied the "instance and expense" test.
In March, the estate submitted a cert petition to the Supreme Court. The petition was among those that the justices were scheduled to consider their first conference on September 29, and it presented interesting questions, like whether the Second Circuit's test can be allowed to circumvent employment and contract law when it comes to copyright termination, and whether employment status is determined at the inception of the relationship or can be determined based on ex post factors like "discretionary payment."
But the settlement renders the petition moot -- and also leaves the question of lucrative copyrights for characters made for hire (which used to be quite prevalent) still on the table. Notably, Bill Finger languishes in obscurity. You've never heard of him, but you've heard of Robin, the Joker, Bruce Wayne ... and so on. Basically the entire Batman back story, supporting characters, and the parade of villains, were allegedly the works of Finger, even though Bob Kane has received sole credit for Batman since the character's inception in 1939. Now that "Gotham" is a TV show -- which contains basically all of Finger's characters -- Finger's estate may decide that its time for royalties is nigh.
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