Jack Kirby had a modest upbringing and no formal training, but his insatiable mind and passion for storytelling made him the most prolific comic-book creator/illustrator of all time. From a beat-up desk in his basement studio, Kirby created characters like X-Men, Thor, Captain America, The Avengers, Fantastic Four, Hulk—even the tree-hero Groot featured in Marvel’s hit movie Guardians of the Galaxy.
Marvel, or “the House that Jack built” to comic-book buffs, was bought by Disney in 2009 for $4.24 billion and its value has since doubled. Kirby played an immeasurable role, yet received negligible sums for his work and not even a simple royalty.
In the 1976 Copyright Act, Congress sought to remedy these imbalances by permitting artists and their families to recapture their copyrights by statutorily terminating prior grants. This allows artists to negotiate new grants which reflect their works’ true value. The sole exception is for “work-for-hire.”
In 2009, Kirby’s children thus served Marvel/Disney with termination notices. Marvel sued claiming everything was “work-for-hire,” despite wide acknowledgment that Kirby worked purely as a freelancer, and that Marvel had avoided any contractual commitment to Kirby. Nonetheless, the district court and Second Circuit summarily ruled for Marvel under a vague and presumptive “instance and expense” test roundly criticized by leading copyright experts as effectively overruled by Supreme Court precedent.
The Kirbys, represented by attorney Marc Toberoff, thus petitioned the Supreme Court for certiorari. And they have real momentum. SCOTUSblog named it “Petition of the Day.” On May 14, the Supreme Court expressed interest in the case and ordered Marvel to respond. On June 13, amicus briefs supporting the Kirbys were filed by all the Hollywood Guilds, the former Register of Copyrights, the former USPTO Commissioner, scores of artists associations, and hundreds of artists, including several Pulitzer-prize winners.
There hasn’t been a copyright case with such far-reaching implications in three decades. Should the Kirbys prevail, their victory would be shared by creators everywhere insofar as all pre-1978 works could no longer be deemed “work-for-hire” outside of conventional employment. Jack Kirbyrevolutionized the world of comics and entertainment, but the Supreme Court will write the ending of his story.