The family of Jack Kirby’s quest to regain some rights to the Marvel characters still has a chance to go all the way to the Supreme court, as THR’s sturdy legal expert Eriq Gardner reports. Gardner quotes some amicus (friend of the court, i.e. supporting document) briefs by experts as weighing in favor of it being heard:
It was authored by Bruce Lehman, former director of the U.S. Patent and Trademark Office and the chief advisor to President Bill Clinton on intellectual property matters. He writes on behalf of himself, former U.S. register of copyrights Ralph Oman (who served as chief minority counsel of the Senate’s IP subcommittee during the consideration of the 1976 Copyright Act), the Artists Rights Society (whose past members included Jackson Pollock and Pablo Picasso), the International Intellectual Property Institute and others.
But before getting into what’s said in this brief (provided below), we’ll turn to another amici curiae brief (also below) that offers a better set-up to what exactly is disputed. This one comes from Mark Evanier, a comic book historian who once apprenticed for Kirby and has been an advisor to Marvel, DC Comics and Dark Horse Comics. He joins John Morrow, another Kirby historian, as well as the PEN Center USA, one of the most prestigious organizations of novelists, poets, playwrights and screenwriters.
Although the Kirby case has gotten much further along in its journey to the Supremes than most of us ever thought, observers still pint out that it has one element that makes it being heard unlikely: a lack of division among lower court rulings. Marvel/Disney has won at every level of the court system. And the business-friendly current make-up of the Supreme Court makes a Kirby victory kind of unlikely, no matter how many heavy hitters weigh in on the amicus briefs.
That said, Kirby was always an underdog. And the fact that the underlying elements of the case—the meaning of the ‘instance and expense’ test to prove whether work was work for hire/on staff or independent—have been prominent enough that the court has actually ASKED for brief is telling as well.
Looks like this is going to go all the way down to the wire.
Heidi MacDonald is the founder and editor in chief of The Beat. In the past, she worked for Disney, DC Comics, Fox and Publishers Weekly. She can be heard regularly on the More To Come Podcast. She likes coffee, cats and noble struggle.