I’m late linking to this, but it took a while to get through it since it’s full of legal reasoning. Frequent Beat legal contributor Jeff Trexler has jumped over to the Comics Journal for an essential look at the Kirby Case, its ruling and what might have been the thinking behind some of them. Warning, Not easy reading, but no one covers comic book copyright laws like Trexler.
Nonetheless, as I re-read last week’s opinion affirming that Jack Kirby’s Marvel material was work made for hire, I started noticing certain aspects of the three-judge panel’s reasoning that made me wonder if there were more to this case than just another reason for creators to feel discouraged. For example, in her 2011 summary judgment opinion against the Kirbys, Judge Colleen McMahon began with a most unusual disclaimer, all but apologizing for the fact that her ruling was grounded in law, not fairness. The appellate court made no such distinction. Instead, its Marvel v. Kirby opinion sent the clear message that its ruling was fair and just.
This face-off over fairness was both a challenge and a clue. Could it be that the case has exposed fundamental problems not merely with how Marvel treated Kirby, but with the law itself?
In a hard to summarize argument, Trexler wonders if some of the underpinnings behind the interpretations of the 1909 and 1976 Copyright Acts might be important enough for a Supreme Court review. Still seems a long shot, but after reading Trexler’s piece, you’ll see why work for hire copyright issues remains problematic.