The Kirby vs Marvel battle is not quite over yet. According to Dominic Patten the Supreme Court will actually discuss whether to hear the case on May 15th. As you may recall, the case involves Jack Kirby’s heirs suing Marvel for rights to the characters he co-created during his long Marvel career. Although Marvel has prevailed at every step of the legal process, including many appeals, it has still got this far, perhaps due to the issues that Jeff Trexler discussed here, which suggested that an obscure legel facet of the case might be of interest to the Supremes. According to Patten, Marvel/Disney did not take the possibility of SCOTUS taking on the case very seriously:
Marvel and Disney are probably shocked that after their successive victories in lower courts this case is even been discussed in Conference. They certainly didn’t seem to take the initial petition very seriously. On April 24, the media giant’s attorney R. Bruce Rich filed a waiver (read it here) with the Supreme Court. The lawyer from NYC firm Weil Gotshal & Manges LLP said the respondents “did not intend to file a response to the petition…unless one is requested by the Court.” Being that the Kirby estate’s petition was distributed among Chief Justice John Roberts and the other Justices 5 days later, Disney and Marvel might want to rethink that move or rather lack thereof now.
While it’s still a very long shot that this will be herd or that Marvel won’t win again…never say never.
The second comment on the Deadline story contains a long post that reads as if it came from the Kirby lawyer Marc Toberoff, but it does contain some interesting reminders:
2) Marvel has to date produced no documents signed by Jack Kirby prior to 1972. (See court documents.) Nor is Marvel likely to. In fact, Marvel is currently in the process of quietly approaching any and every creator responsible for any property that is being used in the films, TV, Netflix, wherever, in the order of priority, offering either buyouts or as little as they possibly can. Marvel does not want any brush fire to burn out of control as a result of one creator achieving success through the courts, and they know their biggest weakness is the lack of documentation throughout their company’s history.
I’ve been hearing whispers about this for a while, and Marvel’s lack of actual paperwork remains a ticking time bomb under the desk that even Alfred Hitchcock would find suspenseful.
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.