It looks like the final skirmish in the estate of Jack Kirby’s battle to regain copyrights for the characters he co-created at Marvel Comics is over and the Kirby family lost.The Second Circuit court has refused a new hearing on an appeals court ruling against them. Jeff Trexler has some commentary below, but it is worth noting that the Deadline story above mentions that at one point Marvel did try to settle with the Kirby Family; although we’ll probably never know what the terms of the settlement were, it’s notable in that attorney Marc Toberoff, who represented both the Kirbys and the Jerry Siegel Estate, had an aggressive approach to trying to get copyrights returned.

As much as in our hearts, we might wish otherwise, the courts have decided in both Warners and Marvel’s favor. But a new age—an age of better awareness for creators—has arrived, and hopefully no one will ever sign agreements as one-sided as Siegel, Shuster and the Marvel creators did. And here’s Jeff:

The Second Circuit’s decision not to rehear the Kirby appeal isn’t at all a surprise – as I noted over on The Comics Journal, the Circuit’s position on pre-1977 work-for-hire, the instance & expense test and independent contractors is well established. If that’s going to be flipped, it would have to be by the Supreme Court. A circuit court doesn’t have the authority to reverse its own precedent, despite the Second Circuit’s having done exactly that in the 1960s & 1970s when it created a mirror-universe goateed opposite of its earlier previous presumption that an independent contractor merely transferred his or her copyright for a single 28-year term.

What’s interesting about Toberoff’s petition from my perspective is that the crux of its argument is the argument from my TCJ piece,Taking Back the Kirby Case. The first part of the petition, regarding essential parties, is jurisdictional wrangling that in the end wouldn’t make much if any difference, given the 9th Circuit’s own precedent re the instance-expense test. The rest distills the main argument to its basics, stripping out a lot of the history, supporting precedent & jurisprudential gambits that one would include in a Supreme Court brief, where they would have a greater chance of having some impact.

(Also worth noting:  there was some serious  back-and-forth about whether Toberoff should be allowed to file an over-long brief for the rehearing petition).

As before, I’m not saying the Supreme Court will necessarily go for the TCJ argument, but if the Second & Ninth Circuits’ approach to pre-1977 work-for-hire & the instance-and-expense test are going to be reversed, that’s likely how it’s going to happen. This is a Supreme Court petition for cert that would be great to write – there’s some really interesting stuff that could be done with it.

Here are non-watermarked copies of the petition for rehearing and the court’s response.

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  1. Don’t stop Kirby family.
    Corporate Marvel needs to remove head from ass and make a better settlement to them.

  2. @David a

    Where did you see the terms of settlement? It’s not in the documents in the article above, and the article says we’ll probably never know what’s in that settlement. But it appears you have some knowledge of the settlement. Can you please share it with the rest of us? Thank you.

  3. I must have missed the part where Trexler said the ” final skirmish ” was over.
    Toberoff has already indicated a willingness to appeal to the SCOTUS. There is also some possibility of Neal and Lisa Kirby pursuing a case in California.

  4. Would it be possible to reformat Jeff Trexler’s comments in a way which does not have the link he provided to the full petition by Toberoff and the courts 57 page order . The link is so far down the page a person would have to scroll down to see it.
    I’m seeing reports in various places which seem to think the one page provided by DEADLINE HOLLYWOOD was the full extent of the ruling.

  5. As much as in my heart I’d love to see the Kirbys succeed in this endeavor, I think it is far from a black and white situation; both sides have arguments for and against them, and I wouldn’t blame any court for ruling in Marvel’s favor.

    However, after reading Jeff’s piece for, I really hope they go to the Supreme Court and manage to set a new precedent, since it would be way more than a legal and moral victory for the Kirbys; it could have a lasting, positive impact in the way the law acknowledges creator’s rights!

  6. I’d have loved to have seen the Kirby family win this case but now I think they should compromise and settle for this: for Jack to be credited as creator/co-creator on ALL of the characters he originated, starting with the Silver Surfer, which is undeniably his.

    Not too much to ask for there, eh? This way, Jack will never be forgotten like Siegel & Shuster.

  7. To quote me from my tumblog:
    A real lawyer would be multitasking. That is, trying to cut a deal. Of course, I’d be surprised if ownership, while impossible, is not negotiable because that’s what Toberoff wants. And if the family would have been happy with credit and money, he’s done them a real disservice. To say the least.
    [In other words, one of these situations where maybe the lawyer wanted more than the clients did. To their detriment.]
    As if. Terrible, awful case, closing to getting shut down.

    Decision is here.

    I’m sure there’s a petition to the Supreme Court (almost definitely to be denied — will have to meditate on whether the conservative access sees any issues they feel need to be addressed but I’m doubtful).

    Then, this case only involved two of the kids. Theoretically, the other two can bring their own action. If so, Marvel will move to toss it based on the findings in this action (presuming the kids even have standing to bring their own action), then the appeal, the denied request for a rehearing and another rejection by the Supreme Court.

    Then closure.

    And maybe then, Marvel would be agreeable to having the estate sign off on Lee got: A chunk of change in exchange for giving up any ownership interests they might have. And widespread creator credits would be nice.

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