SCOTUSblog Founder Sides With Kirby Family In Court Battle With Marvel
It’s never a safe bet to think the United States Supreme Court will take on any particular case — it only accepts a handful each year — but the credibility of Jack Kirby’s family’s case against Marvel Comics got another big boost recently.
Attorney Tom Goldstein, the founder of SCOTUSblog, one of the most widely-read online sources for Supreme Court commentary, has opted to co-represent the Kirby family as it fights for copyrights for characters Kirby co-created between 1958 and 1963, which include the Hulk, the X-Men, the Fantastic Four, and a slew of others. Goldstein’s name puts considerable muscle behind the Kirby family’s claim, which Marvel has asked the Supreme Court to dismiss because it doesn’t “merit review.”
Goldstein co-authored a Tuesday response to Marvel’s filing in which he and long time Kirby attorney Marc Toberoff contend that the justices must examine the lower courts’ uses of the “instance and expense” test, which determines whether an employer in a freelance relationship “induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out.”
Marvel contends that the work Kirby did during those years was work-for hire. The Kirbys’ attorneys say that if Kirby’s work for Marvel is considered work-for-hire, then virtually every authored work published before 1978 would qualify as work-for-hire if the author was working with a publisher during the creation of the work. (Many contracts back then did not include royalties.) The Kirbys’ brief states: “Marvel had no ‘right’ to direct Kirby; all it had was purchasing power. Kirby also shouldered all expenses of creation without any guarantee his work would sell.”
SCOTUSblog also made the Kirby v. Marvel Characters case its petition of the day on July 21, bringing it to the specific attention of court-watchers.
Things certainly seem to be heating up, but again — but the Supreme Court could end the dispute pretty quickly by deciding not to take on the case, in which case the existing rulings favoring Marvel would stand.