EXCLUSIVE: No big surprise that today Marvel and Disney asked the Supreme Court to deny a petition from the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby. “This case presents a factbound application of a test uniformly adopted by the lower courts under a statute that does not apply to works created after 1978,” said a response filed today (read it here). “It implicates no circuit split, no judicial taking, no due process violation, and no grave matter of separation of powers. It does not remotely merit this Court’s review,” added the media giant’s main attorney in the matter, R. Bruce Rich. In case, Marvel’s rejection of the heirs desires were not clear enough, the Disney-owned company really hits it hard elsewhere in today’s response. “In likely recognition of the fact that the statutory question does not satisfy the requirements for this Court’s review, petitioners turn to a series of bizarre constitutional arguments raised for the first time in this Court,” says Marvel. “Those arguments only underscore that none of the questions presented merits this Court’s plenary consideration.”
In a move that could have huge copyright implications for the entertainment industry if it went before the nine justices and they found in the heirs’ favor, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the SCOTUS this spring to hear their much-denied case. The heirs contended they had the right in 2009 to issue 45 termination notices to Marvel and others including Fox, … Read More »
Just eight days before X-Men: Days Of Future Past opens everywhere on May 23, the mutant team’s co-creator Jack Kirby will be getting some marquee attention from the Justices of the Supreme Court. Attention that could lead to Marvel and Disney arguing in front of the High Court against the Kirby heirs over the rights to the numerous characters from the X-Men to The Avengers and the Fantastic Four and many more that the comic legend co-created.
Related: Marvel & Disney Rights Case For Supreme Court To Decide Says Kirby Estate
On May 15, the nine Justices will debate in private Conference whether or not to get involved in the Kirby heir’s 5-year attempt to gain back the rights from the media giant. If the High Court agrees to the March 21 filed petition from Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby, an oral argument date will be scheduled later this month for the SOCTUS’ next term.
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 … Read More »
Catch up on the film stories you missed this week:
‘God’s Not Dead’s Kevin Sorbo Takes Hollywood & Media To Task As He Backs Crowdfunding Campaign For Telefilm On Convicted Abortion Doctor Kermit Gosnell
By Anita Busch
EXCLUSIVE: Kevin Sorbo is co-star of the past two weekends’ box office pleaser God’s Not Dead, which has pulled in $24M to date on a $2M budget. Now he is putting his name behind an Indiegogo crowdfunding campaign to help launch the tele-production of Gosnell – the story of the Philadelphia doctor who ran the abortion clinic from hell and was convicted on three counts of first-degree murder — but not without taking a shot at the media and Hollywood.
Keanu Reeves, Eli Roth To Team On Thriller ‘Knock Knock’
By Mike Fleming, Jr.
EXCLUSIVE: There are going to be plenty of film packages that spark buyers at Cannes, and here’s a fresh one that isn’t even waiting for the Croisette. Keanu Reeves has just committed to star for Eli Roth in Knock Knock, a psychological thriller that Roth wrote and will direct.
‘Game Of Thrones’ Actress Gwendoline Christie Replacing Lily Rabe In ‘Hunger Games’
By Mike Fleming, Jr.
While Lionsgate hasn’t divulged how it will deal with the tragic death of Philip Seymour Hoffman as it goes forward with The Hunger Games: Mockingjay Part 2, the studio has just confirmed that it is replacing Lily Rabe in the role of Commander Lyme with Gwendoline Christie, who plays Brienne on HBO’s Game Of Thrones. Read More »
Just days before Captain America: The Winter Soldier opens, the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby are asking the Supreme Court to hand them back the rights to the comic legends from Marvel and Disney. “The Court of Appeals unconstitutionally appropriated Kirby’s valuable copyrights and gave them outright to Marvel, effecting a transfer of wealth on a massive scale,” says the 39-page petition (read it here) filed with the high court on March 21. The petition is the latest legal attempt by Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby to assert that they had the right in 2009 to issue termination notices to Marvel and others on the artist’s characters under the provisions of the 1976 Copyright Act. A response is due from Marvel and Disney on April 28. Read More »
They tried again, but they did not succeed. Today the heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby were denied their recent petition to the 2nd Circuit Court of Appeals for a rehearing or a full rehearing en banc on whether the estate had the right to issue termination notices to Marvel on his characters back in 2009. The brief order (read it here) from the panel at the NYC-based federal court comes just more than two and a half months after the appeals court shut down the heirs’ claims against Marvel and Disney by reaffirming a 2011 lower court ruling that the comic legend was under a work-for-hire deal and hence had no rights to terminate. Four years ago, Lisa Kirby, Susan Kirby, Barbara Kirby and Neal Kirby sent 45 notices terminating copyright to publishers Marvel and Disney, as well as film studios including Sony, Universal, 20th Century Fox and Paramount Pictures that have made movies and TV shows based on boatloads of characters Jack Kirby created or co-created with Stan Lee and others. Jack Kirby died in 1994. Read More »
(UPDATE 1:55 PM) After today’s order in their favor from the Second Circuit Court of Appeals that the estate of Jack Kirby had no right to issue notices back in 2009 terminating rights to characters he co-crested, Marvel issued the following: “We are gratified by the appellate court’s definitive ruling that there is no legitimate basis to terminate our ownership of the copyrights at issue,” said a company spokesperson.
PREVIOUSLY: The heirs of Captain America, The Avengers and X-Men co-creator Jack Kirby can’t terminate Marvel’s rights to his achievements because the comic legend was under a work-for-hire deal, a federal appeals court confirmed today. The ruling (read it here) by the Second Circuit Court of Appeal Thursday reaffirmed a 2011 decision by a US District Court judge on Kirby’s employment status with Marvel and what that entitled him to. “Marvel was therefore entitled to summary judgment,” wrote Judge Robert Sack for the court. “The district court made no error, in our view, in determining as a matter of law that the works were made at Marvel’s instance and expense,” he added of Kirby’s freelancer status. However, despite the end of this appeal, the case isn’t entirely over. In deciding its jurisdiction extends to only two of Kirby’s children, the Court has allowed the possibility for Lisa and Neal … Read More »
Captain America co-creator Joe Simon has died. The legendary Simon, who collaborated with Jack Kirby on other characters as well, died Wednesday night in New York City after a brief illness. He was 98. Athough Simon was a successful artist and editor in his own right, he remains best known for his partnership with Kirby. The duo worked hand-in-glove for years and from their fertile imaginations flowed a trove of characters, heroes, villains and misfits in the Golden Age of comic books during the 1940s. They worked for Timely, the forerunner of Marvel Comics; National Periodicals, the forerunner of DC and home of Superman; and Fawcett, among others. Their partnership led to additional creations the Newsboy Legion, the Boy Commandos and many others including Blue Bolt. Simon and Kirby’s work was known for its dynamism and ingenuity. Interrupted by service during World War II, they resumed their collaboration afterward, including the first romance comics in Young Love for Crestwood Publications and horror series Black Magic and the political satire Fighting American. They were never able, however, to break free from working for other publishers. In the late ’50s they went their separate ways. Simon attempted to regain his and Kirby’s rights to Captain America from Marvel but despite a significant appellate court victory he settled with Marvel and did not regain the rights. Simon is survived by two sons, three daughters and eight grandchildren.
It was expected that intellectual property lawyer Marc Toberoff, who is suing Disney/Marvel on behalf of the heirs of legendary comics artist Jack Kirby, would appeal the decision by a federal judge in U.S. District Court for the Southern District Of New York that went against him. The judge not only granted the studio motions for summary judgment but also denied the Toberoff/Kirby’s cross-motion for summary judgment. The ruling revolved around character ownership and the fact that Kirby was a freelance writer who did work-for-hire and so didn’t retain the copyright. As Toberoff had told me at the time, “This is just the beginning.” The notice of appeal to the Second Circuit Court of Appeal was filed today. Specifically, the estate of comic book superhero legend Kirby — co-creator of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor — sent notices terminating copyright to publishers Marvel and Disney, as well as film studios that have made movies and TV shows based on characters he created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. Normally these kinds of lawsuits are run of the mill for Hollywood. But not when they’re litigated by Toberoff, who is the bane of Big Media studios because he has a winning track record.
EXCLUSIVE: Intellectual property lawyer Marc Toberoff has a winning track record when he goes after Hollywood studios on behalf of rightsholders. But not today. I’ve just learned that he lost big in Federal Court for the Southern District Of New York after suing Disney/Marvel for the Jack Kirby Estate. The federal judge not only granted the studio motions for summary judgment but also denied the Toberoff/Kirby’s cross-motion for summary judgment. The ruling revolved around the fact that Kirby was a freelance writer and did work-for-hire and so didn’t retain the copyright. Well, you win some and you lose some. But all the Hollywood studios are chortling because they now see Toberoff as vulnerable and not invincible. “This is just the beginning,” Toberoff just told me, noting that, after the Kirby Estate exercised their termination rights under the Copyright Act, Marvel (backed by Disney) was in the middle of settlement negotiations in December 2009 and sued the Kirbys on January 8, 2010 in NY to benefit from that state’s more favorable work-for-hire case law. UPDATE: The
Walt Disney Companyissued this statement regarding the Marvel Worldwide Inc. v. Kirby ruling: “We are pleased that in this case, the judge has confirmed Marvel’s ownership rights.”
Specifically, the estate of comic book superhero legend Jack Kirby, co-creator of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor, sent notices terminating copyright to publishers Marvel and Disney, as well as film studios that have made movies and TV shows based on characters he created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. Normally these kinds of lawsuits are run of the mill for Hollywood. But not when they’re litigated by Toberoff, who is the bane of Big Media. Read More »