ByKit Simpson Browne, writer at
Writer-at-large. Bad jokes aplenty. Can be gently prodded on Twitter at @kitsb1
Kit Simpson Browne

Jack Kirby is arguably the most important man in Marvel comics history. Stan Lee may well get the plaudits and the cameos, but Kirby - who died in 1994 - was just as responsible for the creation of The X-Men, The Fantastic Four, The Hulk, Iron Man and The Black Panther. He even co-created Captain America, way back in 1940. Without Jack Kirby, there's no Avengers, no X-Men, no Fantastic Four.

Which, if his estate has its way, could be where we're headed.

Aw, man. Not again...
Aw, man. Not again...

Since 2009, Kirby's heirs have been suing Marvel for the rights to his 1960's comic-book creations - which includes those teams listed above. This legal challenge has stumbled along the way, but it's still going as of right now - and might be about to step up to the highest court in the land.

The case was closed in Marvel's favor years ago, but has been steadily making its way through the appeals courts. Last year, it was rejected by the 2nd Circuit court of appeals - but ever since, Kirby's estate has been attempting to get the U.S. Supreme Court to hear one final appeal. Lately, they've been making some significant headway. What's more, Hollywood has now joined the fight - on Kirbys' side.

Several Hollywood guilds representing actors, directors and writers have joined together to support the case - SAG-AFTRA, the DGA and the WGA - and when those guys join together, you know they mean business.

Like, serious business.
Like, serious business.

But just what is this all about, anyway? Why are the guilds joining with the Kirby's in their effort to regain the rights to those characters - and why is that so important anyway? To answer that, we have to go all the way back to the 1960s:

The Law:

When Jack Kirby and all of the other legendary comic-book creators came up with all of those incredible characters, they tended to do so under an unusual form of employment - 'work for hire'. This basically means that whatever the employee creates is not owned by them, but by their employer. In Kirby's case, this means that although he himself designed those characters back in the 1960s, and did so under distinctly independent conditions (he was a freelancer who worked from home, received no benefits and wasn't reimbursed for expenses), they do not belong to him under the law as it currently stands.

However, flash forward to 1976, and everything changes.


The Copyright Act of that year reinforced this system of 'work for hire', but it did something else, too: after a certain point, authors who had sold their system could now reclaim their rights towards the end of the period of copyright.

That's what Jack Kirby's estate is attempting to do.

So What's the Problem?:

The problem is that as far as the courts are concerned, that work remains owned by Marvel. This is because of something known as the 'instance and expense' test, which is basically a fancy name for working out whether or not the employer was the one who prompted the employee to create the product in the first place - if they caused it to be made, and paid for it, it's theirs.

The argument, then, comes down to whether Jack Kirby created the iconic characters independently, or at the prompting of Marvel.

Pictured: Prompting.
Pictured: Prompting.

The appeals court found in favor of the latter:

"Although Jack Kirby was a freelancer, his working relationship with Marvel between the years of 1958 and 1963 was close and continuous...Understood as products of this overarching relationship, Kirby's works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel's assignment or with Marvel specifically in mind. Kirby's ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby's creation of the works."

In other words, Kirby was getting a bum deal, but he was still acting under orders from Marvel themselves. All of his works, they concluded, were purely 'commissioned'. Which leaves the rights with Marvel.

So. Case closed, right? Marvel keep the Avengers, and we get to keep watching, and loving, the MCU...

Not quite.

Not quite at all...
Not quite at all...

You ain't seen nothing yet:

The thing is, this whole process is important for a whole bunch of people other than Kirby's heirs. This system of 'work for hire' remains a reality for millions of people around the country - millions of freelancers, who work without the security of a work space, insurance, benefits, minimum wage protection or job security.

If this case were to go to the Supreme Court, and win its appeal, then it could change everything. It's possible that they could state that it is only possible to be one of two things: Either a true freelancer, in which case you retain the rights to your own work unless you explicitly transfer them, or a full employee, in which case you give up the rights to your work, but received supporting benefits in return. Kirby falls in the middle of that - with courts finding him a de facto employee, because of his close working relationship with Marvel, despite him having received none of the benefits of actually being one.

Despite being an ACTUAL king.
Despite being an ACTUAL king.

If that were to happen, then the entire system of rights ownership in countless industries could be forever altered - and hundreds of thousands of people could seek to reclaim ownership of products previously owned by those who hired them to create them. That's why all of those guilds are getting involved - the potential ruling could effect all of their members - and all of us, too.

So, what's next?

It all depends on the Supreme Court. If they choose to accept the appeal, then they would eventually provide the ultimate ruling on the matter. The guilds have put forward an Amicus brief on the subject (basically an unsolicited document that the writer of which thinks is relevant to a case) in which they argue that the 'instance and expense' test has been unfairly deployed. If, they suggest, all commissioned works belong exclusively to the original employer, then the test becomes meaningless.

If the Supreme Court take on the appeal on the basis of this core argument - that some commissioned works have to be able to revert back to their original author, irrespective of them having being created under 'work for hire' conditions - then what comes after could be unexpected - and incredibly exciting.

Just like Rocket Raccoon...
Just like Rocket Raccoon...

It could also strip Marvel of the rights to most of the Avengers, and Fox of their rights to The Fantastic Four and The X-Men. Eventually, it could alter the way that movie rights operate completely - in ways incredibly difficult to predict.

Depending on how that all went, and how the dust settled, we could end up seeing far more movies featuring our favorite superheroes - or far, far fewer.

[The Avengers: Age Of Ultron](movie:293035) is set for release May 1, 2015.


What do you guys think? Who's the hero in all this?

via The Hollywood Reporter


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