Could Marvel Lose the Rights to Key Superhero Properties?

Source: Marvel

The U.S. Supreme Court is expected to make a decision soon on whether it will hear a dispute between Marvel and the heirs of comic book legend Jack Kirby in a case that could impact the ownership of major Marvel-Disney properties including Captain America, the Fantastic Four, Iron Man, Hulk, the Silver Surfer, and many more. Now, the case is getting some major backing from some of Hollywood’s most powerful creative guilds: SAG-AFTRA, the DGA, and the WGA.

The dispute revolves around Kirby’s key contribution to some of Marvel’s biggest properties and the 1976 Copyright Act. While the 1976 Copyright Act extended the terms of copyright, it also crafted a termination provision that was meant to give authors the opportunity to reclaim their properties in the latter years of a copyright term. This was seen as a compromise: On one hand, the copyright terms were longer, but authors also had the chance to earn back their properties at a later date in case they had sold their rights when they were new to the industry and lacked bargaining power.

The situation grows complex in the Kirby case when it comes to the artist’s official contribution to the popular Marvel properties. Although Kirby co-created many of the characters and superheroes, Kirby has been deemed a “work for hire” who created “commissioned work” for statutory author Marvel. That means that Kirby, who passed away in 1994, never had any termination rights under the 1976 Copyright Act.

But Kirby’s designation as a freelance worker is now under attack in what could impact the Supreme Court’s decision to hear the case after courts had previously denied efforts to terminate copyright grants.

Important figures who have already pushed for the Supreme Court to hear the case include Bruce Lehman, the former U.S. Patent and Trademark Office director and chief adviser to President Bill Clinton on intellectual property rights; Ralph Oman, the chief minority counsel of the Senate’s IP subcommittee at the time of the 1976 Copyright Act’s consideration; the Artist’s Rights Society; the International Intellectual Property Institute; and several others. And now, SAG-AFTRA, the DGA, and the WGA will join the fight in what they call a “critically important case.”

By creating an impossible hurdle for creators to overcome, the instance-and-expense test hands purchasers a windfall gift, particularly in light of Congress’ extensions of the copyright term in the 1976 Act and the 1998 Copyright Term Extension Act,” the guilds said in a statement.

Attorney Steven Smyrski said, per The Hollywood Reporter: “From its beginnings in the 1930s through the 1960s, the comic book business was very much a flyby-night industry. Jack Kirby’s career is emblematic of its haphazard, un-businesslike nature during this period.” The practices Smyrski refers to include requiring freelancers to work from home, payment via each page created versus salary, requirements that artists purchase their own art supplies, and taxes that weren’t withheld. 

The argument is sure to continue to gather momentum, especially if the Supreme Court does rule that it will hear the case. If it should rule in favor of Kirby’s estate, there would be a huge ripple effect in all areas of entertainment, starting with the future of Disney-Marvel’s hugely popular series of superhero films. But it could be the music industry that follows the proceedings more closely than anyone else.

In particular, artists like Bruce Springsteen or Madonna, whose legacy works continue to bring in huge sales despite not needing much marketing, could have their rights returned. The DGA, WGA, and SAG-AFTRA guilds’ brief noted that “a review of Rolling Stone magazine’s top-500 songs of all-time list reveals that nearly 75 percent were created prior to the effective date of the 1976 Act.” The music industry, like the other entertainment industries, has also continued to see artists and workers dispute the notion of “work for hire” and push to further define the murky area.

It’s safe to say that a lot is riding on the Supreme Court’s decision to take on the appeal, and the heavy support to push it through makes it seem likely that it does so. Considering that copyright laws have increasingly come under fire for being tipped against creators, it will be interesting to see if this case could be the one that gives power back to creators. We should know in the next couple of days what the Supreme Court’s course of action will be.

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