In an earlier post I discussed a lawsuit between Marvel and the heirs of Jack Kirby, the legendary comic creator. The suit concerned who was the statutory author of several superhero characters, including Captain America, the X-Men, and Spider-Man, just to name a few. Kirby’s heirs asserted that Kirby, under the Copyright Act of 1909, was the statutory author and, therefore, they could exercise termination rights over the properties (and recapture the copyright in the works notwithstanding any agreement to the contrary) pursuant to the Copyright Act of 1976.
However, today the Hollywood Reporter reported that the parties announced a settlement. This announcement comes only days before the Supreme Court would have discussed the case at conference and decided whether to grant cert. Today’s settlement is sure to disappoint many who had kept a close eye on this case as a decision from the Supreme Court had the potential to cause massive reverberations throughout the entertainment industry.
While I was very interested to see if the Supreme Court would grant review and, if so, how the case would have come down, I am not surprised to see a settlement. As I had previously noted, there were compelling arguments made by both sides as to whether commissioned works, such as Kirby’s, were even eligible to be works made for hire under the Copyright Act of 1909. On the one hand, the Copyright Act of 1909 left several terms undefined, which properly fell to the courts to construe. But, on the other hand, it was clear that the Second Circuit cases that developed the “instance and expense” test rested on highly suspect grounds.
It remains unclear whether commissioned works can be works made for hire under the Copyright Act of 1909, but, for now, “instance and expense” is still the test in the Second Circuit. It would be foolish, however, to think that this issue will not arise again. Given the Supreme Court’s interest up until this point as well as the amicus briefs filed by several entertainment labor unions and respected intellectual property experts, it may not be too long before the next challenge. But, instead of a superhero, we might be hearing about a (music) superstar. Not that the two are mutually exclusive…
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Image: “Debut of Dazzler” by . Licensed under Fair use of copyrighted material in the context of Dazzler via Wikipedia – http://en.wikipedia.org/wiki/File:Debut_of_Dazzler.jpg#mediaviewer/File:Debut_of_Dazzler.jpg