Should the Kirby Family Have Settled?

On Veterans Day Marvel celebrated Jack Kirby’s military service with photos and recollections from Kirby’s son Neal. Does this collaboration prove that the Kirby heirs triumphed in their fight for justice, or did their settlement betray creator’s rights?

A little over a month ago, the Supreme Court was on the verge of giving new life - or dealing the final blow - to the attempt by Jack Kirby’s son Neal and daughters Barbara, Lisa and Susan to claim the copyright such iconic characters as Spider-Man, the Fantastic Four, X-Men and the Avengers. What the Court would have decided we may never know for sure, since the company and the family settled just days before the scheduled date for the Court to decide whether to take the case.

For many in the pop culture community the settlement was a clear Kirby victory, with the subsequent credit for Jack Kirby in Marvel comics, the corporate tributes, and the Bleeding Cool report of a mid-eight-figure cash payout vindicating the King’s struggle to gain recognition and fair compensation for creating the Marvel universe. Yet for some fans and creators this settlement came at a steep price: it abandoned countless other freelancers who could have had a clear claim to their own copyrights if the Kirby case had succeeded in reversing decades of publisher-friendly precedent. Instead of establishing that freelancers originally owned the copyright in their original material, courts will now continue to assume that work by non-employees was mere work-for-hire.

Should the Kirbys have settled? In this article I want to take a fresh look at this case in light of how the Supreme Court has ruled on copyright cases in recent years. Then, in a follow-up piece, we’ll dive like a jurisprudential Scrooge McDuck into the substance of the settlement itself.

Remembrance of Thing Past

Before we go any further, let’s take a moment to review how this case came to be. As several people noted following the settlement, the lawsuit was not initially brought by the Kirbys, although in another way they did indeed strike first. Taking advantage of a provision in the current copyright law that gives creators and their heirs the right to take back copyrights after a certain period of time, the Kirbys had filed to terminate the transfers of copyright that (purportedly) occured when Jack Kirby had sold the Fantastic Four and other superhero material to Marvel in the early 1960s. After several months of negotiation Marvel filed suit in New York federal court to have the work declared work made for hire. According to Marvel, there never was a copyright transfer - Marvel owned the work from the start.

The fact that Marvel shot first reflects a tactical error by Kirby family attorney Marc Toberoff, or at least that’s what Toberoff himself signalled when he filed suit to have the case transferred from New York to federal district court in California. The New York court is in the business-friendly Second Circuit U.S. Court of Appeals, the nation’s leading copyright jurisdiction. California federal courts, in contrast, are in the Ninth Circuit, which has the reputation of being more liberal. At the time the Kirby case was revving up Toberoff had already seen the federal district court in Los Angeles leap tall legal buildings in order to give the Siegels a win, so it would have made a fair amount of sense for Toberoff to beaten Marvel to the lawsuit punch in order to raise the odds of a win. As it was, Toberoff tried to get a change a venue but lost, a foretaste of far more serious losses to come.

In short, both the trial court and the panel in the Second Circuit of the U.S. Court of Appeals ruled against the Kirbys on their copyright termination claims. The trial court’s opinion opened with a rather forthright declaration that the ruling was not about facts or fairness but the law — and the law was squarely on Marvel’s side. The Second Circuit doubled down on the lower court’s reasoning with an explanation of the history behind the principle deciding the case, namely, that material produced at someone else’s instance and expense is work-for-hire owned by the commissioning party. The court observed that although early cases presumed that freelancers owned their work and could later take it back, the instance-and-expense test adopted in the 1960s has since become a well-established standard for determining whether the publisher actually owned the material from the moment it took form.

For decades the Supreme Court had refused to review any challenges to the instance-and-expense test, and if the Kirbys had petitioned the Court with the same arguments that their lawyer, Marc Toberoff, had been making from the start, the overwhelming odds were that the dispute would have ended months ago with the Court declining to hear the case.

However, this time, something changed - and this part of the story began right here on tcj.com. When Dan Nadel asked me to write my take on the Second Circuit’s Kirby decision, I decided to take a flyer on a jurisprudential theory & petition strategy that no one had ever thought to use in this context before, namely, that the shift in standards described by the Second Circuit was in fact an unconstitutional judicial taking of intellectual property. Even if that argument ultimately didn’t fly, I noted that it was the best chance to grab the Court’s attention, and also baking in a due process claim would provide an out for Justices to rule in Kirby’s favor in a more familiar way.

That argument was by no means guaranteed to win, especially since I left out several key counterpoints and procedural arguments that were also omitted when Toberoff curiously used the exact same theory, at times in the same words, in his petition for the Supreme Court to hear the case. Marvel’s attorneys then did what lawyers often do when dealing with a Supreme Court petition in a case they are likely to win: they did not file a response. Nonetheless, as predicted, the innovative approach did indeed get the Court’s attention, and much to everybody’s surprise Marvel was asked to respond.

And here’s where things get a bit sticky.

The Supreme Sacrifice!

On the surface, the fact that the Supreme Court had finally opened the door to a re-assessment of the estabished standard for assessing freelance work under the old 1909 Copyright Act was a historic opportunity for all creators and their heirs. Equibrilating the judicial balance so that it was no longer tipped in favor of publishers would send a message that creator’s rights indeed deserved respect. Thus, when the Kirbys took the settlement before the scheduled date for the Court to make its final determination as to whether to hear the case, it was only natural that questions would emerge as to whether the settlement had come with too steep a price: the Kirby family would get money and Jack Kirby would now receive long due credit and accolades, but a rare opportunity for securing the same for all creators and their families had been squandered.

That’s not an unreasonable point of view, but it’s also not entirely fair. To see why, it can help to compare the Kirbys’ situation with that of the Siegel heirs in their own pursuit of a historic precedent. As we saw with the Siegels, the calculus in the Siegel case involved more than a decision between a win and a loss. The Siegels filed their lawsuit after agreeing to a set of terms that their previous attorney had informed them was legally binding; the likely and ultimately realized worst-case scenario was that the Siegels would quote-unquote lose with an eight-figure payout. The Kirbys, on the other hand, were in Schroedinger’s Court - the case for the moment was dead and alive, but once the Court observed it the lawsuit would reduce to just one of these states with no in-between.

What would you do when faced with such an existential quandary? For those who already have secured a fair amount of recognition and financial resources prior to the case, standing up for principle is an investment with little downside risk, at least if your attorney is working on contingency as opposed to an hourly rate. You win and you’re a hero; you lose and you get the reputational benefits on martyrdom without actually suffering loss. For someone like the Kirbys, however, there’s a different calculus: if you lose, your father’s quest for credit and fair compensation has failed, and no amount of praise for making the ol’ college try will fill that void.

It’s easy for those on the outside to counter with claims that a win was a slam dunk, but when you’re looking out from inside the case this sounds as hollow as a sideline cheer routine when you’re down 50 points with a minute to play. The Kirbys had already been through three lopsided losses, and as I explained in my last couple of posts, there were considerable legal arguments weighing against a Court victory, not to mention a grant of their petition. What’s more, the Court had calendared the petition to be considered during the last conference of term, which is a traditionally a catch-all conference in which upwards of thousand remaining petitions are processed, with a handful selected for consideration during the next term — in short, if you’re a petitioner left for the last day, the odds are decidedly not in your favor.

Which brings us to the new calculus the Kirbys faced in the days leading up to the fateful conference on September 29. A settlement was in play, and by all accounts it was more than a handshake and bus fare — even if was chump change for Marvel, for four middle class families that had seen executives make millions from their dad’s page-rate product it was a chance for recognition for their father, college tuition for the grandkids, and a lifetime without fretting about what might have been.

But unlike the Siegel settlement, this would all go away if they lost.

Counting the Votes

And whatever you may have read in articles repackaging Toberoff’s PR, the so-called momentum had not shifted — the Kirbys were still likely to lose. To see why, I want to take up a recommendation made to me by Brad Ricca — whose brilliant book on Siegel and Shuster is now out in paperback, just sayin’ — and go beyond a general analysis of legal arguments to tally the Justices’ votes.

First, when doing this sort of analysis it’s essential to set aside whatever impressions you may have of the Court under Chief Justice John Roberts having been captured by a pro-corporate cabal. There may be a tendency when chatting about the Supreme Court and business cases to see it in terms of a conservative Gang of Five against four stalwart liberals fighting for the common person, but in highly technical matters such as intellectual property the reality is that conservative and liberal Justices are often on the same side, or if not, not far apart.

To get a clear sense of how the Supreme Court has handled copyright, consider the track record of the current liberal Justice du jour — Ruth Bader Ginsburg, or as she has come to be affectionately known, the Notorious RBG. Ginsburg is the Justice who asked Marvel for a response in the Kirby case, and her daughter is a well-known intellectual property professor who, as IP professors tend to be today, is skeptical toward today’s corporate-friendly copyright regime; in fact, some Court watchers believe that the Justice’s daughter might have had some influence in Ginsburg’s request.

Nonetheless, while Ginsburg’s dissents in such infamous cases as Citizens United (opposing corporate personhood) and Hobby Lobby (opposing the corporate religious exception for birth control coverage in Obamacare) have made her an anti-corporate hero, her approach to copyright cases is far more tempered. Exhibit #1: Justice Ginsburg wrote the majority opinion in the equally notorious case of Eldred v. Ashcroft upholding the constitutionality of the Sonny Bono Act, the law that extended the term of copyright and kept Mickey Mouse out of the public domain.

Ginsburg also concurred in the Grokster case, an unpopular decision (in free-culture circles, at least) that sided with the music companies against those who believed that online file sharing should be left alone. Moreover, Ginsburg sided with the majority in the recent Aereo case, which helped the big TV networks to keep an Internet start-up from rebroadcasting freely available TV signals. Opposing Ginsburg & the rest of the majority in defending the rights of the corporate copyright establishment: conservative Justices Scalia, Thomas and Alito.

Raging for the Machine

Ah, some might say, what about this year’s landmark Raging Bull case, in which Ginsburg wrote the opinion for the majority? This decision involves some a rather arcane doctrine in civil procedure known as laches, but the upshot is that a creator’s heir who had previously reclaimed a copyright was allowed to proceed in a copyright infringment lawsuit against MGM despite having waited eighteen years to file. The dissent, written by liberal Justice Stephen Breyer, sided with the studio in arguing that you shouldn’t be able to let someone use your work for a couple decades only to spring a lawsuit on ‘em when they start rakin’ in the dough. The majority - with the conservatives Scalia, Alito, Thomas joining the liberal Ginsburg, Kagan and Sotomayor - disagreed, which led some to see this as a positive bellweather for the Kirby case.

However, when you dig deeping into the decision’s details, the outcome is far less encouraging. The Raging Bull decision hinges on the statute of limitations enacted by Congress for copyright infringement, which limits a lawsuit to infringement that has occurred within the past three years. This is a rule that the judges shouldn’t be allowed to unsettle with an appeal to equity, or fairness, a principle that comes into play when Congress hasn’t weighed in with a statutory rule. Everyone doing business in the copyright realm knows these are the rules of the game, and sticking with the relatively short three-year statutory window established for copyright does not upset any previously made deals. Thus, Ginsburg notes, MGM can keep every penny made before the period at issue in this case even as it reckons with a routine infringement claim.

In short, when it comes the potential impact of this case for corporate owners trying to protect themselves against angry heirs, RBG says NBD.

Ginsburg’s emphasis on the decision’s limited impact and the role of equity in areas without a clear statute of limitations is essential for understanding the hypothetical prospects of the Kirby case. In contrast to the Raging Bull case, the Kirby case involved an established principle of copyright law on which dealmakers have relied for at least half a century. Just as companies have had to factor in a rolling three-year period for infringement lawsuits, countless deals had been made and priced on the legally grounded assumption that the material at issue was work-for-hire.

In this regard Jack Kirby’s claims in interviews and negotiations are of little to no legal relevance.  Despite the key precedents having come down when Kirby was actively producing comics material, he did not file or go to court to secure the pertinent copyright renewals and did not raise a court challenge at the time of the alleged judicial taking. Whereas the facts and fallout from Raging Bull were limited to a recent three-year window, Toberoff’s inartful echo of the TCJ argument would have the Court run rampant throughout the past century and beyond, retroactively declaring decades-old precedent to be a judicial mindgrab and handing entire franchises over to people who had never filed a claim to it before.

It is precisely at this point where both the liberal and conservative justices would likely align against Kirby and other similarly situated freelancers. A narrow application of the judicial takings doctrine would appeal to Scalia, Thomas, Alito and Roberts, who come from a tradition of challenging what they perceive to be overreachy by liberal judges in the era defined by Chief Justice Earl Warren. Scalia would also jump on the amicus briefs’ poorly researched references to the legislative history of the 1909 Copyright Act. Scalia thinks that using legislative history to interpret statutes is dangerous, and he would no doubt relish the opportunity to show that the legislative history quotes in context actually refute the amicus briefs’ claims.

Expanding this same doctrine to give judges the right to nullify deals made decades ago would trigger concerns about fairness similar to those raised by Justice Breyer in the Raging Bull dissent. Again, don’t let Breyer’s reputation as a liberal Justice distract you from his technocratic pragmatism in decision-making, which tends to be more businesslike than an expression of anti-corporate animus - just see his opinion in Aereo for a telling example. The one big outlier for Breyer is his dissent in Eldred, but that becomes clearer when you realize Breyer’s own place in the history of the movement against expanding copyright protection before he became a judge.

Calculus II

Plenty more details could be added about other Justices, but I hope the main point is clear: the Kirby case was by no means a slam dunk. The prospect that got so many people excited — the opportunity to flip the judicial interpretation of almost a century of contracts in favor of freelancers - is precisely what would have made that Justices on both sides of the bench skittish. Rather than follow the Second Circuit’s narrative of an arbitrary and constitutionally dubious shift in standards to favor publishers, there would be a greater inclination to rationalize the history by finding deeper internal consistencies - a predictable reaction that should have been addressed.

Which brings us back to the Kirbys’ decision-making calculus when faced with a settlement offer. They had to weigh a sure thing that gives their father credit and recompense against decades of precedent, an attorney who had (ahem) for some unknown reason tossed over his old well-worn arguments in favor of cutting-edge jurisprudence he had never thought of before, and a probable alignment of Justices from both sides of the bench in favor of preserving the established status quo. While one could argue that the Kirbys traded the birthright of all freelancers for a tempting stew, the risk of losing was too great for any family to be expected to bear.

21 Responses to Should the Kirby Family Have Settled?

  1. Jeff–

    You write, “The court observed that although early cases presumed that freelancers owned their work and could later take it back…” Could you please cite examples?

    I’ve told you privately that I’m dubious of this claim. The amicus briefs filed with the Supreme Court do not back it up once one checks out the cases cited. Sumner v. Vogel Music, to pick one example, doesn’t relate to the issue of freelancer copyrights at all. It related to assignment of rights in a licensed derivative work created after the original copyright filing. In other words, it effectively said that the Margaret Mitchell estate doesn’t have termination rights for the film version of Gone With the Wind. There also doesn’t appear to be much, if any, history of periodical freelancers (such as Kirby) terminating and reclaiming copyrights to their work.

    Overall, the history of copyright termination and reclamation appears to follow the pattern exemplified by the situation with F. Scott Fitzgerald’s works. The estate was able to terminate and reclaim the copyrights to his novels, with which he was clearly in an author-publisher business partnership with Scribner’s, and they were holding the copyrights because of indivisibility-doctrine issues. But with his short stories, which were written on a freelance basis for periodical publishers (e.g., the Saturday Evening Post), the estate was not able to terminate those copyrights, and those publishers retained copyright ownership of that work.

  2. Pingback: Yet Another Must Read: Jeff Trexler analyzes the Kirby settlement — The Beat

  3. Jeff Trexler says:

    I should clarify the statement re what the court observed, which is somewhat compressed. Strictly speaking, the court refers to the historical analysis Community for Creative Non-Violence, which is where the shift is described in the following passage:

    “At that time, however, the courts had applied the work for hire doctrine under the 1909 Act exclusively to traditional employees. Indeed, it was not until after the 1965 compromise was forged and adopted by Congress [Footnote 16] that a federal court for the first time applied the work for hire doctrine to commissioned works. See, e.g., Brattleboro Publishing Co., supra, at 567-568.”

    The Second Circuit builds on this with a discussion of how its own jurisprudence on this issue didn’t take shape until after Brattleboro. Where the Second Circuit differs from CCNV: it rejects the critique and tries to find some way to rationalize the later standard.

    As for your critique of the cases – yep. The historical narrative in the case law is incomplete and not always on point in the ways later described. There’s are a couple of weaknesses that intersect & amplify: much of the bedrock history was developed in the days before databases, and the material in the time of databases is read only superficially, a la folks who comment on Facebook news posts only after reading the headlines. As I think I mention in one of my last two TCJ pieces, I’ve found unmentioned cases & legislative history from much earlier than the mid-1960s that call into question CCNV’s assertion that work-for-hire was limited only to traditional employees. There are reasons we call stuff dicta – in an on-point Supreme Court case, a lot more thorough analysis would likely occur.

    That said, I think I can create a persuasive narrative that would have worked for the Kirbys, but it takes a helluva lot more nuance than what you see in the Toberoff petition & amicus briefs, which at the Supreme Court level would just have been jurisprudential fish in a barrel. That’s the problem when you are riffing off of someone else’s thought experiment – if you haven’t done the homework yourself, you don’t know that counterpoints that had been left out.

    Re Fitzgerald – I mentioned the legalities briefly in a prior TCJ piece and should probably do a dedicated post on it. There’s some rather cool history here vis a vis comics.

  4. R. Maheras says:

    So, Jeffrey — Did Toberoff send you a consulting fee check from his portion of the settlement? No? How about a $50 Chili’s gift card? No again? How about a thank you letter? STILL no? Geez… how about a No-Prize?

    Regarding your comment, “it abandoned countless other freelancers who could have had a clear claim to their own copyrights if the Kirby case had succeeded in reversing decades of publisher-friendly precedent.” C’mon. This is wishful thinking. You yourself said things had evolved until it was most likely an all or nothing proposition for the Kirby heirs. The stakes were simply too high for them to gamble with the fickleness of the Justices after Marvel ponied up their “mid-eight figures” offer. My guess is that if most of us were in a similar position, the outcome would have been pretty much the same.

  5. Jeff Trexler says:

    @R. Maheras As I’ve indicated before, I have no plans to say anything in these articles about my interaction with Marc Toberoff. Jokes are the gluons of civilization, though, so have at it!

    As for the quote in the second paragraph, note that I was summarizing the perspective of some fans and creators, some of which I’ve heard/read directly. Hence the opening phrase – “Yet for some fans and creators this settlement came at a steep price:”. Context makes a difference, and if you read the rest of my piece you’ll see I agree that most of us would indeed do the same thing.

    Objectively the Kirby case was the best chance for freelancers under the 1909 Act, since it was the only time that the Supreme Court has signaled that it might consider the issue. That doesn’t mean I think it was a slam dunk to win – quite the contrary, as my last three TCJ pieces have explained. Even my initial TCJ thought experiment presented judicial taking as valuable primarily as a rhetorical device for getting 4+ Justices interested in taking the case, which is why I backstopped it with the broader due process argument. There’s a reason lawyers and judges overuse chess metaphors.

    As for my own POV, I think I’ve been pretty forthright in my TCJ work – the one thing I’ve left out is the argument that I would have made in my own amicus brief had the case gone forward, which would have been something that hasn’t been discussed yet. That’ll pop up at some point, though.

  6. Robert Lloyd says:

    While I can’t comment on the intricate legal issues, I hope that the Kirby family will have the funds to build a very large permanent museum that bears his name. If it weren’t for Kirby, Marvel and the entire super hero genre would never be what it is today. I’d like to think of this settlement as lesson for any creator of new comic characters. If I had an idea for a comic I’d certainly publish it independently. If you work for Marvel or DC you are bound to lose. Reading the early struggles Kirby experienced in The Comics Journal, especially his struggle to get his original art returned, showed me how unethical Marvel actually is.

  7. Jeff, every one of your articles is an education to me. Thank you.

  8. Kit says:

    If the current Journal did news reporting per se, it would be interesting to see a series following up on Toberoff’s apparent adoption of Mr Trexler’s arguments.

  9. Pingback: Off-Panel: November 24, 2014 | PANELS

  10. Why is Spiderman part of the Kirby case?

  11. Allen Smith says:

    Did the Kirbys betray anyone by settling? Don’t think so. WTF did they owe to anyone else, I don’t see anyone out there, freelancers included, supporting them in their various struggles. If the settlement was fair to them, that’s enough.

  12. Mark Usher says:

    @Robert Adam Gilmour: Spider-man was part of the Kirby case because Jack claimed he created him as well. Originally Stan Lee had given Jack first crack at Spider-man and when Jack’s pages didn’t capture the feeling Stan was looking for he turned to Steve Ditko. Steve then scrapped everything Kirby had done and created the costume and the look of the book from scratch, but Jack still claimed he ‘created’ the character.

  13. Michael Hill says:

    @Mark Usher: Spider-Man was part of the Kirby case because Kirby gave Lee first crack at the character. Spider-Man was part of a court case because there is very clear evidence that it existed as a set of Kirby pitch pages before it was optioned by Lee, not because “Jack claimed he created him.”

  14. Michael–

    There was no “clear evidence” of Spider-Man existing “as a set of Kirby pitch pages before it was optioned by Lee,” at least in terms of evidence considered by the judge. Lee testified in his deposition that he assigned the Spider-Man idea to Kirby before assigning it to Ditko, and he gave it to Ditko because he didn’t care for Kirby’s treatment. That’s all the judge had to go on.

    The Kirbys could provide no serious challenge to that testimony. Lee’s outside statements don’t contradict it to the best of my knowledge. Anything you can point to in terms of outside statements by Steve Ditko or Jim Shooter do not contradict Lee on the main point, which is that Lee commissioned the material Kirby produced. After that, I guess you have Mark Evanier’s gossip and ghost stories, but no competent judge would permit that in a courtroom. It was a reflection of Kirby lawyer Marc Toberoff’s desperation that he even tried to submit that stuff for consideration.

  15. Michael Hill says:

    Bob, Spider-Man was the perfect example of Kirby work done on spec… he brought the concept to Lee. Lee had to be told by Ditko that it was very similar to The Fly. If Lee came up with the idea, why do the first three stories have Kirby plots?

    Toberoff knew precisely what he was doing, or did you stop following the case after Judge McMahon’s decision?

  16. Michael–

    Everything you’re saying is conjecture and speculation that isn’t supported by conclusive evidence. There is no evidence that Kirby did a single story for Marvel that wasn’t a commissioned effort.

    I don’t know that the first three Spider-Man stories have “Kirby plots.” How do you know that? Kirby wasn’t credited with plotting them. Has Ditko said Kirby plotted the first three stories? Has anyone with firsthand knowledge of those stories’ execution made that claim?

    I followed the Kirby case quite closely, thank you very much. The appellate panel unanimously upheld McMahon’s ruling that the Kirby work for Marvel was commissioned material, i. e. work-for-hire. The full appellate court refused to hear the case, which essentially means they had no significant issue with the panel’s ruling. The day before the Supreme Court justices would have convened to decide whether or not to hear the appeal, Marvel and the Kirbys settled.

    I note that in the run-up to the settlement, the case had become a cause with the various Hollywood unions and was getting fairly extensively reported on in the Hollywood trade press. I don’t know that Marvel settled to get rid of a political problem with the unions, but I wouldn’t discount the possibility, either. The Supreme Court wasn’t likely to hear the case. They don’t as a rule take cases unless there is a dispute between the appellate courts. There wasn’t in this instance; the case law didn’t favor the Kirbys at all.

    As for the settlement itself, I have no idea what it entails and neither do you. No one apart from the Kirbys, select Disney and Marvel executives, and the parties’ attorneys know what’s in it. Everything that’s been “reported” on it beyond the parties’ joint statement is speculation and gossip.

    A settlement, incidentally, isn’t a victory or a loss for either party; it’s simply a resolution of a dispute. However, I note that the central issue in the litigation was whether the Kirbys had the right to terminate Marvel’s copyrights in their key publications. At the end of the day, the Kirbys backed down and Marvel retains those copyrights. If you want to view that in win-loss terms, the Kirbys lost.

    With Toberoff, I’ll just say I didn’t see much that indicated a thought-out strategy. He struck me as very sloppy and indiscriminate in his presentations. His approach seems best described as throwing shit against the wall in hopes that something might stick. I’ll leave further commentary on him to Jeff Trexler.

  17. R. Fiore says:

    I think as a general rule that if the Walt Disney Company wants to own something they buy it. There’s a goodwill question as well. Taken altogether they presumably decided that the price of settlement was worth eliminating uncertainty, a source of further litigation and bad publicity.

  18. Michael Hill says:

    Robert, allow me to suggest a different interpretation of the same
    events: The Kirby Museum website has a well-documented article by Stan
    Taylor regarding Kirby’s role in the creation of Spider-Man (Kirby is
    known as “the creator”). Disney may have won if the Supreme Court had
    agreed to hear the case, but there was much more at stake than Kirby’s
    creations… the decision would have had wide-ranging effects
    throughout the entertainment industry. Disney’s shareholders and
    competitors couldn’t allow Disney to risk the case being heard. Marc
    Toberoff was aiming for the Supreme Court from the start, and the
    lower court rulings were inconsequential; his execution of the case
    was expert and calculated. Toberoff achieved what he set out for, a
    settlement on behalf of the Kirbys: Disney blinked, Toberoff won.

  19. R. Fiore says:

    Another way to look at it: The Kirby family had standing to sue Marvel. There was a chance that Marvel could lose some rights; there was a certainty that continued litigation wouldn’t be good publicity. In reaching a settlement Disney in effect “bought” the Kirby family’s right to sue. If the Kirby family and attorneys rejected settlement offers in the past but accepted them in the end, this indicates either the outlook for their case had deteriorated or Disney sweetened the offer, and we’ll probably never know which. Toberoff’s strategy it seems to me had the character of gambling. You’d have to know what resources his firm had put into it and what they’re getting out of it to determine if it was a small win or a cutting of losses.

  20. Michael Hill says:

    Disney had the standing to lose the current restricted interpretation of copyright law on behalf of the entire entertainment industry, which would have resulted in the transfer of billions of dollars into the hands of creators and their estates. What historically would give you the idea that bad publicity is given even the smallest consideration by Marvel or Disney?

  21. R. Fiore says:

    Oh don’t be silly. If that kind of win were possible Toberoff would never have settled. That would have been the grand prize.

    Marvel and Disney are two different entities. To Marvel the kvetching over their intellectual property practices comes with the territory. Disney on the other hand is highly sensitive to bad publicity, and they’re the ones that settled. It wasn’t the main consideration, but it was a consideration. It’s the difference between having the subject come up every time a new movie comes out and having the subject be a dead issue.

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