Is another trial brewing?

When the Court Of Appeals handed down its decision in 2008 to give the daughter of Lassie‘s creator, Eric Knight, the right  to terminate the copyright held by “Classic Media” it  gave hope to intellectual property lawyers who, with some fancy lawyering, could cash in on properties that are now worth billions. All that was needed were for lawyers to convince the heirs of deceased copyright holders to threatening lawsuits against big media companies when the term of the copyright was about to expire which is typically the life of the author plus 70 years. At the very least a threat of legal action could net millions just to keep a suit out of court.  The next shoe to drop was another decision by the court involving the writer of such classics as “Of Mice and Men” John Steinbeck.  Like the Lassie case, the children of the late author tried to cancel the copyright of these classics from Penguin books.   But in this case, Penguin was aided by the late author’s wife Elaine and the suit failed.



The courts are littered with many, many more cases, especially since the Lassie case. The most famous being the heirs of Superman’s creators Segal and Shuzter and their years long struggle with Warner Brothers.  While the movie and music industry, has had its successes and failures, it is the comic book industry, dominated by Disney’s and Warner Bros’ billion dollar Marvel and DC Comics franchises respectively, that have been ravaged by lawsuits of late.


Creators Stan Lee and Gary Friedrich tried it. The heirs of Superman creator Segal and Shuster have tried it (more than once), and now the heirs of Jack Kirby are trying it.  Some have had more success than others.  But all have been an uphill battles for rights holders.  That is until now.



First, go back to late May 2014. The Supreme Court, in a landmark decision, ruled 6-2 that the copyright heir to the screenplay for Raging Bull could sue MGM (the studio that produced the classic) for copyright infringement.  MGM, in court, argued “…that the equitable doctrine of laches should bar her claim because she had delayed too long in filing suit.” Laches doctrine basically says that a party must file a complaint in a reasonable time frame, without delay, in order for it to be heard by the court.  Paula Patrella, the copyright owner, waited, MGM claimed, 18 years.  Every court agreed except the only one that counts, the U.S. Supreme Court.  It’s ruling throws out latches and stated the plaintiff may have his/her day in court.



This decision, THR asserts:



“…has redistributed a portion of the balance of power in Hollywood between small-time rights holders and the studios. Rights holders can now engage in a “wait and see” approach to gauge whether an infringer profits enough from its wrongdoing to make suing worthwhile. It also opens the door to rights owners filing copyright infringement claims long thought to be stale and barred by the doctrine of laches as long as the potential defendant is still infringing. The breadth of the holding and its analysis may also extend to trademark infringement and other commercial cases, where laches has also been asserted as an equitable defense.”



The Raging Bull case brings us to the case of Kirby Characters vs Marvel Characters.  Jack Kirby, along with Stan Lee, created such iconic characters as X-Men, Spider-Man and the Hulk. The court previous denied Jack Kirby’s estate a bid to overturn Marvel’s copyright.   But, again from THR…



“…In the past couple of months, there have been growing signs that the case might indeed be picked up at the Supreme Court for review. First, Kirby’s petition for certiorari was discussed at a May conference. Then, the justices requested that Marvel respond after the studio initially decided to downplay the affair by staying mum about Kirby’s petition. And now, in advance of Marvel’s response, comes several friend-of-the-court briefs urging the Supreme Court to pick up the case.


But the case, if heard, isn’t just about Marvel’s franchises. For starters, it would likely make quite an impact on the music industry, which continues to enjoy profitable legacy works from the likes of Bruce Springsteen and Madonna that don’t require much expensive promotion. Lately, the music industry has been facing a wrath of termination notices with issues like the exact nature of “work for hire” in the background. The case would also impact any business that uses freelancers or independent contractors — and since the entertainment/media industry leans quite heavily on them, it’s no surprise that some advocacy groups are beginning to take a keen interest on whether the Supreme Court takes up this case. As the briefs below show, what’s at stake might just very well be the balance of power”



Wow.  Fascinating stuff.  Can’t wait to see how it turns out.

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