The copyright case surrounding the estate of Jack Kirby vs Marvel is starting to heat up. As I previously wrote, The Hollywood Reporter published an article back in May, which outlined a Supreme Court ruling which overturned an Appelate Court decision in Petrella v. Metro-Goldwyn-Mayer, Inc. Effectively, it said, MGM could not use the legal doctrine of latches (which basically asserts plaintiffs must file in a timely manner) to prevent a copyright lawsuit by Paula Petrella, the copyright heir to the Scorsese classic. The high court determined Ms. Petrella is due her day in court.
The Reporter surmised that this ruling…
“…effectively shifts the risk for determining copyright ownership to the studios. Traditionally, rights holders have borne the burden of making a Hobson’s choice — once you became aware of some infringing act, should you sue immediately at substantial legal expense, even if the infringement might be minor and not financially successful? Or should you wait to see whether the infringement was returning enough economic reward to make it worth investing the money in a lawsuit but face a potential defense of laches because you waited too long to sue?”
The explosive revelation is that the high court seems to be willing to look at and make changes to anything from contract law to copyright law to even legal concepts such as latches, no matter how old. This has copyright lawyers salivating and big media studios frightened that the US Supreme Court will take a magnifying glass to how contracts are written in Hollywood. A simple ruling could upend the entire business/legal framework publishers have been using for years.
Now to Kirby. The US Court of Appeals had previously denied two of Jack Kirby’s children from suing Marvel under the provision that Kirby’s work was “made for hire”. Work made for hire is a term used in contracts that basically shift the ownership rights from artist to employer. But as some have feared, it appears SCOTUS could be persuaded to take the case.
Yesterday THR reports SAG, DGA and WGA all filed amicus curiae (“friend of the court”) briefs asking the court to look at the Kirby Case. The three unions believe the big corporations are not playing fair with artists and their heirs:
“Most people know that the copyright term has gotten longer and longer over the years, but what is less appreciated is that when Congress extended the term in 1976, it also crafted the termination provision so as to allow authors to reclaim rights over their creations in the latter period of the copyright term. Some say that the decision to do this was a “compromise”: Yes, the copyright term became longer, but the benefits of the longer term would potentially go to authors who had given up rights when they were new to the industry and hadn’t much bargaining power.
The guilds now say such a compromise is under threat. “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 Court could be swayed to make some major changes that will help artists. But in doing so big media companies could be left paying a fortune. It remains to be seen how this will play out in the future. But who knows? Did MGM really think a movie made in 1980s could be subject to a copyright lawsuit 18 years after the lawsuit should have been filed??