NO. 13-1178 In the Supreme Court of the United States LISA R. KIRBY, NEAL L. KIRBY, SUSAN N. KIRBY, BARBARA J. KIRBY, Petitioners, v. MARVEL CHARACTERS, INCORPORATED, MARVEL WORLDWIDE, INCORPORATED, MVL RIGHTS, LLC, WALT DISNEY COMPANY, MARVEL ENTERTAINMENT, INCORPORATED, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF OF AMICI CURIAE BRUCE LEHMAN, FORMER ASST SECRETARY OF COMMERCE AND DIRECTOR OF THE U.S. PATENT AND TRADEMARK OFFICE; RALPH OMAN, FORMER U.S. REGISTER OF COPYRIGHTS; THE ARTISTS RIGHTS SOCIETY, THE INTERNATIONAL INTELLECTUAL PROPERTY INSTITUTE, AND VARIOUS PROFESSIONAL ASSOCIATIONS, ILLUSTRATORS AND CARTOONISTS IN SUPPORT OF PETITIONERS BRUCE LEHMAN, ESQ Counsel of Record 1900 K STREET, NW SUITE 725 WASHINGTON, DC 20006 (202) 544-6610
[email protected] Counsel for Amici Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS INTERESTS OF THE AMICI CURIAE .......... 1 SUMMARY OF THE ARGUMENT ............. 4 ARGUMENT............................... 6 I. THE COURT OF APPEALS INCORRECTLY FOUND THAT THE WORKS IN QUESTION WERE MADE FOR HIRE UNDER THE 1909 COPYRIGHT ACT, DIVESTING PETITIONERS OF THEIR STATUTORY TERMINATION RIGHTS................................ 6 A. The Second Circuit Disregards the Legisla- tive History and Contemporaneous Under- standing of the Term “Employer” in the 1909 Act.................................. 6 1. The Legislative History of the 1909 Act Clearly Shows that the Term “Employer” Connotes Traditional Employment ..... 6 2. The Law in 1958-63 When Kirby Sold His Work to Marvel Was that Work for Hire Applied Only to Traditional Employees Not Freelancers..................... 8 B. The Court of Appeals Decision Violates Su- preme Court Precedent ...............