NO. 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 Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR WRIT OF CERTIORARI MARC TOBEROFF Counsel of Record TOBEROFF & ASSOCIATES, P.C. 22337 Pacific Coast Hwy, Suite 348 Malibu, CA 90265 (310) 246-3333
[email protected] Counsel for Petitioners Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i QUESTIONS PRESENTED The Copyright Act grants the children of a deceased author the right to recover the author’s copyrights by statutorily terminating prior copyright transfers. 17 U.S.C. §§ 304(c), (d). “Works for hire” are the sole exclusion. Id. Petitioners, the children of the acclaimed comic-book artist/creator Jack Kirby (The Fantastic Four, X-Men, The Mighty Thor, The Incredible Hulk, etc.), served statutory notices of termination on the Marvel respondents regarding the key works Kirby authored as an independent contractor in 1958-63. Section 26, the “work for hire” provision of the 1909 Copyright Act, applicable to pre-1978 works, states simply: “The word author shall include an employer in the case of works made for hire.” For six decades, including in 1958-63, “employer” was duly given its common law meaning, and “work for hire” applied solely to conventional employment, not to independent contractors like Kirby. It follows then, in 1958-63 Kirby was the original owner of the copyrights to the works he authored and subsequently assigned to Marvel, and his children have the right to recapture his copyrights by termination of such assignments under 17 U.S.C.§304(c).