The Marvel case centres on arguments over whether Mr. Kirby, during a critical 1958 to 1963 period, was creating what is known as “work made for hire.” Under U.S. copyright law, Marvel could be deemed to own Mr. Kirby’s creations if he was making them at the “instance and expense” of the company, and not working purely as an independent freelancer.
Marvel, which responded to the copyright termination notices with a lawsuit last year, argues Mr. Kirby worked under the direction of the now-88-year-old face of Marvel, Spider-Man co-creator Stan Lee, and that the company owns all the works. Mr. Kirby’s heirs beg to differ.
Mr. Toberoff says Mr. Kirby was the “Leonardo da Vinci of comics,” and no mere hired gun, and his heirs deserve a share of the wealth his creations are making, a half-century later. He argues: “There’s no question the driving creative force behind all this work is Jack Kirby.”
James Quinn, the prominent New York trial lawyer representing Marvel in the case, said his client clearly owns the works in question and has no plans to settle.
“People can say it’s not fair,” Mr. Quinn said in an interview. “But who knew, back in the fifties and sixties, that any of this stuff was going to be popular in the sense that it is today? Nobody knew. It wasn’t like somebody was taking advantage of somebody else. … It’s easy, 50 years later, to say, hey, Spider-Man, look how valuable it is. Nobody knew how valuable it was going to be in 1961.”
Super suits
The heirs of Jerry Siegel and Joe Shuster, the creators of Superman, have been battling DC Comics, a subsidiary of Warner Bros., for eight years over a share in profits from the character and the right to make new movies or comics.
The pair sold the character to DC’s predecessor for $130 in 1938. Over the years, they and their families reached various deals with the publisher to receive extra compensation. DC has argued that it rightfully owns the character, having developed it over 70 years.
Among the heirs Mr. Toberoff represents was Jerry Siegel’s widow, Joanne Siegel, who served as the first model for Lois Lane and who died in February at 93.
That case’s outcome likely cannot stop the making of the next Superman movie, slated for next year. But depending on the outcome, Warner may need a new deal with the Superman creators’ heirs in order to make sequels.
Not surprisingly, there are those in Hollywood who see Mr. Toberoff – who also tangled with Warner, and won, over the rights to The Dukes of Hazzard – as a combination of Dr. Doom and Lex Luthor.
In the bitter Superman fight, there’s no question that if either side had a kryptonite ray, they would be using it.
Last year, DC Comics launched a lawsuit against Mr. Toberoff and his clients that accuses him of having “falsely represented” himself to the heirs as a film producer backed by a “billionaire investor.” and of securing control of the largest single financial stake in the benefits of the control of the Superman rights, at 47.5 per cent.
The lawsuit is apparently based on a cache of documents taken from Mr. Toberoff’s office and anonymously delivered to Warner Bros. officials by a former employee of Mr. Toberoff’s – whose identity, in keeping with the superhero theme, remains secret.
In a statement, issued when the lawsuit was filed, Mr. Toberoff dismissed the allegations as “baseless” and accuses DC Comics of launching a “desperate effort” after suffering a partial defeat in 2009 over the Siegels’ rights to Superman to wage a “smear campaign.”
