A little over a year ago, I linked to a post by Colleen Doran discussing why the Kirby family lost its suit to get back copyright to Jack’s work. I assumed that this was the end of it.Not so. The Supreme Court was considering taking on the case but the Kirby family settled. The terms are unknown, but the article at the link thinks it’s probably a very good financial deal for the family (which must please Jack) and possibly more “created by Jack Kirby” credits in movies and comics. You can get more detailed legal analysis here and here.
This case was shaping up to be a very big deal had the Supremes taken it on. The rationale for ruling against the family was the “instance and expense” test—that while Kirby may have been an independent contractor rather than an employee, Marvel commissioned his Silver Age work, he didn’t bring stuff to them. Ergo, it belongs to them. Apparently a lot of creative work is affected by this interpretation so a win at the Supreme Court level (it’s never affirmed this interpretation of the law) would have been a big triumph for creative people in many media.
However there was no guarantee the Kirbys would win, so it’s understandable why the settled. And it’s equally understandable why Disney would—if the Kirby’s did regain copyright to Jack’s work (the Inhumans, Thor, the Avengers, the Hulk …) it could cost them billions.
From what it says in the articles, the Kirby family are happy with the outcome, and that’s good enough for me.
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