Attorney Marc Toberoff continues to be a very busy man. In between two different court appearances for different lawsuits surrounding the rights to Superman, he has appeared before a three-judge panel to argue for the overturning of an earlier ruling that Marvel Entertainment owns all of Jack Kirby's creations for the company outright.
Acting on behalf of the Kirby estate, Toberoff appeared before the panel of Second Circuit appeal judges on Wednesday, arguing that the original ruling relied on a misreading of the idea of "work done for hire." Under the 1909 Copyright Act, Toberoff argued, "work for hire" is defined as work created "at the instance and expense" of the employer, which he argues isn't the case of Kirby's relationship with Marvel at the time. "Here you've got a situation where no matter how you look at it, it's the purchase and assignment of completed material," Toberoff told the panel, arguing that Kirby had created the characters on his own time and offered them to the publisher afterwards.
A New York Federal Judge ruled in July 2011 that Kirby's work for Marvel was all work-for-hire, and that the estate had no claim to copyright termination, writing that there were "no genuine issues of material fact" to the contrary.
The panel announced that they would rule on the matter at a later date.