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5 Oct, 13 tweets, 5 min read
What was late Justice Ruth Bader Ginsburg's role in the Jack Kirby family settlement with Marvel over character copyrights? Supreme Court procedure may be arcane at times, but the smallest moves by a Justice can have a major impact. #rbg #RIPRBG #scotus
The Kirby case involved the right to terminate transfers of copyright, which enables creators to reclaim material decades after selling it. Lower courts agreed w/ Marvel that Kirby’s material was work made for hire, which meant it was never owned by Kirby & couldn't be reclaimed.
Because the case was being appealed from the Second Circuit, covering New York, it fell under RBG’s purview - Justices manage cases based on the appellate courts to which they are assigned. ...
RBG's initial actions were procedurally routine, extending the Kirby family’s time to file the petition for certiorari - abbreviated "cert" -- which asks SCOTUS to take the case.
Why the extension? Perhaps someday I (#jefftrexler) will explain in full, but in brief, let's just say there's a reason that after years of repeating the same arguments - arguments that SCOTUS had rejected for decades ...
... after the extension the Kirby family petition presented an unprecedented new argument, based on the Constitution's takings clause, that tracked Taking Back the Kirby Case @jefftrexler @ComicsJournal, down to citing the same controlling authority. tcj.com/taking-back-th…
The law in favor of Marvel was so well-established and the takings argument - first appearing in a comics publication, of all places! - was so new that Marvel waived its right to respond, a common tactic in a case perceived to be a slam dunk.
So the next word from the Court came as a bit of surprise: SCOTUS asked Marvel to respond.
This changed the landscape, and afterwards instead of continuing to argue before the Court for oral argument the parties reached their historic settlement.
(Hit send too soon on that last one -- needed editing!) Who would have won if the case had been argued before the full Court for a ruling on the merits? We'll never know. However, the case history does illustrate ...
... how paying attention to procedure and Justices' patterns of reasoning are integral to SCOTUS petitions and arguments in all courts. #RBG's work in IP cases was significant; it will be interesting to see where the Court goes next.
Addendum - thoughts on who would have won can be found in this subthread.
As we look at other themes and cases throughout the week, we'll talk more about strategy and reading the judicial tea leaves. Lawyers are constantly trying to assess procedure and personality, one reason why chess is a recurring theme in legal fiction.

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More from @CBLDF

6 Oct
Continuing this week's look at the Supreme Court, comics & cartoons, here's the ruling mentioning @CBLDF: Brown v. Entertainment Merchants Association. SCOTUS: California law regulating video game violence did not survive First Amendment strict scrutiny. supremecourt.gov/opinions/10pdf… Image
What's an amicus brief? Amicus curiae is Latin for "friend of the court." An amicus brief (amici = plural) provides info or arguments from someone who is not a party to the dispute. Here's the @CBLDF amicus brief in Brown v. EMA: sblog.s3.amazonaws.com/wp-content/upl… Image
By the time of the Court's ruling the Governor of California was Jerry Brown, but when @CBLDF submitted its amicus the gov was someone known worldwide for his efforts to curb visual representations of violence: Arnold Schwarzenegger (cartoon by MAD's Mort Drucker) Image
Read 4 tweets
5 Oct
Speaking of Marvel and SCOTUS, here's a case that did get argued before the Court & resulted in a ruling: Kimble v. Marvel, over an inventor's rights in the patent used in toy Spider-Man web shooters! (by #jefftrexler) Image
Kimble v. Marvel was a battle between contract rights and patent rights. The patent had expired - existing precedent established that royalty clauses are not enforceable for sales after a patent expires, but Kimble wanted this overruled.
The Court ruled in favor of upholding precedent, which meant that Kimble would no longer be paid royalties on the device. What made more news than the result, though, was the opening of Justice Kagan's final paragraph with a familiar quote. Image
Read 6 tweets

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