On Monday the Supreme Court announced that yet another brief has been filed in support of the Kirby family’s attempt to regain the copyright to key Marvel properties. Have these briefs truly made it all but certain that the Court will not just agree to hear the case in the 2014-15 term, but rule that Jack Kirby’s creations were not work for hire?

To get the full significance of these filings it can be helpful to understand what they are. The technical term for the briefs that were filed is amicus curiae (plural: amici). This is Latin for “friend of court,” a description reflecting the fact that the person filing such a brief is not a party to the case. Amicus briefs have become rather popular in recent years, and it’s not uncommon to read reports about how a particular brief is destined to change the world forever. This might be true in some instances, but such reports can also be the sign of a legal Funky Flashman — attorneys, academics and interest groups often use such briefs to promote their causes or themselves, and it is not uncommon for the filing of an amicus brief to be accompanied by an aggressive PR outreach. This can serve any number of purposes, such as drumming up business, fundraising, pacifying members, or building a lobbying campaign for legal reform. Making an effective case for those with the most to lose may be beside the point.

As a result, the ABA Journal notes in a recent article, the filing of amicus briefs is not in itself a sign of momentum for either side. The Court can receive anywhere from several dozen to over a hundred amicus briefs on a single case, and some Justices view these filings as little more than flies in the judicial chardonnay. While having a respected author can increase the likelihood that the clerks and Justices might at least take an amicus seriously, that will not save it if the argument contains mistakes or merely repeats what the parties have already said.

Considered in this light, the four amici in the Kirby case could cut in a couple of ways. It’s conceivable that the amicus briefs could persuade enough Justices (or their clerks) that the Kirby case provides a good opportunity for the Court to address the question of whether the default rule for independent contractors prior to the 1976 Copyright Act was for their work to be creator-owned. It’s equally possible, though, that these briefs could be used to persuade the Justices that the Kirby case is weaker than it might have seemed.

The Ultimate Nullifier?

If you read my earlier TCJ.com article, most of the material in the amicus briefs should sound familiar.

The factual material regarding Kirby’s work is on the record. The amicus briefs also recapitulate the argument that the legal standard in Kirby’s day was for the work of independent contractors not to be work for hire, and they repeat the oft-made observation that the Second Circuit’s use of the instance and expense test to determine whether such work was work-for-hire is inconsistent with the Supreme Court’s 1989 case, Community for Creative Non-Violence v. Reid, typically abbreviated CCNV. The majority opinion in that case sets for the basic destinction at the heart of the Kirby lawsuit: namely, that under the 1909 Copyright Act work for hire “referred only to work made by employees in the regular course of their employment,” but for commissioned works the creator, not the company, originally held the copyright.

Still, there was one essential difference between that article and the recent amicus briefs. The previous TCJ.com article was a thought experiment, not a court filing or a comprehensive law journal analysis. The aim was to see if we could come up with a new way to approach the Kirby appeal, since previous attempts to use the history above as the basis for nullifying the instance and expense test had failed. In writing that piece I made a deliberate choice to leave out some legal technicalities and historical counterpoints that I would have addressed in a brief for the Court, though the new argument presented in that article (the change in standards as a judicial taking) was adopted by Toberoff in his petition for review.

Marvel and the Court are likely not to exercise the same reserve, so to assess whether the amicus briefs really do represent a major shift in momentum I would like us, both here and in the comments thread, to engage in a different experiment — this time, I want to see if we can anticipate a viable challenge to the arguments in the amicus briefs. The aim here is not just to play devil’s advocate, which is always a useful exercise regardless of which side you believe to be on the side of the angels. I also want to explore whether the amicus briefs actually tee up certain counter-arguments by emphasizing certain arguments and pointing to source material that arguably refutes the briefs’ own assertions.

There are a number of possible points of attack, but let’s start one with one of the most substantial. If you’ve been reading the media commentary, perhaps the most celebrated of the Kirby amicus briefs is the one filed by Bruce Lehman, the former head of the U.S. Patent & Trademark Office under President Bill Clinton era. According to Lehman, the appellate clearly erred by disregarding the legislative history of the 1909 Copyright act and the Supreme Court’s opinion in CCNV, which establishes that the work is made for hire only when done for a “traditional employer,” a phrase that Lehman asserts has from the beginning been limited to a situation in which the employee has a full-time salaried position.

This may sound convincing, but if you dig into the sources cited in Lehman’s brief the facts arguably do not support this definition. Consider the following example from the legislative history for the Legislative History of the Copyright Act of 1909, the six-volume set from which Lehman selectively quotes in his brief: “if a person employs another for valuable consideration to make a portrait … the copyright in such portrait shall belong to the employer as if he were the author, in the absence of any agreement in writing to the contrary.” Even in the slower-paced days of a century ago, hiring someone to paint your portrait did not involve hiring an artist as a full-time salaried worker — you commissioned an independent contractor, much as you might do today, and in so doing you became an employer.

If it sounds strange that hiring a freelance artist could make a person an employer, that’s because we are listening with modern ears — traditional employment, like traditional marriage, didn’t always mean what it does today. To cite just a couple of the countless examples from time past, an 1899 Yale Law Journal article entitled “A Recent Attempt to Limit the Independent Contractor Doctrine” noted that “an employer is not liable for injuries resulting from the negligence of an independent contractor employed by him.” Going forward a few years, the federal discourt court in New York deemed Yale University Press to be the employer-author of a work-for-hire book series, since because it was responsible for hiring the individuals who put together the commentary and over 6000 photographs in a fifteen-volume set celebrating the nation’s 150th anniversary.

In fact, the Supreme Court itself in Footnote 8 of CCNV dismissed attempts to limit employment to a salaried work, a definition that the Court found arbitrary and inconsistent with its historic usage in the law. This is not surprising when you track the evolution of the words “employer” and “for hire” from their broad nineteenth-century use to the more bounded scope of the terms in contemporary law. At the turn of the twentieth century, an employer was anyone who paid someone to provide goods or services. “For hire” covered paying a cab driver for a ride, a sex worker for a night, an artist for a painting or a full-time engraver to print pictures in your books. Likewise, a salary was not necessarily just set pay for a full-time employee — it was payment that lasted beyond the short day-or-so span of wages, and it was used equally for factory laborers and a long-term retainer for a doctor or attorney.

The narrowing of these terms to what they connote now is an example of what linguists refer to as semantic drift — in particular, the phenomenon of specialization, in which a word ends up referring to part of the original whole. Since back in the early 1900s the term “employer” equally encompassed both hiring an independent contractor and having a worker under your continuous control, the people who worked together to draft the 1909 Copyright Act wrestled with how to adapt the pre-existing law of independent contractors, whom the employer did not control and for whose acts the employer was not legally liable, to the rapidly changing world of copyright.

And here I want to make a brief aside to help us understand precisely who these people were. When most people talk about legislative history today, they’re referring to material set forth in Congress, such as a committee report or floor debate. The material in Legislative History of the Copyright Act of 1909 contains much more than that. Technology used in the production of copyrighted material was rapidly evolving at the turn of the twentieth century - film, audio recordings, and advances in printing and photography were putting new demands on old law. To address these issues, the nation’s first Register of Copyright, Thorvald Solberg, met with attorneys, government officials, leaders of industry trade associations, and librarians (!) to discuss and devise a workable draft.

Lehman, following the standard streamlined history discussed at greater length in my earlier TCJ piece, asserts that their answer to the work-for-hire question was simple. He observes that the Legislative History of the Copyright Act of 1909 notes that the payment of a salary “entitle[d] an employer to all rights to obtain a copyright in any work performed during the hours for which such salary [was] paid,” while “the independent artist” held the copyright. Lehman further asserts that an subsequent study by the Copyright Office in the early 1960s reached the same conclusion — in contrast, the “instance and expense” test now used to determine whether material by an independent contractor was work-for-hire was a neologism coined by courts in the mid-‘60s without any basis in the law or legislative history.

These quotes from the legislative history are like waving a cape in front of a bull - they dare the opposing attorneys to make a direct attack. And as it turns out, that’s rather easy to do. Going to the page in the legislative history referring to “the independent artist” reveals that it’s part of a longer discussion contrasting an artist whose work is commissioned to “the independent artist or man who makes a painting for art’s sake.” It is, in brief, arguably the difference between hiring Jack Kirby to create comics for your company and buying the Superman material that Siegel and Shuster had cooked up on their own four years earlier.

The very next paragraph in this discussion suggests a way to deal with this consistent with emphasis on control in the law of employer liability for the acts of agents: namely, it proposes establishing that the copyright goes to “the person at whose expense such works were made.” Accordingly, a draft memorandum stated that the publisher of work “which has been produced at his instance and expense may claim copyright in the same.” Likewise, in the same discussion, Solberg reads another summary statement noting that the definition of author includes “a corporate body with respect to the publications of such corporation, and a person or persons at whose instance and expense a composite work is produced.”

Quotes such as these — from the very source that Lehman sets forth as the authority for understanding employer work for hire under the 1909 Copyright Act — appear to refute the claim that the Second Circuit in Kirby applied an ad hoc standard with no historical support before the mid-1960s. Although the cases that first adopted the instance and expense test did not cite their source, it’s evident that at least they were echoing the Act’s legislative history. What’s more, when you read further in this history, you discover that these words weren’t incorporated into the final text after a committee from the New York City Bar argued that specific definitions were articificially limiting - the use of such general terms as employer and work for hire was designed to broaden, not narrow, their reach.

Putting all of these pieces together, we get a picture that’s far different from the heated condemnation of the Second Circuit’s high-handed defiance of so-called traditional standards. The scope of work-for-hire was originally rather wide, but over time the concepts of employer and independent contractor began to differentiate in ways that prompted legal reformers to develop stronger safeguards for copyright protection for freelancers. The result: the law governing work for hire in the 1976 Copyright Act, which replaces the instance-and-expense standard under the 1909 Act with the statutory default rule that work-for-hire applies to material created by an independent contractor only if specified in a written agreement.

Apokolips Now

At this point you might be wondering if the argument above can be refuted. Some of you may even find it hard to believe that the amicus briefs could have overlooked this material, especially given the legal firepower behind them.

These are fair questions, and for the remainder of this post I want give them the attention they deserve.

First and foremost, it’s essential to remember that no lawyer is infallible. The same goes for judges, government officials and folks like yours truly who write about law online. One of the first things you learn in law school, if the professor is doing his or her job, is to challenge everything you see or hear, since there’s a fair chance something has been missed along the way.

Equally worth remembering is that the Supreme Court Justices are not as likely to be impressed by a brief’s authors as the rest of us. Whatever the titles following their names the attorneys who write amicus briefs are guns for hire — the legal world abounds with former government officials who have parlayed their credentials into lucrative careers representing big-name clients. Hiring an impressive title is no guarantee that you’ll be hiring someone who is an expert in the details of your case, especially when you’re dealing with something so archaic as the 1909 Act.

Another lesser-known reality: legal briefs often aren't written or researched entirely (if it all) by their named authors. They could be the work of a junior associate or even an intern, then branded with the big name after a quick review.

As a result, it’s important to probe both factual and legal claims. Consider the assertion in the briefs that the Second Circuit - along with every other court that has considered this issue - is deliberately flouting the Supreme Court precedent established by CCNV. It’s spectacular rhetoric, yet it’s also questionable in a way that doesn’t inspire confidence in the briefs’ overall credibility. In short, when a court files an opinion, the holding and the reasoning necessary to support it constitute binding precedent, but the discussion outside of that is considered to be non-binding. The holding in CCNV concerned the nature of work-for-hire under the 1976 Copyright Act, and to that extent lower courts must follow it. Nonetheless, when the opinion reaches back into the history of the earlier 1909 Copyright Act, that’s another matter. The lower courts tend to treat this as non-binding, and disregarding a statement that’s tangential to the holding is not necessarily an act of defiance. It can also reflect an awareness that justice calls for more than blind obeisance to an authority’s passing thought.

As for refuting the argument regarding employers and work for hire that is presented above, there are a couple possibilities. One is that it may not even matter - Marvel might not mention these arguments and the Court itself may just stick with the usual quotes and cases. That said, there’s a decent shot that a substantial challenge will come either from Marvel or within the chambers of court. The Kirby side could use the material presented here to its advantage, but doing so would require more strategic nuance than calling the Second Circuit — the nation’s leading copyright forum — a wretched hive of scum and villainy. More on what could happen next will follow in my next TCJ post.