Richard Wolf

USA TODAY

UPDATE: The two sides in this lawsuit reached a settlement and asked the Supreme Court on Friday to dismiss the case.

WASHINGTON – Some of the world's most famous superheroes soon could play starring roles at the Supreme Court.

The Hulk. The Fantastic Four. The X-Men. Thor. Captain America.

Those are among the crusading characters drawn by Jack Kirby in his smoke-filled basement for Marvel Comics more than 50 years ago. They helped transform the company into Marvel Entertainment, which was bought by Walt Disney Co. in 2009 for $4.2 billion.

Kirby's four children want a piece of the action his superheroes continue to attract in all their forms – ranging from toys, cartoons and video games to the $1.5 billion-grossing film The Avengers and the traveling stage show Marvel Universe Live.

The colorful copyright case is among about 2,000 that have piled up during the summer, while the court was out of session. Its chances, like all the rest, may be slim – but Kirby's characters have faced long odds before.

Or are they Kirby's characters?

Under federal copyright law, Captain America and colleagues are considered to be "works made for hire," commissioned and paid for by Marvel. In most copyright cases, authors and artists can assert their rights after 56 years — but not if they were "works made for hire."

The Kirbys argue that their father was an independent contractor and, at the very least, a co-creator of the action heroes along with Stan Lee, the writer and editor who gave voice to Kirby's drawings. If they win, Marvel would lose exclusivity and be forced to share profits. That's a big "if."

Kirby's kin are not alone in their quest to have the justices take the case and reverse the lower courts. Among those siding with them are the Screen Actors Guild and unions representing directors and writers, who claim their rights have been stripped under the "work made for hire" test.

That test has produced "a windfall to purchasers at the expense of the creative community," SAG's brief to the court says.

Disney's response is simple: Kirby was paid by the page for everything Marvel Comics used. "It was Marvel – not Kirby – that bore the risk and potential expense if the publication of the works was unsuccessful," its brief states.

Mark Evanier, Kirby's biographer, says the artist always knew his superheroes would become more than comic book characters. "His approach was always, 'I've got to revolutionize the business!' " Evanier says. Financially, he made "a microscopic fraction of what his characters earned" for Marvel.

Even if the high court refuses to hear the Kirbys' case, the justices' interest in intellectual property rights is clear. They heard 10 cases involving patents and copyrights during their 2013 term. In May, they ruled that Hollywood studio MGM can be sued for copyright infringement more than three decades after releasing the boxing film Raging Bull.

If the Fantastic Four can't get the four votes required to accept the case for review, Sherlock Holmes may not be far behind. In a case involving a forthcoming book, the estate of Sir Arthur Conan Doyle is asking the justices to require that its remaining copyright on Holmes' last 10 stories be enforced.

John Bursch, the lawyer for the estate, says the case's outcome could affect other literary icons as well, ranging from James Bond and Superman to Winnie the Pooh and the Cat in the Hat.