EXCLUSIVE: Intellectual property lawyer Marc Toberoff has a winning track record when he goes after Hollywood studios on behalf of rightsholders. But not today. I've just learned that he lost big in Federal Court for the Southern District Of New York after suing Disney/Marvel for the Jack Kirby Estate. The federal judge not only granted the studio motions for summary judgment but also denied the Toberoff/Kirby's cross-motion for summary judgment. The ruling revolved around the fact that Kirby was a freelance writer and did work-for-hire and so didn't retain the copyright. Well, you win some and you lose some. But all the Hollywood studios are chortling because they now see Toberoff as vulnerable and not invincible. "This is just the beginning," Toberoff just told me, noting that, after the Kirby Estate exercised their termination rights under the Copyright Act, Marvel (backed by Disney) was in the middle of settlement negotiations in December 2009 and sued the Kirbys on January 8, 2010 in NY to benefit from that state's more favorable work-for-hire case law
