Monday, September 21, 2009
I hope no one over at Disney was really surprised when Marvel received 45 copyright termination notices from the family of Jack Kirby last Wednesday. I mean, even I, if prodded, remember that there was bad blood between Marvel and DC Comics and that it stemmed from some sort of dispute between the legendary Stan Lee and his erst-while partner Jack Kirby. Me? I was always clearly in the Marvel camp growing up.
Anyway, it's just another reason why law school students who might want an M&A practice should take advantage of their time in law school to take a broad array of classes - even in areas where they think they'll never venture, like for example, copyright law. One shouldn't be surprised by this kind of post-signing issue. It should have come up in diligence (remember Michael's post on J&J/Elan?) and parties should be prepared to respond quickly and pro-actively. From the IP reps of the merger agreement, it's clear that people were looking backward and thinking of this issue, but it's less clear that they anticipated getting the notices.
On the other hand, a Disney spokesperson told the LA Times, "The notices involved are an attempt to terminate rights seven to 10 years from now and involve claims that were fully considered in the acquisition."
Of course they were. But we'll see won't we? One suspects that Marvel will attempt to negotiate some sort of settlement with the Kirby estate, suggesting that parties anticipated this issue before signing. On the other hand, if Disney attempts to walk or renegotiate its $4 billion price, they might be showing their hand that they were in fact surprised.