U.S. Supreme Court Cases

Petrella v. MGM

The United States Supreme Court case of Petrella v. Metro-Goldwyn-Mayer (MGM), No. 12-1315, addressed the issue of laches in a copyright case.

At issue was the question as to whether Paula Petrella, daughter of Frank Petrella, waited too long in bringing her copyright infringement suit against MGM for the original 1963 script authored by Mr. Petrella on the life of boxing legend Jake LaMotta. The 1963 script was the basis for the Academy Award nominated movie “Raging Bull,” starring Robert DeNiro and Joe Pesci.

The Federal District Court ruled against Ms. Petrella, as did the three judge panel of the Ninth Circuit, ruling that Ninth Circuit precedent dictated that Ms. Petrella’s delay in filing suit was an absolute bar to her claims for copyright infringement under the doctrine of laches.

Steven W. Smyrski was Counsel of Record representing the California Society of Entertainment Lawyers (CSEL) in the two Amicus Briefs filed in support of Petitioner Petrella, one in support of her Petition for Certiorari and another in support of her Supreme Court case against MGM.

CSEL “is a non-profit, non-partisan, professional organization of attorneys representing authors, screenwriters, song-writers, and other creators of intellectual property in the entertainment industry, including television, film, and music.”

CSEL’s brief in support of Ms. Petrella’s Petition for Certiorari, with Mr. Smyrski acting as Counsel of Record, can be found at:


CSEL argued that the Ninth Circuit has for decades been highly adverse to copyright plaintiffs, typically artists and creators represented by attorneys in the Society. Mr. Smyrski, together with Steven Lowe and Daniel Lifschitz of CSEL, prepared and filed the sole Amicus brief in support of Ms. Petrella in her Petition for Certiorari. Thus the Supreme Court considered Ms. Petrella’s brief, as Petitioner, and the CSEL brief. MGM opposed the Petition.  Mr. Smyrski and CSEL are mentioned in the following Variety article:


Odds of success of a Petition for Certiorari before the United States Supreme Court are approximately one percent, or 1 in 100.

On October 1, 2013, the Supreme Court GRANTED Ms. Petrella’s Petition for Certiorari.

Mr. Smyrski again represented CSEL in its Amicus Brief on behalf of Ms. Petrella in her Supreme Court case. Mr. Smyrski, acting as Counsel of Record, argued on behalf of CSEL that perceived problems if the Ninth Circuit laches standard were overblown, and that it was unlikely that plaintiffs would “flood” the courts with copyright litigation if the Ninth Circuit standard was overturned.

The CSEL brief in support of Ms. Petrella’s case, the second Amicus Brief, is available  at:


The CSEL brief was one of four Amicus Briefs filed in support of Ms. Petrella in her Supreme Court case.

The U.S. Supreme Court case of Petrella v. MGM was argued on January 21, 2014. Professor Stephanos Bibas of the University of Pennsylvania argued on behalf of Ms. Petrella. Mr. Smyrski personally attended the Supreme Court hearing.

On May 19, 2014, the Supreme Court issued its opinion in Petrella v. MGM, ruling in favor of Petitioner Petrella. The majority opinion, written by Justice Ruth Bader Ginsburg, reflected a 6-3 vote in favor of Petitioner Petrella.

The Supreme Court opinion may be found at:


“It is a great honor to have worked on this case. I have been a lawyer for over 20 years and this was a unique experience to argue in support of a litigant whose case is granted certiorari and favorably decided by the U.S. Supreme Court.  I am extremely happy for Ms. Petrella, and appreciate the opportunity to represent CSEL in this landmark case” said Mr. Smyrski.

Kirby v. Marvel Properties

Mr. Smyrski also represented Mark Evanier, Tom Morrow, and PEN Center USA as Counsel of Record in their Amicus Brief in their Petition for Certiorari in the case of Kirby v. Marvel Properties, Case No. 13-1178.  The Amicus Brief detailed the state of business activities in the comic book industry during the period when Jack Kirby created or co-created numerous memorable superhero comic book characters, including Captain America, The Fantastic Four, The Mighty Thor, The Incredible Hulk, The Avengers, X-Men, and Spider-Man.

The Evanier/Morrow/PEN Amicus Brief is available at:


The Kirby estate’s claims for damages had been completely rejected by the Second Circuit Court of Appeals, but based on the Kirby Petition for Certiorari and the Amicus Briefs filed in support, Marvel decided to settle the case with the Kirby estate on terms acceptable to the Kirby family.

The Kirby case, the Amicus Brief, and Mr. Smyrski are discussed in a number of instances, including:

Hollywood Reporter, Eriq Gardner: http://www.hollywoodreporter.com/thr-esq/jack-kirbys-heirs-get-huge-712924

Comic Book Resources, discussing the Hollywood Reporter article: http://robot6.comicbookresources.com/2014/06/will-supreme-court-weigh-in-on-kirby-heirs-fight-with-marvel/

This Is Infamous, also discussing the Hollywood Reporter article: http://thisisinfamous.com/jack-kirbys-heirs-get-support-push-towards-supreme-court-review/

Billboard, citing the Hollywood Reporter article and the possible application to the music industry: http://www.billboard.com/biz/articles/news/legal-and-management/6128502/jack-kirby-lawsuit-marvel-x-men-termination

Comicus, Italian website discussing the case: http://www.comicus.it/index.php/mainmenu-news/item/57396-marvelkirby/57396-marvelkirby