Interesting turn of phrase. Notice how you use a negative in all three of those examples?

Here’s the thing: burden of proof is on the POSITIVE. The Kirby heirs don’t have to DISPROVE that the work was work-for-hire and he willingly gave his characters away to Marvel, Marvel has to PROVE that it was and he did.

“and (d) that Kirby’s heirs deserve (not to mention, have an ounce of legal right) to reclaim partial ownership of those characters that Kirby created/co-created?”

The law allows for copyright termination if the work is created outside of a work-for-hire contract. If Kirby signed a contract before creating the Fantastic Four et al, then the burden is on Marvel to produce it. (The fact that Marvel tried to get Kirby to sign a contract saying he wouldn’t seek termination suggests that they knew he had the right to do so.)

The Spider-Man claim, on the other hand, is dubious; that’s one where the Kirby heirs are going to have to produce proof of Kirby’s hand in creating Spidey. I don’t see them succeeding in that, and Ditko’s certainly not going to file a copyright termination. That means Marvel’s rights to Spider-Man are pretty well secure until the next time Disney has to bribe Congress to extend copyright another two decades.

I agree the Kirby situation is different, I personally believe it’s going to be much harder for the Kirby family to regain a part of these rights. Since Kirby was developing concepts under the editorial direction of Stan Lee, his case isn’t as clear-cut as the Siegel-Shuster one (in which they developed Superman on their own, and then brought a finished product to DC after having failed with other publishers).

Kirby never had a contract with Marvel. There is no concrete expression of intent, only supposition based on vague, extralegal concepts like “standard business practices” that’s contradicted by statements Kirby made later in life. Whether those statements match his thinking at the time is subject to question but his situation is different from Siegel & Shuster’s.

Tim:

That the Kirby suit came after the Marvel-Disney lawsuit no more suggests cause and effect than the DC Entertainment announcement following on the heels of Marvel-Disney does, though it may look that way. A suit of this nature is rarely thrown together in a matter of weeks. They might have moved the date of their suit to take advantage of the publicity surrounding Marvel-Disney, but that’s a pretty standard legal ploy, and almost certainly they weren’t being informed by Marvel (or Disney) that purchase talks were going on. It’s very unlikely the lawsuit was concocted following the Marvel-Disney announcement.

It is possible the Kirby family only wants money, but they would at least appear to have a genuine interest in preserving Jack’s legacy. (Believe me, it’s a source of family pride.)

- Grant

“Work-for-hire” didn’t exist as a legal concept before the 1976 copyright law so whatever Jack created or co-created it wasn’t done under work for hire though it may have been done under general belief that the publisher would be the owner of the creations.

However, work done before 1976 can be work for hire, provided certain conditions are met. In last month’s opinion regarding the copyrights to the early Superman stories, the judge established that most of the work Siegel and Shuster did for DC was work made for hire, including even most of the work done before they signed a contract in September 1938.

What I want to mention is this:

It is the corporations, like Marvel, Disney, and Time-Warner who opened the gate on these lawsuits when THEY THEMSELVES lobbied for the copyright laws to be amended.

These companies – though I think principally Disney – didn’t want their characters to fall into the public domain, so they lobbied and were successfully in doing so. The copyright law was ammended.

It is because of this that the gate – as it were – was left open for creators and heirs of creators to try fto make a play for these royalties/settlements.

All I say therefore is this: What is good for the goose, is good for the gander.

I also seriously doubt that were ANY of us – regardless of the stance taken on this thread – in a similar situation to the one these heirs find themselves in (a chance at scoring some of these profits, etc) that we would balk at the chance of at least trying to get a bit of the pie. Anyone that says otherwise is either more altruistic than most I have ever met, or the worst kind of liar.

There is also a little thing called the law. If someone passes on without a will, their assests are distributed to their remaining family members based upon the laws of the state the deceased was a resident of when they passed. If it is determined, by a court of law, that Kirby was entitled to some percentage of ownership for the Marvel characters he worked on, then his children have a right to the value associated with asset.

The screwing of people like Kirby, 3 Stooges, and other artist from the pioneer years of mass media infancy (movies, book publishing, etc.), are the reasons most of the current laws exists.

This is why you have lawyers and judges to determine this stuff. Not ‘fans’ of one side or the other.

Bud

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That is definitely, without question, the truth. However, does that mean that Kirby and the other creators who created/co-created the Marvel characters (a) did not create these characters as a work for hire (b) did not create/co-create these characters without full knowledge that Marvel would own all rights to these characters (c) that by the standard of those days, the deal those artists signed off on and worked under was somehow unfair and (d) that Kirby’s heirs deserve (not to mention, have an ounce of legal right) to reclaim partial ownership of those characters that Kirby created/co-created?

So I guess all those Golden Age DC comics like Boy Commandos (which was acually one of the best-selling comics of the era) meant jack shit? There were also tons of other companies Kirby worked for that established his rep decades before Silver Age Marvel.

What strikes me is that if this were any other industry (music, film, etc.) you’d be hard-pressed to find anyone siding with the corportation rather than the creator’s heirs.

Also: know why Kirby was so prolific? Because he had four kids to feed. Of course they deserve the money, both from a legal and moral standpoint.

Bud

In general I’m for the little guy. If Marvel or larege publishers have been screwing the little guy with forced work for hire contracts or whatever, if the little guy can get back something for the abuse, more power to them. From my study of history a lot of people were taken advantage of because there weren’t that many options for them to make a living at what they wanted to do. Could have gone on to do something else, but that’s an argument for a another day.

I wish the Kirby’s well. During the Marvel bankruptcy the lawyers forced Kirby to sign away some of his rights because they refused to return his artwork, and that was some of the items he was going to use for funds to support his children and grandchildren’s education. Signing a contract under duress, which Marvel knew of his circumstances, is morally bankrupt.

DC is no saint in this matter either. What Siegel and Shuster had to go through to get something for Superman was disgraceful. At least the Kirby’s, to the best of my knowledge, are not living in a trailer park going blind and wondering if they can pay their trailpark fees like the Superman creators. They were lucky someone like Neal Adams made a big stink about it for them.

This is about whether or not the Kirby estate will receive a tiny fraction of the 4 billion dollars that Marvel is being sold for or whether every cent of it will go to people who had ABSOLUTELY NOTHING TO DO WITH CREATING THESE CHARACTERS.

Even Stan Lee isn’t in for piece of the 4 billion, though he should be. Those attacking the Kirby family are defending the bank accounts of people who bought Marvel.

I agree that this stuff should all be public domain by now but that isn’t in the cards. Someone is making billions off it. Why is it so horrible for Jack’s kids to make a microscopic fraction?