Robot 6

Kirby family attorneys respond to Marvel lawsuit

Fantastic Four #1

Fantastic Four #1

Attorneys for the heirs of Jack Kirby call Marvel’s assertion that the late artist’s contributions were work made for hire “a standard claim predictably made by comic book companies to deprive artists, writers and other talent of all rights in their work.”

The statement comes in response to a lawsuit filed Friday by Marvel asking for a judge to invalidate 45 copyright-termination notices issued in September related to such creations as the Fantastic Four, the Incredible Hulk, Thor, The Avengers, the X-Men and Spider-Man.

Marvel maintains that Kirby’s work for the company was “for hire,” invalidating the claims of his four children.

However, a press release issued late Friday by Kirby attorneys Toberoff & Associates points out that Marvel was unsuccessful when it made a similar argument in its legal battle with Joe Simon concerning Captain America.

“The truth is that Jack Kirby was his own man,” the release states. “Like so many artists in the fledgling comic book industry of the late 1950’s/early 1960’s, Kirby worked with Marvel out of his own house as a free-lancer with no employment contract, no financial or other security, nor any other indicia of employment. … Kirby’s wonderful creations, which leapt from the page, were not Marvel’s ‘assignments,’ but were instead authored by Kirby under his own steam and then published by Marvel. It was not until 1972 that Kirby by contract granted Marvel the copyrights to his works. It is to this grant that the Kirby family’s statutory notices of termination apply.”

According to Toberoff & Associates, the Kirby terminations would become effective beginning in 2014. However, it’s unclear to which property that date refers. (What notable Kirby co-creations debuted at Marvel in 1958?)

When Congress increased the duration of copyright, lawmakers included a provision that, after a lengthy waiting period, permits authors or their heirs or estates to terminate the grant of rights. However, if the property is determined to be “work made for hire,” the copyright would belong to the company that commissioned it.

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235 Comments

If the Kirby estate wins this suit (which imo opinion it sounds like they should) how high do you think the price of these comics will go?

I don’t see how they’d change at all. It’s not like they magically get more rare because they’re co-owned.

About time Kirby gets his share of the pie. He deserves everything Stan Lee has made these years if not more.

Rob Webb/Tetsuo_man

January 9, 2010 at 11:53 am

I think what anonymous meant was not that past comics by Kirby would be more rare but that Marvel’s current output featuring Kirby co-creations would have a higher price to make up for royalties for the Kirby estate.

@Rob Webb/Testuo_man, back issues are sold on a secondary market. It’s not like comic book stores pay Marvel or any other company a percentage from back-issue sales.

Kirbys family deserve the win. About time Marvel stopped being so greedy.

It’s a good thing that Disney bought up all of Marvel, they have substantially deeper pockets to dig into for settlement money to buy back the copyrights. The higher-ups at Marvel probably had their pockets lined from stock options during the Disney buy, and it’s only just that Kirby’s heirs get a slice of that pie. Paying them royalty money for future work, or buying the copyrights back for a large lump sum sounds like justice.

Long live The King.

Let’s be honest, there isn’t much with his characters that have been done that was better than what Jack did in the 1960’s. Personally I can live with just having Jack’s comics to read and Marvel creating some new characters. Jack’s family deserves this. We all work so that our family’s can benefit and it is about time his did. Stan looked after himself but not his “friends”.

Patrick Lemaire

January 9, 2010 at 12:22 pm

In the case of Superman, it’s clear that DC bought the characters from the creators, therefore DC didn’t create Superman. But I never heard of Kirby selling his characters or Marvel buying them from Kirby. Marv Wolfman and Steve Gerber didn’t win their lawsuit about the creation of Blade and Howard the Duck.
Plus did Kirby really grant copyrights to his works in 1972 to Marvel while he was working for DC?
I’m afraid that Kirby’s situation is closer to that of Wolfman than to Simon’s.

“Kirby’s wonderful creations, which leapt from the page, were not Marvel’s ‘assignments,’ but were instead authored by Kirby under his own steam and then published by Marvel.”

Bullshit.

He didn’t create the Fantastic Four, et. al, by himself, on his own, at home, and then bring them to Marvel for publication. That’s what this statement is saying, and it’s bullshit. He was part of a team that created these characters. If the family wants his name to be mentioned along with Stan Lee’s every time one of these characters is featured in a book or movie, fine. Jack contributed immensely to the early success of Marvel, and he deserves to be credited almost as frequently as Stan. But to insinuate that these characters were solely Jack’s idea is wrong. I am assuming there already has been some royalty paid to Kirby. I’m not saying it was extensive or even fair. But he was paid and he looked after his interests. He’s no longer alive, unfortunately. His children didn’t create anything, and if we’re talking about greed, it’s the kids and this attorney (who’s made a living off similar lawsuits) who are trying to hijack (no pun intended) this gravy train.

With what littlenomad said. This is a complete load of BS.

And didn’t Roger Stern find Stan Lee’s original script/out line for FF #1 in his desk when he was working for Marvel? IIRC, in that script/out Lee described each of the FF characters to Kirby.

Wait a sec. would this lawsuit in any way shape or form affect the character Luke Cage?

Because I would draw the line there.

If not ownership. Kirby’s estate deserves something by way of compensation. Put yourselves in their shoes. Its not fair that today’s top creators are getting million dollar contracts and Kirby who co-created Marvel, visually at least–had to live his last days in a lesser financial state.

But what did his heirs do to earn this? In the modern world this would be a standard work for hire contract in most-cases… the majority of work is still not creator owned. I don’t think his children are owed anything.

I am assuming a lot of people here who are pulling for his heirs are also fine with downloading CBR files — Are we pro-copyright or just anti-big business?

For those of you who truly have a good knowledge of comics history, look back over the last 70 years. Whose contributions are best reflected in Marvel’s 1960’s collaborations between Kirby and Lee? What did Lee do before or after? Look at what Kirby did both before and after. DC have been mining his 70’s Fourth World material for years now and with no end in sight. Lee? Ravage 2099?

I don’t care what Roger Stern found in the draw at Marvel’s offices, the Kirby influence was all over the FF and you do not know if what Stan wrote was after talking to Kirby. Lee most likely ripped off Jack’s own Challengers of the Unknown.

as stated kriby co created some of the characters that his heirs are now going after their rights under copy right law with stan lee. for unless Marvel can prove that jack did indeed have a work for hire contract stating any of the characters he and stan did are marvels the heirs have the right to some money. as for captain america the u.s supreme court ordered that Marvel and Joe Simmon must settle the issue of captain america by a jury trial that Joe soon backed off due to age. and given that Disney owns marvel they could keep the fight with Kirby’s estate going for a long long time. but no doubt Disney will just make a nice deserving settlement with Kirby’s estate as they should.

>> In the modern world this would be a standard work for hire contract in most-cases…>>

In the modern world, even a work-for-hire contract would give the co-creator a share of movie income, toy licensing, royalties on sales and more. And that’s with a duly-executed, legally-compliant contract, not simply an “understanding” that the publishers get to say what it amounts to after the fact.

Chuck Dixon, for instance, got money from one of the Batman movies because Chris O’Donnell called his Robin-cycle the “Redbird,” a name Chuck invented for the comic-book Robin’s car. That was work-for-hire — work-for-hire doesn’t mean “no extra money ever.”

>> I don’t think his children are owed anything.>>

The law’s not built on what you think, though. It specifically provides for family and estates to reclaim copyrights after a certain amount of time has passed. The reason for this, basically, is that it doesn’t want to penalize people for dying earlier than others. If Joe Author writes a novel and makes a ton of money and it becomes a movie for another ton of money, and he leaves that to his kids, but his brother Sam Author dies just after the book is published, they figure that Sam had the same rights as Joe, and if Joe could leave his worldly goods (including money left to his family) then Sam should be able to as well, even if that money’s still in the process of being earned. And if Joe can reclaim copyrights at a particular date, then Sam’s heirs should be able to as well, even if Sam’s not around to do it.

Most people want to leave the fruits of their labors to their families (and those that don’t can write a will to that effect); it’s no different with comic-book creators.

Some people build up bank accounts that they can leave to their kids. Some build up stock portfolios. Writers and artists often build up a big stack of hopefully-valuable copyrights and such.

And that stack o’ rights includes, for those affected by copyright being extended after they made a sale, the right to reclaim a copyright. It doesn’t matter whether you think they should have that right, but whether Jack would have wanted them to have it, and if copyright law supports him.

What will come out of all this, we don’t know, and may never know if whatever decision or settlement is reached is kept confidential. But it’s not greedy for the family of a creator to exercise the rights they inherited; it’s their inheritance, and in this case one their father would have very, very much wanted them to have.

kdb

I love Kurt Busiek’s one-man campaign to make the internet smarter!

The same group of plebs that was seen when Siegel’s family exercised the same rights are posting here. Apparently taking advantage of the same law given in the name of big business is unfair to big business. Too many fan boys terrified they’ll lose their fix of Marvel crapola, even though that won’t be affected.

“Lee described each of the FF characters to Kirby.” Like he described Spider-Man I suppose – he’s a teenager with the powers of a spider. Sheer genius from Stan there. All Lee did was dialogue and captions from, at most, a one line suggestion for a story. Kirby didn’t even need a suggestion – the plots are all his. Without Kirby, Marvel was barely Atlas.

It’s interesting that the responders on this board have taken either a pro-Marvel or a pro-Family approach. I’ll go a different route.
Both parties deserve to do whatever the hell they want with anything created before 1990. And in 2011, they can do whatever the hell they want with anything created before 1991.

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause states:
“ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. ”

Our congress critters have time and again sold out society for corporate interests (and make no mistake, the Kirby family’s interest is indeed corporate in nature, as is naturally Marvel’s), most notably the Sony Bono Copyright extension.

Copyright, for a LIMITED time is a GREAT and WONDERFUL thing. As a society, we grant authors and inventors copyright, that we enforce with blood and treasure, in exchange for them enriching society as a whole. Certainly Spider-man, The Fantastic Four, and ALL of Kirby’s creations and contributions to creations have enriched society (though in some cases by a very very small amount).

The flipside to the granting of copyright is public domain. This was understood by our founding fathers, and indeed many people today (just not our bought and paid for “representatives” see: “the senator from Disney”) as the “payment” to society for granting the copyright. Initially set at 14 years, with an extension of an additional 14 upon request.

Perpetual copyrights in this instance serve NO ONE but Marvel and the Kirby family, not society as a whole. If the Kirby family wants to make money off of various creations, I would be the first in line to protect their right to do so. Same goes for marvel. What we as a nation should NOT DO is forget to collect the payment for copyright in the form of public domain.

This is not a case of greed, it’s a case of ownership and control. When Mr. Kirby and others created or helped create these characters there was no contracts, those working in the industry where just happy to work! Watch Comic Book Superheroes Unmasked from the History channel, the early artist and writers took jobs within the industry to have a job and make a living, not to be in comics, comic books where not considered a “profession” when all those wonderful characters where created. That said, the laws for copyright have changed and good or bad, the “heirs” of Mr. Kirby have a right to terminate the contract Mr. Kirby signed with Marvel way back in 1972. Now what needs to be addressed is what copyright(s) will be granted if any, because comics and the characters are always evolving and other creators contribute thru out the years. Like in the Superman lawsuit, the character, missing some later powers and other attributes was granted, Superboy is yet another character that has fallen under this same issue(s).

What will more and likely will happen is that Marvel (Disney) will settle or have a new copyright created to make sure the characters stay within the Marvel family and also to create a payment percentage to the Kirby estate and it’s heirs. It would be foolish for Marvel and the Kirby estate to try to push for anything but a mutual understanding and working relationship. Marvel wouldn’t be the same with these characters and these characters would not be the same with out Marvel.

As for some of the comments above, Marvel is a business, it and like other business are not greedy, for to make such a statement would be almost like stating that a zebra have to many strips! Business are there to create as much money as possible, that is the capitalist way, if ya don’t understand nor wish to understand, then ya might want to look at the history of capitalism and why it works and why it has survived for so long. But, and I say but, the heirs do have a right to keep Marvel and those characters that where created by Mr. Kirby in check and to share in the profits.

Nuff said :)

Tom Fitzpatrick

January 9, 2010 at 2:01 pm

You go, heirs of Kirby!

if i were in kirby’s heirs shoes, i would definitely be doing the same thing, as i assume pretty much everyone else would. thats doesnt mean I (hypothetically), or they (realistically), would deserve squat, either morally, ethically or legally.

morally, and maybe ethically, if kirby was still alive, id be rooting for him to get all the recognition he deserves, and also be duly compensated financially (what that means specifically is neither here nor there). his kids and heirs i could care less about. they didnt do anything. i dont wish anything BAD to happen to them but i dont see how they deserve anything. legally, though, maybe they are, i have no clue, so at the same time i have no feelings one way or another who wins this case.

i personally, however, think its a little odd that so much emphasis is put on the act off creating these characters and no one pays attention to the huge financial risks that were assumed by other people in publishing the titles, developing these characters, nurturing the intellectual property and then fronting hundreds of millions of dollars to make the movies that are now finally returning these huge profits. its all rather ex post facto to me. if other people had spent their money to make a movie based on a character kirby created and it bombed, could those people then go to kirby’s heirs and demand restitution for being the kids of the guy that invented the turd of a superhero that lost them so much money?

but in the end it’s either disney’s stockholders or kirby’s descendants that is getting the extra scratch from the movies, and since i am not a stockholder or friend to the kirby family, i dont really care. it’ll be interesting the results, if and when this is actually settled.

as for the price of the individual comics, they will not change at all, no matter what. or if they do, someone at marvel failed econ 101. its the same deal as if sports teams raise prices to help pay for increases in players salaries. its done independent of one another. if you are not setting the price independent of the production costs, you are going to either lose money or leave money on the table. meaning marvel should be pricing their comics solely at whatever will give them the highest profits, thats it.

“I don’t care what Roger Stern found in the draw at Marvel’s offices, the Kirby influence was all over the FF and you do not know if what Stan wrote was after talking to Kirby. Lee most likely ripped off Jack’s own Challengers of the Unknown.”

___________________________________________

And it can be said that Simon and Kirby ripped off Doc Savage and his crew when they created the Challengers of the Unknown.

There are some good points here. Jack Kirby co-created these characters with other people. He doesn’t deserve all the royalties. He does deserve some, or something like that though.

I mean his estate does.

Since he’s gone.

And since his kids are in charge of the estate, they of course would get it.

Go Kirby family! Sue the rat bastards for every goddamn penny!

>> And it can be said that Simon and Kirby ripped off Doc Savage and his crew when they created the Challengers of the Unknown.>>

It can be. But not all that credibly, and not just because Joe Simon never worked on the Challengers of the Unknown.

>> Go Kirby family! Sue the rat bastards for every goddamn penny! >>

The Kirby family isn’t suing anyone, at least not at present. They’ve filed for copyright reversion.

Marvel is suing in hopes of preventing that reversion.

kdb

JOSH-

Why does *anyone* deserve MONEY? From characters created 40+ years ago? Furthermore, why should your and my tax dollars go towards providing for this trial, in the form of at least, enforcement? Let them both produce stories about these characters, and then the market can decide which is better. For that matter, let me and you produce stories about these characters, just as we, and indeed anybody can about Sherlock Holmes or Tom Sawyer.

Why does Stan Lee name get brought up every time one of these lawsuits get brought up? Stan Lee despite what some people think never owned or ran Marvel he was just an employee like Kirby and Ditko. He neither had an obligation or the power to look after Kirby.

It took Stan Lee decades to get any money from Marvel himself.

Mike D said:

“But what did his heirs do to earn this?”

What did Sam Walton’s heir do to deserve all those billions? What did Paris Hilton do to deserve all those millions?

>>And it can be said that Simon and Kirby ripped off Doc Savage and his crew when they created the Challengers of the Unknown.<<

If you have even seen Jim Steranko's excellent History of Comics volume 1 you will see a cover rough in there that was produced by Siegel and Shuster for their Superman pitch. Shuster's first drawing of the character was no more than a version of Doc Savage (or possibly Philip Wylie's Gladiator).

With Challengers, Jack may well have been influenced by his own Three Rocketeers. (worth tracking down just to see Al Williamson's inks over Kirby)

Mike D,

The funny thing is, I do support downloading CBR’s (which, by the way, is not something I would like to debate here), yet, I am against the heirs in this and the Superman case…This Kirby case, however, really ticks me off due to the timing…If I am not mistaken, didn’t this lawsuit come out right after the Disney/Marvel deal was announce months back?

>>Why does Stan Lee name get brought up every time one of these lawsuits get brought up? Stan Lee despite what some people think never owned or ran Marvel he was just an employee like Kirby and Ditko. He neither had an obligation or the power to look after Kirby.<<

Stan was an employee, Jack and Steve were not. Marvel were also a company ran (if not owned) by a relative of Stan's. Stan was in a much better position to look after himself, even keeping certain rights on the Silver Surfer to himself. (a character created by Jack)

Oh, and the Kirby family trying to go after the rights to Spider-Man?

Please!! What a joke! Where’s Ditko’s family in all of this?

Dewey: The Kirby children aren’t suing anyone (at least at this point). They’ve filed notice of their intent to recapture rights, as U.S. law prescribes, presumably within the window they’re permitted to do so.

Dewey (second post): Steve Ditko is still alive.

@alan coil: “What did Sam Walton’s heir do to deserve all those billions? What did Paris Hilton do to deserve all those millions?”

right. and if paris’ parents had sold every interest in the hotel business to others before she was born, and then she tried to sue the current owners of the business for a share of the money her parents created (or grandparents), she’d get laughed at.

i know its not a perfect analogy but the point is not what someone bequeathed their children and whether they earned that inheritance, but who owns the proceeds to intellectual property.

The law isn’t prefect and to prove anything is going to cost a lot of money. Over the years the rights of the creator have improved even if those improvements were because corporate companies were looking after their own interests. I am glad that changes in the law have allowed these families to get the chance to see a reward for their fathers and grandfathers hard work. They deserve it because the creators that produced the material deserved it.

The biggest shame in all of this is the Kirby heirs’ claim (unfortunately also advanced by Kirby himself) to “creating” Spider-Man. You only feed into the publisher’s attempts to undermine your claims, when you talk about depriving creators of the rights to their work, while attempting to do the same thing to a fellow creator. Stan Lee and Steve Ditko created Spider-Man. To turn the tide of history in this area, we must stand for ALL creators’ rights; lasting change will only come if these cases remain clear-cut matters of right and wrong, rather than individual cash-grabs.

>> and if paris’ parents had sold every interest in the hotel business to others before she was born, and then she tried to sue the current owners of the business for a share of the money her parents created (or grandparents), she’d get laughed at.>>

If there was specific law providing for the heirs of hoteliers to reclaim ownership of hotels that had been sold after a certain period of time, she wouldn’t be. Well, no, she probably would be, since she’s Paris Hilton. But not for using the law in a legal way.

Plus, for that matter, hotels don’t fall into the public domain at some point, either.

>> i know its not a perfect analogy but the point is not what someone bequeathed their children and whether they earned that inheritance, but who owns the proceeds to intellectual property.>>

In this case, the “hotel” was sold with the understanding that it would eventually be owned by everyone. When Congress decided that it could be privately owned for longer than originally expected, they made a law about that new, tacked-on period of time it could be owned for — a law that said that people who sold stuff with the expectation that it would only be owned for umpty-ump years had the right to say that they were taking it back after the umpty-ump years they originally bargained for. Now that it can be owned for a longer period of time, the new owner doesn’t get all that new ownership time for free.

That’s what the basis of these copyright reversions is all about. Under the old law, the law that existed when these properties were created, all the Golden Age characters would be public domain by now — no company or individual could own them. And the clock would be ticking down on the Silver Age characters.

But copyright was extended, so now it lasts longer. So the question arose, “Who owns the property for this new stretch of time?” The people who sold the copyrights didn’t expect to have sold it for this new longer period of time; they expected it to be PD by now. The companies that bought the rights didn’t expect to own it for all this time either. So Congress figured if no one ever expected an all-rights sale to last that many years, the benefit of the doubt goes to the creator. They sold their work expecting it to be owned for 56 years*, so now that it can be owned for longer, they have the right to reclaim ownership and sell it again, or license it, or keep it themselves, or whatever. There is simply no automatic assumption that the purchaser should get all the benefit from the new, longer copyright period.

People have asked, what do the publishers get out of this? The answer, according to this law, is that they get what they paid for in the first place: All rights for 56 years, and in some cases much longer. And during those years, they made a mint, and they get to keep that. That’s what they bargained for, that’s what they get.

But it doesn’t matter if X-Men (to pick an example) is way more popular at the end of that period than it was at the beginning. Under the old law, it wouldn’t have made any difference — it still goes into the public domain, regardless of how popular it is. So that doesn’t matter under the new law. Sure, the publishers are part of what made it so popular, and they benefited from that for decades. They profited from their efforts during that time period they paid for.

But copyrights don’t get owned forever (though Disney’s sure trying to make it that way). So publishers had no expectation of owning them forever, regardless of how profitable a property turns out to be.

The law works differently, though, if the work was a work-for-hire, which is why the publishers tend to argue that these things were. If it’s a work-for-hire, it doesn’t revert; it stays with the publisher until it goes PD. But that’s ultimately for the courts to decide, based on what any agreements actually say, and the laws under which those agreements were entered into.

kdb

*I think it’s 56, but it’s something like that.

Kurt, enough with the apples and oranges analogies. Your logical fallacies are ridiculous. Semantic constructs like yours are ludicrous at best. Reductionist logic… Man, what effluvium. Are you on the Marvel board or something? With your convoluted logic and complete disregard for anything other than the lockstep position of the corporate entity you should be paid for being a corporate mouthpiece.

What crap… If a hotel falls in the forest and only Kurt Busiek is there to hear it would it still be the intellectual property of Marvel?

Although I applaud the veracity of your position I think it is ridiculous at best…

Wow. I’ve been trying to be even-handed and focus on the facts here, but this is the first time anyone’s accused me of being on the corporate side in such disputes.

I’ve mostly been arguing with people who think Marvel must just naturally own everything, pointing out that the law specifically provides for creators to reclaim their copyrights. That’s not generally viewed as a lockstep corporate position, but rather the opposite.

Glad you applaud my veracity, though, Dirkstar.

kdb

Did you actually read Kurt’s comments, DirkStar? There’s nothing vaguely “corporate mouthpiece” about them.

And the odd hotel analogy was Jaroslav’s, not mine. I just responded to it.

kdb

Kurt, your attempt at being even handed eludes me. I’ve been following your comments for the last two nights and all I’ve seen is you coming down on the corporate side of things. You seem to be one of those people who believe in the Letter of the law. Spirit of the law is important too. Marvel stuck it Kirby when he was alive. They treated him like an insignificant piece of human flotsam when they felt he was no longer capable of producing profitable work for them. It was indecent that a man who’d done for them what he did was treated as he was by them when he needed a helping hand.

Your legalese mumbo jumbo lacks any obvious compassion for Jack Kirby and his estate. Maybe you think you’ve been fair or even handed, but I think you’ve been more of an apologist for Marvel than anything else.

I would have a lot of sympathy to the Kirby heirs claims, if they weren’t also trying to get rights to Spider-man. That is just plain greedy imho and also bull shit, and they are trying to deprive another creator, and that imho make them no better than the big business there fighting against.

Then either I don’t think you’ve been reading my posts, DirkStar, or I don’t think you’re understanding them.

I’m all for creators using every avenue the law provides to benefits themselves and their families. I hope that copyright reversion law benefits many, many, many creators and their families, not limited to the Kirby, Siegel and Shuster estates.

I’ve mostly been arguing with people who’ve been “coming down on the corporate side of things,” pointing out where they’re mistaken, or where their assumptions that Marvel should own everything and the Kirbys should go away are poorly supported.

For instance, when I say, “it’s not greedy for the family of a creator to exercise the rights they inherited; it’s their inheritance, and in this case one their father would have very, very much wanted them to have” — who do you think that’s favoring, Kirby or Marvel?

When I said: “It’s kind of funny, seeing people here flatly insisting that Kirby was an employee of Marvel (he wasn’t), that there were back-of-the-check agreements (there weren’t, not then), that those back-of-the-check agreements when they did exist were legal (they’re not, they don’t satisfy the rules of wfh law), and that Kirby was doing wfh because as they see it, that situation is clearly wfh (it’s not)” — do you think all those parentheticals are pointing out things helpful to Marvel, or to Kirby?

I looked back, and have missed anything I’d consider apologetics for Marvel. Except in other people’s posts, the ones I’ve most often been posting to correct or to argue with.

kdb

Kurt, Pedantic is the word I’d use. Impressed by the sound of your own opinion with no real empathy for the people issues. Let me hear your human response. Forget the esoteric legal crap. Tell me what you feel about Jack Kirby and Marvels relationship.

He worked his butt off, burning midnight oil like nobody else in those days helping to create the house of ideas. His art work sold millions of books. He carried Marvel on his creative shoulders. He deserved more than the tough love Marvel gave him when he was sick and dying.

What is your human response to what was done to Jack? Let me hear it…

“Dirkstar?” Is that German for “just not getting it?”

Kurt, if you were a lawyer I’d be interested in hearing your legal opinions, but you’re not. As you’ve been explaining both sides of the issue for us, I’ve not seen much of a human response. I see you talking about the law, but not the unique situation of Jack Kirby. You may have hinted at, but how about coming straight out and saying what you personally feel about the man and how he was treated. Show some empathy and then maybe I’ll see more clearly your support for the man and his estate.

Maybe I’ve missed the point because your feelings about Jack Kirby are missing…

I think Jack Kirby got screwed with his pants on. I think many creators did. I think comics creators were regularly taken advantage of, and deserve much better than what they got.

I think the copyright reversion law is a wonderful step toward helping redress that injustice, and I hope it helps lots of creators. Even so, they (and their families) still won’t get the full measure of what they deserved.

I still think you’re either not reading what I’ve been posting, or not understanding it.

Here’s some more stuff you can read and think must be Marvel apologetics, even thought it says things like:

“It’s odd how many people are willing to declare that comics freelancers understood the ins and outs of work-for-hire law even when no paperwork that satisfies the requirements of those laws seems to exist. If the artists should just have somehow known that standard industry practice was for the companies to own all rights, why is it that the companies are never expected to have just known that ‘standard industry practice’ didn’t satisfy the requirements of work-for-hire law, and they needed more than that, signed in advance of work being done? If creators are expected to be bound by back-of-the-check after-the-fact rights claims, why are the publishers never expected to be bound by the laws that say those after-the-fact claims are worthless?

“Why is it that the creators supposedly ‘knew the rules,’ and should therefore abide by them, but the publishers, who didn’t follow the rules, get to pretend they did? The creators made their bed and have to lie in it, but the publishers don’t have to lie in the one they made?”

http://pwbeat.publishersweekly.com/blog/2009/09/21/kirby-family-files-for-copyright-reassignment/

Mabe you’re confused that I’m talking about the law rather than rending my shirt and howling about injustice and how Marvel should die of shame and embarrassment, but really, the blog post is about the law, and a legal filing by Marvel. If you want to rend of howl, go ahead, but that doesn’t mean that everyone else is a corporate apologist.

kdb

Just to clarify: I think the laws should be changed (back) such that these creations are public domain. I also agree that all of Kurt’s points are correct. My issue is with copyright as it currently exists. I’m not on the side of Marvel or the Kirby family.

…is Kurt on Candid Camera right now?

>> Maybe I’ve missed the point because your feelings about Jack Kirby are missing… >>

Maybe you aren’t entitled to demand of others that they be emotional enough for whatever litmus test you want to apply. If you’ve missed the point — and you have — it’s because you misread the posts, not because you get to decide how emotional people have to be.

kdb

>> …is Kurt on Candid Camera right now? >>

I’m starting to wonder.

kdb

1) This Lawyer is a leech. That is obvious. He’s only out to drain his clients dry, even the most hopeless
2) Why does Disney have so much power they can sway law? I can’t figure out whether is a symptom of crappy capitalism or of poor democracy
3) Why should a contract signed after have less validity? I feel no sympathy for people who sign their creations away and they sue for them back

The Kirby family isn’t suing anybody.

I’m starting to realize if they passed a law saying people could only comment online about things they really understood, the internet would consist of Kurt Busiek talking to himself.

Doesn’t this smack as a little hypocritical on Marvel’s point as their big catch in the last year (aside from Disney) was aquiring the rights to Miracle Man by buying the rights from original creator Mick Anglo when his ownership, as far as I know, is still questionable? They played up the PR when it came to an aging and poverty-stricken Anglo, but despite the massive impact Kirby had on their core properties, they’ll fight to the last that the Kirbys have no claim. If the creations were work-for-hire, then they should have been smart enough to put it in writing way back when. The sensible thing would be for Marvel (Disney) to give a fair and decent settlement. And the sensible thing would be for the Kirbys would be to take it, cause they’re in it for a protracted battle that comics have never seen if they go up against Disney.

>> 1) This Lawyer is a leech. That is obvious. He’s only out to drain his clients dry, even the most hopeless >>

Except that I don’t think they’re paying him. I expect he only gets paid if he wins, or gets a favorable settlement. I don’t know that for a fact, but if it wasn’t true, the Superman case would have been over a long time ago, as the estates ran out of money.

>> 2) Why does Disney have so much power they can sway law? I can’t figure out whether is a symptom of crappy capitalism or of poor democracy >>

Big business has been swaying law for a long, long time. Not just Disney, but insurance companies, tobacco companies and more. It would be very, very nice if they couldn’t, but as long as politicians are funded by campaign contributions, it’s likely to happen.

>> 3) Why should a contract signed after have less validity? I feel no sympathy for people who sign their creations away and they sue for them back >>

It’s a facet of work for hire law. A contract signed after the work has commenced is not a work for hire contract; it has to be signed before the work begins. If it’s work-for-hire, it never reverts. If it’s not work-for-hire, it can revert. So when the contract was signed matters to its legal status, and to whether reversion happens.

And again, the Kirby family isn’t suing anyone. They simply filed for reversion, which is not a lawsuit. Marvel’s the one that filed a lawsuit.

kdb

>> And it can be said that Simon and Kirby ripped off Doc Savage and his crew when they created the Challengers of the Unknown.>>

“It can be. But not all that credibly, and not just because Joe Simon never worked on the Challengers of the Unknown.”

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D’OH, my bad. I always thought Simon co-created the Challengers with Kirby. Please correct me if I’m wrong, but didn’t Simon write some later issues of COTU? Maybe that’s where my confusion came in and why I wrongly thought Simon co-created COTU.

And for the record, I’m not saying that Kirby ripped off Doc Savage and his crew when he created COTU. However, I was trying to say that adventure teams like the COTU,the FF,and the Sea Devils followed the same basic team formula set by Doc Savage and other similar pulp and science fiction adventure characters and stories. Heck, I can even see superficial similarities between the FF team and the main heroic characters from the 1959/1960 JOURNEY TO THE CENTER OF THE EARTH movie (I don’t know if that was the same dynamic in the original novel since I never read it)

>> I’m starting to realize if they passed a law saying people could only comment online about things they really understood, the internet would consist of Kurt Busiek talking to himself. >>

This is partly why I’m posting in the first place.

I’m sure plenty of other people will argue from emotion, on both sides. I’m just hoping they won’t resort to assuming or making up stuff they don’t know in the process. It’s an empty hope, of course, but if I even cut down by 10% on the number of claims that Kirby signed back-of-check contracts in 1961 (he didn’t) or that it’s work for hire because he was an employee (he wasn’t) or that work for hire is just something that happens under the right circumstances, then maybe the discussions will be better for it.

kdb

Dirkstar,

I believe you are speaking from the heart, and that you truly believe what you are saying, but you and Mr Busiek are arguing different points. Whereas your posts concern what is “right”, his focus primarily on what IS. That said, I believe that you and he are *both* wrong.

If we ignore the current “law” (its in quotes for a reason), then by what “right” does the family have a special claim to the property that you and I do not also share? They were no more involved in its creation than you and I were, and even if they were then:

It’s been 40 years. Society has given Kirby, his heirs, and those he worked for, ie Marvel, plenty of time to collect the monies from the original works in the form of exclusive rights to publishing said works. At this point, again, over 40 years later, EVERYBODY should have the right to produce new spider-man, ff, and other stories.

The Constitution of These United States *has* been subverted for corporate interests, copyright was NOT MEANT to last forever minus a day. Society does not get a benefit from such an arrangement. Society does get a benefit from a reasonable copyright time. I’ll say 20 years in the case of creators, 10 years in the case of Corporations (those numbers are themselves too high). This benefits society as a whole, whereas the current situation benefits shareholders only.

I’m not saying we should dress in sackcloth , cover our heads in ashes and weep. I’m just saying that the non-stop legalese serves the corporate entity more than anyone else. If Jack Kirby was nothing more than a work for hire hack it would be one thing, but he was synonymous with the Marvel name. If I were his estate I’d be cataloging every book he ever did the art work for. I’d be showing how prolific he was and just how much his work drove the vehicle for Marvel. What Jack did for Marvel was to give his all with every piece of work he ever created for them. And they rode him like a thoroughbred horse as far and fast as they could get him to carry them. The pure volume of the work he did for them is proof that he was more than just a work for hire hack.

Jack Kirby is unique and so is the compensation due to him. I think that is an important point in the argument. I just wasn’t seeing that in your position.

I apologize. I loved Kirby’s work growing up. He was a hero of mine and I still have never forgiven Marvel for what they did to him when all he needed was a little human compassion in stead of the corporate line. What he did for comics period… He revolutionized the art form. He inspired readers.

My apologies good sir. I just get a little crazy when his story comes up. It is more than just a legal exercise. It is a remarkable human story too.

I hope the Kirby estate sticks it too Marvel and sticks it to them good. Just like Marvel did to Jack. He deserved better than what they did to him…

Correct me if I’m wrong, but didn’t Kirby run his own comic book company the same way Marvel and DC did back in the day? Couldn’t creators (or their heirs) who worked for Kirby’s company apply for copyright reversion for any characters they were involved in creating?

Yes, Kurt… The apology is to you.

>> Please correct me if I’m wrong, but didn’t Simon write some later issues of COTU? >>

Not that I’m aware of, no.

>> And for the record, I’m not saying that Kirby ripped off Doc Savage and his crew when he created COTU.>>

Let me point out that what you said was:

“…it can be said that Simon and Kirby ripped off Doc Savage and his crew when they created the Challengers of the Unknown…”

So you’re not saying he ripped off Savage, you were just saying that it could be said that he ripped off Savage. Not much of a distinction there.

>> However, I was trying to say that adventure teams like the COTU,the FF,and the Sea Devils followed the same basic team formula set by Doc Savage and other similar pulp and science fiction adventure characters and stories. >>

Yeah, but doesn’t it take more than that before “it can be said” that someone ripped something off?

If nothing else, Kirby had been using that kind of team setup for years, back to his “kid gang” stories, where characters with strong and distinctive personalities and abilities banded together and used those abilities in the adventures. And groups like that predate Doc Savage’s Amazing Five.

>> Heck, I can even see superficial similarities between the FF team and the main heroic characters from the 1959/1960 JOURNEY TO THE CENTER OF THE EARTH movie (I don’t know if that was the same dynamic in the original novel since I never read it) >>

I can see superficial similarities between the FF and the Challengers, at that. Both teams have a scientist, a pilot and a race care guy. and both have a brilliant mind, a rough-talking fighter and a hothead. Three out of four aspects, with the fourth taken up by Sue Storm, who acted a lot like June Robbins. Or you could map the FF to aspects of the Newsboy Legion: Big Words, Scrapper, Brooklyn and, uh, a girl.

I think Doc Savage’s Amazing Five was likely an influence on a lot of things, but by the time the Challs were crated, that influence was pretty diffuse. You can see the same kind of pattern of “disparate personalities, disparate expertises” in Steve Canyon’s flight crew, but Caniff was probably more influenced by war movies than pulp novels.

But you’ve said you didn’t mean to accuse anyone of ripoffs, so I expect we agree: Possible influence, sure. Rip-off, hardly.

kdb

I admit to being slightly confused by what is at stake here.

If this reversion does occur does that mean that the Kirby estate will own a stake in these franchises? Or does it simply mean the stories that were originally done? For example, would the Kirby estate be owners of the material (not the trademarks) for X-Men #1-63-ish or is it anything associated with those particular X-Men (Cyclops, Marvel Girl, et al?).

“Lee described each of the FF characters to Kirby.” Like he described Spider-Man I suppose – he’s a teenager with the powers of a spider. Sheer genius from Stan there. All Lee did was dialogue and captions from, at most, a one line suggestion for a story. Kirby didn’t even need a suggestion – the plots are all his. Without Kirby, Marvel was barely Atlas.

______________________________________________

That wasn’t the case in the early days of Marvel when Stan and crew started creating the MU. IIRC, Lee’s PLOT for FF #1 was a heck of a lot more detail then his later Marvel style plots. The plot/script is up online somewhere (I don’t know where).

>> Jack Kirby is unique and so is the compensation due to him. I think that is an important point in the argument. I just wasn’t seeing that in your position.>>

That’s because I don’t agree.

Not that Kirby wasn’t unique — he was. But I don’t think that the other creators who you might dismiss as “nothing more than a work for hire hack” should be ignored, and that redressing the inequities done to Kirby fixes things.

Does Don Heck deserve anything for co-creating Hawkeye and the Black Widow? Does Gene Colan deserve something for co-crating Whiplash? Two of those characters are in an upcoming big-budget movie, as are the Heck co-creations Happy Hogan and Pepper Potts. What about others, coming up? Does Kurt Schaffenberger’s family not deserve to benefit if something he co-created is lucrative? And so on.

I think Kirby deserves a fair shake. But I think everyone does, Not everyone’s in as good a position to get it, or even to get a fraction of it, as the Kirby, Siegel and Shuster estates are. But if everyone got a fair shake, the Kirby family would do better than Heck’s heirs, or Gene and Adrienne Colan, because Kirby created or co-created so much. But I don’t think what’s due Kirby is unique. I think by nature of his vast contributions, a fair deal for all would get him more than others, but I think those others deserve just as fair a deal.

Len Wein got a check because Lucius Fox appeared in the recent Batman movies. That’s great, and I think it’s well-deserved. I’d think it well-deserved if Gene got a check for Whiplash, and Don’s heirs, wherever they are, got some Pepper Potts money.

Kirby worked like a dog to feed his family, and created wonderful things. Don Heck worked like a dog, too (he once said that his wife divorced him because she got sick of seeing the back of his head all day, due to 12-plus hour days at the drawing board) and created less wonderful things, but things of value nonetheless.

I’d like to see the publishers share these movie windfalls the way DC does on more recent creations. It wouldn’t go all the way toward making up for the bad deals that creators labored under, but it’s be a nice step.

I’d like to see John Romita making some money off the Kingpin. I’d like to see Marv Wolfman, and Bob Brown’s heirs, make some off Bullseye.

The laws that would make those work don’t exist at present, but if publishers wind up paying money out to people like Kirby’s and Siegel’s families, maybe they’ll find out it won’t break them to share a little. And maybe it’d cut down on the number of lawsuits they have to defend, if people feel like they’re being treated well.

As for the apology, not a problem. Internet communication goes flooey sometimes.

kdb

Read a lot of other comments, man, the debate is tough, again, I go with what I stated earlier, this will just blow over and both sides will claim victory by getting what they both want, money and control and a long time agreement that will have all the characters stay at Marvel.

And again, there is no Marvel without Kirby, but there is no Kirby without Marvel. I know, Kirby is God, but Marvel as a company hired Kirby, paid him and took chances with what he helped create. If he’s characters turn out to be rubbish, then this whole debate is for not, so looking back is always easier than looking forward :)

nuff said

Blade X – I agree! Stan Lee gets so much glory simply because he’s still alive…

Jack Kirby showed me a bigger world. As a small town boy living in Jeffersonville, Indiana everything I saw on television was about might making right.. It was always about the fastest and the biggest gun. It was all about punching and being bigger. Kirby made me look beyond all that. Kirby made me realize that morality mattered, that there was goodness in cause. Kirby expanded my world view.

Kirby could take any one sentence and turn it into the most profound of moments with his illustrations. I remember turning pages and just staring in awe at what he’d drawn. Kirby took me from small rural America and gave me the stars. I’ll never forget it…

I see red when I see some of the arguments here. Anymore it just seems like all anyone cares about is big business. I’m tired of hearing, “Those lazy shiftless welfare grabbing Liberal pinko commie scumbags need to get a job and…” And it is the same argument so many people apply to health care, worker rights, religion, politics and every other subject you care to mention.

I’m taking another look at your comments Kurt, independent of the red haze my mind was swirling in as I read so many other inflammatory comments.

>> And for the record, I’m not saying that Kirby ripped off Doc Savage and his crew when he created COTU.>>

Let me point out that what you said was:

“…it can be said that Simon and Kirby ripped off Doc Savage and his crew when they created the Challengers of the Unknown…”

So you’re not saying he ripped off Savage, you were just saying that it could be said that he ripped off Savage. Not much of a distinction there.

>> However, I was trying to say that adventure teams like the COTU,the FF,and the Sea Devils followed the same basic team formula set by Doc Savage and other similar pulp and science fiction adventure characters and stories. >>

Yeah, but doesn’t it take more than that before “it can be said” that someone ripped something off?

_________________________________________

True, but someone saying “it can be said” doesn’t necessarily mean that person believes what “can be said” is the truth. Which is why I didn’t feel that it was necessary for me in my initial post to state that I didn’t believe that the COTU were a ripoff of Doc Savage and his crew.

>> IIRC, Lee’s PLOT for FF #1 was a heck of a lot more detail then his later Marvel style plots. >>

And a heck of a lot less detailed than modern plot-style writing, but that’s neither here nor there.

The fact that a plot exists doesn’t mean that the first Kirby ever found out about these characters was when he was handed a plot — Mark Bagley and I worked out a lot of the Thunderbolts stuff over the phone, and when I finally put it into a typed document, I was partly giving him a plot to work from and partly writing down the stuff we’d jointly come up with, so it’d be written down somewhere, and if he remembered things differently he could say, “No, hey, what we talked about there was XXXX” or something.

I’ve even heard some accounts that documents found years after the fact may not even have existed at the time — sometimes outlines have been produced for legal reasons after the fact, in order to claim a document existed when it really hadn’t (note – I’m not saying Marvel did this, just that “hey, we found a document fifteen years later” doesn’t always mean much). I’ve several times produced full-script pages for stories I wrote plot-style, because I wanted to use those pages in a chalk talk demo of “how comics are made,” and explaining full-script is simpler. Someone finding those pages might conclude that those issues were written full-script, but they’d be mistaken.

There were stories Kirby drew from Lee’s plot, typed up after the two men hammered out a story. There were stories Kirby drew after a conversation, with no written plot at all. There were stories Kirby plotted from whole cloth and Stan knew nothing about until the art landed on his desk.

Heck, there are characters Kirby created or co-created that he didn’t do the comic where the first appeared — Don Heck has said that any time there was a Kirby cover with a nice clear shot of a new villain, it was usually because Kirby had designed that villain, and the cover was done in advance to show the interior artist what to draw,

If they’d known then that it’d mean billions of dollars in profit decades later, they’d have been more careful about detailing who did what and nailing things down. But, well, they didn’t, and so it’s kind of a mess.

kdb

Blade X – I agree! Stan Lee gets so much glory simply because he’s still alive…

__________________________________

I believe that you are confusing me with someone else.

And for the record, I believe every creator (and their heirs) who have created any comic book characters deserves to get a royalty check for any appearances that those characters makes in comics,movies,TV shows ,toys,video games, clothing,and any other merchandise.

Good point, Kurt. (And I loved Romita’s work too.) My beef is with Marvel. Other companies have made the decent gestures and I applaud them for it, but Marvel has never seen fit to compensate anyone, let alone the greats who are the pillars of their success. In no way do I disregard the contributions of the artists you name, but I think that if Marvel is going to be legally forced to pony up it has to begin by setting the example. Kirby is a clear cut case for the abuses Marvel has heaped upon their contributors and if a case is going to be made for compensation, I think it begins with him.

I’ve even heard some accounts that documents found years after the fact may not even have existed at the time — sometimes outlines have been produced for legal reasons after the fact, in order to claim a document existed when it really hadn’t (note – I’m not saying Marvel did this, just that “hey, we found a document fifteen years later” doesn’t always mean much).

_________________________________________________________

Funny you should say that, because that very same thought has crossed my mind several times about that found plot outline for FF #1.

Blade, I was agreeing with your points and then adding an aside about my opinion of Stan Lee. I should have hit enter…

And I do like Stan Lee, I just think he gets to run around claiming to have “started it all” for no other reason than so many of his conspirators are deceased.

@kurt

i only brought up the hotel anology because alan coil brought it up. but i do appreciate you pointing out how intellectual property rights differ from most other business ventures, as they are obviously very important in this case.

but i knew it was not a good analogy. probably a better one would be pharmaceutical patents, or other inventions. plenty of people toil away so big, publicly traded companies can own patents. lots of people, and lots of smaller companies, take patents they own and sell them to bigger companies. often those patents turn out to be worth nothing, other times those patents produce huge revenue streams. what is tough to square is kirby’s heirs filing a copyright claim only after others put in a lot of work and a TON of financial risk and nutured these products into big money makers. no one was claiming kirby was getting screwed when marvel was filing bankruptcy and the only fantastic four movie was the made by roger corman.

the big difference is, as you very graciously pointed out in detail, is how copyrights have been extended beyond what anyone expected back in the 60’s, for various, often dubiously ethical reasons (alas, sonny bono is also no longer with us to help explain the logic behind some of those bills he sponsored).

this is all confounded by the fact that what is debatable today as to creator’s rights, is impossible to apply to the prevailing environment off the comics industry off the 60s. and i definitely appreciate your attempts to dispassionately educate the masses by dropping all sorts of ill knowledge on the subject. so like i said, i have no stake in the outcome but i am interesting in seeing how it all shakes out.

Good point, Kurt. (And I loved Romita’s work too.) My beef is with Marvel. Other companies have made the decent gestures and I applaud them for it, but Marvel has never seen fit to compensate anyone, let alone the greats who are the pillars of their success. In no way do I disregard the contributions of the artists you name, but I think that if Marvel is going to be legally forced to pony up it has to begin by setting the example. Kirby is a clear cut case for the abuses Marvel has heaped upon their contributors and if a case is going to be made for compensation, I think it begins with him.

_______________________________________________

Notice how Marvel bends over butt backwards to take care of their current “star” creators by having them be heavily involved in the making of the TV shows,movies,and video games, but they don’t offer this same courtesy to those creators who worked for (and help build) the company before Quesada became EIC (Claremont being the sole exception). I rather see those past Marvel creators who worked for the company before Quesada became EIC and who are still alive, be brought to Hollywood for their imput on the movies and TV series. Instead of bringing the EIC buddy’s to consult on the IRON MAN movies, they should have brought in Colan,Layton,Micheline,Romita jr,Busiek,and Chen. They should bring in Thomas,Adams,Perez, Micheline,Stern,Busiek,Buscema,and Englehart to consult on the AVENGERS movies.

Blade & Kurt – I say we turn our plowshares into swords and storm the Ivory Towers of Marvel. Mob justice is the only thing They’ll respect…

Brian from Canada

January 9, 2010 at 7:51 pm

Drew (and everyone else):

Copyright ownership means ownership of the character name, visual depiction an description. IF the Kirby family succeeds in the lawsuit, then all Marvel movie deals immediately cease until resolved except in cases where the film is already in production. At that point, the Kirby family can step in and demand whatever compensation they want from both parties or take the exclusivity away. (In other words, they can take X-Men to Paramount even though Fox owns all movie rights flat out.)

>> i knew it was not a good analogy. probably a better one would be pharmaceutical patents, or other inventions. plenty of people toil away so big, publicly traded companies can own patents. lots of people, and lots of smaller companies, take patents they own and sell them to bigger companies. often those patents turn out to be worth nothing, other times those patents produce huge revenue streams. what is tough to square is kirby’s heirs filing a copyright claim only after others put in a lot of work and a TON of financial risk and nutured these products into big money makers.>>

That doesn’t strike me as hard to square at all — they weren’t legally allowed to file for copyright reversion until now.

And while comics involve a financial risk, they involve a lower risk than most other industries, and Kirby’s creations have been in the black for a long, long time. It’s hard to say Marvel is in danger of losing money on the Fantastic Four or the Hulk. All that they’ve invested has been paid back many times over.

>> no one was claiming kirby was getting screwed when marvel was filing bankruptcy and the only fantastic four movie was the made by roger corman.>>

Yes they were. People have been arguing that Kirby (and other creators) got screwed for decades.

And remember, Marvel didn’t file for bankruptcy because the comics weren’t profitable — the comics were profitable, all through that period. Marvel filed for bankruptcy because their parent company bought bad companies left and right, saddling them with too much debt to keep up with. Kirby’s creations didn’t cause the bankruptcy; they helped pull the company out of it.

kdb

>> say we turn our plowshares into swords and storm the Ivory Towers of Marvel. Mob justice is the only thing They’ll respect…>>

Mob justice isn’t something many people respect, and sensibly so. They’d call the police and have you thrown in jail. Letting the law do its work is a better idea.

Besides, I left my ploughshares in my other pants.

kdb

@Kevin Melrose,

1. My bad on Ditko..lol…..May he rest in peace when he rests in peace…Anyway, where is he in all of this? I would love to know his thoughts on the Spider-Man aspect…

2. They may not be suing, but I still don’t like the timing…That being said, once the merger became official a few days ago, Marvel decides to sue..So, I don’t like either side right now….

Brian from Canada

January 9, 2010 at 8:12 pm

Kurt:

You’re correct that it is 56 years. You’re also correct in the reasons behind the original copyright act, and that the Bono extension was meant to redress the loss of revenue that could have been shared with artists long after their product was done. But you’ve missed two key points:

First: Disney instigated the extension on the copyright act for fear of what would happen to early Mickey Mouse films when released into the public domain. Their primary concern was corporate identity, since someone could, technically, redub “Steamboat Willie” into Mickey voicing his love of marijuana and how things sound cooler when you’re high once it goes into public domain and — as long as it doesn’t violate their trademark on Mickey — Disney couldn’t do a thing about it. IBM and other companies joined them on that and that’s the primary reason why Congress basically agreed to it: they didn’t feel good companies should have to spend millions in lawsuits defending themselves against people with contrary ideas.

Second: Bono, nor anyone else, was thinking about comicbooks when they put the extension act in. Bono’s primary thought process would have been on his previous job: music, where the lack of artistic compensation is not only legendary, it’s also well documented. For example, we all know that Lennon and McCartney created most of the songbook of The Beatles, but they had to sue Michael Jackson to get him to stop licensing it as his property against their wishes. And some musicians played into that; Elton John, for example, sold his catalogue to MCA with the full knowledge it would revert back to him decades later.

As a result, we have a situation created to protect corporate identity that has a clause to assist artistic identity in an industry where things were done quite differently than comicbooks. Music HAS written contracts for distribution on all songs because the songs have to be published separately than the recordings (two different beasts). Movies, which should have also been put under the microscope of artistic compensation because they too have stories of people who weren’t compensated enough, have contracts written with clear ownership by the studio.

You’ve stated that things were done differently in comics and I won’t argue with that. You have much more experience than I, and it’s clear from stories by everyone else that it was. And therein lies the rub: because the industry did not work in the same conditions that we have today (or that most other entertainment industries worked in at the time), we now see a court having to apply an inapplicable framework on top to try and decide what of the past mimics the present enough to be defined as either work-for-hire or individual creation under license to the publisher.

It will be a hotly debated topic for sure.

Brian from Canada

January 9, 2010 at 8:22 pm

To whoever said that Kirby isn’t getting acknowledged, I believe that the Fantastic Four movie does say the characters were created by Lee & Kirby together.

Should Kirby have gotten a percentage of the royalties because they are his creations? That’s not how Hollywood works. Lee didn’t get one either. Lee got money from the studios because of his presence in the movie (he has to be paid scale for it), and for his executive producer credit which gets him a cut of the very end of the profits. Keep in mind, though, that Lee ran Marvel Studios for enough years to be seen as its founding father and that’s more the tip off to him from the present film side than his comic writing.

Does Kirby deserve more compensation? The common consensus is that he does, and since he has passed it should transfer to his heirs. But what that level of compensation should be is something that has to be determined in court. Marvel is right to sue to have it stopped because they don’t want to have, say, the Kirby family allow DC to also publish a Fantastic Four comic which they would be able to do if it went through. The Kirby family needs a better argument than “you already lost with Simon,” though: had they said something along the lines of Marvel’s also been through this with Simon and an agreement was worked out to avoid any loss of the characters, we’d be in a much different ballgame.

Kurt – Mob justice may not be respected, but it brought Democracy to France.

>> Copyright ownership means ownership of the character name, visual depiction an description. IF the Kirby family succeeds in the lawsuit,>>

Kirby family not suing anyone. Kirby family filing for copyright reversion, which is not a lawsuit.

>> then all Marvel movie deals immediately cease until resolved except in cases where the film is already in production. At that point, the Kirby family can step in and demand whatever compensation they want from both parties or take the exclusivity away. (In other words, they can take X-Men to Paramount even though Fox owns all movie rights flat out.)>>

That’s a sweeping and not terribly accurate statement. If the Kirby family were awarded shared copyright, for instance, it wouldn’t stop any movie deals, it would mean that the money had to be evenly divided. What will come of all this remains to be seen — it could be settled out of court, or a judge could decide things shaded many ways.

One of the interesting wrinkles of the case is that Disney might actually benefit if a court were to rule that the Kirby family owned half of Spider-Man and the X-Men, thus giving them potential ammunition to end the Sony and Fox deals and allow Disney to make a settlement with the Kirbys that would secure Disney the rights.

It’s not a simple situation and there won’t be simple pushbutton results. In all likelihood, neither side will get everything they’re asking for, and may not expect to.

Drew may also be less interested in what it means to movie deals and more in what it means to comic books. My suggestion is not to worry overmuch. The Siegels, as far as I can tell, got reversion of co-copyright to Superman some time back, and it hasn’t stopped DC from publishing Superman comics, Superman reprints, Superman toys and all manner of other stuff.

Right now it’s just people in expensive ties filing legal papers back and forth. At present, there’s no reason to expect that the FF will vanish from the Marvel Universe like Rom or some of the Micronauts. But Kirby’s heirs may wind up living more comfortably, as their father would have wished.

kdb

The law… Hrumph…

>> Kurt – Mob justice may not be respected, but it brought Democracy to France.>>

It brought the Terror to France.

http://en.wikipedia.org/wiki/Reign_of_Terror

By the time it was all over, tens of thousands of people had been executed, the constitutional assembly collapsed, a failed democracy — and in the aftermath, Napoleon wound up as emperor.

The French Second Republic failed, too, resulting in the Second French Empire.

Even the birth of the Third Republic involved one hell of a lot of innocent blood.

kdb

>> You’re correct that it is 56 years. You’re also correct in the reasons behind the original copyright act, and that the Bono extension was meant to redress the loss of revenue that could have been shared with artists long after their product was done. But you’ve missed two key points:>>

I haven’t missed them, I simply haven’t been trying to do an encyclopedic rundown of the history of copyright.

Anyone who wants to argue that copyright, as it currently exists, lasts too long, won’t get an argument from me. I think 56 years is too little, but the current life-plus-70 is way too long. I’d be happy with, say, life-plus-20 — I like the idea that no one should see their own work go PD while they’re still alive, but by twenty years after a creator’s death, you’ve usually covered about two more generations.

But all that’s tangential to the questions of whether Kirby and others got a fair deal or whether his heirs are “greedy” for exercising their rights under the law. Or whether Kirby’s work was or wasn’t work for hire. It’s an interesting side-issue, but it’s a side-issue, at least to the points I’ve been making.

I think copyright’s a good idea, and I think it has been extended too long, but the Kirby situation isn’t about changing it and won’t change it; that’s another issue.

kdb

Kurt – You’re taking all the fun out of my plowshare and what am I to do with all of these torches?

Ploughshares are good for sowing wheat. And torches are dandy if you need light to read by!

kdb

Uh, I find another tool more fun to sow the wheat with…

I’m old, torches flicker and make reading difficult…

Are you sure you’re not sowing oats? Wild ones, maybe?

If you’re using that tool to sow wheat, do you wind up with a lot of dirt in your navel?

kdb

One of the interesting wrinkles of the case is that Disney might actually benefit if a court were to rule that the Kirby family owned half of Spider-Man and the X-Men, thus giving them potential ammunition to end the Sony and Fox deals and allow Disney to make a settlement with the Kirbys that would secure Disney the rights.

_____________________________________________

OK, I’m going to slip into conspiracy theory mode. What if this entire lawsuit was concocted by Marvel,Disney, and the Kirby heirs as a way for Marvel and Disney to get the FF,Silver Surfer,X-Men,and Spider-Man movie rights back from FOX and Sony? What if they agreed to pay the Kirby heirs an undisclosed amount of money off to file this lawsuit and if the lawsuit results in Marvel and Disney getting the movie rights of those characters back?

>> What if they agreed to pay the Kirby heirs an undisclosed amount of money off to file this lawsuit >>

Is no one paying any attention?

The Kirby family have not filed a lawsuit. This has been pointed out repeatedly.

>> and if the lawsuit results in Marvel and Disney getting the movie rights of those characters back?>>

If it was a conspiracy, there wouldn’t be much point to Marvel filing their lawsuit. Disney would want to settle, and get on with things.

kdb

>> What if they agreed to pay the Kirby heirs an undisclosed amount of money off to file this lawsuit >>

Is no one paying any attention?

The Kirby family have not filed a lawsuit. This has been pointed out repeatedly.

>> and if the lawsuit results in Marvel and Disney getting the movie rights of those characters back?>>

If it was a conspiracy, there wouldn’t be much point to Marvel filing their lawsuit. Disney would want to settle, and get on with things.

kdb

__________________________________________

D’OH I keep wrongly calling the Kirby heirs filing reversal of copyright. I think that I (and others) automatically assume that any kind of court case involving ownership of a property is a lawsuit.

Good point about why my crazy conspiracy theory makes no sense.

I’m going to file a lawsuit… I read comics containing work by Jack Kirby.

Kurt – I haven’t seen my navel in years. I couldn’t tell you what’s in there…

Blade – Maybe Kurt is part of the conspiracy and only wants you to believe your theory is wrong…

Maybe he’s getting a cut?

Who hoo, I win, everyone else went to bed!

There’s a typo in one of the commenters’ screen name, there should be a c where there’s an r…

noncorific – Wow, you must have thought long and hard on that one…

The Alpha and Omega of suits like this IMO is based on development of the intellectual properties considered.

Kirby birthed his “Fourth World” independent of any outside contributors and offered it to DC. While he was under contract there is an argument similar to the Superman one to be made there.

However everything done outside that had someone else’ hand in it. Be it Joe Simon, Stan Lee or Mark Evanier some other party helped develop it or it was done under someone’s instruction while under contract.

Since Stan has been pacified and is alive to confirm details of contracts and such IMO the Kirby heirs whether right or wrong are just wishing on a star. Reversion of ownership of things like Cap, Thor and so many others isn’t likely because there are to many names beside Jack’s on the work.

I think they would be better off buying Lottery scratch-offs.

I have to admit I would love to see them get the “Fourth World” stuff though, just because DC has never done right by that franchise.

I’m suprised that Kirby wasn’t under a work for hire contract for so long. If I remember “Men of Tomorrow” right, the company that would become DC put the creators of Superman and Batman under contracts right away. Maybe at the time, Marvel just saw superhero comics as disposible filler that wasn’t worth staking a claim on.

It does seem as though some creators were rewarded for their business savy, vis a vis Bob Kane. While others struggled for credit, like Jerry Siegel and others were almost completely uncredited, like Bill Finger. Maybe there is more to creating cultural icons than just being a good visual artist. It makes me wonder how successfully someone like Jack Kirby would have been if he had tried to publish Fantastic Four on his own (assuming you don’t give his cocreators like Stan Lee credit). In an alternate universe, the Thing might just be a cool drawing in an old sketchbook of a retired advertising art director. (I don’t think I’m too far off on that, unless I missed the trailer to the upcoming Captain Victory movie)

As a fan of the superhero genre I have to wonder how creator credit ultimately plays out. Should Kirby really get credit for the X-Men as they stand now? Not to diminish his work, but the X-Men he created was a short lived series that was just reprints when Len Wein took over. If I were to parcel out credit for the cultural juggernaut that is the X-men, I would have to give a much bigger proportion to John Byrne, Christ Claremont and Jim Lee. In the Jack Kirby ballpark I would put Grant Morrison, Joss Whedon, and Warren Ellis. Let me illustrate it like this, when you think of your favorite X-Men story is it one that Jack Kirby pencilled? What about Black Panther? Avengers? Machine Man? The Eternals? Miracle Man? the Hulk?

The Marvel and DC universes aren’t just a collection of character designs. They are shared pieces of art that have had many hands shape them. Yes, it is a creative venue that sometimes results in huge creative payoffs that aren’t always shared evenly with the artists and writers, but the artist and writers don’t proportionatly share the risk of publishing duds.

Ultimately, the law is the law and how it shakes out is how it shakes out. I just think that if they are successful it will have long term consequences for the genre.

@Michael Moore: If by never doing right by the franchise you mean repeatedly trying make characters from a few short lived series from the seventies popular but putting the characters in more popular team books and event or relaunching the New Gods title every decade, then yeah, DC should be flogged.

Seriously, the Fourth World, as done by Jack Kirby, had a shorter run than the New Universe. Are you going to get on Marvel’s case for not doing more with DP7?

@ kurt: “And while comics involve a financial risk, they involve a lower risk than most other industries, and Kirby’s creations have been in the black for a long, long time. It’s hard to say Marvel is in danger of losing money on the Fantastic Four or the Hulk. All that they’ve invested has been paid back many times over.”

i dont see how that matters, all that matters is who bore the initial financial risk. but i dont want to sound like i disagree with kirby’s heir’s asking for asking for a copyright revision, or filing suit, or suing, or doing anything like that. its the rational move from their perspective. so BESIDES the legal wranglings, which are beyond my ken and i dont care how they turn out, when it comes to the outrage over kirby’s creations, i still feel like the input by the company, who took on the financial risks to make the creations multi million dollar properties, is often downplayed in the discussion.

does this anaology make more sense: my dad invents teflon while working for dupont. dupont is awarded a 15 year patent and starts making a ton of money. then after my dad dies but before the patent expires dupont successfully lobbies to get the patent period extended. i then file suit (or extension, what have you) for some of the money dupont makes from that patent between now and when it becomes public domain? or if ive got the rules wrong, substitute propecia and merk for teflon and dupont. or y analogy could just be crap, i dont know.

im also curious as to what steps, had we a time machine but without the benefit of hindsight, we’d make sure were redressed. ive as much appreciate of kirby’s creations as the next comic geek but what should kirby have done differently? what should marvel have done differently (from their perspective, not based on personal nostalgia). im genuinely curious. and i apologize if im getting repetitive but as ive no stake in kirby’s inheritance nor the disney company i honestly am not inclined to side with one faction versus the other.

@michael porter: yeah i probably should have saved some times and just written “ditto”. excellent post.

@Kurt Busiek: You have plenty of patience, my friend.

This is gonna be soooo ugly, which is kind of depressing after what I found last night. Borders actually have comics on an honest-to-god spinner rack. I hadn’t seen one in probably fifteen years and it made me smile. And now I read this crap – grrrr. Marvel: do the right thing and settle up, get past this, get your new titles online, make Ghost Rider II not suck like the original, make the Avengers kick more ass than Wolverine on a three-day bender. Nuff said!

Look, I really don’t fall down one way or the other, I don’t think it’s necessarily fair to slate the Kirby family as has been going on. It’s well known Kirby wished he’d received more recognition in his time and I’m sure the Kirby family will have known this. He’d have wanted the money to go to his family after his death to provide for them. I honestly can’t see why what they are doing is wrong to so many people, if they succeed they are giving him the recognition he never got in his life.
Marvel on the other hand are covering their interests – completely fair enough, they’re a business and that’s how it works, they feel legally they’re covered and there’s nothing wrong with that, they have to cover themselves (I’d be really, really interested to hear Quesada’s honest to god answer to what he feels is right though – I suspect his heart lays with the Kirby family).
He did sign the contract eventually that negated all his rights to claim on the characters in exchange for his original artwork. That’s there in black and white. Do I feel it was a stupid move by Kirby? Yes. Did Marvel know EXACTLY what it was doing when they made him sign it? Yes. Is all there in black and white that he signed away his rights? Yes. Is that contract actually legally sound? I have no idea, that’s what the court is for.
However in the words of Sire Mix-A-Lot, there is one big but and I cannot lie. If you feel Stan Lee deserves to have his credit at the start of most Marvel comics, whether Kirby comes out of this the winner or not, Kirby does deserve his name right next to it. I agree with the above post that the modern creations often bear little resemblance to the originals (although FF is still pretty much the FF). If they don’t get any money for his name being there, fine that’s what the court have decided. But if Lee’s name is there Kirby’s name should be there on the ones he sorted. Claiming otherwise is a massive double standard. A lot of the claims as to who created what are lost to the fog of history but I honestly don’t think any of the stuff they created would have caught on like with did without the both of them. His name should be there.

It’s nice to see the comments are as ignorant and devoid of the facts as I had thought they would be.
Kudos to Kurt Busiek for that, by the way.
@Mark
I think that compensation and recognition would go a long way in doing right by the King’s memory. a ‘Created by’ tagline, the way that DC has for Jack’s creations. Hell, change it from ‘Stan Lee Presents’ to ‘Lee and Kirby Presents’.
Truth of the matter is, no one knows what Kirby signed to get (some) of his original artwork back. It must have been satisfactory to him at the time, however.

Crap, I meant ‘It’s nice to see the comments AREN’T as ignorant and devoid of the facts as I had thought they would be.”
Way too early.

Those of you who are crying for Marvel, let me give you a hankie…..

I’d just like to point out that there are a few complications here which are not being discussed. I hope that Kurt will come in on this; based on his posts, I am certain that he is well familiar with these issues.

1) Derivative Works. If you own the copyright on a work, then you also own the copyright on all works that are derived from your original copyrighted material. This is how, for example, copyright was recovered on the movie, IT’S A WONDERFUL LIFE; although the copyright on the movie was not renewed at the proper time, the copyright on the book on which it was based (which saw a print run of about 200 copies in a vanity press) DID have its copyright renewed, and, as a derivative work, the courts allowed the film to retain its copyright, and retroactively renew it. This is what’s happening with SMALLVILLE, too; although Siegel retained the rights to Superboy, it was a derivative work based on Superman, so there’s the question of what derivative works can the Siegel family claim is still open.

2) Trademarks. Someone mentioned that anybody can write a Sherlock Holmes story. Not correct. Although the original stories have all gone into the public domain, and you can publish those at will, there are still trademarks on Sherlock Holmes (I am not as sure about the supporting characters, though). Trademarks continue as long as they are active (how many characters exist for the sole purpose of supporting trademarks? Certainly, there have been periods where DC has only continued publishing Wonder Woman so that, due to their agreement with Dr. Marston, they have to keep publishing the character to maintain the trademark, and while almost nobody has figured out how to make the comic sell, Wonder Woman is a VERY valuable merchandising entity.

Now, even if the Kirby estate won full copyright to all the works Kirby co-created, Marvel would STILL own the trademarks. This would mean that, without Marvel’s cooperation, the Kirby family could not use the copyrights under the original name. Now, there are ways around it (DC, for example, had to use SHAZAM! because although they owned the copyright on Captain Marvel, they did not own the trademark), but, in general, things can get complicated. And Marvel could, if they wanted to, create an all-new FANTASTIC FOUR, and cut out the Kirby family entirely (not that they would want to).

One more thing: This has nothing to do with good, or evil, or little guy, or corporations. This has to do with the law. And when terms are not deliniated by contracts, and the statute of frauds is not imposed, figuring out exactly what the contract was can be a MAJOR mess. But if an adult makes a valid contract, and is not defrauded, then the fact that he or she made a bad decision generally does not mean anything in court (although note that if a deal is incredibly lopsided, and was clearly that way in the beginning, a court can reverse a contract as “unconscionable.”) For all we know, Kirby DID intend the money he got from Marvel to include the copyrights. After all, while Kirby did the work, Marvel assumed all the risks; if the characters had flopped, the owners of Marvel would have taken the loss, not Kirby.

But courts, in general, are limited to deciding what is legal and what is not legal, not what is right and what is wrong.

Dear Kurt,

I’m throwing out an odd ball question to you because this something that keeps bugging me:

Have you ever now or in the past played Dungeons and Dragons?

Can anyone speak to the oft-floated rumor that at some point in the 80’s, Jack Kirby signed away any rights or claims to these characters, basically making them definitively work-for-hire retroactively?

(It’s my understanding that this was basically a ham-fisted move on the part of Marvel’s legal department in return for whatever money/original art Kirby was getting in return.)

Is there any truth to this? Anyone?

Also: am I the only detecting a creepy, neo-Objectivist*, anti-intellectual, “tea bagger” strain to some of these comments? It seems pretty alarming, and out of place. That said: if Steve Ditko pipes up to tell us how A is not A, this will all have been worth it.

@Michael
A good point of reference in regards to the Kirby artwork battle can be found here:
http://archives.tcj.com/aa02ss/n_marvel.html
As stated, I don’t think it was ever made public exactly what was in the agreement that Jack signed to get (some) of his artwork back. He certainly never signed the initial (and insulting) 4 page agreement.

Wow, reading this thread has been more entertaining than some comics published today! :D I guess at least we get that from the whole lawsuit deal.

(Maybe Busiek and Dirkstar should sue RobotSix for copyright of their debate? ; ) )

As for me? I’m staying neutral on the matter until I learn more facts from both sides.

(Though I must admit, I’d never heard the “Public Domain is a Right!” angle before. Food for though there…)

>> IF the Kirby family succeeds in the lawsuit,>>

>Kirby family not suing anyone. Kirby family filing for copyright reversion, which is not a lawsuit.>

Luckily, you don’t have to sue someone to succeed in a lawsuit, as defendants have proven time and again.

You know, if Jack Kirby had been born in the same France whose Revolution is despised here this lawsuit wouldn’t exist. Because he and his heirs would own (well, co-own with Stan) all his characters.

Best,
Hunter (Pedro Bouça)

Kurt and I arrived at a mutually satisfactory resolution of our debate and will not be engaging in any frivolous lawsuits. Mirth, frivolity and pleasantries are now the order of the day.

jaroslav hasek said:

“i only brought up the hotel analogy because alan coil brought it up.”

Hey! Don’t put that on me. All I did was mention Paris Hilton and her millions. ;)

Here’s the slightly related and semi off topic million dollar question. If the creators (or their heirs) of the ULTRAVERSE characters filed for copyright reversion, would Marvel file a lawsuit against those creators and try to prevent them from regaining the copyright to those characters? I ask this because people who work for Marvel have said that Marvel buying Malibu Comics and the ULTRAVERSE characters was a very bad business decision. And IIRC, the creators of the ULTRAVERSE characters get a much greater portion of the profits from any comics,movies,toys,video games,TV shows,clothing,and other merchandise featuring any of those characters.

If Kirby’s estaste gets what they want should Stan Lee pursue a similar course? Also could conflicts over this issue remove characters from any publication whatsoever?

I work for the same corporation for 20 years. I developed/created processes and a widget that still makes them money in 2010. Am I asking for revised copyrights on what I created? No. This perception of big business being the evil entity is what needs revision. Kirby and whomever who works for a company, whether it be freelance or as an employee gets paid for their work at a rate that is appropriate at the time. That is what business is. You work and you get paid. If you don’t like it, then start your own business. Sorry all you artists/creators/writers/graphic cartoonists, etc… who don’t seem to understand that.

@jaroslav hasek

“does this anaology make more sense: my dad invents teflon while working for dupont. dupont is awarded a 15 year patent and starts making a ton of money. then after my dad dies but before the patent expires dupont successfully lobbies to get the patent period extended. i then file suit (or extension, what have you) for some of the money dupont makes from that patent between now and when it becomes public domain? or if ive got the rules wrong, substitute propecia and merk for teflon and dupont. or y analogy could just be crap, i dont know.”

Regarding your hypothetical scenarios…

Did your dad sign a work-for-hire contract stating that Dupont owns anything he creates while in their employ? To my knowledge, Kirby didn’t sign one with Marvel ( http://is.gd/61bPf ).

Does this patent extension legislation have a reversion clause similar to the one in the Copyright Term Extension Act? If so, you’re entitled to submit a reversion claim, just like Kirby’s estate.

For example, Joe Simon did the same thing back in 2001 ( http://is.gd/61ak9 ), and Marvel sued prior to settling out of court in 2003 ( http://is.gd/61an3 ).

Oh… I just remember…. I did some antique refinishing work on a Table 25 yrs ago. Although I got paid for that work, I think I now want rights on that work since that Table has now gone up in value as a result of my work on it. Wait, in fact, I want partial ownership of that Table. I’m going to file for copyright reversion now.

Mike, if it were so simple as “You got paid, so shut your yap,” there would be fewer copyright disputes. But copyright law is a little more complicated than that (made even more complicated by the decision of Congress to twice extend the duration of copyright).

That’s my point…… it should be that simple and there should be fewer copyright disputes (not to mention lawyers). The american society has by far the largest amount of lawyers in the world. Those characters are owned by Marvel regardless of the input Kirby, Lee or Methusalah had on them. Sorry Jack… I love you; but they’re not yours, they’re Marvels…….. unfortunately.

@Emily, Marvel is greedy? Don’t you mean the other way around? If you father did created something. Do you think you should have some of his money too?

The Kirby’s are just dragging the family through the mud. Marvel now has Disney in its corner. Do you think Disney would go down without fighting? I think not.

@Mike, like you and me. The rest of the world are stupid. I mean the artists got paid. The writer got paid. They got paid for ‘Works for hire’. This is exactly why Image was created. The Kirby family should ask anyone of them about what they got after leaving Marvel for the stuff they created, wrote, or drawn. A BIG FAT NOTHING. WHY? Because it was ‘Word for Hire’. Christ! someone should tell all those fools waiting in the wing to knock it off.

I am all for creator’s rights. I agree that Kirby does get the shaft alot of times and that he and Stan deserve equal credit….. BUT, Kirby has passed so when it comes to the copyrights to his work, sure I can see some form of compensation, but it seems to me that to this lawyer and his kids, they don’t care about what is right, they want a check, they are to sorry or lazy to get a job and make a living themselves so “hey let’s live off Pop’s hard work”

That is just my opinion though.

@MIke
Actually, it should be simply that the publisher prints the story, and has the publishing rights to that story, at the time it was printed. That’s it. Everything else belongs to the creator.
In the case of Kirby, work for hire laws were less of a practice in those days, and more of ‘this is how it is”, as the company told the freelancer. I really don’t think anything was solidified. There was a tactic of printing a work for hire contract on the back of the freelancer’s paycheck, but I think that would still be signed AFTER the work was done. I think a lot of creators scratched that section of the check out and cashed it anyway. I remember reading an interview with Neal Adams, in which he stated this.
Funnily enough, if Marvel had just given Jack fair treatment in regards to royalties and credit, I doubt if his heirs would have been moved to this. Jack wanted to leave a legacy to his kids and grandkids, and I say damn straight, use the law to do it.

@stuck_e
The thing is, Jack wanted to leave something for his kids. That was the reason he wanted his artwork back.
In a perfect world, Jack would have been an millionaire, the same as Stan Lee.

@Raul. I totally understand what you are saying and I agree it all stinks that Kirby and a boat load of other creators have not shared in the wealth from past creations. They know better today and that’s a good thing. But the bottom line….. fair or not…… is that Marvel owns those characters. Kirby was paid an agreed upon amount in ’62/63. At that time, if he thought it was unfair, he could have went elsewhere or started his own comic company with those characters and taken the monetary risk of failure. That’s what America is about…… go elsewhere if not happy with your employer or your employers terms or policies. Myself and 300 million other americans have “created” things for corporations and because we’re not considered “artists, writers, graphic cartoonists, etc…” we are not compensated for successful projects 40 yrs later. I recognize the amount of money involved, but really.

Just to clear up a point in re Steve Ditko, his stance (although, admittedly, conveyed through others who may or may not be deemed wholly reliable to any and all parties) on copyright reversion has always been that, unless some other arrangement was specifically in place, he conveyed all rights to his work when he received a paycheck from his employer. He simply refuses to allow any subsequent changes in law to override his sense of honor/fair-play/ what-have-you, regardless of what “everyone else” is doing, wrt agreements he freely entered into.

@Mike
Kirby was promised and promised and promised royalties from Good ol’ “Uncle” Martin Goodman. He never received them. Then Marvel was sold to Cadence. Cadence only knew who Stan was, and considered Jack labor.
I think in Kirby’s case, he believed in working very hard to support his family. I mean, 15 pages a week plus covers and breakdowns certainly would point to that fact. I really believe if Marvel had treated him with respect and compensated him fairly, as Stan was compensated, I doubt if this would even be a news story.
And in the case of ‘Marvel owning those characters’, I would think a court of law can sort that out. Personally, I hope the Kirby’s win. Or at least gain a creator credit for their father.

This is a very tricky, complicated issue. I’ve generally tried to avoid commenting on this or similar legal issues, mainly because I’m just not knowledgable about the law and copyright, and don’t want to say something stupid. So I’m not going to go into “who’s right” or “who deserves what”, just make some more general remarks.

I think, from a legal, historical perspective, cases such as this one or the Siegel/Superman one are fascinating, as in a way, they are the kind of copyright/ownership battles that are pretty much unique to the comic book medium. There really hasn’t been anything else like this, and in future, I think the outcome of this court case – whatever that ends up being – will be viewed as a landmark moment in the evolution of the comic book artform.

If we look at comic books as an artform (I certainly do), it’s a very new one, in the grand scheme of things. Though there were of course earlier examples, if we were to view “Action Comics #1″ in 1938 as the beginning of the comic book as we know it today, it is only now that comic books are entering the territory of mediums such as art, theatre, poetry, novels or, more recently, cinema, as an artform that has endured beyond a human lifespan. Before too long, all the original creators will have passed on, yet their creations will remain. And although the historical precedent for characters that reach a grand old age is for them to become available to the public domain, is there really any precedent for such characters remaining in constant publication on a monthly basis, decade after decade, continuing on after the departure of their original writer under the umbrella of the company in which they were founded?

In a way, these enduring comic book icons were born out of chaos. “The Adventures of Kavalier and Clay” is a book which wonderfully depicts this time in comic book history, where ideas were flourishing and people were just excitedly riding the zeitgeist and getting their ideas out there under whatever outlet they could, with the help of whoever would publish them, without any thought of how popular the superhero craze would become, nevermind where the characters would be after these creators were dead and gone. The Marvel and DC empires are castles built on shaky sand foundations, and over the decades they have become quite the sprawling, towering, labyrinthine structures, but now people are starting to poke around at those shaky foundations and start questioning whether these castles were really meant to last.

And that really is what makes this such a tricky situation. What other characters in other mediums have stories that are ongoing, where it’s all connected and has a throughline from beginning to end, that have been going on 50, 60, 70 years? There just isn’t a precedent that quite fits, and it’s going to make how this all breaks down quite fascinating.

Historically, this is very important. As comics complete their ascension from disposable pulp printed on cheap paper into bonafide artform, there will be growing pains such as this, old frameworks broken down and new structures and standards formed. In future, I think the big winners might end up being creator-owned projects. “The Walking Dead”, “Scalped”, and co., the products of a single writer/artist team and therefore finite in length, might end up rising in prominence as we move forward into the next phase in comics history.

I was promised a promotion 2 years ago…… guess what?…. didn’t get it.

As for Marvel owning those characters….. I guess a court will decide based on our lovely lawyers and judicial system. Perhaps if Kirby wins, I may very well sue for antique Table. I mean afterall, I feel it’s mine and there should be royalties, because it went up in value!

@mike
Why are you comparing apples to oranges, though?
I mean, we can play this, I guess. Did you sign an explicit, work for hire contract, transferring all copyrights and trademarks of the table before you started work on said table?

I’ve seen the table, the plot is thin, the creative detailing shoddy at best and the coloring was dreadful. I think they’d be more than happy to return the table and be done with it…

I do not feel this is a comparison of apples and oranges. This is about creator’s rights. I have developed and designed important creations for my business. Jack Kirby did the same for Marvel. There was no written agreement when he developed those characters. It was truly work for hire.

As YKW wrote “unless some other arrangement was specifically in place, he conveyed all rights to his work when he received a paycheck from his employer.” It is that simple. If he didn’t like that arrangement, then take the creation of those characters to another company. If there is no other company, then pretty much “tough”. That’s America… if you don’t like something, move elsewhere. We’re free to do what we want. We have become too much of a whining society in which we feel everything is “owed” to us and what’s happening is courts are actually listening. It’s quite pathetic.

@mike
And that’s fine, but Jack wasn’t an employee of Marvel. He was a freelancer.

>> i dont see how that matters, all that matters is who bore the initial financial risk.>>

I don’t think that’s remotely all that matters, myself, and I’m glad the law doesn’t work that way.

>> does this anaology make more sense: my dad invents teflon while working for dupont. dupont is awarded a 15 year patent and starts making a ton of money. then after my dad dies but before the patent expires dupont successfully lobbies to get the patent period extended. i then file suit (or extension, what have you) for some of the money dupont makes from that patent between now and when it becomes public domain? or if ive got the rules wrong, substitute propecia and merk for teflon and dupont. or y analogy could just be crap, i dont know.>>

It’s not a good analogy, because in the first place you’re positing that your father was a dupont employee, which means he has an employment agreement spelling out ownership issues. In the second, you’re talking about patent, which works differently from copyright (patent doesn’t last as long specifically because scientific advances are considered more valuable to society, so they go PD faster). Third, there isn’t any law under which you could file for patent reversion, possibly in part because there haven’t been major extensions of patent periods.

>> im also curious as to what steps, had we a time machine but without the benefit of hindsight, we’d make sure were redressed. ive as much appreciate of kirby’s creations as the next comic geek but what should kirby have done differently? what should marvel have done differently (from their perspective, not based on personal nostalgia). im genuinely curious. and i apologize if im getting repetitive but as ive no stake in kirby’s inheritance nor the disney company i honestly am not inclined to side with one faction versus the other.>>

I’m not sure this is best discussed from an “if we could go back in time” aspect, since we can’t, and we’re discussing something that’s actually going on rather than trying to rewrite history. But if comics publishers had been more willing to share equity and profits with creators, Simon & Kirby wouldn’t have had a reason to quit Timely after doing only ten issues of CAPTAIN AMERICA COMICS. Steve Ditko might not have quit SPIDER-MAN. Kirby might have brought the Fourth World to Marvel. There’s lots of what-ifs you can posit, but at the bottom line is that if creators had been treated more fairly, they’d have prospered, and working together from a position of trust and honesty is better for all involved that using people and casting them aside.

kdb

>> I’d just like to point out that there are a few complications here which are not being discussed. I hope that Kurt will come in on this; based on his posts, I am certain that he is well familiar with these issues.>>

Yeah, but they’re “What will happen if…” questions, not “what’s happening here” questions. Figuring out all the ramifications of what might happen if various dominos fall in certain ways is a bit too castles-in-the-air for me; the realistic upshot of all this is that it’ll ultimately be about who gets compensated for the use of characters Kirby created or co-created, not about whether they would be lost to Marvel.

kdb

>> Have you ever now or in the past played Dungeons and Dragons? >>

Long, long, long ago.

So long ago that I think of “Advanced Dungeons and Dragons” as the new version.

kdb

>> Kirby and whomever who works for a company, whether it be freelance or as an employee gets paid for their work at a rate that is appropriate at the time. That is what business is. You work and you get paid. If you don’t like it, then start your own business. Sorry all you artists/creators/writers/graphic cartoonists, etc… who don’t seem to understand that.>>

They don’t seem to understand it because that’s not “what business is.” Business is whatever deal you can make, not “whatever you got paid upfront is all you get ever so shut up.” There are lots and lots of business scenaria in which people get paid beyond whatever’s in their initial check.

Mark Evanier’s talked at times about why the advance/royalty system exists. It’s not because greedy creators want to get paid even after they’ve finished the work, it’s because publishers (and producers, and game developers, and lots of others who work with versions of this system) know they’re buying things that are potentially very valuable, but they can’t afford to pay what they’re truly worth. If someone had to pay up front what Superman was worth — or even what Cable was worth — they couldn’t afford it. So they pay a part of it, and make a deal that’ll pay the rest over time. As the project makes money, the creator gets some of it.

You could as easily say, “I gave you a down payment on my house, you got paid, shut up.” But they probably repossess your house for non-payment. Because “you got paid once, quit complaining” is not what business is. Even salaried employees (which, let us not forget, Kirby wasn’t) may get bonuses and incentives.

It’s not as if Marvel sold the Spider-Man rights to Sony, and Sony now doesn’t have to share any more money with them. If the movies do well, they pay more. If they make sequels, they pay again. They don’t tell Marvel, “You were paid once, shut up.”

Because that’s not how business works. That may be how your employment agreement works, but that doesn’t mean that’s how they all work. It’s not how Stephen King’s deal work, it’s not how my deals work, so telling us that that’s how it works, quit complaining doesn’t make a lot of sense, because we know for a fact that it doesn’t work that way.

Different deals work different ways. That’s why there’s a law that says that people who sold copyrights before 1976 can reclaim them after 56 years, instead of a law that says, “You get paid whatever you were initially paid and then you have to shut up and not complain.”

kdb

>> Kirby has passed so when it comes to the copyrights to his work, sure I can see some form of compensation, but it seems to me that to this lawyer and his kids, they don’t care about what is right, they want a check, they are to sorry or lazy to get a job and make a living themselves so “hey let’s live off Pop’s hard work” >>

Are you under the impression the Kirby kids don’t have jobs?

They’d have starved by now.

Kirby would have been glad to pass this kind of inheritance to his children. It wasn’t possible while he was alive, but it’s possible now. That doesn’t make them greedy, to do what their father would have done for them if he could.

kdb

>> But the bottom line….. fair or not…… is that Marvel owns those characters >>

If that was the bottom line, then nothing would be happening now. Things are happening now because that’s not the bottom line.

You declaring that it’s that simple doesn’t actually make it that simple. Particularly since you don’t have access to any of the contracts, vouchers, deal memos or anything else that would spell out how things worked, and don’t seem to understand the laws that they’re limited by.

kdb

>> As YKW wrote “unless some other arrangement was specifically in place, he conveyed all rights to his work when he received a paycheck from his employer.” It is that simple.>>

No, it’s not.

That’s how Steve Ditko feels, but it’s not at all what the law says. And reportedly, Ditko also feels that Marvel owes him millions, and he’s refused the money they’ve offered him as a bonus from the Spider-Man movie because he feels it’s not enough. He thinks they owe him far, far more, and won’t compromise his principles by settling for a lesser payment than he deserves.

He feels he was made promises that Marvel hasn’t lived up to, going back to those inflatable Spider-Man pillows from the 1960s. That he’s lived up to what he sees as his side of the bargain, and he won’t renege on it even though he feels Marvel hasn’t lived up to theirs. In his worldview, that shames them, not him.

But if you think Ditko thinks he doesn’t deserve to be paid more than his page rate, then you’re mistaken.

kdb

Hi Kurt,

Love your work!
I do understand your points….. from a legal perspective they are correct otherwise this issue would not be an issue. Your statements are obviously correct in that your deals don’t work that way and perhaps other’s don’t work that way, either. My only point, is that why am I any different with my work I’ve provided to my employer? or that my father provided to his employer in the 60’s? It’s not unless you can find a reason. So if Kirby feels he’s entitled to more as a result of his “creation(s)” from the 60’s; then why shouldn’t my father? My only point is fair is fair and if artists/writers are compensated now for work back then, then so should others. I am not debating the validity of the Kirby estate actions; only that it is not in line with the rest of us working class.

Hope that clear that up

Seriously, does anyone think , “Those lazy, shiftless, Liberal, lawsuit-loving, money grabbers need to get a job.” is really a well thought out argument? And why does that always seem to be the argument used in any debate about any topic anymore?

And as Kurt has said a million times now. “The Kirby estate has not filed a law suit…”

Thank you Brian and Kurt for your answers. That clears things up a little for me.

I am not worried about Marvel’s future. Regardless of how this plays out I imagine that the characters will stay with Marvel for along time to come.

I think in any creative endeavor that the artists and, by extension, their families, should be entitled to some of the profits that their creations net. Certainly when comics were first being printed no one could have imagined that they would become such valuable intellectual properties. If those past creators had had any idea of what their creations would be worth they certainly would have made different deals and the market of today would be a much different place.

Of course, all of this is academic if Marvel and Kirby had worked out some deal where Marvel’s ownership is clear in the matter.

>> My only point, is that why am I any different with my work I’ve provided to my employer? or that my father provided to his employer in the 60’s? >>

If that’s your only point, you’ve been expressing it pretty poorly, because you’ve been saying lots of stuff that isn’t that.

But to address it: Not all work is the same, and it doesn’t all get treated the same. My father got stock options at his job; I get royalties at mine. Some people get health benefits, some people don’t. Athletes have careers shortened by physical limitations, politicians seem to flourish when they’re older.

Not all work is the same, and it doesn’t get treated the same. In the case of people who create intellectual property, the Constitution recognizes that they’re creating something of lasting value that’s worth encouraging people to do, so they grant copyright — a temporary monopoly on that work — as an inducement to get people to create more of it.

One of the things you seem to keep missing no matter how many times people point it out is that Kirby wasn’t an employee. He didn’t have an employer, he had a customer, who paid him by the page, not by the hour. What you get from your employer is defined by employment law, but freelancers don’t have the same protections you do. Lots of people’s jobs pay them even when they’re on vacation; freelancers don’t.

>> So if Kirby feels he’s entitled to more as a result of his “creation(s)” from the 60’s; then why shouldn’t my father?>>

Your father might well be, if he created any copyrights. Did he?

You might just as well say that your father got employment benefits that Kirby didn’t, so why didn’t Kirby get those? Should they have been taken away from your father — or from you, today — because not everyone gets them, so you can’t have those?

The answer is that not all work is the same and it doesn’t get treated the same.

>> I am not debating the validity of the Kirby estate actions; only that it is not in line with the rest of us working class. Hope that clear that up >>

But you’ve said that the way you get compensated for your work is what America’s all about. It’s not, since there are lots of Americans that have been compensated for their work in very different way. The system Kirby used is so American it’s part of the Constitution, so I don’t think you can successfully argue that it’s not validly American.

Your basic argument — indeed, your whole point, as you say — is that you think Kirby’s getting something you didn’t get, and that’s not fair. That doesn’t sound a little to you like jealousy? “Why can’t I have what that guy has?” Seriously, if that’s your objection, there’s a long, long, long line of guys to be mad at before you get to Kirby. What about those people who inherited money that you and I didn’t get? What makes them special? What about guys who get millions of dollars to play baseball? Why don’t they give you and me millions of dollars to do what we do?

And is it really the American way to say that everyone should be treated the same regardless of what they do? That sure sounds more like the kind of thing we heard out of Russia, and it didn’t work out even there.

Did you work 12 hour days, 7 days a week, for decades, and for pathetic page rates and no health insurance or vacation time?

You didn’t do what Kirby does, he didn’t do what you do. You got things he didn’t get, he got things you don’t get. It’s not about you deserving everything anyone else gets, regardless of whether you made the same sacrifices or did the same kind of thing they did.

If Kirby had wanted to benefit from punching a clock and earning a salary, he could have done that. He chose a different path, with different risks, benefits and rules. You chose the path you chose, one that has its own risks, benefits and rules.

That’s what America’s all about. Choosing. Risking. Benefiting. Not demanding what some other guy got just because he got it and so you want it too.

kdb

>> That’s what America’s all about. Choosing. Risking. Benefiting. Not demanding what some other guy got just because he got it and so you want it too.>>

And before anyone pops up to argue — I’m not by any means saying this is limited to America. But this is the context Mike wants to frame it in, so I’m examining his argument.

He also noted that if America didn’t have as many lawyers, maybe creators would just sit down and shut up like they’re supposed to, but it’s been noted that in the somewhat less-litigious nation of France (home to La Revolution and Madame Guillotine, not to mention Lafayette, Asterix and deGaulle), creators have _more_ rights than they do in litigious America, not less.

Maybe those lawyers have been working for the corporations more than for the little guy…

kdb

Hi Kurt,

Rather than go through point by point, I will simply say I disagree with you on most statements.

Additionally, I’m not jealous. That was uncalled for.

I was simply trying to state what I feel is fair. And isn’t that was this whole discussion is about? The pioneers of this industry feel they’re due more money/royalties due to the success of what they helped create. And my opinion is they are not due anymore than anyone else. who helped “create” something.

This is just a big mess…

>> Additionally, I’m not jealous. That was uncalled for.>>

I dunno. No offense was meant and I’m perfectly willing to believe you’re not jealous, but “Why does so-and-so get something if I can’t have it too?” is practically the definition of jealousy. “I wish those guys didn’t have those rights under the law because I can’t use them to benefit myself.”

I do think it was worth pointing out, because if you’re not jealous, it might make you rethink a position that’s hard to distinguish from someone who is jealous. Again, no offense is meant and I’m not saying you’re jealous, I’m saying your argument sounds like something a jealous person might say, so it’s worth examining on that score.

>> I was simply trying to state what I feel is fair. And isn’t that was this whole discussion is about? The pioneers of this industry feel they’re due more money/royalties due to the success of what they helped create. And my opinion is they are not due anymore than anyone else. who helped “create” something.>>

Actually, your position seems to be not simply that they’re not due more, but they’re not due any royalties at all, since you don’t get them. You’ve said that they shouldn’t get anything you don’t, even though there are things you presumably get that they don’t. I would think most people who get paid vacation and sick days wouldn’t want to give them up purely because I don’t get them, so I’m not sure why it should work the other way.

As to whether this discussion is wholly about what people think is fair — it didn’t start that way. In fact, I got yelled at for sticking to the facts rather than talking about what I thought was fair. This discussion was originally about something that’s actually happening, and people weren’t simply saying what they thought was fair, but what they thought was true.

Your posts have often been stated as if they’re what you think is true, and it wasn’t until later that you made it clear you were talking about how you wish things were, but acknowledged that they aren’t.

But I’m perfectly happy to agree to disagree — I’m glad we recognize copyright in this country, even though not everyone’s work is covered by copyright law. I think it’s good for us as a whole. And I don’t think that what America is all about is taking whatever your employer decides to give you or lumping it; that sounds more like Ebeneezer Scrooge, at the beginning of the story, and has very little to do with American labor history even in fields that aren’t about IP creation. Many of the benefits most Americans get from their jobs today were the result of people not ascribing to the “take what you’re given or quit” hypothesis.

I hope you acknowledge, at least, that lots of Americans make their livings in different ways, and as such get compensated differently. Not every field of endeavor fits into the same mold, nor should it.

That said, though, thanks for the discussion.

kdb

I, too, am happy to end the discussion.

I have work to do :)

I’m mostly enjoying a Sunday off, myself, though I’ve been intermittently consulting with another creator, sending balloon-placement scans, putting together a potential back feature for a book, getting another freelancer in touch with the guy he needs to talk to to get paid some back royalties, doing some research reading and this-and-that else.

As a freelancer, I don’t get paid for any of that stuff. Some of it might be reflected in my royalties, if we put together a good-looking book that sells better as a result…

kdb

Jack Kirby was certainly great as an artist and his concepts he authored or co-authored were influencial. I do believe he should have got more money, and that his family should have gotten more money for his work……But, Kirby did not write dialogue real well. His ideas were dismissed as hokey and old fashioned when he returned to Marvel and Captain American, and this is the reason Stan Lee’s contribution to his 1960s Marvel work has long been under-rated. Its easy pick just Marvel as a target. Kirby worked for nearly every comic book company since the Golden Age. Nobody is trying to get a piece of those defunct characters or the profits made by those companies. Jack Kirby was the work horse of the industry, and I believe Jack Kirby knew when he signed the work for hire agreement, he understood he was getting paid for a job, a certain number of pages for a certain amount, and was pleased that something he helped create got printed. I believe that nobody who signed those agreements thought that anything they signed away would be still around 20 or 40 years later. I know that i would have been thrilled if I could have gotten a job as an artist at Marvel or DC, even if signing away my rights was the deal with the devil. Marvel should do the right thing and give up some cash as a point of honor to the creators in comics(or their families). I don’t really see any court overturning the work for hire agreements.

‘Maybe those lawyers have been working for the corporations more than for the little guy…’ Yes, Mr. Busiek, I agree with you on that one. I also believe that Jack Kirby knew exactly the type of people he was dealing with. I am grateful that Jack got his work published, as Jack Kirby fry cook or Jack Kirby moving company would have deprived everyone of a legendary creator.

>> Kirby worked for nearly every comic book company since the Golden Age. Nobody is trying to get a piece of those defunct characters or the profits made by those companies.>>

How do you know that?

Companies have licensed the rights to Fighting American, to Boys’ Ranch and others. Image recently put out Silver Star as a hardcover. Nobody wants these characters? I think you’re mistaken. And this copyright reversion isn’t about getting a piece of profits from before, but going forward.

Which characters did you have in mind that nobody wants, and how do you know nobody’s trying to get them?

>> I believe Jack Kirby knew when he signed the work for hire agreement, he understood he was getting paid for a job, a certain number of pages for a certain amount, and was pleased that something he helped create got printed.>>

What agreement was that? You may be imagining an agreement that Kirby didn’t sign.

>> I believe that nobody who signed those agreements thought that anything they signed away would be still around 20 or 40 years later.>>

That’s not actually an argument that only a corporation should profit from them, since the corporations didn’t know that the characters would still be around, either. Plus, you’re imagining that everyone signed legal agreements, and in many cases, they just didn’t.

>> I know that i would have been thrilled if I could have gotten a job as an artist at Marvel or DC, even if signing away my rights was the deal with the devil.>>

That doesn’t mean that everyone should think that way, though. Part of the reason you’d be thrilled to work for Marvel is because of the work people like Lee, Kirby and Ditko did. Kirby wouldn’t feel the same way about getting to work for the company that has the FF, the Hulk and Thor, since when he started there they didn’t have them, and he co-created them.

>> I don’t really see any court overturning the work for hire agreements.>>

The Kirby family isn’t trying to get work for hire agreement overturned. They filed for copyright reversion, something that’s legal under US law.

kdb

>> I also believe that Jack Kirby knew exactly the type of people he was dealing with. >>

Luckily for KIrby and others, knowing “exactly what type of people” you’re dealing with does not constitute giving up your rights under the law.

kdb

I shall remain silent…………..

I love this topic,because it does boil down to people being pro family or pro marvel. I can see the arguments on both sides,and I love that Kurt Busiek offers his opinion. This will probably all end in the same deal Stan got a couple years ago,Kirby’s heirs will get theirs and everyone’s happy. Oh and Kurt,there’s no way superman beats Thor. Why? Because Viking God of Thunder owns alien farm boy. The End

Herbie Popnecker

January 10, 2010 at 6:07 pm

Dear Mr. Busiek —

Thank you for your enlightening messages here but I’m afraid I have to ignore them all. You see, I love Marvel Comics dearly and I am scared to death of the possibility that anything will change the Marvel Universe. If Jack Kirby’s family were to reclaim the copyrights, Thor might not be able to meet Wolverine and my world would end. While I am grateful to Mr. Kirby for his role in creating all those great characters I love so much, my gratitude does not extend to wishing well to his family. This is because those characters are now my family.

So even though you are an informed, well respected comic book creator who seems to actually know something about publishing law and how your industry operates and I work at a Kroger bagging groceries, I have to ignore you. You say the Kirby family has not filed a lawsuit. So I’ll say they have. You say that Kirby never signed a binding work for hire contract. Now, that’s logical since if he had, this whole matter would have been over in two seconds and one of the nation’s top copyright lawyers would not be representing the Kirbys in the same kind of action that he won for the heirs of Jerry Siegel on Superman. I love Superman too so I’m pretending that didn’t happen, either.

I don’t care how many times you tell us the truth. I’m a comic fan. I live in a fantasy world.

I also don’t understand the idea of people getting paid again for work. Some publisher pays Stephen King to write a novel. The publisher owns that, right? Stephen King doesn’t get paid again when it’s reprinted or made into a movie, right? They don’t pay TV writers or movie stars when their work is rerun, right? It’s all just like digging ditches.

Someone even told me that Image Comics doesn’t own Astro City. That’s not right, is it? Didn’t you get paid for writing it? If you got paid, doesn’t that mean the company that paid you owns it?

I don’t know the Kirby family at all. I don’t even know how many kids Jack had but I’ve decided to hate them. I’m sure they’re doing this because they’re lazy and don’t have jobs. I mean, people with jobs never file lawsuits. I’m sure they’ve been sitting around starving to death for 30 years or so waiting for Marvel to be sold to Disney so they could try to get money. Speaking of money, they’re greedy to want any. We all know Marvel and Disney aren’t interested in money. And they didn’t create these characters! The people who currently run Marvel and Disney created the characters.

The Kirbys should honor the deal that I want to believe Jack Kirby made. Don’t tell me he didn’t make the deal I want to believe he made. I can’t deal with that. I want to believe he signed a contract that said Marvel would own everything forever even if the copyright laws were changed. I want to believe there was a statement printed on the back of the checks. Don’t tell me there was none and that even if there had been, the courts have held those are legally invalid. Please, Mr. Busiek, don’t tell me any of that. I don’t want to hear it. I want to be secure here in my little world, wearing my Silver Surfer pajamas and believing that the Marvel Universe will never change and that it can only be in the best possible hands if whoever buys it controls it.

Thank you.

You want I should bop you with this here lollipop?

It’s hard-to-find cinnamon.

kdb

Mister Busiek,

Thank you for responding to my reply. My second question relates to the first: Do you think you could ever see yourself writing a Dungeons and Dragon comic? Or better yet, maybe do few modules for the current ruleset? (Course if you want to do it for OLD school aka 1st/2nd edition I’m sure OSRIC would be your speed) I’d just like to see you try to meld the medium of comics with Dungeons and Dragons in some fashion. I think you could do it well.

I wrote a (never published) Final Fantasy mini-series once, so I suppose it’s not out of the question to write a D&D comic. But I suspect that if I wrote an invented-world fantasy adventure, I’d rather make up my own world than do a story that would be licensed by someone else, subject to their limitations and approvals.

Since I haven’t played the game in over thirty years, I don’t think I’d be suited to write any game modules, though.

kdb

I have to wonder if the Kirby heirs filing for copyright reversal is why Marvel has asked any creators who have worked for them to give a list of characters that they have created for the company.

I wrote a (never published) Final Fantasy mini-series once, so I suppose it’s not out of the question to write a D&D comic. But I suspect that if I wrote an invented-world fantasy adventure, I’d rather make up my own world than do a story that would be licensed by someone else, subject to their limitations and approvals.

Since I haven’t played the game in over thirty years, I don’t think I’d be suited to write any game modules, though.

kdb

______________________________________

Well since we are on the subject of D&D, I have to ask you these 2 questions. Did you ever watch the D&D cartoon from the 80’s? If you did, what did you think of the show and the characters?

>> I have to wonder if the Kirby heirs filing for copyright reversal is why Marvel has asked any creators who have worked for them to give a list of characters that they have created for the company.>>

I doubt it, except in the general sense that Marvel wants its talent pool to be happy with the deal. So maybe it’s partly because of things like that, or maybe it’s because DC shares movie money, or just something Disney wanted to do as part of buying the company.

I got a royalty check on some THUNDERBOLTS stuff I didn’t write, though, as co-creator of the series. So that certainly makes me feel like my contribution to the Marvel Universe is respected as something more than ditch-digging.

>> Well since we are on the subject of D&D, I have to ask you these 2 questions. Did you ever watch the D&D cartoon from the 80’s? If you did, what did you think of the show and the characters? >>

I never watched it. Shortly before it came out, I had an idea for a comic book that turned out to be remarkably similar to what they did in the show — RPGers lost in the gameworld, trying to find their way home — so I was grumpy and didn’t want to see it, even though I knew they weren’t swiping anything from me. And since then, I’ve reworked the idea into something vastly different that I hope to write someday.

But I never did see the show.

kdb

I agree with Kurt Busiek.His creations deserve more than just the going page rate.Marvel basically owes the Kirby Estate their bacon.They have been living off his and Lee’s work since 1961 and Lee got his due.Now Jack deserves his!!!Long Live The King!!!!!!!

I never watched it. Shortly before it came out, I had an idea for a comic book that turned out to be remarkably similar to what they did in the show — RPGers lost in the gameworld, trying to find their way home — so I was grumpy and didn’t want to see it, even though I knew they weren’t swiping anything from me. And since then, I’ve reworked the idea into something vastly different that I hope to write someday.

But I never did see the show.

kdb

__________________________________________________

I highly recomend you check the D&D cartoon out (it’s on DVD). The show, which ironically was made by Marvel Studios, had great stories (a few which were written by comic book greats like Mark Evanier and Steve Gerber) and actually felt like an old school Marvel superhero comic. Heck, one episode written by Gerber even had a Man-Thing type character heavily involved in the plot of that episode.

Kurt,

Well you can always make your own D&D type world. I mean it’s not out of the question…but I can see why module writing might be difficult if you’ve not played in a while. Still I think you might want to try it…if only because I think teaming you up with say…Erik Mona and/or James Jacobs would be kind of interesting… That or Monte Cooke.

Brian from Canada

January 10, 2010 at 11:47 pm

Herbie —

You cannot compare any other entertainment industry to comics. In the case of a book, copyright remains with the author; the publisher only licenses the printing, and the author is free to have someone else reprint it once their contract is up. Movie rights are paid to the author, not the publisher. And in terms of television, that was what all the strikes two years ago were about: residuals, since none of the contracts included Internet sales and the studios were making money off that.

Brian from Canada

January 11, 2010 at 12:00 am

Joker:

The interesting thing about the Seigel and Shuster decision is that DC and WB were ordered to pay royalties on products OUTSIDE of the United States, because there was no existing copyright decision for countries outside of American dominion (something all of today’s products do due to the multinational aspect of the countries).

In other words, Kirby’s “contract” (or agreement or whathaveyou) may be on the expectation of publication in the United States and probably Canada, but not in Europe, Asia or Australia. By extension, Marvel might have been free to do whatever it took to promote the series in North America (such as the cartoons and films) but the deal was never based on European, Asian or Australian presentations.

The only North American concerns based on that decision relate to (a) how far the original concept goes, and (b) intended international promotion by the company at the moment. In the case of a, there’s the question of ownership to Superboy and Smallville, of which then the families would have to be compensated for international sales of the series. In the case of b, WB stated they had another Superman film in pre-production and must produce one within a certain amount of time or be force to go back to court to decide what is best next.

On THAT basis, the Kirby family may be compensated for international sales of the Marvel character representations without affecting North American revenue. If that’s the case, then it gets even trickier because Panini in Italy doesn’t pay royalties out to North American producers (Steranko made a lot of noise about that!) and then you have to question Marvel’s action of good faith in dealing with international publishers.

What Seigel and Shuster’s case also revealed was that an undisclosed agreement was made to keep the characters in-house and continued in production. That I definitely expect will happen here, unless the demands placed on Marvel become viewed as far too overbearing, in which case things will get nasty… and Disney is counting on too much revenue for that. The obvious change we may see is that Fantastic Four becomes “Stan Lee and Jack Kirby present…” even though Lee’s credit lasts only as long IIRC as he is chairman emeritus (i.e., alive).

How far that goes would have to remain to be seen. But that is the existing legal precedent as I see it at the moment, based on what has been made public about DC’s dealings with the families behind Superman.

Brian from Canada

January 11, 2010 at 12:06 am

Kurt:

I’m not 100% sure about Marvel’s deal with Sony, but in the case of Fox the film rights are wholly owned by Fox for X-Men and Fantastic Four. They were purchased straight out for half-a-million because Avi Arad was desperate to start the film slate going. Whether because of Marvel’s increased royalties with Sony, by conscience, or for fear of bad press, Fox increased the royalty rate it gave Marvel for X-Men movies but the lion’s share remains with the company that owns it. Nothing Disney can do will break that deal that I can see, and Fox will probably hold on tighter now that it has something the House Of Mouse wants in order to broker other production deals if need be.

In other words, they can now hold higher royalties for ransom if they want Disney to help cover the cost of the next Cameron-sized budget being offered that they desperately want to get done. And then Disney will evaluate that second project based on its potential offshoot of royalties (since they’d get some too) and decide whether to go for it or not. That’s typically how Hollywood works these days.

A Kirby deal won’t change that. If precedent has shown us anything, it may force the complete revision of the Fantastic Four and Daredevil franchises at Fox into faster speed.

..

That line of “reasoning” isn’t going to work for Marvel THIS TIME.

Of ALL the artists to attempt to call “work for hire”, Marvel has the audacity to use that term for JACK KIRBY?

As far as I’m concerned the term “comic book” is interchangable with the name “Jack Kirby”.

There IS NO INDUSTRY without Kirby. All of “this” doesn’t ever exist without Kirby. DC’s books of 1961 were NOTHING like the Kirby/Lee period that would follow.

What an insolent nature Marvel has. It’s as if the Medici family were calling Da Vinci’s output “work for hire”.

Obscene.

..

“a standard claim predictably made by comic book companies to deprive artists, writers and other talent of all rights in their work.”

And of all the people trying to reap cash from this lawsuit, how many of them are artists, writers and other talents?

“It’s as if the Medici family were calling Da Vinci’s output “work for hire”.”

Erm, they did, they were his patrons. That’s why they owned the paintings. I mean, the estate of Michelangelo Buonarroti doesn’t own the Sistine Chapel paintings, because he was commisioned to work on them.

Kirby’s dead. I don’t see why his family deserves a thing, they didn’t draw shit for marvel.

“He also noted that if America didn’t have as many lawyers, maybe creators would just sit down and shut up like they’re supposed to, but it’s been noted that in the somewhat less-litigious nation of France (home to La Revolution and Madame Guillotine, not to mention Lafayette, Asterix and deGaulle), creators have _more_ rights than they do in litigious America, not less.”

France is highly socialist. There’s all sorts of laws there that makes things a nightmare for a big company. You can’t fire anyone without paying them a fortune. And while that sounds nice in theory, that’s until you realize there are plenty of legitimate reasons to fire someone, and of course these laws get taken advantage of there.

I understand the law is basically on the side of Kirby’s family, but I don’t really agree with it. Kirby’s kids didn’t draw comics, why should they get money for it?

@petes12
‘I understand the law is basically on the side of Kirby’s family, but I don’t really agree with it. Kirby’s kids didn’t draw comics, why should they get money for it?’

Because they are his heirs? I don’t see how that can be called into question anyway. You should read the rest of the comments, as this has been touched on several times already.

Yeah, that’s why France doesn’t have a comic company bigger than Marvel or DC.

No, wait! It does:
http://www.media-participations.com/index2.php?l=en

The “restrictive” french laws made the country able to resist the economic crisis much better than countries where the state doesn’t restrict economy, like US and UK. That’s why they exist! France is now richer than the UK for the first time since the brits started pumping oil from the North Sea, for example.

Best,
Hunter (Pedro Bouça)

@Brian from Canada

When Kurt said, “One of the interesting wrinkles of the case is that Disney might actually benefit if a court were to rule that the Kirby family owned half of Spider-Man and the X-Men, thus giving them potential ammunition to end the Sony and Fox deals and allow Disney to make a settlement with the Kirbys that would secure Disney the rights.”

I think that what Kurt meant was that the movie deals for the characters in question may no longer be valid if the copyright on those characters reverts to the Kirby estate. Regardless of the deals Marvel may have made with Sony in the past, if Marvel is no longer the copyright owner, a court may determine that any movie deal that didn’t involve the Kirby estate is no longer valid.

This may or may not be the case, and I apologize to Kurt if I’m misinterpreting what he meant.

@G

again, the Kirby families HAVE NOT FILED SUIT!!!!
MARVEL has.

Please READ before making yourself sound like an idiot.

@pete12

Because if Kirby were still alive, he would have the same right to file notice of copyright terminations. Do you believe that just because he’s unfortunate enough to be dead, Marvel gets everything he granted them for FREE? Wow.

Interesting side-note, 2014 is also the year that Blade Runner is set in.

Man, if the Marvel slate of characters gets decimated because the Kirby heirs gain the rights to a good percentage of Marvel’s characters…what exactly did Disney pay $4billion for?

Of course the irony of all this is astounding. If Disney hadn’t screwed with copyrights repeatedly over the decades, these characters would have fallen into the public domain in the 80’s.

I wish I cared more about this whole topic, but the bottom line is that be it Marvel or the Kirby estate, whoever is in control of these characters will continue publishing the same insipid crap with flashes of brilliance that has always been published.

Who cares what indicia is on the corner?

Not sure this actually affects Marvel as much as people think it does.

Marvel’s biggest characters were NOT created by Kirby entirely. The Mu’s biggest characters are Spiderman (Lee-Ditko and I’m amused so few people are not up in arms about the Krby estate claiming creation of that) and the Claremont era X-men (even losing Cyclops and Xavier, the franchise is that strong).

It also gets interesting with something like Iron Man. That has 4 creatores listed so does this mean Marvel would have to split it between Leiber, Lee, Kirby, Heck AND themselves?

As an aside, what’s with all the Lee bashing?

Without Lee, marvel is nothing even more than Kirby. For all the talks about the art, the fact is, it was that marvel characters actually had personalities (which I’ve never seen any dispte being Lee’s main idea) which made them so popular when compared to DC.

@Brian G
It should be noted that the Kirby heirs filed copyright terminations for HALF of the copyrights. Marvel would still own the other half.

@AllisterH
‘Without Lee, marvel is nothing even more than Kirby. For all the talks about the art, the fact is, it was that marvel characters actually had personalities (which I’ve never seen any dispte being Lee’s main idea) which made them so popular when compared to DC.’
I don’t think anyone is disputing that fact, but without the design of the characters, the powerful storytelling, and the way that the characters leaped off the page, Stan’s dialog would look pretty lifeless.
I think the synergy between the two created some great comics, I just think that Kirby should have been properly compensated for his work, especially in regards to royalties from licensing.

I dunno. Maybe, just maybe, having a bunch of Marvel’s core characters revert to the Kirby estate might just be the best, most invigorating thing to happen to them in a long time. This is, of course, an unlikely outcome. But punctuating the old equilibrium is something that really needs to happen from time to time. Maybe, I don’t know, they’d have to invent some new characters and give some incentives to make the universe live and breathe again.

Could be that it’s just me, could be that I’m crazy in the head.

@Kurt Busiek
‘That’s how Steve Ditko feels, but it’s not at all what the law says. And reportedly, Ditko also feels that Marvel owes him millions, and he’s refused the money they’ve offered him as a bonus from the Spider-Man movie because he feels it’s not enough. He thinks they owe him far, far more, and won’t compromise his principles by settling for a lesser payment than he deserves.’

Wow, I had no idea about Ditko and the Spider-man movie. Yeah, I would say he deserves a very large slice of that pie.

Typical Marvel. Part of the reason why I don’t read their boring comics any more.

>> In the case of a book, copyright remains with the author; the publisher only licenses the printing, and the author is free to have someone else reprint it once their contract is up. Movie rights are paid to the author, not the publisher.>>

Not quite. That’s the usual pattern, but copyright works the same in both industries.

There are lots of comics where copyright remains with the author — ASTRO CITY, HELLBOY, SAVAGE DRAGON, even various comics Kirby wrote and drew. And there are plenty of books where the copyright is owned by a publisher or packager — the Nancy Drew books, the Executioner books and more. Plus, if someone writes a novelization of a movie, the copyright’s not going to remain with the author; it’s going to be a work-for-hire deal.

What you mean, I think, is that the general pattern is that with novels, the copyright remains with the author. But it all depends on the deal. What does it say in the contract, when was the contract signed — book publishing is covered by exactly the same copyright law that comic book publishing is.

kdb

>> I think that what Kurt meant was that the movie deals for the characters in question may no longer be valid if the copyright on those characters reverts to the Kirby estate. Regardless of the deals Marvel may have made with Sony in the past, if Marvel is no longer the copyright owner, a court may determine that any movie deal that didn’t involve the Kirby estate is no longer valid.>>

That’s what I meant, yes. Or possibly that such deals are no longer exclusive.

kdb

>> Man, if the Marvel slate of characters gets decimated because the Kirby heirs gain the rights to a good percentage of Marvel’s characters…what exactly did Disney pay $4billion for? >>

I can guarantee you that this did not take Disney by surprise.

They bought Marvel with their eyes open, and their due diligence must have made them believe either that they could prevail in a situation like this or that they could make a settlement that would make the problem go away.

kdb

@kurt: “I don’t think that’s remotely all that matters, myself, and I’m glad the law doesn’t work that way.”

what laws dont take into account initial financial risk and only magnitude off post fact gains in loses for determining compensation? this may not be what you meant but as far as i know, though you can set up contracts to pay back under any system you want, in the absence of them, whether you make 1 dollar, 1 million dollars or negative 1 million dollars, the law puts the responsibility on those who bore the initial financial risk. from that basic principle the global financial system we know today operates. if it didn’t then no one would ever have to work for companies like marvel or dc, since kirby, lee, et al could just publish on their own and get other people to assume the risk and then only collect when their projects made money. yeah marvel and dc have been generating revenue from kirby’s work for years but that doesnt mean theyve generated profit the whole time. big difference. marvel’s superhero revival of the 60’s could have easily bombed (financially, not artistically, meaning they could have even sold well just not brought in enough money to cover the costs of operating the business), the characters kirby created could have become footnotes of comics history and no one would bes filing for any copyright revisions, as they probably would have been PD by now.

getting totally off topic though. ok, so analogies are the best idea in a situation this specific so lets scrap them. i guess what this case all comes down too is how kirby’s initial arrangement was structured. please correct me if i am mistaken but if it it is found that there was strict, delineated work for hire, kirby’s heirs would have no shot at getting anything. however since there was nothing so formal in place, then there is a good chance kirby’s heirs will gain some share (maybe not the best word) of the copyright because the timing and intricacies of copyright law in the US. am i close, wrong, still clueless?

and again, no matter how things shake out, whether kirby’s heirs get 100%, 50% or 0% of the copyrights, or the settle or any other outcome, i have no rooting interest and wont see “justice served” in any case. and thanks to kurt and everyone for engaging in this discussion, its been fun and i have learned quite a bit.

>> what laws dont take into account initial financial risk and only magnitude off post fact gains in loses for determining compensation? >>

I’m not sure what you mean, but the copyright reversion law, for instance doesn’t function as if initial financial risk is “all that matters.” Actual creation of the material matters, too.

>> marvel’s superhero revival of the 60’s could have easily bombed (financially, not artistically, meaning they could have even sold well just not brought in enough money to cover the costs of operating the business), the characters kirby created could have become footnotes of comics history and no one would bes filing for any copyright revisions, as they probably would have been PD by now.>>

No, nothing published in the 1960s would be PD by now. And the idea that nobody files for copyright reversion on characters that aren’t big profitable ones will prove false, I think, if it hasn’t already done so. Back when it was copyright renewal, rather than reversion, that was an author’s chance to get control of his past work, many authors filed renewals on work that hadn’t made much money. And some of that work made money for them thereafter, so they were glad they did.

To jump back to 1960s comics, though — Archie’s superhero line of the 1960s was a financial and critical failure, but none of the characters are in the public domain and Archie has made money off them at several points since; versions of those characters are now being published at DC. The THUNDER Agents were a financial failure. Charlton’s Action Hero” line died quickly. But that doesn’t mean that the characters would never be valuable again.

>> i guess what this case all comes down too is how kirby’s initial arrangement was structured. please correct me if i am mistaken but if it it is found that there was strict, delineated work for hire, kirby’s heirs would have no shot at getting anything. however since there was nothing so formal in place, then there is a good chance kirby’s heirs will gain some share (maybe not the best word) of the copyright because the timing and intricacies of copyright law in the US. am i close, wrong, still clueless?>>

I’m not trying to make strict claims of “if this then that,” merely to point out that the assumptions many people are making are based on assuming things that don’t appear to be true. My guess is that this will all end in an out of court settlement, not in a judge’s ruling.

kdb

@jaroslav hasek

“what laws dont take into account initial financial risk and only magnitude off post fact gains in loses for determining compensation?”

Here’s an excerpt from an article I wrote (located here: http://www.lordshaper.com/?p=1083 ).

It has been suggested that creating characters was part of the job Jack Kirby was paid to do. In 2001, Joe Simon’s attorney made the following statement:

“When the {1976 copyright} statute was changed in 1978, the whole point was to give people who may have sold their property for a cheap price the chance to take it back,” says Simon’s attorney Ross Charap. “The premise is you don’t know what something’s worth till the public tells you. Congress said, “Let’s do something for those who sold their goods at a rate far less than the value the public established for it over time.’ Somebody who gave something up for very little 50, 60 years ago should be entitled to get some additional compensation for the great work he or she did.” ( http://www.sfweekly.com/2001-04-18/culture/custody-battle/ )

A similar statement can be found in the decision overturning Marvel’s short-lived 2002 victory over Simon (which led to the above mentioned 2003 settlement):

The Supreme Court has noted that the renewal term operated to “permit the author, originally in a poor bargaining position, to renegotiate the terms of the grant once the value of the work has been tested.” Stewart v. Abend, 495 U.S. 207, 218-19 (1990); see also Woods v. Bourne Co., 60 F.3d 978, 982 (2d Cir. 1995) (“[Through the renewal term] Congress attempted to alleviate the problem of the inability of authors to know the true monetary value of their works prior to commercial exploitation.”). ( http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=docket&no=027221 )

Wow, Kurt, what a great bunch of posts you’ve put together. This is a subject that fascinates the hell out of me (I’ve considered going back to school to study copyright law, but my lawyer friends have all told me it’s a horrible profession to go into), and you’ve done a great job of explaining the law, how it applies in this situation in particular, and just a rough history of the comics business in general.

I’m a bit more radical than you are on copyright expiration — I think even 56 years is too long and would argue for setting it as low as 20 –, but our difference of opinion is probably a result of our respective occupations. I’m a computer scientist, and 20 years for us…well, 1990 was the year hypertext and search engines were invented and Windows 3.0 was released. It may as well be prehistoric. Comics, obviously, are a much different animal — has Astro City really been around for 15 years already? Yeah, I can see how 20 might be a little low in your line of work.

At any rate, some very insightful commentary. Thank you for taking the time; it’s very much appreciated.

@kurt & lobo – thanks for the feedback. obviously i was mistaken about the dates when works enter PD etc. what im getting at with the financial risk bit is not as relevant because US copyright law have special considerations.

i may be going way off topic but this may clarify what i meant. you and some friends start a company. it can be marvel, apple, widgets inc, anything. this company than pays a bunch of people to help them with a project. after those people are paid for their good and services (whether it’s salary, supplies or interest on a bond) all profits AND losses are now born by the the company, ie you and you friends, for putting up the initial capital. whether the project makes billions, hundreds or loses money, and whether the pay out is now or in a hundred years, the law is consistent. you may have paid someone that contributed a key component to the project that would have failed without it, but that person isnt due, legally, more money just because they facilitated the projects success (unless their contract stipulated otherwise, but then it all comes back to the contracts anyway). i just think this gets ignored when when discussing what comics creator’s deserve. thats an ethical or moral debate debate for another time.

and though that issue has been brought up in this conversation, it’s not really germane to this issue since its dealing with copyright revisions which is a totally separate issue, and which i thank both you guys for helping point out its details. had this been a lawsuit by kirby’s heirs to get what is their ‘due’ or whatever than the tangent on financial risk would be a more appropriate discussion.

so yes, people try to get copyrights back to their creations after the original company fails to make money with them. thats a great idea, maybe the original creators can do a better job with them then the companies that produced them. but at the same time if those creations make lots of money i can see why a company that first published them and assumed the initial financial risk would try and hold on to those copyrights for as long as possible.

>> so yes, people try to get copyrights back to their creations after the original company fails to make money with them. thats a great idea, maybe the original creators can do a better job with them then the companies that produced them. but at the same time if those creations make lots of money i can see why a company that first published them and assumed the initial financial risk would try and hold on to those copyrights for as long as possible.>>

They want to hold onto even the characters that didn’t make money. Who knows what’ll turn out to be the big trend next year, after all?

But merely the fact that they’d want to doesn’t mean that should give them the right to. They put up the money, yes. But the creator put up the idea. To assume that only one of those things matters is a mistake. To say that the creator only deserves more if their contract says so — well, that cuts both ways. The publisher only deserves more if _their_ contract says so, too. Regardless of their financial risk.

There is no automatic assumption on the part of the person making the financial investment over the person making the creative one. If you may me nine million dollars for a ten page story, it seems like I’ve made out like a bandit, and maybe I have. But if there was no contract, then all you’ve bought is first publication rights, after which the rights revert to me.

If there’s a contract stating something else, like that you get to publish the story as long as you can keep it in print and available, then rights don’t revert to me until it goes out of print. If the contract says you own all rights, then you own all rights until the term of copyright ends (a term that is different today than it was in 1961, but never mind). If you made a work-for-hire deal with me, one that legally satisfies work-for-hire law, then you’re legally the author of the story, not me, and any rights are vested in you rights from the start. If you made a work-for-hire deal that wasn’t legal, then I may be able to recover the rights at some time.

But how much you paid for the story, how much your financial risk is, is irrelevant, just as it’s irrelevant whether my story is a piece of junk or a Nobel Prize winner. You don’t get more rights because of the investment you made, any more than I get more rights because I worked on that story for ten years, pouring all of my creative wonder and fabulousness into it. What rights we have was always about the law.

So if you say that you deserve more because you poured tons of money into it, I may respond that you made gigatons of money back, so that’s not much of an argument. But both of those statements are about ethical issues, not about the actual law or the actual deal. How much money you invested was your choice (to whatever extent it wasn’t demanded by the contract) and the deal is the same whether you double it, whether you halve it, whether you make a gazillion bucks or whether you go broke.

You made a financial risk of your own choice. I made a creative risk of my own choice. One of those things is not legally more important than the other, because in the end it’s all a matter of what the deal says and what the law says about deals like that.

kdb

Though perhaps somewhat entertaining to a few fanpeople, I’d much prefer to have another ASTRO CITY mini series than to scroll through page after page of Kurt playing whack-a-mole with the ill-mannered and ignorant here.
Kirby- based on all I’ve read over the years- actually created these characters- and Lee wrote the dialog for the word balloons. ‘Nuff said!

Suppose that (prior to the Copyright Act of 1976), a creator entered into a contract with a company stipulating that in exchange for the copyright to his/her creations (which at the time would have lasted 28 years, with the option of one 28 year extension), the creator would receive an agreed-to amount of money.

Copyright extensions without reversion clauses would increase the length of the contract without any additional compensation to the creator. Copyright reversion allows creators – after the copyright term that existed at the time they entered into their contract – to either regain control over their creations or re-negotiate the terms of the contract in exchange for granting the company an extended copyright assignment.

Allowing a creator’s heirs/estate to act on a deceased creator’s behalf is only common sense.

>>when you think of your favorite X-Men story is it one that Jack Kirby pencilled? What about Black Panther? Avengers? Machine Man? The Eternals? Miracle Man? the Hulk?>>

Not that this has anything to do with the legal issues at the heart of this debate, but Black Panther? Yes. Avengers? Yes. Machine Man? For certain. The Eternals? Undoubtedly. The Hulk? Yep. Miracle Man? I don’t know who you mean, Miracle Man is the alternate name for Marvelman, and that’s not Kirby. If you mean the DC character Mister Miracle, then yes, certainly my favorite came from Kirby, as that may be the greatest single-character comic title of all time. There is a seldom used Kirby/Lee villain called Miracle Man first seen in FF #3. Is that who you mean? If so, then yes, that would be my favorite use of him. Now the X-Men, that’s a tough one. The Kirby issues are golden, and rank way up there amongst my favorites, but I would have to say Dave Cockrum drew my favorite X-Men story. That said, without Kirby’s work preceding it the excellent Cockrum material wouldn’t have existed, not in the shape or context that it does at least. And the same could be said for any of the other properties you listed off. So I fail to see the point of your argument. If a musician can record a more popular cover of a song does that mean they should win property of the material? Or the record company they record it for? Is that the Vanilla Ice argument?

Speaking of the X-Men, it’s worth noting that Len Wein may have gotten a check for the use of the relatively minor character Lucius Fox in Batman Begins, but got nothing, not even a name credit, for the use of Wolverine, Storm, Colossus, Nightcrawler. At least not as far as I can determine. Correct me if you know otherwise.

And Kirby did play an integral role in the creation of Spider-Man. Not to slight the far more important role of Steve Ditko, but Kirby did have a hand in it. It’s a really interesting story actually. Look it up.

@Kenny: “Though perhaps somewhat entertaining to a few fanpeople, I’d much prefer to have another ASTRO CITY mini series than to scroll through page after page of Kurt playing whack-a-mole with the ill-mannered and ignorant here.”

A quick Google search tells me the next Astro City’s due out in two weeks; I’m fairly confident Kurt’s posting here is not affecting that ship date.

I don’t think it’s a question of fanboyism; I quite like Kurt’s work but I’m also very interested in copyright law and its pertinence to comics creators, who really HAVE been taken advantage of over the decades. It’s nice to see somebody step up and explain the law and the reasons behind it clearly and concisely, and the fact that a pro is taking time out of his schedule to do it is commendable, in my opinion. When all’s said and done, I don’t suppose I’ve really learned anything new (except that Kurt wrote an unpublished Final Fantasy comic!), but I’d like to think some of the people in the thread have, and what’s more, he’s done such a good job of explaining it that I’m going to keep a bookmark onhand and refer people to it the next time the subject comes up.

Please correct me if I’m wrong, but didn’t Kirby later admit in a book written by Joe Simon that he had lied about creating most (or all) of the MU characters on his own and about Stan Lee not having a hand in creating any of the characters? Didn’t Kirby say that the reason why he made those claims was because he was out of work and angry? Could these comments (if true) made by Kirby be used against his heirs in Marvel’s favor?

The Kirby estate can’t really do much without marvel either even if half the rights revert to them

(again, Iron Man has 4 creators listed…does this mean the kirvy estate would have to share it 4 ways?)

@AllisterH
Nothing would change. Marvel would continue making the comics, movies and merchandise, they would just have to give some of that profit to the Kirby estate.

@kurt “because in the end it’s all a matter of what the deal says and what the law says about deals like that.” THAT we can definitely agree on. actually i think we’re pretty much arguing the same side at this point. the contract is paramount, after that, well, that is beyond my ken.

and if you think my position is that marvel put up the initial financial risk then they can override copy right law or invalidate contracts, then i apologize for being unclear but i definitely am not. in fact i very much meant to imply most of what you said in your last response, obviously not very articulately. but absolutely, size of the investment and payout is irrelevant.

i’m also not arguing that the creative process doesn’t matter, far from it. but sides need each other. i’m just talking about basic corporate law that i thought was being ignored. if you take the initial financial risk, regardless of the actual relative numbers, you are entitled to the excess profits of a project. you are also responsible for the all the debts. and this cuts both ways, which is why equity holders are paid last, which is why stockholders get nothing when companies file for bankruptcy (unless they get bailed out by the government, but thats a totally different scenario).

the question of whether past actions where morally orr ethically just, however, requires lots of what if hypotheticals, so i’ll refrain from commenting.

I too would like to thank Kurt for taking his time to very patiently explain things to random interested parties AND to those who need a clear explanation most.

I think that there’s a sentiment among many of the pro-Marvel crowd that simply says, “Yes, yes, the rules say blah blah blah NOW, but back then everyone knew what the ‘rules’ were if you wanted work. Pretending otherwise is disingenous.” But that’s incorrect. Not only would such ‘deals’ have been questionable from an ethical point of view, they would be both illegal now AND illegal back when they began (or, perhaps not so much flat-out illegal as ‘not legally binding’).

It’s interesting to note that while just about every other profession (be it salaried, houry, freelance, or what-have-you) has gained regulations and laws to benefit and protect the worker over the past 100 years. All have faced some resistance, but there sure is a lot of resistance to the belated efforts in the comic world!

At any rate, I think this can still be a good lesson for observers in what happens when you depend on winks, nudges, and handshakes to seal a deal. Even if there is no ill-will at the time of the ‘agreement’, any situation can become an ungodly mess later, so it’s best to have everything clear and in writing from the get-go.

Thanks again Kurt!

Here’s how the situation could go (for the family) if they consider options:

– family retains copyright thereby gaining royalties for a set period of time, but with production of material to be set by Marvel with minimal creative control
– suing for full rights, thereby gaining production rights on any Jack Kirby related material
– loss of copyright and therefore loss on income made from Jack Kirby related material and eventually the whole IP
– Marvel to retain IP but with collaborative interests of both parties thereby coming to agreements on any post-material including value and commitment (standard business contract per production or a bulk deal)

There are two I’d rather not see (middle two) and one I’d favor (top) but definitely one that would be preferable to all (bottom).

The copyright move by the family is only one move in this chess game, at THIS point in time. There should be no delusions into thinking it will stop there. If there are lawyers in the world, there will always be another step.

My point is that if Marvel doesn’t sit up and fight this now, then the IP is basically lost, and this means bad news to the market. Why this is, comes down to creative control. A business is more in touch with what the mainstream market wants, a product has to have marketable values with more than one demographic to achieve success (monetary-wise). When an individual (or someone who isn’t in the “business”) tries to control this process, the cost gets greater, and the content becomes more specific. While this can be a success to some demographics, it generally isn’t to all (or the majority).

Take the X-men IP for instance, for a pure comic book reader of X-Men comics, the movies all sucked. This is because it didn’t hold true to the comics, and was generated for mass appeal, and yet the movies, were a success…to the wider market.

IP held by individuals will generally F*ck up a good thing, because they don’t think in wider terms. That’s where corporate bodies have a bit more sway, because they go out and research this stuff until the martians have advised them of their opinions. This is why corporates deserve to make the dollars, because they do actually DO MOST the work.

That said, I said most, and thats where the lines need to be drawn and the compromises need to hold. The artist/creator needs to be paid, there’s no deviating from this, even if it’s 1000 years from now, but it needs to have perspective. The family needs to recognize the IP is better suited in Marvel’s hands when it comes to production of material (for mass appeal), while Marvel needs to retrospectively recognize that without the creation of the IP, they would not have made the millions they have. Most importantly however, the IP needs to have the customer in mind, otherwise both parties ultimately fail (because success is measured in numbers and dollars).

I’m not saying it should be a 50/50 relationship, as an idea is the spark, while the thought process is the raging fire. There is a point where creation loses out to refinement, but recognition in one form or another should be valued in some tangible way.

Pretty interesting story here about how the changes in copyright law may actually be keeping many books out of print by extending the copyrights for works in which the ownership is not clear…

http://www.thepublicdomain.org/2009/12/31/fahrenheit-451-book-burning-as-done-by-lawyers/

Also does anyone else remember the details of the Disney/AA Milne situation regarding the copyright on WInnie The Pooh? Seems to me that might shed some light on Disney’s approach in this matter- or not…

>>Also does anyone else remember the details of the Disney/AA Milne situation regarding the copyright on WInnie The Pooh?>>

I’m not sure if it really does shed much light on the situation. They don’t seem all that similar. According to http://www.lavasurfer.com/pooh-faq10.html:

Milne left the rights to his family, the E.H. Shepard family, the Garrick Club, the Westminster School and the Royal Literary Fund. Milne’s wife sold her rights to Disney in 1961. Christopher Robin Milne sold his rights to the other shareholders in 1996. Around 1998 the Garrick Club sold all its Disney until 2026. In 2001 Disney paid the A.A. Milne Trust for the royalty stream and the right to use the characters in any media. That was for $350 million dollars, which is a sum the Kirby heirs might find agreeable. Disney first bought rights in 1961 and renewed the rights yearly, paying royalties to the then right holders. The copyright holders named by Milne retain the publishing rights to his original book. Dutton Books holds the copyright on the original books and illustrations.

The clear, essential difference here is no one got screwed over to begin with.

The problem not being considered here is what this means for the future of comics, which I’m concerned about as a comic book fan. Basically, every one of these lawsuits is another ‘clang’ of the bell in the death knell of the medium. Marvel Comics is the top dog right now as far as comic book publishing is concerned, if they went out of the comic printing business, its doubtful whether DC and the little guys could keep the industry going on their own.

Marvel, as purchased by Disney, if you read the little blurb at the end of their press releases is:

Marvel Entertainment, LLC, a wholly-owned subsidiary of The Walt Disney Company, is one of the world’s most prominent character-based entertainment companies, built on a proven library of over 5,000 characters featured in a variety of media over seventy years. Marvel utilizes its character franchises in licensing, entertainment (via Marvel Studios and Marvel Animation) and publishing (via Marvel Comics). Marvel’s strategy is to leverage its franchises in a growing array of opportunities around the world, including feature films, consumer products, toys, video games, animated television, direct-to-DVD and online. For more information visit http://www.marvel.com.

As you may notice reading that closely, the publishing of comic books is a minor part of what Marvel now is, and what Marvel is is a character licensing operation. As a character licensing operation, they don’t make their money and stay in business based on selling printed materials, but by licensing out the characters that they own for all kinds of products. If Marvel loses ownership of those characters, either to public domain or to creators, it ceases to exist. Specifically, if Marvel lost the rights to Spider-Man, the FF, Captain America, Thor, Iron Man, the Incredible Hulk, the Avengers….there’s no Marvel any more. They aren’t a comic publisher anymore. They can’t stay in business printing something else.

So while you guys may be making credible points regarding economic justice or the importance of the public domain….are you willing to give up comics?

Again, the Kirby family isn’t suing. What’s more, these notices of copyright termination aren’t part of the “death knell” of comics. The only thing they signal is that the amount of time specified by the U.S. Copyright Act of 1976 has passed since the properties were created. That’s all.

Even if the four Kirby children were successful in reclaiming their share of all of the properties they seek, it doesn’t mean that Marvel will no longer have access to those characters, and it certainly doesn’t mean the company will be forced out of business. It simply means Marvel would have to share profits with the family on those properties from the date the rights were recaptured. That’s if Marvel and the Kirbys don’t simply come to a financial agreement that would result in the transfer of all rights to the company.

Joe Simon’s copyright dispute with Marvel didn’t bring about the end of Captain America or cripple the House of Ideas. Likewise, the ongoing case involving Jerry Siegel’s heirs and DC Comics has had little public effect on the company: The Smallville television show is still on the air, Superman comics are still published, and while Superboy was briefly gone from the DC Universe, he’s now back.

And through it all, the comics industry trudges on.

>>….are you willing to give up comics?>>

Honestly? You think that Kirby’s heirs getting properly compensated for his creations could be the death knell of comic books? Slightly histrionic, no? There will be comics. There will be Marvel Comics. There will be comics featuring Jack Kirby creations. This will affect the comic book audience 0%. In defending the corporate line on this issue some readers are trying to make this about their personal stake in this matter, but you have no personal stake. If he were your grandfather you would want compensation too. If they were your creations you would want your grandchildren to benefit from them. The law is complicated. The issue is not.

Even if the four Kirby children were successful in reclaiming their share of all of the properties they seek, it doesn’t mean that Marvel will no longer have access to those characters, and it certainly doesn’t mean the company will be forced out of business. It simply means Marvel would have to share profits with the family on those properties from the date the rights were recaptured. That’s if Marvel and the Kirbys don’t simply come to a financial agreement that would result in the transfer of all rights to the company.

—————————————————

Not at all. The Kirbys aren’t suing. The Kirby’s have filed to reclaim the rights to the characters. All rights. Not ‘profit-sharing’. Marvel is suing to block the transfer of ownership of the characters to the Kirby Estate. Where you’re getting this ‘profit-sharing’ idea is beyond me. I think you’re assuming that Marvel and the Kirby Estate would reach some kind of settlement. But why?

Why on Earth would the Kirby Estate choose to license the characters through Marvel as a middleman? Why not just license the movie rights directly to the studios? If they want to sell them, why not just sell them to Disney proper, or whoever else might be the highest bidder? If the rights go to the public domain, or someone other than Marvel, Marvel as an entity becomes superfluous and, in fact, ceases to exist, because by Marvel’s own self-definition, they are a group of character rights.

The DC examples that you cite are not the same, nor is the Cap example, because in neither of those cases did the rights to the characters themselves revert to someone other than DC or Marvel. In both cases, writers/artists gained shares of profits related to particular published material when it is, for example, reprinted.

Honestly? You think that Kirby’s heirs getting properly compensated for his creations could be the death knell of comic books? Slightly histrionic, no?

——————————

We aren’t discussing ‘Kirby’s heirs getting properly compensated’. We’re discussing ownership of the characters of Spider-Man, the FF, the Hulk, the Avengers, etc. reverting to the Kirby Estate, rather than Marvel.

I understand that you want the Kirby Estate to get money from Fantastic Four movies rather than Marvel as a company. But again, the revenue from the character rights that constitute Marvel as an entity going somewhere else means the end of Marvel as an entity. Financially they cannot exist purely based on revenue generated from printed comics, particularly if they’re having to pay licensing fees and royalties to even print those.

“The Kirby’s have filed to reclaim the rights to the characters. All rights. Not ‘profit-sharing’. Marvel is suing to block the transfer of ownership of the characters to the Kirby Estate. Where you’re getting this ‘profit-sharing’ idea is beyond me. I think you’re assuming that Marvel and the Kirby Estate would reach some kind of settlement. But why?”

To be able to reclaim “all rights,” they would have to successfully argue that Jack Kirby created all of those characters entirely by himself. I don’t see anything suggesting that’s what they’re attempting to do. In fact, the press release from Kirby family attorneys Toberoff & Associates specifically uses the terms “co-authored” and “co-creations.”

Where I get “this ‘profit-sharing’ idea” is the U.S. Copyright Act, which states that absent a written agreement, each co-author has a non-exclusive right to exploit (or license) the work without the consent of the other party as long as they account for any income received. Stan Lee waived all claim to his co-creations, transferring copyright to Marvel. Therefore, if the Kirby heirs were to successfully reclaim their father’s copyright to, say, the Incredible Hulk, the four-children and Marvel would become co-owners. We can see the same thing happening in the dispute between the Siegel heirs and Warner Bros./DC regarding Superman; the company must now account for profits dating from the time of the reversion.

“Why on Earth would the Kirby Estate choose to license the characters through Marvel as a middleman? Why not just license the movie rights directly to the studios?”

For one, Marvel retains the trademarks to Fantastic Four, Doctor Doom, The Avengers and countless other properties, no matter what happens in this case. The Kirbys wouldn’t be able to do much with a family of adventurers who gain freakish powers during a space flight if that comic/movie/TV show can’t be advertised as “the Fantastic Four,” or if those characters can’t be promoted as “Mr. Fantastic,” “Human Torch,” etc. (What publisher, studio, network or toy manufacturer would be interested in that?)

For another, the Kirbys and Marvel would be joined in the copyright(s) until properties lapse into the public domain. Neither party would be able to grant exclusive licenses to the works (for movies, for video games, for underwear) without the consent of the other — even if the Kirbys could make any deals without benefit of the oh-so-important trademarks. Even then, there would have to be an accounting of profits.

“Why not just license the movie rights directly to the studios? If they want to sell them, why not just sell them to Disney proper, or whoever else might be the highest bidder?”

Marvel is “Disney proper.”

“If the rights go to the public domain, or someone other than Marvel, Marvel as an entity becomes superfluous and, in fact, ceases to exist, because by Marvel’s own self-definition, they are a group of character rights.”

As I stated above, no matter what happens — even if Congress shocks us all by not extending the duration of copyright again — Marvel still owns the trademarks. It’s difficult to exploit well-known characters if you’re not allowed to advertise them as such.

“The DC examples that you cite are not the same, nor is the Cap example, because in neither of those cases did the rights to the characters themselves revert to someone other than DC or Marvel. In both cases, writers/artists gained shares of profits related to particular published material when it is, for example, reprinted.”

See my comments above regarding the terms “co-authored” and “co-creations.” I believe my examples are accurate.

Just had a thought….. wonder what everyone thinks ASIDE from the legal aspects (copyrights, patents, trademarks, blah blah blah). We’re supposed to trust in our legal system to protect and “do the right thing”, but I really wonder if that gets blurred and distorted more times than not.

As I stated earlier in this thread, legality aside, it seems to come down to do you support big business, or do you support the little guy. I certainly have major issues with big business, but I am so tired of every individual believing they are owed something and making a case for just that….. being owed something. And then we wonder we are the most litigious country in the world. Hmmm…. I can’t imagine why.

I don’t think people get the point behind why in some cases supporting the business is essential. We look at this from two perspectives, from Marvel/Disney and from the family of Jack Kirby. The biggest perspective that everyone here should share is the customer, thats why we need a favorable case decision.

Businesses may get it wrong in our individual perspectives (given we have our own expectations but market share doesn’t lie) and the majority generally get what they ask for (opposed to the vocal minority), but their primary source of revenue is from customers, so ultimately businesses will make the decision that’s best for the customer (which isn’t really for the customer but for the company, they just happen to walk the same path…mostly).

An individual or party such as the family of Jack Kirby need to protect their interests first, the customer comes second, not realizing their ultimate source of income is from the customer. That’s not a bad thing, as long as they coincide, but it’s when faced with “we won, but why stop there?” Right now it’s retaining the IP and profit-sharing, but 1/ will it end there? and 2/ what does this signal to the industry? This doesn’t bode well for the customer, because anytime legal messes get in the way it’s basically lose lose for all.

>>We aren’t discussing ‘Kirby’s heirs getting properly compensated’. We’re discussing ownership of the characters of Spider-Man, the FF, the Hulk, the Avengers, etc. reverting to the Kirby Estate, rather than Marvel.>>

As far as I’m concerned the Kirby heirs gaining ownership of the characters would be proper compensation. But that isn’t what is going to happen in this case and there is not going to be any affect on the comic buying audience based on this matter. Seeing as how Disney easily paid $350 million for the rights to Winnie the Pooh in 1961, does anyone imagine that a financial settlement can not be reached by the involved parties that will make everyone happy? Happy and rich? Even divided amongst the heirs of Milne, that’s a lot of money. But Disney could easily pay it and it was money well spent as the Pooh franchise has certainly earned them far greater revenue in the last fifty years. This is an interesting matter, mostly because its about time someone gets properly compensated for the gift to popular culture that was Jack Kirby. It is not the end of comics, or of Marvel. It will not alter my or your life in any direct manner. Seriously.

Small factual tweak: Kurt, in one of his wonderful fact-laden posts, noted that “No, nothing published in the 1960s would be PD by now.” While that would likely have been true for Marvel publications, it is not categorically true; material published early in the decade would have had to have its copyright registration renewed to be under copyright today. There are comics from this era which are no longer under copyright.

MARVEL SUCKS!!!!!First they totally destroy their universe.Kill major players(Captain America,Wasp) fuck up spider-man for millionth time. ruin friendship with D.C..They don`t know when to stop. Walt Disney is no better.They pimp out their little stars for every dime and dollar they are worth.Then throw them to the curb.MATCH MADE IN HELL!!!FUCK YOU MARVEL AND WALT DISNEY.Why don`t you go after Stan Lee for the rest of the copy rights.

Just thought I’d add a few points (and if they were made by others earlier, I apologize- with the exception of most of Mr. Busiek’s posts, I started skimming once I realized people were just saying the same thing over and over again without bothering to actually think about the rational arguments being presented to them).

First of all, the people who are afraid that Marvel will be “decimated” if it has to give up copyright to the Kirby family are misunderstanding the actual affect of copyright termination with regards to how it interacts with trademark law, which is an entirely different beast.. Even if the Kirby estate successfully reclaims 100% copyright on the characters they claim Jack created- which seems, in my opinion, to be a major longshot, since Kirby did a lot of his work with collaborators who would be just as much entitled to a share of copyright if THEY filed claims (just as in the Siegel case, where it is my understanding that representatives from the Shuster estate are now coming forward for their share)- the truth is that the Kirby family wouldn’t be able to do a lot with the copyrights except to reprint old material (or to use the characters in such a way that they wouldn’t violate trademark, which kind of defeats the purpose in the first place. As in the Siegel case, what good is a “Superman” who can’t appear with a big “S” on his chest and a comic cover calling him by that name?)

The trademarks on the characters’ names, costumes, logos, etc, would continue to be held by Marvel/Disney, and there is currently no legal mechanism as far as I know where the Kirby’s could terminate those trademarks (as long as Marvel kept exploiting them). So, what you’re left with is a stasis situation if the Kirby family (and Marvel) ever want to make money off of the future use of the characters.

The only way EITHER entity would continue making any real profit is if they worked together. It would mean the Kirby family would get what they’re owed- money. The Disney company would get what it wants- continuing use of Kirby’s characters. And comic book fans would get what THEY want- another couple of decades of rehashed plots and characters forced to remain in a status quo stasis. ;) (Apologies to Mr. Busiek, who does a lot more with characters that aren’t his than some writers do with characters they invented.) So nobody needs to get their panties in a bunch for fear that they’ll never see another issue of Fantastic Four if the Kirby family wins control of the copyrights- there’s extremely little likelihood of any of that happening.

The other point I want to make is regarding the “I made a chair once, I should keep getting paid for it,” analogy, which seems rational, but only if you don’t take into consideration the uses of a chair versus the uses of a piece of intellectual property. A more apples-to-apples comparison would be that of visual artwork.

As somebody (I forget who) mentioned, Leonardo DaVinci was commissioned once to make the Mona Lisa, and that was it- the patron got the painting. All very true. And if Kirby were still around today and were, say, working comic conventions and selling his art, that would be the case with him. However, if Leonardo and Jack were around doing their thing, there would still be an important caveat. Yes, the physical piece of art would be sold once- but if the commissioner of that piece of art decided to make a litho of it and sell posters in Stuckey’s all across America, he’d be hearing from Jack and Leo’s respective lawyers. Because, as Mr. Busiek pointed out, there’s a difference in something that produces value once and something that produces continuing value.

Look at what’s happening with the Annie Liebowitz situation- her financial issues are so dire that she’s had to sell off negatives and much of her intellectual property to pay her bills. But, if she were still doing fine, she’d keep the negatives and the client would just get a copy. IN FACT, if you ever get married and hire a wedding photographer, look closely at your contract- because many of them (if not all- I’m not married) keep the rights to their photos, even though the photos are of you in your veil. And that’s not only legal- it’s perfectly fair.

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