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Marvel sues to invalidate copyright claims by Jack Kirby’s heirs

The Avengers #4

The Avengers #4

Marvel struck back today at the heirs of Jack Kirby, asking a judge to invalidate notices sent in September to terminate the copyrights to such characters as the Fantastic Four, the X-Men and Spider-Man.

In a lawsuit filed today in New York City, lawyers for Marvel assert that Kirby’s work for the company was “for hire,” invalidating the claims of the heirs.

“The notices filed by the heirs are an attempt to rewrite the history of Kirby’s relationship with Marvel,” John Turitzin, Marvel’s general counsel, said in a press release. “Everything about Kirby’s relationship with Marvel shows that his contributions were works made for hire and that all the copyright interests in them belong to Marvel.”

The heirs, represented by Marc Toberoff — he’s the attorney who helped the wife and daughter of Jerry Siegel regain a share of Superman — issued 45 copyright-termination notices to Marvel, Disney, Sony Pictures, Universal Pictures, 20th Century Fox, Paramount Pictures and others who have made films and other forms of entertainment based on characters that Kirby co-created.

Under U.S. copyright law, authors or their heirs and estates may file to regain copyrights, or partial copyrights, at a certain period of time after the original transfer of rights. However, if the property is determined to be “work made for hire,” the copyright would belong to the company that commissioned it.

Marvel argues that the company’s editors determined which titles Kirby and other creators worked on, “and always retained full editorial control.”

“If, for example, Marvel gave a writer or artist an assignment to create a comic book story populated with new characters or to illustrate a comic book story with depictions of its characters — and paid the writer or artist for carrying out the assignment — the publisher, not the writer or artist, would own the copyright,” the press release asserts. “All of Kirby’s contributions to Marvel comic books the heirs are claiming for themselves fall into this category.”

If the Kirby children are successful, they would reclaim their father’s portion of the copyright to key characters and concepts from the Marvel Universe as early as 2017 for the Fantastic Four. In most cases, that would seem to mean co-ownership with Marvel, as Stan Lee agreed to waive claim to any of the characters.  With Spider-Man, one-third ownership could be possible if the Kirbys were to prevail yet the judge recognized Steve Ditko’s interests.

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90 Comments

Hey, let’s just get the generic comment over with:

THIS IS SO UNFAIR!!!! WHO CARES IF JACK KIRBY’S CHILDREN ARE OWED AN INHERITANCE? FUCK THEM! IF THIS INTERRUPTS MY RUN OF FANTASTIC FOUR THEY ARE *DISRESPECTING* THE *CHARACTERS* AND THEIR *HISTORY*! Why do these greedy shits have to keep ruining my entertainment???? AAAAAAAAAAAAAGGGGGGGGGGGGGHHHHHHHHHHHHH!!!!!!!!!!!!!!!

And now, sanity: Hope the lawyers are able to work this out in a way that benefits everyone. Marvel seems to be made of money right now, and while I don’t doubt the WFH claim I don’t think Kirby’s reparations really equalled his tremendous contributions to both Marvel Comics and superhero comics as a whole. Curious to see how this turns out.

And if Marvel had been fair and treated Kirby with the just a sliver of the respect that Stan Lee got, I doubt this would even be a case.
Tough row to hoe.

Well, to be fair, Raul, that’s basically saying “If Stan Lee had been fair and treated Kirby with just a sliver of the respect that he gave himself.” It’d be interesting to see how this IP war would have turned out if Stan Lee *hadn’t* been running Marvel at the time.

Have they produced any contracts? As far as I know Kirby was never a Marvel employee, and if they don’t have hard evidence it was work-for-hire, then they’re going to have trouble making that claim.

My standard disclaimer: I don’t believe copyright should last as long as it does, and if the world were fair, neither Marvel nor the Kirby heirs would be entitled to his work because it would be public domain by now. But until a day comes when copyrights expire before their creators do, heirs’ rights must act as proxy for creators’ rights. Kirby was taken advantage of, and if that’s recognized in a court of law, it will help save future artists’ from the same fate.

(Whoops, that should have just been “artists”, no apostrophe.)

I’m not feeling the Kirby family’s pain. If an engineer who works for Apple is awarded a patent, the patent belongs to Apple. If a scientist on the faculty of MIT is awarded a patent, the patent is the intellectual property of MIT. Corporations and other institutions are today’s patrons of the arts and sciences, and they don’t act as patrons for nothing. Furthermore, the act of creating a comic character is ongoing. An artist and writer introduce a character and then the character begins to evolve. The powers, origin, costume and personality of characters very often change a great deal over the course of years. In a sense, every artist who works on a given character is involved in the act of creating that character. Jack Kirby’s kids should get jobs, and stop trying to live off their dad’s work. The characters Jack Kirby introduced now belong to the stockholders of Disney.

I pity the fools!

Wait…….Actually, no I don’t. Don’t really care about the Kirby family

KirbySilverSurfer

January 8, 2010 at 1:08 pm

THIS IS SO UNFAIR!!!! WHO CARES IF JACK KIRBY’S CHILDREN ARE OWED AN INHERITANCE? FUCK THEM! IF THIS INTERRUPTS MY RUN OF FANTASTIC FOUR THEY ARE *DISRESPECTING* THE *CHARACTERS* AND THEIR *HISTORY*! Why do these greedy shits have to keep ruining my entertainment???? AAAAAAAAAAAAAGGGGGGGGGGGGGHHHHHHHHHHHHH!!!!!!!!!!!!!!!

Seriously. That’s how I feel.

Jack Kirby’s kids should get jobs? Did I actually just read “GET A JOB!” as a response to this? My hyperbole was supposed to be hyperbole, not prognostication.

ieven though Marvel will manage some how to prove their work for hire claim Jack still co created some of the characters with stan lee for spider man claim that claim will be found to be just steve and stan. captain america jacks estate is entitled to something since he and Joe created captain america long before marvel created super heroes. for after all jack estate deserves something for jacks work as co creator if stan can get some royalties from the films as creator so should jack . as co creator . at least for captain america.

Sean T. Collins

January 8, 2010 at 1:20 pm

Sometimes I despair.

while I do believe that Marvel should credit Kirby more for his contributions, I also believe that his heirs are just leechs trying to dip into Marvels new bosses pockets

I don’t think I understand this stuff as well as I think, but if Kirby co-created this stuff with Stan Lee, or Joe Simon (at least in the case of Captain America), then these characters should be Marvel’s property. It’s a pretty classic trademark situation where the work was created for use BY the company they worked for with specific intent. I’m having a hard time seeing where Kirby’s kids have any sort of claim.

There’s nothing good about restrictive copyright but Marvel seems to have a better deal than DC when it comes to creator’s rights and making sure creators are recognized and given some sort of compensation for characters created while they work for the company.

I’m not saying Kirby doesn’t deserve recognition for his contributions – he’s always been seen as the lesser man in his contributions to Marvel in many fans’ eyes, but this just seems like a desperate ploy at best to try and weasel more money out of companies the man willingly contributed work to.

I fail to see how Jack Kirby’s heirs have a case. Jack Kirby himself, maybe, his kids or even grandkids? What did they contribute?

Anthony, U.S. copyright law permits the heirs and, at a later time, the estates of authors to file to terminate transfer of copyright.

>> Well, to be fair, Raul, that’s basically saying “If Stan Lee had been fair and treated Kirby with just a sliver of the respect that he gave himself.” It’d be interesting to see how this IP war would have turned out if Stan Lee *hadn’t* been running Marvel at the time.>>

Stan wasn’t running Marvel at the time.

Martin Goodman was.

Stan was the editor.

kdb

Without a contract, the Kirby heirs are within their rights to file for co-ownership and they should. Without clear and compelling evidence of Jack Kirby being on Marvel’s weekly payroll (unlike Stan Lee) AND written contracts giving away all his rights, Kirby and other artists, in the eyes of the law, are considered independent contractors and the company paying them do NOT automatically own everything they do unless the artist explicitly signs away their rights. All the Hollywood Studios these days have you sign away your rights BEFORE you can even work for them. Some places (Disney and Mattel and others) even extend their ownership reach 24/7 so that even things you create at home is theirs (Bratz dolls, for example).

In America, the default position is that THE ARTIST owns everything he or she draws and writes. THE ARTIST decides to sell those rights as he or she sees fit. That should not be a hard concept to understand or defend, if you believe in artistic creative rights. People should stop sounding so selfish, that me-me-me attitude and let the legal system figure it out.

Well, I just got schooled by Kurt Busiek. My day is over.

I think the question is this, did Jack create the characters and bring them to Marvel to publish? Or, was he working at Marvel and asked to create characters for a book? In my mind, there is the difference. With Superman, Siegel and Shuster had created strips and shopped them around. DC bought the character from them, at least in a very simple form of explanation. Which is why, I believe, they were able to achieve success in their legal case. All the Marvel history I have always heard was that Martin Goodman wanted books that would sell and Stan, Jack, and Steve would work ideas out, while on the company payroll, to make the books. Where does that not sound like work-for-hire?

Work for hire or not, Marvel’s problem is they have to PROVE work for hire. No one had good contracts until the drums started banging on the Schuster case, and that was early/mid 70′s. Do you think there are Marvel contracts floating around from the early 60′s (if they even had contracts at that point)? Personally, I doubt it. Also, it will be impossible to prove that Jack didn’t create characters as they state in the response – look at the Silver Surfer for example. Stan has admitted he didn’t create the character, Jack just stuck him in the story. The first time Stan was aware of him was when the pages came back. They really should just give the Kirby estate whatever it takes to settle this once and for all or plan to be seeing them in court every few years until they win. Kirby didn’t get his due in life from Marvel, they have to know that.

@Tobey Cook
I don’t know how you can say Marvel is so much better than DC for creator royalties and the like. Len Wein has made far more in royalties because he created Lucius Fox for DC than he ever has for creating Wolverine for Marvel.

Somehow I think Marvel’s made a lot more money off Wolverine than DC has off Lucius Fox.

This is where you say “Busiek WINS.”

I have to say this feels a lot more cynical being filed mere days after the Marvel board approved the Disney acquisition; seems less driven by a desire to protect IP than to get a big fat settlement out of a suddenly deeper pockets.

Thad, you ignorant slut

Kirby wasn’t an employee of Marvel? Maybe he never worked for DC either? Yeah, he self-published all his work.
All IP should be public domain after a certain time?

Maybe all Internet access and cell phone use should be free once patents run out?

Wasn’t Martin Goodman married to Stan Lee’s cousin, or something along those lines?

Anyway: while I have all the love and respect in the world for the King, this particular incident seems like a pretty blatant cash grab on the part of his heirs. Doesn’t seem like a co-incidence that the Disney deal was announced, then all of the sudden… here we are.

I totally want some Disney Dollar$ too. I’m sure we all do. But it seems a little bit weak and after-the-fact to be grasping for them now, and in this way.

Like everyone else here, I think this will likely go away quietly with an undisclosed settlement. Relax: your runs of Fantastic Four shall continue unabated.

(On that note: How awesome are Hickman and Eaglesham on that book?)

Trey, there’s a difference between an employee and an independent contractor.

Thomas Barichella

January 8, 2010 at 2:16 pm

Didn’t Jack Kirby sign a release in the late 80′s ( in order to get a portion of his original art back after a decade long fight with Marvel’s lawyers ) that said his contributions were work for hire and that he couldn’t regain ownership or copyrights of any of these characters ?
( just asking if anyone knows the specifics of that ).

Otherwise, it seems that the only person who could possibly testify whether it was work-for-hire (or not) would be Stan Lee himself ( Martin Goodman died years ago ).
Who do you think Lee will side with ?
Me, I’m betting on little Mouse that now owns 10% of his POW company.

We all wish Kirby had been given a fair deal and royalties over his work. He really got the short end of the stick. No question about that. However it’s hard to sympathize with the Kirby estate now when they claim he co-created Spider-Man. It’s well documented – in several articles written by Steve Ditko – that Kirby’s involvement in Spider-Man’s creation was none or very close to zero.
I bet Steve Ditko is fuming right now over the idea that, once again, someone is trying to take credit where credit is not due. Actually, Steve Ditko is probably upset right now that I’m attempting to speak on his behalf, so all apologies to him. I’m just speculating.

cheers
( sorry about my English, not my first langage )

I have huge misgivings about retroactively reinterpreting business arrangements, regardless of whether or not artists miss out on royalties to characters that they helped create. Kirby had worked in the business for twenty years when he started producing the current Marvel lineup; he didn’t expect royalties, he expected a page rate. That we now see the unfairness of this is inconsequential – the work was made at the bequest of Marvel.

Siegel and Shuster were in a similar boat, and it comes back to this – did they sign away the rights to Superman? They did. They wanted so desperately to be comic creators and to see this project – any project – make it to print, that they happily agreed to sell the story, and subsequently the character, the the publisher. That the character would become a franchise likely enough didn’t occur to them, but that’s what happens – the publisher took a gamble of sorts, and it paid off in spades.

If you sell your house, and oil is discovered on the land, can your heirs demand a percentage of that oil?

One of the reasons that I’m so concerned about this is a sense of precedent, of concern for business sense. Siegel and Shuster didn’t have it, Kane did. Kirby didn’t have it, Lee did. The problem with high profile cases like this is that they give the impression that cartoonists can make poor business decisions in their youth, and if it happens to make money for someone else that they can always recoup later on. This is the sort of mindset that has desperate young creators signing horrible contracts with Tokyopop and their ilk, and it needs to be made clear that this leads to nothing but heartache.

While I feel that emotion and our sympathies for screwed-over artists should never be used as a catalyst to circumvent contractual realities, I DO think that Marvel has a MORAL obligation to financially acknowledge Kirby’s incredibly lucrative contributions. They may be doing so already, I don’t know, but if they were then I’d expect it would have been mentioned in their press release. That their unwillingness to present some sort of stipend to Kirby’s heirs is morally untenable, there’s no question… that they should be legally obligated, that’s flat-out ridiculous.

No disrespect to Kurt Busiek (big fan), but somehow by starting as a lowly editor under Martin Goodman, Stan Lee has managed to drive the JJJ-esque megalomaniacal delusion that “he created” the Marvel Universe down the comic reading & non-comic reading public’s throat to the point that these co-creation claims are actually a point of contention with almost 100% of non-comics folks (most probably haven’t even heard of Kirby) and a startling amount of comics fans. It’s the biggest return on a lie one could hope for in the comics industry as long as you don’t count anything McFarlane related. And I could care less about how much cash the heirs get as longs as I don’t have to groan at people’s acceptance of this lie as truth a decade or so after this case wraps up… Marvel disrespected Kirby pretty damn bad in the 80s and should show a little class by settling this quick. Then again, seeing or reading actual court testimony similar to Lee’s gaffe in the “In Search Of Steve Ditko” BBC documentary would be pretty hilarious and satisfying…

Stan Lee (like Bob Kane/Bill Finger) probably positioned themselves better (with a lawyer) — which is unfortunate for Jack Kirby.

There is no denying that Kirby was involved with the creation of some of Comicdom’s most recognizable characters.

It’s too bad that lawyers are now involved.

What did Jack Kirby contribute to Spider-Man? I’m not saying he didn’t, I just wasn’t aware he did anything, other than the cover, with Ditko, to Amazing Fantasy #15, and his appareance in Avengers (#11, I beleive.) I was under the impression Lee and Ditko created the character.

Whether Marvel treated Jack Kirby fairly or unfairly is a separate issue that certainly colors discussion but has no bearing on the law.

When Congress twice extended the duration of copyright, it essentially reinterpreted business arrangements made decades before. In an attempt at fairness, legislators have permitted the authors (if alive) or their heirs or estates to attempt to recover the copyright beginning 56 years after the transfer (the original duration of the copyright was 56 years).

So the judge must decide whether Kirby’s creations for Marvel were “work made for hire” (a concept that wasn’t formalized in U.S. law until 1976), or whether the artist had claim to a portion of the copyrights.

Nathan, there’s some discussion of Kirby’s involvement here.

Thomas Barichella

January 8, 2010 at 2:52 pm

To Nathan :
( From what I know ) Kirby pencilled a try-out for the famous Amazing fantasy 15 story ( from a synopsis by Lee ), but his depiction of Spider-Man had nothing to do with the Spider-Man we know ( muscular guy with a magic ring and a pistol. Had nothing to do with a Spider man visually ). Lee rejected it ( Ditko says it’s because he pointed out that this character looked like another character created by Joe Simon at another company. Lee says it’s because he wasn’t happy at all with how Kirby depicted the characters ).
Lee then assigned Ditko to do it. He started his version from scratch based on the synopsis by Stan Lee. It can be argued that because Ditko saw the rejected Kirby pages, he was somehow influenced by them, but in fact what Ditko drew & conceived had nothing to do with the rejected Kirby try-out pages. At least that’s what both Lee & Ditko have always claimed ( one of the few things they agree on ). Kirby later pencilled the cover, after Ditko’s was rejected ( but the story has already been 100% drawn by Ditko, so that cover is not an act of creation since Ditko came up with the costume 100% by himself ).

I thought Marvel had settled with Jack and his heirs a couple of times over this already. Didn’t he already sign a couple of releases (years after the initial payments for his work) and receive a couple of payouts?

No matter how one parses the relationship between Jack Kirby and Marvel Comics (and Stan Lee), Marvel’s actions toward Kirby (and his heirs) over the past four decades constitutes reprehensible avariciousness of the most disturbing and disingenuous sort — a perfect example of corporate malfeasance and amorality.

I hope only that the precedent of Stan Lee wresting some modicum of acknowledgment from the company — notably in cash and “points” rather than in ownership percentages — puts the lie to Marvel’s desperate and ungracious grasping and moves the matter toward ultimate admission and recompense for King Kirby’s undeniable, incontestable, decisive contributions to their so-called “Universe.”

The Marvel Universe — bereft of Kirby’s imagination, denied Kirby’s style and substance and speed — would be nothing, a bandwagon-hopping, creatively bankrupt shell long ago defunct. Whatever has become of Timely/Atlas/Marvel has been achieved on the basis, on the fact, of Kirby’s masterly contributions.

Brian from Canada

January 8, 2010 at 3:12 pm

To Chris Schweizer: selling in your youth out of desperation is EXACTLY why Sonny Bono put this clause in the American copyright extension act. Bono was thinking about pop musicians who had been manipulated by record companies into losing songs that had become keystones of radio stations all around the world. Fans expect them to perform them, but how right is it that acts like Little Richard, Paul McCartney and the Rolling Stones should have to pay someone for the right of performing songs that they wrote?

NOBODY thought of the impact on comicbooks until Seigel and Shuster’s families stepped forward and demanded their portion. Then it became a problem.

But in their case, it’s easy to see how they deserved to win. With all respect to DC, history shows Seigel and Shuster had the character beforehand and sold it to get it published. They were earning a wage for their comic strip, but not a royalty for the animated films — in fact, they didn’t get a *credit* for creation of the character until the late 70s, when the feature film was coming. And, by that time, there was an overwhelming feeling that the creators deserved far more than they got.

Kirby’s case is far more complicated. Yes, he did play a major role in the characters’ creation. But, on the other hand, while there are no written contracts there can be an argument made that there was a verbal one in good standing because there was the expectation he was creating characters for Marvel. And, when Kirby left, it’s quite reasonable to interpret the action as that he was leaving the employ of Marvel to work elsewhere. In THAT case, it is work for hire by the general definition.

Kirby has also gotten credit for his work. And there is no question that he wasn’t given what was accepted as the appropriate royalty while working there, and somewhat later he was given additional compensation. We may not think it was enough — his children certainly don’t, given the profit that comes from it — but he was paid what people think is a fair rate.

Did Lee make more in royalties? Sure. But the contract Lee sued Marvel over Spider-Man with demonstrates part of the reason why he gets more. When it comes to the real money makers — the movies — Lee is still there, still has a position in the hierarchy, and is given a producer credit as a result that gets him the cash.

Jack Kirby CANNOT have a producer credit because he’s no longer living. That means he no longer has the ability to earn a royalty from the film. Should Marvel have made a donation in lieu of that? Morally, I believe so. But the argument that his estate should profit from the films which it would not otherwise have made a cent on should not rely on copyrights — it should have been made through the public to pressure Marvel.

Because, whatever one can say, Lee DOES acknowledge the role of his artists in making these characters. He is getting credit, and in the comicbook community Kirby’s name is well known. It is not Kirby’s fault that Lee played to the greater entertainment community later on and has gotten the greater attention as a result.

Whatever you can say about the situation (and there will be much to comment on later on, I’m sure), Stan Lee is the man who’s voice you hear when you think about Marvel classic. He was sure to get it into the films, tv, etc. and Jack wasn’t. THAT is why people who are outside of comics don’t hear Kirby too… and they won’t for quite some time no matter what the family does.

My opinion is simple, it might seem like the Family members are trying to get a free payout, Marvel Comics, and DC Comics both screwed its creators. I have read way too much information that is readily available that shows that Comic book artists and writers have very little security financially. Jack Kirby was one of the greatest comic creators of all time, he deserved more than what he got, and as fans we should all realize that without his contributions we would be very unhappy with the selection of characters available to us. Its money, and its not like Marvel and Disney dont have a crap load of it. I am more fearful of the Goofy vs. wolverine crossover thats bound to happen in the future than I am of missing a shipment.

Brian from Canada

January 8, 2010 at 3:33 pm

shazamzimzow: Kirby, for all intensive purposes, comes off as a disgruntled ex-employee who thinks he was cheated even when he worked there because he wasn’t praised enough and is bitter that it didn’t get him farther in life later on. He got name recognition and that was it — as, it should be noted, Lee, until Lee figured how to channel his experience into a public persona that could be marketed just as much as Spider-Man.

And while the Marvel universe would look dramatically different had Kirby not contributed, you cannot disregard Lee’s presence either. It’s Lee who created the dialogue and gave them the personality to go with their body language — personality that has been kept while artists reinterpret the physical attributes of the characters. In the same vein, Frank Miller’s Wolverine is nothing like the one the Kuberts drew in terms of physical body but the personality established by Chris Claremont in the mini-series reverberates through Larry Hama’s.

Kirby IS listed as an originator in all the films relating to characters he created. Kirby IS given credit in all the reproductions. Kirby IS given credit for helping make the Marvel universe. Marvel has done nothing wrong in acknowledging that, and if it all comes down to money then you’re talking about a company that Kirby wasn’t helping to stay afloat in the 70s, 80s or 90s but Lee was. Lee’s STILL with the company (he writes the daily strip for Spider-Man), so he gets more cash as a reward. Plain and simple.

Brian from Canada

January 8, 2010 at 3:38 pm

Mathias —

I agree with you about the stability. But keep in mind too that it was standard for all entertainment industries in the early days. The first to break out of that mold was Hollywood, and only when individuals were allowed to incorporate themselves at the end of the fifties… which, in turn, made some too expensive to work with (i.e., Gene Kelly). Comicbooks only got recognition as more that fluff entertainment in the late sixties, thanks to the pop art movement, at which point all the key creations for both companies was basically done.

Do the original creators deserve assistance for what they’ve done? Absolutely! But I’d caution that this is not something the courts really need to decide; rather, the companies need to sit down and look at giving the families something out of good public perception. After all, that would be fairest to everyone.

Kevin, thank you very much for the link. I actually remember reading that earlier; I didn’t remember, because I came away from it not really seeing Kirby having contributing anything to Spider-Man. As far as Spider-Man, I can’t really see how the family has any claim to the character.

Again, from previous information it sounds like he proposed a costume based on a Stan Lee idea, which was rejected. If his earliest involvement on the final character was pencilling his first cover, after Ditko and Lee had really created what he was to look like, I can’t see any claim of ownership at all on the Kirbys’ part.

Just because he happened to be around when the character was made doesn’t mean he contributed to its creation.

Other characters, such as the Fantastic Four and the like, I would say are probably a different story.

Jack Kirby was the greatest artist / creator to ever work in comics. Period. Marvel probably would’ve folded long ago without his tremendous input.

Jack, like practically everyone back then, got screwed. That’s just the way the system was set up. But, considering the huge contribution he made, I would think Marvel would at least settle with the family. It’s the right thing to do and it would buy them some good will and publicity.

How many thousands of pages of original art did they never return to Jack ? How much was that worth ?

Marvel doesn’t want to set the precedent of having to settle with everyone every time a character they created or worked on is used. I get that. If anyone deserves an exception, it’s Jack. Since Jack himself is no longer around, it would benefit his estate. That’s fair.

Hopefully Marvel and the Kirby estate can come to a settlement of some kind.

The Kirby family is entitled to the rights and then some. For anyone to say that the family should back off is completely off their rocker. You would not have any of these characters if it was not for Kirby and he was not recognized in his life time, so he better be recognized $$$$$$ in death.

George Lucas’s kids are going to get a ton of money and they haven’t done shit…so how is that fair? I hope the Kirby’s make a fucking Disney/Marvel/Bullshit Killing.

D out!

Let’s just see how this pays out shall we. I do recall those multipage documents given to Jack Kirby whereas some other folks only had a single page document to sign. (Comics Journal Interview from the late seventies-early eighties)

OT: Is the Larry Houston who commented above the same Larry Houston from Graphics 2000 and creator of the Vanguards and The Enforcers???

WOW, can the sons and daughters of an artist actually argue that they should get something that someone else did the work for? What a bunch of greedy little bastards. The whole Superman legal thing was different because they actually created the character before going to DC.

I hope Marvel crushes this in such a way no attorney will ever take up another type of claim.

The bottom line on this is Jack Kirby was employed by Marvel to illustrate what THEY instructed him to.

The Superman team had a concept they birthed and brought with them.

There is a huge difference.

By this logic Gardner Fox’s heirs should be entitled to a fortune.
Not to mention the Steve Gerber’s, Marv Wolfman’s and so many others out there that broke new grounds with characters. I guess Chris Claremont should own the massive amounts of X-creations?

No, no more than a mechanic should be entitled to drive your car after you paid him to fix it.

Now when it comes to Kirby’s “Fourth World” I think there is a argument to be made there. Darkseid has especially been a huge character in books and animation. All things “New Gods” were created before Jack’s move to DC and IMO that is different.

I don’t pretend to know the Kirby heirs or their motivation but at surface level this reeks of opportunism.

Sure Kirby got screwed over and over, but honestly who from 1938-1992 didn’t?

It is the curse of the working class.

xaos said:

“I have to say this feels a lot more cynical being filed mere days after the Marvel board approved the Disney acquisition; seems less driven by a desire to protect IP than to get a big fat settlement out of a suddenly deeper pockets.”

xaos, this action has been in the works for years, so it is NOT in response to the approval.

Chris Schweizer siad:

“I have huge misgivings about retroactively reinterpreting business arrangements,…”

Chris, there are reinterpretations of business arrangements all the time. That is why there are courts that help settle those types of disputes. Why should the comics industry be any different than any other industry?

“Sure Kirby got screwed over and over, but honestly who from 1938-1992 didn’t?”

Stan Lee?

HB asked:

“WOW, can the sons and daughters of an artist actually argue that they should get something that someone else did the work for?”

Yes, HB, they can, It’s whay the law states. Do you not believe in the law?

As I understand it, work-for-hire has to be agreed upon in contract BEFORE the work is done, not after, as is the case in the comic book business. Work-for-hire does not apply for much of the period during which Kirby worked for Marvel. There were no contracts declaring his work as work-for-hire.

Marvel is seeking to overturn settled law.

Those were the days of the famous contract on the back of the check. Endorsing the check signed the contract making it work for hire.

I hope The Kirby’s get their due. It would be justice.

If i’m instructed by my boss to dig a ditch and I dig the ditch as I’m instructed to do. When I’m done do I own the ditch? No I don’t.

If you think what Jack Kirby did for comics is in any way comparable to digging ditches then I just don’t know what to tell you.

Not that one.

I’d like to hear what Mark Evanier has to say about this.He was close to Kirby family and might have a thing or two to add.Joe Simon and Jack Kirby created Captain America. Shouldn’t Joe get a piece of ole Cap too?
Jack Kirby’s contribution to the Marvel universe is immense.If he got treated the way Stan Lee got treated, we wouldn’t be even having this conversation.Jack being forced in the 80′s to sign his rights away can probably be considered strong arm tactics and be invalidated due to the stress he was put under. (I’m just guessing at this).
I guess we should look to see this settled out-of-court.

Sorry, but the heirs of Kirby did not create those characters, Jack Kirby himself did. And he did it under work-for-hire. Period. They shouldn’t have a leg to stand on. Nor should the Siegels for that matter. Cold-hearted? No. None of those family members are in it for altruistic reasons. They are only after the huge amount of profits generated by the big-name charcters. I don’t see anyone going after the rights to, say, the Mole Man’s Moloids or Karnak of the Inhumans. Same with the siegel & shuster heirs. It is only when the characters took off and turned profits did these lazy, greedy good-for-nothings decide they wanted a piece of a pie they never even had a hand remotely in baking. It’s greed, pure and simple. The same can be said for the comic companies themselves, but again – WORK-FOR-HIRE, the big 2 own those characters. Sorry, just the way it is. All rights were given up when signing work-for-hire contracts. Take your frivolous lawsuits, stick’em where the sun don’t shine, and go out and get real jobs and work for a living like the rest of us instead of trying to ride the coattails of your famous relatives. Oh, and Nat Gertler, if you’re out there reading this, piss off and don’t even bother responding to me. I’ve dealt with you before and you’re a rude, simplistic, sanctimonious self-serving moron.

dlfurman,

Yep, that was me. Graphics 2000. Vanguards. Enforcers. All that fanzine stuff. And then Producer/Director of THE X-MEN series on FOX-TV and a good friend of the Kirbys.

@Lemurion – I should have been more specific. Both Marvel and DC seem to be doing better when it comes to creator’s rights and making sure all parties involved are given compensation for their works. Marvel has made inroads by donating to things like the Hero Initiative and trying to give back to the people who helped make them what they are today.

I think the main thing that bothers me about this is like others have stated – it seems like a cash grab by the Kirby heirs. If they were suing for original artwork or something to that extent, I’d be fine with it… but they want to invalidate all of the copyrights to these characters? That’s ridiculous and I don’t think any judge in their right mind would allow that to happen. These characters are Marvel’s intellectual property and have been for the better part of 70 years.

I think the likely scenario here is Marvel will win this lawsuit… not because the Kirby estate doesn’t deserve these copyrights, but rather because they’d have to provide significant documentation claiming prior works in order to get the copyrights turned over to them.

Can someone explain why Stan gets royalties from Marvel properties. CUrious because Stan was an employee of TImely/Marvel since the day he started. I thought employees of the company get a salary, health benefits, etc but no royalties. Unless he had a legally binding agreement with the company stating he would get royalties on top of his staff salary. Anyone know?

I believe that Steven Grant (and I could be wrong, it could’ve been another columnist, it has been awhile) recently made the supposition in his column here on CBR that he wondered if the people who were so against the Kirby heirs suing Marvel were in the same position would they not try and do the same thing?

Another observation, didn’t Stan Lee sue Marvel and/or Sony after the first Spider-Man film’s success?

I am not going to even bother going back to how long Marvel as a corporation has been steamrolling Kirby going back to not returning original art back to Kirby cc. late 70s early 80s, fighting to have him credited as a co-creator to the characters he co-created/created well throughout the 80s and into the 90s, and on and on and on…

And to put things into perspective, work-for-hire contracts in 1961 were not quite the same as a work-for-hire contract in the 1970s, 1980s, 1990s or today. When, in order to endorse your check you essentially signed a work-for-hire contract on the back of the check, it has a tendency to fall apart once it hits the courtroom.

Perspective guys. Keep in mind, if your dad was Jack Kirby don’t you think you might like to see he got his just due? Or, if you were Kirby don’t you think you’d like your children to benefit from your work?

I wouldn’t have as much sympathy for the family of Jack Kirby if Marvel had done anything to show a little appreciation for his contributions when it was clear to everyone that he was quite ill and about to die. If they’d held an auction and donated a portion of the receipts to help with his medical bills or picked up the tab for one last trip to somewhere tropical and nice. Instead, Marvel acted as if they really didn’t want to recognize the fact he’d ever worked with them at all. They denigrated his contributions and denied the real impact his legacy would always have upon the company.

Jack Kirby was the face of Marvel comics. It was his work that drew readers and kept them coming back for more. Without Kirby, Marvel would probably have been run out of business by D.C. in short order and we’d have never seen the glories of the House of Ideas. They owed him something when he was alive and let him die without offering the least of human compassion or decency.

Screw Marvel. They quit caring about anything but profit a long time ago. Everything they do is designed to pull as much money as possible out of their readers pockets. They sit in an ivory tower completely disassociated from the working stiff who buys their product and put out nothing but mega issue crossover books that mercilessly assault the wallets of their readers. They are reaping what they sow and I don’t have any sympathy for them at all.

And as for Disney pockets being lined with money. Have you seen their stock value lately? Euro-Disney sure has worked out well, huh? Big companies doing poorly in this recession are scooping up even more wounded companies for their assets and nothing else. Disney doesn’t care about Marvel, they care about grabbing potential money makers and if Marvel dies they won’t grieve in the least. Just like Marvel cared for Jack Kirby…

Not to quote the Spurgeon General again (as I did in our last big Kirby suit piece back in September [http://robot6.comicbookresources.com/2009/09/jack-kirbys-heirs-seek-to-reclaim-copyrights-to-some-marvel-characters/#comments]), but it’s a damn good line: “the depressing and even angry complaints of fans in another Robot 6 thread bubbling up from what I believe is a heady combination of fear, fanboy entitlement and comics boosterism.” (http://www.comicsreporter.com/index.php/more_on_kirby_heirs_copyrights/)

I’m posting a link to Peter David’s site, if that’s okay:

http://www.peterdavid.net/index.php/2009/09/21/well-this-just-got-interesting/

Basically, down in the thread, Peter speaks to some of the issues raised here re: Kirby’s contract, the “longer contract” specially made for him, etc.

Interesting reading.

I really dont think Marvel should be taking this tack.As DC learned,its better to go along than get along.They have shared with Shuster/Siegel and havent been hurt.They should be paying royalties for all the damn money they are making off of The KIngs kreations.AND,oh by the way…Marvel is ruining your entertainment.I just cant read their drivel any longer and they still put out umpteen X-men,Avengers,Cap,FF,Hulk and all of Kirby’s many works.They wouldnt be Marvel today without him.A judge WILL rule for the Kirby Estate.Mark my words.

Stan to Jack, circa 1961:
Hey, Jack, let’s take 4 character concepts that have been done to death already and make a team book.

Let’s see, a stretching guy, …someone that turns invisible, we’ll use that slot for the girl …a guy made of rock (like a GOLEM), and hmmm…. I don’t even want to think about the fourth, let’s just use the Human Torch, but not, we’ll have him be an actual human.
OK, put them all in the same outfit, just something simple, with the number 4 on the chest.

Let’s say the book got canceled after a short run (like the Hulk did, for instance).

Time warp to present. No Stan Lee writing all the stories that kept readers coming back. No Marvel spending cash advertising and pushing their product. No years of other artists and writers keeping the book good enough to stay in publication. No special effects geniuses creating all the tools needed to make superhero movies even possible and not a joke, like… I don’t know, let me think, oh, yah, the first FF movie attempt that got tossed into the dump. No long string of other superhero movies paving the road (Superman, Batman).

Jack Kirby’s family walks into Disney films.

“We have this awesome idea for a movie! ”

SECURITY!

“Wait!” How about a green shirtless muscular Frankenstein Monster in purple pants?!”

“No!?”

“A guy that has spider powers?”

“No?”

“Thor! How about the Norse god of thunder, Thor!?”

……..

“…the tin man from the Wizard of Oz, but he can fly and fire blasts from his hands…?”

CALL THE NUT HOUSE!

what rights are being transfered to marvel in the years 2014 – 2019?

Does Marvel get the movie rights from fox in the year 2017?

Just wanted to point out a few things…

After reading many posts here, I feel like many people seem to forget “Marvel” is not an actual person. People keep blaming ( today’s ) Marvel for things “Marvel” did to Kirby 20, 30,40 years ago, but how many times has that company changed owners & lawyers since ?

Regarding Joe Simon, he sued Marvel ( first in the early 70′s, but Kirby backed Marvel, long story ), and then again in the early 2000′s. This one they settled about 5 years ago. Simon signed a (new ) release form giving up any copyrights/ownership claim. And in exchange, Marvel now pays him some residuals, and has been puting his name (as co-creator of Captain America, with Kirby ) on almost every new Cap comics & reprints they put out.

And regarding Stan Lee, even though – for a variety of reasons – he was much much better treated by Marvel ( and the various people who owned the company ) than Kirby ( or anyone else ) ever was, I don’t think he became truly “compensated” until the late 90′s when Marvel’s lawyers, believing the company was going under anway, agreed to sign him the mother of all contracts. That’s when he started getting $1Mill a year for endorsing & promoting Marvel’s brand & characters ( this so he would remain attached to the company if its owners managed to find a new buyer ). As a throwaway bonus, that contract also stated Stan Lee would get royalties off the profit of Marvel movies ( because back then Marvel had failed to get a single one off the ground, and no one suspected he’d ever really make a cent off that ! ). And that’s how Lee got a lot more “compensation” ( well, first, he had to sue Marvel Studio who wasn’t paying him any of those movie royalties, but he had a legit contract ! ).
People seem to forget the reason Lee finally got “well compensated” while in his mid 70′s had little to do with him being the co-creator of the characters. He was paid off for his PR services as Marvel’s public face, and he happened to have a terrific lawyer, and a perfect sense of timing in the late 90′s when his contract was up for renewal. Not that he was doing badly before, but I don’t think he had not been handed significant royalties off anything until that new contract materialized ( Not that it’s any of my business anyway).
And not that it should stop Marvel from paying a reasonnable fee & some royalties to Kirby’s heirs for their dad’s contributions ( as long as it doesn’t involve Spider-Man ).

cheers

Sorry, I meant : “but I don’t think he HAD been handed significant royalties off anything until that new contract materialized” at the end of my previous post.

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).

If it was that simple, there wouldn’t be this kerfuffle in the first place. If that’s all it took for something to be work for hire, neither Marvel nor DC would have needed to change their systems, refining them over the years into something that actually does comply with the law.

The case isn’t going to turn on how people imagine things should be, or whether they read somewhere about Kirby signing a release to get his art back (yes, he signed something, but it wasn’t the same form as the other artists signed, it wasn’t the longer form that Marvel tried to get him to sign, and the actual terms have been kept confidential by both Marvel and the Kirbys), or whether they think that the idea of inheritance shouldn’t apply to intellectual property.

The case is going to turn on the law, and on the specific arguments Marvel and Toberoff can make under the constraints of that law. No one, on either side, is going to be arguing that co-creating the X-Men is just like digging ditches, or that ideas rooted in well-worn tropes are worthless (if it were, Marvel wouldn’t own those characters either, and George Lucas wouldn’t get to make money off Star Wars), or that intellectual property ownership hinges on a “what have you done for me lately” argument (it makes no difference who’s “still there”).

Unless you know what it said in any contracts that may (or may not) have existed in the early 1960s, when they were signed and whether they’ve been honored, plus the ins and outs of what work for hire law actually says, plus the parameters of copyright reversion law, you’re simply not in a position to declare that by gum, it’s work for hire because you imagine it to be.

You can opine on what you think is fair or unfair, but without knowing all those things, you can’t say “This is how things work,” because you don’t have the facts that would inform you of how things work.

I don’t have all those things either, and cant’ say one way or another how all this is going to work out. But what I do know contradicts a lot of what people are insisting is fact.

kdb

At least nobody’s suggesting that the integrity of the Marvel Universe is more important than the moral or legal claims of the actual people involved in the case. Progress!

You don’t think that’s fueling a lot of this, Marc-Oliver?

I’d guess that the “Marvel kept the characters around and lots of other writers and artists developed them and Kirby up and left so he has no more claim on anything” argument is a general restatement of “I want the Marvel Universe the way it is and anything that I imagine threatens it must be illegal or at least immoral and unethical.”

But perhaps it’s progress.

kdb

“Oh, and Nat Gertler, if you’re out there reading this, piss off and don’t even bother responding to me.”

Wow, I think I get a win right there!

“Sorry, but the heirs of Kirby did not create those characters, ”

Nor did Disney, nor did 20th Century Fox, nor did…

“It is only when the characters took off and turned profits did these lazy, greedy good-for-nothings decide they wanted a piece of a pie they never even had a hand remotely in baking.”

You think these characters haven’t been turning profits for decades now?

“And he did it under work-for-hire. Period.”

Oooh, you said “Period.” – how can any manner of argumentation trump that?

Ow, wait, how about “He did? Question mark.”

“All rights were given up when signing work-for-hire contracts.”

And which work-for-hire contracts did Kirby sign for the relevant creations?

(You may want to read the posts here by Mr. Busiek. Dude tends to know his stuff.)

Kurt:

I honestly don’t know. After reading the thread, I was just sincerely surprised that — unless I missed it, which is possible — at least nobody came out and said it.

This time.

Of course, we all know that this particular point of view exists, even among people who should know better, so, yeah, “progress” was the wrong term to use.

On a perhaps related note- Mr. B., I have long thought that the highly deriative comic “Powers” was a direct rip off of your your own much more brilliantly realized creation “Astro City” with perhaps a bit of Alan Moore’S “Top 10″ thrown in. Any thoughts on that topic?

>> I have long thought that the highly deriative comic “Powers” was a direct rip off of your your own much more brilliantly realized creation “Astro City” with perhaps a bit of Alan Moore’S “Top 10″ thrown in. Any thoughts on that topic? >>

I haven’t read it, in part because I don’t want to be influenced by it.

So I have no judgment of to what degree it may have been influenced by either ASTRO CITY or TOP TEN, but comics audiences often see “rip-off” where there’s really only influence going on, if that. Ideas can’t be owned, only the concrete expression of ideas. So the idea of what it’s like to live in a world with superheroes all around is an idea anyone can use — it wasn’t original to me, even — and what matters is the specific plots, characters, names, visuals, stories, dialogue and trademarks.

Without having read POWERS, I doubt Bendis was “ripping off” anyone. He was probably influenced by lots of people, but so are we all.

kdb

Lemurion said:

“Those were the days of the famous contract on the back of the check. Endorsing the check signed the contract making it work for hire.”

That’s not true, and has been tested in court.

I am so sick of all the “Stan Lee made out like bandit” comments.

Stan Lee did better than most but look at what was achieved by the man during 1961-1971.

Stan took comics into places no one else had. He elevated things like fan inclusion and behind the scenes stories with letter pages and his “Soapbox” feature. He set himself up as the spokesman for Marvel and people responded, big.
While he was a “huckster”, a P.T. Barnum of comics, no one can argue that Timely/Atlas would have been just another Dell, EC, Fawcett or many others, a company that failed.

Kirby, Ditko, Toth, Adams, Steranko and so many others elevated comics with their work.
Stan made Marvel a place other than DC where an artist could work and not only get seen but really talked about.

DC would have never used the Soapbox to brag on creators so Jack “The King” Kirby and ‘Superlative” Steve Ditko would simply have been two more pencils.

I think some people actually have forgotten something, Kirby left marvel for DC when his contract expired. Read old interviews and so on. So he was a contracted creator when he left marvel for DC, where he signed a contract to create a certain number of pages a month of art and writing hence his 4 books at DC Forever People, Jimmy Olsen, Mr Miracle and New Gods. so yeah there were contracts at work with Kirby in the mid to late 60s and 70s. As well as a contract when he returned to marvel in the mid 70s.

“Brian from Canada

Kirby, for all intensive purposes, comes off as a disgruntled ex-employee who thinks he was cheated even when he worked there because he wasn’t praised enough and is bitter that it didn’t get him farther in life later on.”

It’s “for all intents and purposes,” not “intensive purposes.” FYI.

Contrary to the general understanding of those posting to this site, a writing is not necessary to contract. Oral contracts, though obviously more difficult to prove, are equally enforceable, and parties may prove up the terms of an oral contract through parol, i.e., extrensic, evidence.

Accordingly, the operative issue in this lawsuit is whether Marvel, as the party filing suit, can meet its burden to prove the terms of its alleged contract with Kirby by a preponderance (51%) of the evidence. Given Kirby’s passing, and the passing of virtually every other person on deck at Marvel in 1962, and in light of Lee’s expressed inability to recall the particulars of the circumstances surrounding character develeopment, it appears Marvel has an uphill battle should this matter go the distance.

But it likely won’t. The parties will file motions and responses and replies until the matter gets to discovery, and MAYBE someone might take a deposition (although it’s unlikely) and the matter will settle. But you don’t secure an effective settlement from a position of weakness, which is why this matter is presently in litigation.

Another thing is even if the Kirby estate, exactly what are they entitled to?

The FF, definitely, as the FF has’t changed visually since their creation AND Kirby worked on it with Lee for years so even the Inivisible womans’ new “power” of invisilble shields Kirby estate can claim.

X-men though? I’m not seeing how much Kirby can get their. The Bobby Drake pure Ice version of Iceman is different visually than the snowman iceman and Archangel is certainly a different look than Angel. More importantly, without Wolverine, Storm and Rogue, are the X-men THAT valuable a franchise?

Just a small caveat to Actual Lawyer’s statement (and I hope they will correct me if I’ve misinterpreted), but the same reliance on an oral contract would not hold true for work made today, as the copyright law of 1976 requires that “the parties expressly agree in a written instrument signed by them” for non-employee work-for-hire.

What, they should put all of Kirby’s belongings under protective plates of glass?

Without Marvel, Kirby would have just been a guy drawing in his basement. If he accepted payment for his work instead of a royalty based on sales– it looks like he was a work for hire and not an owner or investor in the material. I think the Kirby family needs to start looking for jobs.

A better example of ownership would be Gene Rodenberry’s ownership of Star Trek or Robert E. Howard’s ownership of Conan the Barbarian.

Who knew Marvel would be so big? I think Marvel is bit greedy and even former president Jim Shooter jerked Kirby- from I hear in reports but cannot confirm. But being rotten is not illegal. It is what it is. In his heyday, Kirby could have demanded stock in the company and the characters- he was THE talent at Marvel and in his day, when he was on top, he could have left and did his own thing. But he didn’t. His family cannot go back now and change the rules of the game.

“Without Marvel, Kirby would have just been a guy drawing in his basement. ”

Before Jack ever worked for Marvel or any of Marvel’s predecessors, he had already worked newspaper strips, already worked for the famous Fleisher Studios on their Popeye cartoons, had already drawn for the Eisner & Iger comics shop. Before the 1960s material that is at issue, Kirby had made comics for many publishers, including DC (then National), Archie, and Harvey (where he and Simon invented the romance comic.) Kirby would be a significant figure in comics history even if he had never done a page for Timely/Marvel.

As for “cannot change the rules of the game”, even -if- it was work for hire (and the issue is not as simple as you draw it, as there are many deals without royalties which are not work for hire, even today), Marvel would still be losing the copyright if the rules had not been changed; it was a 1976 change in the rules that added many years to the 56-year maximum copyright duration that was in effect, and a 1998 change that extended it even further. Marvel benefits greatly from those changes in the rules, and since we’re now really talking about Disney, the benefits of changing copyright laws as applied to preexisting material goes from “great” to “immense”.

anybody who has read any history at all about Kirby written by anyone who knew him (Joe Simon, Mark Evanier, etc) knows that the safety and security of his family was Kirby’s PRIMARY concern, always.

Kirby got page rates, and had agreements (maybe written contracts) for guaranteed numbers of pages per month, but he had to produce to be paid for those pages. It was not salary – had Kirby not made the page count, his income would have been reduced. DC and Marvel simply agreed to pay for up to X number of pages.

I think what really confuses people is Stan Lee’s fiction of the Mighty Marvel Bullpen. People really do seem to believe that all these creators came in every day and sat around in rooms working together. Once the shops of the Golden Age shut down, that was never a reality until CrossGen tried it decades later. The creators at Marvel were employees in that they were paid, but they were not salaried employees with guaranteed wages and benefits. An earlier commenter made the analogy of a researcher at IBM or a university. I work for a community college. They pay me a salary and benefits. The curriculum that I create is ultimately controlled and owned by them because of that. However, the adjunct instructors, who are paid only for the classes and hours that they actually teach in the classroom and get no benefits whatsoever? The school has NO claim on anything that they write or develop. If people remember, it was common in the 70s for people to stop being editors (salaried employees) to become full-time writers for both Marvel and DC because then they got paid by the page, not just their salary, and as long as they got the assignments, they had more control over the level of their income.

Personally speaking, I believe that if Stan Lee had been a nicer person and a true friend to Jack Kirby, none of these lawsuits would have been necessary. Unfortunately you have Stan Lee and Marvel being so greedy that they give OPEC a bad name. Then you have sponges like the lawyers involved, that when it is all said and done, the only people who will have made any money out of this, will be them. At any rate Jack was and still is the greatest, and though cheated by Lee, everyone can see his handy work on every character that Marvel made famous during his time there. Having said this, I don’t see Marvel giving the Kirby Family anything after this is all over…so the moral to the whole point here is…never trust a guy named Stan Lee.

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