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.

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”.

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.

http://cgi.ebay.com/Jack-Kirbys-Personal-Collection-Golden-Age-Comic-Books_W0QQitemZ180449627054QQcmdZViewItemQQptZLH_DefaultDomain_0?hash=item2a03a2cbae

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?

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.

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.

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.

“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 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

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.

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.)

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

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