Robot 6

Kirby heirs sue Marvel and Disney for stake in characters, profits [Updated]

The Avengers #4

The Avengers #4

The children of legendary artist Jack Kirby have sued Marvel and Disney to terminate copyrights to, and receive a share of profits from, characters created or co-created by their father.

The lawsuit, filed last week in U.S. District Court in Los Angeles, follows the 45 copyright-termination notices sent in September to Marvel, new owner Disney, Sony Pictures, Universal Pictures, 20th Century Fox and others who have made films and other forms of entertainment based on characters that Kirby co-created. Marvel responded in early January with a lawsuit asserting that Kirby’s work for the company was “for hire,” and asked that a judge invalidate the claims of the heirs.

In the Kirby lawsuit, attorney Marc Toberoff lays out the characters and comic books at the heart of the family’s claims: properties created or co-created by Jack Kirby between 1958 and 1963, including the Fantastic Four, X-Men, Iron Man, Spider-Man, The Incredible Hulk, Thor, The Avengers, Nick Fury and Ant-Man. (The extent of Kirby’s involvement in the creation of Spider-Man is the subject of much debate.)

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.”

However, the family’s lawsuit asserts that Jack Kirby wasn’t an employee but rather a free-lancer who “authored or co-authored” numerous stories that Marvel and its predecessors then purchased and published. That echoes the earlier response to Marvel’s January lawsuit. The plaintiffs claim it wasn’t until May 1972 that Kirby assigned his copyrights to the properties to Magazine Management Co., then the parent company of Marvel Comics, for “additional compensation.”

Lisa Kirby, serving as trustee for the Rosalind Kirby Trust, also alleges that Marvel didn’t return all of Jack Kirby’s original artwork in its possession — a bitter dispute that goes back decades — despite its claims to the contrary.  The company’s alleged efforts to conceal the art are characterized as “willful, wanton, malicious, and oppressive, and justify the awarding of exemplary and punitive damages.”

The plaintiffs also seek damages under the Lanham Act, claiming that Kirby wasn’t properly identified as co-creator of the original works in the advertising and promotion of the movies The Incredible Hulk and X-Men Origins: Wolverine (the latter presumably because of the X-Men, Professor X, Scott Summers and the Blob, not Wolverine). The lawsuit contends the omissions amount to “false or misleading descriptions or representations of fact in interstate commerce,” prohibited by the Lanham Act, and cause injury to the interests of the Kirby estate. The plaintiffs assert they’re entitled to “up to three times the damages they sustained and will sustain” because of the omissions, but don’t give an actual figure.

The Kirby lawsuit doesn’t state how much money the family believes it’s owed in total but, as The Hollywood Reporter‘s Eriq Gardner notes, “any termination of copyrights could be worth tens of millions of dollars, if not more.”

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108 Comments

Now’s the time to change Eric O’Grady’s official code name to Slaying Mantis, stat.

Marvel should have relized sooner or later that the heirs of the creators of some of their characters may exercise their rights under copy right law to claim and some over due profit since marvel has made money off said characters and till Marvel proves once and for all that all of the stuff Jack co created with stan was work for hire. for spider man. will come that jack had nothing to do with his creation it was just Stan and Steve. and hope Kirbys heirs at least get a nice settlement from disney and marvel. as for Captain america. that is not a work for hire. for Jack Kirby and Joe Simmon created the character long before Jack was at Marvel. still hope the outcome is jacks Heirs get what they should for his work.

Whatever happened to readable posts?

I think Matt was referring to a response.

Sorry Kevin. Alan is correct I should have said ‘comments’.

No problem. I was editing and updating the post, so I thought maybe I’d botched the whole thing in the process.

Steven R. Stahl

March 15, 2010 at 2:11 pm

It appears that the Kirby estate is pursuing the same strategy that was in place when the initial notices were filed: Claim as many rights as possible and try to intimidate the opponent. That strategy had a better chance of succeeding before Marvel was acquired by Disney. Some informative links:

Al Nickerson on Kirby’s minimal role in the creation of Spider-Man: http://alnickerson.blogspot.com/2009/02/who-really-created-spider-man.html

Brian Matus on contractors vs. work for hire agreements: http://www.lordshaper.com/?p=1083

Rulings in the Joe Simon vs. Marvel lawsuits: http://ipcenter.bna.com/pic2/ip.nsf/id/BNAP-5FWRA8?OpenDocument

SRS

Best of luck to the Kirby heirs, I hope they pull it off.

I respectfully disagree. Kirby did the work as an employee, and if his work makes money, good for everyone. His continued employment depended on it, and he was reasonably paid. Just like my job, I’m due no more, no matter how successfully my ideas are implemented.

Are these fans who support this backhanded money-grab interested in accelerating the end of these characters’ depiction in comics?

Yes now that Marvel have been bought by Disney and had a couple of successful movies and are making a bob or two it must be time for the ‘rightful heirs’ of what really does boil down to work for hire (these characters weren’t iconic in their day, Spider-Man was only a last minute ditch attempt to boost a flagging company) to try and get a big fat slice of pie.

Anyone who thinks that this isn’t solely motivated by money should wonder what will happen to these characters if the rights do return to the Kirbys.

Nothing that’s what.

So what if it’s about money? That’s what everyone wants.

Unlike the Siegels (who were quite clearly entitled), this is a much murkier case, given Martin Goodman’s famously poor record-keeping. But that’s what the trial is for. I would have to think that this would be somewhat difficult to prove.

Disney will NEVER allow the rights to revert back to the Kirby’s it’s not gonna happen.

Kevin T. Brown

March 15, 2010 at 2:55 pm

SC, Siegel & Shuster signed away their rights. They also sued numerous times to get more money in the 40′s (which they did indeed get!) only to sign away the rights again afterwards.

So, as to NOT to derail this thread any further, Kirby’s heirs probably will not win unless they can prove he was not in a work for hire situation. That’s the biggest key. I’ve always heard differing accounts…. We shall see.

With the exception of maybe Captain America (and that is a big maybe) in my eyes all were clearly a work for hire situation. Jack did the work he was paid for and that is that. Marvel, as in the thousand of people they employed over the years, made these characters what they are. Yes Stan and Jack were pivitol in starting that process, but it was the company that paid them to start it in the first place and they are the true owners.

“SC, Siegel & Shuster signed away their rights.”

Within the span of the original period. Those agreements didn’t (couldn’t, in fact) account for the extension of copyright and the accompanying provisions that came into effect in the 1970s.

Excellent. I hope the family gets what Mr. Kirby should have received in his lifetime.

bigbadbruins69

March 15, 2010 at 3:13 pm

They should get real jobs instead of trying to scam marvel out of money. These people are losers.

This just pisses me off. No respect. Stupid ass kids. They just want money.

lead sharp:

1. The law establishes set windows within which authors, then heirs, then estates can attempt to terminate copyright. If they miss those windows, it becomes more difficult to reclaim their rights. While the notices the Kirby family issued in September may have been sped along by a matter of weeks or months by the announcement of the Disney purchase, they’re simply following the avenue that Congress laid out for them.

2. Lawsuits, generally, are about money.

3. If the Kirby heirs are successful in their claims, they’ll regain Jack Kirby’s portion of the copyrights. That means in the instance of, say, the Fantastic Four or the X-Men, they’ll become co-authors of those properties with Marvel, as Stan Lee waived all claims to his co-creations and transferred his copyrights to Marvel. Under U.S. Copyright, each co-author — in this scenario, it would be Marvel and the Kirbys — are free to exploit (or license) the work without the consent of the other party as long as they account for any income received. However, Marvel retains the trademarks to those characters, making the properties essentially useless to any other company.

So, even if the Kirby family were to prevail, those properties wouldn’t go anywhere, because Marvel would still be a co-author and could do with them as they please; they’d simply have to share profits generated by those characters with the Kirbys. (That is, if the parties didn’t simply come to a financial agreement in which the heirs assigned their rights to Marvel.)

@TonyJazz: “Kirby did the work as an employee”

No, he didn’t. He was not an employee of Marvel, he was a freelancer.

“he was reasonably paid”

He certainly didn’t think so.

“Are these fans who support this backhanded money-grab interested in accelerating the end of these characters’ depiction in comics?”

Now see, that’s just ignorant. Marvel would keep 50% of the rights. The decision would not impact Marvel’s control of the property at all, in any way, shape, or form, it would merely force them to pay royalties to the Kirbys. Which, incidentally, they never have, which goes back to your rather absurd “he was reasonably paid” claim.

@ lead sharp: “Yes now that Marvel have been bought by Disney and had a couple of successful movies and are making a bob or two it must be time for the ‘rightful heirs’ of what really does boil down to work for hire (these characters weren’t iconic in their day, Spider-Man was only a last minute ditch attempt to boost a flagging company) to try and get a big fat slice of pie.”

Actually, now that the requisite 57 years that must elapse before heirs can claim termination of copyright transfer are about to pass, the heirs are claiming termination of copyright transfer.

Honestly, this story has been revisited over and over for several months now, and on each occasion people have explained the basics of the law. And yet, every time there’s a new post about it, somebody comes in to post his own interpretation of copyright law in a comments thread before spending the requisite five minutes to see if he’s actually right at all.

@SC: “I would have to think that this would be somewhat difficult to prove.”

@Kevin T. Brown: “So, as to NOT to derail this thread any further, Kirby’s heirs probably will not win unless they can prove he was not in a work for hire situation.”

That’s…really not how burden of proof works. You can’t prove the non-existence of a contract. Marvel has to produce a work-for-hire contract; if they don’t have one, then the law must assume there isn’t one.

bigbadbruins69: “They should get real jobs instead of trying to scam marvel out of money. These people are losers.”

Oh good, NOW we’re REALLY scraping the bottom of the barrel.

So, okay. Lisa Kirby is almost 50 years old. Do you really think she doesn’t have a job and has just waited her entire life for the opportunity to request termination of copyright transfer on her father’s work?

I’m not sure that this was a work for hire situation. That having been said, I think the burden of proof is on the plaintiff, they would have to show that Kirby was not an employee of the company, or at least present a contract that shows that Kirby retained rights to the characters in the event he was an employee.
Of course, I’d think that showing Kirby’s tax returns for the period in question might do it. W-2 means employee and a 1099 does not.
I don’t think that if the Kirby estate wins that Marvel or Disney will lose the characters. I think both sides realize that the characters in question have been a part of the Marvel universe for so long, that to remove them from that setting would damage the characters.
A hero is often defined by their villain, and a Spider man without the Green Goblin or Venom just isn’t the same. Some of the characters defining moments involved these villains, and without those moments, it’s not Spider man. Since Kirby wasn’t involved in the creation of either character, I don’t think they are attached to the Spider man copyright.
And of course, Venom and GG are useless without Mr. Parker to harass.

Paging Kurt Busiek! Paging mister Kurt Busiek! Please pick up a white courtesy phone at your earliest convenience!

If my grandfather created something decades ago, and now it was worth millions, and If there was a way that I could go and try to get a piece of that….you’re darn right I’d go for it. These people aren’t doing anything that any of us wouldn’t do. Especially if my ancestor felt screwed in the process. I’d feel justified in going after it.
It’s easy to curse the Kirbys, but let’s see how you’d react to the scent of a few million dollars wafting under your nose.

Aside from that, I guess I’m confused about this: “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.” So if I create something and sign it away for some money, years later my heirs can still come back and try and get part ownership in something I sold decades prior?

As far as the “burden of proof” goes, I think it depends on what was the industry standard at the time. If just about everything was work for hire, then it should be up to the Kirbys to prove otherwise. If most things were done free-lance, then it should be on Marvel to prove to the contrary. Either way, some paperwork or agreements should have been signed.

Either way, it sounds like it isn’t as if these characters are going to go away. Neither party wants that because the characters can’t make money stuck in a drawer somewhere, and money is what both sides want. Should be interesting to see how this shakes out.

@Jason: “Aside from that, I guess I’m confused about this: “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.” So if I create something and sign it away for some money, years later my heirs can still come back and try and get part ownership in something I sold decades prior?”

Not you, no, but anyone who signed away a copyright prior to 1978. This is because copyright originally was set to expire after 56 years (I said 57 above; consider this a correction). Therefore, when creators signed their rights away, they expected for that transfer only to last 56 years.

When copyrights were extended, creators were given the right to terminate that transfer after the original period elapsed. When Kirby signed away the rights to his characters in ’72, it was under the assumption that those characters would enter into the public domain starting in 2014. 6 years later, the law changed, and therefore the conditions of the agreement did. As a compromise, the new law allowed that people like Kirby who had transferred their copyrights under the old law could request their rights back at the time they were originally set to expire.

I hope they find a reasonable settlement. The Kirby estate probably does deserve a share in the proceeds of these characters. The deals made back in the day do not hold up to modern scrutiny – they were completely unethical. On the other hand it’s tricky for Marvel/Disney to surrender a sizable portion of their revenue stream for the sake of good karma – their primary responsibility is to shareholders.

How does this work, money-wise, if the family wins? Do they calculate back how much money would be owed to Kirby & the family, or is it just all uses in the future? I wouldn’t want to see the total money owed if it go back to the 60s…

The work that these early comic book artists and other illustrators was work for hire. I don’t believe the Kirby family is entitled to anything. I don’t blame them for trying though. If I thought I had a slice of that multi-million dollar pie, I’d try for it too. Though I think it should be dropped after this.

Why didn’t they try this when he was still alive and could have benefited from any money he could have gained from a deal?

Thad, so if someone wants 50% of the profits for a business in decline, you think there would be no impact on their output.

Get real! (Who’s statement here is really ignorant???)

captainamerica$

March 15, 2010 at 5:02 pm

@thad – you mentioned that Kirby was a freelancer and that he was dissatisfied with his pay. Did he mention this in an interview, diary, letter, etc. that I haven’t read?

Kirby did the work. The kids shouldn’t get money, it will not help him. They should push to have Jack Kirby’s name added wherever his co-created characters appear. Strengthen his legacy so when a five year old kid goes to see a Marvel character movie the kids asks, “who is that?” The parents can tell them or get their teenager a book of Kirby work. The money issue cheapens it.

To all of those who say that if one of my ancestors would have made an accomplishment that made millions that they did not benefit from that we should also sue. No, I would not and I speak from experience.

captainamerica4

March 15, 2010 at 5:03 pm

Yeah, I typed my name in too quickly, “captainamerica4″…. Monday continues.

For crying out loud.
You! Kirby heirs who had nothing to do with the work Jack did and were probably embarrassed he worked on ‘funny books’: GET A JOB!

I’m so sick of money grubbing brats trying to get a piece of a pie they had no hand in baking.

Yeah, this is pretty much ridiculous and the most I can see happening is a settlement in the Kirbys’ favor, since I’m sure if Marvney (Disnel?) threw a pile of cash at them to STFU and call it a day, they would. Why? The could care less about the characters, their legacies, or any of us as fans. So long as they get paid off this ridiculous scam, I’m sure they’ll laugh all the way to the bank.

Do I blame them? No, not really…we all try to get one over on the system (“The Man”…no, not Stan) once in awhile, be it fudging coupons or trying to claim rights to things that obviously aren’t ours. If you make a big enough stink, if the gigantic company you’re trying to sue stands to lose any kind of public face, you will more than likely at least walk away a bit richer, if only so the company can just sweep it all under the rug and forget it ever happened. Disney could quite literally pay the Kirbys enough money to live on the rest of their lives and then some, and it would be the equivilant of pocket change to them. But losing the rights to these characters? Not so much. If the Kirbys are, in fact, honestly trying to claim ownership of those characters and do mean to fight for them, I hope they lose and go penniless doing so. Screw them.

Nobody FORCED Jack Kirby to do a damn thing, underpaid, screwed-over, whatever. He chose to work under those conditions, for years and years, HIS CHOICE. I find it absolutely disgusting that someone can come along years later and try to claim ownership of something a deceased family member created, when said-creations have been built upon and formed their own histories long, long after Jack had anything to do with them. If they ever gave an actual DAMN about Jack, this would have happened while he was still alive. All they care about is money, and like I said, that’s what they’ll most likely receive. Anything more than that, please, Kirby Heirs, go to the back of the line in Hell, on the corner of Kiss Our Ass Blvd., thank you so much for playing.

The Kirbys wont win. Its impossible for the Kirbys to win. But I’m not saying they will Lose. Either Marvel/Disney will beat the Kirbys, or there will be a Settlement. When Joe Simon sued Marvel, they Settled. I see this happening with the Kirbys, unless Marvel pulls out some suprise. Way different circumstances than the DC Superman situation. and Since Mickey has Deep Pockets, it wont affect anything. The money they would lose would be regained with a Hannah Montana CD or a new Pixar Movie

Personally I think the Kirbys are being greedy.

@tonyjazz now it the Kirby family tried this 5 years ago, yes it may damage Marvels out put. But now that Marvel is owned by Disney i highly doubt that it will. If anything the Kirby family saw an opportunity to get whats theres and not damage the property there father help build. Like what was said before, Marvel still owns half and their fathers Legacy will live on because of Marvels publishing of those characters. Not only that but they are making sure that there father is being credited for his work.

@captoinamerica4 I think about it this way, if i made something that made me millions, its something i could leave for my kids and grand kids. Its one thing for you to say you wouldn’t do it, but thats you. Lets see who you feel when your older and that money could mean living a very nice retirement, as well as something to leave for your kids.

Also i thought it was commen knowledge that Kirby was unhappy with the way Marvel had treated him, and had feet that he was owed for what he had made for them. That was one of the reasons he had left Marvel for DC.

Just for clarification in regards to Captain America: Most seem to be in agreement that the circumstances surrounding Cap’s creation are different from many of the other characters at issue, thus suggesting that (like Superman), the character was clearly created BEFORE any contract of employment or otherwise was drafted and, as such, could not be deemed a Work-For-Hire (legally speaking). What is the basis for this assertion? Was Cap first published somewhere else then published by Marvel later? If so, the issue still isn’t clear cut as Cap could have been produced as a work for hire by the initial publisher, then Marvel subsequently purchased all of the original publisher’s copyrights. If so, it doesn’t change the fact that the character was a work-for-hire. If, on the other hand, Jack created Cap then sold a story (or even the character himself) him to a publisher, it may still be murky.

Anybody have clarification?

Go Kirby!! and ban quesada from Kirby Krackle while your at it.

captainamerica4

March 15, 2010 at 7:11 pm

@ENwondergear – The money issue is a moral one. My personal opiniion is I would want my children to work for their money, not have it handed down to them and run the risk of them abusing it.

As far as it being common knowledge that doesn’t hold up well in court. Yes, I have heard of his displeasure with Marvel and move to DC but where is the evidence? I am sure the plethora of comic book historians here that come to the CBR boards could resurrect some copies of old interviews, etc. to either hold our own court or send to either side of the lawsuit. BTW, how was life for Jack Kirby towards the end?

If Kirby made stupid business decisions, that was his own fault. These people are being greedy.

Kevin Melrose

1. My point is that the world is made up of greedy fuckers. Within their right or not that will not change.

2. I know the case, I can read.

3. Money is just there to grease the axles of life not to be it’s driving force.

@captainamerica4 I was not trying to insinuate that Kirby’s dissatisfaction would hold up in court i was only pointing it out because you had said you had not heard that. I wasn’t trying to offend you. And the whole money thing, yes it is a personal opinion, But that does not make them greedy fuckers as some would suggest. And no captainamerica4 I’m not trying to put words in your mouth, You never said they where. But some people on her have. It’s not as if they are suing someone because the coffee they purchased was to hot. Or there was a hair in the salad bar. They are not trying to take take the rights to these characters way from Marvel, or stop them from using them. They just want what entitled to them and their family by the guidelines of copyright laws.

For the people that do think they I think they being greedy they may want to take a look at Disney. Disney has payed a lot of money in the past to have copyright laws changed for them and have screwed a fair amount of people over in the past. If this law suit does come out in their favor it won’t be Marvel feeling it. Not when they are now owned by Disney. So for Disney, what goes around comes around.

I for one wish the Kirby family the best of luck.

interesting….

Personally, yeah, Kirby may have been owed millions for his work, but coming from the heirs, this just reeks… Now, as comic book fan, I’ve generally moved on to other comics, so I have less care than I would have years ago.

Yeah, it’s all about money but these heir-lawsuits have impeccable timing. I feel no grief for them if they get nothing or for the large companies if they win or lose. But I’m sure they weren’t exactly rejoicing years ago, when Marvel almost went bankrupt, as they probably could’ve obtained the rights to their family characters’ then, but of course, the money from the movies wasn’t there, so..

captainamerica4

March 15, 2010 at 9:00 pm

@ENwondergear – no offense taken and none meant to be given.

I personally have a hard time seeing what the laws suit would accomplish for Jack Kirby. I think most would agree that he hand a fundamental hand in making comics what they are today. This will be a suit that could have an equal impact on the industry today finacially. If the Kirby estate wins then companies would review and look at how contracts are organized. As a side note I think the exclusive contracts are a step in the right direction. How many other estates would then attempt to reclaim what they believe their ancestors were owed? Will this result in more suits? Will companies have to generate more revenue to pay out what they are court ordered to do? I do not think creative control (writing, drawing, etc.) will fall in the hands of all estates that sue but they might want more $.

Guess we will all have to wait and see.

OH, DON’T BE STUPID !!

1. At the time these characters were created, it was NOT work for hire. This has been discussed to death for many years, and all the legal experts agree on that.

2. Of course it’s all about the money.

3. The copyright law says the heirs can sue for the copyright. The Kirby heirs are doing what is within their legal rights.

4. The comment that they waited until Marvel was profitable and sold to Disney is a non-valid comment. The copyright law specifies when the lawsuit can happen, not the profitability.

I have no problem with someone arguing that they should or shouldn’t be suing, but at least understand the basic facts.

If you think any of these 4 statements are aimed at one specific poster, they aren’t. I did not name names because there are several people who believe one or more of the statements.

For more info:

http://www.gertler.com/nat/tv/?p=1425

Take a step back and look at the whole picture. This case has been in the works for some time now. Would Disney knowingly enter a deal with Marvel if there was a slight chance of loosing some of that revenue? I don’t think so.

Just wondering about the credit for the movies: does it really matter if Kirby’s name is on the big screen? I don’t know how that works. Does Stan Lee get money for having his name in the credits? What’s the big deal? Seeing Jack Kirby’s name is not going to change my opinion of the movie. I’m not going to walk out of the theater saying “Stupid Kirby for making such a crappy character that later got turned into a crappy movie” or “Wow, Kirby did a fine job creating such an interesting character.” Besides, how many changes were made to the costume/character that he created forever ago? Also, didn’t he mostly just come up with the look of most of these characters and not the name or back story?

Like attacking God with a can of Raid.

So, Marvel had these guys working, but not as work for hire? Then Anti-Venom, any of the characters from Avengers: The Initiative, Daken, or The Sentry are owned by the people that created them? I guess when a Sentry movie is ever made then Paul Jenkins and Jae Lee will be looking at a nice paycheck for creating the character.

Maybe back in the day (or Wednesday as some people call it) Marvel operated more like Image does now. Meaning that creators owned everything they worked on, or created. Or does Image own the copyrights to Haunt or Spawn, or Wildcats… oops. Since DC owns that last one, that idea doesn’t apply.

Yes, I know Image does not own the copyright to any of those titles.

@ g33ky monk3y If you have to ask what the big deal is, and then make base-line, inaccurate assumptions about Kirby’s role in the creation of these Marvel properties, then you really have no business launching such serious complaints. In today’s age artists that agree to work for Marvel (or DC) must fill out and sign Work For Hire forms (waive their rights to their creations) before they’re allowed to do anything. Those forms were not always around, and back in the 1940′s and 1950′s artists and writers, and especially Kirby, were constantly creating properties on their own and then bringing them to companies for publishing.

@ everyone else

Everyone also seems to focus on 1) The Kirby estate being money-grubbers, and 2) Just how big the gray area was in which Marvel and Kirby worked together.

Nobody seems to give a shit about the notorious amount of original art Marvel never returned to Kirby. I think that is a HUGE DEAL. Marvel wasn’t paying Kirby for his physical copies of his original art. They were paying to publish the art he created. I think that’s reason enough for the Kirby Estate to sue for at least those specific, related damages.

And just like EVERYONE has said over and over again, lawsuits are usually about money and the Kirby Estate is acting on their LEGAL rights, so to call the Kirby Estate a bunch of money-grubbers is bullshit. Kirby is the KING of COMICS. I wouldn’t want any company taking full advantage of his monetary rights.

Plus, Disney has totally messed with copyright law throughout the years for their own monetary gain and to the detriment of small-time artists that spent years honing their craft, and that’s highly frustrating. So the concept for Disney to be able to tromp all over the King of Comics’ Estate’s copyright claims (if justified) is upsetting.

Brian from Canada

March 15, 2010 at 11:27 pm

G33ky:

Having Stan’s name in the credits as creator doesn’t get him anything except the acknowledgement that he was responsible for creating the character. Monetarily, the film rights are owned by the studio for this picture* and they get their percentage of the profits because of that.

Where Stan DOES get money from the movies is the credit for executive producer. That’s an arrangement that comes, IIRC, from Avi Arad’s replacing him from his chairmanship/spokesmanship position as Marvel’s Hollywood representative. To fire Stan Lee from Marvel Studios is bad image, so they keep his name there and he gets an executive producer percentage from the back end.

*Note that each film sets up a company to own those rights in case of lawsuit. Or, according to Kevin Smith, if Affleck takes out another hooker.

Brian from Canada

March 15, 2010 at 11:32 pm

With regards to the Captain America difference, I don’t have a reference handy but I think the general consensus is that everyone was rushing to get into comics at the time and this was an idea that Simon & Kirby brought to Timely a la Siegel & Shuster with Superman. It was bought.

This is very different from the Kirby-Lee situation in the sixties. Their first superheroes were brought to the person they were already getting assignments from and permission was asked from Goodman to try it.

g33ky monk3y — Back in the day, comics were delivered on Thursdays. And way before that, sometimes twice a week.

Brian from Canada

March 15, 2010 at 11:52 pm

Wild:

I think you’re missing one VERY important part here. Marvel’s narrative about the creation of the heroes has always been that Stan and Jack worked for Timely when they brought Fantastic Four to Martin Goodman. More importantly, the nature of freelancing is that every work is an individual contract… and Kirby’s output for Marvel demonstrates a clear assignment from the company as it would for any artist under contract. The only difference between Kirby and another artist may have been the fact that Kirby chose not to work inside Timely’s/Marvel’s offices when producing the art, but he was still producing the art FOR Marvel as expected on a monthly basis.

There may not be paperwork to back it up, but all the oral accounts and anecdotes of the period point to that system being used. NOBODY expected it to be worth anything later on, not on this scale; Kirby’s disgruntlement at Marvel is undefined, and can range from Stan’s celebrity to having new ideas nixed.

As for the original art, that was an insurance policy for later reproductions. If you don’t understand what that means, you don’t understand the printing process. To make a printing, you need a plate; to make a plate, you need the original image. If you take a look at some of the early Essential volumes, you’ll see pages which are clearly taken from coloured pages instead of black and white because the original art AND the original negatives used for the plates are gone.

And it was common practice to reprint stories. Just look at DC. When Marvel did return artwork, it was usually after they were sure they wouldn’t need to make a new negative and/or they had enough assurance that they could do it without the original art.

[Why would Kirby want so much of the art except for his own collection? Was he desperate for cash and needed to sell? And if so, why was he in financial problems… was it Marvel induced or not?]

And, please people, don’t use today’s artists as an example! Today’s artists have their pages SCANNED right away into digital form, not photographed using a (very large) process camera.

What we are seeing is a family seeing that, under law, they can ask for a percentage of lost royalties. That is true. But the Kirby estate’s complaint about lack of credit on Wolverine because Jack created side characters — and not, it should be noted, the two leads, or ANY of the critical components of the narrative — makes them look incredibly selfish, just as the complaint that Jack isn’t getting his due from a company that has routinely identified its stable as the one “Stan and Jack built” in its early days.

That, I think, is the reason for the calls of greed. Not the actual “was he mistreated” question because that has been dealt with for years and years — often with people calling the self-called “King Of Comics”‘ mistreatment from his own, again UNDEFINED except when it comes to art, complaints years later.

Brian from Canada

March 15, 2010 at 11:58 pm

By the way, the case won’t happen immediately and it will take a lonnnnng time to get all the details out.

For example: Marvel gets next to nothing for The X-Men and Fantastic Four movies. Those rights were bought outright by Fox. Which makes this Kirby thing even more complicated because, technically, if they win then the whole Fox ownership collapses (you can’t own what the other person wasn’t legally allowed to sell) and Fox would countersue Disney in order to get a portion of one of their properties. All of which, in the meantime, means that all films using those characters at Fox will stop where they are, and same with Spider-Man at Sony and any OAVs at Lion’s Gate. The only films remaining in production will be Marvel’s own UNLESS Paramount uses the poor gate clause to pause them (poor gate meaning that if Marvel’s movies fail, then the distributor gets to keep the film rights to the characters!).

“he was reasonably paid.”

That’s the sticking issue IMO. What would you consider reasonable? Well the industry standard at the time had its own idea of reasonable. But considering how many millions characters like the Fantastic Four have made Marvel, is it really reasonable to say Jack only gets a few thousand (I have no idea how much he was actually paid)?

IMO I take issue with someone creating something. Getting paid upon the agreed amount for that creation. And then many years later walking into the office and saying “I want more.” That said, I understand in the 1940s comic creators were paid a (by the standards of that time) a pittance with quite a bit of unethical and questionably legal tactics employed by the companies of the time.

But most of these characters were created in the 1960s. Were such shenanigans still taking place 20 years later? I haven’t heard of them happening in the 60s.

That said, I lose any and all sympathy I might have Marvel, simply because they’re benefiting from extended copyright terms. In the 1960s, Jack Kirby sold his work to Marvel for a length of 56 years maximum at which point the work would enter the public domain. However now Marvel gets to turn around and say “actually, we’re going to keep hold the copyright for these works for 120 years. Nerr, nerr.” If his heirs then turn around and say “we want more dough” I can only say good luck to them.

IMO extended copyright terms of pre-existing work is a terrible idea and is completely against the Constitution of America. Because now Congress gets to play the game of forever extending the length of copyright and there’s nothing the Supreme Court is willing to do about the matter. We’ve been playing this game since 1976 and I for one am tired of it. Everyone should do their best to get their two cents worth, because nothing is going to change anytime soon.

IMO adopting the Berne convention was the worst thing America could have done.

They won’t get a dime, Marvel was a nasty company, Disney is worse.

@WIld&Uncouth
Wow. Touchy subject for you? Must be to get you riled up by a question in regards to who owns the rights to Anti-Venom. My “base-line, inaccurate assumptions” are that Marvel/Disney – right or wrong – will come out on top of the deal. Either they pay a small settlement or they just win outright.

Just chill. The only thing from my post that was mostly serious was the question about movie rights.

@Brian from Canada
Thanks for answering that.

@Alan Coil
“back in the day” – not really a comic book reference, just quoting Dane Cook.

In all seriousness, the only thing that we (the fans) can say for sure is that we are glad such characters exist. How can we accurately judge something that happened before we were born? Sorry, that may not apply to everyone. Also, does it really matter (to the average fan) if the Kirby estate gets the copyrights turned over to them? What impact will this have on the books we read every month? Most likely, not a lot. According to someone on this site, it just means that KE would be co-owner of the listed properties. Okay. Again, does this impact the reader? I don’t think so. I don’t see these characters being pulled away from Marvel any time soon. Marvel would just pay royalties each month. Before that would happen, I wouldn’t be too surprised if those characters suddenly “retired” from Marvel’s universe and new heroes spring up. But really, that would be a very unlikely worst case scenario.

IMO, the whole lawsuit does look sleazy, on the KE’s behalf. If they didn’t want any money and just wanted Jack Kirby’s name to be credited, then I wouldn’t get that feeling. But the money [that would be] involved is a crazy figure. Hence, the sleaze. On the other hand, like I said above, I have no clue about the details and cannot have an accurate, informed opinion on the subject. I doubt anyone could.

Except Stan Lee. Why does he say on the matter?

@geeky monkey

Why is it sleazy for the Kirby Estate to want their share of the pie? But Marvel gets a pass when it comes to keeping the character 64 years they didn’t pay for. They paid for getting to keep the character for 56 years total. If they want more than that, they should have to pay more.

How is Marvel refusing to pay for the extra years not sleazy?

@John Lynch
I said looks sleazy. I also said I don’t have all the facts (does anyone) to make an informed decision on the matter.

So everything automatically reverts back to KE after 56 years? Why? Why not Joe Simon (for Captain America)?

I’ll go back to my original argument: we weren’t around when this deal was made between Kirby and Marvel. We don’t know what happened. Work for hire, freelance, it really doesn’t matter to me. The property is never going to leave Marvel, I’ll keep reading awesome stories staring Captain America, Spider-Man, and… Hulk.

It hurts to say that last one, because it should be better than the awful Red Hulk BS. That’s a tangent for another time.

‘IMO, the whole lawsuit does look sleazy, on the KE’s behalf. If they didn’t want any money and just wanted Jack Kirby’s name to be credited, then I wouldn’t get that feeling. But the money [that would be] involved is a crazy figure. Hence, the sleaze. On the other hand, like I said above, I have no clue about the details and cannot have an accurate, informed opinion on the subject. I doubt anyone could.’
Just do some reading on the subject. Learn about the man, and his family, it is out there. How he felt about providing for his family and the legacy he so wanted to leave. ‘Sleazy’ is the last word anyone would attribute to the Kirby family regarding this matter.

‘Except Stan Lee. Why does he say on the matter?’

He says ‘I got mine!’

Two things concern me in all this to&fro about what Kirby/his family deserves.

1. We all agree that subsequent writers and artists shaped and enhanced characters created by Stan & Jack. By asserting copyright the contribution of these subsequent people is ignored – I find that hard to swallow. The original Hulk stories are almost unreadable now – would the character have the same appeal if not for the TV show (who diregarded everything from the comics) and talented writers like Peter David?
Wolverine is a major case in point – created as a throw away charcter it was subsequent writers who developed his now-popular appeal. Who should benefit from this? Also shouldn’t we credit the publisher for constantly taking a risk to create new work – should the original artist benefit from subsequent work he had nothing to do with?
Another case in point is Walt Simonson’s Thor – nothing Kirby did in his long run compares to Walt’s work. Everyone agrees his Surtur saga is the highpoint for this series. Even Buscema’s long run on the character has stood the test of time rather than the early Kirby stuff.

2. From what I’ve read Kirby has a reputation for working in bad faith – let me explain this.
After he & Simon created Capt America they became jealous of the money Timely comics was making – run by Martin Goodman – and jumped ship to another publisher at a higher rate.
He also had a huge falling out at DC when a long-winded court case found against him. The ill will against Kirby lasted a long time.
He returned to Marvel to the same publisher who had ripped him off over Capt America – why? The usual Kirby excuse is ‘I had a family to feed’ – this doesn’t wash, other writers and artists also had families to feed but didn’t cave in like him.
Towards the end of his stay at Marvel again he was angling to move to DC – & again I would say he was acting in bad faith. Handing in mediocre work because he knew he was leaving, withholding new characters for Thor and using them in Fourth World – did he return any pay cheques because he was handing in hack work?? The last few issues of his FF run is aweful – reusing old Star Trek episodes!
His distrust of Stan Lee made him very bitter in the end – laying claim to Spider-man is particulary odious. It is without doubt Ditko’s greatest creation – the costume design, the character drawing and the exceptional inventive villians are beyond compare – and for Kirby to lay claim does a great dis-service to a fellow artist; it’s seeking to turn the talented Ditko into a hack.

The above not withstanding I still believe Kirby should’ve been given the same sweet-heart deal that Stan got – an opportunity with equal recompense to assign the characters to Marvel. The same should also have been offered to Ditko.
Failure to do this was what made Kirby bitter & the subsequent multi-billion Marvel industry based on his characters only rubs salt in that wound.

@LordGanja
Your first point is what I was angling towards earlier, but then I lost track and then went off on a semi-tangent.

To (random person who posted against judgment in favor of the Kirby Estate)

HELL YES, his “money-grubbing” kids should take some of the money from the “money-grubbing”
heirs of Walt “long-dead” Disney! Are you NUTS?

It’s largely the fault of the Walt Disney Company these vague, creepy laws regarding extension of
copyright term exist!

Irony called, and kicked your ass.

“We all agree that subsequent writers and artists shaped and enhanced characters created by Stan & Jack. By asserting copyright the contribution of these subsequent people is ignored – I find that hard to swallow. The original Hulk stories are almost unreadable now – would the character have the same appeal if not for the TV show (who diregarded everything from the comics) and talented writers like Peter David?
Wolverine is a major case in point – created as a throw away charcter it was subsequent writers who developed his now-popular appeal. Who should benefit from this? Also shouldn’t we credit the publisher for constantly taking a risk to create new work – should the original artist benefit from subsequent work he had nothing to do with?
Another case in point is Walt Simonson’s Thor – nothing Kirby did in his long run compares to Walt’s work. Everyone agrees his Surtur saga is the highpoint for this series. Even Buscema’s long run on the character has stood the test of time rather than the early Kirby stuff.”

Without Kirby and Lee’s original Thor stories, Simonson would have no story to tell; Simonson built upon the foundation the original stories built. I’m not sure what point you are arguing here.

.” From what I’ve read Kirby has a reputation for working in bad faith – let me explain this.
After he & Simon created Capt America they became jealous of the money Timely comics was making – run by Martin Goodman – and jumped ship to another publisher at a higher rate.”

Actually, they jumped ship when it became apparent that the promises of Goodman would not be upheld; SOP for Martin Goodman, from what I have read about the man.

“He also had a huge falling out at DC when a long-winded court case found against him. The ill will against Kirby lasted a long time.”

This is very true. He had gained the animosity of several high profile editors at DC, and when Carmine Infantino became publisher, he smartly ignored those editors and actively pursued Jack for DC.

“He returned to Marvel to the same publisher who had ripped him off over Capt America – why? The usual Kirby excuse is ‘I had a family to feed’ – this doesn’t wash, other writers and artists also had families to feed but didn’t cave in like him.”
From what I have read about the man, he enjoyed doing comics a great deal. I’m sure he could have went into Advertising (which many of his contemporaries did during the dry times in the 50s and 60s), but the man seemed to have a yearning to create.

“Towards the end of his stay at Marvel again he was angling to move to DC – & again I would say he was acting in bad faith. Handing in mediocre work because he knew he was leaving, withholding new characters for Thor and using them in Fourth World – did he return any pay cheques because he was handing in hack work?? The last few issues of his FF run is aweful – reusing old Star Trek episodes!”

He wasn’t properly compensated for his characters. He was writing the stories and not getting a story credit. He wasn’t getting the merchandising royalties he was promised. He wasn’t going to give Marvel anything else and not get what he was due. Good on him, I say.

“His distrust of Stan Lee made him very bitter in the end – laying claim to Spider-man is particulary odious. It is without doubt Ditko’s greatest creation – the costume design, the character drawing and the exceptional inventive villians are beyond compare – and for Kirby to lay claim does a great dis-service to a fellow artist; it’s seeking to turn the talented Ditko into a hack.”

I won’t dispute that. Kirby was angry and the Comics Journal interview he gave in the late 80s was SUPPOSED to be available for Roz (his wife) and Mark Evanier to look over before going to press; according to some accounts, Groth published the interview as is, and it caused some (justifiable) bad blood.

@LordGanja
‘The above not withstanding I still believe Kirby should’ve been given the same sweet-heart deal that Stan got – an opportunity with equal recompense to assign the characters to Marvel. The same should also have been offered to Ditko.”

I believe Marvel did offer Ditko some money for Spider-man when the first movie was coming out; he turned it down, because it wasn’t enough. I think Kurt Busiek told that story on the comments section for the (first, second?) Kirby copyright story on this blog.

@RaulTheCat
“Actually, they jumped ship when it became apparent that the promises of Goodman would not be upheld; SOP for Martin Goodman, from what I have read about the man.”

I agree, from all accounts, Goodman was a seriel liar. He did promise Kirby and Ditko a decent share of the profits when their creations took off but renaged on the verbal agreement.

The familial relationship between Goodman & Stan contributed to the ill will at the company – Kirby & Ditko felt they were being sidelined by these two. Also Stan”s relentless self-promotion made him the face of Marvel which again alienated the two. In the end it was a clash of ego’s which destroyed their working relationship; but let’s be clear, each knew the other contributed to the overall success of Marvel. Unfortunately Stan’s position as Editor gave him the upper hand in any arguement & sad to say, he exploited it fully. This manifested itself most clearly when Stan took over ownership of the Silver Surfer even though Jack completed created him on his own and then launched the short-lived Surfer series with Buscema.

You may argue he had good reason to act in bad faith but I believe he was better treated at Marvel than at DC – apart from a better page rate & story credit what great monies did DC lavish on him? They pretty swiftly cancelled his series when they failed to take off.

And finally why return to Marvel after leaving in such bad faith?
He got burned over Cap America, he got burned over FF and then he goes back? – Jeez he was a glutton for punishment!

spidarwin is right. It’s the endless (and illegal) extension of copyright law that has opened up this wormhole of specious claims of ownership. To that end, Disney deserves what it gets, as do all of the other media conglomerates that bribed Congress into passing this sort of nonsense.

But the idea of the Kirby’s (or the Siegels) entitlement to past royalties or ownership of the characters is absurd.

Unless there was a written agreement that explicitly laid out the ownership of the ideas in favor of the individual, all work was legally copyright by the publishing company. If Jack Kirby had such confidence in his creations, he certainly could have tried to sell them to other publishing companies or even start his own. He certainly had the industry experience to do so, and probably the wisdom to not.

Where this case is even more clear than the Siegels is that he was an employee of Marvel. Marvel is entitled to full ownership of any and all work created as an employee or a work-for-hire. That has always been the case and still is to this day in every industry. Unless there is a document that specifically outlines special treatment for an artist or writer and they work they produce, once you’re paid, it’s over.

Just because it seems really unfair that someone created something that would not have existed without their idea and effort and a corporation made billions off it at very little cost to them doesn’t mean it should be undone. If an idea was stolen, that’s one thing. But these were bought and paid for. Just because a deal was bad, it doesn’t mean it can be negated.

One other point about this, though Siegel and Shuster sued on and off for most of their lives, there were various agreements and settlements made over the years. But those were all made as goodwill gestures on the part of DC in order to end the bad publicity, not because of any legal rights. They’ve died as has Kirby, so these are now the estates (families) of the creators suing for these rights and monies, not the actual creators.

The estates had nothing to do with the creation of these characters. The estates were not present at the time of any previous agreements nor involved in any negotiation that might have occurred. All they have are the loopholes opened up by the copyright extensions and the sense that they’re entitled to more for their father’s work.

Say you buy a house for $100,000 and then hire some contractors to come in and make improvements over the years. You hold onto it and its value increases to the point its now worth $500,000 and you sell it. The the estate of the guy who you bought it from comes after you for a percentage of the profits you made because you “underpaid” for the house originally. Is that fair? S&S were paid $130 bucks for all rights to Superman forever and that was that. It was a terrible deal, but they took it. It happens. Jack Kirby knew this story and still did created new characters for Marvel. Nobody made him do it.

ElTerrible, I have quibbles with most of your statements, but this one sentence gets to the core of the entire copyright-termination issue:

“S&S were paid $130 bucks for all rights to Superman forever and that was that.”

When Simon and Shuster assigned their copyrights to National/DC, “forever” was 56 years, not 95.

That 39-year extension, and the acknowledgment that authors of older works may not have been in a position to make good or fair deals, is why Congress created a provision for creators, their heirs or estates to recapture copyrights.

“The estates had nothing to do with the creation of these characters.”
Uhm no – that’s why they’re called the estate, they inherit the legal rights of the creator.
The estate of George Bernard Shaw inherited all the rights to his plays – not just the pen where he wrote them with!

Brian from Canada said:

“But the Kirby estate’s complaint about lack of credit on Wolverine because Jack created side characters — and not, it should be noted, the two leads, or ANY of the critical components of the narrative…”

In this type of legal proceeding, you have to claim any and all little bit you think you deserve. You can’t go back a year later and claim more. The court will decide which parts the Kirby Estate gets and doesn’t get. IMO, Kirby gets nothing for Wolverine, but he does get something for Cyclops and Professor X, thus the estate has to include the new X-Men series. But my opinion doesn’t really matter. Just the opinion of the judge.

“Unless there was a written agreement that explicitly laid out the ownership of the ideas in favor of the individual, all work was legally copyright by the publishing company.”

No, that’s neither what the law is now nor what the law was at the time. Rights do not automatically go to a publisher for publishing something.

“We all agree that subsequent writers and artists shaped and enhanced characters created by Stan & Jack. By asserting copyright the contribution of these subsequent people is ignored – I find that hard to swallow. ”

No. Getting copyright to the original material does not mean that they get to own that later material… although it means they can keep it from being used further.

“Would Disney knowingly enter a deal with Marvel if there was a slight chance of loosing some of that revenue?”

Sure. Any deal with a large company includes analysis of risks. It would be hard to buyout a company as large as Marvel and not see some aspect at risk.

Kevin, you’re right. I re-read the provision and understand where the recapture concept is coming from.

LordGanja, my point about the estates wasn’t intended to be about the viability of their inherited rights (George Bernard Shaw never sold the rights to his plays, so his family would inherit them). The point I was going to make was in regard to their implicit knowledge and involvement in the events that led to the sale of the work, but I must have deleted the extension of that thought. At any rate, that idea is utterly negated by the right to recapture provision, so I was still wrong.

They’ve made a mess of copyright law with these endless extensions.

“No, that’s neither what the law is now nor what the law was at the time. Rights do not automatically go to a publisher for publishing something.”

It does if the publisher hired the author to do the work.

Thad,

You state:

“That’s…really not how burden of proof works. You can’t prove the non-existence of a contract. Marvel has to produce a work-for-hire contract; if they don’t have one, then the law must assume there isn’t one.”

I’m don’t agree with this conclusion. Kirby’s estate, as the party filing suit, has the burden of proof as to each element of its claim. Consequently, the estate has to establish its claim by a preponderance of the evidence, i.e., more probable than not, as to each element, including but not limited to the estate’s allegation that Kirby was a freelancer. If and when the estate introduces sufficient evidence to establish each element, Marvel will have to come forward with evidence sufficient to rebut the estate’s showing.

Should the estate fail to make the requisite showing as to any of the elements of its claim, the court can take the matter away from the jury (assuming this isn’t a bench trial, to which a plaintiff in this circumstance would never agree) on Marvel’s motion and enter a directed verdict in Marvel’s favor. Otherwise, assuming there’s conflicting facts, the matter will go to the jury and the jury will decide who to believe.

“You! Kirby heirs who had nothing to do with the work Jack did and were probably embarrassed he worked on ‘funny books’: GET A JOB!”

The internet is my favorite thing.

unbrokenrabbit

March 16, 2010 at 8:29 am

“If my grandfather created something decades ago, and now it was worth millions, and If there was a way that I could go and try to get a piece of that….you’re darn right I’d go for it.”

That’s because you’re an opportunistic prick. In the situtation you’ve laid out, you’d have done nothing to deserve the money that your grandfather was entitled to. The birthright argument is bull.

“These people aren’t doing anything that any of us wouldn’t do. Especially if my ancestor felt screwed in the process. I’d feel justified in going after it. It’s easy to curse the Kirbys, but let’s see how you’d react to the scent of a few million dollars wafting under your nose.”

This mentality is what ruins the world for honest people. You’re justifying your greed by assuming that everyone else in the world would also choose to be greedy when presented with this opportunity, and that is not the case. There are genuinely honest people out there who would not follow the course of action that the Kirby estate is taking. Jack Kirby did the work, Jack Kirby deserves the credit. The Kirby estate did not do the work, the Kirby estate does not deserve the credit. The fact that Jack was not properly compensated for his work SHOULD NOT entitle his heirs to any money. Evil gets credit for a victory, the world moves on and we all try to prevent a situation like this from happening again in the future.

The people here who are calling the Kirby family money-grubbers to me are the ones being truly selfish. They don’t understand the intricacies of copyright law and they are worried that this lawsuit may mean the end of future stories featuring their favorite characters.

Of all these naysayers, I have a few questions.

Have you ever received an inheritance? Even a small one from a deceased family member? And when you did receive said inheritance, did you turn it over to the company said family member worked for?

Do any of you have wills? And in those wills, did you specify for all your assets to be transferred to the companies you worked for as opposed to your own family? Or do you plan to specify in your will for all your assets to be transferred to said company?

If you answered yes to these questions then congratulations, you are justified in your outrage — at least as far as your opinion goes. But if you answered no to them, then you are, simply put, a massive hypocrite.

I’m a creator and unless I sign a work-for-hire form, I expect my creations to become the property of my heirs once I pass away. And if someone tries to screw my heirs out of their rights to my creations, I fully expect them to fight it.

If Kirby signed a work-for-hire form that specified these creations are solely the property of Marvel and will be until the end of time, then great — Marvel should produce these forms and that’ll be that. If they can’t produce these forms, then the Kirby estate is fully entitled under the law to attempt reclaim Jack’s portion of the rights.

When a creator enters into a work-for-hire agreement that has an expiration date, then once that date comes, the creator (or in this case the creator’s heirs) is fully entitled to reclaim those rights. This isn’t a matter of, “oh, Marvel is suddenly a big cash cow so it’s obvious why they waited this long to try and reclaim the rights.” That’s not true — as anyone with any knowledge of Kirby will attest to. He fought Marvel over the rights numerous times, as did his heirs. It’s just coincidence that the expiration date came after the Disney deal.

The disrespect some comic fans are showing for one of the greatest legends in the industry is simply staggering and utterly disgusting.

Percival,

Jack is dead, and no one has shown him any disrespect (only towards his relatives seeking money). Though I personally believe his heirs deserve nothing, it is very amusing that Disney helped create this mess to keep their ownership of Mickey Mouse.

Yes, copyright law is a total mess at this point.

Unfortunate heirs to Kirby, like they do not make money, have to go get some income to the work of father and grandfather who passed away. I am so sorry for them. If they learn to work honestly to earn some money. I hope that the Marvel / Disney win the case and that the heirs did not earn a single dividend since being in the shadow of the claims of others, is at least shameful and disgraceful.

I in my work (as a financial coordinator) will also begin to ask the copyright when I create maps (Excel, Word, …) in the companies they work to see if I can get some money. LOL

@ Ryan Higgins: “How does this work, money-wise, if the family wins? Do they calculate back how much money would be owed to Kirby & the family, or is it just all uses in the future? I wouldn’t want to see the total money owed if it go back to the 60s…”

No, this isn’t retroactive. Marvel owned those characters, at least from 1972 to present, and this doesn’t change that. This would only mean they lose half the copyright starting 56 years after each creation.

@Devyn: “Why didn’t they try this when he was still alive and could have benefited from any money he could have gained from a deal?”

YOU CAN’T TERMINATE A TRANSFER OF COPYRIGHT UNTIL 56 YEARS AFTER THE PROPERTY IS CREATED.

“Thad, so if someone wants 50% of the profits for a business in decline, you think there would be no impact on their output.”

I never said anything of the sort. 50% ownership and a share in profits is not the same thing as 50% of profits, Marvel has a whole stable of characters Jack DIDN’T create, and incidentally it’s hardly “a business in decline”; it was recently purchased by a major media conglomerate for a very large sum. Maybe you heard about that — it’s mentioned several times in the post you’re responding to.

But you’re right, I’m sure that if Jack Kirby’s heirs get their 50% back, it will completely destroy Marvel. Like how Jerry Siegel’s heirs got their 50% of Superman back and now there are no Superman comics anymore.

“Get real! (Who’s statement here is really ignorant???)”

…it’s “whose”.

@Michael: “But I’m sure they weren’t exactly rejoicing years ago, when Marvel almost went bankrupt, as they probably could’ve obtained the rights to their family characters’ then, but of course, the money from the movies wasn’t there, so..”

YOU CAN’T TERMINATE A TRANSFER OF COPYRIGHT UNTIL 56 YEARS AFTER THE PROPERTY IS CREATED.

@ElTerrible: “Where this case is even more clear than the Siegels is that he was an employee of Marvel.”

No, he wasn’t. He was a freelancer. Marvel didn’t hire employees, because it didn’t want to pay benefits.

@Nat Gertler: “No. Getting copyright to the original material does not mean that they get to own that later material… although it means they can keep it from being used further.”

Not in this case, since it’s only a 50% stake. The Kirbys don’t gain any editorial control, just a share in profits.

@Actual lawyer: Fair on the burden of proof point. I was approaching it from a logical standpoint (you can’t prove a negative), but yes, the term has a different meaning in law (innocent until proven guilty) and I shouldn’t have used the two interchangeably. You’re absolutely right, the Kirbys have to make their case, and if they can’t, Marvel doesn’t have to do anything.

However, assuming the Kirbys make a good case — which I think is a reasonable assumption –, Marvel’s inability to produce a contract would be damning.

…so what about the other suit, where Marvel is suing the Kirbys?

@unbrokenrabbit: “There are genuinely honest people out there who would not follow the course of action that the Kirby estate is taking. Jack Kirby did the work, Jack Kirby deserves the credit. The Kirby estate did not do the work, the Kirby estate does not deserve the credit. The fact that Jack was not properly compensated for his work SHOULD NOT entitle his heirs to any money. Evil gets credit for a victory, the world moves on and we all try to prevent a situation like this from happening again in the future.”

I can sympathize with this viewpoint, but really, does Disney deserve that money any more than Kirby’s heirs do?

I think the logical conclusion of the “heirs don’t deserve money for their parents’ work” argument is that these characters should be public domain by now. If that’s a discussion we want to have, I’m all for it. However, in the situation we’re looking at, the choice is between Disney getting all the marbles and Kirby’s heirs getting some of them.

You’re also making the assumption that this happens in a vacuum and doesn’t have an effect on any living creators, which is naive. Legal battles like the Kirbys’ and the Siegels’ have resulted in DC and Marvel giving more favorable contracts to their creators. If you treat your talent fairly, they’re less likely to sue you.

The problem is that most of the characters were co-creations with Stan Lee, an employee of Atlas/Marvel, and the editor/primary writer of the books.
Some characters, like the Silver Surfer, were pure Kirby Kreations. (Lee has gone on record detailing how he was surprised to see the “naked guy on the surfboard” when he received the pencils for FF #49!)
But most of them were co-conceived with Lee or visually-conceived from Lee’s written descriptions.
Sadly, it’s gonna be a messy battle… ;-(

unbrokenrabbit said:

“The Kirby estate did not do the work, the Kirby estate does not deserve the credit.”

That’s not what the law says. I know you don’t agree with that, but the law says they do.

Also, please stop with the name calling.

@LordGanja
“You may argue he had good reason to act in bad faith but I believe he was better treated at Marvel than at DC – apart from a better page rate & story credit what great monies did DC lavish on him? They pretty swiftly cancelled his series when they failed to take off.”

True, but at the time, Infantino worked hard to try to make things work for Jack, and Jack knew that.
And, yeah, DC actually did treat Jack a lot more fair than Marvel, especially once Paul Levitz and Jeanette Kahn took over the company. They allowed Jack to come in a make a few tweaks to the New Gods characters that were going to be featured in the Superfriends show, so Jack could receive royalties. The characters were created before DC’s royalty program, and Levitz and Kahn actively sought a way to circumvent it.
Marvel, meanwhile, was busy NOT paying Jack a damn dime for all of the royaties he should have been paid, and refusing to return his artwork.

ElTerrible: [Rights automatically go to a publisher] “if the publisher hired the author to do the work.”

No, they don’t. That was not true when the work in question was created, nor is it true today. Rights generally go to an employer for work done by an employee in the course of his job, but freelancers were and are a different matter. The current law stipulates that works made for hire can include “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Note all those limitations – it is not automatic, nor is it applicable to all sorts of work (and in fact there are many comic books which would seem to fit none of the categories.) The earlier law was a bit simpler, not defining works made for hire – but there is caselaw showing that work made on a freelance basis is not considered the same as that by an employee.

Thad is a really nice guy. (great to see that he thinks the industry is thriving…. hope it is)

“Not in this case, since it’s only a 50% stake. The Kirbys don’t gain any editorial control, just a share in profits.”

The lawsuit is going after material Kirby “authored or co-authored”, creating characters he “created and/or co-created” – i.e., they’re not inherently limiting themselves to a 50% claim (which is not to say that that doesn’t seem a likely result.)

Looking at the lawsuit – they’re also suing over some original art that Marvel supposedly failed to return.

@Nat Gertler
“Looking at the lawsuit – they’re also suing over some original art that Marvel supposedly failed to return.”

Hmm, that’s gonna be sticky. Most of that art has been stolen or just plain lost, thanks to Marvel’s lack of caring about the art in the early day.

sorry, should be “including characters he ‘created and/or co-created’”, not “creating characters…”

“Most of that art has been stolen or just plain lost, thanks to Marvel’s lack of caring about the art in the early day.”

The suit doesn’t actually ask for the art, but for the value of the art and some damages. It’s not over art that Marvel lost, but that… well, I’ll quote the suit:

“Plaintiff Trustee is informed and believes and based thereon alleges
that Marvel retains in its possession certain Kirby Artwork that it did not return to
Kirby, thereby exerting dominion over such Kirby Artwork and converting it to
their own use. Plaintiff Trustee is informed and believes and based thereon alleges
that Marvel concealed and continues to conceal that Marvel retained certain Kirby
Artwork that it did not return to Kirby, and due to such ongoing concealment
Plaintiff Trustee did not demand that Marvel return such Kirby Artwork.”

I have no idea if there is any legitimacy to that claim.

@Nat Gertler
Thanks for that clarification.

Steven R. Stahl

March 16, 2010 at 10:22 am

People have claimed that the “work for hire” concept didn’t exist prior to the The Copyright Act of 1976, but they might be wrong. From the 1909 Copyright Act at http://www.copyright.gov/history/1909act.pdf

That the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author’s true name or is published anonymously or under an assumed name: Provided That inCOIno the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee 15 or licensee of the individual author) or by an employer for whom such work is made for hire. . .

SEC. 62. That in the interpretation and construction of this Act” the date of publication” shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale,.sold, or. publicly distributed by the proprietor of the copyright or under his authority, and the word” author” shall include an employer in the case of works made for hire.

Marvel presumably has some documentation supporting its claim that Kirby’s material was work for hire, or they wouldn’t have a case.

SRS

>> Paging Kurt Busiek! Paging mister Kurt Busiek! Please pick up a white courtesy phone at your earliest convenience! >>

Can someone just link back to the previous threads? Seeing people declaring that the law is what they want to imagine it is because they’re scared the Marvel Universe might be changed somehow so they’ll declare one set of people who want to profit off Jack Kirby’s work evil and money-grubbing while the other set of people who want to profit off Jack Kirby’s work are the saintly guardians of their unraped childhood, and never mind what the law actually says or what Kirby wanted, doesn’t make me want to type the same corrections all over again.

kdb

@TonyJazz: “Thad is a really nice guy. (great to see that he thinks the industry is thriving…. hope it is)”

Also not what I said. I said MARVEL is thriving.

It’s well-established at this point that the comics industry is seen as an R&D branch for movies. I see the comics industry as getting more insular and more incestuous, and I see that as a bad thing. But I also acknowledge that the companies who own the characters are worth a hell of a lot of money due to the blockbuster movies they’re putting out.

@Kurt Busiek: “Can someone just link back to the previous threads?”

I’m considering just throwing together an FAQ-style boilerplate of knee-jerk responses and the actual facts of the case and preemptively copy-pasting it every time a new article on the subject crops up.

Not that it would accomplish anything. Hey look, it’s another guy claiming the Kirby heirs waited until after the Fantastic Four movies to try to cash in!

I was actually being funny, Kurt. But lemme see if I can do something a little more useful.

Here, I’ve used my admin powers for good and found a thread with substantive comments on this very subject. If you want to post any more in this thread, read this other one first.

http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-lawsuit/

>> Here, I’ve used my admin powers for good and found a thread with substantive comments on this very subject. If you want to post any more in this thread, read this other one first.>>

And here’s a couple more worth reading, I’d say (although, be warned, that first one has a lot of me saying a lot of the same things in the one you cite):

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

http://archives.tcj.com/aa02ss/n_marvel.html

kdb

@Thad…thank you for the explanation.

I also like your FAQ idea, but I don’t know if it would work either. I have some experience with this at my job. A lot of people (and I’ve done it too from time to time) find it easier to just fly off the handle and make snap judgments rather than doing their homework. I think I’ll read some of those threads Kurt posted as I’m intrigued by this. I also agree that these companies are interested in comics only for things like movies and games and licensed toys and such. No one really cares about the books themselves anymore. TW doesn’t really care about DC as long as TW can crank out some Batman movies and stuff. And Disney sure didn’t buy Marvel for the publishing arm of the company.

I think Nick Simmons deserves a partial creator credit for all of these characters… Hey am I right?

@geeky_monkey

Marvel said to Jack Kirby “here’s this lump of money. Now we get to keep your work for 56 years, at which point it will enter the public domain.” Jack Kirby appeared to accept this agreement (he produced the work and cashed the cheques).

The government has come and said “Marvel, we’re going to give you an extra 64 years even though you never paid for that.” IMO its perfectly right for Jack Kirby’s heirs to pipe up and say “that aint fair.” Because it aint fair IMO.

Marvel wants to keep works copyrighted for 120 years* but doesn’t want to have to pay for those extra 64 years. They want it for free. They might get away with it. They might not. But I support anyone trying to stop them.

* If we’re being completely honest, they aren’t going to get to keep these characters copyrighted for 120 years. Thanks to lobbyists copyrighted works will never, ever lose their copyrighted status within America ever again. Because anytime Mickey Mouse gets even close to entering the pubic domain, Disney bribes Congress into extending copyright. But hey, that’s only if we’re actually being honest.

@Steven R. Stahl

Regardless of whether or not Marvel has a case, of course they’re going to claim they do and fight the Kirby estate tooth and nail. That’s how lawyers work. Because win or lose, the Marvel lawyers get paid. What do they care if Marvel wins or not? If Marvel can’t afford them anymore, there are plenty of people who want to sue or are getting sued.

>> The government has come and said “Marvel, we’re going to give you an extra 64 years even though you never paid for that.” IMO its perfectly right for Jack Kirby’s heirs to pipe up and say “that aint fair.” Because it aint fair IMO.>>

Not only that, but when the government came and said, “Hey, now companies can own a copyright for an extra 64 years,” they added a bit saying “…unless the creator (or the creator’s heirs) say they want it back.”

That kind of reversion is part of the law too, just as much as the copyright extension is.

>> Because anytime Mickey Mouse gets even close to entering the pubic domain, Disney bribes Congress into extending copyright. But hey, that’s only if we’re actually being honest. >>

I wonder if there might be a solution that involves a new form, a hybrid of copyright and trademark for a certain class of IP, so it has a “use it or lose it” expiration, one that would allow Disney to keep Mickey for as long as they’re actively using him, but would allow inactive properties to lapse. Maybe a life-plus copyright for individuals, but a renewable copyright (like the old system, but without limitation) for corporations.

There are probably serious problems with that; I haven’t thought it through. But if Disney’s going to keep making sure they own Mickey, it would be nice if there was a way that they weren’t extending all other copyrights along with it…

kdb

@Jason: no, it wouldn’t stop people from making the same ill-informed knee-jerk comments. I just like to think it would save me time and aggravation by being able to say “See point #3 in my earlier post.”

(On the subject of jobs: I work in IT. If I had a nickel for every time I’d said “Have you tried rebooting?” — to the SAME PERSON –…)

Just a quick note: we’re not, under the current law, talking 120 years here. The 120 years limit is 120 years after creation, but limited to 95 years after publication. So if Marvel has some Kirby issue sitting in their file drawers which has never seen print, then yes, the 120 years becomes relevant…. but that’s not the material at hand.

“I’m considering just throwing together an FAQ-style boilerplate of knee-jerk responses and the actual facts of the case and preemptively copy-pasting it every time a new article on the subject crops up.”

Well, I went ahead and did it; here’s a draft.

Anybody want to look it over and correct me if I have any of the facts (dates, details, etc.) wrong? Or if there’s wonky formatting from copy-pasting HTML? (Hell, can I actually just USE HTML tags here? I notice italics in Nat’s last post.) Or just suggestions to tone down the snark or cut some sections (it IS tl;dr bait on a post which other people are already unlikely to read before they post knee-jerk responses)?

Thad Boyd’s Preemptive Response to Comments We Are Definitely Going to See in This Thread

1.”Kirby’s heirs didn’t do the work, Kirby himself did! Therefore, they don’t deserve any money for it!”

Yes, that money should go to the people who actually did the work. Like Disney. Who could forget Bob Iger’s classic run on Fantastic Four?

Snark aside, there’s a valid point to the argument that Kirby’s heirs shouldn’t get the rights. I personally believe that copyright law lasts far too long and these characters shouldn’t belong to Kirby’s heirs OR Disney/Marvel at this point, and should be in the public domain. But until that day comes, can we at least acknowledge that Bob Iger didn’t contribute any more to the development of these characters than Kirby’s heirs did? And that, if Kirby had made more money in his lifetime, he would have left it to his children?

2.”Isn’t it convenient how Kirby’s heirs waited until there were successful film franchises based on his work before they asked for the rights back? If it’s so important to them, why didn’t they do this years ago?”

Because they couldn’t. Copyright transfers can’t be terminated until 56 years after the property’s creation.

3.”The Kirby kids should just get jobs!”

The youngest of the Kirby “kids” was born in 1960. Do you really think they’ve all just been sitting around, unemployed, for the past several decades, waiting for the moment when they could try and get Dad’s copyrights back?

4.”It was work for hire, so Kirby never had any claim to the rights.”

No, it wasn’t. There was no work-for-hire contract. Jack Kirby was a freelancer, and therefore entitled to his share in his creations.

5.”Kirby was an employee of Marvel, so he never had any claim to the rights.”

No, he wasn’t. There was no employment contract. Jack Kirby was a freelancer, and therefore entitled to his share in his creations.

6.”But he KNEW it was work for hire, because that’s just how things were DONE in those days.”

The law does not recognize “just how things were done”, it recognizes contracts. If Kirby did not sign a work-for-hire contract, BEFORE the work was produced, then it was not work-for-hire.

7.”This will destroy Marvel Comics and all my beloved characters!”

Yes, just like ten years ago when Jerry Siegel’s heirs got their half of the Superman rights back, and now there are no Superman comics anymore. Wait, what?

Most of Kirby’s characters were co-created with Stan Lee. Stan has already agreed not to seek termination of copyright transfer (presumably because Marvel gave him a much, much better deal than Kirby), so that means Marvel will keep a 50% stake in them no matter what. The Kirbys will not be given editorial control and will not have veto power over Marvel’s decisions; all they get is royalty payments — which, incidentally, Jack never got from Marvel.

And that’s relevant here: stuff like this doesn’t happen in a vacuum. It’s too late for Jack or Jerry to get their due, but these legal battles have an impact on still-living creators — chiefly, publishers will give better deals to their talent in order to keep them happy and avoid future lawsuits. Every time a writer or artist gets a royalty check from Marvel or DC, he has guys like Siegel and Kirby — and their heirs — to thank for fighting that fight.

8.”I work hard at my job, and I don’t expect an ownership stake in my work.”

Unless you were doing freelance work in the comics industry prior to 1976, your job is not analogous to Jack Kirby’s job, your agreement with the company you work for is not the same as Jack’s agreement with the company he worked for, and your heirs’ claim to the work you do is not equivalent to Jack’s heirs’ claim to the work he did.

9.”So if I built a house –”

Copyrights are not houses.

10.”So if I bought a house –”

Copyrights are not houses.

11.”So if I sold my house –”

Copyrights are not houses.

12.”So if I filed for a patent –”

Getting closer, but copyrights are not patents, either.

13.”Marvel lived up to its end of the bargain and doesn’t owe Jack anything.”

Even assuming this is true (and I think the King would have something to say about that if he were still with us), you could just as easily frame this as “Kirby lived up to his end of the bargain and his heirs don’t owe Marvel anything.” Marvel got sole ownership of the copyrights for 56 years, which is exactly what Jack agreed to. That agreement is about to expire. What you’re suggesting is that Marvel should automatically get to keep the copyrights for 29 more years than Kirby ever agreed to, in exchange for nothing.

14.”This is an insult to Jack’s memory! He would have wanted all the money to go to Marvel, not his family!”

Have you ever noticed how most people on the Internet would rather crank out an ill-informed, knee-jerk response than spend the same amount of time using Google to find out whether they’re actually right or not?

Leaving aside the question of how many people would REALLY rather see the profits from their work go to the company they work for than their children, Kirby’s relationship with Marvel is a matter of public record, and it wasn’t a positive one. He did not feel that he received either the compensation or the credit that he deserved.

15.”If it was so bad, why did he keep working there?”

He actually quit, on several occasions, due to disputes with the company: once in the 1940′s, again in the 1960′s, and finally for good in the 1970′s.

16.”If it was so bad, why did he keep coming back?”

He came back in the 1950′s because the market was crashing and many of the other publishers were going out of business. He came back in the 1970′s because he had been offered a better deal than he’d had before — that was the point at which he sold his rights, though it bears repeating that this was prior to 1976 and the sale would have expired at 56 years from the date of each character’s creation.

17.”Jack Kirby didn’t create anything; all he did was design costumes for characters Stan Lee came up with.”

Have you ever noticed how most people on the Internet would rather crank out an ill-informed, knee-jerk response than spend the same amount of time using Google to find out whether they’re actually right or not?

Even if all Kirby had ever done was design the look of characters, that would be sufficient for an ownership stake. But he did considerably more than that.

Writing at Marvel was a collaborative process. The “Marvel Method” was that Stan would float a plot outline, the artist would draw the pages, and then Stan would fill in the dialogue. Sometimes Stan’s outline was detailed, sometimes it was rough, and sometimes there was no outline at all and he wouldn’t know what was in the comic until he saw the art. In those cases he’d just write the dialogue — and even then, he would often use the artist’s dialogue suggestions.

Artists at Marvel had an active role in developing characters and stories. Kirby, Ditko, and others felt that they were not given the credit they were due, and their contributions were underplayed. The fact that you didn’t know how much Kirby did and believed all the heavy lifting was done by Lee would seem to prove that point.

18.”What about Spider-Man? Kirby didn’t create him!”

Kirby worked on an early version of Spider-Man that bore little resemblance to Ditko’s final version. I would tend to agree that his claim to Spider-Man is tenuous, but the court may decide that his heirs are entitled to some share in the copyright — probably not the 50% they’d expect for the Fantastic Four, but some smaller portion.

I’ve seen some commenters speculate that the Kirbys don’t expect to win the Spider-Man rights but are asking for them as a tactical maneuver — in a legal dispute, it’s good practice to ask for more than you want, wait for a counter-offer, and negotiate from there. This seems plausible, but Kirby DID claim that he had co-created Spider-Man.

19.”This is unethical!”

Ethics are personal and subjective. I think it’s unethical for a company to pocket billions of dollars on the back of a man it never paid more than a modest page rate, 15 years after his death. You, presumably, believe it’s unethical for a dead artist’s next-of-kin to try to turn a profit from characters he willingly sold off 40 years ago. We can agree to disagree on the ethics of the situation.

The law, on the other hand, is much less ambiguous. When Jack Kirby sold his rights in 1972, he did so under a copyright law that stated they would go into the public domain starting in 2014. When Congress changed that law in 1976, it changed the terms of the agreements Jack and others had signed. As such, the new law included an escape clause for anyone who had sold his copyright under the old law: he — or, in the very likely event that he didn’t live long enough, his heirs — could terminate the transfer when the original expiration date came up.

Whether you think the law is ethical or not, it’s the law, and it’s not being disputed in this case. If Kirby’s work was not for-hire, and he didn’t sign any contracts giving his characters away BEFORE he actually created them, then he owned a portion of their copyrights, and his heirs are legally entitled to reclaim that portion.

The size of the portion, and that “if”, are the only legal points in question here. Did Kirby sign any work-for-hire contracts? His heirs contend that he didn’t, and will attempt to make that case in court. And if Marvel fails to produce any contracts, and simply makes the argument that that’s the way things were in those days, that’s going to make for a pretty weak case.

I grant permission for anybody to reuse this post, in whole or in part, so long as they grant attribution. And don’t go nuts with that “or in part” part; no selectively excerpting partial sentences to make it seem like I meant the opposite of what I did.

And, for further reading, check out the following links, which have much more thorough rundowns of what copyright law says, why it says it, and how it specifically applies in the Kirby case:

•http://archives.tcj.com/aa02ss/n_marvel.html — The Comics Journal reviews Kirby’s 1980′s battle with Marvel to get his original art back
•http://pwbeat.publishersweekly.com/blog/2009/09/21/kirby-family-files-for-copyright-reassignment/ — a Publishers Weekly article on the subject from September, with some very good posts by Kurt Busiek and Nat Gertler in the comments section
•http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-lawsuit/ — a Kevin Melrose article on the subject from January, with some very good posts by himself and Kurt Busiek in the comments section

Thad:

Good effort. My not-a-lawyer self suggests that you may want to check yourself on a few specific points.

Item 2, “Copyright transfers can’t be terminated until 56 years after the property’s creation.” – I’d add “from that era” after “transfers” (transfers of copyright after 1978 can be terminated after 35 years), and add a note that there’s only a specific window of time when one can file for the termination – they couldn’t have filed a decade back for the termination to take place now.

Item 6 seems to be grounded in the 1976 copyright law and its allowance for WFH in certain freelance situations depending on a previous written agreement. I don’t think you can apply it to the material at hand.

I think you have the year wrong for item 8; while the law was passed in 1976, I believe most of its provisions didn’t take effect until 1978. Ditto for item 16.

I’m not sure that the “not a house” statements will have much effect unless you say -how- it’s unlike a house.

I’d be cautious in referring to the people who can recapture the rights as his “heirs”; if I recall correctly, the law does not allow the copyright holder to designate who can recapture the rights in the event of his death. So even if Jack had bequeathed everything he had to me, I would not be able to recapture these rights; those rights flow to his relatives. One might view them as legal heirs, I suppose, by dint of getting these rights.

I suspect the case will no turn so much on whether Kirby signed WFH documents as it will on whether Kirby qualified as an “employee ” as the term was used in the copyright law at the time. (The defense has already made some statements that seem to invoke Lin-brook Builders v. Gertler in this regard.)

Thanks for the suggestions.

“I think you have the year wrong for item 8; while the law was passed in 1976, I believe most of its provisions didn’t take effect until 1978. Ditto for item 16.”

Ha, that’s funny — I had originally put “1978″ and then “fixed” it. I’ll change it back.

“if I recall correctly, the law does not allow the copyright holder to designate who can recapture the rights in the event of his death. So even if Jack had bequeathed everything he had to me, I would not be able to recapture these rights; those rights flow to his relatives. One might view them as legal heirs, I suppose, by dint of getting these rights.”

I’ll look it up. I believe the original language stated that only spouses and children could claim rights, but that has changed since — which is why Shuster’s next of kin are only now seeking termination on his half of the Superman rights.

As for the others — I might add them in and might not. Like I say, I’m looking for ways to shorten the thing, not lengthen it, but I want to be thorough too.

Hrm, found some stuff at http://www.copyright.gov/title17/92chap2.html#203 . It appears only to refer to copyright law AFTER 1978; however, I need to correct my piece since you CAN terminate post-1977 copyright transfers. (Relevant given Peter Laird’s recent sale of the TMNT to Nickelodeon — and Kevin Eastman’s prior sale of his half to Laird. I suspect that, should they or their heirs decide on termination, the case(s) will be much cleaner, as their work was unambiguously not-for-hire.)

It DOES define eligible heirs as spouse, children, grandchildren, executor, administrator, personal representative, or trustee, and I’m guessing this likely applies to the pre-1978 copyrights as well. Which would mean Shuster’s next-of-kin are acting in executor/trustee capacity? Not sure. Still, I think I’ll throw a “statutory heirs” in on #19.

I’ll probably leave the “copyrights aren’t houses” bit without elaboration. Frankly I think the differences between them should be obvious, but I’m sure somebody will argue. I may change my mind and update later.

Now, going to screw around with HTML to see what the comments section will handle, then probably edit the draft one more time and put it up on my blog.

italic with em tag
italic with i tag
bold with strong tag
bold with b tag
Numbered
list
Link
Paragraph

Think that’s everything I used in the HTML version.

Damnation, the lack of support for the ordered list tag pretty much rules out a straight dump of HTML version. Since I really would like the thing to be numbered.

Don’t suppose there are any alternate tags for a numbered list?

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