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Disney joins Marvel in copyright fight with Kirby family

The X-Men #1

The X-Men #1

The Walt Disney Co. has waded into the legal battle over many of Marvel’s best-known characters, filing a memo in support of the publisher’s efforts to dismiss copyright claims by the heirs of Jack Kirby.

Marvel sued the Kirby children in January, seeking to invalidate notices sent almost four months earlier to terminate copyrights to such characters as the Avengers, the Fantastic Four, Thor, the Incredible Hulk, the X-Men, Iron Man and Spider-Man. The Kirby family responded in March by suing Marvel and its new parent company Disney.

In the Disney memo, filed on Monday, the media giant asks the court to delay to delay ordering an accounting of profits from the properties Kirby created or co-created, arguing that the copyright claims of his heirs haven’t been validated. Disney also seeks to dismiss the Kirby family’s claims about unreturned original artwork and lack of credit in The Incredible Hulk and X-Men Origins: Wolverine films.

You can read the full complaint at THR, Esq.

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Give the King back his creations!

“Give the King back his creations!”

Sorry, but as much as admire and respect Jack Kirby, his creations belong to Marvel Comics/Disney. But the heirs should get any outstanding artwork not yet sent back, and it would be wonderful for Kirby to get the recognition he deserves (with some cash) in any movie that is based on his and Stan Lee’s creations.

Why?
There are many interveiws of him, saying it was just freelance work. It wasn’t until the 80′s when merchinding of Marvel charecters picked up that he changed his tone.

** 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 1978, 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 1978 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 (effective in 1978), 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 statutory 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

“Give the King back his creations!”

I would agree with you 100% if this was Jack Kirby and not his kids. Jack Kirby was instrumental in a bunch of Marvel’s creations, his children not so much.

That being said any Marvel movie should start with created by … I’m pretty sure Batman movies have Bob Kane credited fairly well, sometimes in the beginning credits. Iron Man 2 had a “special thanks” credit that I believe included Kirby and Lee, but it was super tiny at the end, after the stunt team.

So exactly how much did Jack have to do with the creation of Wolverine, Sabretooth,, Gambit and Deadpool exactly?

Sorry, but while there is validity to the Siegel and Shuster case, this is just a cash grab. Jack’s work for Marvel was work for hire, and I don’t see how anyone could argue otherwise. Want to claim that he should have gotten a better tastes of the proceeds, I *might* listen, but it’s not like all the OTHER artists were getting their art back, and they were picking out Jack for inferior treatment.

…jeez, not so preemptive. In the time it took me to copy and paste that post, two people who could stand to read it chimed in.

@Hagan: “Why?
There are many interveiws of him, saying it was just freelance work.”

You just answered your own question. The fact that Kirby was not a Marvel employee MEANS that his children are entitled to reclaim his copyrights.

“It wasn’t until the 80′s when merchinding of Marvel charecters picked up that he changed his tone.”

Yeah, he didn’t complain about how Marvel was exploiting him at ALL when he quit the company and went to work for DC in 1969.

thad rules.

‘I’m pretty sure Batman movies have Bob Kane credited fairly well, sometimes in the beginning credits.”
Bob Kane negitiated a very good deal back in the day that included permanent creators’ credit and a nice taste of the gate moving forward. He saw what happened to Jerry and Joe and made sure it didn’t happen to him.

“Iron Man 2 had a “special thanks” credit that I believe included Kirby and Lee”

That’s because they didn’t legally have to credit them, but the film producers added that as a tip of the hat. It also included Gene Colan and Don Heck IIRC.

This is in contrast to the very clear “created by Lee and Ditko” credits on the Spider-Man movies and cartoon, as those were awarded as a preliminary strike against a lawsuit. Note that doesn’t mean Stan and Steve OWN Spider-Man, just that they get proper credit.

I’d be all for seeing Jack get such credit for all the characters he had a solid hand in. Heck, you could do worse than have that be true for ALL creations, but not everybody negotiated those deals back in the day.

@Vinnie Bartilucci: “So exactly how much did Jack have to do with the creation of Wolverine, Sabretooth,, Gambit and Deadpool exactly?”

Well, he co-created the X-Men. How much he’s entitled to from those derivative characters is for the lawyers and judges to decide. Wolverine WAS in a movie last year whose title started with “X-Men”.

“Jack’s work for Marvel was work for hire, and I don’t see how anyone could argue otherwise. ”

It’s easy: Jack’s work for Marvel wasn’t work for hire. There was no work-for-hire contract. If there were, Marvel would have produced it by now and this case would be open and shut.

@Thad – I played right into your hand didn’t I?

I do agree that copyright is messed up in general, but it does really upset me that F. Scott Fitzgerald’s daughter makes something like half a million dollars each year on the Great Gatsby for only being his daughter. As a fan of a lot of the characters Kirby helped create, it’s the idea that these types of lawsuits can cause companies to do things with characters they wouldn’t normally.

I would also agree that the best possible course would be that some of these characters should be public domain.

“That’s because they didn’t legally have to credit them, but the film producers added that as a tip of the hat. It also included Gene Colan and Don Heck IIRC.”

I think it was actually Larry Lieber (who scripted the early Iron Man stories), not Gene Colan. But you’re right, there were four creators credited.

Marvel/Disney should ask Phoenix Wright to defend them!

Anyways, I liked Thad’s post. Now I care even less with the result (now that I now Marvel won’t lose their stuff).

” The fact that Kirby was not a Marvel employee MEANS that his children are entitled to reclaim his copyrights.”

The what now?

Freelance, employed, what have you, work for hire is work for hire. He was doing the work FOR Marvel, not thinking it up beforehand and dropping it in. What, do you think he had the idea for the Silver Surfer years ago and just then found a way to use it?

Thad..

I think you’ve written the definitive response to this issue( thank you for being informed and rational!)

I think the argument that’s being made is that because neither parties, Marvel or Jack Kirby, signed any formal contracts when certain properties were created, the you can argue there is a default owner of those properties between the two entities.

I think that Kirby’s heirs have every right to petition for compensation that was never rendered to Jack Kirby while he was alive.

And everyone that giving, in my opinion, knee jerk reactions to this issue. Remember any ruling also affects you and the way that you do business. Do you feel that someone should be allowed by make money on creations that you participated in( even if they gave you minimal compensation, but rendered no formal agreement)

Don’t think of this as an emotional battle, but think of it as a way to make our countries law fair and equitable.. There is a lot of gray area, and it’s important that we make careful consideration of the lasting impact of such decisions.

later,

riq.

“I’m pretty sure Batman movies have Bob Kane credited fairly well, sometimes in the beginning credits.”

Too bad Bill Finger is consistently left out despite being a co-creator.

@Thad – Also something to note, my view points are personal and I don’t disagree with any of the points you make when it comes to the case itself. It’ll be especially interesting how this plays out now that Disney has stepped into the game. In theory this could get resolved faster because they could throw money to the Kirby family to appease them and get them to drop the case.

@Vinnie Bartilucci: “Freelance, employed, what have you, work for hire is work for hire.”

This is true. But in the absence of a work-for-hire contract, freelance work is not work for hire.

“He was doing the work FOR Marvel,”

Yes, but Marvel was his customer, not his employer. An employment contract would have implied corporate ownership; freelancing, on the other hand, means he was selling his work to them. World of difference.

“not thinking it up beforehand and dropping it in. What, do you think he had the idea for the Silver Surfer years ago and just then found a way to use it?”

Maybe not years before, but yes, I think that’s exactly what happened. I think he had an idea for a character and THEN decided to use him in Fantastic Four. I think that happened often; he came up with something new and then decided to fold it into one of his existing books.

There are numerous anecdotes of Kirby creating characters and deciding not to use them in his Marvel work; some of them showed up later in his DC work. (Which means, incidentally, that if his heirs have evidence that he created them prior to working at DC, we can expect a case with DC in just a few years.)

@Jon Stump: “In theory this could get resolved faster because they could throw money to the Kirby family to appease them and get them to drop the case.”

That’s the most likely result; it’s just a question of how far they let it proceed before they settle. Siegel and Shuster agreed to an annual stipend plus a creator credit back in the 1970′s, but I’d expect the Kirbys to demand royalties at the least.

Which, really, is what they’d be getting with the 50% ownership — it’s not likely that they’d shop the characters around to other publishers.

Thad, YOU ROCK!! God bless you, my friend. It’s a damn shame there aren’t more people like you in comics fandom.

@Thad: “….freelancing, on the other hand, means he was selling his work to them.”

Sooo…that means they own it. Right? If he sold it to them then they own it. Unless “selling” means something I did not realize it did.

Actually Thad,

When Kirby went to DC in ’69 it was because of a dispute with Marvel.
When he went to DC, they actually took the steps to show respect to him and gave him a stake in the work he did for them. That is when he created all of the 4th world characters. He got some royalties beyond his pay.

A majority of his early work for Marvel was actually out of his and Joe Simon’s Studio. They employed many Artists there over the years who drew books that were created there and commisioned by Timely/Marvel & DC.
These Artists include Will Eisner and Carmine Infantino just to name a couple.
In the 60′s, Kirby worked with Lee but not from the Marvel offices. He worked from his home.
Additionally, Its a well documented fact that it was actually Kirby who provided a lotbut not all of the dialogue that was used in his books. He would write out full stories in the gutters of the pages.
Look at any issue of Jack Kirby Collector to see this.

The point is this, the very informed and lengthy post above is correct in this situation.
Additionally the Kirby Heirs will not be taking the characters from Marvel. What would be the point of that? Its not like they are set up with a world wide publishing and multimedia company.
They will Get part ownership of the characters which will allow them to recieve compensation for the use of the characters.

Regarding the Wolverine film; Kirby did not create Wolverine. However, he did create characters that were featured in cameo roles in the film. So in essense, the use of those characters was for profit so it is fitting to have it listed.

@Brad: It means they own it until 56 years after creation. Under the law of the day, that would have been the expiration date of the copyright; under modern copyright law, it’s the date when his statutory heirs have the right to reclaim it.

Vinnie—to flesh out Thad’s answer a bit.

There are two ways that a work can legally have the status of work made for hire. The first is that the creator was an employee working within the scope of his employment; this route looks not only at whether or not there was a technical “employment” contract, but also at a mess of factors about how the creation was done. It’s very fact intensive, about where it was made, using whose supplies, how much creative input each party had, etc.

The second is that the parties have signed a contract expressly calling it work made for hire ahead of time. Nowadays, “ahead of time” pretty clearly means before (or at least contemporaneous with) creation, since that’s when copyright first attaches. In the older Copyright Act (pre-1978) the standard might have been somewhat different, since copyright attached on publication, rather than creation. I’m not saying definitively that the standard was different, I just haven’t read the standard for older work made for hire law.

My impression is that express work made for hire contracts weren’t quite common yet in the Kirby days, especially since the right to terminate wasn’t part of the law yet, but my main point is that a whole lot of small factual points can be part of a work made for hire analysis, so it’s often unwise to jump to any conclusion without a lot of historical facts.

At the same time, Thad, you might be a bit too fast to close the issue because there was no employment contract. Agency law gets used to infer employment in the absence of a contract that expressly lays it out; as a contrast to the second work made for hire category, which really can’t be invoked without particular contract language written down.

As a couple general side-notes, to add to the early pretty comprehensive post, it’s important to realize that Kirby’s heirs aren’t just suing out of the blue. Per statute, first a letter(s) was sent notifying Marvel of the termination of a prior copyright grant(s) to take effect on a particular day(s). That’s not depriving Marvel of its rights, it’s just asserting a special termination right that Congress added to the law in 1978. Assuming certain conditions are met, Kirby’s heirs specifically have the right to terminate prior grants; Congress intended an artist or his heirs to be able to reclaim works whose value had already been explored or cultivated. It was replacing the prior system (which does still apply to older works) in which there were two separate terms of copyright, and after the first expired, the artist theoretically got the second term.

It’s also worth mentioning that the termination right exists even if there were agreements to the contrary. So, even if you agree not to terminate, it seems like you still can. As opposed to a legitimate work made for hire contract, which actually means you never get the right since you’re legally not considered the author/artist. So the idea that companies might have better royalty structures to keep artists happy is interesting, but I’m not sure how likely it is, since the royalties couldn’t really be attached to “I won’t terminate” contracts. Since they’d really just be in the hopes that creators would be too happy to decide to write a letter reclaiming their works…I’m a bit skeptical they’d happen. But it remains to be seen.

The effect that these terminations will have on comics today and derivative works generally might still be an open question, to a degree, because Marvel/Disney is allowed to keep using derivatives that already exist, but not make new derivatives. I think we haven’t yet seen exactly how courts will apply this to comic book character reclamations. (I’m not a lawyer, but this is kind of my pet topic at the moment.)

Brad—

But as mentioned above, Congress specifically added a right that allows creators to undo that sale and reclaim their copyrights. That’s to be distinguished from work made for hire, where the right conditions have to be in place before (or at least contemporaneously), and the law then recognizes the employer/commissioner as the legal author for all purposes, meaning there’s no way to reclaim it. So Thad isn’t saying Kirby didn’t sell it, or that Marvel doesn’t own it right now, but that Congress added a special right for authors/artists to terminate that grant/sell/ownership and reclaim their old works within certain timeframes.

@Mike W: I was given to understand some of his Fourth World characters (Black Racer is the one that springs to mind) before he went to DC. If that’s true, his children can reclaim copyright on them a few years down the road.

I’ll grant my long post is pretty Marvel-centric, but yeah, since this is a Marvel case and Jack’s best known for his Marvel work, I think that’s a reasonable focus.

Kirby heirs can get the f. out. Those characters belong to Marvel. Period.

Stan Lee’s interview on the Rise of the Silver Surfer DVD pretty definitively states that the Surfer was ALL Jack’s creation, as he was nowhere in Stan’s plot. He stated that Jack thought a being as powerful as Galactus should have a herald, and so he drew him into the story. To which Stan’s response was “Who is THIS guy?”

As to Jack Kirby’s kids getting the rights, why not? I am sure he’d rather his family enjoy the fruits of his labor rather than Disney.

I still think this whole suit was thought up by Disney as a way to invalidate the movie contracts with Sony and Fox as part of their Marvel Acquisition plan. Because if there is suddenly a new co-owner of those properties, any previous licensing contracts get thrown out. And this is all legal theatre to lull Sony and Fox until it is too late for them to stop their losing the movie rights to Spider-Man, the X-Men and the Fantastic Four. Which is why the Kirby’s sued for Spider-Man. All so Disney/Marvel can plead no-contest once it finally goes to court in a couple of years. Then they reveal a deal they made with the Kirby’s for their portion of the rights shortly after those contracts are invalidated and then elect to keep the rights for themselves.

Hypothetically speaking, if JK’s kids “won” 50% ownership and Stan/Marvel has 50% ownership, what could potentially happen if say JK’s kids WANTED say the FF to be published or licensed somewhere else other than Marvel????

@David: Thanks for the thoughtful post and elaboration on my earlier post. I know it’s not exhaustive, I just don’t want to make it any longer.

“At the same time, Thad, you might be a bit too fast to close the issue because there was no employment contract. Agency law gets used to infer employment in the absence of a contract that expressly lays it out; as a contrast to the second work made for hire category, which really can’t be invoked without particular contract language written down.”

Yes, but I think it’s pretty open-and-shut in Kirby’s case — he didn’t earn a salary or benefits, he didn’t physically work at Marvel, his office and his art supplies were his own.

“So the idea that companies might have better royalty structures to keep artists happy is interesting, but I’m not sure how likely it is, since the royalties couldn’t really be attached to “I won’t terminate” contracts. Since they’d really just be in the hopes that creators would be too happy to decide to write a letter reclaiming their works…I’m a bit skeptical they’d happen. But it remains to be seen.”

Yeah, it hasn’t been tested yet for the most part, but I think Stan Lee’s a good (if extreme) example — he won’t request termination because it wouldn’t be worth it for him. It would be a legal nightmare, and right now he’s in a comfortable position, with plenty of money and proper recognition for the work he’s done.

A lot of modern creators are ineligible for copyright reclamation, of course, because explicit work-for-hire contracts have been standard for decades now. On the other hand, if Eastman and Laird’s children want to reclaim the Teenage Mutant Ninja Turtles in 2040, they have that option.

@CapCanuk: “Hypothetically speaking, if JK’s kids “won” 50% ownership and Stan/Marvel has 50% ownership, what could potentially happen if say JK’s kids WANTED say the FF to be published or licensed somewhere else other than Marvel????”

The biggest hurdle would be trademarks. The Kirby heirs would co-own the characters themselves, but not their names, not the “Fantastic Four” name, and none of the characters from the post-Kirby era — they’re eligible to claim Franklin in 2024, for example, but they’ll never have any claim to Valeria.

Essentially, it’s possible, but they’d have to change some names, and probably some designs, wouldn’t be eligible to use any characters Kirby didn’t create, would still have to find a willing publisher, and basically the whole thing would be a legal mess best avoided. It’s much more likely they’d just let Marvel keep doing what it’s doing and share in the profits.

I’ve begun to wonder more and more if maybe the best outcome is for all such characters to be allowed to enter the public domain.

Look,

When Disney’s involved, words like ‘fair” and “rational” are not.

Copyright extensions exist because of the House of Mouse.

You just can’t legitimately claim their interests are more important than family heirs or creators.

All you can do is debate the law, and Disney will out-debate anyone on that; their attorneys assisted in
drafting the legislation.

And I will always disagree with anyone who claims work-for-hire OR original authorship copyrights should extend beyond fifty years (from date of creation, period.)

The heirs should get a decent amount of money and Marvel should keep publishing everything as usual. Beyond that and as long as I keep getting my comics, I don’t care. :p

DetectiveDupin

May 27, 2010 at 11:17 am

Well, they’re fucked.

@Amanda: You haven’t done me the courtesy of reading my post, so I won’t do you the courtesy of responding with something politer than “Shut up, the grownups are talking.”

@Matthew E: Yeah, that’s how I feel about it. I think copyright term should be much shorter than it is.

That said, even if there comes a day when copyright is reduced to, say, 50 years, these cases are useful as precedent and a way for bringing attention to inequities in the comics industry. Siegel and Shuster spent decades fighting just to get a creator credit, and think how far we’ve come as a result. Still a long way to go, of course, and cases like these (and the continuing Siegel proceedings) continue to make progress.

Can we say, “little girls with no apparent understanding of copyright law should get the f. out,” or
are we only allowed to slander people who aren’t here to defend their positions?

Great post Thad!

Steven R. Stahl

May 27, 2010 at 11:33 am

Thad, nothing that’s being discussed in this thread relates to the actual content of the memo. The memo made very specific assertions regarding the claim about Kirby’s artwork and violations of the Lanham Act. Discussing the effects of Marvel’s bankruptcy and reorganization, as well as a statute of limitations, on the claim to Kirby’s artwork might be dull and beyond people who lack law degrees, but those legalistic subjects are what the memo was about. Arguing about whether Marvel owes something or anything to the estate is just online chatter.

SRS

@Mike W.: Regarding Kirby’s move to DC in ’69…he did receive royalties on the Fourth World characters, but this came several years later, in the 1980′s, under Jeanette Khan’s tenure as DC president.

@Thad: Brilliant, informed responses. Thank you for setting the record straight on many of the issues involved, and attempting to inform the woefully ignorant.

Thad—

I don’t know the history for sure, especially on factors like how Marvel treated Kirby on its taxes back in the day, which I know courts have sometimes put emphasis on, if it seems that the companies are trying to have it both ways with how the authors are classified. And offhand, I also don’t know what amount of input Marvel tried to have in the character creation progress, either before or after the first attempt. But sure, I’m willing to agree that most of the factors likely weigh for Kirby, and probably tend to weigh for the artist particularly for older creations and for character debuts. I only wanted to bring it up for completeness, since Vinnie was taking issue with (or maybe confused about, I’m not sure) the idea that Kirby’s being a freelancer made him immune to work made for hire. Figured he might accept the work made for hire limits easier if he knew that it didn’t absolutely hang on the employment contract. But, again, I agree that at a glance I’d imagine many of the factors weigh for Kirby, and I get the inclination not to delve too deeply into the agency stuff initially.

On the royalty and benefits idea, the Stan Lee example is particularly interesting. I haven’t looked at this particular point recently, but he’d seem to be a joint author with Kirby on a bunch of stuff, especially in light of the analysis from the original Gaiman v. McFarlane case about character authorship in comics. And the language from the Copyright Act indicates to me that a successful Kirby termination would terminate the entire grant, even if he and Lee had signed the grant together. So Lee might have the best of both worlds, getting benefits for now and also having Kirby’s heirs do most of the legwork for him if he ever did want to assert termination. He’d just have to piggyback on Kirby’s heirs. But like I said, I haven’t looked at this issue recently, and I’m not looking at the law right this moment, so I may just be forgetting some language from the Copyright Act.

As for modern creators, the companies have definitely made work made for hire contracts the industry standard. But then again, I’m still curious whether we’ll start seeing post-1977 authors challenging those contracts once their works’d be eligible for termination. Has there been any caselaw interpreting whether comic book authorship fits within one of the statutory categories for work made for hire contracts? And for others reading this: a contract can only specify that a work is work made for hire if the work fits into one of a set of categories that the statute lists. Some can arguably apply to comic books, but I don’t know that any of them are legal slam dunks, so I do kind of expect we’ll see such a case one day.

@spidarwin: “Copyright extensions exist because of the House of Mouse.”

Well, the 1998 extension, anyway. I’m not sure how much Disney had to do with the ’76 version, which is really what’s at issue here.

@Steven R. Stahl: Fair enough, but I think it’s reasonable to discuss the case in general — and whether it’s reasonable or not, I knew “Kirby heirs can get the f. out” posts were inevitable, so I did what I could to preempt them. It hasn’t been entirely successful, but I DO think the signal-to-noise ratio of this thread is much higher than previous discussions on the same subject.

But you’re right, most people aren’t discussing the memo. (Some are; Vinnie Bartilucci made a post defending the lack of a Kirby credit in the Wolverine movie.) I haven’t seen the memo itself (I’m writing this on my lunch hour at work and, while I can read the article, my company’s firewall has blocked the memo at the bottom), and the description both in this article and the one it links to is a little too vague for me to make a judgement. But, doing my best working from those summaries:

As far as the return of Kirby’s artwork goes, I can’t make an informed call on that — I think that ethically it should be returned, but legally? The terms of the contract Kirby signed in the 1980′s were not disclosed, so I can’t speak to whether Marvel’s met its contractual obligation or not.

On the subject of credits: Vinnie talked about the creator credit at the end of Iron Man 2, and said it was a gesture of good faith rather than a legal obligation. Since I think about it, I don’t recall seeing creator credits on X-Men and Hulk comics, so I’m not sure they were part of Kirby’s contract.

As for copyright validation: that, of course, is the core of this dispute, and that IS what we’ve been talking about: whether or not Kirby ever had a copyright claim to those characters.

@David: Interesting question. I’d thought the Wolfman case covered that, but on closer inspection the ruling actually claimed the current iteration of the characters was so significantly different to Wolfman’s version that he couldn’t assert copyright — it doesn’t appear to have made a call one way or the other on whether he could have if that weren’t the case.

Wonder if that could be used as precedent. The Fantastic Four and Silver Surfer are pretty similar to their original incarnations, the X-Men not so much, and of course Spider-Man is unrecognizable from Kirby’s version. Hulk — well, at the moment he’s red and isn’t Bruce Banner. We’ll see if he makes it into the Avengers movie or not.

Of course, Superman has the same problem, and the courts are STILL hashing out what the Siegel (and, soon enough, Shuster) heirs own.

wow, quite the catfight

Excellent post, Thad.

“not thinking it up beforehand and dropping it in. What, do you think he had the idea for the Silver Surfer years ago and just then found a way to use it?”

Well, it’s on the record from Stan Lee no less that he had no idea the Silver Surfer would turn up in the Galactus storyline because they didn’t discuss the character beforehand. Jack threw him in there all on his own.

“Interesting question. I’d thought the Wolfman case covered that, but on closer inspection the ruling actually claimed the current iteration of the characters was so significantly different to Wolfman’s version that he couldn’t assert copyright — it doesn’t appear to have made a call one way or the other on whether he could have if that weren’t the case.”

Yes, the court kind of skirted the issue on copyright in that case.

figured Disney would move to try and get Kirby’s claims dismiss or at least try and keep the thing tied up till they wind up giving up due to running out of money from legal fees or appeals. even though in the end the courts are under the law going to say Kirbys heirs are entitled to jacks share of the characters he co created with Stan Lee or at least say they are owed royalties. besides if Jack had no work for hire contract signed with Marvel then Marvels claim other wise is wrong.

Marvel has a pretty good record going for itself thus far with defending/retaining its characters.

Steve Gerber vs. Marvel – undisclosed settlement reached that assigned any and all copyrights to Marvel in the 1980′s

Marv Wolfman vs. Marvel – cased ruled in favor of Marvel in 2000

Joe Simon vs. Marvel – undisclosed settlement reached that assigned any and all copyrights to Marvel in September 2003

Gary Friedrich vs. Marvel – dismissed in July 2009

Stan Lee Media vs. Marvel – dismissed in March 2010

I’m just curious to why some people are angry about copyright length. Spiderwin (and Thad mentions as a hypothetical) wants it to be fifty years. There’s no further clarification so I’m going to assume that’s a blanket statement. I can see an argument for copyright ending at the creator’s death (though I have no issue with it lasting past that). I just don’t understand the blanket fifty years proposal. If someone wrote a book when they were thirty that was wildly popular and remained in print for fifty years, why should that person suddenly stop owning his copyright when they turn 80?

I’m honestly curious as to the reasoning of this position. I’m not trying to instigate.

Well, the purpose of copyright is to reward creative contributions, and the purpose of the public domain is that those contributions become part of culture, belong to everybody, and in turn inspire other creative works. (A few works that have profited from the public domain, off the top of my head: League of Extraordinary Gentlemen, Fables, Sherlock Holmes, Robin Hood, any soundtrack that uses classical music — and of course Disney’s bevy of fairy-tale movies; more on those in a bit.)

So, from there, it just becomes a question of how to balance the two: the creator incentive and the cultural value.

I picked 50 years simply because that’s a long time. If a creator is still alive (or a corporate owner is still in business), he’s/she’s/it’s had ample time to turn a profit on the work.

That’s just my perspective, and I’m sure we can debate the relative merits back and forth. (Mick Anglo is certainly grateful that his copyright on Marvelman did not expire after 50 years, as he’s making some much-needed money from selling it to Marvel in the final years of his life.) In some industries, I’d actually argue for something much shorter than 50 years; software, for example, is ancient by the time it’s 20. (This week is the 20th anniversary of Windows 3.0.)

The reason for a hard limit instead of “life of the creator” is the latter effectively punishes people for dying young. Philip K Dick died poor, at the age of 53, but now his work has been adapted into Hollywood blockbusters; if he had lived, he would have made a considerable amount of money from those movies and willed it to his children. So the argument is that it’s unfair for them to be ineligible to receive that money just because he died young.

As for the anger at copyright length: corporate entities run, at this point, by people who had nothing to do with the creative works they own want to continue to profit off those works, at the expense of the public. It’s particularly galling in the case of Disney, which has built an empire on the public domain but balks at being asked to contribute anything to it. Disney can whine all it wants about how devastated it would be without the Mickey Mouse copyright, but it was singing a different tune when it made The Jungle Book — the very year the book’s copyright expired.

For further reading, there’s a good piece by Chris Sprigman at FindLaw called The Mouse That Ate the Public Domain.

Doesn’t current copyright law extend past the creator’s death? The article you linked to indicated that before the current extension law, copyright was life + 50 years. How does Dick’s work fall outside of that? Or after a rereading are you using that as an example of why just term of life is insufficient?

I appreciated the article that you linked to. I think that I’ve been viewing inventions and creative endeavors as property and not as public goods. The Thomas Jefferson quote is challenging to me on an individualistic level and I haven’t fully processed that.

I was already familiar with the Mickey Mouse situation, but maybe you can give me some clarity here. If Steamboat Willie had been allowed to go into the public domain, it would not have erased Disney’s trademarks on Mickey Mouse, right? So anyone could have created a cheap dvd copy of Steamboat Willie and sold it, but they wouldn’t own Mickey Mouse and couldn’t use his name as promotion. Is that correct? Would they be allowed to make derivative works of Steamboat Willie?

“@David: Interesting question. I’d thought the Wolfman case covered that, but on closer inspection the ruling actually claimed the current iteration of the characters was so significantly different to Wolfman’s version that he couldn’t assert copyright — it doesn’t appear to have made a call one way or the other on whether he could have if that weren’t the case.”

I may be slightly misreading what you mean, but I think it’d be more precise to say that Wolfman’s court held the versions Marvel initially published (rather than current iterations) were too different from Wolfman’s prior creations. I’m cautious about the wording, just because the differences between the original and the modern versions can be such a big issue already, as you alluded to in referencing Siegel. Since you’d mentioned potentially using Wolfman as precedent, just wanted to make sure we were on the same page.

My characterization would probably be that similarity between your prior versions and the granted/contracted one might determine whether you have rights as an author at all, while similarity with the current version speaks more to what the rights that you DO have are actually worth.

More generally about Wolfman, I get confused sometimes by the odd bankruptcy posture, but my reading is that the versions he gave to Marvel were too different from his prior published versions, preventing him from pulling them out of a work made for hire presumption under the 1909 Act. If anything, it sounds like their standard might have been analogous to the modern employment one, and, yeah, the court didn’t need to invoke any statutory categories of work like we have for contractual work for hire. Not 100% sure how much that synchs up with your reading, but seems to on the key points.

@Josh: “Or after a rereading are you using that as an example of why just term of life is insufficient?”

That, yes.

“If Steamboat Willie had been allowed to go into the public domain, it would not have erased Disney’s trademarks on Mickey Mouse, right? So anyone could have created a cheap dvd copy of Steamboat Willie and sold it, but they wouldn’t own Mickey Mouse and couldn’t use his name as promotion. Is that correct?”

Not exactly. I think they could use his name in the promotion, but would have to make it clear they don’t own the trademark. (There are quite a lot of perfectly-legal, although not always high-quality, collections of classic cartoons that have fallen into the public domain — Popeye, Superman, Betty Boop, etc. — that have the title printed prominently on the box but include a notice saying the works are public domain but they don’t own the characters or trademarks.)

“Would they be allowed to make derivative works of Steamboat Willie?”

Yes, including — and here’s what’s got Disney worried — new cartoons using that original version of Mickey Mouse. I think THOSE are the situations where they wouldn’t be able to use the Mickey Mouse name. (I could be mistaken on this; I get a little fuzzy where copyright and trademark start to bump up against each other, so please, somebody feel free to correct me if I’m wrong.)

(Tangentially, and adding more parentheses, I believe the article and conventional wisdom are wrong and that Steamboat Willie is not actually the first Mickey Mouse cartoon, Plane Crazy is.)

@David: Thanks for the clarification; I think you’re right.

Anyone who thinks that the big large corporation should hold the rights to something that a man did as a full-time job, sometimes with overtime – and that’s how Kirby was able to do about 10-12 pages a week – needs to get some perspective.

This article isn’t surprising at all; Disney screwed over Carl Barks, and Disney will screw over the Kirby heirs. Screw creator rights if it means the company might lose some money that it’ll probably get back through some other means anyway.

Thanks, Thad. Great Post.

A comment was made about characters being different from their original versions by kirby such as x men and spiderman

Id like to add that hulk is significantly different from when kirby started with him. In the first issues, hulk transformed at night. It wasnt until Ditko’s brief run with the character that the transformations became due to anxiety/anger/fear.

I dont know if that would ahve any impact but I’m just throwing that out there.

Marvel should and will win. Good on them.

“Marvel should and will win. Good on them.”

I notice that you don’t actually, you know, support your argument. All you’ve done is judge without actually contributing anything to the discussion. If you can explain why the big company that didn’t create all these characters and can afford to live with paying licensing rights for them should win over the family of the guy who actually created all of it so he didn’t have to live in poverty, then do so. If you can’t, then all you’ve done is make a blank statement.

Thad: Would you mind if I copy parts of your post on my blog? You said it better than I could.

Brian from Canada

May 27, 2010 at 9:05 pm

Thad:

You have it wrong. Had “Steamboat Willie” made it into the public domain, you would NOT be able to do anything with the early version of Mickey Mouse without asking for Disney’s permission, because Mickey is an ongoing property which Disney owns full out. Disney controls all versions of the character because they are the same character, the same way Marvel owns all versions of Spider-Man. You WOULD, however, be free to use parts or whole of “Steamboat Willie” in the creation of a new product — and Disney would not have a valid complaint against using that product even if it went contrary to Disney’s corporate image.

If you don’t understand what that latter sentence means, go and actually watch “Steamboat Willie.” It wasn’t until Donald Duck was created that Mickey became all good and pure. He’s semi-sadistic to some other animals, and I’ve had plenty of animation seminars where my colleagues and I (having the seen the film too many times) add crude dialogue to Mickey’s mouth… all of which would become legal as an art product if the product fell into the public domain.

You’re wrong about Stan Lee too. Stan Lee’s CONTRACT with Marvel explicitly states that he and his heirs won’t ask for the copyrights back in exchange for the rate he’s paid ($1 million/year minus up to $75k under other products). It was done SPECIFICALLY on the awareness that until this was sorted out otherwise, Stan could ask for it back and they did not want to lose that.

You’re using legal definitions for things that didn’t exist. “Work-for-hire” was not something most comic book companies concerned themselves with until much later, by which time Kirby had his vocal falling out with Marvel. Yet if you go by the spirit of the law, Marvel can argue, and quite successfully one might add, that there was an implicit understanding of contract between Mr. Kirby and Mr. Lee that the work would be produced on a monthly basis for publishing by Marvel at a rate paid per completed issue. In that case, Kirby CAN be considered an employee of Marvel because he had a contract to produce work at his own determined rate of speed.

More importantly, EVERYONE here — including you — seems to forget a key fact: that the legal definition of freelance work is that you own the work until paid for by the client. At that point, all copyright goes to the client. Otherwise, advertisers could sue every time their ad is used in a way that they don’t want, including later reproduction or referencing. And since Kirby was paid for freelance work, that definition would mean Marvel owns it. Period.

Siegel and Shuster were not freelancers. They were creators who had completed the work first and then sold the rights to publish to DC. National got the rights to make new stories, at which point they got the copyright. And the penalty Warner’s paid out to the family was based on FOREIGN revenue, not domestic, since the deal with the creators did not include royalties outside of the terrestrial USA. In other words, everything Superman in New York, DC owns, but everything in London had to be paid on.

Finally, IF Kirby’s family does win the copyrights back, then all products using those copyrights in production cease immediately until a new agreement can be reached. That’s what happened in Seigel and Shuster’s case: Warner’s signed an agreement with them immediately to keep the character an ongoing concern. But that was one family out of two when it happened, and both parties felt no wrong was being done to the character. The Kirbys may not be so nice, and judging from their complaint about movie credits, there’s a decent chance it could get messy by then.

But that’s the court to decide based on reasonable expectations of the system used given the absence of the standard framework we expect today. Not some fans based on clear rights and wrongs when we ourselves aren’t fully acquainted with all the ins-and-outs of the law.

Finally, to all: Jack Kirby deserves NO credit for X-Men Origins: Wolverine. I don’t care how much contribution he did towards the unerlying X-Men concept: in Hollywood, credit is given for a certain amount of recognized work without contest (and then it goes to the latest), and all of the credit should go to Chris Claremont, John Byrne, Fabian Nicieza and — heavens help us! — Rob Leifeld. The latter two for Deadpool. Cameos don’t count. It would be just a “special thanks to” credit at the end and that’s it.

Kirby deserves a “created by” credit on the Hulk, Iron Man, Thor, Captain America, Fantastic Four and Daredevil films. He also deserves the same type of credit for any pure X-Men film, though X2 would owe a lot more credit to Chris Claremont because it was Claremont’s story that was the basis of the script.

And — just to be thorough — a creation credit gets you NO ROYALTY! That’s right: it’s an honorific. If cash comes, it’s goodwill from the producer. The producer gets the money for getting the film made. The producers on all the Marvel movies includes the name Stan Lee because Stan Lee is, technically, the man at the head of Marvel Films. Avi Arad, who ran it, also got a production credit. Which is why Stan sued Marvel over the so-called “no profits” from Spider-Man because he was owed from the film, and Marvel mistakenly contradicted Sony’s style of Hollywood accounting.

The proper term would be “honorarium, not “honorific.”

At the end of the day, unless you are the judge hearing this case, or a lawyer who is part of the case it’s very hard for a layman to really know what is and is not right in this case.

I do know that it is not the same as the Superman issue, as Superman was a creation of Seigel and Schuster prior to being published by D.C. As such their rights as owners were established before D.C. printed the work. In the case of the X-Men and Fantastic Four, they came into being as part of an assignment with Marvel. Whether or not Kirby has a claim or more specifically his kids, has much more to do with what agreements Marvel had in place with Kirby at the time, than any intrinsic right to his creation.

The lawyers for Marvel will present what ever paperwork they have, the Kirbys will present what they have and a judge will decide who has the stronger case.

I’d guess there is a high probability of an out of court settlement on this, where Disney gives money and any artwork they have laying around, in exchange for the Kirbys dropping the case and waiving further claims. At the end of the day, no one really wants to have to leave it to a judge, since you never know if he was a fan or not.

@Hangman Jury: Yeah, like it says at the bottom: “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.” So, have at.

@Brian from Canada: “You have it wrong. Had “Steamboat Willie” made it into the public domain, you would NOT be able to do anything with the early version of Mickey Mouse without asking for Disney’s permission, because Mickey is an ongoing property which Disney owns full out. Disney controls all versions of the character because they are the same character, the same way Marvel owns all versions of Spider-Man. You WOULD, however, be free to use parts or whole of “Steamboat Willie” in the creation of a new product — and Disney would not have a valid complaint against using that product even if it went contrary to Disney’s corporate image.”

Thanks for the clarification.

“You’re wrong about Stan Lee too. Stan Lee’s CONTRACT with Marvel explicitly states that he and his heirs won’t ask for the copyrights back in exchange for the rate he’s paid ($1 million/year minus up to $75k under other products). It was done SPECIFICALLY on the awareness that until this was sorted out otherwise, Stan could ask for it back and they did not want to lose that.”

I…don’t see how I’m wrong about that. That’s pretty much what I said. Though, as David notes, legal precedent states that any such contract is not legally binding; termination of copyright transfer is an irrevocable right. (That said, the contract could very well stipulate that if Lee DID request copyright termination, he would have to pay back the money Marvel has given him.)

“You’re using legal definitions for things that didn’t exist. “Work-for-hire” was not something most comic book companies concerned themselves with until much later, by which time Kirby had his vocal falling out with Marvel.”

Certainly, but Marvel’s case hinges on the claim that it was work-for-hire, regardless of whether it used that term in the 1960′s or not.

“More importantly, EVERYONE here — including you — seems to forget a key fact: that the legal definition of freelance work is that you own the work until paid for by the client. At that point, all copyright goes to the client. Otherwise, advertisers could sue every time their ad is used in a way that they don’t want, including later reproduction or referencing. And since Kirby was paid for freelance work, that definition would mean Marvel owns it. Period.”

“You own the work until paid for by the client” sounds an awful lot like Kirby (co-) owned the copyrights and then sold them. Which would mean his children are eligible to terminate the transfer.

“Siegel and Shuster were not freelancers. They were creators who had completed the work first and then sold the rights to publish to DC.”

True; this is a very different case from the Superman rights. In that case, there’s no question that the Siegel and Shuster heirs are entitled to get the rights back, just a question of what that entails; in this case, there’s debate over whether the Kirby heirs are entitled to anything at all.

But they do have their similarities, and I think the comparisons I’ve drawn between the two are valid.

“Finally, to all: Jack Kirby deserves NO credit for X-Men Origins: Wolverine. I don’t care how much contribution he did towards the unerlying X-Men concept: in Hollywood, credit is given for a certain amount of recognized work without contest (and then it goes to the latest)”

“Deserves” is a loaded term. I think “The X-Men created by Stan Lee and Jack Kirby” is a perfectly reasonable thing to put on a movie whose title begins with “X-Men”.

“Kirby deserves a “created by” credit on the Hulk, Iron Man, Thor, Captain America, Fantastic Four and Daredevil films.”

I’m not 100% sure about Daredevil.

“More importantly, EVERYONE here — including you — seems to forget a key fact: that the legal definition of freelance work is that you own the work until paid for by the client. At that point, all copyright goes to the client.”

Sorry, but that’s just not true, at least in the US (realizing that I’m responding to a claimed Canadian.) Freelance work does not inherently transfer the copyright to the client, even upon payment. Barring a contract to the contrary (such as a “work made for hire” contract), under US law what the client gets is a license for the work, not the copyright. The copyright is held by the freelancer, who may be able to reuse and resell the same a material in other markets.

Give Kirby’s children everything they ask for. And royalties on every horrible movie. Executive Vice President, Marvel Global Digital Media Group,Marvel Senior Vice President of Sales & Circulation, Marvel Vice-President Executive Editor, Executive Vice President, Office of the President and General Counsel, Executive Vice President and Chief Financial Officer ( I think there at least 15 more VP’s) can thank ( I think they will pass) Jack Kirby for his creations continually keeping them employed. I’m shocked at how any comic fan can show such anger towards someone who is so highly regarded. His children are entitled to fight for their fathers creations. We need to tell these greedy corporations that fans will not except this.

Brian from Canada

May 29, 2010 at 2:36 pm

David S: The anger isn’t towards the family itself, but rather the implications that come with it. This isn’t about royalties. Most of us feel that the early creators missed out some compensation on later licensing profits. This is about copyright, and control, and disrupting the entire structure of the company that gives us monthly entertainment based on a law that was never considered to affect this industry. (It was written aimed at the music industry instead, where copyright control is a lot more noticeable.) Marvel could lose its characters — that’s a VERY REAL possibility in these situations. And that’s awfully frightening, especially when the threat is coming from something before most of its readers were born.

And the family cloaks it in “recognition.” That’s bullshit. Jack Kirby may not have had his name presenting the issues for decades like the way Stan did, but the flip side is that Jack didn’t stay with the company and represent it through lean times the way Stan did either. Jack gets the recognition for his presence and his greatest creations just like other creators do. And I think a lot of the hostility towards the actions of the family may also extend from the fact that it seems Kirby’s family wants to overshadow those creators and slap them across the face too.

Brian from Canada

May 29, 2010 at 2:42 pm

Nat:

Sorry, I wasn’t as clear. There are two types of freelancers, and it has to do with the ignition of creation. The freelancer who is commissioned to add to a production is the one who transfers copyright, whereas the one who creates and then sells is the one who retains the rights (assuming they haven’t sold the rights by contract as well). In other words, a photographer who sells a magazine a photo gets to license it, but a photographer who is commissioned to shoot the cover by the magazine claims no ownership of the photos unless the magazine permits it. It’s a confusing part of the law but one that rarely gets challenged.

But either way, it comes down to how the courts view it. The interesting thing about this all is that “work for hire” stems out of a need to be more concrete about freelancers, so the idea that Kirby did not produce because he was freelancing (at a time when there was no specific work for hire contracts) undermines the whole case. We really need a judge to sit down and explain this in legal terms — but that won’t come for a while.

No, Brian, commissioning a work does not grant the commissioner the copyright.. If you do not believe me, you can see lawyers saying this: http://www.copylaw.com/new_articles/wfh.html http://www.wsgr.com/wsgr/Display.aspx?SectionName=publications/PDFSearch/taupdate_sept_2004.htm#commissioned

Barring any specific agreement (which could be a Work Made For Hire agreement or a copyright sale agreement) the copyright to the commissioned work remains with the actual author of the work.

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