Robot 6

Comics A.M. | Jack Kirby’s heirs appeal Marvel rights ruling

Jack Kirby

Legal | The lawyer for Jack Kirby’s heirs asked the 2nd Circuit Court of Appeals on Wednesday to overturn a 2011 ruling that Marvel owns the copyrights to the characters the late artist co-created for the publisher, arguing that a federal judge misinterpreted the law. Attorney Marc Toberoff, who also represents the heirs of Superman creators Jerry Siegel and Joe Shuster in their fight against DC Comics, told a three-judge panel that a  freelancer who gets paid only when a publisher likes his work is not, under copyright law, performing work for hire. Marvel countered that Stan Lee’s testimony established Kirby drew the contested works at the publisher’s behest; the Kirby family insists the lower court gave too much credence to Lee’s testimony. Kirby’s children filed 45 notices in 2009 in a bid to terminate their father’s assignment of copyright to characters ranging from the Fantastic Four and the Avengers to Thor and Iron Man under a provision of the 1976 U.S. Copyright Act. However, in July 2011, a judge determined those comics created between 1958 and 1963 were work made for hire and therefore ineligible for copyright termination. [Law360.com]

Clay Bennett's cartoon

Editorial cartoons | A staff member for U.S. Rep. Scott DesJarlais threatened to report the Chattanooga Times Free Press to the Capitol Police after the paper published an editorial cartoon by Clay Bennett, titled “The Character Assassination,” showing DesJarlais with a gun in his mouth. DesJarlais, who is running as a pro-life candidate, sent out a mailing recently claiming a phone transcript of him urging a woman with whom he had had an affair to have an abortion was “character assassination”; the cartoon may also be referring to allegations that he intimidated his ex-wife with a gun and then put the gun in his own mouth. Times Free Press managing editor Alison Gerber, who took the call, told DesJarlais’s staffer to read the First Amendment. [Chattanooga Times Free Press]

Editorial cartoons | South African president Jacob Zuma is still suing cartoonist Zapiro over a cartoon he claims damaged his reputation, but he has dropped one of the charges and reduced the amount he is seeking. [The Times Live]

Battlepug

Creators | Mike Norton talks to Alex Zalben about his many projects, including his Eisner-winning webcomic Battlepug and his horror comic Revival; Norton also works on the Defenders and Young Avengers series for Marvel. [MTV Geek]

Creators | Robot 6 contributor Brigid Alverson interviews Moyoco Anno, creator of Sakuran and Sugar Sugar Rune. [MTV Geek]

Creators | Steven Weissman, creator of Barack Hussein Obama, guests on the latest Inkstuds podcast. [Inkstuds]

Creators | Kevin Schinick talks about how he prepped for his new gig as the writer of Marvel’s Avenging Spider-Man. [Previews World]

Creators | Edward Sorel, who started out in league with Milton Glaser and Seymour Chwast and has illustrated over 40 New Yorker covers, reminisces about his long career. [The Comics Journal]

Dark Country

Graphic novels | Actor Thomas Jane talks about his new film Dark Country, and its adaptation into a graphic novel by Thomas Ott. [Hero Complex]

Manga | Jason Thompson discusses one of the classics of modern manga, Seiichi Hayashi’s Red-Colored Elegy: “…Red Colored Elegy is like a platypus, an evolution of manga that makes you wonder whether it’s really real or just something stitched together out of pieces of other animals. But what makes it jump out from so many other ‘alternative’ comics that are purely formalist and have no emotional connection to the reader is that this is one of the saddest, greatest love stories I’ve ever read.” [Anime News Network]

Advice | Skullkickers writer Jim Zubkavich has some suggestions for would-be comics writers on how to find an artist to collaborate with. [Zub Tales]

Conventions | Here’s the best report yet on the Mumbai Film and Comic Convention, complete with interviews with Naruto cosplayers and the news that Hachette has published a graphic novel in India. [Coolage]

Retailing | According to conversations at New York Comic Con, a number of retailers are taking advantage of Diamond Comic Distributors’ various retailer support programs. [ICv2]

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Comments

16 Comments

Once again, I think the heirs should not get rights to the characters, but should be generously compensated, financially.

So if i read that right, he is saying that the judge shouldn’t listen to the guy who was there, but to the children who wern’t. IE: putting to much credence into Stan Lee’s testimony…

Surprising resemblance between Kirby and Clooney in that photograph.

Shame on Rep DesJarlais.

At this point, I fully expect Tobleroff to claim the rights for Mickey Mouse, on behalf of the heirs of Ub Iwerks.

As much as I would like the original comic creators and their heirs to get justice, the legal definitions are NOT about justice… They’re about contracts/agreements that are written down in ink. When you don’t have those documents, it becomes a he said/she said situation and the legal system generally sides with corporations/companies instead of individuals.

Much as I hate that, it would be a mess every time if they decided to be “fair” — which is a very subjective thing and the legal system is NOT supposed to be doing rulings based on feelings but the available evidence/verifiable facts.

IF the Kirby heirs WERE thinking through this, they wouldn’t have hired Toberoff. I do believe the man is an opportunist/con artist and would screw them as well as the Siegels if a ruling were made the way he seems to want it. DON’T TRUST AMBULANCE CHASERS IF YOU HAVE ANY SENSE! The Kirbys probably should have gone after Marvel for recovery of Jack Kirby’s remaining artwork or restitution for the artwork that lost/stolen over the years from Marvel’s “art vault.” The amount of pages of art he drew for Marvel under contract could be estimated as well as convention/dealer’s value for what Marvel lost/destroyed. The heirs SHOULD have been suing IMHO for the value of what Marvel misplaced/lost.

I don’t believe the heirs can win the character copyrights back at this point in time — it’s just too long and too much of a legal mess — BUT considering the changes in companies’ policies regarding the return of original comic art and the way Marvel corporate has behaved in the past with regards to Kirby’s artwork THAT behavior can definitely be quantified and I believe something could be won there on behalf of the heirs…

Just sayin’…. If you have to gets facts down, — the pages of art that were lost/stolen and based on the probable page count that Kirby allegedly drew for Marvel during his periods of employment/contract work for them –, that’s what I believe could still be sued for.

…AND THAT would be quantifiable and worth millions.

Marc Toberoff strikes again!

don’t believe the heirs can win the character copyrights back at this point in time — it’s just too long and too much of a legal mess..

Well not quite. There is the fact that, as the years go by, these things get closer and closer to falling into public domain. A looming possibility I’m sure both parties are interested in.

By American federal laws, the legally adopted, or blood heirs are seen “as” the creators, if the creators are dead. this goes for great, great grandchildren. they have the right to file against marvel. they deserve the copyrights since marvel lied. stan lee created zero as far as art goes. most of it was kirby.

@Defiance

No fair. There you go entering facts into the discussion

George Bush (not that one)

October 26, 2012 at 6:57 pm

Yeah George C, I’ve been saying for a long time that they should sue over the lost artwork. Its millions of dollars . But with no records or contracts I don’t think anyone can prove who owns the artwork. I am a bit aghast that more ‘fans’ didn’t freak out over Stan’s lies about artists getting paid for unused art.If it was pure work for hire they should have been paid for unused art. They were not paid,as every artist that testified stated. Only Mr. ONE MILLION a YEAR( no conflict here) said that they do. A COMPLETE capital lie.With great retirement packages comes great lies.

@Defiance

What about the comics scripted by Larry Lieber (Iron Man, Thor)? Would those count as mostly Kirby?

@John Sicarius

not quite either,as with that Superman&Batman who have been around longer would have to be public domain years ago,but its not

Brian from Canada

October 27, 2012 at 4:05 am

Defiance —

This isn’t about who created the art. It never was. It’s about the conditions behind the creation of the work in question.

According to Marvel, Kirby was assigned the issue and paid for it upon satisfactory completion, making it a work for hire. The Kirby heirs disagreed, saying it was freelancing instead because there was a chance their father would not be paid for his work.

Lee’s testimony is crucial because Lee was the EDITOR who assigned the work to Kirby. Lee’s claim is actually supported by Kirby’s runs on the series — there’s no way that Kirby wasn’t “assigned” to a book because Kirby himself used the same language (i.e., I’m the artist on…).

And, MORE IMPORTANTLY, Kirby did not have the ability to sell his work to the competition on any book he did in that immediate window of completion. In other words, if Marvel didn’t like an issue of Fantastic Four, he couldn’t just shop it out to DC with some slight alterations because he wasn’t a regular artist of freelance capability then.

Lee & Kirby were clearly employees of Marvel in 1961. There was an expectation of regular work. There is no contract because the publishing system of the time was piece-pay rather than salaries. But this is not like Seigel & Shuster, who completed Superman as independent agents before selling it to National; this was Lee & Kirby creating the issues — and, yes, Lee wrote the dialogue, so he is a creator — under the full expectation it would be the next one published by Marvel.

Toberoff has no case here. He will, however, keep filing appeals to get the Kirbys what he feels they deserve: a return of the copyrights and a deal that puts him, Marc Toberoff, as the new property license manager of the Marvel characters just as he will be of Superman.

Knut Robert Knutsen

October 27, 2012 at 7:29 am

From the witness accounts given by Larry Lieber and others, there is circumstantial evidence to support the argument that in the particular instance of Jack Kirby, he would submit pages of story as well as characters “on spec”.

Specifically, that Kirby would often submit maybe 4-5 page story sequences that were rejected outright and for which he was not paid, without Stan Lee making any effort to alter their work arrangement so that such “waste” did not happen.

In fact, it was Kirby who made steps to change this, which is why he stopped introducing new characters to his books a few years before he left.

This is circumstantial evidence that Stan Lee went outside the extremely wide scope pf pre-1976 work-for-hire rules and essentially negated Marvel’s claim to any legal presumption of work-for-hire in Kirby’s case by picking and choosing which work submitted by Kirby they would buy and pay for.

However, since no records of what Kriby was paid and why and what arrangement existed between the two men, all that the court can rely on is Stan Lee’s testimony. If Kirby had testified to this under oath at any point (or even alleged this specifically and clearly in writing or interviews while alive) then it would be a he said/he said with added evidence on Kirby’s side, i.e. preponderance of evidence.

However, without Kirby’s testimony, that circumstantial evidence on its own cannot outweigh Stan Lee’s direct testimony, because his testimony is the best evidence available.

Now, some people have argued (at least on other message boards) that Stan Lee should have given testimony that supported the Kirbys. This seems to ignore the simple fact that the Kirby case rests on the claim that Stan Lee did not do his job as an agent of Marvel (i.e. editor) to ensure that Marvel retained rights to the books.

Which means that every cent Disney/Marvel would have lost through losing rights to characters or would have had to pay in royalties for parts of characters, would be something that Disney/Marvel would have every legal right to reclaim from Stan Lee by suing him.

Basically the Kirbys have been trying to push Stan Lee under the bus in order to claim this money from Marvel. Not a lot of attention is paid to that part of the case.

What part of “Work for Hire” is so hard for people to get?

And the characters will never enter the public domain since the companies will just keep renewing the rights.

People should just accept it.

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