Robot 6

Will Supreme Court weigh in on Kirby heirs’ fight with Marvel?

kirby marvel charactersIn an interesting analysis, Eriq Gardner of The Hollywood Reporter sees signs the U.S. Supreme Court might consider the five-year dispute between Jack Kirby’s heirs and Marvel over the copyrights to many of the company’s most popular characters.

The Second Circuit Court of Appeals in August upheld a 2011 ruling that Kirby’s Marvel creation in the 1960s were work for hire, and therefore not subject to copyright reclamation by his children. (They had filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk; Marvel fired back with a lawsuit.) In their March petition to the Supreme Court, the Kirby heirs took aim at the Second Circuit’s “instance and expense” test, arguing that it “invariably finds that the pre-1978 work of an independent contractor is ‘work for hire’ under the 1909 Act.”

Gardner points out the the justices discussed the petition at a May conference, and then requested that Marvel respond (the company initially didn’t file a response). Those p0tential portents were followed by a pair of friend-of-the-court briefs: one filed by Bruce Lehman, former director of the U.S. Patent and Trademark Office, on behalf of himself, former U.S. Register of Copyrights Ralph Oman, the Artists Rights Society and others, and the other by attorney Steven Smyrski on behalf of longtime Kirby friend Mark Evanier, Kirby historian John Morrow and the PEN Center USA.

Gardner stresses that the weight of Lehman’s brief, which insists the Second Circuit disregarded both history and precedent in its definition of “employer” and application of “the instance and expense” test,” “shouldn’t be underestimated.”

The brief from Evanier and Morrow is also interesting, in part because the Second Circuit had upheld the lower court’s exclusion of their testimony, but largely because it’s a surprisingly breezy overview of Kirby’s career and work process, and his history and relationship with Stan Lee and Marvel (from their perspective, naturally). They also wade into the creation of some specific characters, from the Fantastic Four to Spider-Man to Thor, undoubtedly providing even more fuel for Lee-versus-Kirby comments-thread arguments.

“At Kirby’s peak in the early and mid-1960s, the Fantastic Four comic book introduced dozens of new and imaginative characters, such as Dr. Doom, Alicia Masters, The Watcher, The Inhumans, The Black Panther, Galactus, The Silver Surfer, The Frightful Four, The Skrulls and many more,” the brief states. “Many of these characters spun off into their own series; others reappeared time and again, not only in Fantastic  Four but in other Marvel comics. Tellingly, after Kirby became disenchanted with Marvel and contemplated working with DC, the Fantastic Four ceased offering notable new characters.”

The Supreme Court receives about 10,000 petitions each year, but hears oral arguments in only about 75 to 80 of those cases. But, as Gardner notes, if the justices were weigh in, its decision would reach well beyond Marvel and parent company Disney.

Read the Evanier brief below; the other can be found, along with Gardner’s analysis, at The Hollywood Reporter.

Evanier

News From Our Partners

Comments

27 Comments

I wonder what SCOTUS will have to say about the Kirby heirs rights.

Stan Lee left the Fantastic Four about a year after Kirby. That also could explain the lack notable new characters…

Stop!!! Enough!!! I have great respect for Evanier and Morrow, but let it go. Stop trying to rewrite history. They even state it was an “agreement” between Kirby and Marvel. I’m tired of this. there are probably millions of Americans alive today whose forefathers didn’t get enough money for their contributions to every thing from medicine to toilet paper. If Kirby wasn’t bright enough to step up to marvel in the early sixties about his pocket money for supplies then its his own fault. He could have quit and demanded better pay….and he would have gotten it in writing because he was that important to them.

STOP WASTING TAXPAYERS MONEY WITH THESE FRIVILOUS LAWSUITS!

Personally, I strongly believe that the Kirby’s do not have the rights to Marvel characters. If anything, I find Kirby’s artwork a little over rated compared to artist’s like Steve Mcniven and Humberto Ramos (although I do love Darksied, he’s one of my favorite Villains). If anyone should own the rights to these characters, it’s Stan Lee! He’s the one who actually came up with the concept of the characters, all Kirby did was design what they looked like, which any artist can do. Not only that, but these kids are trying to leech of whatever great success Kirby had in his lifetime. That’s his legacy, NOT THEIRS.

49 years ago,my late pop invented a tool to be used on power lines, when he worked for the power line company in North Dakota. He got paid a big 35 bucks for his design, and was damn glad to get it.Im sure that his name today isnt even listed for thinking it up.Thats just the way things are.From what I have read over the years,Kirby was VERY street smart and tough,but when it came to doing business, rather a punching bag.DC treated him rather shabby,both back in the 1950s and in the 1970s.I doubt very much if the charlton line would have coughed up 1/100th what DC or marvel paid to him.By 1970,that was about his only other option.That or trying to talk archie into reviving the fly and shield.well into the mid 1970s,dc was as bad if not worse then marvel for returning original art.

Comparing Kirby’s work of 40+ years ago to current day artists is comparing apples and pork chops. Completely different eras of art.

None of us will ever know exactly what happened. The paper trails are all that is left of those histories. Stan’s overblown ego pretty much eliminates anyone but himself as an architect of Marvel, despite the obvious influence of Kirby and others.

Knut Robert Knutsen

June 19, 2014 at 10:49 pm

I was a bit surprised to see that there was an amicus brief from Lehman et al, given their stated pedigrees, but it seems to be more related to specifics in definition of what an employer is, where they want a re-examination of the law on those points.

But even if that was sufficient to pique SCOTUS’ interest, there are still a few sticky points in the Kirby case.

There’s the “many hands” production of comics, which is the type of situation WFH was created for.

There is the issue of Stan Lee, as a full employee fulfilling all requirements of WFH, being either creator or co-creator and how that relates to ownership. Is it even possible, under the law, for a work to be created as half creator-owned and half work-for-hire when the “employer” isn’t the creator but a third party?

Then there is the issue of just how far the “creation” argument can be taken, certainly on Iron Man and Spider-Man the boundaries are tested to their limits.

Also of note: parts of the argument here, including apparently the Lehman amicus brief, seems to undermine the very concept of freelance work-for-hire. If that is carried through, it could splinter the IP libraries of both DC Comics and Marvel to the point where it’s not just an issue of e.g. using the trademark “Avengers”, but paying to every creator who has ever contributed a concept referenced in the movies.

But it would be an immense and far reaching judgement with enormous economic consequences and very little basis in precedent.

Are Kirby’s kids demanding royalties for any of Kirby’s Fourth World characters or the Eternals,Machine Man or even Devil Dinosaur? It seems they are more concerned with lining their pockets than Jack’s Legacy.

Knut Robert Knutsen

June 20, 2014 at 1:18 am

Per a special deal made by DC, Jack Kirby received royalties for the Fourth World characters and books under the royalty system introduced in the 1980s, even though 4th World was published in 1971. He did a redesign for “Super Powers” or something that let them include him.

Eternals, Machine Man and Devil Dinosaur were created upon Jack Kirby’s return to Marvel in the mid 1970s, and would not be due for copyright termination for about another decade and a half. The copyrights being challenged are roughly 1960 to 1965, with 56-year terms ending 2016 to 2021.

Whether they are concerned with just money or Jack Kirby’s legacy is, quite frankly, their business. It has nothing to do with whether they should get the rights. If they get the rights and abuse them, I’m sure people will speak up.

Douglass Abramson

June 20, 2014 at 1:33 am

@The Doctor: I don’t believe that Kirby’s ’70s work for DC or his post DC work for Marvel are old enough for the family to consider a termination filling. (I’m happy to be corrected by some one with more knowledge) This is also the time frame where Marvel and DC were bought by bigger companies and became more corporate, so its also possible that the talent contracts were more specific as to who owned what etc, while work before that time was frequently done under less clear conditions. (Again, happy to be corrected)

Having read Stan Lee’s and John Romita’s evidence in the last trial a number of points come to mind:
1. The Marvel method was designed to help Stan script all the titles, something he couldn’t do if he had to provide full scripts. The artists were given scenarios for them to go away & fully develop the story and do the art. That is a significant departure from the work for hire concept where the work is defined and directed. This approach led to the artist themselves creating character to fit their stories; e.g. The Silver Surfer.
2. Kirby was being paid top dollar (probably comic industry’s top earner at the time) and refused to go on staff; Stan has on numerous occasions stated Kirby was offered the Art Director job. This would have required a drop in income form his per page rate & hence his refusal. This job eventually went to John Romita.
3. It is also clear Kirby was saving new characters for his Fourth World project at DC during the last months on the FF. The quality of the late run is poor.
4. Stan gave Kirby a job when DC kicked him out after the commercial failure of Fourth World. Some have tried to portray this as guilt on Stan’s part which is a bit perverse; you take back the guy who left in bad faith?
5. Marvel gave rights to Captain America to Joe Simon but not Kirby – why?

Kirby deserves all the credit for his great creations but his poor business sense & need for a quick buck is at the root of the current rights issues.

Hildemar Dasce

June 20, 2014 at 2:55 am

If you asked Jack why he cranked out the crazy crap he created at a legendary rate, 3-4 pages a day, he would have said “To provide for my family, for Roz and my children”. He was that kind of guy. You could look it up. I talked to him at cons; he was that kind of guy.

One could argue that the characters Mr. Kirby spawned, at their most basic level, are creations of intent purely to provide for his family.

If this were one of those funny book stories we like to follow, the Metaphysical ramifications of this would make your head spin! as well as inspire a few story arcs.

These characters are generating Billions and yes, Billions in world currency but no love for the Kirbys. The second most greediest plan couldn’t work, it always has to be the most greediest plan.

What I said about Jack creating as means to provide, that holds true for Stan as well… well, obviously.

Nice that Stan has been able to cash in and negotiate deals, especially as his rights to the characters have always been the same as the Kirby estate.

But Stan is quick and lively. And Jack is a just a dead guy who forged universes solely to further his lineage. Hah!

I am surprised at what seems to be some knee-jerk antagonism at the Kirby estate here in these comments. If any of you were in a similar situation I would want you all to prevail financially. Why Not? That’s why I like to read comics anyways, see crazy good things happen to people some of the time.

Billions they are making on these characters.

And they can’t even honor the family of the man who is providing for them and putting food on their table.

You know, as a fan of comics, I see a headline about Jack Kirby on a comics site, click it .. and see responses that are anti-Kirby .. and beyond that, anti-creator rights. Also, against the rights of inheritance, apparently.

And I think .. what? :-)

Here’s something to consider: If the Kirby heirs are awarded 50% ownership of Kirby’s characters like the X-Men and the Fantastic Four, it should void the contracts Marvel signed with Fox for those characters. Seeing as the half-owners of the characters were not involved in the negotiations, the entire contract for both properties would have to be renegotiated from scratch.

At which point Disney could opt not to, and bring them back in house to Marvel Studios. Seeing as they’d be 50% owners, as well as trademark owners, they could use the properties as they please. As long as they paid the Kirby Estate 50% of any profit. Or they could just give them a nice lump sum pay out and buy the rights back in total. They’d probably be a whole lot cheaper than Fox’s asking price, if they even considered one.

In other words, use this as a back door to get rid of those horrible contracts Marvel signed with Fox back in the 90’s. Worst case is Disney winds up with half the profit from the movie rights. Which would be better than the nothing they get now, aside from whatever fee Fox pays. Basically, no matter which way this case goes, Disney wins.

I’m really eager to see how the Supreme Court interprets the evidence in the instance and expense test. The situation just seems so obviously not work for hire.

Kevin, do you know what sort of criteria the Court uses to decide which cases to hear?

“Kevin, do you know what sort of criteria the Court uses to decide which cases to hear?”

There’s a handful of factors, including conflicts of law (when various lower courts reach different conclusions about federal law; that’s likely why the Kirby petition plays up the Second Circuit’s “instance and expense” test) or a disregard of Supreme Court precedent (which Bruce Lehman, in his friend-of-the-court brief, says the Second Circuit did). Sometimes, though, the justices may select a case simply because they think it’s interesting or important.

“Here’s something to consider: If the Kirby heirs are awarded 50% ownership of Kirby’s characters like the X-Men and the Fantastic Four, it should void the contracts Marvel signed with Fox for those characters. Seeing as the half-owners of the characters were not involved in the negotiations, the entire contract for both properties would have to be renegotiated from scratch.”

That’s not how copyright law works. Joint authors are permitted to separately exploit a work, but must account to each other for all profits.

victor gonzalez

June 20, 2014 at 7:00 am

just give the kirby kids back kirby’s royalties. It’s what kirby would have wanted anyway. They deserve it. Stan lee sues marvel for royalties and wins….Kirby family does it and its a crime??? Stan lee should thank ditko and kirby for his security….Now give what is due to the kirby clan. This will show Marvel and DC to share profits of the creators characters. This is long overdue.

“If anyone should own the rights to these characters, it’s Stan Lee! He’s the one who actually came up with the concept of the characters, all Kirby did was design what they looked like, which any artist can do.”

Go to pages 7-8 for Lee’s own admission Kirby created the Silver Surfer (who was NOT in Lee’s plot for the Galactus Saga)…
http://twomorrows.com/media/KirbyCollector18Preview.pdf
…and then wonder how many more characters did Kirby create?

just like the super man heirs scotus will proably turn down hearing the case in the end even though marvels has proven their idea of a work for hire contract is some one including jack signing their paychecks. we shall see if the justices do indeed wind up finaling hearing a copyright case involving comic book icons . for after all stan lee doesn’t own his share of the marvel characters he co created odds are sadly the justices will pass on saying that maybe jack heirs can claim the share jack should own of the marvel universe

victor gonzalez

June 20, 2014 at 9:23 am

” Atomic Kommie Comics”“ If anyone should own the rights to these characters, it’s Stan Lee! He’s the one who actually came up with the concept of the characters, all Kirby did was design what they looked like, which any artist can do.”

Give me a fucken break!!! lee for years has been taking credit for all of Kirby’s doings. It was just a few years back he’s been calling himself Co-Creator. He noticed that people could actually see the margin quotes that kirby left for him in his artwork. As soon as kirby left marvel Stan lee didn’t create squat. Atomic Kommie Comics you talking outta ya butt.

Knut Robert Knutsen

June 20, 2014 at 10:05 am

Hey, Asif, re: this question :
“5. Marvel gave rights to Captain America to Joe Simon but not Kirby – why?”

Marvel didn’t GIVE those rights. Joe Simon reclaimed them.
There are two reasons the rights weren’t terminated in favor of both Simon and Kirby.

1) Kirby didn’t actually co-create Captain America in the eyes of the law. While Simon and Kirby were partners and ran a studio together, Joe Simon created Captain America in a moment’s inspiration, designed him and immediately pitched him to publisher Martin Goodman. Kirby wan’t supposed to work on the book as he was already overextended on other titles they were producing but he liked the character so much that he insisted on being part of it. But by law, his involvement at this point could only be WFH.

2) Simon tried to reclaim Captain America in the late 1960s. He wasn’t aware of the exact details of copyright termination law, and pursued termination on the theory that it was a Simon and Kirby copyright. Which it couldn’t be. However, as he was filing the paperwork, Marvel’s lawyers whispered a few words in Kirby’s ear, convincing him that Simon was cutting hinm out of the picture, so he screwed Simon over by selling “his half” to Marvel first. Which meant that Simon couldn’t take the character back, Marvel could still use him in return for a nominal fee (or so all parties involved believed at the time) . So he settled with Marvel, ironically for a much better deal than Kirby got.

Now, details of Kirby’s underhanded sale of “his half” of Captain America are not known, but for all we know there might be a “perpetuity clause” in there somewhere that would allow them to buy out the rights at the next juncture as well. When the next termination deadline came around, Kirbyu was dead, but his widow sided with Joe Simon and gave her public blessing for him to reclaim it on his own.

So there might be a legal problem, created by Kirby himself, that would have made it impossible to terminate copyrights fully if he was listed as co-creator, and Marvel would certainly have argued that this contract still gave them half if Joe Simon’s claim to sole copyright wasn’t too obvious to dispute.

Regardless of this, Marvel comics and Marvel movies still list Captain America as created by Joe Simon and Jack Kirby. Which they could not have done without the approval of Joe Simon and later his estate. All evidence suggests that Simon never had any intention of “cutting Kirby out” from the credit of developing Cap, the law simply required him to terminate copyrights on his own.

Clear?

Mr. Permafrost

June 20, 2014 at 11:21 am

Sad to see that this still all boils down, in the public arena, to who you like best, Kirby or Lee. There’s little objectivity in evidence in this or any comments section on this topic. Mindless cheer leading for one side or the other. Twas ever thus.

Knut Robert Knutsen at least attempts to bring something beyond fan boy effusions to the table. Understand, I’d rather see Kirby heirs win this than Marvel. Even though the import of Knutsen’s comments is that the Kirby heirs will lose, kudos to him.

—The search for truth, not cheer leading—

@Titan: It’s also not Marvels legacy either dude. It’s either Kirby’s heirs or a big multi nat company.I say all the proceeds go to charity and the heck with it. How fast do you think Marvel/Disney would jump to settle if that were to be the case?

The Supreme Court will weigh in on the side of the large corporation as it has done repeatedly in its long history and most often recently.

If it hears this suit, I doubt it will get a fair shake or that creators would in any way benefit.

The Supreme Court will not upset the apple cart. There is too much money at stake. I feel sorry for the Kirby heirs as I feel creators should have rights to their characters regardless of what they signed and blah, blah, blah . . . these were different times, and like the Shuster case, there’s no reason to think Kirby wasn’t bullied or misled about ownership of his work. We weren’t there, we can’t say.

Self-serving fanboys don’t want the apple cart jostled because it might mean a cessation of monthly publication of their comics, or *gasp* at worst the end of the comic book industry, because nothing but superhero comics exist. But I would think they would want to give the creators of their favorite characters some token of the profit of what they’ve made and earned.

Talmidge Mcgulliger

June 20, 2014 at 1:27 pm

I hate how these things degenerate into Stan vs Jack. Stan has absolutely nothing to do with the Kirby estate suits. Marvel would still use the same work for hire line that they used on Jack (along with Stan) if it were Kirby and Otto Binder who created those character or even if Jack Kirby was credited as the writer and artist. Stan could walk in there and scream “He did it all” in Clarence Thomas’ face and it wouldn’t make a difference.

But it also bugs me when people trot out the “Stan didn’t creating anything without Kirby or Ditko” line because it’s just not true and kind of insulting to all the other people he worked with. Stan did 60 issues of Spiderman including introducing The Kingpin. He did 50 issues of Daredevil including what some (myself included) think is the single greatest issue of a marvel comic ever, Daredevil 47. He introduced The Falcon in Cap, She-Hulk, Mephisto, and probably Hawkeye and Black Widow (Heck did say that sometimes the cover was given to artists as a way to pay them for design work they helped with but that’s kind of circumstantial) and most of all the reason he didn’t write as much after that period was because he took a promotion as publisher not because he was suddenly bankrupt of ides.

Hildeamer Dasce, just because Jack contriputed all that work to support his family doesn’t mean he owns it. I work at a grocery store as a cart attendant.to support myself, but that doesn’t mean I own the store. Don’t get me wrong, how you worded it makes a sweet guy, but I just don’t think that reasoning is enough for the Kirby family to own anything.

Leave a Comment

 


Browse the Robot 6 Archives