Kirby and the horrors of comic business

[Charles RB]

I didn't know until now that Kirby was a freelancer in the 60s, or half the rest of this stuff.

I'd hate to be Marvel's lawyer right now, what a headache...

[Thad]

An excellent article, Steven. I've been a little taken aback by the vitriolic and ill-informed anti-Kirby posts in the comments threads; a levelheaded explanation of the law and the Kirby heirs' rights is just what the conversation needs.

I DO think there's a strong argument to be made that Kirby's heirs shouldn't get the rights to his characters because they didn't create them -- but, as everybody with two brain cells to rub together has already pointed out, that tends to rule out the suits at Disney as rightful owners, too. I personally believe that the 56-year requirement on copyright termination is positively absurd; the reason we're seeing the Siegel, Shuster, Kirby, et al heirs pursue termination instead of the creatives themselves is that, um, people don't LIVE long enough to reclaim their copyrights themselves.

I really do think copyright law needs to be reformed, creators need to be able to reclaim their work during their own lifetimes, and those works should go into the public domain after a few decades instead of being extended every time Disney freaks out that it's going to lose Mickey Mouse. (But hey, why should Disney support the public domain? It's not like they've ever benefited from it themselves. Except for Snow White, Sleeping Beauty, Cinderella, The Jungle Book, Fantasia, Robin Hood, The Little Mermaid, Beauty and the Beast, Aladdin, The Hunchback of Notre Dame, The Princess and the Frog, The Three Little Pigs, and The Brave Little Tailor, off the top of my head.)

But what we're talking about is the law as it exists now. And, as you point out, the Kirby heirs are merely exercising their rights under that law. I'm all for saying the law should be changed and only creators should have the right to copyright termination -- as long as people are logically consistent and acknowledge corporations shouldn't be allowed to keep that copyright forever either.

[Lord Destiny]

If Kirby's heirs don't deserve the characters because they had no hand in creating them, then clearly NOBODY but Stan Lee deserves them either.

[NatGertler]

I personally believe that the 56-year requirement on copyright termination is positively absurd; the reason we're seeing the Siegel, Shuster, Kirby, et al heirs pursue termination instead of the creatives themselves is that, um, people don't LIVE long enough to reclaim their copyrights themselves.
Here's a spots of odd news and a spot of good news.

There was an earlier date, with copyright recapturable after 28 years, but that was only applicable if the creator was dead and it was the family recapturing it. So that is not helpful for living creators.
What is helpful for living creators is that for material created after 1977, the copyright can be recaptured after 35 years. Note that that means that things start being recapturable under this clause in 2012... and with people having to give at least a two year notice before recapturing, expect to hear a lot of noise starting next year. (Do realize, however, that what was eligible for Work Made For Hire status broadened in some ways around then, with non-employee material being eligible under certain conditions. However, there is real question about whether some comics work meets the proper legal definition.)

I'm all for saying the law should be changed and only creators should have the right to copyright terminationJust realize that when you do that, you're putting some extra layers of tragedy on some circumstance. A creator who dies a year too early not only stops providing for any widow with new work (inescapable), but will also not be able to provide using something of value he would've gotten just by lasting a little longer.

[NatGertler]

By the way, Steven: it's not true that "work-for-hire" didn't exist as a legal concept until the '76 Copyright ActThe clause the word “author” shall include an employer in the case of works made for hire is in the 1909 act (http://law.copyrightdata.com/index.php) (and that "works made for hire" phrase is the same descriptor used in the 1976 act).
But note that employer; what the 1976 act does do is extend "works made for hire" so that includes freelancers in certain situations... although you and I both know that careful attention was not always paid to what those situations were.
By the way, I do have a blog post on erroneous things being said about the Kirby situation, which can be read here (http://www.gertler.com/nat/tv/?p=1425). Been getting some good links to that.

[bartl]

By the way, Steven: it's not true that The clause the word “author” shall include an employer in the case of works made for hire is in the 1909 act (http://law.copyrightdata.com/index.php) (and that "works made for hire" phrase is the same descriptor used in the 1976 act).
But note that employer; what the 1976 act does do is extend "works made for hire" so that includes freelancers in certain situations... although you and I both know that careful attention was not always paid to what those situations were.
By the way, I do have a blog post on erroneous things being said about the Kirby situation, which can be read here (http://www.gertler.com/nat/tv/?p=1425). Been getting some good links to that.
I'm in a similar position to you; not a lawyer, but have worked in the publishing industry in a job where I specifically had to work with copyrights, patents, and trademarks (which is probably why I'm such a stickler about the differentiations).

Thanks for the article.

Given that, as you well know, the trademarks are probably far more valuable than the copyrights, in any case. If you know anything about those, it might be a worthy addition to your article (which you DID say you were going to be expanding).

[NatGertler]

Given that, as you well know, the trademarks are probably far more valuable than the copyrights, in any case. If you know anything about those, it might be a worthy addition to your article (which you DID say you were going to be expanding).I have expanded the piece a couple times now, but the trademark comments I've left in the comments for now (largely because they're not addressing anything being raised in the discussions I've been reading of this situation, and also because in some ways the line between copyright-protected things and trademark-protected things on this is fuzzy.)

[sweetdreams]

That Bo Diddley beat that is used over and over again in music still? I think he sold that sucker for $300! I don't think he ever made ok money and people made a fortune off that riff.
That's why all of those old blues singers were so glad to have been rediscovered by the English even if they hated the trashed covers of their music. I don't know if it's true, but supposedly Muddy Waters was painting the walls at Chess Records when Kieth Richardson went looking for him.
That's what happened with Kirby and Stan Lee and all of them right?
Didn't they have to sort it out with Stan Lee? So should work out the same for Kirby's estate right?

[NatGertler]

Working things out with Lee was very different than working things outwith Kirby, as it is harder to argue that Lee was a freelancer for his key writing assignments. However, Marvel had cut some rather serious contracts with Lee, apparently when they really wanted to keep him as a figurehead... and then when Marvel grew, negotiated a different lucrative contract to get them out of the prior one.

[sweetdreams]

Ah, Ok, thank you. I wondered what the difference was. Thank you :smile:
(sorry, pardon the interruption)

[forkxxrbhi]

Thanks for the article.