Marvel Greats Deposed for Kirby Lawsuit

[Expletive Deleted]

(found via Bleeding Cool (http://www.bleedingcool.com/))

As the Kirby lawsuit progresses, various comics notables of the Silver Age have been deposed. Transcripts of those depositions are just now becoming public, and have been posted by a comics blogger. So . . . here they are:

Stan Lee (http://ohdannyboy.blogspot.com/2011/03/marvel-worldwide-inc-et-al-v-kirby-et.html)
John Romita (http://ohdannyboy.blogspot.com/2011/03/marvel-worldwide-inc-et-al-v-kirby-et_06.html)
Larry Lieber (http://ohdannyboy.blogspot.com/2011/03/marvel-worldwide-inc-et-al-v-kirby-et_07.html)
Roy Thomas (http://ohdannyboy.blogspot.com/2011/03/marvel-worldwide-inc-et-al-v-kirby-et_08.html)
Mark Evanier (http://ohdannyboy.blogspot.com/2011/03/marvel-worldwide-inc-et-al-v-kirby-et_09.html)

Above and beyond any significance to the Kirby suit, they make for a fascinating oral history of Marvel in the '60s.

[Gryphon]

Pretty interesting stuff.

[Libaax]

I read Stan Lee one and its very fascinating read. Reading the early history when he was young editor was something.

[Rheged]

Wow. Some very interesting info that I'm definitely going to read later. I'm just sorry we get this glimpse of Marvel history in a law suit. :frown:

But thank you for posting it.

[kodave]

Really interesting stuff. I feel bad for those guys having to sit in a room for probably the entire day with lawyers asking them the same or similar questions over and over and over.

[SuperCooper]

Just reading the Stan Lee one so far I think it's pretty touching the praise he puts upon Kirby, calling him the best artist they had. Too bad it's come to this, especially for a guy who should be living his life in the peace and comfort he deserves.

[T Hedge Coke]

Really interesting stuff. I feel bad for those guys having to sit in a room for probably the entire day with lawyers asking them the same or similar questions over and over and over.

Often fairly leading or incomplete questions, t'boot (which, to be fair, is the job). About a friend. A dead friend. And a company they have history with but also, perhaps inextricably, a future.

Brutal.

[Libaax]

Just reading the Stan Lee one so far I think it's pretty touching the praise he puts upon Kirby, calling him the best artist they had. Too bad it's come to this, especially for a guy who should be living his life in the peace and comfort he deserves.

Yeah he is not like 60 years old he should be resting,relaxing after his long career.

Its always a bit sad when something like ends up in law suit.

[cliffhanger]

Well yeah but Stan owes Kirby more than just praising him as an artist. Kirby was a creator- big time, probably more than anyone in comics history.

[Dizzy D]

A lot to read, but very interesting stuff so far.

[SpideyCzar]

Read the Stan Lee & John Romita Sr. depositions, very interesting reads, gives us a glimpse at the comics industry back in what I consider the creative boom of the Marvel Universe(1960's-70's).

Stan comes off as a pretty nice guy, with his praise of Kirby, which makes me look forward to meeting him in Orlando in a few weeks.

The lawsuit seems like it has no grounds at all, since Kirby and most of the Marvel creators were on a work for hire basis in that time frame.

My only current complaint would be I wish Marvel would acknowledge these creators in the credits of their current titles. Instead of putting who the publisher is or putting Joe Quesada's name in the books after he is no longer EIC, how about putting created by Stan Lee & Steve Ditko(Spider-Man), created by Stan Lee & jack Kirby(FF, Thor, X-Men, etc. etc)

I know the only Marvel book(I read) that acknowledges who created the character is Captain America.

[Darrell D.]

Well, work for hire was rarely in a full contract form in those days, so the lawsuit DOES have merit.
If Marvel had treated Kirby better and paid him the royalties promised for the hundreds of millions they made off merchandise from his designs, this probably wouldn't have even been a suit.

[SpideyCzar]

Well, work for hire was rarely in a full contract form in those days, so the lawsuit DOES have merit.
If Marvel had treated Kirby better and paid him the royalties promised for the hundreds of millions they made off merchandise from his designs, this probably wouldn't have even been a suit.

On all their checks it clearly states 'Work for Hire', not saying Kirby doesn't deserve some kind of compensation. Just think it's a little moronic for his heirs to be asking for the rights to characters Kirby had little input with like Spider-Man, DD or Iron Man.

[Castel]

Pretty interesting read.

[Blade X]

I didn't read everything in these depositions, but what I did read I found very interesting and informative.

I have to wonder if the lawyers tried to get Steve Dikto to give a deposition.

[sephiroth61787]

It's very informative and interesting. Too bad it's part of a court case. Stan's a great guy and, from what I've read, has always praised Jack and his contributions. They both have their contributions to our medium and we'll always give them credit for it.

[Darrell D.]

On all their checks it clearly states 'Work for Hire', not saying Kirby doesn't deserve some kind of compensation. Just think it's a little moronic for his heirs to be asking for the rights to characters Kirby had little input with like Spider-Man, DD or Iron Man.

If you are talking about those checks in the 70's, they were deemed as being non-binding. Most freelancers scratched it out and cashed the check anyway.
Besides, those checks didn't during the time that Kirby and Ditko, etc, was working for the company.
And there is nothing wrong with heirs getting rights to something their father, mother or what created. You may not like it, but that's not what the law is built upon.

[SpideyCzar]

I didn't read everything in these depositions, but what I did read I found very interesting and informative.

I have to wonder if the lawyers tried to get Steve Dikto to give a deposition.

Have to dig him out of his hideaway first.

[SpideyCzar]

If you are talking about those checks in the 70's, they were deemed as being non-binding. Most freelancers scratched it out and cashed the check anyway.
Besides, those checks didn't during the time that Kirby and Ditko, etc, was working for the company.
And there is nothing wrong with heirs getting rights to something their father, mother or what created. You may not like it, but that's not what the law is built upon.

Think you neglected to read it or maybe I didn't convey myself clear enough. I believe the Kirby Estate is owed something, but not full rights to characters he had little to no creation in. Their lawsuit consists of the majority of the arvel U, some Kirby had a hand in creating NOT all.

[Darrell D.]

Think you neglected to read it or maybe I didn't convey myself clear enough. I believe the Kirby Estate is owed something, but not full rights to characters he had little to no creation in. Their lawsuit consists of the majority of the arvel U, some Kirby had a hand in creating NOT all.

Well, they aren't going for full rights, just half. Marvel owns the other half.
I'm going to guess if they win, they can go for royalties or a licensing fee, or sell their half of the copyrights outright to Marvel for a tidy sum.
And, you did bring up the work for hire statements on the checks, which was the crux of my reply to you.

[SpideyCzar]

Well, they aren't going for full rights, just half. Marvel owns the other half.
I'm going to guess if they win, they can go for royalties or a licensing fee, or sell their half of the copyrights outright to Marvel for a tidy sum.
And, you did bring up the work for hire statements on the checks, which was the crux of my reply to you.

Fair enough.

From my understanding, from reading through everything, and asking a Lawyer friend, she said if the checks or any documentation has a company water seal and it's stated 'Work For Hire' the person staking claim has very little ground to stand on. Then she said it depends on the Judge, and their history in how they rule in certain cases.

So basically we agree that Kirby's heirs should receive some compensation. I think Kirby's Heirs have a case for certain characters, Captain America, Hulk, Thor, FF and others but not Spidey since from all accounts(Stan Lee & Steve Ditko Interviews) Kirby assisted with cover art and that's it.

[Sean Walsh]

I have to ask.......was Ditko approached for a deposition?

[Reptisaurus!]

Fair enough.

From my understanding, from reading through everything, and asking a Lawyer friend, she said if the checks or any documentation has a company water seal and it's stated 'Work For Hire' the person staking claim has very little ground to stand on.


Sure. But s'far as I know the idea of "work for hire" didn't even legally exist until the 1976 copyright act. (http://www.copyright.gov/circs/circ09.pdf)

[Blade X]

Sure. But s'far as I know the idea of "work for hire" didn't even legally exist until the 1976 copyright act. (http://www.copyright.gov/circs/circ09.pdf)

That's a very good point. However, and by no means am I an expert on this, I think that the statements by those creators in the deposition about it being common knowledge that this stuff was work for hire might hurt the Kirby heirs case.

[kodave]

You can have legally binding "work for hire" under simple contract without needing it codified in copyright law.

These depositions are building a record for the lawsuit. I only read the Stan Lee and JR depos but they clearly are setting forth a record that everyone there was operating under "work for hire," and that's going to be hard to overcome without evidence to the contrary.

If Ditko was subpoenaed to give a depo he'd have given a depo. Otherwise he'd be in contempt of the court.

[StoneGold]

Larry Lieber is a great?


I guess I could continue the snark and ask if Evanier counts as a Marvel great. Groo, but that was Epic.

[T Hedge Coke]

I guess I could continue the snark and ask if Evanier counts as a Marvel great. Groo, but that was Epic.

Which is Marvel. No matter how you cut it. Also, great. It was great.

[Reptisaurus!]

That's a very good point. However, and by no means am I an expert on this, I think that the statements by those creators in the deposition about it being common knowledge that this stuff was work for hire might hurt the Kirby heirs case.

Yeah, possibly. And certainly their were "Work for hire" laws (although I don't believe they used that particular term) before the 1976 revision.

But it's all reeeeaaaaaaaallllllllllllly murky at this point - The division between "Work for Hire" and comissioned freelance work where copyrights would return after 56 years is... well, the government document I linked too above basically says it's a big 'ol legal sinkhole.

[StoneGold]

Which is Marvel. No matter how you cut it. Also, great. It was great.

Yeah, but creator owned. It's like calling Stephen King a Marvel great because of the Dark Tower comics.

[Jason Abbadon]

Yeah, possibly. And certainly their were "Work for hire" laws (although I don't believe they used that particular term) before the 1976 revision.

But it's all reeeeaaaaaaaallllllllllllly murky at this point - The division between "Work for Hire" and comissioned freelance work where copyrights would return after 56 years is... well, the government document I linked too above basically says it's a big 'ol legal sinkhole.
I dont see Kirby's heirs winning squat- it would be a huge precedent taht would open every company from DC to Disney to compensation cases from heirs of various artists.
Imagine the artist that first drew Tinkerbell sueing Disney for half of all the merchandising they churn out with Tinkerbell on it.

It would be a very bad precedent.

Besides, it's pretty clear that the aertists never thought they somehow owned the rights to the characters- Kirby certainly never thought that way- Marvel rejectings ome of his ideas led to Kirby going over to DC and making OMAC (orignally a Kirby idea for Captrain America- somehow!).

And where is the lawsuit against DC for all the New Gods stuff? Did DC settle out of court or is Marvel just a bigger target now that Disney bought them?

[T Hedge Coke]

Yeah, but creator owned. It's like calling Stephen King a Marvel great because of the Dark Tower comics.

So, you're looking at them more as a character/concept farm than a publisher? To be fair, that's where most of their money comes from, but it's also at the heart of the issue at hand, in many ways.

[StoneGold]

So, you're looking at them more as a character/concept farm than a publisher? To be fair, that's where most of their money comes from, but it's also at the heart of the issue at hand, in many ways.

No, I'm looking at it as Epic, which was creator owned, and projects flowed in and out of it. Elfquest started out with Epic, but I'd hardly call the Pinis Marvel legends. Mark's there because he was Kirby's assistant, not because of anything he did at Marvel. Basically, you look at that list, and Mark is the odd man out.

[T Hedge Coke]

No, I'm looking at it as Epic, which was creator owned, and projects flowed in and out of it. Elfquest started out with Epic, but I'd hardly call the Pinis Marvel legends. Mark's there because he was Kirby's assistant, not because of anything he did at Marvel. Basically, you look at that list, and Mark is the odd man out.

That I can agree with, if they were even making an effort to say this was about them being Marvel Greats or whatever. This thread's title is perhaps off, is what it is.

But, yeah, as far as I'm concerned being published under the Epic imprint is the same was being published in any other way by Marvel. Doing work in the MU or that the publisher owned is no more substantive or truly Marvel work than work that they simply paid to publish.

[Jason Abbadon]

That I can agree with, if they were even making an effort to say this was about them being Marvel Greats or whatever. This thread's title is perhaps off, is what it is.

But, yeah, as far as I'm concerned being published under the Epic imprint is the same was being published in any other way by Marvel. Doing work in the MU or that the publisher owned is no more substantive or truly Marvel work than work that they simply paid to publish.
I..dont agree.
The Epic line was stuff that various creators had copyrighted themselves and owned the rights to- then cut the deal with Marvel to publish their work as something seperately and clearly not owned by Marvel...and the creators could take their properties elsewhere.

Take stuff like Alien Legion (Owned by Carl Potts and one of Epic's best series) that now gets reprinted in TPB format by Checker- even though it was originally "published" by Epic.
By the 80's the murky legal language of ownership had been clearly defined. Alien Legion is announced to return to comics this year- from Dark Horse.

Compare this with the 60's when working for Marvel was a job- guys got paid to work on funnybooks for a living- it must have seemed like a sorta silly job back then to most working class americans. To dream up crazy adventures and such- but the notion that someone paid by a company for their time and talent actually owned the creations they were being paid to create?
I dont think anyone from back then had that notion- not the companies or the creators of such stories.

The publisher took all the risks and incurred all the losses for ever book that did not sell- and a lot of companies went bust after a few failures: none of the Kirby's or Ditkos ever lost money when a book tanked- why then should they reap ownership stakes when a book became a big hit?

[jackolover]

I don't know how to respond to this. It's just so much legalise.

But if the point to all this is that the Kirby estate want ownership of classic Marvel Comics characters that Jack was instrumental in bringing to the page, then you have to say the drawing is just as important as the writing, and even more so because the drawing inflames the imagination unlike the word, which has to do all the work, if the word was by itself. This way the art and words are a synogysm.

Now if Stan Lee were to cross over and ask to be a part of this law suit and ask for ownership of the characters he concieved, then, I think that would add more weight to the law suit. But I feel Stan Lee has already done a deal with Marvel, as Emeritus, and appearances in movies, and maybe a deal that gives Stan some kickbacks.But Stan Lee would have to empathise with the artists plight, I feel, and everything I have heard from Stan Lee concerning this ownership claim over the years, has been one of negativity. Stan Lee has not accepted creator-artists claims of ownership.

It's like there's this closed shop about ownership in the comics industry. As though the subject, (comics characters) is too juvenile a pastime, that creators aren't recognized. But with Amazing Fantasy #15 selling for $1million, and Spider-Man the Movie making $700million, whose laughing now? This is not a pulp fiction issue anymore, as the Marvel characters have become the hottest properties on the market. If the law doesn't want to recognize the true contribution of the artists of this industry, (comics) it's not recognizing the shape and design of the abilities of the characters. Artists are the camera men of the page. The artists on comics use their imagination to interpret the characters. It's like ignoring all those African American Blues artists for their creations of songs.

Otherwise, if artists are not recognized to have ownership of their creations, then they should be ignored as inconsequential. Kirby and Ditko should just be consigned to oblivion and their names not even appear on the books, much like the Disney artists and the Gold Key and other companies who don't mention the creators.

Unfortunitely, we fans have had the opportunity to appreciate and recognize the styles of comic artists at Marvel, and we have an encyclopedic memory of respective issue numbers and creators involved, so that one, cannot be divorced from the other. That's your fault Marvel.

[Darrell D.]

I think an important point to remember that it isn't just drawings, Kirby's designs are used for merchandise as well; t-shirts, toys, stationary, video games, etc. Something he (or Ditko) never saw a dime of in his lifetime, even though both were promised over and over. Never let it be said that Martin Goodman wasn't consistent, as he screwed Simon and Kirby out of royalties in the 40s as well.
And, another point, the heirs are suing to terminate HALF the copyrights, not all.

[Expletive Deleted]

Larry Lieber is a great?

I guess I could continue the snark and ask if Evanier counts as a Marvel great. Groo, but that was Epic.My original title was going to list all their names, but they didn't all fit and I couldn't decide who to leave out. Then I switched to "classic comic creators," but that made it seem as if it didn't belong on this forum. This gets across the point well enough, even if it's not completely accurate.

Also, shut up.

[Darrell D.]

To be fair, Lieber did do the dialog on the first appearance of Thor.

[Kunoichi]

This was an interesting read.

[Reptisaurus!]

I dont see Kirby's heirs winning squat


Well, the Siegel heirs did, with the same lawyer. (Although it's a very different case.)


- it would be a huge precedent taht would open every company from DC to Disney to compensation cases from heirs of various artists.


Nah, I don't see it. Certainly in cases where Intellectual Properties were created before 1976 by freelance artists (for whatever definition of the term) and published by larger publishing houses.



Imagine the artist that first drew Tinkerbell sueing Disney for half of all the merchandising they churn out with Tinkerbell on it.


I dunno who that is, I'm embarassed to say. I believe the original edition of Peter Pan did have illustrations.

But since J.M. Barrie created the character and wrote the text - long before Disney came along and cutified and boringized it - it's gonna be hard to argue that was anything but work-for-hire. The artist didn't create the characters.


For who? Call me a pinko liberal commie if you gotta, but I have a hard time getting worked up over the rights of these huge corporations.


Not that I have a horse in the race either way here, except that I think it's important that the idea that art comes from actual PEOPLE - not shat out by voiceless corporations - is a fairly important one.


Besides, it's pretty clear that the aertists never thought they somehow owned the rights to the characters- Kirby certainly never thought that way- Marvel rejectings ome of his ideas led to Kirby going over to DC and making OMAC (orignally a Kirby idea for Captrain America- somehow!).

And where is the lawsuit against DC for all the New Gods stuff? Did DC settle out of court or is Marvel just a bigger target now that Disney bought them?

No. The lawsuit was - basically - a countersuit 'cause Marvel sued the Kirby heirs. DC hasn't sued the Kirby heirs, so there's probably not going to be a lawsuit there.

The notice of copyright termination which the Kirby heirs issued was basically saying that the 56 years of copyright protection that Marvel has for work created by a free-lance employee is up, and that half the rights to the characters Kirby co-created revert to them.

Edit: It hasn't been 56 years since the New Gods were created, and there's really no point in doing a notice of termination for 15 years in advance.

And, honestly, the fact that DC DID give Kirby some money for various licensed products based on his creations and DC legal DID NOT go out of their way to extort the rights to characters away from Kirby (http://archives.tcj.com/aa02ss/n_marvel.html) (Note that Kirby may or may not have any rights to begin with)

probably means their ain't gonna be a DC lawsuit.

[Reptisaurus!]

Although I should say it's possible - I'd say probable - that the Kirby heirs would've sued Marvel at some point even if Marvel hadn't sued them first.

[Blade X]

And where is the lawsuit against DC for all the New Gods stuff? Did DC settle out of court or is Marvel just a bigger target now that Disney bought them?

I think that it is pretty clear that the Marvel characters are worth a heck of a lot more than the DC characters that Kirby created. This might be the reason why Kirby's heirs didn't file for copyright reversal for the Challengers of the Unknown.

[Darrell D.]

There is a timeframe for suing to terminate copyrights; the time hasn't arrived for the New Gods.
That's IF they even go for it; what I remember, DC made sure that Kirby reaped the benefits for his New Gods creations in terms of royalties.

Edit: Crap, Reptisauraus beat me to it.

I will say that DC and in particular Paul Levitz and Jeanette Kahn did everything they could to make sure Jack reaped the benefits of his characters in other media; at DC when he created The New Gods, this was before the royalty program. They allowed Jack to tweak a few designs of the characters to grandfather him into the royalty program. They didn't have to do that, at all, and the fact they did is pretty amazing.

[tv horror]

Just a thought, but with lee mentioning both Frankenstein and Hyde as the origin of the Hulk and then the Heap that left the actual look to Kirby to create. Also I recently read an Essentual Fantastic four were the four visited the Marvel offices, in my mind Kirby in the comic came across more like Ben Grimm in nature, did he base the character on himself?

[T Hedge Coke]

Kirby in the comic came across more like Ben Grimm in nature, did he base the character on himself?

I've heard Thing's speech patterns ascribed to Kirby and I know both he and Lee copped to Kirby sometimes dialoguing thing in the margins even if he didn't dialogue anyone else in the comic. I've also heard Lee explain that Thing's patois was based on Jimmy Durante and maybe a half dozen other celebrities, as well. So... probably.

[tv horror]

Thank you for the reply Travis. It was not only his speech in the comic but the manner in which he carried himself such as the way he sat or the cigar, I can't go with Durante as a model more Lionel Stander or someone like William bendix.

[Jason Abbadon]

I think that it is pretty clear that the Marvel characters are worth a heck of a lot more than the DC characters that Kirby created. This might be the reason why Kirby's heirs didn't file for copyright reversal for the Challengers of the Unknown.

While I certainly agree, I think it's only a matter of time before the heirs decides to milk DC for some cash as well.

Really, it may be within their legal rights (though I doubt it) but it al comes off pretty crass.

Besides, I DONT think that Marvel has to worry about copyright expiration as the Supreme Court several years back (in a move obviously favoring big business) made the "Mickey Mouse Protection Act" to cover just such a liability:
http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
(this is why Superman is not Public Domain)

In addition, a copyright must be shown to be vigorisly defended or it's claim is voided- that's why Lucasfilm sends out so many Cease and Decist orders (C&D's) to guys making garage kits of SW subjects or people making fan blueprints, etc- they pretty much have to.
That ongoing expense is something that Marvel has had to shoulder against bootleggers and knock offs -and it may prove that they are the copyright's defenders- and sole owners.

Kirby's heirs have not (so far as I know) fought to secure these rights untill recently, when the properties are worth so much more than when Jack created them- though I could see marvel paying some onetime settlement for half of whatever they were worth back in the 1960's....just to make the heirs go away with a gag order not to slam Marvel or discuss the terms of settlement (a common practice).

[kodave]

Besides, I DONT think that Marvel has to worry about copyright expiration as the Supreme Court several years back (in a move obviously favoring big business) made the "Mickey Mouse Protection Act" to cover just such a liability:
http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act
(this is why Superman is not Public Domain)

The Supreme Court didn't "make" that statute, Congress did. The court doesn't write law. They did uphold the law when the Constitutional validity of it was challenged.

[mikekerrIII]

On all their checks it clearly states 'Work for Hire', not saying Kirby doesn't deserve some kind of compensation. Just think it's a little moronic for his heirs to be asking for the rights to characters Kirby had little input with like Spider-Man, DD or Iron Man.
If they can produce copies of canceled check that say "work for hire" it will be a very short trial

Do you have evidence that those checks exist, or proof that they ever existed?

[Jason Abbadon]

The Supreme Court didn't "make" that statute, Congress did. The court doesn't write law. They did uphold the law when the Constitutional validity of it was challenged.

You are of course correct- the Supreme Court only upheld the decision (against all rationality in some cases) that longtime public works (like The Adventures of Peter and Wendy) colud be the inferred copyright of Disney- while still reamining public domain in their original form.

There was a cartoon (late 80's, I think) based on The Adventures of Peter and Wendy public domain stories and Disney pretty much destroyed the company making it -with lawsuits claiming violation of "their" property.

..and then there was the lawsuits brought against Eternity Comics over The Uncensored Mouse- a collection of (then) public domain comic strips showing Mickey Mouse from the 1930's saying and doing some fairly racist things.
http://en.wikipedia.org/wiki/The_Uncensored_Mouse
The lawsuits ended that comic (and nearly the company) after two issues.

[Ben D]

Sad read. It literally brings me to tears that it's come to this.

[Darrell D.]

If they can produce copies of canceled check that say "work for hire" it will be a very short trial

Do you have evidence that those checks exist, or proof that they ever existed?

I think those checks were used in the 70s, and according to Neal Adams, most freelancers marked out the work for hire clause and the bank accepted the checks.

[kodave]

I think those checks were used in the 70s, and according to Neal Adams, most freelancers marked out the work for hire clause and the bank accepted the checks.

Just because they marked out the work for hire doesn't mean it suddenly wasn't work for hire. The bank doesn't give a shit what you write or mark out on the checks as long as everything that's necessary to process a check is unaltered and filled in legitimately. Its not like a bank would deny a check if you crossed out a hand written memo line before cashing the check.

And if the check is going to be a form of contract, you can't just cross something off a contract and then sign it without the other party accepting the changes. That's not how contract law works in the slightest and even though crossing it out would show a possible disagreement between Marvel and those being paid on a work for hire basis, it likely hurts the artists because they accepted the compensation even though they apparently disagreed with one of the terms of accepting the compensation. The fact they cashed the checks rather than going back to Marvel and demanding something without "work for hire" language could very well negate any possible effect of crossing out "work for hire" language.

[tv horror]

I'm not certain about American law but who would own the checks now? I ask this because it used to be that banks would send them back to the owners after they were issued in the U.K before the 70's, with American tax law being differant who got to keep them. Also if they are so important to Marvel for the coptrights why has Marvel not produced any to make their case.

[kodave]

I'm not certain about American law but who would own the checks now? I ask this because it used to be that banks would send them back to the owners after they were issued in the U.K before the 70's, with American tax law being differant who got to keep them. Also if they are so important to Marvel for the coptrights why has Marvel not produced any to make their case.

I don't know whether a bank or Marvel had them last, but its likely neither entity kept them. Who would have thought they'd need checks as evidence in a lawsuit 60 years after they were issued? Especially since work for hire was Marvel's standard practice.

Marvel probably shredded any unissued checks once payment systems were upgraded.

If Marvel got the checks back from the bank they probably disposed of them in the decades that followed. Again, why would you hang onto checks when there was no problem with the transaction?

I doubt anyone took the time to Xerox checks back then either.

Now, banks scan and have digital copies of checks so it wouldn't be an issue today. Obviously that wasn't possible back then.

Obviously if Marvel or any artists from that era had any lying around they'd have introduced them into evidence.

[tv horror]

Thank you KoDave for the reply, I wonder does that now mean that with the lack of proof on Marvel's behalf of any waver that the artists and writers are now the owners by default. With the copyright laws of intellectual property now in force are the characters now the sole idea of an artist who first designed the image.

[kodave]

Thank you KoDave for the reply, I wonder does that now mean that with the lack of proof on Marvel's behalf of any waver that the artists and writers are now the owners by default. With the copyright laws of intellectual property now in force are the characters now the sole idea of an artist who first designed the image.

The lack of having an actual check made out to Kirby or even a check from one of Kirby's tenures with Marvel in the 50s or 60s doesn't change the copyright ownership. That's just a gross misunderstanding of the law. Marvel still owns the copyright to all of those characters.

Marvel has a check from 1987 containing the "work for hire" clause and testimony under oath of multiple people stating that Marvel had the "work for hire" clause on the checks dating back to the 1950s. I'm sure they could depose any artist from the 50s or 60s (that are still alive) and they'd testify that the clause was there.

Its really more of a question whether the actions taken by Kirby and Lee/Marvel when coming up with these characters falls under the current statutory construction of "work for hire" or not.

The clause on the check is evidence of that work for hire relationship but it is not solely determinative of the work for hire relationship in this case.

[Ed Love]

In addition, a copyright must be shown to be vigorisly defended or it's claim is voided- that's why Lucasfilm sends out so many Cease and Decist orders (C&D's) to guys making garage kits of SW subjects or people making fan blueprints, etc- they pretty much have to.
That ongoing expense is something that Marvel has had to shoulder against bootleggers and knock offs -and it may prove that they are the copyright's defenders- and sole owners.

Kirby's heirs have not (so far as I know) fought to secure these rights untill recently, when the properties are worth so much more than when Jack created them- though I could see marvel paying some onetime settlement for half of whatever they were worth back in the 1960's....just to make the heirs go away with a gag order not to slam Marvel or discuss the terms of settlement (a common practice).

Copyrights do not have to be defended or otherwise be considered abandoned. That's an aspect of Trademark protection. It's why companies combat public use of their brand names for generic products.

[DeadXMan]

You are of course correct- the Supreme Court only upheld the decision (against all rationality in some cases) that longtime public works (like The Adventures of Peter and Wendy) colud be the inferred copyright of Disney- while still reamining public domain in their original form.

There was a cartoon (late 80's, I think) based on The Adventures of Peter and Wendy public domain stories and Disney pretty much destroyed the company making it -with lawsuits claiming violation of "their" property.

..and then there was the lawsuits brought against Eternity Comics over The Uncensored Mouse- a collection of (then) public domain comic strips showing Mickey Mouse from the 1930's saying and doing some fairly racist things.
http://en.wikipedia.org/wiki/The_Uncensored_Mouse
The lawsuits ended that comic (and nearly the company) after two issues.


and let us not forget Disney Sueing the pants On Howard the Duck.

[DeadXMan]

Copyrights do not have to be defended or otherwise be considered abandoned. That's an aspect of Trademark protection. It's why companies combat public use of their brand names for generic products.

and why we get a captain marvel mini every few years.