Event: Marvel vs Jack Kirby: Legal Rights and Ethical Might

[Francis Dawson]

Forthcoming event at the Center for Cartooning Studies, White River Junction, Vermont. Cartoonist Steve Bisette, who has called for a boycott of all Marvel product due to their treatment of Kirby (http://srbissette.com/?p=12761) will be joined by Oliver Goodenough from the Vermont Law School.

http://thepanelists.org/2011/10/kirby-in-vermont/

I completely agree with Bisette's stance and sincerely hope that Marvel reaches an agreement with Kirby's heirs that is at least equivalent to Stan Lee's 2005 settlement. The moral case for this is totally compelling. You should think so too, if you don't then shame on you. The thread on this board when the judge ruled in favour of Marvel was one of the most wretched things I've ever read.

http://forums.comicbookresources.com/showthread.php?t=378489

Boycott Marvel. Make Mine Kirby.

[Brian M.]

I just want to conto us to read comic books.

[Gryphon]

If they hadnt tried to take the rights to characters Kirby didnt create or that other creators had just as if not more important roles in creating, I might feel differently.

[Iron Maiden]

While I am very sympathetic to the fact that Jack Kirby deserved more while he was alive I also recognize that in those times it was done as work for hire and Jack Kirby knew this. He was considered a "no hire" at DC because of running afoul of an editor over there who was taking his cut over the Sky Commanders comic strip. So he took his chances with Marvel. Did Martin Goodman do right by him? Probably not and that is why he moved over to DC. He was a freelancer. Just like if I created a software program for a company I work for, I know they have the rights to it. If I want to market it myself, I undertake all the risks, hire staff etc. When Kirby and Simon ran a shop together, they used the practice of work for hire also as I recall but please correct me if I am wrong. That's just the way things were done.

I'd love to see Disney/Marvel give some kind of remuneration to the Kirby heirs and perhaps they will some day. But the Marvel of today has very little relation to the Marvel of Kirby's days so I don't feel compelled to boycott.

[Francis Dawson]

Erratum: the event is taking place at Vermont Law School.

http://www.cartoonstudies.org/index.php/2011/10/13/marvel-vs-jack-kirby-legal-rights-ethical-might/

[Francis Dawson]

If they hadnt tried to take the rights to characters Kirby didnt create or that other creators had just as if not more important roles in creating, I might feel differently.

My understanding is that the Kirby heirs were exercising their right under the Copyright Act of 1976 to regain control of "Kirby Works" created between '58 and '63 which were defined as "authored or co-authored." That wording doesn't negate the contribution made by others.

http://ipbrief.net/volume2/issue1.pdf (scroll down for the Kirby article).

[Kenny Rogers]

Already not buying any Marvel product. I wish the Kirby family all the luck in their fight for just compensation.

[Leunames]

I sympathize with the Kirby family. But the fact is that by boycotting I become an active participant in this legal battle and if anyone knows the economic concept of utility, mine goes down to zero if I do this.

My favorite character is Galactus. He appears in few issues enough as it is; compared to the avengers and the FF, he basically never appears. My "boycott" would not only go totally unregistered by the sales data at my local comic shop, it would hurt me far, far, far more than it would hurt my comic shop, much less Marvel.

That's just me, and having read the links posted above, I don't see that as "rationalizing" or any other blanket label term. it's simply an economic principal of utility.

[pedroparkero]

Already not buying any Marvel product. I wish the Kirby family all the luck in their fight for just compensation.

are they fighting for compensation or total control?

i am for compensation but total control of spider-man? hell no!

[dr chimp]

My understanding is that the Kirby heirs were exercising their right under the Copyright Act of 1976 to regain control of "Kirby Works" created between '58 and '63 which were defined as "authored or co-authored." That wording doesn't negate the contribution made by others.

http://ipbrief.net/volume2/issue1.pdf (scroll down for the Kirby article).

i don't see how kirby's heirs can win this tho.

It's already been ruled as work for hire and "the Act expressly prohibits an author of a “work made for hire” from exercising a termination right on their creation. Instead, a work for hire vests the rights of copyright in the employer"

however i only read some of that article so there may be more to it.

on a side note was all of kirby's work ever returned to him or does marvel still have the vast majority of it? I can't work out how to google the answer to that and i've been curious.

[Iron Maiden]

i don't see how kirby's heirs can win this tho.

It's already been ruled as work for hire and "the Act expressly prohibits an author of a “work made for hire” from exercising a termination right on their creation. Instead, a work for hire vests the rights of copyright in the employer"

however i only read some of that article so there may be more to it.

on a side note was all of kirby's work ever returned to him or does marvel still have the vast majority of it? I can't work out how to google the answer to that and i've been curious.

As for Kirby's work, he did get some of it back but definitely not all of it. I recall reading in another book about Marvel's early days is that they were very lax in storing and maintaining some of it. It was not a very secure environment. I think it was Steranko who first complained to Stan about it. Some staff members were a bit light fingered and would take stuff and sell in at the early comic cons or some other buyer. I honestly don't think anyone thought back then that some of it would sell for 5 figures or so today. I imagine of someone asked Tom B at his formspring, he could clarify. But a lot of that stuff just sort of "walked away".

[dr chimp]

As for Kirby's work, he did get some of it back but definitely not all of it. I recall reading in another book about Marvel's early days is that they were very lax in storing and maintaining some of it. It was not a very secure environment. I think it was Steranko who first complained to Stan about it. Some staff members were a bit light fingered and would take stuff and sell in at the early comic cons or some other buyer. I honestly don't think anyone thought back then that some of it would sell for 5 figures or so today. I imagine of someone asked Tom B at his formspring, he could clarify. But a lot of that stuff just sort of "walked away".

i think later though it was ruled that all art belonged to the artist not the company. Every artist received all the existing art in the company archives apart from kirby who only received around 20% and that was after a battle. However, I cant remember why Kirby had to fight for his art when everyone got theirs without hassle, why he only got a percentage and exactly what did happen to rest of it. Was it returned later or do marvel still have it and what did marvel want kirby to sign before they returned his art? This is only from shoddy memory though so could be nonsene though i seem to remember it having something to do with just how much kirby contributed to the creation of characters and writing of stories - the pages had lots of annotations, script notes etc on them that showed he was heavily involved in the scripts as well as the visuals and pages. I only bring it up as an example of the very shoddy treatment of kirby although someone on here will be able to give a proper account of what happened.

However, none of this will have any impact on the fact that as I understand it Kirby's heirs will lose their case. Such is life especially when its the companies that write the law

[DeadXMan]

Didn't the courts just rule in marvel's favor?

[Alan2099]

As for Kirby's work, he did get some of it back but definitely not all of it. I recall reading in another book about Marvel's early days is that they were very lax in storing and maintaining some of it. It was not a very secure environment. I think it was Steranko who first complained to Stan about it. Some staff members were a bit light fingered and would take stuff and sell in at the early comic cons or some other buyer. I honestly don't think anyone thought back then that some of it would sell for 5 figures or so today. I imagine of someone asked Tom B at his formspring, he could clarify. But a lot of that stuff just sort of "walked away".
Heck, Stan and some of the other top guys sued to just give the artwork away as keepsakes to people that visited. On top of that, lots of it just ended up in the garbage.


i think later though it was ruled that all art belonged to the artist not the company. Every artist received all the existing art in the company archives apart from kirby who only received around 20% and that was after a battle. However, I cant remember why Kirby had to fight for his art when everyone got theirs without hassle, why he only got a percentage and exactly what did happen to rest of it. Was it returned later or do marvel still have it and what did marvel want kirby to sign before they returned his art? This is only from shoddy memory though so could be nonsene though i seem to remember it having something to do with just how much kirby contributed to the creation of characters and writing of stories - the pages had lots of annotations, script notes etc on them that showed he was heavily involved in the scripts as well as the visuals and pages. I only bring it up as an example of the very shoddy treatment of kirby although someone on here will be able to give a proper account of what happened.

However, none of this will have any impact on the fact that as I understand it Kirby's heirs will lose their case. Such is life especially when its the companies that write the law

The decision to return the art was made while Kirby was in the process of suing Marvel. Marvel's lawyers thought t would look bad to return it the for some reason, perhaps they thought it would look like they were admitting guilt or something, I'm not sure. Regardless, that's why Kirby didn't get his art back when everybody else did.

[dr chimp]

Heck, Stan and some of the other top guys sued to just give the artwork away as keepsakes to people that visited. On top of that, lots of it just ended up in the garbage.



The decision to return the art was made while Kirby was in the process of suing Marvel. Marvel's lawyers thought t would look bad to return it the for some reason, perhaps they thought it would look like they were admitting guilt or something, I'm not sure. Regardless, that's why Kirby didn't get his art back when everybody else did.

ahh heres a very good essay http://archives.tcj.com/aa02ss/n_marvel.html that involved work for hire and return of art. the article states that kirby got 1,900 pages back eventually. although that was obviously far short of the total number of pages he drew for marvel so there must still be thousands of pages somewhere unless things changed since that article was published in 2002.

[Iron Maiden]

i think later though it was ruled that all art belonged to the artist not the company. Every artist received all the existing art in the company archives apart from kirby who only received around 20% and that was after a battle. However, I cant remember why Kirby had to fight for his art when everyone got theirs without hassle, why he only got a percentage and exactly what did happen to rest of it. Was it returned later or do marvel still have it and what did marvel want kirby to sign before they returned his art? This is only from shoddy memory though so could be nonsene though i seem to remember it having something to do with just how much kirby contributed to the creation of characters and writing of stories - the pages had lots of annotations, script notes etc on them that showed he was heavily involved in the scripts as well as the visuals and pages. I only bring it up as an example of the very shoddy treatment of kirby although someone on here will be able to give a proper account of what happened.

However, none of this will have any impact on the fact that as I understand it Kirby's heirs will lose their case. Such is life especially when its the companies that write the law

As for the annotations, you are correct. I've seen a lot of scans in the Jack Kirby Collector showing the margin notes etc. But I also saw something very interesting on a cable show on the Scfy channel about memorabilia auctions called Hollywood Treasures. Someone brought in an early FF page to Joe Maddelana to evalutate and put up for auction. It was a very early issue, I want to say certainly before issue 30 or so. Joe took it to Stan Lee and he verified it of course but the interesting thing is it also included Stan's notes on the page. He said (of course, accounting for the potential of Stan's bad memory) he usually hasn't seen many pages that still had his notes on them since he usually erased them once he got the pages back again from Kirby. I don't think anyone denies that they collaborated etc. but there's always been an argument as to who did what, etc.

[dr chimp]

As for the annotations, you are correct. I've seen a lot of scans in the Jack Kirby Collector showing the margin notes etc. But I also saw something very interesting on a cable show on the Scfy channel about memorabilia auctions called Hollywood Treasures. Someone brought in an early FF page to Joe Maddelana to evalutate and put up for auction. It was a very early issue, I want to say certainly before issue 30 or so. Joe took it to Stan Lee and he verified it of course but the interesting thing is it also included Stan's notes on the page. He said (of course, accounting for the potential of Stan's bad memory) he usually hasn't seen many pages that still had his notes on them since he usually erased them once he got the pages back again from Kirby. I don't think anyone denies that they collaborated etc. but there's always been an argument as to who did what, etc.

be great if someone could reassemble a copy of fantastic four using the original pages and all the margin notes. even if there were erased it must be possible to "see" them from the impressions left in the paper from the pencil.

interesting that gary groth mentioned that kirby should have been recompensed for all the pages that were "stolen" and lost. if that never happened then it must run in to millions. how much does a galactus splash page go for?

[Mister Mets]

It seems to me too much expect Marvel to offer Kirby's heirs the equivalent of what they offered Stan.

For Marvel, Stan's contributions without Kirby (Spider-Man, Daredevil, Doctor Strange) exceeded Kirby's contributions without Stan.

Then there's everything Stan's done for the company as its most significant spokesman for the last fifty years, along with the difference between paying a legend and paying a legend's heirs.

[Francis Dawson]

It seems to me too much expect Marvel to offer Kirby's heirs the equivalent of what they offered Stan.

For Marvel, Stan's contributions without Kirby (Spider-Man, Daredevil, Doctor Strange) exceeded Kirby's contributions without Stan.

Then there's everything Stan's done for the company as its most significant spokesman for the last fifty years, along with the difference between paying a legend and paying a legend's heirs.

Kirby transformed the Marvel/ Timely line and was the primary 'author' of the 'Marvel universe' during the time frame we're discussing ('58 - '63).

Besides, the really significant point is that even Stan Lee, exemplary company man like you say, had to resort to litigious means to be appropriately remunerated. Corporations rarely - if ever - do things because it is fair or the right thing to do. They respond to legal threat and challenge and the exertion of moral and commercial pressure. Boycott Marvel.

[Iron Maiden]

Kirby transformed the Marvel/ Timely line and was the primary 'author' of the 'Marvel universe' during the time frame we're discussing ('58 - '63).

Besides, the really significant point is that even Stan Lee, exemplary company man like you say, had to resort to litigious means to be appropriately remunerated. Corporations rarely - if ever - do things because it is fair or the right thing to do. They respond to legal threat and challenge and the exertion of moral and commercial pressure. Boycott Marvel.


I think that is debatable about Jack Kirby being the primary author. What about the titles created without Kirby? Daredevil, Spider-Man, etc. He did contribute for sure and I think Stan probably gave him more leeway on a title than say, Don Heck or John Romita, etc. It was a collaboration and even Kirby's biggest defender Mark Evanier will not contest that.

[Francis Dawson]

Perhaps primary was the wrong choice of words - I think 'central' or 'most significant' describes what I'm getting at. Kirby was also the 'house style' don't forget.

[RDMacQ]

I think that is debatable about Jack Kirby being the primary author. What about the titles created without Kirby? Daredevil, Spider-Man, etc. He did contribute for sure and I think Stan probably gave him more leeway on a title than say, Don Heck or John Romita, etc. It was a collaboration and even Kirby's biggest defender Mark Evanier will not contest that.

Well, Kirby did claim he was the primary author, and Stan just helped out. He pointed to the fact that he continued to create numerous projects after he left Marvel (like the Fourth World over at DC) while Stan Lee's contributions diminished. I don't know how much of this is true or not, but I think the divide between Stan being the writer and Jack being the artist is not as clear as it could be.

As per the debate, I have to admit, as bad as I feel for Jack and his estate not seeing a share of the profits off of the characters they helped to create, I do kind of get the court's ruling on the matter in that it was Marvel itself that shouldered the burden of marketing these characters and developing their brand. I don't know what type of financial investment Kirby had in marketing these properties, but the burden to produce the comic probably didn't come out of his own pockets. Not to say that the Kirby estate shouldn't see any compensation for the work Jack did. Just that it's not a total crime that Jack where he got totally screwed over.

[AnthonyJ]

As far as legal rights goes, they appear to be pretty solidly on the side of Marvel. As far as ethical might goes, I'm not particularly impressed with either side here, but in general the theory is that the person taking the risk is the person who gets the rewards. If you're being paid on a salary, you're not taking a risk.

[RDMacQ]

As far as legal rights goes, they appear to be pretty solidly on the side of Marvel. As far as ethical might goes, I'm not particularly impressed with either side here, but in general the theory is that the person taking the risk is the person who gets the rewards. If you're being paid on a salary, you're not taking a risk.

I think the Kirby estate lost a little of it's credibility when they included Spider-Man in their demands. While it is true that Jack did originate the initial concept, the character when he was finally unveiled is so different from the version Jack created it's hardly the same anymore. And it was more Stan and Steve who developed and nurtured that franchise than Jack Kirby.

[Darrell D.]

I think that is debatable about Jack Kirby being the primary author. What about the titles created without Kirby? Daredevil, Spider-Man, etc. He did contribute for sure and I think Stan probably gave him more leeway on a title than say, Don Heck or John Romita, etc. It was a collaboration and even Kirby's biggest defender Mark Evanier will not contest that.

Kirby designed the entire line. Guys like Romita, Sr, John Buscema, don Heck, all established artists, were told to do it like Jack. Jack would do several breakdown pages to get them started.
Without Jack there would be no Marvel today.
And without Stan, the same.

[Darrell D.]

If they hadnt tried to take the rights to characters Kirby didnt create or that other creators had just as if not more important roles in creating, I might feel differently.

Examples? Spider-man? Yeah, I know, but for the longest time, Lee wouldn't even acknowledge Ditko's contribution to the creation.

The Simon/Kirby Spiderman concept existed, and the case put forth that Lee used that concept for some of the ideas.

[Alan2099]

Interestingly enough on the Spider-man side of things, Jim Shooter (one of the few guys that actualy has ever SAW Kirby's Spider-man design) once talked to Kirby about how he claimed to have made Spider-man. Kirby's response was basically "You know, now that you mention it, yeah, I guess I really didn't have much to do with that. I'd completley forgotten until you said something." And shortly after that, Kirby went on stage at a con and talked about how he had created Spider-man.

[Francis Dawson]

While I am very sympathetic to the fact that Jack Kirby deserved more while he was alive I also recognize that in those times it was done as work for hire and Jack Kirby knew this.

Regarding your point that Kirby "knew" that he was doing work-for-hire Dick Ayers, Gene Colan, Joe Sinnot, Neal Adams, and Jim Steranko have all given declarations in support of Kirby's heirs saying they never considered their work as work for hire. There were no contracts drawn up during the period under consideration ('58-'63). Kirby worked out of his own house as a freelancer with no contract or employment agreement. Kirby did not grant Marvel the copyrights to his work until 1972 (under duress). My understanding is that Marvel did not start sending out their notorious work-for-hire cheques until the early 70s (late 60s at earliest). Work-for-hire did not become a cast iron principle at Marvel until the Shooter era. In the absence of any contractual proof that this period ('58-'63) was work for hire Judge MacMohan used the instance-and-expense test.

[DeadXMan]

It seems to me too much expect Marvel to offer Kirby's heirs the equivalent of what they offered Stan.

For Marvel, Stan's contributions without Kirby (Spider-Man, Daredevil, Doctor Strange) exceeded Kirby's contributions without Stan.

Then there's everything Stan's done for the company as its most significant spokesman for the last fifty years, along with the difference between paying a legend and paying a legend's heirs.

That's the thing. Stan offered Jack an equal partnership that Jack turned down to free lance at DC. he would of had everything Stan got

[Francis Dawson]

He was a freelancer. Just like if I created a software program for a company I work for, I know they have the rights to it. If I want to market it myself, I undertake all the risks, hire staff etc.

The example of work-for-hire software programmers often arises in these discussions. I'm not at all knowledgeable in this area and I may be chastised for this but it seems to me that there are x number of highly skilled programmers who could collaborate on 'Windows' or 'Photoshop' but there is a very specific and unreplicable 'alchemy' in creatively midwifing a resonant fictional chracter. If said character subsequently goes on to generate millions or billions of pounds then it seems to me wholly reasonable that the creator should be substantially remunerated. So I don't think the comparison is apt.

[Francis Dawson]

That's the thing. Stan offered Jack an equal partnership that Jack turned down to free lance at DC. he would of had everything Stan got

Could you link me to sources for this? Thanks.

[Francis Dawson]

When Kirby and Simon ran a shop together, they used the practice of work for hire also as I recall but please correct me if I am wrong. That's just the way things were done.

I'd also appreciate somebody dropping some knowledge about whether this was the case.

[Iron Maiden]

I'd also appreciate somebody dropping some knowledge about whether this was the case.

About Kirby and Simon and work for hire, I can go pull out the books I have at home and give you the source. I might have been included in Evanier's "Kirby: King of Comics" or possibly another. I'd have to go to my bookcase at home.

[Iron Maiden]

That's the thing. Stan offered Jack an equal partnership that Jack turned down to free lance at DC. he would of had everything Stan got

I am not sure if it was that or Art Director, the position that Romita Sr. took which Kirby may have been offered and turned down.

[superchick]

The way I see it is this. I work in marketing. If I created a marketing programme that helped expand my company significantly I would expect a great bonus. If not that I'd have great ammo for a pay rise when my contract negotiations come around again. If not, I can flaunt this to another employer who may be more generous. But I signed a contract that said my creative output would be paid for as stated. I am owed nothing more.

If I have an idea outside my job and then apply it to my job and it takes off I would think the same way. I know the terms. I am owed nothing for using that idea. I didn't have to and perhaps it couldn't have been pulled off without the reach and resources of my company. So why should I expect more?

[Francis Dawson]

But the Marvel of today has very little relation to the Marvel of Kirby's days so I don't feel compelled to boycott.

I can't agree with this. Of course the personnel are different but to whom should I address a grievance that might result in the change I wish to see? Stan Lee? Martin Goodman's cadaver? It is the current Marvel / Disney corporation who are stiffing Kirby's heirs. Of course we should be thankful that conditions for comic-book makers are better in many respects than in previous generations but these were fought for tooth and nail by tenacious people like Neal Adams and Gary Groth. Now as ever improvements are only made by wrenching them from cold, dead, corporate hands. Boycott Marvel.

[Francis Dawson]

I sympathize with the Kirby family. But the fact is that by boycotting I become an active participant in this legal battle and if anyone knows the economic concept of utility, mine goes down to zero if I do this.

My favorite character is Galactus. He appears in few issues enough as it is; compared to the avengers and the FF, he basically never appears. My "boycott" would not only go totally unregistered by the sales data at my local comic shop, it would hurt me far, far, far more than it would hurt my comic shop, much less Marvel.

That's just me, and having read the links posted above, I don't see that as "rationalizing" or any other blanket label term. it's simply an economic principal of utility.

Hmmm, I'm sure Galactus will continue to appear sporadically in Marvel comics with or without your economic utility.

successful boycott's are powerful economic pressures. If you do sympathise with the cause then I would encourage you to seriously consider it.

One other point is that the boycott is not in any way intended to harm or punish your LCS. Switch to titles published by other companies - creator owned material ideally.

[nomadic writer]

I'd also appreciate somebody dropping some knowledge about whether this was the case.

John Byrne mentions it at his forum here (http://www.byrnerobotics.com/forum/forum_posts.asp?TID=39494&PN=0&TPN=1):


Difference being Siegel and Shuster were able to show EXACTLY that, that Superman had been created independently and SOLD to National Periodicals, and was not a "work made for hire".

Everything Kirby did for Marvel falls squarely within the latter category.

Work-for-hire was a sucky system, but it was the only game in town, for most people. It was also not a secret, and, perhaps most significantly, it was how Kirby ran his own company, in the 1950s.

[Gryphon]

Examples? Spider-man? Yeah, I know, but for the longest time, Lee wouldn't even acknowledge Ditko's contribution to the creation.

The Simon/Kirby Spiderman concept existed, and the case put forth that Lee used that concept for some of the ideas.

Iron Man. Kirby drew the cover which had the initial costume but most of the work wa done by Don Heck who hasnt been acknowleged as a co creator, as well Ditko created the more recognizable second armour. As well Kirby may have created the hulk, but contrary to his claims, it wasnt he who made the concept of the hulk transforming due to anger/fear/anxiety it was Ditko.

[dr chimp]

The way I see it is this. I work in marketing. If I created a marketing programme that helped expand my company significantly I would expect a great bonus. If not that I'd have great ammo for a pay rise when my contract negotiations come around again. If not, I can flaunt this to another employer who may be more generous. But I signed a contract that said my creative output would be paid for as stated. I am owed nothing more.

If I have an idea outside my job and then apply it to my job and it takes off I would think the same way. I know the terms. I am owed nothing for using that idea. I didn't have to and perhaps it couldn't have been pulled off without the reach and resources of my company. So why should I expect more?

thats the crux of the issue though - exactly how kirby was "employed" (cant think of word i am looking for there) by marvel affects the whole legal status of his work.

francis, i still dont understand the issue here though. 1959-63 was decided by the judge as work for hire no?

[Gryphon]

I think that is debatable about Jack Kirby being the primary author. What about the titles created without Kirby? Daredevil, Spider-Man, etc. He did contribute for sure and I think Stan probably gave him more leeway on a title than say, Don Heck or John Romita, etc. It was a collaboration and even Kirby's biggest defender Mark Evanier will not contest that.


Well, Kirby did claim he was the primary author, and Stan just helped out. He pointed to the fact that he continued to create numerous projects after he left Marvel (like the Fourth World over at DC) while Stan Lee's contributions diminished. I don't know how much of this is true or not, but I think the divide between Stan being the writer and Jack being the artist is not as clear as it could be.

As per the debate, I have to admit, as bad as I feel for Jack and his estate not seeing a share of the profits off of the characters they helped to create, I do kind of get the court's ruling on the matter in that it was Marvel itself that shouldered the burden of marketing these characters and developing their brand. I don't know what type of financial investment Kirby had in marketing these properties, but the burden to produce the comic probably didn't come out of his own pockets. Not to say that the Kirby estate shouldn't see any compensation for the work Jack did. Just that it's not a total crime that Jack where he got totally screwed over.

The book, comics101 had an analysis by the authors whihc pointed out that if Lee had such a minimal part as Kirby claimed, thne there should have been no real difference between his work alone and the work he did with Lee and that simply isnt the case. Kirby's cap run read far differently to his run with Lee. I recomend the book comics101 as its a great read.

[Rasputin9977]

I always saw Kirby and his heirs as opportunists. It was work for hire. The courts agreed to it. The end.

[RDMacQ]

The book, comics101 had an analysis by the authors whihc pointed out that if Lee had such a minimal part as Kirby claimed, thne there should have been no real difference between his work alone and the work he did with Lee and that simply isnt the case. Kirby's cap run read far differently to his run with Lee. I recomend the book comics101 as its a great read.

Well, as I stated, I don't know how much of it is true or not. I certainly have no doubt that Kirby might have believed that he was doing the majority of the work, but memory is a tricky thing, and what one person remembers might not line up with the actual history. Heck, Stan Lee pointed out that he didn't know how they came up with most of the characters they created over the years, and his "stories" in the Origins of Marvel Comics were largely fabricated for the sake of a story. And the great argument that apparently led to Steve Ditko leaving Spider-Man- that he wanted the Green Goblin to be an unknown character while Stan wanted him to be an established character- was also a complete fabrication that became accepted as "common knowledge," when in reality Steve was planning on having Norman Osborn to be revealed as GG for a long time. So someone's "recollection" on events that transpired in the past often do have to be taken with a grain of salt.

[RDMacQ]

I always saw Kirby and his heirs as opportunists. It was work for hire. The courts agreed to it. The end.

I don't think it's as simple as that. Even creators nowadays are able to recieve money for their creators, even under work for hire projects. Chuck Dixon got paid for when they used Bane in Batman & Robin. Len Wein has made money off of the Lucius Fox character, more than he made off of Wolverine. It's not as extreme as all rights being returned to the creators, but merely providing them with the funds that are earned due to their contributions.

[Mark Evanier]

That's the thing. Stan offered Jack an equal partnership that Jack turned down to free lance at DC. he would of had everything Stan got

ME: Absolutely false.

[Mark Evanier]

The decision to return the art was made while Kirby was in the process of suing Marvel.

ME: Jack Kirby never sued Marvel.

[Francis Dawson]

^ And here speaks someone who really knows their Kirby onions. Thanks for joining the discussion Mark.

[Mark Evanier]

And here speaks someone who really knows their Kirby onions. Thanks for joining the discussion Mark.

ME: I am actually not joining the discussion because there is much that I'm not able to discuss. Just correcting a few of the more obvious fictions I chanced to notice. I have not even read the entire thread.

[Francis Dawson]

Understood. Thanks for the interventions anyway.

[dr chimp]

ME: I am actually not joining the discussion because there is much that I'm not able to discuss. Just correcting a few of the more obvious fictions I chanced to notice. I have not even read the entire thread.

hi mark, does the court case mean the end of the issue or can we expect further developments? (obviously without any specifics)

[GavinR]

I just wish he would get more credit for his creations. I can't stand the fact that so many younger comic readers think that Stan Lee really did create all those Marvel characters on his own. The thing he DID create was "The Marvel Method" which was a way to make other people do the bulk of the initial work.

[Darrell D.]

Iron Man. Kirby drew the cover which had the initial costume but most of the work wa done by Don Heck who hasnt been acknowleged as a co creator, as well Ditko created the more recognizable second armour. As well Kirby may have created the hulk, but contrary to his claims, it wasnt he who made the concept of the hulk transforming due to anger/fear/anxiety it was Ditko.

Yeah, Iron Man is a tricky one, as he allegedly designed the original armor, but Ditko designed the first red and gold streamlined version.
And regardless, Kirby still designed the Hulk. He created the design, the concept, and the look, not Ditko.

[Darrell D.]

I just wish he would get more credit for his creations. I can't stand the fact that so many younger comic readers think that Stan Lee really did create all those Marvel characters on his own. The thing he DID create was "The Marvel Method" which was a way to make other people do the bulk of the initial work.

It seems to me 'the Marvel Method' was born out of necessity. There was no way that Stan could do full scripts for all the books, and Kirby was always an idea man, as well as a storyteller extraordinaire. The downside, for the story tellers, is they got the short end of the stick in terms of credit.
And, yeah, it would be nice to see creator credits on the books. Ditko's and Kirby's creations are always credited when they appear in DC books.

[Mark Evanier]

hi mark, does the court case mean the end of the issue or can we expect further developments? (obviously without any specifics)

ME: The decision was the decision of one judge. Other, higher courts can overrule and the Kirbys' lawyer is petitioning them to do so. How likely this is to happen is outside my area of expertise. I suspect it's also beyond the expertise of most folks, including some who've passed the bar, who insist they know exactly how it will go. They all seem to express different, contradictory opinions.

I don't know what to expect. I will just tell you that an awful lot of people on the Internet who are predicting why the Kirbys will win or why the Kirbys will lose are expressing theories that have nothing to do with anything that either side is asserting in the actual case.

[Darrell D.]

Hey, Mark, when can we expect the big Kirby Bio you are working on?
The King of Comics book was just wonderful, and thank you so much for it.

[Gryphon]

Yeah, Iron Man is a tricky one, as he allegedly designed the original armor, but Ditko designed the first red and gold streamlined version.
And regardless, Kirby still designed the Hulk. He created the design, the concept, and the look, not Ditko.

Well thats the thing, the hulk as Kirby created him was a SLIGHTLY different concept, since he transformed at night. The hulk as everyone knows him transforms due to anger/fear/anxiety and that was ditko.

[dr chimp]

ME: The decision was the decision of one judge. Other, higher courts can overrule and the Kirbys' lawyer is petitioning them to do so. How likely this is to happen is outside my area of expertise. I suspect it's also beyond the expertise of most folks, including some who've passed the bar, who insist they know exactly how it will go. They all seem to express different, contradictory opinions.

I don't know what to expect. I will just tell you that an awful lot of people on the Internet who are predicting why the Kirbys will win or why the Kirbys will lose are expressing theories that have nothing to do with anything that either side is asserting in the actual case.

thanks for the update. its all very complicated to follow.

(however i have been inspired to get a copy of the king of comics next payday)

[StoneGold]

ME: The decision was the decision of one judge. Other, higher courts can overrule and the Kirbys' lawyer is petitioning them to do so. How likely this is to happen is outside my area of expertise. I suspect it's also beyond the expertise of most folks, including some who've passed the bar, who insist they know exactly how it will go. They all seem to express different, contradictory opinions.

I don't know what to expect. I will just tell you that an awful lot of people on the Internet who are predicting why the Kirbys will win or why the Kirbys will lose are expressing theories that have nothing to do with anything that either side is asserting in the actual case.

I think I can accurately predict this much -- the only ones who get rich are the lawyers.

[The_Ronin]

Forthcoming event at the Center for Cartooning Studies, White River Junction, Vermont. Cartoonist Steve Bisette, who has called for a boycott of all Marvel product due to their treatment of Kirby (http://srbissette.com/?p=12761) will be joined by Oliver Goodenough from the Vermont Law School.

http://thepanelists.org/2011/10/kirby-in-vermont/

I completely agree with Bisette's stance and sincerely hope that Marvel reaches an agreement with Kirby's heirs that is at least equivalent to Stan Lee's 2005 settlement. The moral case for this is totally compelling. You should think so too, if you don't then shame on you. The thread on this board when the judge ruled in favour of Marvel was one of the most wretched things I've ever read.

http://forums.comicbookresources.com/showthread.php?t=378489

Boycott Marvel. Make Mine Kirby.

I thought Kirby was dead.

[Iron Maiden]

The example of work-for-hire software programmers often arises in these discussions. I'm not at all knowledgeable in this area and I may be chastised for this but it seems to me that there are x number of highly skilled programmers who could collaborate on 'Windows' or 'Photoshop' but there is a very specific and unreplicable 'alchemy' in creatively midwifing a resonant fictional chracter. If said character subsequently goes on to generate millions or billions of pounds then it seems to me wholly reasonable that the creator should be substantially remunerated. So I don't think the comparison is apt.

It is in the respect that the work you produce while under their employment belongs to the company. Simple as that. My brother wrote a series of program for one of the largest steel producing companies and they were written specifically for the company. The company owned the programs but it's not like they were in the business of marketing software. But you have to sign papers saying that the ideas could not be used elsewhere in case he and said company parted ways. You might get bonus money or your union might allow for profit sharing. But it has to be in writing. The comic book company at that time would have hired and paid for the inkers, lettering, printing and distribution of the product. Artists were paid a page rate and that was that. If you want to share in the profits, that would have to be something specifically written in a contract and as you say no one had a contract. You simply were paid by the number of pages you produced.

Think about the film industry and how the unions had to negotiated specific contracts that allowed for an actor get paid residuals for a TV series. Or negotiate a film deal that has points clause. Could Jack Kirby have done this? I suppose he could have tried but more than likely he would not have been hired under those circumstances in that era. Jack Kirby would prowl the streets of NYC during the lean times of the 1950's trying to scrape up any work he could find. Was that fair? No but life isn't fair to a lot of people in the days before the profit potential for a simple, almost throwaway product like a comic book would turn into millions if not billions of dollars when you add in product licensing, films, etc.

[Iron Maiden]

I can't agree with this. Of course the personnel are different but to whom should I address a grievance that might result in the change I wish to see? Stan Lee? Martin Goodman's cadaver? It is the current Marvel / Disney corporation who are stiffing Kirby's heirs. Of course we should be thankful that conditions for comic-book makers are better in many respects than in previous generations but these were fought for tooth and nail by tenacious people like Neal Adams and Gary Groth. Now as ever improvements are only made by wrenching them from cold, dead, corporate hands. Boycott Marvel.

I think you are several decades too late for this battle. If an artist like Jim Lee can own a villa in Italy and not even have to draw a monthly comic I'd say that the creators have won. It would have been better had this happened when Kirby was at his creative peak because I would rather he and his wife had the cash while they were alive to enjoy a better standard of living.

[StoneGold]

I think you are several decades too late for this battle. If an artist like Jim Lee can own a villa in Italy and not even have to draw a monthly comic I'd say that the creators have won. It would have been better had this happened when Kirby was at his creative peak because I would rather he and his wife had the cash while they were alive to enjoy a better standard of living.

An artist like Jim Lee can't do that. Jim Lee can do that. And that had less to do with artistry, more to do with being a businessman at just the right point of time.

[Iron Maiden]

An artist like Jim Lee can't do that. Jim Lee can do that. And that had less to do with artistry, more to do with being a businessman at just the right point of time.

Well, the wording might be awkward since you could be a Jim Lee imitator and live in Cleveland. :biggrin: Lee's total creative output is a fraction of Kirbys but he's living the high life. He hit it big at the right time.

But you bring up a very valid point and that is Kirby was certainly not as business savvy as the freelancers are today. For a lot of his creative career he was at the mercy of some pretty low times for the comic book industry.

[GavinR]

BTW, on a side note...since the great Mark Evanier is responding to this thread I will do a bit of praising.

I got your Kirby: King of Comics book as a gift around the time when it first came out. It is one of the most awesome gifts my mom has ever given me. First off, it showed that she really knew what I wanted (Also due to Amazon wish lists), and secondly because it is a really well put together book. I've read it several times and often crack it open just to appreciate Jack's amazing artwork.

[jackolover]

I think creation over-rides "work for hire", once an product becomes such a big money spinner. It's nice to package away an artists contribution in creation as "work for hire" because that negates the artist having any claims. However, this shouldn't be an argument of "work for hire" once the product becomes so vast. They should get new Lawyers that can argue an overruling of "work for hire" in cases of highly popularized characters. It's just like archetects who take credit for their designs, even though they work for a company.

[Gryphon]

I think creation over-rides "work for hire", once an product becomes such a big money spinner. It's nice to package away an artists contribution in creation as "work for hire" because that negates the artist having any claims. However, this shouldn't be an argument of "work for hire" once the product becomes so vast. They should get new Lawyers that can argue an overruling of "work for hire" in cases of highly popularized characters. It's just like archetects who take credit for their designs, even though they work for a company.

Thats not how it works.

[StoneGold]

Well, the wording might be awkward since you could be a Jim Lee imitator and live in Cleveland. :biggrin: Lee's total creative output is a fraction of Kirbys but he's living the high life. He hit it big at the right time.

But you bring up a very valid point and that is Kirby was certainly not as business savvy as the freelancers are today. For a lot of his creative career he was at the mercy of some pretty low times for the comic book industry.

Thing is, it's not freelancers today. Jim Lee is something of an anomaly. There were a couple of guys in the 90s who were able to become rather wealthy off of comics. Todd bought his balls, and such. but they are more the exceptions than the rules.

That said, I don't believe Kirby was ever hurting. He was just never compensated as well as the characters he created/co-created (not really worth getting into that argument) produced.


EDIT: None of this having absolutely anything to do with the case.


Although to a certain extent, welcome to the entertainment business.

[StoneGold]

I think creation over-rides "work for hire", .

I believe I can teach poodles how to fly.

http://www.youtube.com/watch?v=2kFGxH4wrs4




Awwwww, man!

[Iron Maiden]

Thing is, it's not freelancers today. Jim Lee is something of an anomaly. There were a couple of guys in the 90s who were able to become rather wealthy off of comics. Todd bought his balls, and such. but they are more the exceptions than the rules.

That said, I don't believe Kirby was ever hurting. He was just never compensated as well as the characters he created/co-created (not really worth getting into that argument) produced.


EDIT: None of this having absolutely anything to do with the case.


Although to a certain extent, welcome to the entertainment business.


I think Kirby was doing "ok" and I really don't think anyone in the industry from that era was exceptionally wealthy.
Martin Goodman never lived to see the billions that Marvel properties have earned . Yet all of this would be immaterial had Marvel gone belly up when Perelman's financial maneuvers were piling up debt owed by Marvel.

[thik_3rd]

buncha rabble rousers

[jackolover]

I believe I can teach poodles how to fly.

http://www.youtube.com/watch?v=2kFGxH4wrs4




Awwwww, man!

Okay, I'm not a lawyer. But surely it can't be that hard to find a precident to link creativity to the creature?

[StoneGold]

Okay, I'm not a lawyer.

You're just a humble caveman?


But seriously, no. You can't. That's why Thomas Edison invented the light bulb. Although I have no idea what the creature is. Other than this dude. And Kirby didn't create him.

http://www.16bit.com/toypics/universalmonsters/16blacklagoon/creature-head-full.jpg

[StoneGold]

I think Kirby was doing "ok" and I really don't think anyone in the industry from that era was exceptionally wealthy.
Martin Goodman never lived to see the billions that Marvel properties have earned . Yet all of this would be immaterial had Marvel gone belly up when Perelman's financial maneuvers were piling up debt owed by Marvel.

The key sticking point usually being Stan eventually got his deal. He got exceptionally wealthy. But no one else really got theirs. Now really, that's as much because Stan was the face of comics. Kirby wasn't. And I've heard stories that Stan could have potentially held out, tried to get Kirby his deal, but in the end, Stan's a Depression-era kid and was afraid it was going to cost him his deal and chickened out.


Although if Mark knows otherwise, I'm just repeating stuff I've heard from other people who would know better.

[AnthonyJ]

Okay, I'm not a lawyer. But surely it can't be that hard to find a precident to link creativity to the creature?
Sure. It's called "not doing work for hire".

[Darrell D.]

I always saw Kirby and his heirs as opportunists. It was work for hire. The courts agreed to it. The end.

yeah, when I think of one of the main architects of the Marvel Universe, I think, 'Opportunist!'
And there are these things called 'Appeals', so, nope, sorry, not the end.
If you need to know what an 'Appeal' is, or how they work, the internet machine is a wonderful thing for that kind of research.
Good luck.

[Kenny Rogers]

I don't know if its the background I come from or something but I am totally astounded when people call Kirby or his heirs greedy for wanting a piece of something The King created that has generated billions of dollars for corporate interests.

[XPac]

I don't know if its the background I come from or something but I am totally astounded when people call Kirby or his heirs greedy for wanting a piece of something The King created that has generated billions of dollars for corporate interests.

I think there's a seperation there between Kirby and Kirby's heirs.

If Kirby himself believed he deserved more that's one thing. But if Kirby himself considered himself work for hire, and it's just his heirs wanting a large piece of something Kirby himself didn't necessarily believe he was entitled to, that's something else.

[Iron Maiden]

I think there is a difference though in how Kirby created things at times. For example, think of the time honored story of how Goodman heard of DC's success with a team of superheroes and told Stan to come up with one. Thus was born the Fantastic Four. The germ of the idea came from an economic decision to come up with something to counter DC's team book. Stan and Jack were given the assignment because that's what their boss wanted.

Or take the X-Men. While Stan and Jack came up with the original title, it failed to catch on. It was the work of Neal Adams, Roy Thomas and later Chris Claremont, Dave Cockrum and John Byrne that shaped into the success it became.

[Mark Evanier]

If Kirby himself believed he deserved more that's one thing. But if Kirby himself considered himself work for hire, and it's just his heirs wanting a large piece of something Kirby himself didn't necessarily believe he was entitled to, that's something else.

ME: Mr. Kirby believed to his dying day that he was was cheated and lied to and that he was owed a lot more pay and credit than he got, and that he certainly was not doing "work for hire." If he was alive today, he would be the one pressing this action instead of his family. You will not find anyone who knew Jack who would dispute that.

[AnthonyJ]

And there are these things called 'Appeals', so, nope, sorry, not the end.
It's not the end, but the odds are most certainly stacked against the Kirby heirs at this point; losing at summary judgment is not a good sign for the future of a case.

[Darrell D.]

It's not the end, but the odds are most certainly stacked against the Kirby heirs at this point; losing at summary judgment is not a good sign for the future of a case.

Never said one way or the other, simply that the summary Judgement wasn't end.

[RDMacQ]

I think there is a difference though in how Kirby created things at times. For example, think of the time honored story of how Goodman heard of DC's success with a team of superheroes and told Stan to come up with one. Thus was born the Fantastic Four. The germ of the idea came from an economic decision to come up with something to counter DC's team book. Stan and Jack were given the assignment because that's what their boss wanted.

Or take the X-Men. While Stan and Jack came up with the original title, it failed to catch on. It was the work of Neal Adams, Roy Thomas and later Chris Claremont, Dave Cockrum and John Byrne that shaped into the success it became.

Of course there's also the notion that the X-Men were based on the Doom Patrol, given the significant similarities between the concepts and that they debuted within months of each other.

I think that's part of the problem with determining who is owed "what" sometimes in these cases, or proving one's worth. There is no clear "divide" as to who created what and who came up with what concept. Kirby claimed he was the one that did all the writing (going by an interview he and his wife several years ago) but is that an accurate claim or is was it merely someone remembering things in the best way possible? It's not like there are notes or memos that can link creators to one concept or another.

I think that the best message you can take from these proceedings is to always make sure you have the best contract, and keep track of what you own and created if dealing with intellectual properties.

[Personamanx]

Eh, Jack or his Heirs definitely deserved more. He was given some pretty damn bad deals. But what they were asking for was far too much. If they had aimed a bit more reasonably in the initial lawsuit everyone could have been happy.

I'm only reading one Marvel book at the moment. I enjoy it. I'm not going to drop it because of Jack Kirby's family.

[RDMacQ]

ME: Mr. Kirby believed to his dying day that he was was cheated and lied to and that he was owed a lot more pay and credit than he got, and that he certainly was not doing "work for hire." If he was alive today, he would be the one pressing this action instead of his family. You will not find anyone who knew Jack who would dispute that.

If I may, is there the possibility that- even though Jack did not believe he was "work for hire,"- that might have been how the company viewed his work at the time? I think it's safe to say that a lot of us do not know what the hiring practices were at comic companies back in the 60's (Hell, I'd wager it's safe to say that a lot of us do't know what the hiring practices are like these days). I think it might help the discussion to know what the conditions Jack and other creators were working under during this period of time.

[Darrell D.]

What is somewhat telling, is that Len Wein gets royalty payments for Lucius Fox in the Batman movies and animated series, and receives nothing for his most famous co-creation, Wolverine.

[AnthonyJ]

If I may, is there the possibility that- even though Jack did not believe he was "work for hire,"- that might have been how the company viewed his work at the time?
That doesn't necessarily matter, it's an issue of whether it fits the legal definition of work for hire. It's worth reading the Kirby decision (http://adistantsoil.com/wp-content/uploads/2011/07/Kirby-decision.pdf) whatever your personal opinions on the case are, because it includes a review of the evidence presented and the legal issues.

[RDMacQ]

That doesn't necessarily matter, it's an issue of whether it fits the legal definition of work for hire. It's worth reading the Kirby decision (http://adistantsoil.com/wp-content/uploads/2011/07/Kirby-decision.pdf) whatever your personal opinions on the case are, because it includes a review of the evidence presented and the legal issues.

So basically, neither the company nor the creator might have viewed the work done as "work for hire" or merely labelled it as such, but under the copyright law established in 1909, the work could be regarded as "work for hire" after the fact in order to assign some for of ownership to the material?

[AnthonyJ]

So basically, neither the company nor the creator might have viewed the work done as "work for hire" or merely labelled it as such, but under the copyright law established in 1909, the work could be regarded as "work for hire" after the fact in order to assign some for of ownership to the material?
Not what I was saying -- I was actually saying the reverse: just because one or the other party thought that it was work for hire doesn't necessarily mean they were correct in that belief.

[RDMacQ]

Not what I was saying -- I was actually saying the reverse: just because one or the other party thought that it was work for hire doesn't necessarily mean they were correct in that belief.

At the very least, that does seem to be good grounds for at least an appeal.

[Lorendiac]

He was a freelancer. Just like if I created a software program for a company I work for, I know they have the rights to it. If I want to market it myself, I undertake all the risks, hire staff etc.

On the other hand . . . I suspect that you, in the modern world, usually have written contracts specifying "who owns what" regarding any software programming you do on company time, etc.

As I understand it, a fundamental point in the claims of the Kirby heirs is that there was a vast lack of written agreements between Kirby and Marvel (back in the Silver Age) to show just what each side thought the rules of the game were, regarding freelance work which Kirby would draw in his own home and then carry over to Marvel's editorial offices and sell to Stan Lee.

Which strikes me as a ridiculous way to run a publishing company . . .

[RDMacQ]

On the other hand . . . I suspect that you, in the modern world, usually have written contracts specifying "who owns what" regarding any software programming you do on company time, etc.

As I understand it, a fundamental point in the claims of the Kirby heirs is that there was a vast lack of written agreements between Kirby and Marvel (back in the Silver Age) to show just what each side thought the rules of the game were, regarding freelance work which Kirby would draw in his own home and then carry over to Marvel's editorial offices and sell to Stan Lee.

Which strikes me as a ridiculous way to run a publishing company . . .

Well, keep in mind, no one knew that the Marvel characters were going to take off, and people were more focused on just getting the work done and producing content rather than focusing on who owns what. It may seem weird in a day and age where people keep a tight lock and key on all their intellectual properties, but back in the silver age and event he golden age the attitude might be more "get the work out" than "develop the property for further consideration down the road."

I mean, sure, it might seem foolish not to hold on to the rights of a character like Thor, given his recent success. But for every Thor, there is an "It, the Living Colossus" that is seen once and never seen again, or very rarely afterwards. Captain America might have made a comeback. But guys like the Destroyer and the Thunderer didn't have the same fortune. Characters were created and dropped left and right in those days.

[nomadic writer]

On the other hand . . . I suspect that you, in the modern world, usually have written contracts specifying "who owns what" regarding any software programming you do on company time, etc.

As I understand it, a fundamental point in the claims of the Kirby heirs is that there was a vast lack of written agreements between Kirby and Marvel (back in the Silver Age) to show just what each side thought the rules of the game were, regarding freelance work which Kirby would draw in his own home and then carry over to Marvel's editorial offices and sell to Stan Lee.

Which strikes me as a ridiculous way to run a publishing company . . .

The legal situation seems to be that an oral agreement, or just the factual details of an informal arrangement, is sufficient to rule it one way or the other. The judge applied the "instance and expense" test to determine whether the working relationship qualified as work for hire. (Essentially, in this case: did Stan Lee always talk to Kirby about the story before he started work on it, did Lee have the power to veto or request edits to pages, and did Kirby receive a fixed sum as payment rather than sales-dependent royalties.)

Based on that test, Kirby's work for Marvel was determined to fall under work for hire, so the burden was on the Kirby family to prove that there was a pre-existing contract that said differently, or that Jack Kirby had ever submitted work in a way that didn't match the requirements of the test (i.e. producing something on spec without being asked for it first). None of the evidence they submitted demonstrated proof of that, so they lost the case.

It's definitely worth reading the full text of the ruling; it's really pretty readable for a legal document.

[AnthonyJ]

On the other hand . . . I suspect that you, in the modern world, usually have written contracts specifying "who owns what" regarding any software programming you do on company time, etc.
Work for hire laws in the US were changed in 1976, so your modern example is not all that applicable to the Kirby situation anyway.

[Lorendiac]

I don't know what to expect. I will just tell you that an awful lot of people on the Internet who are predicting why the Kirbys will win or why the Kirbys will lose are expressing theories that have nothing to do with anything that either side is asserting in the actual case.

I've noticed that too. I remember sometime last year I was in another thread where one guy was taking a rather pugnacious ("Pro-Marvel") attitude. He asked something like this: "Hey! Is there any proof that Marvel really cheated Jack Kirby, or otherwise victimized him, back in the old days?"

My response was something along these lines: "That doesn't matter! The basic legal theory used by Kirby's heirs in this case has nothing to do with any angry accusations about Jack Kirby being 'cheated' or otherwise mistreated in his dealings with Marvel in the 1950s and 1960s! This case is all about the way Congress changed the laws in the 1970s so that, on anything created and sold before a certain date, the 'original copyright owner' can terminate a transfer of copyrights after the initial 56 years of copyright protection is up! (Or, if the 'original owner' died sometime in that 56-year interval, his heirs can reclaim control of such copyrights.)"

It rapidly became clear, in subsequent back-and-forth comments, that the other fan knew far less about the relevant legal issues than I did (and I'm not a lawyer), but that wasn't stopping him from loudly voicing his opinions about what the Kirby heirs were or weren't entitled to expect!

[Lorendiac]

Well, keep in mind, no one knew that the Marvel characters were going to take off, and people were more focused on just getting the work done and producing content rather than focusing on who owns what. It may seem weird in a day and age where people keep a tight lock and key on all their intellectual properties, but back in the silver age and event he golden age the attitude might be more "get the work out" than "develop the property for further consideration down the road."

I mean, sure, it might seem foolish not to hold on to the rights of a character like Thor, given his recent success. But for every Thor, there is an "It, the Living Colossus" that is seen once and never seen again, or very rarely afterwards. Captain America might have made a comeback. But guys like the Destroyer and the Thunderer didn't have the same fortune. Characters were created and dropped left and right in those days.

I understand that in the 1960s nobody was counting on such newly-created characters as Spider-Man, the X-Men, Daredevil, Iron Man, the Avengers, the FF, etc., to finally get big-budget Hollywood movies in the early years of the 21st century. But I still think that if I'd been running a comic book publishing company back then, I would have wanted everybody to sign agreements specifying who owned what -- and what sort of royalties (if any) the creative talent would be entitled to receive on reprints, movie and TV adaptations, etc.

If the answer I (as a publisher) wanted was "no royalties will be paid to the freelancers on reprints of old stories, nor on adaptations of their characters to other media," then I would have put that in the contract and waited to see how many hungry writers and artists were willing to sign on those terms in exchange for a flat rate per page of accepted work, or whatever the deal was in those days!

I'm pretty sure that publishers of fast-paced paperback novels in that era, for instance, had the writers sign contracts specifying what rights the publisher was buying, what the royalties would be, etc.

I recognize that Marvel didn't do it that way in that era -- but it still strikes me as peculiar.

Huh. Come to think of it, I'm not sure if DC was doing things much differently in the 1960s. Anyone know for sure if the freelance talent was required to sign any sort of agreements specifying who owned what?

(For what it's worth, I don't remember hearing about any high-profile lawsuits involving the creators of some of DC's Silver Age heroic concepts; at least not legal battles based on the same theory as the Kirby case; i.e. "the freelancer owned the copyright first and then sold it to DC, and after 56 years he or his heirs get the copyright back, per laws passed by Congress in the 1970s!")

P.S. Come to think of it, a few years ago I was flabbergasted to learn that near as anyone can tell, when DC bought "rights" to Quality properties in the 1950s, all DC really bought was "trademarks." Apparently no one at DC even felt the urge to buy copyrights on the hundreds of comic books Quality had previously published during the Golden Age? With the result that scans of many of those old comics are now available online, for free downloading, legally, because the copyrights just quietly expired decades ago when nobody bothered to renew them?

[RDMacQ]

I understand that in the 1960s nobody was counting on such newly-created characters as Spider-Man, the X-Men, Daredevil, Iron Man, the Avengers, the FF, etc., to finally get big-budget Hollywood movies in the early years of the 21st century. But I still think that if I'd been running a comic book publishing company back then, I would have wanted everybody to sign agreements specifying who owned what -- and what sort of royalties (if any) the creative talent would be entitled to receive on reprints, movie and TV adaptations, etc.

If the answer I (as a publisher) wanted was "no royalties will be paid to the freelancers on reprints of old stories, nor on adaptations of their characters to other media," then I would have put that in the contract and waited to see how many hungry writers and artists were willing to sign on those terms in exchange for a flat rate per page of accepted work, or whatever the deal was in those days!

I'm pretty sure that publishers of fast-paced paperback novels in that era, for instance, had the writers sign contracts specifying what rights the publisher was buying, what the royalties would be, etc.

I recognize that Marvel didn't do it that way in that era -- but it still strikes me as peculiar.

But then, why should they? These companies had made probably hundreds of characters over the years, and there was no problem before. No one was coming to them over the rights to the Human Torch. Or the Destroyer. Or Miss Fury. These properties were dead and gone, no one was laying claim to them. So why go about making sure that they had who created what all laid out, since these things were probably going to go away in a few years anyway? The success of the Marvel characters really was something that no one could have possibly predicted. Yes, the business practices about who owned what and who created what were pretty shoddy back then. But they never really needed to be that developed. Heck, how long was Jack Kirby working in the industry before the Marvel characters took off? How much did he create beforehand, that never took off or was never seen again?


Huh. Come to think of it, I'm not sure if DC was doing things much differently in the 1960s. Anyone know for sure if the freelance talent was required to sign any sort of agreements specifying who owned what?

(For what it's worth, I don't remember hearing about any high-profile lawsuits involving the creators of some of DC's Silver Age heroic concepts; at least not legal battles based on the same theory as the Kirby case; i.e. "the freelancer owned the copyright first and then sold it to DC, and after 56 years he or his heirs get the copyright back, per laws passed by Congress in the 1970s!")

I wouldn't be surprised if the DC characters were more under the "work for hire" contract, in that DC was commissioning the creation of these characters and would therefore own them rather than the creators. After the success of Superman, I wouldn't be surprised if DC wanted to develop the brand under their own umbrella. Also, I think the creators rights were different then. The reason Will Eisner retained creative control over the Spirit is because he published it as a comic strip, which had different creative legalities attached to it than the stuff in comic books.


P.S. Come to think of it, a few years ago I was flabbergasted to learn that near as anyone can tell, when DC bought "rights" to Quality properties in the 1950s, all DC really bought was "trademarks." Apparently no one at DC even felt the urge to buy copyrights on the hundreds of comic books Quality had previously published during the Golden Age? With the result that scans of many of those old comics are now available online, for free downloading, legally, because the copyrights just quietly expired decades ago when nobody bothered to renew them?

Again, who would have been able to predict that people would have an interest in back issues? The reprinting costs would probably be enormous, and the interest for those stories might not have warranted such an endeavor. Who could have predicted a time when those stories could be stored and displayed via a method that didn't involve paper hard copies?

[Iron Maiden]

What is somewhat telling, is that Len Wein gets royalty payments for Lucius Fox in the Batman movies and animated series, and receives nothing for his most famous co-creation, Wolverine.

Since Wolverine made his first appearance in the Hulk in the 1970's, that was probably around the time when the checks at Marvel had the disclaimer on the back where one would endorse it that pretty much stated you agreed that this was your payment in full for the work you did, or something along those lines. Mr. Evanier probably knows more about that but I know I read an account about that being the practice.

[Darrell D.]

Since Wolverine made his first appearance in the Hulk in the 1970's, that was probably around the time when the checks at Marvel had the disclaimer on the back where one would endorse it that pretty much stated you agreed that this was your payment in full for the work you did, or something along those lines. Mr. Evanier probably knows more about that but I know I read an account about that being the practice.


Yeah, true. DC had a royalty program in place AFTER Kirby created his Fourth World stuff, but DC (mainly Jeanette Kahn and Paul Levitz) found a way around that so that Kirby could reap the benefits of his characters being featured on the Superfriends, and then in any other media after.
It's a shame that Marvel wouldn't do the same.

[jackolover]

Thats not how it works.

So they can put "Created by Stan Lee and Jack Kirby" on the movie credits, but when it comes to a payday, they apply an antiquated law about "work for hire" that applies to the pulp fiction industry?

[Iron Maiden]

Yeah, true. DC had a royalty program in place AFTER Kirby created his Fourth World stuff, but DC (mainly Jeanette Kahn and Paul Levitz) found a way around that so that Kirby could reap the benefits of his characters being featured on the Superfriends, and then in any other media after.
It's a shame that Marvel wouldn't do the same.

I have to agree with that. Stan Lee was still on staff but I have a feeling he did not hold much sway with the suits running Marvel by then. Marvel as a company had changed hands several times and it was probably a matter Stan just negotiating for himself. Jim Shooter was the guy who started Marvel's royalty program but I think Kirby had left Marvel again.

[Darrell D.]

I have to agree with that. Stan Lee was still on staff but I have a feeling he did not hold much sway with the suits running Marvel by then. Marvel as a company had changed hands several times and it was probably a matter Stan just negotiating for himself. Jim Shooter was the guy who started Marvel's royalty program but I think Kirby had left Marvel again.

The royalty program by Shooter coincided with an incredibly s--- WFH contract that basically said anything a creator did for Marvel, past, present and future was property of Marvel. ANYTHING.
A LOT of creators jumped ship because of that.

[Lorendiac]

P.S. Come to think of it, a few years ago I was flabbergasted to learn that near as anyone can tell, when DC bought "rights" to Quality properties in the 1950s, all DC really bought was "trademarks." Apparently no one at DC even felt the urge to buy copyrights on the hundreds of comic books Quality had previously published during the Golden Age? With the result that scans of many of those old comics are now available online, for free downloading, legally, because the copyrights just quietly expired decades ago when nobody bothered to renew them?


Again, who would have been able to predict that people would have an interest in back issues? The reprinting costs would probably be enormous, and the interest for those stories might not have warranted such an endeavor. Who could have predicted a time when those stories could be stored and displayed via a method that didn't involve paper hard copies?

Looking back on it, I see that when I dashed off that paragraph yesterday, I didn't explain just why I initially felt so stunned at the discovery that DC didn't buy up all the Quality copyrights at the same time they were buying up any relevant existing trademarks.

To clarify: It wasn't just "the exclusive right to reprint those old stories in archive volumes for diehard collectors, and perhaps eventually make them available online as digital scans for customers to download," that I was thinking about. I readily agree that back in the 1950s, nobody was losing much sleep over the possibility that sometime in the distant future, something called "digital publishing" might be a way to make extra money! :smile:

It's been awhile since I first experienced that surprise, but I think my reaction was based on the following elements:

1. Since Quality was giving up on the comic book publishing racket anyway, I suspect that whoever controlled the company at the time of those negotiations with DC would have been willing to throw in the accumulated copyrights at little or no extra charge, since he had no plans to make any further use of those rights himself.

2. Owning the copyrights on the debut stories of new fictional characters is the way to ensure you also have the exclusive right to keep publishing "sequels" which use that same character over and over. So if DC thought it was worth the trouble of buying the "Plastic Man" trademark, among others, why not go whole hog and buy the copyrights on his previously published stories so that other companies wouldn't start publishing their very own "Plastic Man" stories later on? Even if DC wasn't sure there would still be a thriving market for Plastic Man, in any popular media, 28 years after he had debuted, why not err on the side of caution by making sure you acquired relevant copyrights in the 1950s, figuring that years later, when Plas was about to turn 28, you could size up the market and reevaluate the question of whether it was now worth renewing the necessary copyright?

A digressive note on that: Under U.S. law as it existed for much of the 20th Century, I believe Edgar Rice Burroughs and his descendants owned the "Tarzan copyright" for 56 years following the publication of the original novel "Tarzan of the Apes" way back in the 1910s. During that time, nobody else (in the USA, anyway) had any business writing and publishing any new Tarzan stories -- including comics, radio serials, movies, etc. -- without explicitly reaching an agreement with ERB or his heirs in advance. But after those 56 years ran out, the basic copyright on "Tarzan of the Apes" (the novel), and on any characters who debuted in that first novel, passed into the public domain. Over the next several years, so did a bunch of other Tarzan novels as their respective 56th anniversaries came and went.

But the heirs of ERB still own a corporation (creatively called "Edgar Rice Burroughs, Inc.") which, in turn, still owns the Tarzan trademark. As I understand it, I could legally write and publish and sell copies of a new novel about Tarzan, without bothering to get the approval of the creator's heirs, as long as I met the following criteria:

1. I didn't obviously use any characters or other distinctive concepts (certain lost cities invented by ERB, for instance), which only debuted within the pages of later Tarzan stories which are still copyright-protected.

2. I didn't blatantly use the trademarked term Tarzan in my commercial efforts to market the Tarzan novel I had written! For instance, if the cover said "Tarzan at the South Pole" in big letters as the story title, and if I sent out press releases announcing I had "a new Tarzan novel" available for bookstores to order from me and place on their shelves, then I'd have a serious problem when I was dragged into court for trademark violations.

(In practice, I don't think this happens very often -- if at all. There would be some practical problems with trying to vigorously promote and sell a new Tarzan novel if I wasn't allowed to say in my advertising that it was "a new Tarzan novel" in so many words! :smile:)

I think that's how it would work. But for the first 56 years I couldn't even have gotten away with that much -- because ERB and his family made sure to keep those copyrights in force for as long as was then possible under U.S. law.

And on a similar note . . . .if I, in the 1950s, were working for DC and were negotiating the purchase of a bunch of rights involving colorful comic book characters created at another company, I would have wanted to make our complete ownership of various properties (such as Plastic Man and the Blackhawks) as airtight as possible -- just to be on the safe side, since you never know what future opportunities might arise for using them in one way or another!

[RDMacQ]

So they can put "Created by Stan Lee and Jack Kirby" on the movie credits, but when it comes to a payday, they apply an antiquated law about "work for hire" that applies to the pulp fiction industry?

Sure they can.

You can probably say that Batman was created by Bob Kane and Bill Finger. But contractural rights insist that Bob Kane's name is attached to any incarnation of Batman. Dude sowed up the legalities on that brand right quick.

You think that Jack Kirby got screwed. At least it was generally accepted that he had SOMETHING to do with Marvel. Finger spent years in obscurity.

[Lorendiac]

On the other hand . . . I suspect that you, in the modern world, usually have written contracts specifying "who owns what" regarding any software programming you do on company time, etc.

As I understand it, a fundamental point in the claims of the Kirby heirs is that there was a vast lack of written agreements between Kirby and Marvel (back in the Silver Age) to show just what each side thought the rules of the game were, regarding freelance work which Kirby would draw in his own home and then carry over to Marvel's editorial offices and sell to Stan Lee.

Which strikes me as a ridiculous way to run a publishing company . . .


The legal situation seems to be that an oral agreement, or just the factual details of an informal arrangement, is sufficient to rule it one way or the other. The judge applied the "instance and expense" test to determine whether the working relationship qualified as work for hire. (Essentially, in this case: did Stan Lee always talk to Kirby about the story before he started work on it, did Lee have the power to veto or request edits to pages, and did Kirby receive a fixed sum as payment rather than sales-dependent royalties.)

Based on that test, Kirby's work for Marvel was determined to fall under work for hire, so the burden was on the Kirby family to prove that there was a pre-existing contract that said differently, or that Jack Kirby had ever submitted work in a way that didn't match the requirements of the test (i.e. producing something on spec without being asked for it first). None of the evidence they submitted demonstrated proof of that, so they lost the case.

It's definitely worth reading the full text of the ruling; it's really pretty readable for a legal document.

And for all I know, the judge may have been absolutely right in her interpretation of how the relevant laws should be applied to this case in the face of the available evidence! I've never said the judge got it wrong.

Just to clarify my personal position on this: For the last two years, as I occasionally participated in such threads as this, I have been very much neutral on the subject of "Who will, and/or should, win this legal battle?"

More than once, I have said that I want the Kirby heirs to get whatever they are legally entitled to get.

I have also said that I don't know just what that will mean in practical terms. Maybe the heirs will end up millions of dollars ahead of the game . . . and maybe they'll gain nothing they didn't already have. Either way, I just hope they get the due process of law!

[SpideyCzar]

I'm not a Lawyer. So I'm not going to get into any Legal discussions. As a long time Marvel reader I do feel Jack Kirby and his Estate should be compensated or rewarded in certain ways for his contributions to his part in creating a majority of the popular Marvel Library of characters.

How is that compensation going to be determined? I'd suggest it be a financial sum rather than giving the copyrights over to the Kirby Heirs. I can understand the Kirby heirs wanting to be compensated for their father/Grandfather's creations and contributions but asking for the trademarks to certain characters that Kirby had little to nothing to do with their creation comes off as overzealous.

I'm a Marvel fan so asking for a boycott is silly, as the current creators and edtiors have nothing to do with Kirby's compensation. So I won't punish the modern creators for the stance of a company just like I won't punish Kirby for the actions of his heirs. I'll continue to get his work in TPB's and hardcovers.

I hope both parties can reach a fair settlement.

[Leunames]

Hmmm, I'm sure Galactus will continue to appear sporadically in Marvel comics with or without your economic utility.

successful boycott's are powerful economic pressures. If you do sympathise with the cause then I would encourage you to seriously consider it.

One other point is that the boycott is not in any way intended to harm or punish your LCS. Switch to titles published by other companies - creator owned material ideally.

That wasn't my point. My point was that boycotting harms me far more than any harm would be done to my lcs, which in turn is lilliputian compared to any harm that would be done to Marvell. Boycotts are meant to communicate consumer will by economic punishment (I majored in econ..that's why I'm using these terms); if 10 million people boycotted superman, lcs would most certainly be economically punished, who in turn would refrain from ordering superman from distributors, who in turn would refuse to carry said titles from DC, who in turn would stop publishing.

You underscored my point by saying Galactus would continue to appear no matter my choice. How does that influence any involved party in any way, other than to deprive myself of the character I enjoy the most. My LCS will not be effected in anyway economically. If they are not effected economically, how much more is Marvel itself oblivious to my choice to actively drop the main comics I read? I effectively have to "unlike" a Kirby creation and find instead a substitute that I know will be lacking, and my voice is so inconsequential that I don't effect anyone at all, aside from myself, and in a way that takes away my comics enjoyment. That is the principal of utility, and that was my point.

[Lorendiac]

I'm not a Lawyer. So I'm not going to get into any Legal discussions. As a long time Marvel reader I do feel Jack Kirby and his Estate should be compensated or rewarded in certain ways for his contributions to his part in creating a majority of the popular Marvel Library of characters.

How is that compensation going to be determined? I'd suggest it be a financial sum rather than giving the copyrights over to the Kirby Heirs. I can understand the Kirby heirs wanting to be compensated for their father/Grandfather's creations and contributions but asking for the trademarks to certain characters that Kirby had little to nothing to do with their creation comes off as overzealous.

I'm a Marvel fan so asking for a boycott is silly, as the current creators and edtiors have nothing to do with Kirby's compensation. So I won't punish the modern creators for the stance of a company just like I won't punish Kirby for the actions of his heirs. I'll continue to get his work in TPB's and hardcovers.

I hope both parties can reach a fair settlement.


But what is "fair" supposed to mean? Or, to put it differently, at this point how could they possibly agree on a settlement that both sides would truly feel was a "fair" way to resolve the problem?

The thing is -- if the heirs are legally entitled to those copyrights (or at least some of them) on a ton of Silver Age Marvel characters, then there's no reason for them to settle for a lump sum in cash instead of a steady cash flow from their "rightful" royalties. Not unless it's a huge lump sum. (Tens of millions of dollars apiece, say?)

If they are not legally entitled to those copyrights, then they are out of luck. I strongly doubt Marvel is going to give them huge amounts of money just out of charitable impulses based on "gratitude" for all the work Kirby did for Marvel way back when.

And if bigwigs at Marvel are convinced that Kirby never owned those copyrights, and thus his heirs can't inherit the legal right to reclaim those copyrights after 56 years, then the bigwigs are unlikely to offer the heirs any really substantial settlement, for fear of setting a bad precedent by encouraging lots of other comic book artists from the Silver Age and earlier, or their heirs, to think they too can climb on the gravy train and get huge handouts to "settle" flimsy claims!

As long as the Kirby heirs honestly believe Jack Kirby was the original owner, legally speaking, of all sorts of now-valuable copyrights, and as long as Marvel executives honestly believe he never owned any of those copyrights, I don't think a meeting of the minds is ever going to occur which could result in a "mutually acceptable" cash settlement to put the problem to rest.

[StoneGold]

I'm not a Lawyer.

You're just a simple country chicken?


That series of jokes never gets old.

[SpideyCzar]

But what is "fair" supposed to mean? Or, to put it differently, at this point how could they possibly agree on a settlement that both sides would truly feel was a "fair" way to resolve the problem?

The thing is -- if the heirs are legally entitled to those copyrights (or at least some of them) on a ton of Silver Age Marvel characters, then there's no reason for them to settle for a lump sum in cash instead of a steady cash flow from their "rightful" royalties. Not unless it's a huge lump sum. (Tens of millions of dollars apiece, say?)

If they are not legally entitled to those copyrights, then they are out of luck. I strongly doubt Marvel is going to give them huge amounts of money just out of charitable impulses based on "gratitude" for all the work Kirby did for Marvel way back when.

And if bigwigs at Marvel are convinced that Kirby never owned those copyrights, and thus his heirs can't inherit the legal right to reclaim those copyrights after 56 years, then the bigwigs are unlikely to offer the heirs any really substantial settlement, for fear of setting a bad precedent by encouraging lots of other comic book artists from the Silver Age and earlier, or their heirs, to think they too can climb on the gravy train and get huge handouts to "settle" flimsy claims!

As long as the Kirby heirs honestly believe Jack Kirby was the original owner, legally speaking, of all sorts of now-valuable copyrights, and as long as Marvel executives honestly believe he never owned any of those copyrights, I don't think a meeting of the minds is ever going to occur which could result in a "mutually acceptable" cash settlement to put the problem to rest.

Fair equals money, in some form as a "Thanks" for his hard work and for creating a successful character that the company has benefitted from for many years. It doesn't have to admit to ownership. Just give the Heir's some royalties, and a lump sum cash settlement.

Again I'm not a Lawyer, my Marketing Degree says otherwise.

Talk of a boycott is silly, you'd be hurting LCS owners, and punishing the creators currently working on the characters for something they are not responsible for.

[AnthonyJ]

As long as the Kirby heirs honestly believe Jack Kirby was the original owner, legally speaking, of all sorts of now-valuable copyrights, and as long as Marvel executives honestly believe he never owned any of those copyrights, I don't think a meeting of the minds is ever going to occur which could result in a "mutually acceptable" cash settlement to put the problem to rest.
Settlements are less about being mutually acceptable than being mutually less objectionable than continuing to fight.

[Lorendiac]

Fair equals money, in some form as a "Thanks" for his hard work and for creating a successful character that the company has benefitted from for many years. It doesn't have to admit to ownership. Just give the Heir's some royalties, and a lump sum cash settlement.

Again I'm not a Lawyer, my Marketing Degree says otherwise.

Believe me, I'm not a lawyer either, so I wasn't even trying to argue about which side is "right" or "wrong" in legal terms. I was only talking about how likely (or, as I see it, how incredibly unlikely) it is that there will be a meeting of the minds and a negotiated "settlement" any time in the near future.

By the way, I'm surprised to see you talking about Marvel giving "some royalties" to the Kirby heirs. I thought you preferred a cash payment instead of letting them have a piece of the copyrights? If they don't own any copyrights, they aren't entitled to ongoing royalties from movies, TV shows, etc., based on Silver Age Marvel characters. I really don't see Marvel offering "royalties" to people who don't own the relevant characters in the first place (in the Marvel viewpoint).

But I could, for the sake of argument, see Marvel offering one big cash payment for a "settlement" which was intended to make the whole headache just go away.

The problem is that both sides presumably believe they and they alone have the moral and legal high ground!

If Marvel and the Kirby heirs can't agree on the very basic question of "who owns what," which seems to be the case at the moment, then I strongly suspect that if Marvel put an offer on the table, such as "we will write out a check for five million dollars to be divided evenly among all living descendants of Jack Kirby," the Kirby heirs would say, "If you want to give us that money as a down payment against our rightful royalties, that's fine! But if you want us to sign anything agreeing that you owe us nothing more after we collect the first five million, that's a joke! Forget it!"

Which would not bring them any closer to reaching a "settlement," fair or otherwise.


Talk of a boycott is silly, you'd be hurting LCS owners, and punishing the creators currently working on the characters for something they are not responsible for.

I agree. I have no interest in boycotting anything because of this fuss. (Heck, I already don't buy monthly issues of any Marvel or DC title, but not because I'm trying to "make a statement" by boycotting anybody!)

[Scavenger]

I just wish he would get more credit for his creations. I can't stand the fact that so many younger comic readers think that Stan Lee really did create all those Marvel characters on his own. The thing he DID create was "The Marvel Method" which was a way to make other people do the bulk of the initial work.

The arguments by Kirby supporters (not the family or officials, but board fans) would be far more compelling if they didn't decide to slag Stan Lee while in the process of defending Jack Kirby.

[SpideyCzar]

Believe me, I'm not a lawyer either, so I wasn't even trying to argue about which side is "right" or "wrong" in legal terms. I was only talking about how likely (or, as I see it, how incredibly unlikely) it is that there will be a meeting of the minds and a negotiated "settlement" any time in the near future.

By the way, I'm surprised to see you talking about Marvel giving "some royalties" to the Kirby heirs. I thought you preferred a cash payment instead of letting them have a piece of the copyrights? If they don't own any copyrights, they aren't entitled to ongoing royalties from movies, TV shows, etc., based on Silver Age Marvel characters. I really don't see Marvel offering "royalties" to people who don't own the relevant characters in the first place (in the Marvel viewpoint).

But I could, for the sake of argument, see Marvel offering one big cash payment for a "settlement" which was intended to make the whole headache just go away.

The problem is that both sides presumably believe they and they alone have the moral and legal high ground!

If Marvel and the Kirby heirs can't agree on the very basic question of "who owns what," which seems to be the case at the moment, then I strongly suspect that if Marvel put an offer on the table, such as "we will write out a check for five million dollars to be divided evenly among all living descendants of Jack Kirby," the Kirby heirs would say, "If you want to give us that money as a down payment against our rightful royalties, that's fine! But if you want us to sign anything agreeing that you owe us nothing more after we collect the first five million, that's a joke! Forget it!"

Which would not bring them any closer to reaching a "settlement," fair or otherwise.



I agree. I have no interest in boycotting anything because of this fuss. (Heck, I already don't buy monthly issues of any Marvel or DC title, but not because I'm trying to "make a statement" by boycotting anybody!)

Very good points. Royalties in my mind was in consideration of any future Kirby products sold, for example the upcoming Avengers Stan Lee & Kirby omnibus his heirs would receive royalties on that or any future collected editions where his art shows up.

From what little legal info I've learned from reading about this case, it seems it's a debate of "Work for Hire" vs "Non Work for Hire". Which seemed to be a common practice in the 60's & 70's in the comic book industry.

The even funnier thing is that the Kirby Heirs act like Jack created all these characters all by himself. He had Stan Lee and other's who would share equally in the creation. So asking for ownership of a copyright that someone you were related to co created along with another person sounds to me like a desperate cash grab.

Give his heirs a lump sum, and a partial royaltie for any future products sold and be done with this.

[RDMacQ]

You're just a simple country chicken?


That series of jokes never gets old.

A HYPER-Chicken!

[kalorama]

Fair equals money, in some form as a "Thanks" for his hard work and for creating a successful character that the company has benefitted from for many years.

There's a word for that. It's called a paycheck. I'm fairly certain that Kirby received one for every comic book he wrote or drew.

[Lorendiac]

The even funnier thing is that the Kirby Heirs act like Jack created all these characters all by himself. He had Stan Lee and other's who would share equally in the creation. So asking for ownership of a copyright that someone you were related to co created along with another person sounds to me like a desperate cash grab.

I had a somewhat similar "first reaction" when I became aware of this legal battle -- about two years ago, I think.

I generally think of the artist and the writer on a character's first appearance as being the "co-creators." (Assuming it's not the same guy writing and drawing, of course.) I recognize that this assumption is not always accurate, but it's my "default assumption" in most cases.

A couple of years ago, before I first heard about the claims of the Kirby heirs, I had long assumed that Stan Lee and Jack Kirby "co-created" the original X-Men, the Fantastic Four, the Incredible Hulk, and various other characters, including any villains who debuted in Lee/Kirby stories (such as Doctor Doom and Magneto).

So I remember I was a bit startled that they were claiming Jack Kirby was "the original copyright owner" of dozens of Marvel characters, instead of, let's say, "the original owner of half of the copyright in each case."

But I also recognized that I didn't know much about the intricacies of copyright law as they apply to collaborative efforts on comic books published in the 1960s, nor was I in a position to know exactly how much original thinking Stan Lee did, and communicated to Kirby, in any given case before Kirby ended up drawing the "first story" about a character.

For instance! Suppose Stan Lee said to Jack one day, "Go home and draw a story about Thor, the Norse God of Thunder." Suppose that was literally all the guidance he gave Kirby before the latter went home and started doing sketches of what he thought "Thor" should look like. Would Stan's one sentence really qualify as "doing half of the creative work and deserving half of the copyright on the first Thor story, one which he later scripted after Kirby had plotted and drawn it"?

(Not that I have any idea how much detail Stan actually went into when he was giving Jack that assignment. I'm just offering a hypothetical extreme case.)

Kirby is long dead at this point, but it's possible that what happened -- or what his offspring think happened, based on what stories they think they remember him telling them -- might qualify as plausible grounds for believing that he and he alone should qualify as "the original copyright owner" on some or all of the characters they are laying claim to. So I finally shrugged and said I was perfectly willing to sit back and let the courts sort it all out.

It also occurred to me at the time that the Kirbys and their legal counsel might be trying to establish some talking points for use in later "generous concessions" on their part in bargaining sessions with Marvel. As in: "Heck, we'll waive claim to Spider-Man, now that we've thought it over! And in return for a few concessions on your part, we'll bite the bullet and settle for a half-interest in the copyrights on the founding members of the FF and the X-Men! See how reasonable we can be?" :smile:

(I believe that sort of thing is standard negotiating tactics -- first you ask for the moon, knowing perfectly well you won't get it! Then you let the other side haggle you down, bit by bit!)

[AnthonyJ]

The even funnier thing is that the Kirby Heirs act like Jack created all these characters all by himself. He had Stan Lee and other's who would share equally in the creation. So asking for ownership of a copyright that someone you were related to co created along with another person sounds to me like a desperate cash grab.
Copyrights don't divide up that way; what the Kirby heirs did would be legitimate if in fact the rights are the way they think they are. If you have a work where the copyright is held by two people, that means it cannot be copied without permission from both parties. Thus, the Kirby heirs would have the right to revoke Marvel's right to print, but would not have the right to publish Spiderman themselves, nor grant that right to a third party.

The point of this exercise is to get Marvel to give them money that they feel is owed to them; revoking the copyright grant is just a tactic to persuade Marvel to do what they want, not something independently useful to them. I don't have anything inherently against what the Kirby heirs are trying to do, I just don't think that the facts of the situation are in their favor, and I don't think Marvel is going to agree to any settlement which doesn't specify that it was, in fact, work for hire.

[T Hedge Coke]

are they fighting for compensation or total control?

i am for compensation but total control of spider-man? hell no!

Compensation and a controlling interest, just as with most works not done actually under work for hire.

Who do you think should have control?

[Francis Dawson]

Talk of a boycott is silly, you'd be hurting LCS owners

The idea is to spend your Marvel dollar on other company's (creator owned) comic books.

[Castel]

The idea is to spend your Marvel dollar on other company's (creator owned) comic books.

+ 1.

That's a constructive way to boycott a company.

[SpideyCzar]

The idea is to spend your Marvel dollar on other company's (creator owned) comic books.

So your ok with punishing the current creators who are working hard on characters Kirby Co-Created? They don't have any control over any legal action against Marvel. The writers and artist working on some Kirby Co-Creations are doing a good job. Such as Jonathan Hickman on FF, so I'm not going to stop following his book in support of the Kirby Heirs getting whatever they want.

[Francis Dawson]

So your ok with punishing the current creators who are working hard on characters Kirby Co-Created? They don't have any control over any legal action against Marvel. The writers and artist working on some Kirby Co-Creations are doing a good job. Such as Jonathan Hickman on FF, so I'm not going to stop following his book in support of the Kirby Heirs getting whatever they want.

You aver that the boycott unfairly 'punishes' current creatives. This is true to the extent that people who have opted to join the boycott will not be following current Marvel comics. However the boycott is highly unlikely to be economically punitive to 'innocents' within the Marvel corporation. Corporations tend to respond very quickly to anything that significantly damages their bottom line and /or their PR image.

I totally get that if you're somebody who really enjoys a lot of current Marvel comics and movies then getting on board with this boycott is going to hurt and be a personally costly thing to do. I dislike 99% of contemporary superhero comics so I recognise that I'm not personally making much of a sacrifice (although I do love the new iteration of Daredevil and Brubaker/Phillips' Criminal). What I'm getting at is that I think your expressed concern for the current writers/artists on Marvel titles is secondary to a more basic position which is "Marvel make a lot of neat comics that I enjoy. I don't want to stop reading those neat comics I enjoy." I think you're letting your consumption habits trump ethical considerations.

[Francis Dawson]

http://frequential.blogspot.com/

[Alan Smithee]

Forthcoming event at the Center for Cartooning Studies, White River Junction, Vermont. Cartoonist Steve Bisette, who has called for a boycott of all Marvel product due to their treatment of Kirby (http://srbissette.com/?p=12761) will be joined by Oliver Goodenough from the Vermont Law School.

http://thepanelists.org/2011/10/kirby-in-vermont/

I completely agree with Bisette's stance and sincerely hope that Marvel reaches an agreement with Kirby's heirs that is at least equivalent to Stan Lee's 2005 settlement. The moral case for this is totally compelling. You should think so too, if you don't then shame on you. The thread on this board when the judge ruled in favour of Marvel was one of the most wretched things I've ever read.

http://forums.comicbookresources.com/showthread.php?t=378489

Boycott Marvel. Make Mine Kirby.


I'm not surprised Kirby invented The Walking Dead. "Kirby Zombie Sues Mickey's Brains Out!"

[Lorendiac]

So your ok with punishing the current creators who are working hard on characters Kirby Co-Created? They don't have any control over any legal action against Marvel. The writers and artist working on some Kirby Co-Creations are doing a good job. Such as Jonathan Hickman on FF, so I'm not going to stop following his book in support of the Kirby Heirs getting whatever they want.

It occurs to me that you can make the same general argument against any proposed "boycott" of any corporation's products.

For instance: "If I boycott Nike over a matter of conscience, and if lots of other people do the same, that will hurt a lot of poor people who currently work for Nike but have no control over corporate policies. Therefore, I should just keep buying from Nike on a regular basis!"

(Insert any other corporate name in place of "Nike," if you prefer.)

That line of reasoning would seem to make just about any "boycott" a bad idea. I personally have no interest in participating in the proposed boycott of Marvel comics based on Kirby creations, but I'm not prepared to say that the boycott must be a bad idea just because it could inconvenience some of the people currently working for Marvel.

[Francis Dawson]

Here is the audio for the "Marvel vs Jack Kirby: Legal Rights and Ethical Might" event at Vermont Law School. Please do have a listen.

http://www.tcj.com/marvel-vs-jack-kirby-legal-rights-and-ethical-might/

[Gothos]

That's the thing. Stan offered Jack an equal partnership that Jack turned down to free lance at DC. he would of had everything Stan got

But to do that, Kirby would have been forced to remain in New York, and wouldn't have been able to move to Cailfornia for health reasons.

Of course, had he known then that Goodman was going to be foolish enough to sell the company, maybe he would have taken a chance at Stan's (alleged) offer. OTOH, sometimes when new owners come in, they like to displace the people who made the business successful. I've a pet theory-- admittedly unproveable, based on something I heard Stan say at a convention-- that one contributing reason for Stan's 1970s "Marvel ambassador" status might have been the new company wanting to move him out of a position of power and work with others they may have deemed more tractable. Upshot being that even if Kirby had been given a partnership contract, corporate bigshots might have found ways to ace him out.

(Note): wrote this before reading ME's response but have not changed text above as it's a hypothetical "what mighta happened."

[Gothos]

The key sticking point usually being Stan eventually got his deal. He got exceptionally wealthy. But no one else really got theirs. Now really, that's as much because Stan was the face of comics. Kirby wasn't. And I've heard stories that Stan could have potentially held out, tried to get Kirby his deal, but in the end, Stan's a Depression-era kid and was afraid it was going to cost him his deal and chickened out.


Although if Mark knows otherwise, I'm just repeating stuff I've heard from other people who would know better.

Even at the height of Marvel's increased 1960s popularity, what do you think would have been Stan Lee's fate at the hands of Martin Goodman had he started being vocal to fans and puff-piece reporters about how Jack Kirby and Steve Ditko should share credit and a share of profits?

It's easy to *tell* someone else that they ought to be noble and sacrifice their job for a third party's benefit. If you have done something like that yourself, more power to you. But doing is something more costly than telling.

[Leocomix]

But to do that, Kirby would have been forced to remain in New York, and wouldn't have been able to move to Cailfornia for health reasons.

Of course, had he known then that Goodman was going to be foolish enough to sell the company, maybe he would have taken a chance at Stan's (alleged) offer. OTOH, sometimes when new owners come in, they like to displace the people who made the business successful. I've a pet theory-- admittedly unproveable, based on something I heard Stan say at a convention-- that one contributing reason for Stan's 1970s "Marvel ambassador" status might have been the new company wanting to move him out of a position of power and work with others they may have deemed more tractable. Upshot being that even if Kirby had been given a partnership contract, corporate bigshots might have found ways to ace him out.

(Note): wrote this before reading ME's response but have not changed text above as it's a hypothetical "what mighta happened."

Goodman sold teh company in 1968, Kirby left in 1970.
It may have been the fact that the new company wouldn't hear of the promised royalties that prompted Kirby to leave.

[Leocomix]

Not only in the 1972 agreement that Kirby signed, he renounced any ownership, copyright or royalty he may have been owned but Toberoff never at any point demonstrated that Kirby had any copyright. The testimonies from the Kirby family even played against their own case.

[Gothos]

Goodman sold teh company in 1968, Kirby left in 1970.
It may have been the fact that the new company wouldn't hear of the promised royalties that prompted Kirby to leave.

I think that the idea of a "partnership" offer -- which doesn't really make much sense in the context-- is probably a fannish misquote arising from Stan Lee's claim that he would've made Kirby art director when he Stan left his position as editor (and 'de facto' art director). I googled a little to see if I could find an online repro of the quote but no luck. But that's the idea of "partnership" to which I'm responding

Again, I don't claim that the offer was officially tendered (and I think Kirby has said no such offer was put on the table), nor do I know whether or not Lee would have really have chosen Kirby over the guy who did get the job, Romita Sr. I find it likely, though, that Lee would have at least *thought* about promoting Kirby, about Marvel's continuing to employ Kirby's talents in other ways. If as I suggest Lee was at least thinking about bowing out as art director at some point, he probably would consider Kirby-- and that may explain why in retrospect he claims to have been so thunderstruck when Kirby dropped the bomb that he was leaving. To Lee, who had stayed at Marvel for 30 years, it could seem foolish to leave the company at which you've spent over 10 years (as Kirby just had) for the promises of a competitor-- particularly a competitor at which you'd once been made 'persona non grata' in the 1950s.

Regardless as to when Goodman sold the company (though I read that he did stay on in a supervisory capacity until '72), Kirby's resentment of his Marvel situation were certainly very active in '68, particularly after Stan foisted a new origin onto the Silver Surfer w/o a by-your-leave from the Surfer's creator. I was just saying, though, that Lee might have considered offering Kirby a position that Lee might've deemed more secure than any offer from DC. AND I was also saying that the twists and turns of the business world can sometimes upend even the best of intentions, so there's no way to be sure whether or not Kirby really would've been more secure with a Marvel staff position.

I've heard nothing about royalties allegedly being promised to Kirby; only to Steve Ditko, so I've no info either way on that matter.