CBR: Unpacking The Kirby Reclamation Case

[CBR News]

Comic book legal expert Michael Lovitz reveals the issues surrounding the heirs of Jack Kirby's attempt to reclaim Marvel characters, from who created what to why it's different than the Siegel & Schuster suit over Superman.


Full article here.

[JimmyDee]

The words "potentially messy" seem to apply to this situation quite well.

[Somebody]

There's also the little point that, AIUI, the copyright reversion is strictly limited to the US. Meaning any movie, comic or cartoon would need a licence from Marvel to be released elsewhere.

[Sighphi]

"If Stan creates the character and the backstory and says to Jack, 'Okay. Draw what I came up with,' I don't know if Kirby has any copyrights in the characters – maybe in certain elements of the design but not in the characters themselves because now the drawings are derivative of what Stan had created,"

What? This guy is comic book lawyer and say things like this?
Well....... i dont know how this plays out in the courts but creator credits for characters always have at least two names, the writer and the artist. The ones that dont, of course, were drawn by the writer.

[CaptainCanada]

What? This guy is comic book lawyer and say things like this?
Well....... i dont know how this plays out in the courts but creator credits for characters always have at least two names, the writer and the artist. The ones that dont, of course, were drawn by the writer.

No, but in that instance, Kirby was clearly commissioned by Lee, a Marvel employee, to work off an idea that Lee had come up with. Hence, it would be hard to argue that he came up with it independently, which is the prerequisite for him having a copyright claim.

[Dean Kravitz]

No, but in that instance, Kirby was clearly commissioned by Lee, a Marvel employee, to work off an idea that Lee had come up with. Hence, it would be hard to argue that he came up with it independently, which is the prerequisite for him having a copyright claim.

I question whether Lee came up with any of the ideas independent of Kirby. Everyone who worked with them said they were collaborations and that Kirby had many of the ideas.

Even if Lee did come up with ideas, Kirby came up with the visuals on his own.

[StoneGold]

I question whether Lee came up with any of the ideas independent of Kirby. Everyone who worked with them said they were collaborations and that Kirby had many of the ideas.

Even if Lee did come up with ideas, Kirby came up with the visuals on his own.

And that's where more confusion comes in. How do you account for collaboration?

I remember Marvel Age printed Stan's original rough ideas that he sent to Kirby for the FF. It was definitely the FF, but not fully formed. Ben was more of a monster. Sue couldn't turn visible, and had to wear a mask of her face. Things like that. So how much counts for collaboration with what? I sure as hell don't know.

[AllisterH]

He ends with what I mention earlier as the most ironic thing...

DISNEY was the one who most pushed for the extension of copyright beyond the 56 year old original statue....

[pifpog]

"If Stan creates the character and the backstory and says to Jack, 'Okay. Draw what I came up with,' I don't know if Kirby has any copyrights in the characters – maybe in certain elements of the design but not in the characters themselves because now the drawings are derivative of what Stan had created," theorized Lovitz

Assuming this is true, then the Kirby's should have a legitimate right to at least the Silver Surfer. In Son of Origins, Stan Lee writes he was surprised to see a silver man floating on a board.

[Frank]

The Estate will have the strongest case with Cap, the FF and The Eternals/Celestials.

[CaptainCanada]

Assuming this is true, then the Kirby's should have a legitimate right to at least the Silver Surfer. In Son of Origins, Stan Lee writes he was surprised to see a silver man floating on a board.

But was was within the context of a Fantastic Four story that he and Lee were collaborating on. I'm not sure whether it would be possible to just claim piecemeal elements like that; he'd either have some sort of claim on the wider FF property, or not.

That's the sort of thing a court case would have to decide. It may not come to that, of course, if the Kirbys just get some money to go away (I'd say offer them whatever arrangement Marvel currently has with Stan Lee would be fair).

[T Hedge Coke]

But was was within the context of a Fantastic Four story that he and Lee were collaborating on. I'm not sure whether it would be possible to just claim piecemeal elements like that; he'd either have some sort of claim on the wider FF property, or not.

Not really. If the Silver Surfer can be licensed as its own entity, for t-shirts and movies, it can be taken on its own in an issue of ownership or participation rights.

[CaptainCanada]

What I mean is, ultimately they'll have to decide exactly what Kirby's status at Marvel was in the 60s under the terms of the copyright law. Given that, in the case of the Surfer, he was doing a regular gig at Marvel with Lee, that's arguably work-for-hire. Unlike with Siegel, who had a contract selling the rights to National, there's no contract between Kirby and Marvel selling them the Surfer, which to me doesn't suggest either party thought Kirby wasn't just working for them.