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  1. #1
    Mild-Mannered Reporter
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    Default CBR: Depositions Reveal Glimpse of Kirby/Marvel Copyright Lawsuit

    CBR examines depositions from the Jack Kirby/Marvel Comics copyright lawsuit to figure out what they reveal about the strategies of both parties and the state of the Kirby family's claim.


    Full article here.
    Last edited by Brian Cronin; 03-11-2011 at 01:27 PM.

  2. #2
    New Member shadowpdf's Avatar
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    Default Leave it alone already ...

    Kirby was undeniably a creative genious. He created or cocreated dozens of incredible characters. But this is nuts. It's not the same environment today as it was in 1960. Or 1970. Or 1945. The whole industry was work-for-hire. Today it's different. Creators are sharing in the rewards. And, yes, it would be great if Marvel forked over some of that cash as a "thank you" to Kirby for making some of these characters great. But Kirby is dead. He cannot enjoy the "thank you" check. Marvel is too late for that. Now it's just greedy relatives fishing for dollars. And of course the pros in the industry would love for Marvel to acknowledge Kirby's importance and invaluable contribution, but, well, it's all about lawyers and accountants, folks. They will never say or do anything other than take the corporate hard line. Frankly, these claims that Kirby was the genious behind Marvel diminishes the great contributions of others who were Kirby's contemporaries.

  3. #3
    New Member Shawn Richter's Avatar
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    That's sort of the point though, isn't it? Nobady knew that they could be doing their own thing, corporate culture was everywhere... Why would you fight for creator rights when the very idea was non-existant?

    The suit isn't to "thank" Kirby. It's to punish a corporation for doing the WRONG thing. Comic artists were and still are the lowest paid of all the commercial arts. IF Kirby had known to save his best creations for his own creator owned books, and IF he could have reaped the rewards of that, don't you think he would have? Don't you think he would have passed those rewards along to his kids? Of course he would have.

  4. #4
    Lenient Tyrant/Moderator Brian Cronin's Avatar
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    That's it, exactly, Shawn.

    One of the major issues in the case is whether it was reasonable for Kirby not to realize that his work for Marvel was "work for hire."

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  5. #5
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    Quote Originally Posted by shadowpdf View Post
    Kirby was undeniably a creative genious. He created or cocreated dozens of incredible characters. But this is nuts. It's not the same environment today as it was in 1960. Or 1970. Or 1945. The whole industry was work-for-hire. Today it's different.
    Work for hire wasn't legally defined until the US Copyright Act of 1976. So technically, the reverse is true. It was different back then.

  6. #6

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    Quote Originally Posted by RJT View Post
    Work for hire wasn't legally defined until the US Copyright Act of 1976. So technically, the reverse is true. It was different back then.
    That has nothing to do with it.

    The concept of "work for hire" can be part of common law and contract law without being codified in a copyright statute. You can have what we now call "work for hire" prior to 1976.

    Those pay stubs, if they did contain language indicating what we now call "work for hire," are essentially contracts (also taken into consideration with the standard ways the parties worked together) and Kirby understood what he was signing, then he's SOL. Reconstructing what Kirby understood is going to be an evidentiary nightmare.

  7. #7

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    Neal Adams claims he had legal opinion at the time that such pay-check "contracts" were legally invalid.

    Of course, he also claims that the Earth is expanding and that he's never been responsible for a book shipping late.
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  8. #8
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    Quote Originally Posted by kodave View Post
    That has nothing to do with it.

    The concept of "work for hire" can be part of common law and contract law without being codified in a copyright statute. You can have what we now call "work for hire" prior to 1976.

    Those pay stubs, if they did contain language indicating what we now call "work for hire," are essentially contracts (also taken into consideration with the standard ways the parties worked together) and Kirby understood what he was signing, then he's SOL. Reconstructing what Kirby understood is going to be an evidentiary nightmare.
    That's the rub though. YOU may think that everybody knew it was work for hire, but since work for hire wasn't legally defined at that time, there's no evidence to prove that everybody agreed what 'work for hire' meant, or even if that term was used.

  9. #9

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    Quote Originally Posted by RJT View Post
    That's the rub though. YOU may think that everybody knew it was work for hire, but since work for hire wasn't legally defined at that time, there's no evidence to prove that everybody agreed what 'work for hire' meant, or even if that term was used.
    Something doesn't need to have a "legal definition" to be understood in such a way that legally binds the parties.

    If the checks just had a byline that said "Work For Hire" and nothing more - yeah, no one is going to know WTF "Work For Hire" means. But if the checks had a paragraph saying "You works are commissioned for ownership by Marvel" then that's pretty clear. But that alone isn't enough. Even if Kirby didn't understand what the jargon work for hire meant, if by his actions, he understood Marvel had control and ownership of what he created, then that's evidence of work for hire.

    That's why the court will look at the conduct of the parties. A big part of determining work for hire is the nature of the relationship and who controlled what was being produced. The fact that Lee could demand that pages be redrawn without payment for the pages that needed to be redone leans toward "work for hire."

    I think the CBR article is a little off pointing to personal ownership of tools used to create the works as evidence that it wasn't work for hire. That just makes it more like independent contractors rather than employees, but independent contractors can most definitely be bound by "work for hire."

    Here is a brief overview of work for hire under the law currently: http://www.copyright.gov/circs/circ09.pdf

  10. #10
    Ben L FunkyGreenJerusalem's Avatar
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    It's amazing that Lee (and Thomas) makes it quite clear the artists never, ever created anything without the say so and help from the Marvel editors... well, except for The Silver Surfer.
    The only one fully created by an artist is the one that can be proved just came from the artist (or previously admitted)... but there's no way they would ever create any other characters!

    I hope the Kirby team jump up and down on that - I couldn't believe it reading the deposition.
    Lee's take on Surfer's creation totally clashed with everything he said before and after about how all characters and stories came from him - if it went how he describes it everywhere else, why would Jack suddenly add a brand new character, who is quite prominent, into a story?

    And the less said about his equating artists creating a new character with artists creating characters for the background, the better.
    What a shitty thing to say.
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  11. #11
    Ben L FunkyGreenJerusalem's Avatar
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    Quote Originally Posted by kodave View Post
    If the checks just had a byline that said "Work For Hire" and nothing more - yeah, no one is going to know WTF "Work For Hire" means.
    Why do we assume the checks had anything on them - no one can find one!
    How do they prove Kirby agreed to any contract if there's zero evidence of the contract?
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  12. #12

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    Morally, I think the Kirby family is in the right.

    Legally, it appears the preponderance of evidence favors Marvel.

    What I'd like to see happen is, rather than a multi-year legal fight, a settlement where Marvel pays the Kirbys a substantial cash settlement, sets up a charitable endowment in Kirby's name (since that was apparently his main objective when he was trying to get his original artwork returned) and agrees to credit kirby as co-creator in all future uses of the characters in dispute.

    Edited to add: I wonder if the replacement of "Fantastic Four" with "Future Foundation" has anything to do with this?
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  13. #13

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    Quote Originally Posted by FunkyGreenJerusalem View Post
    Why do we assume the checks had anything on them - no one can find one!
    How do they prove Kirby agreed to any contract if there's zero evidence of the contract?
    There's substantial supporting evidence including multiple independent reports from Marvel employees and freelancers dating back decades.
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  14. #14

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    Quote Originally Posted by FunkyGreenJerusalem View Post
    Why do we assume the checks had anything on them - no one can find one!
    How do they prove Kirby agreed to any contract if there's zero evidence of the contract?
    The JR deposition says there was basically a standard paragraph relating to work for hire going back to the 50s. I'm sure they can have others testify to the same. Obviously that's not as concrete as say, actually having a copy of the check Kirby signed in 1955 or whatever, but its likely Kirby wasn't signing checks different than that of others getting paid for work for hire at that time period. Kirby may have been a favorite writer but the depos set out that he was clearly just another cog in the Marvel method, which so far is has been described in a way that favors Marvel in this battle.

  15. #15

    Default Anyone Remember Fighting American?

    To say that Kirby had no idea he was working for hire is an utter farce. He and Joe Simon had one of the very first creator owned properties with The Fighting American, seven years before Kirby helped create the Fantastic Four. This, coupled with the fact that Kirby backed Marvel in 1969 when Joe Simon sued for ownership of Captain America, and that the Kirby estate is making a grab for nearly every character in the Marvel roster. If Jack Kirby provided some insight into the creation of Daredevil, that shouldn't grant him any hold over the character, it would be like saying James Cameron owns a portion of The Predator because he suggested a monster with mandibles. Jack Kirby is very deserving of credit and recognition for his role in modern comic books, and perhaps royalties, but not the rights, not when he again, would have known the difference between creator owned and work for hire better than just about anyone in that bullpen. Although comics are indeed an artistic medium, the manner in which they are created and sold is less akin to most entertainment concepts and more so like creating an automobile. You collaborate, create, market, sell, and eventually move on. And if you feel that you might have a revolutionary idea, you find a way to own it as well, John DeLorean created the GTO, and when he left GM others created upon it in hes stead. Yet when he felt he had something revolutionary on his own, he made the DMC-12. This is very much how superheroes are created today, you work for the machine, but find a way to create something greater.

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