Kirby family files for copyright reassignment

200909210351
ALL HELL IS BREAKING LOOSE. Last week, Jack Kirby’s four children filed notices of copyright termination for 45 characters . The LA Times has details. This is the same legal maneuver that the Siegel family employed to get back their half of the Superman copyright. Notices were sent to Marvel, Disney, Sony Pictures, 20th Century Fox, Paramount Pictures and Universal Pictures, suggesting that the 45 characters include many already being made into successful movie franchises.

Kirby, of course, co-created the Hulk, the X-Men, the Fantastic Four and hundreds more of Marvel’s 5000 characters. Copyright termination allows creators to apply for copyright reassignment after the term of the original contract runs out.
Under copyright law, creators and co-creators can seek to regain copyrights they previously assigned to a company 56 years after first publication and can give notice of their intentions to do so up to 10 years before that.

Kirby’s children would be eligible to claim their father’s share of the copyright of the Fantastic Four in 2017, while the Hulk would come up in 2018 and X-Men in 2019. The copyrights would then run for 39 more years before expiring, after which the characters would enter the public domain under current law.
The Kirby family is being represented by lawyer Marc Toberoff, who also handles the Siegel case. In Hollywood, he is known as a relentless litigator — he also represented the creator of The Dukes of Hazzard in a successful claim against Warner Bros.

Of course there’s a lot to be written and discussed about this. Jack Kirby spent many of his later years trying to get his ART back from Marvel, and he felt that he was not fairly compensated for his creations for years. It also casts a shadow over Disney’s recent acquisition of Marvel, although a Disney spokesperson said “The notices involved are an attempt to terminate rights seven to 10 years from now and involve claims that were fully considered in the acquisition.”

We’ll have a bit more on this later, but in the meantime, Marc-Oliver Frisch considers how appropriate it is that this news broke on what would have been the late Steve Gerber’s 62nd birthday. (Kirby and Gerber collaborated on DESTROYER DUCK.)

AND, Jeff Trexler reports on the latest in the Siegel/Superman case, including the potentially huge news that the presiding judge is retiring in a few months.

Comments

  1. Torsten Adair says:

    …and the residents of Jericho wonder why the Israelites are marching behind a brass band…

  2. Synsidar says:

    Rob Jensen, commenting on the matter at Deadline Hollywood, doesn’t think Kirby’s estate stands to gain much, because of papers Kirby signed years ago:

    That is, if the Kirby estate would even have legal standing to challenge the contract that Kirby signed two decades ago to get hundreds of pages of original art back in which he agreed that characters that he co-created with Stan Lee were indeed work-for-hire. And it’ll be pretty darn hard, probably impossible, for the Kirby estate to make that case when Stan Lee was even then on the editorial staff of Marvel and therefore his work was explicitly work-for-hire. This is also why the lawsuit against Stan Lee is bogus: Lee has never owned any of the characters he co-created at Marvel. (Which itself is the primary reason that Marv Wolfman lost his lawsuit against Marvel over the rights to Blade and other characters that he created when he was at Marvel, with the largest part of his term there on the editorial staff as an editor or writer-editor. Hard to claim work-for-hire when you’re on the editorial staff rather than just a freelancer. But I Digress . . .)

    Even if someone were to challenge the ownership status of the Marvel characters based on the fact that Marvel back in the 60’s claimed copyright on the characters based on the artists/writers endorsing the backs of checks, that’s an entirely different situation than the rights reversion clause that Toberoff is pursuing for the Kirby estate. Toberoff would have to find some way to void the four-page settlement that Kirby signed two decades ago that reiterated that he had co-created the characters as work-for-hire.

  3. Should be interesting to see if Work For Hire contracts actually mean what they legally entail….and can’t be conveniently voided based upon sentiment and the sudden appearance of Disney in the scene.

  4. Alan Coil says:

    I have read that work for hire is a spurious claim by the publishing companies, and that it has little legal meaning before 1976. Any legal experts out there care to comment on this? Legal experts, not online wags thankyouverymuch.

  5. It’s not widely discussed and I won’t name names, but I have heard from people who were at Marvel back in the day that the reason some of the Kirby artwork can’t be located is that certain people “borrowed” it for research and never returned it. A pox on thieves.

  6. The John Byrne forum has a discussion on this topic which seems to be fairly intellectual at the moment.

    One point raised: If Stan Lee, the editor of Marvel Comics, hands a script to Jack Kirby and asks him to draw characters, is that not a work for hire? (Of course, with the Marvel “plot first” style of writing comics, this might be open to interpretation. The Silver Surfer, for example.)

    Whereas Superman was created by Siegel & Schuster, and then sold to DC.

  7. @Torsten: For something to be work-for-hire, it has to be specifically contracted as such. Legally, you retain rights that aren’t explicitly signed away.

    I have no idea what Kirby’s particular legal situation with Marvel was all those years, this has the possibility of being a very interesting case. Because one of these days, SOMEONE is going to legally challenge whether comics actually fit under the legal definition of a “group work” (a legal requirement for something to be considered work made for hire) AT ALL.

  8. Tommy Raiko says:

    Scott Chantler notes:

    “For something to be work-for-hire, it has to be specifically contracted as such. Legally, you retain rights that aren’t explicitly signed away.”

    I know that it’s the case *now* that a work has to specifically contracted as work-for-hire in order to be considered work-for-hire, but has that always been the case

    That is, I’ve read that it was the Copyright Law of 1976 that (among other things) more specifically described what does and does not count as a work-for-hire, including the notion of there having to be a specific written agreement confirming work-for-hire-ness. I wonder, then, if things might be different for works created before that time. Certainly, it seems that most of this kind of lawsuits and lawyering concern works created before 1976, when the status of such works might have been differently defined…

  9. Synsidar says:

    This description of how Wolfman’s case was decided has interesting twists on the copyright issue:

    Wolfman had argued that he had not been bound by any work-for-hire contract at the time he had created the characters in 1972 and that Marvel’s subsequent use of the characters had been contingent on his approval. The court ruled, however, that Marvel’s later use of the characters was sufficiently different from Wolfman’s initial creations to protect it from Wolfman’s claim of copyright ownership.

    Wolfman’s attorney Michael Diliberto told the Journal, “We don’t think the judge understood the nuances of character development in comics, the way characters change their powers and relationships over time.”

    The ruling may set a precedent that will affect other pending character ownership conflicts between creators and corporate license-holders. It is also expected to clear the way for a Blade sequel, which has been pending since 1999.

    Something I haven’t seen discussed concerning ownership of characters is how some characters are derived from others. Marvel’s Squadron Supreme characters, for example, were derived from DC’s Justice League of America characters; Marvel’s Squadron Sinister characters were largely evil versions of the Squadron Supreme characters. Given the lack of originality in creating some characters and changes in characters’ appearances over time, the judge’s ruling in Wolfman’s case might have been appropriate.

    SRS

  10. Wait….are the Kirby Kids suing for the rights to Spider-Man as well?

    On what basis? They can’t seriously be claiming Jack Kirby was the co-creator of Spider-Man…could they?

  11. Didn’t Kirby claim at some point that Spider-Man was based on one of his concepts? It’s probably an error in the article, but it’s not completely impossible. (If you’re claiming back 44 characters anyway, and you’ve got a tenuous argument for character 45, you might as well chuck him in for negotiating purposes.)

  12. Synsidar says:

    One way to contest the estate’s ownership to the Hulk might be to argue that the character is only a minor variation on Dr. Jekyll and Mr. Hyde. Thor is obviously in the public domain; the estate might be able to claim ownership to a particular (visual) depiction of him, but how could it claim ownership to any other aspect?

    SRS

  13. Mark– Joe Simon’s account of the character’s genesis from something called The Silver Spider to Spiderman (in his autobio The Comic Book Heroes –I think it was called–) mentions both CC Beck and Jack Kirby as having a hand in the process, although it was Ditko (I believe) who created the costume design and–I think– Stan Lee who coined the name. The was also a pulp hero called The Spider in the 1930s, a sort of Shadow-like hooded detective.

    Carl Barks tells an incredible account of his artwork on Donald Duck being cut up and tossed out once it was shot for film negative (for print). He said they didn’t think of the artwork as artwork back then, but as ‘mechanicals for reproduction”. He didn’t seem bitter about it but admitted he would have kept more if it if he knew it would have resale value later.

  14. A curious statement from the LA Times article:

    “Kirby also co-created Captain America, for whom Marvel is currently preparing a new film, but the patriotic super-hero first appeared in 1941, so he is not currently eligible for such a copyright claim.”

    So…if I understand this correctly, properties created before 1976 have a sketchier work-for-hire status….yet something Kirby co-created in 1941 isn’t eligible for a claim? I wonder why the Kirby Kids aren’t going after Cap…at the very least joining with Joe Simon on his suit against Marvel?

    Wow. What a mess.

  15. @Tommy: I’m fairly well-versed in intellectual property issues, but I really have no idea what happens with stuff created before ’76. I guess that’s kind of what these current high-profile cases are going to decide. I expect it’s going to come down to the particulars of how/when characters were created, and the details of their creator’s contract/employment situation at the time, for each character. In that regard, this Kirby thing could end up being even more complicated than the Siegel case.

  16. Synsidar, it isn’t really in Marvel’s interests to argue that the Hulk and Thor are incapable of being owned.

  17. Synsidar says:

    Kirby, on the contract Marvel demanded that he sign:

    EVANIER: There is a link here; it’s the three words “work-for-hire.” In 1976, the copyright laws in the country were amended to give the creator of the work a greater expanded power of copyright renewal. Prior to that time there had been some question that at the time the copyright expired, whether the copyright could be renewed by the writer of the book, or by the publisher of the book, or whoever. It was established clearly in that revision of the copyright law that the creator of the work had the right of renewal. So the comic book companies – and this happened outside comics as well – determined that they had to make themselves the creator. The phrase “work-for-hire” came into heavy usage at this point, and when you sign a work-for-hire contract with a comic book company, you are stating that the company is the creator, and has all rights of future renewal to the work, and you are an assistant. If Frank Miller writes a comic book, conceives of it, creates it, pencils it, letters it, inks it, colors it, takes it to the printer himself, if he signs that contract, he’s saying the publisher did all that, and the publisher’s the creator, and the publisher can not only get the right of copyright renewal, but any further legal rights that are ever granted in the future to the creator of the work.

    KIRBY: You’re leaving out one thing. The publisher did that arbitrarily; they printed that on the back of every check the artist ever got. If you didn’t sign that check, you didn’t get paid.

    EVANIER: For a long time, the only way the companies attempted to qualify the rights was with the back of the check statement. That was your “contract” that you had to deposit at the bank. It was a non-negotiable contract. It was only in the late 1970s when they started selling the Hulk to television and Superman to movies that they went back and tried to retroactively clarify a lot of what they were claiming they had bought the rights to. Jack has never signed that work-for-hire contract, and that’s a key point that has to be made. Jack got this contract that nobody else ever got to get his originals back. The reason is that Jack didn’t sign a work-for-hire contract. [. . .]

    CALLER: Jack, what exactly was the clause in your contract that kept you from signing it?

    KIRBY: Specifically, I can cite one clause that didn’t allow me to sue Marvel for anything at all. It violated my civil rights; as an American you should be able to sue anyone you like. But Marvel insisted that I wasn’t allowed to sue Marvel, and the entire premise of the thing was humiliating to me, to my family, and being a little macho in nature, (laughter) I couldn’t do it.

  18. “Certainly, it seems that most of this kind of lawsuits and lawyering concern works created before 1976 …”

    Most of the characters that these companies are built upon were created before 1976.

  19. Synsidar says:

    Synsidar, it isn’t really in Marvel’s interests to argue that the Hulk and Thor are incapable of being owned.

    I dont’ think it would matter what either side wanted to do with respect to Thor. Experts used by the court or either side could easily establish that the character Thor has appeared in other comics (e.g, Larsen’s SAVAGE DRAGON) and that his origin in Norse mythology makes ownership of the concept impossible.

    SRS

  20. If what Evanier’s saying in that quote is true, that Kirby never signed an agreement explicitly assigning his right of authorship to Marvel (and good for Kirby, if it’s true) then this might be a simpler case than I thought, and the right of renewal does, indeed, belong to the Kirby estate.

  21. The difference between the Captain America situation and the situation for silver-age characters has to do with the specifics of the right to recapture copyright. Under the law, recapture can only be done at certain times – basically, when they extended copyright beyond 56 years, they said that if you sold the copyright before then, you could recapture it at the 56 year mark, and there’s a specific window when that recapture request must be filed. As such, that particular window has closed for material created in 1941, but is open or opening for the characters at hand.

    As for Thor, no, no one can claim copyright on the Norse god himself. However, copyright on the idea of Thor-who-turns-mortal-by-bopping-his-hammer-shaft-on-the-ground, that’s a different question.

  22. Synsidar says:

    Sone snippets from the book The Comic Book Makers re Joe Simon and the Silver Spider.

    SRS

  23. Pulphope:

    To further complicate things, the web-design on the costume of the SPIDER, as seen in the serial version of the pulp, looks a lot like Spidey’s pattening. I don’t know that Ditko has ever mentioned having seen either of the SPIDER serials.

  24. Synsidar says:

    Some more re the estate’s claim to Spider-Man:

    Jack Kirby claimed that he, and he alone created Spider-Man, and Stan Lee was nothing more than a glorified office boy. Steve Ditko, ordinarily silent about the feud, stood up and said that Kirby’s claim was a false one. [. . .]

    Kirby’s claim is that the entirety of the concept was his. Joe Simon said that Spider-Man was originally his, from a project he had created in 1953 that he had originally called “Spiderman,” but later changed to “The Silver Spider.”

    The Silver Spider,” at least according to reports, was about a young boy who makes a wish on a magic ring to morph into a full-grown superhero. The character he morphs into wears a Batman-like cowl with goggles, does cling to walls, and carries a net.

  25. Eric H. says:

    Synsidar, you’re certainly correct about Thor appearing in other comics. There’s a Thor story in Batman 127 from 1959 – a few years before the first appearance of the Marvel Thor.

    Mr. Chantler, I believe that the quote Synsidar (that guy just keeps coming up) posted as the second post in this thread complicates the Kirby’s claim. If Jack did indeed sign papers stating he created the characters as work for hire in order to get his art back, it may be tougher to claim that they were not such work.

  26. In the fanzine PURE IMAGINATION #1, Greg Theakston makes a case for Jack Kirby contributing some limited elements to Spider-man (much less than Jack maintained) .
    Greg refutes Kirby’s assertion that he designed Spider-man’s costume.
    From Wikipedia: “Comics historian Greg Theakston says that Lee, after receiving Goodman’s approval for the name Spider-Man and the “ordinary teen” concept, approached artist Jack Kirby. Kirby told Lee about an unpublished character on which he collaborated with Joe Simon in the 1950s, in which an orphaned boy living with an old couple finds a magic ring that granted him super-human powers. Lee and Kirby “immediately sat down for a story conference” and Lee afterward directed Kirby to flesh out the character and draw some pages.” (http://en.wikipedia.org/wiki/Spider-Man)
    Lee rejected Kirby’s approach and assigned the story to Ditko, but some elements from the Silver Spider pitch, such as the names Aunt May and Uncle Ben, remain.

    Mark Engblom Says:
    Wait….are the Kirby Kids suing for the rights to Spider-Man as well?
    On what basis? They can’t seriously be claiming Jack Kirby was the co-creator of Spider-Man…could they?

  27. Alan Coil says:

    “If Jack did indeed sign papers stating he created the characters as work for hire in order to get his art back, it may be tougher to claim that they were not such work. ”

    If he signed the papers in order to get his artwork back, perhaps a case might be made that he signed them under duress.

  28. “Mr. Chantler, I believe that the quote Synsidar (that guy just keeps coming up) posted as the second post in this thread complicates the Kirby’s claim.”

    Yep…didn’t read that post all the way through originally. But yeah, if at any point Kirby signed anything saying “work-for-hire” or “all rights”, then it’s a different kettle of fish.

  29. Synsidar says:

    From The Comics Journal article that Rich Johnston at http://www.bleedingcool.com linked to:

    The final resolution came in May of 1987, nearly three years after Marvel had first begun returning original art backstock and nearly 30 years after it had begun accumulating the art. Marvel had dropped its demand that Kirby sign the four-page document and had amended the short form to address his concerns. Details of the amendments were not made public, but Kirby’s lawyer, Greg Victoroff, told the Journal, “Jack got just about everything he wanted.” The form was signed and the art was returned. The eventual tally of Kirby art Marvel had collected for return came to approximately 1,900 pages, still far short of his total output for Marvel but considerably more than the amount originally specified.

    In the end, Marvel was so worn down by the controversy over its original art policies that it returned Neal Adams’ art in May of 1987 without even requiring him to sign the short form.

  30. “If he signed the papers in order to get his artwork back, perhaps a case might be made that he signed them under duress.”

    And here’s the crux of the problems with Kirby’s history with Marvel: There never seems to be any culpability or responsibility leveled against Kirby himself. Why admit Kirby made a mistake signing the papers when you can write yet another “Someone Done Kirby Wrong” song?

    I can sympathize with Kirby to a point (I have no doubt matters between Kirby and his employers caused him and his family grief and aggravation), but after a certain point, this stuff begins to look petty and grasping….especially when Kirby (and his estate) stake an absurd claim on a character like Spider-Man. Farcical claims like these only serve to undermine the other (possibly) more valid claims.

  31. Mark, I think it’s a bit early to to discern just how “valid” or “farcical” this claim is. No one, even on this board full of relatively well-informed people, seems too clear on whether Kirby signed a post-1976 agreement, didn’t sign it, signed an amended agreement, or what have you. I’ll be interested to see some facts come out as the case progresses. Separating legality from the amount of mythology surrounding Kirby seems like it’s going to take real effort.

  32. Bob Hughes says:

    Stan claims to have come up with the idea of a character named Spider-Man and then Jack Kirby came in and said “What a coincidence! Joe Simon and I have been working on a proposal for a character with that name for 10 years!”

    And we’re expected to believe that?! The original suggestion obviously must have come from Kirby.

  33. Red Martin says:

    I sent a note to Mr. Evanier and he replied that he won’t be commenting.

  34. Rob Jensen (aka ShutUpRob) says:

    Eric H.: Kirby did sign the four-page contract with the no-sue clause in order to get his artwork back. That’s what makes the excerpt of the Kirby interview above all the more depressing despite the fact that one of the primary reasons that he signed it so that he and his family could sell the artwork sooner rather than later. I think that pretty much nobody other than the Board of Directors at Marvel wanted Kirby to sign the damn thing, but he nevertheless did — and it’s clear from that interview that he did so with both eyes open.

    It’s worth noting, too, that the Siegel Estate didn’t win copyright over concepts introduced to the Superman mythology after Action Comics #4 — which means that the rights to Lex Luthor (among other concepts) were successfully retained by DC. Which, in turn, indicates — for all intents and purposes, practically *declares* — that regardless of the fact that the concept of work-for-hire didn’t gel into common usage until the 1970′s, work-for-hire nevertheless existed *in practice* exist for at least decades before it was codified.

    To reiterate: whether or not WFH formally existed in the 1930′s and 40′s, the Court in the Siegel case has recognized that it existed even then.

    Thus, partly by definition of the proven fact that Stan Lee was (editorial) management at Marvel starting before the creation of the MU in 1961, Kirby was co-creating work at Marvel to the specifications of Marvel.

    Also, being a layman rather a lawyer, I think that it would be ridonkulously easy for a lawyer to argue that the fact that the practice of signing-the-back-of-the-check existed for so long, something like a decade or so, wherein the writers and artists (well, mostly artists, since Stan wrote most of it), means that the artists accepted the ad hoc practice as being exactly what it appeared to be at that time: as the contract assigning the rights to those works as WFH to Marvel. Yes, the questions about the practice clearly freaked out the legal department at Marvel in the 80′s, but it seems like that was more of a case of Marvel closing off what was a weak avenue by which to challenge Marvel’s rights to begin with.

    Or, in other words, Jack co-created everything he co-created from Fantastic Four onward at Marvel as WFH. Marvel owns those characters in the same way that DC owns Lex Luthor. Or, more generally, the same way that DC owns everything that the Siegels and Shusters *don’t* own.

    Now, mind you, I think that simply as a matter of both moral and ethical principle, Marvel should assign to the Kirby Estate the same sort of ancillary benefits — royalties and the like — that it semi-retroactively gave to Dave Cockrum in the last year of Cockrum’s life. Something equal-ish to the royalties that creators get for concepts created since the royalty system was put into place thirtysomething years ago. That would be awesome even if Kirby had only co-created the Fantastic Four rather than so much of the rest of the Marvel Universe (NOT Spider-Man, of course.)

    Kirby didn’t retain any of the rights to the characters and when provided with an interesting opportunity to challenge Marvel to reclaim those rights, he signed them away. So it seems to me that the only way that the Kirby Estate might win the case is for
    Toberoff to successfully argue all of at least four things — any one of which it’s very unlikely that he’ll be able to win:

    1) Exempt Kirby from his lack of claim on characters that he created while in Marvel’s employ, in collaboration with its primary editorial staffer (ie: the precedent in the Siegel case where the Siegels were NOT entitled to Superman-derived concepts conceived after they started working for DC (ie: later than Action #4))

    2) Exempt *Stan Lee* from the concept of WFH (which won’t happen. Okay, yeah, this one’s a straw man.)

    3) Nullify the Artwork Contract. (One could argue that it was an onerous and extortive contract, but it’s been twenty-five years and Kirby signed the contract knowing full and well what it said.)

    4) Argue that signing the back of the check means less than even a contract written on a napkin even though it was the practice at Marvel and with Marvel’s freelancers — involving dozens if not hundreds of freelancers — for over a decade, if not two or three.

    Do *any* of these arguments seem likely to succeed?

    — Rob

    PS: Awesome! I was name-checked for a comment that I posted to another blog!

  35. Wasn’t Stan Lee sueing Marvel not that long ago, I would figure he would be in on this as co-creator.
    As far as Spider-Man goes that and Doctor Strange were Steve Ditko who should sue while the sueing’s good. I’m on Kirby’s family side except for the Spider-Man claim that’s BS.

  36. No, they had a proposal for a character called the Silver Spider… not a character called Spider-Man. I get that Kirby can do no wrong in some eyes, but considered how those early days seemed to work at Marvel, trying to give sole credit to anyone for an idea seems iffy.

  37. Steve says:

    In the 70′s it was a simple matter to cash the Marvel checks without signing them. Many did that. No after-the-fact signed contract…

  38. Alan Coil says:

    Mark Engblom said:

    “I can sympathize with Kirby to a point (I have no doubt matters between Kirby and his employers caused him and his family grief and aggravation), but after a certain point, this stuff begins to look petty and grasping….”

    Perhaps you’re right. Perhaps the corporation is really the King and deserves all the rewards of a successful collaboration. What need of peons for money, anyway. Let them eat cake.

  39. Alan Coil says:

    Steve is right. Many of the people getting paid back then scratched off the clause on the back of the checks, and the checks were honored anyway. Seems to me that puts the enforceability of the clause into question.

  40. “Stan claims to have come up with the idea of a character named Spider-Man and then Jack Kirby came in and said “What a coincidence! Joe Simon and I have been working on a proposal for a character with that name for 10 years!””

    Well, if that game is going to be played, how about this: Although the writer is uncredited, let’s say for the sake of argument we know who the writer of the “Spider-Man” story from Uncanny Tales #25 (1954) is. Should his estate make a claim based solely on the similarity of the name?

    How about the estate of Mort Weisinger, who co-created “The Tarantula” for DC Comics (Star Spangled Comics #1, 1941). The character walked on walls and ceilings and shot webbing from a web gun which “fired a string of fast-hardening nylon that could be used to swing from one anchored point to another and ensnare his victims”.

    How about Spider-Queen (Fox Feature Syndicate, 1942), who wore special bracelets that fired spider webbing? Certainly there could be a claim there if we’re to use the same flimsy similarities of the Simon/Kirby Silver Spider as a basis to stake a claim on Spider-Man.

    Like I said, other characters may have some legal merit for the Kirby Kids to pursue, but throwing Spider-Man in there is wildly irresponsible and…yes…farcical.

  41. michael says:

    All these children claiming their ‘inheritance’, what did they do for me??…Nothing!

    What their father’s did though…

  42. Rob Jensen (aka ShutUpRob) says:

    COIL: “Many of the people getting paid back then scratched off the clause on the back of the checks, and the checks were honored anyway.”

    Define “Many,” including enough examples to qualify as “many.”

    — Rob

  43. R. Maheras says:

    You know… I was just thinking…

    With all of the major comics industry stories that have popped up in just the past few weeks, this is a helluva time for there to be a dearth of bonafide, hard-core, comics-related journalists.

    For example, where’s the court document the Kirby family filed? It should be public record once it is filed. And where’s an assessment from of the situation from a knowledgeable copyright attourney? Etc., etc.

  44. R. Maheras says:

    One other thought.

    I’ve always wondered about the term “co-created.” Generally, common usage in comics circles goes something like, “Stan Lee and Jack Kirby co-created the Fantastic Four.” While that sounds right when you say it fast, there’s a lot more to it than that.

    For example, every comic book page in the early issues of “Fantastic Four” was the work of at least five people, and every single person contributed to the final page of artwork. Every single person had a key hand in how the final product and characters looked, interacted and were received. There was a scripter, a penciler, an inker, a letterer and a colorist. At least two of those people were co-plotters. So by rights, they were ALL co-creators.

    In the case of, say Iron Man, it gets even murkier. Stan Lee plotted the origin issue, Larry Lieber scripted it, Don Heck penciled and inked it, Artie Simek lettered it, and someone colored it.

    And don’t say the colorist doesn’t matter, because first Iron Man’s armor was gray, then yellow, then red and yellow — and all were distinctive elements of the Iron Man persona. In each case, someone had to make that creative decision to make the change. Was it Lee, was it George Roussous, was it Steve Ditko, or was it someone else? Lee claims to have been the driving force behind the Hulk’s change from gray to green, but whose idea was it to change the colors on Iron Man?

    The bottom line is that most comics characters created during the Silver Age were group efforts, and because of the assembly line nature of comics, everyone who had a hand in the finished page was a co-creator.

    Sometimes I think one of the reasons Ditko insists on doing every aspect of his own comics, is so he can honestly say that he, and he alone, was the total creator of each and every page.

  45. Steve says:

    >COIL: “Many of the people getting paid back then scratched off the clause on the back of the checks, and the checks were honored anyway.”

    >Define “Many,” including enough examples to qualify as “many.”

    >— Rob

    I can think of six off the top of my head. Would that constitute “many”?

  46. Charles Knight says:

    I know the laws are different but isn’t that the basis of the Zenith/Grant Morrison thing? Morrison never cashed the cheques for the work in 2000ad and therefore the ownership is dispute? or is that an urban myth?

  47. The concept of “work for hire” did not originate with the 1976 law; it goes back to the 1909 law, which specified the word “author” shall include an employer in the case of works made for hire. (That “work made for hire” phrase is how it’s specified in 1976 as well; the “work for hire” terminology is just common shorthand.)

    The Kirby signed a document saying that the material was WFH may well not be enough to make it WFH, however. That would seem to turn more on what the actual situation was at the moment than on a statement paid for decades later (although the statement might carry weight as a witness if it said that it was his understanding and intent at the time of creation of the material that it would be WFH.)

  48. Kurt Busiek says:

    >> I think that it would be ridonkulously easy for a lawyer to argue that the fact that the practice of signing-the-back-of-the-check existed for so long, something like a decade or so, wherein the writers and artists (well, mostly artists, since Stan wrote most of it), means that the artists accepted the ad hoc practice as being exactly what it appeared to be at that time: as the contract assigning the rights to those works as WFH to Marvel.>>

    Except that work-for-hire law doesn’t allow that.

    For a work to be a work-made-for-hire, the agreement saying such has to be made (and signed) before work commences. You can’t retroactively make something a work-made-for-hire. Not twenty years after the fact, and for that matter, not ten minutes after the fact. You have to agree on it ahead of time.

    So nothing Kirby signed in the 1980s would have any effect of the status of work done prior to it — unless, as Nat notes, it were to say that he understood at the time of creation that the work was work-for-hire, and possibly not even then.

    As the companies have gotten more careful about this, I’ve been in lots of situations where work had to be delayed so that a contract could be signed before it commenced, specifically because of those WFH provisions.

    On the Thor front, it’s true that nobody can own the mythological Thor, but someone certainly can own the Marvel Thor, and as such, that version of Thor — not just the visual, but the history, personality aspects, power arrangements and such) was indeed created. Pointing to other uses of characters based on the mythological Thor doesn’t change that — just try having Marvel’s Thor guest-star in an Image comic without benefit of a license, and you’ll find that out real fast.

    The same applies to the arguments that “Hey, spider-based characters have appeared in comics before.” Sure, they have, but that doesn’t make a lick of difference. If what Kirby brought to Marvel was developed into Spider-Man, there’s a case to be made, even if they changed just about everything, including adding a hyphen to the name.

    Art Buchwald wrote a treatment for a movie about an African price coming to America, and later sued (successfully) over the Eddie Murphy comedy COMING TO AMERICA, because he could trace a path from his treatment to their movie. It didn’t matter if they changed all the names and altered the story substantially, it matters that they started with his idea, didn’t compensate him for it, and developed and built and modified it.

    The argument to be made is that if he hadn’t plopped down the idea and said, “Let’s do this,” it never would have developed into what actually saw print — and while aspects of what Kirby put on the table are very different, the fact that it’s a young hero named Spiderman with spider-powers is a pretty strong core similarity, even with changes to how the powers came about and what his family situation is, and all that. Did other spider-powered heroes exist? Yes, but nobody brought them in, plunked them down, said “Let’s do this” and got the ball rolling on what would become Spider-Man, just as the X-Men are a Lee-Kirby creation as a concept even when the team doesn’t have any of the original characters in it.

    If someone had brought the Kirby version of Spider-Man to a movie producer, and two years later that movie producer had made a movie that was called Spider-Man and had a character in it that was quite different from what had been submitted but was clearly and evidently a direct descendant of that original pitch, then that someone would have grounds to sue. The similarity of the name, powers and the youth of the character are pretty core similarities, even if everything else is different.

    All this is aside from the whatever merits there are to CC Beck and Joe Simon’s claims of input, of course. But it’s just not as simple as “We took the idea and changed it a lot so we can say you didn’t have anything to do with a character rooted in the concept you brought us.”

    [Plus, I wonder if Disney might not welcome the Kirby claims, in the Spider-Man case at least. If they can make a deal with the Kirby estate, and then use that to wrest Spider-Man back from Sony on the grounds that Marvel didn't have the right to sell Spider-Man to Sony in perpetuity, Disney might wind up in a better position.]

    But the people who are arguing that Kirby can’t claim co-creation of Thor because Thor’s a mythological figure, and similar arguments, are just plain mistaken. Disney owns their version of Hercules, after all, and will guard those rights. Anyone can create their own version of Hercules, but they can’t just take Disney’s, they can’t take Marvel’s, they can’t take DC’s, they can’t take Erik Larsen’s, they can’t take the one Sam Raimi and company whipped up, and so on. Those are all different characters based on the mythic Hercules, and all were created by people who owned them or sold them or who in some cases created them work-for-hire.

    Heck, I’m writing a project next year that’ll have a version of Thor in it, and I’ll have created that Thor and will own him. In my case, though, there won’t be legal confusion over it (I hope!), because the contracts will be clear, and we won’t have to depend on people arguing about declaring something work-for-hire decades after the fact.

    kdb

  49. It strikes me that the Kirby case is pretty similar in some of its particulars to the Siegel case. Like Kirby, Siegel and Shuster signed a later agreement with Warner prior to the release of the first Superman film. Unlike Kirby, there was a monetary compensation. That didn’t stop the Siegel estate from recovering half of the Superman copyright.

  50. “Anyone can create their own version of Hercules, but they can’t just take Disney’s, they can’t take Marvel’s, they can’t take DC’s”

    I think they can take DC’s, because it’s unbound.

    Heh, heh.

  51. Nat, you stinker.

    kdb

  52. I must admit, I’m a little curious if Ditko will be subpoenaed over the Spider-Man question.

  53. Synsidar says:

    The same applies to the arguments that “Hey, spider-based characters have appeared in comics before.” Sure, they have, but that doesn’t make a lick of difference. If what Kirby brought to Marvel was developed into Spider-Man, there’s a case to be made, even if they changed just about everything, including adding a hyphen to the name.

    Then what of the maxim “Ideas can’t be copyrighted”? One example:

    Case in point. When the Dungeons and Dragons roleplaying game first came out, it featured characers [sic] called Hobbits, Balrogs and Ents. Tolkien Enterprises successfully sued them for using characters from out of The Lord of the Rings, but all that did was make them change the names to Halflings, Balors and Treants. Pint-sized humanoids, giant flame demons and walking trees aren’t copyrightable; only the names of these characters are.

    Since the basic aspects of Hercules suffice to make the character entertaining, “creating” a unique version would be trivial. From Wikipedia:


    # Hercules (1958 film), starring Steve Reeves
    # Hercules Unchained, a 1959 sequel starring Steve Reeves
    # Hercules (1983 film), starring Lou Ferrigno
    # Hercules (1997 film), the Disney animated film [. . .]
    # Hercules (TV miniseries), an NBC 2005 TV miniseries
    # Hercules: The Legendary Journeys, a TV series from 1995–1999, starring Kevin Sorbo
    # Hercules in New York, Arnold Schwarzenegger’s 1970 film debut
    # Hercules Returns, a 1993 Australian comedy film
    # The Mighty Hercules, a 1963 animated television series
    # The Sons of Hercules, a 1970s television series
    # Young Hercules, a 1998 television series
    # Hercules, a superhero in the 1970s Filmation animated cartoon Space Sentinels
    # Hercules, a superhero in the 1970s Filmation animated cartoon The Freedom Force

    There’s also the decision in Wolfman’s case: “The court ruled, however, that Marvel’s later use of the characters was sufficiently different from Wolfman’s initial creations to protect it from Wolfman’s claim of copyright ownership.”

    Lastly, the Buchwald example might not be relevant, since he had a contract with Paramount when he submitted his treatment:

    In 1982, Buchwald wrote a screen treatment that was pitched to Jeffrey Katzenberg of Paramount, with the intention of starring Eddie Murphy, who was under contract to Paramount at the time. Paramount optioned the treatment in early 1983 and commissioned several unsuccessful scripts from several screenwriters. John Landis was considered as the director from time to time. After two years of development hell, Paramount decided to abandon the project in March 1985.

    In May 1986, Paramount’s rival Warner Bros. optioned Buchwald’s treatment.

    In the summer of 1987, Paramount began to develop a movie that was credited as being based on a story by Eddie Murphy, and which was to be directed by John Landis. The story outline seemed similar to Buchwald’s story idea, and to the failed Paramount scripts that had been based on it.

    In January 1988, Warner Bros. cancelled their version of Buchwald’s project, citing the Paramount project.

    When the movie Coming to America was released by Paramount in 1988, Eddie Murphy was given sole story credit. Buchwald was not paid, or even credited as the story writer. Buchwald sued Paramount for breach of contract, as his contract with Paramount stated that he would be paid a certain amount if his treatment were made into a film.

    SRS

  54. One thing regarding Wolfman’s suit that people should keep in mind is that it was decided by a New Delaware Bankruptcy Judge. It may not have much precedence against the Kirby case. Or maybe it does, I’m no legal expert.

  55. >> Then what of the maxim “Ideas can’t be copyrighted”? >>

    That’s why you can do new spider-powered characters even if there have been some before. It doesn’t mean you can take a submission, plunder it for ideas and have them realized by a different writer.

    The difference is that one of them is out there, the other one’s a direct submission that you’ve built on and changed. It makes a big difference.

    kdb

  56. Wraith says:

    I think it might be safe to say that both Marvel and Disney were either aware of or had a feeling that this kind of lawsuit was going to happen, and had their lawyers look into the legal red tape in advance to make sure that they were in no danger of loosing the rights to any of their characters. In other words, I don’t think that the Disney/Marvel deal would have ever have gone through (or begin to go through) if Disney lawyers weren’t 99% sure that Marvel couldn’t loose the copyright and trademarks to all of their characters.

  57. >> I think it might be safe to say that both Marvel and Disney were either aware of or had a feeling that this kind of lawsuit was going to happen, and had their lawyers look into the legal red tape in advance to make sure that they were in no danger of loosing the rights to any of their characters.>>

    Either that, or they figured they could settle it, and the cost wouldn’t make the deal a bad one.

    Plus, it’s not a lawsuit. They’ve filed for copyright termination, which is a different process. It might become a lawsuit, but isn’t one at present.

    kdb

  58. Alan Coil says:

    I’m pretty sure Kirby DID NOT sign the 4-page contract/release that Marvel wanted him to sign, but there sure are a lot of people on the internet saying he did.

    Can anyone provide documentation?

  59. Rob Jensen (aka ShutUpRob) says:

    DEAN: “It strikes me that the Kirby case is pretty similar in some of its particulars to the Siegel case. Like Kirby, Siegel and Shuster signed a later agreement with Warner prior to the release of the first Superman film. Unlike Kirby, there was a monetary compensation. That didn’t stop the Siegel estate from recovering half of the Superman copyright.”

    I think that this is a good point — the problems with applying it to the Kirby situation are a) Siegel and Shuster created Superman several years before DC stole bought it from them for $130 and b) Jack co-created these characters with Stan Lee at a time that Jack was working for Marvel, which was a time that Stan Lee held a significant editorial/management position at Marvel. Oh yeah, and Siegel & Shuster were still teenagers when they created Superman (in 1933) and Kirby was already a middle-aged adult in the 60′s while at Marvel. And didn’t come to Marvel with a folder of a gazillion characters he had created several years previously. DC showed a distinct pattern of using duress on Siegel and Shuster at every turn.

    By the same token, it’s not as if Kirby didn’t already understand the issues of creator ownership given that he and Joe Simon created and owned Fighting American seven years before Fantastic Four #1 was published. By signing that four-page Artwork Contract, Kirby was saying, “Gee, now that I think of it, no matter if it might have appeared otherwise, it really *was* work-for-hire after all.” That makes the Artwork Contract not so much a retroactive declaration of the work being WFH but an official admission that regardless of the fuzzy stuff, like the check-endorsing thing, it was never inherently anything but WFH regardless of anything else that anyone would want to call it, no matter what Kirby had believed about it before he signed that contract.

    Now, I don’t think he should have signed that contract at *all,* but he did. (He made his bed and all . . .) And therefore, he agreed with Marvel that Marvel owns the characters outright. I don’t see how anyone on Kirby’s side goes into it without saying, in essence, “You know that 1985 agreement? Just kidding!” or “You know the fact that Jack co-created this stuff while employed by Marvel, with a managing employee at Marvel? Totally meaningless!”

    — Rob

  60. >> Now, I don’t think he should have signed that contract at *all,* but he did.>>

    No, he didn’t.

    >> And therefore, he agreed with Marvel that Marvel owns the characters outright.>>

    No, he didn’t.

    >> I don’t see how anyone on Kirby’s side goes into it without saying, in essence, “You know that 1985 agreement? Just kidding!” or “You know the fact that Jack co-created this stuff while employed by Marvel, with a managing employee at Marvel? Totally meaningless!” >>

    That may be because you’re assuming things and then assuming legal interpretations of those things on top of the assumptions. As it happens, Kirby didn’t sign the 4-page agreement that you say he did. He didn’t even sign the same one-paragraph agreement that other artists signed. He signed something — but you don’t know what’s in it, so you’re not in a position to say what it contains.

    The story can be found at http://www.tcj.com/aa02ss/n_marvel.html — including the 4-page agreement that he didn’t sign. The key paragraph:

    “The final resolution came in May of 1987, nearly three years after Marvel had first begun returning original art backstock and nearly 30 years after it had begun accumulating the art. Marvel had dropped its demand that Kirby sign the four-page document and had amended the short form to address his concerns. Details of the amendments were not made public, but Kirby’s lawyer, Greg Victoroff, told the Journal, ‘Jack got just about everything he wanted.’”

    So what did it say in the agreement he signed? You don’t know — so you’re not in a position to say that Kirby agreed that Marvel owned the characters outright. Beyond that, Kirby was not employed by Marvel in the early 1960s; he was a freelancer. “Employee” is a specific legal term, and few comics artists of the era were employees.

    So those going into it on Kirby’s side aren’t saying, “You know that 1985 agreement?” because there was no 1985 agreement. There was a 1987 agreement, and whatever it says was kept private, but it apparently solved the reasons Kirby refused to sign either the 4-page agreement or the standard release. And they wouldn’t be saying, “You know the fact that Jack co-created this stuff while employed by Marvel…” because that’s not a fact.

    It’s odd how many people are willing to declare that comics freelancers understood the ins and outs of work-for-hire law even when no paperwork that satisfies the requirements of those laws seems to exist. If the artists should just have somehow known that standard industry practice was for the companies to own all rights, why is it that the companies are never expected to have just known that “standard industry practice” didn’t satisfy the requirements of work-for-hire law, and they needed more than that, signed in advance of work being done? If creators are expected to be bound by back-of-the-check after-the-fact rights claims, why are the publishers never expected to be bound by the laws that say those after-the-fact claims are worthless?

    Why is it that the creators supposedly “knew the rules,” and should therefore abide by them, but the publishers, who didn’t follow the rules, get to pretend they did? The creators made their bed and have to lie in it, but the publishers don’t have to lie in the one they made?

    kdb

  61. The Beat says:

    Busiek winning sense…tingling.

    I suggest that everyone stating their case here read the TCJ link before going further. Yes, the print is small…isn’t it always?

  62. Wouldn’t the world be a nicer place if people just treated other people properly.

  63. Synsidar says:

    Years ago. Simon tried to (re)gain the copyright to Captain America:

    What this means is that Marvel has been given notices of termination in which Simon will recapture the copyright effective December 7th, 2001.

    Back in September, Joanne Siegel (widow of Joe Siegel) made a similar move against DC comics in a bid to retake the copyrights of another comic book icon — Superman. While Simon had supposedly been contemplating a move to regain the rights to his creation, it was action take by the Siegel family which finally helped him decide on his present course.

    Marvel might defend themselves against Simon’s claim stating that Jack Kirby, who later became an employee of Marvel for many years, signed away any claims he might have had to his creations during the sixties/seventies (including Captain America) and since he had been involved in the creation of this character, copyright belongs to them.

    Simon’s attorney claims that while Kirby had input into the origin, it was Simon who came up with the idea of Captain America in which Kirby took on the penciling chores after the character had been brought to the Timely Studios. (Timely later became Marvel). Simon states in the first ten issues of Captain America, Kirby was only involved as a penciller and that he alone had sole creative input. This is not to take away from Kirby’s abilities, who Simon has the utmost respect for, just that he (Simon) came up with all the characters of the stories including Bucky and the Red Skull.

    Simon stated in a past interview that the character was designed by he and Timely publisher, Martin Goodman. Kirby was given the scripts and layouts but before Kirby ever saw the first page, Captain America’s costume had already been designed. There’s even hard evidence of an original sketch of Captain America, which was clearly drawn by Simon. Simon contends that he changed the original triangular shield to a circular design due to the close resemblance it beared to the a competitor’s character called “The Shield.”

    Simon won a round in court:

    The 2nd Circuit, finding that Simon’s “for hire” status was still in dispute, reversed a lower court’s grant of summary judgment for the company in Marvel Characters, Inc. v. Simon, 02-7221.

    At issue in the appeal was 17 U.S.C. § 304(c) which grants authors or their heirs the right to terminate a copyright grant 56 years after the original grant “notwithstanding any agreement to the contrary.”

    Senior Circuit Judge Joseph M. McLaughlin said the termination provision in subsections (c)(3) and (5) of the act have one exception: “Copyright grants in works created for hire cannot be terminated.” [. . .]

    The judge said the U.S. Supreme Court, as well as legislative history and intent, have shown that § 304(c) was passed to relieve authors from ill-considered copyright grants that were made before the true value of a work could be appreciated.

    “If an agreement between an author and publisher that a work was created for hire were outside the purview of Section 304(c)(5), the termination provision would be rendered a nullity,” he said.

    “Litigation-savvy publishers would be able to utilize their superior bargaining position to compel authors to agree that a work was created for hire in order to get their works published.”

    Then, in 2003:

    Marvel’s announcement termed the settlement ‘amicable,’ but failed to divulge any terms of the agreement except the fact that Simon had now agreed to assign Marvel ‘any and all copyrights he has in Captain America.’

  64. When did these rights of reversion come into existence? As I understand it, the logic of this law is supposed to be that if you extend the copyright term, then the benefit should go to the original copyright-holder. This makes reasonable sense; no matter how fair the original deal, the publisher never paid for the extra years of copyright protection, so why should he get those rights for free?

    Now, if Kirby signed away those rights AFTER they came into existence, that would sound like a pretty good defence. But I’d be surprised if Marvel could place any great weight on compromise agreements he signed BEFORE the copyright extension was enacted, since that would seem to defeat the purpose of the law. (If that defence does work, it’s a pretty glaring loophole in the legislation.)

  65. Synsidar says:

    Thomas J. Mclean observes that Kirby’s collaboration with Lee might be significant:

    Key to the claims will be the question of whether Kirby’s contributions to the comics constitute work made for hire who created comics as an employee of the company or whether he worked as an independent contractor who created copyrighted work that he sold to Marvel. Revisions to copyright law in 1976 clearly defined work made for hire, but the status of work done prior to that will likely be up to the court to decide.

    Most of Kirby’s work for Marvel was done in collaboration with Stan Lee, who wrote dialog for the comics and edited the Marvel line as a company employee. Kirby left Marvel in 1970s in a dispute over credit and compensation, working a stint at DC Comics and in animation before retiring in the 1980s. A previous legal dispute with Marvel over the return of Kirby’s original artwork was settled in the late 1980s.

  66. The thing I don’t get from reading all this is: what is the eventual goal? What is it the Kirby Kids (sorry!) are looking for?

    Are they looking to take these toys that Jack Kirby helped create and go somewhere else? That seems like a weird scenario. Where would they go? Dynamite? DC? Dark Horse? Or would they try and publish on their own? That seems destined for failure – I’m not sure, but I don’t think the Kirby Kids (again, sorry!) have much experience with publishing or with IP development.

    I mean, what’s the point in this move? If this were a game of chess, what would be the rationale behind this move? What’s their eventual goal?

  67. Synsidar says:

    Yes, the Kirby estate is going after Spider-Man. From The Hollywood Reporter’s Heat Vision blog, via Kevin Melrose.

    According to several accounts, Kirby, with his Captain America co-creator Joe Simon, did create a character called the Silver Spider, whose alter ego was an orphaned boy living with two elderly people, and that character was morphed into Spider-Man. Other accounts have the Silver Spider becoming the Fly for another comic company.

    Regardless, the Spider-Man copyright termination notice filed last week by Kirby¹s four children lists Amazing Fantasy #15 as a work that belongs to Kirby. But included on the list of possible characters and story elements that should be recaptured by Kirby¹s heirs are Aunt May, Uncle Ben, J. Jonah Jameson, Flash Thompson and the Daily Bugle, as well as villains the Chameleon, the Vulture, the Tinkerer and the Lizard. Many of those characters were not originally published until 9 to 12 months after Spider-Man’s first appearance and are considered to be Lee-Ditko creations.

    The characters appear in a footnote of the termination notice and probably are included as a precautionary measure to make sure Kirby’s heirs don’t leave anything on the table. But their inclusion raises the stakes in what is likely going to be a heated back-and-forth between Kirby attorney Marc Toberoff and the legal firepower of five studios.

    A “precautionary measure” is putting it mildly. If the estate is going to go so far as to claim that Flash Thompson, et al., are Kirby creations because they’re derived from the Silver Spider, via Spider-Man, then why not claim that most of the characters in the Marvel Universe are actually Kirby’s property, because they were derived from those early issues of FANTASTIC FOUR, AVENGERS, etc.?

    There might be a legal justification for the claim, but not a common sense one. Note that Simon didn’t make any claims re Silver Spider. The move makes me think badly of the estate.

    SRS

  68. Kurt Busiek says:

    >> The thing I don’t get from reading all this is: what is the eventual goal? What is it the Kirby Kids (sorry!) are looking for? >>

    A fairer share of the millions upon millions of dollars that their father’s work has generated. Which is something he would very much have liked them to have.

    kdb

  69. So this is a legal maneuver to get Disney/Marvel to pony up? Threaten to take their dad’s toys and walk? That’s what the court filings are for, right? Or am I misreading that?

    It’s just that legal wrangling’s not where my head’s at. I’m just trying to see where this might all lead…

  70. ” But included on the list of possible characters and story elements that should be recaptured by Kirby’s heirs are Aunt May, Uncle Ben, J. Jonah Jameson, Flash Thompson and the Daily Bugle, as well as villains the Chameleon, the Vulture, the Tinkerer and the Lizard…”

    Like I said, this frivolous, absurd and greedy claim to Spider-Man and his supporting cast (!) only serves to undermine the Kirby Kids’ (possibly) more valid claims.

  71. Kurt Busiek says:

    >>It’s just that legal wrangling’s not where my head’s at. I’m just trying to see where this might all lead…>>

    If you’re worrying that Marvel might lose the characters, don’t. Worst-case scenario, they’d have to share the money. The legal wrangling — and what will almost certainly be an out-of-court settlement that we won’t know the details of and which all sides will pronounce “amicable” — will be over how much.

    kdb

  72. >> A fairer share of the millions upon millions of dollars that their father’s work has generated. Which is something he would very much have liked them to have.

    Kurt, if you have one failing, it’s being too polite.

    It is, of course, billions of dollars that their father’s work has generated (combined box office gross of the X-Men, Hulk, and FF theatrical releases add up to billions right there), is generating, and is expected to continue generating.

    (I had to laugh at the SRS-quoted “But their inclusion raises the stakes in what is likely going to be a heated back-and-forth between Kirby attorney Marc Toberoff and the legal firepower of five studios.” As though if Marvel loses Spider-Man, what will really get them angry is that they lost Flash Thompson…)

  73. Synsidar says:

    Like I said, this frivolous, absurd and greedy claim to Spider-Man and his supporting cast (!) only serves to undermine the Kirby Kids’ (possibly) more valid claims.

    Your wording is a bit harsh, but from the writing/character creation standpoint — If you’re going to create a character with a power and costume, the options aren’t infinitely many, nor is the choice of associates. There will inevitably be duplications and overlaps. Nor is the plot material particularly deep.

    Where would romance novels be if authors had to scour the contents of previously published books to avoid duplicating names, occupations, or general appearances?

    BTW, some time ago, Signet issued a statement re copyright infringement and plagiarism:

    Signet takes plagiarism seriously, and would act swiftly were there justification for such allegations against one of its authors. But in this case Ms. Edwards has done nothing wrong.

    The copyright fair-use doctrine permits reasonable borrowing and paraphrasing of another author’s words, especially for the purpose of creating something new and original. Also, anyone may use facts, ideas and theories developed by another author, as well as any material in the public domain. Ms. Edwards’s researched historical novels are precisely the kinds of original, creative works that this copyright policy promotes.

  74. Alan Coil says:

    The Kirby estate has the legal right to try to establish ownership or partial ownership of some of Marvel’s characters.

    Why does it make SOME PEOPLE so upset that the heirs try to do what is legally allowed? SOME PEOPLE would surely want to try to get any money that is legally theirs. Even during a divorce, money and property gets divided via legal means.

  75. Wraith says:

    If you’re worrying that Marvel might lose the characters, don’t. Worst-case scenario, they’d have to share the money. The legal wrangling — and what will almost certainly be an out-of-court settlement that we won’t know the details of and which all sides will pronounce “amicable” — will be over how much.

    kdb

    __________________________________________

    In other words, business as usual. Like you suggested earlier in response to my previous post, Disney (and Marvel) might think that they can settle this dispute and everyone will live happily ever after.

    I have a slightly off topic question for you Kurt. Do you think that Marvel and/or Disney would ever open up talks again with the creators of the Charcoal character from your T-bolts run, and try reclaim ownership of that character? I ask this, because that was a very cool character, who I would like to see grace the pages of Marvel comics again. If only the people at WIZARD got the legal rights straight during that contest and if the creators of Charcoal weren’t so damn greedy, we would have had another cool African American superhero running around the MU.

  76. Kurt Busiek says:

    >> I have a slightly off topic question for you Kurt. Do you think that Marvel and/or Disney would ever open up talks again with the creators of the Charcoal character from your T-bolts run, and try reclaim ownership of that character? >>

    I believe Marvel does own the character, but simply doesn’t want to use him at present. But all of this happened after I left THUNDERBOLTS, so I didn’t pay as much attention as I might have had I still been on the book.

    Whether Charcoal will ever be seen again, I couldn’t tell you. I have no idea.

    kdb

  77. I’d like to thank Mr. Busiek for clearing up a thing or two about this!

  78. Wraith says:

    Thanks for answering my question Kurt.

  79. Synsidar says:

    Why does it make SOME PEOPLE so upset that the heirs try to do what is legally allowed?

    Because the move re Spider-Man appears to be purely legalistic — make as broad a claim as possible, in the hope of unnerving the opposition and to make a public case for Kirby’s importance to the Marvel universe — and then narrow the claims later on, whether in court or out of court.

    You don’t seem to be considering how simplistic the superhero characters actually are, in terms of writing fiction. The archetypal superheroes are simpler than the archetypal P.I., in terms of appearance, motivation, powers, etc. Basic plots have been repeated hundreds to thousands of times (a villain impersonating a hero; hidden past); super strength is the basis for many characters; somatic and genetic mutants are commonplace. Coming up with a power for a hero is no more original than coming up with occupations for the leads in a romance novel. Take this perspective on superheroes:

    Comic book fans use different methods when they breakdown superheroes. Wikipedia, under their superheroes entry, has a pretty good summary of the types of superheroes. They break it down to thirteen types from armored hero (Iron Man) and brick (the Hulk) to slasher (Wolverine) and speedster (the Flash). This list, while informative, only covers powers at the basic level. This isn’t the only way to categorize superheroes.

    Another way to do it is by origin. While this method says little about powers and abilities, it does offer the would-be superhero creator basic superhero beginnings. Origin archetypes include alien (Superman), mutant (the X-Men), non-human (Teenage Mutant Ninja Turtles) and training (Batman), among others. I have found there are about nine basic (superhero) origin archetypes found in comic books.

    Generating superheroes and their opponents could easily be computerized completely. What matters, or should matter, is how well a writer uses his characters in a story, not whether they superficially resemble characters in other stories.

    SRS

  80. >Because the move re Spider-Man appears to be purely legalistic — make as broad a claim as possible, in the hope of unnerving the opposition and to make a public case for Kirby’s importance to the Marvel universe — and then narrow the claims >later on, whether in court or out of court.

    It was suggested to me that this is likely “casting a wide net.” They know the “grip is tenuous” on, say, Spider-Man…but then they might at least end it with the copyrights of the characters they consider truly their fathers work, like maybe Mr. Fantastic. That makes sense.

    >Why does it make SOME PEOPLE so upset that the heirs try to do what is legally >allowed? SOME PEOPLE would surely want to try to get any money that is legally >theirs. Even during a divorce, money and property gets divided via legal means.

    The only thing that troubles me is they are seeking the copyright on characters that Jack helped create. He was a part of the pie. It *seems* like that they are not asking for Dad’s slice of the pie-but the whole damn pie.

    Personally, as far as heirs go? I confess, I grew up being taught that my parents don’t pay my way after a certain age. Of course, I might feel differently if my dad had been a rock star or a movie star instead of a State County Employee. And so when estates go after these things, part of me feels like “riding the coat tails of someone Else’s talent.” I realize not everyone agrees, and I would not begrudge the family if they actually won. It is their legal right. And I suspect that Kurt’s core comment that the Kirby Estate would more than likely work out a deal to leave things as they are is dead on.

  81. >> Personally, as far as heirs go? I confess, I grew up being taught that my parents don’t pay my way after a certain age. Of course, I might feel differently if my dad had been a rock star or a movie star instead of a State County Employee.>>

    And, for that matter, your dad might have felt differently.

    Kirby himself was glad to have left what legacy he could for his family — that’s one of the reasons he works so hard and so long — and would have been delighted to be able to leave them a share in what he’d created for Marvel. He was angry that he’d been unable to.

    So it’s not as if the kids are trying to vampirically drain away their father’s legacy; they’re trying to claim something he would have wanted them to claim, and wished he could have secured for them himself.

    I know, from my perspective, that if ASTRO CITY, ARROWSMITH and others — including work-for-hire creations like THE POWER COMPANY, on which I get a contractually-assured share — become something that can last and provide some security for my family after I’m gone, that I’ll be pleased and proud to have been able to do that. If ARROWSMITH were to make billions, then would I rather my family have a share of it, or would I rather all the money go to movie producers and publishing companies? Pretty easy choice, I’d say.

    kdb

  82. Kurt,

    I am not dedicated enough to my feelings about “heirs” (although I note that when it’s Paris Hilton, people seem far less charitable) to hold it against anyone. I said I wouldn’t begrudge the family if the venture is successful. I feel there have been some valid points, though I think it is stuff like including Spider-Man that makes it some of us look at this a bit funny. And I certainly would not see a general problem with them saying, “Wait a second? We should be seeing some of these dollars”… my basic concern about it all was just that going for the copyright came off as going for more than a share.

    As someone who has loved Astro City throughout the years, I sure wouldn’t be against that. I haven’t made any final decision in my mind on this, and certainly, as Jack would have wanted his kids to have a support from his legacy, I would not say he was wrong.

  83. There’s no mechanism that I know of for the family to apply specifically for “half the copyright”. What they get to reclaim is what copyright their father had… and if that’s viewed legally as a cooperative creation, then he gets his share. With a copyright split, either party can license it out, but they have to share their income from doing so with the other copyright holders.

  84. Synsidar says:

    Al Nickerson re the creation of Spider-Man, via Graeme McMillan:

    I had asked Lisa Kirby (daughter of Jack and Roslyn Kirby) about her father’s connection to the creation of Spider-Man. Lisa told me: “Neither one of my parents ever mentioned that my father created him, in fact I have heard my mother correcting people if they alluded to that fact.” [. . .]

    It is also noteworthy to point out that Joe Simon had asked Jack Kirby about his WILL EISNER’S SHOP TALK comment. In THE COMIC BOOK MAKERS, Simon asked Kirby why he would make a claim that Joe was “Spider-Man’s father”, and accordingly to Simon, Kirby told him: “I had no work… I had a family to support, rent to pay… what else could I do?”

    Nick Caputo commented:

    Kirby created “A” Spider-Man, but the pages were unpublished and many of the elements were changed by Ditko and Lee. Ditko has written about these issues in the newsletter “The Comics” published by Robin Snyder. Ditko believes he is the co-creator of Spider-Man because he worked from a plot synpopsis, not a full script and because he created the visual look and many of the classic elements that reamin with Spider-Man till this day.

  85. James Dell says:

    If the possibility presents itself, the idea of some of the character rights going to Dynamite Entertainment doesn’t sound bad at all. It will level the playing field in the comics industry which is like a monopoly right now. Marvel owning so much of the market. It is slowly changing with DC regaining some share last month but most people seem to attribute this to Marvel not holding a regular crossover this year which led to lower sales. This factored with rising prices.

Speak Your Mind

*