Marvel wins appeal in lawsuit brought by Jack Kirby’s heirs

jack and roz kirby Marvel wins appeal in lawsuit brought by Jack Kirbys heirs
Another chapter in the long battle over Marvel’s characters ended today when a three-person New York appeals court upheld Marvel’s victory in a lawsuit bought by Jack Kirby’s heirs over copyrights to iconic characters such as the Hulk and Captain America. The court ruled that Kirby’s work for Marvel had been done under work-for-hire conditions and that “Marvel’s inducement, right to supervise, exercise of that right, and creative contribution with respect to Kirby’s work during the relevant time period is more than enough to establish that the works were created at Marvel’s instance.”

You can read the entire judgement here:

The suit began in 2009 when Kirby’s four children sued Marvel, claiming that characters the legendary artist drew had not been created under the work for hire. In 2011, a court ruled for Disney/Marvel, but an appeal was filed. Along the way, Marvel also sued the Kirbys, who were represented by attorney Marc Toberoff, who also represents the Siegel and Shuster estates in the battle for the copyright to Superman.

This appeal ruling would seem to end the matter, but hopefully legal expert Jeff Trexler will be along later to explain what happened.

Comments

  1. RUanAmericanSheep? says:

    Think we are about done with Disney, who owns Marvel by the way. Plenty of other excellent product out there that doesn’t have these agendas. Corporate schlock and 80’s mentality movies is all this studio puts out now. How much money you need, jafoffs? If it wasn’t about money, they’d be happy to give the artists due credit.

  2. Boner says:

    Fuck this ruling!

  3. jonboy says:

    FYI: Marvel announced today that they are going to publish a set of miniseries called “BEFORE KIRBY”.

    This winter, Disney Comics will publish all-new stories expanding on the acclaimed Marvel universe. As highly anticipated as they are controversial, the seven inter-connected prequel mini-series will build on the foundation of the original Marvel Universe, the bestselling comic books of all time. BEFORE KIRBY will be the collective banner for all seven titles, from Disney Comics.

    “It’s our responsibility as publishers to find new ways to keep all of our characters relevant,” said Disney CEO Bob Iger. “After fifty years, the Marvel Universe are classic characters whose time has come for new stories to be told. We sought out the best writers and artists in the industry to build on the complex mythology of the original.”

  4. Synsidar says:

    FYI: Marvel announced today that they are going to publish a set of miniseries called “BEFORE KIRBY”.

    I’d avoid comparisons to BEFORE WATCHMEN, because in BEFORE WATCHMEN, DC extracted the characters from WATCHMEN for the purpose of making them individual merchandisable properties. That’s not what happened with the Marvel characters.

    It’s fairly useless to speculate on what state the Marvel characters would be in now if Kirby had retained some control over them due to copyrights, because that’s not how businesses operated back then. Any gains in the present would be financial, not in the area of creative control.

    But financial gains are what people are concerned with when they focus on characters, because that’s the only context in which the characters are important. Otherwise, creators and their publishers are concerned with selling their stories. Rowling’s Harry Potter is a prime example of that. He might be tremendously popular as a character, but he’s still used to promote the novels, not as a standalone merchandisable unit. If Marvel were, in some other universe, to gain the rights to Rowling’s novels, you’d see a repeat of BEFORE WATCHMEN, with the creation of the ___ universe in which Potter and the other characters in it were converted to salable units.

    Whether Rowling’s novels will still be popular 40 years from now is unknown, but they will be published, if at all, in their original forms. That’s the importance of retaining control.

    SRS

  5. Torsten Adair says:

    Not too surprising, since Marvel doesn’t even list a “created by” byline in their books, and Stan Lee had to take Marvel to court to get decent compensation.

    But I predict, that within ten years, Kirby gets a Disney Legend Award! Won’t that be swell?

  6. jonboy says:

    Wow Syns. You have one heck of an ability to ruin a simple joke.

  7. patrick ford says:

    An amazing amount of space is given to the part of the ruling which says the lower court erred in finding it had jurisdiction over Lisa and Neal Kirby.

  8. That’s most likely because that’s the only issue raised in the appeal that’s complicated. I suppose Lisa and Neal Kirby can continue this fight in a federal court that does have appropriate jurisdiction over them. But given the rest of the ruling, I don’t think there’s any way they can prevail over Marvel/Disney without this going all the way to the Supreme Court.

  9. patrick ford says:

    If a person accepts the idea Lee created the characters and then assigned his creations to Kirby the case is very simple. In fact it’s so simple it should never have gotten off the ground. A comic book artist or writer taking an assignment to create art or stories based on another person’s characters is indisputably creating work-for-hire.

  10. Dan Ahn says:

    Why the F are these old characters not in the public domain yet? How much crazier does this Marvel/Kirby situation have to get before people realize that NEITHER the corporation nor the great-great-great grand-nephews did ANYTHING to deserve “ownership” of these characters? Copyright should not last in perpetuity like this. It’s so damn silly. Why did Cervantes’ descendents not suing Broadway producers over Man of La Mancha? Answer: because our society wasn’t so crazy and greedy back then. And the sad truth of the matter is that the “little guys” like Kirby’s heirs are just as greedy and undeserving as Disney/Marvel. Grow up and do something for yourself. Stop trying to profit off of “owned myths” that should that entered the public domain long, long ago.

  11. Factory Farmer says:

    In the depositions, it was suggested/argued more than once that creating characters is simply part of the work-for-hire proposition.

    It seems to me that it’s been a legal fear for DC/Marvel/(others) thinking that if they weren’t responsible for creating the characters that they could/would lose in court.

    I would extrapolate from the decision that Marvel could have argued that Kirby created all the characters. But as it was done under work-for-hire, Marvel would be the copyright “author”.

    Unlike S&S Superman, and to a lesser extent but still legally winnable Simon’s Captain America, the Kirby heirs couldn’t demonstrate that Kirby had created the characters prior to bringing them to Marvel.

    Experts can assert that Kirby said this or that. But there isn’t a paper trail to support it.

  12. patrick ford says:

    Factory, Take a closer look at the deposition testimony. The “characters” Lee said the “artists” were expected to create as part of their work were background figures. As an example Lee said he might write a story set in a bar (I’m not making this up). In that case Lee said the “artist” would create characters in the form of the bar’s patrons and staff. Lee mentioned an “artist” might create a character he called a “sexy bartender.” Those are the kinds of characters Lee says Kirby created. Characters like; boy hawking newspapers, girl with a doll, lady adjusting her hat, man with a briefcase, old man wearing a tyrolean hat, sexy bartender.
    The heirs argument was Kirby created things like a Spiderman character based on a Spiderman logo given him by Joe Simon, and a character called The Fly which Kirby had co-created with Joe Simon based in part on an old S&K proposal for a Green Hornet style character called The Silver Spider. Kirby created a presentation piece of art and text (which Jim Shooter says he saw) and brought that character to Lee who was free to either accept it or reject it. That is called working on spec.

  13. patrick ford says:

    Lee gave sworn testimony Kirby did not bring him a Spiderman character based on The Fly who gains spider powers by using a magic ring.
    The judge placed the depositions under a protective order. Since most of the deposition testimony made public is just fragments of the full depositions we don’t know if Lee claimed he gave Kirby the idea for the The Fly version of Spiderman; or if Lee said that version doesn’t exist. Steve Ditko and Jim Shooter both say “Kirby’s” Spiderman was clearly based on The Fly.
    Lee has said in past interviews at the time of “Kirby’s” Spiderman he had never heard of The Fly, so it’s kind of a leap of faith to think Kirby’s Spiderman wasn’t generated by Kirby, but when asked (quoting the deposition): “And to your knowledge, was the idea for Spider-Man something that Kirby brought to you based on his previous work on something called The Fly”?
    Lee gave a one word answer (quoting the deposition): “No.”

  14. As the law is written, the Kirby heirs really never had a case, and it would upset a whole lot of case law to rule in their favor.

    As for why these characters are still under copyright … that’s another example of bad legislation. They were all created under copyright law with a maximum term of 56 years, but Congress ignored the express purpose of copyright, and extended those terms retroactively, then the Supremes (including justices who claim to follow the original intent of the Constitution) said that was legit.

    I’ve created a web site that spotlights creative works that have fallen prey those these copyright extensions. It’s called PD56.org, and identifies works that should have entered the Public Domain after 56 years … but didn’t. It currently spans the years 1923 thru 1957.

  15. Factory Farmer says:

    Patrick, I don’t think that you quite followed the point that I was making.
    It’s an extrapolation based on the court’s ruling. So, yes, they were talking about the creation of “background characters”. I don’t see why it wouldn’t cover “all characters”. I understand that DC/Marvel/etc fear that they would lose in court taking that position.
    But I would argue that once it was established that Marvel via Lee was directing Kirby to work, then it’s game over.
    So if Lee said to Kirby, bring me a spiderman, or bring me whatever, it’s Lee initiating Kirby.
    As I understand it, creators weren’t pitching at this time at Marvel.
    Goodman would direct Lee and then Lee would go from there.
    It would appear that the CC Beck/Kirby Spiderman would make it murkier but does it really? If Lee directed Kirby to bring him a character,in this case a CC Beck/Kirby Spiderman, then Lee is still initiating.
    Now, if Marvel had printed those Kirby pages “as is” it would have weakened their argument perhaps to the point of a loss.
    But it didn’t turn out that way. Spiderman became Spider-Man and Ditko certainly has a thing or two to say about the creation of Spider-Man. But Ditko wouldn’t have done anything without Lee initiating.

  16. Factory Farmer says:

    Regarding copyright/public domain…it’s an interesting thought experiment.
    Isn’t it likely that Time Warner/DC and Disney/Marvel would agree to call a truce?
    Does anyone feel that they aren’t getting enough monthly Avengers comics? Let’s assume for the sake of argument that all the Avengers comics succeed. It still results in one less non-Avengers title seeing the light of day.
    And if there are continuity issues now just imagine trying to keep up…
    Does anyone want to watch two or three Avengers movies a year?
    This would seem to me to be the way of chaos.

  17. patrick ford says:

    And who said Lee told Kirby, “Bring me a Spiderman”? Lee does not claim that. Lee claims he created Spider-Man and assigned it to Kirby.
    Kirby and the heirs never claimed Lee directed Kirby “Bring me a Spider-Man.” Kirby maintained he created the characters at home in his basement in the form of presentation pieces and pitched them to Lee.
    Lee claims he alone created the copyrighted characters and presented them to Kirby, and Lee was very carefully taken through a long list of characters and in every instance described how he alone created them.
    As the law is written the heir’s case had no chance once Stan Lee claimed he created all the copyrighted characters and then presented them to Kirby. As soon as Lee is positioned as the generator of the basic characters and plots Kirby is following Lee’s direction.
    If people actually believe Lee created the basic idea for those characters that’s their prerogative. As I said in the previous post Spiderman is maybe the best indication the ideas flowed from Kirby to Lee. Kirby had in his possession a logo designed by Joe Simon which read: SPIDERMAN. Kirby’s Spiderman was a variation on The Fly. Lee said Kirby did not bring him a character called Spiderman based on The Fly.

  18. patrick ford says:

    By the way. Factory Farmer is 100% correct when he says: “once it was established that Marvel via Lee was directing Kirby to work, then it’s game over.”
    That is the whole case right there. So how did Marvel establish Kirby was working at Lee’s direction? Answer: Lee said so.

  19. Factory Farmer says:

    We can all speak in hindsight.
    Kirby would have been better served if he had mailed Lee a letter at the time of their meeting indicating that he and he alone initiated the meeting, that he presented the character, etc. etc. Then kept a copy of the letter along with a postal return receipt.
    Or other written documentation that was prior to his meeting(s) with Lee.
    Instead we have Kirby talking to Evanier as Kirby is leaving to work for DC which is years after the fact.
    Someone may correct me if I’m wrong on this but wasn’t Evanier the one who found/was given Lee’s synopsis for FF #1 in Kirby’s possession after his death?

  20. Pedro Bouça says:

    The story I know is that Roger Stern found it at the Marvel files. It most definitely wasn’t on Kirby’s possession, regardless.

    It differs quite a bit from the published version. To me that is the best proof that neither Lee nor Kirby created all those characters alone (well, except for the Silver Surfer, but that’s another story – and it was created as work-for-hire regardless). Each one of them had his input and the result is a sum of both gentlemen efforts.

    Which, of course, makes the whole Kirby lawsuit hopeless, sadly. But considering that the courts have ruled against the Siegels in a FAR more justifiable suit, we may consider that US law is always at the corporations’ side.

  21. patrick ford says:

    John Byrne said Roger Stern found the synopsis in Lee’s old desk at the Marvel offices. Recently Roger Stern was asked about this on the Marvel Masterworks Message Board and Stern said it was David Anthony Kraft who found it in Lee’s old desk at the Marvel offices. Stern said he later “inherited” Kraft’s desk.
    An interesting side note to this is Jim Shooter said in his blog that he “Held in my hands” Kirby’s penciled presentation art (not the five page story seen by Ditko) for the Spiderman character. In another blog post Shooter said it was David Anthony Kraft who was seeding the LOCs in Kirby’s comics with negative letters. Shooter said when he discovered what Kraft was doing he replaced him.

  22. patrick ford says:

    Here is what Evanier said about the synopsis in a sworn declaration for the Kirby heirs.

    https://sphotos-a-atl.xx.fbcdn.net/hphotos-frc1/1001409_350859721714040_125890703_n.jpg

    (Quoting Evanier pg. 15) “After the Fantastic Four had been published and was a success Lee produced a synopsis for the first story which he said is what he gave Kirby to work from.”

  23. Patrick–

    Evanier isn’t necessarily contradicting Lee’s account. Producing a synopsis after the story was published does not mean the synopsis wasn’t created beforehand. The first definition of “produce” in my Merriam-Webster is “to offer to view or notice.”

    If Evanier is claiming that Lee fabricated this synopsis after the publication, my question is how would he know one way or the other?

  24. Under the Court ruling, and the law, it wouldnt matter if Kirby created every single character, as long as he did it at the instigation of Marvel and with the expectation Marvel would publish it and pay for it.

    If all Stan Lee ever did was say “Make a new book Jack” that’s enough.

    The court makes very clear, as did the district court, that who created what is irrelevant.

  25. as for S&S, S&S of course had a much better case. and would have won. They lost because the court found they settled years ago and then tried to renege once they got a new attorney.

  26. patrick ford says:

    Jack, There is no proof Lee ever told Kirby “Create a book.” Lee very unambiguously testified he created the copyrighted characters and assigned them to Kirby. There is no testimony to the effect that Lee says he told Kirby, “Create a new book.”
    Kirby always maintained he said he was the person urging Lee to give super heroes a try. This was based on Kirby having been at DC when they reintroduced The Flash and quickly followed that with The Challengers of the Unknown. Kirby felt that the super hero was going to become a popular genre again.
    Kirby saying he created the characters and brought them to Lee goes back to the late ’60s while he was still working for Marvel.
    There is other evidence Lee was accepting characters pitched to him by creators. Lee admitted in an early ’60s letter that Steve Ditko had pitched the Dr. Strange character to him.
    The original ruling and the new ruling are based on Lee’s claim that he created the characters and presented them to Kirby as an assignment.
    The heirs claim, and Kirby’s long standing claim, was Kirby created the characters completely on his own and then pitched them to Lee who could either accept them or reject them.
    There are things Kirby created in the ’60s which were rejected by Marvel and Marvel does not own the copyright on them simply because Kirby sold most of his freelance work to Marvel.

  27. Patrick–

    There was no copyright for anything until the stories were completed and published. There’s no inherent copyright for pre-1978 material; with work before then, only the material that is published can be copyrighted. And the copyright in this instance is for the stories, or more specifically for the contents of the publications, not the characters per se. The copyright for the characters is a derivative aspect. The Kirbys attempted to terminate Marvel’s copyright ownership of specific publications’ contents. The termination of their ownership of the characters is a corollary.

  28. To add to that, it doesn’t matter if Kirby created the characters all by his lonesome or not. There’s no direct evidence that he did, but it doesn’t matter. He did not create those stories as published by himself.

    By the way, you do realize that the Kirbys attempted to terminate Marvel’s copyrights for Strange Tales #110, 111, 114, and 115. They were effectively claiming their father created Dr. Strange, too.

  29. patrick ford says:

    The copyright terminations are attached to the published stories because that is where they were copyrighted. The first concrete expression of the characters was in the form of presentation proposals submitted by Kirby. Jim Shooter said in his blog he held in his hands Kirby’s presentation piece for Spiderman.
    It will be interesting to see how these kind of cases play out if musicians like Paul McCartney , Jagger, and Richards, apply of copyright termination on the early recordings they made while under contract with record companies. There is an anticipated strategy there where the creator’s termination notices would be attached to the pressed records via the recordings. Similarly with the songs the copyright in many cases would be attached to a pressed record of published sheet music, but the effort to terminate the copyright would be via the recordings and typed or hand written lyric sheets.

  30. patrick ford says:

    As far as the termination notices applied to things like the Human Torch, Doctor Strange and the Sub Mariner, I assume that’s a case of an attorney asking for the stars as a bargaining chip.
    I would argue it’s a wise strategy, You ask for far more than what you are willing to settle for.
    Some much of the deposition testimony is shielded by the judges protective order we don’t know what kind of argument might have been made concerning those characters. A possibility would be it was Kirby’s idea to bring back the Human Torch. His Torch is not identical to the original Torch, and so Kirby’s Torch is a new character. With Doctor Strange most likely the claim was Lee had lifted the origin story from a character called Doctor Droom.

  31. Pedro Bouça says:

    For Namor, ironically enough, Bill Everett heirs would have an EXCELLENT claim on the character, since there is actual physical proof that it was created before being published by Marvel/Timely (for Motion Picture Funnies Weekly).

    Of course, I don’t think anyone is rushing out to get the rights of the Sub-Mariner…

  32. Pedro Bouça says:

    “as for S&S, S&S of course had a much better case. and would have won. They lost because the court found they settled years ago and then tried to renege once they got a new attorney.”

    The settlement that had never been put into practice? Even for the things that wouldn’t cost DC money to do? That settlement?

    Sorry, that will always be a travesty of justice to me. But, of course, I’m European…

  33. Patrick–

    Let’s put aside the fact that no presentation proposal was ever copyrighted and therefore the copyright for it cannot be terminated as that copyright never existed in the first place.

    Let’s also assume for the sake of argument that Kirby created pitch drawings for all significant characters in the publications in question. This is despite the fact that no one can produce a single one of them, and the only evidence they existed are decades-old recollections by two people of isolated pieces of art that MAY have been used for the purpose claimed. If memory serves, Neil Kirby said he saw one for Thor, and Shooter says he saw one for Kirby’s rejected version of Spider-Man.

    Thor, incidentally, is a public-domain character, and the only aspects that could protected by copyright are those that are specific to the individual treatment. Since the Thor drawing apparently no longer exists in any form, there’s no way of determining if any copyright-protected aspects of the Marvel character were present in it.

    As for the Kirby Spider-Man drawing, Jim Shooter was not deposed nor did he submit an affidavit, so his recollections are irrelevant to the legal case. There’s also the fact that–and I say this as a frequent Shooter defender–his memory is extremely unreliable. Both Lee and Ditko say that the only Spider-Man material they saw from Kirby was story pages. It is perfectly possible that’s what Shooter saw as well, and his memory is playing tricks on him.

    With that on the way, let’s get to the main point. There is no knowing the circumstances under which Kirby created these alleged pieces, or for what reason they were used. As far as I know he has never referred to them in any correspondence, or even in any interview. He could very well have created them after talking with Lee and taking on the commission. They also may not have been pitch pieces; they could have been drawings he created for reference purposes while working on the stories.

    These drawings could have been any number of things. Of course, that’s assuming they ever existed in the first place and contained any significant feature that appeared in Marvel’s copyrighted material. And even if they did, they weren’t what was copyrighted.

    If all you’ve got are a couple of third-party claims of Kirby having produced individual drawings that may (or may not) have been used for pitch purposes, I don’t think you have any kind of a case. At least not one that’s going to pass muster in a court.

  34. MBunge says:

    I don’t know what the legalities are or should be, but it should be clear that there’s NO FREAKIN’ WAY Jack Kirby was somehow ignorant of the work-for-hire nature of his job at Marvel and in comics in general. If his heirs could pull off some sort of trick and get the rights, or more likely a big check, from Marvel, I won’t shed any tears.

    But, it’s important to learn the right lessons in life. The lesson of DC stealing Superman is to always watch out for your own interests because people will screw you. The lesson of Kirby and Marvel is a far more complicated one than that.

    Mike

  35. patrick ford says:

    Anyone familiar with my comments on the case could tell you that I’ve always said the heirs had no chance of prevailing in court. Their strongest evidence would be Lee saying Kirby created characters of his own volition and presented them to Lee. My primary argument from the very start was that Lee would be called by Disney as their primary witness, and that he would proceed to claim he alone had created every copyrighted character.

    The Kirby heirs know more about Kirby’s creation of the characters than Lee does because they saw him create the characters and Lee saw them after Kirby had created them.
    The point here is all Marvel has in it’s favor is the testimony of Stan Lee saying he created the characters. That is their entire case. It’s equally true the heirs case comes down to the heirs saying their father created the characters and then sold them to Lee.
    The depositions of Romita and Thomas are no more first hand than are the depositions of Evanier and Morrow.

  36. patrick ford says:

    It’s factually incorrect to say Kirby was aware of his work-for-hire relationship with Marvel. Marvel did was not even aware of the work-for-hire language until the Copyright Act of 1976 went into effect on Jan. 1, 1978. It was only then Marvel began inserting work-for-hire language into their contracts and began seeking retroactive work-for-hire agreements.
    Kirby never had a contract with Marvel until 1975. The copyright agreement he signed under duress in 1972 did not contain work for hire language.
    Kirby knew he was selling publication rights, and rights to the characters. The 1976 Copyright Act allows freelancers who have sold a their creative work to seek termination of the copyright after 56 years.

  37. I think Kirby was well aware that Marvel owned all the work he did for them. He was also aware his work was subject to their direction and control. Just because work-made-for-hire didn’t exist as a legal term until the 1970s doesn’t mean Kirby didn’t know he was working under the equivalent of it. And before 1978, no written contract was necessary for that business relationship to be effected.

    How was Kirby under duress when he signed the 1972 agreement? He wasn’t working for Marvel at the time, so they couldn’t have threatened to stop giving him work. Given the public insults he was directing at Lee and Roy Thomas in Mister Miracle, it didn’t look as if he had any intention of going back there in any case. Did Martin Goodman threaten to send a goon to break his hands?

    With the 1972 agreement, I gather that Goodman agreed to forgive an outstanding loan dating back to 1968 in exchange for Kirby signing it. The loan was a demand loan. Kirby repaid a small portion of it shortly after receiving the money, and then never paid another cent back. This was despite his making the equivalent today of over $200,000 a year from Marvel and DC.

    If Patrick defines calling in a four-year-old demand loan duress, it’s not a definition any court or any halfway responsible individual would or should accept.

  38. Silly but True says:

    All of these cases off an interesting balance between fairness versus rule of law.

    The rules of law per 1976 were certainly different than they are now. While any number of people were putting pen to paper, it all wasn’t copy written by the simple act of being (“fixed into concrete form”) as it is today. You published (and even “publishing” held certain implications beyond simply “creating art/story”) with a notice or you took the time to register. Neither one was as simple as putting pen to paper.

    As has been pointed out, Kirby by (nearly) all indications appears to be on the “wrong” side of work-for-hire laws.

    The long jurisdiction response by the appeals court aside, the deal is likely done. Should a proper jurisdiction finally be found for the CA heirs, the work-for-hire matter of law is still likely to resolve the same way for them as it just was for their siblings.

    There’s all some interesting anecdotal details about FF1, Spider-man, etc., but at end of day, unless someone can produce an unimpeachable equivalent for Kirby of the b&w superman ad predating Marvel, Kirby is likely to be viewed as a worker for hire in its clearest sense.

    Without that, it’s a case of “he-said/(s)he-said” between Lee and Kirby, and only one of them gets to say anything nowanddays. That ain’t fair. But that’s life.

    Silly but True

  39. Jeff Trexler says:

    There’s certainly been a lot of interesting debate on this case. From a legal POV – and I’m only speaking from that perspective, not ethical or any other standards–the case was a relatively straightforward application the instance and expense test to the admitted evidence, and the panel treats it as such.

    One thing that’s worth noting in regard to the conversion of law and ethics: the 1976 Act’s writing requirements re work for hire were a reaction against the standards applied under the 1909 Act. Nonetheless, for works subject to the 1909 Act, courts must continue to look to the supbar standards–including the instance and expense test, which, as the latest Kirby opinion indicates, was developed after a number of the works in question were created.

    The panel also notes that the victory re the NY federal court not having jurisdiction over two members of the family is of little effect. Estoppel is going to come in play – a federal district court in California is highly unlikely (to put it mildly) to re-litigate this case.

  40. patrick ford says:

    Jeff, Just to be clear. From a legal point of view. If a comic book writer or artist who had been selling the majority of his/her work to one publisher for two or three years came up with a new character entirely on his/her own with no direction, and then brought it to the publisher for sale, would that character be considered work-made-for-hire?
    For arguments sake lets say Kirby’s Fourth World characters were created by Kirby with no direction from Lee, and when he offered them to Marvel they were purchased by Marvel. Would those characters be considered to have been the product of work-for-hire?
    Now assuming that isn’t work-for-hire and the character was sold to the publisher would the creator have to have registered a copyright on that character before selling the character to the publisher in order to have a case for copyright termination ?

  41. patrick ford says:

    And for the sake of further clarity on the work-for-hire issue. What would be the work status of Kirby’s Spiderman if he created it at home and Lee had not the slightest idea about the character until Kirby showed him the presentation art. In other words Lee says nothing about a Spider hero either with a magic ring or radioactive, and Kirby shows up with the presentation art saying,
    “This is a character I came up with. Why not show it to Goodman and see if he’ll buy it. I think it’s a solid commercial idea.”
    Now I’m not asking you to agree that happened, just trying to nail down if that character in would fit work-for-hire under that specific circumstance.

  42. Mark Mayerson says:

    A serious question for Jeff Trexler. Lee has said many things over the years, some of them contradictory. If Lee’s words prior to this case were shown to contradict his testimony, would that change things? If he was proved to be an unreliable witness, what would the repercussions be?

  43. Jeff Trexler says:

    @Mark Excellent question. Impeaching a witness by a prior contradictory statement is a common way of dealing with deposition testimony that doesn’t help your case. It’s often done before juries, but in the Kirby case impeaching Lee’s testimony before trial was imperative, as we see, since the case was decided by summary judgment – the court decided the matter based on the record, which is possible when the judge concludes that there is not a genuine issue of material fact.

    If the judge/panel had seen sufficient admissible evidence that Lee had made previous inconsistent statements, it’s likely that the case would have gone to trial.

    As for Lee himself, probably nothing would have happened to him given his age and the fact that we’re dealing with 60-year recollections. Generally, if the feds determine that someone has intentionally not told the truth, a perjury charge could result. Case in point: the Bill Clinton perjury kerfuffle was based on statements made in a deposition.

  44. patrick ford says:

    Mark, Toberoff took a 250 page deposition from Lee on Dec. 8, 2010. Only 40 pages of it were made public due to a protective order covering the depositions and other evidence offered in the docket exhibits. All the other depositions were heavily redacted as well. You can see this if you read the depositions at the Justia Law Blog where they were posted. Unlike fan sites which reprinted the depositions the deposition exhibits at Justia are scans of the actual transcripts and you can see the big gaps in the depositions, and the notations indicating the gaps are due to the protective order.

    There are two eras of Lee comments on Kirby. Perfect Film and Chemical (Martin Ackerman) purchased Marvel from Martin Goodman in late 1968. There is an obvious shift in the comments Lee made about the creative process which occurred after 1968. Toberoff’s exhibits list contains a long list of old and new interview comments by Lee. Based on the scraps of Toberoff’s deposition which have been made public it’s clear Toberoff spent a great deal of his time going over the various interview statements as well as Lee June 2010 deposition for Disney which Toberoff attended.
    Disney anticipated this and Disney/Marvel attorney James Quinn asked Lee a few questions concerning old vs. new comments. Lee’s over all story on the inconsistencies is that the old pre-1968 comments were never intended to be factual. They were part of the whole “happy bullpen” thing where Lee painted a picture of cheerful co-workers having a blast in a fun and games environment. And in fact Lee’s comments over the years have given Kirby less and less credit to the point where he now claims many of the comments in the 1974 ORIGINS book gave Kirby more credit than was deserved. This is a little amusing, because only a few years ago Lee’s fans would complain if anyone mentioned the ORIGINS books as giving Kirby less than fair credit. The standard complaint was, “It’s unfair to criticize Stan for those books. Stan didn’t intend them to be taken seriously.”
    When James Quinn asked Lee about the ORIGINS books Lee said this.
    “I tried to write these (The Origins books) —knowing Jack would read them—I tried to make it look as if he and I were doing everything together, to make him (Kirby) feel good.
    But with something like Galactus it was me who said, ‘I want to do a demi-god. I want to call him Galactus.’
    Jack said it was a wonderful idea, and he drew a wonderful one, and he did a great job on it. But in writing the book (Origins of Marvel Comics) I wanted to make it look as if we did it together. So I said we were both thinking about it, and we came up with Galactus.”

  45. R. Maheras says:

    Jason — Great copyright posts on your site! I love stuff like this.

    If I was involved with any copyright reclamation attempt, there’s no way I’d work with any lawyer who did not agree to do it pro bono, or for an agreed upon flat fee payable ONLY if the case was won.

    But that’s just me.

  46. Jeff Trexler says:

    In regard to the Stan Lee deposition, even with the variant statements the baseline that he describes is still the “close and continuous” collaborative relationship described by the court. If Lee had previously said that Kirby had come to him with this material written/drawn & was shopping it around to various publishers, that’s something this court would have been more likely to see as raising a genuine issue of material fact.

    Patrick, also excellent questions – don’t know how I missed those earlier; maybe they hadn’t gone through the system yet. The scenario you describe re independently created material brought to Timely/Atlas/Marvel etc. is the sort of close & continuous relationship that the appeals court seems to consider work-for-hire. However, that’s not an outcome I’d consider inevitable. For example, your scenario is essentially the relationship that Siegel and Shuster had with the Major & Detective Comics, Inc. (“DC”)

    With regard to registration and termination, the Siegel and Shuster case is again instructive – DC registered the copyright, but for a while at least the Siegel family was able to terminate the transfer that enabled DC to do so. IIRC Joe Simon was able to go forward in a similar fashion with Captain America, but I haven’t looked at that material for a few months so the registration details aren’t in my RAM.

  47. I’m seeing a disturbing number of otherwise-reliable outlets reporting this story as “the Kirbys sued Marvel in 2009″.

    They didn’t. They filed for termination of copyright transfer.

    Marvel sued the Kirbys; only THEN did the Kirbys countersue.

  48. For God’s sake, it says right at the top of the document, “Marvel Characters, Inc. v. Kirby”, and then goes on to list Marvel as the plaintiffs and counter-defendants and the Kirbys as the defendants and counter-claimants.

    In a file which is itself called marvel-v-kirby.pdf.

    The details of this case are important. And feeding the misconception that the Kirbys sued Marvel, instead of the other way around, may be an honest mistake but it’s not a trivial one.

  49. patrick ford says:

    Jeff, That’s correct about Lee’s old pre-Ackerman comments. They are at variance with his later comments and writings which have ratchet down Kirby’s creative role almost year by year. The older comments still rarely credit Kirby with bringing Lee an idea. The only instance I’m aware of is the character EGO. In general the old comments depict the two men working together and batting ideas around, the later comments are where Lee claims to have created the characters and then presented them to Kirby. In the only credits that really mattered in the ’60s Lee did not credit Kirby at all. Kirby was not credited as a plotter in the comic books (Lee frequently did receive plot credits) and was paid nothing for writing.
    I wonder if you could give a more specific answer on freelance vs. work-for-hire, because it sounds to me as if you are saying that if Kirby or another freelancer created a character completely on their own (such as Darkseid, or any of the other Fourth World characters) the sale of the character to Marvel would do more than transfer the copyright (by virtue of Marvel copyrighting the published comic book that character showed up in), the sale would actually render the completely independent creation “work-made-for-hire.”
    If the law is really that restrictive it would seem to be nearly useless.

  50. Jeff Trexler says:

    “If the law is really that restrictive it would seem to be nearly useless.”

    Can’t say I disagree. Again, I’m just speaking as to law here, not ethical principles, but the language used by the appeals court arguably supports the notion that absent contractual language stating otherwise, a 1909 Act freelancer with a steady client is producing work-for-hire material. A few quotes from the panel’s reasoning:

    “Although Jack Kirby was a freelancer, his working relationship with Marvel between the years of 1958 and 1963 was close and continuous. … Understood as products of this overarching relationship, Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby’s creation of the works.”

    So let’s envision the following scenario. Marvel has ditched its restrictive 8-title distribution deal and is free to add a bunch of new comics. Learning of this, Kirby takes his New Gods material to Marvel and Lee slots it into several new books. By the appellate court’s reasoning, it’s all work for hire.

    Ironically, the 1937 Siegel and Shuster employment contract was better, since it expressly gave DC a right of first refusal on any new material not covered by the contract. That provided grounds for subsequent courts to determine that the Superman material was not work for hire.

  51. patrick ford says:

    Thad, Absolutely correct, and one of the things about the case I’ve been complaining about for three years. The misinformation is largely due to the fact most people have followed the case through comics blogs rather than by going to the Justia Law blog and examining the dockets there.
    One of the more frequently visited blogs even ran an analysis of the lawsuit by a self-appointed expert who explained that since the heirs had sued Disney/Marvel the heirs bore the burden of proof, and that as the defendant Disney/Marvel had not even presented the evidence they would have presented if they were the plaintiff.
    Most of these blogs asserted they were presenting full depositions and either never noticed the depositions were all heavily redacted due to the protective order issued by the judge, or were willfully being deceptive. Hard to say, but I tend to think it was just stupidity or laziness.
    One example was a person posting as “JS” (maybe a Jim “somebody?) showed up at TCJ and left comments asserting the heirs had sued Disney/Marvel.
    Almost every blog I saw posting fragments of Lee’s deposition posted the portions of it used by Disney/Marvel in their exhibits. I’m unsure if the 30 pages of Toberoff’s Dec. 2010 deposition of Lee were ever posted on a comics blog. If they were it escaped my notice.

  52. patrick ford says:

    Jeff, Because the court seems to accept Kirby did nothing except at Lee’s direction it’s hard to be sure.
    It would be interesting to see Marc Greenberg weigh in on this.
    Personally I thought the ruling was disappointingly brief and vague on the central issues. And by contrast I’m really surprised at what a great deal of space the ruling devoted to the jurisdiction issue concerning Neal and Lisa Kirby. Particularly because you think the jurisdiction “victory” is basically hollow.
    The jurisdiction over Lisa and Neal Kirby was one of the very first issues to become challenged by Toberoff. I assume that if at that time the original judge had ruled the New York court had no jurisdiction over Lisa and Neal Kirby, it would have been seen a major victory for the heirs?

    I’m also wondering what effect the work-for-hire interpretation in this case would have on anticipated music industry related termination notices. Unlike Kirby a band like the Rolling Stones or the Beatles were signed to a contract, made recording in a studio where the studio time was paid for by the record company. These contracts also might stipulate the artist agreed to create “X” number of recording during the term of the contract.

  53. patrick ford says:

    And sorry to belabor this but a couple of quotes from Jeff:

    “but the language used by the appeals court arguably supports the notion that absent contractual language stating otherwise, a 1909 Act freelancer with a steady client is producing work-for-hire material.”

    It’s the word “arguably” which gets at what I mean in my previous post where I said the relative brevity of the ruling is strange to me. These are really important issues. There are cases concerning these issues before courts now, and more are sure to come forward in the future. You also have not only attorneys who don’t see things the same way, but judges who issue summary judgment rulings only to see their summary judgment overruled by an appeals court summary judgment. Most specifically Judge Larson (who was seen by some as a kind of Jr. Scalia ) ruled in summary judgment against Warner. He did not think the issues involved merited going to trial. Unless I’m mistaken summary judgment is kind of like a judge saying, “I’ve seen enough. We don’t need a trial here the facts are clear enough that I’ll make the decision right now.”
    It would seem to me the court system would want some real clarity on these issues so courts are not getting hit with suit after suit.

    Quoting Jeff quoting the ruling:

    “Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind.”

    This seems to me like what people call “judicial activism.” A completely new interpretation of the law where a creator who is selling freelance work to primarily one client has any work sold to that client automatically designated as work-made-for-hire. The phrase “with Marvel specifically in mind” does seem to indicate if Marvel had not rejected Kirby’s Captain Glory (later sold by Kirby to Topps), and had instead purchased Captain Glory, then Captain Glory would become work-made-for-hire by virtue of the sale.
    And of course Kirby did make freelance sales to clients (Archie, Gilberton, DC, Harvey) other than Marvel during the years 1958-1963.

  54. Patrick–

    As far as the copyright issues go, and as far as work under the jurisdiction of the 1909 law is concerned, to get a favorable verdict to the creator(s) you’d better be able to incontrovertibly demonstrate that the creator was not working under a commission and was able to take the material to another publisher if rejected. It’s a bar that Kirby’s work for Marvel is not able to clear. It’s not an impossible bar to clear, mind you. The Superman story in Action Comics #1 can do so, but in that case there are the mitigating factors of subsequent agreements that stand in the way of the copyright being returned to the authors’ estate.

    Everyone else–

    With “JS” at tcj.com, I posted some comments well over a year ago under that handle. Patrick knows this, and if he wants to portray it as objectionable, I’ll be happy to discuss why he’s a hypocrite. I don’t know offhand if Patrick’s description of those comments is accurate, but if they are, I was in error. I don’t think it matters much, as the Kirbys had to have known their conduct was all but certain to provoke a court challenge, but if I was mistaken, I was mistaken.

    If anyone is wondering, my comments were posted under that pseudonym because I was fed up with the distraction of being subjected to vicious personal attacks and other red herrings every time I argued a position that went against the grain of someone else’s views. Patrick wasn’t the worst offender–it’s hard to imagine anyone being more obnoxious than James Romberger was on that front–but Patrick is very big on changing the subject in that way when he’s losing an argument. However, it was an ill-considered move on my part–it creates the appearance of bad faith–and I haven’t done it since.

    In all honesty, I regard Patrick’s decision to refer to that episode here as the behavior of a troll. The only point is to put a contrary interlocutor on the defensive. It adds absolutely nothing to the discussion.

  55. Question for Jeff:
    How important is the question of whether Marvel paid artists for unused pages?

    It’s been awhile since I read the decision, or the partial transcripts of the depositions, but my recollection is that Stan Lee claimed that Marvel paid artists for their submitted pages even if they rejected them, and that the judge considered this claim in applying the instance and expense test — but that every single other witness said that was not the case.

  56. Jeff Trexler says:

    @Thad The appeals court opinion disposes of this rather summarily:

    “In the final analysis, then, the record suggests that both parties took on risks with respect to the works’ success –- Kirby that he might occasionally not be paid for the labor and materials for certain pages, and Marvel that the pages it did pay for might not result in a successful comic book. But we think that Marvel’s payment of a flat rate and its contribution of both creative and production value, in light of the parties’ relationship as a whole, is enough to satisfy the expense requirement.”

  57. patrick ford says:

    Thad, As you might recall Lee told that story about the “artists” being paid for rejected work right after a little pep talk from Disney attorney James Quinn which Toberoff observed and mentioned to the judge in a letter. This isn’t even one of those cases where people could blame this on Lee’s bad memory, because he is pretty obviously testifying on command from the Disney/Marvel attorney.

    3/28 letter to the judge by Toberoff.
    Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I
    indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested
    a break even though the parties had just recently already taken a break. At this break, on
    my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently
    speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon
    resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which
    Lee immediately responded without any hesitation or reflection.”
    MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
    STAN LEE: Right.
    Q. Did Mr. Kirby get paid for those rejected pages?
    STAN LEE: Sure.
    Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
    STAN LEE: Any artists that drew anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw it, so I did pay them.

    The letter apparently did result in Toberoff being able to add to the record written declarations challenging Lee’s assertion. Marvel paying for rejected pages was contradicted by Joe Sinnott, Dick Ayers, Gene Colan, Jim Steranko, and Neal Adams, in new declarations of support filed by Toberoff, and other artists in past interviews have said they weren’t paid for rejected pages.

  58. patrick ford says:

    What is particularly interesting about Lee’s claims “artists” were paid for rejected pages is the context.
    This came right at the end of Lee’s Dec. 8, 2010 deposition. This was the last deposition taken and some of the very last evidence introduced during discovery. It might have been the last had not the judge allowed those written declarations introduced by Toberoff in response to Lee’s claim.
    It seems to me Disney/Marvel’s concern here was specific to Kirby’s Spiderman. Their concern may have been a judge or jury would find Kirby’s Spiderman, while not identical to the published Lee/Ditko Spider-Man still, contained elements found in the published version.
    If that were the case and Kirby had not even been paid for his work then the question would be how could the work be viewed as work-made-for-hire.
    Jeff seemed to say earlier that his understanding of the ruling was any work Kirby sold to Marvel, even if it was created completely independent of Lee, would become work-made-for-hire the moment it was purchased by Marvel. As he explained it the Fourth World characters would be considered a work-for-hire product if they had been purchased by Marvel. It’s because Marvel chose not to purchase them that Kirby was later able to sell them to DC.
    Since the new ruling seems to ignore Lee’s assertion all artists were always paid for anything done at his direction, then I’m wondering where Kirby’s Spiderman fits into this. Is the ruling really saying Kirby’s Spiderman is work-for-hire even if Kirby was not paid for it? The whole issue of creators not being paid for rejected work was opened up by Lee’s claim Kirby was paid for Spiderman.

  59. patrick ford says:

    And of course Lee’s claim is that creators were always paid for any work done at HIS DIRECTION.
    This apparently would not apply to things not done at Lee’s direction, like the Fourth World characters. And of course the whole basis of the heir’s case reflected Kirby’s long standing claims that he brought Lee finished presentation art and text containing characters and plot suggestions he created of his own initiative on his own time and at his own expense (his labor and materials) in his basement with no guarantee they would be purchased by Marvel.

  60. This isn’t even one of those cases where people could blame this on Lee’s bad memory, because he is pretty obviously testifying on command from the Disney/Marvel attorney.

    That accusation is reckless and defamatory.

    You have no idea what Marvel’s lawyer and Lee were talking about. None. They could have very well been talking about which local restaurants were good places to eat.

    Apart from that, Lee’s attorney, not Marvel’s, requested the break. It is not unusual for a break to be taken after one party’s lawyer has finished with his or her questions. It’s actually pretty standard. Is Toberoff alleging that Marvel’s lawyer sent Lee’s a telepathic message to ask for a break so Marvel’s lawyer could tell Lee to lie under oath? Please.

    As for Lee answering questions “without any hesitation or reflection,” is that the least bit unusual for him in any circumstance? I’ve seen any number of interviews with him. He’s always very direct and quick on his feet in response to questions. He is not the least bit pensive, much less a stammerer.

  61. Patrick–

    To the best of my knowledge, Marvel has never made any claim to ownership of The Fourth World material. It was part of Kirby’s relationship with another publisher several years after the material at issue in this case was created. Why do you keep bringing it up?

    Would you please cite the interviews or correspondence in which Jack Kirby stated “he brought Lee finished presentation art and text” in advance of any completed stories?

  62. Jeff Trexler says:

    Robert, re the Fourth World material, I saw that as simply an interesting hypothetical. To extend it the counterfactual a bit, if Kirby had sold the New Gods to DC and kept drawing FF, this case might have had a different outcome.

    Or not. After all, the court disposed of the Challenges pretty quickly.

  63. Jeff–

    I’m inclined to think it wouldn’t have mattered. I don’t see why a creator couldn’t have a work-for-hire/instance-and-expense relationship with more than one publisher simultaneously. By the same token, I think a court could determine that with a single publisher one project was done on a for-hire basis and another was not.

    My understanding is that for termination rights to exist the material has to pass the Superman/Action Comics #1 test. In other words, did the material in its copyrighted form initially exist independently of the publisher. With Siegel and Shuster, they’d been hawking that first Superman story for years before DC took an interest in publishing it. With Kirby’s Marvel work, Lee says he commissioned everything. There’s no direct testimony that contradicts Lee on this question–only Kirby could have provided that–and there’s no documentary evidence that does, either. The court therefore has to accept his account, and there are no termination rights.

    Hypothetically, I can see a scenario where this wouldn’t be the case. Take it as a given that Lee’s account of The Fantastic Four is entirely accurate, and Kirby was working on that on a commissioned basis. But let’s say that Kirby created the first Hulk story and sent the pages to Marvel with a letter that made it clear it was an unsolicited submission. Lee and Marvel publish the story with no changes made beyond having the pages inked, lettered, and colored. If the heirs can produce that letter and it’s judged authentic, my understanding is they should have the termination rights for that story even though they have no such rights for the FF material. Does that make sense?

  64. patrick ford says:

    Jeff, Yeah it could be Kirby and the Fourth World or John Doe and character “X”.
    The question is simply is it possible a creator who is selling almost all his freelance work to one client over a period of years to create something sell it to the client as usual and not have that work seen by the court as work-made-for-hire.
    The phrase Jeff quoted:

    “…he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind.”

    It’s the second part of that which sounds to me fairly innocuous until you think about it. It’s incredibly expansive and would seem to cover anything a creator brings to his primary client no matter if the creation was self-directed or not.
    Getting back to using the Fourth World as an example. Kirby absolutely created the Fourth World characters with Marvel in mind. He showed them to Marvel, and they were an outgrowth of ideas he had for Thor.
    Taking it away from Kirby it sounds to me like the ruling is saying that if a long term employee of DC like Joe Kubert was going along with his usual assignments and then all on his own at home had a completely new idea which he presented to DC and they purchased that idea would be seen by the court as work-made-for-hire even with the complete absence of any signed agreement.

Trackbacks

  1. […] text of the judgment, available here, declares that the original ruling against the Kirbys (rendered in July 2011 by the US District […]

  2. […] a fan-favorite creation of the late Jack Kirby , a creative titan whose family is still getting screwed by the IP merchants at Marvel, makes it all the more […]

  3. […] Berufungsgericht hat entschieden, dass die Rechte an Hulk, den X-Men und Captain Amerrica bei Marvel verbleiben, da Jack Kirby unter […]

  4. […] Sadly, not receiving his fair share was a problem that would continue throughout Kirby’s career. He didn’t profit from the success of his Marvel creations—not the toys, not the movies, not the television shows. There is a long-running legal battle over the copyright of Kirby’s work with Marvel, though one that Kirby’s heirs seem to be losing. […]

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