Must Read: Jeff Trexler’s Taking Back the Kirby Case

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201308231245 Must Read: Jeff Trexlers Taking Back the Kirby Case

I’m late linking to this, but it took a while to get through it since it’s full of legal reasoning. Frequent Beat legal contributor Jeff Trexler has jumped over to the Comics Journal for an essential look at the Kirby Case, its ruling and what might have been the thinking behind some of them. Warning, Not easy reading, but no one covers comic book copyright laws like Trexler.

Nonetheless, as I re-read last week’s opinion affirming that Jack Kirby’s Marvel material was work made for hire, I started noticing certain aspects of the three-judge panel’s reasoning that made me wonder if there were more to this case than just another reason for creators to feel discouraged. For example, in her 2011 summary judgment opinion against the Kirbys, Judge Colleen McMahon began with a most unusual disclaimer, all but apologizing for the fact that her ruling was grounded in law, not fairness. The appellate court made no such distinction. Instead, its Marvel v. Kirby opinion sent the clear message that its ruling was fair and just.

This face-off over fairness was both a challenge and a clue. Could it be that the case has exposed fundamental problems not merely with how Marvel treated Kirby, but with the law itself?

In a hard to summarize argument, Trexler wonders if some of the underpinnings behind the interpretations of the 1909 and 1976 Copyright Acts might be important enough for a Supreme Court review. Still seems a long shot, but after reading Trexler’s piece, you’ll see why work for hire copyright issues remains problematic.

Comments

  1. Synsidar says:

    This material from Trexler’s article is interesting:

    In other words, despite Kirby’s selling material to other publishers — a hallmark of independent contractor status — the fact that Marvel was a steady client was sufficient to make all of the material that Kirby sold to Marvel work made for hire, even if Kirby had developed that material independent of any prior request or direction from the company. Accordingly,

    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. (51)

    As for whether Lee or Kirby — and in the case of Spider-Man, Steve Ditko — was most responsible for creating the characters that transformed Marvel from a struggling small business to a global entertainment empire, the court concludes the question is irrelevant. A finding that all of the Marvel characters are the product of Kirby’s creative genius would make no difference to the material’s work-for-hire status, since

    the hired party’s ingenuity and acumen are a substantial reason for the hiring party to have enlisted him. It makes little sense to foreclose a finding that work is made for hire because the hired artist indeed put his exceptional gifts to work for the party that contracted for their benefit. (52)

    Legalities aside, people are equating the design of a character and the idea for a character in a story with the publication of the finished story. Just because, from a production perspective, a creator starts out with the idea for a character, proceeds to build a story around it, and then markets the story doesn’t mean the character is the story. The story is marketed to readers who focus on the character.

    If someone were to novelize a film, and add minor elements to the novelization that weren’t in the film, such as character backgrounds, or character interactions, would he claim that he deserved the copyright to his additions? He shouldn’t; his additions wouldn’t have existed without the story he was adapting.

    If someone designs a toy and takes the design for a toy to a company which will manufacture and market it, the designer should know exactly what he’s doing, and structure the contract accordingly. Having a stake in the marketing and profitability of the toy is different from simply designing it.

    The history of the Thunderbolts character Charcoal is an example of how little creating a character can mean.

    If someone wants to be a creator, producing a complete story ready for publication is by far the easiest route to take. Then profiting from it is just a matter of handling rights. Collaboration involves compromises, both creative and financial.

    SRS

  2. Jeff Trexler says:

    After posting my comments on The Beat’s post about the case, I had this moment of, “Well, that’s it — nothing left to say.” Next thing I knew, it was precedential Portal.

    Re the following: “If someone were to novelize a film, and add minor elements to the novelization that weren’t in the film, such as character backgrounds, or character interactions, would he claim that he deserved the copyright to his additions? He shouldn’t; his additions wouldn’t have existed without the story he was adapting.”

    Depends on the contract (or lack thereof) and the copyrightability of the writer’s contributions. Remember the Gaiman-McFarlane case? The appellate court (7th Circuit) held that Gaiman holds the copyright to his original material added to McFarlane’s earlier copyrighted work. This is what enabled Gaiman to get a copyright interest in Medieval Spawn.

  3. patrick ford says:

    One fact of the case that a lot of people still have not grasped is the core of the heirs argument was their contention Kirby created the characters completely independently and then offered them to Marvel. They (Toberoff) make arguments concerning the story pages as well, but it all goes back to the argument Kirby first created presentation pieces containing art and text which he used to pitch ideas to Marvel which they could either accept or reject.
    http://www.heromachine.com/blog/wp-content/uploads/2012/07/kirby-boomerang-details.jpg
    The trouble is none of those presentation pieces (1958-1963) were introduced as evidence. If Kirby followed his usual methods and created presentation pieces to use as a sales tool then something happened to those pieces. They may have been stolen, given away, reformatted as pin-ups, covers, house ads, or destroyed.
    Jim Shooter made a comment in his blog where he said he saw Kirby’s Spiderman presentation art and text. That piece has never been published. If Marvel is holding it they did not produce it. Toberoff did subpoena all artwork by Kirby they are still holding. Marvel at first said they had nothing, and then came forward with a few dozen old romance pages they found.
    So the heirs have little evidence to offer except their recollections.
    On the other hand Marvel had no physical evidence to support it’s claims Lee created the characters and assigned them to Kirby.
    The only physical evidence is the original art. It is undisputed the pages were penciled by Kirby before anyone at Marvel had possession of them. There are no scripts, no work assignments, memos, nothing on paper except the pages.
    Marvel’s evidence came down to Stan Lee saying he created the characters and assigned them to Kirby. Roy Thomas and John Romita were both questioned by Toberoff and testified they had no first hand information about what was going on at Marvel between 1958 and 1963.
    Larry Lieber was at Marvel during those years but had no knowledge of the relationship between Kirby and Lee. His testimony had to do with his dealings with his brother, and things he was told by his brother.

    What Jeff pointed out is the appellate court ruling contained language which suggested even if you accept the heirs arguments Kirby created the characters on his own his work would still meet the work-made-for-hire definition. The reasoning was Kirby would have created the work with the idea of offering it to Marvel.
    If that’s what the court is really saying, as opposed to just a bit of unclear writing, then that is a huge expansion of the law, and an argument I don’t think Disney/Marvel concentrated on as part of their prosecution.

  4. Synsidar says:

    One fact of the case that a lot of people still have not grasped is the core of the heirs argument was their contention Kirby created the characters completely independently and then offered them to Marvel.

    But Kirby’s characters hadn’t appeared in any published material prior to appearing in Marvel’s comics. Note that in the Gaiman-McFarlane case, Gaiman wrote SPAWN #9.

    And there’s this re the use of characters:

    Judge Posner’s decision in Gaiman is one of the most thorough treatments, from a legal perspective, of what creative effort goes into comic books. Posner’s reasoning suggests that comic book characters are comprised of non-visual aspects, such as the story, and, as Posner says, “what he [the character] knows and says.”

    Not only are writers and artists both equal creators in comics, but a character must “act” a certain way to be copyrightable in the comics medium.

    Until a character’s been given a set of defining characteristics particular to him, he’s just an idea.

    SRS

  5. patrick ford says:

    The assertion by the heirs and Toberoff is the characters were defined by the presentation art and text. Se for an example the link in my last message.
    http://www.heromachine.com/blog/wp-content/uploads/2012/07/kirby-boomerang-details.jpg

  6. Synsidar says:

    The assertion by the heirs and Toberoff is the characters were defined by the presentation art and text.

    That doesn’t mean anything as far as copyright is concerned. Unpublished material isn’t worth anything, copyrighted or not. If someone designs n characters and keeps the designs in a file, and later, someone publishes a story with similar characters, what is the first person going to do? File a complaint of copyright infringement against the creator who never saw the copyrighted designs? Undeveloped ideas are precious only to the person who thinks that his ideas are unique.

    SRS

  7. patrick ford says:

    Synsidar: “Unpublished material isn’t worth anything, copyrighted or not.”

    The lawsuit did not involve characters which Kirby never showed Marvel. It did involve one character which is unpublished; Kirby’s version of Spiderman.

    Jeff Trexler has commented on the legal rights creators have to their unpublished work and how those rights and copyright are conveyed when the unpublished material is purchased with the understanding all or partial rights are being sold.

    Jeff Trexler: “Thanks for the question. Siegel and Shuster had rights in the material as an unpublished work; they conveyed all of their rights in the property–including the copyright title and, per the courts, the right to renewal-to Detective Comics, Inc., in 1938, which in turn registered the copyright & triggered the term.

    Federal courts have long stated that the right to the title of the copyright for term 1 and the right to renewal were separate. This includes the right to register the copyright in its first term. Action #1 was registered by Detective Comics, Inc., but the 1974 appellate ruling makes clear that were in not for the 1948 Westchester ruling, Siegel and Shuster would have been able to renew the copyright. So. Close. The state court ruling had no bearing on termination, which is why the Siegels were able to proceed with their lawsuit and might have won were it not for the settlement.

    The same goes for Simon’s renewal filing for Captain America, which is no doubt a big reason why Marvel settled twice, in 1969 and again in regard to termination rights.”

    Synsidar: “File a complaint of copyright infringement against the creator who never saw the copyrighted designs? ”

    The heirs claim is Kirby showed the presentation pieces to Marvel. The presentation pieces were used to sell the characters which were purchased and ended up copyrighted in the comic books named in the termination notices.
    Jerry Siegel had rights to Superboy based on an unpublished Superboy idea he offered to DC.

  8. Synsidar says:

    The presentation pieces were used to sell the characters which were purchased and ended up copyrighted in the comic books named in the termination notices. Jerry Siegel had rights to Superboy based on an unpublished Superboy idea he offered to DC.

    Let’s not go in circles. If Kirby had sold the characters to Marvel, he’d have had records of that and the existence of the presentation pieces would have been irrelevant. Doing stories with Lee, et al. that used the characters is not artistically or legally the same as selling the characters. There isn’t any basis for claiming that Kirby had copyright claims on the individual characters.

    SRS

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