Steve Bissette calls for Marvel boycott over their treatment of Jack Kirby

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Spinning out of a Facebook discussion, cartoonist and educator Steve Bissette is making a case for a boycott of Marvel over how shabbily they have treated Jack Kirby and his heirs:

A few key points:

* I don’t question the legal logic Marvel’s attorneys made, and the court decision reflects. However, nothing is being said about the conditions under which Kirby signed, and was pressured to sign, the contracts presented. I don’t think “extortion” is too unfair a word to use, particularly in the very public case of the Marvel artwork “return” contracts.

That is a moral issue here, and Marvel’s pattern of decades of effectively slandering, maligning, and dimissing Kirby and his legacy is, too.

* If, in the 1970s, Neal Adams and Jerry Robinson hadn’t rallied around Siegel & Shuster, who had multiple signed settlement contracts with National Periodicals to wield against them, agreements they had signed over their lifetimes (agreements they and their legal reps—like Albert Zugsmith—had negotiated), nothing would have changed.

Adams and Robinson brought to the public the moral case, the moral outrage, over the treatment of the creators of Superman.

At that time, the legal matters were considered “settled.”

C’mon, folks: Jack changed a century, the medium, the industry, our lives, and Marvel.

Let’s change how the rest of this onfolding story goes.

* The very public pattern of undercutting Kirby’s legacy as a co-creator of properties of great value to Marvel Comics (see Stan Lee’s and Martin Goodman’s revisionism on Captain America) dates back to 1947, and the first edition of Stan Lee’s “The Secrets of Comics” pamphlet.


Bissette calls on people to ask questions of Marvel regarding their treatment of Kirby at panels throughout 2012 — let’s call it a “Kyrax2.” Because it’s Bissette, it’s a long piece, but it’s worth a read.

Tom Spurgeon has some thoughts on this, and boils it down to the main points:

What remains most troubling about what Marvel has done and continues to do to many of its contributors and their families is how deeply unnecessary all of it seems. Marvel has resources out the wazoo. They have plenty of publishing money to provide royalties to a creator or an estate on work republished, even more movie money to make payments to creators for use of their characters in a movie, and tons of accrued cultural capital to properly give folks credit for a storyline or character without damaging the all-precious brand. To habitually punish their past runs needlessly counter to the way they treat a number of their current creators happy to be partnered up with them, and the generally positive attitude most people have in comics towards their current editors and publishing people.


There’s more from Tom, too, but…he’s right. Marvel’s continued disdain for the legacy of Jack Kirby is one of the most shameful practices in comics. I don’t say that this policy is the brainstorm of anyone currently running Marvel. It goes way back to other businessmen who needed to bleed every penny from the ideas of someone who could do what they never could: create.

But the policies have been continued to this day. Even while the Thor and Captain America movies use visual ideas that Jack Kirby incontrovertibly created to make a billion-dollar franchise.

Marc Toberoff had vowed to keep fighting despite what looked like a devastating legal setback. Maybe more of us should keep fighting.

Comments

  1. Two things should not be forgotten:

    1) Disney owns Marvel

    2) Steve Jobs is the largest shareholder of Disney

    Connect the bloody dots.

  2. Dave Aikins says:

    I’m very curious about this: How many comic fans that would care enough about Jack to boycott Marvel actually buy modern Marvel comics? If I boycotted Marvel, it would mean that I’d have to stop buying hardcover Kirby collections… and that’s about it…

    Unfortunately, as a father of a 3 year old, I can’t boycott Pixar movies for Jack. Sorry Jack. I can do anything for Kirby, but I won’t do that…

  3. jaroslav hasek says:

    disney’s bread and butter is IP, so they’re not going to give an inch on these legal issues, ever. even if it means shuttering marvel comics completely. they bought marvel for their characters, not for their publishing unit.

    maybe they could give some stock away to the heirs as a consolation prize. they’d own a piece of kirby’s legacy that they can hold on for as long as disney exists, which will most likely last longer than the copyrights for any work created by jack kirby.

  4. Jeff P. says:

    Dave’s right—I haven’t purchased anything from Marvel for ages. Their work turned to crap years ago; the same can be said for most of DC’s stuff. If it wasn’t for IDW, Dark Horse, BOOM and their ilk, I wouldn’t be reading comics at all.

  5. I don’t understand this outrage and I think we’re applying 2011 creator rights to a 1960′s entity and creator that are unfair and unrealistic.

    Nobody is boycotting Disney because the 12 old men of animation aren’t receiving royalties from all the sales Disney licensing is making off their hard work and creations.

    If we’re going to boycott Marvel until they share some of those royalties with the Kirby estate, then we’d better start boycotting for every creator that’s contributed to making these movies we’re seeing possible.

    It’s called work-for-hire for a reason.

  6. NadaMucho says:

    I mean, Marvel’s treatment of Kirby is the same the day before the verdict as it was the day after. Why start boycotting now?

  7. Steve says:

    It is shameful the way Marvel continues to exploit Kirby & his heirs, but the people making the decisions aren’t the same ones who actually care about comics. Freelancing is brutal. I’m not saying this to defend Marvel’s practices, I’m just stating a fact. I haven’t bought a new Marvel comic in years, I do buy the masterworks on occasion. I think there has to be a more effective way to send Marvel a message than a small scale boycott, but I don’t know what that is.

  8. patrick ford says:

    Same here. There’s nothing to boycott. Never seen one of the movies, and don’t read super hero comic books.

  9. @Scott Kurtz – In fairness, though, aren’t you applying the modern concept of work-for-hire itself retroactively? Work-for-hire as a legal concept didn’t really exist until The United States Copyright Act of 1976, I believe. I’m not sure where I stand personally with the whole Kirby/Marvel thing, but I think the situation is not as clear cut as you make it out to be.

  10. Nawid A says:

    @Mike

    What am I supposed to be connecting there? Is Jonathan Ives the Antichrist?

    @Jeff

    I think comics are better than ever right now, Marvel and DC are not an exception.

  11. Synsidar says:

    Anybody who’s ever argued “It’s not the idea, it’s the execution” has argued against a boycott of Marvel’s current products. It could be argued that the estate deserves a bigger share of revenue from the comics that Kirby personally co-created.

    Any offer from Disney that even hinted at admissions of wrongdoing by Marvel would probably cause lawsuits by Disney shareholders.

    SRS

  12. NadaMucho says:

    Nawid:
    I sort of agree. There are a lot of great books out there, some of which are certainly going to rank among the best comics ever produced. But at the same time, there’s so much crap being produced, which tends to drown the whole industry in a sea of mediocrity.

  13. A broad-based boycott is very difficult to pull off. The impact tends to be spread out, so it isn’t noticed by the party you’re trying to make a point to.

    I have a more focused suggestion– What about calling everyone to buy the next issue of “Kirby Genesis” instead of a specific Marvel title– Say, Avengers #18?

    If the movement gets traction, it’s a clear strategy to articulate, and Marvel will see the impact in dollars.

  14. If you want to give money to the Kirby Heirs, the most worthwhile thing you can do (Outside of cutting them a check directly using the money you are not spending on Marvel products,) is to go buy Dynamite’s Kirby Genesis.

    ’nuff said.

  15. Sean Murphy says:

    As the judge indicates, the court decision is a legal one and not a moral one. If people feel that Marvel morally owes the family of Jack Kirby money for his efforts and want to express their disappointment through their pocketbooks, that seems to me to be an individual decision and well within their rights.

    Personally, I won’t be participating. From reading the court decision, settlement conversations did occur. We won’t ever know what Marvel offered, but as someone pointed out they are cash-flush enough now and it seems to me that they would likely want this issue to go away. The Kirby heirs elected to roll the dice and to go ahead with the suit.

    Frankly, speaking as a layman, it really looks like they had a pretty flimsy case. Rather than lauding Mr. Toberoff for his vow to keep fighting, I’m wondering why more people aren’t asking why he didn’t advise his clients to settle?

  16. ChristopherH says:

    Please forgive the obviously stupid question …

    All rightful moral indignation aside, what stake do the heirs of a genius really have in the work of said genius?

    If you really believe the estate has a viable and valid interest, and you really want your economic purchasing power to have social value vis a vis this issue, then why not buycott Dynamite’s new Kirby project? The proceeds from that project WILL go to the estate.

  17. Travis says:

    “But at the same time, there’s so much crap being produced, which tends to drown the whole industry in a sea of mediocrity.”

    Yeah but that can be said about every entertainment industry at any point in time.

  18. Matthew Southworth says:

    Off-topic (sorta) but very interesting: Albert Zugsmith, Siegel & Shuster’s attorney, was also an exploitation film producer who produced the GREAT GREAT GREAT Orson Welles film TOUCH OF EVIL. I never knew he had anything to do, even tangentially, with comics.

    If you haven’t seen TOUCH OF EVIL, get on it!

  19. I agree with Steve Bissette. Legally DC didn’t have to pay Siegel and Shuster anything, but eventually they did and it was the right thing to do.

    Marvel is making hundreds of million of revenue on Kirby created characters. They can call it an incentive if they’d like, but Jack would have wanted some of that money to go to his heirs and they should also do that as well.

    While I had intended to buy Thor and Captain America DVDs when they came out (already seen both in the theatre) I won’t be doing so now. I will also not buy any more Marvel TPBs/GNs either until they work out an agreement with the heirs.

  20. What should the Kirby estate be compensated for? I’m curious? How do you determine what Jack’s contribution was worth? How do you calculate how much of the Thor movie profits are rightfully his because he created Thor?

    And once you do that, don’t you also have to make a similar calculation for Walt Simonson? Because Walter contributed so much to Thor. What about the guy who designed the current costume?

    If we award the Kirby estate a portion of profits from the X-Men movie, then we better do it for the Cockrum estate too. Because Dave died in a VA Hospital from diabetes and could have used some of the money earned off of Nightcrawler and Colossus.

    It’s a giant can of worms. Of course Marvel can’t give the Kirby estate anything.

  21. >> If we award the Kirby estate a portion of profits from the X-Men movie, then we better do it for the Cockrum estate too. Because Dave died in a VA Hospital from diabetes and could have used some of the money earned off of Nightcrawler and Colossus. >>

    Dave did get some of that money:

    http://www.cliffordmeth.com/marvelcockrumagreetosettle.htm

    Probably not anywhere near enough. But I expect Dave got more ancillary money off the X-Men than Jack did.

  22. Chris Duffy says:

    Ben Towle is right. In fact, society is CONSTANTLY going back and creating laws to right wrongs, even when contracts are involved. The music industry is filled with these cases, isn’t it? I find it more than a little shameful that so many comic fans feel that “suck it” is the proper response to a creator or creator’s family vying for an equitable payoff for the fruits of the creator’s labor. Should they not even try?

    Don’t contracts get readdressed when it turns out a particular situation was inequitable–say, a tiny fee for creating a character that turns out to be a hit movie?

    Also: nobody over the age of 10 should say that a boycott won’t do any good anyway as an excuse for not boycotting. You either believe or you don’t believe. And I buy plenty of Marvel Comics–even though I’m a big art comic geek. I also watch sitcoms AND art house movies. There are plenty like me and a vocal boycott would catch plenty of public notice.

    The issue of other creators’ role in shaping the popularity of characters is an important one. Ditko redesigned Iron Man’s armor to the version that every version since has been based on. Should he get more dough? I don’t know…But I wouldn’t scoff at him for trying to see what his legal recourse was…

    I reluctantly join Mr. Bissette’s boycott. Reluctantly because I still enjoy the Marvel Comics and know and like a LOT of folks who work for them. But come on!

  23. James Van Hise says:

    If Marvel wasn’t owned by Disney, a boycott might work. But Disney won’t give an inch in these areas. They spent millions of dollars to keep from paying the Winnie The Poo estate additional money they claimed was owed them.

  24. faboofour says:

    To paraphrase Martin Mull (allegedly), addressing a moral issue with an economic response is like dancing about architecture.

    Unless you’re talking about creators refusing to create for Disney (the entire body, not just a miniscule butt hair like Marvel) as a moral act. That could work if it got broad support. If you can create a “virtual” picket line across the entire corporation that no one would cross, that would have an effect.

    It’ll never happen, though. I’d guess the show runners for “The Revolution” don’t even know who Jack Kirby was, much less why they should even care.

    Forget trying to punish Disney economically. It won’t happen. Forget trying to change the corporate economic system. It won’t happen either.

    If you want Kirby’s estate to benefit economically, send it your own money (that’s the new economic paradigm anyway). But give up trying to make a corporation “do the right thing.”

    It’s already doing the right thing. For a corporation.

  25. Synsidar says:

    Don’t contracts get readdressed when it turns out a particular situation was inequitable–say, a tiny fee for creating a character that turns out to be a hit movie?

    If you’re referring to movie rights, those are a standard element in negotiations between the creator and the entity that wants to acquire the rights. If his rep negotiates a bad deal, that’s his problem.

    In addition to the “idea vs. execution” argument, there’s also a conflict between ideas not being copyrightable and a creator being rewarded for the use of his ideas. The world of fiction is filled with ex-CIA agents on the run, mercenaries, secret agents, et al. The main reason that Kirby’s (co-)creations stand out so much is that the superhero comics market is so small.

    SRS

  26. S&S only got money because, as Steve rightly notes, their legal efforts at the time were completely exhausted and the two were appearing on every talk show in the country. While it seems the perfect time with the movies for Marvel to do something similar, as long as there is litigation, even an appeal, doesn’t that make any kind of action impossible? Not a lawyer here, obviously.

    I agree that there could be more positive actions than boycotting. Giving to the Kirby Museum, getting the magazine, Genesis, etc. But I don’t have the fortitude to ban his great characters — take a look at Oliver Copiel’s Silver Surfer in Thor right now — total Kirby homage. Couldn’t boycott that if I tried.

  27. The direct financial pressure of a boycott might not work, but the more indirect pressure of public shame might.

  28. Yep, “a giant can of worms”, to be sure.

    But Bissette has something here about in his comparison to the Superman case and the support the creators recieved from comic fans and professionals making DC realize they had a further responsibility to Siegel and Shuster.

    Scott Kurtz mentions the “work for hire” arrangement that all freelancers work under, and that’s certainly true that retroactively altering that agreement calls all the other work of later freelancers into question. You can’t have that simplistic an assesment of ownership if comics are to function as the industry they are today. If Superman and Captain America were retroactively named as “creator-owned” the system we have now, shaky as it is, would crumble.

    But I do think there’s something different about Jack’s vast and defining contribution to the Marvel portfolio that no current lawsuit can account for and, like Siegel and Shuster, the work Jack Kirby did for that company deserves a respect and a commitment to the welfare of his family that Marvel never showed during his lifetime. And, just like with Siegel and Shuster back in the ’70′s, I do think there are ways for comic fans and professionals to make the company aware that we’d like to the family compensated throughout the duration of the copyright.

    Would it be too much to ask that the Kirby estate should receive some portion of sales from all reprints of Jack’s original material? Many people in the comments above mention how boycotting current Marvel titles wouldn’t help as Kirby fans are more apt to buy the collections than the monthlies. I fall into that category of collector as well, but it bothers me that Jack’s work has been collected and repackaged time and time again without any portion going to his estate. Marvel is selling quite a number of these “masterworks” on the love and respect fans have for the artists without any compensation beyond the paycheck the artists may’ve received decades ago. Shouldn’t we be asking for some better arrangement there?

    Personally I’d be fine with the ownership and control of THOR in the hands of a major company, as long as that company showed some respect to the creators who gave them these properties nearly fifty years ago for a rather small weekly page rate.

    Would this mean Walt Simonson gets a paycheck for any usage of Beta Ray Bill? No, that would be destructiive to the industry, the point Scott is trying to make. But reprints of his work-for-hire material, made at a time well before such clauses in the Marvel contracts, should see some percentage going to the creator.

    If a comicbook character, or the specific story and artistic flare of a comicbook page, can continue to produce sales for the company decades after it was initially contracted and printed shouldn’t the company show some greater respect for the artist who created it? After all, that’s what our copyright laws were created for.

  29. Chris Duffy says:

    Current DC Comics policy I believe gives creators equity in any character they created. It means money for an appearance in a movie, a comic series, a toy..etc. It’s not a shared copyright, but rather built in payment/recognition for creative work. I don’t know Marvel’s policy.

  30. 1) The Kirby estate should have settled.

    2) They should not have included Spider Man in their suit. That’s a slap in the face to Ditko.

    3) If Jack Kirby wanted rights and royalties to the characters he co-created, he shouldn’t have signed them away. If he didn’t like the check or contracts they wrote him, he could have hired a pro-bono lawyer and forced Marvel to cut him another check or write another contract.

    “And once you do that, don’t you also have to make a similar calculation for Walt Simonson? Because Walter contributed so much to Thor. What about the guy who designed the current costume?”

    Fantastic point, Mr. Kurtz. Kirby’s position at Marvel was nothing unique to comics or most illustrators/graphic designers. Or writers. If you create something for a company, the company owns it.

    5) It’s been said already, but if you really want to help out the Kirby estate, BUY KIRBY GENESIS. It’s fantastic fun and you’re putting money in the pockets of Kirby’s family. Win-win.

    It boils down to hindsight. I’m sure if Kirby had known these characters would later become franchises worth millions (billions?) he would gone off and started his own company.

    But he didn’t.

    Goldman hired him to create some comics with Stan. Kirby did and was paid. Goldman and Marvel then put up the money to publish them. Kirby did not. Marvel invested even MORE money and turned these characters icons with cartoons, underoos, and toys. Kirby did not. Marvel made a lot of money from their considerable financial investment. Kirby made no financial investment and made no further money.

    End of story.

  31. Chris Duffy says:

    In other words, it’s possible Walt Simonson DOES get a paycheck for appearances by Beta Ray Bill. Again, not sure! But that kind of thing IS a standard practice…today!

  32. akachris says:

    Assuming that a Marvel boycott does put a major dent in the Disney/Marvel coffers, I’m just curious what Mr. Bissette would consider a fair offer by Disney/Marvel?

    Because I don’t think Stan Lee or any other creator is getting a percentage of the non-comic book material and I doubt that Disney/Marvel would agree to that. But would $45K per character per movie and movie credits suffice?

  33. I don’t think Greg knows much about the history of American comics and it’s illegal practices…

  34. I think that Greg makes another great point. Maybe Kirby is responsible for creating Thor, but Marvel is responsible for marketing the character and turning it into a international icon.

    It’s actually a lot like the cartoonist/syndicate system with newspaper comics. Jim Davis created Garfield, but the syndicates got it into papers and helped make it known nationwide.

  35. Mark Mayerson says:

    Greg, first of all there is no “Goldman.” It’s Martin Goodman. So much for comics history.

    Second, my standard response to anyone who feels that Jack Kirby was treated fairly is that I hope your employer treats you the same way. I hope that you see none of the wealth you create for your employers beyond your paycheck. That’s all that you deserve.

  36. Mark Mayerson says:

    Scott Kurtz, Jim Davis is far richer than Jack Kirby ever was and Davis only created one success. You can bet that Davis gets a cut of the Garfield TV series, the Garfield movie and the Garfield merchandise. If Jack Kirby had that deal, nobody would be complaining.

  37. R. Maheras says:

    I have mixed feelings about the whole situation.

    On one hand, Jack probably has few greater champions than I of his contributions to the creation of the Silver Age Marvel Universe. In fact, I was (and still am) so enamored by the power of his art and creativity I patterned my own drawing style after his.

    On the other hand, Kirby, moreso than many creators from his era, knew intimately the rules of engagement — rules he and Simon utilized no differently than Timely/Atlas/Marvel when they had their own publishing house, and rules his Marvel contemporary and fellow genius, Steve Ditko, adheres to even to this very day.

    I’ve always had more sympathy for Siegel and Shuster’s case because they were truly babes in the woods when they sold off their Superman rights. Kirby, on the other hand, had been in the comics business for more than 20 years — and had been a co-publisher himself — when he and Stan set off to create much of the Marvel Universe in 1961.

    I am also a copyright traditionalist who is a firm believer in the importance of public domain. I still bristle at the changes made to the law at the behest of publishing/film industry lobbyists — changes that wiped away the 56-year copyright maximum that had been the standard for more than 100 years. In other words, if I were running the copyright show, “Fantastic Four” #1 would be public domain in 2017, and we ALL would own it.

    Where I will readily concede Marvel treated Kirby badly was when they changed their policy about the disposition of original art. Jack was held to a different and unfair standard than his peers, and to add insult to injury, only a fraction of his Marvel art was ever found and returned. The rest was either given away by Marvel, destroyed, or stolen.

  38. If there was a time to boycott Marvel, it was when Jack was still alive. What’s the point now? Besides, the people who screwed him over are gone. Martin Goodman is dead and Stan Lee is no longer actively involved with the company.

    It would be like boycotting all movies released by Universal because the studio won’t give the heirs of Boris Karloff, Bela Lugosi and Lon Chaney Jr. a cut of the profits (a real court case).

  39. I don`t think one needs to boycott or fight against every unfair thing that happens at Disney/Marvel or other companies) in order to be justified in fighting for things that matter to them.

    It`s not all that different from charity. We`ve all got our causes, be it Cancer, AIDS, Animal abuse, Drunk Drivers, Censorship or whatever. Just because you can’t fix everything at once doesn’t mean you can’t tackle problems one at a time, starting with the ones that people care about the most.

    DC is said to be pretty decent in paying money for reprints and who knows what else. I’m not sure when that started, but it might have been after the Siegel/Shuster settlement. Maybe that was the catalyst?

    Either way, getting Marvel to pay Jack’s family could lead to other deserving creators/heirs getting paid too.

  40. @Mayerson

    Whoops. I don’t know why I typed Goldman. I guess I don’t know anything about comics history.

    Additionally, thanks for wishing that I get the same treatment as Kirby. I find his career immensely successful and a lot of credit goes to the companies he worked for. They fully embraced his creations and put them out there for the world to enjoy. His name truly rings out because of his genius and the exposure it got.I could only be so lucky…

    @mario boon

    I’ve read quite a bit on comic book history and I’m very aware of how the industry works. Additionally, I’ve read more than a few books focusing on Kirby (including my favorite, Evanier’s Kirby: King of Comics) and poured over every deposition and document released from the Kirby suit.

    If you’d like to actually offer anything of substance, I’d be willing to debate you.

  41. What many younger people today don’t understand is that in the bad old days (1950s – 1970s), an artist wanting to draw adventure-style comics had very limited options. Newspaper-strip adventures, having once been a staple in the 1930s-40s, had dwindled to a mere handful. The comic-book industry was limited to fewer than a half-dozen publishers, offering deals ranging from starvation page-rates to livable page-rates, all on a basis that granted ownership entirely to the publishers (except for a few comics like the old Dell Star Trek books, which was a case of one media company licensing to another media company — not even Gene Roddenberry actually _owned_ Star Trek.)
    The only option for a cartoonist owning his work was to launch a humor strip, and most of us just don’t have the knack for cranking out gags day after day. We have a different calling, and in Kirby’s day cartoonists with a calling to draw adventure stories had to sign away their rights in order to work and feed their families.
    It is a very unfortunate situation for ALL of the cartoonists who worked in those days (and still work for Marvel or DC today) who created new characters or reinvigorated comics with new styles of art or storytelling. And in the case of truly original and prolific stylists like Kirby, it’s heartbreaking. Just saying, “Well, he agreed to those terms so that’s that,” seems rather callous, even if there is truth to it.
    I sympathize with Bissette’s argument but like others here I don’t currently buy Marvel comics anyway. On the other hand, I DO want to see the Captain America movie, given its favorable reviews. Ah well, I suppose that’s why God invented BitTorrent. ;-)

  42. @Mike Cane: You’re going to have to connect those dots for me, please. The connection between a current minority shareholder in the parent company of Marvel, and business policies held over from decades before that happened, is pretty tenuous.

    I honestly don’t see the point you’re trying to imply. That Steve Jobs is somehow to blame for it? That Jobs is the key to fixing it? That you’ve gotten tired of playing Six Degrees of Kevin Bacon, and now you’re playing it with media moguls?

  43. Greg: So you’ve read up on it, but you just don’t get it? I’d try pleading ignorance next time…

  44. TonyJazz says:

    Jack Kirby is dead, and so is this issue. He was employed by Marvel when he created these characters, and they legally own them.

    It’s the same at my job, and those were the terms that he worked under. Creators nowadays can get better terms, and good for them….as things do change.

    But Jack Kirby is still lost to us, and nothing you can do can bring him back or make him wealthier.

  45. X-fan says:

    How about starting with this…

    Back in the 70′s Marvel got Kirby to sign away his claims to ownership in return for his artwork back. He received only a fraction of that artwork. So why not pay the family the current market value of the remaining artwork that wasn’t returned? This way Disney can give the family money without being seen as paying off the heirs for the rights.

  46. Nobody says it’s fair, but I just don’t understand why suddenly this is being portrayed as some issue about morality when it’s clearly about money.

    Was Jack fighting for part ownership of these characters when he was alive? Or is this now just happening because of all the Marvel movies?

    Did Jack die destitute? I remember the B.S. with Marvel not returning his artwork and that was a real fight. But was he ever fighting with them about getting his ownership back? While he was alive?

  47. X-fan says:

    For all those who feel this should be dropped because Jack is dead, I say go f### yourselves.

    How would you feel if you couldn’t leave your house to your children? Jack worked so hard for his family. They deserve something for his efforts. It is right and just.

    I also want Stan Lee to bow his head in shame and to stop taking credit for Jack’s work.

  48. >> Was Jack fighting for part ownership of these characters when he was alive? Or is this now just happening because of all the Marvel movies? >>

    It’s happening because of the rights-reversion window offered by copyright law.

    >> But was he ever fighting with them about getting his ownership back? While he was alive? >>

    The reversion window wasn’t open when he was alive.

  49. @Jason Quest

    You’re the third person on this thread to insult my intelligence and/or knowledge on the subject simply because of the position I’ve taken.

    Thanks!

    Someone like Scott Kurtz will bring up some valid and logical points and the reaction is “go f–k yourselves.”

    Really, people?

    But a big thanks to Mr. Busiek for showing some class and answering some questions.

    If Kurt has written anything about the subject, I’d love to read it.

  50. The assertions being made here about stuff the people doing the asserting are simply making up are — well, not surprising, because it happens every time this comes up.

    But the people saying Kirby was employed by Marvel so Marvel owns everything are making bad assumptions. Employees aren’t paid on a piecework basis. Employees have taxes deducted from their checks. My agreements with Marvel and DC make it very clear that I’m _not_ an employee, but a “supplier.” The work-for-hire provisions of those agreements have nothing to do with the idea that I’m an employee (I’m not) but with specific contract terms spelled out and agreed to in advance — stuff that, we’re told, has to be signed before work commences because otherwise DC and Marvel don’t own the WFH material we do. And no such agreements were apparently signed before Kirby commenced his various Marvel works.

    This isn’t as simple as “they paid you money so they own everything forever.” That’s not how copyright works in the US (and most other places). In the absence of an agreement that says differently, if you get paid money for the publication rights to something you wrote or drew, the guy who paid gets first-printing rights in English, and nothing more.

    So before you say “He was working for them so they own everything forever,” study up a bit. If that’s what the law said, there wouldn’t have been a case to begin with. But that’s not what the law said, so asserting it on a website ain’t gonna make it so.

    Similarly, asserting that you can’t figure out how to compensate everyone fairly so the only way to go is to keep all the money doesn’t make any sense either. Would giving Walt Simonson money from Beta Ray Bill destroy the industry? Hell, no. DC does that sort of thing.* Marvel does too, on projects created after a certain date. They give me money on certain revenue streams for THUNDERBOLTS and MARVELS already, so the idea that it would destroy the industry to do it for Walter or Jack is just silly.

    I do, however, wholeheartedly endorse the idea of buying KIRBY: GENESIS! And I say that as an objective observer!

    kdb

    *Len Wein has made more money from creating Lucius Fox than from creating Wolverine, because DC shares movie money with creators and Marvel doesn’t.

  51. Kurt,

    the Len Wein factoid is unreal. Thanks for the info.

  52. Great idea that’s thirty years too late.

    Kirby’s role now should be as a dire warning to young creators who want to work for these companies: If they’ll happily fuck over Kirby, you don’t stand a chance.

  53. >> If Kurt has written anything about the subject, I’d love to read it.>>

    A Google search (or maybe a Google Blog search) would turn up quite a bit; this material tends to get repeated over and over, and I’m not always able to refrain from comment (see above).

    But the people who are telling you that you don’t know what you’re talking about may be saying so impolitely, but they’re not really wrong. They may simply be tired of seeing another guy showing up making the same assertions they’ve been seeing for years, without any foundation.

    For instance — the Kirby Estate isn’t suing for royalties. They’re seeking to reclaim ownership of copyright under laws that exist for that purpose, which were not available to Kirby during his lifetime because of when the law came into existence and what schedule it’s able to be used on. That’s not what you seem to be describing.

    The idea that Kirby signed away these rights is in question (at best, Marvel is able to point to documents Kirby signed years afterward, which doesn’t close the door to reclaiming ownership), the idea that he could have “hired a pro-bono lawyer” doesn’t make sense because he couldn’t have, not until that legal window opened. The idea that Kirby’s position at Marvel was nothing unique to comics or most illustrators/graphic designers is untrue, as is the idea that if you create something for a company, the company owns it. It depends on the deal that’s made, and it’s subject to the very kind of copyright law being used here.

    If someone commissions me to create characters for them, and they pay me a flat per-page rate for it, then they don’t own it, I do. Unless we have a specific agreement that says otherwise. If they pay me for “all rights,” then that only lasts for the term of copyright, because perpetual ownership of intellectual property doesn’t exist (in theory; Disney would like to change that). If Congress amends copyright to last longer, then the amount of time they’ve tacked on to the term of copyright doesn’t automatically belong to the company, unless there was a specific agreement saying so. So once that original copyright period runs out, I might well be able to revert those rights. That’s what that law is for — it’s not a loophole or a dodge, it’s the purpose of that law.

    So no, it’s not as simply as you’ve been saying. Even the claim that Kirby was working for Goodman is open to question — he was doing work for Marvel, but that’s not the same thing as being an employee, legally or practically. So anything that stems from the claim “well, he was working for them” is similarly open to question. There’s a lot of ways to work for someone without them owning what you do, after all. Just to pick one example, I have a contract with DC under which I write ASTRO CITY. They don’t own it, though. I do, along with Brent Anderson and Alex Ross.

    I also have a contract with Dynamite Entertainment under which I write KIRBY: GENESIS. I don’t own it, and neither do that. The Kirby Estate owns it.

    “Working for” can mean a lot of things.

  54. jacob goddard says:

    Anybody else want to see Gary Groth pull out his daggers over this?
    Feels like a great opportunity for him to remind everyone that he’s Gary Groth.

  55. jacob goddard says:

    Crap. These means ill have to start going to conventions with Marvel Panels.

    dressed like Sue Storm.

  56. The cruel fact is that creative people are not often good businessmen. That was true of Jack and it was true of Stan Lee, who signed the same “work for hire” agreements. Stan sued Marvel about a decade ago. He lost, of course.

  57. I’m with Steve Bissette on this … but I must say that comic fans never depress me more than when they value a fictional comic character over the real-life people who created them. Shame on you.

    There’s a host of assumptions being made on this thread by people who have no idea what they are talking about. Why now? Because a court just ruled against the Kirby family. No one at Marvel is responsible? The company hired the lawyers who wrote the court filings. Go and read what Bissette (and many, many others) have written about this case (and many, many others) and find a heart and help out.

  58. @Kurt Busiek

    Other than the Goldman/Goodman slip, I have not included any incorrect information in my posts.

    First of all, I never said that the suit was over royalties. I mentioned royalties in reference to Jack not hiring a lawyer and fighting for them at the time of co-creating his characters. I mentioned pro-bono in anticipation of people claiming Kirby couldn’t afford an attorney. I’m fully aware of the fact that the suit is about copyright. But fighting for copyright probably would have been completely out of reach for Kirby in the 60′s which is why I mentioned royalties.

    I agree that we don’t have much in the way of contracts buuuut…we do have copies of Kirby’s ’75 contract with Marvel and it’s a pretty straight forward “you draw 13 pages a month, we’ll pay you $1000 a month” employee contract. He also surrenders to Marvel the exclusive right to secure copyright in that contract. A ’72 contract was cited in the suit quite a bit as well. The same language was used.

    If he signed something like that in ’75 it’s not out of the question to assume his status as an employee (or freelancer) back in ’56 was the same. Why else would he not get a contract that secured ownership of the characters he created, as Will Eisner did with the Spirit?

    As for any “assertions” I may have made regarding Goodman and Kirby’s relationship, I based a lot of it on the depositions of Romita, Steranko, Sinnott, etc. I think that’s a pretty solid “foundation.”

    I’m also well aware of general copyright law and how it affects creators and their claim to characters and stories. I can’t disagree with much of what you said regarding it but I would argue that it’s irrelevant.

    The Kirby estate was working under the assumption that Jack was not a “work for hire” and that he initially owned or had claim to the copyrights. There was no lapse in copyright allowing them to do this…they were attempting to terminate the supposed transfer of copyright…the transfer that Jack initiated in that ’72 contract I mentioned earlier.

    But they couldn’t even get past first base and prove he wasn’t “work for hire” Which means there was no transfer to terminate. No right to copyright for Kirby. Marvel has and will always have the exclusive right to secure copyright.

    As a fan of your work, I’m pretty disappointed that you jumped on the whole “you don’t know what you’re talking about” bandwagon simply because I disagree with you. I don’t doubt that most of the people I’m debating with know a lot about the subject…but so do I.

    That said, I will continue to buy and enjoy Kirby Genesis and re-read Shock Rockets over and over.

    But please, in the future, try not to be so dismissive in a discussion with a fan. It kinda stings.

  59. “I’m pretty disappointed that you jumped on the whole “you don’t know what you’re talking about” bandwagon simply because I disagree with you.”

    Seeing as how in this very same post you work off the assumption that even though no one has seen the 1956 contract in question it must be the same as the 1975 one, it can safely be said that you actually don’t know what you’re talking about. Nobody does. At least Mr. Busiek admits that he doesn’t know what the circumstances were when Kirby was working for Marvel in the 50s and 60s. Anybody that says they do know—don’t know what they are talking about. You should probably get a thicker skin if you’re going to pass off your own speculation as ‘fact’.

  60. @RJT

    One, I didn’t think there was a written contract from ’56. Is there?

    Two, I was merely using logic to come to my conclusion. If Marvel/Goodman/Lee agreed in ’56 that Kirby was owner and copyright holder in the 50′s and 60′s, why would he sign a contract in 72 and 75 that completely contradicts it? It was a question I posed… I never presented as fact. Here’s a quote:

    “If he signed something like that in ‘75 it’s not out of the question to assume his status as an employee (or freelancer) back in ‘56 was the same.”

    I haven’t tried to pass off my argument as fact. It’s just my argument…my interpretation of the facts. And much of it is from, once again, the witness depositions from the actual lawsuit. And they WERE there.

  61. DJ Coffman says:

    I personally know artists who have worked with Marvel and get royalty checks on the dumbest of little things,( tooth
    Brush art) –

    Regardless of the legal issues here, there’s an ethical one. It would be easily corrected by marvel giving some sort of big donation to Kirbys estate or museum, just give a number…. Let’s say 1 million bucks. Or maybe since Kirbys work is so far reaching and te massive amounts he did, some sort of retroactive royalty to his estate as a peace offering. It wouldn’t be an admission of guilt, it would be them saying “hey we give royalties to people who draw and write Jacks character, it’s not really fair that he didn’t get a dime.” -

    Marvel was never able to produce any “work for hire” document Jack ever signed. And yes, you’ll find plenty of interviews where Jack was angry at Marvel, Stan Lee for basically claiming everything and cutting him out. Like Steve bissette mentioned, the goodmans and lee have been trying to rewrite history since their little “secret of comics” pamphlet where they claimed Martin Goodman created Cap!

    If you are a true Jack Kirby fanatic youve likely been doing this boycott anyways quietly. I know i have. I havent spent a dime on Marvel anything for as long as i can remember. Or you can just donate to the jack Kirby museum!

  62. DJ Coffman says:

    Oh, and It might seem silly for the Kirbys to claim copyright on Spider-Man… But in case you might not be aware, it was Jack Kirby who designed the original logo and outfit and brought the pitch to Stan about the radioactive spider and all that (according to Jacks words) he drew the first appearance of Spiderman marvel ever published (cover to amazing fantasy) and Stan moved him off the book because he was drawing Pete too “buff”. They brought Ditko on to rework the whole thing and te rest is history…..

    No logical mind can argue that Jack BUILT marvel and without his imagination, they would have gone nowhere… In fact Jack physically stopped them from closing the doors and giving up. He gave them gold and kept their doors open, all under a gentlemans handshake and a promise for a promotion that they never gave him.

  63. patrick ford says:

    I’ve been saying for years that Kirby’s Spiderman was the best chance for the estate.
    The reasons are that the story as described by Steve Ditko was a reworking of The Fly #1 a story Kirby penciled.
    Jim Shooter said he held a Kirby pitch page for Spiderman while in the Marvel offices. Kirby always offered publishers pitch page character proposals when presenting new concepts for possible use by publishers before beginning work on a story. Kirby creating characters and presenting them to Lee and Goodman for approval would constitute work done on spec. Unfortunately the Spiderman pitch page as well as the Spiderman story pages have not been located.
    Kirby continued the practice of offering new characters by using pitch pages through the 60′s. Kirby offered Marvel the New Gods characters, but being a wise businessman Kirby tried to use the characters as leverage for better compensation. When Marvel ignored his attempts to negotiate a better deal, Kirby withheld the characters, and stopped creating new characters for Marvel. Since Kirby was writing the stories the last year and a half he was at Marvel the new characters largely dry up, and the plots are basic science fiction riffs Kirby could dish out on auto-pilot.
    Stan Lee’s testimony that he in every instance created the basic characters and plots alone and then gave them to Kirby to illustrate was the key component of the judges ruling.
    There is also the fact that Kirby was never paid for his character pitch pages (unless possibly they were the source of pin-up pages, and some of the pasted together covers you see during the early years.
    Lee claims that he paid Kirby and the other artists for rejected pages, and specifically said Kirby was paid for the rejected Spiderman pages. Lee’s testimony that he paid for rejected work was contradicted by every artist who gave a deposition.

  64. Greg,

    First, I believe Kirby had to sign those later contracts to get his art back.

    Second, I am not sure getting a “pro-bono lawyer” to launch such a lawsuit is as easy as you seem to think.

    Third, I don’t see Kurt as having been mean or unfair to you … seemed like what he said was pretty level headed and he backed up his statements with evidence. I think you are taking what he said a little too personally.

  65. I’m sorry … to clarify, “those later contracts” means the ones in the 70s, in which he “gave up rights” to all the Marvel characters. It was, I believe, “under duress” that he signed those.

  66. I have to say, all this Kirby vs. Marvel talk is making me feel like a kid again. It’s like its the 80s and I’m reading Oh,So? in Comics Buyers Guide or something.

  67. @jacob goddard: Oh hells yeah!

  68. Chris Hero says:

    @Greg

    I kinda feel like I’m stepping on a landmine here, but all this talk about hiring a “pro bono lawyer….” You have *no* idea what you’re talking about. It’s like saying the sky is pink and basing an argument around that.

    The way lawyers usually work today in a case like this is they’ll take it on with their payment coming out of the eventual settlement or win. So, you’re not paying them any money up front. I don’t know if that’s how this case was handled or if that option was available to Kirby, but that’s as close to pro bono as you’re going to get on an IP case.

  69. @Chris Hero

    As I explained before, I just added the pro bono part in anticipation of people saying Kirby didn’t have money for a lawyer. That said, there are plenty of attorneys that do work on a volunteer basis. And there are plenty of contract lawyers who work pro bono, too. And that’s what I was talking about in regards to the lawyer…working out his royalties/working arrangement in some sort of a contract BEFORE all of this blew up. I’m not talking about a full-on lawsuit.

    @Nate, no need for clarification…I knew which contracts you were talking about.

    As for the lawyer, I’m really regretting that I added the “pro-bono” part :) Forget about the pro-bono. Anyway, I don’t think a lawsuit would have been necessary. Just Kirby bringing in a lawyer sometime in the 50′s or 60′s and re-negotiating his deal with Marvel for royalties or ownership.

    I understand what you’re saying concerning being “under duress.” I guess it’s possible. Unfortunately for the Kirby estate, the judge didn’t seem to think so.

    As for taking what Mr. Busiek said personally, I thought he was fairly condescending…

    “But the people who are telling you that you don’t know what you’re talking about may be saying so impolitely, but they’re not really wrong.”

    ****

    Just to make sure we’re clear on what I’m saying here:

    -Kirby should have had contracts drawn up specifically detailing his ownership of the characters he was to create BEFORE he did any work for Goodman and Lee.

    -If he didn’t come to the realization he was getting screwed out of royalties until a few years AFTER co-creating the X-Men, Hulk, etc…he should have hired a lawyer to renegotiate his deal with Marvel for either royalties or ownership.

    -In 1972, he was presented with a contract that assigned to Marvel:

    “Any and all MATERIALS, including any and all ideas, names characters, symbols, designs, likenesses, visual represenatations, stories, episodes, literary property, etc., which have been in whole or in part acquired, published, merchandised, advertised and/or licensed in any form, field, or media by the Goodmans, their affiliates, and/or their predecessors or successors in interest….

    Any and all RIGHTS, including any all copyrights, trademarks, statutory rights, common law rights, goodwill, and any other rights whatsoever relating to the Materials in any and all media and/or fields including any and all rights to renewal or extension of copyright, to recover for past infringement and to make application or institute suit therefor, and including by way of example and without limitation Kirby’s claim to renewal copyright in Volume 2, Nos. 1-10 of the work entitled “Captain America Comics,” these being evidenced by Registration Nos. R42….”

    And so on. Anyway, Kirby signed that. He shouldn’t have. No matter what he was trying to get out of Marvel.

  70. Synsidar says:

    The reasons are that the story as described by Steve Ditko was a reworking of The Fly #1 a story Kirby penciled.

    Yes, very little of the original story remained:

    Anyway, in 1958 Joe Simon took his and Jack’s Spider-Man concept and created The Fly who was secretly orphan Tommy Troy who became the adult Fly when he rubbed a magic ring. Simon later said, “Kirby laid out the story to Lee about this kid who finds a magic ring in a spiderweb, gets his powers from the ring and goes forth to fight crime armed with the Silver Spider’s old web-spinning pistol.” Stan asked Jack to develop the Spider-Man idea but along more realistic lines. Jack drew the first few pages but Stan wanted a less “super-hero” approach so he brought in Steve Ditko.

    Steve redesigned the costume, got rid of the web-gun. Steve also recognized the similarity to Joe Simon’s The Fly. He told Stan this and Stan told Steve to redesign everything… only keeping the name Spider-Man. The article says that “Ditko pencilled and inked the premiere Spider-Man tale from a verbal plot provided by Lee.” It concludes with prior quotes from Stan, Jack, and Steve. [. . .]

    Steve: “No one person did or could do it all or claims to be the creator. No one mind or hand created the Marvel-published Spider-Man.”

    Steve’s quote is true but when you consider that Spidey does not get his powers from a magic ring, does not have a web gun, does not have the costume Jack designed for him and that all of the subsequent additions to his character and history (for the first three years) were developed by Stan and Steve, I think it is safe to give Jack props for his input but credit Stan and Steve as the co-creators of Spider-Man.

    The differences outweigh the similarities.

    SRS

  71. >> If he signed something like that in ‘75 it’s not out of the question to assume his status as an employee (or freelancer) back in ‘56 was the same.>>

    Yes, actually, it is. Since he was working for other publishers at the time, he wasn’t under that kind of contract.

    >> Why else would he not get a contract that secured ownership of the characters he created, as Will Eisner did with the Spirit? >>

    Marvel was very, very sloppy about such things until it started to become a problem. We don’t know there was a contract at all.

    >> But they couldn’t even get past first base and prove he wasn’t “work for hire”>>

    The bizarre part of that is, surely it’s up to Marvel to prove that it was, not up to the Kirbys to prove that it wasn’t. Work for hire isn’t simply assumed, it needs to meet certain criteria, and Marvel doesn’t seem to be able to show that it does.

    >> As a fan of your work, I’m pretty disappointed that you jumped on the whole “you don’t know what you’re talking about” bandwagon simply because I disagree with you.>>

    I don’t think it because you disagree with me. I think it because you say and assume stuff that isn’t true.

    >> But please, in the future, try not to be so dismissive in a discussion with a fan. It kinda stings.>>

    I don’t think I’ve been impolite, but being a fan doesn’t mean I have to think you’re right. If I don’t, I should be able to say so.

    >> Kirby should have had contracts drawn up specifically detailing his ownership of the characters he was to create BEFORE he did any work for Goodman and Lee.>>

    No, that’s completely backward. In the absence of a contract, there’s no rights transfer. Without a contract, ownership is assumed to stay with the author. You don’t need a contract to say you own what you create, the other guy needs a contract to say you’re in a work-for-hire relationship.

    kdb

  72. >> I’ve been saying for years that Kirby’s Spiderman was the best chance for the estate.
    The reasons are that the story as described by Steve Ditko was a reworking of The Fly #1 a story Kirby penciled.
    Jim Shooter said he held a Kirby pitch page for Spiderman while in the Marvel offices. Kirby always offered publishers pitch page character proposals when presenting new concepts for possible use by publishers before beginning work on a story. Kirby creating characters and presenting them to Lee and Goodman for approval would constitute work done on spec. Unfortunately the Spiderman pitch page as well as the Spiderman story pages have not been located.>>

    I agree that this claim is a lot stronger than a lot of readers like to think. If Kirby brought to Marvel a character called Spiderman who’s a teenager with spider-powers who lives with his aunt and uncle, then it doesn’t matter that Stan and Steve changed it a lot — they’re still clearly working from what Kirby brought in. They’re modifying it rather than inventing it — so saying that they changed it enough doesn’t really fly, not if they’re still building around that central concept. There are differences, but the similarities are the core.

    I like the modifications they made enormously, but if Kirby brought in concrete material — the pitch pages — and they built off of those, scrapping a lot of details but keeping the main idea and even the name, then they’re building off what he submitted. And if they didn’t pay him, there’s no rights transfer at all.

    Speaking creatively, I’d say Stan and Steve created the final form of Spider-Man and did so very well, but speaking legally, if they started with Kirby’s pitch, they can’t simply ignore the fact that what he offered them was an orphaned teenager with spider-powers called Spiderman, who lives with his aunt and uncle.

    It’ll be interesting to see how the appeal goes.

  73. 1)”I don’t think it because you disagree with me. I think it because you say and assume stuff that isn’t true.”

    Disagreeing with me and accusing me of lying and/or not knowing what I’m talking about are two different things. What have I said that is untrue?

    2)As for Marvel not proving Kirby was work for hire… they did. That’s why they won they case. They did so by:

    A) Witness testimony…co-creator Lee, fellow Marvel artist Romita, etc.
    B) Providing a Kirby-signed document acknowledging he creating the art as work for hire.
    C) Establishing that Kirby only drew art for Marvel AFTER receiving assignments from Lee and that the art was subject to approval and could be revised and edited without Kirby’s consent.

    All this established his working contributed to establishing his working relationship with Marvel as work for hire according to the Copyright Act of 1909.

    The burden of proof did lie on Marvel and they proved their case in a court of law.

    3)What’s backwards about Kirby ensuring his rights and ownership by having a contract drawn up? Especially considering he was working by assignment and a page rate. It’s called insurance.

    “In the absence of a contract, there’s no rights transfer.”

    An oral contract is just as legally binding as a written contract.

    Regarding the written contract in ’72… I ask again, why would Kirby sign a contract that identifies his relationship with Goodman as a “work for hire” if he wasn’t?

  74. Synsidar says:

    They’re modifying it rather than inventing it — so saying that they changed it enough doesn’t really fly, not if they’re still building around that central concept. There are differences, but the similarities are the core.

    Having Parker bitten by a radioactive spider instead of finding a magic ring was a big difference. If you’re going to argue that the general similarities outweigh the differences, then how many characters could there be with super-strength? Take the culinary mystery subgenre, in which a professional chef has a role. All of the culinary mysteries resemble each other in some ways; it’s the nature of the subgenre. The details of the stories make them different from each other.

    Danny Best on the work-for-hire issue:

    The Kirbys also failed on the work for hire claim. Unlike Jerry Siegel and Joe Shuster, the Kirbys were not able to prove beyond doubt that Jack Kirby created any of the Marvel characters outside of Marvel’s scope. Siegel and Shuster created Superman years before it was bought by DC, there was no evidence that Kirby did the same with any of the characters that he worked on at Marvel. Even Neal Kirby stated that Jack Kirby never, “worked on spec”, meaning that he never brought anything into Marvel, instead he waited for jobs to be assigned to him. Kirby also bore none of the risk associated with publishing the Marvel characters – rather Marvel bore that risk. Again, that cuts through the work for hire argument.

  75. >> Disagreeing with me and accusing me of lying and/or not knowing what I’m talking about are two different things. What have I said that is untrue? >>

    I haven’t accused you of lying. And you seem to be arguing that I can’t say stuff you’re saying is untrue unless you agree that it is, but that doesn’t make a lot of sense.

    I don’t think Marvel proved work for hire. Legally, they can’t prove it retroactively, which is what the judge seems to be saying they’ve done. And work for hire requires more than an oral contract.

    Beyond that, I’ll simply refer you to my earlier posts; I don’t have any desire to argue about hypothetical situations that wouldn’t logically have existed.

    Sorry you think it’s rude, but I disagree with you there, too. Have a good evening.

  76. R. Maheras says:

    kdb wrote: “No, that’s completely backward. In the absence of a contract, there’s no rights transfer. Without a contract, ownership is assumed to stay with the author. You don’t need a contract to say you own what you create, the other guy needs a contract to say you’re in a work-for-hire relationship.”

    Not before 1977. Copyright law was very specific. There was only one way you could claim ownership of your creative work: Publish it with a copyright (c) notice and a date on the work. If you left off the copyright (c) notice OR the date, your claim was void.

    To further protect your claim, you were encouraged to register your copyright with the Copyright Office. If you did not, and someone swiped and re-published your material, you could sue them to cease and desist, but you could not sue them for monetary damages. The initial term was 28 years, but you could renew it for an additional 28 years. After that, the work was public domain.

    This means that, under the original copyright law, no creators had any claim to the work they did unless they worked out some separate ownership contract, or profit-sharing arrangement, with the publisher.

    But, as all of us old-timers know, such separate deals were far and few between.

    During the mid-1970s, I actually had a fan publisher remove the copyright notice I placed on one of my drawings before he published it. He stopped doing it after I complained. But, to this day, what he doesn’t know, is that the second, and last drawing of mine he did that to and published was already registered with the Copyright Office on a separate fanzine ashcan I threw together and regsitered immediately after the I discovered the first incident.

    Fittingly, I advertised the ashcan ‘zine, “Hodge-Podge” #1, in HIS ‘zine, which happened to be a dated publication. Because the copyrighted ‘zine was an ashcan, I made the ad look as crappy as I could, but I still got orders for about four or five copies, which I of course, fulfilled. So if you ordered a ‘zine called “Hodge-Podge” #1 back in the mid-1970s, you got a rare ‘zine indeed.

  77. >> If you did not, and someone swiped and re-published your material, you could sue them to cease and desist, but you could not sue them for monetary damages. The initial term was 28 years, but you could renew it for an additional 28 years. After that, the work was public domain.>>

    And in such a situation it’d be subject to the rights reversion the Kirby estate used. It wouldn’t be work for hire.

  78. God I hate comic book people. There is such a thing called “niceness”

  79. Scott Kurtz: “I think that Greg makes another great point. Maybe Kirby is responsible for creating Thor, but Marvel is responsible for marketing the character and turning it into a international icon.”

    I’m surprised to see you using this argument. Who made PvP a success? Who made THE WALKING DEAD a success? Do you really think that the initial inspiration for these is less important than a good marketing campaign?

    Jack Kirby was a success at whatever he tried, at a multitude of publishers. Unfortunately, he lived in a time when he was not able to get anything more than a page rate for his work.

    At the Eisner Award ceremony, Del Connell won the Finger Award and his son came out to explain how Connell had created the entire concept of Space Family Robinson/Lost in Space but never got adequate credit or recompense. These stories are tragically common. In order to be a salesman, you need something to sell. Unscrupulous business people might be good at business, but that doesn’t mean they can create anything.

  80. Well said, Heidi, I agree 100%.

  81. NateInNY says:

    “Oh, and It might seem silly for the Kirbys to claim copyright on Spider-Man… But in case you might not be aware, it was Jack Kirby who designed the original logo and outfit and brought the pitch to Stan about the radioactive spider and all that (according to Jacks words) he drew the first appearance of Spiderman marvel ever published (cover to amazing fantasy) and Stan moved him off the book because he was drawing Pete too “buff”. They brought Ditko on to rework the whole thing and te rest is history…..”

    Unfortunately there is no solid evidence of that. Blake Bells studies of Ditko would seem to prove the opposite. As would countless articles in roughly a dozen or more issues in Comicbook Marketplace. All of which do a pretty good job of showing that it’s impossible to know which of those Amazing Fantasy 15 covers came first. But there is more evidence than not that Ditko was the chief architect behind Spider-Man. The Kirby heirs throwing Spider-Man into the mix just muddied the waters and tainted their case.

  82. Dave Elliott says:

    It doesn’t matter who reworked what on Spider-Man, if the initial start of the concept was Kirby’s he should get credit, for they wouldn’t have had anything to rework.

  83. jacob goddard says:

    Heidi, you seems to agree with the spirit of what Bissette and Spurgeon are suggesting. Will you or this sight be participating in any real way?

  84. Sean Murphy says:

    “I don’t think Marvel proved work for hire. Legally, they can’t prove it retroactively, which is what the judge seems to be saying they’ve done”.
    My reading of the judge’s opinion was that all of the ideas flowed from Marvel (specifically Stan Lee) to Mr. Kirby and the Kirby heirs were unable to prove otherwise. I’d agree that giving Mr. Lee sole credit for the “genesis” of these creations is shakey ground if you look at his creative output before and after Mr. Kirby worked at Marvel. But it was irresponsible in my opinion for the attorney to recommend going to trial without some sort of smoking gun indicating that Mr. Kirby had independently come up with any of these characters.

    What I take from this conversation is:
    1) If people feel that the Kirby estate should benefit from his work, then they could buy multiple copies of Genesis.
    2) It would also, for my money, be reasonable to start a letter writing campaign asking Marvel to provide movie money to the estate based on the success of recent films. Maybe ask that a big check be cut on the eve of the Avengers movie.
    3) I have this sense that, as Mr. Kurtz alludes, whatever Marvel offers won’t be enough for some people.

  85. As excited as I am about KIRBY; GENESIS and the arrangement the creators and publishers have with the Kirby estate, purchasing that comic doesn’t have anything to do with how Jack was treated by Marvel.

    I think it’s a pretty fair assessment that comic fans and professionals feel that there is some kind of obligation for Marvel to give greater credit and reward to the artists who created their on-going properties (perhaps not a legal obligation, but a moral one that we as fans can remind Marvel of through our voices and our dollars as Bissette suggests).

    Is it really too much to ask that Marvel reward a percentage to the creators for reprints of “classic” works?

  86. patrick ford says:

    A couple of things.
    1. It’s unfortunate that people who clearly haven’t been following the case, never read any of Lee’s deposition excerpts, the 100′s of other documents at Justia, or even the judge’s ruling feel the need to offer up strong “opinions” based apparently on things they agree with which they have seen on message boards and blogs.
    2. As Kurt points out absolutely key elements from the Kirby Spiderman pitch page were retained by Lee and Ditko.
    Marvel’s claim that Lee instigated, and directed the creative process is based on Lee’s contention that he alone (in every single instance) created the basic plot and characters then gave them to Kirby.
    The estate needed to counter Lee’s claims that he instigated the creative process alone before ever speaking to the artists. The key to countering Lee’s “I created it and gave it to Kirby to illustrate” claims was to show that Kirby created characters, and brought them to Lee for approval. In other words offered them for sale.
    Them judge is absolutely taken with Lee’s testimony, and quotes from it all through her ruling, mentioning again, and again that Lee in every instance supplied the artists with the basic characters and outlines.
    The judge’s ruling is kind of sloppy, and contains a number of factual errors (Sgt. Fury was canceled, and Lee brought Nick Fury back to life), and odd asides (Lee’s story as to why the Hulk has green skin). In one place she contradicts herself and says Lee and Kirby “co-created” the Fantastic Four. In another place she gives credence to the FF#1 plot outline found in Lee’s old desk at Marvel as proof that Lee created the team alone. Kirby was asked about the suggestion Lee had prepared the outline for him and said, “That’s an outright lie.” There is no proof Kirby ever saw Lee’s outline.
    In the case of Spiderman the pitch page described by Shooter, and the story described by Ditko show a character named “Spiderman.” Any guess as to what Marvel would do if another publisher tried publishing a comic book called Spiderman (no hyphen)? The Kirby character is a teen age orphan living with his aunt and uncle. The teen acquires spider powers, wall walking, spider strength, sixth sense, and uses a mechanical web shooting device.
    I can’t take seriously anyone telling me with a straight face they wouldn’t feel ripped-off if they had presented that basic character to Marvel, and Marvel rejected it, but then published the Lee version of Spiderman.
    We know that Kirby always created pitch pages to present new characters to publishers prior to beginning work on a story. Shooter says he held the Spiderman pitch page in his hands. Susan Kirby says she remembers her father creating the character presentation pages for the Fantastic Four, because she saw him drawing them, and her father told her he would name the Invisible Girl after her. We know that one Kirby pitch page for an obscure villain named “The Boomerang” has survived.
    What happened to all his other pitch pages?
    You would think that by 1969 when Shooter says he saw the Spiderman page at the Marvel offices it’s importance would have been well know, yet it along with the other character presentations have vanished.

  87. Our Man Jack has been the poster boy for caution on the part of creators for years now. his fights for his artwork, for his heads, and his due are the stuff of monuments lining vaulted halls.

    Kirby is the reason lawyering up became something creators had to do. Kirby is the reason Rob Liefeld gets a cut every time Deadpool puts on a ducky float.

    “Kirby’s position at Marvel was nothing unique to comics or most illustrators/graphic designers. Or writers.”

    Jack was monumentally unique. There wouldn’t be nearly the volume of work about him if he wasn’t. And every account I’ve ever heard about his time suggests he was far more than just a cog in the machine.

    “If you create something for a company, the company owns it.”

    Wildly, blatantly inaccurate. If a novelist signs a six book contract with a book publisher, the publisher doesn’t own page one of those books. Not a one. The author owns those pages. The copyright page of the book the publisher may eventually print even says the author owns the book. The publisher is simply the holder of certain territorial rights and options to the publication of the book, even though the author created that work under a contract for the publisher.

    I’d really like to know if there was a settlement deal though. That certainly affects the way I feel about the outcome, particularly in relation to when the settlement is offered vis the Disney acquisition. Was it a fair deal? Was it a kiss-off? if Marvel were to re-offer that deal, as a gesture of repentance for their past sins and to cool the ire of a community, would it be enough?

  88. D.J. Coffman says:

    There’s a really good reason nobody has seen that SpiderMan pitch page since Shooter saw it or brought it up. Destroy or hide the evidence! Ha ha.

    It exists somewhere. Boy would that be a treat to see!

  89. patrick ford says:

    There was no settlement deal. Disney announced it’s intention to purchase Marvel.
    The estate quickly filed to reclaim the copyrights. No doubt Toberoff and the estate reasoned that filing (a notification of pending action, not a lawsuit) would motivate Marvel to negotiate a deal. The moment the Disney purchase was inked Disney called off the settlement talks (claiming the estates demands were unreasonable), and sued the estate in a court known to lean in favor of corporate interests over creative rights.
    It was revealed during the trial that Stan Lee’s contract pays him one million dollars a year (not to mention percentages, and other benefits) until the time of his death. The contract contains a clause which prohibits Lee from assisting any claim which might dispute Marvel’s ownership of the characters.

  90. Heidi: I’m surprised to see you using this argument. Who made PvP a success? Who made THE WALKING DEAD a success? Do you really think that the initial inspiration for these is less important than a good marketing campaign?

    Nope. But I think you’re comparing apples and oranges here. PvP and Walking Dead are creator owned titles and Robert and I have never entered into contracts that would jeopardize our ownership of our IP.

    But I think it’s pretty clear what a marketing campaign can do. It’s pretty obvious what AMC’s marketing campaign has done for his work. Luckily for Robert it will never be a question who owns TWD (the comic at least, I’m sure AMC currently owns the TV rights).

    Jack didn’t create the FF the same way Robert and I created our creator owned IPs. And he didn’t enter into partnerships with publishers in the same way. And we certainly didn’t have 1960′s, 70′s, 80′s and 90′s Marvel Comic and Marvel Characters,LLC (or whatever it is) promoting our work and making them household names internationally. I’m sorry, Heidi, but yes the marketing here matters. That’s what this is all about. The money earned from that marketing.

    I think that the arguments being made here that support Jack seeing revenue based on FF movies would apply to “The Incredibles” as well. Honestly.

    And everyone please remember, I’m just playing devil’s advocate here. I want to understand this too. I’m trying to wrap my brain around it too.

    I just don’t think it’s as simple as “Jack vs. the Evil Corporation.”

  91. R. Maheras says:

    Kurt Busiek wrote: “And in such a situation it’d be subject to the rights reversion the Kirby estate used. It wouldn’t be work for hire.”

    The “new” copyright law has done is made the entire copyright situation almost impossible to figure out from a legal standpoint. For example, it doesn’t clearly define authorship, which makes the ownership of joints works, like many comics, a legal can of worms.

    Joint ownership is said to exist when a group of creators put together a project in such a way that each contribution becomes a integral part of the whole. In such a case, each creator enjoys equal ownership under the law.

    What this means is that if the Kirby Estate successfully gains ownership of anything Jack helped create at Marvel, in each case, any “co-authors” (such as the editor, writer, inker, letterer and colorist) should, according to the vagaries of the copyright law, also have equal claim on the property.

    Good luck sorting all of that out! The number of inkers alone that worked on Kirby’s pencils during his Silver Age stint at marvel is mind-boggling.

  92. TonyJazz says:

    I’m one of many who are posting here who cannot address the legal concerns, as they are complex and I am no expert in that field.

    However, the beck & call for financial compensation to Kirby’s estate seems to be a moral thread here.

    I do enjoy Kirby: Genesis, by the way, but I buy it because it has been so entertaining to read (and the art has that Kirby kink).

    But, back to the moral issue: IMHO I don’t care if the Kirby estate gets another dime. Jack has been dead for nearly 20 years, and he left behind whatever he did. I don’t feel that society owes his heirs anything more than they have. Their relative left a wonderful legacy of artwork unparalleled in the industry.

    I’m sick of ‘trust fund babies’ feeling like the world owes them for something that they had no hand in. Giving his heirs additional money (for work that Kirby was reasonably compensated for already) is not a moral issue. It’s a money chase.

  93. “I’m sick of ‘trust fund babies’ feeling like the world owes them for something that they had no hand in.”

    Did the Board of Directors of Disney Corp. have a hand in creating Thor, the Fantastic Four, the X-Men, etc.?

  94. Greg … part of your argument seems to amount to “Kirby’s heirs lost in court, so they must be wrong.” Or that the courts get it right every time. Do you truly believe that?

    Also, it would seem to me that Stan’s contract, paying him a LOT of money annually and stipulating that he cannot “go against Marvel” in these kinds of suits, would seem to make his testimony somewhat suspect. Isn’t that sort of like having a witness paid to testify?

    Next, I like the idea of supporting “Kirby: Genesis,” but if you really think the money that goes to the family from that in any way compares with money Kirby SHOULD have gotten …

    Tony, it’s not “society” that people are saying owes the family money – it’s the companies profiting off the characters Kirby helped essentially create.

  95. Rupert Giles says:

    F*cking lawyers. F*cking giant monster corporations. F*cking arm-chair quarterback comic geeks.

    The way I understand the situation, Stan Lee gets a tidy annual sum (I think a million a year) for all of his contributions to building Marvel. He gets it because Marvel knew they couldn’t give up their ownership but didn’t want to look like assholes. So its a tiny drop in the bucket for them to keep Stan as their cheerleader (and make the guest appearance in the new movies so fans can’t smile and say, “Hey there’s Stan!”).

    As has been mentioned over and over in this thread, Disney has DEEP pockets and wont budge an inch on settlements, ownership rights, etc. So instead of a Marvel boycott, there should be a public flaying of Marvel and Disney. Dog and pony shows for the heirs on talk shows (ala S&S), youtube movies showing what a moral issue this is and how Jack got screwed and how Disney/Marvel is making bank. In other words, we dont have the muscle to make a boycott have any impact but we can shame the hell out of them. Isn’t comic-con the center of the world? Aren’t attendees considered the hub of pop culture, trend-setters, tastemakers. Make a good enough you tube video and it could go viral overnight.

    Forget the idea of a legal maneuver and go hit Disney where it hurts–their sparking clean reputation. That’s got to be worth a few bucks for the Kirby family.

  96. The Beat says:

    Scott: >> Nope. But I think you’re comparing apples and oranges here. PvP and Walking Dead are creator owned titles and Robert and I have never entered into contracts that would jeopardize our ownership of our IP.

    But you are both living in a world that Kirby never had access to — and when it did, he took advantage of it — i.e. Destroyer Duck, a character he and Steve Gerber created as a benefit for Gerber’s attempt to get back the rights to Howard the Duck. Do you think if Kirby had not had the choice to own he IP that he wouldn’t have?

    >>Jack didn’t create the FF the same way Robert and I created our creator owned IPs. And he didn’t enter into partnerships with publishers in the same way. And we certainly didn’t have 1960’s, 70’s, 80’s and 90’s Marvel Comic and Marvel Characters,LLC (or whatever it is) promoting our work and making them household names internationally. I’m sorry, Heidi, but yes the marketing here matters. That’s what this is all about. The money earned from that marketing.

    Kirby’s character were already household names before the 60s — he had already co-created Captain America. The romance books he co-created were huge sellers and iconic to this day. Again, do you really believe that if Kirby had access to the rights and and opportunities that we all take for granted today, that he would not have been equally successful?

    Scott, I appreciate your open tone here. I think it’s important that these lessons from history be driven home over and over and over again to younger creators, becuase I still see them signing bad deals (*cough* TokyoPop) and living to regret them.

  97. Wayne Beamer says:

    Synsidar: Thanks for the suggestion to check out Daniel Best’s outstanding blog work on the Kirby v. Marvel fight…

    Also, more reasons to loathe Marvel’s handling of Jack Kirby: http://ohdannyboy.blogspot.com/2011/05/marvel-worldwide-inc-et-al-v-kirby-et_29.html

  98. morganagrom says:

    How about if the creators working on Kirby-created Marvel books instead. It wouldn’t have to be a lot, something reasonable, say 1% of all of their page rates and reprint payments. So Brian Bendis, Ed Brubaker, Matt Fraction, Jonathan Hickman, Greg Pak, etc., what do you say?

  99. morganagrom says:

    That should be”

    How about if the creators working on Kirby-created Marvel books paid the Kirby estate instead. It wouldn’t have to be a lot, something reasonable, say 1% of all of their page rates and reprint payments. So Brian Bendis, Ed Brubaker, Matt Fraction, Jonathan Hickman, Greg Pak, etc., what do you say?

  100. Rupert Giles says:

    Morgan, while you’re at it, why not give 1% of your earnings too.

  101. >> How about if the creators working on Kirby-created Marvel books paid the Kirby estate instead.>>

    I don’t think redressing a wrong done to a creator by taking it out of the pockets of other creators is the way to go. Brian, Ed, Matt and crew aren’t raking in millions from the characters Kirby created or co-created.

    Much as I support the idea of buying KIRBY: GENESIS, too, the people pointing out that doing so doesn’t address the actual issue are right. It’s another way to see some money go to the people Kirby wanted to benefit from his work, but it’s not a replacement for Marvel sharing the profits with those who created the characters that have been so profitable.

  102. Rupert Giles says:

    Morgan, what Kurt said.

    Sorry, I think my brain is stuck on snarky. (cutting my nicotine intake is taking its toll)

  103. Rupert Giles says:

    And I totally forgot to ooze fanboy excitement to be on the fringes of this discussion with Kurt Busiek. Holy moley, KURT BUSIEK!! Sweet.

    (Kurt, any inside updates on those Astro City pages that got stolen? Any news on the AC movie???)

  104. Rupert – no update, sorry. I hope those pages get recovered, though. And no new news on the movie. It’s a long, long process and there are no guarantees.

  105. Sean Murphy says:

    “It’s another way to see some money go to the people Kirby wanted to benefit from his work, but it’s not a replacement for Marvel sharing the profits with those who created the characters that have been so profitable”.

    A very reasonable point but (and I could be wrong here) I don’t see an amorphous boycott solving the issue either. Let’s say 1,000 people all stop buying Kirby books. That’s a big number but unless it is tied to some sort of petition or pledge the sales drop could be attributed to any number of things. At least buying Genesis puts some money in their pocket.

    In the end, Marvel has at least temporarily won the legal battle. There will obviously be an appeal and I hope that this time the heirs think long and hard before refusing to come to a settlement. It will be an easier decision if Marvel makes a good offer, which they are more likely to do if fans put the pressure on them.

    So, if you are concerned with how the Kirby estate has been treated, send an email, write a letter, speak at a convention. Tell Marvel how much Kirby’s work means to you and ask them to settle the case so that the family receives compensation for their relative’s efforts. As I said, from what I’ve read I’m not sure what is the right amount to offer but a good taste of the movie money would be a start.

  106. Nod Nolan says:

    wouldn’t the ruling in the McFarlane / Gaiman ruling regarding Spawn / Medieval Spawn negate the arguments re: the Spider-man ownership?

  107. patrick ford says:

    One thing to keep in mind is courts often are sharply divided. If this case was being decided by the United States Supreme Court, as opposed to a single District Court Judge there is a good chance the estate might have went down the same way a recent class-action discrimination lawsuit against Wal-Mart went down. But that SCOTUS ruling was sharply divided as are many decisions made by panels of judges.

  108. Heidi,

    Yeah. If at 40 years old I’m still young enough to need this kind of an education on how things were for Jack and his peers, then think about how little people in their 30s and 20s know.

    Unfortunately no amount of education will keep some young creators for singing bad deals. The desire to “make it” is too great. No matter how much we preach.

  109. Synsidar says:

    The desire to “make it” is too great. No matter how much we preach.

    There will always be a problem when people want to write and/or draw their own material as their sole sources of income. That’s great work if you can do it, but it’s not a reasonable career choice. It’s more like wanting to make money being a professional athlete.

    If making money is the major concern, then the steady income derived from work for hire projects should compensate for the loss of ownership.

    SRS

  110. Scott: Yeah that’s why we can’t shut up about any of this. Ever.

  111. Great dialogue here. (And Kurt Busiek obviously has done his homework on the situation.) I haven’t had a chance to read the depositions yet (including my own), but
    I did want to point out a couple of things that haven’t been mentioned as part of the discussion, to give people an idea of what the Kirbys had to deal with over the years:

    1) In 1969, Jack needed to move his family from NY to the warmer clime of California, due to health/asthma concerns with his wife and daughter. He got a loan from Martin Goodman to cover the moving expenses, which were pretty major for a guy working for a page rate. My understanding is that Goodman called in the loan in 1972, in order to force Jack to sign that 1972 agreement. (Jack wasn’t at Marvel by then, but Goodman was selling the company and needed Kirby to sign.) I’d call that signing under duress. And since he’d already signed it four years earlier, I assume he figured there was no harm in letting the same verbiage remain in his 1976 contract. But there’s no evidence of any kind of contract prior to those, and the work in question was done a decade prior to the earliest known agreement Kirby signed.

    2) Joe Simon has recounted the details of his filing for the copyright on the first ten issues of Captain America in the late 1960s. Marvel forgot to renew them, so Joe did. Goodman basically went to Kirby and said that Simon was cutting him out, and that if Kirby would side with Goodman, they’d pay him the same amount Simon would get in a settlement. Jack agreed. Simon settled for an undisclosed amount, but Goodman secretly specified that only a small portion of the full settlement would be paid directly to Simon, with the rest paid to Simon’s attorney, to be given to Joe separately. In turn, Goodman was able to pay Kirby only the small amount Simon got directly from Marvel, not the full amount of the settlement.

    3) Sadly, a few years ago, Marvel changed its royalty policy, stating that heirs only continue to receive royalties for a few years (it’s either 5 years or 7; I’d have to double-check) after the artist’s death, and then nothing. So Marvel continues to reprint Jack’s work indefinitely, with no royalty payments ever again. Meanwhile, other artists who worked on those same books, who are fortunate enough to still be alive, continue getting royalties. Don’t get me wrong; I think they ALL should get royalties, indefinitely. DC manages to…

    4) Marvel, in the 1990s, was paying Jack’s widow Roz a modest pension for the last couple of years of her life, thanks to Terry Stewart who was in charge then. It was a great symbolic gesture, and shows there’s always a way to do right by people, even after the legal bruhaha of the Kirbys’ fight to get Jack’s original art back. I sure wish Marvel would see the wisdom of doing so now.

  112. patrick ford says:

    John, In what issue of TJKC did Kirby’s pitch page for the “Boomerang” appear. Do you recall who supplied the page?

  113. patrick ford says:

    Goodman sold Marvel to Perfect Film and Chemical in late 1968 not 1972, but Evanier has reported Kirby did require a loan from Goodman to finance the family’s move to California, and Goodman did demand the balance of the loan be repaid in 1972.

  114. Wraith (AKA Blade X) says:

    Here’s one of several full quotes from John Byrne on this subject.

    “Hmm. Let’s take a look at this, shall we?

    Stan described sending a written plot to Jack for the first issue of FANTASTIC FOUR. Roger Stern, when an editor in the Marvel offices, actually found a copy of that plot.

    So — are you suggesting Stan manufactured a plot after the fact, replete with typos? Or that Roger did?

    Next, Stan described a process by which the character of Spider-Man AS WE KNOW HIM TODAY came to be created. Steve Ditko has backed up Stan’s version, and STRONGLY contradicted Kirby’s.

    Are Lee and Ditko in collusion on this? Is it all a great conspiracy?

    Or are you just working WAY TOO HARD at missing the important points?”

    I think that Byrne makes some good points. Also, as Byrne pointed out in another post on this subject, didn’t Kirby run his own company the exact same way that the other companies ran their business?

  115. Harold van Pelham says:

    The estate has a chance on appeal. They have to make the case that they have a triable issue. Kirby’s contributions to comics, pop culture and Marvel’s bottom line are so significant that an equitable exception can conceivably be carved out of the work for hire arrangement. Courts have been willing to look beyond the Reid factors (work for hire indicia) if the freelancer made a significant contribution to the employer (in ’76 copyright cases involving software programming). The ’09
    Copyright Act, the legislation in effect at the time, was Wright Bros era legislation; the impact of work for hire on mass media properties was (aeguably) not in the legislators’ contemplation (the amendments in the ’76 Act addressed this in the “second bite” provisions); Kirby had little choice at the time but to adhere to the work for hire market; the Marvel Method was notoriously collaborative; and Kirby’s sustained contributions to the line was unique. Don’t count the estate out yet. If the appeal is successful and gets the litigation back on track, Marvel will be anxious to settle.  

  116. patrick ford says:

    I would suggest Lee wrote the synopsis for his own use after Kirby presented him character sheets for Fantastic Four and suggested an origin story which resembles Kirby’s Challengers of the Unknown.
    I would also suggest that anyone who thinks a teen age orphan living with his aunt and uncle who becomes a character named Spiderman with spider powers and a web shooting device, bears no resemblance to the Lee Spider-Man is working ‘way to hard at missing the point.”
    And I’m quite happy to see Lee’s fans defend his “I created everything alone” deposition comments. As long as everyone understands that’s Lee’s position, I’m satisfied.

  117. Patrick Ford said:

    “And I’m quite happy to see Lee’s fans defend his “I created everything alone” deposition comments. As long as everyone understands that’s Lee’s position, I’m satisfied.”

    You’re leaping to the wrong conclusion. One doesn’t have to believe the truth of the legal position Lee takes now to defend what Lee did in the past. It’s sufficient to state that he may have provided more input than he’s credited with by the “Kirby Did It All” fans.

    Your scenario re: the synopsis is possible. And it’s just as possible that Lee sketched out his basic ideas for the series and left Kirby to flesh out details. Not to say that Lee was super-original if he did so: the composition of the FF’s members shows more resemblance to SEA DEVILS and CAVE CARSON than to CHALLENGERS.

    I for one believe that, despite his claims to the contrary, Lee did study the competition. I imagine he would’ve had to have done so, since Martin Goodman constantly required him to imitate whatever genre was on the rise at a given time. I think Lee was more likely to have set the pattern for FF than to have turned the chore over to Kirby at that time.

  118. I think what’s more likely is that when Goodman wanted superheroes, Lee went to Kirby, who had a history of creating and redesigning popular superheroes, among other things and had him pitch him some.

    Not doing so would have been like the manager of the Yankee’s telling Babe Ruth to stay in the dugout while he had a swing at bat when the team’s owner really needed a home run.

  119. @ Pat Ford

    The Boomerang concept sketch was in issue #13 of the Jack Kirby Collector, I believe. I don’t recall offhand who sent it, but it’s someone who’s listed on that issue’s credits box. There’s another concept sketch of The Plunderer floating around too, I believe. Maybe a few others.

  120. patrick ford says:

    Thanks John, Somehow I recalled it being in a tabloid sized issue and have been looking in vain for it for months.
    I wonder if some of those pitch pages were cut up and turned into covers, like the Avengers covers with Powerman or the Swordsman. Those look like pin-ups with Heck backgrounds added.
    One of the most affecting portions of the depositions was Susan Kirby describing her dad working on the Fantastic Four concept drawings, and telling her he would name the Invisible Girl after her.
    James, Right there is a pattern isn’t there? FF very similar to the Challengers, Spiderman very much like the Fly. Both Thor and the Stone-Men in J.I.M. #83 having been recently preceded in science fiction stories for DC by Thor and nearly identical looking Easter Island Stone-Men.
    People should think what they like, go carry Lee’s colors on their flag pole if they like.
    In my opinion it’s beyond ridiculous that Lee who was leaning on Stan Goldberg to plot Millie the Model, would stand by and create every single character and plot then give them to Kirby to illustrate.
    Hasn’t the Lee fan contention always been that Kirby was so full of ideas he needed Lee to pick and choose which ones to keep?
    Now Kirby is reduced by Lee to being an illustrator.
    Lee still does lots of interviews. Someone should ask him:
    “Between the years 1958 and 1963 was there even one time when Kirby brought a named character to you which became part of the Marvel Universe?” If so can you give us the name of that character?”

  121. “James, Right there is a pattern isn’t there? FF very similar to the Challengers, Spiderman very much like the Fly. Both Thor and the Stone-Men in J.I.M. #83 having been recently preceded in science fiction stories for DC by Thor and nearly identical looking Easter Island Stone-Men.”

    Not to mention that the Human Torch is very similar to– well– the Human Torch!

    “In my opinion it’s beyond ridiculous that Lee who was leaning on Stan Goldberg to plot Millie the Model, would stand by and create every single character and plot then give them to Kirby to illustrate.”

    I assume that the above is based on a reminiscence by Goldberg, but I’d be interested to hear more about the allegation if there’s hard evidence.

    As I said above, I’m sure busy editor Lee delegated whatever duties he could. But I’ve also seen testimony that he gave fuller scripts to artists who weren’t especially good at plotting their own stuff. I for one don’t believe his statement that he created everything, but I don’t believe Kirby created everything single-handedly either.

    “Hasn’t the Lee fan contention always been that Kirby was so full of ideas he needed Lee to pick and choose which ones to keep?”

    If *Stan* had said that, then his current position would be hypocritical. But I suspect he never said that. I do see instances in some of their collaborations where it looks as if Lee might’ve suggested an idea– “Hey, let’s send Johnny Storm to collge”– and Kirby went along with it until he could drop the idea to pursue stuff that was more important to him.

  122. Rupert said:

    “The way I understand the situation, Stan Lee gets a tidy annual sum (I think a million a year) for all of his contributions to building Marvel. He gets it because Marvel knew they couldn’t give up their ownership but didn’t want to look like assholes.”

    As I understand things, he gets a tidy sum because Marvel gave him a contract for his services that turned out to be more lucrative than Marvel may’ve intended. That’s why Stan had to sue to get his dough a year or so back. The fact that Marvel or its owners tried to stiff Stan indicates that they may not have a problem with being thought of as assholes; they just can’t break that contract.

  123. Dave Elliott said:

    “It doesn’t matter who reworked what on Spider-Man, if the initial start of the concept was Kirby’s he should get credit, for they wouldn’t have had anything to rework.”

    I’d agree if the concept was purely Kirby’s. But there seems to be some complications re the previous incarnation of “Spider Man.” See numerous Internet writeups on “the Silver Spider.”

  124. Can we all just agree that Kirby’s contributions to the success of Marvel comics are innumerable, (separate from his contributions to comics in general, which are also monumental) and that he (or his heirs or legacy institutions or whatever) at least deserves the same credit and compensation that Stan Lee receives?

    I don’t know enough about the legal issues at hand to argue about this, but I do know that Kirby’s name deserves to be more widely known that it is. History is written by the winners, and a boycott (or letter writing campaign, or any combination of methods) might just put Kirby on the winner’s side of things.

  125. Tony DeMaria says:

    I don’t know why the Kirby estate included Spider-Man in the list of characters on which they were seeking the copyright. If Joe Simon is to be believed in his book “The Comic Book Makers” he, along with his brother-in-law Jack Oleck, wrote a script to be illustrated by C.C. Beck titled “The Silver Spider” which was originally “Spiderman.” He changed the name because he felt there were too many ‘man’ characters. He reproduces Beck’s pencils in his book and relates the story of the character being turned down by Harvey Comics in 1954. In 1959 Archie Comics was looking to publish super-hero comics and approached Simon for ideas. He changed the character’s name to The Fly and submitted the proposal to Archie. When Archie accepted the script, Simon gave it to Kirby to illustrate and it ran for several years although Simon only stayed with it for four issues. In 1982, Jack Kirby, in an interview in an issue of Will Eisner’s Spirit, states that he pitched the original Spiderman story to Stan Lee when Lee supposedly asked Kirby if he had any ideas for more super-heroes. Kirby then worked up the story which Lee then rejected and handed over to Steve Ditko, who threw out Kirby’s costume and web gun and added his own touches to create with Lee the Spider-Man who became a hit.

    Whether Kirby first suggested the Spider-Man character to Lee or Lee came up with the character and Kirby then remembered the original Simon creation on which he based his presentation, Kirby didn’t have, IMO, any copyright claim to the character then or now.

  126. Tony, such would be my interpretation as well. One fan (who posted on this thread) once claimed that Simon had given the property to Kirby as a gift, but even if that happened– which is hard to picture in the rough-n-tumble days of comics pitchmaking– I’d question Simon’s legal ability to make such a gift.

    Though I believe that I understand the practical logic that causes lawyers to ask for as much as they can, the inclusion of the Spidey situation could have weakened the Kirbycounsel’s image of Kirby as having created fullblown concepts which he then brought to Marvel.

    Of course, maybe the inclusion made no difference in the long run. But I can’t see how it could have helped.

  127. Tony DeMaria says:

    Gene, IMO, not only did it weaken the Kirby counsel’s position but if it had not been included in their copyright recovery case, they could have possibly used testimony from Simon and even Ditko (if he could have been subpoenaed) to impeach Lee’s testimony concerning his creating the concepts for all the Marvel characters.

  128. T Guy says:

    Gene Philips: ” the composition of the FF’s members shows more resemblance to SEA DEVILS and CAVE CARSON than to CHALLENGERS”

    I would have thought that the composition of the FF’s members shows more resemblance to the Boy Commandos or the Boys’ Ranch.

  129. T Guy,

    As their names suggest, Boy Commandos and Boys’ Ranch weren’t precisely “co-ed.”

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