The Legal View: Jack Kirby and the Siegel Appeal

jimmy olsen 138 kirby
by Jeff Trexler

Last year a federal court in New York denied the Kirby heirs’ attempt to claim the copyright in Spider-Man and other Marvel properties. Why, then, is their lawyer betting the future of the Siegel lawsuit on the same losing arguments?

Over the past few years, Marc Toberoff has become public enemy #1 for corporate copyright holders. His lower court victory in the Siegel case was a legal landmark, not least of all because it could inspire other writers and artists to sue to regain their own creations. This is a prime consideration in DC’s decision to make Toberoff the central target of recent court filings–taking Toberoff off the board could also complicate a Shuster estate lawsuit and dissuade other creators from filing new claims.

Given the high stakes, Toberoff’s appellate brief takes a rather interesting approach. As DC notes in its most recent filing, Toberoff’s filing does not appeal certain core rulings pertinent to the Siegel interest in the property, such as DC’s retention of foreign rights and the copyright in the promotional ads. This arguably means that Toberoff has waived the right to challenge these rulings, handing DC a decided victory in key aspects of the case. Instead, Toberoff stakes the entire appeal on the issue of whether Siegel’s work from 1938 to 1943 was truly work-for-hire.

The limited span of this claim–the focus on Superman & Action comics (plus Superman newspaper strips) up to five years from the publication of Action Comics #1–reflects a five-year termination window by Section 304 of the 1976 Copyright Act. Citing this provision, the lower court held that the Siegel’s right to terminate grants of copyright was limited to a five-year period from April 16, 1938 through April 16, 1943, which includes Action Comics 1-61, Superman 1-23 and the Superman strips prepared for or published by the McClure syndicate through April 16, 1943.

However, the lower court ruling did not automatically give the Siegels actually all of the material within the five-year window. The emphasis on work-for-hire in Toberoff’s appellate brief reflects the lower court’s determination that the Siegel heirs could reclaim only a small portion. In two major rulings in 2008 and 2009, the lower court found that the Siegel heirs could terminate the transfer of copyright in Action Comics #1, #4, select pages of Superman #1 and the first two weeks of newspaper strips–in short, the only material prepared prior to the sale of Superman to DC. Under the terms of Siegel’s 1938 employment contract and its subsequent revision, the remaining material was work-for-hire–and because DC was the corporate author, there was no copyright transfer for the Siegel heirs to terminate.

To persuade the appellate court otherwise, Toberoff attacked primarily on two fronts. One was to assert that Jerry Siegel wrote the material in Action #2-6 prior to his employment agreement with DC, which made him its original co-owner and transferor. Toberoff exploits the six month gap between the sale of Superman in March, 1938 and the employment agreement signed in September. His appellate brief also cites a paragraph that Siegel wrote pitching several of his character’s future exploits, which the lower court characterized these as uncopyrightable ideas.

As for the rest of the material within the five-year termination window, Toberoff reiterates an argument that has long been central his legal filings for both the Siegel and Kirby heirs. As you may recall, the crux of the Kirby claim was the assertion that Jack Kirby was an independent contractor whose Marvel product was not work-for-hire. Because Jack Kirby (allegedly) owned the original copyright in many of Marvel’s leading characters and transferred this material to Marvel, his heirs claimed that they could terminate these transfers and take the characters back.

In the Siegel appeal, Toberoff uses similar arguments regarding work-for-hire that he used in the Kirby case. According to Toberoff, Jerry Siegel’s work was not actually work for hire. Instead, Siegel was an independent contractor selling his own property to DC. Indeed, the similarity in legal arguments is so pronounced at times that it feels as if you are reading Toberoff’s account of Jack Kirby’s work with Jerry Siegel cut and pasted into it, calling to mind DC’s infamous decision to put a different face on Kirby’s Superman.

The net effect of this reasoning is that the Ninth Circuit should see Jerry Siegel in a position analogous to that of Neil Gaiman in the Medieval Spawn case. Because Siegel was an independent creator offering original new elements to pre-existing copyrighted material, Siegel at the very least co-owned all of the original material contained in these derivative works, such as Lex Luthor, Toyman and Superman’s enhanced powers. Accordingly, Toberoff argues, the court should expand Siegel Larson’s copyright interest to include everything within the five-year termination window.

Maybe this will prove to be a winning strategy–I’ve seen courts do stranger things–but it’s a risky gambit.

Unlike Gaiman, Siegel and Shuster were working under rather detailed employment contracts. These written agreements expressly provided that Detective Comics, Inc. was sole owner, exclusive publisher and final editor of all of the Superman material that Siegel wrote. Whereas the Gaiman case had a direct concession of Gaiman’s co-authorship, we arguably have direct documentary evidence that DC owned, controlled, and produced all of the disputed Superman material and related continuity.

What makes the decision to stake the case on Siegel’s alleged status as an independent contractor particularly daring is the recent failure of this argument in the Kirby case. If Toberoff were to prevail, the ruling could buttress his appeal in the Kirby case, either in the Second Circuit or possibly even by creating a circuit split for the Supreme Court to resolve.

That said, as the judge noted in the Kirby case there’s an almost irrebuttable legal presumption that a copyright owner commissioning material under the 1909 Act was the author of the work for copyright purposes. While splits between the Second and Ninth Circuits on the interpretation of copyright law do exist, it is rather bold to expect that the Ninth Circuit will base a sweeping assertion of creative autonomy on a case record replete with documentation of DC’s ownership, financial commitment and editorial supervision.

Of course, another big difference from the Kirby case is that no court has ever awarded the Kirby heirs a copyright interest in the material he created. The Siegel heirs have something to lose–they vindicated their father by winning a historic lawsuit in the lower court, and the appeal could take that away. In my next post, we’ll take a closer look at how DC is trying to preserve its share of the Superman property–and, if possible, win everything back.

Comments

  1. I studied copyright law in college as part of my journalism degree. As such, I’ve read the copyright laws… and they are convoluted. I’m not the least bit surprised that this is such a complicated issue — and I find it fascinating.

    I look forward to reading more about this.

  2. As I wrote in LA Lawyer magazine back in 1996, the Second Circuit determined in the early 1970s that Superman was most emphatically NOT a work made for hire. At the time it was a worthless ruling, but when the 1976 Act extended the copyright term for works under the 1909 Act, & gave the new termination right at the end of 56 years, it became very valuable. How this can still be in dispute is beyond me.

  3. Spider-Man???

  4. Jeff Trexler says:

    @Christine Valada, Esq: The 1974 Second Circuit ruling + its bearing on the current Siegel lawsuit are part of my next post. Now that the comics community has proven itself to be smarter than the average bear on the complexities of copyright & termination, it’s time to hit ‘em with estoppel!

    @M Kitchen: Yep, the Kirby heirs sought–and on appeal, are still seeking–to gain the copyright in Spider-Man. The first section of their complaint includes Spider-Man in the list of properties that Kirby created and granted the copyright to Marvel. It’s a long and tangled tale, including an earlier character named The Fly and the cover of Amazing Fantasy 15.

    http://kirbymuseum.org/blogs/dynamics/2011/11/22/the-never-ending-who-created-spider-man-debate/

    http://kirbymuseum.org/blogs/dynamics/2011/06/30/the-kirbyleeditko-spider-fly/

  5. Yes, Spider-Man.

    In short, Stan says he came up with the character and pitched it to Kirby, then gave it to Ditko because he didn’t like Kirby’s take.

    Kirby says he pitched the character to Stan, but Stan gave it to Ditko.

    Joe Simon backs up Jack’s version and has details about how they came up with the early version of Spider-Man and why Stan gave it to Ditko to redo (legal reasons, Kirby’s version was too similar to Archie’s The Fly for their liking). Ditko backs up at least parts of the Simon & Kirby’s version.

  6. Al™ says:

    I dunno. Someone invented a fictional Marvel character in the 60′s, or someone else did. Or they both did. They both worked for the same company, which paid them a salary or at least a page rate to work full time and so on and so forth.

    I might be missing something, but where does the company owe them more than a pay cheque or a page payment?

    We’re not debating whether these guys invented something extremely valuable for the company, or that they could have made a mint if they had done so while owning their own comic company.

    We are wondering 50 years later if they now have rights to money earned by selling merchandise using that character.

    Sounds like ‘no’.

  7. Darren J Hudak says:

    The Kirby Spider-Man claim has little merit. Simon was working on a character called the Silver Spider with CC Beck. Beck dropped out and Simon gave the script to Kirby. In his book the Comic Book Makers he printed samples of both Becks art and Kirbys, while the art style and costume were different, the script was very much the same.

    Somewhere along the line the name changed briefly to Spider-man, (historical note the 1940′s DC character the Tarantula was also supposed to be called Spider-Man but for reasons unknown that was changed before publication), then finally to the Fly, with which it finally saw print. Joe Simon apparently retained some or all of the copyright of the Fly.

    Kirby suggested the name and character to Stan but nothing Kirby suggested was used. Whether you believe Stan’s version of events or Ditko’s version of events, nothing in the version Kirby suggested saw print at Marvel. The Spider-Man we know and love is a very different character. One thing Lee and Ditko agree on was that Kirby had nothing to do with the final product. In the 80′s Ditko published an essay that made it very clear that he felt Kirby was trying to steal credit from him, (and he wasn’t happy about it). And Joe Simon made it very clear in the Comic Book Makers that he had no part in Spider-Man’s creation and did not understand why Kirby was telling folks Spider-Man was a Simon-Kirby creation that Kirby gave to Stan Lee.

  8. I think the point is there wouldn’t even *be* a Spider-Man had not Kirby pitched it to Lee in the first place. While Ditko did change much of the character, most of the very basic elements remained the same.

    That on it’s own merits co-creation status.

  9. Jeff Trexler says:

    @Jamie Coville One thing to keep in mind, though, is that there can be a difference between what copyright treats as co-authorship and what the comics community views as co-creation.

    For example, in the Siegel case, Jerry Siegel’s pitch for Superman includes a short paragraph describing the character’s future exploits, some of which later take more concrete form in actual stories. The lower court judge found that the pitch merely contained uncopyrightable ideas for stories, which meant that Siegel had no copyright to transfer in those stories and his heirs could not reclaim them in their termination action.

    Please note that I’m not saying that this is necessarily the case w/ the Kirby pitch–I’d need to re-read it with this in mind before setting out any conclusions.

  10. patrick ford says:

    Actually Jim Shooter backs up Kirby’s version. Shooter posted on his blog that he “held in my hands” Kirby’s Spiderman pitch. Shooter also says it was nothing like the published version.
    Well, nothing except: The name, a teenage hero living with his aunt and uncle, spider-like super powers including a spider sense and wall crawling ability, and a mechanical web shooting device.
    Any guess as to what Disney might do if Warner tried to publish a comic book with the name and characteristics found on the Kirby pitch page?
    The crux of Toberoff’s argument had to do with Kirby’s long standing method of pitching characters to publishers in the form of pitch pages. Many of Kirby’s pitch pages were possibly cut up and reformatted as covers, pin-ups, or house ads.
    Toberoff did mention the well known New Gods pitch pages seen, but not purchased by Marvel , as well as a revamped pitch pages Kirby presented for a revamp of Thor (these are not the same as the New Gods pitch pages), and a revamp of Captain America which was rejected and later showed up as the Topps Captain Glory character.
    Susan Kirby (who was 16 in 1961) mentioned she saw her father creating presentation drawings for the Fantastic Four, and her dad told her he would name the Invisible Girl after her. The judge discounted the account of the 16 year old Susan Kirby as the memories of a child, while parroting Stan Lee deposition testimony to such an extent that she repeats word for word factual errors in Lee’s testimony.
    Toberoff ought to be saluted for his persistence. With the current make-up of the SCOTUS and huge corporations like Disney and Warner at the center of these suits, it’s clear any copyright case will end up on the wrong end of a 5-4 decision.

  11. patrick ford says:

    BTW Disney was very clearly concerned that Kirby’s Spiderman could be problem for them and made sure to have Stan Lee claim Kirby was paid for the rejected Spiderman.

    Here is a interesting series of events culled from the dockets at Justia.

    Declarations from Adams, Colan, Ayers, Sinnott, and Steranko, were sought by Toberoff at the very end of discovery, and apparently sought in an attempt to counter Lee’s claims he made sure “artists” were always paid for rejected pages. That issue became important when Lee was questioned by Toberoff about Kirby’s rejected Spiderman pages. The thought being; If Kirby brought a Spiderman character to Lee (a character where the published version retained the name, the teen orphan, the aunt and uncle, the powers, and a mechanical web shooting device), but had never been paid for the pages, then how could the character have been purchased by Marvel?

    Here is how Toberoff described what happened after he had finished questioning Lee about Kirby’s Spiderman.

    (3/28) letter to the judge by Toberoff.

    Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I

    indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested

    a break even though the parties had just recently already taken a break. At this break, on

    my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently

    speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon

    resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which

    Lee immediately responded without any hesitation or reflection.”

    MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
    STAN LEE: Right.
    Q. Did Mr. Kirby get paid for those rejected pages?
    STAN LEE: Sure.
    Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
    STAN LEE: Any artists that drew anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw it, so I did pay them.”

    Here are the artists declarations:

    Joe Sinnott:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/92/
    Dick Ayers:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/91/

    Colan:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/99/
    Steranko:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/94/
    Neal Adams:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/93/

    Quote from Sinnott’s declaration:

    6. There is no question in my mind Jack Kirby was the driving creative force behind most of Marvel’s top characters today including The Fantastic Four, The Mighty Thor, The Incredible Hulk, and The Avengers.
    The prolific Kirby was literally bursting with ideas and these characters and stories have all the markings of his fertile, and eclectic imagination.

    8. I semi-retired in the early 90’s, However, I still ink the “The Amazing Spider-Man” Sunday strip for Stan Lee.

    14. Years later, beginning around 1978 or 1979, Marvel suddenly changed the printed statement on the back of their checks to say that by endorsing the check the artist was acknowledging that Marvel owned all rights in the artist’s work as “work-for-hire.”
    This may well have been the first time I heard the term “work-for-hire.”

    15. In the 1950’s and 1960’s I certainly did not consider my freelance artwork to be “work-for-hire.” Nor did the other freelance artists I knew. No one was thinking along those lines as we worked out of our houses at all hours, trying to make a living by creating and selling artwork. Neither Stan Lee nor anyone else at Marvel ever told me at the time that they considered my work to be “work-for-hire.” I honestly do not believe that freelance artists, or Marvel understood, or intended that the freelance material Marvel bought was “work-for-hire.”
    I declare under penalty of perjury that to the best of my knowledge the foregoing is true and correct.

    Dated March 21, 2011 Joe Sinnott

  12. Darren J Hudak says:

    A teenage aunt and uncle who were not loving, (the uncle had a problem with those young kids today) and the mechanical device was a gun, his costume looked like Captain America’s and he got his powers (all of which had been done in characters before the Spider-Man we all know and love BTW) from a magic ring given to him by a Spider god if memory serves. Also the Uncle didn’t die and there was not the whole “with great power” motif (critically important wouldn’t you say). Take away the name and you have Simon and Kirby’s the Fly. And naming something is not enough for a co-creater credit (just ask the screen writers guild) but if it was the co-creater credit would go to Joe Simon who came up with the name Spider-Man. (Also should point out that Stan used an Aunt May about 3 or 4 times before Amazing Fantasy 15 and Ditko drew characters that look exactly like Peter, May Ben, JJJ, and Norman Osborn in a strip he did for Charlton years before Spider-Man).

    Also Stan’s plot for FF#1 still exist and from the writing of it, it does not seem that he and Jack talked before it was written, so yeah I would believe Stan over the memory of someone who was 16 at the time. That said Kirby deserves a co-creater credit (and in some cases sole creator credit) and all the money that should come from that. (Which should be more then I’ll ever make in a lifetime) I just don’t (and never did) see the point of tearing down his collaborators in the process of doing it.

  13. patrick ford says:

    Actually Kirby’s Spiderman is character who sounds almost identical to the Lee/Ditko Spider-Man. There is no chance DC or any other publisher could get away with publishing a comic book called Spiderman based on Kirby’s rejected character. This point was so important to Disney they had Lee testify Marvel always paid for rejected work. I have no problem with Joe Simon being credited with the Spiderman logo he gave to Jack Kirby when they dissolved their partnership. Kirby had every right to present it to Lee, Simon continued to use things by Kirby he had kept for his own projects.
    Lee’s much touted synopsis for FF #1 was found around 1980 by Marvel editor Roger Stern in Lee’s old desk at Marvel. Kirby said he never saw the synopsis, which reads like a rewrite of the origin of the Challengers of the Unknown. This echos Kirby bringing Lee Spiderman, it’s yet another revised Simon and Kirby concept idea.
    Lee is the person doing the tearing down here. Any doubt about that can be put aside by reading his deposition.

  14. George Bush (not that one) says:

    Patrick Ford’s comments always make me happy.

  15. patrick ford says:

    I want to be clear when I say the Spiderman presented to Lee is near identical to the Lee/Ditko Spider-Man I’m not speaking of the 40 issues featuring the character by Lee and Ditko. This is a copyright matter and copyright involves the same definition of creation Stan Lee has espoused since 1968. The definition used by Lee is key to copyright. Lee says the person who comes up with the basic ideas in the creator. The very basic ideas brought to Lee by Kirby are: The name of the character, spider powers including wall crawling, a web shooter, and a teen hero living with his aunt and uncle. On the most basic level that’s the whole character. Disney knew this, they had Lee testify Marvel had purchased the rejected pages and character from Kirby.
    Also talk about the role of Joe Simon, Jack Oleck, and C.C. Beck has nothing to do with the fact Kirby brought the character to Lee, and when people bring it up it sounds like they admit Kirby did bring Spiderman to Lee.

  16. patrick ford says:

    BTW Disney was very clearly concerned that Kirby’s Spiderman could be problem for them and made sure to have Stan Lee claim Kirby was paid for the rejected Spiderman.

    Here is a interesting series of events culled from the dockets at Justia.

    Declarations from Adams, Colan, Ayers, Sinnott, and Steranko, were sought by Toberoff at the very end of discovery, and apparently sought in an attempt to counter Lee’s claims he made sure “artists” were always paid for rejected pages. That issue became important when Lee was questioned by Toberoff about Kirby’s rejected Spiderman pages. The thought being; If Kirby brought a Spiderman character to Lee (a character where the published version retained the name, the teen orphan, the aunt and uncle, the powers, and a mechanical web shooting device), but had never been paid for the pages, then how could the character have been purchased by Marvel?

    Here is how Toberoff described what happened after he had finished questioning Lee about Kirby’s Spiderman.

    (3/28) letter to the judge by Toberoff.

    Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I

    indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested

    a break even though the parties had just recently already taken a break. At this break, on

    my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently

    speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon

    resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which

    Lee immediately responded without any hesitation or reflection.”

    MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
    STAN LEE: Right.
    Q. Did Mr. Kirby get paid for those rejected pages?
    STAN LEE: Sure.
    Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
    STAN LEE: Any artists that drew anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw it, so I did pay them.”

  17. @Jeff Trexler
    What do you think Warner’s chances are of winning Superman 1 (pages 3-6) and the 12 comic strips back? They seem to have a strong case on those.

    Also interested on your take on the AD claim and the other pieces of work, it seems DC is trying to take whatever chunks they can out of AC 1 & 4.

    Also I have read that families are only getting parts of Superman, but not Superman himself. Will this still hold post 2013?

  18. Jeff Trexler says:

    @Marc (and all the good points above): more is on its way!

  19. patrick ford says:

    From the ruling page 2.
    “Defendants Warner Brothers Entertainment, Inc. and DC Comics
    (collectively, “DC”) appeal the district judge’s grant of summary judgment to Plaintiff Laura Siegel Larson…”

    http://www-deadline-com.vimg.net/wp-content/uploads/2013/01/Warner-Bros-Superman-Jan-10__130110194138.pdf

Speak Your Mind

*