When Carl Burgos tried to sue for the Human Torch

201210191505 When Carl Burgos tried to sue for the Human Torch

If the juicy, fact filled excerpts aren’t getting you to run down to the bookstore to pick up a copy of Sean Howe’s MARVEL: THE UNTOLD STORY, you must be dead to comics. io9 has a lengthy excerpt that goes right to the heart of the glory days of Lee and Kirby. I cut and pasted five different revelatory paragraphs before to settled on this one, regarding Carl Burgos, the original artist on the Human Torch, and his thoughts back in the 60s of trying to get the rights back.

Burgos was also at that time pursuing legal action against Marvel Comics over the Human Torch copyright. Then, one day in the summer of 1966, his daughter, Susan, watched as he destroyed every trace of his Marvel Comics career-which had to that point been hidden away from her. “I never saw his collection until the day he threw it all out. I just happened to be in the backyard this summer day and there was a whole pile of stuff in the yard. I took as many of the comics as I could carry back to my room, like they were some treasure. He came in and demanded that I give him my comics. . . . I got the impression that he either lost the case or something else had happened pertaining to it.” Again Burgos withheld details from his daughter, but over the years she learned the source of his ire. “I grew up believing that he came up with this fabulous idea,” she said, “and that Stan Lee took it from him.”

In fact, Burgos’s claims may have never made it to court; his dark ritual on that summer day may have instead been reaction to a new Marvel comic book. In early August, Lee and Kirby’s Fantastic Four Annual #4 featured Burgos’s original Human Torch, battling the new teenage Human Torch and the rest of the Fantastic Four. Cover-dated October 1968, it appeared exactly twenty-eight years after Marvel Comics #1-in other words, exactly as the initial twenty-eight-year copyright was expiring. The original Torch had been revived just long enough to ensure their copyright claim-only to be killed again, pages later. “Well, let’s face it,” mused the Thing when Burgos’s creation had been extinguished, “ya win a few . . .’n ya lose a few!” Lee had Johnny Storm, the last Human Torch standing, eulogizing his fallen predecessor this way: “He tried to defeat me . . . and yet, I can’t find it in my heart to hate him!”


For anyone who thinks that the battle over comics copyrights just began, it just isn’t so, but has been a sad part of comics history going back to Siegel and Shuster’s original, futile lawsuits.

On his equally essential tumblr, Howe has posted another ground zero artifact: one of Marvel’s checks with the infamous “voucher” on the back:

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As you know, whether signing checks with this voucher was legally binding has long been a contentious point in many copyright claims; thus far courts have continued to uphold their validity.

Comments

  1. Synsidar says:

    That was a nasty thing to do to Burgos–but how relevant are concerns about control of characters outside the superhero comics field? Creators normally retain rights to their standalone published works, and in so many stories, a single character isn’t the continuing focus.

    If someone writes a disaster story of any length, the focus is on the disaster and its consequences, or on how the disaster is avoided. No one is going to repeat a disaster. In hard SF, a scientific idea is the core of most stories. Romances aren’t serial epics.

    The odds against creating a bestselling work and accepting bids for the rights in other media are high, but it’s not an unachievable goal.

    SRS

  2. “Cover-dated October 1968, it appeared exactly twenty-eight years after Marvel Comics #1-in other words, exactly as the initial twenty-eight-year copyright was expiring. The original Torch had been revived just long enough to ensure their copyright claim”

    Except that’s not how copyrights work. Admittedly, there were weird bits of copyright legislation in the run up to the 1976 overhaul, so I could be overlooking something, but copyright terms expire when they expire, plain and simple. What really matters is if Martin Goodman renewed the copyright to the content of Marvel Comics #1 by that date. Perhaps Burgos took the appearance of his Human Torch as an indication that Goodman didn’t forget, but that should have been obvious when Marvel brought back Namor the Submariner in May 1962.

    Martin Goodman didn’t forget nothing when it came to his company’s copyrights. That’s why all of Timely’s romance comics still aren’t in the public domain, and even obscure Golden Age heroes like Sun Girl and everyone from The Twelve is still owned by Marvel.

  3. Heidi,

    I’m reading the book right now, it’s terrific. Filled with so much info and stories such as the one above. Really mind blowing stuff, the book is really good so far.

  4. Joe S. Walker says:

    “Cover-dated October 1968, it appeared exactly twenty-eight years after Marvel Comics #1-in other words, exactly as the initial twenty-eight-year copyright was expiring. The original Torch had been revived just long enough to ensure their copyright claim”

    Except that it was cover-dated November (no year), and I haven’t a copy to hand, but I’m pretty certain the indicia says 1966.

    Not as impressive as other extracts have been. Apart from a notable sloppiness with regard to dates and other factual details, he’s not very good on the comics’ creative qualities – it’s all hyperbole and cheap sociology, with little information about their craft.

  5. Chris Hero says:

    I’ve found the book to be incredibly fascinating. It’s obvious he interviewed a lot of people and tried getting every side of a story when possible. A lot of the book is heartbreaking. The part about Kirby betraying Simon during his testimony over Captain America being work-for-hire explains a lot about why Lee gave a similar testimony during the Kirby depositions.

  6. patrick ford says:

    When Kirby moved to California in 1969 he had to borrow $2000 dollars from Martin Goodman (5/22/68) to finance his move. Kirby repaid half the loan on Aug. 31, 1968. This was several months before Kirby moved West in early 1969.
    The loan may not have been as it appeared. Roy Thomas said (TJKC #18) right around the same time Kirby took a loan, Goodman made a “loan” to Bill Everett. According to Thomas the loan was actually off the record agreements between Marvel/Perfect Film and Everett. The understanding was the loan would not have to be repaid. The loans to Everett and Kirby also coincided with lawsuits filed by Carl Burgos, and Joe Simon.
    In 1972 Goodman called in Kirby’s loan. This apparently had to do with Kirby becoming aware Marvel had not paid him the same settlement paid to Joe Simon (as reported in TJKC #24) when Simon sued for the copyright to Captain America. Marvel agreed to launder much of the $3750 paid to Simon through Simon’s attorney. Simon has described this as an underhanded tactic used by Marvel/Goodman to avoid paying Kirby his full share.

    Joe Simon commented in TCJ #107;

    GROTH: I understand that you tried to get Captain America back from Marvel?
    SIMON: Oh, I had the copyright. It’s right here. The first ten issues.
    We went through the whole works. Very complicated pre-trial examinations, and Goodman hired a very distinguished law firm, we had a settlement.
    GROTH: But you never secured the copyright?
    SIMON: This is a very complicated story, and it turns out some of the dirty little angles Marvel pulled.
    GROTH: I see.
    SIMON: On Kirby, not on me.
    GROTH: Really?
    SIMON: Very dirty. They got him on their side. Even Kirby doesn’t know the reason I settled. You know how a copyright works if there are two authors? One author renews, the other author is entitled to complete 50% of all negotiations, profits, sales, that type of thing. You know I told them (Marvel) the truth. I told them what they did to Kirby on that Captain America thing was disgusting. Disgusting.

    As pointed out by Joe Simon Kirby would have been entitled to the the same $3750 settlement received by Simon.
    Mark Evanier has said there was another reason Kirby signed the document. Because Evanier will likely be a witness in the Kirby vs Disney suit he is no longer commenting on any issues surrounding the case.

    EVANIER: Basically, Jack signed it under duress and you’ll have to wait for my full-scale biography to understand what that duress amounted to. It’s a very complicated story…

    It’s interesting that the time Simon filed to reclaim the copyright was shortly after Martin Goodman had sold Marvel to Perfect Film and Chemical Corporation.
    Kirby had been trying without success to work out a freelance contract with Martin Goodman (still the publisher; no longer the owner) since early 1968.
    Frustrated in his attempts to negotiate with Goodman Kirby had his attorney contact Perfect Film executives, and traveled to New York from California in an attempt to reach agreement.

    MARK EVANIER: Jack went to New York in December of 1969 to try and work out a new deal with Marvel. He didn’t succeed at that but while there, he agreed to write and draw two issues of a proposed INHUMANS comic and draw the first issue of a planned KA-ZAR comic. He went home and did them. In late January, he was asked to revise them into ten-pagers and he did whatever was necessary to make that happen. He did SILVER SURFER #18 around the middle of February. In between these, of course, he did issues of THOR and FANTASTIC FOUR. The last three stories Jack did for Marvel were — in this order — the “Janus” story that ran later in F.F., then THOR #179 and then, in early March, F.F. #102. After he mailed in F.F. #102, he phoned Stan and told him it would be his last.

    Based on this we can see that Kirby made a concerted effort to work things out by going to New York in Dec. 1969, but was repaid only a couple of weeks later in Jan. 1970 by Perfect Film insisting that if he wished to remain at Marvel it would be only on their terms. According to Evanier even after receiving an “onerous contract” proposal in early January Kirby continued working through March, and had his attorney contact Perfect Film in one last attempt to work out a contract.

    EVANIER: Jack absolutely attempted to negotiate after being offered the contract he didn’t like. He sent his lawyer to do that and Marvel refused to talk to his lawyer. Instead, they told Jack the offer was “take it or leave it.”

    It was in June 1972 over three years after Kirby had left Marvel when he signed “under duress” the agreement with Marvel which offered him the same settlement given to Joe Simon.
    As reported in TJKC #24.

    Kirby was unaware Marvel had arranged to pay most of Simon’s settlement to his attorney. The sum was then passed on to Simon confidentially. In this way Marvel was obligated to pay Kirby only a fraction (less than $1000) of Simon’s settlement, the portion which had been paid directly to him rather than the larger amount laundered through his attorney. Later on in 1972 Simon and Kirby met and Kirby told Simon Marvel had still not paid him.
    A short time later later Perfect Film decided to make Marvel a separate corporation.
    Clearly concerned about Kirby’s role in the creation of the companies characters, and the fact Kirby had worked from 1959 through the early 60’s without a contract of any kind, Perfect Film wanted Kirby to waive his rights to reclaim copyright on any characters he created while at Marvel.
    Perfect Film claimed Kirby was paid for signing the waiver. Kirby said he was paid only the money owed him since Nov. 1969 (the date of Marvel’s settlement with Simon) for the Captain America settlement .
    If Perfect Film was confident Kirby had waived his copyright on the characters in 1972, a person might wonder why in Aug. 1984 they sent Kirby a four page contract full of legal clauses aimed at any claim Kirby
    might make on copyright. The contract concerned the return of 88 pages of Kirby’s Silver Age original art, and was unlike the contract sent to every other artist. The contract was so restrictive that while waiving all rights to copyright, Kirby according to the terms of the contract was placed in the position of storing the art for Marvel until such time as they chose to reclaim it.

    It’s my opinion that Perfect Film had become concerned about Kirby from the moment they became aware of his role at Marvel.
    Martin Goodman had sold Marvel to Perfect Film with the understanding that Stan Lee (a salaried employee; clearly work for hire) was the sole creator of the characters. Once Perfect Film became aware of Kirby’s role, and found he had worked without even the simplest kind of freelance contract they saw Kirby as a threat. As seen with the recent purchase of Marvel by Disney companies tend to value the creations of creators far more than they do the creators.
    Martin Goodman had shown this trait as early as 1941 when he valued Captain America far more than he did the services of Joe Simon and Jack Kirby. Having started out in the Pulp Magazine industry Goodman knew owning the Shadow was a bonanza for Street and Smith, while All-Story got nothing from having serialized Tarzan because Edgar Rice Burroughs had sold only first publication rights. Goodman failed to pay S&K the percentage of sales he had agreed to, and S&K went to work at DC.

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