What Would Happen To Marvel If The Kirbys Won?

Firstly, comicbooks is the only area where legal interdiction is needed. The original focus of the clause was aimed at the music industry (it was sponsored by Sonny Bono after all) and the author credits are far more definitive there than they are in comics.

Secondly, this lawyer has only been successful in ONE instance — and continued to propel the case forward, arguing that the copyright should also extend to Superboy, and rights to the Smallville television program, etc. Warner's has been locked in litigation with the families for quite some time, and only recently launched suit against said lawyer because he's clearly locked in a conflict of interest — he's to be paid in a percentage of the character and future royalties, rather than a portion of any cash settlement, and so he will not settle on reasonable offers if he can get extra cash.

Finally, consider that only FOUR cases have come before the courts on comicbook character ownership in the last decade of any note:

• Marv Wolfman sued Marvel over ownership to Blade and lost because it was “work for hire” due to his regular employment at the publisher;
• Joe Simon sued over returned copyright of Captain America and was settled out of court for undisclosed amount;
• Siegel and Shuster's caseS where ownership went back to the families and WB had to renegotiate with them… and put a movie in to the works or pay out more millions next year; and
• the Kirby case, still in announcement.

That's hardly an area of guaranteed profit for any lawyer, and this lawyer is clearly using his ONE victory to look for the other big payday (because, let's face it, no other family is really going to think about pushing for a return unless urged to think of it as a payday).

Dinsey will certainly offer a settlement — either lump sum or annual for a set period, but there will be sticking points as well.

Expect the Kirbys to use Stan's payout as a basis, despite the fact that Stan's $1 million also includes his still employment at Marvel (Stan doing the daily Spider-Man strip and representing the company, while also sitting on the board).

Expect the Kirbys to demand title presence on the credits like Stan has for all titles, while Jack only has it on Fantastic Four — and Marvel may accept this on the condition it only applies to certain books that are clear continuations of Lee & Kirby's time at Marvel. (i.e., add it to Hulk, Daredevil, Thor… but Uncanny doesn't get it because the book changed dramatically with the title change since Kirby was on it).

And the worst will be the demand for credit on the films with an equivalent royalty WHICH DOESN'T EXIST. Seriously: “based on characters created by” is a nod, not a paycheck. Stan only gets money because he's also an executive producer, both by his presence on the Marvel Studios board and by his presence on set to rubber stamp the okay. If Stan said no to a film's set or whatever, it would be changed to get his yes. This would have to be dealt with in motion before the lawyer lets go.

Because, in case you missed it, their lawyer has already forced Warner's into making a new Superman film before year's end — delayed thankfully to the director/writer being stuck on the final Batman — or else lose the rights to make films of the character. Holding up Marvel's film slate would do serious damage to the bottom line out of nothing but spite. :-/

That's incorrect. They sold the rights to Superman in 1938 for $130 and a contract to produce more material.

Demoncat, I think perhaps you've confused Superman with Superboy (an easy enough mistake to make). Siegel pitched Superboy, National passed, Siegel went to war, National started publishing Superboy, Siegel came back, sued, won, and then sold the rights.

So here's a question not on the copyright, which will be decided by a court based on the documentary evidence available which we are not privy to, but on the moral right.

A lot of people say the Kirby's are owed this money out of a moral obligation, that their characters were huge successes and that the Kirby's (or more specifically Jack) deserved to share in that success.

However, assuming that Mr. Kirby was the creative force behind these characters, did he really create them, does he really have a moral right to claim that their current success is because of his creation.

As an example, the Captain America of the 1940's isn't the same character as Brubaker's Captain America, or any other writer's Captain America since Kirby stopped being a part of the creative process on him. The character from the 1940's was a fairly strait forward childrens comic character, the angst and turmoil of the character that defines the difficulties of being a symbol and a man all came later.

I think it's hard to say that they'ld be making a big budget Captain America film right now based solely on the books of the 1940's.

You know I love What Lee and Kirby did in the 1960's to change the world of Comics, but at the end of the day, they were the guys who started the revolution. Comics as a genre are an ongoing process with new reveals all the time by many many writers.

At their Base characters like the Fantastic Four and the Hulk are not particularly original, they both borrow heavily from other older characters and literary traditions, what made them great are the first stories told by stand and jack, and then the hundreds more told by hundreds more writers and artists.

The moral argument is perhaps that Marvel did create these characters as they provided the place where they grew into what they are. The artists and writers were a part of it, but they only provided a piece of what they became, in the end it was the ongoing enterprise of Marvel that gave value to the creations, not any individual creative themselves.

Essentially, if the Fantastic Four stopped publishing after Jack left, they wouldn't have much value today. Their value comes from their being a part of Marvel Mythos, Essentially, if you give Jack Kirby ownership of the characters (on moral grounds not legal grounds) then you have to give John Byrne ownership as well, and everone down to Hickman, and as the concern goes on, the slice that Kirby would get would be smaller and smaller as more and more people add to the legend and the story of the Characters.

Well Thad, to put it simply, Kirby doesn't deserve the millions for projects on which he had no attachment to. He assisted in the creation of characters, but he is no more responsible for the characters than anyone who continued the story after him. That's the point.

Now you can say that without the creation there is no character, but I would argue that what has been profitable for Marvel has been the many new writers and artists who have come along and added to the mythos, not necessarily the original stories. The original stories have a market of course, but where the profit center is in the many redesigns and more adult stories that have come long after Kirby left Marvel.

You can certianly make an argument that Kirby deserves a share of the reprints of his work, but does he really deserve a share of reprints of Byrnes work or Claremonts?

Claremont's X-Men are the ones that are hugely profitable, not Kirby's. Just as Ditko's Spiderman is one that is profitable, not Kirby's. Brubakers Captain America (I was actually talking about the way Brubaker wrote Steve but you make a good point as well) is not Kirby's Bucky. Kirby's Bucky was a very flat standard issue teen sidekick. The Winter Soldier and the New Captain America may share name and history, but is as far from Kirby's Bucky as Luke Cage. Yes, he is part of the framework that Kirby helped build, alongside a great deal of others, but that framework is still being built, is still ongoing, is still evolving, and is as far from what Kirby created as anything.

Essentially, the only thing that has been consistant in the creation of the these characters is the decision by Marvel to risk capital in furthering their stories.

And let's be clear here, the big pie is the movies, movies which have drawn mostly from the Ultimates, Movies that routinely drop and rewrite aspects of the characters stories. Movies that are really creations onto themselves.

Now legally, if the Kirby's have any proof to suggest he did anything but draw the pictures that told the stories written by others, then Kirby has a right to all these things, and the people who actually did the work to make these characters profitable don't.

The Captain America film may be based in the 1940's but story wise it is likely based far more on the mythos that has developed around Captain America since his inception. Kirby hasn't been a part of Captain America or the Fantastic Four any other character for nearly fourty years. That's Fourty years of development, back story, and retcons. The creations of Jack Kirby and Stan Lee may exist in a legal sense but in a creative sense, the characters are the work of others now.

Like I said it's not a legal argument, this is just about who really created these characters, and while Kirby may be their parent, they were rasied by others, and morally belong to them all, and to none of them. The Characters have a life of their own, they grow they change, they live, and morally, Kirby has no more claim to those lives than any other writer or artist.

In the end, a company took a chance on some characters, and kept them alive when they were unprofitable, and when they were not they reaped the rewards. Kirby was a part of that, as was every other artist, and was paid the going rate for their work whether their characters made or lost money.

Essentially, the Kirby Family wants a share in the profits in the characters who through the work of others eventually became profitable. That is their legal right to do so. But is it moral is ti ethical? What about the creations of Kirby that lost money for Marvel I'm sure there were issues that didn't sell, should Kirby have given his check back to Marvel to help recoup the cost on an issue that didn't move? Or we to assume that Kirby was Midas and everythign he touched soled a hundred fold, and all subsequent writers simply live off the largess of the original Kirby creation? That's a rather bold claim, and while legally sound, does not strike me as moral. But perhaps I simply have differnt morals than you.

Actually, I'll just reply to myself, lol. Legally, they probably should get something. Also, Kirby got screwed over so bad in those later years, sticking it to Marvel would be fair turn around. I don't know, it just reeks of desperation to me. I'm just not a fan of people wanting a piece of something they didn't earn.

“The original stories have a market of course, but where the profit center is in the many redesigns and more adult stories that have come long after Kirby left Marvel.”

Bullshit. The first half of Iron Man is a straight adaptation of the original comic.

“You can certianly make an argument that Kirby deserves a share of the reprints of his work, but does he really deserve a share of reprints of Byrnes work or Claremonts?”

Depends. If we're talking about X-Men stories that only involve the All-New, All-Different team, without any of Kirby's characters, then I could see that argument. However, if Xavier, Magneto, Blob, etc. are in them, then yes, those are Kirby's characters.

“Claremont's X-Men are the ones that are hugely profitable, not Kirby's. Just as Ditko's Spiderman is one that is profitable, not Kirby's.”

Huh? Those two situations are completely different. Claremont took over X-Men well after Kirby's run, whereas Ditko had more to do with the creation of Spider-Man than Kirby did. You can't argue that Claremont created the X-Men; you can absolutely argue that Ditko created Spider-Man.

“Essentially, the only thing that has been consistant in the creation of the these characters is the decision by Marvel to risk capital in furthering their stories.”

Marvel risked capital in FIRST publishing the characters. It's not a risk to continue publishing characters that are wildly popular.

“And let's be clear here, the big pie is the movies, movies which have drawn mostly from the Ultimates, Movies that routinely drop and rewrite aspects of the characters stories. Movies that are really creations onto themselves.”

There are certainly elements of Millar's work in the Iron Man movies, but as I said, the origin is a straight adaptation of his first appearance.

“Now legally, if the Kirby's have any proof to suggest he did anything but draw the pictures that told the stories written by others, then Kirby has a right to all these things, and the people who actually did the work to make these characters profitable don't.”

First: I'll grant you X-Men, but it's absurd to claim that Kirby didn't make the Fantastic Four, the Hulk, or Captain America profitable.

Second: As ha been stated about a dozen times in the thread already, the Kirby heirs are, in most cases, only entitled to 50% of the rights; Marvel keeps the other half.

“Like I said it's not a legal argument, this is just about who really created these characters, and while Kirby may be their parent, they were rasied by others, and morally belong to them all, and to none of them.”

You seem to be having trouble with the distinction between creating something and developing it.

John Byrne did not, in any sense of the word, create the Fantastic Four.

“morally belong to them all, and to none of them. The Characters have a life of their own, they grow they change, they live, and morally, Kirby has no more claim to those lives than any other writer or artist.”

All of which is fine, and a great argument for the public domain. But it doesn't explain why Bob Iger deserves to pocket a fat check while Kirby's family gets nothing.

“Essentially, the Kirby Family wants a share in the profits in the characters who through the work of others eventually became profitable.”

Again, you are trivializing the work of one of the most creative and most prolific minds in comics history. This notion that Kirby's work was inconsequential and unimportant is just complete nonsense. You don't seem to have any idea how much work the man did and how much of it is still present in these characters.

“What about the creations of Kirby that lost money for Marvel I'm sure there were issues that didn't sell, should Kirby have given his check back to Marvel to help recoup the cost on an issue that didn't move?”

At this point you're just descending into utter idiocy.

“Or we to assume that Kirby was Midas and everythign he touched soled a hundred fold, and all subsequent writers simply live off the largess of the original Kirby creation? That's a rather bold claim”

It's also a straw man. To hell with this, I'm done.

On the one hand:

From what I've heard of Jack Kirby, I do suspect that he'd prefer that, if anyone was making money of characters he created or co-created, it was him.

On the other hand:

In one of his afterwords to the JACK KIRBY'S FOURTH WORLD Omnibuses, Mark Evanier tells of Jack reading a comment about continuing one of his former creations “in the Kriby tradition”, and responding with something like ” The Kirby Tradition is to create your own characters!”

Which adds at least a touch of irony….

What is the basis or evidence for your interesting statement that there were no work for hire agreements on the back of Marvel checks until 1978?