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What Would Happen To Marvel If The Kirbys Won?

Disney’s legal memo supporting Marvel’s position against the heirs of Jack Kirby this week got me thinking. Not, necessarily, about the legal positions adopted by all parties involved, but more along “What If” lines (Somewhat fittingly). Namely, what if Kirby’s heirs won?

For those coming in late, the heirs of comic creator Jack Kirby are suing Marvel and Disney to terminate the copyrights of Fantastic Four, Iron Man, Ant-Man, the X-Men, The Incredible Hulk, The Avengers, Thor, Nick Fury, Spider-Man, Rawhide Kid and material created between 1958 and 1963 for Journey Into Mystery, Strange Tales, Tales of Suspense, Amazing Adventures and Tales To Astonish, a suggestion that both Marvel and Disney, unsurprisingly, take issue with. But what if, somehow, they got what they wanted?

Marvel, of course, would be in trouble, not only losing the ability to publish a large percentage of their line (Even assuming that non-Kirby characters and series spun out from the Kirby series – X-Factor, War Machine, and so on – would remain with Marvel) but also having to surrender the rights to almost every active movie project at multiple studios (No surprise, perhaps, that Marvel is moving forward with a movie based on Brian K. Vaughan’s Runaways, which will not be affected by any ongoing lawsuits coming from the Kirby heirs’ demands), effectively – if, presumably, only temporarily – wiping them out as a multimedia power altogether.

Perhaps more worryingly, what would Disney do with a Marvel devoid of the reasons it bought the company in the first place? It wouldn’t just be that the big name characters would be gone, but a large chunk of the mythology responsible for the remaining characters would be missing as well (Remove the Avengers, FF and X-Men from the Marvel Universe, and what are you really left with?) – Would Disney really care about a company whose flagship characters are Luke Cage and Captain Marvel, or care enough to not think about offloading the stripped publisher to someone else?

All of this assumes, of course, that – were they to gain the rights to all of the characters and concepts they’re asking for – the Kirbys wouldn’t just license them back to Disney/Marvel for some likely-to-be-undisclosed sum, which is admittedly a massive assumption; no matter how bitter the legal arguments may get, it would be within both parties’ best interests to not completely burn bridges or destroy the possibility of working together at a later date. I mean, aside from DC/Warners, who else would have the ability (read: money) to offer the Kirbys as good an offer as Marvel/Disney, and from Marvel’s point of view, they get to keep old material in print and not require a Crisis-style continuity reboot or some similarly inventive workaround. It’s these two last points that makes me think that it’s unlikely that this subject will get resolved in any way other than a generous settlement before it ends up in court – It’s in both parties’ ultimate best interests, after all – as much as the vulture in me longs for a long and bloody legal battle full of disclosures and stunning revelations.

But, just imagine – What do you think would happen if Marvel didn’t have the Kirby creations to play with?

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Comments

  • Jones

    Since Marvel still has Stan Lee's 50% of the rights, they won't lose the characters no matter what happens with Kirby's heirs. They'll still be co-owners.

  • Alex Krycek

    I am sick of these who had nothing to do with an artists business practices suing over work for hire rights. Why not sue a Fortune 500 company your grandfather worked at for not giving him stock options, that are now worth millions?

  • drew

    So in the What If scenario, the Kirby heirs ruin a company, putting people out of work in Marvel and on those movies. Nice way to help the economy. More unemployment. The Kirby heirs better be careful or some serious resentment will come their way. Look at what people are doing in those Tea Parties. The Kirby's must be aware of the consequences and hope to look for the money settlement or be the destroyer of people's lives.

  • craig w moore

    I am sure this could become very complicated, While it seems Stan Lee was the creator of the concepts ( powers, origins,etc.) of these characters. Jack Kirby was responsible for the characters appearance ( costumes, physical appearance, etc.) Stan being the only one who could truly comment on the original creative process should come forward. It seems to me these characters are truly the intellectual property, and co-owned by the Lees and Kirbys.

  • AirDave817

    It's all about LEGACY. You create something, and have the potential to be compensated for it. That compensation, or potential compensation, can in turn be passed on to your kids, or your kids kids. In a crap economy, when things are getting more and more outrageous, your kids and their kids could have something. Isn't that what the heart of the Kirby argument seems to be. Isn' that what the Superman argument seems to be.

  • http://www.law.depaul.edu/students/organizations_journals/student_orgs/lawarttech/masthead.asp Brian Bacher

    2 issues preventing your “what if” scenario:
    1 – As Jones mentioned, for anything co-created by Stan Lee (or any other Marvel employee), Marvel would retain co-ownership. This means the Kirby heirs couldn't stop Marvel from doing anything with the works (or disrupt any in-progress movie projects). However, the Kirby heirs would be entitled to a share of the profits generated from any of those projects.

    2 – Marvel owns the trademark rights associated with these works. This substantially limits what the Kirby heirs would be able to do with any copyrights completely reclaimed (i.e.: anything that Kirby created 100% by himself, if there are any).

  • Metron

    This is a pretty stupid article, starting with its misunderstanding that the Kirby family is suing to reclaim only Jack's share of the copyright. This would mean, at worse, that Marvel could do right on publishing and licensing everything they're already publishing and licensing. The only difference would be that the Kirby Estate could also license and publish the material to which they got back half the copyright.

    But of course, it probably won't come to that because Disney will write the estate a large check and cut them in on future revenues and that will be that.

    Actually, there are plenty of companies who would bid for the Kirbys' rights because what is of value here is the merchandising and the dramatic rights, not the publishing. The right to publish Iron Man comic books doesn't make anyone that much money. But any big movie studio in the world would want the licensing and merchandising. Disney/Marvel would be in the best position to exploit them since any other purchaser would just butt heads with them and it would be in the best interests of Disney/Marvel to control the entire package.

    So the answer to the “What If” question here is that Disney/Marvel cuts the Kirby family in on the financial action and nothing else changes.

    As for the commenters here, Alex Krycek is presuming the material in question was created work for hire. The court may well rule otherwise. They did in the Jerry Siegel case which was handled by the same lawyer representing the Kirbys. The situation here is not analogous to stock options. At most, what Jack Kirby sold Marvel was his share of a copyright that was supposed to expire in a few years. When Congress extended the term of copyrights, they gave creators or their heirs the right to recapture copyrights so the creators or their families have just as much right to the added years as the company.

    drew is wrong that Marvel would in any way be ruined. The owners might have to share their profits with the Kirby family.

    Craig W Moore is wrong that Stan Lee created the concepts and Kirby created the visuals. Kirby obviously had a lot to do with the concepts and Lee said so in many interviews, though not lately. It's also a distinction that has no legal significance even if it were true. A share copyright is a shared copyright regardless of who did what.

  • thomas

    Re: Drew
    You wrote- “So in the What If scenario, the Kirby heirs ruin a company, putting people out of work in Marvel and on those movies. Nice way to help the economy. More unemployment. The Kirby heirs better be careful or some serious resentment will come their way. Look at what people are doing in those Tea Parties. The Kirby's must be aware of the consequences and hope to look for the money settlement or be the destroyer of people's lives.”

    So the little guy doesn't matter? Your argument implies that we should always side with corporate interests because we don't want the economy to be adversely effected. But if a corporation is doing something wrong there has to be recourse. Using your logic we wouldn't prosecute Enron because there is the possibility that people would lose their jobs.

  • A Guest

    I would LOVE to see Kirby's characters taken away from Marvel. Then Marvel would be forced to begin creating NEW heroes, something that has been lacking in the last forty years.

    But I fully expect Marvel will settle out of court, giving Kirby's heirs a bunch of money to go away.

  • demoncat

    Marvel would wind up one dumped by Disney and not being marvel at all proably not publish as much. or go out of business . but if the Kirby heirs did win Disney and Marvel would be working something out which would be a big chunk of Royalties. to keep using jacks creations other wise Marvel would wind up a smaller universe. and Disney may wind up trying to undo the merge.

  • Colonel Lee

    At the time of the creation of the Marvel Universe, back in the early 60's, Stan Lee himself has said that he figured his comics work was all over and done. But he had Jack Kirby to collaborate with. Which led to the creation of what is now a multi-billion dollar entertainment empire.

    Empires don't like to recognize or credit the genius individuals that made them. Empires like to take all the money while the geniuses and their children struggle to survive on crumbs the the table. Jack Kirby deserves full credit for what he created.. his heirs deserve the compensation that Jack would have given them had he been able to receive it while he was alive.

    Hopefully our legal system can do the right thing.

  • jmurphy

    The gov't changed the rules of copyright. As a result, the gov't is saying “this isn't the deal you agreed to 50 years ago, it is a different deal. Therefore you get to renegotiate.” So it is not quite the same as your example. Also, the heirs are not “suing” anyone. The heirs sent “notice to terminate copyright”, as per their new right to renegotiate. To be fair to you, however, these points could have actually been in the article.

  • thomas

    So the little guy doesn't matter? Your argument implies that we should always side with corporate interests because we don't want the economy to be adversely effected. But if a corporation is doing something wrong there has to be recourse. Using your logic we wouldn't prosecute Enron because there is the possibility that people would lose their jobs.

  • el_caifan

    Hey Stan Lee never created a character at Marvel. He took credit as cocreator when all he did was script a comic book that was already finished by King Kirby. History shows that he never created anything without King Kirby. Like to think of Lee as that guy who does none of the work and has the nerve to take half or all the credit. Stan Lee is a joke!

    el_caifan

  • Dave

    “This is a pretty stupid article”

    Well, consider the writer…..

  • LordGanja

    el_caifan you're talking out of your arse!
    To denigrate Stan like that just shows what little knowledge you have of his work or the early Marvel years.
    & this whole article is plain stupid – the Kirby's can't stop Marvel publishing because Stan signed over his rights to them.

    To all the kirby-fans – can you pls explain their pursuit of Spider-man? How on earth can they claim Kirby co-created it when everyone & his dog knows Ditko completely redesigned the concept after Kirby's Spider-boy (mystic ring gives powers) recycled 'Silver-Spider' garbage was rejected by Stan.
    All Kirby did was the cover when Stan rejected Ditko's original – which has since been published many times. Are they claiming coz Kirby did the cover he 'created' Spider-man?

    Massive massive respect for Kirby and his creations – a unique talent who deserves all the credit & monies due to him or his heirs. But don't knock other talents just to 'strengthen' kirby's case.

  • anon

    They asked for the Spider-man rights as a bargaining chip, I don't think they actually expect to win them. But when it comes time to hash out a deal, they can drop the Spider-man request as a concession to Marvel. Always a good idea to ask for more than what you want in this sort of scenario, so you can fall back on your true objectives if need be.

  • anon

    I heard a great conspiracy theory that Disney/Marvel already have a deal worked out with the Kirby heirs, the termination of rights filing is just for show, the end result will be that Disney/Marvel capitulate and grant them co-ownership (including Spider-man), which will void any deals that Sony, Fox, etc. have for Spider-man and X-Men movies and whatnot, and Disney and the Kirbys will own film rights for the entire Marvel universe and rake in the dough.

    It's possible that Disney already had this worked out before they pulled the trigger on the Marvel acquisition, since at the time a lot of people wondered how they would make any money when Sony had rights to make as many Spider-man movies as they wanted to (this is also probably why the other studios are rushing to put out X-Men: First Class and the Spider-man reboot, before the rights change hands).

  • Dante

    If you don't think that's already happened at Disney – you are out of touch….As someone who has worked for Disney, let me tell you that they're pretty horrible in sharing the wealth and credit with creators of any kind.

    I actually like to think that the Kirbys will employ more people (and not just the same people), and not be such greedy corporate pigs (Bob Iger made 100 million last year), so there will be more money spread around.

  • CoryStrode

    Because work for hire is a legal term, and one that did not exist until the changes in copyright law in 1776. The heirs are using provisions in the most recent law passed regarding copyright, as is their legal right.

    Besides, if you want to be “sick” about something, how about being sick over the fact that out of over 10,000 pages Kirby drew for Marvel, he got back less than 100. THAT is sick.

  • CoryStrode

    The biggest difference is that Stan was an employee and work on-staff, while Jack was freelance. That means the employment and copyright laws are different for them. Let's also remember that Stan had to sue Marvel to get them to live up to the contract he signed in the 90's for his royalties, etc… That never seems to get brought up in these discussions.

  • CoryStrode

    Because you have your facts wrong…Kirby did the first attempt at a Spider-Man story (5 pages were penciled and never used) and Stan didn't care for how Kirby drew it, as well as the ring elements being taken out, etc…

    Ditko to this day does not claim that he created Spider-Man but that there were MANY people involved. His exact quote is: “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.”

  • Tom Romano

    What people seem to forget is, (and you'd have to check with Mark Evanier on the accuracy of this) Kirby went to Marvel looking for work.(This during the early 60's) Stan was closing up shop at that time(supposedly).Kirby told Stan that he had some ideas and that he could make them work.Now, (supposedly) The Fantastic Four was the creation of this meeting/conversation. Now, WHAT IF Stan convinces Kirby that Marvel (Timely) is out of business.He tells Kirby to take his ideas elsewhere. Then Jack goes over to DC Comics to peddle his ideas…….The Marvel Universe NEVER comes into being…..

  • kandouerik

    That's why I don't support the Kirby's Heir's lawsuit. Besides the fact that they are over reaching, including Spider-Man in their suit – it just all sounds like a big mess where the Kirby's Heirs are hoping to win everything, when in reality a settlement would be in both parties interest. I don't think the lawyer is serving them well, continuing the lawsuits. (He went from Superman right over to Marvel) Settlement is the best possible outcome, and a bit less harsh on the families themselves.

    Plus, I don't know, I just wish they would settle and be content that the characters Kirby created are in such good care. That's a fan's perspective, though.

  • absherlock

    Funny, I think it's all about RESPONSIBILITY. You create something and you have a choice in how you wish to be compensated. You can have immediate gratification, for which there is more guarantee of upfront payment but will pay you less in the long run or you can have delayed gratification, where you aren't guaranteed upfront payment but the long-term payouts are astronomical. Kirby's legacy is the years his family ate and had a roof over their heads because of the work that he did.

  • jStamford

    He Actually recieved closer to 1900 pages of his artwork back. Still, A FAR cry from his output while working for marvel.

  • Maxwell Ferris

    Okay anyone that sides with Kirby's heirs is a jackass…reason being they have done nothing to earn the rights. They need to learn from Warren Buffet and his children. He gave his three children 600 shares of Berkshire hathaway when they turned 19 and nothing else saying that you aren't entitled because you came from the right womb. People use to believe in hard work and earning for themselves. Now people all want handouts. Marvel has developed and nurtured these characters for decades giving us readers enjoyment.

  • http://twitter.com/marvelboy74 Todd Ramsey

    There really needs to be a distinction between names of titles and actual characters, as the Avengers aren't just Thor, Hulk, Iron Man and Ant Man anymore. Not that the Avengers books had any of those characters until recently. The X-Men is more than Xavier and the original 5. Granted, brand recognition says a lot for those titles and Emma Frost and the Hellions doesn't scream top 10 book. And to say that the flagship characters are Captain America and Luke Cage, well that is good as they are popular and long running characters. Marvel has plenty of other characters even if they have to cease publication of the FF, Avengers and X-Men titled books for a while. I guess Marvel should not have killed off Alpha Flight though. :-)

  • Brian

    Marvel will just have to publish a bajillion Wolverine and Deadpool books. Oh wait….

  • Ben Lipman

    “I am sick of these who had nothing to do with an artists business practices suing over work for hire rights. “

    They had nothing to do with their father, who was ripped off by Marvel?
    His creations should have belonged to him, and they are his heirs… why would they not try and regain that which legally belongs to them?
    Do you somehow think Jack wouldn't have done this?

    “Why not sue a Fortune 500 company your grandfather worked at for not giving him stock options, that are now worth millions? “

    That analogy doesn't even come close to working.

  • Metron

    It looks to me like most people side with Kirby's heirs. I don't mean on these message boards where us anonymous people can say any stupid crap we like without owning it. I mean in real life. 100% of the professional comic book writers and artists I've talked to support the Kirby heirs. They've seen how much money the Marvel characters have made for people who had nothing to do with their success but just happened to get hired by the company that bought the company that bought the company that bought the company that hired Stan and Jack. They've also seen how much Stan has made and compared it to what Jack made and that seems damned unfair to them.

    You have the Warren Buffett story all wrong. He believed in not leaving everything to his kids but he also didn't believe in leaving them nothing. The quote was “I want them to be able to do anything but not able to do nothing.” Kirby was paid so poorly by Marvel that he was not able to leave his kids anything.

    If you think the right of inheritance is wrong, tell me that you would turn down the estate, the house, the money that your parents left you. Tell me also that you would rather it went to total strangers.

    Yes, the Kirby kids did not have anything to do with the creation of these characters. Neither did Robert Iger at Disney. I don't know why you want his salary to go from $300 million a year to $350 million a year and think that's fairer than the family of Jack Kirby getting a few million.

  • Metron

    You're right that a settlement would be in everyone's best interest.

    I'll bet you the Kirby family is willing to settle and Marvel isn't. The executives there don't want to make a few million less a year in take home pay.

  • JD

    Marvel never treated Kirby right so frankly I'd be happy for the heirs, who, one would hope would simply get a share of the profits as Kirby should have gotten. I couldn't care less if Marvel/Disney corporate heads received less profits because of this as they would simply have to share ownership of these characters. Not the end of the world unless you're greedy and work at Marvel/Disney.

  • Boomtuber

    Who said Stan Lee had any rights over these characters? Lee doesn't have any more rights to these than Jack Kirby; the rights belong 100% to Marvel. Lee settled for a chunk of money over Spider-man movie profits, although he can rightly pose as co-creator of the many characters implied in the law-suits.

  • Big D

    name one character made by any company in the last 30 years that has had the same lasting popularity to have an continuous ongoing title that is a both a top 50 seller and has good merchandise potential.

    let me give you a hint, there isn't one, not a one.
    you may want new characters but people as a whole want tradition.
    Batman, Superman, Spiderman, Hulk, ect will always do better because they are Icons we grew up with. Spawns and Deadpools are a dime a dozen and no one will care in 5-10 years and your back a square one.

  • redvector

    It's nice to speculate that the Kirby's might win but it's not going to happen. Disney was fully aware of the Kirby situation before they bought the company. If there was a possibilty at all that the Kirby's had a snowball's chance in hell they would have walked away from Marvel early on in the the purchase process.

  • A Guest

    Apparently you think we disagree. But we're in total agreement that Marvel hasn't created any good popular characters in the last 40 years. (The last being Wolverine, 35 years ago.) But that's only because they haven't been forced to.

    Not while Marvel is invested in sucking every last drop of blood out of Kirby's creations.

    I think they should pay. PAY BIGTIME. Bwa-ha-ha-ha!

    But seriously, I'd rather see Kirby's characters die a natural death than see Bendis and Marvel continue destroying them. The current versions of Tony Stark, Thor, Captain America, Hulk, the Avengers, etc. are sad, pale imitations of what Kirby created.

  • KTB

    If Roz Kirby is a part of this lawsuit, and I believe she is, she's firmly within her rights to sue. She handled Jack's business affairs for decades. She worked with him on many things. She certainly not an heir trying to benefit for doing nothing.

  • CoryStrode

    Roz passed away a while ago.

  • amok

    yes it seems to me that marvel could just say “this is how the character looked in 1963 and this is how he looks now” different look different character. not the original creation. We know its the same thing but it does seem to be a loop hole

  • demoncat

    at least Kirbys heirs are trying to get what they are owed . for even if they win Disney will keep the verdict tied up in appeals long enough where the heirs have to make a settlement due to running out of money from the long legal battle as for captain america that should not be part of the suit for Jack and joe simon created cap long before Jack came to marvel so technicaly jacks heirs and Joe Simmon own the copy right to cap not Dis marvel.

  • http://www.wonderealm.com Shawn Richter

    Don't forget that the page rate tht Jack took home was pretty piss poor in those days, requiring him to pencil 4 books a month. With all the hours and hours he spent in his studio, he didn't see his family much – how much is growing up with your dad never around much worth to you?

    Not to mention, if I win the lottery, I'm not gonna spend it all on me – I'm leaving some to my kids so they can have it easier than I did (and I never had it that hard, but you want the best for your kids). I think it's probably what Jack would've wanted – so if you love the man's work and what he created, respect why he did it – to provide for his family. Which was obviously important to him. Now quit calling people jackasses – it makes you sound like a jackass.

  • Lawbook

    This debate is not nearly as ground-shattering as you make it out to be. A copy-right of an intellectual property can be declared again and again as long new intellectual content is being made of that property. That is why characters like Bugs Bunny and Micky Mouse can still have copy rights as they are still being produced their original producers, while other properties such as Popeye have entered public domain.

    Here is another example. The novel the wizard of Oz is public domain and free to use, but the comic by marvel is currently copyrighted.

    The Kirby's want to establish a new copyright that declares that their family owns the rights of the Jack Kirby's characters. This will not happen as American copyright law does not like given the decedents of creators copyrights. This goes for any product, not just intellectual property.

    The reason for this is that the copyright system in the united states (for those reading abroad) is designed for all property to eventually lapse into public domain, this is (generally speaking of course) very opposite the British and European system.

    An example of this would be that book Alice in Wonderland has a Copyright and the heirs to C.S Louis's estate get money for his work.

    Neither system is better, they just have different priorities, one is on the future use of the property and the other is on the future maintenance of the property.

  • JC

    This is about the dumbest…..?! The Kirby's deserve NOTHING! When I go to work everyday and type out reports dealing with ways to save the company money or how to minimize cost, the company does not give me my reports back and say, “Here's the work we PAID you to do back and a big pile of money to go with it”! Give me a break!!!

  • Nik

    It's just greed, plain and simple. Kirby's family wants their finger in the money pie. If Kirby felt that he was being ripped off (and he was) he should have delt with it. This isn't some great crusade they're on, they just want free money and to Hell with all of us who enjoy the comics and the movies.

  • http://comicscube.blogspot.com Jose

    Sorry, that analogy doesn't work AT ALL. Your work doesn't come close to being analogous to being a freelance creative person.

  • http://comicscube.blogspot.com Jose

    None of your comics and movies will be affected. It will be like the time that the Siegels got half the rights to Superman, and look, Superman's still around. Hell, DC was paying the Marston estate for using Wonder Woman up till 1986. The only thing the Kirbys would want out of winning the case are royalties, and it's no different from giving the Gaiman heirs royalties to Sandman when Neil passes on, no different from Alan Moore continuing to get royalties for every printing of Watchmen.

    Seriously, as the article posted, if the Kirbys win, the best thing for either side to do is come to an agreement where Marvel and Disney pay the Kirbys for the use of these characters, which, by the way, they can afford to do.

    I don't understand how so many people can grow up on superheroes and the ideals of justice and equality and still come down on the side of the big corporation that had much less to do with the success of the properties being contested, honestly.

  • http://comicscube.blogspot.com Jose

    Exactly. I'm sure it would break Disney's back to lose a percentage of profits. Because, you know, apparently losing a percentage of profits means you suffer a loss. Or something.

    Seriously, there's profit and loss. There's no in-between. Giving the Kirbys a percentage as royalties means you're STILL making money.

  • anon

    You're right, Disney was fully aware of the Kirby copyright situation prior to buying Marvel. Disney was also fully aware that the value of Marvel lies in film adaptations, and that their competitors like Sony, Fox, and Universal own many popular Marvel film franchises. Disney was also fully aware that a change in ownership of the Kirby copyrights would render those deals null and void. Disney would rather share the profits of X-Men movies 50-50 with the Kirby estate than let another studio make all that cash. Do you see why Disney might WANT the Kirby family to win this suit, assuming that they then sign a deal with Disney (they would essentially be forced to work with Disney anyways, given Stan Lee's 50% stake, which Disney now owns)?

  • Spicy

    This is a ridiculous statement. A differnce of opinion with you doesn't make anyone a jackass. The fact of the matter is that if your parents or grandparents or heirs create something of value, they have the right to pass that value onto their heirs. If that article, in this case some of the Marvel characters, were appropriated or strong armed away from the creator, which is something only the involved parties know, then its wrong and Kirby's heirs have the right to go after it.

    Warren Buffet can do what he wants with his children. The Kirby's can do what they want with theirs. If you felt someone ripped you off and exploited your legacy for years you'd try to do something about it yourself.

    Bottom line stop acting like a slavish fan and think in terms of the merits of the arguments. Based on your response, you'd make a lousy jurist.

  • http://www.spinoffonline.com Kevin Melrose

    “A copy-right of an intellectual property can be declared again and again as long new intellectual content is being made of that property.”

    I think you misunderstand copyright. It exists for a finite period, whether or not the copyright owner continues to do anything with the work. Popeye entered the public domain in much of the world on Jan. 1, 2009, because 70 years had passed since the death of creator E.C. Segar. However, Popeye remains protected under U.S. copyright.

    “This will not happen as American copyright law does not like given the decedents of creators copyrights.”

    Sure it does. Hence the widow and daughter of Jerry Siegel reclaiming half the copyright to Superman. Descendants can, and do, inherit intellectual property all of the time. That's how and why the estates of Arthur Conan Doyle and Edgar Rice Burroughs continue to license the Sherlock Holmes and Tarzan properties for film, books, etc. (granted, in both instances there's murkiness about how much they control, but still).

    The Kirby children aren't attempting to establish a “new copyright”; they're seeking to reclaim what they believe is their father's copyright to existing characters.

  • Joe S. Walker

    Marvel's first offer was for “physical custody” of 88 pages, with an agreement that the pages were still Marvel's property. Some lowball offer! And when Kirby eventually got his 1300 pages back, nearly all the most valuable stuff was missing.

  • Strannik01

    Kirby was a freelancer, not an employee. Therefore, his work was not, by definition, work-for-hire. He sold them his concept for a finite term (the length of the copyright at the time). Once that period expired, he and his heirs are entited to get the rights back. It's as simple as that.

    And, lest you forget, back in the 80s, when Kirby tried to get his original artwork back from Marvel, the Marvel executives at the time tried to use the artwork as a barganing chip, saying that they'll release it if he signs away his rights to his characters, presumably because they realized he (or his heirs) will eventually be able to regain the rights, so they tried to cover their asses.

  • Strannik01

    Because so many comic book fans (including the author of this article) don't seem to understand what the reversion of copyright actually entails, I will now take a moment to copy-paste Thad Boyd's post from the last time the matter was discussed under the CBR umbrella:

    (http://robot6.comicbookresources.com/2010/05/di…)

    ** Thad Boyd's Preemptive Response to Comments We Are Definitely Going to See in This Thread **

    1.”Kirby's heirs didn't do the work, Kirby himself did! Therefore, they don't deserve any money for it!”

    Yes, that money should go to the people who actually did the work. Like Disney. Who could forget Bob Iger's classic run on Fantastic Four?

    Snark aside, there's a valid point to the argument that Kirby's heirs shouldn't get the rights. I personally believe that copyright law lasts far too long and these characters shouldn't belong to Kirby's heirs OR Disney/Marvel at this point, and should be in the public domain. But until that day comes, can we at least acknowledge that Bob Iger didn't contribute any more to the development of these characters than Kirby's heirs did? And that, if Kirby had made more money in his lifetime, he would have left it to his children?

    2.”Isn't it convenient how Kirby's heirs waited until there were successful film franchises based on his work before they asked for the rights back? If it's so important to them, why didn't they do this years ago?”

    Because they couldn't. Copyright transfers can't be terminated until 56 years after the property's creation.

    3.”The Kirby kids should just get jobs!”

    The youngest of the Kirby “kids” was born in 1960. Do you really think they've all just been sitting around, unemployed, for the past several decades, waiting for the moment when they could try and get Dad's copyrights back?

    4.”It was work for hire, so Kirby never had any claim to the rights.”

    No, it wasn't. There was no work-for-hire contract. Jack Kirby was a freelancer, and therefore entitled to his share in his creations.

    5.”Kirby was an employee of Marvel, so he never had any claim to the rights.”

    No, he wasn't. There was no employment contract. Jack Kirby was a freelancer, and therefore entitled to his share in his creations.

    6.”But he KNEW it was work for hire, because that's just how things were DONE in those days.”

    The law does not recognize “just how things were done”, it recognizes contracts. If Kirby did not sign a work-for-hire contract, BEFORE the work was produced, then it was not work-for-hire.

    7.”This will destroy Marvel Comics and all my beloved characters!”

    Yes, just like ten years ago when Jerry Siegel's heirs got their half of the Superman rights back, and now there are no Superman comics anymore. Wait, what?

    Most of Kirby's characters were co-created with Stan Lee. Stan has already agreed not to seek termination of copyright transfer (presumably because Marvel gave him a much, much better deal than Kirby), so that means Marvel will keep a 50% stake in them no matter what. The Kirbys will not be given editorial control and will not have veto power over Marvel's decisions; all they get is royalty payments — which, incidentally, Jack never got from Marvel.

    And that's relevant here: stuff like this doesn't happen in a vacuum. It's too late for Jack or Jerry to get their due, but these legal battles have an impact on still-living creators — chiefly, publishers will give better deals to their talent in order to keep them happy and avoid future lawsuits. Every time a writer or artist gets a royalty check from Marvel or DC, he has guys like Siegel and Kirby — and their heirs — to thank for fighting that fight.

    8.”I work hard at my job, and I don't expect an ownership stake in my work.”

    Unless you were doing freelance work in the comics industry prior to 1978, your job is not analogous to Jack Kirby's job, your agreement with the company you work for is not the same as Jack's agreement with the company he worked for, and your heirs' claim to the work you do is not equivalent to Jack's heirs' claim to the work he did.

    9.”So if I built a house –”

    Copyrights are not houses.

    10.”So if I bought a house –”

    Copyrights are not houses.

    11.”So if I sold my house –”

    Copyrights are not houses.

    12.”So if I filed for a patent –”

    Getting closer, but copyrights are not patents, either.

    13.”Marvel lived up to its end of the bargain and doesn't owe Jack anything.”

    Even assuming this is true (and I think the King would have something to say about that if he were still with us), you could just as easily frame this as “Kirby lived up to his end of the bargain and his heirs don't owe Marvel anything.” Marvel got sole ownership of the copyrights for 56 years, which is exactly what Jack agreed to. That agreement is about to expire. What you're suggesting is that Marvel should automatically get to keep the copyrights for 29 more years than Kirby ever agreed to, in exchange for nothing.

    14.”This is an insult to Jack's memory! He would have wanted all the money to go to Marvel, not his family!”

    Have you ever noticed how most people on the Internet would rather crank out an ill-informed, knee-jerk response than spend the same amount of time using Google to find out whether they're actually right or not?

    Leaving aside the question of how many people would REALLY rather see the profits from their work go to the company they work for than their children, Kirby's relationship with Marvel is a matter of public record, and it wasn't a positive one. He did not feel that he received either the compensation or the credit that he deserved.

    15.”If it was so bad, why did he keep working there?”

    He actually quit, on several occasions, due to disputes with the company: once in the 1940's, again in the 1960's, and finally for good in the 1970's.

    16.”If it was so bad, why did he keep coming back?”

    He came back in the 1950's because the market was crashing and many of the other publishers were going out of business. He came back in the 1970's because he had been offered a better deal than he'd had before — that was the point at which he sold his rights, though it bears repeating that this was prior to 1978 and the sale would have expired at 56 years from the date of each character's creation.

    17.”Jack Kirby didn't create anything; all he did was design costumes for characters Stan Lee came up with.”

    Have you ever noticed how most people on the Internet would rather crank out an ill-informed, knee-jerk response than spend the same amount of time using Google to find out whether they're actually right or not?

    Even if all Kirby had ever done was design the look of characters, that would be sufficient for an ownership stake. But he did considerably more than that.

    Writing at Marvel was a collaborative process. The “Marvel Method” was that Stan would float a plot outline, the artist would draw the pages, and then Stan would fill in the dialogue. Sometimes Stan's outline was detailed, sometimes it was rough, and sometimes there was no outline at all and he wouldn't know what was in the comic until he saw the art. In those cases he'd just write the dialogue — and even then, he would often use the artist's dialogue suggestions.

    Artists at Marvel had an active role in developing characters and stories. Kirby, Ditko, and others felt that they were not given the credit they were due, and their contributions were underplayed. The fact that you didn't know how much Kirby did and believed all the heavy lifting was done by Lee would seem to prove that point.

    18.”What about Spider-Man? Kirby didn't create him!”

    Kirby worked on an early version of Spider-Man that bore little resemblance to Ditko's final version. I would tend to agree that his claim to Spider-Man is tenuous, but the court may decide that his heirs are entitled to some share in the copyright — probably not the 50% they'd expect for the Fantastic Four, but some smaller portion.

    I've seen some commenters speculate that the Kirbys don't expect to win the Spider-Man rights but are asking for them as a tactical maneuver — in a legal dispute, it's good practice to ask for more than you want, wait for a counter-offer, and negotiate from there. This seems plausible, but Kirby DID claim that he had co-created Spider-Man.

    19.”This is unethical!”

    Ethics are personal and subjective. I think it's unethical for a company to pocket billions of dollars on the back of a man it never paid more than a modest page rate, 15 years after his death. You, presumably, believe it's unethical for a dead artist's next-of-kin to try to turn a profit from characters he willingly sold off 40 years ago. We can agree to disagree on the ethics of the situation.

    The law, on the other hand, is much less ambiguous. When Jack Kirby sold his rights in 1972, he did so under a copyright law that stated they would go into the public domain starting in 2014. When Congress changed that law in 1976 (effective in 1978), it changed the terms of the agreements Jack and others had signed. As such, the new law included an escape clause for anyone who had sold his copyright under the old law: he — or, in the very likely event that he didn't live long enough, his statutory heirs — could terminate the transfer when the original expiration date came up.

    Whether you think the law is ethical or not, it's the law, and it's not being disputed in this case. If Kirby's work was not for-hire, and he didn't sign any contracts giving his characters away BEFORE he actually created them, then he owned a portion of their copyrights, and his heirs are legally entitled to reclaim that portion.

    The size of the portion, and that “if”, are the only legal points in question here. Did Kirby sign any work-for-hire contracts? His heirs contend that he didn't, and will attempt to make that case in court. And if Marvel fails to produce any contracts, and simply makes the argument that that's the way things were in those days, that's going to make for a pretty weak case.

    I grant permission for anybody to reuse this post, in whole or in part, so long as they grant attribution. And don't go nuts with that “or in part” part; no selectively excerpting partial sentences to make it seem like I meant the opposite of what I did.

    And, for further reading, check out the following links, which have much more thorough rundowns of what copyright law says, why it says it, and how it specifically applies in the Kirby case:

    •http://archives.tcj.com/aa02ss/n_marvel.html — The Comics Journal reviews Kirby's 1980's battle with Marvel to get his original art back
    •http://pwbeat.publishersweekly.com/blog/2009/09/21/kirby-family-files-for-copyright-reassignment/ — a Publishers Weekly article on the subject from September, with some very good posts by Kurt Busiek and Nat Gertler in the comments section
    •http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-lawsuit/ — a Kevin Melrose article on the subject from January, with some very good posts by himself and Kurt Busiek in the comments section

  • Sijo

    On the story side of things, IF Marvel lost the rights to its main characters, this is what I think they'd do: First they cart off the heroes via a story similar to the “Heroes Reborn” line from the 90's (except they would not publish comics featuring the removed heroes this time). Then they would use lookalikes from their own continuity: Cannot use Iron Man? War Machine gets his own series (again) with no references to Tony Stark. Not the same character, but ALMOST, especially from the point of view of the uninitiated- “Hey look, an Iron Man comic! Why did they change his name?” And so on.

    Though I'm pretty sure that with all the money involved, it'll never get to this, for the reasons given in the article. Disney/Marvel will settle somehow.

  • Strannik01

    Of course he does. Otherwise, he wouldn't have any copyright claims to renounce (which he did for a pretty decent chunk of money and a permanent credit on any work of media that featured any of his creations

  • Strannik01

    I am pretty sure you meant “1976,” not “1776”

  • Bryan

    Why is spider-man involved in this lawsuit? He was created by Stan Lee and Steve Ditko (or just ditko depending on who you believe) Kirby had nothing to do with him.

  • http://www.spinoffonline.com Kevin Melrose

    Although the extent and nature of Kirby's involvement in the creation of Spider-Man has been the subject of much debate, he was an early part of the process. Lee initially approached Kirby to help develop the concept and draw the initial story that appeared in Amazing Fantasy #15. Lee decided that Kirby's take on the character was too muscular, or “too heroic,” so he turned to Steve Ditko.

    Some assert that Kirby contributed elements from an unpublished character called Silver Spider that he developed in the 1950s with longtime collaborator Joe Simon. Others say Silver Spider became The Fly, a character created by Simon and Kirby for Archie Comics' Red Circle imprint.

    But whatever the case was, you can't really say that Kirby had “nothing to do” with Spider-Man. Whether his contributions can be proven in court, and amount to a copyright claim, is another matter.

  • likeallthefreetrafficfromCBR

    they're not going to win okay. The recent Superman move by WB shows that they have a very weak case. As much as I hate to admit.

  • Kurtzberg

    I sure would love to see that highly improbable scenario of Marvel/Disney losing. It would be awesome!

  • Scavenger

    Keep your damn dirty facts out of here!

    (Though I question the part about being a “freelancer” and thus that gives him the ownership stake…Is that because the definition of freelancer changed during one of the laws (1978 possibly?) as most of the creators at DC/Marvel today and they don't get ownership stakes.)

  • redvector

    Yes the Kirby case is way weaker than the Superman/DC case. Superman was basically stolen from the creator's.

    No matter who wins in this I feel the loser will try to take it the Supreme Court.

  • Mistvan2

    I think there's no need to debate over this. Stan Lee and Jack Kirby both were hired and paid by Marvel to create the characters so the characters are the property of Marvel. Case closed.

  • http://www.law.depaul.edu/students/organizations_journals/student_orgs/lawarttech/masthead.asp Brian Bacher

    “Lawbook” apparently didn't look at his own chapter titles before posting. Intellectual Property is not a synonym for Copyright. Trademarks have to be used in commerce for rights to continue. Copyrights exist for a statutory period (regardless of use or whether the original creators are the current owners).

    The issue here (and in the Superman case) is that the statutory term of Copyright protection has been extended multiple times since Kirby (and Siegel) granted the copyrighted material to the publisher. This means the publisher is being allowed to continue to profit from material that all parties involved assumed would already be in the public domain by now.

    In response to this, Congress made a law for the sole purpose of allowing the original creators (or their heirs) to terminate a grant of copyright that was made under the old law. The copyright is still valid. No new copyright is being created. Kirby's heirs are simply trying to cancel the contract Kirby made with Marvel which gave ownership in his creations to the publisher. They are not trying to exploit some loophole in the law. They are exercising a right Congress expressly intended them to have.

    That being said, it is an incredible complicated process. And there is no guarantee that Kirby's heirs will be able to meet the requirements necessary to cancel the original assignment and reclaim the copyright.

    Lecture over.

  • http://www.wonderealm.com Shawn Richter

    Wrong again. Simon and Kirby created Captain America out of the whole cloth and sold the concept to Marvel.

    Now how that was affected by 1941 copyright law, and subsequent revisions, I don't know. But I had read on several occasions that most of these characters were made up more or less on the fly and if no work for hire agreements were signed, then Kirby owned the concepts he created.

  • SageShini

    But you're NOT in agreement. He's saying if Marvel was forced to create new heroes, it would be a failure. You're presuming if they were forced to create new heroes, people would buy them because there's nothing else.

    I'm with him. If they had to do brand new comics, sales would fall faster than Stan says Excelsior.

  • Mark

    Money talks. This will be settled out of court for an undisclosed sum.

  • Strannik01

    From what I understand, it's like this. As a freelancer, he came up with the characters on his own time rather than on Marvel's time. That meant that the characters were his until he used them in a product commissioned by Marvel. It also meant that, once the original copyright term expired, he and his heirs had the right to terminate Marvel's ownership of their share of the copyright and get it back.

  • Metron

    “I think there's no need to debate over this. Stan Lee and Jack Kirby both were hired and paid by Marvel to create the characters so the characters are the property of Marvel. Case closed.”

    If that were true, the judge would throw the case out of court in ten seconds. That hasn't happened and it won't.

    If you look at the articles about the Kirbys' lawyer, they all see this guy is the top guy in the area of copyright law. He has won many many cases in this area including the Superman case and many others, He is handling this case on commission which means he doesn't get paid unless the Kirbys win or settle for huge bucks. He would not be wasting his time on the case if it were as baseless as you claim.

  • http://wonderealm.com Shawn Richter

    Are you serious when you say the Kirbys can't stop Marvel from publishing Jack's stuff? Is that what you think they want? They want to make money as much as Marvel does – but do you know how hard it is to go into publishing, even if you haven't alientaned half your fan-base? They'll let Marvel steer the ship, but they'll get a cut. Plus, now when someone wants to make a lunch box, there are two owners to go to – so twice the amount of money coming in (and remember, Marvel will own half, so the money flows both ways.) They can't stop marvel from publishing anyway, since Marvel has Stan's half. Marvel (and Disney) just don't want to share the profits, that's why there is such contention.

  • Adam Weissman

    Kirby didn't consent to work-for-hire. In fact, he refused to sign the work for hire agreements printed on his checks.

  • FredII

    You know it's just a weird thing about all this. Was Kirby actually credited as the Writer on any of these stories they are claiming ownership of? I mean, we all know that the “Marvel Method” relied heavily on the Artist in the creation of the stories, but beyond design, was he credited as the creator in any of these books?

    It strikes me, that as an artist, even if Kirby owned all his art, the characters were credited to Stan Lee and others. As such I think, you would lose some Iconography perhaps (most of which has been updated numerous times) but I don't see how you would lose the characters themselves.

    Maybe I just don't know enough about copywrite law, but it would seem that so long as someone else officially created the names, powersets, and stories, then all you really lose is the design. And even that, given the ammount of back and forth in the comics industry might not be that strong of a case. How many Iron man armors has Tony Stark been through? How many mutations have the thing and the beast been through? How can there by Any Kirby claim to the design of the character if the character nolonger uses that design. In the Thing's case specifically Kirby always wanted to draw him more like a dinosaur than a rock monster, the Rock Monster shift was more the choice of the Inker than Kirby.

  • fredII

    Just to clarify my point, I'm not doubting that Kirby did infact contribute a great deal to the creation of the characters as is normal with the Marvel Method. My point is, that if his contributions aren't tracked, if there is no paper trail than all you really have is the credits page which states, written by Stan Lee, and Pencils by Jack Kirby. Since we do not know how detailed any of Stan Lee's outlines were, (and it only matters in the origin issues anyway) we can only go by the details as presented. Certainly, Kirby did say he basicly created everything (doubtful) and Stan Lee says something similar (equally doubtful) but at the end of the Day Stan was the guy with the Credit, and sort of like the many disputs about Thomas Edison, the guy whose name goes at the top got the credit. It doesn't mean it's right, but it would seem that is all the actual documentary evidence we have.

  • Metron

    There were no work for hire agreements on the back of Marvel checks until 1978. I don't know if Kirby signed them but if he did that might mean Devil Dinosaur was work for hire but it would not apply to Hulk.

  • Metron

    I think I understand enough about copyright law to know it doesn't matter who was credited with doing what. There's no doubt in mind that the credits should have read Written by Stan Lee and Jack Kirby, drawn by Jack Kirby” but that doesn't matter in this case. A shared copyright is a shared copyright.

  • Joe S. Walker

    Many of the credits in the later Lee/Kirby comics are variations on “A Stan Lee – Jack Kirby Production,” or “Stan Lee and Jack Kirby present…” I think this was done when Kirby asked for a writing credit, as a way of dodging the issue.

  • Perry

    Really, anyone who sides with the Kirbys is a jackass?

    In that case, I assume you've already told all your loved ones that your name should not be mentioned at all in their wills. I assume you've told them that anything they were planning to leave to you is instead left to their employer. Any stocks they owned, any property they had, any money left over, even their personal items — you've told them that those should ALL go to their employer and you shouldn't get jack squat, right?

    …you HAVE done that, right?

    Because if you haven't, what right do you have to those things? You didn't work for them. You didn't earn them. You should have no claim to them whatsoever. I don't care if it's a Fortune 500 company or your dad's favorite jacket.

    What Warren Buffet did is COMPLETELY different because Warren Buffet is still alive. I sincerely doubt his will states that his children aren't getting anything else. He told his kids they aren't entitled because he wants them to work for their living, which is good. It's what most parents do — they stop giving their kids money once they come of age. Comparing a parent telling his children to work for their living to a parent refusing to leave any inheritance to his children are two COMPLETELY different things. In the immortal words of Samuel L. Jackson: “Ain't no @#$% ballpark!”

  • Maxwell Ferris

    You read one line and decided to make an issue with what I had wrote, but they most important thing is this – they never earned the rights – all they see is a payday. It's people like you that side with these people who want something for nothing because you believe a large business has deep pockets that end up bitching why things cost more now – its because now they have to readjust prices to meet their profit margin to pay some greedy shmuck. It doesn't matter if you think more people side with Kirby's hiers they are still wrong. You all mixing what you feel is right and what is right. Kirby was compensated and so was Lee – maybe they didn't like their compensation, but that business if you don't like who you're working for then get another job. Or let's say he could have been like Jim Lee and Todd Mcfarland who decided to that they wated creative control and risked their careers to start a company which by the way still exists today and allows other creators to make comics and retain the rights. So you can feel sorry for Kirby or realize that its his own fault and his heirs should stop wasting time.

  • Sijo

    I think the point is not the moral obligation, but how do you PROVE it: an unwritten contract isn't even worth the paper it is not written on, as the saying goes. You'd need witnesses. Of course the Kirbys will say they're in the right, and Marvel will say THEY are. Where do you get a third, unbiased party? Or does the court try to decide by what the standard comics creator believed at the time? Because most of them felt they were NOT getting the rights for their creations back then. Is it fair to revise facts just because we now think they are unfair?

  • Spicy

    Your big business moral rightouness is almost comical. You're saying only those who actually did something/create something have the right to it. Then should all the Rockerfellas, Fords, Buffetts and etc accomplishments disappear when the die? Why have copyright laws been established to protect successive rights to intellectual property been established.

    I don't side with people who want something for nothing. That's what you assume and we all know what that word can be broken down into. Also if you didn't open your comment with the whiny inspid and frankly ignorant statement about someone with a difference of opinion being a jackass maybe some of the replies you've received wouldn't be so caustic.

    You don't know what and I don't know what went on during that period. There are legal issues that the courts, who by the way are suppose to look out for everyone – corporations and people, to decide. In the fifties, sixties and seventies the publishing world and economy was different. When image came into being there was easier access to venture capital and etc to start your own business. Back then when Kirby and Stan were doing their thing it wasn't. In fact the comic industry was contracting at the time they initiated the Marvel Universe.

    If this whold thing was a waste of time, the courts would throw it out. You say the most important thing is they never earned the rights. How do you know this? You don't! Another thing you don't know – How I feel about large corporations. That's just an ignorant assumption. Your grasp of economics is as astute as your analysis of this issue – very weak. I invest, work and consult large for and with large corporations. I have nothing against them on a personal level. They take the risk they should get the reward. However if, as has been speculated, the original publisher had promised Kirby a piece of the action, something that has been written about and needs to be verified, then it should be honored.

    However I assume someone like you who believe just because someone disagrees with them they are weak minded jackasses who want to destroy the corporate culture of the world, has little to no principle about the morality of the situation. Haw, Haw put out my little comic related material every month/week/year whatever and leave me alone. You're pathetic because you talk in assumptions without facts.

  • http://www.corporate-sellout.com Thad

    Agreed. The article is utterly wrong, except possibly in a few cases like Silver Surfer where the Kirbys might be able to prove sole creator credit.

    Aaaaand it's got 80 comments.

  • http://www.corporate-sellout.com/ Thad

    Kirby chose to sell his rights to Marvel under pre-1978 copyright law, which stipulated that they would become public domain after 56 years. The 1978 copyright law extension stipulated that Kirby, or his statutory heirs, would have the right to terminate that copyright transfer.

  • http://www.corporate-sellout.com/ Thad

    “name one character made by any company in the last 30 years that has had the same lasting popularity to have an continuous ongoing title that is a both a top 50 seller and has good merchandise potential.”

    That's a rather arbitrary definition of success. Would you argue that the Teenage Mutant Ninja Turtles are not a successful property simply because the comic hasn't stayed in continuous publication? Because the $60 million that Nickelodeon spent buying the rights says otherwise.

  • http://www.corporate-sellout.com/ Thad

    “Okay anyone that sides with Kirby's heirs is a jackass…reason being they have done nothing to earn the rights.”

    You're right, those rights should go to someone who earned them, like Disney. Who can forget Bob Iger's classic run on Fantastic Four?

  • http://www.corporate-sellout.com/ Thad

    Haha, lovely. Was just thinking “Argh, I really need to post my boilerplate response in this thread” but it looks like you beat me to the punch. I've gone viral!

    Thanks for saving me the trouble; pity people don't seem to be reading it. (Pity older posts are shunted to the bottom…)

  • http://www.corporate-sellout.com/ Thad

    I think there's enough historical documentation to confirm Kirby was co-creator of the Fantastic Four, the X-Men, and a number of others, and Stan has stated in interviews that the Silver Surfer was solely Jack's creation.

    The Gaiman/McFarlane case has set some precedent as far as writer and artist sharing equal rights.

    That said, yeah, a lot of this is going to come down to paperwork which will be difficult to track. I think that actually favors the Kirbys, though: if Marvel can't produce paperwork saying Jack was an employee or his work was for-hire, that's going to indicate rather strongly that his heirs have a right to the work.

  • http://www.corporate-sellout.com/ Thad

    Jack was a freelancer; he created the characters on his own time and then sold them to Marvel. That means he (co-)owned the original copyright. And yes, he sold it, but he only sold it for a period of 56 years; that period is up now and his heirs are entitled to reclaim it.

  • http://www.corporate-sellout.com/ Thad

    Actually, the heirs ARE suing now, but Marvel sued first. Initially, the heirs DID merely file for a termination of copyright transfer; Marvel responded with a lawsuit and the heirs responded in kind.

  • http://www.corporate-sellout.com/ Thad

    “Why not sue a Fortune 500 company your grandfather worked at for not giving him stock options, that are now worth millions?”

    Because the law doesn't say you're entitled to stock options from a Fortune 500 company.

    It DOES, however, say that if you sell your copyrights to that company, you or your statutory heirs are entitled to get them back after 56 years.

  • http://www.corporate-sellout.com Thad

    That and back-of-the-check contracts are not legal.

  • Strannik01

    Simon filed for termination of his share of Captain America copyright back in 2001. Marvel sued, and they ultimately wound up settling for undisclosed amount.

  • Strannik01

    “That's why I don't support the Kirby's Heir's lawsuit.”

    And why is that? Even if Kirby heirs regain the rights, they will still have Stan Lee's shares of the copyrights, so they'll be able to use Kirby's characters without any interference. They would have to pay the Kirby heirs royalties, but surely, an entertainment conglomerate of Disney's size can handle that.

    I really wish people would actually read posts upthread. Countering the same flawed logic and misunderstandings again and again gets tiring.

  • Shawn

    But if Marvel/Disney had to share the rights with the Kirby heirs, wouldn't they (Kirby's) have the right to demand that they sign off on all the assorted storylines??

  • Shawn

    My opinion on this matter is the same with the Siegel/DC lawsuit going on over the Superman rights. Neither party really wants the rights to all the characters. They don't want to be the ones who pull Captain America or Superman off the comic shelfs. What they really want is lots and lots of money. I think the Kirby heirs really hit the jackpot when Disney bought Marvel. In exchange for giving up all rights to the characters, the Kirbys would negiotate a HUUUUUUUGE settlement. More than enough money to keep them happy for the rest of their lives.

  • http://www.corporate-sellout.com/ Thad

    Not if the split was 50/50, which is likely to be the case for most of the characters in question.

  • http://www.law.depaul.edu/students/organizations_journals/student_orgs/lawarttech/masthead.asp Brian Bacher

    Contrary to popular (mistaken) opinion, whether or not an employment contract was signed is NOT the be-all and end-all of the “work for hire” question. A signed employment is contract is only one of the many factors a court will consider when determining whether a work was “work for hire.”

    That being said, EVEN IF everything Kirby did was strictly as an independent contractor, neither of my two points above would be impacted in the slightest. Kirby's heirs would still only be able to reclaim what was Kirby's to assign originally (i.e.: his portion of the original copyright). For anything that Kirby co-created (even as an independent contractor) Marvel would still retain a portion (50% assuming only 2 people were credited as original creators) of the copyright, as described in point 1.

    As for point two, even for the material that Kirby created 100% by himself as an independent contractor, Marvel has since obtained and maintained valid trademarks which would impact the extent to which the Kirby heirs could exploit any reclaimed copyright.

    I promise, I'm not making this up.

  • http://corporate-sellout.com Thad

    Could potentially work in the case of, say, the Hulk, who's currently red and not Bruce Banner. However, Kirby's role in creating the characters was far more than just costume design; he was a co-author.

  • Brian from Canada

    Lots of speculation here, but one crucial point is ignored: Siegel and Shuster's case is VASTLY different than the Kirby's.

    For one thing, there is clear evidence that Siegel and Shuster created Superman, his alter ego Clark Kent, his love interest Lois Lane, and the abilities of Superman before they went to National. National bought a complete product for Action Comics #1, and then hired the two to continue to produce adventures with “its” character in the years that followed. They could have gone somewhere else.

    Siegel and Shuster did not offer National or Direct a new set of characters. Any developments they made were to the same existing character and any belief they would remain on the characters indefinitely was shattered early on as they were fired from the strip while the comic was placed in other hands.

    In contrast, Kirby was already producing work when contracted as a freelancer for Timely. Lee and Kirby created The Fantastic Four with the EXPLICIT purpose of proposing it to Timely because that was the publisher with whom they had an existing relationship. Then, once accepted, they continued to produce issues for Timely on the basis that they were the creators of a new line of comics.

    When the superheroes took over, transforming Timely into the Marvel we know today, there was the continued production of comics with the explicit belied that they were being produced for Marvel, and that anything Marvel rejected would not be offered to another publisher. Marvel even makes the point to include him in the photo array of Marvel's staff indicating that, while only being paid for finished work like a freelancer, they viewed him as a regular artist in the bullpen. Marvel's connection to Lee and Kirby's work included new characters, and Kirby made a point of developing new ideas or retooling only those Marvel clearly rejected and would not touch.

    Siegel and Shuster WERE fired. Kirby left by choice in disagreement with the way he was being treated — though the specifics would be equally applicable to employees.

    Siegel and Shuster WERE NOT credited as part of National's staff (they did the strip, not the comic); Kirby was for Marvel.

    Siegel and Shuster WERE NOT granted any credit for their creations until the 70s when, pressured by fans with a potential boycott of the film, the families were given a cash bonus and credit. Lee and Kirby's presence was unmistakable in the early days of Marvel, and while Kirby did not get a credit until relatively recently on Fantastic Four as a creator, the relationship was implicit.

    DC never admitted thankfulness to the creators of Superman. Marvel has continuously praised the work Jack Kirby did, going so far as to collect his works to celebrate him.

    Those are BIG differences.

  • chris schmitt

    if i got them i would license them to various companies,marvel, image,dc, the one that does incredibles and some manga.
    and each property split the profits

  • Brian from Canada

    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).

  • Brian from Canada

    1 – Co-ownership DOES immediately stop production until either (a) the other rights holder negotiates permission to continue production, or (b) the other rights holder gives explicit permission for this one production to continue. That's what happened in the Siegel and Shuster case — Siegel's won, Shuster's wasn't filed yet, and immediate deals were made to prevent a pause in production.

    2 – You're damn right here, except that trademark is limited to the presentation of image only. If the Kirbys changed the logo from a 4 to an FF or H, altered the characters slightly, and then renamed the book Heroes 4, they would not have to pay Marvel a cent because the image has changed and the book's title is no longer close enough to be a direct challenge to the Marvel image. (Just ask many of the colouring books who's images are Disney-like without being Disney.)

    Great example of trademark ownership is Captain Marvel, where the name is owned by Marvel. DC can call their character that in comics, but officially the character is Shazam! in title and presentation, so it's different enough to not constitute a violation of trademark.

  • Brian from Canada

    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. :-/

  • demoncat

    Siegel and Shuster did not sell super man to National aka dc . National rejected superman then when joe an jerry went to war . National revisted superman and published superman thus stealing not buying superman from joe and jerry. for Jerry and joe did not sell superman and the only other place to take supes too would have been timely. aka marvel.back then

  • http://www.spinoffonline.com Kevin Melrose

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

  • demoncat

    the 130 was what dc finaly agreed when joe and jerry found out what dc did with superman when they were in the army and true they did get to do more material till dc finaly gave them the boot when they decided to get their royalties. for jerry and joe did not sell the rights to dc out right dc just finaly paid them to do their creation hoping they would be so happy they would never dare come after what they are owed as creators.

  • http://www.corporate-sellout.com/ Thad

    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.

  • http://www.corporate-sellout.com/ Thad

    Mostly correct. A bit misleading to point out that Siegel and Shuster were fired as a DISTINCTION from Kirby leaving by choice due to his lack of recognition, as Siegel and Shuster were fired as a direct result of pursuing legal action due to their lack of recognition.

  • FredII

    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.

  • http://www.corporate-sellout.com/ Thad

    “However, assuming that Mr. Kirby was the creative force behind these characters, did he really create them”

    Yes.

    “As an example, the Captain America of the 1940's isn't the same character as Brubaker's Captain America”

    Brubaker's Captain America is Bucky Barnes, a character co-created by Jack Kirby.

    “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.”

    But the movie is SET in the 1940's, and features Captain America fighting nazis. It's refined from Kirby's original version, sure, but it's unmistakably the same premise.

    “Comics as a genre are an ongoing process with new reveals all the time by many many writers.”

    Comics is a medium, not a genre. The fact that DC and Marvel have continued to publish the same characters for decades, with changes in direction and creative teams every few years, is a commercial decision, not a creative one. (Which is not, of course, to disparage the creative people who write and draw the stories.) There are plenty of comics that have a beginning, a middle, and an end, and which keep a consistent creative team throughout. They are not made less valuable by this fact.

    “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”

    By this reasoning, nobody who writes a story should ever own it, because all stories follow the same literary traditions. That's just silly.

    “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.”

    In other words, you are claiming that the “moral argument” is that we should all be thanking a faceless corporation for our comics, and the writers and artists who actually made those comics are incidental and not that important in the scheme of things.

    “Essentially, if the Fantastic Four stopped publishing after Jack left, they wouldn't have much value today.”

    Yeah, it's not like they adapted the Galactus Trilogy into a movie that grosed $132M or anything.

    “Their value comes from their being a part of Marvel Mythos”

    The Marvel Mythos which Jack Kirby is largely responsible for creating.

    “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.”

    I think you're confusing ownership with royalties. Most writers and artists DO get royalties for their work now. Kirby never got them, and Marvel's still turning a profit on his work, 70 years later in some cases. You want to talk about morality instead of legality? Please, PLEASE tell me the moral case for denying Jack Kirby a share in the billions of dollars of profit his works brought Marvel. For denying him credit for much of the work he did. For refusing to return his original art. Because frankly, that doesn't sound very moral to me.

  • Fred II

    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.

  • Nik

    But why does his heirs deserve anything? They didn't create these characters. My kids won't get kickbacks because of that “great report” I turned in to my boss last week. If Kirby was independently publishing comics, then sure, all his. But he wasn't. He worked at Marvel. He created for Marvel. The work belongs to Marvel. His heirs need to get a freaking job.

  • Nik

    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.

  • http://corporate-sellout.com Thad

    …so either you didn't bother scrolling down to the VERY NEXT POST…the one RIGHT AFTER the post you were replying to, with the lengthy, numbered list of cliche responses and why they're wrong…

    …or you DID read it and just thought it would be fun to see how many of them you could cram into a single paragraph.

  • http://corporate-sellout.com Thad

    “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.

  • http://corporate-sellout.com Thad

    “1 – Co-ownership DOES immediately stop production until either (a) the other rights holder negotiates permission to continue production, or (b) the other rights holder gives explicit permission for this one production to continue. That's what happened in the Siegel and Shuster case — Siegel's won, Shuster's wasn't filed yet, and immediate deals were made to prevent a pause in production.”

    Brian,

    I don't know where you get your information, but here's what findlaw says ( http://library.findlaw.com/1999/Jan/1/241478.html ):

    “When the copyright in a work is jointly owned, each joint owner can use or license the work in the United States without the consent of the other owner, provided that the use does not destroy the value of the work and the parties do not have an agreement requiring the consent of each owner for use or licensing. A joint owner who licenses a work must share any royalties he or she receives with the other owners.”

  • RD Francis

    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….

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  • Anonymous

    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?