What Would Happen To Marvel If The Kirbys Won?

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.

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

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

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.

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.

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.)

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.

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.

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

“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.

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

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.

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.

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!”

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?

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.

“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.

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…)

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.

“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.

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.

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??

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

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.

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