The case of Jack Kirby's ownership of characters he created for Marvel Comics seems to be closed. Deadline is reporting that it's all over the Jack Kirby estate in their fight against Disney and Marvel, as well as Sony, Universal, 20th Century Fox, and Paramount, in their bid to get a bit of gold that Kirby's genius helped bring to life. Apparently, the Kirby lawyer, Marc Toberoff is a big deal in these kind of fights, and this loss is a big one for him.
Just how much are we talking about? Well Kirby was the co-creator of Captain America, Fantastic Four, the X-Men, the Avengers, Iron Man, The Hulk, Silver Surfer, Thor, and all in all, we're talking about billions in revenue from films alone.
But Jack saw himself as a working guy. He was concerned with bringing money home to support the family and throughout his career, he signed all sorts of lackluster contracts that got them into the position they're in now, where his heirs are fighting to get some of the pot he helped create. Just as an example, at one point, in order to endorse a check from Marvel, you were also signing a contract stating that they owned all copyright. Another time, they held his original art hostage until he signed another document giving Marvel ownership. It's actually a very sad story, but it was also a different world, and at the very least, besides the gems of imagination Kirby left us, he's an exceptional object lesson that every content creator out there should learn from. Own what you make, because that's the key. Every time you hear something about a creator owned comic, and that being the way to go, you're learning from Kirby's legacy, and others like him. As a result, things are much better now than they were, at least in terms of creator participation at some level.
Comics is not, and never has been, an easy business. If you're a creator, or interested in these types of things, learn from these stories, and stay smart. I also want to point out that while my heart does go out to the Kirby family, the whole thing is complicated and ugly and is predicated on decisions made by both parties long ago, with a very different understanding of the future ramifications.
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Well it’s gonna be a bit awkward buying Jack Kirby omnibus’s from now on with Marvel….
Why doesn’t it surprise that the big faceless, rich corporation won over the little guy?
My understanding was that the Kirby Estate’s claim of ownership has always been contested by Marvel. Did the Court find either way in this regard? Did they deny the Estate’s claim because it couldn’t show ownership by Kirby at all or because Kirby signed away his copyright?
Also, this doesn’t bode well for the Siegel family in the Superman battle.
Give the Kirby family the same deal Stan has; a healthy annual pension that’s enough to live comfortably while you continue making billions off Jack’s creativity. Then, everyone wins. This is not hard to do, Disney.
Broadly speaking I actually think the ownership of the characters should stick with the publisher when the creator draws a wage. They are the ones that take the risk fronting the cash for publication, advertising etc. and any losses are incurred by them not the creator. Any profits can then be invested into new talent rather than lining the pockets of the grandkids who had nothing to do with it themselves, effectively taking money out of the industry.
But that is probably putting the publishers in a perfect socialist world. I do like the bubble I live in…
Whoes fault is it that jack was a bad buisness man. Why are bob kane and stan lee made to look bad because they had the forsight to think a head.
If Jack were alive, I would feel bad for him. For his relatives… not so much.
If you want Kirby’s relations to gain from at least some of his comic creations. Read Kurt Busiek / Alex Ross / Jack Herbert’s Kirby Genesis!!
Am I wrong? The Kirby estate is getting a piece of the pie, just as they always have. The pie just isn’t theirs. That’s what this is about.
Marvel shouldn’t own it. The heirs shouldn’t own it. Copyrights have gotten crazy, those old comics and characters should be in the public domain by now. Thanks, corrupt Congress!
Are they? I got the impression they get no pie. If they get pie, then that’s all I would expect.
@RolandofGilead I don’t think so. But it’s all very complicated, and has been going on for a long time, so it’s difficult to make much sense of it. The details of any deals that were inked were probably not public.
Creator chacter ownership is a complicated issue. Made all the more so thanks in no small part to the on-going monthly format.
We could argue all night long as to who created Batman. Was it Bob Kane for the initial spark of inspiration or Bill Finger for fleshing out his world and character? A good case can be made for either, if we were being perfectly honest. In addition, it is also (speaking in relative terms now) a rather new, 20th century construct as art has been turned into capital; hence why these cases like this one and the never ending legal battle over Superman are currently being waged.
Having said that, however, I do believe in fair play and that creators should be credited for their work, and rewarded accordingly if applicable. Much like Neal Adams was for the use of Ra’s al Ghul in BATMAN BEGINS.
-J.
No one liked Bob Kane. I know that much.
Actually I think Stan Lee did. But that brings up a whole other issue.
Theyre also Trade Marked, just because work past a certain date loses its copyright doesn’t mean anyone can use Spider-man, It just means anyone can reproduce the old work.
As for the lawsuit, those guys weren’t treated fairly but getting screwed by your contract doesn’t give you ownership or rights to anything but your paycheck and whats in the contracts. Later artists and writers fought and negotiated for better rights but they still don’t own the characters they create when those characters are playing Superman’s sandbox.
Its why Image et al, are so great for some artists and writers, they can cut there teeth at indies, move on to the big two and then into do some top notch stuff at Image or IDW or some where else and maybe cut a check for mad movie money, with their own IP.
@Josh
What issues did people have with Bob Kane – I thought he was supposed to be the original Mr.Nice guy. It’s always interesting to find out new stuff and the reality of the comic book industry. Perhaps make a good article : )
The news report I read said Spider-man was part of the deal.
Why?
@smutty cause the kirby family got greedy
@Smutty It was in contention if Kirby co-created spider-man. They did a character called the Silver Spider in the 50’s, but it wasn’t the same thing, and then Kirby did an early sketch of Spider-Man, but Stan didn’t use it, instead going wtih Ditko. That first Amazing Fantasy cover is Kirby though, I think. Either way, I don’t think that’s got much merit.
@odino1 word!
@RonSwanson Well i don’t think it was ever on the table (and nor should it be) that Marvel wouldn’t own any of it. My understanding was about whether the Kirby estate would have some of the rights.
@loganalpha LOL no one ever thought that Bob Kane was a nice guy. He was canny and made lots of money from Batman, a character he only had a small role in creating or developing while the real man behind it, Bill Finger, got nothing.
@loganalpha The Word Balloon episode from last week features an interview with Marty Pasko, where he shares some thoughts about how Kane’s peers felt. Good stuff.
I think it’s a shame, but I also don’t know enough about all this stuff to cast any kind of judgement. Selfishly, if the Kirby family had won I would be concerned that the families of Ditko, Wood, Heck, etc. would come out of the woodwork like Chester J. Lampwick and Marvel would have close their doors like Itchy and Scratchy’s studio in that Simpsons episode. Far fetched, I am sure, but it would be a huge deal. Not that they’d necessarily be in the wrong, of course.
@Andrew None of them have a claim even close to anything like Kirby. Kirby co-created what seems like the majority of the company’s characters. Ditko was offered money, but didn’t take it. He wants, for reasons he won’t share, nothing to do with, or from Marvel or Spider-Man.
Also, they’ve made so much money, they’d be just fine.
Makes sense. I knew that Ditko had washed his hands of Marvel, but I didn’t know he had been offered anything from Marvel.
@josh The spider-man claim was always pretty weak, accordng to “King of Comics” Kirby actually did even did some pages which Stan said were not the character he envisioned which is why he went with ditko, making his clams even weaker. Also interesting is rumors that Ditko approached Lee to express concern that Kirby’s Spiderman (Kirby went hyphenless) was a rip off of Kirby’s Fly which was owned by the litigious Archie comics
@ Bluestreak and Alanrob
Thanks for that : ) I’ve been collecting books for years and never knew that. I will check that word balloon out, cheers
I know this sounds cold, but I don’t think it’s right to sue over something like this. Kirby signed a contract that said he would create characters and draw comics featuring said characters, and he would be paid to do so. Nobody forced him to accept this deal. He could have refused to sign. Will Eisner made sure he owned The Spirit. The fact is, a the time, nobody thought comics would amount to anything. Nobody imagined they would have the kind of impact in other medium that they have had. The basis of the lawsuit is basically “Jack Kirby made a bad business decision, so we are suing because he made a mistake.”
A contract is a contract. He wasn’t chained to his desk and forced to draw at gunpoint. He willingly signed the contract. He was compensated the way it was agreed he would be compensated. Just because I personally love his work and wish he was rich because of it, I don’t think that should make him and his family above the law or able to go back on a contract that was signed legally.
@JohnVFerrigno It’s a little more complicated than that. Some of those simple contracts were signed under duress, where they threatened to take away his livelihood unless he caved. There are plenty of stories about Jack being forced into agreeing to deals he shouldn’t have. Further, copyright law concerning work for hire changed in 1976 as well, which comes into this.
@josh I understand what you’re saying, and i do know that Marvel didn’t always play fair, especially with Kirby. However, he was a talented, well respected artist. There were other places he could have worked other than Marvel. And there are plenty of stories of how Jack didn’t think about business at all. He just wanted to draw and cash his paycheck, and didn’t think about what he was signing away. Was it morally right for Marvel to take advantage of that? No. Are they legally in the right? Yes. People shouldn’t be able to get out of a contract just because they didn’t make a good deal at the time.
It’s like Alan Moore always complaining about his deal with Watchmen, were DC retains the rights as long as it’s in print. Moore didn’t have to accept that deal. He just assumed it would eventually go out of print and he would get the rights. He signed the deal, he has to live with it.
I feel bad for people who created hugely popular characters and got very little reward for it. If I was running the show at Marvel, Kirby’s family would get something, just so I could sleep at night. But there are examples of people who didn’t sign away their creations. they are in the minority, but they show that people did have a choice.
Kirby was not exactly a rookie to comics when he created all those Marvel super-heroes. He had been working in the industry for almost 30 years at that point. He knew how the industry worked, but didn’t have the personality to fight for change. Which i actually always found odd, since he was perfectly willing to go down to the street and fight a gang of people who were protesting his work. He had no problem busting skulls for what he believed in if it came to it, but didn’t stand up to a corporation. I always found that interesting.
@JohnVFerrigno He was always most concerned with supporting his family right then, and not taking risks that would jeopardize that. He was a fascinating character born out of a unique time and place.
@josh Yeah, I totally get why he did what he did. Have you read the book on Kirby by mark Evanier? Not only is it a good read, it is jam packed with fantastic art. reading about his life in various places, it always upset me that he didn’t have the financial success that Stan Lee did. But i was happy to learn he got a bit of a boost at the end of his life when he went to work for the Fantastic Four cartoon, where he got paid a lot more money than he did making comics, for less work, and he was revered by the animators. Let his life end on a bit of a more upbeat note than the path it had been heading down.
This suit ultimately comes down to one issue: were Kirby’s (vast and indispensable) contributions to the creation and development of the Marvel pantheon done as “work for hire?” If no, then he – or his estate – have an opt-out provision under the ’76 copyright act where he could regain control of his creations; if not, there is no opt-out right and the empoyer, Marvel, is the author. The Court found there was no competent evidnce to show Kirby was working under any other arrangment other than work for hire, therefore summary judgment was granted.
The Kirby estate could not provide any evidence, other than hearsay, e.g. Mark Evanier’s “expert” testimony and opinons, that Jack WASN’T working under WFH circumstances. Compare that to Marvel, who had the sworn testimony of several men who were there: Stan Lee, Larry Leiber, John Romita Sr., and Dick Ayers, who, to a man, described facts that could only lead to one conclusion: Kirby’s work on those characters was work for hire.
Is it fair? Probably not, but the work for hire provision of the Act and subsequent cases interpreting it have been the operative law since 1909, thirty years before Jack got his start in comics. Moreover, Jack had sixteen years after the 1976 Act went into effect to exercise his option, yet he never did. Had he sone so he would have had the opportunity to speak on the issue and provide the “genuine issue of material fact” necessary to overcome summary judgment and move the matter to a trial. I may not agree with the outcome but I can’t dispute the Court’s reasoning.
As for the Superman cases, it’s been fairy well established that Seigel and Schuster were NOT operating under a work for hire scenario, making this case irrelvant to that litigation.
And yes, I’m a lawyer.
Marvel needs to take care of the Kirby family in the same way that Phil Knight of Nike took care of designer Carolyn Davidson for designing the Swoosh logo. She was paid her freelance rate of $35 in 1972 when she was a student for the logo. Years later, when Nike became a billion dollar brand Knight hooked her up with a very generous amount of Nike stock. He had no legal obligation, but he wanted to thank her for contributing to the success of his company..nothing that either of them could have forseen in 1972.
Contracts are contracts, but the game changed a lot. Marketing and licensing and intellectual property rights wasn’t barely a concern back then. Kirby helped to build that empire, Marvel should make it right and say “thank you” even though they don’t legally have to.
@wallythegreenmonster you summed it up perfectly. Legally, Marvel doesn’t have to do anything. But I’m sure they can afford to take some of the cash they haul in from movies, cartoons, toys, paper plates, bed sheets, Halloween costumes, and everything else imaginable that they have made from these Kirby creations and co-creations and give a bit of it to his family. Do they legally have to? No. Should they? Absolutely.
@wallythegreenmonster: I agree. Once again, you’ve precluded the need for me to reply by summing up my thoughts on the issue rather succinctly. Get out of my head!