Tag: Creators’ Rights

So, another month, another piece of news on Jack Kirby's heirs seeking termination of copyright transfer from Marvel. And another thread made up of the exact same absurd comments.

For the sake of my time and blood pressure, I've decided to just copy down all the very very stupid comments people keep making, followed by explanations of why they are very very stupid, and just preemptively copy-paste it into the comments thread of every article I see on the subject from now on.

I'll probably come back and revise this post here and there, so if it pops up new in your RSS feed every now and again, well, consider it a Living Document.

(Thanks to Nat Gertler for feedback and corrections.)

Revision notes:

• 2018-07-12: Updated a Robot 6 link to the Wayback Machine version, as the comments are no longer available on the live site
• 2011-08-02: Updated to comment on the outcome of Marvel v Kirby
• 2012-05-23: Updated to discuss the Avengers movie, correct some bits where I conflated modern work-for-hire law with pre-1976 work-for-hire law, and include some brand new clichés I'm sick of seeing
• 2014-06-24: Rephrased a remark about the now-overturned Superman ruling; updated the instance-and-expense section with some information on the current challenge to the lower court's ruling; updated some dates and links.
• 2014-09-26: Updated to reflect the news that the case has been settled and will not be taken to the Supreme Court.
• 2014-10-01: Added a link to a Kurt Busiek post on CBR.
• 2014-10-10: Added a few more lines about the settlement, and one new numbered comment/response since I've been seeing a lot of the "The Kirbys may not have sued but they provoked a suit" argument.

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. "The Kirbys shouldn't have sued Marvel!"You've got it backwards. MARVEL sued the KIRBYS; only then did the Kirbys countersue.

   The Kirbys simply filed a request for termination of copyright transfer; it was MARVEL who responded with a lawsuit.

3. "The Kirbys may not have sued Marvel, but they knew that filing for termination would RESULT in a lawsuit. The suit is the Kirbys' fault, regardless of who filed it."While it is true that the Kirbys would have known that Marvel would probably choose to sue them, it was still Marvel's choice. Marvel didn't have to sue; it could have chosen to negotiate outside the court system.

   As it eventually did, with the final settlement in 2014. Marvel CHOSE years of litigation before agreeing to a settlement.

4. "Kirby didn't do all the work himself! Don Heck and Larry Lieber co-created Iron Man, Steve Ditko gave him red and gold armor, Joe Simon co-created Captain America, Ang Lee's Hulk is based on Peter David's run, the movie version of Magneto is way more like Claremont's version than Lee and Kirby's, Mark Millar and Bryan Hitch made Nick Fury look like Samuel L Jackson, and on and on!"I completely agree -- all of those people should receive a share of the profits from the films based on their work, too.

   What I don't understand is taking that line of reasoning to the conclusion that NONE of them should receive anything.

5. "Marvel can't AFFORD to pay everyone involved in creating the characters and stories adapted in its movies."Of course it can. Avengers grossed over a billion dollars.

   It is especially clear, following the settlement, that Marvel can afford to make a deal with the Kirbys -- because it has.

6. "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.
7. "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?
8. "It was work for hire, so Kirby never had any claim to the rights."Yes, that's what the judge ruled on July 28, 2011.

   But consider this: There was no work-for-hire contract. Jack Kirby was a freelancer. There is no evidence that he signed ANY contract with Marvel prior to 1972.

9. "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. There is no evidence that he signed ANY contract with Marvel prior to 1972.
10. "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". What it DOES recognize in determining whether a pre-1978 work was made for-hire is the instance-and-expense test -- that is, did the creator make the work on his own initiative ("on spec") and then sell it, or did he create it at the publisher's request, to the publisher's specifications, and get paid a set rate by the publisher regardless of whether or not the work was published?

    The question of whether Marvel paid Kirby for art it didn't use is key. And the judge's ruling was based on Stan Lee's deposition.

    Other people who did freelance work for Marvel, including Stan's brother, Larry Lieber, said that freelancers were not paid for unused pages. Ultimately, the judge relied primarily on Stan Lee's deposition to support the claim that Kirby was paid for unused pages.

    Marvel's key documents were agreements Kirby signed in 1972 and 1986 claiming his previous work had been done on a for-hire basis. Kirby's agreement, in writing, that this was the case is legally damning, but still not hard evidence that the works actually WERE for-hire; Kirby signed these documents under duress, and the 1986 one was famously a condition for Marvel returning his original art.

    It bears noting that work-for-hire agreements cannot be made retroactively; if Kirby's 1963 work was not for-hire, he couldn't MAKE it for-hire in 1972. Furthermore, the 1972 document itself is contradictory -- it asks Kirby to assign all his copyrights to Marvel, and then suggests he never had any.

    The Kirby heirs attempted to appeal the ruling to the Supreme Court; they submitted an amicus brief challenging the instance-and-expense test and its application in the lower court's ruling. Bruce Lehman, former director of the US Patent and Trademark Office, filed an amicus brief arguing that the instance-and-expense test violates Supreme Court precedent. And, ultimately, Marvel chose to settle, just days before the Supreme Court would have decided whether or not to take the case. This suggests that, at minimum, Marvel believed there was a CHANCE that the Kirbys might prevail, and was unwilling to risk that outcome.

11. "This will destroy Marvel Comics and all my beloved characters!"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.

    This was exactly how the Superman rights operated between 2008 (when Jerry Siegel's heirs were awarded 50% of the rights) and 2012 (when that ruling was overturned): DC continued to publish Superman comics, they just had to compensate the Siegels.

    Kirby's lack of fair compensation during his lifetime is 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.

12. "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.
13. "So if I built a house --"Copyrights are not houses.
14. "So if I bought a house --"Copyrights are not houses.
15. "So if I sold my house --"Copyrights are not houses.
16. "So if I filed for a patent --"Getting closer, but copyrights are not patents, either.
17. "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.
18. "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.

19. "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.
20. "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.
21. "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.

22. "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 never expected to win the Spider-Man rights but asked 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.

23. "Marvel took all the risk; Marvel should get all the reward!"I see this one all the time, and it's rather baffling. Are you arguing against the very CONCEPT of royalties? Try running that one by most comic book writers or artists today and see how far you get. And that's without getting into other creative industries like books, music, film, and television.

    Aside from that, the notion that Marvel took all the risk relies on the assumption that Kirby was paid whether his work was published or not. Again, while the courts have upheld this claim, it is widely disputed.

24. "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, 20 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 works were not for-hire, 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 the court agrees that there is no evidence that he did. Marvel's work-for-hire case is based partially on documents that Kirby signed years after the fact, and partially on Stan Lee's widely-disputed contention that Kirby never worked on spec.

    If this exact same set of circumstances were to occur today -- a freelancer were to create a work without a prior written agreement acknowledging it as work-for-hire -- then the freelancer, not the publisher, would own the rights.

    And if the Kirby heirs could actually produce hard evidence that Jack worked on spec and submitted ideas, on his own initiative, that Marvel never used and that he was not paid for, then that would prove that at least some of the work he did was not on a for-hire basis.

    I can't help thinking that, if any such evidence exists, it was somewhere in the piles of original art that Marvel agreed to return to him and which someone then left unattended next to an elevator.

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://www.tcj.com/kirby-and-goliath-the-fight-for-jack-kirbys-marvel-artwork/ -- The Comics Journal reviews Kirby's 1980's battle with Marvel to get his original art back
• http://comicsbeat.com/kirby-family-files-for-copyright-reassignment/ -- a Publishers Weekly article on the subject from September 2009, with some very good posts by Kurt Busiek and Nat Gertler in the comments section
• https://web.archive.org/web/20151223053109/http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-lawsuit/ -- a Kevin Melrose article on the subject from January 2010, with some very good posts by himself and Kurt Busiek in the comments section
• http://ohdannyboy.blogspot.com/2011/03/marvel-worldwide-inc-et-al-v-kirby-et_13.html -- Daniel Best's collection of depositions from Marvel v Kirby (this specific link goes to the John Morrow deposition, which links to depositions from Stan Lee, John Romita, Larry Lieber, Roy Thomas, and Mark Evanier)
• http://adistantsoil.com/2011/07/28/marvel-comics-vs-jack-kirby-decision-marvel-wins/ -- Colleen Doran's summary of the decision, including a link to the complete document
• http://www.hollywoodreporter.com/thr-esq/jack-kirbys-heirs-get-huge-712924 -- Hollywood Reporter piece on the Kirbys' current (as of June 2014) attempts to appeal to the Supreme Court; includes an amicus brief by Evanier and Morrow regarding comics history and Kirby's arrangement with Marvel, and another by Bruce Lehman challenging the instance-and-expense test used in the lower court's ruling.
• http://community.comicbookresources.com/showthread.php?19301-Marvel-amp-Jack-Kirby-Family-Settle-Long-Running-Legal-Dispute&p=552706&viewfull=1#post552706 -- More from Kurt Busiek, this time a lengthy summary of Kirby's history with Marvel, the history of US copyright law, the specific issues in this case, and a lot of common misconceptions like the ones I've been talking about here.