Heirs Of Comic Book Artist Alert Everyone They Want Their Copyrights Back

from the Kryptonite-vs-greed dept

In August, we wrote about the latest in the long saga of the heirs of one of Superman's creators trying to regain the rights to Superman. Copyright law, among its many complexities, includes a provision for terminating the assignment of copyrights, such that the original creator can get them back over time. Getting into exactly how it works and the reasoning behind it isn't worth mentioning here. But it's created the mess with Superman, and now the lawyer who helped win that case is helping the heirs of Jack Kirby, a comic book artist who worked on a bunch of comic books, to send out 45 letters warning pretty much everyone in Hollywood that they intend to take back the copyrights on a bunch of works, including the X-Men. Of course, the earliest they can actually do this is in 2014... so why announce it now? Well, one guess is that with Disney in the process of buying Marvel Comics, the studio might not want to have to deal with the complication and may be willing to pay off the heirs now. (Update: Some lawyers have pointed out that you have to alert the copyright holder a few years in advance to terminate... so that's another reason). While some may find it amusing to see the Hollywood studios suddenly on the "wrong" side of copyright law, the whole situation is pretty ridiculous. It's nothing more than a pure money grab on the part of heirs -- people who had nothing at all to do with the creation of a work.


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  1.  
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    Anonymous Coward, Sep 22nd, 2009 @ 9:44am

    Wow, I was reading about this termination clause

    http://www.bitlaw.com/copyright/license.html

    and I never thought intellectual property laws were this messed up. Who the heck made up these laws? What if someone releases a book under the GNU - FDL and later decides to terminate it and many people already relied on the notion that the book would be released for free. Now every time someone buys or sells a a book, movie, or music under a creative commons clause they HAVE to worry about possible termination of copyright? This is absolute nonsense, it even destroys our contractual workarounds to our broken intellectual property system. Who came up with these stupid laws?

     

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  2.  
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    Anonymous Coward, Sep 22nd, 2009 @ 9:52am

    Re:

    "The purpose for this is to give the creator of the work or the creator's heirs a second chance to exploit the work in situations where the value of the work may have been significantly enhanced since the original transfer."

    (from above link)

    This logic is only slightly worse than the logic used to defend intellectual property. If I sell something and it accumulates value over time (ie: a car) I am not entitled to take it back. That's the risk I took when I sold it. Or if I sell a car and it's broken down and the person I sold it to fixed it up and now it's worth more, I am NOT allowed to suddenly take the car back. I had my opportunity to fix up the car before I sold it and to make it valuable.

     

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  3.  
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    Richard (profile), Sep 22nd, 2009 @ 10:08am

    Re:

    Reading your link I note that there is an exemption for "derivative works created before the transfer".
    So actually I don't think Hollywood has much to worry about - all they can get back are the old originals.

    The GPL is a license not an assignment of copyright so I don't think that would be affected.

    This law also doesn't exist outside the US (although there is in the UK a provision for authors to recover the rights to books if they are out of print)

     

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  4.  
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    John Doe, Sep 22nd, 2009 @ 10:12am

    This is funny and maybe exactly what is needed to get copyright looked at in a serious light. With Hollywood on the wrong side of copyright, they may push for something to be changed. That may be the chance for real change. You know, change we can believe in.

     

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  5.  
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    Anonymous Coward, Sep 22nd, 2009 @ 10:15am

    Re: Re:

    It's derivative works prior to termination of the transfer.

    "So actually I don't think Hollywood has much to worry about - all they can get back are the old originals."

    You're missing the point. The point is if someone writes a book and releases it under the GPL license then they can revoke it under this law.

    "The GPL is a license not an assignment of copyright so I don't think that would be affected."

    When someone sells the copyrights to someone else that's essentially a license so the termination of the transfer would be the termination of the license. One can say that the GPL is a "transfer" of rights to those who comply with the license. but it also really depends on how a court rules but a court could easily interpret the law the way I just did being that this seems to be the correct way to interpret it.

     

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  6.  
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    Anonymous Coward, Sep 22nd, 2009 @ 10:19am

    Re: Re: Re:

    "The ability to terminate a transfer cannot be negotiated away. Thus, the author of a valuable book has the right to reclaim the copyright in the book by terminating the transfer, even if the agreement signed by the author stated that the assignment of her copyright rights was permanent and irrevocable."

    Agreements that the assignment of the copyright is permanent (ie: the Gnu - FDL which assigns certain terms to the material) do not void the termination of transfer, so it seems very unlikely an agreement would avoid the termination of the license.

     

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  7.  
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    scote, Sep 22nd, 2009 @ 10:33am

    "Copyright law, among its many complexities, includes a provision for terminating the assignment of copyrights, such that the original creator can get them back over time. Getting into exactly how it works and the reasoning behind it isn't worth mentioning here."


    Clearly, from the interest in the comments, it **is** worth getting into.

     

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  8.  
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    scote, Sep 22nd, 2009 @ 10:35am

    "When someone sells the copyrights to someone else that's essentially a license"

    No, it is not. That's like saying that selling your car is the same as leasing it. Terms and details matter in jurisprudence.

     

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  9.  
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    Anonymous Coward, Sep 22nd, 2009 @ 10:42am

    Re:

    You're right, I realized that after posting. I need to stop posting so hastily.

     

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  10.  
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    fogbugzd, Sep 22nd, 2009 @ 10:44am

    Just, wow.

    >>"The purpose for this is to give the creator of the work or the creator's heirs a second chance to exploit the work in situations where the value of the work may have been significantly enhanced since the original transfer."

    The rational is completely messed up, and this case illustrates it. If a work becomes more valuable after the original transfer, it probably means that the new holder added the value by marketing, promotion, or extending the work. Why should the original author or heirs be entitled to reap the extra value that others put into a product?

    Does this also mean that Hollywood will stop making movies of classic comics and books? It seems like the only safe thing for them to do is to base everything on entirely new characters and storylines.

    My guess is that if there is any change in the law, it will be just a provision to repeal this clause, probably attached as a rider to some larger bill. I doubt that the industry wants to open a public discussion about a complete revision of copyright law."

     

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  11.  
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    Anonymous Coward, Sep 22nd, 2009 @ 10:51am

    My grandfather was a butcher. Long before my birth he sold his butcher shop. I think I'll go back to that shop now and demand that they just give it back to the family (I mean me). Nice.

     

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  12.  
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    Richard (profile), Sep 22nd, 2009 @ 10:59am

    Re: Re: Re: Re:

    No you're wrong. It is only the base rights that can be retrieved. A license is not the same thing at all. Otherwise, when you buy some proprietary s/w your license to use it could be revoked at any time with no cause or compensation. The thing that can be retrieved is the right to grant licenses - but you can't take the licenses themselves back.

     

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  13.  
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    Derek Reed, Sep 22nd, 2009 @ 11:12am

    This is fucking insane

    On so many levels ... There can be no excuse for this aside from entitlement. How can anyone defend this crap being in place aside from entitlement? I thought we were at an agreement with at least the intelligent people on the other side were only arguing for promoting progress or things that could be remotely convoluted to be promoting progress, not this crap, so shouldn't we be able to kill this now? And maybe kill a few more birds with it?

     

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  14.  
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    Matt (profile), Sep 22nd, 2009 @ 11:15am

    This will _not_ be a wake-up call, any more than Winnie-the-Pooh.

    The rationale, incidentally, makes sense. It alleviates one of the complaints about the copyright system - that it compensates the wrong people. Say you write a book. You get a $500 advance plus 7% royalties, and a similar piece of any derivative works. After expenses, you realize, say, 2% of the cover price. The book becomes a massive best-seller. You make some money, the publisher makes a lot more.

    Not only does the book keep producing, but for 35 years it is a huge deal. You keep making some money, but less and less as derivatives of derivatives and massive expenses dilute your royalty. Now, assuming anyone is entitled to keep pulling in cash, why would it be the publisher? That allocation seems the _most_ likely to result in unfair transfer payments with no increase in the incentive to create.

    Incidentally, the notice came out now because it is required to come out between two and 10 years before the effective date of the termination. Five years is not an uncommon window. They may well have figured that there will be ugly litigation, and they want to get that started right away.

     

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  15.  
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    Anonymous Coward, Sep 22nd, 2009 @ 11:22am

    Re:

    "The rationale, incidentally, makes sense. It alleviates one of the complaints about the copyright system - that it compensates the wrong people. Say you write a book. You get a $500 advance plus 7% royalties, and a similar piece of any derivative works. After expenses, you realize, say, 2% of the cover price. The book becomes a massive best-seller. You make some money, the publisher makes a lot more."

    You should have thought about that before signing contracts with the publisher.

     

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  16.  
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    Anonymous Coward, Sep 22nd, 2009 @ 11:42am

    Most publishers work on a "take it or leave it" system Just like you can ask for a 10% discount on the floor model but if company policy says no then the store wont budge.

    The same thing happens with employment contracts now a days, I get a form that says I cant mark anything off and that I cant work the same job with in 100 miles reguardless of how im terminated.

    I have no leverage in stuff like this, im not special or well known so I dont get the time it costs to lawyer up a better aggreement (because LAWYERS MUST be in involved)

     

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  17.  
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    Anonymous Coward, Sep 22nd, 2009 @ 11:53am

    Re:

    Why not the publisher? If publishing was easy, you would have done it yourself instead of giving up 93% of your profits to them.

    The publisher is still producing the product. If the publisher quits working, no revenue comes in for anyone. Meanwhile, you haven't made a literary contribution in 35 years (despite having a best of all time selling book)?

    Remember, the publisher may take losses on lots of things. If you can figure out a way to pay writers more and still make money, you should do it. You'd revolutionize the publishing industry and be rich and the writers would be better off too.

     

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  18.  
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    Anonymous Coward, Sep 22nd, 2009 @ 12:02pm

    Re:

    "I have no leverage in stuff like this, im not special or well known so I dont get the time it costs to lawyer up a better aggreement (because LAWYERS MUST be in involved)"

    Sell it on Ebay or Amazon.

    Yes, you're not famous, but that doesn't mean you should be able to use the publisher to become famous and then, after using it, take the value that the publisher added to your work.

    This is like selling a car under the pretext, "I don't have the resources to fix it" and when the person you sold it to does fix it, demand it back.

     

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  19.  
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    Bill M. (profile), Sep 22nd, 2009 @ 12:09pm

    "Getting into exactly how it works and the reasoning behind it isn't worth mentioning here."

    Oh yes, we wouldn't want to get into the reasons why the laws are the way they are before criticizing them.

    Lazy.

     

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  20.  
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    PrometheeFeu (profile), Sep 22nd, 2009 @ 12:13pm

    So, wait... I seem to remember the rights to Superman's super-strenght were not held by the same people as those who hold the rights to his flight ability. Which one is it? Sounds hilarious to me.

     

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  21.  
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    Anonymous Coward, Sep 22nd, 2009 @ 12:13pm

    Re: Just, wow.

    Exactly. The value of the characters Jack Kirby helped create was enhanced by all the wonderful artists and writers that have produced such wonderful work since. Without any help from Mr. Kirby or his heirs. Merely originating a good idea should not allow one to perpetually lay claim to all the manifestations of that idea. That's an insult to all the people that worked hard on things the originator never thought of.

     

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  22.  
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    ultra, Sep 22nd, 2009 @ 12:27pm

    Just wanna point out that actually Superman is a DC Comics character and has nothing to do with Marvel. It's pretty unlikely that Disney's purchase of Marvel has anything to do with the heirs' timing on this, since Disney didn't buy any rights relating to Superman.

     

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  23.  
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    Anonymous Coward, Sep 22nd, 2009 @ 12:37pm

    Re:

    "Oh yes, we wouldn't want to get into the reasons why the laws are the way they are before criticizing them."

    The alleged reason/intentions for a law is irrelevant, the only thing that is relevant is what the law is used for, how the law is applied, what the law does, how it's used, the effects of the law and basically the outcome. The road to "tyranny" is paved with good intentions.

    I can make a law legalizing murder with the intent of reducing litigation since murder will happen without it being illegal anyways or I can make a law outlawing dihydrogen monoxide under the pretext that it's caused a lot of harm to society ( http://www.dhmo.org/facts.html ), ie: people die from accidental inhalation and such. But the outcome is not good. It doesn't matter WHY I wanted to ban dihydrogen monoxide, the reasons are absolutely irrelevant no matter what the reasons are, what we are looking for is the OUTCOME.

     

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  24.  
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    Raybone (profile), Sep 22nd, 2009 @ 2:06pm

    Re: Just, wow.

    "Does this also mean that Hollywood will stop making movies of classic comics and books? It seems like the only safe thing for them to do is to base everything on entirely new characters and storylines."

    And that would be a marvelous revolution. Hollywood would have to actually be creative and original. It would be a Renaissance of movie culture.

     

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  25.  
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    Luci, Sep 22nd, 2009 @ 3:11pm

    Re:

    Just want to point out that no one said anything about Disney purchasing Superman. The link between the two cases is the lawyer. Not Disney. Perhaps your own reading comprehension was lacking, this time?

     

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  26.  
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    PRMan, Sep 22nd, 2009 @ 3:30pm

    Re:

    "The rationale, incidentally, makes sense."

    No it doesn't.

    Get off your lazy butt and write a new novel "From the bestselling author of Winnie-the-Pooh."

    Go with a different publisher and demand a better cut because now you have proven your worth.

    Letting you (or worse, your lazy spoiled heirs) get money for nothing for decades is ridiculous. Get off your butt and work like the rest of us.

     

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  27.  
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    Vincent Clement, Sep 22nd, 2009 @ 4:14pm

    My understanding is that Disney was fully aware of this possibility when they made their offer for Marvel. I'm thinking that Disney knows exactly how much they will be paying to the Jack Kirby's heirs.

     

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  28.  
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    Vincent Clement, Sep 22nd, 2009 @ 4:16pm

    Re:

    This still compensates the wrong people. The heirs of Jack Kirby had nothing to do with the creation of these characters. When you die, any content you created should become public domain.

     

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  29.  
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    brent, Sep 22nd, 2009 @ 5:13pm

    intent of right to terminate transfer

    The inalienable right to terminate a copyright assignment under 17 USC s.203 is intended to level the playing field for "starving artists," who, early in their careers, are perceived to be at risk of exploitation by corporate buyers.

    The legislative history posits that section 203 is "...a provision safeguarding authors against unremunerative transfers. A provision of this sort is needed because
    of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited. Section 203 reflects a practical compromise that will further the objectives of the copyright law while recognizing the problems and legitimate needs of all interests involved." House Report on Copyright Act of 1976, H.R. Rep. No. 94-1476, at 124 (1976).

     

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  30.  
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    Anonymous Coward, Sep 22nd, 2009 @ 11:20pm

    If only people put so much effort into creativity then creatively acquiring (or trying to) proceeds from others creative activities ......

     

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  31.  
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    Marcel de Jong (profile), Sep 23rd, 2009 @ 4:05am

    "my father built the house you live in...

    ..so clearly I am entitled to your moneys."

    Copyright law as it stands now is a complete joke, a wellfare system for the heirs of artists, no wait I mean rightsholders, and not what it used to represent: an incentive for artists to create new works.

     

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  32.  
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    Marcel de Jong (profile), Sep 23rd, 2009 @ 4:09am

    Re:

    John C. Dvorak on TWiT recently said: "Don't sign the dummy contract, because only dummies sign that contract." on the subject of book publishing.

     

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  33.  
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    A Different Anonymous Coward, Sep 23rd, 2009 @ 6:27am

    Re: Re: Just, wow.

    I agree with your commment; Could I offer some friendly amendments:

    "Exactly. The value of the characters Jack Kirby helped create was enhanced by all the wonderful artists and writers *[who with the consent of the creator via contract]* have produced such wonderful work since, without any help from Mr. Kirby or his heirs. Merely originating a good idea should not allow one to perpetually lay claim to all the *[agreed to and legally arranged]* manifestations of that idea. That's an insult *[and possibly a financial injury]* to all the people that worked hard on *[derivative works that]* the originator never thought of."

     

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  34.  
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    A Different Anonymous Coward, Sep 23rd, 2009 @ 7:05am

    Re: intent of right to terminate transfer

    I get it. Really, I do. Some corporations do have as part of their business model, the exploitation of "starving artists." And there should be laws on the books that allow the artist to address past exploitations in some reasonable amount of time. But I have to think that this is more about situations where an author may want to regain control of an enduringly popular novel, or an iconographic painting - a work that is "complete" in some way.

    I'm an artist and while I am a staunch protector of creator rights, even I have to admit that, a character, created while working for a large company that overtly intends to take that character and "perform" it in many different manifestations and incarnations, by combining my original work with work from many collaborating artists (or heck, with input from any kind of employees or business partners) - over a long period of time... is not something I should exclusively own in perpetuity. I'm not saying that as a creative employee everthing you do is work for hire, (I don't think it shouldn't be unless you sign that kind of contract explicitly as a condition of employment - as I have done in the past) but I don't think that it is unreasonable that as the originator - as the years go by, and as my creative kernel is dilluted/greatly enhanced by the work of others that I (and my heirs) should receive a smaller and smaller return.

    Did Kirby get what he should have? No. Okay, understood. That was part and parcel for the comics industry during his era (Ref: http://www.heroinitiative.org/) Do his heirs deserve something? Yes. I just hope this legal battle doesn't result in ridiculously large dollar amounts going to his heirs. The basis for the actions is correct, I think the scale is where it can get out of control.

     

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  35.  
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    Almost Anonymous (profile), Sep 23rd, 2009 @ 8:32am

    Re: Re:

    In this context, that is very interesting. I don't follow any comics very closely, but I know that they all "evolve" over time. So if/when these IPs must be returned to the heirs, do they only get the old-skool powers, costumes, etc.?

    I wish I knew whether or not I am joking...

     

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  36.  
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    Almost Anonymous (profile), Sep 23rd, 2009 @ 8:41am

    Re: Re: intent of right to terminate transfer

    """
    Do his heirs deserve something? Yes.
    """

    Sorry man, I was right there with you up to this point. Please explain why his heirs *deserve* anything? They contributed how?

     

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  37.  
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    A Different Anonymous Coward, Sep 24th, 2009 @ 9:07am

    Re: Re: Re: intent of right to terminate transfer

    His heirs deserve something because he got bilked out of his proper compensation for his work. Just because he died doesn't mean the corporation is off the hook. His heirs deserve what he should have gotten. Again this a question of scale.

    He might not be owed that much, and so his heirs might not inherit that much. In essence, I see this as no different than an instance of back pay. When someone dies between paychecks, you don't look at the heirs and go "So what did you [child of my employee] do to deserve this money?" Do you? No. You pay them the money you owed the employee unless you are a.. [self-censored my descriptor]

    So okay then. The position of the family is that the company owes (owed) Kirby. I don't see a problem with that. The issue is: How much did they underpay him? $45?, $4500?, $450,000?, 45 Bazillion dollars? We don't know (and that's where the lawyers and accountants come in to work out a fair dollar amount), but I think the family has the right to assert that the company owed him more than they paid him while he was alive - and that debt is now owed to them, his heirs.

    Again I only think this will be problematic if the heirs think that they deserve the value of EVERYTHING Marvel has done with those characters - because clearly they don't.

    And I think Marvel / Disney understood/understands this and so will just work it out in court as a normal business expense, which is why they don't seem to be freaking out about the family's notice of intent.

     

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  38.  
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    Justin Roberts, Sep 28th, 2009 @ 4:16pm

    President Carter

    Notice the commencement date of these copyright changes? 1978!! Once again, the dead hand of the Carter Administrator crosses through time to screw things up for people today. Worst Administration Ever!! (bet under Carter Copyright i'm breaching the Simspons Copyright by saying that!).

     

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