Marvel Claims Jack Kirby Was Just A Workerbee; Has No Right To Reclaim Copyright On Marvel Characters

from the and-here-we-go-again dept

Last fall, we wrote about how the heirs of famed comic artist Jack Kirby had started alerting everyone that he intended to reclaim his copyrights on various popular comic characters, such as Spiderman, the Hulk, Iron Man, The Avengers and others, using the termination right in copyright law that was recently used by the heirs of one of the creators of Superman to reclaim some of those rights. Not surprisingly, Marvel, who owns many of the characters that Kirby's heirs want to take back, isn't particularly pleased about this (especially since many of those characters have recently become extremely lucrative movie franchises). So it has gone to court to insist that Kirby had no right to the characters and that his work with Marvel was a "work for hire" situation, where Marvel retains all the copyrights. Kirby's heirs, not surprisingly, disagree. They point out that Kirby worked out of his own house as a freelancer with no contract or employment agreement.

I have to admit that I'm not a fan of the termination right for copyright, because it makes a huge mess of things. However, given that it's there, it's really pretty sickening the lengths to which big entertainment companies will go to try to block creators from using it. Remember, these are the same giant entertainment companies who will insist time and time again that they need special government protections to "protect the artists." But any chance they get they'll screw those artists over. You may recall the attempt a decade ago by the RIAA to change copyright law in the middle of the night (literally) by having a staffer slip four words into a larger piece of legislation that would have avoided some of these termination claims. The entertainment industry has no interest in protecting the artists. It only wants to protect its bottom line -- and if that means screwing over the artists, it will do so at every turn.


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  1.  
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    Anonymous Angry Coward (profile), Jan 11th, 2010 @ 12:29pm

    Hey Marvel!

    Hey Marvel, how about your pressure your Corporate Overlords at Di$ney to let you bring back the Marvel: Ultimate Alliance 2 DLC for PSN and Xbox Live!

     

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    The Anti-Mike (profile), Jan 11th, 2010 @ 12:31pm

    The entertainment industry has no interest in protecting the artists. It only wants to protect its bottom line -- and if that means screwing over the artists, it will do so at every turn.

    It's the same old saw. The "entertainment industry" that you all rope together make huge investments in getting this product to market and marketing it. They take signficant financial risks, and the artist takes significant risks by putting their works under contract.

    If the contract could easily be revoked by the artist at any time, the whole deal would change. It would make it very hard for companies to take risks, if they are unsure of their ability to have enough time to recoup their expenses, and to profit from their ongoing ventures.

    I for one suspect that if the comics hadn't been turned into profitable movie franchises, we would not be hearing from the heirs.

    Anyway Mike, are you the one usually disparaging the heirs for trying to have too much power over things? Is this just one of those cases where you can't help yourself, you so want to find a reason to take a swing at the "entertainment industry" that you dont' really worry about anything else?

     

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  3.  
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    Mike Masnick (profile), Jan 11th, 2010 @ 12:33pm

    Re:

    If the contract could easily be revoked by the artist at any time

    Heh. Copyright termination is not "at any time."

    Anyway Mike, are you the one usually disparaging the heirs for trying to have too much power over things?

    Indeed. As I said in the post, I don't agree with the concept of termination. You really ought to read these posts before you kneejerk disagree.

    It doesn't make the actions of the industry here any less questionable, though.

     

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  4.  
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    Anonymous Coward, Jan 11th, 2010 @ 12:46pm

    Re:

    I like the part where Marvel stole Jack's artwork during the eighties.

    They wouldn't let Jack have his original artwork. He drew it. He's the artist. It's his. For a time, Marvel acted like it was their artwork. Like they had drawn it. How absurd!

    I thought you were for the artists? Shouldn't this development have you ecstatic? They're trying to protect the artist!?! Isn't that awesome!?!

     

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  5.  
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    PRMan, Jan 11th, 2010 @ 12:50pm

    Spider-Man???

    Long time comic readers know that Spider-Man was created by Stan Lee and Steve Ditko, who had to fight for name recognition in very public legal battles.

    DC had better watch themselves as well, since they have several popular characters created by Kirby (the most popular being the villain Darkseid).

     

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  6.  
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    PRMan, Jan 11th, 2010 @ 12:52pm

    Re: Re:

    If I write software for my employer while on the clock for them, it's theirs, not mine, even if I'm a consultant.

    I don't care if Kirby was a consultant or an employee, if he didn't create the characters on his own dime, they're not his.

     

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  7.  
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    now hold on a minute, Jan 11th, 2010 @ 12:53pm

    Marvel is not exactly the same as RIAA...

    While I share in the general disgust at the Movie and Music industries practices regarding intellectual property, Marvel can't be lumped together with them.

    Despite the recent big budget movies and the interest that has brought back to caped crusaders and masked vigilantes, Marvel has always been a comic book company!

    And comic books back in the day were a couple of guys working together, for story line, image, coloring, ink, etc...

    more importantly, Spiderman isn't just an image or a song, he's a character, that has been built up over DECADES of comic books, exploring his idiosyncrasies, relationships, strengths and weaknesses!

    Spiderman belongs to the public as much as he belongs to Marvel, but looking past that to the legalities, Stan Lee is synonymous with Marvel, as everybody and their brother can tell you!

    Let's give Marvel the benefit of the doubt here, and see how this plays out before condemning them.

    Just because you have an idea to improve, or are even part of the creation of the final product, doesn't give you ownership rights. Spiderman wouldn't have been Spidey if there weren't a printer, editor, distributor, etc.... Someone had to put all those elements together, and usually, someone who is organized enough to do so is also organized enough to create a business out of it.

    If I create a business to create birthday cards, I don't care if one of my writer's works from home, on a bus, in a park, whatever makes them feel comfortable. But I am the one with the expenses of printing, distributorship, etc, and I am PAYING that writer for his work. And I am the one taking all the risk.

    You better believe when all is said and done, the rights to the card belong to me.

    With the world the way it is now, I will definitely have that in the contract.

    If the fact the world wasn't as law suit happy 50 some odd years ago meant they didn't cover every eventuality with a contract, we shouldn't blame Marvel, or let someone else take advantage of it.

    Remember, when Spiderman came out, these comics cost a penny! It was just a Comic Book!

     

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  8.  
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    Sneeje (profile), Jan 11th, 2010 @ 1:08pm

    Re: Re: Re:

    Actually that's questionable--however, many software companies have you sign an agreement when you are hired (that is usually a condition of employment) that this is true.

    If you had not signed an agreement like that, it would depend on the amount of money/time/effort the company put into the software you wrote.

     

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  9.  
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    :Lobo Santo (profile), Jan 11th, 2010 @ 1:09pm

    Re:

    Bad troll! No cookie.

     

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  10.  
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    RD, Jan 11th, 2010 @ 1:39pm

    wow

    As usual, TAMAHOLE takes the side of Big Media over the Public Good, or even the Artist.

    Sadly, I dont think the heirs have much of a leg to stand on, unless for some reason the court voids the original contracts/agreements, which I seriously doubt they would since it would impact a LOT of creative industries and agreements.

    I'm not sure if this was true back in the early 60's, but at least since the early 70's and onward, the check you got from Marvel (or DC or whoever) had an agreement written right on the back saying "if you sign this, you agree that you are being paid work-for-hire." Work for hire sucks, but it is a contract, and its binding. I personally wish the original artists would own their creations, and indeed this changed a lot later in the century with creator-owned works, but for stuff pre-80's, you are likely looking at a work-for-hire scenario and it's going to be a tough fight to get that overturned.

     

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  11.  
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    Anonymous Coward, Jan 11th, 2010 @ 1:42pm

    Re: Re: Re:

    I have no idea how the ownership of Marvel's characters will play out in court.

    However, I was just commenting on the absurdity of a company that tried to steal Jack Kirby's original artwork. It was a huge comic book scandal back in the eighties.

     

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  12.  
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    George, Jan 11th, 2010 @ 1:45pm

    If you are P.O.'ed about what Marvel did, I would say go to or start the site 'boycotmarvel.com' but it seem that Marvel already owns it. ;) Hmmm....

     

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  13.  
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    George, Jan 11th, 2010 @ 1:47pm

    Re:

    Of course I meant 'boycottmarvel.com'

     

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  14.  
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    Olan Mills, Jan 11th, 2010 @ 1:59pm

    Re: Re: Re:

    You aren't making any sense. If he was not an employee, how could he be working 'on the clock for them'? He bought his own ink and paper, sat at home and drew stuff, and then took it to the publisher.

     

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  15.  
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    Michial Thompson, Jan 11th, 2010 @ 2:28pm

    Work for hire

    If he had a contract to produce work for Marvel it was "work for hire" no matter where he was or what he used to create it.

    Guess what people you can't have your cakes and eat it too. If you want a pay check for your work, then guess what, what you produce belongs to the person paying you... Its a bunch of BS that after someone spends millions promoting and building a product that some artist who's already been paid comes along and decided now they want it all back...

    When you invest your millions then you have every right to it, but until then too bad.

     

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  16.  
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    The Anti-Mike (profile), Jan 11th, 2010 @ 2:35pm

    Re: Re:

    I read you post. You appear to be calling both sides idiots, but you seem to be more upset about what the big bad "entertainment industry" is doing. In this case, they appear to be in the right.

    So would you like to get off the fence and pick a side?

     

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  17.  
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    The Anti-Mike (profile), Jan 11th, 2010 @ 2:35pm

    Re: Re:

    i made you a cookie. but i eated it.

     

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  18.  
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    McBeese, Jan 11th, 2010 @ 2:52pm

    Re: Re: Re:

    Sometimes both sides behave badly, in which case the fence (the middle ground) is the right place to be.

    For once, I'm pretty much in agreement with Mike's position.

     

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  19.  
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    Chargone (profile), Jan 11th, 2010 @ 2:53pm

    Re: Re: Re:

    Personally, if two rabid dogs are fighting, I'd much rather stay up on the nice safe fence than get involved...

     

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  20.  
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    McBeese, Jan 11th, 2010 @ 2:54pm

    Re: Re: Re:

    Sometimes both sides behave badly, in which case the fence (the middle ground) is the right place to be.

    For once, I'm pretty much in agreement with Mike's position.

     

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  21.  
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    Anonymous Coward, Jan 11th, 2010 @ 3:06pm

    Re: Work for hire

    "The truth is that Jack Kirby was his own man," the release states. "Like so many artists in the fledgling comic book industry of the late 1950's/early 1960's, Kirby worked with Marvel out of his own house as a free-lancer with no employment contract, no financial or other security, nor any other indicia of employment. ... Kirby's wonderful creations, which leapt from the page, were not Marvel's 'assignments,' but were instead authored by Kirby under his own steam and then published by Marvel. It was not until 1972 that Kirby by contract granted Marvel the copyrights to his works. It is to this grant that the Kirby family's statutory notices of termination apply."

    http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-law suit/

     

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  22.  
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    RD, Jan 11th, 2010 @ 3:13pm

    If true

    "It was not until 1972 that Kirby by contract granted Marvel the copyrights to his works. It is to this grant that the Kirby family's statutory notices of termination apply."

    If this is true (and I recall, it is) then this entire case is valid. The termination clause can be invoked, since that contract was an admission by Marvel that these characters were his (otherwise, why would the copyright NEED to be assigned to Marvel in 1972?)

    This is going to be interesting.

     

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  23.  
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    Anonymous Coward, Jan 11th, 2010 @ 5:51pm

    Re: Re: Re:

    Considering the only side you pick is whichever one is opposite Mike's, you probably shouldn't be whining about any fence-sitting.

     

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  24.  
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    Anonymous Coward, Jan 11th, 2010 @ 5:57pm

    Re:

    "The "entertainment industry" that you all rope together make huge investments in getting this product to market and marketing it. They take signficant financial risks,"


    - Awww ... isn't that special

     

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  25.  
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    Doh!, Jan 11th, 2010 @ 5:59pm

    Re: Re: Re:

    Maybe you missed the part which said ...

    "Kirby worked with Marvel out of his own house as a freelancer with no employment contract, no financial or other security, nor any other indicia of employment."

     

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  26.  
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    nope, Jan 11th, 2010 @ 6:02pm

    Re: Work for hire

    Did you read the linked stories ?

     

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  27.  
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    Anonymous Coward, Jan 11th, 2010 @ 6:34pm

    Re: Spider-Man???

    Yep just a sign that the original news article failed to do it's research. I don't think Jack ever drew Spidey in guest appearances very often if at all.

    The King was in on the original X-Men though.

     

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  28.  
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    Chris, Jan 11th, 2010 @ 8:56pm

    Re: Re: Re:

    PRMan it's nowhere near as clear as you would like to make it. Especially if it's written by a consultant.

    http://www.tms.org/pubs/journals/JOM/matters/matters-9608.html
    http://www.troutmansa nders.com/who-owns-the-code-beware-copyright-pitfalls-01-30-2009/

     

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  29.  
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    techflaws.org (profile), Jan 12th, 2010 @ 4:42am

    here we go again

    So would you like to get off the fence and pick a side?

    Always funny to see your brainless points getting torn apart immediately by other commenters.

     

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  30.  
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    dkazaz (profile), Jan 12th, 2010 @ 7:07am

    Re:

    No offense implied but you don't have a clue about comic book industry economics. I feel strongly about this, so I'm going to explain:

    The risk taken by the publisher of a comic book is minuscule compared to that of a movie studio, music company or software developed.

    The only costs are (a) pitiful artist compensation (especially back in the '40s when Jack Kirby started work for Marvel and DC Comics' predecessor companies) and (b) printing a distribution costs amounting to a few thousand dollars per issue. If the issue doesn't turn a profit, they would cancel the next installment, in most cases denying compensation to the cartoonists for the work already done.

    When Jack Kirby started work he was around 16 years old and created successful comic characters like Captain America and the Sandman.

    He worked out of a private studio shared with his writing and artist partners and sold the work to publishers. Each studio had a distinctive set of books and even productions styles and the publishers were just that - publishers. They received a ready made product and only then paid for it, on a case by case basis.

    In fact the original work for hire contracts used in the comics industry have been held up as one of the most exploitative forms of employment used in the western world dusing the past century. They have been repeatedly revised as the courts have recognized the fact they fail to comply with a multitude of laws that exist for the protection of workers, artists and content producers.

    A particularly glaring example is the fact that, while Kirby used his own materials to produce his comics (paper, ink, pencils, brushes) the majority of his artwork was never returned to him by the publishers, who blatantly ignored his repeated requests for it. Much of it ended up in the private homes of employees and executives, which of course constitutes theft.

    It's worth mentioning, that an original Kirby page is worth between a few thousand to several tens of thousands (in some cases hundreds of thousands) of dollars.

    Kirby who faced financial difficulties through much of his life, could certainly have used the sale of his artwork to support himself through lean times but the publishers who achieved supernormal profits from his creations treated him like cr*p.

    Among the list of characters created and developed by Kirby some that come to mind are:
    -Captain America
    -The incredible Hulk
    -The Fantastic Four
    -The X-Men
    -Iron Man
    -The Silver Surfer
    -The Avengers
    -The Sandman
    -Black Panther
    -Thor
    And a huge number of others (see http://en.wikipedia.org/wiki/Category:Characters_created_by_Jack_Kirby if curious)

    Collectively his characters have (a) delivered 75% of Marvel Comics' income over the last 70+ years (d) generated over $2.2bn of movie revenue in the last 10 years alone (c) constituted the basis for over 50% of Marvel comics subsequently developed content and a healthy chunk at DC comics.

    And to the day he died he never received a pension, an insurance payment or a day's paid vacation. He always worked and was paid by the page, even running his own studio in the 70's, with his assistants paid by himself to work on marvel comics books.

    Now I'm not a big supporter of IP, copyright extensions and IP inheritance, but I think that the publishers bled the guy enough during his life. Maybe his family should have some of the quality of life they would have had, had he worked during the 90's after the work for hire contract standards were reformed.

    If not, maybe the copyrights should become public domain. But cementing these predatory parasites' right to continue to profit from his work is just sick. Unfortunately that's exactly what may happen.

     

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  31.  
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    jazzdre, Jan 12th, 2010 @ 8:19pm

    jack kirby

     

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  32.  
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    jazzdre, Jan 12th, 2010 @ 8:49pm

    jack kirby

    A lot of you(so far from what I have read) seem to be on the side of Marvel; that these are "THEIR" characters,Kirby was working on their dime, he has no right to them, etc.However, these ARE HIS CHARACTERS!!! What really did Stan Lee and Marvel do before Jack came along,huh? Not to slight Stan, he did co create these charcters with Jack, but Marvel gives him all the glory, all the fame, and Jack gets nothing from the company that he pretty much built.Jack was a FRELANCER; he got no contract from Martin Goodman(the founder and publisher of Marvel)so this was NOT work for hire! This was a man giving his services to a company in exchange for a paycheck,which really needed his help at that time. In Europe, Canada and Japan, comic creators are wealthy because publishing houses in those regions realize the creator's worth, and also his/her time and effort, so they let the creator CO_OWN the property with the company! It's only here in America where this foolishness of taking away the characters from the creators happen.This evil has got to stop, because it is bad for everybody involved: the creators, who end up in poverty, the company,which gets a bad reputation,and ultimately the fans, who get no good stories and no new characters to read about, because writers and artists in the business are afraid to create something new for fear that the company will take away their creations and end up like Jack Kirby.I have more to say on this subject, but for now, this will suffice.

     

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  33.  
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    dkazaz (profile), Jan 13th, 2010 @ 12:31am

    Re: jack kirby

    Just an additional point on weather Stan Lee really co-created the characters or not:

    The "Marvel Style" of comics creation during the 60's when most of the popular characters were created was based on the artist first producing the pages of the comic, i.e. creating the story from a very general outline (less than a paragraph in many cases) and then giving them to the "writer" to script. This was certainly the style Jack Kirby and Stan Lee used, meaning Stan's contribution to the characters was even smaller. In fact he scripted stories which were entirely produced by Kirby. This is not to say he made no contribution - Kirby was terrible at dialogue while Lee was very good at it, but it hardly constitutes creation. When you see an Oliver Stone movie, you don't think of the extra writers who produced various parts of the script as "creators". You think of them as assistants.

    Another point on the question of ownership and the execrable policies of the large US comic publishers: Many early famous characters were developed (partly or fully) by their creators who then went around the publishing houses to see who would pick up the stories. This applied to Captain America, Superman, Wonder Woman and many others.

    The publishers who picked them up, never actually bought the characters - they just paid for the stories on a page basis. No transaction for the ownership of, say, Superman or Captain America took place. Later they claimed they "owned" the characters effectively by extension of the initial story purchase.

    Imagine if JK Rowling's publishers suddenly claimed she does not own Harry Potter, because they published the first book. Would that fly? Not in a million years, and yet, this is exactly what happened to the creators of the most famous comic characters. It's an injustice of (literally) criminal proportions.

    It's also worth mentioning that the creators of newspaper cartoons were treated entirely differently by the publishing syndicates. Already in the 40's they were offered c-ownership or full ownership of their creations, royalties on re-reprints and lucrative merchandising rights.
    This is important because it completely disproves any arguments that the comic industry's practices were common at the time. They were nothing less than thugs taking advantage of the poor naive artists who didn't think they would ever get fair shake and let themselves be exploited for the sake of a meal and money to pay the rent.

    So before anyone else makes comments like "it was just a comic" and "that was how things worked then" think again.

     

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  34.  
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    Anonymous Coward, Jan 14th, 2010 @ 7:26pm

    "Imagine if JK Rowling's publishers suddenly claimed she does not own Harry Potter, because they published the first book. Would that fly? Not in a million years, and yet, this is exactly what happened to the creators of the most famous comic characters. It's an injustice of (literally) criminal proportions."

    Analogy=Fail.

    Rowling created the Potter characters ON HER OWN and then sold rights to her publisher.

    Kirby was an EMPLOYEE, who was HIRED TO CREATE CHARACTERS for the company who paid him.

    A world of difference between the two.

     

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  35.  
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    Anonymous Coward, Jan 15th, 2010 @ 8:58am

    Re:

    Well, good thing he WASN'T an employee, right? Learn to read. He was a freelancer artist who sold his work to the company. This was done purposely by the company itself (to avoid employment contracts).

     

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  36.  
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    janor hypercleets, Apr 24th, 2010 @ 2:17pm

    jack kirby

    i think its a ripoff that jack kirby created so many wonderful characters and his family doesn't get any of the money. i don't think the claim of owning spiderman is legit, in my opinion spiderman was created by stan lee and steve ditko. but fantastic four, iron man. hulk, and many other characters were created by jack kirby.

     

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  37.  
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    lrobbo (profile), May 30th, 2012 @ 12:28pm

    Sucks, like just pointing out the obvious greed of these companies but it still makes me fume every time I read about it . .

     

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