The King's Ransom

2010-04-05, 5:54 PM
Categories: Comics, Politics

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.)

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.

    EDIT 2011-08-02: As of July 28, a federal judge has ruled that Kirby's work WAS in fact for-hire. This is because the Kirbys were the parties filing for termination and therefore had the burden of proof — unfortunately putting them in the situation of having to prove that Kirby's work was NOT for-hire. They failed to prove a negative, and the judge had no choice but to side with Marvel. While I must concede the legal burden of proof was on the Kirbys, I still maintain that the LOGICAL burden of proof is on Marvel, so my point stands, even if it's unfortunately proven to be insufficient in court.

  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.

    EDIT 2011-08-02: Marvel's key documents in its defense 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.

  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.

    EDIT 2011-08-02: As noted above, Marvel's case was strong enough to win. I must stress that they never produced any original contracts or hard evidence of any kind, and I believe this ruling to be a case where legal burden-of-proof is at odds with logical burden-of-proof. Marvel has still not actually proven that Jack's work was for-hire — his heirs have just FAILED to prove that it WASN'T.

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: