ALL HELL IS BREAKING LOOSE. Last week, Jack Kirby’s four children filed notices of copyright termination for 45 characters . The LA Times has details. This is the same legal maneuver that the Siegel family employed to get back their half of the Superman copyright. Notices were sent to Marvel, Disney, Sony Pictures, 20th Century Fox, Paramount Pictures and Universal Pictures, suggesting that the 45 characters include many already being made into successful movie franchises.
Kirby, of course, co-created the Hulk, the X-Men, the Fantastic Four and hundreds more of Marvel’s 5000 characters. Copyright termination allows creators to apply for copyright reassignment after the term of the original contract runs out.
Under copyright law, creators and co-creators can seek to regain copyrights they previously assigned to a company 56 years after first publication and can give notice of their intentions to do so up to 10 years before that.
Kirby’s children would be eligible to claim their father’s share of the copyright of the Fantastic Four in 2017, while the Hulk would come up in 2018 and X-Men in 2019. The copyrights would then run for 39 more years before expiring, after which the characters would enter the public domain under current law.
The Kirby family is being represented by lawyer Marc Toberoff, who also handles the Siegel case. In Hollywood, he is known as a relentless litigator — he also represented the creator of The Dukes of Hazzard in a successful claim against Warner Bros.
Of course there’s a lot to be written and discussed about this. Jack Kirby spent many of his later years trying to get his ART back from Marvel, and he felt that he was not fairly compensated for his creations for years. It also casts a shadow over Disney’s recent acquisition of Marvel, although a Disney spokesperson said “The notices involved are an attempt to terminate rights seven to 10 years from now and involve claims that were fully considered in the acquisition.”
We’ll have a bit more on this later, but in the meantime, Marc-Oliver Frisch considers how appropriate it is that this news broke on what would have been the late Steve Gerber’s 62nd birthday. (Kirby and Gerber collaborated on DESTROYER DUCK.)
AND, Jeff Trexler reports on the latest in the Siegel/Superman case, including the potentially huge news that the presiding judge is retiring in a few months.
Nat, you stinker.
kdb
I must admit, I’m a little curious if Ditko will be subpoenaed over the Spider-Man question.
Then what of the maxim “Ideas can’t be copyrighted”? One example:
Since the basic aspects of Hercules suffice to make the character entertaining, “creating” a unique version would be trivial. From Wikipedia:
There’s also the decision in Wolfman’s case: “The court ruled, however, that Marvel’s later use of the characters was sufficiently different from Wolfman’s initial creations to protect it from Wolfman’s claim of copyright ownership.”
Lastly, the Buchwald example might not be relevant, since he had a contract with Paramount when he submitted his treatment:
SRS
One thing regarding Wolfman’s suit that people should keep in mind is that it was decided by a New Delaware Bankruptcy Judge. It may not have much precedence against the Kirby case. Or maybe it does, I’m no legal expert.
>> Then what of the maxim “Ideas can’t be copyrighted”? >>
That’s why you can do new spider-powered characters even if there have been some before. It doesn’t mean you can take a submission, plunder it for ideas and have them realized by a different writer.
The difference is that one of them is out there, the other one’s a direct submission that you’ve built on and changed. It makes a big difference.
kdb
I think it might be safe to say that both Marvel and Disney were either aware of or had a feeling that this kind of lawsuit was going to happen, and had their lawyers look into the legal red tape in advance to make sure that they were in no danger of loosing the rights to any of their characters. In other words, I don’t think that the Disney/Marvel deal would have ever have gone through (or begin to go through) if Disney lawyers weren’t 99% sure that Marvel couldn’t loose the copyright and trademarks to all of their characters.
>> I think it might be safe to say that both Marvel and Disney were either aware of or had a feeling that this kind of lawsuit was going to happen, and had their lawyers look into the legal red tape in advance to make sure that they were in no danger of loosing the rights to any of their characters.>>
Either that, or they figured they could settle it, and the cost wouldn’t make the deal a bad one.
Plus, it’s not a lawsuit. They’ve filed for copyright termination, which is a different process. It might become a lawsuit, but isn’t one at present.
kdb
I’m pretty sure Kirby DID NOT sign the 4-page contract/release that Marvel wanted him to sign, but there sure are a lot of people on the internet saying he did.
Can anyone provide documentation?
DEAN: “It strikes me that the Kirby case is pretty similar in some of its particulars to the Siegel case. Like Kirby, Siegel and Shuster signed a later agreement with Warner prior to the release of the first Superman film. Unlike Kirby, there was a monetary compensation. That didn’t stop the Siegel estate from recovering half of the Superman copyright.”
I think that this is a good point — the problems with applying it to the Kirby situation are a) Siegel and Shuster created Superman several years before DC
stolebought it from them for $130 and b) Jack co-created these characters with Stan Lee at a time that Jack was working for Marvel, which was a time that Stan Lee held a significant editorial/management position at Marvel. Oh yeah, and Siegel & Shuster were still teenagers when they created Superman (in 1933) and Kirby was already a middle-aged adult in the 60′s while at Marvel. And didn’t come to Marvel with a folder of a gazillion characters he had created several years previously. DC showed a distinct pattern of using duress on Siegel and Shuster at every turn.By the same token, it’s not as if Kirby didn’t already understand the issues of creator ownership given that he and Joe Simon created and owned Fighting American seven years before Fantastic Four #1 was published. By signing that four-page Artwork Contract, Kirby was saying, “Gee, now that I think of it, no matter if it might have appeared otherwise, it really *was* work-for-hire after all.” That makes the Artwork Contract not so much a retroactive declaration of the work being WFH but an official admission that regardless of the fuzzy stuff, like the check-endorsing thing, it was never inherently anything but WFH regardless of anything else that anyone would want to call it, no matter what Kirby had believed about it before he signed that contract.
Now, I don’t think he should have signed that contract at *all,* but he did. (He made his bed and all . . .) And therefore, he agreed with Marvel that Marvel owns the characters outright. I don’t see how anyone on Kirby’s side goes into it without saying, in essence, “You know that 1985 agreement? Just kidding!” or “You know the fact that Jack co-created this stuff while employed by Marvel, with a managing employee at Marvel? Totally meaningless!”
— Rob
>> Now, I don’t think he should have signed that contract at *all,* but he did.>>
No, he didn’t.
>> And therefore, he agreed with Marvel that Marvel owns the characters outright.>>
No, he didn’t.
>> I don’t see how anyone on Kirby’s side goes into it without saying, in essence, “You know that 1985 agreement? Just kidding!” or “You know the fact that Jack co-created this stuff while employed by Marvel, with a managing employee at Marvel? Totally meaningless!” >>
That may be because you’re assuming things and then assuming legal interpretations of those things on top of the assumptions. As it happens, Kirby didn’t sign the 4-page agreement that you say he did. He didn’t even sign the same one-paragraph agreement that other artists signed. He signed something — but you don’t know what’s in it, so you’re not in a position to say what it contains.
The story can be found at http://www.tcj.com/aa02ss/n_marvel.html — including the 4-page agreement that he didn’t sign. The key paragraph:
“The final resolution came in May of 1987, nearly three years after Marvel had first begun returning original art backstock and nearly 30 years after it had begun accumulating the art. Marvel had dropped its demand that Kirby sign the four-page document and had amended the short form to address his concerns. Details of the amendments were not made public, but Kirby’s lawyer, Greg Victoroff, told the Journal, ‘Jack got just about everything he wanted.’”
So what did it say in the agreement he signed? You don’t know — so you’re not in a position to say that Kirby agreed that Marvel owned the characters outright. Beyond that, Kirby was not employed by Marvel in the early 1960s; he was a freelancer. “Employee” is a specific legal term, and few comics artists of the era were employees.
So those going into it on Kirby’s side aren’t saying, “You know that 1985 agreement?” because there was no 1985 agreement. There was a 1987 agreement, and whatever it says was kept private, but it apparently solved the reasons Kirby refused to sign either the 4-page agreement or the standard release. And they wouldn’t be saying, “You know the fact that Jack co-created this stuff while employed by Marvel…” because that’s not a fact.
It’s odd how many people are willing to declare that comics freelancers understood the ins and outs of work-for-hire law even when no paperwork that satisfies the requirements of those laws seems to exist. If the artists should just have somehow known that standard industry practice was for the companies to own all rights, why is it that the companies are never expected to have just known that “standard industry practice” didn’t satisfy the requirements of work-for-hire law, and they needed more than that, signed in advance of work being done? If creators are expected to be bound by back-of-the-check after-the-fact rights claims, why are the publishers never expected to be bound by the laws that say those after-the-fact claims are worthless?
Why is it that the creators supposedly “knew the rules,” and should therefore abide by them, but the publishers, who didn’t follow the rules, get to pretend they did? The creators made their bed and have to lie in it, but the publishers don’t have to lie in the one they made?
kdb
Busiek winning sense…tingling.
I suggest that everyone stating their case here read the TCJ link before going further. Yes, the print is small…isn’t it always?
Wouldn’t the world be a nicer place if people just treated other people properly.
Years ago. Simon tried to (re)gain the copyright to Captain America:
Simon won a round in court:
Then, in 2003:
When did these rights of reversion come into existence? As I understand it, the logic of this law is supposed to be that if you extend the copyright term, then the benefit should go to the original copyright-holder. This makes reasonable sense; no matter how fair the original deal, the publisher never paid for the extra years of copyright protection, so why should he get those rights for free?
Now, if Kirby signed away those rights AFTER they came into existence, that would sound like a pretty good defence. But I’d be surprised if Marvel could place any great weight on compromise agreements he signed BEFORE the copyright extension was enacted, since that would seem to defeat the purpose of the law. (If that defence does work, it’s a pretty glaring loophole in the legislation.)
Thomas J. Mclean observes that Kirby’s collaboration with Lee might be significant:
The thing I don’t get from reading all this is: what is the eventual goal? What is it the Kirby Kids (sorry!) are looking for?
Are they looking to take these toys that Jack Kirby helped create and go somewhere else? That seems like a weird scenario. Where would they go? Dynamite? DC? Dark Horse? Or would they try and publish on their own? That seems destined for failure – I’m not sure, but I don’t think the Kirby Kids (again, sorry!) have much experience with publishing or with IP development.
I mean, what’s the point in this move? If this were a game of chess, what would be the rationale behind this move? What’s their eventual goal?
Yes, the Kirby estate is going after Spider-Man. From The Hollywood Reporter’s Heat Vision blog, via Kevin Melrose.
A “precautionary measure” is putting it mildly. If the estate is going to go so far as to claim that Flash Thompson, et al., are Kirby creations because they’re derived from the Silver Spider, via Spider-Man, then why not claim that most of the characters in the Marvel Universe are actually Kirby’s property, because they were derived from those early issues of FANTASTIC FOUR, AVENGERS, etc.?
There might be a legal justification for the claim, but not a common sense one. Note that Simon didn’t make any claims re Silver Spider. The move makes me think badly of the estate.
SRS
>> The thing I don’t get from reading all this is: what is the eventual goal? What is it the Kirby Kids (sorry!) are looking for? >>
A fairer share of the millions upon millions of dollars that their father’s work has generated. Which is something he would very much have liked them to have.
kdb
So this is a legal maneuver to get Disney/Marvel to pony up? Threaten to take their dad’s toys and walk? That’s what the court filings are for, right? Or am I misreading that?
It’s just that legal wrangling’s not where my head’s at. I’m just trying to see where this might all lead…
” But included on the list of possible characters and story elements that should be recaptured by Kirby’s heirs are Aunt May, Uncle Ben, J. Jonah Jameson, Flash Thompson and the Daily Bugle, as well as villains the Chameleon, the Vulture, the Tinkerer and the Lizard…”
Like I said, this frivolous, absurd and greedy claim to Spider-Man and his supporting cast (!) only serves to undermine the Kirby Kids’ (possibly) more valid claims.
>>It’s just that legal wrangling’s not where my head’s at. I’m just trying to see where this might all lead…>>
If you’re worrying that Marvel might lose the characters, don’t. Worst-case scenario, they’d have to share the money. The legal wrangling — and what will almost certainly be an out-of-court settlement that we won’t know the details of and which all sides will pronounce “amicable” — will be over how much.
kdb
>> A fairer share of the millions upon millions of dollars that their father’s work has generated. Which is something he would very much have liked them to have.
Kurt, if you have one failing, it’s being too polite.
It is, of course, billions of dollars that their father’s work has generated (combined box office gross of the X-Men, Hulk, and FF theatrical releases add up to billions right there), is generating, and is expected to continue generating.
(I had to laugh at the SRS-quoted “But their inclusion raises the stakes in what is likely going to be a heated back-and-forth between Kirby attorney Marc Toberoff and the legal firepower of five studios.” As though if Marvel loses Spider-Man, what will really get them angry is that they lost Flash Thompson…)
Your wording is a bit harsh, but from the writing/character creation standpoint — If you’re going to create a character with a power and costume, the options aren’t infinitely many, nor is the choice of associates. There will inevitably be duplications and overlaps. Nor is the plot material particularly deep.
Where would romance novels be if authors had to scour the contents of previously published books to avoid duplicating names, occupations, or general appearances?
BTW, some time ago, Signet issued a statement re copyright infringement and plagiarism:
The Kirby estate has the legal right to try to establish ownership or partial ownership of some of Marvel’s characters.
Why does it make SOME PEOPLE so upset that the heirs try to do what is legally allowed? SOME PEOPLE would surely want to try to get any money that is legally theirs. Even during a divorce, money and property gets divided via legal means.
If you’re worrying that Marvel might lose the characters, don’t. Worst-case scenario, they’d have to share the money. The legal wrangling — and what will almost certainly be an out-of-court settlement that we won’t know the details of and which all sides will pronounce “amicable” — will be over how much.
kdb
__________________________________________
In other words, business as usual. Like you suggested earlier in response to my previous post, Disney (and Marvel) might think that they can settle this dispute and everyone will live happily ever after.
I have a slightly off topic question for you Kurt. Do you think that Marvel and/or Disney would ever open up talks again with the creators of the Charcoal character from your T-bolts run, and try reclaim ownership of that character? I ask this, because that was a very cool character, who I would like to see grace the pages of Marvel comics again. If only the people at WIZARD got the legal rights straight during that contest and if the creators of Charcoal weren’t so damn greedy, we would have had another cool African American superhero running around the MU.
>> I have a slightly off topic question for you Kurt. Do you think that Marvel and/or Disney would ever open up talks again with the creators of the Charcoal character from your T-bolts run, and try reclaim ownership of that character? >>
I believe Marvel does own the character, but simply doesn’t want to use him at present. But all of this happened after I left THUNDERBOLTS, so I didn’t pay as much attention as I might have had I still been on the book.
Whether Charcoal will ever be seen again, I couldn’t tell you. I have no idea.
kdb
I’d like to thank Mr. Busiek for clearing up a thing or two about this!
Thanks for answering my question Kurt.
Because the move re Spider-Man appears to be purely legalistic — make as broad a claim as possible, in the hope of unnerving the opposition and to make a public case for Kirby’s importance to the Marvel universe — and then narrow the claims later on, whether in court or out of court.
You don’t seem to be considering how simplistic the superhero characters actually are, in terms of writing fiction. The archetypal superheroes are simpler than the archetypal P.I., in terms of appearance, motivation, powers, etc. Basic plots have been repeated hundreds to thousands of times (a villain impersonating a hero; hidden past); super strength is the basis for many characters; somatic and genetic mutants are commonplace. Coming up with a power for a hero is no more original than coming up with occupations for the leads in a romance novel. Take this perspective on superheroes:
Generating superheroes and their opponents could easily be computerized completely. What matters, or should matter, is how well a writer uses his characters in a story, not whether they superficially resemble characters in other stories.
SRS
>Because the move re Spider-Man appears to be purely legalistic — make as broad a claim as possible, in the hope of unnerving the opposition and to make a public case for Kirby’s importance to the Marvel universe — and then narrow the claims >later on, whether in court or out of court.
It was suggested to me that this is likely “casting a wide net.” They know the “grip is tenuous” on, say, Spider-Man…but then they might at least end it with the copyrights of the characters they consider truly their fathers work, like maybe Mr. Fantastic. That makes sense.
>Why does it make SOME PEOPLE so upset that the heirs try to do what is legally >allowed? SOME PEOPLE would surely want to try to get any money that is legally >theirs. Even during a divorce, money and property gets divided via legal means.
The only thing that troubles me is they are seeking the copyright on characters that Jack helped create. He was a part of the pie. It *seems* like that they are not asking for Dad’s slice of the pie-but the whole damn pie.
Personally, as far as heirs go? I confess, I grew up being taught that my parents don’t pay my way after a certain age. Of course, I might feel differently if my dad had been a rock star or a movie star instead of a State County Employee. And so when estates go after these things, part of me feels like “riding the coat tails of someone Else’s talent.” I realize not everyone agrees, and I would not begrudge the family if they actually won. It is their legal right. And I suspect that Kurt’s core comment that the Kirby Estate would more than likely work out a deal to leave things as they are is dead on.
>> Personally, as far as heirs go? I confess, I grew up being taught that my parents don’t pay my way after a certain age. Of course, I might feel differently if my dad had been a rock star or a movie star instead of a State County Employee.>>
And, for that matter, your dad might have felt differently.
Kirby himself was glad to have left what legacy he could for his family — that’s one of the reasons he works so hard and so long — and would have been delighted to be able to leave them a share in what he’d created for Marvel. He was angry that he’d been unable to.
So it’s not as if the kids are trying to vampirically drain away their father’s legacy; they’re trying to claim something he would have wanted them to claim, and wished he could have secured for them himself.
I know, from my perspective, that if ASTRO CITY, ARROWSMITH and others — including work-for-hire creations like THE POWER COMPANY, on which I get a contractually-assured share — become something that can last and provide some security for my family after I’m gone, that I’ll be pleased and proud to have been able to do that. If ARROWSMITH were to make billions, then would I rather my family have a share of it, or would I rather all the money go to movie producers and publishing companies? Pretty easy choice, I’d say.
kdb
Kurt,
I am not dedicated enough to my feelings about “heirs” (although I note that when it’s Paris Hilton, people seem far less charitable) to hold it against anyone. I said I wouldn’t begrudge the family if the venture is successful. I feel there have been some valid points, though I think it is stuff like including Spider-Man that makes it some of us look at this a bit funny. And I certainly would not see a general problem with them saying, “Wait a second? We should be seeing some of these dollars”… my basic concern about it all was just that going for the copyright came off as going for more than a share.
As someone who has loved Astro City throughout the years, I sure wouldn’t be against that. I haven’t made any final decision in my mind on this, and certainly, as Jack would have wanted his kids to have a support from his legacy, I would not say he was wrong.
There’s no mechanism that I know of for the family to apply specifically for “half the copyright”. What they get to reclaim is what copyright their father had… and if that’s viewed legally as a cooperative creation, then he gets his share. With a copyright split, either party can license it out, but they have to share their income from doing so with the other copyright holders.
Al Nickerson re the creation of Spider-Man, via Graeme McMillan:
Nick Caputo commented:
If the possibility presents itself, the idea of some of the character rights going to Dynamite Entertainment doesn’t sound bad at all. It will level the playing field in the comics industry which is like a monopoly right now. Marvel owning so much of the market. It is slowly changing with DC regaining some share last month but most people seem to attribute this to Marvel not holding a regular crossover this year which led to lower sales. This factored with rising prices.