A recent copyright termination notice filed by the estate of
Jack Kirby, Marvel Comics legend and co-creator of most of the Marvel
superheroes people have actually heard of like Captain America, the X-Men and
the Incredible Hulk, has set the nerdier parts of the Internet aflutter.
Coming as it does in the wake of the Disney behemoth’s announced acquisition of Marvel,
some fans are worried. Will this lawsuit endanger the deal? Will it scuttle any
upcoming movies?
These are far off and unlikely propositions and neither is the
question, I think, that is important. And let’s not even dignify by seriously
considering the people who unfairly characterize the Kirby heirs who are
seeking to reclaim Kirby’s portion of the copyright to characters he created as
greedy ambulance chaser types.
I feel the important question is, what does Jack Kirby deserve?
Together with other Marvel Comics creators, mainly Stan Lee, Kirby created a
universe that has thrilled children and geeks for nearly 50 years, if you count the true Marvel Universe as starting with Fantastic Four in 1961.
That
universe has also been immensely lucrative for the people who have controlled
it over the years in terms of comics, movies and licensing, and when he was
alive Kirby saw only a minuscule portion of that. In fact, he was often treated
shoddily, forced to endure a prolonged legal battle just to get his original
artwork back.
We can’t talk about what Kirby, or in this case his estate, deserves without
talking about what he is legally entitled to first. Some people point to recent
and partially successful copyright termination cases by the estate of Jerry
Siegel, co-creator with Joe Shuster of Superman, as a precedent that might
prove that the Kirby case could be successful.
There’s an important potential distinction between the Kirby and Siegel cases,
though, that shouldn’t be overlooked. The Siegel family was able to prove that
Superman existed, as a developed concept, before he was sold to DC. The Siegel
estate also proved that Siegel created Superboy and pitched it to DC as an
independent contractor, leading to another copyright decision in their favor.
The Siegels had more leg to stand on in their copyright termination suits
because in both cases they could prove that they had originally created the
characters and owned them before transferring them to DC, but things are not so
clear cut with Kirby. And there’s an argument that it’s not clear that Kirby
ever actually owned or co-owned any of these characters.
That’s because Kirby created most of the characters he is famous for when he
was working for Marvel and working off scripts created by Stan Lee. And when he
created them there was an expectation, at least on Marvel’s part, that what
Kirby created belonged to them. This concept, as set forth in the United States
Copyright Act of 1976, is known as work for hire.
Work for hire can be an odious thing, really, it means that to a point whatever you
create belongs to the company you create it for. I’ve labored under it all of
my adult life as newspaper reporter and public relations person. I can write a
beautiful story but it’s not mine, it belongs to the company. I can’t sell it
or give it to anyone else.
Employees of a company are usually subject to this, freelancers are asked to
sign contracts so the legal rights to the work can be clear, usually transferring ownership of the work to the company.
Whether Kirby was
technically an employee or a freelancer would seem, to me, an important legal
question and it will be interesting to see if Marvel can produce any documents
or contracts to answer this question. Despite Stan Lee’s buildup of the “Marvel
Bullpen,” Kirby worked from home in what would seem to be on the surface a
freelance relationship.
So if Stan Lee directed Kirby as part of an assignment to create the characters in the story he was
hired to illustrate under work for hire terms, it’s possible that Kirby never co-owned characters created
for that story and doesn't have the right to terminate the contract. It’s possible, of course, that Kirby might have created some
characters ahead of time and pitched them to Stan Lee, but that would have to
be proven with supporting materials.
For instance, the Kirby estate is claiming copyright ownership of Spider-Man.
That’s because Kirby has claimed he actually created Spider-Man, that
Spider-Man is based on a pre-existing concept Kirby had worked on called The
Silver Spider. However, the Silver Spider was a very different character than
the final Spider-Man, so it might not be enough to secure ownership even if the
family can produce Kirby’s Silver Spider/Spiderman sketches.
Steve Ditko,
generally acknowledged as co-creator with Lee of the Spider-Man we know, claims
Kirby did create a Spiderman, no hyphen, for Marvel, but it was a kid with a
magic ring that turned into an adult hero. That’s a concept that sounds a lot
like another character Kirby had a hand in, Archie Comics The Fly, and very
little like the Spider-Man that launched a merchandising empire.
Another interesting issue might arise from the way Lee and Kirby worked. Lee
didn’t write full scripts or even detailed plots, they worked out rough plots and Kirby would draw
the story that Lee would later add dialogue to. Lee left a very large part of
this process up to his artists. I've read that Silver Surfer, for example, was added to his
first Fantastic Four story by Kirby, although Lee gave him his famous dialogue and
personality.
Do characters Kirby inserted into the story on his own initiative count as characters created in the scope of the work, or are they character he created on his own and "pitched" to Lee, with Lee leaving them in the story proof of Lee's acceptance of them?
Kirby also wasn’t a young kid at this time of his fertile 1960s period when he
worked with Stan Lee, like Siegel was when he and Shuster created Superman.
Kirby was a seasoned pro and comics weren't a hobby or a fanboy calling, they were his job and his means of supporting himself and his family.
He knew how things worked in the comics industry.
He may not have liked it, and some of his statements and the fact that he moved
to DC about the time Marvel released new contracts codifying their longstanding
policy seems to support that he didn’t, but he understood it.
The question of whether Marvel was right to expect that they owned the work and
if their arrangements were actually legal will have to be answered by the
courts, if the suit gets to that stage.
Does the fact that Kirby was actually a freelancer who worked from home
mean that he was not technically an employee of the company and nothing he
created could be considered work for hire without a written contract? Does the
work for hire argument simply not count because Kirby created those characters
before the 1976 Copyright Act? Did Kirby sign any contracts and can Marvel
produce them?
It should be an interesting case and, if the Kirby estate wins at trial, will
have wide-ranging implications for the comic book industry. Because he is
definitely not the only comics creator who worked under the conditions he did
and if this case sets a precedent that allows comics creators to reclaim some
of their copyrights, some of the old pros who are still around and their
families would be fools not to try.
But what seems more likely is that at some point there will be a settlement in
which the Kirby heirs will be given an increased share of the profits from the
characters in some form, and I don’t think that’s a bad thing.
In fact it
brings us back around to my original question of what Kirby deserves.
Because Kirby, like I said earlier, was a pro. Working in comics was his job
and he did his job and he created his characters to support his family. In doing so he helped to create one of the largest, most beloved and most profitable media franchises in the world, a stable of characters that outlived him and will probably outlive you and me.
Whatever the Kirbys eventually get, it'll probably be small relative to the scope of the wealth that has been created using the characters. But I’d
like to think that at least finally seeing a more fitting portion of the abundant fruits of his
efforts put aside to better support his family would be what he Kirby would have wanted.
And, considering what he has given the people that own the characters and the people who enjoy them, he at least deserves that.
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