As revealed yesterday, the family of Jack Kirby has officially filed a lawsuit seeking to regain the copyright of the Marvel characters he co-created, including The FF, Thor, Iron Man, the Hulk, Spider-Man, Ant-Man, Nick Fury and The Avengers. The entire complaint is available here.
The move comes after a series of legal maneuverings that left little doubt that this is where the matter was headed. In September, the Kirbys formally filed for copyright termination on 45 Marvel characters. In December, Marvel filed its own lawsuit, asking a judge to set aside the copyright termination on the grounds that the characters were created as work-for-hire.
If successful, the Kirbys would control half the copyrights to many of Marvel’s best known characters — including, as the above list shows, many who have lucrative films based on them — or planned films, such as Ant-Man and the Avengers.
At the heart of the matter is whether the great work of Kirby was created as work-for-hire or not. The Kirby family claims that this was not the case until 1972, when Kirby signed an agreement with Magazine Management Co., assigning copyright going forward. They claim that before this, he worked as a freelancer, with no work for hire agreement in place.
Marvel’s prior lawsuit claims that Kirby worked only under editorial direction so the works were indeed WFH.
The Kirbys are represented in the matter by Marc Toberoff, a well-known lawyer who specializes in copyright matters. Toberoff also represents the Siegel family in their ongoing battle to regain control of their half of the Superman rights. This suit has successfully tied up Warners in legal battles for the better part of a decade. It’s likely the Kirby matter could similarly entangle Marvel and Disney, especially with so much IP, all created under varying circumstances, at stake.
More later.
Word of the Day: “Apportionment”
Someone will need to explain Apportionment to me in everyday language. The gist being that the Kirby heirs will receive a numerical proportion of the equity in the House of Wealth that Jack Helped Build?
Marvel might have a point re “editorial guidance.” Kirby apparently wasn’t pitching concepts or characters, or submitting complete stories for publication, unlike Joe Simon’s Captain America. He created stories in collaboration with Lee.
I’m not sure why the estate is claiming a copyright on Spider-Man, since there seems to be very little published evidence that any ideas he had for a spidery man influenced Spider-Man in published form. Perhaps the estate and Toberoff thought that leaving such a prominent character out would raise doubts about Kirby’s role in creating other characters.
SRS
There may be a legal argument as to what rules technically covered Kirby’s work for Marvel pre-1972, but I have a hard time believing that Kirby and Marvel won’t both operating under the assumption that they had a work-for-hire relationship. Kirby saw first hand what happened with Siegel and Shuster with Superman and Bob Kane with Batman.
Mike
Er, that’s “weren’t both operating”…
Mike
What’s Stan Lee doing?
Just in case anyone wants to contend that “work for hire” didn’t exist prior to the 1976 copyright legislation — that’s not the case. Work for hire is mentioned twice in the 1909 Copyright Act.
SRS
“What’s Stan Lee doing?”
He’s moved on, and is doing what he does best, and why not? Nuff said.
I hope Disney can afford good lawyers!
Stan Lee has cut lucrative deals with Marvel/Disney already. (Stan’s also in a different position, as he was clearly an employee at the time.)
“He’s moved on, and is doing what he does best, and why not? Nuff said.”
That, and doesn’t he get paid a million a year to write the Spider-Man comic strip and acting as Chairman Emeritus or whatever? I don’t see why he would want to rock the boat.
>> I have a hard time believing that Kirby and Marvel won’t both operating under the assumption that they had a work-for-hire relationship. >>
Assumptions aren’t legal contracts. Especially since what work-for-hire agreements actually say are so widely varied. A wfh agreement could say that the company is the legal author of the work, but that they won’t make a movie deal without the creator’s permission, and he gets half the loot just as easily as it could say that the company owns all and the creator gets squat. So even in a case where both parties assume a legal relationship, are they assuming the same things? And if they assume differently, who gets the benefit of the doubt as to which assumption wins? That’s why we have contracts, to avoid the “It was never written down but you knew full well that you were granting me the ability to eat your leg, so hand it over” argument.
I haven’t seen a lot of people arguing that work for hire didn’t exist until the 1970s — certainly, it’s come up as a legal principle in the Superman copyright kerfuffle, so it’s recognized to exist — but that Kirby wasn’t an employee and hadn’t signed any wfh agreement prior to 1972, so his work before then wasn’t work for hire as a matter of law. If Marvel has documents showing otherwise, one would think they would have made them part of their previous filing.
Some useful links to earlier discussions of all this, which might (but might not) stave off repetitions of old arguments:
http://pwbeat.publishersweekly.com/blog/2009/09/21/kirby-family-files-for-copyright-reassignment/
http://archives.tcj.com/aa02ss/n_marvel.html
http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-lawsuit/
Warning. There’s way too much by me at two of those links.
kdb
You know…if it were Jack Kirby personally filing this suit, I might well side with him. Technically, the law isn’t exactly on his side, but in cases like this I might be okay with that.
But this is Kirby’s family. As in, people who absolutely did not create these characters and stories, and as far as I’m concerned, have no right to be suing for ownership at this point. So, insofar as I’m siding with anyone (as I personally don’t care a whole lot about this issue anyway), I’m with Marvel.
I felt the same way about the Siegel/Shuster Superman thing that happened a year or two ago.
Ah well. Old arguments rear their head in the very next post.
I think you’re both mistaken about the law and about how ethical inheritance is meant to work, tekende.
kdb
Synsidar said:
“Just in case anyone wants to contend that “work for hire” didn’t exist prior to the 1976 copyright legislation — that’s not the case.”
That is true. But to be work for hire, Kirby would have to have been an employee or signed a contract. He wasn’t, and he didn’t. He was working freelance.
For a look at this legally:
http://www.gertler.com/nat/tv/?p=1425
And read especially the first comment.
tekende said (referring to Kirby):
“Technically, the law isn’t exactly on his side,…”
No, the law is exactly on his side. It is how the copyright law is written. Congress extended the copyright length, and they put in a way for creators to reclaim their creations.
tekende wrote: But this is Kirby’s family. As in, people who absolutely did not create these characters and stories, and as far as I’m concerned, have no right to be suing for ownership at this point. So, insofar as I’m siding with anyone (as I personally don’t care a whole lot about this issue anyway), I’m with Marvel.
=====================================================
Someone owns these characters. All along people have been assuming that Marvel owns them because Marvel acts like they own them. But as we have seen, under law there are many reasonable claimants to the rights of characters created in the past. The way to sort out these claims is in a court.
Kirby’s heirs didn’t create those characters, but neither did Marvel or Disney. Leaving aside the legal arguments (which will be hashed out by lawyers and judges who know much more about this than I ever will), why does Marvel have a stronger claim than Kirby’s heirs?
How was Wolvie the movie based on Kirby’s pre-64 Marvel work?
How did he co-author Spidey 1-7?
Isn’t the focus on the actual stories, not the characters? In other words, Marvel will still own Googam, son of Goom, but may have to account for any profits from the HBO maxiseries based on that story.
Here’s a paraprofessional interpretation of the complicated issues, including the definition of work for hire:
How many of those factors, and the IRS’s rules, favor the estate or Marvel will be determined at a trial.
SRS
“why does Marvel have a stronger claim than Kirby’s heirs?”
Do the comics in question say, anywhere on them, “copyright Jack Kirby”? I doubt it. They probably list Marvel as the copyright holder, yes? For the past several decades Marvel has, in every PRACTICAL sense, owned those characters and stories. Jack Kirby never, to my knowledge, sued to claim otherwise. Why should his heirs get to change things when they had no hand in creating the works in question?
If Kirby had had actual, legal ownership of these properties at the time of his death and passed them on to his children or whoever constitutes his family in this case, I wouldn’t have a problem with that. But he didn’t. And at this point, I don’t think his family should have any right to change the way things are now because they didn’t create these properties.
Dream on, Kirby estate. Dream on……
I feel like there should be a “Kurt Busiek” button when this issue comes up that will silence ignorance.
>> Do the comics in question say, anywhere on them, “copyright Jack Kirby”? >>
They don’t need to. Ownership is determined by the law, not by who was the first to publish a copyright notice.
>> For the past several decades Marvel has, in every PRACTICAL sense, owned those characters and stories.>>
Which they paid for the right to do, with the expectation that that ownership would last 56 years, which is how long copyright lasted at the time. Nobody is contesting that Marvel had ownership of those characters and stories for the full period of copyright that existed at the time they bought them.
>> Why should his heirs get to change things when they had no hand in creating the works in question? >>
The heirs are not changing things. They are using existing law.
When copyright law was extended longer than 56 years, a provision was put in place allowing creators (or their heirs) a window of opportunity to reclaim the rights that were sold. There was no expectation at the time of the sale that the buyer was buying the rights for longer than 56 years, so there is no assumption that the buyer gets to keep those rights for more than 56 years.
Under the old copyright law, the rights would have gone into the public domain after 56 years, so the buyer wouldn’t have owned the rights forever anyway. Under the new law, the buyer gets at minimum what they paid for — 56 years of ownership — but the seller (or the seller’s heirs) get the chance to revert the sale after that period is over.
It doesn’t work that way if the work was done on a work-for-hire basis, but that is very much in dispute.
>> If Kirby had had actual, legal ownership of these properties at the time of his death and passed them on to his children or whoever constitutes his family in this case, I wouldn’t have a problem with that. But he didn’t.>>
What he had was the actual, legal right to reclaim those rights after 56 years, and he passed that right on to his heirs.
>> And at this point, I don’t think his family should have any right to change the way things are now because they didn’t create these properties.>>
The family isn’t changing the way things are. Congress changed the way things are. If Congress hadn’t changed things, then Marvel would lose ownership of the Fantastic Four in 2017. When Congress allowed companies like Marvel to own things for longer than that, they also allowed creators (and their heirs) who sold rights back then to reclaim them after the expected life of copyright, which back then was 56 years.
[At least, I think it was 56 years. Could have been 54 years, maybe?]
I posted several links to earlier discussions where all of this is made clear, but the post is currently saying, “Your comment is awaiting moderation,” so I don’t think anyone else can see it yet.
kdb
>> I feel like there should be a “Kurt Busiek” button when this issue comes up that will silence ignorance.>>
Thanks, but I’d rather not have to do all that typing.
And of course, the fact that some people don’t understand what’s going on and don’t care, other than that if they imagine it might mess with their weekly supply of comics it must be morally wrong and greedy and unprincipled and probably illegal, even if it’s none of those things — well, the fact that they don’t understand and don’t want to won’t affect the case one iota.
It’ll turn on the law and the legal arguments, and will probably be settled out of court besides. Comics fans who feel threatened won’t get a vote.
kdb
I was hoping that there could a “Kurt Busiek” button so that you WOULDN’T have to do all that typing each time. Every time this topic comes up, the same ill-informed opinions show up, and then you have to take the time to refute them. It’s worse than Groundhog Day.
Nat’s Page o’ Facts is a help, though. It does need to be updated a little, but I expect Nat’s got other things to do.
kdb
On the theory that the reason my earlier post isn’t showing up could be that it has three URLs in it, and thus flagged the site’s spam alarms, let me try posting just one, to see if it goes through:
http://pwbeat.publishersweekly.com/blog/2009/09/21/kirby-family-files-for-copyright-reassignment/
That’s a previous Beat thread on the matter.
kdb
Looks like it’s working. Here’s a Comics Journal piece on the Kirby art return controversy, including discussion of what Kirby did and didn’t sign, and a link to one of the documents he was asked to sign but refused to:
http://archives.tcj.com/aa02ss/n_marvel.html
kdb
And here’s a Robot 6 thread with much of the same stuff as the Beat thread, but maybe a few non-duplicated points:
http://robot6.comicbookresources.com/2010/01/kirby-family-attorneys-respond-to-marvel-lawsuit/
kdb
tekende, you haven’t a clue what you are talking about, so just stop
people post things showing where you are wrong, and your response is “No, because I say so.”
Mark Engblom said:
“Dream on, Kirby estate. Dream on…”
Whether you like it or not, the Kirby estate will come out of this with partial ownership of several of the characters or a big, big cash settlement.
My daddy invented Dawn detergent maybe I should get some money from Dawn, too.
Freakin morons.
>> My daddy invented Dawn detergent maybe I should get some money from Dawn, too.>>
Maybe you did, if your father bequeathed you anything he gained from it, and if his deal with Procter & Gamble involved such things. If he was a P&G employee, though, the laws would be different, and detergent would be covered by patent, not copyright, and thus would have expired long ago. But if he’d been a freelancer and if detergent was covered by copyright, then you’d eventually have the chance to revert the deal in 2029, I think.
In such a case, you’d have inherited from him the right to a reversion, and P&G might want to make you happy (though P&G strikes me as a pretty nasty company overall, so maybe not). But that would be a very odd case, what with the highly-unlikely “copyright rather than patent” thing.
Still, it’s always nice when comics fans equate the characters they love with mass-produced soap. They must be exactly the same, and your father must have had the exact same deal with P&G that Kirby had with Marvel — no health insurance, no paid vacations, no sick days, no pension — or you wouldn’t be claiming that Kirby and your father are entitled to the same deal and that their work was covered by the same laws.
kdb
Side with Marvel? Who, what is Marvel 2010? Employees who are profiting from what Kirby created. What makes them more deserving than Kirby’s family? I have met a lot of the new staff there (nice people) and I just see a corporation that right now is very wealthy from what Kirby created with his hard labor. Sorry, I love his work.
Give his family everything.
Yes, it is, and if any of the lawsuits go to trial, trying to describe exactly what Kirby’s working conditions were day to day, 40-50 years ago, will be messy.
SRS
>>>> Do the comics in question say, anywhere on them, “copyright Jack Kirby”? >>
>>They don’t need to. Ownership is determined by the law, not by who was the first to publish a copyright notice.
I would like everyone to contemplate this. As in, THE LAW protects people who don’t even know how to protect themselves.
I’ve restored Kurt’s moderated post.
The concept of intangible property — copyright and patent law — is very well establish in American law. As such it is inheritable, just as tangible properties or currency are.
It never fails to amaze me how many people think The Corporation IS Always Right. Show me what the Corporation ever created all by itself; I think you’ll find individuals are at the heart of all art and innovation.
Kirby and Lee were the creators.
“Marvel” was created by Kirby and Lee*.
Marvel may “own” Spidey, but in a very real sense, Lee & Kirby’s families have a moral right to claim a big piece of Marvel.
————————————————————————————
(*Ditko too, but he’s an Objectivist, so we won’t bring him into it even though in my Republic Ditko would be on the $100 bill or something.)
“It never fails to amaze me how many people think The Corporation IS Always Right.”
Maybe it’s just the people who’ve never worked for one that think this.
I think the corporation is always WRONG. It probably isn’t, but it’s more fun for me this way.
Kurt-
Thanks for the response. You’re absolutely right. Honestly, I hadn’t read a whole lot on this particular case and didn’t realize exactly what was being sued for, I guess. My arguments were based on incomplete knowledge of the situation. Thanks for clearing that up!
“The Corporate IS Always right.” is one of the most powerful superstitions manifested by postmodern sorcery.
“It never fails to amaze me how many people think The Corporation IS Always Right. Show me what the Corporation ever created all by itself”
Who thinks that? What’s far more common are people who believe that it’s okay to screw corporations at any time and for any reason.
And just to restate, I have no idea what the merits of the various legal arguments may be. But ethically speaking, unless Jack Kirby believed at the time he was working for Marvel that he was NOT doing work-for-hire, I don’t believe his heirs have an ethical leg to stand on. And i find it hard to believe that Kirby thought that, given his already long history in the business at that time.
Mike
>> But ethically speaking, unless Jack Kirby believed at the time he was working for Marvel that he was NOT doing work-for-hire, I don’t believe his heirs have an ethical leg to stand on. And i find it hard to believe that Kirby thought that, given his already long history in the business at that time.>>
He may not have known what “work for hire” was, of course. Those words may never have been spoken, which is one more reason contracts are important. Certainly, I’ve never seen anything from him to suggest that he was of the opinion that the publisher was the legal author of the work, which is the central concept of work for hire.
He may well have thought he was selling all rights, which is not the same thing as work for hire (though many people seem to think it is), and which carries with it the assumption that one is selling all rights for the period of copyright, after which the work will go PD.
That situation — an all-rights sale — is exactly what the new copyright law addresses, and there’d be no ethical fault in acting on it.
But given how many people can’t seem to understand what work for hire means, even when it’s explained to them over and over, I don’t think it’s a reasonable assumption to make that Kirby must have understood it, or even that Goodman must have understood it. Or that if they understood it, they believed that was the deal. It’s certainly not the case that comics were simply assumed to be WFH by fiat (POGO and WONDER WOMAN stand out as prominent examples to the contrary), nor is there a lot of evidence that indicates that publishers and creators specifically understood that they were making a WFH deal rather than an all-rights sale or even something else, given Goodman’s apparent habit of assuring people he’d “take care of them” and then not following through, leading to differences in what each side felt had been promised.
If you could establish that Kirby was specifically making WFH deals rather than all rights deals with artists when he was packaging and publishing, that might establish that he understood the distinction, but it would also establish that he knew what it took to establish that distinction, so if the Marvel deal didn’t do it, then the assumption that he believed it to be WFH wouldn’t have been there.
kdb
Back in 1966-67, Joe Simon sued Marvel for ownership of Captain America. Kirby reportedly sided with Marvel. It would be interesting to know what Kirby’s reasoning was then, and how he described himself in proceedings. The lawsuit was settled:
Simon was able to file to reclaim the copyright later on; there was evidence that his creation of Captain America was not work for hire. Kirby’s situation is different.
SRS
Can I ask a silly question, not about copyrights and who owns them and all that?
What do the Kirby heirs hope to do, filing the way they’re doing? Do they hope to start their own publishing venture using these characters? Are they hoping for a bigger piece of corporate profits? If it’s the latter, that I can understand. If it’s the former… that’s a head-scratcher. Or is there some other outcome that I lack the imagination to come up with?
Is there some sort of precedent out there now that we could compare to that could show an ideal situation of what they hope to gain?
>> What do the Kirby heirs hope to do, filing the way they’re doing? Do they hope to start their own publishing venture using these characters? Are they hoping for a bigger piece of corporate profits?>>
“Bigger piece”?
Bigger than, say…the nothing they get now?
I would guess the intent is to force a settlement that gives Jack’s family a fair participation on what he created or co-created, and the prospect of them being able to claim half the profits on what Marvel does with those properties and to license the characters out to others (sharing half the profits with Marvel, of course) would be what would propel Marvel into making an agreeable settlement. Copyright co-ownership doesn’t mean both owners have to agree on how the copyright is used, merely that however each of them uses it, they have to split the money, unless another deal is in place.
I don’t know that that’s what the Kirbys want, though. It’s just a guess.
kdb
Kurt,
I think most comics creators and publishers at the time saw the whole biz as a fly-by-night thing. Pay the artist for a 20-page story, publish it and on to the next story.
No one was expecting Marvel to last.
Marvel did a lot of reprint annuals in the 1960s: their policy on reprint fees at the time would give some indication on what the thinking of the time was.
IIRC (and I may be confusing Kavalier and Clay with Men of Tomorrow), but the copyright/trademark issue with Superman came up not in terms of publishing but when National was contacted about the radio show. The company needed to show they owned the rights to the character (not just the rights to publish) in order to make a deal with a radio company that was more diligent about chain of title.
I used to write for magazines and what a magazine paid for was “first North American serial rights.” I always wondered why that principle did not apply to comics. I imagine that phrasing came about more for fiction writers who wanted to be able to sell their stories elsewhere after the magazine went off sale.
Lest people forget–and this may be in one of Kurt’s links–but part of the Kirby Art battle was the fact that Marvel could not demonstrate they purchased the physical art pages from Kirby as opposed to the copyright (right to publish). A freelancer who purchases his own art boards, pencils, pens, supplies and is not reimbursed, has an argument that they were not work-for-hire.
4. What If More Than One Person Owns a Copyright?
A common question is whom to ask for permission if several people jointly own a copyright. Co-ownership of copyright can occur in various ways. For example,
* two people jointly create a work
* the author transfers portions of the rights to different people (for example, giving half to each child), or
* the author sells a portion of the copyright to someone and keeps the remainder.
Co-owners of copyright have a legal status known as “tenants in common.” When a co-owner dies, his or her share goes to beneficiaries or heirs, not to the other co-owner. Each co-owner has an independent right to use or nonexclusively license the work–provided that he or she accounts to the other co-owners for any profits. What this means for our purposes is that if you obtain the permission of any one co-owner you can use the work. However, there are a few exceptions to this rule, as explained in the next section.
You can determine whether there is co-ownership of a certain work by reviewing Copyright Office documents as described below. For example, a registration for a song might indicate that a composer and lyricist are co-owners of a song.
5. Are There Any Situations Where You Must Get Multiple Permissions?
There are several situations where you must obtain permission from all the co-owners of a work, instead of just one. All co-owners must consent to an assignment of the work or to an exclusive license. An assignment is a transfer of copyright ownership. An exclusive license is an agreement granting rights solely to one person.
EXAMPLE: Two programmers create a software program. Company A wants an exclusive license to distribute the program, which means that Company A is the only company that can distribute the program. Since the desired license is an exclusive one, the consent of both programmers must be obtained.
In addition, all co-owners must consent if:
* the co-owners have an agreement amongst themselves prohibiting any individual owner from granting a license; and you are aware of this agreement
* you want to use the text on a worldwide nonexclusive basis–some countries require consent of all co-owners even for nonexclusive uses, or
* you want to use the text for a commercial purpose such as to sell a service or product.
* Although copyright law does not explicitly require that all co-writers of a song consent to the first recording, we recommend joint consent since, after the first recording, anyone can record the song as long as payments are made according to compulsory license rules.
“What’s far more common are people who believe that it’s okay to screw corporations at any time and for any reason.”
Then corporations need to stop screwing people over. I worked for a corporation and I was getting screwed over from day one. Complaining about it didn’t get me a damn thing but angry and unemployed. If the Kirby family can get something out of this, great for them. They deserve it.
Life isn’t fair, but when you have a multi-million (or billion) dollar corporation behind you, you’re definitely messing with the scales. Until we stop feeding the beast, we’re all gonna have to deal with corporations screwing people over and people in turn screwing over corporations. Corporations brought it on themselves.
>> Marvel did a lot of reprint annuals in the 1960s: their policy on reprint fees at the time would give some indication on what the thinking of the time was.>>
I don’t think Marvel started paying reprint fees until the 1970s sometime.
>> I used to write for magazines and what a magazine paid for was “first North American serial rights.” I always wondered why that principle did not apply to comics.>>
In some cases, it has.
Once they started specifying what rights they were buying, of course, they were able to specify otherwise, but I’m sure there are a lot of sloppy or unenforceable contracts in comics history. But some publishers were very limited in what they bought — I think there were cases where what Warren bought was first publication rights plus limited reprint rights.
These days, at least, in the absence of a contract, first publication rights are considered all that’s conveyed.
kdb
I want to join in the praise of Kurt Busiek, who really is the voice of reason here. And is also far more polite than I would be if I were responding to some of these arguments. Three cheers for Busiek!
Word of the Day: ” Busiek “
I still don’t see how this applies to the Kirby heirs getting a piece of Spiderman. Hasn’t who created Spiderman already been settled when Marvel put “created by Stan Lee and Steve Ditko” on the movies opening credits? I thought it was also made pretty clear by Blake Bell that Kirby’s cover to AM15 was done after Ditko already had the story completed and drawn his own cover which Stan replaced with Jacks. Am I totally off base on this?
KSB said:
“Still, it’s always nice when comics fans equate the characters they love with mass-produced soap.”
I realize this is just a rhetorical jab at fans, but doesn’t the law regard them as nothing more than “goods” as well?
Zemba,
The question as to who created Spidey is long and convoluted.
Here’s one take:
http://alnickerson.blogspot.com/2009/02/who-really-created-spider-man.html
Zemba, as a practical matter, I believe in these situations the plaintiffs list EVERY possible character that even might be remotely in dispute, on the theory that it’s much easier to drop a character from the suit than to introduce it later in the process. I believe I remember Neil Gaiman commenting on this in his lawsuit. I’m sure if I’m wrong, Kurt will set me straight.
>> I realize this is just a rhetorical jab at fans, but doesn’t the law regard them as nothing more than “goods” as well? >>
A jab at those fans who’d consider characters they have affection for* to be no different than mass-produced soap, at least.
But as I understand it, a “good” is a physical object made to be sold. So a comic book is a good, but a comic book character is intellectual property, subject to different laws. In that message, however, I wasn’t referring to how the laws sees them, but how some readers do. Some publishers too, surely.
kdb
*after all, if they have no affection for these characters, why care who holds the copyrights? The underlying “bad Kirbys!” vibe seems to stem largely from “It might upset the Marvel Universe and affect my reading!” rather than questions of right or wrong or what the law holds.
I don’t think anyone else has said it yet, so I want to throw out a “Kurt Busiek wins!”
OK, let’s not talk goods and copyrights, let’s talk patents and copyrights.
KP brought up the subject of Dawn detergent as something a relative of his might have had rights to. Said rights would not be to a physical bottle of detergent but to the patent for the Dawn formula. You KSB said that if the descendant wanted to sue Dawn for rights, he could, and I agree. The legality of a claimant’s ability to sue is not at issue: only the morality.
So do not both patent and copyright exist to protect an intellectual property in the eyes of the law, so that some ripoff artist can’t (in theory) do his own version of Dawn detergent or Superman w/o changing the formula, at least a little?
I personally don’t care if the claimants in this case sue the pants off Marvel, though I’m morally conflicted to see the Kirby estate sue for Spider-Man, in that I don’t think even the living Kirby had any right to Spider-Man.
But I recognize that suing for Spidey is part of a legal stratagem that has nothing to do with the moral question, “Should Kirby or his heirs own part of Spider-Man?”
Morality. Legality. Not livin’ in perfect harmony.
KSB’s interpretation of fannish motives may have some truth in it. I know it doesn’t affect me in terms of availability of goods, though, ’cause I ain’t buyin’ nuttin’ these days.
>> You KSB said that if the descendant wanted to sue Dawn for rights, he could, and I agree.>>
I actually didn’t. I said that if the circumstances were the same, maybe he could.
But I’m guessing that:
1. His father was an employee, not a freelancer, and wasn’t doing science-as-piecework with no pension, health care, paid vacation and so on.
2. If there were any patents on the Dawn formula, they’re long-since lapsed.
3. There may not have been anything to the Dawn formula that was patentable.
But had he sold it to them as a freelancer, had there been a patent, and had the life of patent been extended and a proviso put in that creators could file for reversion during that period, then sure, he’d be entitled to.
If so, I wonder if there would be dishwashing fans out there angrily calling his family greedy and saying that no one but Procter & Gamble deserves anything from the profits of Dawn…
kdb
The question of why Kirby’s estate is including Spider-Man seems to confuse some fans.
Spider-Man may be the best possible evidence that Kirby brought characters, and ideas to Stan, not the other way around.
Spiderman was almost certainly based on a Joe Simon Jack Oleck creation brought to Lee by Kirby.
The proof Kirby brought the name, the super powers, and some of the other core concepts to Stan is in the rejected Spider-Man story by Kirby which Lee showed to Ditko.
When Lee showed the story to Ditko it was because Ditko was going to ink the story, not because Stan had decided to have Ditko replace Kirby.
When Ditko saw the Kirby penciled pages he immediately recognized them as being a knock-off of the Simon-Oleck-Kirby The Fly which was first conceived by Simon as Spiderman. Kirby even had the Spiderman logo created by Simon in the mid 50’s.
Ditko says that when Stan showed him the pages he said, “This is Joe Simon’s The Fly.”
It was after Ditko pointed out the obvious similarities that Lee became concerned, mention of the name Joe Simon would have been enough to get Lee’s and Goodman’s attention.
Lee decided he had better speak to Goodman. It was after Lee’s meeting with Goodman that the character was turned over to Ditko who redesigned the costume, and Stan changed certain plot elements (the origin went from a riff on Captain Marvel to a riff on Batman’s origin).
Is it really reasonably likely that Stan by some bizarre coincidence gave Kirby a dead on knock-off of the origin of The Fly as a script when it was Kirby who had drawn the nearly identical Fly origin story Ditko recognized? Is it likely Stan created the name Spider-Man when Kirby had the Joe Simon Spiderman logo?
And if Stan was really desperate and very hands on with plots at this “critical” juncture why did he let Kirby plot Spiderman, as it seems very obvious he did (the story was really Oleck’s, by way of Bill Parker).
Stan says he gave the book to Ditko because Kirby’s Spiderman was too heroic looking, but Ditko says the character Kirby drew was in costume only on the splash page of the origin story Lee showed Ditko. If Stan was so disturbed by the heroic look of Kirby’s Spiderman based on a single appearance on the splash page, why did Lee have Kirby draw the covers for the very first two comic books featuring Spider-Man?
Stan’s spider on the wall story is clearly, just that a story, and if Stan accepted an old recycled plot from Kirby for Spiderman, why on Earth should anyone think the other characters didn’t emerge the same way, Kirby recycling old ideas.
Toberoff and the Kirby estate can rightly seek some percentage of the Character based on those things which were incorporated into the Lee/Ditko revamp.
By way of the Simon/Oleck Spiderman/The Fly Kirby brought to Marvel.
1. The name Spiderman
2. The powers of The Fly, wall crawling, 6th (spider) sense.
3. A teen protagonist living with an aunt and uncle.
Patrick,
Since you admit that the basic ideas originated with Beck, Oleck and Simon, and that Kirby was merely recycling them, I see no reason to think Kirby deserves a piece of the Spidey action. Had Kirby’s version– which probably would have been much like the Simon/Kirby FLY– then sure, Kirby’s finished work would have been a part of Spidey’s literal history.
But rough ideas by themselves do not morally (IMO) entitle one to a piece of the finished product. One story has it that Roy Thomas attempted to sell DC on reviving the Atom in the early 60s. His attempt may not have had any essential influence on the Fox-Kane version of the Atom that saw print– maybe he merely got the ball rolling. But rough ideas are a dime a dozen, particularly those recycled from earlier sources. Nevertheless, I’m sure that lawyers can and will sue over such “intellectual property,” no matter how fallacious the reasoning may be.
Your conspiratorial rewriting of history re: Ditko’s assignment would make much more sense if Ditko was the better-selling artist. To the contrary, Will Murray has analyzed how well Kirby’s covers sold the Marvel books, such as the GIANT-MAN feature. SPIDER-MAN was by no means a guaranteed success, but putting Kirby on it would have been greater financial insurance than Ditko.
Your whole scenario depends on the notion that Lee and Goodman knew they had a winner and were seeking to protect a lucrative property from Joe Simon’s legal wrath. Yeah, Goodman’s confidence in the property was so great that he stuck the first adventure in an anthology mag.
I tend to believe this part of Stan’s story: that he wanted something different for this character that Kirby couldn’t give him. I can believe that Lee would have seen no merit in simply re-doing the Fly. You can believe that he supplied no ideas if you like, but his editorial instincts were generally sound.
Isn’t just a diversion to who gets the money? I mean, people (allegedly) buy comics for the stories and probably couldn’t care less who was getting the money as long as the books continue to be published.
But at Marvel’s rate of recent cancellations/relaunches that also could become a problem in the near future.
Gene, It isn’t important that what Kirby brought to Marvel was derivative.
Pretty much everything is derivative in art. The Simon/Oleck Spiderman was in no way original, and had been rejected by Sid Jacobson at Harvey for that reason.
What is important (the issue is copyright) is that Kirby submitted something concrete to Marvel, and Marvel retained certain elements from the pages Ditko identified as “Joe Simon’s The Fly.”
Ditko wrote an essay describing his meeting with Stan.
http://1.bp.blogspot.com/_JpznoEUR-gY/SNfknMrrpQI/AAAAAAAAABw/mX024I26QKg/s1600-h/Kirbys_Spiderman_page1.jpg
A percentage of the copyright based on certain character elements introduced to Marvel by Kirby in his five penciled pages, has nothing to do with how the character was eventually brought to life by Stan.
It was obviously Lee’s voice the majority of Marvel fans responded to not Kirby’s or Ditko’s.
Spider-Man was Marvel’s best selling book, and sold even better after John Romita replaced Ditko.
If Marvel fans weren’t most interested in Stan’s voice The Fantastic Four or Thor would have outsold Spider-Man, but they never came close, in fact Thor didn’t sell much better than Daredevil.
That isn’t the issue. The issue is copyright. Kirby contributed to the core concept of the Marvel Spider-Man and the estate has every right to seek a percentage of the copyright.
What matters, in terms of copyright law, is that Spider-Man as published was different from what Kirby did, and the differences far outweigh the similarities. Even if the similarities were actionable, they wouldn’t enable Kirby’s estate to claim partial ownership of the character. He didn’t do the work.
Back in 1988, I was interested in doing comics material, so I wrote a full script about a man who had infinite strength, due to a symbiote within his body that he communicated with, (the character was a superhero parody, who won a fight with a ninja purely because of his strength and invulnerability, despite having no combat skills) and uploaded the story to CompuServe’s Comics Forum, to see how people would react. One freelance artist contacted me, but that was it. In 1989, SHE-HULK #10 and #11 featured Pseudo-Man, a superhero parody who had incredible strength due to a computerized helmet that he wore.
The writer, Steve Gerber, thanked several CompuServe Comics Forum members for the story idea. There were obvious similarities to my character, but there were enough differences so that I never seriously considered any sort of legal action.
All the jokes one hears about Marvel and DC copying each other’s ideas for events, and references to swiping by artists, indicate that the similarities of ideas for characters and stories are practically meaningless. The only thing that would be actionable would be direct, provable plagiarism.
SRS
>> That isn’t the issue. The issue is copyright. Kirby contributed to the core concept of the Marvel Spider-Man and the estate has every right to seek a percentage of the copyright.>>
I think the difference in how people are seeing it is built on readers apportioning credit differently than, say, chains-of-title.
Readers tend to ask, “What’s the distinctive stuff, and who put it in,” while copyright cases ask, “Where did it start, and who had access to what?” Particularly in the film industry (which now owns the comics industry, more or less). Art Buchwald’s case against (Paramount? I don’t remember) over COMING TO AMERICA wasn’t built on whether the most distinctive bits of that movie came from Buchwald’s treatment, but on the fact that Buchwald had submitted a story about an African prince coming to America looking for a wife, it was seen and considered by movie executives, and then they turned around and used the basic ideas without compensation, and built something else out of it that he didn’t get paid for.
The Kirby case for Spider-Man has pretty much the same structure — Kirby brought something in, it was considered, he started work on it and then it was taken away and reassigned and reworked, but it still retained clear foundational elements of what Kirby proposed: The name, the wall-crawling, a teenage orphan living with an aunt and uncle. With Ditko’s confirmation that that stuff was in what Kirby did, and that it came from earlier work, not from Stan, that’s probably more than enough to establish that what Marvel produced was built on Kirby’s submission, and Kirby was entitled to be compensated for it.
At least, in movie-industry terms, and possibly beyond. Copyright appropriation cases turn on similarity and access — does the work show core elements of what someone’s claiming it was appropriated from, and did the people appropriating it have access to the earlier material? In this case, the core similarities are evident (the name, the insect powers, the teenage orphan, the aunt and uncle, all taken together for a strong core similarity, and Lee says he saw and rejected Kirby’s material and Ditko says he saw it too, and that it was basically The Fly. That’s access.
Changing the costume, changing the tone of it, messing with the powers — those would all count as additions, but they wouldn’t make it not derivative of what Kirby submitted. Those are the kinds of things that a case like this would turn on.
Now, the counterargument could be made that the similarities aren’t enough, or that what Stan and Steve saw didn’t have the similarities it seems to have, though they seem shaky at least from what we know. But the argument that what Kirby brought in was no good so Stan and Steve turned it into something better won’t apply, because it’ll be the “turned it into” part that stands out, not the “something better.”
Nor is the argument, “we built on what he brought in but he took it from somewhere else,” a very good one. It still depends on a chain of adaptation. Oleck and Simon might then have a case against Kirby (or possibly even Marvel), but it wouldn’t mean that Spider-Man was utterly unrelated to the teenaged wallcrawling orphan named Spiderman who lived with an aunt and uncle that Kirby brought in.
The access and similarity arguments are pretty strong, and the major question would be whether those elements came from Stan or Jack. Ditko points to them coming from Kirby, and even points to evidence that backs that up, that Kirby had the material in some form predating anything Stan added.
Where that aspect of this case will go, I don’t know, but there’s certainly an argument to be made, which is doubtless why Toberoff is making the claim. But these things aren’t decided on “Stan says Jack’s version was too heroic so they threw it out;” they’re decided on “He’s named Spider-Man, has spider-powers, is an orphan living with an aunt and uncle, and the plaintiff can show that their side had the storyline, name and logo prior to Marvel’s claim to have created the character, and that Marvel had clear access to that version, so there’s a clear chain of creation.”
Ditko is probably more important to the creation of Spider-Man in the stuff that matters to readers eyes — let’s face it, if he was bitten by a radioactive cat, lived with a desperately-ill mother after his father was murdered, we might find the resulting character just as compelling — but sadly, he’s got much less of case (even if he were inclined to press one) because it’s so clear how much stuff he was handed before he started work.
Steven Stahl’s Pseudoman example shows possible access, but not anywhere near the same level. Had he pitched a character called Pseudo-Man to Marvel, worked on it for part of an issue before they told him they were taking it away and giving it to Gerber to develop and they then spent decades explaining that their Pseudo-Man was taken away from Stahl and given to Gerber, that would be a similar level of access. What similarities there were or weren’t at that point would matter a whole lot.
kdb
Oleck wouldn’t have a case against Kirby because Oleck was employed by Joe Simon. Joe Simon wouldn’t have a case against Kirby because he gave the materials to Kirby as a gift.
Archie comics which published The Fly might have a case against Marvel except that Joe Simon reclaimed the copyright to The Fly, so Simon might have a case against Marvel, but not Kirby.
In my opinion it’s hard to argue that the name, the super powers, and the teen orphan living with an aunt and uncle don’t constitue a large part of the core concept, and that core character template is what copyright is concerned with.
>> Oleck wouldn’t have a case against Kirby because Oleck was employed by Joe Simon.>>
I don’t know the circumstances of Oleck’s employment, whether he was paid a salary and had taxes and vacation days and such; “employed” is a variable word, as witness the various claims that Kirby was or wasn’t employed by Marvel.
>> Joe Simon wouldn’t have a case against Kirby because he gave the materials to Kirby as a gift.>>
There’s a difference between giving someone physical objects and giving them copyright interest to those objects.
>> Archie comics which published The Fly might have a case against Marvel except that Joe Simon reclaimed the copyright to The Fly, so Simon might have a case against Marvel, but not Kirby.>>
And on that score, the statute of limitations on copyright infringement would probably stop him.
I don’t say any of the above to argue one side or the other, just to nitpick a little. George Pérez gave me the splash page to AVENGERS vol. 3 #1, for instance, but he didn’t give me the copyright to it.
>> In my opinion it’s hard to argue that the name, the super powers, and the teen orphan living with an aunt and uncle don’t constitue a large part of the core concept, and that core character template is what copyright is concerned with.>>
In mine, too, but what a court will see and hear will almost certainly be different from what we do, and what they think may be as well. So I think it’s worth pointing out, but I hesitate to draw a firm conclusion.
kdb
I forgot to address this:
“Stan says he gave the book to Ditko because Kirby’s Spiderman was too heroic looking, but Ditko says the character Kirby drew was in costume only on the splash page of the origin story Lee showed Ditko. If Stan was so disturbed by the heroic look of Kirby’s Spiderman based on a single appearance on the splash page, why did Lee have Kirby draw the covers for the very first two comic books featuring Spider-Man?”
It’s just possible that Stan felt that Kirby’s Peter Parker was too heroic looking. Given Kirby’s tendencies he might’ve drawn PP as “the wiry type” like Big Words of the Newsboy Legion, but even skinny Kirby characters can look pretty damned dynamic.
As for keeping Kirby art for the covers, that again may speak to the fact that BY THAT TIME Lee had already started using Kirby art to sell magazines irrespective of how much Kirby art was in any particular magazine. I will note that this was not in practice from Day One of Kirby’s employment under Lee: I’ve seen fan-analyses on the Timely-Atlas Yahoo group (as you have as well, Patrick) that make clear that Kirby covers did not predominate on covers of magazines where his work appeared internally. But at some point Lee and Goodman were using more Kirby Kovers, and they almost certainly did so because they sold well by that time.
Patrick said:
‘What is important (the issue is copyright) is that Kirby submitted something concrete to Marvel, and Marvel retained certain elements from the pages Ditko identified as “Joe Simon’s The Fly.”’
But my point remains– and I emphasize again that it’s a moral point rather than a legal one– is that just as Kirby derived his idea of Spider-Man from what was articulated in the failed Oleck/Beck proposal, Lee and Ditko derived their idea of Spider-Man from Kirby’s rejected proposal. Rough ideas, as I said, aren’t subject to copyright, and that appears to be all that Kirby’s idea was: the rough idea of an insect-powered crusader who was an orphan.
Synsidar said:
“What matters, in terms of copyright law, is that Spider-Man as published was different from what Kirby did, and the differences far outweigh the similarities. Even if the similarities were actionable, they wouldn’t enable Kirby’s estate to claim partial ownership of the character. He didn’t do the work.”
Though I’m sure that a legal case *can* be made that a worker not involved in the final execution can lay claim to the final product, I would tend to agree that the lack of literal involvement hurts the worker’s case. That’s why I said that if any of Kirby’s proposal had been used in the finished work– even just those five pages– I would support the idea that Kirby was a literal collaborator on SPIDER-MAN.
KSB said:
“At least, in movie-industry terms, and possibly beyond. Copyright appropriation cases turn on similarity and access — does the work show core elements of what someone’s claiming it was appropriated from, and did the people appropriating it have access to the earlier material?”
Well, now that I’ve read the above, it may be that legally “rough ideas” are indeed subject to copyright law in the case of such access points. It seems to me that I’ve heard of cases where access was demonstrated and the courts still threw out the case because the finished idea was deemed unique, but I don’t recall specific cases. And of course in many such cases the challengers to a given franchise are simply given a settlement. I recall a real-life archaeologist who claimed that he’d submitted a treatment of his life to a film studio that turned around and greenlighted RAIDERS OF THE LOST ARK. Since Indiana Jones never got credited to him I imagine that he either lost his case or was given money so he’d go away.
>> I recall a real-life archaeologist who claimed that he’d submitted a treatment of his life to a film studio that turned around and greenlighted RAIDERS OF THE LOST ARK. Since Indiana Jones never got credited to him I imagine that he either lost his case or was given money so he’d go away.>>
Yeah, lots of people claim they submitted something, but that’s generally not enough. When I did JONNY DEMON for Dark Horse, someone threatened to sue because they’d submitted some series called Johnny something to Dark Horse (Johnny Engine? Johnny Machine? something like that), and felt we’d swiped it from them. But Dark Horse’s lawyers told him to take a hike on the grounds that (a) I never saw his work, (b) I submitted mine before he said he submitted his, and (c) mine was submitted to other places first, showing that Dark Horse didn’t have me turn it into something like his project. As far as I know, the two weren’t much alike, even at that.
But movie companies get lots and lots of submissions, and most of them are never read. Those that are read are often read by someone so low-level that they had no input into the project that’s being claimed as infringement, and so forth and so on. In the case of COMING TO AMERICA, Buchwald was able to show that his version was not only submitted, it was optioned and developed by various people including the guy who went on to direct COMING TO AMERICA, so direct access was proven.
In the Kirby case, both Lee and Ditko indicate that they saw Kirby’s version, and Ditko says it was material that predated Lee’s involvement, so that’s a similar case of showing clear access to the material.
Kurt, The Simon/Oleck Spiderman (Silver-Spider) was created in 1953 when Simon and Kirby had a partnership. Oleck was a staff writer.
I don’t know if Oleck was on salary, and very much doubt he had a paid vacation, but the writers and artists who worked for Simon and Kirby signed away all rights to what ever they contributed.
Since Simon and Kirby split 50-50 it can be assumed Kirby had as much right to use the Spiderman character as did Simon. Joe Simon has indicated he also gave Kirby the concept for The Challengers of the Unknown (pretty clearly recycled as the Fantastic Four)
when their partnership dissolved in 1957.
It should also be noted that Kirby had revised the Simon/Oleck Spiderman already in 1954 as the Night Fighter which was the first instance where the character walked on walls. The reason Kirby wasn’t involved in the 1953 Spiderman/Silver-Spider presentation is it was designed as a project for C.C. Beck who was looking to pick up some comic book work at the time. The Simon and Kirby studio employed many artists and writers, they packaged a great deal of material, only a percentage of which was written and drawn by Kirby or Simon.
Anything that resulted from the Simon and Kirby partnership would have been co-owned by them, and either of them could have used the concepts.
At Marvel during the period 1958-63 Kirby worked without a contract of any kind, there was nothing in writing, and that is the big issue Disney/Marvel has to deal with.
Kirby was not only not an employee, he wasn’t even a contracted freelancer.
Many comic book companies have a disclaimer on their letters page saying anything submitted to the letters page is the property of the company. One reason for this is to prevent fans from submitting a plot or character idea in a letter, and then trying to make a copyright claim later.
Kirby didn’t even have that to deal with.
Each and ever page submitted to Marvel during those early years was purchased or rejected on a per-page basis.
Gene,
I wouldn’t know anything about the Atlas-Timely group.
I’m not a member, and have never been.
Also I wonder what is your opinion of this comment on the topic by Tom Spurgeon author of the Stan Lee biography:
Tom Spurgeon: “My main objection, to be honest, is the lack of intellectual rigor it takes to presume that some violation is occurring by seeking this kind of legal outcome, because a) you don’t like it, b) you see some hidden message like they’ve included Spider-Man whose creative pedigree is much more in doubt than that of many other characters. Just stop it. I’ll argue the morality involved concerning comics’ long-term relationships with creators like Jack Kirby with anyone who’d care to argue the other side, and I’m confident I’d win. But let’s not presume that this is something being tried in Nerd Court. What I’m saying is that whether or not there’s an ability to sue on these grounds and whether or not this suit is justified is exactly what gets resolved with these motions up to and including a trial and appeals. “
>> I don’t know if Oleck was on salary, and very much doubt he had a paid vacation, but the writers and artists who worked for Simon and Kirby signed away all rights to what ever they contributed.>>
Which, in the absence of clear work-for-hire qualification, could make those rights revertable, just as Kirby’s doing.
I don’t expect it, but I’m just noting possibilities. I don’t know what documentation the Simon-Kirby partnership had on such things. But it is good to note that Kirby had as much right to the Silver Spider/Spider-Man idea as Simon.
kdb
Kurt, Oleck was Joe Simon’s brother-in-law.
Joe Simon commented, “Jack Oleck had been the number one writer for Simon and Kirby since the early days of Young Romance. Oleck always had time, even if he turned out a script seven days a week. As always he was anxious to join in a new venture.”
Harvey editor Sid Jacobson rejected the idea saying, “Strictly old-hat. It should have something new to offer, not a conglomeration of characters.”
The key issue is not what came before, but what Kirby submitted to Marvel. Although certainly derivative as Jacobson pointed out the Oleck/Simon Spiderman/Silver-Spider was derived from Bill Parker’s Captain Marvel, and as we know DC felt Captain Marvel violated their copyright on Superman.
The Kirby Spiderman as described by Ditko has far more in common with the Ditko/Lee Spider-Man than Captain Marvel had with Superman, and Kirby’s character was submitted to Marvel, not done for a rival publisher.
The core character as Kurt points out has nothing to do with everything that happened in the 100’s of issues published after the initial creation.
If you look only at the core character in Amazing Fantasy #15 then aside from Ditko’s costume, the elements present in Kirby’s pages constitute a substantial portion of the character.
All characters in fiction are derivative in some way. Science Fiction writer Phil Farmer wrote two books tracing the lineage of Tarzan, and Doc Savage.
The key is Kirby submitted an idea that was used in part
by Marvel. Since Kirby wasn’t even paid for the rejected pages (Marvel only paid for pages they accepted) how could Marvel possibly see the pages as work for hire?
Here’s the chain of events that led to Buchwald suing Paramount for breach of contract:
Simon on Spider-Man:
The info that treatments aren’t copyrightable is useful.
I wouldn’t pay any attention to a complaint about core concepts being copied, because that happens frequently in formula fiction. Writers use simple archetypes in simple stories. The archetypal superhero has a costume, at least one power, a love interest, perhaps a secret identity. An idea someone comes up with for a new paranormal character (“A mutant? He can’t be a mutant! That’s been done!”) will probably overlap with existing characters to some extent. Englehart’s use of Willow in JUSTICE LEAGUE OF AMERICA, when practically everybody knew she was a disguised version of Mantis, should dissuade people from pursuing complaints based on character similarities.
SRS
Patrick:
>> Kurt, Oleck was Joe Simon’s brother-in-law.>>
That wouldn’t make the law apply differently to him.
I wouldn’t expect there to be any trouble from the Oleck front; I’m just noting that the points you’re making — he was an employee, he signed away all rights — are pretty much the same arguments others are making about Kirby, and are as such subject to the same questions. Kirby wasn’t an employee, and whether Oleck was in the eyes of WFH law, we don’t know. “All rights” is not work for hire.
>> The key issue is not what came before, but what Kirby submitted to Marvel.>>
I agree. That doesn’t mean one can’t poke at the stuff that came before to see what’s there. I’ve already said it doesn’t affect the current case. We’re not deciding this case, though, and we’re not going to. We’re just talking about it.
Steven:
>> The info that treatments aren’t copyrightable is useful.>>
It’s not true, though. The notes on those other cases may turn up the specific context in which they’re making that statement, but any piece of writing is copyrightable. I’ve signed contracts transferring the copyright of a treatment to a film company, so they do recognize that there’s a copyright to transfer.
>> I wouldn’t pay any attention to a complaint about core concepts being copied, because that happens frequently in formula fiction. Writers use simple archetypes in simple stories.>>
You’re missing the point.
Using archetypes that have been used elsewhere is not the same thing as taking some guy’s work, handing it to someone else to rework, keeping significant parts of it (including the name) and then announcing for years that you didn’t like what he was doing so you reassigned it.
“Orphan” is a simple idea that recurs frequently. “Orphan named Spiderman with spider-powers who lives with his aunt and uncle” is specific enough to matter, particularly when someone delivered that to a publisher and then had that material handed to someone else with instructions to revamp and rework it into something.
Heck, try publishing a comic book today about an orphan named Spiderman with spider-powers who lives with his aunt and uncle, and see how far you get, even without the direct connection of Kirby and Marvel. You could probably get away with everything but the name, if done parodically, but even in a parody changing a name that little won’t fly, as the publishers of “XMEN (pronounced ’shmen’)” found out.
>> An idea someone comes up with for a new paranormal character (“A mutant? He can’t be a mutant! That’s been done!”) will probably overlap with existing characters to some extent.>>
Overlapping with existing characters is not what’s being discussed here. Being directly based on elements of submitted work is.
>> Englehart’s use of Willow in JUSTICE LEAGUE OF AMERICA, when practically everybody knew she was a disguised version of Mantis, should dissuade people from pursuing complaints based on character similarities.>>
The Kirby estate isn’t doing that.
Although, had Marvel made a fuss over Willow, DC would probably have told Steve not to do it again (which he didn’t, at DC, he did at Eclipse). That has happened before, so complaints based on character similarities have indeed happened, and influenced publishers. Marvel left Wonder Man dead for years because DC complained about a character similarity (and didn’t revive him until DC ignored a similar complaint), and Mark Gruenwald made major changes in the Squadron Supreme when DC complained that non-parodic use of the Squadron was annoying them to the point of having their lawyers start paying attention to it.
But that’s still not what the Kirby Estate is saying, here. Deciding that how Marvel may or may not have reacted to Willow is a guide to how a court will react to the Spider-Man situation is just not supportable.
kdb
I haven’t found support for your assertion.
******************************
Read more at Suite101: Comic Book Copyrights in Gaiman v. McFarlane: Case Determined Whether Writer or Artist Owns Spawn Characters http://graphicnovelscomics.suite101.com/article.cfm/comic_book_copyrights_in_gaiman_v_mcfarlane#ixzz0is7qQrwD
One more item re the copyrighting of characters:
Kurt, I’d have no problem with Oleck’s estate (Oleck is deceased) owning a bit of Spider-Man.
Toberoff is going after a percentage of Marvel copyrights based on Kirby not being under even a freelance contract at the time he was trying to sell pages to Marvel.
I think that tilts things strongly in Kirby’s favor.
In the instance of Spider-Man Kirby wasn’t even paid for the pages he submitted, so it’s even harder to see how Marvel could claim them as work-for-hire.
The Sunday (3/20) NYT story on the case indicates Marvel is possibly not challenging Kirby’s contribution, but is rather saying his work was work-for-hire.
Kirby’s relationship with Marvel 1958-1963 was more similar to the relationship Martin Goodman had with the hot-dog vendor he bought lunch from on the street corner than it was a typical freelance contract. Was the hot-dog vendor an employee of Goodman because Goodman paid him for a hot-dog?
In the case of the Simon and Kirby studio staff writer Walter Geier told Jim Amash in an interview published in Alter-Ego magazine that writers and artists working for S&K signed away all rights. I’d agree with you that is even open to challenge, but Kirby signed nothing with Marvel in the early 60’s.
Geir said he wasn’t bothered by assigning copyright to S&K because almost all the stories the staff wrote were pitched to them in story conferences by Jack Kirby.
WALTER GEIER
Geier: Every time I went up there I saw both of them(Simon and Kirby). And they always gave the writers the plots. Jack Kirby was great about that; he always came up with the plots. Jack had a fertile mind.
Geier: Joe used to sit there when the writers came in for conferences. They sat there and made up the plots for the writers. Jack did most of that. Joe would say something once in a while, but Jack was the idea man.
Geier: Joe didn’t talk much. He could come up with decent plots, but it was usually very sketchy stuff. A lot of times Joe would say, ” Awww…you figure out the ending.” Jack would give me the ending, because he was good at figuring out stories. It was not hard to work with Jack.
Geier: They were Jack’s plots. I just supplied the dialogue.
Let’s hear from Stan Lee biographer Tom Spurgeon again.
Tom Spurgeon: “My main objection, to be honest, is the lack of intellectual rigor it takes to presume that some violation is occurring by seeking this kind of legal outcome, because a) you don’t like it, b) you see some hidden message like they’ve included Spider-Man whose creative pedigree is much more in doubt than that of many other characters. Just stop it. I’ll argue the morality involved concerning comics’ long-term relationships with creators like Jack Kirby with anyone who’d care to argue the other side, and I’m confident I’d win. But let’s not presume that this is something being tried in Nerd Court. What I’m saying is that whether or not there’s an ability to sue on these grounds and whether or not this suit is justified is exactly what gets resolved with these motions up to and including a trial and appeals. “
Steven -
I don’t recall talking about copyrighting characters. It was copyrighting treatments you said couldn’t be done, and now you’ve suddenly switched gears. Nothing in the Posner decision makes what the Kirby Estate is claiming untenable, even if you’d managed to quote it right.
Patrick -
>> I’d have no problem with Oleck’s estate (Oleck is deceased) owning a bit of Spider-Man.>>
Me neither.
>> Walter Geier told Jim Amash in an interview published in Alter-Ego magazine that writers and artists working for S&K signed away all rights.>>
Sure. But even in “all rights” sales, copyrights can revert; the law the Kirbys are relying on in this case says that. It’s only in work-for-hire that reversion doesn’t happen, and “all rights” doesn’t mean “work for hire.”
kdb
Film treatments aren’t copyrightable because they merely describe story ideas; they aren’t stories themselves. Ideas for comics characters aren’t copyrightable either. A character has to be developed and given a distinctive personality by a writer to be copyrightable. That was a point in Posner’s ruling.
SRS
>> Film treatments aren’t copyrightable because they merely describe story ideas; they aren’t stories themselves.>>
This is not true. That’s like saying an essay can’t be copyrighted because it’s not a story. Film treatments are written works substantial enough to be copyrighted.
There’s a sample one here:
http://www.movieoutline.com/articles/sample_treatment.html
Note the copyright notice in the final line. If you think that publishing that without permission, or making a movie out of it without buying the rights, is fine and dandy because it’s uncopyrightable, give it a shot and see how it goes.
>> Ideas for comics characters aren’t copyrightable either. A character has to be developed and given a distinctive personality by a writer to be copyrightable. That was a point in Posner’s ruling.>>
And that’s not what the Kirby Estate is doing here. You’ll note Marvel’s response wasn’t “ha ha, ideas for characters can’t be copyrighted,” it was “That was work for hire, that was.”
Instead of just quoting large swaths of text, you might try to understand what the case is actually about. No one of either side is saying it’s about “ideas for characters,” or that it parallels the creation of Willow, or that nothing can overlap with existing characters, to name just a few of the odd things you’ve been bringing up.
kdb
Patrick said:
“Gene,
I wouldn’t know anything about the Atlas-Timely group.
I’m not a member, and have never been.”
Sorry about that: I thought you were on that as well as Ditko/Kirby group.
Anyway, comics detectives of greater perserverance than I did map out how often Kirby’s covers graced Timely/Atlas mags in the late 50’s period when JK came back to work under Lee, so if anyone’s interested, that info is available on the Timely/Atlas Yahoo group.
This makes clear (tangential though the point is) that Kirby’s claim of being brought in to “save” the Goodman company from destitution was just much a “foxy grandpa” story as Lee’s story about dreaming up Spidey from seeing a spider on the wall. Not that this is a smear against either man: they were entertainers, so when they were asked about the minutiae of their careers, they told entertaining stories that lacked a lot of the boring real-life details.
I don’t have anything much to say to the Spurgeon piece you quote, except that (a) I think he’s wrong on the moral question re: Spider-Man, for reasons I’ve already mentioned, and (b) it’s meaningless to say this:
“But let’s not presume that this is something being tried in Nerd Court.”
I haven’t seen any fans, nerdy or otherwise, asserting that they thought their voiced opinions would have any effect on the court’s verdict.
Has anyone?
Your honor,
Since the esteemed opposition has failed to disclose any of the actions he imputed to my clients, known collectively as “the Nerds,” it is my opinion that you must vacate and dis-substantiate his claim as to expertise on the subject of “Nerd Court.”
Also submitted in evidence: my latest blog-essay.
http://arche-arc.blogspot.com/2010/03/swipe-filed-for-copyright.html
I understand what the case is about at least as well as you do. You were wrong about the relevance of the Buchwald case and wrong about film treatments being copyrightable (do a Google search on “copyrighting film treatments” and see what comes up). The reason I brought up the copyrighting of characters was that nothing substantial was being argued about.
SRS
You’re linking to stuff you don’t understand again.
The link you cite there says nothing about film treatments not being copyrightable — it says ideas aren’t copyrightable, and specifically suggests registering a treatment with the Guild for protection. That would be copyright protection; if treatments weren’t copyrightable, registering them with the Guild wouldn’t accomplish anything. You seem to think that a film treatment is “an idea,” but it’s not. It’s the concrete expression of a set of ideas and that’s what copyright exists to protect.
The Google search you suggest turns up that page (first one, did you look any further?) and others, some of which show and/or acknowledge film treatments to be copyrighted. Heck, here’s the US Copyright Office stating that treatments can be submitted for registration:
http://www.copyright.gov/fls/fl119.html
They note there that an idea alone is not copyrightable, but the literary or dramatic expression of it is. That includes treatments.
You simply don’t understand what you’re talking about, and you’re quoting things that you think support you but don’t.
kdb
Gene, In the classic comic strip “Foxy Grandpa” always outwits his childish tormentors.
I’m not sure I understand your comment about not agreeing with Spurgeon on the morality of the copyright suit.
You think it is immoral for the Kirby estate to seek a legal remedy when they have a clear case?
Yesterdays NYT’s article indicates Marvel isn’t even challenging Kirby’s contribution, but is rather seeking to define his contribution as work-for-hire.
Is that really what you meant.
Kirby never claimed he was “brought in to save Marvel,” but Dick Ayers said Stan Lee told him this about the dire straits Marvel was in at the time of Kirby’s arrival.
Dick Ayers: “Things started to get really bad in 1958. One day when I went in Stan looked at me and said,”Gee whiz, my uncle goes by and he doesn’t even say hello to me.” He meant Martin Goodman. And he proceeds to tell me, “You know, it’s like a sinking ship and we’re the rats, and we’ve got to get off.” When I told Stan I was going to work for the post office, he said, “Before you do that let me send you something that you’ll ink.”
Roy Thomas: “You started doing a lot of Monster stories over Jack, didn’t you?”
Ayers: “Oh, then I got rolling on that, yeah.”
I haven’t seen the Work-For-Hire criteria posted here.
Here are the criteria with my comments.
1) The hiring parties right to control the manner and means by which the product is accomplished
(If the product referred to in Kirby’s case is his work (rather than the published comic book) it would seem to me Marvel had no manner or means concerning how Kirby produced it except that he meet his deadline.)
2) The specific skills required (the more specialized the skill the less possibility of work for hire.
(I don’t know how “specific specialized skill” is determined, but it’s difficult to imagine comic book artist wouldn’t pass this test.)
3) The source of instruments and and tools-did the hiring party supply the work tools.
(My assumption is Kirby supplied everything with the possible exception of the art board.)
4)The location of the work.
(Kirby worked at home.)
5) The duration of the relationship.
(At least in the early years the duration was the time it took Kirby to complete a job. The relationship was in effect job to job. It could even be viewed as page to page since there was no guarantee Marvel would accept, and pay Kirby for any given page, he was paid by the page, Marvel could and did refuse payment on any page it rejected. Kirby could have been given no new assignments at any time.)
6) Whether the hiring party had the right to assign additional work to the hired party.
(In the early years Kirby didn’t even have a free lance contract where he and Marvel agreed on a page rate and minimum number of pages per month they guaranteed one another. Marvel had no right to assign additional work to Kirby. He wasn’t an employee, and was under no obligation to do any work for them at all until he signed his first freelance contract with them. Kirby again worked without a freelance contract from 1968-1970.)
7)The extent of the hired parties discretion over when and how long to work.
(This is vague. Kirby had a deadline, when and how long he worked to make that deadline was up to him.)
8) the method of payment.
(My understanding is Kirby was paid a page rate for each accepted penciled page. He wasn’t paid for plotting as were Ditko, and Lee, and he wasn’t paid for rejected pages.)
9)The hired parties role in hiring and paying assistants.
(This would have been entirely up to Kirby assuming he ever hired or paid an assistant while working for Marvel. Further Kirby was not a hired party he was freelance. He wasn’t even in a sense “hired” to pencil each individual job. Kirby produced the work at home with no contract and no guarantee Marvel would purchase the finished pages from him. In fact it wasn’t unusual for Marvel to reject pages completed by Kirby. Kirby was never paid for the rejected pages, so he wasn’t really hired to produce them, rather he produced a finished product, and then offered it to Marvel which purchased or refused to purchase at their discretion.)
10)whether the work is part of the regular business of the hiring party.
(Score one for Marvel.)
11)The provision of employee benefits.
(There were none.)
12)The tax treatment of the hired party.
( This will be part of the Toberoff suit. I don’t know much about this, except a tangent related to the original art, not really related to the copyright case.
If Marvel had purchased the physical artwork Kirby would have collected sales tax from them. Marvel never paid sales tax for the art work, or if you prefer Kirby failed to collect it from them.
>> 10)whether the work is part of the regular business of the hiring party.
(Score one for Marvel.)>>
Actually, at the time, most comics artwork done for Marvel was done freelance, not in the offices or by employees, so the argument can certainly be made that the work wasn’t part of their regular business. Publishing comics was, but drawing them wasn’t, and even writing them was often done by non-employees.
kdb
Kurt: “Actually, at the time, most comics artwork done for Marvel was done freelance, not in the offices or by employees, so the argument can certainly be made that the work wasn’t part of their regular business. Publishing comics was, but drawing them wasn’t, and even writing them was often done by non-employees.”
A way of looking at that clause I hadn’t considered, and now that you mention it one which might well illuminate Toberoff’s comment: “during Marvel’s early days — when Mr. Kirby was creating his superheroes — the company was a shoestring operation that was barely afloat. There was no bullpen; there was a one-man office.”
I don’t think their is the slightest doubt Martin Goodman’s comic book division was hanging on by a thread when Kirby arrived. Not only is there the conversation with Stan reported by Ayers “we’re rats on a sinking ship, and we’ve got to get off,” but the situation described by Toberoff is echoed in comments on the Black Cracker Blog by Josh Alan Friedman. Friedman has an excellent series of posts on the early history of Martin Goodman’s Men’s Adventure Magazines. He points out the magazine division unlike the comic book division was doing very well:
JAF:”Under the umbrella of Magazine Management, hundreds of publications came and went: men’s adventure, semi-sophisticated cheesecakers, movie fanzines, Western adventures. A one-man operation resided in the corner called Marvel Comics. That one man was Stan Lee.”
Patrick said:
“Gene, In the classic comic strip “Foxy Grandpa” always outwits his childish tormentors.”
Substitute “rabid fans” for “childish tormentors” and I think we’ve still got a match. Or maybe make that “rabid elitist fans.”
I don’t know what Spurgeon’s argument is, so I can’t speak to specifics there. The blog-essay to which I linked explains my position on the moral (not legalistic) problem associated with Kirby claiming credit for Spider-Man. If you want to respond on the blog or quote sections of the essay here, I’m cool with either: I’m just not retyping the whole thing here.
Kirby’s references to saving Marvel (which I cited just to show that he too was capable of hyperbole) were almost certainly in his interview in COMICS JOURNAL #136, which is touched upon in the Stan Lee interview in COMICS ARTIST #2:
Roy: That’s the period when Jack Kirby came back to Marvel. Jack mentioned in an interview [in The Comics Journal #136] that he came to work offering his services when people were literally moving out the furniture. Do you recall that?
Stan: I never remember being there when people were moving out the furniture. [chuckles] If they ever moved the furniture, they did it during the weekend when everybody was home. Jack tended toward hyperbole, just like the time he was quoted as saying that he came in and I was crying and I said, “Please save the company!” I’m not a crier and I would never have said that. I was very happy that Jack was there and I loved working with him, but I never cried to him. [laughs]
http://twomorrows.com/comicbookartist/articles/02stanroy.html
Gene, The fact is they did move out furniture, after Goodman ordered Lee to fire the whole staff, and Lee was left for a time as a “one man opperation.”
This likely occured around the same time Kirby returned to Marvel in 1958.
Since Toberoff is making that circumstance part of his case I’d imagine greater detail will emerge during the trial to support Toberoff’s contention that Marvel was on the verge of shutting down, as confirmed by Stan Lee in his conversation with Ayers (we’re rats on a sinking ship, and we’ve got to get off), as well as the recollection of Goodman magazine editor Bruce Jay Freidman who says Lee was a one man opperation tucked away in a corner.
Hmm. So you consider Ayers’ hearsay about what Lee said to be more valid than Lee’s actual recollection?
I think Ayers could have heard Lee grousing about the state of the comics biz, but that doesn’t mean he was more aware of what was happening at the offices than Stan was.
According to a poster on the Timely-Atlas group, Kirby was looking for work at the companies in 1956, after Mainline Comics dissolved, along with (except for a few minor collaborations) his partnership with Joe Simon. In 1956 he did contribute to Atlas’ YELLOW CLAW book, which was started by other hands, but most of his accounts then seem to be at DC, and slightly later, SKY MASTERS, which folded in the summer or fall of ‘58.
THEN, he shows at the Atlas offices and begins his long tenure there, but prior to that, Lee has started buying again, as the stockpile of finished work had largely been used up by then. But had Kirby never come back, Lee still would have been buying new work from freelancers, and as I said, Kirby wasn’t even cover-featured on all of his books for a certain time. I don’t have a definitive list as to how the “Atlas Implosion” affected the salaried staff at the company, but I have the sense that Atlas was never heavily staffed at the best of times, and that they always worked more in the freelance mode than DC.
Gene, Between 1956 and 1958 Marvel lost their distributor and became reliant on DC (Independent News)to distribute their comic books.
Marvle had a very large staff prior to Goodman ordering Lee to fire all the staff, including other editors besides Lee.
Remember they went from publishing 75-100 comic books a month to 8.
We’ll see what evidence Toberoff presents at trial. I find it difficult to understand why he would mention the “one man opperation” (just as described by Goodman editor Bruce Jay Freidman) in a brief if he wasn’t going to make that argument central to the case.
“Marvle had a very large staff prior to Goodman ordering Lee to fire all the staff, including other editors besides Lee.”
I’ll ask the experts to weigh in on this.
“I find it difficult to understand why he would mention the “one man opperation” (just as described by Goodman editor Bruce Jay Freidman) in a brief if he wasn’t going to make that argument central to the case.”
What’s the relevance of the “one-man operation” to the work-made-for-hire argument that Marvel’s making? What does it matter if Atlas employed one man or fifty?
>> What’s the relevance of the “one-man operation” to the work-made-for-hire argument that Marvel’s making? What does it matter if Atlas employed one man or fifty? >>
If they employed one man, it was Stan, clearly making Kirby not an employee. That would weaken Marvel’s WFH claim.
kdb
Here is a description of the Marvel bullpen from the Dennis Kithen Paul Buhle book The Art of Harvey Kurtzman:
Adel Hasan fresh out of high school took a job in 1945 as proofreader. She worked alongside artists Al Jafee, George Klein, Syd Shores, Frank Giacoia, and others.
Violet Barkley was the only other woman Adele recalled in the Timely (Marvel) offices.
Desspite his young age Stan Lee ran the shop with an iron hand. Employees would often show up early, relax with coffee, and chat, but at precisely 9:00 A.M. a loud whistle was blown, and everyone was expected to jump into action.
Adele vividly recalls one morning when Frank Giacoia was lingering over a newspaper article when Stan spotted him moments after the whistle. Giacoia was summarily sent home and his pay docked for the day as an example.”
This makes clear that Marvel had a bullpen where the artists were being paid a salary. You can’t “dock” a piece meal page rate.
In addition to the artists I mentioned Marvel employed the following staff of writer/editors: Hank Chapman, Paul S. Newman, Don Rico, Carl Wessler, Al Jaffee, and Daniel Keyes.
Joe Maneely, was on staff as Marvel’s most important artist for many years before being let go with the rest of the staff. I’m pretty sure Bill Everett, and Carl Burgos were staff artists as well.
That is just the creative staff, Marvel also employed many freelancers.
But if Marvel/Atlas employed fifty staff employees on salary, and still had the same relationship with Kirby as ever, the requirements for wfh that Patrick listed above would still not have been fulfilled, and Kirby would be no *more* a wfh contractor than with a “one-man operation.” All that should concern the case is whether or not Marvel treated Kirby as wfh, period
It’s a superficial distinction that I admit lawyers may want to use for its emotional appeal.
The first person on the TA list to respond to your statement has said that Atlas was largely freelance at the time of the Implosion.
Others may have different takes: if so, I’ll report them, but I repeat that the quantity of salaried employees has no real effect on the determination of Kirby’s status. I’ll be happy to agree with you that Marvel’s lawyers probably won’t be able to pursue most of the conditions on your list, though one possible legal approach might come back to that question that so vexes comics-fans: “who really created what.”
Gene, I completely agree what is important is Kirby was not an employee of Marvel. It only matters that Marvel had 20 people on staff in the late 40’s early 50’s and only one (Stan Lee) after Goodman fired the staff, because Toberoff is seeking to show that Kirby wasn’t an employee of Marvel. That Marvel had changed the way they had done business in the past when they did have staff writers and artists.
What matters is Kirby was not an employee, he didn’t even have a freelance contract. He wasn’t even paid for the Spiderman pages he tried to sell Marvel which Marvel retained certain key elements from.
If you don’t think the name Spiderman is important because it lacks a hyphen, try publishing a comic book called Super-Man and see what happens.
“It only matters that Marvel had 20 people on staff in the late 40’s early 50’s and only one (Stan Lee) after Goodman fired the staff, because Toberoff is seeking to show that Kirby wasn’t an employee of Marvel.”
But the same proofs of Kirby’s independent status apply no matter how many people work at Marvel.
If 20 people had worked on staff in 1958. the Kirby Estate would STILL have to invoke the same proofs (lack of taxation, etc) to prove that Kirby was not an employee.
BTW, the first example you printed may be Marvel’s strongest card:
“1) The hiring parties right to control the manner and means by which the product is accomplished”
Perhaps the Marvel lawyers will seek to prove that Stan Lee controlled a lot more of the creative process than many would credit him with.
>> It’s a superficial distinction that I admit lawyers may want to use for its emotional appeal.>>
In a court cases, if you can prove something wrong six ways, you use all six.
>> “1) The hiring parties right to control the manner and means by which the product is accomplished”
>> Perhaps the Marvel lawyers will seek to prove that Stan Lee controlled a lot more of the creative process than many would credit him with.>>
That depends on what “manner” and “means” are. They didn’t require that Kirby work set hours, or that he do layouts first and then tighter pencils. They paid for what he turned in, not for how he made what he turned in.
But yeah, that’s probably a point that both sides will try to interpret in whatever way’s most favorable to them.
kdb
Sure. One famous bad “proof” certainly worked for OJ Simpson.
“If it don’t fit you must acquit.”
Similarly Marvel’s lawyers might say:
“Stan Lee thought up the Marvel Thing,
“So we owe nothing to the King.”
Here in “nerd court” we can’t be sure how,
“the manner and means by which the product is accomplished”
will be defined by the court.
Looking at it the part Marvel controls is the accomplished product.
They have an accomplished product in mind. Something they would publish in a comic book.
The manner and means were entierly up to Kirby.
If Kirby used a #2 or #3 pencil Marvel wouldn’t care.
They wouldn’t care if he used an eraser.
They wouldn’t care if he drew on a table or on a lap-board. They wouldn’t care if he used photo-reference or his imagination. They wouldn’t care if he drew left handed or right handed. They wouldn’t care if he drew morning, noon or night. All Marvel wanted was the accomplished product.
If Marvel’s lawyers can demonstrate that Lee was a lot more hands-on as far as shaping the “manner and means” than you assert in the above representation, then the lawyers may be able to compromise any claim that he done it all his own self.
Darn pronouns.
The second “he” is Kirby.
Pat wrote:
” Adel Hasan fresh out of high school took a job in 1945 as proofreader. She worked alongside artists Al Jafee, George Klein, Syd Shores, Frank Giacoia, and others.
Violet Barkley was the only other woman Adele recalled in the Timely (Marvel) offices.”
Pat, the staff you are describing in your quote from the Kurtzman book was the 1940’s Timely staff. Beginning in 1941 with Simon & Kirby, Martin Goodman began to hire creators to work “on staff” and supplement the shop and freelance material being produced. By 1943-4, almost all the material was being produced either in-house or by freelancers. This continued until early 1950 when the entire Timely bullpen was let go and Goodman retained a small staff, relying on freelancers for the art being produced.
As Goodman expanded throughout the 1950’s, except for a small production staff and editorial staff, all work was done freelance.
Pat again:
“In addition to the artists I mentioned Marvel employed the following staff of writer/editors: Hank Chapman, Paul S. Newman, Don Rico, Carl Wessler, Al Jaffee, and Daniel Keyes.”
This is now the post-Timely bullpen 1950’s. Chapman was also an editor so was likely on staff. Newman and Wessler were likely freelancers. Rico could have been on staff but I don’t know if he edited. Jaffee I can ask. Bottom line is editors were probably on staff, writers not so.
Pat again:
” Joe Maneely, was on staff as Marvel’s most important artist for many years before being let go with the rest of the staff. I’m pretty sure Bill Everett, and Carl Burgos were staff artists as well.”
Maneely and Everett were mostly freelance who both “probably” also spent some time on staff towards the 1956-57 period. Burgos was certainly likely on staff.
Pat:
“That is just the creative staff, Marvel also employed many freelancers.”
Marvel employed “primarily” freelancers. They needed a staff for editorial and production. Very little artwork or scriptwork was done on staff.
After the Atlas implosion, Stan was mostly alone and began using up inventory but very shortly afterwards he began buying new work before the inventory ran out. Joe Maneely was back drawing TWO-GUN KID, Dick Ayers was back drawing WYATT EARP, Morris Weiss was back on Patsy Walker, etc…
The real turning point was the death of Maneely and the return of Jack Kirby, an event that occurred the very same week in June of 1958.
Thanks for your expert opinion, Doc.
Since you say that T/A seems to have retained at least a “small staff” throughout most of the 50s, I don’t know how lawyer Toberoff can argue that Stan was a “one-man operation.”
But since when was the law logical?
Gene wrote:
“Since you say that T/A seems to have retained at least a “small staff” throughout most of the 50s, I don’t know how lawyer Toberoff can argue that Stan was a “one-man operation.”
I didn’t read the original legal brief, Gene. Did Toberoff say that Atlas was a one-man operation throughout the 1950’s or at the time of Joe Maneely’s death / Jack Kirby’s return?
Post-implosion, Stan was running the show with very little help. There had to be a production staff, obviously. Letterers were obviously used. Were they on staff? I don’t know. A letterer could be freelance. Artie Simek lived in my old neighborhood of Jackson Heights and worked at home. All the artists were freelance.
There is no doubt Jack Kirby was agod among men in comics, but IMO bitterness and perhaps even jealousy got the better of him later in life.The idea Kirby was unaware of the work-for-hire status is absurd on the face of it. Joe Simon sued Marvel over Captain America back in ‘66 and Kirby sided with Marvel in regard to ownership based on that very principle. Further, I don’t buy for a second that Kirby was showing up at Marvel (where Mr. Busiek tells us he was under no contract) with fully formed characters and concepts created wholly independent of editorial assignment. Had that been the case Kirby surely would have gone elsewhere after the first one became a smash without compensation. Beyond that, to claim sole ownership of characters that were concetualized by, or co-created with, another party is classless IMO (at one point Kirby was even claiming to have creafed Superman).