A sad day for those who hoped, perhaps against hope, that Jack “The King’ Kirby’s heirs would get some of the money their father’s creations have made over the years. Characters including Captain America (created in the ’40s with Joe Simon), The Hulk, Iron Man, and Thor — you know, if they called next year’s potential biggest-movie-of-all-time THE AVENGERS “JACK KIRBY’S AVENGERS” they would not be far from the mark.
Deadline has analysis, seeing it as a big setback for lawyer Marc Toberoff, who has won many unlikely IP cases against giant studios in the past:
He’s had so many victories they’re hard to count, and Toberoff has won or settled lawsuits on Lassie, Get Smart, The Dukes of Hazzard, The Wild Wild West, and Smallville. In the comic book arena on behalf of Superman creator Jerry Seigel against DC Comics against Warner Bros, the U.S. District Court Judge ruled that “after 70 years, Jerome Siegel’s heirs regain what he granted so long ago — the copyright in the Superman material that was published in Action Comics, Vol. 1. What remains is an apportionment of profits, guided in some measure by the rulings contained in this Order, and a trial on whether to include the profits generated by DC Comics’ corporate sibling’s exploitation of the Superman.”
However, this time out the court offered a summary judgement for Marvel/Disney saying that Kirby had created the characters in question under work-for-hire situations, and thus was not entitled to any ownership of them.
Frankly, we’d heard some accounts of the case that suggested that one of the reasons Marvel might be vulnerable is that they had no records of Kirby ever actually signing any work for hire documents. However, while upholding Kirby’s role as the creator, the court ruled that this was a WFH situation, thanks to agreements Kirby signed in 1972 and 1975.
Here’s the actual judgment (warning, 50 heartbreaking pages long). Jeff Trexler has posted a bunch more of the documents, including depositions from Roy Thomas,
John Romita, Larry Lieber (Stan’s brother), Neal Kirby and Stan Lee. Kirby’s letter of employment and another contract are also uploaded.
In case any of the links are hard to load, check out Trexler’s Google+ page for other links.
Trexler also supplied his initial thoughts on the ruling:
My immediate reaction when I saw the news echoed what I said–and I think I may have written–back during the attempt to get this case heard in California. Namely, this is exactly why Marvel wanted the case in New York. The Southern District has a reputation for being a strong IP court, with the law relatively friendly to corporate IP owners.
Sometimes cases do go the other way–the Joe Simon Captain America case is perhaps the most famous SDNY example. Toberoff will likely rely on that case when challenging the Kirby court’s treatment of the 1972 & 1975 Kirby agreements. It will be probably be harder to find clear error in the Kirby court’s factual analysis vis the work-for-hire creation of the disputed characters–the Simon appeal came down to an interpretation of a key portion of the termination right statute, while the Kirby case turns largely on factual findings re the characters’ creation, in comparison with relatively more established law re work for hire. Appeals courts tend to be more deferential to lower courts’ factual determinations.
The case is a powerful reminder of the difference between how courts & the comics community see creators’ rights. The opinion begins with that caveat and it’s an underlying theme throughout, up through the discussion of the weakness of the DeCarlo case.
We’ll have to go over these materials before rendering any other comment, but there is one huge takeaway from this: Don’t ever create characters for work for hire, no matter how much “back end” you’re promised. In this day and age there is NO excuse for giving up your creations. We may never see another Jack Kirby among us, but let his lessons stand, both the triumphs and the sadness.
PS: This ruling does not affect Superman, as far as I can tell — Superman was NOT CREATED UNDER WORK FOR HIRE — the record is pretty clear on that.