Friday’s announcement of a settlement between Jack Kirby’s heirs and Marvel seems like good news—but is it? And what does it mean?
I’m told Jeff Trexler, whose identification of the “instance and expense” aspect of the lawsuit may have helped get that into the petition to the Supremes, is writing his summary for TCJ.com, so while we all eagerly await that, here’s a little of the known knowns and known unknowns:
First off, Mark Evanier, a Kirby family confidant, a witness at various Kirby-related trials and filier of an amicus curiae brief is certainly in a position to know more of the Kirby position and this is all he had to say on the matter:
It was announced this morning that the family of Jack Kirby has settled with Marvel Comics (i.e., Disney) ending a very long dispute. The Supreme Court was only days from considering whether to take on the case and obviously, the timing of this settlement has much to do with both sides’ concern with what would get decided there.
If you’re coming to this page in search of details and commentary, you’ve come to the wrong place. I will be saying nothing about it other that I am real, real happy. And I’m sure Jack and his wife Roz, if they’re watching this from wherever they are, are real, real,real happy.
That’s either great fronting or a pretty solid indication that the Kirbys got what they were looking for. Since Evanier was intimately involved in the case, it’s probably legally all he can say. But if Mark thinks Jack is smiling, I’m smiling.
You can read all the petitions and briefs here. And you can bet a lot of people will be poring over these for a lot of reasons.
Charles Hatfield has a good round up of the ins and outs of the case itself, the many friend of the court briefs, and how the case grew in importance as more Hollywood vested interest signed on.
However, news of the cert petition reignited publicity over the case, and in May SCOTUS discussed the case in conference, after which the Court requested a response from Marvel. Then, in June, things started to happen: several important amici curiae briefs supporting the Kirbys’ petition brought high-profile attention to the case. One of these was filed on behalf of Kirby biographer Mark Evanier, Jack Kirby Collector publisher and editor John Morrow, and the PEN Center USA (a nonprofit representing diverse writers).
In addition, the California Society of Entertainment Lawyers filed a brief. Another brief that became very important for the press coverage of the case was submitted by Bruce Lehman, former Assistant Secretary of Commerce and Director of the US Patent and Trademark Office, and an authority on intellectual property law. Lehman filed in collaboration with former US register of copyrights Ralph Oman, the Artists Rights Society, and the International Intellectual Property Institute; they were joined by the American Society of Illustrators, the National Cartoonists Society, the Association of American Editorial Cartoonists, and other organizations representing arts professionals—as well as scores of cartoonists and illustrators who also signed on.
Kurt Busiek has been debunking some common myths about the case in the Beat’s own comments, but perhaps because Beat commenters are just smarter or less pig-headed than the average commenter, he saved his masterpiece in the genre for this CBR thread where he debunks from all times that the Kirby heirs were just greedy and opportunistic. (Link via Tom Spurgeon) He also speculates about the outcome, just like I’m gonna do in a few paragraphs:
Based on that, it sure doesn’t look like Marvel’s throwing the Kirbys a few bucks to go away. If that’s what they wanted to do, they could have done that any time within the last few years. Whoever blinked, it was the side that had the most to lose if the case went to the Supreme Court and risked a ruling they didn’t like.
That wasn’t the Kirbys — they were already getting nothing, so the Supreme Court deciding against them wouldn’t hurt them any.
But Disney/Marvel has billions on the line. They don’t want to risk losing that. Not even with a pro-business Supreme Court likely to rule for them. Because they’re not sure the Court would rule for them. Not with a bunch of people on the other side who make IP contracts their life — including one of the guys who helped write the 1978 Copyright Law. If that guy is saying, “No, no, it doesn’t work that way,” there’s too much of a chance that the Court will listen.
So my prediction is: All the public changes you see coming out of this are going to be favorable to the Kirbys. Probably the first thing you see will be creator credits. And the family’s going to suddenly be financially secure, like their father/grandfather wanted them to be.
What the “greedy heirs” morons don’t get is that this was a case with very important principles set off by the Copyright Law of 1976 regarding what is work for hire. As Kevin Melrose reports of a Law.com article, many issues remains undecided by the settlement, and it’s entirely possible that these will crop up again and the Supreme Court may yet hear such a case:
The Kirby heirs insisted the artist was an independent contractor who worked from home, provided his own supplies and received no benefits. However, he Second Circuit, using its frequently criticized “instance and expense” test, found that because Marvel assigned and approved projects and paid a page rate, Kirby’s contributions were indeed “for hire.”
The Kirbys took aim at the Second Circuit’s definition of work for hire in their petition to the U.S. Supreme Court, which drew support from the likes of Hollywood guilds and a former director of the U.S. Patent and Trademark Office, demonstrating the potentially far-reaching ramifications of the dispute. However, the 11th-hour settlement announcement arrived just ahead of a Supreme Court conference on Monday to determine whether to review the case — meaning the Second Circuit’s finding stands.
So the gray area surrounding work for hire before 1978 remains, although experts say given that 56-year window — or 35 years for copyrights transferred after 1979 — it’s only a matter time before another case, more likely to involve a musician/songwriter than a comics artist, makes its way to the Supreme Court, requiring the justices to weigh in.
As Kirby family attorney Marc Toberoff told Law.com, “At some point there will be another case like this.”
While it seems unlikely from the outside that SCOTUS would ever have sided with the Kirby heirs, Marvel didn’t know, and a happy smiling settlement was vastly to everyone’s benefit. And more to the point, there’s no such thing as secret in entertainment any more. As Joshua Riviera writes for EW:
One of the great things about modern pop culture isn’t just the wealth of content available, but the interest it has spurred in the creators behind it. Showrunners, once an invisible position in the broadcast era, are now at the forefront of fans’ minds when obsessing over TV. Similarly, the public perception of filmmakers has slowly evolved from the days of the monolithic studio system to accommodate directors and screenwriters and cinematographers and composers and VFX teams and crew. Comics have come a long way from the 60s, which saw Jack Kirby slowly become frustrated with the business that grew and endures to this day thanks in large part to his labors—now many comics are sold based on the strength of the people making them. But the way comics creators are credited in other media based on their work is often lacking.
Yet, things have changed a lot from the days when Marv Wolfman was barred credits of Blade, setting off a lawsuit he eventually lost and the current spate of copyright battles. Nowadays, one imagines, Marv would be saluted at the Hall H panel and trotted around to talk shows. While it’s pretty clear that you need to lawyer up to get your share of whatever pie — mini or maxi — may exist, Marvel/Disney has become more sensitive to the bad publicity of the starving creator railing against the corporation as he rolls around in his ratty sleeping bag from his stately cardboard box on the street.
And now some speculation from me. Given the fair-enough-to-shut-them-up treatment of Jim Starlin and the family of Bill Mantlo over Guardians of the Galaxy, Disney and Marvel seem to be on a better path now. You can attribute that to the bad optics of the cardboard box creator, but I’m pretty sure most of the top brass at Marvel proper, including Dan Buckley, Joe Quesada and Axel Alonso, would wish to see creators fairly treated if it were within their powers. (The same was undoubtedly true of Paul Levitz and Jenette Kahn at DC.)
Given the huge, vocal and unending respect for the work of Jack Kirby by just about every creative type involved with all these “comic book movies,” I share the Busiek viewpoint that we’ll see more public inclusion of Kirby among the “Marvel founders.” Kirby always got acknowledgement in the credits of Marvel movies, but we could see more “created by” credits. Kirby could be inducted into the “Disney Legends” hall of fame type deal. Disney doesn’t do a ton to promote its actual creative people, but I’d expect to see Kirby enshrined as much as possible.
And now, here is my Torsten-like fantasy to end this. Maybe someday at Disneyland, as the Marvel character rides and characters and churros swirl, there could be a statue of Stan and Jack as they create the Marvel Universe as we first knew it. I’m not sure Jack would have really liked that, but the victors write history, and I’m pretty sure that Jack Kirby is a victor now.