There is a massive difference between Kirby’s situation and that of Jerry Siegel and Joe Shuster, and that is that Toberoff was able to prove, beyond any doubt, that the duo had the character of Superman already created when DC first published it, and had created and shopped the character around for nearly four years before publication. The Kirby’s haven’t been able to prove that Jack Kirby came to Marvel with the characters in question, all that they’ve displayed is that Kirby could have based the Fantastic Four on the Challengers Of The Unknown, a strip that he did at DC, that he could have based Spider-Man on a Joe Simon character, that he could have based Thor on an earlier strip, also done at DC (interestingly enough Steve Ditko also did a rendition of Thor, which was more in line with Marvel, at Charlton in the late ‘50s, but that wasn’t mentioned in court for obvious reasons) and that Kirby could have based the creations on any number of previous concepts. However, could have and based on previous concepts aren’t enough, you have to have the characters pretty much fully formed before you walk in the door, as Jerry and Joe did, and have the evidence to back it all up, as Jerry and Joe did, but, as it appears on the surface, Jack didn’t.
Despite what has been reported on other generally pro-Kirby/anti-Lee blogs I’m not for Marvel in this case, nor am I for Kirby. I’m sitting on the fence with all of this as I believe that a compromise would be the best, and most perfect, solution in this case. That would mean that Marvel and the Kirby’s sit down and work out what would make each other happy. In the case of the Kirby’s money and due credit would suffice, and in the case of Marvel the withdrawal of any copyright claims, present and future would probably make them very happy indeed. Somehow I don’t see that happening in any great hurry, all this case will do is drag itself out over appeal after appeal and cost both the Kirby’s and Marvel a lot of money. And that’s not a good situation at all.
The other strike against the Kirby’s is Toberoff himself. I’ve never met the guy, but from what I’ve read via the court documents, he comes across as very belligerent and argumentive indeed. At the end of the Superman trial DC Comics actually filed suit against Toberoff citing wrongful conduct and that the entire case was fueled by a desire of Toberoff ‘to secure and exploit DC Comics’ copyright interest in Superman.’ This is all damning stuff – and I’ll post that document shortly – and after reading some of what the Marvel lawyers have had to say about Toberoff’s conduct in their recent statements, I can’t help but wonder what will happen here, and how much of the outcome will have to do with Toberoff himself.
Time will tell.
CENTRAL DISTRICT OF CALIFORNIA
JOANNE SIEGEL and LAURA SIEGEL )
WARNER BROS. ENTERTAINMENT INC.; TIME WARNER INC.; and DC COMICS,
CASE NO. CV-04-8400-SGL (RZx)
[Consolidated for pre-trial and discovery purposes with CV-04-8776-SGL (RZx)]
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL.SUMMARY JUDGMENT