The Jack Kirby vs Marvel/Disney Debate
New York, NY, January 8, 2010 – Marvel Entertainment, LLC today sued the four children of legendary comic book creator, artist and writer Jack Kirby ( 1917-1994) for exercising their rights under the Copyright Act to recapture their father's copyrights. The prolific Jack Kirby co-authored Marvel's most famous and valuable properties including X-Men, The Fantastic Four, The Incredible Hulk, The Mighty Thor, Iron Man, Magneto, Spider-Man, Dr. Doom, The Avengers, and Nick Fury.
Kirby, known among comic book fans as Jack "The King" Kirby, is today one of the most celebrated comic book talents of all time, widely lauded for his ground-breaking work in The New York Times and by creative talent such as Pulitzer prize winner, Michael Chabon. Yet Jack Kirby and his family have never received even the slightest share of the great fortune his co-creations have generated for Marvel. Sadly, Jack died without proper compensation, credit or recognition for his lasting creative contributions.
On September 16, 2009, the Kirby children availed themselves of their rights to recapture Kirby's copyrights in his work by serving Notices of Termination under the 1976 Copyright Act on Marvel Entertainment, Inc., The Walt Disney Company, and others, relating to the numerous comic book characters and stories authored or co-authored by Jack Kirby.
The fundamental purpose of our copyright laws is to provide economic incentives for authors to create as this enhances both our economy and culture. Congress instituted the termination provisions of the Copyright Act to rectify the obvious imbalance of power between authors and publishers, and to provide authors and their families with the opportunity to financially benefit from the enhanced value of their works over time. Under U.S. copyright law, creators and their heirs are therefore able, after a lengthy waiting period, to statutorily “terminate" old copyright grants, thereby recapturing such copyrights for their eventual benefit.
The Kirby terminations become effective beginning in 2014, after which the Kirby family will be entitled, at long last, to share in the profits generated by Jack Kirby's co-creations.
In suing the Kirby children, Marvel now claims that all of Jack Kirby's creative efforts and work were merely "work-made-for-hire," and that Marvel is the real "author" of such works under the 1909 Copyright Act. It is a standard claim predictably made by comic book companies to deprive artists, writers, and other talent of all rights in their work. Marvel made the same "work for hire" claims in the case of Marvel Characters v. Simon, 310 F.3d 280 (2d Cir. 2002) regarding Captain America, and lost in the Second Circuit Court of Appeals.
The truth is that Jack Kirby was his own man. Like so many artists in the fledgling comic book industry of the late 1950's/early 1960's, Kirby worked with Marvel out of his own house as a free-lancer with no employment contract, no financial or other security, nor any other indicia of employment.
Kirby's wonderful creations, which leapt from the page, were not Marvel's “assignments," but were instead authored by Kirby under his own steam and then published by Marvel. It was not until 1972 that Kirby by contract granted Marvel the copyrights to his works. It is to this grant that the Kirby family's statutory notices of termination apply. The Kirby children intend to vigorously defend against Marvel's claims in the hope of finally vindicating their father's work.
The Kirby family is represented by intellectual property attorney Marc Toberoff of the Los Angeles law firm, Toberoff & Associates, P.C., which succeeded to recently recapture for the family of Jerry Siegel, his original copyrights in a character he co-created and named – Superman.
Toberoff & Associates, P.C.
Ok, now that you’ve all read that allow me to express my own point of view and discuss where I fear the Kirby lawsuit will fall down into a heap, and feel free to disagree with me, after all I’m not a lawyer, and frankly seeing how a lawyer posing as a publisher in America not only stole intellectual property from me, but has also slandered and threatened me with physical violence, well, I don’t really think I’d want to be one.
First off though, and I want to make this perfectly clear, I hope that the Kirby estate can win something out of this. Recognition, perhaps, money – sure, but I doubt highly that they’ll get the copyrights. And why? Well the devil is in the wording of that press release.
From paragraph one: “The prolific Jack Kirby co-authored Marvel's most famous and valuable properties including X-Men, The Fantastic Four, The Incredible Hulk, The Mighty Thor, Iron Man, Magneto, Spider-Man, Dr. Doom, The Avengers, and Nick Fury.” Well, actually, no he didn’t. Kirby, as far as I’m aware, wrote virtually no Spider-Man stories at all, other than collaborating with Stan Lee on one eight page back-up. Steve Ditko would have a stronger claim for the copyright of Spider-Man than the Kirby estate ever would, and, with all due respect to those who won’t agree with this next statement, I do not believe that Jack Kirby created the Amazing Spider-Man. I’ve read compelling evidence for both sides of that debate and nothing has swayed my mind set here. However on that first Spider-Man story Kirby’s name is nowhere to be found and his contribution was to pencil the cover for the first appearance, hardly a claim for creator credit over Stan Lee and Steve Ditko. The other word to keep in mind in this paragraph is ‘co-authored’. I’ll come back to that shortly.
From paragraph two: “Yet Jack Kirby and his family have never received even the slightest share of the great fortune his co-creations have generated for Marvel. Sadly, Jack died without proper compensation, credit or recognition for his lasting creative contributions.” I can agree with all of that. In a perfect world Kirby should have been handsomely rewarded for his efforts, more so than the high page rate that he got. The thought that the likes of Chris Claremont, Jim Lee and John Byrne, to name but three, can become millionaires from Kirby’s creations and, in the case of Jim Lee, make more money of a single issue of Kirby’s creations that Kirby probably made in his entire career with Marvel, annoys the hell out of me. It’s not right. The thought that people who supplied movie studios with the permission to make films from Kirby creations also becoming instant millionaires while Kirby and his estate didn’t also makes me wince with pain. However this wasn’t the norm. I doubt for five seconds that Kirby was blissfully unaware that any creation he gave to Marvel wouldn’t be appropriated and all profits funnelled back into the parent company. When Kirby worked for Marvel in the 1960s he’d have known all too well that royalties didn’t exist and he’d have known all too well how a comic book company worked – after all he did branch out with Joe Simon and formed Mainline.
Also Kirby, like virtually everyone else in the comic book industry at the time, would have been acutely aware of the fate of the likes of Joe Siegel, Jerry Shuster and Bill Finger, the men who created Superman and co-created Batman respectively. By the time Kirby was working on the Fantastic Four, X-Men and others, those three men were largely unemployed and broke. By the late ‘60s Siegel was working at Marvel for a nominal page rate churning out Human Torch stories. Kirby would have been aware of that as well. To suggest otherwise is to suggest that Kirby was either naïve or an idiot – and neither of those statements are true. Kirby would have known that, no matter what Martin Goodman might have told him, that he’d not financially benefit from his creations and co-creations once he stopped drawing them. And Kirby would have known an all too painful truth about comic book publishers – they lied. Hell, even now publishers lie and some will say anything to keep the talent on board.
But here is the kicker, from paragraph seven: “Kirby's wonderful creations, which leapt from the page, were not Marvel's “assignments," but were instead authored by Kirby under his own steam and then published by Marvel. It was not until 1972 that Kirby by contract granted Marvel the copyrights to his works.” To me this is where the whole claim falls apart. These two lines strongly indicate that Kirby worked alone, wrote and drew all of the stories he’s identified with, with zero input from anyone else, and then handed them to Marvel to publish. Frankly that’s not the truth.
I don’t doubt for a second that Kirby was involved in the authoring of the bulk of the stories that he produced. I do doubt that he wrote everything alone. There’s more than enough anecdotal evidence to suggest that Stan Lee supplied plots to Kirby. There’s articles of the time that document Kirby and Lee hashing out plots together. There’s the famous synopsis for the first issue of the Fantastic Four, supposedly written by Stan Lee and undated. Lee says it’s genuine, the Kirby camp says it was written later. Kirby stated that Lee would add words/dialogue to his stories as well as edit them. That, there, is collaboration. Larry Lieber has stated that he supplied scripts to Kirby for the stories that they worked together on. If Lieber has kept those scripts and if they correlate with the printed comics, then the claim will take another battering. And then there’s Marvel/Disney’s best weapon: Stan Lee himself. The Kirby estate would have been better served to wait for Lee to pass away before bringing this suit forward, after all Lee will either be deposition and/or take the stand and tell the truth as he remembers it; that he supplied plots to Kirby and worked with him to co-create. Straight away that puts the lie to the claim that the stories were, “…authored by Kirby under his own steam and then published by Marvel.” Indeed the wording of the press release puts the lie to statement, talking, as it does, about co-creations and co-authoring. The best thing the estate can do is ask for everything and then settle for something.
I do hope that the Kirby estate and Marvel/Disney can reach a common ground in which some royalties are handed to the estate plus a co-created credit supplied on the comic books (as they are on the movies). There are precedents in place for this, and not just from Marvel, and I expect that all that’ll need to happen is for all parties to sit down and work something out. However if that can’t happen, then I don’t fancy the Kirby estate’s chances all that much of winning it all. Marvel/Disney aren’t about to hand over all of those characters without a major fight and that’s not a fight that I think anyone wants to see.