Marvel Worldwide, Inc. et al v. Kirby et al - Jack Kirby's Creations

More information from the Marvel vs Jack Kirby's estate court case.  Out of interest, these are the characters that the Kirby’s are going after, under the banner of the Notice of Termination(s) that have been filed, which ‘applies to each and every work (in any medium whatsoever, whenever created) that was registered with the United States Copyright Office and/or published within the Termination time window, as defined by 17 U.S.C. § 304(c)’.   These Notices of Termination cover a lot of characters, and it’s the characters that are singled out that make for some interesting reading, and also discussion.  For example, here are the characters that are being claimed by virtue of appearing in the titles mentioned.

The Fantastic Four:  Mr. Fantastic (a.k.a. Reed Richards), the Invisible Girl (a.k.a. Susan "Sue" Storm), the Human Torch (a.k.a. Johnny Storm), the Thing (a.k.a. Ben Grimm), Namor the Sub-Mariner, the Mole Man, the Skrulls, The Baxter Building, The Pogo Plane, Central City, The Miracle Man, Doctor Doom, Galactus, the Silver Surfer, Uatu (a.k.a. The Watcher), Willie Lumpkin, the Fantasticar, the Kree, the lnhumans, Adam Warlock, the Negative Zone, the Black Panther, Wakanda, Alicia Masters, Franklin Storm, H.E.R.B.I.E., Agatha Harkins, Franklin Richards, the Frightful Four, and Impossible Man.

Out of those characters there’ll be some healthy debate in court over the following:
  • Mr Fantastic - the concept of a stretching man can be traced back to Jack Cole’s Plastic Man.
  • The Human Torch – the concept of a flaming man named the Human Torch can be traced back to Carl Burgos and his original creation, the Human Torch, which appeared in Timely Comics in the 1930s through to the ‘50s.  Burgos’ original Human Torch first appeared in Marvel Comics #1, dated October 1939.  The Johnny Storm Torch was clearly designed to be an update of the original.
  • Namor The Sub-Mariner – this character was created in the 1930s by Bill Everett and first appeared in the first issue of Motion Picture Funnies Weekly which appeared around April 1939.  The character that appeared in the Fantastic Four is the very same Everett creation.  For the Kirby estate to claim that Jack Kirby created, co-created, or should have ownership of the character is a very, very long shot indeed.

The other characters should be fine as they were either created, or co-created, by Kirby.  It would appear that whoever decided what characters that the Kirby’s would be going after didn’t do their homework all that carefully, and have merely listed all the characters that appeared in the book for the time period in question, which has been defined as running from September 1958 and September 1963.

That time frame is clearly defined as publishing date, not the working date.

The Avengers: Ant-Man (a.k.a. Giant-Man), Wasp, Thor, Iron Man, The Incredible Hulk (a.k.a. The Hulk), Loki, Butler Jarvis, The Avengers mansion, The Space Phantom, Rick Jones, Captain America, Baron Zemo, the Masters of Evil, the Lava Men, Kang the Conqueror, Wonder Man, Immortus (a.k.a. Nathaniel Richards), Count Nefaria, the Lethal Legion, Hawkeye, Scarlet Witch and Quicksilver.

Captain America was co-created by Joe Simon and Jack Kirby.  I’m sure that Joe Simon would have something to say if the courts awarded the character to the Kirby’s.  See Iron Man for more details on that character.

Iron Man: Iron Man, Anthony Edward "Tony" Stark, Ho Yinsen, the Crimson Dynamo, Harold "Happy" Hogan, Virginia "Pepper" Potts, Dr. Strange, Stark Industries, the Black Widow, Hawkeye, Titanium Man, the Mandarin, Edwin Jarvis, Whiplash, the Controller, and Ultimo.

Larry Lieber has stated that he came up with the actual names of Henry Pym, Don Blake and Tony Stark.  There is also an argument about Kirby’s involvement/authorship of Iron man.  Don Heck drew the first story, from a script by Lieber and a plot by Stan Lee.  It’s generally accepted that Kirby did design the costume, but that doesn’t necessarily mean that he created the character, so this will be interesting.  Don Heck stated that Kirby had no other involvement with the art, and that he, Heck, drew the issue alone.  Kirby stated in a later interview that he ‘laid the story out’, but Heck repudiated that claim.  Thus Iron Man becomes one of those grey areas for the Kirbys.

Ant-Man: the Ant-Man, Giant Man, Wasp, Hank Pym, Madame X, Comrade X, Pan, The Protector, Egghead, Scarlet Beetle, Hijacker, Voice, Cyclops, The Porcupine, Living Eraser, the Whirlwind, Janet van Dyne, Ultron, Yellowjacket, and Goliath.

The Hulk: the Incredible Hulk (a.k.a. The Hulk), Dr. Bruce Banner, Rick Jones, Betty Ross, The Toad Man, The Ringmaster, The Circus of Crime, Tyrannus, General Thaddeus E. "Thunderbolt" Ross, The Gargoyle (a.k.a. Yuri Topolov), and Amphibion.

Sgt Fury: Sgt. Nick Fury, Jonathan "Junior" Juniper, "Dum-Dum" Dugan, Dino Manelli, Isadore "Izzy" Cohen, Captain Sam "Happy" Sawyer, Gabriel "Gabe" Jones, Robert "Rebel" Ralston, Baron Wolfgang von Strucker, Baron Zemo, Percival "Pinky" Pinkerton, Eric Koenig, S.H.I.E.L.D. (Supreme Headquarters International Espionage Law-enforcement Division), HYDRA, the Helicarrier, and A.I.M. (a.k.a. Advanced Idea Mechanics).

As with the bulk of the Fantastic Four, it’d be hard to argue against Kirby’s involvement with these characters.

The Amazing Spider-Man: Spiderman (a.k.a. Spider-Man) Peter Parker, Aunt May, Uncle Ben, J. Jonah Jameson, John Jameson, the Chameleon, Eugene "Flash" Thompson, Elizabeth Allan (a.k.a. Liz Allan), Crusher Hogan, The Daily Bugle, the Vulture, the Tinkerer, and the Lizard.

Now here’s the big one.  It’s generally accepted that Stan Lee and Steve Ditko came up with the character that we now know as the Amazing Spider-Man, and that either, or both, Lee and Ditko came up with the supporting cast and villains without any outside assistance.  The Kirby’s are claiming that jack Kirby either authored, or co-authored the first seven issues of the Amazing Spider-Man, presumably with Lee.  This would take a very, very persuasive argument indeed to prove that Kirby did work on those seven issues, and that Lee and Ditko didn’t author those first seven issues on their own.  Ironically Kirby’s work does appear in a back-up story in issue #8 (which falls just short of the Time Period that the Kirby’s are operating with), where the Human Torch met Spider-man, a story co-plotted and pencilled by Kirby, and his co-creations or creations also appear in the form of the Fantastic Four and Dr Doom in issue #5 (drawn by Steve Ditko with no involvement from Kirby).  This might be a legal red-herring, to ask for more than they can lay claim to, the Kirby’s might offer to drop Spider-Man in favour of an acceptance of another set of characters.

The early Lee/Ditko Spider-Man books have only one thing in common with Lee/Kirby books of the same time period, and that is Stan Lee’s actual dialogue.  Spider-Man was portrayed as a teenage loner, a virtual loser in his personal life as Peter Parker, which goes against the heroic, if flawed, characters that Kirby would co-create.  The first seven issues, indeed the entire Lee/Ditko run of Spider-Man do not have any hint of Kirby’s style, either in art or in story.

The X-Men: The Angel, the Beast, Cyclops, Iceman, Jean Grey (a.k.a. Marvel Girl), Professor X (a.k.a. Professor Charles Francis Xavier), X Mansion (a.k.a. Xavier Mansion), Magneto, the "XGene", the "X-tra Powers" the Vanisher, the "Mutants", Xavier's School for Gifted Youngsters, The Brotherhood of Evil Mutants (a.k.a. the Brotherhood of Mutants), Quicksilver, the Scarlet Witch, the Toad, Mastermind, the Blob, Juggernaut (a.k.a. Cain Marko), Cerebro, the Danger Room, Asteroid M. the Savage Land, the Sentinels, and Bolivar Trask.

The Angel was a character that existed in the Golden Age of Timely, albeit in a different form. Created by Paul Gustavon, it first appeared in Marvel Comics #1, dated October 1939.

The X-Men have thrown another odd claim for the Kirby’s, as they’re also claiming the recent X-Men Origins: Wolverine movie as part of the case as one of two ‘Kirby Films’ that the Kirby’s want Jack Kirby’s name attached to as a creator, the other movie being Edward Norton’s The Hulk.  Wolverine was created by Len Wein and John Romita in 1974, when Kirby was working at DC.  Wolverine was introduced in the pages of The Hulk, as drawn by Herb Trimpe and written by Wein and as such has nothing to do with Jack Kirby.  Other characters in the Wolverine film were clearly based upon recent creations and concepts, and although Kirby co-creations did appear in the movie, I doubt that the Kirby’s would be able to raise a sufficient enough case for Wolverine.

Thor: Mighty Thor, Donald Blake (a.k.a Dr. Donald Blake), Jane Foster, the hammer Mjolenir,, Belt of Strength, Asgard, Odin, Heimdall, The Stone Men, The Executioner, The Tomorrow Man, Loki, Balder, Gaea, Zarrko, The Lava Men, The Cobra, Ymir, The Radioactive Man, ldunn, Sif, Tyr, Hercules, the Warriors Three, Fandral, Hogun, Volstagg, Zeus, Ares, the Absorbing Man (a.k.a. Carl "Crusher" Creel), the Destroyer, Ego the Living Planet, Fafnir, the Fenris Wolf, the Grey Gargoyle (a.k.a. Paul Pierre Duval), Hela, Karnilla, Mangog, Pluto, Surtur, Ulik, the Wrecker, and Amora the Enchantress.

It’d be hard for anyone to argue that those characters weren’t at least co-created by Kirby, if not fully created, although Larry Lieber has stated that he did come up with concepts used in Thor.

The recent Elements Of Claim And Defense by the Marvel lawyers make the following note, “With respect to certain other Works, such as the characters Spider-Man, Iron Man, Human Torch and Namor the Sub-Mariner, Kirby made no material contribution to the first published version of the featured character. With respect to Spider-Man and Iron Man, Kirby was not the assigned artist for the first comic book issue to feature these characters, and drew the covers for the issues after the artwork for the book was completed by another artist. Both Human Torch and Namor the Sub-Mariner were originally introduced in early Marvel comic books in the 1930s, and were reintroduced into later issues of The Fantastic Four at Lee’s behest.”  That statement will be hard to argue against, especially in relation to Spider-man, Namor and the Human Torch, so Marc Toberoff will have his work cut out for him to prove otherwise.  However it can, and probably will, be argued that Kirby did make contributions to Iron Man, although he did not draw the first appearance of the character.

The Kirby’s Pre-Trial Statement relies heavily on the ‘work for hire’ argument, that, as a freelancer with no set or defined contract, Kirby wasn’t working for hire, rather his concepts, art and stories were purchased by Marvel and that he was free to take them anywhere he wanted to.  However there are caveats to this.  Toberoff states that, “Kirby was free to reject any of Marvel’s requests or to submit material that Marvel did not request.”  Indeed Kirby was free to reject any of Marvel’s requests (and assignments), but that would have merely meant that another artist would have been assigned to the story, and yes, Kirby was free to submit any material, that doesn’t mean Marvel was obliged to publish it.  The same counterclaim also states that, “Kirby was also free to, and did, pitch and sell work to other publishers during the Time Period while he was selling work to Marvel, as did other freelance artists that worked with Marvel.”  That also is true, but the facts remain that Kirby didn’t make any pitches to any other company during the same time period, and when approached he was unresponsive.  This might due to a number of reasons, amongst them that Kirby was very well paid, wouldn’t have wanted to rock the boat and wouldn’t have enjoyed anywhere near the same freedom at other companies as he did with Marvel.  Also, as mentioned before, Kirby was on the outer at DC, which was the other main player of the time who could have matched his Marvel page rate.  Indeed when Kirby finally went to DC where he was promised complete freedom to write and draw, he suffered from his work being edited after he’d submitted it, and also his art being altered as his version of Superman didn’t jibe with the DC house style.

Interestingly Toberoff states that, “Between 1958-1963, Kirby was free to, and in fact did, pitch and sell work to other publishers while he was selling work to Marvel, as did other freelance artists that worked with Marvel.”  It is true that Kirby was finishing up with DC in 1958 and into 1959 with Green Arrow and the Challengers Of The Unknown, at Gilbertson with the Classics Illustrated line and with Joe Simon, at Archie, notably on the Fly and The Double Life Of Captain Strong, these were all pretty much finished with by the end of 1959.  Once he began to work with Marvel in earnest, he didn’t appear to pitch anything to any other company post Fantastic Four #1.

Another interesting, and vital, part of the case revolves around the missing Kirby artwork.  Even with the character and copyright claims, this has the potential to be one of the most explosive aspects of the entire case, and, for the most part, it has been kept fairly low key.  The Kirby’s original Complaint states as follows:
Marvel’s Predecessors took possession of Kirby’s original artwork (the “Kirby Artwork”) for purposes of publishing the Kirby Works. The Kirby Artwork is of great historical and artistic value and significance.
Kirby was the lawful owner of the Kirby Artwork. Kirby died on February 6, 1994, whereupon ownership of the Kirby Artwork passed to his spouse, Rosalind Kirby. Upon the death of Rosalind Kirby, ownership of the Kirby Artwork passed to The Rosalind Kirby Trust.
In or around 1982, Jack Kirby demanded that Marvel return all of the Kirby Artwork in its possession or control.
Plaintiff Trustee is informed and believes, and based thereon alleges that in or around 1984, the New York State Board of Equalization made inquiries as to sales tax due in connection with Marvel’s purchase of comic book artwork.
Thereafter, commencing on or about October 16, 1986, Marvel purported to return to Kirby all of the Kirby Artwork in its possession or control. Marvel represented to Kirby that it had no other Kirby Artwork in its possession or control than that returned to Kirby, and Kirby and his successors, including Plaintiff Trustee, relied on Marvel’s representations.
Plaintiff Trustee is informed and believes and based thereon alleges that Marvel retains in its possession certain Kirby Artwork that it did not return to Kirby, thereby exerting dominion over such Kirby Artwork and converting it to their own use. Plaintiff Trustee is informed and believes and based thereon alleges that Marvel concealed and continues to conceal that Marvel retained certain Kirby Artwork that it did not return to Kirby, and due to such ongoing concealment Plaintiff Trustee did not demand that Marvel return such Kirby Artwork.
The Kirby Trust is unaware of the ultimate disposition of the Kirby Artwork converted by Marvel because such knowledge is within the exclusive possession of Marvel.
As a proximate result of Marvel’s conversion, the Kirby Trust has been deprived of its rightful possession of the Kirby Artwork, including the opportunity to use, enjoy, sell, license or otherwise dispose of such artwork, all to its damage in an amount to be determined at trial.
Defendants’ acts alleged hereinabove were wilful (sic), wanton, malicious, and oppressive, and justify the awarding of exemplary and punitive damages.

Considering the price of Kirby’s artwork in this day and age, with some prime pieces fetching high five figures, the possibility of having to account for all of the missing Kirby artwork, and then compensate the Estate could see Marvel out of pocket by several million dollars.  And no, that amount isn’t hyperbole.  I don’t think it’d be entirely out of the question to suggest that a cover or even a splash page, to something such as landmark as Fantastic Four #1 could fetch over $100,000 and upwards.  Indeed the cover art for Fantastic Four #1 alone could easily fetch the high six figures alone.  There is a precedent for art prices, that being venues such as Heritage Auctions, which deals in high end art, eBay, ComicArtFans and the many dealers who have bought and sold Kirby art over the years.  What this could also see is the identity of the many art thieves finally being exposed, in a court of law.  For years there have been rumblings of the identities of some of the thieves, and some names are well known in art collecting circles, however those names have not been made public.  This could lead the way for that to happen.

Compensation, although it’d be very welcome, isn’t the sole reason behind the art clause.  In Toberoff’s Counter- Statement of Material Facts Pursuant to Local Rule 56.1 in Opposition to Plaintiffs’ Motion For Summary Judgment, he states, “At or shortly after this time, many of the older freelancers, including Kirby, sought their original artwork so as to supplement their meagre incomes. Marvel used this as leverage to force them to sign as a condition to the return of their artwork “artwork releases” that purported to retroactively re-characterize all their material, published by Marvel, as “work for hire,” decades after its creation.”  Thus the clause detailing return, or non-return, of Kirby’s art take on its true meaning.  If Marvel did indeed withhold art from Kirby, it can be argued that it was using it as leverage for Kirby to sign and acknowledge the ‘work for hire’ clause, thus meaning it was done under duress.

What this case is building towards is a headache for any judge assigned to it, as claim and counterclaim will be filed on both sides, as indeed it already has.  Such a high profile, and important, case should be document heavy, and this is no exception.  Hopefully a solution will be hammered out that benefits both the Kirby’s and Marvel, but that might be a while away.  The Kirby’s have indicated that they’ll be calling the following to testify in court, Dick Ayers, Gene Colan, Larry Lieber, Joe Sinnott, Neal Adams, Jim Steranko, John Romita, Neal and Susan Kirby, Mark Evanier and John Morrow, but not Roy Thomas, Stan Lee or John Romita – perhaps they’ll be on Marvel’s side.  As Larry Lieber has already testified that he wrote full scripts for Kirby, it seems unusual that the Kirbys would call upon him as a witness, but perhaps they know something that they’ve not already disclosed.  It’d be brilliant if someone could bring Steve Ditko into this, which would be the true cat amongst the pigeons.  I just wish I could be present to see it all unfold.


Booksteve said…
A number of other quibbles here but my main issue that you don't mention is Adam Warlock.

No argument that Kirby was there for the creation of "Him" but by the time Adam Warlock came along in his own series, he was such a different concept and character...and became much more-so in time.

In continuity, Warlock was Him... but ultimately all they had in common was skin color--not costume, concepts, speech patterns, powers, settings, etc.

Complicating this one is the extensive use of the High Evolutionary in the early Thomas/Kane Warlock series--definitely a Kirby character.

Was Warlock really the same character? I'm not saying it wasn't...just that I see that one as particularly complicated.
Daniel Best said…
A lot of the characters that are being claimed are very complicated, as most have evolved far beyond what Kirby and Lee envisioned. For example - would the Kirby's want to claim Dark Phoenix, as that character was an off-shoot of Jean Grey, and by proxy the Phoenix Force?

And the various 'Things', such as Sharon'll get a lot messier before it gets clearer.
bob said…
I thought the art return thing was a side issue, but now I wonder if the emphasis on the art returns, and the allegations that Marvel "continues to conceal" Kirby artwork (which proved to be true according to another filing, where it was stated that Marvel "found" 60 pages of Kirby artwork last year) is to invalidate some part of the art return contract. If they can prove Marvel failed to meet their obligations under the contract (returning Kirby's artwork) that might allow them to throw the whole thing out.

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