A couple weeks back the estate of Jack Kirby reached a settlement with Marvel, the day before the Supremes were set to take the case. This was a surprise, as the Kirbys were 0-2 in the courts, to that point. I hadn’t paid attention but I figured their case was weak, although they had my sympathy. I had read stuff like this from early NY Times articles:
WHEN the Walt Disney Company agreed in August to pay $4 billion to acquire Marvel Entertainment, the comic book publisher and movie studio, it snared a company with a library that includes some of the world’s best-known superheroes, including Spider-Man, the X-Men, the Incredible Hulk and the Fantastic Four.
The heirs of Jack Kirby, the legendary artist who co-created numerous Marvel mainstays, were also intrigued by the deal. Mr. Kirby’s children had long harbored resentments about Marvel, believing they had been denied a share of the lush profits rolling out of the company’s superheroes franchises.
Marvel made out like bandits, treating Kirby badly. But that’s not a legal argument.
What made Marvel blink at the last minute? The terms of the settlement can’t be revealed, so it’s hard to say.
I kind of hoped Marvel/Disney had actually decided to do the right thing, if only as a result of some bad press they’ve gotten in recent years about their treatment of Kirby. Wouldn’t that have been something? A corporate person with a conscience?
Turns out the Kirby case was much stronger than I thought. A pair of postings (one, two) by Kurt “Astro City” Busiek at CBR, explains this quite clearly.
Assuming Busiek has got it straight, and I haven’t seen anyone argue otherwise, all the stuff I read that made it sound like the Kirbys were basically shooting the moon was totally off. (If you’ve got a one-in-a-million shot at billions, why not take it? Especially if Marvel/Disney might pay you to shoo.)
The case comes down a clause in the copyright extension Congress passed in the 70’s. Basically, if Kirby was working as an independent contractor in the late 50’s and early 60’s, his estate should be able to – and has applied to – revert copyright. On the other hand, if he was a proper employee, then it was work-for-hire, and that won’t work. Thing is: it kind of looks like Kirby was an independent contractor. His side can provide a lot of evidence: he worked from home for piecework pay, bought his own supplies, didn’t get health insurance, didn’t have taxes withheld by Marvel. He didn’t get paid for work Marvel didn’t like, and they didn’t object when he shopped that stuff to DC instead. Marvel had to fall back on arguments like: Stan Lee is pretty sure he remembers Kirby got paid for everything, although there’s no paperwork to back that. That’s kind of weak. From the appeals court decision: “the record suggests that Kirby and Marvel were closely affiliated during the relevant time period. Lee assigned Kirby, whom he considered his best artist, a steady stream of work during that period. … And Kirby seems to have done most of his work with Marvel projects in mind.”
Even if true, that’s not really sufficient to establish that Kirby creations were work-for-hire, under the law. It would seem rather reasonable to grant Marvel copyright over specific existing works – specific issues of the Fantastic Four, say, which Kirby was instructed by Lee to write and draw (the good old Marvel Method). But not reasonable to grant Marvel copyright over the characters themselves. Lee never told Kirby to go think up the Fantastic Four. Rather, Kirby – an independent contractor, not an employee – thought up characters and pitched them.
Amicus briefs were filed on behalf of the Kirbys by various parties who apparently didn’t want the Supreme Court saying the kind of work Kirby did was the kind of work Marvel has to insist it was. Apparently this group includes one of the original drafters of the 1978 copyright extension.
Unless I’m missing something here, what’s shocking is not that Marvel settled but that they didn’t settle earlier, since the Kirbys had a strong case.
Anyway, file this as yet another piece of evidence that copyright extension is all messed up. But this time the good guys won one.
If only there were some similar procedure by which the public could complain that we had a deal – protection of copyright in exchange for limited terms – and copyright extension breaks it. So we ought to get something back! And a pony, while you’re at it.
{ 22 comments }
John Holbo 10.05.14 at 9:54 am
I guess the shortest way to put it is this: no one working today, the way Kirby worked then, would be ‘working for hire’. The Supremes could therefore only side with Marvel by setting a precedent that threatens changes to the rules about ‘work for hire’, thereby potentially upsetting some IP applecarts.
Ebenezer Scrooge 10.05.14 at 11:07 am
I’m happy when the worse guys lose, but I can’t view Kirby’s heirs as the good guys. They deserved the pot of money more than Marvel, but neither of them deserved it. The pot came out of the general public, and nobody can argue that the contemplation of copyright protection in 2014 was ever necessary to create the Marvel characters in the 1950’s. There are other arguments for copyright and heirs, but they make more sense in French.
Brett Bellmore 10.05.14 at 11:36 am
Got to agree with that. The whole idea of extending existing copyrights contradicts the root notion of copyright, because you will not be encouraged to produce something by an incentive which is enacted decades after its production.
Frankly, properly interpreted, I think the constitution’s copyright clause actually prohibits extensions. “limited times”, after all.
John Holbo 10.05.14 at 1:01 pm
“I’m happy when the worse guys lose, but I can’t view Kirby’s heirs as the good guys.”
I give them a bit more good guy credit. Well within his own lifetime, Kirby himself was apparently in favor of this (so Busiek says). It followed from a 1978 law change. It wasn’t just some 2010 ‘now Marvel is worth billions and Disney bought it’ thing. But, because of the specific window for applying for copyright reversion, Kirby’s kids had to do it, not the king himself. He deserved more money and he would have given it to his kids. So, while I agree that in a better world the whole copyright extension wouldn’t happen at all, in the world we live in this is a creator himself asserting his rights. It isn’t just some opportunistic moneygrab by his grandkids or anything.
musical mountaineer 10.05.14 at 1:48 pm
The period of time between now and the heat death of the universe is a limited time. Obviously that’s what the Framers had in mind.
John Holbo 10.05.14 at 2:01 pm
Thinking about it, what would clinch the case – but of course it’s settled now, so there is no case – is proof Kirby pitched some specific idea/character to Marvel, had it turned down, then took it to DC. I think this was actually the case with some of the Fourth World stuff, although I’m not sure. If Marvel let him do that, that would be tantamount to admitting there was a window – hence presumably always a window – during which Kirby himself ‘owned’ the idea. That is, Marvel hadn’t bought yet, so it was still Kirby’s. If that ever happened, then it would be reasonable to construe all such original ideas, by him, as all-rights sales to Marvel rather than work-for-hire.
Bloix 10.05.14 at 2:30 pm
#1 – “The Supremes could therefore only side with Marvel by setting a precedent that threatens changes to the rules about ‘work for hire’, thereby potentially upsetting some IP applecarts.”
Actually, by settling, Marvel and Disney have preserved the appellate court ruling, which remains the state of the law, at least in the Second Circuit (which includes New York).
See
http://blogs.reuters.com/alison-frankel/2014/09/29/marvel-settlement-with-kirby-leaves-freelancers-rights-in-doubt/
John Holbo 10.05.14 at 2:37 pm
“Actually, by settling, Marvel and Disney have preserved the appellate court ruling, which remains the state of the law, at least in the Second Circuit (which includes New York).”
Yes, they’ve just kicked the can down the road. Maybe another similar case will make its way up the chain.
max 10.05.14 at 2:52 pm
Holbo @ 1: I guess the shortest way to put it is this: no one working today, the way Kirby worked then, would be ‘working for hire’.
Having gone over this in the original instance when Kirby was still alive and there were issues around his original artwork (which Marvel was doing a poor job of protecting and storing because they didn’t care), the original contracts were terrible, but intended to be pure work for hire. As you say, when Congress rewrote the law in ’76, they tried to be through in protecting copyright, but this left unresolved issues. Corporations were not happy with this particularly because of the Kirby case (in practice, the father of the Marvel Universe is Kirby, not Lee – Lee’s just the front guy), so with the Berne convention and the DCMA and all that, they made sure to rewrite the law such that work for hire employees have absolutely zero rights.
In practice, that means if you work on comics for a corporation, you have no rights to anything, ever, period. The only way to get any later compensation for artistic invention is to become so successful you can become a corporation yourself and hire the lawyers to navigate the law. If you become big enough, of course, then you get your own work for hire employees that give all their rights to you.
If you don’t own the copyright and the subsidiary rights thereof, it’s work for hire and there’s no recourse. Almost no one, no matter how talented, becomes that successful.
max
[‘Which is one of the reasons we have a few hundred super-successes and everyone else.’]
John Holbo 10.05.14 at 3:11 pm
“Having gone over this in the original instance when Kirby was still alive and there were issues around his original artwork (which Marvel was doing a poor job of protecting and storing because they didn’t care), the original contracts were terrible, but intended to be pure work for hire.”
I don’t doubt for a minute that Goodman (Lee’s uncle, was it?) wanted to make sure he stripped all the rights off those who worked for Marvel, or that corporations today are trying to do the same. I am just pointing out that – because the now vital difference between all-rights-sale and work-for-hire was not legally pertinent back then – Marvel did a terrible job of covering its bases by today’s standards. So if you say it was work-for-hire, you are effectively saying that it’s work-for-hire even if you didn’t do what it took to make sure it was so. So do you have to do it right now? It would be confusing to have implicitly inconsistent standards out there in the precedents.
I feel it is a bit of a missed opportunity, since Kirby had as strong a case as anyone else who is going to come along next. (Maybe that was Marvel’s thinking, too.) But I understand why the Kirbys took the money and ran.
Murc 10.05.14 at 5:36 pm
Or they could simply rule in favor of the giant corporation and declare it limited to the specific circumstances, thus neatly severing the Gordian knot.
(I’m not even kidding. I’m expecting that to happen at some point.)
Martin Bento 10.05.14 at 9:08 pm
I thought the origination of the Fantastic Four was disputed. Lee still claims it as his idea, doesn’t he? There seems to be a consensus that this is false, but I don’t know the basis of that. It is true that the “Marvel method” keeps authorship ambiguous anyway. These days I would say the thing is to keep communications in email, so there is an archive. Even if of no legal significance, due credit is due credit.
John Holbo 10.06.14 at 12:36 am
“I thought the origination of the Fantastic Four was disputed. Lee still claims it as his idea, doesn’t he? There seems to be a consensus that this is false, but I don’t know the basis of that.”
Well, we might need a different example then. I was thinking that no one would deny co-creator at least, but that would still be work-for-hire. Fair enough. But there are other properties/characters that Kirby definitely dreamed up out of his own mighty brain.
“Or they could simply rule in favor of the giant corporation and declare it limited to the specific circumstances, thus neatly severing the Gordian knot.”
That’s sadly likely. The thing I hadn’t realized was that there were reasonably big corporate interests on the other side. The Screenwriter’s Guild, Director’s Guild, and a bunch of reasonably powerful entities in the music business. They aren’t as powerful as Marvel/Disney, granted. But it tips the ‘who is the pro-business Court probably going to lean towards?’ balance a bit more towards the middle. It seems likely that Marvel blinked because it just wasn’t crazy at all to say the Kirbys should win, hence could win.
Alan White 10.06.14 at 1:41 am
Stan Lee minus (Jack Kirby plus Steve Ditko) = O or close to it.
So I’d say as one who as a kid plunked down my 10 cents for the originals and managed to hold on to a few of them for retirement.
Doctor Memory 10.06.14 at 1:46 am
“Marvel had to fall back on arguments like: Stan Lee is pretty sure he remembers Kirby got paid for everything, although there’s no paperwork to back that. That’s kind of weak.”
If your defense, in front of the Supreme Court of the United States, boils down to asserting that Stan Lee told the truth about any possible aspect of Marvel’s creative or business dealings, you have no defense at all. Dear god.
Alan White 10.06.14 at 2:01 am
John–I take it these were civil proceedings, where the standard of evidence is (I think always) preponderance. Certainly this would play into legal strategy given that the case would proceed to final judgment that would take that standard into considerations of adjudicating fairness. If that’s so, settling the case was a good bet against a potentially larger loss. That’s the way things usually play out in civil cases given the low standard of proof.
The Temporary Name 10.06.14 at 2:40 am
There have to be many millions of people who can write better than Stan Lee, and it’s a shame Kirby wasn’t one of them. Lee deserves a little more credit than front-man.
Bloix 10.06.14 at 2:20 pm
Out of 10,000 petitions each year, the Supreme Court decides to hear less than one percent – about 80 cases. It decides to hear cases to reconcile conflicting lower court opinions, or to correct a decision that contradicts prior Supreme Court precedent, or because the issue is very significant. It isn’t interested in justice to the litigants – they have already had all the justice they are entitled to.
So Kirby’s heirs’ odds of having their case heard were small. Still, a small percentage times a very big number is a reasonably big number, which is likely why Marvel settled.
Plume 10.06.14 at 6:43 pm
It’s a guilty pleasure, I suppose, but I’m a fan of Marvel and some of the characters from the DC universe. The issue of rewards/copyright for the original creators is interesting on several levels. Thanks, John Holbo, for bringing this to the fore.
A follow up aspect that I wish you’d write about? The politics of those comics. Left, right or center, etc. I doubt there’s much of a coherent program, one way or another, but overall I see them leaning a bit to the right. Kinda right-libertarian in a lot of ways. Villains, for instance, are oftentimes connected with the environmental movement.
Another guilty pleasure for me is The Arrow, which I fully acknowledge is TV aimed at young people, not those of us in our 50s. But I still like the show. In the Arrow, “saving the city” seems to be the prime directive. What is that all about? Why the narrowing down to just the city itself? And this seems to be the case with Batman and other characters as well . . . with New York, of course, being the locus.
Why the city?
So, anyway, would enjoy reading your thoughts on the politics of Marvel and DC comics. And others via the comments section.
t 10.07.14 at 8:35 am
“But this time the good guys won one.”
I see no good guys in a feud over who should get monopoly rents. Why should relatives to someone get a boatload of cash for nothing they have themselves done? Copyright should simply be abolished.
Plume 10.07.14 at 3:39 pm
t,
You could solve that by limiting copyright to the lifetime of the person in question — the writer, songwriter, painter, composer, etc. His or her lifetime. Then it reverts to the public domain.
It used to be that way.
John Holbo 10.08.14 at 12:32 am
“Why should relatives to someone get a boatload of cash for nothing they have themselves done?”
In general, I agree. But in a case where the creator himself was denied significant compensation during his lifetime, there is more poetic justice to his children – whom he wanted to get money, through this case – getting a payout.
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