Marvel & Jack Kirby Family Settle Long-Running Legal Dispute

[PretenderNX01]

From what I remember, "Captain America created by Joe Simon and Jack Kirby" appears on every Captain America comic.

No one can really claim that they "created" Thor.

That version of Thor was developed by him which could then included "Based upon ideas from Jack Kirby"

According to IMDB he gets credit for the comics along with Stan Lee and Larry Lieber
http://www.imdb.com/title/tt0800369/fullcredits/

[Cmbmool]

Thanks for the true insight Mr. Busiek on this case and thanks for clearing up the confusion on who truly sued who.

[Darrell D.]

If so major character would be dying off in drove and the last Superman book would have been written decades ago,

Well, if a publisher likes the sales of a character, then they LICENSE it from the creator, if the creator wants to do so.
The corporation will still make a ton of money, and the creator gets to control his or her creation.

[Diamond]

Well, if a publisher likes the sales of a character, then they LICENSE it from the creator, if the creator wants to do so.
The corporation will still make a ton of money, and the creator gets to control his or her creation.

Exactly. For example, the Ninja Turtles started as a creator-owned comic, and that hasn't stopped its creators from licensing the property or letting other writers and artists work on it.

[Majorjoe23]

I'm just catching up with this thread, but I think this calls for the classic:

Kurt Busiek wins!

[Darrell D.]

Exactly. For example, the Ninja Turtles started as a creator-owned comic, and that hasn't stopped its creators from licensing the property or letting other writers and artists work on it.

Exactly. Archie Comics published a TMNT the same time that Mirage was publishing a TMNT book.
And, surprisingly, it worked..and neither publishing house imploded. Funny, that.
It CAN be done..giving a creator control over their creations, even with big publishing houses.

[Dabrikishaw]

I'm glad Marvel came to an agreement with them.

[DrTraveler]

Keep in mind that if copyright hadn't been extended, the FF would still be owned by Marvel until 2017. But yeah, the Marvel Silver Age characters would have gone PD starting in the next few years.

And Cap, the Sub-Mariner, the original Torch and others would be public domain already. So would Superman, Batman, Wonder Woman, the Fawcett Captain Marvel, Plastic Man...

kdb

Has the lawsuits around Sherlock Holmes been settled at this point yet, as that would have a huge impact on whether guys like Cap and Namor would have got to public domain. It's been a while since I looked at that, but IIRC (big IF) the Conan Doyle estate was arguing that the Holmes Canon had to go into public domain together AFTER copyright expired on the whole canon.

My stance on the Kirby thing in light of what you posted is that the Kirby estate took a legal action they had to know would result in a lawsuit. I think you're right Marvel blinked as the stakes are too high. We may see Kirby co-credited with Lee now, but I somehow doubt that.

[Kurt Busiek]

Has the lawsuits around Sherlock Holmes been settled at this point yet, as that would have a huge impact on whether guys like Cap and Namor would have got to public domain. It's been a while since I looked at that, but IIRC (big IF) the Conan Doyle estate was arguing that the Holmes Canon had to go into public domain together AFTER copyright expired on the whole canon.

Yeah, they've lost at every turn, on that. It's just not how copyright works. They've even been told to pay the opposing party's legal costs, and while they appealed to the Supreme Court, the Court told them to take a hike.

My stance on the Kirby thing in light of what you posted is that the Kirby estate took a legal action they had to know would result in a lawsuit.

Which is not the same as them suing, of course.

We may see Kirby co-credited with Lee now, but I somehow doubt that.

I bet we do see that.

kdb

[Anjohl]

If so major character would be dying off in drove and the last Superman book would have been written decades ago,

But would the last Supreme, Astro City/Samaritan, Mister Majestic, Hyperion, and Shazam stories have been written? I am with Darrell, if you create something, regardless of your employment situation, you should retain at least 25% of all future copyright and publishing rights. This idea of a corporation as a person needs to die, pardon the pun.

[Pinsir]

I got an idea: what if all of Kirby's work was united within its own universe? Thor to OMAC and everything else. Might be a cool idea.

[Greengo]

Kurt you have been on the heir's side from the beginning and not that there is anything wrong with that but it clearly still shows in your posts.

Why else would you try to split hairs on the who sued who, other than to try and give sympathy towards the heirs.
But the fact does remain that the heirs fired the first shot and filed for full/part ownership of those characters and Marvel/Disney had to respond.

So don't let anyone try and make it feel like it was any other way.

I also don't agree with your opinion that the heirs had nothing to lose. They started this process with the hope they would gain "something" and probably knew it could go all the way to the Supreme Court and clearly decided that they were willing to go this far. To go all the way and still end up with nothing would be devastating.

Plus I'm fully confident that talks have been going back and forth the entire time but neither side finding that middle ground. This is common practice. The heirs shoot for the moon and Marvel respond by lowballing and it would go from there.

The heirs have lost all lawsuits leading to this and from what I've read, most experts believed the Supreme Court wasn't going to review the case and let these cases be dealt with on an individual basis as opposed to a huge blanket ruling. So I think the heirs wouldn't want to walk away empty handed (again to go this far and end up with nothing would be huge to them as well)

But I do agree that Marvel wouldn't want to take the chance either, however slim it was. Marvel/Disney have invested BILLIONS into these characters and would want to have certainties. Plus Marvel's PR looks good. Also if and that's a big IF the Supreme Court rules in the heirs side, this would open a floodgate for Marvel...and DC...and not just writers/artists but the entire Freelancing world...including the freelancer graphic artist who created the Burger King logo (I don't know this, but just as an example) the software developer wanting his "code" back, etc etc and hence why the experts believed the SC wouldn't review the case and leave these as individual cases.

I'm positive the heirs came way down on their side and Marvel came up on theirs. I highly doubt the heirs gained any "ownership" of these characters but the credit will continue (Kirby has been given credit in the movies in case you missed it) and I'm sure the heirs are getting good money for any foreseeable future.

Both sides "win"!

Perhaps to some, it just would feel a bit better if they felt the Heirs/Marvel "caved"...and I guess there is nothing wrong with that. To each their own I guess.

Now ALL of us fans can stop pretending we know what went on, etc and continue/get back to enjoying the characters/stories/artwork ;-)

Cheers

[continued from last post]

And various organizations started filing amicus briefs -- the Writer's Guild, the Director's Guild, the Screen Actor's Guild and others, including the former head of the US Patent and Trademark Office and the former US register of copyrights (who helped write the very laws this case is based on) and others. And they argued that Marvel's definition of employee is not workable, and that if the Supreme Court upholds it, it'll create chaos for other industries, where things that used to be classed as rights sales suddenly got redefined as work for hire. So they wanted the Supreme Court to hear the case and decide that no, the rules of work for hire don't work that way.

And that's where things sat until Friday, when Marvel and the Kirbys settled, on the last possible business day before the Supreme Court started discussing whether to take the case.

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.

I have no insider info, but we'll see what happens.

In the meantime, don't let anyone tell you that Kirby sued Marvel (at most, the estate responded to being sued, with a counterclaim), or that copyright law is as simple as hiring a dog-walker or buying a pizza, or that the Kirbys broke a deal that Jack made -- he wanted this to happen, he was aware of it from when the law changed and made it possible, and the Kirbys would have been making those reversion claims during the window the law provides, whether Marvel was wealthy or not, bought by Disney or not.

And don't let them tell you that everyone back in 1961 knew, understood, and accepted the difference between an assignment of all rights and a work for hire deal. Even Marvel demonstrably didn't know the difference -- in part, because back then there wasn't any practical reason to distinguish between the two.

Beyond that, the question of how to define work for hire is going to come up again -- and will probably make it to the Supreme Court someday. Because other industries simply don't do it the way the comics industry wants to say is standard, and those Hollywood guilds, plus the guy who co-wrote the law in question -- those amicus briefs are still out there and will come up every time this stuff is litigated. Right now, precedent favors the publishers, but in this case they settled rather than test the question, and as it comes up again, it'll either get ducked again or it'll get tested.

*

But for now, the Kirbys are very happy with the settlement, and Marvel's happy too, because it's finally done with. Disney won't be hurting, and movies and comics will roll along like they already were, the only difference being that the family of one of the creators will get some money out of it.

The only people angry about this are people who hate the thought of that, either because they identify that strongly with the publishers or because they've been saying for years that the Kirbys would lose, and they're overly invested in that stance.

And I bet, for all that some want to say the Kirbys folded, that Marc Toberoff's phone is ringing off the hook these days...

*

And on another facet of all this: Stan Lee was Martin Goodman's cousin-by-marriage (his uncle, Robbie Solomon, was related to Goodman's wife, and it was Solomon that got Stan the job), but Goodman wasn't making sure Stan kept rights; Goodman wanted them all. Stan, however, has made very, very lucrative deals with Marvel over the years, as publisher/spokesman/promoter, and he's very well taken care of. That won't change.

kdb

[Miggwilson]

I would like to respectfully disagee a little. When the Kirby family sent those termination notices...it was done expressly for the sole pupose of getting money. Otherwise, there would be no need to file. They knew Marvel would respond...and they did. I do not blame the Kirby family for getting a large settlement but stating it wasn't for the money is a joke. When they say it's not about the money...it's about the money. Always has been, always will be. Again, I do not fault them for that. What I wished for was that they pushed the case all the way through. I hoped the Supreme Court would take the case. While the family would still end up with a big check...the goodwill that they would have accomplished for artists everywhere would have been monumental in scope. They would have done a great public service while getting a big check to boot. Now all we have is them signing away any future rights for a big payday today. I cannot blame them...I might have done the same thing...but the thought of them swiping a firm hand across Marvel and helping out thousands of artists in the process would have been GRAND. Seriously though...you cannot possibly think this was not about money. That's just naive. My two cents.

[Kurt Busiek]

Kurt you have been on the heir's side from the beginning and not that there is anything wrong with that but it clearly still shows in your posts.

You bet I'm on the heirs' side. I think they're in the right.

Why else would you try to split hairs on the who sued who, other than to try and give sympathy towards the heirs.

Accuracy?

People saying that the Kirby heirs up and decided to sue is incorrect. People saying they did it because of the Disney purchase are incorrect. It's wrong to say either of these things.

But the fact does remain that the heirs fired the first shot and filed for full/part ownership of those characters and Marvel/Disney had to respond.

They were certainly very likely to respond. But yes, the heirs did exactly what the law provided for. This is not the same as deciding to sue out of the blue.

I'm positive the heirs came way down on their side and Marvel came up on theirs. I highly doubt the heirs gained any "ownership" of these characters but the credit will continue (Kirby has been given credit in the movies in case you missed it) and I'm sure the heirs are getting good money for any foreseeable future.

I bet we'll see creator credit in the comics, too.

kdb

[Kurt Busiek]

I would like to respectfully disagee a little. When the Kirby family sent those termination notices...it was done expressly for the sole pupose of getting money. Otherwise, there would be no need to file. They knew Marvel would respond...and they did. I do not blame the Kirby family for getting a large settlement but stating it wasn't for the money is a joke. When they say it's not about the money...it's about the money. Always has been, always will be. Again, I do not fault them for that. What I wished for was that they pushed the case all the way through. I hoped the Supreme Court would take the case. While the family would still end up with a big check...the goodwill that they would have accomplished for artists everywhere would have been monumental in scope. They would have done a great public service while getting a big check to boot. Now all we have is them signing away any future rights for a big payday today. I cannot blame them...I might have done the same thing...but the thought of them swiping a firm hand across Marvel and helping out thousands of artists in the process would have been GRAND. Seriously though...you cannot possibly think this was not about money. That's just naive. My two cents.

Of course it was about money. But it wasn't because the heirs were greedily overturning a deal Kirby made because they just up and felt like demanding more money.

The law specifically provides for creators to get some benefit out of extended copyright, just as publishers do. It's not one-sided.

And since the work for hire definition they were seeking to overturn doesn't apply to post-1978 works, a victory wouldn't change anything for artists of the last 35 years or so. Only pre-1978 deals.

I don't think the Kirby Estate was morally or ethically required to fight for all other artists. But the reversion law is still there to benefit those artists, too, and the amicus briefs are still there, too. And publishers will be more likely to settle such claims going forward, because the blueprints for such a fight are laid out for anyone who cares to try, and the Hollywood guilds and others who wanted to weigh in on the Kirbys' side will still want to weigh in to settle the question. They weren't doing it because they admired Kirby, they were doing it because they want to make sure their members' interests are protected.

So I think things did get at least somewhat better for a lot of those pre-1978 creators, and I think this case has set things up for an eventual victory.

[I also think that putting off the actual Supreme Court case to a future in which hopefully the Court may be a little less pro-corporate might be a very good thing, too, but on that score only time will tell.]

kdb