Jack Kirby Sues Everyone and their mom

[GhostPoet]

I'm so sick of the who is suing who news.
There should be a time limit on suing for rights. If you don't sue for rights when you're alive...then you're screwed.

 

[Figs]

I'm so sick of the who is suing who news.
There should be a time limit on suing for rights. If you don't sue for rights when you're alive...then you're screwed.

They should also throw out cases due to ridiculous reasoning. Like in this case, they had so many years to sue and now they wait for a corporate giant like Disney to buy Marvel out. Coicidence my ass, anyone who denys that they waited for something like this are full of it.

As someone on one of the previous pages said, where were they when that ****** Captain America and Fantastic Four film came out???

 

[Evil Twin]

They should also throw out cases due to ridiculous reasoning. Like in this case, they had so many years to sue and now they wait for a corporate giant like Disney to buy Marvel out. Coicidence my ass, anyone who denys that they waited for something like this are full of it.

As someone on one of the previous pages said, where were they when that ****** Captain America and Fantastic Four film came out???

Waiting for the notice of termination window to open up? Heck, the latest round was created by the Sonny Bono act that became law in 1998, so I don't know what's the point about talking about a Captain America movie that happened before that.

Is there any evidence that the filing of the notice of termination was the first time Marvel/Disney heard about it? Frankly, everything I've read indicates that the Kirby family and Marvel had been talking behind the scenes for a while and couldn't come to an agreement before legal action began.

And, considering Disney was one of the prime players behind the Copyright Extension Act and the Notice of Termination that resulted from that, I think it would be mighty naive to think they were blindsided by it.

Believe it or not, publicity one way or another really doesn't matter in this case as it's not going to be a jury trial.

And, really, even if the Kirby Estate wins, nothing takes effect until 2017. The better part of a decade isn't enough notice?

 

[Evil Twin]

FWIW, the lawsuit can be read at http://reporter.blogs.com/files/cacd-03109783637.pdf

Now, if it was work for hire, the Kirby heirs don't have a case. So, the argument that it didn't meet the work for hire standards is always of interest.

20. For much of this period, the comic book division of Marvel’s
Predecessors was on the brink of bankruptcy due in large part to criticism in Fredric Wertham’s book, “Seduction of the Innocent,” the ensuing 1954 hearings of the Senate Subcommittee on Juvenile Delinquency, and the resulting censorship imposed on the comic book industry by the introduction of the “Comic Code Authority” in 1954. Shortly thereafter, the comic book market underwent a severe

contraction.

21. In the period relevant to this action, Marvel’s Predecessors had a tiny office, very few employees, and fed the printing presses of related entities with comic book material purchased for publication from “freelancers” to which they had little or no obligation.
22. During this period, Kirby was not an employee of any of Marvel’s Predecessors and was not paid a fixed salary or wage by any of them. Marvel’s Predecessors were not financially obligated to Kirby, kept their options open, and thus never committed to any written agreement pursuant to which Kirby was to create his works. Like many others during this difficult economic time, Kirby
worked solely on a freelance basis out of his own home, with his own instruments and materials and thereby bore the financial risk of creating his copyrighted materials. At completion, such material was submitted to Marvel’s Predecessors, and if they accepted it for publication, they purchased Kirby’s material at a perpage rate.
23. The Kirby Works were not created as “works-made-for-hire” for​

Marvel’s Predecessors.

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Now, we can look at some of this with a skeptical eye as this is the Plaintiff's brief.

But, if true, "thus never committed to any written agreement pursuant to which Kirby was to create his works" is a big hole for Marvel. Not an insurmountable one necessarily, verbal contracts can be binding, but a contract stating the work was "work made for hire" would likely have gotten the suit dismissed immediately.

The fact that Kirby didn't work out of Marvel's offices does help with the case, but I don't think the argument really was that Kirby wasn't a freelancer. It just closes a hole from ever really being opened.

There's another part of the lawsuit that's also relevant. The suit basically says that Marvel is still holding onto Kirby's artwork. My understanding is that Kirby signed something releasing some of his rights at the time in exchange for his original artwork. If Marvel is still holding on to original art, that contract could very well turn out to be in breach and non-binding. OTOH, if Marvel has turned over all of Kirby's art, that agreement is very relevant and may supercede everything else.

There's plenty here of interest without having to line up on one side or the other.​

 

[Evil Twin]

FWIW, here's a good article related to the Kirby/Marvel art showdown of the 80s.

http://archives.tcj.com/aa02ss/n_marvel.html

 

[TheVileOne]

Can the Kirby's honestly claim that Kirby created Spider-man?

Did Kirby drawing the character make him a co-creator?

 

[Evil Twin]

Can the Kirby's honestly claim that Kirby created Spider-man?

Did Kirby drawing the character make him a co-creator?

I don't believe so myself.

But, just for the sake of argument, is what we know and what I expect the case is.

In the 1950s, Kirby, Joe Simon, and C.C. Beck had come up with the idea of The Silver Spider. Basically, a combination of Kirby's 40s Sandman, complete with swinging around town action, and Beck's Captain Marvel, based around a teenager that transforms into a superhero. It wasn't published, and went nowhere.

Almost a decade later, Lee comes up with the idea of a superhero that can climb walls like a spider. Kirby tells Lee some of the ideas he had for the Silver Spider, and Lee has Kirby draw up some pages. So, up to that point, it's a Lee/Kirby creation.

Only Lee doesn't like Kirby's pages. He didn't want a kid that transformed into Captain Marvel, he wanted a kid that was still a kid. He tosses out those pages and has Steve Ditko draw something up and the rest is history.

So, Kirby was involved in the creative process and some of the ideas, kid superhero who swings around town, have superficial similarities to what Spider-Man became. But, other than the very superficial basics, nothing of Kirby's involvement made it to the actual story. OTOH, screenwriters who have their drafts heavily changed often still get credit. Personally, I think the stuff that makes Spider-Man, Spider-Man has little to do with those basics, but if you contribute 5% of the ideas that became Spider-Man, does that still count?

 

[TheVileOne]

Yeah but sometimes they don't get credit either.

Also Evil Twin, credit does NOT equal ownership either. Screenwriters generally more often than not do not OWN the characters that they create.

 

[Evil Twin]

Yeah but sometimes they don't get credit either.

Also Evil Twin, credit does NOT equal ownership either. Screenwriters generally more often than not do not OWN the characters that they create.

That's generally true. But, fairly often, we also see adaptations that stray far from the original story. That doesn't mean that they don't have to pay the original author or credit him.

Again, I don't think Kirby contributed enough to Spider-Man to be considered a co-creator. But he was involved in the creative process as more than just a cover artist. I also think it points to the fact that Marvel at that point wasn't neatly divided into writer and artist. The artists were involved in the story process.

Ultimately, Stan Lee rejected most of Kirby's ideas for Spider-Man and I think the court should do the same. But, that's based on more gut instinct than law. But, the above is likely to be the Kirby argument, that Jack helped get the ball rolling, instead of an idea that went nowhere, and contributed a few ideas that stuck.

Now, I think it would be completely ludicrous if the Kirby family wins and Jack gets equal credit with Lee and Ditko on Spider-Man. OTOH, if Kirby was awarded a 1% share and the credits read "Created by Stan Lee & Steve Ditko with contributing ideas from Jack Kirby" I don't think it would be any sort of travesty of law or justice.

 

[bubbadoom]

Two points about some of the above comments -

first, screen writers do get residuals if their concepts/characters are used in sequels. I know that one of the writers of the Puppet Master movies gets money from it's various sequels.

second, do we know that the idea of a wall crawling hero was Stan's or was the entire notion of a "Spider-Man" hero started when Jack brought the Simon/Kirby "Spider Man" logo into Stan.

I personally think it's the latter.

The fact that Jack's original pages for Spider-Man were similar to the Simon/Kirby "Silver Spider/Spider Man" and not the Lee/Ditko Spider-Man suggests that Stan had very little [if any] of a concept for this character when Jack was involved with it. If Kirby was working from Stan's script [as Stan likes to suggest] why was Stan "ripping off" the Fly? It has been documented else where that Steve D. brought the idea of Dr. Strange to Stan, so why is it hard to believe that Jack brought him the idea of a "Spider Man"?

I agree that what Ditko did to Spider-Man was very different than what Kirby suggested, but would Stan and Steve had even done a wall crawling hero had Jack not suggested it? Hard to say, and I assume that's something that will be discussed in court.

 

[samsnee]

http://www.nytimes.com/2010/03/21/b...l=1&adxnnlx=1269198331-xfbB2u2nBx6TPVcgAMUUzw

Good article on the whole mess

 

[Evil Twin]

Considering the amount of Kirby reprints out there, especially from the 1940s, is it at all unlikely that DC and the Kirby heirs have reached an out of court agreement? Obviously, the Newsboy Legion, Boy Commandos, and Sandman and Sandy the Golden Boy aren't worth all that much in the big picture, so I can certainly see the idea of settling for royalties and a fast track reprint program being the best possible outcome for both parties.

 

[blackblt]

Stan worked from Kirby's script a lot! Kirby would give him drawings or ideas and Stan would replace him with another artists or change it slightly and give him no credit. This is well documented. The Silver Surfer was totally drawn and thought of by Kirby. Once he showed it to Stan Lee, Stan got another artist to draw the first issue of Silver Surfer and changed Kirby's story without telling him or asking him. Kirby was shocked to see his character's first comic book going to press without so much as a credit or his permission. After all he was just an "artist" right?

 

[sabetoonth]

is this done yet? please tell me they didnt do anything stupid

 

[GL1]

is this done yet? please tell me they didnt do anything stupid

From the NYTimes Article:

“This is like the Superman case times five,” said Mr. Toberoff, who predicts a three- to five-year court battle, including appeals, if the case proceeds.

In other words: Don't worry about it. Brightest Day/Heroic Age will be over by the time any of this matters. Avengers will be out, and perhaps sequeled.

 

[sabetoonth]

alright

 

[Evil Twin]

Marvel is free and clear basically until 2018 even if the Kirby estate does win. The existing copyright hasn't reached it's extension period yet.

 

[Gabe99]

From Variety:
Super tussle over superheroes

 

[venom892]

Here's the thing though.I can't sympathize with the Kirbys because it's kinda obvious they don't even know how much Kirby really created.He had very little to do with Spider-man or Iron Man.The X-men didn't even become popular until years after he left the book.He helped create a small fraction of the characters of that franchise.I don't even know why they sent a notice to Sony when all Sony has is Spider-man and Ghost Rider two characters Kirby didn't popularize at all.

 

[Gabe99]

Marvel, Jack Kirby Estate Settle Superhero Rights Dispute

Marvel and the Jack Kirby estate have settled a long-running legal dispute.

“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history,” read a joint statement from Marvel and the Kirby Family.

More to come.

 

[Gabe99]

Marvel & Jack Kirby Heirs Settle Legal Battle Ahead Of Supreme Court Showdown
“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.”

Just days before the Supreme Court was set to take the matter into conference, Marvel and the family of Jack Kirby have settled their long running legal dispute over the comic legend’s rights to the characters he created or co-created. Here’s their joint statement:

“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.”

Widely viewed as one of the Kings of Comics, Kirby created or co-created some of the biggest names on the page and now on the big screen in the superhero blockbusters that Hollywood has profited from in recent years. However, while his often partner Stan Lee was a Marvel employee, Kirby was a work for hire and had no rights to Captain America, The Fantastic Four, the Hulk, the original X-Men and the plethora of other other characters he played a part in bringing to life.

After failing repeatedly in lower courts, Lisa Kirby, Neal Kirby, Susan Kirby and Barbara Kirby petitioned the High Court on March 21 for a hearing on the matter. The heirs wanted SCOTUS to rule in favor of their assertion that they had the right in 2009 to issue termination notices on 262 works that the comic legend helped create between 1958 and 1963. Those 45 notices went out to Marvel, Disney, Sony, Paramount Pictures, 20th Century and others who’ve made films based on the artist’s characters under the provisions of the 1976 Copyright Act. Marvel sued in 2010, after failing to reach an agreement back then with the Kirby family to invalidate the termination notices. Jack Kirby himself passed away in 1994.

All things considered, and with the billions that Marvel/Disney have made off the films filled with characters Kirby created, this 11th hour deal should come as no big surprise. The bottom line and PR risk that the media giant was taking if the SCOTUS would have agree to hear the family’s petition would have sent a shutter through the market and the town As well, if the High Court had found for the Kirbys and their lawyer Marc Toberoff would have thrown Marvel/Disney into turmoil as they would have to negotiate with the family on everything from The Avengers and this summer’s big hit Guardians of The Galaxy, with the popular Groot character a Kirby creation. As well a wide variety of copyrights across the industry would suddenly be in play as writers, composers and others designated under a freelancer status could suddenly gain a piece of what they created in what would now be seen as a much more traditional employee/employer arrangement.

Despite initial indifference and then objections from Disney-owned Marvel, the SCOTUS agreed the take the case into conference to consider if they would actually hear it. That conference, where the nine Justices would ostensibly be sitting around talking about comic as well as copyright, was scheduled for September 29. The Kirby family and their legal point had a lot of support and not just among the fanboys. SAG-AFTRA, the WGA and the DGA back in June submitted an amicus brief to the High Court in favor of having the Kirby’s petition granted.

 

[Gabe99]

Marvel, Jack Kirby Estate Settlement Brings End to High-Stakes Battle
Why a battle over Spider-Man, X-Men, and the Avengers was important

On Friday, Marvel ended a long and bitter feud with the estate of comic book legend Jack Kirby, announcing a settlement just days before the U.S. Supreme Court had scheduled a conference to discuss whether to take up a case with potentially billions on the line.

“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history,” read a joint statement from Marvel and the Kirby Family.

The settlement, which will surely please shareholders of Marvel parent Disney as much as it will disappoint many others in the entertainment industry, brings an end to a contentious lawsuit that started after Kirby's family, represented by attorney Marc Toberoff, began sending termination notices to Marvel and its licensees Sony, Fox and Universal over such superhero characters as Spider-Man, X-Men, Captain America, Iron Man, Incredible Hulk and others.

The case never got to trial after a judge — and later the 2nd Circuit Court of Appeals — determined that when Kirby was doing most of his work in the 1950s and 1960s, he had contributed his materials as a "work made for hire." As such, Marvel was considered the statutory author, and Kirby (and his heirs) never had any termination rights under the 1976 Copyright Act.

The lawsuit seemed like it was headed to oblivion when all of a sudden, the Kirby estate's attempt to get high court review gathered steam. Most petitions for cert are denied, but after some respected intellectual property veterans weighed in with amicus briefs, the Supreme Court ordered Marvel to respond. The studio eventually did just that, but the dispute was also commanding the attention of both Hollywood labor guilds as well as the respected lawyer who founded Scotusblog.

Why the dispute was being closely watched went beyond whether Kirby could grab back a share of iconic characters. It even went beyond whether Marvel would have full control over profits from these characters as it launched new Avengers movies.

As those supporting Kirby's drive to the Supreme Court would tell it, the case represented the balance of power between creative contributors on one side and studios who manage production and distribute works on the other. It deal with how to interpret who is an "employer" under the 1909 Copyright Act — before copyright law got amended — and whether courts should go broad by adopting the "instance and expense" test and fitting all commissioned works under the umbrella, or whether the courts should go narrow, potentially allowing other iconic works like James Bond to be terminated.

The appellant believed that Congress created the termination provisions as a bargain — to allow authors and their heirs to enjoy the fruits of the latter part of the copyright term. Without wide birth, however, the terminators would never get to enjoy such rights. On the other hand, Marvel told the high court that this case was a poor vehicle to explore such issues.

The case now ends, with the terms of the agreement hopefully being told at a later date. Meanwhile, the Hollywood unions and IP observers who hoped for some legal clarity will have to wait for the next superhero involved in an epic struggle that only the nine justices of the Supreme Court can solve.

 

[Mike Murdock]

Good result, fair compromise. Marvel losing the copyright would be devastating and Jack Kirby certainly deserved more credit (and royalties) than he got. Of course, no one knows what the US Supreme Court would have done (had they done anything), so this is the safe bet for everyone involved.

 

[Raiden]

I guess as part of the settlement, Disney will be giving a lot of money to the Kirby estate and probably credit him with the properties that he had worked on extensively in the past. Jack Kirby did just as much as Stan Lee had done for Marvel Comics, and I'm glad that this case is finally resolved.

 

[MessiahDecoy123]

Hopefully this will silence the Stan Lee haters.

I kind of doubt it will though.