On July 28 2011, in a New York court, Judge Coleen McMahon ruled a verdict on the copyright case of The Kirby Family, the plaintiffs and children of legendary comic book artist Jack Kirby, and Marvel/Disney, the defendant and legendary entertainment company. The Kirby family claimed that their father was integral in creating a majority of Marvel’s marquee characters-The Fantastic Four, Captain America, The Incredible Hulk, Iron Man, Thor, Sgt. Fury and his Howling Commandos, The X-Men and um, Spider-Man (I’m not joking). Moreover, since he was the primary creator of these characters, Kirby’s estate is entitled to the copyrights to these creations. After reviewing the case, as well as several testimonies from Marvel comics legends such as Stan Lee, his brother Larry Lieber (Stan Lee changed his name), John Romita Sr, Jim Steranko and others, as well as testimonies from close associates of the late Jack Kirby, such as writer Mark Evanier and Kirby collector John Morrow, McMahon ruled in favor of Marvel/Disney.
One of the most closely watched legal cases in modern comics history has ended for now as today New York federal judge Colleen McMahon declared that the heirs of legendary artist Jack Kirby had no claim to copyrights on the superheroes he co-created for Marvel Comics in the 1960s from the Fantastic Four to the Hulk and beyond.
The 50-page decision spells out the ins and outs of the trial in some detail, although McMahon spelled out what was really at stake very early when she wrote, “At the outset, it is important to state what this motion is not about. Contrary to recent press accounts [including two pieces in the New York Times], this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruit of their labor. It is about whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts, notably the United States Court of Appeals for the Second Circuit. If it does, then Marvel owns the copyright in the Kirby Works, whether that is ‘fair’ or not. If it does not, then the Kirby Heirs have a statutory right to take back those copyrights, no matter the impact on recent corporate acquisition or on earnings from blockbuster movies made and yet to be made.”
In the end, the judge agreed with Marvel’s version of the events, writing that there were “no genuine issues of material fact, and that the Kirby Works were indeed works for hire.”
Artist Colleen Doran, on her Distant Soil page provided these screen grabs from the verdict:
Bleeding Cool also provided the full verdict in a flash reader format if you want to read it there. Bear in mind the verdict very long, if that format is too cumbersome, you can read the verdict here: 20th Century Danny Boy.
I’m usually a guy in favor of the working man over the big monolithic corporate giant, but this verdict I feel was very much correct. Granted, Kirby helped in creating these characters, but all of his creations were made on behalf of Marvel, he did not create a property and try to have it published – he pitched a few, assisted in the creation of a few, but no major work was done without the green-light of publisher Martin Goodman and editor Stan Lee. There are also several factors to should consider:
- In 1969, Joe Simon – the actual primary creator of Captain America (it is said that Cap is 90% Simon, 10% Kirby) sued Marvel Comics for ownership of his creation. Kirby Sided with Marvel on their behalf and stated that the creation of ‘Captain America’ was work for hire-meaning that they were hired by the publisher to create the property and all copyrights are to be held by the publisher, who financed the creation of the intellectual property. For example, John DeLorean created the Pontiac GTO for General Motors, he was paid by GM to do so, and so it was GM’s intellectual property based off of his design, DeLorean could not take his GTO design to Chrysler and make the same car, as he did not own it. I’m not saying that this practice in comics is fair, but it is in fact how the business is run.
- In 1954, Joe Simon and Jack Kirby created The Fighting American, who was one of the very first creator owned comic properties, meaning he was created at the writer and artist’s expense and was legally owned by the creators, not the publisher. Using John DeLorean again, he designed the DMC-12 (actually, several people designed the DMC-12, but for argument sake, let’s just pretend it was only John D and a briefcase full of coke who did) created by DeLorean at his own expense and fiscal risk; its creator then owns the DMC-12. It is quite a hollow argument to believe that Jack Kirby, who at the time he worked for Marvel and created these character would have been an over twenty year veteran of the business would not know the difference between Work For Hire and Creator Owned. Even though Kirby had one of the very first creator owned titles, and even ran his own comics company: Mainline Publications, in the 1950’s.
- Jack Kirby did not create these characters on his own. Although he drew these characters and is deserving of more credit than the writer, many of his ideas were collaborations between him and Stan Lee, or as a bullpen discussion amongst several writers and artists. The argument that the copyrights are solely Kirby’s is absurd.
- Kirby only ever originally wanted his physical artwork back, in 1972 he said this according to Colleen Doran:
As well as this in 1986, also according to Doran:
- Although not really counting as a legal argument and more so as a moral one. Aside from The Fantastic Four, who are in fact, Kirby’s most successful work, and Thor, who really can’t be considered a creation of anyone who wasn’t in Norway 2,500 years ago; most of Jack Kirby’s creations found success and their most well-known incarnations under the guidance of other authors. Steve Ditko created iron Man’s most notable look, his red and gold armor. Nick Fury was a Sgt. Rock knockoff until Stan Lee and Jim Steranko mad him into a high-tech super-spy. The X-Men was a canceled title and found success under a re-launch with an almost completely new cast created by Len Wein and Dave Cockrum. To say that Jack Kirby is more deserving than others who actually made this titles lucrative and established them as bankable properties in other media is unfair.
- The Kirby family demanded more than their father created. Among properties they were seeking the copyrights that seemed to have included Spider-Man based on the fact that Kirby drew the iconic cover of Spider-Man, and some documents over at Bleeding Cool from last year imply they were seeking compensation from X-Men Origins: Wolverine. Really? Because the movie has X-Men in the title means it’s based off of a Jack Kirby creation? Wolverine has as much to do with Jack Kirby as he does to Bob Kane. Going after those two properties alone shows this case was less to do about what’s right, and more about what’s worth.
While many will decry the judgment because the defendant is none other than Mr. Mouse himself, or just because it was a family against a corporation, this was right. This case was not about sticking up for the little guy, but greed. It’s sad that many creators signed away all rights to the characters they created, what’s even worse is how many died struggling and penniless. However, suing a company for the copyrights doesn’t help mainstream creators, it will either force the publishing company to buy them back or have the new copyright holders create a new publishing house where they can possibly exploit the next generation of creators.
I also feel that the fact that the Kirby’s went after these copyrights is actually a bigger detriment to comic creators than a boon. This case now establishes a precedent for many Work For Hire cases, had they gone for royalties instead, their argument would have had a better foundation to stand on, and would have paved the way for other creators to get what they truly deserve for creating such amazing stories through the years. However, because of this suit, any such gesture would appear as an admission of guilt and is now less likely to ever happen.
Mark Toberoff, the attorney for the Kirby family, says he plans to appeal this decision, however, as their argument is already weak, an appeal isn’t very likely and might be detrimental to Toberoff’s other high-profile case: The family of Jerry Siegel against Time Warner/DC Comics for the copyrights of Superman. Unlike the Kirby estate, the Siegel family has a strong argument for Superman, as he was created by Jerry Siegel and Jerome Schuster at their own expense and then sold their first story to National Publications-the original incarnation of Dc Comics. DC bought the already completed story and then fallaciously claimed it was a Work For Hire job despite being completed prior to their involvement. While the Kirby family deservedly received nothing, I hope that the Siegel family can finally receive restitution on behalf of their father.