I’m seeing so many wrong statements about the Jack Kirby estate rights reclamation online, often in the midst of conversations laden with a thick sauce of stupidity or mere self-centeredness. I reckoned that, rather than wading repeatedly into the stupid I’d address them here, where I can steer people who have questions.
Please note that I am making no claim about whether the Kirbys will succeed in their attempt, nor about whether the works in question were legitimately “work made for hire”. Most of the vital facts to answering those questions occurred before I was born. The relevant agreements are not things that I am expert on…a statement that, it would seem, also applies to most of the people commenting on the situation. Also, and let me make this loud: I am not a lawyer. I am a layman who has to deal with copyrights frequently as part of his work, but I make no claim of complete knowledge nor claim that anything said here cannot be in error. This post is not legal advice.
- The Kirby family is suing a bunch of companies. No, at least not yet. The Kirby family has let people know that they’re reclaiming the copyrights. There may be lawsuits down the road, particularly if the companies do not agree that the Kirbys have proper claim to these rights, but no lawsuits yet.
- They’re only doing it now, instead of years ago, because of the success the Siegels have had with the Superman cases. No – the law only allows copyright to be recaptured in this way during certain periods (relative to the original creation/publication of the material.) They could not have done this years ago.
- They’re only doing it right now because of the Disney buyout of Marvel. For that to be true, everything would have had to have been prepared in the last two weeks. With all the characters and companies involved, it stretches the imagination to believe it was pulled together in two weeks, particularly since there’s no obvious reason not to take a couple months rather than rush it, if that’s what triggered it.
- If you create something for a comics company, it’s work-for-hire. You can do work-for-hire for a comics company, but not all work done for a comics company is work-for-hire.
- The Kirby heirs should have no rights, since they didn’t create the characters. And 20th Century Fox, Sony, and Disney created the characters?
- “Work For Hire” didn’t even exist as a concept before the 1976 change in copyright law. Actually, “work made for hire”, which is the actual phrase in the 1976 law, goes back to the 1909 copyright law. What did change in the 1976 act is that it could be applied to freelancers; previous law granted work made for hire status only to a “employer”, which meant that the worker had to be an “employee”… and there is some precedential rulings that make it hard to claim typical freelance work as qualifying.
- Kirby signed a document in the 1980s saying that the work was work for hire, therefor it is work for hire. No, it’s not that simple. It takes more than saying “it’s work for hire” to make something work for hire (for example, current law is explicit that you can’t just declare something WFH after the fact). I’m not saying that there can’t be anything in that document (which I’ve not read) which would have an impact (say, if it includes Kirby agreeing that the material had been intended to be WFH at the time of creation). As it is, I’ve not seen the document he signed (not the one they asked him to sign, the 4-pager that folks were protesting against, but the shorter one he actually signed). Have you?
- They can’t claim any copyright in Thor. Thor is a Norse god in the public domain. Yes, Thor the Norse god is in the public domain. The interpretation of Thor with a Kirby-designed outfit, who slams his hammer against the floor and turns into Donald Blake? Not so public domain. Think of it this way – Santa Claus is in the public domain, but that just means that you can make your own drawing of Santa Claus. You can’t copy mine, it belongs to me. You can do a story about Hans Christian Anderson’s The Little Mermaid, but not of Disney’s The Little Mermaid.
- If they stop these folks from using the characters in their comics, they’re ruining Jack’s legacy. Actually, Jack wasn’t that interested in having other people use his characters; he thought the talented folks should be creating their own concepts. Having said that – if they get ownership of the characters, it seems quite likely that they’ll arrange for someone to do comics, much as they’ve arranged for new comics featuring the characters the estate already owns.
- They should also be suing DC for the characters Kirby created there. Again, these are not suits, they’re reclamations. And the most notable Kirby’s DC creations (the Fourth World material, The Demon) are too new for them to be legally reclaimed this way yet.
- Kirby knew the rules when he made the material, and that should be adhered to. It’s hard to see how that argument can be wielded without saying that Marvel knew the rules and should stick to it as well – and under the rules of the time, Marvel would be ceding their copyright after 56 years anyway.
- (This is one where I feel the need to quote a specific message verbatim.) Comics were better when they were being done by employees, I hope McFarlane and all his kind rot in hell for screwing this industry. Comics have not been primarily done by employees since before Todd McFarlane was born.
- Kirby was screwed and the courts should award the Kirbys the rights./Marvel treated Kirby fairly, so the court will find for them. Certainly, it is understandable that the fans are concerned over who got treated fairly, and for all I know, that may be part of the motivator of the family’s attempt to recapture the rights (if they’d been getting a cut all along, there would be less motivation to recapture.) However, should the recapture situation end up in court, the case won’t be about the fairness of the past; this is not about redressing past wrongs, but about who controls the copyrights for the future. The cases would likely hinge on such questions as whether the original work was “work made for hire” (largely a question of whether Kirby was an employee), whether the termination was appropriately applied for (every explanation I’ve seen of the process has indicated that it is rife with opportunity for error), and whether the works now being produced qualify as derivative works based on Kirby’s material. Even if Marvel had been paying the Kirby family $10 million a year since 1961, that wouldn’t change the Kirbys’ legal right to recapture the copyrights. (Which is not to say that there might not be an attempt to pull on heartstrings in court; some light does occasionally seep around the edges of the blindfold of Justice, but that won’t be the heart of the matter.)
- This is against the capitalist form that the founding fathers set up and that has made this country great. Such claims take a rather blindfolded view of the founding fathers and their view on intellectual property. They did not see it as some sort of permanent grant to corporations; the Constitution specifies that Congress could secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. It wasn’t until 1909 that it was codified that a corporation could be an “Author”. And even if a corporation could claim copyright, under the first copyright laws of this country, Marvel would have lost any copyright claim on that early 1960s material about a third of a century ago.
- If Jack wanted this, he would have filed this case when he was alive. He couldn’t file this case, no. There are only certain times when one can reclaim the copyright. Jack died too early to do this himself.
I’m sure I’ll be adding to this message as new Internet conversations pop up. If you find anything that needs correction, post them as a comment here. Your comment may not show up immediately (I hand-sort things for spam), but I’ll see it and, if I think proper, address it in the post.
(Note: I did remove one note about the length of the copyright term where I realized that I may have misparsed some relevant dates. The copyright length for US material from 1963 is limited to 95 years under current law, regardless of the length of the creator’s life. It may have some effect on the length of these copyrights overseas, I don’t really know.)