Bad assumptions about the Kirby situation

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. The Kirby heirs should have no rights, since they didn’t create the characters. And 20th Century Fox, Sony, and Disney created the characters?
  6. “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.
  7. 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?
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. (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.
  13. 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.)
  14. 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.
  15. 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.)

Published in: on September 21, 2009 at 8:41 pm  Comments (21)  

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  1. Nat,

    I am an attorney and it looks to me as though you have a strong grasp on the fundamentals of this matter.

    All the best, etc.,

    This comment is not legal advice.

  2. Why is it too early for the heirs to reclaim properties like “Challengers of the Unknown”? I thought Jack created that one.

  3. Whoops, you are right, I was thinking post-Marvel Kirby. Challengers should be in range.

    However, Challengers is certainly not as valuable as the key Marvel properties… and there have been signs that DC has been striking deals with some of their older creators and/or their estates. While I have not heard anything specific regarding Challengers, it would not surprise me if this had already been taken care of. Or there may have been very different paperwork from the very beginning (and for the Archie material, for that matter.)

  4. Nat

    Would you have to have had a copyright in the past to reclaim one today?

  5. To the best of my (NON-LAWYERLY) understanding, yes, you (or your late spouse, parent, or grandparent) would have to have had a copyright… but not in the manner that you may be thinking.
    Except in cases of work made for hire, the creator owns the copyright starting at the moment of creation, the moment the material is put into some concrete form… in this case, putting pencil to paper. Folks may be thinking that before the 1970s, copyright required publication with notice and registration, but that’s only for published items. You couldn’t sneak into John Steinbeck’s parlor, copy down his new novel, and publish it before he could get it in.
    So even if Wonderful Comics published the work of Jane Pencilgal, putting their copyright notice on the work and registering the copyright, unless it was WFH then Jane owned the copyright at some point. She effectively either sold or licensed it to Wonderful.

  6. Nat–I’ve been reading a lot of posts about the Kirby vs. D/M situation and your post is the only one I’ve come across that is to the point and accurate. The “Kirby Estate” is not suing anyone. The law only allows the heirs to reclaim the copyright and that is what the 4 Kirby heirs are doing as individuals. They are not sitting around trying to “screw” Marvel or DC. They are only doing what their father would have wanted them to do and that is to utilize the law to claim what could rightfully be theirs. As for Jack’s work-for-hire status, that is something the court will have to clear up. Jack always claimed he had a contract with Marvel, but it was never clear what kind it was. Was he an independent contractor or an employee? Not sure since he didn’t receive any employee benefits and he worked at home. As Jack once told me, “I wrote everything I drew”. ‘Nuff said.

  7. Nat,

    Good piece. (#5 is pretty much identical to a comment I made at that very depressing Robot 6 comments thread; you probably know the thread I’m talking about.)

    It’s really been weird to me to see fanboys circle the wagons around DC in the Superman case and Marvel in the wake of this story. I DO think there’s a strong argument to be made that copyrights should expire sooner and these characters should become public domain rather than go to the creators’ heirs, but I can’t wrap my head around the notion that faceless corporations are more deserving of these properties than the artists’ next of kin.

    I saw one particularly braindead post saying that Kirby would have wanted Marvel to keep the rights to his characters instead of his family, but I’m fairly confident the poster was trolling. At least, I really hope so.

    The Superman case is one of the most fascinating stories I’ve ever seen and I’ve watched it develop with rapt attention over the past few years. I’ve considered studying copyright law from time to time but fear a career in the field would be miserable.

  8. Thanks for the kind comments, guys.
    I actually haven’t read the Robot 6 thread… which just goes to show you the uniformity of the sadness out there.
    While I like the current copyright length, I certainly have some sympathy with the thought that copyright extension shouldn’t have been retroactive. But given that it was, I’m glad that it rewards people like the Kirbys, and not just the big corporations.
    The history of Superman-related rights is fascinating, particularly when you chase it down the paths of Captain Marvel and Marvelman. I suspect a strong book on copyright and trademark could be made using just material from that history.

  9. “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.”

    IN addition, DC played fair with Jack when it came to his own creations.
    For example, in 1984, when the SuperPowers toy line was created, DC didn’t legally have to pay Jack a cent for use of the 4th World characters.
    HOWEVER, they got around this by having Kirby “redesign” the 4th World characters for use in the toy line, thereby assuring him (and his estate) of royalties from ANY use in ANY SuperPowers-related projects!
    Not everybody in this business is an SoB! (just most of them!)

  10. Just a follow-up to the earlier post. (If you want to add it to the other, feel free.)
    Kirby’s “redesign” of the characters created “new” versions of them which DC then purchased the rights to under the revised contract system that went into effect in the early 80s.
    DC fully owns the rights, but Kirby’s estate is paid for ANY usage.
    NOTE: this doesn’t extend to previously-published 4th World material.
    THAT was covered by the contract Kirby signed to do the “Hunger Dogs” graphic novel, which established new royalty rates for future usage, reprints, and adaptations of the 4th World characters in their “original” form.
    Again, they didn’t HAVE to do ANY of this, but, to their credit, they DID!

  11. I always understood public domain to refer to printed material, not to actual ownership of characters. An old Captain America comic could fall into the public domain and anyone could publish it, but the character is owned by someone and can’t just be used anytime someone wants to.

    by this logic, couldn’t the name “the Beatles” fall into public doman at some point?

    • Characters are a mix of trademark and copyright, and both can elapse, although in different ways. We’ve already seen this happen in comics, with characters like Airboy or the Black Terror. (We’ve also seen some cases where someone claimed a dead trademark, so that while anyone can do stories about the character The Black Terror, they would now have trouble using the name The Black Terror in some contexts.) So it is possible that old issues of Captain America will be in the public domain, but the title won’t be… or vice versa.
      “The Beatles” is a trademark, and trademark basically lasts as long a you keep using it and protecting it. If the time comes that they stop doing business under that trademark — stop selling the albums and such — then yes, some other band could pop up and call themselves by that name (much as companies have grabbed up the title Captain Marvel after some other company stopped using it.)

  12. […] Nat Gertler corrects a few bad assumptions about the recent Kirby-heirs developments. […]

  13. Undertood – thanks for the clear explanation.

    So when the Kirby’s are reclaming the copyrights – by your comments above – they aren’t trying to get control of the characters – but get paid on the actual stories drawn by Jack — in other words royalties from Marvel Masterworks.

  14. No, not at all. Characters are covered in varying ways by both copyright and trademark. Getting hold of the copyrights would cover getting the rights to create derivative work — work using the designs and plot elements from those stories. So if the Kirbys were to get hold of copyrights to, say, The Fantastic Four, Marvel and their licensees couldn’t do new stories about Ben’n’Sue’n’Reed’n’Johnny without paying the Kirbys.
    What Marvel would still own, however, is the trademark to the title “The Fantastic Four”. They could use it in some ways without paying the Kirbys… say, if they were doing a series about all the numbers in numberland, and this flying number 4 that zooms in to save the day. And even if the Kirbys got all relevant copyrights to the Fantastic Four, they couldn’t publish their adventures in a comic book entitled The Fantastic Four unless they licensed that trademark from Marvel (much as DC published Shazam, because Marvel held a trademark on “Captain Marvel” at the time.)

  15. Chris Fama said…
    “I always understood public domain to refer to printed material, not to actual ownership of characters. An old Captain America comic could fall into the public domain and anyone could publish it, but the character is owned by someone and can’t just be used anytime someone wants to.”

    Look at the 1940s Fleischer Superman cartoons.
    While the trademark “Superman” is owned by DC, the copyright of the 1940s cartoons was never renewed when it came due, so they fell into public domain.
    ANYONE could put out a vhs or dvd of the cartoons (and MANY did), and one of the things Time-Warner did to stop most of them was hit anyone NOT using the 1940s Superman on their packaging (like a Curt Swan or Neal Adams Superman image or the current logo) for trademark and copyright infringement.
    If they used the poster art from the 1940s cartoons, the logo as seen in the cartoon, or actual cel art (which are all PD), they were ok. (It’s one reason you often see an “art taken from the actual cartoon” blurb on packaging for pd films since other trademark holders picked up on the strategy and also used it.)

    Nice article, Nat.

  16. I have now waded through that Robot 6 thread, and while there was much that I’ve seen elsewhere, there were one or two particularly odd stances that I’ve now reflected in the list.

  17. I’m sure that if the Kirbys (or the Kurtzbergs, since I’m guessing they didn’t change their names to reflect a pen name? Maybe they did.) get the rights to the characters, as they should, that they become a licensing house like Conan Properties.

    It seems likely that they will settle with Marvel and Disney and create some sort of licensing deal. Didn’t they willingly deal with Marvel to publish Jack Kirby’s Galactic Bounty Hunters? Doesn’t sound like they have disdain for the company as much as they just want to have ultimate control of the characters. I highly doubt that this would be the end of the Marvel Universe as we know it.

    Incidentally, what would happen to characters created by others as spin-offs of Kirby’s creations? For example, what would happen to She-Hulk? Or say, Havok, who is the brother of a Jack Kirby character?

  18. In what little dealings I’ve had with the Kirbys, they used the Kirby name; I don’t know whether they’ve embraced that name solely for comics situations.
    If they get full ownership, they may run some sort of licensing deal with Marvel, or they could simply sell Marvel the copyright. It seems more likely that the copyrights would be split, with Marvel and the Kirbys being co-owners… in which case, Marvel doesn’t officially have to negotiate with the Kirbys, they’ll have the right to use the copyrighted material, they’ll just have to pay the Kirbys some of the money that arises. (And, similarly, the Kirbys could use the material, they’d just have to pay Marvel.) But it would save a lot of stress if they were to come to some agreement; Marvel neither wants to get into fights about what portion of any business is derived from the Kirby material, nor do they want someone else using the material.
    I certainly assume they willingly dealt with Marvel for Galactic Bounty Hunters; I can’t imagine any reason that would make them do so involuntarily.
    I won’t claim to know what would happen to derivative characters; I can tell you that what little I know of settled cases doesn’t always match up with what my expectations would be. (I would think “brother of a character” would be a less-compelling link than “coming out of the X-Men concept”.)

  19. […] have been adding additional answers to my post about the Kirby/Marvel copyright situation. So if you care, and only read the original version, go and read the last few […]

  20. re:LUGH–Jack legally changed his name to Jack Kirby. All of his children (and grand-children) go by the last name Kirby.

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