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Discussion in 'Marvel Comics and Collectibles' started by Jeff Harris, Sep 20, 2009.
Doesn't that logic rule out Jack Kirby as a sole creator and owner?
I've wondered about that too! It could turn out that way.
Of course I don't know if a judge, after checking statutory law and previous case law, and looking at any evidence Marvel (or the Kirby heirs) will present regarding who originated which ideas about which characters, would see things with the same "logic" as a layman. But it could turn out that, in the eyes of the law, Kirby was "co-creator and co-owner" of the Fantastic Four and other Silver Age concepts (if he wasn't doing "work-for-hire" at the time). Instead of being "the original owner of all those characters, plain and simple," which seems to be what his family is currently claiming he was!
In fact, I mentioned that same possibility earlier in this thread! I suggested it could create a very interesting situation if a court decided that Jack Kirby had only been the "original owner" of fifty percent of the copyright on the FF, and that this fifty percent ownership was what Kirby's heirs could successfully reclaim in 2017 (56 years after the FF first appeared in print). With the other fifty percent presumably belonging to Marvel?
Of course, that's assuming that Stan Lee agrees he was doing work-for-hire with Marvel, and/or signed some sort of contract years ago in which he agreed to let them take over any copyright interests he had in Silver Age characters, forever and ever? Otherwise he or his heirs might -- for the sake of argument -- end up owning the other half of the copyrights on the FF in 1961, which could leave Marvel out in the cold? (That's pure speculation -- I have no idea what sort of contracts Stan ever signed with Marvel.)
Not nessecarily because the creative method used by Lee when collaborating with artists like Kirby and Ditko is completely different then how modern writers like Busiek an David work today.
These days writers basically make up the whole story of a comic themselves, characters, plots, settings, dialogue you name it. It's then presented to the artist in the form of a detailed script. At most the artist might design a new character's costume (with input from the writer) but for the most part it's the writer calling the shots. Of course there are exceptions but this is mostly the SOP in today's comic.
It was also a complete 180 from the way Lee did things in the sixties. Basically what would happen is that when creating a new comic, Lee would sit down with the artist and between them they would hammer out a rough outline of the comic's story including characters & plots.
The artist would then take the outline home with him and draw the actual comic, often altering the original story and adding new material as they saw fit. Frankly I'm not even sure they bothered to actually write out the outline or where simply operating from memory of their conversations with Lee.
This often resulted in the final product being vastly different from whatever Lee may originally have had in mind. For example, the Silver Surfer was never part of the original plan for the first Galactus story arc. Kirby threw him there when he drew the issue under the logic that such a god like being as Galactus should have a similarly powerful servant. And of course, Lee liked the Surfer so much that he turned him into a hero and made the character a fixture of the Marvel Universe.
Even if that's how it was done, then by the previous logic Kirby would STLL not be sole owner or creator and to claim as such is ridiculous.
Are they actually claiming that Kirby is the sole and only creator or are they just arguing on the basis of him being co-creator. At any rate Kirby is without a doubt at least partly responsible for the creation of most of Marvel's classic heroes and villains, even Marvel itself has never disputed that claim.
What is in dispute here is Jack's status as the original owner of these intellectual properties, which will depend on how the law interprets Jack's legal relationship with Marvel at the time.
A lot of people are partly responsible and credited for classic heroes and villains. So what?
If this is about monetary reparations, how do you come up with a number for that?
Jack is hardly the original owner if he was not the sole owner and creator of the ideas around these characters and collaborated with Stan Lee or even other writers and artists.
If Stan Lee came up with the characters and ideas than he is the original owner in my mind unless Stan abdicated ownership of certain characters or elements to Kirby. But then are the Kirby family going to get into who came up with FLAME ON or CLOBBERIN TIME?
I think you misunderstand, this isn't a lawsuit as the term is generally understood. The Kirby Kids aren't trying to get any actual money out of Marvel, they're looking for the intellectual property rights. Nor are they accusing Marvel of doing anything wrong to Jack.
Let's not split hairs here, Kirby was a huge contributor towards creating the Marvel universe as we know it to day, at least as much so as Stan Lee. Anyone who thinks otherwise is simply ignorant.
As I said before, Lee and Kirby created all these characters together and over half a century ago. It's going to be very difficult for anyone to establish who created what.
Btw, if Stan Lee where taking this action would you be okay with that?
Why do they want intellectual property rights for? It all comes down to money.
I'm not saying he isn't, but that doesn't make him the sole creator or owner.
Making the case of the Kirby's all the more erroneous.
Not a chance in the world would I be OK with it.
Why would Jack K do that to marvel or why would Marvel do that to jack K?
Thinking it over, I realized I don't know exactly what Kirby's heirs are claiming he originally owned. I've seen online copies of news stories which talk about them announcing their intent to terminate the old transfer of copyrights, and I've seen commentary online to the effect that the characters involved definitely include the FF and the original X-Men roster, among others. But I haven't seen copies of whatever paperwork their lawyer has been filing on their behalf. I don't know for certain if they are claiming that Jack Kirby was The Sole Owner, originally, of each of the FF, or do they phrase their claims in such a way as to leave open the possibility that he only owned "a percentage" of the original copyright? A fifty-fifty split, say?
As I suggested earlier, Kurt Busiek's comments about a request he got from Marvel seem to imply that Marvel (and probably Kurt himself) generally assume that the first writer and the first penciller to work on a new comic book character are probably the character's "co-creators." But I don't know just how Kirby's heirs feel about that idea as a general rule!
And as you've previously pointed out, most comic book writers of the last few decades have probably handled the creation of their stories, and any important new characters therein, differently from how Stan did back around the 1960s, when he might have a conversation with Kirby or Ditko and then say, "Okay, go home and draw a full story on that basis, and bring it back here, and I'll come up with some dialogue later!"
Let's be honest: even if they get the IP rights, they'll never be able to do anything with them due to the attendent Trademarks.
Let's be more honest: the days of ANYTHING going PD are over. Congress will pass another extension, and another and another and another...even if they don't, there are plenty of loopholes that allow rights holders to cheat their way into extensions.
Take the related area of patents: drug companies routinely insert some non-reactive or inert substance into their products and re-patent under the new formulation. (In comics, that would be the same as whenever a character develops a new power, or changes his costume.)
I'm not an expert on this subject; so don't flame me for this. But I thought that all artists sign contracts with the company for which they work at the time. And that contract says that all creations made for the company during the period of employment belong to said company. Sounds a little simple, but that's honestly how I thought it worked. Apparantly not...
There's 5 pages of discussion highlighting that wasn't always the case.
You're speaking in the present tense -- "all artists sign contracts," "that contract says," etc.
And I believe you're absolutely right about how it all works today. And you're even right if you assume it's been done that way for a long time. Over 30 years, I believe -- going back to somewhere around the late 1970s.
But from what I've read about this in recent months, it appears that back around the 1950s and 1960s, Marvel did not have its act together in getting the freelance talent to sign nice specific written contracts before Marvel would buy and publish their artwork in a new comic book. It simply didn't bother with such petty details as written contracts with the artists!
Don't ask me why not!
I get the strong impression that in the years when Jack Kirby was drawing the first appearances of such Silver Age characters as the Fantastic Four and the original X-Men roster, he would walk into Stan Lee's office and show him a stack of artwork for a new comic book story . . . and Stan would say, "That looks great, Jack! I'll have the bookkeeper give you a check!" . . . and Jack would take the check and deposit it in his bank on the way home . . . and nobody would bother to sign anything regarding who owned the artwork or the characters depicted therein! Jack would just leave it on Stan's desk and Stan would arrange to have it inked and colored and lettered and sent off to the printing plant!
Apparently the vast lack of documentary evidence of what sort of business relationship existed between Jack and Marvel Comics is at the heart of this dispute! Marvel insists Jack was working on a "work-for-hire" basis all the way, and thus Marvel itself owned the copyrights on any artwork (and characters) he drew for them, from the moment he drew it!
But they don't seem to have a written agreement to show that this is exactly what Jack Kirby thought the rules of the game were at the time!
The Kirby heirs look at it differently -- but they don't seem to have (as far as I know) a written agreement which proves that Jack and Stan Lee thought Jack was doing something other than "work-for-hire" at the time.
So, as I've said before, sooner or later a court of law will probably have to decide: "Okay, legally speaking, who gets the full benefit of the doubt in a tricky case where there is a vast lack of documentary evidence regarding who was supposed to be regarded as 'the original owner of the copyrights' in the stuff Mr. Kirby drew and sold to Marvel?"
I have no idea what the existing law of the land says (or said in the late 50s and early 60s) about determining such things when nothing was actually written down at the time! It should be interesting to see what happens!
(Did all that help you understand how this confusing argument has arisen in the first place? Or did you quietly doze off a few paragraphs ago? )
Thanks, that cleared a lot up - I guess they'll just let court decide, and maybe even find some legal documents to help (if there are any).
I guess I was right when I said I wasn't an expert on this subject - I am clearly far from being one.
P.S. Did not doze off, it was quite informative actually.
It is just said that stan and Jack's freindship have to part over money...
It's not really an issue of Stan and Jack's friendship being at stake. Lee hasn't been officially affiliated with Marvel for about a decade now, so this won't really effect him one way or another.
Steve Ditko and Stan Lee apparently hate and will never talk to each other, but in interviews Lee still compliments Ditko for being co-creator of Spider-man and doing great work on the character.
My understanding is that this is mostly one-way on Ditko's part. Ditko left Spider-Man suddenly, and hasn't gone back, and all the explanations I've seen boil down to extreme creative differences rather than personal enmity. Stan has made public statements that he still doesn't quite understand why Steve Ditko left and that he's open to a reconciliation, but Ditko will have none of it, to the point where he's refused money for past work and won't talk about Spider-Man for documentaries or DVD bonus material. The fact that at least one of these parties won't talk about it makes it kind of hard to say for sure what or why or who feels what. I love Stan, but I think he's every bit the huckster that he presents himself to be and can't necessarily be taken at face value all the time.
I don't necessarily agree with Ditko's point of view (apparently, one of his sticking points is that he felt Spidey should be in high school perpetually, making him the Archie Andrews of the superhero set), but I certainly have to respect the guy for staying consistent in his belief system even to his own significant financial detriment.
The popular theory for a very long time was that they had creative differences over the identity of the Green Goblin. Ditko himself recently debunked that, it was always going to be Osborn.
But I think a lot of it has to do with just how different Stan and Steve's politics were as well. Stan is a very liberal guy, Steve is an objectivist, which is as opposite as you can get, and that also may have affected the direction they wanted to take the character.