Kirby's family loses key round

August 2, 2011 8:34 AM

Jack Kirby's family has lost what may the key round of its legal battle to win ownership of all Marvel Comics' most important characters. A judge has ruled Kirby always drew on a work-for-hire basis, and therefore never owned characters like Iron Man, The X-Men, The Fantastic Four, The Hulk, Thor and The Avengers in the first place. Fans of Marvel's most important founding artist are angry, and one big name comics artist proposes a boycott of Marvel comics and movies alike.
posted by Paul Slade (81 comments total)

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</BlackBolt>
posted by yerfatma at 8:38 AM on August 2, 2011 [5 favorites]

Oh, I've given up on Marvel/Disney a long time ago.

So, yes. Let's not participate in these particular expressions of culture any more. It's time to move on beyond teen-age power fantasies.
posted by clvrmnky at 8:38 AM on August 2, 2011 [5 favorites]

It's time to move on beyond teen-age power fantasies

But... that worked so long for the Rolling Stones!
posted by flapjax at midnite at 8:43 AM on August 2, 2011 [3 favorites]

i too have decided to boycott comic book superhero movies...they are boring.
posted by sexyrobot at 8:46 AM on August 2, 2011 [1 favorite]

As sad as this is, work-for-hire (whether by that term or not) much how commercial artists have worked for ages.
posted by Thorzdad at 8:46 AM on August 2, 2011

I strongly suspect it is not the tiny but vocal demographic of comic book fans that make shit tons of money for Marvel. Rather I suspect it is the shit tons of bored teenagers living in suburbia around the world that make money for these movies and there is no chance in hell they are going to boycott these movies.
posted by spicynuts at 8:47 AM on August 2, 2011

I agree, clvrmnky, I definitely think we should concentrate on adult power fantasies. Now, I assume you'll be buying my new comic Middle Management Man, right? The first 24 issues revolve around getting an MBA at the University of Phoenix and also an ulcer.
posted by griphus at 8:48 AM on August 2, 2011 [22 favorites]

When you take a steady check to reduce your risk and do work at someone else's behest, you end up also giving up your rights. This is hardly limited to comic book artists; for a semi-random example, software developers who work for a wage also don't own the copyright on their work.

I expect Marvel could have treated them better, but I also think that the system makes sense as it is, even if I've personally caught the bad end of it sometimes. I've also got paid when my work flopped; that's the upside.
posted by Bovine Love at 8:50 AM on August 2, 2011 [2 favorites]

I'd feel more strongly about this if Jack Kirby was alive.
posted by mazola at 8:51 AM on August 2, 2011 [30 favorites]

I'd feel more strongly about this if Jack Kirby was alive.

Yeah...if MeFi were to stay away from cognitive dissonance, there should be a flood in here any moment of comments like 'all of this shit should be in the public domain anyway because Jack Kirby is dead'.

We'll see.
posted by spicynuts at 8:53 AM on August 2, 2011 [12 favorites]

I feel very fortunate to work in an industry where employees get equity in the companies they work for. Most of the software I've written has been work for hire and of course the company owns it. But then in exchange I also get to own a tiny piece of the company. I wish equity ownership was more common in other industries. Particularly other creative crafts.
posted by Nelson at 8:59 AM on August 2, 2011

I keep trying to articulate thoughts on this, but all I've really got is: >=(
posted by traversionischaracter at 9:02 AM on August 2, 2011

Have to say I agree with the majority of comments so far. Too bad for the family, but:

1) They didn't have anything to do with creating these characters;

2) While Kirby did, he got paid for what he did do; and

3) There were also a lot more people over the years who had plenty to do with these characters being popular, long-lasting, and valuable.
posted by Curious Artificer at 9:07 AM on August 2, 2011 [10 favorites]

The case did not go to trial, but during the discovery phase, testimonies on both sides were collected in deposition. Testifying on behalf of Kirby were Silver Age Marvel artists Jim Steranko, Joe Sinnott and Dick Ayers and comics experts Mark Evanier and John Morrow. Lined up on Marvel/Disney’s side were Roy Thomas, John Romita Sr. and Larry Lieber,...and Stan Lee

As a comic book history nerd, I'd like to read those depositions.
posted by robocop is bleeding at 9:08 AM on August 2, 2011 [6 favorites]

He got paid. His family can get jobs and work for their own living.
posted by biffa at 9:13 AM on August 2, 2011 [5 favorites]

The piece rate for comic book artists and writers was pretty abysmal back in the day. Despite his other failings it seems like Jim Shooter back in the 80s as EIC at Marvel was part of the shift towards making artists seem like more of partner in the business.

That really doesn't help golden and silver age creators who have created massively valuable IP yet don't benefit from that financially.

Yes other artists and writers contributed to the success of Marvel but Kirby (and Lee) were responsible for many of the iconic creations of the Golden and Silver Age and it seems like a real negative to the industry that early creators really didn't enjoy the benefits of their creations.

I'm not a massive fan of the estate of an artist banking on a creator's right indefinitely but neither am I a particularly big fan of Disney and their shenanigans to indefinitely extend copyright into the far distant future.
posted by vuron at 9:20 AM on August 2, 2011 [2 favorites]

This is starting to look a lot like the Siegel & Shuster vs. DC Comics case from the 70's. Siegel & Shuster created Superman and then sold the rights for next to nada. DC was shamed into giving the creators at least a small pension and credit. And, considering how both men were still alive at the time and in rather dire financial shape, DC managed to avoid a withering blast of negative publicity. Both DC and Marvel look to have absolutely rock-solid legal cases. Kirby had worked in the comic's biz for years and was well aware of how the system operated. It will probably take some kind of public humiliation to get them to cough up anything. Considering how much the characters Kirby created or co-created are worth today, Marvel might just decide to hang their heads and cry all the way to the bank.
posted by TDavis at 9:25 AM on August 2, 2011

Lined up on Marvel/Disney’s side were Roy Thomas, John Romita Sr. and Larry Lieber,...and Stan Lee

I've always been fascinated by the shots Kirby took at Roy Thomas and Stan Lee in the New Gods books... I mean, Kirby himself never seemed like a vindictive guy, and in general the New Gods project is so forward-thinking and optimistic. And then you've got these savage, brutal, almost low-blow caricatures of Lee and Thomas (especially Thomas- I mean, god knows Stan Lee's public persona is ripe for making fun of, but there's no way to read "Houseroy" as anything but a personal cheap shot). There must have been just an amazing amount of anger boiling inside him at the marvel power structure...
posted by COBRA! at 9:26 AM on August 2, 2011 [1 favorite]

Alan Moore was right...
posted by mikelieman at 9:27 AM on August 2, 2011 [1 favorite]

As sad as this is, work-for-hire (whether by that term or not) much how commercial artists have worked for ages.

In the first place, work for hire has changed considerably over time; in the second place, it wasn't uniformly as this judgement suggests back in Kirby's day. Here's what noted comics artist Steve Bissette says on the subject in the FPP's excellent third link:

Everyone is being glib about work for hire. The legal assumption, mirrored by the public assumption, that work-for-hire per se means no benefits or royalties shared is one of the most troublesome aspects of this legal decision.

As Bill Stout noted in a couple of interviews in the past (and I will lay hands on at least one of them this week to cite and quote, unless Bill himself weighs in publicly on this), one of the most successful of all comics publishers of the 1950s-early 1960s, Dell, then Gold Key (if only for their Disney license titles, until the superhero craze overtook Gold Key’s sales), reportedly did pay royalties on some titles they published to creators like Russ Manning (Stout was citing royalties paid for Magnus: Robot Fighter).

Thus, even in the Silver Age, work-for-hire didn’t per se meant NO creator sharing of income or royalties paid.

As any pro who worked in comics post-1984 can attest, both DC (first to announce a royalty plan) then Marvel (quick to top DC’s) standardized both work-for-hire reprint fees and return-of-artwork (though Marvel wasn’t as progressive as DC in the latter dept, which I can also attest to from hard experience) and royalties in the mid-1980s.

The legal assumption, mirrored by the public assumption, that work-for-hire per se means no benefits or royalties shared is one of the most troublesome aspects of this legal decision.

The hostility in some reactions to the Kirby heirs is striking. It should be noted that if Kirby had been copyright holder of the body of his creative works, or at least received a royalty, he would have been able to take proper financial advantage of his output and to pass along the benefits from it to his heirs as part of his estate. He was of course stuck in an ambiguous rights state regarding his work and was never able to do so, even as Marvel exploited every revenue stream they could from them. Awarding his heirs the copyright Kirby never received is no less fair than setting damages in a breach of contract case.

The fact that Kirby never had a written contract from 1958 to 1963, when he co-created characters who are headlining multi-million-dollar motion pictures today, is shockingly unprofessional, even by the standards of the day. Incidentally, those movies include Captain America*, Thor, X-Men, and Iron Man, as well as the upcoming Avengers - all of which were co-created by Kirby during his contract-less period (Kirby brought his WWII-era creation Capt. America to Marvel at this time). No wonder Bissette's advocating a boycott of them.
posted by Doktor Zed at 9:30 AM on August 2, 2011 [12 favorites]

Another instance where fairness and the requirements of the law don't align. Another lawsuit where I don't have sympathy for either party.

The one slighted was Jack Kirby, and he's dead. I'd be interested to know how he thought he was treated... but there'd be no remedy for that in any case.
posted by Capt. Renault at 9:32 AM on August 2, 2011 [2 favorites]

I may be talking out of my arse, here, but I get a distinct undercurrent in this whole thing that has less to do with the surface issue of Kirby's descendants getting ownership of some of Marvel's flagship characters, than it does with a dissatisfaction on the part of a lot of die-hard fans with the big-business treatment of beloved characters.

There seems to be a lot of dissatisfaction in a lot of comics forums with what are perceived as attention and money grabs on the part of the big publishers. Variant covers, universe-changing events, strange costume changes, introduction of unliked new characters or killing off of favourites, etc.

I get why the publishers do it, I do. They have to make money somehow, right? But I think they give off the distinct impression that they see the characters as resources to be exploited, rather than as characters with stories that resonate with a lot of people. It seems to be less about telling those stories in the most compelling way, and more about selling the most comics. So fans come away with the impression that the big two are prone to taking cheap shots.

Kirby, on the other hand, seems to convey in his art that deep connection with the characters, with their stories, with the emotions they're portraying or the trials they are undergoing. He's always had really compelling art, that leaves you with the impression that he really "got" the characters, and wasn't just skritching with a pencil or slopping ink for a living. So fans rally to his side in a battle in defence of their favourite characters and stories, against a monolith that doesn't appear to care.

If that makes any sense.
posted by LN at 9:35 AM on August 2, 2011 [2 favorites]

'all of this shit should be in the public domain anyway because Jack Kirby is dead'

Although I think our lengthy extensions of copyright are bad and our retroactive extensions of copyright are unjustifiable, I suspect that a shorter copyright term tied to artists' death might have even worse unintended consequences. At least Hollywood Accounting merelysteals creators' royalties...
posted by roystgnr at 9:40 AM on August 2, 2011 [2 favorites]

if MeFi were to stay away from cognitive dissonance, there should be a flood in here any moment of comments like 'all of this shit should be in the public domain anyway because Jack Kirby is dead'.

MetaFilter is not a monolith. There are people here with different views on many subjects and it's incorrect to expect some sort of consistency from views expressed by different people.

That said, all of the original works should be in the public domain anyway because they were created at least 47 years ago (nothing to do with Kirby's death).
posted by grouse at 9:40 AM on August 2, 2011 [4 favorites]

clvrmnky:

So, yes. Let's not participate in these particular expressions of culture any more. It's time to move on beyond teen-age power fantasies.

Man, I don't know about you guys, but I am so tired of discussing teen power fantasies like they have any relevance any more.

I think it would be cool if you stopped this, personally. I get what you're saying, I don't entirely disagree with it, but I think popping into comic threads to tell people they shouldn't be interested in them is kind of a weird hobby.
posted by neuromodulator at 9:47 AM on August 2, 2011 [18 favorites]

Another Kavalier and Klay post?
posted by freebird at 9:50 AM on August 2, 2011

He got paid

Well, you're thinking is neatly simplistic, I'll give you that.

But things are rarely so black and white, are they? He "got paid", yes, but was it commensurate with the value his work generated? Was it fair pay? Should he (or in this case, his heirs) be more justly compensated? That's what we're talking about here. Apparently you think it was fair, and nothing more need be said about it. I would personally disagree, but we're all entitled to our opinions, of course.

His family can get jobs and work for their own living.

I can only imagine, based on this statement, that you are 100% against the idea of inheritance of any kind? if so, then, all well and good. You're being true to your philosophy and beliefs when you make a statement like that. But inheritance is a legal fact and an established practice in modern societies like the US, and Jack Kirby's heirs are within their rights to legally seek better compensation for Kirby's work. Why should the company have it all? When you say his family can "get jobs and work for their own living", why wouldn't this also apply to the company? Why, by the same token, shouldn't you be saying to them: "Make new characters, stop using Kirby's! Stop selling reprints of his work!" When big (as in, HUGE) money is being made off dad's work, why shouldn't the family see a taste of it? Does Stan Lee/Marvel have the only moral and legal right to it?

And, by the way, I reckon most of the family members do indeed have jobs and do indeed work for their living. Casting them as some kind of freeloaders is almost surely inaccurate and over simplistic.
posted by flapjax at midnite at 9:51 AM on August 2, 2011 [7 favorites]

Well, you're thinking...

How embarrassing.
posted by flapjax at midnite at 9:53 AM on August 2, 2011

'all of this shit should be in the public domain anyway because Jack Kirby is dead'

Although I think our lengthy extensions of copyright are bad and our retroactive extensions of copyright are unjustifiable, I suspect that a shorter copyright term tied to artists' death might have even worse unintended consequences. At least Hollywood Accounting merelysteals creators' royalties...

Instead we would have a huge competition between various production companies, all with their own version.

Actually this already happens with DC and Marvel. But not as cleanly.
posted by psycho-alchemy at 9:54 AM on August 2, 2011

Another Kavalier and Klay post?
posted by freebird

Nah, Joe Kavalier actually wound up a millionaire and bought Radio Comics. Kirby didn't have the luxury of being written by a guy who loved his characters so much he had to give them happy endings.


(not that I'm complaining about the ending of Kav & Klay, mind you, I just think Chabon's love for the characters really oozes out of every page)
posted by COBRA! at 9:55 AM on August 2, 2011

roystgnr:...I suspect that a shorter copyright term tied to artists' death might have even worse unintended consequences.

But I bet the medical benefits for the artists sure would be great!!
posted by Bovine Love at 10:09 AM on August 2, 2011

But I bet the medical benefits for the artists sure would be great!!

So, uh, Stan, we need you to get into this stasis chamber and... uh... *shove*
posted by robocop is bleeding at 10:11 AM on August 2, 2011

Testifying on behalf of Kirby were Silver Age Marvel artists Jim Steranko, Joe Sinnott and Dick Ayers and comics experts Mark Evanier and John Morrow. Lined up on Marvel/Disney’s side were Roy Thomas, John Romita Sr. and Larry Lieber,...and Stan Lee

One aspect of litigation that is very easy for lawyers and non-lawyers alike to forget is that just because someone is called as a witness by testify "on behalf" of one party does not even remotely mean that the witness' testimony will actually benefit that party.
posted by The World Famous at 10:12 AM on August 2, 2011

Relevant story: Jack Kirby's art "disappears"...

I wish I could find the original link of the story behind Marvel and Kirby's various lawsuits, but this one will have to suffice.
posted by gern at 10:16 AM on August 2, 2011

Kirby owned the rights to Captain Victory and The Galactic Rangers, plus Bombast, Night Glider, Satan's Six, Teen Agents and Silver Star... I guess those aren't exactly filling his descendants' coffers.
posted by Fuzzy Monster at 10:16 AM on August 2, 2011

I read about this. The man signed and reiterated on several occasions a document that states that he does not have ownership of these characters. Unless he had a gun to his head, I don't see what the problem is here.
posted by Malice at 10:35 AM on August 2, 2011 [3 favorites]

The fact that Kirby never had a written contract from 1958 to 1963, when he co-created characters who are headlining multi-million-dollar motion pictures today, is shockingly unprofessional, even by the standards of the day. Incidentally, those movies include Captain America*, Thor, X-Men, and Iron Man, as well as the upcoming Avengers - all of which were co-created by Kirby during his contract-less period (Kirby brought his WWII-era creation Capt. America to Marvel at this time). No wonder Bissette's advocating a boycott of them.

Interestingly enough, Captain America's co-creator, Joe Simon, has a pretty good relationship with Marvel, in spite of lawsuits. I suspect part of the difference in the cases is this:

"On the strength of the Siegel ruling, the Kirbys entered into negotiations with Marvel on the expectation that Marvel might be willing to reach a settlement rather than risk losing huge chunks of its cash-cow copyrights."

Marvel settled with Simon, but he never went for the whole copyright, which it looks like the Kirby estate did, and which would be pretty simple to disprove. It sucks, but to use a metaphor from criminal law, they might have gotten manslaughter to stick, but they couldn't prove murder I, so the guy walks.

Add the fact that the Kirby estate was also looking for the rights to Spider-Man with this, and it looks more and more like they were just shotgunning it, hoping for a settlement.

Actual entertainment law details (from the beginning of the case) here.
posted by Amanojaku at 10:37 AM on August 2, 2011 [1 favorite]

But things are rarely so black and white, are they? He "got paid", yes, but was it commensurate with the value his work generated? Was it fair pay?

How is that relevant? He agreed to create some characters, for a price. He kept up his end. Marvel kept up theirs. They surely didn't treat him all that well, but he got what he agreed to for creating those characters you know, and cashed those checks. He also got paid the same amount for characters no one knows, and cashed those checks as well.

Now some other people who happen to share some of his genetic code look at those Kirby-originated characters that Marvel has successfully turned into mega-franchises, and says "oh, Dad should have asked for more. He didn't, but, you know, so? That should be mine now."

Kirby got screwed in the emotional sense, but not in the legal sense, or even really the moral sense. We all know who he is and what he did. I'm sorry he wasn't better at making money off it, but that's not resolved by Marvel giving money to random relatives.
posted by John Kenneth Fisher at 10:37 AM on August 2, 2011 [6 favorites]

But things are rarely so black and white, are they? He "got paid", yes, but was it commensurate with the value his work generated? Was it fair pay? Should he (or in this case, his heirs) be more justly compensated? That's what we're talking about here. Apparently you think it was fair, and nothing more need be said about it. I would personally disagree, but we're all entitled to our opinions, of course.

Fairness doesn't enter into it. When you sell something, you don't own it anymore. You sell your soul to the Devil, the Devil owns your soul, and that's that.

If you sell a car, say, and someone refurbishes it and sells it for ten times what they paid, you can't expect to get a cut of the profit.
posted by Sys Rq at 10:38 AM on August 2, 2011 [4 favorites]

I read about this. The man signed and reiterated on several occasions a document that states that he does not have ownership of these characters. Unless he had a gun to his head, I don't see what the problem is here.

As a graphic designer, I have signed a document like that at every job I've ever held. I do not own any of the art I created for any of those companies.

My family cannot go back and sue those companies for the rights to that artwork.

I'm a comics fan, but a lot of this seems like letting nostalgia for Kirby interfere with the facts at hand.
posted by Fleebnork at 10:41 AM on August 2, 2011 [3 favorites]

I don't think people understand quite how one-sided these financial arrangements were in regards to creators. Having work-for-hire contracts printed on the back of artists checks so that if they wanted to get paid for their work they were signing over any creator rights, etc. That seems incredibly exploitative.

Just because an agreement was legally acceptable does not mean that Timely/Marvel weren't engaging in exploitation. Combined with some of their other less desirable behavior towards Kirby and it's not hard to feel sympathy with the artist.

Considering the primary value of Marvel is in the IP that Kirby and other creators have established I can't help but be disappointed in this result even though it seemed like the most likely alternative.
posted by vuron at 10:55 AM on August 2, 2011 [3 favorites]

I don't think people understand quite how one-sided these financial arrangements were in regards to creators.

Well I think most people here work or have worked for a living, and I am willing to bet that nearly all of them could empathise with having been exploited now or previously. You do the work for the money you are offered, try and negotiate for a better deal or walk away.
posted by biffa at 11:03 AM on August 2, 2011

Company: Create some character designs for me.
Man: Yes, I will, for this price.
Company: Okay, but we want full rights. All you're doing is designing them.
Man: Yes, that's fine. But I want this much money.
Company: Deal.

Man makes characters, gives them to company, receives agreed upon compensation. Transaction completed.

Company uses designs and hires other artists.

/end

I still don't see the problem.
posted by Malice at 11:11 AM on August 2, 2011 [1 favorite]

The comics industry today is just as murky- but at least you know that walking into it.

If you work for the big two- you get paid a lot better then if you work for anyone else- the difference is pretty insane- we're talking hundreds of dollars a page verses fifty or even twenty bucks a page for smaller companies (... not naming names but they aren't rinkydink fly by night groups). No one offers insurance except Marvel and DC, and they only offer insurance when you are big enough to gain an exclusive contract.

There are virtually no royalties paid now (very few exceptions).

Many smaller publishing companies even require the creators to sign over media rights to their books, while calling them "creator owned."

AND (even though no one likes to talk about it) piracy is making it worse- as the publishers suffer, they are cutting back the last of the royalty agreements and everything. It's hard to be a creator.

and while i do actually feel for the family... i don't know that it's actually unfair.
posted by Blisterlips at 11:19 AM on August 2, 2011

I suspect that, at the time, if Marvel had offered Kirby a small advance and royalties versus page rate, he would have taken page rate. Comics in the '60s were not yet the cultural phenomenon they have become and sales were nothing like what they became in the 80's and 90's. Comics in the '60's were a commodity business with very thin margins, no one was getting rich making comics. So why would Kirby expect his stuff to be any different? He wasn't a household name in the 60's.
Also, I think boycotting Marvel at this point would be more damaging to the people making comics there than to the suits who own the properties. Jobs in comics are few and far between.
posted by doctor_negative at 11:28 AM on August 2, 2011 [1 favorite]

Historically speaking artists like John Romita Sr. and Don Heck were getting paid somewhere between $20 - $40 a page back in the 50s and 60s. I think Kirby himself reported a high point of maybe $60 a page working for DC and Marvel back in the day.

It really wasn't until the 80s and the threat of legal action that pay rates really increased and even then it's not great outside of a handful of really heavy hitters in the industry.

Sales of the core titles Kirby would've been working on in 1967 (Avengers, Thor, FF, Tales to Astonish, X-men) were all over 260,000 issues a month. The speculator driven period of 1992 was merely a blip on a general downward curve in the industry since that point.

Today comic books themselves generate incredibly low circulation numbers and the vast majority of the value is contained within the character designs themselves and their value in relation to merchandising and other media (movies, games, etc).

Perhaps Kirby (or his family) doesn't deserve any of those rewards but I'm not sure a return of $20-$60 a page is fair compensation for the work he and others did over the years.
posted by vuron at 11:52 AM on August 2, 2011 [1 favorite]

Can we just cut copyright back to 14 years or less? Thanks!
posted by jeffburdges at 12:19 PM on August 2, 2011 [2 favorites]

cutting copyright to 14 years? I'm not sure what you even mean by that. Like everything should go into public domain fourteen years after it gets published? So if I wanted to make a big budget movie based on Stephen King's the Stand (1978) I shouldn't have to pay Stephen King a dime?

This whole thing is complicated- especially because big companies have basically the same rights of ownership as individuals when it comes to creative properties.

Copyrights and creative property ownship is all very touchy. Imagin being a cartoonist (or a writer or whatever). There are no pensions. There is no 401k. You stop being physically able to work by the time you're in your eighties- and you still have a spouse and maybe you want to be able to provide a little for your grandkids. If you do everything right, read every contract, keep ownership of everyone of your creations- it would be horrible to lose it the second you croak.

By the way- this is a charity that provides emergancy help for creators (golden age to now) who end up on hard times.
posted by Blisterlips at 12:44 PM on August 2, 2011 [1 favorite]

If you do everything right, read every contract, keep ownership of everyone of your creations- it would be horrible to lose it the second you croak

Why? Or, perhaps more precisely, why should the cartoonist enjoy a privilege that a self-employed plumber does not? Those who do not get special protection for their work stop getting paid the minute they stop working. If they do not have an employer (they are self employed or the like), they either have form a business and make themselves an employee, or live with a cessation of income.

I'm pretty sympathetic to copyright (I have relied on it to make a living), and I like that it provides our society with a variety of creative works (I read a lot and watch plenty of movies), I don't see it as some inherent right to continue making an income if your not working. It isn't a privilege automatically extended to other fields.
posted by Bovine Love at 1:03 PM on August 2, 2011 [1 favorite]

So if I wanted to make a big budget movie based on Stephen King's the Stand (1978) I shouldn't have to pay Stephen King a dime?

If you wanted to make medicine, for things out of patent, you don't have to pay Eli Lilly a dime, either.

Personally, I think copyright should end on the author's death (if their death is deemed suspicious, it goes to death +25 years), and a live human being must be assigned as the copyright holder for all items.

But if copyrights were limited to the same term patents were, fine. I'd be happy to see The Stand in the public domain. As it stands, if King dies today, The Stand wouldn't be come public domain until the century is nearly out. That's not right.

If I make a song that becomes famous, my kids can inherit the money I've made in my lifetime. My grandkids can inherit THEIR money if my kids invest wisely. Otherwise, they can get a job and make their own damn music.

Yeah, Kirby's kids can get their own jobs, but by the same token, all the characters he created should be in the public domain now anyway.
posted by chimaera at 1:31 PM on August 2, 2011 [4 favorites]

Cutting copyright to 14 years? I'm not sure what you even mean by that. Like everything should go into public domain fourteen years after it gets published? So if I wanted to make a big budget movie based on Stephen King's the Stand (1978) I shouldn't have to pay Stephen King a dime?

Yes. Exactly. Let a thousand Flaggs fly.

Excelsior!
posted by erniepan at 1:35 PM on August 2, 2011 [4 favorites]

As it stands, if King dies today, The Stand wouldn't be come public domain until the century is nearly out. That's not right.
Must be all that lobbying King did to protect the rights in perpetuity because he's an ageless corporate entity.

Superman is supposed to wind up in the public domain in about 2013. Want to take bets whether it will? I suspect it isn't Seigel and Shuster's kids trying to keep the copyright lid on it.

Fairness doesn't enter into it. When you sell something, you don't own it anymore. You sell your soul to the Devil, the Devil owns your soul, and that's that.

Droit Moral. If someone buys a Picasso, that doesn't mean they should be able to scribble his name out and/or put their own on it and sell it as their work.

If Kirby sold all rights to all his creations, including stuff he produced at home, shouldn't his children belong to Marvel? At least the ones conceived while he was working at Marvel.

His family can get jobs and work for their own living

It'd be nice to see someone in the entertainment industry work for a living too.
Milking 50 years of groundwork, leeching off creator talent and marketing to a vast pre-established fanbase, yeah that there's real work.

I'd feel more strongly about this if Jack Kirby was alive.
You'll be glad to know they screwed him as much as possible when he was alive too.

Company: Create some character designs for me.
Man: Yes, I will. Here is "Captain America." I want 15 percent of the profits from the feature as well as salaried positions
Company: Uh, sure, sure....a ..."percentage." Okay.
*Million copies sold*
Man: Hello, where is my money?
Company: We had to spend money for uh, company stuff, which was levied against your title alone for some reason. This decreases your "percentage."
Man: Well that sucks I'm leaving.
Government: You are drafted.
Man: Okay. *fights*
Man: Now I need money, I guess I have to work for you again.
Company: Okay, we don't need to formalize this too much, because comics are worthless.
Man: Okay. Here are a huge number of creations that will make gigantic amounts of money.
*years pass*
Company: Oh, we're making money now. It's probably nothing to do with you. On a completely different topic, uh, we want total control of all of your work forever.
Man: Well, let's table that for now because I am protected for 28 years from the date of publication for my creations, and for another 28 years if I renew, under the 1909 copyright act. And we really did not define what "work for hire" entails for...
Government: Here's the brand new 1978 copyright act!
Company: Sign these papers please. They define "work for hire" and give us all the rights.
Man: I don't think so.
Company: Then we fight you in court. Also you don't get your original drawings back.
Man: How are those at all yours legally?
Company: We have them. They're ours.
Man: You can't sell them.
Company: Neither can you. Because we have them. You don't.
Man: But they're only worth money because I made them.
Company: Even if we gave them back to you, you can't sell them because they're all ours.
Man: What if I just wanted to show them in public for a fee?
Company: You can't. Also my daughter wants to draw mustaches on some of them as is our right under contract because they're all ours in every way.
Man: Well anyway this is only 88-odd pages, I produced more than 8,000 pages of art over those decades. What happened to that huge amount of art?
Company: It got lost.
Man: Lost?
Company: In storage. Or something. Fire. Or flood. Burglars probably. Plus you give up all rights to them anyway once you sign for these. Check out the bad guy 'stache on Galactus!
Man: Jeez, I'm out of money for court and I'm tired of fighting. It's just not worth all this.
Family: Hey, it looks like you're screwing our dad. We're going to sue you.
Company: Get a job you hippies!

Company films characters, gives money to government, receives agreed upon thousand year extension of copyright law. Transaction completed.

Company uses law and screws other artists.
/end

Preventing artists from sharing in the success of their creations and corporate ownership keeping creations out of the public domain is all about, what, spurring innovation?

Re: the "Jack Kirby's art "disappears" link.
Funny thing about Reubens, one of his paintings sold for $70 million recently yeah. But he was knighted (twice) and lived in Elewijt Castle at the time of his death being pursued by patrons competing to hire him by shoving more and more money at him. Had tons of students and his own studio which produced notable work.

Things seem to have actually gotten worse.
posted by Smedleyman at 2:18 PM on August 2, 2011 [10 favorites]

"Droit Moral. If someone buys a Picasso, that doesn't mean they should be able to scribble his name out and/or put their own on it and sell it as their work."

If someone buys a De Koonig they can erase it and sell it as a Rasuchenberg.
posted by klangklangston at 2:48 PM on August 2, 2011

Spiderman? Why the hell do Kirby's kids think they should include Spiderman in this? That makes this sound like a fishing expedition rather than righting an ancient wrong.
posted by Ber at 3:03 PM on August 2, 2011

For every Professor X, or Captain America or Ant-Man he co-created, Kirby created a hundred, or a thousand characters of little to no import who will never be used again. In hindsight, was he underpaid for Cap? Probably. In hindsight, was he overpaid for Lifter, or Kingo Sunen, or Kiber the Cruel? Probably.

For all Marvel knew, the X-Men could have been a bust -- for years, in fact, they were Marvel's lowest-selling title. But that's both the benefit and drawback of work-for-hire -- you get paid whether or not the buyer makes any money from it.

The fact that Marvel did make huge money from a select few of Kirby's creations doesn't mean they have some kind of ethical obligation to pay off his estate.
posted by ten pounds of inedita at 3:22 PM on August 2, 2011 [3 favorites]

I think King will let you adapt any of his short stories for $1.
Kirby's work leaps off the page like a beacon, a dynamic dynamo of life and light. It makes me angry to think of him being uncredited and his heirs underpaid.
posted by Lovecraft In Brooklyn at 4:08 PM on August 2, 2011

Remember when you were a kid, and a comic book was an awesome way to spend a couple of bucks? And you'd read it and read it and throw it in a box with all the others and every now and then you'd take the box out and pile all the comics on the floor and look through at all those sweet covers, and read a few pages of a few of your favourite stories? And then you'd throw them all back in the box and think "Yeah, Rogue [Trooper] really shot the hell outta that jerk!" And you'd go around and pretend like you were Rogue Trooper for a while, and create more of his adventures in your head, up a tree and with nothing but a pink plastic water pistol? And you were excited for the next issue and already worrying about how you'd pay for it it?

And see how now you're an adult, and comics have not only lost their magic, but they're like lining up from your monthly dose of chemotherapy? You spend most of the time sick and scared and worried about what the fuck Morrison is going to do next or how the hell Waid is going to pad the fucking thing this month and how many times Kirkman is going to have his characters say "Are you okay?" "Yeah, I'm okay!" for pages and pages at a time and it's just a mechanical exercise, you throw down the plastic and walk out of the store with the X number of books that you decided to commit to or have always been loyal to and you take them home and you read them with all the passion of a bowel movement because this isn't magic any more, this is a business, this is the publisher stretching it and stretching it as far as it will go because it makes them money, and this is you reading the fucking thing for as long as you can stand because you are desperate, literally desperate for one little taste of that magic that gave you such joy when you were a kid.

Remember when crossovers were fantastic because they meant that your favourite character would pop up in another character's book, thereby confirming that you made the right choice all along, that [Noun]-[Person] was truly the awesomest superhero because there he/she is, tearing shit up alongside that other character you always thought was a twat. And you were like "Huh, maybe this other character isn't so bad after all. Maybe I'll check it out next month!"

And notice how crossovers are now just standard operating procedure. As soon as one ends another one begins, even more cataclysmic and universe-changing than the last, but it doesn't feel sincere any more (not that it ever was, I guess). It's not "Oh, we heard you like Batman so we put him in Action Comics and you should check it out because it's a new context and a new writer and a new artist and even the letters page is different and interesting and you should have a look and see what you think". It's "Fuck you, if you don't buy every single title we shit out for the next four months you'll have no idea about anything ever".

I went through a spasm of comic book rediscovery a few months ago. Bought four longboxes worth of back issues (80s-90s stuff) and a shelf worth of trades. And then I read a bunch of recent books - Incorruptible, Irredeemable, The Walking Dead, even Knight & Squire for fuck's sakes (and what a horrendous piece of incomprehensible garbage that was) - and I'm like, what the fuck am I doing? What is this shit? This isn't comics, this is a fucking shareholders meeting that says "We need to keep this ball rolling for fifty more issues, even if nothing is happening." And, y'know, of course that was obvious all along, I knew that's what it would be like and it's my own stupid fault for bothering to try, but I love comics, I want them to survive into a long and happy future, but the whole industry at the moment is just injecting bullshit at high speed into an ever-narrowing artery of spare time and disposable income and the body is going to pull the needle and they're just going to be spraying their bullshit into the void until they die as husks.

Back to my Nemesis The Warlock omnibuses.
posted by tumid dahlia at 4:31 PM on August 2, 2011 [5 favorites]

I went through a spasm of comic book rediscovery a few months ago. Bought four longboxes worth of back issues (80s-90s stuff) and a shelf worth of trades. And then I read a bunch of recent books - Incorruptible, Irredeemable, The Walking Dead, even Knight & Squire for fuck's sakes (and what a horrendous piece of incomprehensible garbage that was) - and I'm like, what the fuck am I doing? What is this shit? This isn't comics, this is a fucking shareholders meeting that says "We need to keep this ball rolling for fifty more issues, even if nothing is happening." And, y'know, of course that was obvious all along, I knew that's what it would be like and it's my own stupid fault for bothering to try, but I love comics, I want them to survive into a long and happy future, but the whole industry at the moment is just injecting bullshit at high speed into an ever-narrowing artery of spare time and disposable income and the body is going to pull the needle and they're just going to be spraying their bullshit into the void until they die as husks.

I don't read many comics anymore, but the last one I read was some of Jack Kirby's 4th World stuff. Try reading that without having a massive grin.
posted by Lovecraft In Brooklyn at 4:37 PM on August 2, 2011

Make *no* mistake, Jack Kirby did not create the X-Men as we know them. Chris Claremont and John Byrne did. While he might not have gotten 'fair' pay (in retrospect, mind you) for the work done on other titles - giving him more than a tiny fraction of credit for the X-Men is absurd.

In re: Comic Books being adolescent power fantasies - bleh so what. If you want to engage in real criticism, talk about their banality, their lack of internal consistency, their absurd dialogue - really anything else.

I read comics until Sandman landed - and it ruined comics for me. I hit the end of 'A Season of Mists' and concluded about the comic industry - 'you could've been writing stories like this all along and instead you're crapping out Fantastic Four books?'

Marvel (and other superhero books) didn't get another dollar from me until they start making movies.
posted by Fuka at 5:07 PM on August 2, 2011 [2 favorites]

*started (Merlot is a villain)
posted by Fuka at 5:08 PM on August 2, 2011

Chris Claremont and John Byrne did

How about Len Wein and Dave Cockrum?
posted by Chuckles at 5:43 PM on August 2, 2011

I like Claremont and Byrne and I do think they were largely responsible for taking a series that had lapsed into reprints and making it he best seller for Marvel for an extended time period. Byrne has turned into a crank and Claremont hasn't produced anything remotely decent in decades but yes X-men as we currently know it today is largely the result of their work.

Both have done okay in the industry largely as a result of the efforts of various creators to exert more control over their work and creations. They enjoyed better rates, have more control over the disposition of their original art, etc. I'm sure that they'd like a cut of gross for the X-men franchise as well.

It just feels that if the value of a property is essentially tied to the strength of artistic teams then it makes sense for a portion of the profits to be enjoyed by those same teams. Maybe 1% of gross revenues from movie licensing and merchandising should be paid in the form of insurance premiums for creators as well as royalty checks. I know from a legal standpoint Marvel Disney doesn't have to be forthcoming but in the interest of equity it seems like trying to compensate previous employees for the prior exploitative contracts is good PR.
posted by vuron at 7:42 PM on August 2, 2011

griphus, your examples of "adult power fantasies" were simply shifted teen fantasies.

It is the whole notion of super-heroism, in any form, that has become stale in the post-silver-age comics era. Just because comic heroes had a bit of blip because the last of the hard-core collectors came of age doesn't mean these aren't tired, hoary old stories.

I mean, shit. "Scott Pilgrim vs. The World" pretty much put a stake through that heart.

Marvel/Disney are stuck doing re-hashes of ancient hero stories seen through the lens of late 20th century mores. They can't go any place with these properties that isn't going to be lame, like Blondie hacking Facebook punchlines onto old jokes, or completely out of its own time.

Maybe they can do a Marvel Universe/Muppet Babies cross-over.
posted by clvrmnky at 8:24 PM on August 2, 2011

As a comic book history nerd, I'd like to read those depositions.

You can't see the depositions but you can see the filings for the case on the Southern District of New York's PACER system. Note: requires (free) PACER login and each document costs 8 cents per page. I just read Steranko's declaration (for 56 cents) and didn't see anything particularly interesting.

Alternatively, some of the documents are available for free on RECAP.
posted by jedicus at 9:11 PM on August 2, 2011

Stan Lee v. Marvel actually uses the phrase "Hollywood Accounting."
posted by Smedleyman at 9:18 PM on August 2, 2011

It is the whole notion of super-heroism, in any form, that has become stale in the post-silver-age comics era. Just because comic heroes had a bit of blip because the last of the hard-core collectors came of age doesn't mean these aren't tired, hoary old stories.

I mean, shit. "Scott Pilgrim vs. The World" pretty much put a stake through that heart.

How so?
posted by Lovecraft In Brooklyn at 9:54 PM on August 2, 2011

Yeah, that Scott Pilgrim point seems like total nonsense. Scott Pilgrim is my favorite movie from last year, but all it put a stake through the heart of was the idea that spending a shitload of money on an adaptation of an indie comic was economically wise. That doesn't mean superhero movies are dead; if anything, it means the studios are more likely to narrow their focus to adaptations of comics that feature characters people have been familiar with for decades.

W/r/t whether Kirby's heirs are deserving of anything, I think that's kind of a non-point, too. We aren't talking about people generations removed from an inventor they never met. These are the man's children and grandchildren, and just about no one in the real world is going to argue that a person's direct descendants do not stand to inherit their wealth. Even IF you are willing to suspend all knowledge of the way human history has worked since the dawn of civilization itself, surely you must agree that if someone must profit from the exploitation of the man's work -- that is to say, if the work has not instantly entered the public domain, which it has not (and, now belonging to Disney, in all likelihood never will) -- the morally correct beneficiary is the family, and not some corporate octopus that had nothing whatsoever to do with the work's creation. Literally nothing -- one cannot even argue that this company in some way facilitated the conditions that allowed Kirby to create his art, as the company that exists today is that company in name alone.
posted by kittens for breakfast at 8:09 PM on August 3, 2011 [1 favorite]

The argument is whether or not it is his wealth.

The corporate octopus paid him. Those of us in the "real world" consider that considerable facilitation. This is reflected in the work-for-hire laws/rulings.
posted by Bovine Love at 7:34 AM on August 4, 2011

Again, the WFH laws are less cut-and-dried than most people seem to think, but I'm not even getting into that argument; that's for courts to decide, and as those laws are designed to be confounding and I'm no lawyer, I'm staying out of that completely. I'm addressing the people who think that Kirby's relations are not morally entitled to the fruit of his labor. Legally is kind of a moving target.
posted by kittens for breakfast at 11:19 AM on August 4, 2011

So, you are suggesting copyright should continue indefinitely, or at least so long as their are heirs?
posted by Bovine Love at 11:35 AM on August 4, 2011

ugh, excuse my messed up brain which works by sound, that should be "... long as there are .."
posted by Bovine Love at 11:36 AM on August 4, 2011

I have no idea why you would think I'm suggesting that copyright should continue indefinitely.
posted by kittens for breakfast at 4:55 PM on August 4, 2011

If ones descendants should own the their intellectual property, it would seem to continue indefinitely. Unless you are saying some certain number (1? 2? 3?) generations from the creator should have it for their lives, but cannot pass it on to their descendents? Is there some kind of generational entropy of rights?
posted by Bovine Love at 5:07 PM on August 4, 2011

I'm not sure what position you're trying to argue for here, and to be really honest it seems like you're just interested in endlessly reframing an argument for no really good reason. What I'm saying is that here is a thing that exists because of a person's work. It does not exist because of a company, and even if it did, it does not exist because of the company that owns it now. If that thing should belong to anyone, if by "anyone" we mean either the company or the heirs, it seems to me that the heirs are more entitled to it than is a company that bought it from another company that bought it at a fire sale at some point. You can argue that the work should belong to everyone in the world if you like, and although its originator died less than two decades ago and just about no one seems to think that copyright should expire that quickly, sure, okay. That to me is not the point. The point to me is that if someone owns it, then the direct descendants of the creator should be the owner, just as you would expect a house to pass from a parent to a child and not from a person to a bank upon the owner's death.
posted by kittens for breakfast at 5:37 PM on August 4, 2011 [1 favorite]

And if I paid a contractor to build that house for me, and they do so cleverly and well, and years later I sell that house to someone else, the contractor's descendants should get to sue the new owners for it?

So what's the difference?
posted by John Kenneth Fisher at 7:38 PM on August 4, 2011 [2 favorites]

I guess for you there isn't one. Remind me never to do any work for you.
posted by kittens for breakfast at 3:15 AM on August 5, 2011

well... okay... but I'd still be curious to know.
posted by John Kenneth Fisher at 4:08 AM on August 5, 2011

I'm not "endlessly reframing an argument for no really good reason" (and don't see why such an accusation is necessary). I find copyright expiration to be interesting and am trying to understand what you are proposing is correct. You compare copyright to wealth, or something like a house, both of which can be passed on indefinitely, but don't advocate that for copyright, only for "direct" descendants. I'm not sure what how many generations removed has to do with it.

Copyright is a special protection for work extended to the creators to allow them to further profit from it. We extend this not because the right is inherent, but because it encourages creative works and we, as a society, value creative works. Other people stop getting paid the moment they stop working. Unfortunately, if you make a traditional creative work, you don't get paid until you finish it and find a buyer. If we didn't provide copyright, we probably wouldn't have any of those works, or not so many anyway, because the work would likely be copied and the creator would make minimal or no income. So, we provide a period of protection for the creator. If the creator does not wish to take on the risk of not selling their work, someone else may take on that risk and hire the creator. In that case, the hiring party is granted the special protection instead of the creator because they (the hiring party) took on the risk; that is the deal with the devil.

How does passing on that special protection to descendants help society? Why should that special protection be extended to someone who a) isn't a creator and b) assumed no risk. They contributed nothing. They will still inherit all the wealth that the creator accumulated (or not). The only reason why copyright should extend past death at all is so someone who bought the copyright (one of those corporations) will have a guaranteed period of return; this increases the value of the work, which pays more to the creator, which then provides additional incentive and resources for the creator, which is what we want.

I see a case for copyright expiring on death (they are the ones we are trying to help out). I see a case for fixed copyright (ala patents); that helps ensure a return period for copyright purchasers without that pesky randomness of death. Also keeps public domain activists from being incented to kill creators. I don't see much case for a combination of both. In either case, I don't see why descendants should have any rights which were not explicitly turned over to them (the copyright holder would be free to "sell" the rights to their children for $1 if they wanted to).
posted by Bovine Love at 6:46 AM on August 5, 2011 [1 favorite]

Kirby didn't build a house, he drafted a blueprint from which entire cities have been derived for decades upon decades. He's not a "clever" craftsman, he's a huge chunk of why these people are in business at all. And I'm done with this conversation, because it makes me sick.
posted by kittens for breakfast at 6:49 AM on August 5, 2011

I'm done with this conversation, because it makes me sick.

Sorry it makes you sick. I think there's a philosophical difference here. You seem to believe that copyright exists to provide an income stream to creators and their heirs for a long period of time. The original purpose (and I believe the only purpose) of copyright was to provide an incentive to create. I think there are very few creators indeed who are going to stop creating copyrightable works because it will provide only ~40 years of income rather than 120.
posted by grouse at 7:37 AM on August 5, 2011 [1 favorite]

Kirby didn't build a house, he drafted a blueprint from which entire cities have been derived for decades upon decades.

Yeah. By other people. Robert Moses' children can't sue to own every NYC building made since the mid-20th century either.
posted by John Kenneth Fisher at 4:16 AM on August 6, 2011 [1 favorite]