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On The Avengers and Creator's Rights
May 23, 2012 2:33 PM   Subscribe

So The Avengers is a very successful movie. This has lead many comics fans to express their concern over the treatment of original creators in the industry, specifically of Jack Kirby. Creators' Rights controversy is nothing new, and there remains to this day ample reason to question the business dealings of The Big Two when it comes to how they compensate the men and women who work for/with them. Alan Moore has been and continues to be the victim of numerous shady deals at the hands of DC comics. But no one, with the possible exception of Seigel and Shuster, has suffered more than Jack "King" Kirby.

Ultimately, many longtime fans have asked "Why should I help Marvel make billions off of The Avengers when none of it will go to Kirby's estate?" Scott Kurtz, creator of PVPonline, asked fans to give up the fight for Kirby's estate and see the movie, citing the work of everyone who contributed to the characters since Jack helped create them as reason enough to support the film's release. Mefi's own mightygodking disagreed strongly, and has since supplemented his original post with links to other prominent pieces in support of Kirby's legacy. No one denies that King, and Alan Moore among many others, was cheated and denied compensation for his work. The question seems to be, with comics franchises becoming media juggernauts worldwide and moving outside of traditional comics fandom, do fans have the ability to advocate successfully for the rights of the people that started it all?
posted by shmegegge (106 comments total) 19 users marked this as a favorite

 
How can Kirby suffer if he's dead?
posted by KokuRyu at 2:38 PM on May 23, 2012 [7 favorites]


Fans for the most part have never advocated for the rights of the people that started it all, but rather have consistently seen this as a distraction to enjoy their comics, dammit and how dare you make them worry about the moral implications of their hobby?
posted by MartinWisse at 2:38 PM on May 23, 2012 [1 favorite]


Here's an officially licensed Watchman toaster for some reason.

"Dynamic Forces is excited to work with Warner Bros. Consumer Products to release these collectible image toasters that capture the spirit of some of Warner Bros.' most admired properties and timeless brands. We're thrilled to give fans the opportunity to interact with their favorite brands and characters in a new way," announced a human being, unironically.
posted by 2bucksplus at 2:39 PM on May 23, 2012 [8 favorites]


WWJWD?
posted by hal9k at 2:39 PM on May 23, 2012


Even though I'm a big comics fan, this ongoing controversy is confusing to me.

As a graphic designer, I have had to sign something at every job I've ever had, saying that the company I work for owns all of the designs I create.

Can someone explain to me why Jack Kirby's family deserves to get money for comic book characters he drew a half century ago, while working for Marvel for a paycheck?
posted by Fleebnork at 2:40 PM on May 23, 2012 [10 favorites]


Incidently, Kurtz not only wants fans to see the movie, but thinks that they should not give money to the Hero Initiative either if they do, which is the charity set up to help comics creators deal with medical deals and such.
posted by MartinWisse at 2:43 PM on May 23, 2012 [1 favorite]


If you forced yourself to abstain from all art where the creator(s) got ripped off, well, there goes a whole lot of recorded music. For more details, consult* Wax Poetics, which could also be called "Stories About Musicians Who Got Ripped Off By Record Company Executives Magazine."

* everyone really should consult Wax Poetics. It's awesome.
posted by The Card Cheat at 2:48 PM on May 23, 2012 [3 favorites]


Do the descendants of Arthur Conan Doyle get a cut of the recent success of the Sherlock Holmes films? Not being snarky, just asking.
posted by King Bee at 2:48 PM on May 23, 2012 [1 favorite]


Fleebnork: do you draw a salary and build up pension rights and such?

Jack Kirby didn't.
posted by MartinWisse at 2:48 PM on May 23, 2012


I get paid weekly.

What's a "pension"?
posted by Fleebnork at 2:50 PM on May 23, 2012 [5 favorites]


Fans for the most part have never advocated for the rights of the people that started it all, but rather have consistently seen this as a distraction to enjoy their comics, dammit and how dare you make them worry about the moral implications of their hobby?

With all due respect, why the hell should I? It was a fun summer action movie. I don't do a lot of research before going to a popcorn movie, and I'm not about to start. Even now that it's been brought to my attention, I doubt it would have changed my decision to watch it. Let Kirby's estate fight for Kirby's estate. I'll cheer for them, even, if they have a good case. But I don't really feel I need to worry about the moral implications for the descendents of Jack Kirby at the same time I watch Thor and the Hulk beat up bad guys.
posted by Hoopo at 2:50 PM on May 23, 2012 [7 favorites]


From mightygodking's original post, Marvel is "a formless fictional entity designed to hold intellectual property to provide value to shareholders" yet "we should rightly expect some sense of community and fellowship even from corporate entities." I'm not sure if I can quite square that.

"Marvel aggressively did their best to browbeat Kirby, during his lifetime, out of rights that were his by any reasonable moral standard." Any reasonable moral standard? Maybe. But what about the legal standards? If Marvel is just a formless fictional entity designed to hold intellectual property to provide value to shareholders, then how can we expect it to behave morally?

Apart from that, I appreciated the post. I had read Kurtz's post and not thought about it too critically.

Can someone explain to me why Jack Kirby's family deserves to get money for comic book characters he drew a half century ago, while working for Marvel for a paycheck?

"Deserves" is kind of a loaded word, but in terms of the "how" rather than the "why": It has to do with the termination rights provisions of the Copyright Act. Here's a short article with a good overview of the law [pdf].
posted by jedicus at 2:50 PM on May 23, 2012


Because any rights Kirby held at death would accrue to his family, and Marvel used some really shitty, possibly illegal methods to relieve him of those rights.

Although, that said, I can't get nearly as agitated over the Avengers as lightning-rod for Kirby's mistreatment as I can for Before Watchmen and Moore. Maybe because Watchmen was Moore's baby from beginning to end, while Kirby's Avengers were just a starting point for a team that's gone through countless revisions under countless authors, many of whom have more influence on the movie than Kirby's version. And also because you'd think we would have heard this about the movies starring Captain America, Hulk or the X-Men, all of whom Kirby actually co-created. Kirby's Avengers, meanwhile, was a team book starring established characters, some of whom were his and some of whom weren't - did we demand that Gardner Fox get a credit in every episode of Justice League?
posted by Holy Zarquon's Singing Fish at 2:54 PM on May 23, 2012


Going to see it again tonight. Can't wait. And I get a thrill out of knowing a microscopic portion of my astronomical ticket price will go to support Joss Whedon, another creative genius who's been treated badly by various corporate enterprises in charge of creative endeavors.

As an adult, I'm pretty used to knowing that almost nothing I do is entirely good or bad. The world is a big grey area.
posted by MrVisible at 2:55 PM on May 23, 2012


I get paid weekly.

What's a "pension"?


So because you get screwed over, everybody should?
posted by MartinWisse at 2:56 PM on May 23, 2012 [2 favorites]


Because Kirby didn't just make something to order. Okay sometimes he did, but he himself actually created and designed characters that have had a real and lasting impact far beyond what was ever expected. That counts for something in my book.
posted by Rocket Surgeon at 2:56 PM on May 23, 2012


Here's an officially licensed Watchman toaster for some reason.

Wow, that seems necessary.
posted by infinitywaltz at 2:58 PM on May 23, 2012


I'm sorry Kirby was treated poorly, but the lesson here was that he should have left Marvel sooner. The work-for-hire doctrine is what it is.
posted by Sticherbeast at 2:58 PM on May 23, 2012


Because any rights Kirby held at death would accrue to his family, and Marvel used some really shitty, possibly illegal methods to relieve him of those rights.

The courts seem to disagree.

He did works for hire. He made stuff, he signed it over, they paid him. The end.
posted by Sys Rq at 2:58 PM on May 23, 2012 [2 favorites]


So because you get screwed over, everybody should?

The American Way!
posted by dng at 2:59 PM on May 23, 2012 [5 favorites]


What is it Marvel did to him exactly?
posted by Hoopo at 2:59 PM on May 23, 2012


While I'm sympathetic in-general, I kind of have to ask the same question as Fleebnork. I, too, have worked under several work-for-hire contracts, including 14 years as chief designer for a quite popular licensed property. I got paid for my efforts, but did not retain ownership of any work I did on their behalf. Nor did I share in any percentage of the ongoing gravy train. It's how the business worked back in Kirby's time and it's how it works now, unless you are in a position to actually negotiate a more advantageous contract, and not too many people are ever actually in such a position.
posted by Thorzdad at 2:59 PM on May 23, 2012 [2 favorites]


Can someone explain to me why Jack Kirby's family deserves to get money for comic book characters he drew a half century ago, while working for Marvel for a paycheck?
Because there's more than enough to go round?
Because without Kirby there wouldn't be any?
posted by fullerine at 3:00 PM on May 23, 2012 [1 favorite]


Consider that the Avengers movie probably kept a few hundred families fed and sheltered for a year or two during filming and post production. I've got to wonder if the Kirby family, who did NONE of the art for the thing would have kept that many people employed for that period of time...


and... "Here's an officially licensed Watchman toaster for some reason." ... Wanna see a picture of my can of Watchman coffee?
posted by HuronBob at 3:01 PM on May 23, 2012


So because you get screwed over, everybody should?

I said nothing at all about "should."
posted by Fleebnork at 3:01 PM on May 23, 2012 [3 favorites]


Can someone explain to me why Jack Kirby's family deserves to get money for comic book characters he drew a half century ago, while working for Marvel for a paycheck?

Basically, the history is not that cut and dry. I would recommend reading the link behind the text "asked" in my post. It goes into how Kirby was forced to sign away rights that were legally his in order to get the original artwork back from Marvel even though that artwork was also by rights his and Marvel had no legal reason to keep it. He was over a barrel and they cheated him.

A lot of this controversy is interesting because it is both similar and dissimilar to creator rights problems in publishing generally speaking. Marvel was primarily, in Kirby's time, a publisher, and Kirby was an artist and author for them. Now imagine if, as comics creators in Kirby's time did, Charles Dickens only earned a flat paycheck per book finished and never had rights to his work because his publisher owned them all. Or if stephen king did the same today. Imagine if Harper Collins owned the copyright, credit and all future earnings from every book they ever published.

Now, where Harper Collins simply publishes books (I am simpifying but for the sake of brevity, let's acknowledge that the simplification doesn't change the overall point) Marvel and DC actually maintain and have editorial control over an entire universe that their works are published in. At least for the superhero books. In that way the situation is very very different. I often wonder if it makes sense for Marvel to have the right to continue publishing a comic after its creator has finished his run on it. As though JK Rowling's publisher owned Harry Potter and could simply hire a writer to keep writing more books for the character 70 years after Rowling had stopped. It's a very very strange situation, legally, that comics are in.

And yet, there are circumstances precisely like that in traditional book publishing. The Hardy Boys, The Babysitter's Club, and other book franchises like that basically do just that. And their writers don't maintain the kind of control that someone like Rowling or King do. I think that the legal issues here are actually way farther reaching than people may realize, and that what creators are fighting for is a hugely important more and legal issue.
posted by shmegegge at 3:02 PM on May 23, 2012 [12 favorites]


In the case of the paycheck-contracts, it's the other way around. He did the work, they paid him, then they made him sign it over. To with, Marvel sprung the ancestor of the "by reading this contract you have agreed to this contract" EULAs on their writers/artists in the form of an after-the-fact work-for-hire contract printed on the back of his check such that the employee could not endorse the check, as was required to cash/deposit it, without signing the contract.

Also, they held on to a bunch of Kirby's actual art - which he did continue to own - and held it hostage until he signed an agreement not to sue over IP rights. That's extra-shitty.
posted by Holy Zarquon's Singing Fish at 3:03 PM on May 23, 2012 [5 favorites]


Watchmen was Moore's baby from beginning to end

Except for the characters all being renamed versions of Charlton Comics characters - the creators of whom presumably got paid dick for the adaptation.
posted by Trurl at 3:03 PM on May 23, 2012 [1 favorite]


Poor old Bill Finger.
posted by Artw at 3:05 PM on May 23, 2012 [2 favorites]


Except for the characters all being renamed versions of Charlton Comics characters - the creators of whom presumably got paid dick for the adaptation.

You're not the first to make this argument, but it is, unfortunately, kind of bad. Rorshach isn't just the Question with a different name; Dr. Manhattan isn't just a re-themed Captain Atom; et cetera. They're comprehensively different characters that, at best, were inspired by the Charlton characters.
posted by mightygodking at 3:05 PM on May 23, 2012 [7 favorites]


Can someone explain to me why Jack Kirby's family deserves to get money for comic book characters he drew a half century ago, while working for Marvel for a paycheck?

The man was a creative god. He created most of the heroic stories that have become our mythology. He was insanely gifted, and roundly shafted by Marvel.

Arguably his work was all about rising above the brutish and nasty to become heroic, to aspire in a world of strife and wrong. And this is why we respond to his creations, still, and this is why it's so wrong that a corporation reaps the rewards.

Or at least the financial ones. We all keep paying (or many of us do) because the other rewards are so outstanding.

He made them. Others have carried on his works and done great stuff with them... but he was the one who made them.
posted by emmet at 3:06 PM on May 23, 2012 [5 favorites]


If the development of those characters had stopped with Kirby, I don't think they'd be anything but a footnote. Hundreds of creators (and business types) played roles in making that intellectual property as valuable as it is today.
posted by sevenyearlurk at 3:07 PM on May 23, 2012


I would say that if you're going to qualify your argument by comparing work to Kirby's, then I hope you've also created something that hundreds of millions of people recognize to be able to carry the same perspective
posted by Rocket Surgeon at 3:09 PM on May 23, 2012


They're defiantly based on the Charlton characters, but pretty distinct from them. Interestingly when Moore was first suggesting using an existing set of characters for Watchmen he had the Archie superheroes in mind, so I think the property used as a base for the characters was pretty interchangeable.
posted by Artw at 3:09 PM on May 23, 2012


I, for one, will not see another summer blockbuster until Homer's descendants are compensated for the Illiad.
posted by entropicamericana at 3:10 PM on May 23, 2012 [5 favorites]


I have to say that the thing that is weirdest to me about Kurtz's post is that I would never have predicted him writing it. I've read PVP for a very long time, and in that time he's always struck me as a tireless advocate for creator rights. Sure, he writes his manifestos really poorly and his argumentation is pretty sloppy, but at the end of the day the guy is a proponent of the comic book legal defense fund, has helped drive charity work to support under-compensated creators as part of his support of that fund, and has always come down in support of independently creator-owned work. That he's now saying "come on, guys! we won! don't worry about it so much!" is completely out of left field to me. I can't for the life of me figure out why he's saying it, and I honestly wonder if he'll still feel this way in a week's time. It really seems like he had a bad fight on the internet about why he's excited for the Avenger's movie and is so wrapped in defending seeing it that's he's sort of forgotten what he actually believes.
posted by shmegegge at 3:11 PM on May 23, 2012 [1 favorite]


I don't understand, you mean the movie industry isn't all about giving all the profit to the original creators? I thought that was what they wanted all those oppressive copyright laws for?
posted by furiousxgeorge at 3:11 PM on May 23, 2012 [4 favorites]


I 'should add a few more unnece's'sary apostrophe's to my comment's.
posted by shmegegge at 3:13 PM on May 23, 2012


What is it Marvel did to him exactly?

The specific details of the contract Marvel offered to Jack Kirby - and Kirby alone among all work-for-hire artists - were despicable. They are presented very clearly here, which is very much worth reading in full if you care about this issue in the slightest:

When Marvel decided in 1984 to offer the return of its backstock of original art to creators, its offer to Kirby was able to account for only 88 pages of Kirby art out of a total of more than 8,000 pages that the artist had done for Marvel between 1960 and 1970 -- approximately one percent.

As Marvel had returned new original art from 1976 on, artists had been required to sign brief release statements, about four lines long, and the 1984 offer to return the stored original art was also accompanied by the requirement that a one-page release form be signed. The form described the art return as "a gift" from Marvel to the creators. By signing the form, the creators agreed that the art had been work for hire and that Marvel was "the exclusive worldwide owner of all copyright" related to the art. Creators were required to grant Marvel the right to use the artists' name and likeness in promotions.

The form's language was reminiscent of the contracts that had been instituted in 1979, and some creators objected to both the wording and the coercive tactic of tying it to the return of original art. Neal Adams told the Journal at the time, "Anybody who signs that form is crazy.... You dangle a carrot in front of the artists' faces, saying, 'If you want your art sign this form.' It's not true; you don't have to sign it."

Most artists signed the form and received their art, and even Kirby said he would've been willing to sign it, but that was not the option that Marvel offered him. If some artists had found the one-page release objectionable, Kirby was outraged to find that he and he alone had been sent a four-page document that multiplied the obligations of the creator and the rights claimed by the publisher. Even the nature of the "gift" was qualified in the form sent to Kirby. Where the one-page form offered creators "the original physical artwork," Kirby's form offered "physical custody of the specific portion of the original artwork." Always careful not to acknowledge that the artists had any right to the art, the one-page forms made clear at least that the artists would be the owners of the art once the "gift" had been accepted. The gift to Kirby, however, was nothing more than the right to store the art on behalf of Marvel. Though it would be in his possession, there was nothing that Kirby would be allowed to do with it: "The Artist agrees that it will make no copies or reproductions of the Artwork, or any portion thereof, in any manner, that it will prepare no other artwork or material based upon, derived from or utilizing the Artwork, that it will not publicly exhibit or display any portion of the Artwork without Marvel's advance written permission, and that it will not commercially exploit or attempt to exploit the Artwork or any material based upon, derived from or utilizing the Artwork in any manner or media, and that it will not permit, license or assist anyone else in doing any of the foregoing."

While Kirby was forbidden from so much as displaying the art in public, Marvel was to have ready access to it for whatever purpose it deemed desirable: "Upon Marvel's request, with reasonable advance notice, the Artist will grant access to Marvel or to Marvel's designated representatives to make copies of the portion of the Artwork in the custody of the Artist, if Marvel so needs or desires such copies in connection with its business or the business of its licensees." The artwork was also subject to "revision" and "modification" at Marvel's discretion.

As worded, the form would not even allow Kirby to sell his own original art, since that would constitute commercial exploitation. And in any case, he would have nothing to sell but the "physical custody" of the art. He was allowed to "transfer to another person the physical custody of the portion of the Artwork being transferred to the Artist by Marvel," but only if the new custodian signed the same four-page document that had been presented to Kirby.


That was such a completely cold, cruel, calculating and despicable move that there's very little defense of it. Period. And there's a lot more Marvel bullshit, too.

Again, the article is worth reading in full.
posted by mediareport at 3:18 PM on May 23, 2012 [22 favorites]


To summarize: Marvel refused to hand Jack Kirby back the original art that he created, telling him that he could only get "physical custody" of it while Marvel itself retained all rights to use it - or even fucking *display* it - any way it wanted.

Again, no other work-for-hire creator was treated this way by Marvel at that time.

Ask yourself why.
posted by mediareport at 3:22 PM on May 23, 2012


They're comprehensively different characters that, at best, were inspired by the Charlton characters.

Then, at best, they were not "Moore's baby from beginning to end".

And since Moore "crafted a proposal featuring the Charlton characters" - changing only after the suits at DC Comics balked at having their newly acquired characters killed off - a mere "inspired by" strikes me as over-generous.
posted by Trurl at 3:26 PM on May 23, 2012


I would say that if you're going to qualify your argument by comparing work to Kirby's, then I hope you've also created something that hundreds of millions of people recognize to be able to carry the same perspective

Because creators' rights are only for beloved, legendary creators?
posted by El Sabor Asiatico at 3:28 PM on May 23, 2012 [1 favorite]


Where did I say that?
posted by Rocket Surgeon at 3:30 PM on May 23, 2012


Yet he signed the agreement rather than talk to a lawyer.

mediareport: "To summarize: Marvel refused to hand Jack Kirby back the original art that he created, telling him that he could only get "physical custody" of it while Marvel itself retained all rights to use it - or even fucking *display* it - any way it wanted."

And then Kirby got a lawyer, fought with Marvel and then,
Marvel had dropped its demand that Kirby sign the four-page document and had amended the short form to address his concerns. Details of the amendments were not made public, but Kirby's lawyer, Greg Victoroff, told the Journal, "Jack got just about everything he wanted."
Has that agreement ever been made public?
posted by the_artificer at 3:37 PM on May 23, 2012 [6 favorites]


Alan Moore on Watchmen and the Charlton Characters:

CBA: I always had a suspicion there was an element of the MLJ characters—The Hangman, The Shield, etc. —within Watchmen, and upon recently reading your intro to the Graffitti Watchmen special edition, I read that my inkling was indeed true. You were exposed to the MLJ characters, such as The Mighty Crusaders, and so on?
Alan: Right. That was the initial idea of Watchmen—and this is nothing like what Watchmen turned out to be—was it was very simple: Wouldn't it be nice if I had an entire line, a universe, a continuity, a world full of super-heroes—preferably from some line that has been discontinued and no longer publishing—whom I could then just treat in a different way. You have to remember this was very soon after I'd done some similar stuff, if you like, with Marvelman, where I'd used a pre-existing character, and applied a grimmer, perhaps more realistic kind of world view to that character and the milieu he existed in. So I'd just started thinking about using the MLJ characters—the Archie super-heroes—just because they weren't being published at that time, and for all I knew, they might've been up for grabs. The initial concept would've had the 1960s-'70s rather lame version of the Shield being found dead in the harbor, and then you'd probably have various other characters, including Jack Kirby's Private Strong, being drafted back in, and a murder mystery unfolding. I suppose I was just thinking, "That'd be a good way to start a comic book: have a famous super-hero found dead." As the mystery unraveled, we would be lead deeper and deeper into the real heart of this super-hero's world, and show a reality that was very different to the general public image of the super-hero. So, that was the idea.

When Dick Giordano had acquired the Charlton line, Dave Gibbons and I were talking about doing something together. We had worked together on a couple of stories for 2000 A. D., which we had a great deal of fun with, and we wanted to work on something for DC. (We were amongst that first wave of British expatriates, after Brian Bolland, Kevin O'Neil, and I was the first writer, and we wanted to work together. ) One of the first ideas was that perhaps we should do a Challengers of the Unknown mini-series, and somewhere I've got a rough penciled cover for a Martian Manhunter mini-series, but I think it was the usual thing: Other people were developing projects regarding those characters, so DC didn't want us to use them. So, at this point, I came up with this idea regarding the MLJ/Archie characters, and it was the sort of idea that could be applied to any pre-existing group of super-heroes. If it had been the Tower characters—the T. H. U. N. D. E. R. Agents—I could've done the same thing. The story was about super-heroes, and it didn't matter which super-heroes it was about, as long as the characters had some kind of emotional resonance, that people would recognize them, so it would have the shock and surprise value when you saw what the reality of these characters was.

So, Dick had purchased the Charlton characters for DC, and he was looking for some way to use them, and Dave and I put forth this proposal which originally was designed around a number of the Charlton characters. I forget how much of the idea was in place then, but I think that it would start with a murder, and I pretty well knew who would be guilty of the murder, and I've got an idea of the motive, and the basic bare-bones of the plot—all of which actually ended up being about the least important thing about Watchmen. The most powerful elements in the the final book was more the storytelling and all the stuff in-between, bits of the plot. When we were just planning to do an extreme and unusual super-hero book, we thought the Charlton characters would provide us with a great line-up that had a lot of emotional nostalgia, with associations and resonance for the readership. So, that was why we put forward this proposal for doing this new take on the Charlton characters.

CBA: So you mailed this proposal in to Dick?
Alan: Something like that, and I forget the details—it was such a long time ago—but I remember that at some point, we heard from Dick that yes, he liked the proposal, but he didn't really want to use the Charlton characters, because the proposal would've left a lot of them in bad shape, and DC couldn't have really used them again after what we were going to do to them without detracting from the power of what it was that we were planning.

If we had used the Charlton characters in Watchmen, after #12, even though the Captain Atom character would've still been alive, DC couldn't really have done a comic book about that character without taking away from what became Watchmen. So, at first, I didn't think we could do the book with simply characters that were made-up, because I thought that would lose all of the emotional resonance those characters had for the reader, which I thought was an important part of the book. Eventually, I realized that if I wrote the substitute characters well enough, so that they seemed familiar in certain ways, certain aspects of them brought back a kind of generic super-hero resonance or familiarity to the reader, then it might work.

So, we started to reshape the concept—using the Charlton characters as the jumping-off point, because those were the ones we submitted to Dick—and that's what the plot involved. We started to mutate the characters, and I began to realize the changes allowed me so much more freedom. The only idea of Captain Atom as a nuclear super-hero—that had the shadow of the atom bomb hung around him—had been part of the original proposal, but with Dr. Manhattan, by making him kind of a quantum super-hero, it took it into a whole new dimension, it wasn't just the shadow of the nuclear threat around him. The things that we could do with Dr. Manhattan's consciousness and the way he saw time wouldn't have been appropriate for Captain Atom. So, it was the best decision, though it just took me a while to realize that.

posted by Artw at 3:38 PM on May 23, 2012 [2 favorites]


Looking at that legal bit about termination rights, it seems it would not actually apply.
Works created as “works made for hire” are not terminable. A work for hire is a work that was created during the term of employment or a work that can be classified as a “commissioned work.” For a work to be deemed a “commissioned work” there must be a written contract signed by the parties stipulating that the work is a work for hire plus the work must fall within one of the nine specially enumerated categories under the Copyright Act of 1976. The categories are encyclopedias, motion pictures or other audiovisual works, atlases, contributions to a collective work, instructional text, tests and answer materials for tests, translations, supplementary works and compilations, all of which are examples of types of creations involving many different authors.
So, was Marvel kind of a jerk to Kirby? Sure, absolutely.

But what they did was legal. He signed the agreement. And in all honesty, under pre-1976 law, he wasn't even required to sign such a thing for them to hold the copyright in the first place. Congress created an ex post facto law applying to copyright, and Marvel acted in order not to have their existing rights altered by it. I can't blame them for it, and I'm definitely not about to boycott over it.
posted by corb at 3:43 PM on May 23, 2012 [1 favorite]


Workers of the world unite, you've all been screwed.

You can draw with a pen or shift molten iron around a foundry, you still get screwed by that big greedy guy at the top of the pyramid.
posted by Slackermagee at 3:49 PM on May 23, 2012 [1 favorite]


I can't blame them for it, and I'm definitely not about to boycott over it.

Nah, why should you? All that stuff about morality in those comics, that shit's pretty much pillow talk anyway, amirite.
posted by kittens for breakfast at 3:57 PM on May 23, 2012


Congress created an ex post facto law applying to copyright, and Marvel acted in order not to have their existing rights altered by it.

Even the article mediareport links to above agrees with this:

"Although the documents did little more than spell out explicitly the terms that had been vaguely presumed to be in place all along, there was something about seeing their bosses' dominion over the fruit of their labors described so baldly in black-and-white that made many creators think twice about acquiescing"

Which I think gets to the heart of why some people, myself included, are having a hard time grasping what's supposed to be the issue here. Yes, Kirby created these characters (with whatever degree of involvement you want to give Stan Lee). Yes, they became hugely popular and wildly successful for Marvel. Yes, Marvel acted like an ass to him.

But Kirby did that work for Marvel for hire. It's hard to see how there is any question at all about who owns the rights. Should Marvel make good on the original art? Yes. But it seems crystal clear, and the courts agree, that Kirby created all these things as an employee for Marvel for Marvel's use. Marvel owns them, in the same way that the employers of the people in this thread who have done for-hire work own their creations.

Man, a lot of comics fans kinda suck ass.

You know, I saw your comment in the Stan Lee the other day angrily decrying Lee. It would be helpful if you could explain your feelings rather than just insulting people or being angry. What claim do you think Kirby has here?
posted by Sangermaine at 3:57 PM on May 23, 2012 [4 favorites]


which ones?
posted by shmegegge at 3:58 PM on May 23, 2012


sorry, that comment was meant for kittens for breakfast. to restate:

which comics fans suck ass?
posted by shmegegge at 3:59 PM on May 23, 2012


Nah, why should you? All that stuff about morality in those comics, that shit's pretty much pillow talk anyway, amirite.

Um, no, you mistake me completely. I believe strongly in morality. I just don't think that what Marvel did was wrong or immoral. I think that they were entirely justified. Were they jerks? Sure. But being a jerk isn't immoral. It's flavor text, a tone, if you will, around what's actually happening.

So, no, I'm not going to boycott over what I think was right action.
posted by corb at 4:00 PM on May 23, 2012


It seems to me that disputes about contracts are best settled in courts, not in movie theaters.
posted by notme at 4:01 PM on May 23, 2012 [2 favorites]


Nah, why should you? All that stuff about morality in those comics, that shit's pretty much pillow talk anyway, amirite.

Yes, my take-away from superhero comics is the moral lesson that vigilantism is awesome.
posted by Hoopo at 4:01 PM on May 23, 2012 [2 favorites]


Dan DiDio says Watchmen prequels are a 'love letter' to Alan Moore's creation

Which, well, opens the way for all kinds of snark about the non-consensual nature of that love.

Also, the toaster. The toaster is for love, man, LOVE!
posted by Artw at 4:04 PM on May 23, 2012


Jim Starlin found out about the Big Bad teased at the end of Avengers the same way the rest of us did - by buying a ticket and sitting through the credits at the end of the movie.
posted by robocop is bleeding at 4:15 PM on May 23, 2012


[Policy and flagging discussions go to MetaTalk, be decent to each other please. Thanks.]
posted by jessamyn at 4:32 PM on May 23, 2012


I'll say this; some of my best work was done for my employers. I'll never get to open source or take credit for anything I did at any of my employers, simple as that. Any innovations; any neat solutions, all of the REAMS of documents I created (10% of the total document load for a division of one firm at one point) hundreds of pages of training guides, videos, characters, scripts ... I could go on an on.

I'd love for my kids to benefit directly from these; but they won't. It's time the Kirby Lawyers and the people they keep assuring otherwise that the Kirby Estate will not reap the benefits of those creations.

In future I would hope that "creative types" would be more savvy about what they do and do not do for corporations and then determine with the help of an even more savvy lawyer how to get their creations in their own stable. Otherwise... well, this.
posted by NiteMayr at 4:41 PM on May 23, 2012 [2 favorites]


So it seems to me that a lot people have never dealt with large companies or their lawyers. Neither are known for their kindness to ex-employees or their generosity when it comes to sharing ownership of intellectual property. Not to defend Marvel, but if you find their actions abhorrent, you should boycott all corporate owned media channels and, by extension, anything presented on them. If they haven't screwed someone out of something yet, they will soon.
posted by doctor_negative at 4:48 PM on May 23, 2012


Do the descendants of Arthur Conan Doyle get a cut of the recent success of the Sherlock Holmes films?

For the Heirs to Holmes, a Tangled Web
posted by gubo at 4:53 PM on May 23, 2012 [1 favorite]


This is not at all confusing when you realize that going on about "creators' rights" - which no one cared about when they read the comics in the first place - is a subtle way of declaring oneself too cool to see a popular movie based on a geek pastime.
posted by downing street memo at 5:15 PM on May 23, 2012 [2 favorites]


As gross as the buying of a Heroes Initiative indulgence is to me, one of the yomyochs on the Wait, What? Podcast managed to do one better - or less? - by donating, going to the movie, and then saying he wished he had just snuck in to see the movie instead, apparently because that's somehow more noble or The Avengers wasn't as good as Mission Impossible or some such bullshit. It's hard enough already for me to suppress homicidal urges every week when I go to the comic shop and listen to the insipid bullshit spouted, but I think things may actually be getting worse (The store owner's a real mensch, though).
posted by Alvy Ampersand at 5:15 PM on May 23, 2012


In my ideal world the Avengers would be in the public domain by now and that Disney or Warner Bros or Scott Kurtz or anyone else could make movies or comics about these characters without owing Lee or Kirby or their estates anything.
posted by straight at 5:16 PM on May 23, 2012 [1 favorite]


Hmm, isn't this somethign of a dupe?
Ultimately, many longtime fans have asked "Why should I help Marvel make billions off of The Avengers when none of it will go to Kirby's estate?"
Well, one obvious reason is that even if he had owned the rights, under the copyright law at the time the stuff would be in the public domain by now and anyone could reprint the originals, the same way people don't have to pay the heirs of Mary Shelly or Bram Stroker every time they make a Frankenstein or Dracula.

The whole idea that the heirs of a creator are owed something that the original creators didn't even expect to get is kind of ridiculous.

Anyway, I posted a couple comments [1, 2] in the thread, basically pointing out that yeah, it was actually a work for hire. Kirby was a payed employee at the time, and more importantly it's kind of ridiculous to say that all of the "value" of the various Marvel characters was created by Kirby and not Stan Lee. Lee hired Kirby to draw the comics. Maybe he sometimes did some of the writing too, but Lee still thought them up initially.

And here's the thing: it would be ridiculous if, say, every single animator who worked on a cartoon could suddenly come back years later claim copyright on the frames they worked on, right? So why should it be different with comic books. There is a "where do you draw the line" question, but the answer is simple: If you're a 'regular' employee being payed a salary to come up with creative works for your employer, then your employer owns the copyright.

Again, if it hadn't been for random laws passed decades after the comics were published, they'd all be in the public domain by now, And neither Kirby or Stan Lee or anyone else could claim any rights to them, the same way Mary Shelly's heirs can't sue everyone who uses a representation of Frankenstein.
posted by delmoi at 5:18 PM on May 23, 2012 [3 favorites]


This is not at all confusing when you realize that going on about "creators' rights" - which no one cared about when they read the comics in the first place - is a subtle way of declaring oneself too cool to see a popular movie based on a geek pastime.

And thanks to your awesome psychic-cynic abilities, you're even cooler than those pseudo-ethical poseurs!
posted by Alvy Ampersand at 5:23 PM on May 23, 2012 [1 favorite]


I have mixed, mixed feelings about creator rights and U.S. superhero comics, as rampant as My Real Daddy is in the genre. Half of the intermittent-reward addiction of these comics is the ability of writers to take other creators' toys and run away with them, making transformative works that are greater than the sum of their patchworked origins...works that are then handed off to a clueless hack who mangles the story into a fiery trainwreck...which is passed into hands of a writer who wades through the wreckage and welds the pieces into a nice metal lawn gnome. Until someone else decides it's an angry metal lawn shark! Then it's a crossover-event lawn shark superteam! Then someone says, "Hey, remember when the lawn-gnome-shark was a train? That was awesome!" And from there it's SHARK VS TRAIN: THE SERIES, with half of everyone arguing whether the Trainwreck Years were even canon, and another half of everyone arguing over why the Gnome Saga got left out, and now there are gorillas but YOU LOVE IT OK GO.

What keeps it together and also where it all goes to hell are Marvel and DC's paranoid editorial control-freaking that sucks up talent just to chew it to little pieces. They want the collaborative shared-world insanity/creativity of open-source re/mash/mix culture but still want to clutch the results and shriek "MINE MINE MINE." It breaks my heart that my chance to see new Alan Moore comics from DC ended practically before I was born: he created a Green Lantern who is a mathematical equation. There are many excellent writers for whom I would cheerfully commit bloody murder if they would just write Batman and Spider-Man for me forever (LOCKED IN MY HOUSE, MISERY-STYLE). But in reality this would entail me saying, "Writer whom I love and respect, please sell your soul to a miserable contract for a pittance so that I can read your Spideyfic and Batfanfic. Because your pain distresses me, but it will be unable to make me love Mary Jane Watson or Barbara Gordon or Blue Beetle any less!"

So I don't know what I think! I think I will see The Avengers hundreds of times. I think Jack Kirby was treated shamefully and his estate should be given lots of money and no say whatsoever in what is done with Kirby's characters today. I think that by this point there is equal kudos due for The Avengers movie's existence to Kirby and to post-rehab Robert "WITH A BOX OF SCRAPS" Downey Jr., and that at some point ever-diplomatic Marvel is going to go, "We don't need you, expensive RDJ! We have Justin Bieber for Iron Man: The Teen Years!", and then I am going to facepalm forever.

After that, creator rights, what do we do? More money, always--maybe some kind of use-royalty system like TV residuals? But (I'M SORRY ALAN MOORE) I am leery of total creator character control and/or veto. Because several of my current-favorite Marvel characters were technically created by Rob Liefeld, and oh please God do not let that man near a comic book again.
posted by nicebookrack at 5:23 PM on May 23, 2012 [3 favorites]


(p.s. writers whom I love and respect, if you send me the Justice League epics you quietly posted on Fanfiction.net under a deliberately misspelled username, your secret fannish identity will die with me)
posted by nicebookrack at 5:28 PM on May 23, 2012


Had Kirby challenged Marvel for partial ownership when he was alive he probably would have had a chance. But Kirby "publicly disavowed any wish to challenge Marvel's copyrights" and the lawsuit didn't happen until fifteen years after died so the only person left to give direct testimony of Kirby's contributions to Marvel was Stan Lee. It's too bad hotshot IP lawyer Marc Toberoff wasn't there for Kirby back in the 80s.
posted by the_artificer at 5:30 PM on May 23, 2012 [2 favorites]


Maybe he sometimes did some of the writing too, but Lee still thought them up initially.

I'm pretty comfortable with giving Stan his due, but you're way off the mark. Dismissing Kirby as a hired hand is just as wrong-headed as saying Stan just filled up word balloons.
posted by Alvy Ampersand at 5:32 PM on May 23, 2012 [1 favorite]


Mightygodking...isn't he the guy who takes other people's artwork and modifies it for humorous effect? How much money does he pay to the original artists?
posted by happyroach at 5:34 PM on May 23, 2012 [2 favorites]


For all you people saying "well that's the contract they signed, that's how it works in the creative industries": this is, in some ways, another salvo in the ongoing war for creator's rights in the comics world. Actors get residuals, musicians get paid for commercial re-use of their music... why should those of us who work in art and graphics be any different? It's a historical accident that some crafts get a chunk of the endless reproduction of their work, and some don't. Don't say "suck it up, it's just as bad for other artists" - cheer those who have a lever to fight with, because if they have a victory then maybe you, too, can get a better deal by pointing to what they got.

The poor treatment of creators by corporations is especially ironic in the case of superhero comics - on the one hand here's all these stories about folks who help the helpless and the downtrodden... being published by companies that will do everything in their power to pay the people who make them as little as possible, ever.

I dunno. I can't really boycott Marvel and DC over this, since I never buy any of their stuff when I go into the comics store anyway - never have, since I discovered there were people working in other genres besides the capes. I do wonder if it's just a coincidence that pretty much everything I buy is from a company that respects the creator's ownership, whether it be something from a big non-cape publisher like Dark Horse or Image (omg the new Prophet, I still can't believe what Liefeld is letting Graham and his friends do with that book), or from a self-publishing setup.
posted by egypturnash at 5:48 PM on May 23, 2012 [1 favorite]


How much money does he pay to the original artists?

I have forever pledged to give the original artists a percentage of all profits I receive resulting from those derivative works. Currently this is zero dollars and zero cents, of course, but one day I am sure Mark Millar and Steve McNiven are going to be damn thankful I made that pledge!
posted by mightygodking at 5:55 PM on May 23, 2012 [5 favorites]


This is not at all confusing when you realize that going on about "creators' rights" - which no one cared about when they read the comics in the first place - is a subtle way of declaring oneself too cool to see a popular movie based on a geek pastime.

It's really not, and the truth is that finding out why people are actually pissed about the treatment of Kirby in life and now is really not difficult at all for people even kind of interested in a sincere, good faith sort of way; empty snark is, of course, much easier and involves less reading and stuff, but not caring about things is a really loud way of declaring oneself too cool for...well, I don't know what exactly, but there's so much of it going around someone must think it's pretty rad.
posted by kittens for breakfast at 8:29 PM on May 23, 2012


Lee hired Kirby to draw the comics. Maybe he sometimes did some of the writing too, but Lee still thought them up initially.

This is suspect at best. Again, it's really not hard to find actual information about this stuff. I'm not saying it's something you need to do with your Wednesday night or what have you, because the truth is you have to be really, really interested in this sort of thing to delve into it too deeply. But if you're going to opine about something on which, quite frankly, a whole lot of ink has been spilled, you should probably have a better idea of what you're talking about. A recent book that talks a lot about how nuanced the actual authorship of the Lee/Kirby comics is can be found here; it's worth the time of anyone interested enough in this stuff to spend a lot of time talking about it on a message board.
posted by kittens for breakfast at 8:42 PM on May 23, 2012 [1 favorite]


which comics fans suck ass?

Comic Sans fucks ass.
posted by ShutterBun at 8:47 PM on May 23, 2012 [2 favorites]


Comic Sans fucks ass.

It's more of a wet, santorum-flecked noodle bad web designers occasionally smack you with.
posted by kittens for breakfast at 8:48 PM on May 23, 2012


Oh, the other point I made in the other thread was that it isn't just the original creator who 'creates' all the value in the characters. The fact that new comics and new stories keep people interested over the years is what gives them their value. If Stan Lee had just dropped the Avengers and the FF and the rest, and started new comics, then those comics would probably be the valuable properties today - just like the X-men are today, despite Kirby having nothing to do with them (as far as I know)
On the other hand, you could probably find comics from back in the day that were popular at the time, but couldn't bring home fat boxoffice revenue today, because there hasn't been that kind of engagement over the years.

And on top of that, the recent popular movies with Iron Man, Captain America, etc (I don't know how popular the Thor or Hulk movies were) obviously made the movie much more likely to be made and to make a lot of money. It seems to me that, for example, Robert Downy Jr's acting in the Iron Man, plus the pretty good directing probably has at last as much to do with the success of the Avengers as Kirby. It's something that Kirby helped build, but it's also something that needs to be rebuilt every few years, and has been by many people over the years.
You're not the first to make this argument, but it is, unfortunately, kind of bad. Rorshach isn't just the Question with a different name; Dr. Manhattan isn't just a re-themed Captain Atom; et cetera. They're comprehensively different characters that, at best, were inspired by the Charlton characters.
DC owned the Charlton characters. The original plan was to use them in the watchmen, but then DC decided to have him come up with new ones because they were worried he would make it impossible to use the characters again in the future.

Anyway, there was no lawsuit risk, because DC wasn't going to sue itself.
This is suspect at best. Again, it's really not hard to find actual information about this stuff. I'm not saying it's something you need to do with your Wednesday night or what have you, because the truth is you have to be really, really interested in this sort of thing to delve into it too deeply. But if you're going to opine about something on which, quite frankly, a whole lot of ink has been spilled, you should probably have a better idea of what you're talking about. A recent book that talks a lot about how nuanced the actual authorship of the Lee/Kirby comics is can be found here
Right, but the legal question isn't who actually came up with the stories, but who wrote the paychecks. It sounds like, creatively, it was a collaborative processes, on in which both people have claimed most of the credit. It's entirely possible that both of them sincerely believe that they both did most of the work. That kind of thing happens all the time.

But legally, if Kirby was a regular, full time employee then Stan Lee owns the stuff. And to be honest it actually does seem fair to me. Think about all the creative work that goes into, say, a video game, or an animated movie. How could you possibly decide 20 years later that some random guy owns the copyright to the water tiles in sonic the hedgehog 2, while another guy owns the copyright to the grass tiles?

Also, in terms of the visual design that changes all the time anyway. Iron Man doesn't look that much like the guy Kirby came up with, an his character is actually somewhat different from the Iron Man Character that existed in the 60s. In the 70s the comic took on a more dark, tone with a tony stark who fought with his internal demons as well as various supervillans. That's the character that the movies made popular. And the look of the suit changed all the time. According to Wikipedia, the writer who took that turn was David Michelinie, and the artist Bob Layton.
posted by delmoi at 8:58 PM on May 23, 2012


Oh, the other point I made in the other thread was that it isn't just the original creator who 'creates' all the value in the characters. The fact that new comics and new stories keep people interested over the years is what gives them their value.

Without the original creator, there is nothing to keep people interested in.

If Stan Lee had just dropped the Avengers and the FF and the rest, and started new comics, then those comics would probably be the valuable properties today - just like the X-men are today, despite Kirby having nothing to do with them (as far as I know)

You may be interested to learn that Jack Kirby co-created the X-Men.

But legally, if Kirby was a regular, full time employee then Stan Lee owns the stuff.

Stan Lee is not now and was never the owner of Marvel.
posted by kittens for breakfast at 9:01 PM on May 23, 2012 [1 favorite]


Without the original creator, there is nothing to keep people interested in.


Right, but without the first link in a chain being solid, the chain will break. But that's also true of all the other links in the chain. So why is the first author more important then all the others?
You may be interested to learn that Jack Kirby co-created the X-Men.


Ah, should have double checked that.
posted by delmoi at 9:11 PM on May 23, 2012


So why is the first author more important then all the others?

I think it'll come to you if you really meditate on it.
posted by kittens for breakfast at 9:17 PM on May 23, 2012


An associate of mine had a mental image for a commercial:

"I'm Alan Moore, and I approve of the Watchmen toaster."

And then said the only way it could work is if it was then dropped into Dan DiDio's bathtub.
posted by mephron at 9:37 PM on May 23, 2012 [2 favorites]


I'm going to start using the chainlink analogy everywhere and see how much traction that one gets.

"You watch The Wire? David Simon is brilliant!"

"Simon? Psshh, link in a chain. The Gaffer on that show wouldn't be to happy you're stealing his thunder, man."
posted by Rocket Surgeon at 9:47 PM on May 23, 2012 [2 favorites]


It's always disappointing to see otherwise intelligent people use the same old, same old tired copouts Marvel fanboys in the eighties were using to avoid caring about how it treated Kirby:

-- It's legal so there (debatable and legal != moral)
-- He knew what he got himself into (or he had little choice)
-- Other people are screwed over too, so why care about him
-- It's all so long ago (but that doesn't make it right, nor has it stopped)
-- Other people worked on these characters too, so why just be concerned about Kirby (nobody is actually saying that everybody else should be screwed, but Kirby has been messed with more than most creators, so it makes sense to start there)
-- Things are different now (up to a point and funnily enough the reason they're different are that people fought for these changes)

And now Kirby and Siegel and Simon and Shuster and most of the other people who created the foundations for what are now multi-billion media empires are dead, so why should their families get any consideration. Much better that money stays with Disney or Warner shareholders.

It's sad to see that in the seventies Warner could still be shamed into finally starting to put right some of the abuse Siegel and Shuster had undergone, to finally give them credit and some monetary compensation for having created Superman, but four decades later we can't be bothered anymore.
posted by MartinWisse at 11:19 PM on May 23, 2012 [2 favorites]


Lee hired Kirby to draw the comics. Maybe he sometimes did some of the writing too, but Lee still thought them up initially.

delmoi, the above statement is, frankly, garbage and you should stop making it until you can back it up with evidence. Kirby did not just draw Stan Lee's ideas; he wrote much of what you seem to think was mostly written by Lee. That's the truth. A slightly-different-but related bit of nonsense about the division of labor between Kirby and Lee came up in the Darkseid-is-dumb thread from a couple months ago; here's my response, which I think is just as relevant to this thread:

===
Yow. No offense, but the above is a seriously over-simplified version of what happened at Marvel in the 1960s. There are many folks - including Jordan Raphael and Tom Spurgeon, co-authors of Stan Lee and the Rise and Fall of the American Comic Book, which I just got down off the shelf - who suggest that Stan's story ideas were often perfunctory and his dialogue and captions added only after the art, pacing and specific plot of the book had been drawn by Jack. Here, for instance, is their take on Spider-Man...

With Lee's input, Kirby began to craft an introductory tale, rejecting some of the more fantastic Lee story elements, grounding the character in a domestic situation featuring a kindly aunt and uncle, and giving the superhero a secret origin revolving around a neighbor who happened to be a scientist. [p.93]
===

Who was the "writer" there again? To repeat: Peter Parker's story being grounded in Uncle Ben and Aunt May came from Kirby, not Lee. There are other examples as well. "Lee hired Kirby to draw the comics. Maybe he sometimes did some of the writing too, but Lee still thought them up initially" is an ignorant statement to make. That's not how folks who have seriously examined those early Marvel years see the division of labor *at all*.
posted by mediareport at 11:21 PM on May 23, 2012 [3 favorites]


I think it'll come to you if you really meditate on it.
Just to clarify, we're talking about the financial stake in new creative works that use the same characters or whatever. Obviously, if hadn't been for Kirby, Marvel characters would be different. But there is no way to prove that they would be less profitable if someone made a movie about them today.

The argument seems to be that "If it wasn't for Kirby, the Avengers wouldn't be worth anything today".
Yow. No offense, but the above is a seriously over-simplified version of what happened at Marvel in the 1960s. There are many folks - including Jordan Raphael and Tom Spurgeon, co-authors of Stan Lee and the Rise and Fall of the American Comic Book, which I just got down off the shelf - who suggest that Stan's story ideas were often perfunctory and his dialogue and captions added only after the art, pacing and specific plot of the book had been drawn by Jack. Here, for instance, is their take on Spider-Man...
Yeah, just to clarify, I'm not talking about who deserves credit but who deserves ownership. In fact, I would say no one since when they were created, the law at the time would have put them in the public domain by now, although the names might be able to be protected by Trademark laws - maybe you could make a movie with those characters, but not use their names in marketing or whatever. (Or maybe it would just mean that the original reprints could be sold without licensing. Obviously, there are lots of different hypothetical cases.)
And now Kirby and Siegel and Simon and Shuster and most of the other people who created the foundations for what are now multi-billion media empires are dead, so why should their families get any consideration.
Well, why? Why shouldn't the families of Bram Stoker or Marry Shelly, Jules Verne, Arthur Conan Doyle get paid when people create new stories involving Dracula, or Frankenstein or Captain Nemo or Sherlock Holmes? Some of those characters are only around twice as old as The Avengers, but at the time that Lee and Kirby were coming up with them, those older characters were all in the public domain, free to be used by anyone in any story.

Now, it's perfectly reasonable to debate who deserves the actual literary credit for the characters. Maybe Kirby deserves more. But that has nothing to do with ownership of copyright. Even if Kirby came up with them entirely on his own, marvel would still have owned the ideas. In exchange, he got a steady paycheck. That's how the law works. Don't like it? Get a lawyer to write up a contract stipulating who owns what before you take the job.

But at the time they were doing this, as I said, copyright would have expired more quickly, and this wasn't something that people would have expected to be litigated by the decedents of of the parties for the rest of eternity.
And now Kirby and Siegel and Simon and Shuster and most of the other people who created the foundations for what are now multi-billion media empires are dead, so why should their families get any consideration. Much better that money stays with Disney or Warner shareholders.
Disney makes movies off public domain characters all the time. Congress created an artificial asset by extending copyright to ridiculous lengths, and Disney bought those assets. Had they not existed disney could have made a movie based on them and probably made a lot of money anyway.

So I'm confused why you think this moral right to an arbitrary asset created by congress comes from. In my view, Lee, Disney and the others have no moral right to stop anyone from making their own avengers based creative works. They simply happen to have the legal right.
posted by delmoi at 12:48 AM on May 24, 2012


Thank you for that post: quite this kind of complex topic is not explored in depth or from all sides in a FPP, but I feel that this was and I for one appreciate the effort.

It seems to me that this situation is really symptomatic of a larger problem, which is that Anglo-American capitalism does not treat artists in general with the respect that they deserve.

I think this is because in our society the dominant view is that companies are the main creative force and the most valuable and positive building block of society generally. I don't share that view; in fact, the more I learn about history, the less I believe it. I have a hard time thinking of any major artistic or technological breakthrough made by a "company" outside of the field of marketing (although some creative or talented individuals wind up working for, or even owning, companies). But I think this admiring view of companies underpins this idea that it is somehow right for a company to "own" a work of art.

The problem is that the real creative force is individual human beings. You can talk up the contributions of culture or even property rights, but at the end of the day art emerges from a particular human consciousness. Even in a collaborative medium like TV, whenever a good artist leaves, taking with them their creative vision, the result inevitably seems to be decline (Buffy, My Little Pony etc.)

I realise that a lot of people don't agree with me on this, but I honestly think that we do not give enough credit to individual creators - at best, I see a lot of very ambivalent behaviour towards them, with fans turning them into celebrities, then tearing into them when they don't do what the fans want (which usually means doing something that flatters the fans).

In terms of the law, I think it is terribly dangerous in the long term to have a legal system that enforces a particular view of artists: that they are interchangeable, cogs in a machine, can make product to order, using pre-established characters owned by somebody else... That the artist is a kind of servant. It seems like an unhealthy opposite extreme to the idea that the artist is a genius and should be allowed to do whatever (s)he wants, even if nobody else understands it.

I don't think that the law should be enforcing that unhealthy, artists-as-interchangeable extreme, because it seems to be very harmful to creativity and quite harmful to artists. They tend to burn out and the industries where this rule applies tend to waste a lot of time and money on some really fruitless creative choices (e.g. remakes, 90% of superhero comics).

At the end of the day, I think individual talent - or even genius - just exists. It is as unavoidably, empirically real as a table, climate change or gravity. And a culture that runs counter to that - that tries to enforce on art a mindset more suited to the making of widgets (and one that is fairly unethical towards scientific and engineering innovators as well) is a culture that it running quite hard contrary to reality.
posted by lucien_reeve at 3:44 AM on May 24, 2012


The argument seems to be that "If it wasn't for Kirby, the Avengers wouldn't be worth anything today".

They wouldn't, because they wouldn't exist today. The chain analogy doesn't work; it's not a chain, wherein any link could be the first link, but a foundation, where without the initial work there is nothing to build upon and, therefore, no first floor, no second floor, no eightieth floor, no floor, no nothing, nothing whatsoever, actually really not anything at all.
posted by kittens for breakfast at 4:05 AM on May 24, 2012


So after reading this thread last night, I saw a local news report about a nice thing that Marvel did - they created a superhero, Blue Ear, for a child with hearing problems who would not wear his hearing aid because "superheroes don't wear hearing aids." Hoping that there was a hearing impared character somewhere out there, the child's mom wrote Marvel and they not only pointed out that Hawkeye was hearing impaired for awhile, but some of their staff drew pictures of a new hero named Blue Ear. It's a nice story, showing that whatever you think about Marvel, it is still made up of real, feeling human beings.

But! Let's use Blue Ear as a hypothetical. Let's say due to this story, interest in Blue Ear takes off. The mom wants to sell T-shirts of the full-color cover drawn for her son by Marvel staff and donate the money to his school. Can she? The character was, after all, drawn for her son and given as a gift. Does Marvel have any claim to it? Does Nelson Ribeiro, who drew the cover?

But then! It turns out Anthony Smith, the hearing impaired child, is an art prodigy. He starts creating wonderful Blue Ear comics and publishes them digitally charging three bucks an issue. The comics become a hit, partially because of his creative talent, partially because of the heartwarming story behind them. Does Marvel have any claim to this hit comic? What about Nelson Ribeiro?

Wait, there's more! Hollywood comes knocking! Joss writes a Blue Ear spec script and shops it around. It's an awesome script and would make for an amazing movie. Does Anthony have any right to a portion of the sale? Does Nelson? What makes the script valuable? Joss' writing? Anthony's work on the character? Nelson's design of the main character?

Still! Disney buys the script and a movie is made, directed by Edgar Wright and staring Donald Glover as Blue Ear. It's an even bigger hit than Avengers and Donald's performance as Blue Ear becomes the definitive version of the character (ala Samuel Jackson's Nick Fury). Blue Ear is now as big as Superman in the zeitgeist.

Oh no! Marvel, owned by Disney, makes a comic based on the movie. Does Anthony have any rights to that? Nelson? Do they even have to pay anything as Marvel folk drew Blue Ear in the first place?

Suddenly! The makers of the hearing aid, seeing all the success stemming from a product they made come calling and want a cut. Who do they go after? Are they due anything?

In these scenarios, Blue Ear would not have become world-shakingly popular if Anthony wasn't hearing impaired and refused to wear his hearing aid, if his mom did not contact Marvel, if Marvel didn't inform its staff who then created a character, if the Mom didn't get the word out to the local news, if Anthony didn't use his talent to create a hit comic, If Joss didn't write a great script, if Edgar didn't make a great movie, and if Donald didn't knock it out of the park. So in the eventual Blue Ear revival of 2035, who gets a cut of the blockbuster 4D Hyperfilm staring Blue Ivy Carter?
posted by robocop is bleeding at 5:19 AM on May 24, 2012 [4 favorites]


I seriously don't know what's worse: "I got mine so fuck you" (Kurtz) or "I didn't get mine so no one else deserves to" (so many people here). Same people who argue for gay rights and progressive policies go, "Eh, always been this way, shit happens, whatcha gonna do?" as soon as something might interfere with their precious entertainment. Pretty sad.

Also, here's Leonard Pierce with another well-written and reasoned contribution to this debate.
posted by Legomancer at 5:28 AM on May 24, 2012 [1 favorite]


Great link, Legomancer, thanks.
posted by mediareport at 5:44 AM on May 24, 2012


As far as the line about cynicism, I’m frankly flabbergasted. Supporters of the Hero Initiative and creator’s rights advocates are attempting to get comics fans to donate money to the creators of the books they love, to compensate for how they they were routinely underpaid, overworked, and cheated out of the financial gain their bosses got from their hard work. Kurtz, meanwhile, is arguing that it doesn’t matter who got screwed, because things are better now probably, and besides who cares, the Avengers movie was awesome, so everybody shut up about who screwed who. And we’re the ones being cynical? What we’re asking for has nothing to do with cynicism. It has everything to do with justice, or at the very least decency, which are the opposite of cynicism. Cynicism is saying what Kurtz says: this has always happened, it will always happen, we can’t do anything about it anyway, let’s all shut up and pretend it’s fixed and move on. That is precisely cynicism.
posted by mediareport at 5:48 AM on May 24, 2012


Yeah, just to clarify, I'm not talking about who deserves credit but who deserves ownership.

Whatever you were talking about, your description of the process by which the comic books in question were created was, again, garbage.
posted by mediareport at 5:50 AM on May 24, 2012


So I'm confused why you think this moral right to an arbitrary asset created by congress comes from.

This, this, this! And also, why is it okay for Congress to retroactively declare that intellectual property of one person goes back to another person who never expected to receive it initially?

I seriously don't know what's worse: "I got mine so fuck you" (Kurtz) or "I didn't get mine so no one else deserves to" (so many people here). Same people who argue for gay rights and progressive policies go, "Eh, always been this way, shit happens, whatcha gonna do?" as soon as something might interfere with their precious entertainment. Pretty sad.


Here's the thing. This isn't it at all. Some of us might even argue that in future, creators should negotiate for better access to rights. But this doesn't mean that we think it's okay to retroactively change the way things were done. It's the same way that I argue for gay rights now such as access to marriage and inheritance rights for partners, but I wouldn't argue that every inheritance decision for the last hundred years should be overturned because of it. I think that yes, in future we should do things differently. But I don't think that we should take away from the decisions of the past simply to fix the needs that we currently see.
posted by corb at 6:00 AM on May 24, 2012 [1 favorite]


Huh, yeah, Legomancer's Leonard Pierce link is very good.

Honestly, this whole affair totally baffles me; I always try really hard to understand the other side's point of view, but in this case I just completely can't fathom the " what happened to Jack Kirby and other creators is no big deal" argument. I can't even start to wrap my brain around it. I can see people arguing that way out of contrarianism, or maybe out of a sense of defensiveness because they don't want to feel bad about liking the Avengers movie*, I guess. But even though I'm sure it happens, I can't understand how someone could think this through and then in good faith shrug and make the Kurtz argument.

*and for what it's worth, my position on this is: I know that, after a lot of thinking it over, I don't feel good spending money that will go back to Marvel and DC, but I also don't expect that everyone will make the exact same conclusion; and if you've thought things over and decided to see the movie/but the comics anyway, I don't judge... all I really care about in the end is that people think about it, acknowledge the injustice, and use that to let their conscience take them where it will.
posted by COBRA! at 7:23 AM on May 24, 2012 [1 favorite]


Something that I'm hoping people can answer: I don't see what makes the Avengers the breaking point for this. Kirby was treated as badly as it's possible for a company to treat an employee without physically injuring him, but after all the screen (small and silver) adaptations of Marvel characters Kirby legitimately co-created - the X-Men, the Hulk, Thor, the Fantastic Four and especially Captain America - why is the rallying point Avengers, which was a teamup-of-established-characters book created to ape the Justice League? Of all the stories Kirby worked on, you can make a strong case that the Avengers would have been the least changed had it been written and drawn by entirely different people.
posted by Holy Zarquon's Singing Fish at 7:43 AM on May 24, 2012


Well, for me it's been something I've just slowly gotten more aware of for the past few years; I think in a wider case, the Avengers movie just makes for a handy news hook for Kirby-screwage stories. DC's Before Watchmen crapola has also provided a similarly handy news hook for coverage of Alan Moore's treatment.
posted by COBRA! at 8:31 AM on May 24, 2012


And then Kirby got a lawyer, fought with Marvel and then,
Marvel had dropped its demand that Kirby sign the four-page document and had amended the short form to address his concerns. Details of the amendments were not made public, but Kirby's lawyer, Greg Victoroff, told the Journal, "Jack got just about everything he wanted."


That's the key here, I think.

Marvel, the corporate entity, had its lawyers write up a ridiculously limiting agreement for Kirby to sign, recognizing he was the creative genius that everyone here agrees he was, and that sucked, I agree. Cold, calculated move.

But Kirby realized it was ridiculous, and he got a lawyer himself and fought that, and his own lawyer says that Kirby basically got what he wanted out of the deal.

I support creatives' rights to royalties on their work, and would like to see more done to grant them those royalties in the future. Maybe those royalties should even pass down to their descendents upon their death. That's something I am personally conflicted about. It's interesting that it is so popular here, in that the consensus on Metafilter in general seems opposed to family dynasties, inherited wealth and bestowed privilege.

But, regardless, earning and passing the royalties down from contracted work is not the law now, it wasn't the law then, and saying that Kirby's descendents should get a cut of the movie royalties because, "there's enough to go around", is just magical thinking.

I don't agree that's a "moral" stance. How is it more moral to take money away from the people who actually worked on the movie, from the writers to the camera people to the caterers to the actors, to give to people who had nothing whatsoever to do with any of that? Kirby's descendents didn't create a thing themselves. Kirby himself didn't even think about going there legally when he hired his lawyer to fight for his rights.

But even if you disagree with me, and this is the importantpart, boycotting the movie does NOT, in any way, do anything to change what's already been legally decided. It's about as effective as changing your Facebook status to say, "Cyber bullying is bad! 'Like' this if you agree!" It's an empty gesture.

If Joss Whedon, or RDJ, or any of the people who most profit from movies like The Avengers set up a legal fund dedicated to challenging the existing laws, with a goal of ensuring that all creatives earn royalties by default from works based on their creations, even works created under contract, I'd be all over that. Whedon himself would certainly benefit from such a law. Disney alone would have to pay out millions of dollars.

And that would arguably be taking a moral stance, ensuring that what Kirby (and all the creators before him who don't have such a vocal fan base) went through would never happen again.

A movement like that could set the stage for significant policy changes within the corporate sector, too. Employees would own at least a prtion of the patents and profits of their creations that now belong solely to their employers.

I could get behind all of that.

But still, none of that would change, retroactively, Kirby's legal agreement with Marvel. That's not how laws work, and it SHOULDN'T be. I am not lacking in compassion for recognizing that reality, and you are not morally superior for arguing otherwise.
posted by misha at 9:10 AM on May 24, 2012 [4 favorites]


Misha, I'm relatively sure that contracts are changed after the fact all the time -- with the consent of all aboard, of course. In any case, WFH in the '60s and WFH now are different animals, in large part because we now have several decades of seeing people get screwed over to inform our current practices; it's kind of slanted and false to act as though Kirby lived in the world we live in today with regards to these matters, because of course that world was quite different. Again, these are matters that have been written about extensively if anyone is interested; the Comics Journal's website is a good place to start looking.

It's also kind of bizarre to place responsibility for change in the hands of the powerful people who are least likely to benefit from that change, and downright hilarious to act as if giving the Kirbys a share of the profits would somehow affect the filmmakers' bottom line; I assure you that much less than a billion dollars was spent to compensate Mr. Whedon, et al, much less the caterers, who probably didn't make much of anything at all, relatively speaking.
posted by kittens for breakfast at 10:07 AM on May 24, 2012


But still, none of that would change, retroactively, Kirby's legal agreement with Marvel. That's not how laws work, and it SHOULDN'T be. I am not lacking in compassion for recognizing that reality, and you are not morally superior for arguing otherwise.

this is a strange stance to take. You're not "wrong" or anything, and you're not morally bankrupt for taking it. What I mean is that it's strange because what fans are doing is trying to support the right of their favorite artists/authors/creators to take the legal action available to them, because the above-mentioned story about Jack getting everything he wanted is more than a little rose-tinted and is at best totally ignorant of what Kirby always fought for and never got.

Here's what I mean: Kirby signing a piece of paper willingly that gave away his rights as creator is, in fact, legal, yes. Even if that piece of paper was the back of a check he HAD to sign in order to get paid because that's how you cash a check. Yes, that's legal. But having the people with the money (both his pay and the ability to hire better lawyers if he engaged his legal right to sue) get exclusive ownership over those properties by putting him in that situation and giving him the choice to either lawyer up (and very likely bankrupt himself and still lose) or accept their terrible terms is a situation that any fan has every right to think is deplorable. The same goes for Kirby's later suit and its resolution, which none of us has enough information to judge the content of. But as consumers of the product, we have every right to demand better treatment of creators, and both fans and fellow creators have struggled to have their opinion heard and their support of Kirby acknowledged since well before he died. That's... that's what being a consumer entitles you to. The idea that anyone is adopting a pose that they're morally superior to you is frankly extraordinarily selective. Most people are simply doing what consumers, creators, lawyers and lawmakers have done for centuries: speaking up when they see injustice and working to make change.

When the actors who worked on avengers negotiated their contracts, they did so with representation, capable agents, and they signed paperwork that gave them a certain percentage of the proceeds that they were willing to accept (though that percentage may have been 0%, they accepted that with full understanding of what they'd be getting). That's very simply not the case for Kirby, and I'm inclined to wonder how many comics creators today sign contracts with the big two without having proper agents and legal representation next to them explaining exactly how much they're getting.

There's nothing wrong with thinking that you have a right to speak up, and to engage in activism, when you see something you think is unjust. It's a little infuriating to have that simple act portrayed as a kind of snobbery or condescension when no one would disagree if we were talking about a popular author of traditional books or a director on a movie.
posted by shmegegge at 4:14 PM on May 24, 2012 [2 favorites]


COBRA!: I can see people arguing that way out of contrarianism, or maybe out of a sense of defensiveness because they don't want to feel bad about liking the Avengers movie...

shmeggage, that's the attitude I was referring to with my "morally superior" comment. Everyone who disagrees is not doing it out of contrarianism or defensiveness.

kittens for breakfast: Misha, I'm relatively sure that contracts are changed after the fact all the time -- with the consent of all aboard, of course.

Contracts between living people can be renegotiated. Jack Kirby is dead, though.

The WGA went on strike in 2007 to negotiate better terms, and a lot of influential celebrities backed them. Just seemed to me that the industry backing the writers and artists would make for a better result than a few people boycotting this particular movie, or trying to get settlements for Kirby's descendants.
posted by misha at 5:23 PM on May 24, 2012


shmeggage, that's the attitude I was referring to with my "morally superior" comment. Everyone who disagrees is not doing it out of contrarianism or defensiveness.

I'm not saying I think I'm morally superior. I'm saying that, in this case, I simply can't understand the other side. Usually, I can. Here, I can't.
posted by COBRA! at 5:38 PM on May 24, 2012


Actually, let me clarify a little more: I'm very possibly reacting to a different media landscape than you are. In the past few months, I've seen a lot of web traffic that's very, very similar to that Kurtz piece. And I'm just not capable of reading Kurtz' argument without seeing a shitload of contrarianism and defensiveness. If that's a failing of my imagination, well, mea culpa.
posted by COBRA! at 6:40 PM on May 24, 2012 [1 favorite]


Contracts between living people can be renegotiated. Jack Kirby is dead, though.

No one can know the mind of another, obviously, particularly if that other is dead, but I hardly think it's a stretch to imagine Jack Kirby would want his heirs to benefit from his work at least as much as he would want that for Disney. The difference between Kirby and his estate is largely hair-splitting in this instance, as I think anyone speaking about this in good faith would agree.

The WGA went on strike in 2007 to negotiate better terms, and a lot of influential celebrities backed them. Just seemed to me that the industry backing the writers and artists would make for a better result than a few people boycotting this particular movie, or trying to get settlements for Kirby's descendants.

I'm not saying that wouldn't be nice, and it would certainly get a lot more attention, but this idea is a little like saying that you shouldn't drop a can of tomato soup in a food drive in the wake of a natural disaster because it would be way more awesome and effective if Sean Penn were to roll up in a kayak and personally save people and shit, and who do you think you are anyway, Sean Penn? People do what they can do, if they think there's something to be done, and if you're waiting for someone to clamber down from the top of the mountain and take care of shit for you you may be waiting an awfully long time.
posted by kittens for breakfast at 7:24 PM on May 24, 2012


I hardly think it's a stretch to imagine Jack Kirby would want his heirs to benefit from his work

And remember: Before finally doing the right thing, Marvel *for years* actively prevented Kirby from getting any financial benefit from his own artwork - years toward the end of Kirby's life during which he almost certainly would have been using those proceeds to create a significant inheritance for his children.

Folks who blithely insist on asking "Well why should Kirby's kids get anything?" as if it's the final word in this discussion are really being jerky here.
posted by mediareport at 4:27 AM on May 26, 2012


Folks who blithely insist on asking "Well why should Kirby's kids get anything?" as if it's the final word in this discussion are really being jerky here.

To be fair, I am sympathetic to the broader discussion wrt copyright having an eventual termination point and cultural artifacts becoming the property of the culture at large. But that's really not what's under discussion with regards to Kirby. Number one, the potential beneficiaries would be Kirby's direct descendants -- not some great-grandchildren who are looking to become professional layabouts and reality TV stars or whatever, squandering the fortune made by their forebears. These are the people Jack Kirby worked to support in his lifetime. And second, the choice on the table is not one between the Kirby estate profiting and the Kirby creations becoming open-source. Whether you think these creations should be public domain or not, that is absolutely not a thing being talked about by Disney or the Kirbys, and excluding the Kirbys from profit will in no way make that any more likely a reality.
posted by kittens for breakfast at 7:26 AM on May 27, 2012 [2 favorites]


I read all the Mighty Thor comics when I was a kid, and I had a bit of a crush on Thor, though I loved Sif, too, and all of the Asgardians. The humanity of The Thing was what enamored that character to me as well--I didn't read the Fantastic Four stuff so much as his individual stories, because he was the most interesting guy to me.

The artwork was definitely a big part of the appeal for me as well, and after, reading this thread, and hearing so many passionately support Jack Kirby and his family against Marvel--and I've always been a Marvel fangirl, I never cared for D.C.'s two-dimensional, cookie cutter characters, of which Superman was a prime example, at least back when I was growing up--well, I realized I only knew the comics, really, and not the men behind them so much. Stan Lee put himself out there, but that was it.

So I read these links, and then I went searching for more about those men.

My favorite find is a Jack Kirby interview that speaks to this conflict, and the actual motivations behind the lawsuits.

At this point, Kirby is 71, and obviously fed up, and he's not holding anything back. He uses the interview as a forum to really rip into Stan Lee, just tearing the guy apart for claiming so much credit for their collaborations.

I love the interview because you get a really complete picture of Kirby, how this kid growing up in a tough neighborhood became this creative genius, just on fire with artistry and ideas, but still with just enough of a chip on his shoulder to be resentful at being low man on the totem pole. He's doing all this work for what felt like a pat on the head, calling guys Sir and Mister while they basically tussled his hair and condescended to him, and despite all the focus on money and credit here, it's clear this is a prideful man and what he really resents more than anything is the lack of respect for his hard work.

Now, this interview is not making any attempt to sugar-coat Jack Kirby. What's really great about it, in fact, is that you see all the rough edges on the guy, the lack of polish. You've just got the genuine Jack Kirby, warts and all.

And you can't help loving him. At least I couldn't.

His passion, his fire, it's all still there. And when his memory fails him, as it occasionally does, on the small stuff, his wife, Roz, chimes in with background and perspectives of her own. She's unfailingly supportive of him, he defers to her on all the details, and it's kinda heart-warming, for me at least, to see how well the two of them complement each other. They're a team.

Here's that interview.

Shmegegge, FWIW, though Kirby states outright that he was a freelancer and did work-for-hire, I do think he (which means his family) should be compensated, because he was only paid for the art, and I feel, after reading up on all this, that he should have been credited with most of the writing that Stan Lee capitalized off of.
posted by misha at 9:34 AM on May 27, 2012 [2 favorites]


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