Settling is not how Marvel fights usually end
October 7, 2014 2:53 AM Subscribe
Marvel and the Kirbys’ eleventh-hour settlement—just as SCOTUS was poised to decide whether to take up the case—has been interpreted by some as an admission on Marvel’s part that the Kirbys’ case was stronger than they first allowed. It does seem reasonable to infer that Marvel was incented to settle before things got more complicated, or hazardous, for them. Yet the fact that the case never came to trial (the original 2011 decision was a summary judgment, not a trial verdict) makes it hard to know just what the calculations were on both sides. Interpreting the result as an unalloyed triumph or affirmation for either side would probably be too big a leap. Again, nothing is yet known publicly beyond the official joint statement: a single sentence.The long running lawsuit Marvel had undertaken against the estate of Jack Kirby was recently settled. Kirby scholar Charles Hatfield examines what this settlement might mean for the Kirby estate and comics in general.
In a CBR forum thread, comics writer Kurt Busiek explains how the Kirby estate could file for copyright reversal and why Marvel sued:
So when the Fantastic Four were created, under the law, Marvel only expected to own them for a maximum of 56 years, since that was the maximum length of copyright at the time. At the end of that period, the FF would go into the public domain.Alison Frankel further explains why this case was of importance beyond just comics, because it could've decided whether or not many freelancers would be able to file for copyright reversal:
[...]
So if Congress was saying that sale was actually going to be for much longer (95 years, I believe), then the buyer was getting a much better deal, and the seller should get a chance to get a better deal too. So Congress allows the creator to revert the sale, thus being able to make more money off of the extended copyright period.
[...]
So Marvel's argument is that everybody knew it was work for hire, and because Marvel assigned Kirby work and paid him whether the work was accepted or not, then that makes it work for hire. The Kirby Estate's argument is that no, everybody didn't know it was work for hire, and because Kirby made up stuff on his own and didn't get paid for rejected work, he was an independent contractor making an all-rights sale, which is now revertible under the law.
[...]
And various organizations started filing amicus briefs -- the Writer's Guild, the Director's Guild, the Screen Actor's Guild and others, including the former head of the US Patent and Trademark Office and the former US register of copyrights (who helped write the very laws this case is based on) and others. And they argued that Marvel's definition of employee is not workable, and that if the Supreme Court upholds it, it'll create chaos for other industries, where things that used to be classed as rights sales suddenly got redefined as work for hire. So they wanted the Supreme Court to hear the case and decide that no, the rules of work for hire don't work that way.
[...]
But Disney/Marvel has billions on the line. They don't want to risk losing that. Not even with a pro-business Supreme Court likely to rule for them. Because they're not sure the Court would rule for them. Not with a bunch of people on the other side who make IP contracts their life -- including one of the guys who helped write the 1978 Copyright Law. If that guy is saying, "No, no, it doesn't work that way," there's too much of a chance that the Court will listen.
Granted, 1976 seems like a long time ago, but not when you think about all of the movies, shows, books and records based on old works. A brief by the Screen Actors Guild and other unions representing creative artists, for instance, says that 200 of the songs on Rolling Stone’s top 500 of all time list were released before 1978. As record labels’ copyrights on those songs expire, the brief said, the artists who sold their rights won’t be able to reclaim them under the so-called “instance and expense” test applied in the Kirby case.More background information can be found on Hatfield's Kirby v Marvel page. There's of course also the Supreme Court's case page.
which is now revertible under the law.
This is where I have a problem with the case. At the time of the orignal sale/work/copyright, it wasn't revertible. Only long after was the law changed to allowed it. Law typically doesn't go and undo a bunch of past stuff - if so, then people in jail would be set free because such-and-such is no longer a crime. But at the time it was, and they were convicted of it. Only going forward does the law apply.
posted by Old'n'Busted at 4:18 AM on October 7, 2014
This is where I have a problem with the case. At the time of the orignal sale/work/copyright, it wasn't revertible. Only long after was the law changed to allowed it. Law typically doesn't go and undo a bunch of past stuff - if so, then people in jail would be set free because such-and-such is no longer a crime. But at the time it was, and they were convicted of it. Only going forward does the law apply.
posted by Old'n'Busted at 4:18 AM on October 7, 2014
At the time of the orignal sale/work/copyright, it wasn't revertible.
The sale was effectively for a standard copyright term of 56 years. At the end of that period both parties assumed that the product would enter public domain. The change in law increased the length of copyright, and thus sale, to 95 years. The right to revert copyright was a new right to make it so that creators were not selling copyright for an additional 39 years without compensation.
posted by graymouser at 4:30 AM on October 7, 2014 [12 favorites]
The sale was effectively for a standard copyright term of 56 years. At the end of that period both parties assumed that the product would enter public domain. The change in law increased the length of copyright, and thus sale, to 95 years. The right to revert copyright was a new right to make it so that creators were not selling copyright for an additional 39 years without compensation.
posted by graymouser at 4:30 AM on October 7, 2014 [12 favorites]
Law typically doesn't go and undo a bunch of past stuff - if so, then people in jail would be set free because such-and-such is no longer a crime.
By that argument the change to the copyright is also a problem, because it went back and changed the law for works already created. It's also, in the US, not generally true that laws never have retrospective effects; there's a prohibition against ex post facto laws in the Constitution, but that only applies to criminal law, not civil.
posted by Bulgaroktonos at 5:07 AM on October 7, 2014 [4 favorites]
By that argument the change to the copyright is also a problem, because it went back and changed the law for works already created. It's also, in the US, not generally true that laws never have retrospective effects; there's a prohibition against ex post facto laws in the Constitution, but that only applies to criminal law, not civil.
posted by Bulgaroktonos at 5:07 AM on October 7, 2014 [4 favorites]
Yeah, this is a weird situation. We normally think of contracts as existing between Party A and Party B, but there's also a Party Zero: the government that creates the laws and conditions that allow the contract to exist. In this case, Party Zero has, ex post facto, unilaterally altered the terms of the contract in a way unforeseen by either Party A or Party B, but that gives a significant material advantage to Party A. We can assume that Party B would not have agreed to these terms if they had existed upon signing. If this sort of thing can happen, there has to be a mechanism in place by which Party B can be compensated, or else nobody will be willing to sign contracts for fear of having the proverbial rug pulled out from beneath them.
posted by Faint of Butt at 5:31 AM on October 7, 2014 [5 favorites]
posted by Faint of Butt at 5:31 AM on October 7, 2014 [5 favorites]
Yup, all the changes to copyright should've been found illegal, due to being ex post facto, but obviously the ones buying the laws also bought their interpretation.
posted by jeffburdges at 6:04 AM on October 7, 2014 [2 favorites]
posted by jeffburdges at 6:04 AM on October 7, 2014 [2 favorites]
Yup, all the changes to copyright should've been found illegal, due to being ex post facto, but obviously the ones buying the laws also bought their interpretation.
That's just wrong as a matter of history. In 1976, the U.S. Supreme Court considered a case involving the Black Lung laws that retroactively imposed civil liability on mining companies. The Court found that retroactive legislation that readjusted legal rights and burdens was not unconstitutional just becuase it upset settled expectations. It reached that conclusion even though in that case the law was retroactively imposing additional civil liability for past actions.
Since at least then, it has been clear that retroactive changes in civil law (like employment liability or copyright) can be made if Congress is sufficiently clear about its intentions provided there is a rational basis for the law. Unlike retroactive changes to criminal law, those changes are not barred by the ex post facto clause. The legal principle was established not in the context of large companies or other rich interests buying an interpretation to the law, but rather in the context of mining companies seeking to avoid paying their share of the costs of caring for the miners suffering from black lung disease.
As a general matter, it isn't clear that retroactive changes in civil law systematically benefit monied interests. That has been the case in copyright. However, in other fields we've seen chages to statutes of limitation and repose that have actually, as in the black lung cases, resulted in more corporate accountability.
(There is a separate copyright argument arising from the text of the copyright clause in the constitution, but that doesn't relate to the prohibition on ex post facto laws you mention. Instead, it turns on whether retroactive changes in the copyright lengths can possibly promote the progress of science and the arts.)
posted by Area Man at 6:58 AM on October 7, 2014 [5 favorites]
That's just wrong as a matter of history. In 1976, the U.S. Supreme Court considered a case involving the Black Lung laws that retroactively imposed civil liability on mining companies. The Court found that retroactive legislation that readjusted legal rights and burdens was not unconstitutional just becuase it upset settled expectations. It reached that conclusion even though in that case the law was retroactively imposing additional civil liability for past actions.
Since at least then, it has been clear that retroactive changes in civil law (like employment liability or copyright) can be made if Congress is sufficiently clear about its intentions provided there is a rational basis for the law. Unlike retroactive changes to criminal law, those changes are not barred by the ex post facto clause. The legal principle was established not in the context of large companies or other rich interests buying an interpretation to the law, but rather in the context of mining companies seeking to avoid paying their share of the costs of caring for the miners suffering from black lung disease.
As a general matter, it isn't clear that retroactive changes in civil law systematically benefit monied interests. That has been the case in copyright. However, in other fields we've seen chages to statutes of limitation and repose that have actually, as in the black lung cases, resulted in more corporate accountability.
(There is a separate copyright argument arising from the text of the copyright clause in the constitution, but that doesn't relate to the prohibition on ex post facto laws you mention. Instead, it turns on whether retroactive changes in the copyright lengths can possibly promote the progress of science and the arts.)
posted by Area Man at 6:58 AM on October 7, 2014 [5 favorites]
Joke from the AV Club comments on this story: as part of the settlement, the Kirby family gets to take his name off of Agents Of SHIELD...
posted by Ian A.T. at 7:05 AM on October 7, 2014 [5 favorites]
posted by Ian A.T. at 7:05 AM on October 7, 2014 [5 favorites]
This is where I have a problem with the case. At the time of the orignal sale/work/copyright, it wasn't revertible. Only long after was the law changed to allowed it.
At the time of the original sale/work/copyright, the term was 28 years, with the creator allowed to renew the copyright for 28 years more. This gave creators quite a bit of leverage with a successful property, they could either get better terms or they could simply not renew and the work would be public domain. The 1976 Copyright Act comes along, and for works copyrighted before 1978, the extension was extended from 28 to 47 years, giving those works 75 years protection. For works created after by a known creator, the term was life plus 50 years. Anonymous works, pseudonymous works, and works made for hire were given flat 75 year terms. Later acts extended these terms, but in all cases, there was no more renewal.
So, for works created after the 1976 act came in force, you instead could revert those copyrights after 35 years had passed, but no longer after 40 years. This basically recreated the renewal, except instead of "Renegotiate or I drop it into the public domain", it became "You have to renegotiate or I'll sell the rights to someone else."
What Kirby did was file for that reversion. What Marvel did was sue Kirby saying it was work for hire. When Kirby was actually creating these characters, "work for hire" wasn't a known phrase, that came about in the 1976 Copyright Act, but Marvel said that he was hired to create things. In the case of Stan Lee, it was very clear that all rights had been assigned to Martin Goodman while Stan Lee was an employee, thus it was a work for hire arrangement, but in the case of Jack Kirby, who worked at home, bought his own supplies, and sold works to multiple publishers, it's very much *not* obvious on the face that this was a work-for-hire agreement.
So, that was the argument. Reversion is only allowed if the work was not work for hire. Indeed, the 1976 Copyright Act was the first time that work for hire was treated differently than an all-right assignment. Kirby said he was an independent creator selling all rights to Marvel, and thus he could revert them 35-40 years later. Marvel said it was a work for hire agreement, and thus he couldn't. Lower courts found for Marvel, but many disagree with those findings. The fact that SCOTUS asked for responses from Marvel and Kirby while pondering if they were going to grant cert to the case -- and accepted Amicus briefs as well -- indicates that they thought there *might* be something more to this case. That thought left Marvel Entertainment LLC (a wholly owned subsidiary of the Disney Company) thinking that Very Bad Things could happen, and they agreed to a settlement with Kirby's estate.
What they agreed to, we don't know. I suspect it will involve lots of money for the Kirby estate, the words "Based on characters created by Jack Kirby" to movies where those characters appear, and no halt to Marvel movie, comics, rides, etc.
Yup, all the changes to copyright should've been found illegal, due to being ex post facto,
Ex post facto applies solely to criminal law, not civil law.
posted by eriko at 7:14 AM on October 7, 2014 [6 favorites]
At the time of the original sale/work/copyright, the term was 28 years, with the creator allowed to renew the copyright for 28 years more. This gave creators quite a bit of leverage with a successful property, they could either get better terms or they could simply not renew and the work would be public domain. The 1976 Copyright Act comes along, and for works copyrighted before 1978, the extension was extended from 28 to 47 years, giving those works 75 years protection. For works created after by a known creator, the term was life plus 50 years. Anonymous works, pseudonymous works, and works made for hire were given flat 75 year terms. Later acts extended these terms, but in all cases, there was no more renewal.
So, for works created after the 1976 act came in force, you instead could revert those copyrights after 35 years had passed, but no longer after 40 years. This basically recreated the renewal, except instead of "Renegotiate or I drop it into the public domain", it became "You have to renegotiate or I'll sell the rights to someone else."
What Kirby did was file for that reversion. What Marvel did was sue Kirby saying it was work for hire. When Kirby was actually creating these characters, "work for hire" wasn't a known phrase, that came about in the 1976 Copyright Act, but Marvel said that he was hired to create things. In the case of Stan Lee, it was very clear that all rights had been assigned to Martin Goodman while Stan Lee was an employee, thus it was a work for hire arrangement, but in the case of Jack Kirby, who worked at home, bought his own supplies, and sold works to multiple publishers, it's very much *not* obvious on the face that this was a work-for-hire agreement.
So, that was the argument. Reversion is only allowed if the work was not work for hire. Indeed, the 1976 Copyright Act was the first time that work for hire was treated differently than an all-right assignment. Kirby said he was an independent creator selling all rights to Marvel, and thus he could revert them 35-40 years later. Marvel said it was a work for hire agreement, and thus he couldn't. Lower courts found for Marvel, but many disagree with those findings. The fact that SCOTUS asked for responses from Marvel and Kirby while pondering if they were going to grant cert to the case -- and accepted Amicus briefs as well -- indicates that they thought there *might* be something more to this case. That thought left Marvel Entertainment LLC (a wholly owned subsidiary of the Disney Company) thinking that Very Bad Things could happen, and they agreed to a settlement with Kirby's estate.
What they agreed to, we don't know. I suspect it will involve lots of money for the Kirby estate, the words "Based on characters created by Jack Kirby" to movies where those characters appear, and no halt to Marvel movie, comics, rides, etc.
Yup, all the changes to copyright should've been found illegal, due to being ex post facto,
Ex post facto applies solely to criminal law, not civil law.
posted by eriko at 7:14 AM on October 7, 2014 [6 favorites]
In this case, Party Zero has, ex post facto, unilaterally altered the terms of the contract in a way unforeseen by either Party A or Party B, but that gives a significant material advantage to Party A.
Huh? Party B got exactly what they contracted for -- 56 years of copyright.
We can assume that Party B would not have agreed to these terms if they had existed upon signing.
Only if you assume Party B is deeply irrational and has terrible business acumen.* Their original deal should have weighed the price of the IP and the projected income stream for 56 years; nothing about those two things has changed. If the original deal was (projected to be) profitable, then it was, and rejecting it is the same as walking away from a pile of money.
*This is not necessarily a bad assumption for a media company.
posted by ROU_Xenophobe at 7:22 AM on October 7, 2014
Huh? Party B got exactly what they contracted for -- 56 years of copyright.
We can assume that Party B would not have agreed to these terms if they had existed upon signing.
Only if you assume Party B is deeply irrational and has terrible business acumen.* Their original deal should have weighed the price of the IP and the projected income stream for 56 years; nothing about those two things has changed. If the original deal was (projected to be) profitable, then it was, and rejecting it is the same as walking away from a pile of money.
*This is not necessarily a bad assumption for a media company.
posted by ROU_Xenophobe at 7:22 AM on October 7, 2014
Err, ROU_Xenophobe, "Party B" would be the Kirby estate, not Marvel. Marvel was Party A - the significant material advantage they get is another 39 years of revenue stream, free for nothing.
posted by mstokes650 at 7:26 AM on October 7, 2014 [2 favorites]
posted by mstokes650 at 7:26 AM on October 7, 2014 [2 favorites]
Disney/Marvel settled because the worst case scenario for them was very, very, very bad. In fact, there's even the possibility that the Kirbys lose, and things still turn out badly for Disney. Even if SCOTUS decided that Kirby's work wasn't work-for-hire, they still could have "clarified" the definition of work-for-hire in such a way to make Disney the target of billions of dollars in lawsuits.
posted by 1970s Antihero at 7:46 AM on October 7, 2014 [3 favorites]
posted by 1970s Antihero at 7:46 AM on October 7, 2014 [3 favorites]
Reading comprehension: I lacks it. Now back to evaluating PhD job candidates. \me shakes head in embarrassment.
posted by ROU_Xenophobe at 7:58 AM on October 7, 2014 [5 favorites]
posted by ROU_Xenophobe at 7:58 AM on October 7, 2014 [5 favorites]
So how long until Disney rewrites the laws to keep Mickey locked up? Aren't we nearing that time again?
posted by Canageek at 10:19 AM on October 7, 2014 [1 favorite]
posted by Canageek at 10:19 AM on October 7, 2014 [1 favorite]
Canageek: Mickey Mouse will never be in the public domain. He's trademarked. (It's like a magic wand of 'public-domain? Nope, never!')
posted by el io at 3:02 PM on October 7, 2014
posted by el io at 3:02 PM on October 7, 2014
Got nothing to add/say re: Marvel, but I will note that Charles Hatfield and I attended 9th and 10th grade together at Desert High School in CA. We were in a few AP classes together, hung out a little bit, and hands-down, he was one of the smartest dudes that I've ever met. It's so cool that he is enjoying life and work involved in something that he is passionate about.
Fun fact: Charles and I -- along with a couple of other "nerds" -- created a semi-comic thingie about Pork & Bacon, aka the Sibling Swine. It had something to do with our disdain for the prep/soc kids and their love of designer jeans, which were a thing back in the early 80s.
posted by davidmsc at 3:38 PM on October 7, 2014
Fun fact: Charles and I -- along with a couple of other "nerds" -- created a semi-comic thingie about Pork & Bacon, aka the Sibling Swine. It had something to do with our disdain for the prep/soc kids and their love of designer jeans, which were a thing back in the early 80s.
posted by davidmsc at 3:38 PM on October 7, 2014
Canageek: Mickey Mouse will never be in the public domain. He's trademarked.
How does this work, exactly? Can Disney trademark Captain America? Or can it only be applied to characters that are developed solely (and undisputedly, from a legal standpoint) from a "work-for-hire" arrangement. Or are there additional stipulations?
posted by kisch mokusch at 5:34 PM on October 7, 2014
How does this work, exactly? Can Disney trademark Captain America? Or can it only be applied to characters that are developed solely (and undisputedly, from a legal standpoint) from a "work-for-hire" arrangement. Or are there additional stipulations?
posted by kisch mokusch at 5:34 PM on October 7, 2014
Bleeding Cool (which to be fair, is an iffy rumor site), claims that the settlement was mid eight figures, $30–50 million, along with full named credit.
posted by 1970s Antihero at 3:20 PM on October 13, 2014
posted by 1970s Antihero at 3:20 PM on October 13, 2014
« Older It's 11:30 – do you know where your children are? | "Montaigne was Montaigne, a mountain in more than... Newer »
This thread has been archived and is closed to new comments
posted by 1970s Antihero at 3:54 AM on October 7, 2014 [1 favorite]