On Jack Kirby’s Estate vs. Marvel/Disney

Despite stories on The New York Times and L.A. Times websites (among many others), there still seems to be a fair amount of confusion regarding the situation, particularly in the comments sections of many comic news sites and forums.

Many people are under the impression that Jack Kirby’s work for Marvel in the 1960s was “work for hire.” This is quite simply not the case. The concept of work for hire wasn’t even legally established in the U.S. until The Copyright Act of 1976.

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work… Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire. (From the PDF “Work-Made-For-Hire Under the 1976 Copyright Act,” http://www.copyright.gov/circs/circ09.pdf )

As a freelance artist, Jack Kirby was unquestionably an independent contractor.  As proof that this clause exempted characters Kirby co-created from “work for hire” status, Marvel Comics held Jack Kirby’s original comic art hostage throughout the 1970s – and most of the 1980s – during their multiple attempts to get Jack to sign away the rights to his work. (http://www.tcj.com/aa02ss/n_marvel.html)

There have also been questions regarding whether or not Captain America (which Kirby co-created with Joe Simon in 1941) will be one of the characters included in the suit. In The Comic Book Makers, Joe Simon states that Kirby sided with Marvel when Simon sued over the ownership of Captain America in 1967. Marvel promised to pay Kirby the same amount they paid Simon upon settlement of the case, and in exchange, Kirby signed a document surrendering all of his rights to Captain America to Marvel.

Joe Simon and Marvel wound up settling out of court in 1969.

In December 1999, Joe Simon filed Notices of Termination with the Copyright Office in order to regain his copyright of Captain America from Marvel. In 2000, Marvel sued Joe Simon for “damages as a result of his public claims of sole-creator rights toward Captain America.” (http://www.tcj.com/index.php?option=com_content&task=view&id=233&Itemid=48)

In 2003, the case was once again settled out of court – presumably for the last time. (http://www.nytimes.com/2003/09/30/business/media/30MARV.html)

With that, it seems unlikely that Kirby’s estate will be pursuing 50% of Captain America.

It has been suggested that creating characters was part of the job Jack Kirby was paid to do. In 2001, Joe Simon’s attorney made the following statement:

“When the {1976 copyright} statute was changed in 1978, the whole point was to give people who may have sold their property for a cheap price the chance to take it back,” says Simon’s attorney Ross Charap. “The premise is you don’t know what something’s worth till the public tells you. Congress said, “Let’s do something for those who sold their goods at a rate far less than the value the public established for it over time.’ Somebody who gave something up for very little 50, 60 years ago should be entitled to get some additional compensation for the great work he or she did.” (http://www.sfweekly.com/2001-04-18/culture/custody-battle/)

A similar statement can be found in the decision overturning Marvel’s short-lived 2002 victory over Simon (which led to the above mentioned 2003 settlement):

The Supreme Court has noted that the renewal term operated to “permit the author, originally in a poor bargaining position, to renegotiate the terms of the grant once the value of the work has been tested.” Stewart v. Abend, 495 U.S. 207, 218-19 (1990); see also Woods v. Bourne Co., 60 F.3d 978, 982 (2d Cir. 1995) (“[Through the renewal term] Congress attempted to alleviate the problem of the inability of authors to know the true monetary value of their works prior to commercial exploitation.”). (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=docket&no=027221)

Some people have even accused Jack Kirby’s estate of being “opportunistic” in its timing (in reference to Disney’s recent acquisition of Marvel). It seems that there may be another (perhaps less obvious) reason:

Under copyright law, creators and co-creators can seek to regain copyrights they previously assigned to a company 56 years after first publication and can give notice of their intentions to do so up to 10 years before that.

Kirby’s children would be eligible to claim their father’s share of the copyright of the Fantastic Four in 2017, while the Hulk would come up in 2018 and X-Men in 2019. The copyrights would then run for 39 more years before expiring, after which the characters would enter the public domain under current law.

A representative for Marvel declined to comment. A Disney spokesperson said, “The notices involved are an attempt to terminate rights seven to 10 years from now and involve claims that were fully considered in the acquisition.” (http://latimesblogs.latimes.com/entertainmentnewsbuzz/2009/09/comics-artist-jack-kirbys-children-move-to-reclaim-character-rights-from-disney-marvel-studios.html)

Note the phrase, “… claims that were fully considered in the acquisition.”

This implies that prior to their acquisition of Marvel, Disney was aware that Kirby’s estate had legal grounds for regaining his share of the copyrights on characters he co-created, possibly because his estate was attempting to negotiate with Marvel prior to the announcement that Marvel was being purchased by Disney. Whether or not this is the case, I’d be surprised to find out that a proper court case was “thrown together” in the three weeks since Disney’s acquisition of Marvel was announced.

There also seems to be no shortage of speculation regarding how Jack Kirby would feel about his estate’s lawsuit. I’m not sure how he’d feel, but I know what he said in 1986 when Marvel attempted to get Kirby to sign away his rights in exchange for his original artwork:

What happened was that Marvel decided to return {original comic} pages to the artists, and they sent the releases out to the various artists that did work for them over the years. My release was quite different than the others. It was a release I couldn’t sign, and that created a controversy. It mystified me; I don’t know why I got this kind of a release. It was a four-page release; it was almost like a contract, whereas the average release was something I could sign. I would’ve signed it, and there would have been an ordinary exchange of release and pages. They created a situation in which I was stuck; it became a legal thing, and I’m sorry about the circumstance itself – but it was they who sent the release out, and it was I who can’t sign it. So they kept my pages…

… Specifically, I can cite one clause that didn’t allow me to sue Marvel for anything at all. It violated my civil rights; as an American you should be able to sue anyone you like. But Marvel insisted that I wasn’t allowed to sue Marvel, and the entire premise of the thing was humiliating to me, to my family, and being a little macho in nature, (laughter) I couldn’t do it. (http://twomorrows.com/kirby/articles/19hour25.html)

Marvel eventually agreed to return some of Kirby’s art, as detailed in The Comics Journal:

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…

… The final resolution came in May of 1987, nearly three years after Marvel had first begun returning original art backstock and nearly 30 years after it had begun accumulating the art. 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.” The form was signed and the art was returned. The eventual tally of Kirby art Marvel had collected for return came to approximately 1,900 pages, still far short of his total output for Marvel but considerably more than the amount originally specified. (http://www.tcj.com/aa02ss/n_marvel.html)

Common sense suggests that this “amended short form” did not require Kirby to sign away rights that he wasn’t willing to sign away in the four-page document, though I suppose this is one of many points that will be contested in court.

Lastly, it’s hard to argue that Disney-Marvel isn’t getting what it deserves. If Disney (alongside other media conglomerates) hadn’t spent the last few decades buying legislation convincing Congress to extend copyright terms, Kirby’s estate wouldn’t have a copyright suit to file.

(Written by Brian Matus, co-host of The Kryptographik Podcast)

7 Responses to “On Jack Kirby’s Estate vs. Marvel/Disney”

  1. Great article. Thanks!

  2. Nat Gertler says:

    “The concept of work for hire wasn’t even legally established in the U.S. until The Copyright Act of 1976.”

    This isn’t true. The term “work made for hire” (the term used in and more fully defined by the 1976 law) goes back to the 1909 copyright law.

  3. Hellstorm says:

    Note the exact wording from Copyright Act Of 1909 – “…the word “author” shall include an employer in the case of works made for hire.” This is hardly the same thing as “a creator surrenders all of his or her rights to an employer in the case of works made for hire.”

  4. Nat Gertler says:

    By making the employer legally an “author”, it permitted the employer to register and renew the copyright in their name. It’s application is seen in rulings such as

    “On the contrary, we believe that when one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature, that in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done.” —Lin-Brook Builders Hardware v. Gertler (no known relation)

    To me, that sure looks like the concept of employer owning it unless otherwise agreed to.

  5. Hellstorm says:

    From: http://cases.justia.com/us-court-of-appeals/F3/429/869/494739/

    As the majority explains, the 1909 Copyright Act does not contain a definition for the term “work-for-hire.” The majority describes how courts have developed the doctrine establishing the meaning of the term, and how that doctrine has evolved to encompass a broader range of employment relationships. As the majority acknowledges, this court-made doctrine initially held that only works created by traditional “employees” fell under the “work for hire” doctrine. Id.; see also Cmty for Creative Non-Violence v. Reid, 490 U.S. 730, 749, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (“CCNV”), Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322, 1327 (9th Cir.2000). It was not until the 1960s that this Circuit for the first time included work created by independent contractors in the scope of the “work for hire” doctrine. CCNV, 490 U.S. at 749, 109 S.Ct. 2166; Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298, 300 (9th Cir.1965). The presumption that a given work is “for hire” is simply that — a presumption, “based on the presumed mutual intent of the parties.” May v. Morganelli-Heumann & Assocs., 618 F.2d 1363, 1368 (9th Cir.1980). I conclude that as the law stood in 1948, it is unlikely that either party to the transaction viewed the sale of Crusade in Europe to Doubleday as the creation of a work for hire. No one has suggested that in 1948, when Eisenhower entered his deal with Doubleday, he was in a traditional employment relationship with Doubleday. Yet the law governing “work for hire” in 1948 extended only to such relationships. Thus, I fail to see how the majority can conclude that the parties intended the work to be “for hire” when that doctrine was understood to encompass only works created by employees.

  6. Nat Gertler says:

    “Thus, I fail to see how the majority can conclude that the parties intended the work to be “for hire” when that doctrine was understood to encompass only works created by employees.”

    Oh, I certainly see that, but I suspect they’ll try to argue that Kirby was an “employee” by some definition of the term (although some earlier comments suggest they’ll be relying on the “instance and expense” descriptor in Lin-Brook.)

    It looks to me like Disney has a difficult case… but also a lot of financial incentive and, of course, a strong legal arm, so it should be interesting to see what they do wield.

  7. I think you are right about the timing – the Disney acquisition has nothing to do with the Notices of Copyright Termination. http://intheeyesofthelaw.com/2010/03/26/king-kirby-kids-v-minacious-marval-and-dauntless-disney/


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