NY Court Upholds Marvel Copyrights of Kirby Material

[Lord of Shadows]

From Reuters:

NEW YORK (Reuters) - A federal appeals court ruled on Thursday that the heirs of comic book artist Jack Kirby had no rights to characters such as the Hulk and Fantastic Four that are now owned by Marvel Entertainment, a Walt Disney Co subsidiary.

Complete story here (http://news.yahoo.com/marvel-artist-kirbys-heirs-lose-appeal-over-copyrights-160057610.html)

[SnowballMan]

I never really understood what the point of contention was. Was he not paid? Was there the promise that he would have some control over the characters that didn't happen? Is there some applicable law that I am unaware of? I do not see what they were expecting here.

[Lord of Shadows]

The primary point at issue here is apparently that after a certain amount of time, the creator of an "intellectual property" or their heirs, which apples in this case since Jack Kirby passed away in 1994, can claim the copyright to those properties. Here is more from another, earlier, article:


In September 2009, the Kirbys (Lisa, Barbara, Neal and Susan Kirby) served Marvel with 45 notices of termination in order to reclaim copyrights in several Marvel comics published between 1958 and 1963. The comics included Amazing Adventures #1-6, Amazing Fantasy #1-7, Avengers #1-2, Fantastic Four #1-21, Fantastic Four Annual #1, Journey Into Mystery #51-98, Incredible Hulk #1-6, Rawhide Kid #17-35, Sgt. Fury and His Howling Commandos #1-4, Strange Tales #67-115, Tales of Suspense #3-48 and Tales to Astonish #8 — issues that are noteworthy for having originated such recent and potential Hollywood gold mines as Iron Man, Thor, the Hulk, the Fantastic Four and the Avengers. -The Comics Journal (http://www.tcj.com/marveldisney%E2%80%99s-win-against-jack-kirby-heirs-not-about-fairness/)

There had been a previously successful bid by Jerry Siegel’s heirs to regain the Superman copyrights from DC, which was allowed under a provision of the Copyright law that kicks in when the rights when they came up for renewal. Although DC appealed that case and has had a more recent ruling in their favor. Apparently the Kirby heirs are following in these footsteps.

Sometimes it seems like the only winners are the lawyers...

[Surrealistik]

Sometimes it seems like the only winners are the lawyers...

Which is by design so far as the legal system is concerned (made by lawyers for lawyers).

[TheThan]

I don’t quite get it either.

If Kirby was hired to make those characters for Marvel, then aren’t they the property of Marvel to begin with?

So Kirby or his next of kin shouldn’t have any right to them because they were never his property to begin with, even if he is the original creator.

[Mando Knight]

I don’t quite get it either.

If Kirby was hired to make those characters for Marvel, then aren’t they the property of Marvel to begin with?

So Kirby or his next of kin shouldn’t have any right to them because they were never his property to begin with, even if he is the original creator.

That's what the ruling essentially says.

[Lord of Shadows]

It also seems like when you start digging into any "valuable" property, that it soon becomes like the layers of an onion. Layer after layer of intrigue and maneuvering. Superman, Spider-man, FF, Hulk... etc etc. So many hands in the coin purse.

And then when the layers start opening, those things that seem like they should be certain start to take on a fuzzy quality. This "party" over here says that they have the rights, but then a law comes along that says after so many years "someone else" can stake a claim to those rights, and then the first party says no and wants to hold onto it, and another "someone" has already created some wildly popular version of it, and they all end up in court.

Surreal and sensible all at the same time...

[TheEmerged]

I don’t quite get it either.

If Kirby was hired to make those characters for Marvel, then aren’t they the property of Marvel to begin with?

So Kirby or his next of kin shouldn’t have any right to them because they were never his property to begin with, even if he is the original creator.

Bolded for emphasis. Did Kirby sign a bad deal? Yes, he did.

But he signed it, he was paid, and sadder things have happened.

[SuperPanda]

I don’t quite get it either.

If Kirby was hired to make those characters for Marvel, then aren’t they the property of Marvel to begin with?

So Kirby or his next of kin shouldn’t have any right to them because they were never his property to begin with, even if he is the original creator.

I don't know enough of the history of comics to know how Marvel worked in the years Kirby was an artist for them. If someone else had the idea for the character and he did the art then the visual look of the characters could be his Intellectual property while the characters would be the companys. I think it depends on how he was hired.

If someone else did the concept art and created the general visual look and then just hired him to draw the comics after they had already done all of the creation ... then I agree that Kirby's decendants don't seem to have much claim to the I.P. as I understand the laws. But if he did the concept art then the visual appearance of the character is his IP.

I know from following IP issues with the Star Trek IP and Cryptic's game that the actors of the characters own the rights to their own physical appearances. So if Cryptic wanted to use Data (the character) they'd need to either A) get Brent Spiner's permission and probably pay him for it or B) significantly change the way he looks. CBS owns the character of Data and his story, but Spiner owns the face of Data (his own face).

Comic book characters could be the same thing with Marvel owning the character but the artist owning the "look."

[Lord of Shadows]

That seems to be the central issue, at least in the Kirby case, is whether the work was "made for hire" for Marvel Comics. If it was, it belongs to Marvel. If not, it falls under a copyright law that allows the creator or their heirs to "reclaim" the copyright after X years. That's one for the courts to riddle out now..

I can kind of understand the dispute.. Kirby did some awesome work. And the stuff in dispute is only from '58 to '63. This could be just getting started.

[dps]

That seems to be the central issue, at least in the Kirby case, is whether the work was "made for hire" for Marvel Comics. If it was, it belongs to Marvel. If not, it falls under a copyright law that allows the creator or their heirs to "reclaim" the copyright after X years. That's one for the courts to riddle out now..

I can kind of understand the dispute.. Kirby did some awesome work. And the stuff in dispute is only from '58 to '63. This could be just getting started.

Yeah, the law is pretty clear; it's the facts that are in dispute in this case.

Say that you're a freelance (as Kirby was in those years). If you, on your own, create a new comic about, oh, let's say a ghost in the Old West, and you take it to Marvel to get it published and sell them the rights, then the creation of the comic wasn't done "for hire" but rather sold afterwards, and after a certain time you or your heirs can reclaim the rights. But if Marvel come to you and asks you to create a new comic for them, even if you remain a free-lancer otherwise, that comic is entirely the property of Marvel, because you were hired to do it.

[tomandtish]

It can get even more complicated than that. In the olden days, a person who was performing work for hire could still also create independent properties. Let’s create a hypothetical example: Stupendous Man (and remember, we’re back in the 50s and early 60s here). I’m a work for hire drawer for Marvel.

Scenario 1: I’m drawing a comic for Marvel and without any discussion I add in a new hero Stupendous Man. Marvel owns him. No ifs, ands, or buts. I added him as a character to a work I was contracted to draw. They own him and any characters I added in that fashion.

Scenario 2: I can go to Marvel and say “hey, I have an idea for a character of my own that I’d like to develop”. I can then negotiate with them for them to either buy the rights, or use the copyright. If we cannot come to an agreement, I better not use the character in any work I draw for them. I can however, do scenario 3…

Scenario 3: If 2 fails (or instead of 1 or 2), I can choose to take the property somewhere else and try scenario 2 again or (if I had the money) even try and develop it on my own.

These issues are one of the main reasons why these days companies will try and claim that they own all intellectual properties produced by their employees (whether direct or work for hire). It’s not uncommon for a company these days to claim that they will own everything, including things the person was trying to work on at home.

Note: Stupendous Man copyright by Bill Waterson of Calvin and Hobbes and probably others.

Some of the argument the Kirby heirs are trying to make is that the properties fall under the copyright part of scenario 2. That is, even though he was work for hire, he specifically held those for an agreement.

Given all the Superman fuss in the late 60s and early 70s, it is surprising that Kirby himself never tried arguing the point before his death. Even at the height of his feud with Marvel, he was always upset that he didn’t get credit for creating the characters, not that he was claiming he owned them.