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“This Has Been Building”: An Interview with Chris Roberson

Last week, Chris Roberson, a novelist and publisher who has worked on several comics titles for DC and Vertigo, including his own co-creation iZombie, announced via Twitter that due to ethical concerns, he was no longer comfortable working for DC Comics. The remarks, following in the wake of several other controversies (including the Before Watchmen announcement, and general disappointment over the handling of Jack Kirby’s legacy, among other things) very quickly spread throughout the comics internet, and shortly led to DC terminating Roberson’s contract. Roberson’s public statements, and the sometimes fiery arguments that they have provoked, seemed in some way to augur a possible modest paradigm shift, and we were very pleased when he agreed to speak to us about what happened, his relationship with DC, and the ethics of the comics industry.

What led you to decide you could no longer work for DC?

Well, this has been building over the last few months, and mostly had to do with what I saw DC and Time Warner doing in regards to creator relations. I think the first thing—you have to understand that when I first started working for DC in 2008, the Siegels had just recaptured half of the copyright for Action Comics #1 and I felt very good about that. That seemed like a very positive step. And then over the course of the last few months there has been the counter-suit against the Siegels’ lawyer, Marc Toberoff, and I was less sanguine about that, and starting to get a little itchy about it, and then there were just a few general things about the way that it seemed that DC regards creators now that are working for them—and I can talk about that more in detail—but the real kind of proverbial straw that broke the camel’s back was the announcement at the beginning of February of Before Watchmen, which I just thought was unconscionable. And so I had already signed a contract by that point to do six more issues of iZombie, of which three of them had been turned in, and so I just made the decision to go ahead and turn in the remaining three, not wanting to jeopardize the livelihood of my collaborators Mike and Laura Allred. But once I turned in the last one, even though I had other work lined up, I would have to at least—if only for my own peace of mind—let people know that I wasn’t happy with it.

Did you hear about Before Watchmen at the same time everybody else did?

Yeah, I’m not on the super-secret don’t-tell-anybody list at DC and so I’m never told anything before anybody else is. To be honest, I think it was a weekday and so we were up early getting our daughter ready for school and when I came across the headline I swear I thought that I’d misread the calendar and it was April 1 because I couldn’t believe it was actually a thing that was happening.

I think a lot of people had that reaction. And just to be clear, your decision to leave DC wasn’t based at all on the way you were personally treated?

Well, I mean I have, like anyone does, a list of grievances, things that I feel could be handled better and I think there are larger kind of systemic issues with the way that talent and creators are regarded, but none of them were enough to force me to make some sort of public declaration and drastic break.

And that’s really an issue above and beyond why you decided to leave DC — making your decision and motivation publicly known via Twitter. Was that something you deliberated about before doing?

Over the course of the last few months, I have been reining myself in from complaining too vocally and publicly about things like Before Watchmen. I couldn’t completely restrain myself so if you go through my Twitter feed or my Tumblr posts back through February there are an awful lot of quotes from Alan Moore from interviews and panel descriptions dating back to 1987 about what the terms of that deal were. But then I was very much trying to bite my tongue and not be too vocal about it. I had literally mailed in my last script and had that morning read David Brothers’ essay on Comics Alliance, which I thought was a very concise and thorough examination of all the problems I had with DC and also that I had with Marvel. Those kind of collided in a very unscripted unplanned declaration of my feelings on the matter, and to be quite honest I thought that that would be read by the few thousand people who follow me on Twitter, who would then shrug and it would be no big deal. I’m not walking back from those statements in the slightest, but I was in no way prepared for the kind of response it got.

When you made those earlier comments, had you ever gotten any blowback from DC, or did anyone ever take you aside and say you shouldn’t be talking like that?

Not a bit. In fact starting at the beginning of February I did a number of interviews that were specifically and only about that, but I think that because many of them were audio podcasts, no one took the time to listen to them all the way through and realize that I was making all these very disagreeable statements about company policy, which in some cases were much more confrontational and inflammatory than what I ended up getting castigated for. So yeah, I expected at any moment for there to be blowback, but no one appeared to be paying attention until the day that three of my tweets were quoted on Bleeding Cool. And within two hours of that appearing on Bleeding Cool, I got a call that I was no longer employed by the company.

And they told you that the reason for this was because of what you’d written on Twitter.

Yeah, and specifically the one tweet which questioned the ethics of the company. Because I have done one or two work-for-hire things using DC properties I would occasionally get questions from readers asking was there a chance I would work on X character or this particular book, and after I said I don’t have any intention of working for DC again, somebody said, “So you’re not going to work on Legion of Superheroes then?” and I said, “In a better world, characters like the Legion would be owned by a more ethical company, but sadly not in this one.” That was enough apparently to inflame the ire of the higher-ups at DC.

That’s really interesting, that it was the direct comparison to superhero ethics.

Yeah, and that’s really one of the things about it that has rankled me so much over the course of the last months. Because the only defense that’s offered of things like either Before Watchmen or the counter-suit against the Siegels or any number of different things that have been done historically is that the company is operating within the bounds of the law. The company is doing nothing illegal. There’s no defense mounted to the ethics or morality of their actions, and in many cases they will make kind of passing nods to the fact that what they are doing might be interpreted as unethical, but that because it’s not illegal, you know, they’re going to do it. And seeing as these are companies, both DC and Marvel, that are built upon stories about paragons of virtue who stand for what’s right, not for what’s nitpickingly legal, that was really bothersome to me.

Have you gotten much reaction from other creators about what’s happened, and if so, what have they been saying to you?

Yes. I’m not comfortable naming names, but it has been overwhelmingly supportive and positive. I have not yet had any communication with any creator publicly or privately who doesn’t agree with what I’ve said.

Earlier, you mentioned that you did have some misgivings about how DC is treating creators currently. Was there anything in particular you were referring to?

I can’t speak for Marvel because I’ve never worked there, but at least at DC over the course of paying attention as a reader over the course of the last decade, and then definitely as someone employed by them over the course of the last few years, a culture has arisen which seems to devalue the role of the creator and prize the creation. The most telling examples I could point to are things like if you go to the DC website, there are categories for titles, there are categories for characters, and there are categories for movies or films. There is no category for creator. If you go to the listings for Superman or Batman or Wonder Woman, there is no mention of the people who created them. In many cases, there are listings for the the creative teams on individual titles and individual collections, but even there in many cases the names are wrong. They are legal names which have been pulled from contracts and not the names as credited. I am credited at least three different ways on that website, as Chris Roberson, John C. Roberson, and John Roberson. (John being my first name.)

But hand in hand with that there’s been this awareness on the part of DC, it seems, over the course of the last few years that they need everyone to present a kind of unified front. And so you would get things like a few years ago before he passed away, Dwayne McDuffie was fired from DC for having the temerity in public on a message board saying that a plot point was not his idea but editorial suggestion. He didn’t argue with it, he didn’t complain, he merely answered a fan, saying, I was going to do something different but these characters belong to them. Now that can’t happen, because everybody that works on DC work-for-hire projects has to sign a non-disclosure agreement, and legal action can be taken if they say something even as innocuous as I didn’t want those two characters to date or whatever the case may be.

When did that start?

I can’t say for certain, because they never asked me to sign one, which I think might have been an oversight. But it was definitely in the run-up to their relaunch last year. I know that people started signing NDA’s about a year ago because other creators would ask me in these kind of hushed tones, “Was I in the club? Had I signed?” and I’d be like I don’t know what you’re talking about.

Did you happen to see [DC co-publishers] Dan DiDio and Jim Lee’s public reaction to your declaration over the weekend? What did you think of it?

I did. I thought that it was really telling in a lot of ways. First, the fact that I was dismissed after saying I no longer wanted to work there is, I think, pretty immaterial, because I had already publicly stated that I don’t want to work for them and I’m not comfortable being associated with them. I think the question was asked by the reporter from Publishers Weekly, Shannon O’Leary, but then the response, at least in large part, was just justification for why I was fired, which doesn’t at all address the points I’d raised about ethics. What I found really fascinating was the last sentence of the first thing that Jim Lee said. He talks a bit about how Alan signed the contract, how Alan didn’t read the contract, that we’d paid him money, and then he said, “To say there’s clearly one side that’s right, I would dispute that.” Which is a weird thing to say if you think that you’re in the right!

I think that in a lot of ways so much of the hue and cry for creator rights over the course of the last—forever, really, but definitely in the seventies and eighties—in large part was about remuneration. It was about getting fairly paid for one’s labor, and the fruit of ones labor, and definitely in that aspect DC has done a fairly admirable job, at least with stuff initiated after that. But the other part of the creator rights manifesto back in the ’80s was over creator control and the moral rights that a creator could exercise, and that’s the part that they don’t talk about very much, because that doesn’t seem to exist.

I’ve honestly never had anything like a privileged conversation with anybody at DC about these matters. I’ve spoken to Alan Moore a few times, but we’ve never discussed Watchmen, or DC for that matter. But I think it’s telling, if you go back through the history of the way they’ve exploited the various rights over the course of the last twenty-six years, that just a few years ago Alan was offered the rights to Watchmen back, along with I think a fair amount of money, for his permission for DC to do prequels or sequels or whatever the case may be. They wouldn’t have done that if they had the legal right to do so. If they had the clear-cut, indisputable right to exploit those rights, they wouldn’t have offered him that because already he was on the outs with them. I think it was about ten years ago DC was going to do a line of Watchmen action figures and they showed the prototypes at a toy fair, it was announced, and then the line was killed when Alan objected. Again, clearly, whatever the terms of that contract were, Moore and Gibbons had some amount of input into how those rights could be exercised. According to all accounts that I’ve heard, Paul Levitz was steadfastly against doing sequels or prequels to Watchmen since the late ’80s, and it wasn’t until he left his position that suddenly these plans were put into motion. But again, I don’t have privileged information. That’s just on the level of me from the outside reading public statements from people involved.

Alan Moore has implied that one of the reasons he hasn’t sued over Watchmen is that if he did, he wouldn’t be able to speak publicly about the situation.

I think there’s that. I think there’s also, and he’s joked about this a couple of times, but if he were to file suit against Time Warner he would likely have a protracted and very expensive lawsuit on his hands. We have the case of the Siegel estate who had a very clear-cut indisputable claim to recover the rights on Action Comics #1 after a certain amount of time passed. They exercised those rights and were awarded them, and still Joanne Siegel went to her grave never seeing the end of that, because Time Warner has a battery of lawyers who were going to fight her.

And unimaginable sums of money.

Yeah, and I think that honestly, you know, I see this complaint often by partisans on message boards and Twitter and whatnot, that for some reason Alan Moore just needs to get over this and stop whining about it. As though he were not constantly asked about it and then reluctantly gives responses. You know, because I don’t think he spends a lot of time dwelling on it. He’s moved on. He’s become a magician. He continues to write fantastic work. I don’t think it’s something that keeps him up at night. And I think that a lawsuit that would last into years or decades is just something that he doesn’t have a lot of interest in.

Another thing Jim Lee said was that he wished you had reached out to him before going public. Did you ever consider doing that?

Well, I tell you if I thought that I could go to the co-publisher of DC Comics and convince him not to do Before Watchmen and to return the rights to Action Comics #1 to the Siegel and Shuster estates merely by making a phone call, I would have done it in a heartbeat. That doesn’t seem realistic. I don’t think that the opinions of one very low-ranking peon freelancer who does a couple of books for DC and Vertigo is going to have a very great impact, nor do I think they could sway me with whatever their arguments are, so it would have been a wasted phone call.

One of the writers involved with Before Watchmen, J. Michael Straczynski, has argued that Moore’s treatment hasn’t been any worse than what happened to Siegel and Shuster, or what happened to Jack Kirby, and basically seems to suggest that this is just the way it goes in the industry. Does that argument hold any water for you?

The day that that appeared on the internet I first found out about it from other pros I saw reacting to it in kind of shocked disbelief. As I said on Twitter then, anyone who uses past injustices against creators to justify new injustices against creators is beneath contempt. I think that that is despicable and abhorrent. The mindset— I don’t agree with that, I guess you could say.

You have made your discomfort with DC’s policies very clear. Would you have similar misgivings about working for Marvel?

I don’t have as clear an understanding of the internal workings of Marvel, of how they deal with their current creators. I can say that I would be deeply uncomfortable on ethical grounds making a living working on, for example, characters created by Jack Kirby whose family receives absolutely no remuneration for it. Yeah, so it’s largely a moot point because I have not been offered work, and at this point I doubt I will, but if offered I would turn it down.

[UPDATE: Chris Roberson has e-mailed in to offer the following correction: "I've learned since speaking with you that Marvel reached a settlement with the creators of Captain America some time ago, and in that instance at least the Kirby estate has seen remuneration for Kirby's creation."]

[UPDATE 2: Neal Kirby has e-emailed to correct the above: "The settlement Roberson refers to was only between Marvel and Joe Simon. My parents were not part of that action, and never received any remuneration from Marvel for Captain America. Also, neither the estate nor myself and my sisters (separate from the estate) have ever received any funds from Marvel for Captain America."]

Is there anything you can point to that DC could change that would make you feel comfortable working for them again?

There is, actually, and it was suggested not to me, but in a public forum, I think on Heidi MacDonald’s ComicsBeat.com, by Kurt Busiek. Kurt is tireless in wading into enraged inflamed conversations online and being a voice of reason. But what Kurt suggested was that if Marvel and DC both were to retroactively grandfather their current work-for-hire creator-equity deals— For example, now if you work for DC and you create a character that appears in one of their books, and then years down the line it’s an action figure or it appears in a movie or appears in a TV show or gets republished or whatever the case may be, the person that created that character gets a check. So what Kurt suggested was if DC and Marvel were to grandfather their current equity deals back to 1938 that they would obviate the need for the lawsuits that many of the creators and their estates continue to bring and that also they would have a public relations bonanza on their hands because they would be able to show how they were taking care of the people that made these characters that people cherish now. In much the same way that Time Warner settled with Siegel and Shuster in the ’70s so they could trot them out for the premiere of the Superman movie. How great would it be if Time Warner could point to how they were helping pay for Tony DeZuniga’s hospital bills while they were promoting the Jonah Hex film, or whatever the case may be. I think if they took better care of the people who created the characters that other hands now service, that would do a great deal to engender fonder feelings on my part.

One other thing I would add is that if DC and Marvel did retroactively grant the creator-equity deals to their former creators, we wouldn’t need a Hero Initiative now, because those guys would be getting money. It would reduce the profits a miniscule amount for the larger corporations, but it would take care of entire generations of now dying old men and women who have gone on to see their creations continue to generate revenue they or their children don’t have any part of.

Your career previous to comics was in science fiction and prose publishing. Do you ever have conversations with your friends from that world about creators’ rights in comics, and if so, how do they react?

I’ve had those conversations and it depends. I mean, to people that have a blushing familiarity with prose novels, they’re aghast at the way that the rights structures work, at least for work-for-hire stuff, but for those novelists who’ve done work-for-hire novels, whether it’s writing novels for tie-ins for TV shows or games or action figures or whatever the case may be, they’re perfectly sanguine about it, because it’s the same thing. The difference is that in the prose world, the work-for-hire stuff is a very small sliver that is kind of—I don’t want to say the bottom rung, but it’s not the thing that the most attention is paid to. More attention is paid to stuff that people create themselves and own. And there are sometimes confused looks when I have to explain that the reverse is true in the comics industry.

One thing that is different now than it was say thirty years ago is that there are now a larger number of companies outside of just DC and Marvel that creators can work for if they’re interested in doing this kind of comic. I imagine that helped make your decision easier than it might have been for others decades ago.

I was certainly conscious of the fact that even though DC and Marvel between them dominate most of comics sales that there are almost inarguably more outlets for creator-owned work elsewhere than there are inside those two companies. So I didn’t suffer a lot of hesitation on that count, knowing that I wouldn’t feel comfortable working for those companies and I could work elsewhere. I think the difference is that back then guys like Kirby and Steve Gerber just went to work for television when they got to the point where they would burn bridges with the bigger companies. I also think readers are by and large more aware of this stuff now because of the internet. I mean back then you had to wait for some fanzine or Amazing Heroes or The Comics Journal or whatever, and these days within minutes of me saying I didn’t want to work for DC any more on Twitter… I will say though that within minutes of me saying I didn’t want to work for DC anymore on Twitter, I not only got questions from readers, but I was also contacted by other publishers.

Which leads to the obvious question about your future plans in comics.

It’s all creator-owned stuff, meaning that I own it and the artist owns it. At least two projects are with publishers and there are other projects that aren’t, but I can’t really say what those are until July.

And regarding iZombie, the impression I got from your previous statements is that DC currently holds the rights, up until the books go out of print, and then they revert to you. Is that correct?

No, it’s actually tied to new work no longer being commissioned, which is suggestive in and of itself that the creator-owned contracts within DC have been changed, so that going out of print is no longer the trigger. Suggesting that someone at DC realized that that maybe wasn’t the best way to go. So now with iZombie, the rights will revert a certain amount of time after Mike Allred and I are no longer commissioned to do new work.

Is there anything you regret about how this all went down?

I don’t regret it in the slightest. I mean, the whole thing is for all these months I had just … discontent I guess is the best word for it— discontent with the feeling that with each new odious thing that was announced or action that was taken, that I was somehow complicit with it or being associated with the company. And now that I have very publicly and clearly broken ties with it, it’s no longer my problem. And I can point out why I think it’s wrong, but I don’t have to feel like I am a silent or willing participant.

A lot of these objections are things that have been raised repeatedly over the decades, but they are easily kind of brushed away, but now with the internet… I mean I’m a very small fish—I’ve done a few books, a few people read them. DC is certainly not losing any sleep about not having me on the payroll tomorrow. But if nothing else it is very encouraging that my very small minor example has sparked discussion about a lot of this stuff that will hopefully cause more people to continue asking questions, and ideally lead more creators to express their feelings if they disagree with what’s going on.

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218 Responses to “This Has Been Building”: An Interview with Chris Roberson

  1. patrick ford says:

    The most absurd argument I’ve heard directed at Moore is, “He didn’t read the contract.”
    Well sure he should have. The telling thing is why was the clause saying DC could hold onto the rights by keeping the book in print in the contract? There is clear intent on the part of DC, why else would they have the clause in there? Certainly DC knew it was there, and would anyone assume they made an effort to make Moore aware of it, as opposed to pointing out the rights would revert to him and Gibbons?
    One thing I wonder is when the contract was signed? I would assume before the first periodical issue was published. Were the individual issues kept in print (reprinted) prior to the collected edition? Is it possible the early issues were out of print for over a year before the collected edition was published? It might be the rights to all the characters should revert to Moore if a year went by between the release of issue #1 and the time it was collected and reprinted.

  2. Issue twelve of Watchmen has a cover date of October 1987 and the Watchmen trade paperback indicia indicates a 1987 publication.

  3. Rafael says:

    It’s easy to point at twenty-odd years ago and, with hindsight based on our broadband-internet levels of access to information on DC’s business practices, blame Moore for not reading a contract. But you have to remember the man had just recently crossed the Atlantic over from England, where he often worked under loose verbal agreements. His first experience with DC was a very positive one on Swamp Thing (in which ownership was never an issue), and then they offer him what appeared at the time to be a very progressive contract on Watchmen. There was simply no reason for Moore not to trust them, in his view.
    As we all know now, that trust was misplaced, and he was cheated out of his rights to one of the masterpieces of the medium.

  4. Ramón says:

    Cheers, Mr Roberson. Best of luck in your future endeavors.

  5. patrick ford says:

    What is the date of the very first issue of The Watchmen? Was it reprinted prior to the publication of the collected edition? Weren’t all the characters introduced in the first issue? If the characters reverted to Moore, then then he would own them. Probably not a battle Moore wants to fight though.

  6. Excellent, insightful interview.

  7. Ramón says:

    I may be wrong here, but my understanding is that the deal was that DC would own Watchmen for as long as they were printing it, plus a year. From what I can gather back then comics had a limited shelf life, so it made sense the book would eventually expire and Moore and Gibbons would end up owning it.

    But it happened to be a huge success, and DC simply never stopped printing it, and thus the terms for the reversion clause have yet to apply.

    What nobody knows for sure is if DC simply took advantage of the situation, realizing they struck gold and had a legal right to keep printing money with it, or if they deliberately duped Moore and Gibbons with a meaningless clause they had no intention to ever fulfill.

  8. I’m not sure Moore didn’t read the contract. Nonetheless, he correctly understood it–he knew that all rights for WATCHMEN would be tied up until it went out of print. Given that this was a significant advance over the contracts that DC was offering at the time for any of their work, he took it, and (as has been noted repeatedly) both he and DC presented it publically as a big advance in DC’s respect for creator-owned works. In the event, however, it made no practical difference, which Moore certainly wasn’t expecting (and probably neither was DC).

    I’m extremely proud of Roberson for taking the stand he has taken. I wish that, as a reader, I showed the type of courage he just showed as a creator. That said, I’m going to nitpick one thing he said:

    “a few years ago Alan was offered the rights to Watchmen back, along with I think a fair amount of money, for his permission for DC to do prequels or sequels or whatever the case may be. They wouldn’t have done that if they had the legal right to do so.”

    My understanding was that DC believed that they had the legal right to do the spinoffs but they (by which I mean mostly Levitz) didn’t want to do them if Moore was going to be upset and publicly complain.

  9. George Bush (not that one) says:

    Kevin J Maroney is correct about Moore knowing the terms of the contract, there is an early interview with him stating that they don’t own Watchmen.

  10. patrick ford says:

    What is really disgusting is to see various people from fans to Jim Lee cheering at the thought Warner duped Moore. The attitude is basically “What a boob, doesn’t he know better than to play Three Card Monte on the streets of NY? It’s like a big celebration that comic book publishers can still get away with their old tricks. There is a whole group of people who think that is just great.
    “Did you see the way they screwed that guy? Whoah Man!!! That is so awesome!”

  11. Pingback: Creator Rights & The Average Reader | Comic Book Daily

  12. Robb Orr says:

    Excellent interview! I really applaud Mr. Roberson for taking a stand for what he believes is morally correct. I will be buying any creator-owned titles that he may be involved with in the future, as a show of support.

  13. Fly on DC's Wall says:

    I’ve read the Watchmen contract.

    Reversion does not occur when the comics go out of print. The reversion scenario begins when the property stops generating income. This includes ancillary income from licensing.

    If there has been no income for two consecutive years, Moore and Gibbons can apply for reversion. They have to send a jointly signed letter requesting it. DC can then do one of two things. One, they can send a transfer document for Moore and Gibbons to sign. Or two, they can pay Moore and Gibbons a $10,000USD fee to keep the property for another year. At the end of that year, Moore and Gibbons must send another letter requesting reversion. If DC has no further plans for the property, they will send Moore and Gibbons the transfer document. After they both sign it, the property is reverted to them.

  14. Fly on DC's Wall says:

    Also, it was not DC’s intention to dupe Moore and Gibbons with the reversion clause.

    Frank Miller’s contract for Ronin contained the same clause. DC was in the process of reverting Ronin to him in late 1986. They even sent him the transfer paperwork. After he received it, they asked him if he would be interested in doing a collected edition for bookstores. The initial numbers on The Dark Knight Returns collection were very good. Warner Books wanted to do more graphic novels right away. Miller agreed to let them do the new edition. He sent the contract back unsigned.

  15. Pingback: 4thletter! » Blog Archive » Before Watchmen: “there’s a war going on outside no man is safe from”

  16. octo7 says:

    Hey Mr PR cleanup-man from DC (fly on a wall,) prove it.

  17. Steve Myers says:

    I was discussing this with a friend today, and I just wanted to share. My reaction to Mr. Roberson’s comments was that I want to create an anti-blacklist. Basically a list of creators who because they stand up for what they believe in, I will continue to seek out and purchase their future work. Anti-Blacklist under way. Roberson currently tops it. I hope to start adding more to it quickly. Thanks for doing the interview.

  18. Nick Marino says:

    Good interview. THUMBS UP! I’ve only recently read Chris’s work, which I picked up because Jim Rugg did a fill-in issue of iZombie. But reading this intelligent and thoughtful interview puts Chris on my radar like never before.

  19. Eddie campbell says:

    what he said is perfectly sensible. Just because they’re behaving badly now doesn’t mean they intended to do so from the beginning. Contracts are usually set up that way. the publisher holds the rights until five years after the publication of the collected edition or something like that. it’s up to the author’s lawyer to insert a clause that allows for the possibility of NO collected edition eventuating, in which case the publisher could go out of business but hold the rights in perpetuity. Such a publisher wouldn’t have had the intention of going out of business and the author wouldn’t have thought of it. Nobody in the universe in 1985 could have envisioned a comic that stayed in print for 25 years. No such a thing had ever existed, and there was no reason to think that such a thing ever would. I think it would have taken a canny lawyer to have imagined it, asked the question and inserted the necessary clause. I once sent a contract back that wound up being, after my lawyer was finished with it, four time the length of the one the publisher sent in the first place. The publisher felt that all this wasn’t necessary, that they liked to make contracts that authors can understand. I said, “If we ever end up in court it won’t be me you’ll be arguing with, but my lawyer, so it doesn’t matter whether I understand it or not.’
    But i had to screw up on one important contract before I got to that position.

  20. James says:

    That’s fucking hilarious that the TV writer guy has no problem with writing this crap because the offense to Moore “isn’t any worse than what happened to Kirby, etc”, as if that makes it okay.

  21. Ryan Fearing says:

    While I agree with and applaud Mr. Roberson for what he’s doing, I would say I think he might be a bit innaccurate as to reasoning for DC canceling the Watchmen figures several years back. I think it had a bit less to do with Moore having the legal upperhand and more the fact that Moore was just then working for DC for the first time in over a decade after his first public throw down with them. Moore didnt TRY to start working with DC, it just happened that he was working at Wildstorm when Jim Lee decided to sell his company to DC and so Moore sort of wound up there. Maybe the years had softened his stance against DC or he thought enough turnover happened there that he was okay with working at Wildstorm after that (if I remember right I think he still didn’t want to deal with anyone on the DC side any more than necessary, but I could be wrong), but either way, I think DC was more inclined to follow Moore’s Watchmen wishes at that time because for the first time in so many years he was technically working with them again and that was their shot to make good and get one of the best selling/most acclaimed writers to ever work for them back on good terms and maybe working with them again. That and Paul Levitz seemed to genuinely want to do the right thing for the most part. Of course Joel Silver and WB ended any hope of that with all that V for Vendetta brouhaha. That’s the way that situation always seemed to me anyway. Either way, it still doesn’t paint DC in a great light now.

  22. Ryan Fearing says:

    But again that’s just coming from the way I remembered it and that was a long time ago, so if I’m missing a whole mess of important details, please forgive.

  23. Ken Raining says:

    The problem’s not that Moore didn’t read the contract, it’s that no one in 1986 would have ever thought that there would be a reason to keep a trade paperback in print for any length of time. Moore and Gibbons certainly didn’t, and I honestly think that the DC PTB didn’t at the time. Watchmen essentially created the evergreen graphic novel, much to Alan Moore’s eventual chagrin.

  24. Ken Raining says:

    I’m on board.

  25. Ken Raining says:

    As I remember, DC had been steadfastly working to melt the ice, and the action figures were announced as part of the (I guess it would’ve been) 20th anniversary of Watchmen. Moore had given his blessing, and everything was going smoothly, and then the problems with the pulped LOEG and censored Cobweb story popped up, and Moore essentially said “you guys haven’t changed, forget it”, and the figures were scrapped.

  26. Ken Raining says:

    Chris: I’ve been wondering, since these books were announced, how I would react if I were a working professional in comics. I hope I’d do what you did. You’ve handled yourself with dignity and class, and I for one am a new fan.

  27. Jason Azzopardi says:

    Aside from how sad this seems to make one of the true masters of the medium, what I find most disheartening about this whole thing is the faux mercenary attitude of the fan boys supporting DC in this venture. They’re all fucking contract geniuses with their 20/20 hindsight, twenty-six years later. What they don’t realize is that, anonymously attempting to be an alpha male while pontificating about comics on the internet doesn’t make you more savvy than anyone else, it just makes you an ignorant amoral cunt.

  28. Michael Grabowski says:

    Actually you can look up TCJ’s archives here, #116 or #117, the Watchmen issue, and read a Moore/Gibbons convention panel transcript where Moore discusses these terms of the contract, and is very happy about them. I forget the date of the panel itself, but it was from sometime in the early-middle of the series. (The TCJ issue came out late in the series, possibly at/after the end, but prior to the 1st trade edition.) So Moore was definitely aware at least of the in-print and merchandising aspects of the contract as they pertained to his and Gibbons’ rights to the work, although he might have been ignorant or naive about the extent to which DC could push the definition of what they were allowed to do with the work and characters. I remember reading his statements twenty-five years ago and thinking then that he was way off if he actually thought DC would ever let him have the rights back, though.

    I don’t know how immediately the trade paperback went into print following #12, but certainly it was less than a year because I remember seeing the book being required reading for some lucky lit class at my college in ’88 (alongside Maus).

  29. Michael Grabowski says:

    In all likelihood, DC never had any intention of giving back the book any time soon but figured if it kept making money for both them and Moore-Gibbons, everyone would be happy about it. That’s how it usually works in publishing, isn’t it?

  30. Michael Grabowski says:

    I would question the bit about noone envisioning a comic staying perpetually in print. It seems to me that Marvel and DC both had habits of reprinting key comics and stories in varying formats from the 60s and up. Treasury editions, pocket books, full-size books, reprints in modern pamphlets. An actual copy of Action #1 or Amazing Fantasy #15 would be scarce and expensive, but it wasn’t ever difficult to find a reprint of the stories themselves in some recent edition.

    The early-mid 80′s saw Marvel and DC both producing direct-market-only reprint series of specific runs like the O’Neil-Adams’ Green Lantern-Green Arrow, Starlin’s Warlock, Kirby’s New Gods, & Thomas-Adams’ X-Men, and even Miller’s comparatively recent Daredevil comics featuring Elektra were chopped up and condensed into The Elektra Saga reprints. Marvel Tales started reprinting The Amazing Spider-Man from #1 over again somewhere in there too.

    Okay, none of these were perpetual, but I pose these to suggest that by the time Moore and Gibbons were dreaming up Watchmen, in fact the big two comics publishers were actively pursuing strategies to exploit more of their past publications, both distant and recent. I would also argue that the move towards mini-series and “maxi”-series, was an attempt to produce compact self-contained stories that could by design fit later into pre-defined book packages if any of them showed promise. I think both Ronin and The Dark Knight Returns represented from DC’s end two properties that they encouraged and allowed Miller to create with the specific intent of producing something more marketable in collected form for the long-term. They probably expected Watchmen to perform more like Camelot 3000, but when it did far better they had their deal in place that they probably thought would make all concerned happy as the money rolled in.

  31. Pat Palermo says:

    All this legal quibbling aside, it is absolutely disgusting to see creators who claim to revere Moore’s original NOVEL (and it is a novel, not a serial, with a clear beginning, middle, and end that are thematically whole) participating in this ‘Before Watchmen’ nonsense, holding forth in press conferences about how jazzed they are to meddle with his most celebrated achievement for the sake of nothing more than a cash-grab by the publisher that screwed him over. Whether he read the contract or not. If it were anything more than a cash-grab, DC would have made amends to Moore and done their damnedest to get his blessing for their project. They knew that would never happen, of course. So the creator must sit in a corner while these shills tinker and fuss over something that was already a complete artwork AS IS. The best they can do is minimal harm to his legacy. They will never ‘improve’ on Watchmen. I’m not saying it’s a perfect book, but it is without a doubt a COMPLETE one. Imagine what ‘Game of Thrones’ would be like if HBO had stolen the rights to George RR Martin’s books and had simply re-written all his work, and created new backstories for his characters without his input?

  32. sensevisual says:

    Ironic how some of the artists involved in Before Watchmen were railing against “dark” “non-heroic” super-heroes, calling for a return to more “wholesome” super-heroes who could serve as examples to children, and talking bullshit about stuff like the “real sense of heroism”…
    Look at those fuckers now.

    I suppose it makes sense in the head of someone who cares more about Superman killing a villain, than about what happens in real life to real people like Siegel.

  33. patrick ford says:

    The involvement of the creators is the most disappointing aspect of this. You expect Warner to be Warner. You know fans follow fictional characters, and not creators. These things couldn’t exist though unless they are written and drawn.

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  35. JS says:

    There are several other examples.

    Starblaze/Donning, beginning in the early 1980s, published trade-paperback collections of Elfquest that were distributed to bookstores. Dave Sim was publishing the Swords of Cerebus trade-paperback collections around the same time. Fantagraphics started the Love & Rockets book collection series in 1985, around the time the Watchmen contract was being negotiated. Moore was certainly aware of that one, as he provided a lengthy back-cover blurb for the first volume.

    Marvel published their first trade-paperback collections in 1984, with X-Men: The Dark Phoenix Saga and Iron Man: Demon in a Bottle. If anything, DC seemed behind the curve on this front.

    Moore seemed pretty supportive of DC’s trade-paperback program when it got going in earnest in 1987. This was despite his falling-out with them over the labeling issue. He wrote an extended introduction for the first Swamp Thing book, and I think he even traveled to New York to help promote the collected edition of Watchmen when it first came out.

    I understand his annoyance. I wouldn’t want to be stuck in a business relationship with a company I detested, either. It doesn’t matter how much money I was making from them. But when you’re dealing with a company in a big conglomerate, that’s the risk you take. More often than not, the suits don’t care about your feelings if they think it stands in the way of their profits. And as this Before Watchmen thing proves, the current suits at DC are pretty shameless.

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  37. Pat Palermo says:

    It really is enraging, because we aren’t talking about tinkering with an ongoing serial, we are talking about ‘filling in the blanks’ of a story that is meant to be a stand-alone artwork. It would be a dubious endeavor even if it had Moore’s approval. Without it, it’s a project that is creatively bankrupt from the get-go. It’s not as if Moore didn’t tell us what ‘really happened’ to Hooded Justice because he didn’t have enough pages to work with. ‘Guernica’ isn’t a black-and-white painting because Picasso didn’t have color paints on hand. Godot isn’t absent from the narrative because Beckett couldn’t get the funding for the special effects. ‘Watchmen’ has narrative gaps and certain unexplained mysteries BECAUSE THEY ARE BUILT IN. Again, the best any of these people can hope to acheive is irrelevance to the main narrative; the worst, outright harm. And they will have sacrificed their credibility to have done so.

  38. This is a nitpick, but it’s an important one: There were comics that had been in print continuously for 25 years by the time of Watchmen–the Tintin volumes, for instance, or the Ballantine volumes of the Kurtzman Mad comics (The Mad Reader, Son of Mad, etc.). As others noted below, the O’Neil/Adams Green Lantern/Green Arrow stories were reprinted 3 times between their original publication and 1986, and it was clear that collections were something both major publishers were supporting as a new business model. So the idea that Watchmen might remain in print for a very long time was not unthinkable, even then.

    That said, there’s a world of difference between a publisher saying “we will keep this in print and continue to profit from it as long as it’s also making money for you” and “we will keep this in print and as a consequence we will be able to create spinoffs whether you want us to or not”. It’s not a world I like living in.

  39. 15th Anniversary edition, but otherwise, correct. By the 20th anniversary, Moore was once again obviously irreconcilable with DC.

  40. El Dorado says:

    I’m sorry, I feel for the creators that didn’t get their due, yet at the same time I cannot feel all that sorry for them either. They signed a contract that you’d think they had read and even gone over with a lawyer. I’m sure the original creators of Superman, the Marvel universe, may have wanted their families taken care of on a financial level from the successes of the respective character(s) they created, but if if wasn’t in the contracts or put into the contracts on their end of things, then that won’t be the case.

    Got to add, as much as I’m for the rights of creators, I can’t feel too much pity for some of them either. And those SOME I’m eluding to are the ones that don’t take any and all necessary precautions to cover themselves legally.
    I don’t buy the excuse that they didn’t know how successful their creations may become since after their debut. They should’ve sought out the proper legal representation anyway, if they TRULY gave so much as a damn to hold onto any viable ownership of an intellectual property.

    Can’t feel sorry for the heirs of Siegel and Shuster, Jack Kirby, or even original Batman writer Bill Finger. They didn’t dot all their Is and cross all their Ts by getting the necessary legal representation to help them out in the matter.
    There’s no excuse for lack of legal attentiveness in accordance to negotiating and finalizing a contract with anyone, then or now.
    That whole THEY DIDN’T KNOW HOW SUCCESSFUL THEIR CREATIONS MAY BECOME thing doesn’t actually hold ANY water. Siegel and Shuster KNEW (given Superman WAS A HUGE SUCCESS RIGHT OUT OF THE GATE from his debut in Action Comics #1), but signed away Superman anyway.
    Yeah, it’s sad that things didn’t happen on the legal score for them, but they had the opportunity to get their butts covered legally via proper representation.
    It’s a sad story for Bill Finger too, but unlike Finger, Batman’s creator Bob Kane DID take measures to protect himself and get his slice of the Batman pie. His father was an editor for The N.Y. Daily News and KNEW ENOUGH to get his lawyers on Kane’s behalf. Hence the reason that Kane and his widow ended up living comfortably and had all kinds of back-end deals and such on the Batman movies and assorted merchandising.
    Kane died a prosperous comic creator because he had the right legal representation on his side, unlike many other creators.
    Same goes for The Spirit creator Will Eisner. He covered his ass, in the legal sense.

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  42. Pat Palermo says:

    Sure, sure. You are aware that hiring lawyers costs money, right? And that in the case of Kirby, Marvel kept possession of artwork that they NEVER HAD ANY RIGHTS TO? Marvel owned the reproduction rights but not the original artwork, and yet it is well documented that they held on to thousands of pages of Kirby’s work and even gave it out as corporate gifts. But he didn’t have an army of lawyers at his beck and call, being a lowly illustrator, so that’s fair. Everything in the market works A-OK. All is right with the world.

  43. James Romberger says:

    Too bad that the anonymous El Dorado doesn’t feel sorry for screwed creators. For contrast, this faceless individual holds up other guys as examples of “smart” creators, one being Bob Kane who, I am under the impression, in turn screwed his ghosts and whose pops was an editor for the NY Daily News and so, one assumes, was sufficiently connected and could afford a lawyer. The other, Will Eisner, is a credit hog who also did most of his best work via ghosts and was one of the guys who invented the miserable piecemeal bullpen system that was and is so greatly to the advantage of publishers that they keep it in play to this day, so that no one creator can be too invested in what is considered by the publishers as, and basically only deserves consideration by the public as, product.

  44. Rick Worley says:

    Chris Roberson is awesome.

  45. Wiessmuller says:

    I worked at the UK publisher of the Watchmen GN at the time and seem to remember that Alan and Dave had the right to approve any and all merchandise related to the book. Hence the proposed action figures not happening. Of course they can happen now because they are related to the movie.

  46. patrick ford says:

    There seems to be a lot of confusion about contracts. In the case of the writer/artists selling freelance material to Martin Goodman in the late ’50s through the ’60s there were no contracts of any kind. Disney/Marvel was unable to produce a contract from that era, not even a waivers on the back of a freelancers checks. This should have worked strongly against Disney/Marvel in the recent case where they sued the Kirby heirs. The reason it wasn’t helpful is the judge accepted Lee’s testimony that he alone created every character before ever speaking to Kirby, Ditko, Wood, and other writer/artists selling freelance material to Goodman. Lee claiming everything came after he had created the characters and plots, and assigned the job of drawing his characters and stories to “his artists” was the whole foundation of the judges ruling. The heirs lost on the instance expense clause because if Kirby was not creating characters on his own time, and then trying to sell them to a publisher who could either reject or purchase them, then he was taking no risk. Lee claimed Kirby created nothing except artwork, and the artwork was assigned to him by Lee. Lee also claimed Kirby (and every “artist” working on his assignments) was paid for all work they turned in no matter if it was accepted or rejected.

  47. Rick Worley says:

    I also like how the crack team of PR geniuses didn’t even realize that he had been saying this stuff for weeks until Bleeding Cool told them.

  48. patrick ford says:

    Eisner is also a guy who backed up publisher Victor Fox to the hilt when DC sued Fox over the Wonderman character created by Eisner. For years Eisner described in interview after interview how his testimony had badly damaged the defense of Fox. When the actual court records were dug up a couple of years ago it turned out Eisner had strongly supported Fox.

  49. Wiessmuller says:

    I wonder if one would do an audit of DC if Watchmen really never went out of print in all that time. The UK publisher (who co-publishes and co-prints with DC) didn’t have it in print for a while I recall…

  50. Wiessmuller says:

    Ronin was copyright Frank Miller Inc as I recall. Watchmen was a DC copyright.

  51. Pat Palermo says:

    I certainly find El Dorado’s comments distasteful and not terribly well-informed, but I can’t bring myself to equate Bob Kane–who was by all credible accounts a man of meager talent and poor character, whose input in his own signature creation may have been negligible–with Will Eisner. Eisner’s business model may leave something to be desired, but his personal talent as a comics creator is hard to dispute and it seems really extreme and unjust to lump him in with Kane.

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  53. James Romberger says:

    I wouldn’t have gone out of my way to connect Kane and Eisner, blame El D for that. As you say, Kane was a much lesser talent than Eisner who obviously did some strong work. Still, it is a fact that my favorite Spirit stories were written by Jules Feiffer and it remains unclear how much of the art I like best was done largely by the hands of his ghosts. Despite his claims, he did not create the first graphic novel with A Contract with God, which is a collection of short stories published after other contenders and I find much of his work appallingly sentimental. And, he was a condescending interviewer in many cases, check most of Shop Talk.

  54. Leigh Walton says:

    Why do you read stories about heroes if you’re not interested in heroism?

  55. Thad says:

    Not the first time; the McDuffie situation he mentions is likewise a case of Rich Johnston compiling a bunch of comments McDuffie made on DC’s own messageboards over a period of weeks or months.

    (He does exaggerate what happened to McDuffie, BTW: McDuffie wasn’t fired from DC, he was just kicked off JLA. He continued to work for DC until he passed away — though I’m not sure if he continued to sell scripts to the comics division or if he just worked for the animation division.)

  56. Pat Palermo says:

    My apologies, James. After rereading the posts above, I see it was in fact El Dorado, the provocateur in the lucha libre mask(at least that’s how I picture him), who seemed to equate Kane and Eisner. ‘Nuff said.

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  58. Dave says:

    Not exactly a quote…

    I am going to go against the grain here with a couple of thoughts. I find it odd for anyone to think they are due anything extra when they are doing work for hire. The characters in Watchmen were not original characters, they were based on a whole other set, and it’s funny that the majority of Moore’s popular work is using other people’s creations.

    Chris Roberson has a problem with DC/Marvel not throwing money at these few creators mentioned, but I think every comic creator who has worked for the corporation comics companies has created a character or two for their stories. No one expects to go into it thinking they will retain the rights to the new Batman villain.

    You all call in the ethics of these people/companies, but anyone who doesn’t know they are working for a company trying to make the most money they can is foolish, and that even goes for those working for the companies back in the day. If they would have turned down the work, someone else’s creations would be in the movies right now.

    And there are a lot of people here making their own conclusions as to hat the people involved knew or know, you should stop thinking you know all aspects of the stories because you only know what people say publicly.

  59. Daniel Best says:

    It’s an interesting interview, but as somebody who has followed the Superman suits very closely, I can tell you that DC aren’t suing Toberoff merely because they can and because they want to be obstructive – there’s a whole, different wrinkle to it. In effect Toberoff potentially stands to be the majority owner of the Superman trademark, earning more out of it than the Siegel and Shuster heirs ever would. I’ve posted a lot of documents on my blog, just last week, that show some of the more dubious activities that have gone on, and are still going on, around that case.

    Plus, it shows that Michael Siegel – Jerry’s son – was more than likely screwed over by parties that are not DC Comics…but were very much closer to home.

    Having said that, yes DC and Marvel both shouldn’t be screwing anyone, and Kurt Busiek’s idea of applying a grandfather clause of some sort is a brilliant one, and one that all companies should aspire to implement immediately.

  60. JS says:

    Marvel was indisputably the owner of that art, at least by the time the return of it became an issue in the mid-80s. In practice, Marvel was purchasing both reproduction rights and the physical artwork. If their view was they were only buying reproduction rights, they would have returned the art to Kirby, Ditko, et al., as a matter of course. According to Kirby, he asked if he could get the art back in the ’60s. Marvel refused. Now if Kirby’s view was that he was only selling reproduction rights, he had six years to contest what Marvel was doing. That’s the statute of limitations for a civil dispute in New York. As far as I know, he let it go. The last of that work was turned into Marvel in 1970. Kirby’s legal claim to ownership of any of that original art was gone by 1976.

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  62. tpull says:

    Actually, JS, Marvel did not outright own anyone’s original artwork. If they did buy it, they would have paid sales tax on the transaction, and they ever did.
    From http://archives.tcj.com/aa02ss/n_marvel.html:
    “If a publisher were to officially take possession of the physical art that it reproduced in comic-book form, then, under the law, the transaction would involve more than the assignment of publishing rights; it would constitute the sale of an object. As such, the transaction would obligate the publisher to pay sales tax on the original art. No one in the comics industry had been doing this and for longtime publishers like Marvel and DC to insist on ownership of original art would’ve meant embracing a disastrous debt to state governments. “

  63. patrick ford says:

    The comment by JS is full of assumptions and errors.
    In practice Marvel was buying reproduction rights because that is what the earliest known documents say the checks were being issued for.
    Kirby’s legal claim on his Silver Age original art expired Oct. 31 1987 according to the judges ruling. See page 13.
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/49/0.pdf?ts=1290858606
    BTW the ruling notes that although the statute of limitations had expired on the Kirby heirs charge Marvel was holding undisclosed Kirby artwork, it turned out Marvel was holding (as late as 2010) 60 pages of Kirby original art, and agreed to return 37 of the pages.

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  65. Michael Grabowski says:

    Watchmen was not a work-for-hire project. That’s the key reason this is even a controversy and not just a pointless debate.

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  67. JS says:

    Michael Dean isn’t quoting any legal authority to back up that assertion. I don’t see any reason to believe Michael Dean is a lawyer himself. Besides, it would have been Kirby’s responsibility to collect the sales tax and pay it to the state, not Marvel’s. He was the seller. The sales-tax situation would have supported Kirby’s claim if he had filed a case within the statutory window, but he didn’t. He could argue he was only providing a service, and lending the art for printing purposes. But he didn’t file the case, so it’s a moot point. New York law defines a sale as “any transfer of title or possession or both, exchange or barter, rental, lease or license to use or
    consume or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor.”

  68. JS says:

    I didn’t see your comment before replying to the other one. That ruling quotes a contract between Kirby and Marvel in 1986 regarding the original art: “In recognition of the past participation by the ‘Artist’… Marvel Comics Group… is pleased to deliver as a gift to the Artist the original physical artwork” [emphasis added]. The artwork was Marvel’s property according to that agreement. Kirby acknowledged that by signing it. A contract can’t define something as a “gift” if the giver doesn’t own it. The Kirbys don’t claim the art wasn’t Marvel’s property per that document, at least not as far as I could tell from a cursory reading. The issue of the unreturned 60 pages appeared to be that the gift was contractually defined, and Marvel didn’t meet the obligations of the contract.

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  70. JS says:

    Also, I didn’t see any discussion of checks or agreements from the 1960s in that ruling. Page 13 of that ruling says the legal claim expired because Kirby had one year to see to it that Marvel performed their end of the artwork-transfer contract signed in 1986.

  71. patrick ford says:

    There is no discussion of checks from the ’60s because there aren’t any that could be found. There aren’t any contracts from the ’60s either. The earliest checks which can be found mention only reproduction rights. The earliest contracts are more specific in defining transfer of rights, but again mention only reproduction rights.
    It’s easy for “JS” to say Michael Dean is quoting no legal authority without quoting one himself, or to assert it was Kirby’s job to collect sales tax from Goodman. How would that have worked? Goodman wouldn’t even return artwork to Kirby which had been rejected and not paid for. If Kirby couldn’t get his artwork back how could he have collected sales tax from Goodman. The answer to all these questions is Kirby should have quit working for Goodman. Kirby said this himself, he said the only reason he didn’t was because he had to make a living and provide for his family. Personally I think no creator should work for DC or Marvel, but that’s easy for me to say, they are comic book creators trying to pay bills.

  72. patrick ford says:

    Review the whole Justia document. It’s 1992 which is when the statute of limitation on the 1986 agreement expired. As noted it could be argued Oct. 31 1987 was when the agreement went into effect. In that case the statute of limitations would have been Oct. 31 1993.
    IT’s very easy to bandy about what Kirby should have done. I’ve seen him ridiculed because he threatened lawsuits. The idea there is the threat of a lawsuit made things worse for him. Then people will turn around and say Kirby should have sued for his rights and artwork. Or he should have reported Goodman to the tax authorities, or he should have quit Marvel.
    Well I certainly agree he should have quit Marvel. That way 12 years of his work wouldn’t have been reduced to drivel after passing through Lee hands.

  73. JS says:

    Well, then the question of the content of those agreements is a moot legal issue, unless both sides agree in writing as to what was said. I’m not going to comment on any stated agreement if I can’t see the language.

    The seller is responsible for collecting sales tax and paying it to the state as a rule. The buyer isn’t. Look to your own experience with sales tax. If you buy taxable goods, do you pay the sales tax to the state, or does the seller collect it from you to pass on?

    The state isn’t going to come after the buyer for the sales tax if non-payment becomes an issue. They go after the seller. And non-payment doesn’t invalidate the sale. If you buy a shirt from a clothing store, and the clothing store doesn’t charge sales tax, you still own the shirt.

    How would Kirby have collected sales tax from Marvel? There are a lot of ways. But no matter how intransigent Marvel was, it was still Kirby’s responsibility–not Marvel’s–to see that the tax was paid to the state.

    You’re assuming that Marvel has all sorts of responsiblities and obligations that they don’t have. By the same token, you appear to be assuming that Kirby doesn’t have any.

  74. JS says:

    You go back and read it. The judge ruled Kirby had a year. This was determined not to be a statute of limitations situation. And again, it did not apply to dealings with Marvel in the 1960s. It was very specifically about a contract that signed in 1986.

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  76. patrick ford says:

    Go read page 12 where she clearly states Kirby had six years from the time the agreement was executed to make a claim on any artwork he felt Marvel might be holding. That date would have been 1992 although on page 13 she allows Kirby could have argued the contract terms didn’t become activated until Oct. 31 1987. She also says earlier Marvel “took possession of Kirby’s artwork for the purposes of publication.”
    It was Goodman who was dealing with freelance creators without paper work of any kind. Putting the blame on Kirby for Goodman’s poor business practices is not something I’d do, but many people are comfortable with the idea. The fact Goodman had nothing on paper, no check waivers, no contracts, not even paper assignment slips should logically have worked strongly in the Heir’s favor. It didn’t work out that way because as the judge mentioned she chose to base her ruling on Lee’s testimony.
    Another thing I consider is Kirby died in 1992 and had been in poor health for a couple of years prior. Kirby was in no position to challenge Marvel. The legal expenses would have been large, and the battle protracted. Look at how difficult it was for Kirby to get back what little of his artwork he did get back. The argument there is Kirby made it hard on himself (and held up the return of artwork to other creators), by threatening a lawsuit. And yet the same people who say Kirby should have sued Marvel for any number of things over the years, are the very people who say the threat of a lawsuit was what cause Kirby so much trouble.
    So Kirby should have sued Goodman in the ’60s when Goodman refused to return his artwork, or give him payment or credit form story and character creation? I wonder if Chris Roberson (or Jim Lee) has any guess as to what Goodman would have done if Kirby had sued him?

  77. JS says:

    It’s still completely irrelevant to the statute of limitations with regard to transactions in the 1960s. When the art-return controversy was going on in the 1980s, before that 1986 contract was signed, Marvel owned the artwork. You’re not disputing that. At least not anymore.

    Goodman didn’t need paperwork. You don’t need paperwork to conduct most transactions. You didn’t need it for W4H acknowledgement in this country until 1978.

  78. patrick ford says:

    Would you care to present your evidence Marvel was purchasing the physical artwork in the ’60s?
    While Goodman didn’t “need” paperwork to conduct his transactions with creators (in fact he’s known for breaking handshake agreements), not having any paper work establishing the terms under which he purchased creative work certainly should have been a major problem for Marvel. The judge based her ruling on Lee’s claim he and he alone created every character and plot (1958-1963) before ever speaking to Kirby. If Kirby were still alive he obviously would have disputed Lee’s testimony as did Kirby’s children who testified. The major mistake made by Toberoff was not seeking a depositions from Steve Ditko, Stan Goldberg, Gene Colan, Dick Ayers, and Joe Sinnott. Sinnott, Ayers, and Colan did give brief written declarations which dispute key aspects of Lee’s testimony. Most notably they all dispute Lee’s sworn testimony he (Marvel) “always” (yes “always”) made sure “artists” (writer/artists) were paid for rejected work. The men also all said they never even heard the words “work for hire” until 1978, and they all said they felt they were selling only publication rights. The biggest oversight was not getting a deposition from Ditko. Ditko has been at least as critical of Lee as Kirby ever was. And no one can claim Gary Groth goaded Ditko into his comments on Lee, because Ditko’s criticism is in the form of a scathing series of published essays. Ditko had planned to write even more on the subject of Lee but he came under the same kind of attack leveled at Kirby after TCJ interview, and wrote about the reaction in his essay TOYLAND.

  79. JS says:

    My evidence? Marvel is assumed to be the owner of the physical artwork because they were in possession of it. If you possess something, you don’t have the burden of proof to show that you own it. It’s up to the party disputing your ownership to prove that you don’t. Kirby may have had a case that Marvel didn’t buy the artwork, but he only had a certain window in which to pursue it. He let the window close. Once that happened, Marvel owned it without question.

  80. Tim Hodler says:

    Hey “JS” —

    Just noticed that by a huge apparent coincidence, you share an IP address with Robert Stanley Martin! (And one-time Jim Shooter defender “Brian Logue” too!) You guys all roommates or something? Does Robert know you’re using his computer? Probably. He seems pretty amused by the whole thing.

  81. patrick ford says:

    I just blew hot tea out my nose.

    Maybe next RS will share with us how Gary Groth is personally responsible for the low level of craft in Alternative Comics. You know, Jim Woodring, Dan Clowes, Gilbert Hernandez, Jaime Hernandez, Chris Ware, etc.
    http://hoodedutilitarian.com/2012/01/robert-stanley-martin-on-the-history-and-legacy-of-tcj/

  82. JS says:

    No, I’m not Robert Stanley Martin.

    I agree with the tweet you linked to. He has a point. Fans only believe what they want to hear. As your comment shows, if they can’t argue with the message, attack the messenger.

    I don’t know what to say about the same IP addresses. That of course assumes they’re the same. You “just noticed” my IP address was the same as that of a seven-month-old comment. Sure.

  83. Tim Hodler says:

    Ha ha ha! Yeah, you agree with a lot of things Robert Stanley Martin has to say. It’s uncanny!

  84. patrick ford says:

    Oh for god’s sake.

  85. patrick ford says:

    So Tim and JS meet in the forest and…
    http://www.youtube.com/watch?v=zKhEw7nD9C4

  86. Yes, Kane had access to counsel, but he also lied about his age at the beginning, rendering the original deal unenforceable, which allowed him to get DC by the balls and squeeze. That was a special case. It should also be noted that the big companies generally would not engage with anyone coming in with a lawyer or agent at all until the ’70s.

  87. James says:

    Lovely, I suppose all of the nameless corporate suck-ups have lots of good belly-laughs at the expense of the screwed artists.

  88. Now wearing a large mustache says:

    Hello, I’m just an uninvolved bystander who wanted to stop in and comment on how deplorable I find this conspiracy to link JS and Robert Stanley Martin. Numbers form all kinds of combinations. Seven months is a long time. Why are you so obsessed with numbers? It’s funny that you would be so preoccupied by them. I think the joke’s on you. I’m not being defensive. You’re the one who’s being defensive. Why is it always the other person who’s being defensive? Have you ever asked yourself that? You should ask yourself that!

  89. r.j. paré says:

    You can find multiple interviews and con panels where Moore demonstrated he understood the contract. It isn’t the least bit fair to say DC screwed him and Gibbons. The only thing Moore did not perceive at the time was that the book would sell so well DC could keep it in print for so many years. Moore is bitter about the deal in hindsight – but AT THE TIME – thought it was a good deal.

    No reason to hate on DC over it.

  90. patrick ford says:

    I like to see people, who are so hooked on super-meth they can’t make a post without using a secret identity, display their utter contempt for creators in every single instance. Kirby, Moore, all the rest should have quit the industry and gone to work in a rock quarry. They didn’t because they weren’t superman like fans of The Watchmen and Spider-Man. Those guys are big tough men who know how things work in the real world.

  91. Kim Thompson says:

    My personal opinion is that there is a tremendous human desire to link legality and ethics, and that both the pro-Kirby camp that believes Kirby had a legal claim to his original art and the pro-Marvel camp that believes Marvel treated Kirby ethically are to one degree or another engaging in wishful thinking. Whether “JS” is Robert Stanley Martin or not, he’s avoiding that trap, arguing narrowly (and to my mind not unconvincingly) that Marvel legally did own the art.

    I think we can all agree that “El Dorado’s” comments are gross, though.

  92. Kim Thompson says:

    The problem with Moore’s spectacularly dysfunctional relationship with DC is that it’s based on a combination of legitimate grievances and not-so-legitimate ones, which means it’s easy to pick out one of the lesser ones and poo-poo it and dismiss his grievances in toto. I agree that being mad at DC because the mutually-agreed-upon rights reversion clause turned out to be meaningless because WATCHMEN was buoyed by (and in fact in part instigated) the paradigm shift whereby a super-hero comic could remain permanently in print is silly, but I don’t think that’s Moore’s central grievance. After all, if he was otherwise happy with how DC was treating him, why wouldn’t he be happy that DC kept the book in print and kept paying him big checks for it every year?

  93. Jesse says:

    Is Roberson seriously criticizing Warner Bros. for going after the Siegels’ lawyer? I really sympathize with the Siegels, DC really screwed the creators of Superman over and they deserve more. But their lawyer Marc Toberoff is nothing but the scum of the Earth who deserves to be brought down in the harshest way possible. Anyone who defends Toberoff (Nikki Finke’s Deadline Hollywood is the worst), is an idiot.

    As for the Alan Moore thing, I find myself being in the middle ground over this one. It’s pretty clear that Moore clearly understood his contract and no one saw the success that Watchmen was going to have. So you can’t blame or even hate DC for wanting to continue printing it since it’s a freaking gold mine for them. And with the way Moore has acted, it’s very hard to have sympathy for him. However, they really could have gone up to Moore and reworked the contract, so I can’t exactly find myself siding with DC on this one.

  94. patrick ford says:

    The Warner attacks on Toberoff certainly have been effective. Warner characterized the previous Siegel counsel as “respectable” apparently because he had accepted a settlement offered by Warner. Toberoff took over and won a summery judgment against Warner. Toberoff’s stake in Superman has been known for a long time. If anyone cared to look the law blog Justia has been posting documents concerning the Superman case for a number of years. The fact Toberoff works on contingency (collects no fee) means he’s entitled to everything he can get in what is a very difficult battle against a huge corporation with tremendous resources.
    I’m not sure how Toberoff having a controlling interest in Superman is worse for the Siegels than Warner owning the copyright. With Toberoff having a controlling interest the Siegels come out way ahead.
    Yes Toberoff is motivated by an interest in the Superman property. So is Warner. The Siegels come out way ahead in a scenario where their attorney prevails.
    As to the generous settlement offered by Warner. Maybe the Siegels read the contract? Sometimes when people in Hollywood offer a contract it sounds so good a person might not bother to read it carefully. Later on there can be surprises…see Alan Moore, or the Tolkein heirs.

  95. Nate C. says:

    That’s the uninformed, unreasoned opinion. No one had any inkling of how successful Superman would be out of the gate. Siegel and Shuster had tried to sell the property for years without success, so they had to think they were getting lucky to just get it published. Later, DC in fact went to great effort to minimize the success of Superman to his creators, trying to make them think the character was not all that successful. Remember, there was no Internet in those days, and it was no so easy to track sales figures and whatnot.

    Kane actively undercut his partners in creating Batman. That’s not to be celebrated but abhorred. It wasn’t only Bill Finger, who was easily taken advantage of, due in part to, I believe, alcoholism, but also others.

    When an industry is being built, it’s impossible to know whether it’s going to be the VHS or Betamax of the times. To suggest mostly very young, naive, just coming out of the Great Depression artists and writers could have been savvy enough to “cover their asses” legally is disingenuous at best.

  96. patrick ford says:

    Really there is no reason to assume what were mostly poor, very young, cartoonists weren’t savvy enough to cover their asses. One way or the other it wouldn’t have mattered. These guys needed work badly and comics was a place where they could earn money. The alternative was to not work in comic books. There are no examples I’m aware of where a creator was able to walk in and demand ownership of the copyrights to his characters.
    Kane got the deal he got after the fact. If Kane had demanded the deal he eventually got (by saying he was a minor when he sold Batman to DC) Batman would never have seen print. Will Eisner did not create The Spirit for comic books, it was created as a newspaper supplement. Newspapers already had a history of creator ownership in certain cases. Newspaper publishers valued talent and would lure talent away from other newspapers by offering better deals. Even there though there are no creators who walked in the door on the first day and owned their characters. An early example is Rudolph Dirks. Dirks wanted to leave The New York Journal and take his creation the Katzenjammer KIds with him. William Randolph Heart took Dirks to court, and while Dirks was able to retain the use of his characters, the court ruled Heart owned the trademark on the title. Dirks moved to The New York World where he used his characters in a strip called THE CAPTAIN AND THE KIDS. Later cartoonists like Caniff and Roy Crane were able to leave behind characters they didn’t own and get deals where they owned new strips they created. Charles Schulz was able (incredibly) to gain control of his comic strip Peanuts without having to quit. Schulz did have to tell the syndicate he was going to quit however, and the syndicate came so close to letting him go they prepared Peanuts strips by former Superman artist Al Plastino in the event Schulz quit.
    A comic book creator in the late ’30s was simply not going to walk into the DC office as an unknown kid off the street and demand ownership.
    In the late ’50s large segments of the industry were in big trouble. DC and Dell were still strong, but many publishers had gone out of business. Hundreds of creators were forced out of the industry because they couldn’t find work. Frank Frazetta said he painted this self portrait after leaving Li’l’ Abner, going around with his portfolio and being unable to find work in comic books. http://images.tribe.net/tribe/upload/photo/d91/e5a/d91e5a49-fc40-4fde-bb5b-7f20e4170017
    Arguments against the creators always boil down to a simple “They should have just quit if they didn’t like it.”

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  98. Allen Smith says:

    Had Kirby and Ditko quit when they should have, it would have freed up Stan Lee to show his major talent, that of a smarmy game show host.

  99. Jesse says:

    To me the ultimate problem is that Toberoff is that he has been fighting for his own interests the entire time, not the Siegels. If the Superman copyright is going to be taken away from Warner Bros., it should go to the Siegels and Shuster Estate, not some lawyer who is getting half of the rights and the Siegels and Shuster Estate getting what’s left. There’s evidence that points out that Siegel’s own son did not want to participate in this lawsuit simply because he does not trust Toberoff at all. This is a pure ethical standpoint.

    And this isn’t the first time he hasn’t taken advantage of his clients. He took advantage of the Kirby family as well and tried to get the rights to the Marvel characters.

  100. R. Fiore says:

    We don’t know what private conversations or understandings Alan Moore had with DC at the time he signed the Watchmen contract. The main impression I get from Moore’s position on the contract now is that he doesn’t understand what a revision clause is. You’d have to ask, if they weren’t reserving the right to continue to own the property if they kept it in print, what rights were they reserving exactly? If you’re going to acquire the rights to a property for a limited time what you sign is a licensing agreement. Through the magic of speculation one can imagine what DC was saying in effect was “If this turns out to be some dark non-commercial thing that gets some good reviews and ends there, sure we’ll let you have the rights back in a couple of years,” and Moore hearing this as “We’re going to let you have it back in a couple of years.” If this was his understanding then it may be part of the reason he was happy with the contract at the time. If the details of the contract leaked above are accurate, however, the contract actually gave DC the option to retain the property with a payment even if they weren’t using it.

    Before Watchmen is a kind of an interesting situation. In effect, Moore is on strike and the people who are creating the comics are acting as scabs. It’s complicated by the fact that mainstream comics professionals typically work on properties that were involuntarily wrenched from the hands of their creators through the superior leverage of the publishers. My impression has been as well that under these conditions the creators are loath to invent characters that the publishers will then own, and thus prefer to recycle properties the publishers already own when working under these conditions. Ethics seem to be governed by the Godfather principle — “This is the business we have chosen.” When you’re dealing with the older properties it’s almost a case of “That Girl Scout has been raped so many times that she can’t get any more raped than she already is.” In this case, however, the person who lost his creations is standing next to the gates of the factory with a sign saying UNFAIR. If you’re DC and you have a decent respect to the opinions of mankind the way you handle this is you say, we really want to do this, and we’ve made a reasonable offer (after having first made a reasonable offer), and we believe consent is being withheld unreasonably, so we’re declaring an impasse and going forward. Instead the thinking seems to be that very few of our readers give a damn what Alan Moore thinks so we’ll just go right ahead. To use Moore allusion, it’s more the “Hulk crush puny human” approach.

  101. R. Fiore says:

    P.S.: Management would like to emphasize that no actual Girl Scouts were harmed in the making of that analogy.

  102. patrick ford says:

    What you see as a problem I see as the very reason Toberoff is the ideal counsel for the heirs. Without Toberoff’s self interest he wouldn’t be motivated to take on the case. The attack on Toberoff is the same attack big business always uses against “greedy” trial lawyers. Are we to assume Warner is not acting in their own interest? Are the Siegels better off with “what’s left” or with zero percent of the copyright?
    The fissure in the family involving Michael Siegel has much deeper roots than the arrival of Toberoff. It is very common families don’t agree on the dispensation of an estate (see the Frazetta stories). The essential argument against Toberoff is he caused the heirs to reject a settlement offer described by Warner as “generous.” The risk is the heirs no longer have that offer on the table, but the deal was never finalized, and I’m not inclined to accept Warner’s description of the terms of the settlement. The fact is Toberoff encouraged the heirs to reject the offer, and then Toberoff went out and won summery judgment against Warner on portions of the Superman copyright. Why is the Disney/Marvel summery judgment against the Kirby heirs such a slam dunk where as the Toberoff summery judgment is precarious?
    As to Toberoff taking advantage of the Kirby heirs. In what way did Toberoff take advantage of them? All they can loose is nothing since that’s what they currently get from Disney/Marvel. They pay Toberoff no fee, and he assumes all risk and expense.

  103. James says:

    I’m sure there are plenty of pundits out there ready to testify that the girl scout either asked for it or came to love her rapist and who if they had there druthers would throw out her case anyway because they don’t like her lawyer, maybe they could get D. Cooke to do a comic about it where she dies cutely, suffocating in a plastic bag…WTF

  104. alan choate says:

    It seems to me that as these gross comics lurch nearer to publication now would be a great time for an internet campaign to encourage the comics cognoscenti to buy those new Ditko comics instead. What strikes me about the discussions I’ve seen of them is how few people who are opining about the problems of late Ditko have read them, and how perfectly they seem to be a response to objections to the artist’s didactic, Randian phase. While all are worth looking at, I recommend the series that starts with Ditko Presents, the one with the theater cover, and runs through A Ditko Act 2, 3, etc. That’s the point where Ditko commits to full, dramatic storytelling with a mostly nine panel grid and multiple weird, experimental storylines. They are a stylistically exciting, inventive, freewheeling, exuberantly expressive one-man creative showcase in the model of Eightball and other classic alternative comics. How much more perfectly could a reader pursue the aesthetic trail of the worthy aspects of Watchmen than to send a check to Snyder for a stack of these nine-panel beauties?

    http://ditko.blogspot.com/p/ditko-book-in-print.html

  105. Joe McCulloch says:

    Yeah, I’m an admirer of the stuff myself…

  106. Jesse says:

    Even the courts were thinking that Toberoff is being an unethical douche when they announced that the documents essentially condemning him were fair game to use. Now, I certainly don’t have a desire to defend a faceless and emotionless corporation like Warner Bros., especially considering how they have constantly screwed over the creators of Superman. But just because the actions of DC Comics are inexcusable, doesn’t make Toberoff’s actions excusable.

    What Toberoff should be doing is working for a fee, which is what most lawyers do. The Siegels would be paying him with the proceeds from the Superman copyright in the event that they are successful. That’s the way it should be, not giving him ownership of it.

    As for the Kirby’s considering his deals with the Siegels and other instances where he ended up fighting for the rights of things he would make into films like My Favorite Martian, it’s obvious that he would have tried for the same thing here. But it’s even worse in this instance because he also tried to get the rights to characters that Kirby either had no input in (Spider-Man), had already relinquished all future rights to (Captain America), and characters that were clearly work for hire (Thor).

  107. patrick ford says:

    As I mentioned previously the Siegels are well aware of Toberoff’s motivating interest in Superman.
    Toberoff’s self interest works to the advantage of the Siegels who almost certainly could not afford a long court battle with Warner. The same holds true of the Kirby heirs. Neal Kirby is a school teacher, would anyone think he has the resources to take on Disney in a case which might possibly go all the way to the United States Supreme Court? Sure it would be wonderful if the average citizen had the power to take on the likes of Warner, Disney, and British Petroleum, but that isn’t the case. The demonization of the dreaded “trial lawyer” has been going on for decades. The reason is because it is in the self interest of business. Why is Warner so intent on removing Toberoff from the case? Is it because they have warm feelings towards the Siegels? Clearly they want him gone because he won a summery judgment against them.
    Toberoff having a 51% stake in Superman with the heirs having what is left is better than Warner having a 100% stake and the heirs nothing.
    Kirby did create an unpublished Spiderman, and presented it to Marvel. Kirby’s Spiderman was based on a Simon and Kirby owned property which started off as “Spiderman” and evolved into a Simon and Kirby collaboration called The Fly. Joe Simon gave Kirby a Spiderman logo when Simon and Kirby divided up the studio properties in the mid-’50s. Kirby had every right to use the name and character since he was a partner with Simon, and Simon kept and used loads of material by Kirby after the partnership dissolved.

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  109. Wiessmuller says:

    That’s right. It started out as a Charlton heroes revamp. Alan and Dave convinced the powers that be otherwise.

  110. Wiessmuller says:

    Absolutely.

  111. Wiessmuller says:

    An agreement between two parties initially is a verbal understanding. A written contract should be a reflection of that. I can well imagine that Alan and Dave didn’t take legal advice on the written agreement at the time. It just wasn’t the done thing in the UK at the time (I doubt it’s done today). The 2000AD publisher ,at my time there, implemented something close to the grandfather idea Kurt is talking about above. Essentially the creators get a payment every time their creation gets published, be that new stories or reprints foreign or domestic. There were no contracts from 2000AD per se to reflect this but a letter of intent from the publisher that was given to the creators and signed by them to say that they understood that. There was also a period of consultation with the creators before it was implemented. While this was slightly after the Watchmen book publication (1989) Moore, Gibson, Davis (DR and Quinch and Halo most prominently) etc were happy with those terms and I haven’t really heard anything to the contrary there. So it stands to reason that Alan’s (and Dave’s to an extent) grievances with DC have to do with more personal issues than just the reversal of rights, that being a fairly common clause in the larger book publishing community – as long it’s in print it stays with the publisher. Let’s not forget Alan was happy enough then with DC, to give them the rights to V for their then newly created imprint Vertigo.

  112. Groth says:

    Back to Kirby for a moment.

    “My evidence? Marvel is assumed to be the owner of the physical artwork because they were in possession of it. If you possess something, you don’t have the burden of proof to show that you own it. It’s up to the party disputing your ownership to prove that you don’t.”

    I just wanted to point out that the presuppositions here upon which these assertions are based are almost always false.

    When an artist draws something, he owns his own original art, until such time that he sells it, for which there would be contractual evidence, a bill of sale, etc. to prove that he sold it. There is no such evidence that Kirby (or any other artist) sold the physical art to Marvel. Nor was there any tacit assumption or oral agreement, that the company was buying the original artwork when they paid the artists for reproduction rights. Even the single sentence “legal agreement” on the backs of the checks, when they started using them, said nothing about the original art. Does anyone doubt that Marvel wouldn’t have cared one way or the other if the artist provided his art in repro-worthy Xeroxes, photostats, or digital files? And the only reason they didn’t is because the technology didn’t exist at the time?

    In the absence of any evidence that Kirby knowingly sold his original art, I see no reason to believe he did.

  113. Kit says:

    Moore moved V to DC in 1987, six years before the launch of Vertigo. He’d fallen out with them pretty much by the end of the revived V – this excerpt from his three-part Groth interview is telling, 22 years later:

    I suppose if there was a final, tiny straw that broke the camel’s back, it was when people at DC at one point very subtlely made the suggestion that. . . We were talking about the future of the Watchmen characters. We had been assured that we would be the only people writing them, that they wouldn’t be handed to other creators just to make a fast buck out of a spin-off series. There was a point where a highly placed person at DC did make a not terribly subtle – I think it was intended to be subtle but it wasn’t – insinuation that they would not give our characters to other writers to exploit as long as we had a working relationship with DC. It’s perhaps just me, Gary, but that was a threat and I really, really, really don’t respond well to being threatened. I couldn’t tolerate anyone threatening me on the street; I couldn’t tolerate anyone threatening me in any other situation in my life. I can’t tolerate anyone threatening me about my art and my career and stuff that’s as important to me as that. That was the emotional breaking point. At that point there was no longer any possibility of me working for DC in any way, shape, or form.

  114. JS says:

    Ask Kenneth Norwick or another lawyer to go on the record with their view of the situation. Norwick would be a particularly good choice as he is licensed to practice in New York State. Make up for what you and TCJ have failed to do with your reporting on this matter from the beginning. You usually have been very good about getting lawyers to comment on legal issues in news coverage. I don’t know why you haven’t done it here.

    The principle in question is summed up by the adage, “Possession is nine-tenths of the law.” If you possess something, you’re assumed to own it unless the person disputing your ownership can show otherwise.

    I don’t know what Marvel would have done in other circumstances. We only know what they did. They obviously valued the original art enough to pay to warehouse it for over a decade.

    I noticed you don’t have a response to the statute of limitations question.

    Original art isn’t titled property like real estate or an automobile; the state doesn’t keep records of who buys or owns it. The purchaser doesn’t need paperwork justifying their ownership of everything he or she buys. There are a bunch of Fantagraphics publications in my bookshelves. I’ve had some of them since the 1980s. Obviously, you were the original owner of them. I can’t produce bills of sale or receipts for most of those books. But if you sued me claiming they were still your property, and the entirety of your evidence was that I couldn’t prove I bought them, I would expect the judge to laugh you out of the courtroom. Do you really think the judge would rule in your favor? Based on what you’re saying, you seem to think the judge would.

    Of course, you and I are laypeople engaging in speculation, no matter how informed it is. Settle the question. Have a lawyer go on the record with an assessment.

    One other thing. Before the 1970s, publishers obviously assumed they were buying both reproduction rights and the original art with the artists’ page rates. Marvel and William Gaines kept the art. DC routinely destroyed it once they got it back from the printer. The one time Gaines returned a piece of original art to the artist–Frazetta’s Weird Science-Fantasy cover–he pro-rated Frazetta’s payment. This is the way things were done back then. If memory serves, “the way things were done back then” principle was enough to sink Marv Wolfman and Dan DeCarlo’s copyright challenges. I believe it contributed the defeat of the Kirby heirs, too. It’s another reason to believe Marvel legally owned the art.

  115. Kim Thompson says:

    I can never consider the trajectory of Jim Lee/Wildstorm and Alan Moore’s relationship without thinking of the ending of ANIMAL FARM. “The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” Between this and Todd McFarlane’s behavior toward Neil Gaiman, it’s clear that Image wasn’t one of those revolutions intended to do away with the men with the whips, but rather to replace them. Mission accomplished.

  116. patrick ford says:

    I find the arguments that Marvel is the legal owner of the artwork to be completely unconvincing. There is no paperwork of any kind. If it a contract that works against Moore is taken as evidence, shouldn’t the complete lack of a contract work against Marvel (I’d extend that to the copyright as well)?
    As for the fact that Marvel took Kirby’s artwork and had it defaced by people like Vince Colletta, well that was out of Kirby’s control. Marvel could have had the inking and lettering done on a lightbox. Actually if Kirby’s penciled pages with all their border noted still existed it would be a dream come true for me.
    The idea the publishers were buying the original art is absurd in my opinion. Brian Bolland (just one example) has produced all his artwork digitally for years. As Gary mentions, if that method had been available in the ’60s would a publisher have demanded physical artwork? Of course they wouldn’t.

  117. Briany Najar says:

    Weissmuller:
    “The 2000AD publisher, at my time there, implemented something close to the grandfather idea Kurt is talking about above. Essentially the creators get a payment every time their creation gets published, be that new stories or reprints foreign or domestic.”

    So, Pat Mills and Carlos Ezquerra get paid for every new Judge Dredd story sold?
    What about John Wagner, who created the bulk of the mythos, and all the other artists who contributed?

    Hasn’t Alan Moore said that one of the reasons he would never continue The Ballad of Halo Jones was because of IPC’s attitudes around creators rights?

  118. Briany Najar says:

    Apologies for the spelling mistake.

  119. Allen Smith says:

    The real problem with the situation is that there has been no legal challenge over who in fact owns the artwork, although I side with Gary’s view of things. It would have been interesting to have had some artist demand his/her original art back, been refused, and then have had it go to court. Likely that the comics companies simply would have returned the art to avoid the cost of litigation, but with certain restrictions as to how the art would be used, that is, the artists could have their art back but couldn’t use it in any way that violated the trademark/copyrights of the company. So they could sell it, but not use is for any commercial purpose involving the rights of the company. Of course I’m just guessing here.

  120. Allen Smith says:

    I don’t know that possession of the art, by itself, would show ownership. Otherwise, people would have been able to freely steal the art from the Marvel offices, for example, and then do what they wanted with it, like sell it. What…..that’s been done? Of course, the possession argument does answer the question why Marvel wasn’t in any hurry to try to get stolen art back, I’m sure people in and around the company knew people who were selling stolen art but never acted upon that knowledge. Too tough to prove.

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  122. R. Fiore says:

    So if I were to happen to have possession of your bicycle, that would imply I have a right to it?

  123. patrick ford says:

    Are you still pretending you aren’t Robert Stanley Martin?
    Your credibility is pretty much gone.

  124. Scott Grammel says:

    The fact that Kirby turned in tens of pages, month after month, for years and years, and never got any of those pages back all the while, would suggest fairly strongly that Kirby himself thought he was being paid for both the actual pages as well as the reproduction rights.

    What did Simon and Kirby do with the original art from people like Draut, Meskin, and Prentice when they were packaging the Young Romance and Young Love comics? Anyone?

  125. patrick ford says:

    The fact is Marvel had no contract with Kirby (or it’s other creators) at all. Must be great the complete absence of a contract works for Marvel, while having a contract works for Warner.
    Simon and Kirby had contracts with their staff. They also had contracts with their freelancers. Joe Simon kept much of the original art, and his estate still has it. Kirby had some original art as well, although Roz Kirby said most of it had been returned to “the authors.”
    I really love how everyone who supports Disney and Marvel is such a big strong guy who would have told Goodman to shove it, and just up and quit the industry. Kirby agreed with this himself, he said he should have quit, but didn’t out of a fear he wouldn’t be able to provide for his family. He called himself a coward for lacking the courage to quit the industry. Later in life he advised anyone who asked not to go into comics saying it was a bad field and they should do something else.
    Then again Kirby wasn’t a big strong super intelligent man like your average super hero loving fan.

  126. patrick ford says:

    Dick Ayers, Jim Steranko, Neal Adams, Gene Colan, and Joe Sinnott all gave sworn declarations saying they sold only publication rights. Even publication rights didn’t show up on the back of checks until the early ’70s.
    I would invite fans to approach Ayers, Steranko, Adams, and Sinnott and call them liars. Tell them they knew perfectly well they were selling their original art. Do it at a convention near you, or contact them through facebook or on their web pages.

  127. Wiessmuller says:

    Yep Pat and Carlos get a royalty. John should only get a royalty on the JD material they created. There may have been a side deal with him however due to his importance at the time. I can’t remember. Some IP was even returned to the creators (dicks by ennis and mccrea for instance). Point was really to illustrate that publishers can do it if they want to. And 2000AD wasn’t owned by IPC at that point anymore but a corporation from Denmark – Egmont.

  128. Allen Smith says:

    Yes, because how would I be able to prove I was the owner of the bicycle? Of course, original art is another matter, as it is obviously the work of the artist, but there would still be proof problems. The absence of a bill of sale would seem to prove otherwise, but a requirement that a sold piece of art come with a certificate, wouldn’t that be a cumbersome process?

  129. Allen Smith says:

    What I think the non return of thousands of pages of art to Kirby proves is that he had more to lose by trying to claim the art than he gained from having gainful employment at Marvel.

  130. Allen Smith says:

    Don’t know. Simon might have kept a lot of it for his own files, although I don’t know that for a fact. What market was there for original art from comic books in the days when comics were looked down upon by so many people? Hindsight is always so clear and simple. I’d guess the art was largely destroyed, or else the booming market now for original art would have made surviving art surface for sale at today’s prices.

  131. patrick ford says:

    The thing with Simon and Kirby is their studio packaged books created by a staff of artists and writers who had clear contracts. Later Simon continued to package books using freelancers (including Kirby), and he kept much of that art, but I assume there were contracts. Unlike Goodman, Simon was careful about contractual matters. Goodman at one time had a large staff, but he fired all of the artists on staff so he WOULDN’T have to purchase their artwork. He found it was cheaper to purchase or reject freelance work.
    It’s hysterical to see the continuous swaggering found all over the internet from people who offer up how they would have dealt with Marvel or DC had they been working for them.
    Yes there is something Kirby could have done. He could have quit and gone to work in a rock quarry. Or maybe he could have opened a small antique shop, or a noodle shop, or sold old books? There are a few things he could have done.

  132. JS says:

    Kim Thompson says:

    “Whether “JS” is Robert Stanley Martin or not, he’s avoiding that trap [of linking legality and ethics and engaging in wishful thinking], arguing narrowly (and to my mind not unconvincingly) that Marvel legally did own the art.”

    The main reason a pseudonym is (or was) being used is to discuss this issue without the discussion being derailed with ad hominem attacks. It was an implicit demand that respondents deal only with the substance of what was being said.

    There is no effort to aggrandize Robert Stanley Martin in my above comments. Nor is there in the comment by “Brian Logue” linked to by Timothy Hodler. They are not about Robert Stanley Martin; they are about the Kirby art issue and, with the “Brian Logue” comment, the rampant factual errors, questionable assumptions, and irrelevancies in Gary’s most recent screed against Jim Shooter.

    Who I am only matters if one thinks personalities are more important than the issues at hand.

    A basic rule of argument is that if one drops a point, one is conceding it. I’m dropping the point of whether I’m Robert Stanley Martin or not, so there’s only one reasonable conclusion to make. All I’m going to say about that is that I wrote the reply to Tim Hodler in anger at what I saw as his abuse of editorial privilege. This site has no stated policy whatsoever about pseudonymous comments. If Tim had a problem, he should have contacted me privately and dealt with it that way. Frankly, I think sidetracking the discussion into a playground ridicule session was his goal, but that’s for him to say. To the people reading this, if you were offended by my earlier response to Tim, you’re right and I apologize. I shouldn’t have posted the comment at all.

  133. Tim Hodler says:

    I agree with Robert on this issue at least: JS’s identity is obvious now, and there’s little to be gained from beating a dead sock. As long as he doesn’t make any more active attempts to deceive readers or in some way violate the site’s comments policy, there’s no reason he can’t continue to argue via proxy if he wishes.

    As to whether I’ve “abused” editorial privilege or not I leave to readers to decide. Robert maintains that he has used these pseudonyms in order to make other commenters attend to the substance of his remarks, and not be sidetracked into distracting ad hominem attacks. Based on the comment he left regarding Frank Miller while using the name “Brian Logue,” it is plain to see how important a principle this is for him. All I will add is that people who publicly praise their own sock puppets’ arguments while mocking the supposed gullibility of this site’s readers—as Robert did—won’t get the benefit of the doubt about their intentions.

    Okay then, carry on.

  134. Scott Grammel says:

    My only concern here is how a fair judge might logically rule given the actual circumstances of the situation. I’d think if one offered the argument that Kirby didn’t care about the original art until it became valuable on the after-market, years later, Marvel’s lawyers would be beaming with joy.

    The S&K romance situation I’d think is highly relevant because, while it began in the late Forties, it had to have been going on at least right up to the time Kirby started back at Marvel in the late Fifties. And so beyond the fact that supposedly the freelancers relationship was a contractual one, I guess it’d be even more helpful to know what these contracts actually specified. Were they explicitly buying only reproduction rights, and if not, were S&K paying sales taxes on the artwork bought? As for the whole murk of Simon kept some and Kirby kept some and some was returned, well, I’m left scratching my head vigorously over that mess of what sounds essentially like “I dunno.”

  135. Jeet Heer says:

    @JS. “I don’t know what Marvel would have done in other circumstances. We only know what they did. They obviously valued the original art enough to pay to warehouse it for over a decade. ”
    You are aware, of course, that the majority of Kirby’s art (and the art of Kirby’s inkers) was stolen from that warehouse. The fact that Marvel was so careless to allow the art to be stolen, the fact that the stolen art still exists and circulates on the fan market, the fact that Marvel has done nothing legally to recover this art — all these facts shed interesting light on the question of whether Marvel as a company “valued” the original art and also whether they have legal title to it. There’s an argument to be made that the thefts happened and were tolerated after the fact precisely because the question of legal ownership is so murky. To report the theft or to go after the thieves would open up a can of worms that Marvel prefers not to — even thought hundreds of thousands of dollars are at stake.

    On this art ownership as a whole, I agree with Kim Thompson that there is a moral issue and a legal issue. The moral issue is big and important — who should own the art (Kirby’s family and the families of the inkers, says I). The legal issue is murky and minor — if morally speaking Kirby’s family and the families of the inkers should get the art, then we should condemn Marvel’s behavior (in keeping the art for so long, in using the art as a hostage to extract legal concessions from Kirby, and in allowing so much of the art to be stolen) no matter what the legal rules might be.

    Speaking for myself, I think there is more to being an ethical person or an moral company than simply obeying the law.

    And on the moral issues, I’m happy to cite Robert Stanley Martin as an authority. On another website he wrote: “With regard to the art return, I didn’t say Marvel had a moral claim to ownership of the original art. I don’t think they do. I fully agree with Gary if that’s the argument.” If we accept Martin’s argument here — and I think we should — then the legal debate seems petty and even moot (in the sense that no one is currently litigating on these issues in any case).

  136. JS says:

    There are references to Frank Miller’s drinking on Robert Stanley Martin’s Twitter feed, too. They appear in an exchange with Darryl Ayo Brathwaite. One has to dig, but they’re there.

    Does the tweet Tim link to praise my comments here? Perhaps in his mind. Actually it criticizes them for being wasted on the reader[s] they were responding to, who “only believe what they want to hear.” It doesn’t address their merits at all.

    I’m sure Tim will find more alleged perfidy to turn into cheap shots. The latter are his stock-in-trade. Of course, only time will tell.

  137. Kim Thompson says:

    I sympathize with RSM’s frustration that internet commentators come to drag along a lot of baggage and it’s near impossible to engage in any kind of debate without someone springing some irrelevant earlier controversy on you, not infrequently tainted by personal animus. (Which happened to RSM last time, as a debate over relative authorship in comics got semi-derailed by a bizarre, vicious, non-sequitur argument about WATCHMEN and rape.) I understand the temptation to wipe the slate clean and invent a new ad-hoc persona for oneself to avoid that sort of nonsense, but doing so and getting caught at it really is the worst of all possible worlds. (Tweeting approval of your sock’s comments wasn’t a great tactic either.) But that aside, I think RSM has conducted his argument reasonably and the “JS” distraction ought to be ignored.

    As this goes on I’m beginning to find BOTH sides’ arguments unconvincing. Maybe NOBODY owned the artwork.

  138. JS says:

    Ad hominem time: This is an ostensibly serious historian who wrote the above comment. I always believed historians thought facts were paramount to discussions of issues. Pardon me for the error.

    Now, back to the matter at hand. The factual issues in the art-return controversy are germane because people keep bringing the situation up. I didn’t introduce the matter to this thread. Pat Palermo did. My initial comment was written in response to him.

  139. Robert Boyd says:

    This may be a dumb question, but was it really DC keeping it in print in the early years? I thought the first trade was published by Warnerbooks? Warnerbooks was part of Warner Bros trade publishing until 2006. My assumption is that there was an internal deal where DC assigned trade rights to Warnerbooks. Warnerbooks, as a trade publisher, presumably acted like any trade publisher–as long as the sales velocity was consistent, they would go back to press whenever they ran out.

  140. JS says:

    Kirby’s art-supply store owned the original art. We need to stop pretending.

  141. JS says:

    Also, no one’s bringing up Frank Miller’s being drunk in the context of an argument with him. I’m not really sure what point Tim is trying to make, other than unflattering things were said about Frank Miller. No one’s claiming saying unflattering things are in and of themselves out of bounds.

  142. Dan Nadel says:

    Robert,
    Every comment you post seems sillier and sillier. You can continue to post off-topic rationales for your sock puppetry (I guess) but you’re only discrediting yourself further. Tim pointed out something funny and interesting. That’s it. All the rest is your doing.
    And of course your “ad hominem” time post below was to be expected. Anyhow, enjoy your new identity. We’ll just try to ignore you until you inevitably violate the commenting policy. Cheers!

  143. Tim Hodler says:

    For someone who doesn’t want the thread to be derailed, you sure have trouble letting this go. I’ve explained why I didn’t give you the benefit of the doubt. I trust readers to make up their own minds. I’m not sure why quoting your own statements to you is a cheap shot, even if they are inconvenient or embarrassing, but hey, you have the right to your opinion. Go ahead and have the last word if you want, and then let’s get back to the discussion at hand, okay? Unless you really want to go back and forth on this forever… I feel like we’ve exhausted it myself, but knock yourself out, I guess. (And I use that cliché advisedly.)

  144. patrick ford says:

    Let’s review the known facts all of which support the creators owning the original artwork.
    There were no contracts. The earliest “documentation Marvel was able to produce was a cancelled check (ironically made out to Steve Gerber) from 1973. The artists who gave declarations all said the legends on the backs of checks said the checks mentioned copyright for the purposes of reproduction.
    Marvel never paid sales tax which would have been required if they were purchasing the physical artwork.
    The standard argument against the sales tax issue actually only further proves the artists owned the artwork. Why would Kirby try and get Marvel to pay sales tax on the artwork if the thought it belonged to him? Why would he say, “Since you are buying the physical artwork I need to collect a sales tax.” Kirby and all the other artists did not think Marvel was buying the physical artwork and so they didn’t try to collect sales tax on it. And they did ask for it back on a regular basis, so we are back to the “they should have just quit, or sued Goodman,” argument.
    And if Marvel felt they were buying the physical artwork THEY should have spelled that out and demanded the artists collect sales tax.
    Again: Why would the artists have collected a sales tax when they didn’t think Marvel was buying the physical artwork?

    As to Robert. You need to change your alias to Ahab and be done with it.

  145. Briany Najar says:

    Wow. I’ve always assumed divvying up the rights would be too complex to implement, especially for Dredd. Kudos to them.
    Now I’m going to be tormented by the idea of Halo Jones book 4 being not quite as impossible a dream as it once was.
    It still wont happen, though.
    Ooohhh… Pleeeeeeeaaaase.
    (Play it again, Yortlebluzzgubbly.)

    It was still IPC/Fleetway in 1989, though. If it was Egmont who did the Grandfathering thing, that would have been 1991 or later.

  146. Groth says:

    In a way, the legal arguments surrounding this are a red herring; no one here is a lawyer and even if one were to pop up, even one as esteemed as Mr. Kenneth Norwick, it is my understanding —correct me if I’m wrong— that lawyers often disagree among themselves; isn’t this why they go to court? Frankly, I wouldn’t trust anyone here, including myself, to rule definitively on the legal issue. And the history of both the companies’ and the creators’ view of original art was so loosey-goosey that it would have to be formally adjudicated to truly know what the legal verdict would be and would likely be arbitrary from a legal standpoint, anyway.

    To the extent that the moral question can be disentangled from the legal one, we should ask ourselves why we’d believe the company would own the original art, which immediately upon completion belongs to the artist, when there was no formal assertion of this right by the company, no external evidence of it (such as a bill of sale or a contract or the payment of taxes on the value of inventory), no consistent industry practice to point to, and no intrinsic value to the company (who would be better off making reprints from negatives than storing original art from which more negatives would have to be redundantly made). The only point when Marvel asserted such a right was when they could use it as leverage to force creators to sign retroactive work-for-hire contracts. As Jeet says, the strict legal question is petty and even moot.

    I must say, the “possession-is-nine-tenth’s-of-the-law” is the dictum of a pickpocket.

    As for JS/RSM’s shenanigans. His (their?) high-minded defense that it was done to ensure the purity of the debate is risible. Public literary and moral argumentation has been going on for hundreds of years without any significant participants feeling the need to create multiple identities in order to forestall any ad hominem comments. Watching JS/RSM offer up his neither-confirm-nor-deny quasi-admission and talk about himself in the 3rd person while he did it was morally creepy, like the comics critic equivalent of Norman Bates.

  147. Robert, I remember that Miller’s DARK KNIGHT RETURNS had two editions: one from Warner Books and one from DC. Maybe something similar happened with Watchmen? (I believe the edition I read in the late 80′s was published by DC.)

  148. In both cases, Warner and DC concurrently published editions for their respective distribution channels, with unique covers.

  149. Eric Reynolds says:

    Gary, FTW!

  150. Wiessmuller says:

    You may well be right with the egmont thing. The fleetway house was put in order around the time Toxic launched as a direct competitor to 2000AD.

  151. JS says:

    My response is here.

  152. patrick ford says:

    It’s as if the creators are stuck in Kafka’s THE TRIAL. It’s the contract which works against Moore, but the complete lack of a contract does nothing for Jacob K. The fact the only evidence concerning the artwork is a check made out to a guy who wasn’t an artist does not help Jacob K, nor does the fact the check mentions only reproduction rights. Jacob K has the responsibility to collect sales tax for the sale of his original art, even though he does not think he is selling the original art, and feels the art belongs to him. Jacob K is he must prove the artwork he created belongs to him rather than to the company which did not create it, and has no way of proving they purchased it, no way of even showing they purchased rights to the the artwork since they kept no records. AMERIKA love it or leave it.

  153. Pingback: Carnival of souls: Fluxblog 2005, BCGF 2012, Slechtemeisjes, Thickness, The Hobbit, Jack Kirby, more « Attentiondeficitdisorderly by Sean T. Collins

  154. Groth says:

    Insofar as the best rebuttal our deludinoid sock-puppet could muster is a pack of lies —cravenly couched as a “hunch” in his long-winded response, an accusation based on a falsehood —but asserted more unambiguously as a fact despite its utter falsity in his tweet,

    “Short version of Groth’s comment: I asked Norwick about this, and he confirmed everything RSM said. Pathetic and desperate” —

    I’ll rest my case.

  155. JS says:

    Gary–

    Temper, temper.

    For those reading, please look at this as a chess game. Gary has only one move: Get a lawyer on the record about this. Now, maybe he’ll win with that move, or maybe he’ll lose. He won’t play it.

    Instead, we get a lot of sound and fury to justify not playing the game anymore. His April 30 comment starts with him arguing like a third-rate Stanley Fish imitator and ends with him comparing me to a serial killer. Make of it what you will.

    An aside, for the benefit of your own personal bullshit detector: When someone starts arguing that there’s no way of knowing the truth because everything is relative, chances are pretty good that person knows (or at least strongly suspects) that the truth isn’t on his or her side.

    My “hunch” was a rhetorical stratagem designed to give Gary a face-saving out. He was so committed to the justice of Jack Kirby’s cause that he sacrificed his journalistic integrity to help achieve it. I thought it would be a natural for Gary. Ah, well.

  156. patrick ford says:

    A Federal judge in Alabama said today he had doubts about Obama’s birth certificate. Does anyone suppose Toberoff has different views of who owns the original art than James Quinn does? Would Clarence Thomas and Thurgood Marshall agree on this issue?
    No artist ever asked Marvel to pay sales tax on the artwork, because they never considered they were selling anything more than reproduction rights.
    Marvel would not return the art despite having no contract with any of the artists. A contract is good for corporations where there is one, and the lack of a contract is good for corporations.

    “In the last decades interest in hunger artists has declined considerably. Whereas in earlier days there was good money to be earned putting on major productions of this sort under one’s own management, nowadays that is totally impossible. Those were different times. Back then the hunger artist captured the attention of the entire city. From day to day while the fasting lasted, participation increased. Everyone wanted to see the hunger artist at least once a day. During the later days there were people with subscription tickets who sat all day in front of the small barred cage. And there were even viewing hours at night, their impact heightened by torchlight. On fine days the cage was dragged out into the open air, and then the hunger artist was put on display particularly for the children. While for grown-ups the hunger artist was often merely a joke, something they participated in because it was fashionable, the children looked on amazed, their mouths open, holding each other’s hands for safety, as he sat there on scattered straw—spurning a chair—in black tights, looking pale, with his ribs sticking out prominently, sometimes nodding politely, answering questions with a forced smile, even sticking his arm out through the bars to let people feel how emaciated he was, but then completely sinking back into himself, so that he paid no attention to anything, not even to what was so important to him, the striking of the clock, which was the single furnishing in the cage, but merely looking out in front of him with his eyes almost shut and now and then sipping from a tiny glass of water to moisten his lips.”

  157. Kim Thompson says:

    Not to be perverse here, but in the case of pencillers, it could be argued that every last vestige of the penciller’s physical contribution to the artwork has been removed and the artwork, if it belonged to anyone, actually belonged to the inker.

    I think the “Just ask a laywer” thing is another red herring. This is an enormously complex and thorny issue involving collaborative work, work that represents properties owned by the company, the presumed context of whether the policy was agreed-upon by all parties or not, etc. — the idea that a lawyer who didn’t actually immerse himself in the minutiae of the case could offer any kind of cogent opinion on the case seems foolish to me. (I don’t think RSM’s conjectural bullshit about our having consulted Norwick and buried his opinion because it didn’t concord with ours technically quite rises to the level of lie, but it’s definitely utter bullshit.)

    I was going to say I’m not sure who’s right and who’s wrong here, except upon reading this whole thread I’m actually increasingly sure that anyone who says it’s definitely, cut-and-dried one side or the other is probably wrong.

  158. JS says:

    Actually, looking at the wording of that New York law, Kirby may have been obligated to collect sales tax whether Marvel kept the art or not.

  159. patrick ford says:

    Here’s what you do. Contact the NY state tax authority and have them collect back taxes from every artist who ever sold a page to a comic book publisher. Yet, how would the publishers prove they bought reproduction rights, let alone the physical artwork since there is absolutely nothing on paper…except the artwork.

  160. patrick ford says:

    “…every last vestige of the penciller’s physical contribution to the artwork has been removed…”

    Not accurate since pencil marks are still on all the pages.

  161. JS says:

    The statute of limitations for tax obligations in New York is three years.

  162. JS says:

    Also, this is sort of an apples and oranges thing to bring up, but I seem to remember Paul Mavrides getting in hot water with the state of California over sales-tax collection with publishers. They wanted him to it with material he held copyright to. If I recall correctly, he had been doing it with his W4H jobs all along.

  163. patrick ford says:

    Then the fact the state failed to pursue the collection indicates they must have felt only reproduction rights were being sold. Are there any examples of sales tax being collected by artists from publishers between 1936 and today?
    Let’s all work as hard as possible to imagine ways in which the publishers are the victims. I’d like to continue this conversation forever, because it gives me great pleasure to hear RSM parroting Jim Shooter.

  164. JS says:

    Kim–

    I can appreciate what you’re saying. I did ask a couple of friends who were lawyers to read Michael Dean’s overview and offer their opinion. They both read it, and they both said they didn’t want to go on the record with an opinion because they were Michigan lawyers and they didn’t feel comfortable commenting about New York law.

    To sum up, I think, in my layperson’s view, that Marvel technically owned the art by the time of the return controversy for two reasons:

    1. Kirby had acceded to Marvel keeping the art for the entire period he was working for them in the 1960s. That’s acknowledgement in practice that he was selling Marvel the original pages in addition to everything else.

    2. If Kirby didn’t feel he was selling Marvel the art, he did let the statute of limitations lapse when it came to challenging what they were doing. He let go the last of his legal claim to the physical art in 1976.

    I do think Marvel had an ethical obligation to return the pages in their possession in the 1980s. They were returning the other Silver Age work to the artists, and it was grossly inappropriate to single Kirby out with that monstrous four-page release for so little art in return.

    Incidentally, I don’t believe Marvel–specifically their legal department–sent that thing to Kirby thinking he would sign it. The Kirbys have said their biggest frustration in dealing with Marvel at that time was that Marvel was all but entirely non-responsive. In my experience, if a business party is essentially ignoring me, and then asks me to jump through ridiculous hoops in exchange for a pittance, they’re telling me to get lost. For Marvel to do that to Kirby given his contributions to the company was just repugnant.

  165. patrick ford says:

    Robert if you think Marvel is unethical and repugnant do you think they would have returned Kirby’s artwork if he was asking for it? Kirby says he was asking for the artwork all through the ’60s.
    Marvel was returning artwork to some of it’s artists in the ’60s. Steranko and Herb Trimpe are two examples.
    Legal issues are always murky. People don’t agree on them, lawyers don’t agree on them, and courts don’t agree on them. And when a case ends up in the United States Supreme Court the opinion is often divided, and the dissenting opinion is often harshly in dispute with the court ruling.
    My stance is to side with the creator rather than the company.

  166. Alexandre Mandarino says:

    Quite frankly, there are just one side in this imbroglio. Everyone who still even try to – cowardly – rationalize behind pseudo-”legal” blah-blah-blahs just plain and simple didn’t understand one line of the super-hero comics they read all these years. Marvel and DC’s treatment towards all the writers and artists that CREATED all their respective “universes” is 100% unfair, intolerable, unjustified, wrong. The fact that many of the readers can understand why a fictional Dr. Doom is wrong but can’t empathize with real people, real victims, the same ones that created the works and characters they supposedly love, it’s mind bending. It’s childish, unethical, unrealistic.

  167. Allen Smith says:

    Yes, had the companies believed in the messages implicit in the comics they published, the creators would have been treated much better. There was no good ‘ol Marvel Bullpen, or a superhero coming to the rescue of the talents at DC. It was and still is a rough business. All the drooling fanboys want is to be entertained, heaven forbid anything interfere with the next issue of Rats Ass Man coming out on time.

  168. Kim Thompson says:

    That’s the most naive thing I’ve read here yet. It’s not a matter of sides: You can’t simultaneously argue that (1) Kirby legally was entitled to his art back and that (b) he was morally entitled to his art back and to even consider the legal aspects is somehow unprincipled and cowardly.

    I think there is pretty much absolute unanimity that Kirby deserved his art back and Marvel was morally obligated to return it, so there’s not a lot to discuss there. (There may be some Marvel Zombie outliers who argue that Marvel was under no obligation, moral OR legal, to return it, but I don’t think any of them have popped up here.) I think the legality aspect is murky at best, although both sides sure appear to be certain. I guess I’m the doubting agnostic, Robert Stanley Martin is the raging atheist, and everyone else has faith of some kind (or thinks it’s irrelevant to the moral issue).

  169. James says:

    Individual commenter’s douchebaggery aside, I have come to think that it is more of a discredit to Kirby that his name is connected in any way with the odious Marvel. They certainly should give him all monies due but IMO his family should fight for money rather than credit, and request that his name be removed from all character/properties with no verifiable values and the films and comics made by people who apparently have no hearts…their foulness is a disservice to Kirby’s name. I have such an emotionally negative response to the invocation of anything to do with Stan Lee and Marvel that I probably ruined the roundtable about Charles’ book, to Jeet and Dan’s chagrin…I will henceforth try never to mention Lee and his evil company again…their very names are like invoking Satan and his minions, always a bad idea in a movie, a bad idea in life.

  170. patrick ford says:

    I completely agree the legal aspect is murky, and have felt that way from the start.
    Murky in the sense that people have different views of the law.
    Given that these cases involve Warner and Disney any case which might end up in court would almost certainly come out in favor of the corporations. A lower court might possibly rule in favor of a creator (or the creator’s heirs), but the companies involved are so big and the monetary stakes so high Warner or Disney would fight any case important to them all the way to the US Supreme Court where the corporation would have a 100% certainty of coming out on top.
    I suppose a creators best hope would be one or more conservative justices being replaced before a case reaches them.
    Also Robert Martin is not a raging atheist. He’s a guy with a chip on his shoulder who has spent the past two years attacking Gary Groth for any reason he can dream up.
    http://hoodedutilitarian.com/2012/01/robert-stanley-martin-on-the-history-and-legacy-of-tcj/
    “if ugliness is somehow inherently more meaningful than beauty. Like scatology and mundaneity, ugliness in indie comics is often a shortcut, a way of giving the illusion that something significant is going on when it really isn’t.

    Well, I blame The Comics Journal.

    While Groth and company always deserve credit for bringing a semblance of real-world critical standards and dialogue to the field, things have long been past the point where the values they promote have become a pernicious influence. In general, the magazine’s contributors have always implicitly evaluated new work through the prism of the Surrealist aesthetic as popularized by the Beats. The highest goal of art in this view is “self-expression.” Anyone who disputes this should consider why the magazine is all but defined by its idolatry of Crumb and his counterculture peers.”

  171. patrick ford says:

    In The Watchmen a character analy rapes a woman, but in the end she loves him anyhow, despite the fact he’s a complete asshole.
    This almost seems to be how fans of Marvel and DC think creators should react to being screwed.
    Wally Wood had a comment along these lines, and he didn’t blurt it out in an interview after being goaded by Gary Groth. Instead Wood wrote and then published his comment. Actions which required a passage of time and calculation.

    Wally Wood

    WHAT MAKES STANLEY RUN?

    Once upon a time, many years ago a young man, born the son of a
    famous comic book publisher, decided to become rich and famous. He
    had no idea of how to go about this at first, lacking both the
    brains and talent to achieve this goal. But he was driven by one
    emotion, rather TWO .. ENVY and HATE. Envy for the people
    who were responsible for his enviable state, and hatred for the people
    who could DRAW. Comics are, after all, an artist’s medium. I’ve
    never read a story in comics that I’d bother with if it were written
    in novel form.
    Did I say Stanley had no smarts? Well, he DID come up with two sure
    fire ideas… the first one was “Why not let the artists WRITE the
    stories as well as draw them?”… And the second was … ALWAYS SIGN
    YOUR NAME ON TOP …BIG”. And the rest is history … Stanley, of course
    became rich and famous … over the bodies of people like Bill and Jack.
    Bill, who had created nthe character that had made his father rich
    wound up COLORING and doing odd jobs.
    And Jack? Well, a friend of mine summed it up like this .. “Stanley
    and Jack have a conference, then Jack goes home, and after a couple of
    month’s gestation, a new book is born. Stanley gets all the money and
    all the credit… And all poor old Jack gets is a sore ass hole.”

  172. James says:

    Oh yeah, and DC sucks donkey dick as well

  173. Allen Smith says:

    I’m waiting for the Marvel Zombies, if there are any here, to mutter, Wood was a drunk. Even drunk, sober, high, or low, Wood had more talent in his little finger than good ‘ol unca Stanley had in his whole body. But, that’s irrelevant to a culture where the most important talent is that of being able to become famous.

  174. Alex Vanderpool says:

    Given that Peter Cannon is a creator owned character, is the Pete Morisi estate getting anything for the Before Watchmen stuff? and if not, why not?

  175. Jeet Heer says:

    I agree that Kim’s atheist/agnostic/true believer analogy doesn’t quite work, since Robert Stanley Martin is a true believer in his own version of events: that Marvel legally owned the art and that when this controversy was current Gary Groth asked a prominent lawyer about it and was told that Marvel had legal title but Gary suppressed this information because of his nefarious and notorious vendetta against Jim Shooter. And what evidence does RSM provide for this version of events? None, just speculation and hunches. That’s true believer behavior. By contrast, Kim, Gary, Patrick Ford and I all belong in the genuine agnostic camp since we agree that the legal situation is murky. I’d go further and say that it’s not just murky but also moot — if you have a case that was never litigated and will in all likelihood never be litigated, I’m not sure there is any pertinence to debating legality. Since RSM agrees with all of us that Marvel had a moral duty to return the art to the artists, the legal question seems about as relevant and important as the fabled theological debates of yore as to angels dancing on the head of a pin or the fate of unbaptized babies in the afterlife.

  176. R. Fiore says:

    The interesting contrast here is between Marvel and William M. Gaines. Gaines’ attitude was typically paternalistic and enlightened on his terms, if not the terms of others. He absolutely thought he owned the original EC art and treated it like something he owned. As a result almost all of the EC Library was reprinted from original art, and the art was intact and together when it had attained a high value, if not a peak value. Gaines auctioned it off for his own gain but paid the artists a percentage of what he realized, which was in effect a royalty. It would be an interesting area of speculation as to whether the percentage the artists received from the auction was more or less than they would have realized if it had been returned to them before they realized its eventual value.

    Marvel on the other hand treated original artwork like junk in the attic. I believe it would have been fairly commonplace in the early 60s to look at original comic art as something of no particular value. Evidently they gave some of it away like party favors, and much of the laxly guarded material was stolen. What put Marvel’s actions in the area of the unethical was not that they kept the artwork when the question of ownership and the value of the artwork was ambiguous, but that they tried to use the return of the artwork to extort concessions from Kirby regarding legal rights he might have had, conditions that had not been made on return of art to other artists Marvel dealt with.

  177. BobH says:

    Was Gaines giving the EC artists a percentage of the art sales proceeds ever documented anywhere that can be cited, ideally a quote from one or more artists confirming payment, and maybe stating what the percentage was? I was looking for a source for that a while back and couldn’t find anything, though I’m sure I read it somewhere circa 1990.

  178. Allen Smith says:

    RSM’s commentary is interesting, but he lost me completely when he stated that Rob Liefeld’s work should have been reviewed. To what purpose, I might ask?

  179. R. Fiore says:

    In one of the Comics Journal interviews Gaines is asked about his policy on auctioning the original art, and his response was something to the effect that the artists don’t complain about it because he sends them big checks. This is of course Gaines’ word, but this becomes a Dog in the Nighttime situation — if he claimed he paid a percentage and didn’t somebody probably would have complained about it. Actual information from one of the artists on how much, etc. would be interesting, of course. Maybe try an e-mail to Bhob Stewart at his Potrzebie site? He’s someone who’d have had contact with EC people, I would assume.

  180. Michael Hill says:

    @Allen There are an awful lot of witnesses to discredit in that manner, and some are still alive.

  181. Groth says:

    These apparently are the best arguments that can be mustered in favor of the position that Marvel legally owned all Kirby’s (and presumably every other artist’s) original art:

    1. Kirby had acceded to Marvel keeping the art for the entire period he was working for them in the 1960s. That’s acknowledgement in practice that he was selling Marvel the original pages in addition to everything else.

    2. If Kirby didn’t feel he was selling Marvel the art, he did let the statute of limitations lapse when it came to challenging what they were doing. He let go the last of his legal claim to the physical art in 1976.

    As to (1), “acceding” to an immoral and/or illegal corporate practice out of fear of being dismissed, fired, or blackballed means nothing. It certainly doesn’t validate the legality of a corporation’s practices. (2) is merely a subset of (1), meaning that Kirby didn’t have the time, stamina, money, or muscle to engage in a long and protracted lawsuit; for whatever reason, he chose not to challenge them legally, and from this one cannot infer that what they did was legal.

    Jeet: Excellent and cogent distinction between the agnostics and the true believers here.

    Mr. Fiore: I believe Gaines gave the artists 20% of the revenue from the sale of the original art, though I haven’t confirmed this. The other distinction between Gaines and, well, just about every other publisher of which I’m familiar, is that a) Gaines made it clear to the artists that he was buying the original art and they accepted this condition. (there’s the famous story of Frazetta, who wanted to keep the original art to a cover he drew for one of the SF titles, so Gaines paid him slightly less for it, the difference being what they agreed the original art was worth. I don’t know if this option was available to all the artists as a general rule, but I never heard of any other artist taking advantage of it); and b) Gaines kept the art in pristine condition, using it for subsequent projects (like the Russ Cochran editions) and finally selling it. As we know, none of the other publishers gave a damn about the original art, giving it away, losing it, slip-shoddily warehousing it returning it capriciously, or not. There may not even have been any logical reason to keep it, just a reactionary, corporatist predatory instinct to keep anything they could get their hands on.

  182. R. Fiore says:

    Yes, I would agree with that last; the assumption is every difference should be split in their favor, even if it’s perverse and they get nothing out of it but a nuisance.

  183. Pingback: Me vs. The Angry Mob: Comics and Morality | Comics! The Blog

  184. JS says:

    Gary–

    I don’t if they’re the best arguments that can be mustered. However, they must be pretty good. No one seems to be able to contradict me on the substance of them. Or my discussions of the sales tax or bill of sale hooey above. Or the statute of limitations issues.

    All I get in response are emotional appeals to other readers. In other words, demagoguery.

    As for the specifics of what you say, there’s no evidence that Goodman’s business practices were illegal, or more specifically, tortious. If you can’t point to New York law, regulations, court rulings, or even a qualified lawyer’s opinion that indicate they were tortious, then claiming they were so is nothing but bluster. Morality and ethics are separate matters.

    I can’t speak to the questions of Jack Kirby’s time and stamina. I assume muscle is synonymous with money, though, and Kirby all but certainly had the financial resources to challenge Martin Goodman on the original-art issue when he stopped working for Marvel in 1970. It would have made little sense for Goodman to even put up a fight over it. The New York Times reported in 1971 that Marvel was paying Kirby $35,000 a year when he left the company for DC. In today’s dollars, that’s the equivalent of over $200,000 in annual income. I gather Kirby’s response to page-rate increases at Marvel over the decade was to reduce (and refine) his output, so I assume he was working at that income level throughout. I also assume his subsequent income at DC was comparable if not better. If he wanted to go after Goodman through the courts, he had the ability to do so. He didn’t. And like any responsible adult, he has to abide by his decisions.

    As for you being an agnostic on this issue, Gary, I’ll believe it when you strip out that nonsensical sales-tax argument from Michael Dean’s overview of the art-return controversy. Actually, I’ll believe it when you also add a correction notice indicating that the claims in that paragraph are unconfirmed and at best highly questionable. The easily verified statute of limitations in New York on tax obligations is enough to justify that action.

    Jeet’s comment is of a piece with his usual reaction to statements that go against the grain of the dogma of the TCJ comics-hipster clique. He circles the wagons and starts trying to bully the person making the statements. And like many people of a conservative, status-quo-reinforcing temperament, what he attacks others for doing is actually his own conduct. I’m not the “true believer” here. I’m pointing to facts, easily confirmable laws, and real-life analogies intended to make the questions and arguments surrounding the issue concrete to those reading. It’s quite rationalist. The behavior of a “true believer” is what he’s indulging in, namely sticking his fingers in his ears and exclaiming, “Shut up! Shut up! Shut up!”

    Arguing Bill Gaines was more ethical than Martin Goodman because he personally valued the work he was publishing seems ridiculous to me. By all accounts, Stan Lee greatly enjoyed the work Kirby and other cartoonists did for him. Does that make his credit-stealing more palatable?

    R.Fiore–

    One little nitpick about your “junk in the attic” simile, which I otherwise like quite a bit. Marvel, at least when it was part of Cadence Industries, valued the Silver Age art enough to have it catalogued and insured. As far as I know, there’s no indication any of it was stolen. It might have been given away or sold; I don’t know. To collect on the insurance policy, Marvel would almost certainly had to have filed a police report, which is public record. I’ve never seen any reporting that they ever did so. The editorial people at Marvel in the early ’80s took original-art theft very seriously, by the way. During that time, there was an instance of a creator who was caught trying to steal original art from the offices. As a result, he lost his exclusive contract with the company, and he was told never to come onto the premises again. His editor told the Journal that he wasn’t qualified as a human being to work for the company anymore. I’m certain Gary knows whom I’m talking about, so I’ll let him identify the creator if he wishes.

  185. R. Fiore says:

    Number one, if they were going to get it insured they’d have to have it cataloged. Number two, if they were taking such good care of it, why did they lose so much of it? The losses were documented in the accounting of original art they had on hand to return to Kirby when they finally did.

  186. JS says:

    Where did you read that Marvel documented losses of the Kirby art? I’m not disagreeing with you necessarily. I’d just like to see what you’re referencing.

  187. R. Fiore says:

    The Comics Journal. Part of the extensive coverage of the Kirby art issue was reprinting of an inventory Marvel produced of the art it had on hand to return to Kirby. It was like looking at the fragments of the Dead Sea Scrolls.

  188. Jeet Heer says:

    @JS (or Robert Stanley Martin). First of all, I wish you would just post under your real name. Since we all known that JS = Robert Stanley Martin, I don’t know why you continue to use the JS signature, which just makes things confusing.
    “If he wanted to go after Goodman through the courts, he had the ability to do so. He didn’t. And like any responsible adult, he has to abide by his decisions.” This little passage wonderfully illustrates the modern disease of legalistic thinking — the habit of seeing the world through a narrow legal prism and not considering wider historical, economic or human factors.
    Now, why would a freelancer not sue one of the two major employers in his field? In 1970, Kirby had spent a lifetime doing genre comics (westerns, romance, super-hero science fiction, etc.). At that point, there were only two companies that could pay him the wages he needed as a breadwinner with four kids: DC and Marvel. Kirby knew what happened to freelancers who got into legal tussles with the big comics companies. Jerry Siegel had sued in the 1940s and had been blackballed from DC for years (see Gerard Jones’ Men of Tomorrow). In the late 1950s, Kirby himself had gotten into a legal battle with DC editor Jack Schiff. The decision went in Schiff’s favor and Kirby was blackballed from working at DC (for whom he had done many comics before the lawsuit). This blackballing continued until Schiff retired in the late 1960s, which opened the way for Kirby to return to DC. So if Kirby had sued Goodman in 1970, he risked closing any possibility of ever returning to Marvel. All his eggs would be in the basket of DC, a company which, from earlier experience, he found frustrating (and which would in fact be a frustrating employer during his tenure there).
    So it shouldn’t taking a lot of imagination to understand why Kirby didn’t sue Goodman in 1970 or later. To say that Kirby “like any responsible adult” has “to abide by his decisions” really is crude blaming the victim rhetoric. Perhaps JS (or RSM) will now regale us with the argument that “If Anita Hill really was sexually harassed by Clarence Thomas why didn’t she go to the police immediately? Like any responsible adult she should abide by her decision.”
    I have to say, I really find these missives from JS (or RSM) to be a farrago of assertions. He’s unhappy with a statement that the Comics Journal ran in 1984 (yes, back when Van Halen’s “Jump” and Madonna’s “Like a Virgin” topped the charts and Reagan was president) and demands a correction. But as I and many others have trued to show, the legal situation is by no means as clear cut — the matter was never litigated, the facts are disputed and have never been tested in court. So the legal ownership of the art is impossible to decide. This may shock JS (or RSM) but not every issue is susceptible to clear legal answers. And in point of fact, even decisions by the Supreme Court can be radically wrong (I’ll advise JS — or RSM — to look up the cases of Dredd Scott and Plessy V. Ferguson, and let me know if he is happy to have the law as the final arbiter on all matters).

  189. Jeet Heer says:

    The inventory that R. Fiore refers to was made by irene vartanoff and is available in The Comics Journal #105, pages 18-19. See here: http://www.tcj.com/archive-viewer-issue-105/?pid=8473 and here: http://www.tcj.com/archive-viewer-issue-105/?pid=8474

    I have to say, I’m baffled by JS’s (or RSM’s) assertion that Marvel took good care of the art and there was only one small theft by an artist that JS (or RSM) refuses to name. That seems to contradict the testimony of many people involved in the Kirby art issue. Simply as a matter of fact, Kirby only received about 2,100 pages back, despite the fact that he did more than 10,000 pages for Marvel from the late 1950s to 1970. Some of that art was given away, but much of it was stolen. And the fact that Marvel hasn’t gone to the police about the stolen art is easy enough to explain: unlike JS (or RSM) Marvel isn’t sure they have legal title to the art, so to go after the thieves would open up a legal can of worms they don’t want to deal with.

  190. Rob Clough says:

    as an aside, I seem to remember reading in an old issue of Comic Book Artist that DC used to actually cut up their original art, and give away pieces to kids who toured the office. Can anyone source that story?

  191. Lou Copeland says:

    Rob Clough,

    Don’t have the CBA interview handy, but check this one out:

    http://graphicnyc.blogspot.com/2009/10/neal-adams-evolving-comics-from-print.html

    Scroll down about half way, just past the X-Men cover. Neal Adams has told this story about a billion times.

  192. JS says:

    Rob–

    DC’s policy before the 1970s was to destroy the art after it was returned from the printer. They did give some of it away to visitors and fans, though.

    Jeet–

    At this point, I’ll continue to post as “JS” on this thread for consistency. It keeps things from getting confusing.

    I’m not “blaming the victim.” I’m opposed to infantilizing Kirby, which is what people who want to treat him as a martyr seem to be up to. Anyone who’s generating the level of income he was should be able to handle himself just fine.

    Kirby was living in California by the late 1960s. He had the option of going into animation and other commercial-art fields, which he eventually did.

    I’m not sure Kirby was all that worried about antagonizing people at Marvel after he left. If you question that, I respond with four words: Funky Flashman and Houseroy.

    I have outlined several principles that contribute to my view that Marvel owned the Kirby art at the time of the return controversy. Here are a few:

    –Six year statute of limitations for a contractual dispute.
    –Three year statute of limitations for tax obligations.
    –Allowing another party to indefinitely maintain possession of goods or property after money has changed hands constitutes a sale unless otherwise agreed to.
    –The seller, not the buyer, has the burden of collecting sales tax on behalf of the state.
    –Failure to collect sales tax does not invalidate a sale.
    –Written records of a sale are not required in instances where the goods or property are not registered with the government.
    –Absence of written records does not invalidate a sale.

    Which of these principles do you disagree with? I can argue against the principles behind the Plessy or Dred Scott decisions just fine. Or Bush v. Gore, or Citizens United, or any other legal decision I consider wrong. Can you do the same here? Or are you just going to retreat into the we-need-to-feel-sorry-for-helpless-Jack-Kirby demagoguery?

    By the way, I’m not putting down Kirby with that. I’m putting you, Gary, and others down for treating him in such a condescending and patronizing way. I’ve read several interviews with him. He didn’t feel sorry for himself, and he didn’t want anyone’s pity. He just wanted to be treated fairly. And in general, I’m in accord with his grievances.

    With regard to the Vartanoff catalog, that’s the art inventory in early 1980. Marvel didn’t start systematic return of that art until 1984, when Kirby would have been owed 2/3 of his pages in their possession under their policy. (Contrary to TCJ’s reporter, there are about 5,000 Kirby pages listed, not 10,000. There should have been about 3,400 in inventory when the returns began.) From what Vartanoff was saying, that’s four years the art was the responsibility of Marvel’s licensing department, who, unlike the editorial department, couldn’t have cared less about it. Per Vartanoff, appropriation of pages by Stan Lee and other Marvel executives was always a possibility, and the art had been used as gifts in business deals in the past, so why not again? There has also been scuttlebutt that a lot of the art was destroyed in a warehouse accident in the early 1980s. The company also might have sold some of it. In the absence of a police report or claims by appropriate Marvel personnel, though, I can’t say any of it was stolen. There are too many other possibilities.

    Also, if Kirby’s art agent was of the view that the art was Kirby’s legal property and not Marvel’s, then why was he after Marvel to file a criminal complaint against the dealers? If Kirby owned the art, only Kirby had standing to do that.

    Marvel has described original artwork as their property in countless art-return releases. It’s all but certain they also presented the art as such to their insurance provider. They regarded it as their property, no ifs, ands, or buts.

  193. R. Fiore says:

    You keep thinking that the issue is whether Marvel’s actions are legal, when in reality the question is whether Marvels actions are ethical, or just, or honorable. It was perfectly legal for comic book companies to use their control over the means of production and distribution to coerce artists into surrendering rights to their creations. It just wasn’t ethical, or just, or honorable.

  194. Jeet Heer says:

    @JS. If you had wanted to avoid confusion, you shouldn’t have used the pseudonym in the first place. Nor should you have made the statement: “No, I’m not Robert Stanley Martin.” After reading that flat-out lie, it’s hard to take anything you say seriously. Certainly I’m not willing to have my entire understanding of the original art controversy shaped by a series of undocumented assertions from you. Your references to things like sales tax and the statute of limitations are rendered irrelevant by one simple fact: this matter has never been litigated. This means that the parties of the dispute never had to present evidence that could be tested by court. Given the lack of a litigation record, I think intellectually honest position is to say that the matter is murky. You seem to think that because the matter has not been litigated, our automatic default position should be that Marvel owns the art. But in point of fact, this shouldn’t be our default position since Kirby and other artists had good reasons not to litigate against a potential employer that can backball them.

    The Funky Flashman argument holds no water since there is a material difference between doing a satire on someone and suing them. If Harvey Kurtzman did a satire on Marlon Brando, that might sting Brando but it’s a different order of hurt than if Kurtzman sued Brando for serious money. The second action is much more likely to anger Brando. As it happens, Kirby did end up working for Marvel again in the mid-1970s, something that would not have been possible if he had sued Goodman in 1970. As for the suggestion that Kirby should have just gone into animation: it’s true that the best thing Kirby ever did career wise was to leave comics and not just in 1970 but much earlier — in 1955 or perhaps in 1939. (The same is also true of Will Eisner, Alex Toth and Joe Simon, all three of whom left comics earlier). But the fact that the smartest thing a talented cartoonist — one whose storytelling was central to modern comics — could do is leave the comic book industry is a serious indictment of that industry. So your legalistic defense of Marvel makes them look far worse than otherwise.

    Your position that “The editorial people at Marvel in the early ’80s took original-art theft very seriously, by the way” seems to be contradicted by this statement: “With regard to the Vartanoff catalog, that’s the art inventory in early 1980. Marvel didn’t start systematic return of that art until 1984, when Kirby would have been owed 2/3 of his pages in their possession under their policy. (Contrary to TCJ’s reporter, there are about 5,000 Kirby pages listed, not 10,000. There should have been about 3,400 in inventory when the returns began.) From what Vartanoff was saying, that’s four years the art was the responsibility of Marvel’s licensing department, who, unlike the editorial department, couldn’t have cared less about it. Per Vartanoff, appropriation of pages by Stan Lee and other Marvel executives was always a possibility, and the art had been used as gifts in business deals in the past, so why not again? There has also been scuttlebutt that a lot of the art was destroyed in a warehouse accident in the early 1980s.” If the editorial department took art theft seriously, why did they let the art fall into the hands of licensing who allowed “the appropriation of pages” (a nice euphemism for in-house theft)?
    The 5,000 pages of Kirby drawn art in the Vartanoff catalog simple record what was there in 1980 — but we know that far more Kirby art because he drew many more pages for Marvel in the 1950s and 1960s. So prior to 1980 there was already a lot of missing art.
    Your assumption that there was no art theft (aside from the unnamed artist you alluded to) because there was no police report is a further example of your absurdly legalistic mindset. Do all crimes go reported? If someone is raped but doesn’t report it for fear of public humiliation, do we say no rape has occurred?
    The idea that there was no art theft is contradicted by various informed sources, including Jim Shooter: http://www.jimshooter.com/2011/03/mystery-of-missing-box-of-marvel.html
    See also this post from Greg Theakston: http://gregtheakstonteasemag.blogspot.ca/2011/06/jack-magic-v2-pt2.html

  195. JS says:

    The issue is that when this matter is discussed, it needs to be discussed with a commitment to accuracy. Gary and others have spent over 25 years sensationalizing and misrepresenting what happened. I can understand the political need to do so back in 1986, but it’s history now, and there’s no excuse for it anymore.

    Neal Adams’ nonsense about the lack of sales tax being paid meaning there was no sale, and Frank Miller’s nonsense about the absence of paperwork meaning there was no sale, and Gary’s nonsense that all Marvel was purchasing was reproduction rights–all are repeated, usually with the utmost of righteous indignation, as if they were incontrovertible fact. None of those arguments hold water when scrutinized, and it looks ridiculous.

    It is one thing to say that commercial artists should be entitled to the return of their original art. It is quite another thing to say that the publisher was behaving illegally by not returning the art, particularly in the context of a time where all publishers clearly assumed they were buying both copyright and the physical art with the artist’s page rate. The ethics of the business were different then, and that should be acknowledged.

    Marvel crossed a line when they sent Kirby that obnoxious four-page artwork release. No one’s disputing that. But apart from that, nothing about the original artwork issue lends itself to this melodramatic Daredevil vs. The Kingpin narrative that’s been constructed around it.

    I once told Charles Hatfield that I didn’t think this field was ready for serious scholarship, i.e. criticism and historical writing. The reason why is that far too many writers about comics think criticism and history are about hagiography. To them, it’s all about saints and martyrs and villains. They can’t bear to part with their tall tales. Preferred artists are to be deified, and unfavored ones spat upon. Criticism and history shouldn’t be about that. Ideally they are about rigorous inquiry and analysis. Everything is to be treated with an open mind as well as skepticism. You don’t shy away from the uncomfortable aspects of things–ever.

    And if, in this instance, that means acknowledging Marvel was being reasonable about many things even though you preferred a different outcome, you make that acknowledgement. And when people you otherwise sympathize with are overreaching, you acknowledge that, too.

  196. JS says:

    Jeet–

    You’ve obviously never read Proust’s In Search of Lost Time or Lynette Felber’s Gender and Genre, but that didn’t stop you from once hauling them out into a discussion and trying to use them to lord it over everyone else. Unfortunately for your little sham, you didn’t count on my being familiar with both works. You certainly didn’t count on my throwing your ignorance of them back in your face. You sure didn’t make any mention of them after that.

    But after that, I let it go. What you did was dishonest and stupid, but it’s not a hanging offense. I’m certainly not going to dismiss everything you’ve written afterward as a lie.

    And what you did was far worse than my use of a pseudonym. You were making a knowingly dishonest argument in an effort to bully people. I’ve tried to argue a point of view as honestly as I can. I just didn’t want to make myself the issue because I thought it would be a distraction. I shouldn’t have denied it after Tim outed me, but that’s the only thing I did wrong in this discussion, and I’ve apologized for it.

    I’ll look at the rest of what you’ve written later.

  197. Jeet Heer says:

    @JS. Again, you’re simply asserting that Adams, Miller and Groth are making nonsensical arguments when its impossible to know whether these arguments are nonsensical or not since they haven’t been litigated. And your argument that Marvel’s behavior was “reasonable” rests on the simple assertion that it was legal — although you elsewhere acknowledge that “it was grossly inappropriate to single Kirby out with that monstrous four-page release for so little art in return.” It seems to me that reasonable behavior doesn’t simple mean legal behavior but also includes ethical behavior. A reasonable person doesn’t just obey the law, she also behaves ethically. Once again, you’re strange obsession with statements that Gary Groth and Michael Dean made nearly three decades ago leads you into a logical quagmire.
    As for whether the field is ready for “serious scholarship, i.e. criticism and historical writing.” I have to say that the writings of Charles Hatfield (Jean-Paul Gabilliet and Hilary Chute and several others) strike me as excellent works of scholarship and criticism. Part of what makes these writers valuable scholars is that they actually write about important topics and don’t spend endless hours parsing sentences written by Gary Groth and Michael Dean in 1986. A sense of proportion is also important to scholarship.

  198. Jeet Heer says:

    @JS. Actually, the reason I didn’t take up the argument about Proust and Felber is that I found your reading of these books so alien to my own that it seemed futile to take up the debate. In general, I find it dispiriting arguing with you since you constantly and confidently make wild assertions that have no basis in reality. Like your assertion that Gary Groth must have called a lawyer in the late 1980s who told him that Marvel has legal claims on the art and that Groth suppressed this fact. This is pure fantasy based on nothing more than malice. I feel like there’s no common ground for discussion with someone who is so readily willing to go into realm of make-believe. So its perhaps best to call a halt to this now.

  199. JS says:

    I wasn’t familiar with Shooter’s account, but obviously that’s a reasonably confirmed instance of art theft from the Marvel’s offices. Shooter’s certainly an example of “appropriate Marvel personnel.”

    This argument is probably going around in circles at this point, but try to look at the situation from the standpoint of one who doesn’t have any emotional investment in either Kirby, Marvel, or original-art ownership issues. The transaction sounds like Kirby sold the physical art to Marvel.

    If you don’t think Stan Lee and Roy Thomas would not be justified in being pissed off by those cheap-shot caricatures, I don’t know what to say. I would never do that to anyone expecting I would ever approach them again for work.

    I don’t know why licensing took responsibility for the original art after Vartanoff left. I’m not all that knowledgeable about the interdepartmental doings of Marvel at the time. Ask Shooter or James Galton or someone else who was there at the time. Shooter apparently has several boxes of Marvel internal documents from back then. Maybe he has a memo that discusses it.

    I didn’t say there wasn’t any art theft. I said I had no basis for claiming there was. (I do now, thanks to Shooter’s anecdote.) I hope you can appreciate the difference.

  200. JS says:

    Jeet’s participation in the thread in question begins here.

    I call him out here. No mention of Proust and Felber after that, although he was far from done.

    People can make up their own minds.

  201. James says:

    It figures that the guy who uses the pseudonym JS so as to “avoid confusion” invariably takes the word of management over that of employees, the word of editors over artists…it suits his previous demonstrated anti-artist biases. The companies may have “assumed” their ownership of original artwork but they were obviously in the wrong because they began returning it. Who ever heard of them doing anything out of the goodness of their hearts? Their lawyers informed them that they must begin returning the art, because they had to. Artists should be as hard on the companies as the companies were on them. Kirby’s art was stolen from the Marvel office, from Marvel’s “safekeeping” on Shooter’s watch, but Shooter did not take responsibility for that theft or do anything about it. He and Marvel should be held responsible for the value of that work by the damaged parties or their heirs. Nor should Marvel and their ilk be given a pass on artwork that was given away to fans or visitors to the office for all those years or that was taken to line the editors’ or Marvel figurehead’s storage lockers. All work not returned to the artists should be compensated for at current market value, even if it must be done using the laws and precedents were implemented by the families of people who were robbed by the Nazis.

  202. Mike Hunter says:

    —————————-
    JS says:

    …Arguing Bill Gaines was more ethical than Martin Goodman because he personally valued the work he was publishing seems ridiculous to me. By all accounts, Stan Lee greatly enjoyed the work Kirby and other cartoonists did for him. Does that make his credit-stealing more palatable?
    —————————–

    (???) It’s the old tactic of “assert the other side made an absurd statement (which they actually did not do), then attack them for making an absurd statement.”

    Bill Gaines (who should be the poster boy for benevolent paternalism) is considered more ethical in this instance because he made it clear to artists he was purchasing not just the printing rights, but their original art. (Those like Frazetta who wanted the art back being paid a little less.) And, when he sold off his carefully-preserved collection, he gave the artists a percentage of his profits.

    This is a significantly different thing than Stan Lee’s purely emotional/aesthetic “enjoyment” of “the work Kirby and other cartoonists did for him,” which didn’t get in the way of the original art being treated like crap, given away to visitors at Marvel, lost, stolen, etc.

    Not to mention one of the several things we agree on, the abysmal fashion in which Kirby was made to jump through hoops in order to get a portion of his art back.

  203. JS says:

    Their lawyers informed them that they must begin returning the art, because they had to.

    If you have evidence of this, please show it.

  204. Jeet Heer says:

    Sigh. This is one reason why debating with JS (and all the other avatars of Robert Stanley Martin) is such a fruitless enterprise. JS or RSM assumes that if you don’t respond to him on a point, you are conceding that point. But its far more likely — at least in my experience — to stop arguing a point simply because you find a particular line of argument to be tedious and unproductive. In general, I don’t find it useful to engage JS or RSM on aesthetic or theoretical matters — where his tendency to fly free into the realm of arbitrary assertions is especially pronounced. I try to address my responses to more verifiable historical and factual questions (where — as when confronted by the Shooter blog post — J.S/RSM is occasionally willing to grapple with evidence that contradicts his assertions).

  205. James says:

    For someone who does hasn’t worked for mainstream companies, you sure seem sure of your own, apparently based on hearsay, comments. Be that as it may, I HAVE worked for them, both Marvel and DC. I did get my original art back from both—-now, I no longer have any of the paperwork from the few things I did for Epic way back when, but my DC contracts stipulate that the art is to be returned and further, that in the event that art is not returned to me or is damaged in some way I am to be recompensed for their value. I have every reason to believe that the contracts ONLY say that because that is what DC’s lawyers say that the wording should be, because none of these folks do anything that they don’t have to.

  206. Jeet Heer says:

    @ “If you don’t think Stan Lee and Roy Thomas would not be justified in being pissed off by those cheap-shot caricatures, I don’t know what to say. I would never do that to anyone expecting I would ever approach them again for work.” Well, this just proves that Stan Lee and Roy Thomas have a better sense of humor than JS/RSM. Lee worked with Kirby again on the Silver Surfer graphic novel and Thomas edited the “What If” story that Kirby did in the late 1970s (a gentler spoof of the Marvel Bullpen). The Flunky Flashman/Houseroy story is abrasively satirical but its a mark of adulthood to be able to handle this sort of mockery — except for a few psychotics, most politicians can handle political humor. Despite their harshness, I don’t think its accurate to describe Funky Flashman and Houseroy as “cheap shot caricatures” — Funky is an amusing take on Lee’s public persona (almost as good as Clowes’ Dr. Infinity) and Houseroy captures a certain fannish sycophancy that displayed by Lee’s cronies. An inability to appreciate satire is, I have to say, a fairly disabling trait in would-be comics critic.

  207. James says:

    By all appearances, Lee is as much of a creep as the guy Jack depicted in Funky Flashman. It is doubtful that that it had any bearing on whether Kirby was hired again because the priorities of those doing the hiring was simply to exploit Kirby more, which they did…and it wasn’t Lee doing the hiring.
    It is also likely that Lee only says what he is told to say by those paying him large amounts of money….although it will be sad if he craps out without ever again telling the truth about his working relationship with his collaborators.

  208. JS says:

    I have several years of experience in book publishing. I’ve personally negotiated over 40 book contracts and been a consultant on dozens of others. I know several editors and creators who’ve worked for Marvel or DC over the years. One of the common threads of all of it is this:

    The legal department works for the editorial department, not the other way around. The job of the legal department is to create the contractual language that allows the editorial department to do what it wants to do. The legal department can create roadblocks and other complications, but the core decisions belong to editorial.

    Your contracts at DC provide what they do largely because of Jenette Kahn, Paul Levitz, Karen Berger, and the late Dick Giordano. None of them are perfect, and I know horror stories about all of them, but in general all four have the deserved reputation for making DC a much fairer and more equitable place for creators to do business. They directed the changes at DC, not the lawyers. If anything, they were probably fighting the legal department every step of the way.

    Any creators who think the lawyers at DC are more their friends than the editors are setting themselves up for a host of problems.

  209. Jeet Heer says:

    Leaving aside the accuracy of Funky Flashman (I think it’s a fair likeness of Lee), I’m also amazed by the fact that JS thinks that workers should never make fun of management (or to be more precise, artists should never make fun of editors).

    This is very revealing of JS’s general anti-worker, anti-artist, pro-management sentiment. For him, Marvel is “reasonable” while those who criticize the way the company treated Kirby and other artists are making “emotional appeals” based on “emotional investment.” (In passing, I wonder why JS is so hostile to emotions — at times he reads like Dave Sim denouncing women for being emotional and lacking in manly rationality). If you bring up the disparity of resources between freelancers and large corporations, you’re “infantalizing” the artist because they should be tough, manly men and live with the consequences of their actions and stoically accept their mistreatment. Or they should be criticized for their decision to keep making comics — if they were strong, competent adults they should have gone into other fields. And those artists who stand up for their rights — Neil Adams and Frank Miller — are guilty of talking nonsense. And the only accounts of stolen art to be trusted are those from “appropriate Marvel personnel” (i.e. management). The word of management is to be taken at face value while statements by artists are to be denounced as hearsay.
    There’s a real mentality at work here and I don’t think it can be described as one based in rationality and skepticism.

  210. James says:

    “JS” : thanks for clarifying your experience, though I’m unsure that book trade contracts are the same as those done in comics. I can’t say I ever thought lawyers were my friends. You may be right regarding the good works of Jenette, Paul, Karen and Giordano….unfortunately, most of those individuals are no longer at DC. Those in charge now apparently have considerably less scruples…as has been noted elsewhere, Before Watchmen didn’t happen under Jenette and Paul’s watch.
    None of this excuses Marvel’s behavior. I believe that the companies had no right to keep the original artwork and that goes for Wm. Gaines as well, DC realized it, Marvel balked with Kirby for various reasons. But the whole business is corrupted anyway because there is no system of provenance in the comics original art market and so most of the Kirby art on the market is stolen. At any rate this all only relates to work from the past, it’s moot going forward because with digital delivery of printable art there is no reason for art to pass through a company’s hands any longer. Actually a lot of artists don’t make originals any more, although some of us are holdouts.
    That’s it, I think…

  211. Allen Smith says:

    Stan Lee will never do any such thing. His contract, according to what I’ve read, calls for his wife and family to be taken care of after he’s gone. But that’s only if he toes the company line. And, although it pains me to say it, I don’t know that I would act any differently if the future of my wife and children depended in part on my public statements defending Marvel’s interests. That’s the sole bit of sympathy I have for Stan Lee. Otherwise…

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