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Marvel vs. Jack Kirby: Legal Rights and Ethical Might

We’re pleased to present the audio recording of “Marvel vs. Jack Kirby: Legal Rights and Ethical Might” presented by The Vermont Law School and The Center for Cartoon Studies. This conversation between Oliver Goodenough and Stephen Bissette was held on Friday, October 21, 2011 on the campus of the Vermont Law School in South Royalton, VT. Thanks to CCS for recording this for us.

Here’s the audio:

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About the participants:

Professor Oliver Goodenough’s research and writing at the intersection of law, economics, finance, media, technology, neuroscience and behavioral biology make him an authority in several emerging areas of law. He is a Professor of Law and the Director of Scholarship at the Vermont Law School. His is also currently a Faculty Fellow at The Berkman Center for Internet & Society at Harvard University, where he is co-director of the Law Lab project. Prof. Goodenough holds many appointments and has written on a vast array of subjects including the topic of today’s conversation, intellectual property and the transmission of culture.

Stephen R. Bissette has won many industry awards in his quarter-century in comics as a cartoonist, writer, editor and publisher and is best-known for Saga of the Swamp Thing and his self-published  horror anthology Taboo. His efforts in comics and publishing have provided fuel for many films including Constantine, From Hell, and TMNT II: Secret of the Ooze. He is a founding faculty member at the Center for Cartoon Studies in White River Junction, Vt. and has been a champion for creator rights for decades.

 

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32 Responses to Marvel vs. Jack Kirby: Legal Rights and Ethical Might

  1. Nick Marino says:

    I’m so glad you posted this!!! It’s a great listen.

    I’m really torn on the topic. Not from an ethical standpoint — I think that’s pretty clear. I’m torn, much as Oliver was, from a strictly legal standpoint. However, I think Steve brought up some fantastic legal counterpoints, and I’d be interested to find out if those counterpoints could, to a degree, fuel an appeal of the ruling.

    And the point about Ditko is also really interesting… Did they reach out to him? Did he turn it down? Or does he have a private contract with Marvel that somehow rules out the option of testimony in a circumstance like this? Just curious…

  2. patrick ford says:

    Oliver Goodenough and Stephen Bissette get to the heart of the case at around 49min in.

    The key to the case was the attempt by Toberoff to show, that like Siegel and Shuster, Kirby brought characters to the publisher he created at home, by himself, with no understanding he would be paid.

    Countering this was the testimony of Lee who categorically said he alone created every single character and basic plot by himself, and then assigned the cartoonists to illustrate his concepts.

    That is why the judge said Marvel’s case “stands or falls on his (Lee’s) testimony.”

    It’s difficult to say based on the heavily redacted scraps of the depositions released to the pubic, but it seems the judge, Disney, and Toberoff, all knew where the focus was, and it wasn’t on if a freelance penciler drawing a comic book is subject to the work for hire definition if no freelance agreement existed, if there was no contract or paper work of any kind.

    Disney with Lee spent pages on positioning Lee as having set the creative process in motion by creating the characters all by himself. Lee was taken in a methodical way through a comprehensive list of the early Marvel characters, and in every case his story was he same; he alone conceived the character, and basic plot.

    Toberoff put his efforts towards trying to show Kirby had created the characters at home, and only then shown them to Lee who was free to either accept (The Fantastic Four) or reject (Kirby’s Spiderman) the characters being offered.

    Toberoff offered the deposition testimony of Kirby’s daughter Susan, testimony the judge downplayed because she was a child at the time of the incidents she described. Susan Kirby said she saw her father creating concept drawing illustrating and describing the various members of the Fantastic Four. She recalls her father told her he was going to name the Invisible Girl after her.

    Toberoff describes the Kirby Spiderman character which was rejected by Marvel. Disney seemed so concerned by the fact Kirby said he was not paid for the rejected pages that they brought Lee back to give testimony countering this assertion, in fact Lee said “artists” were always paid for rejected work at Marvel. That comment by Lee was disputed by every other witness who gave testimony including Colan, Ayers, and Sinnott.

    Toberoff also used two different sets of character presentations Kirby had made in the late 60′s to show Kirby (as he had done since the early 40′s) continued his practice of submitting character proposals to publishers in the form of pitch pages. Kirby had begun withholding new characters in the late 60′s in an effort to negotiate a reasonable contract with Marvel. Kirby showed at least two proposals to Marvel. One was for a revamped Thor using new character designs, and taking the series in a new direction. The other set of characters eventually saw publication at DC as Kirby’s Fourth World.

    Toberoff’s argument was the two sets of concept ideas showed Kirby created characters and offered them to Marvel just as he had always done. Marvel doesn’t own the rights to those ideas, because they either rejected them (as Lee said in an interview with Roy Thomas), or Kirby withheld the characters in lieu of a better deal. In either case it shows Kirby creating characters on spec, at his own risk.

    Most people commenting on the case are far more concerned about the conditions under which Kirby co-created the comic books, as opposed to the real issue. The real issue is who was bringing characters to who?

    On another matter. There is a reason why Kirby signed away his rights in 1972. The full reason is known to Mark Evanier, who has said it will be detailed in his eventual biography of Kirby.

    From what little I have been able to put together Kirby signing the agreement (keep in mind he isn’t at Marvel in 1972) has to do with Kirby having taken an advance from Marvel publisher Martin Goodman in 1969 in order to finance his move to California. The exact terms of Kirby’s agreement with Goodman haven’t been disclosed, but Evanier has said Kirby signed the 1972 agreement under duress.

    • Allen Smith says:

      There’s another aspect to the case that doesn’t make sense. Marvel had Kirby sign that agreement in 1972 giving up all rights to Captain America, and presumably (I’ve never seen the details of any agreements, so in a way I’m speaking hypothetically) Kirby also signed away rights to other characters he created. Given that hypothetical, how can Marvel contend that Kirby knew he was work for hire? If both parties knew that the work was work for hire, why have an agreement that basically states that the work done years previously was work for hire?

      If, as so many contend, it was common knowledge at the time the Marvel characters were created that it was work for hire, then there would have been no need for an agreement in the first place. Marvel, in seeking such an agreement, wasn’t sure that his, Kirby’s work, was work for hire. So there couldn’t have been any such understanding at the time the work was created.

      Allen Smith

      • patrick ford says:

        The judge dealt with all of those issues in the ruling.
        http://docs.justia.com/cases/federal/district-cou
        The basis of the judge’s ruling was based on Lee’s testimony.

        That foundation was, Lee says he created the characters and basic plots before ever speaking to Kirby.

        That makes everything Kirby did work for hire, because it was all done after Lee created the plots and characters.

        This isn’t about images, it’s about character creation, and if Kirby created characters by himself, and then brought them to Lee.

        The judge is just following the law. Once she accepts Lee’s comments her hands are tied.

        Now you could say she’s an idiot for believing Lee’s deposition comments, but then you would be saying you think Lee repeatedly lied under oath.

        My observation on this case is despite the judge prefacing the body of her ruling by saying

        “Marvel’s case stands or falls on Lee’s testimony” most people are flailing around trying to blame Marvel, or the judge, or the law, rather than giving Lee the same “credit” for the outcome the judge lays at his feet.

        This could have been a great moment for Lee. He could have said:

        “You know, I have tens of millions, and that’s enough. Jack created those characters, I honestly don’t remember all the details, but he absolutely suggested characters to me. That’s the Jack everyone remembers, and that’s just what he did. Jack not only created characters and plots for the books he was working on, he gave me character ideas and plots for books he wasn’t working on.”

  3. Allen Smith says:

    Let’s be honest. The judge was a fucking idiot. As comics characters, it was both the writing and the visuals that resulted in the creation of the characters, so Lee’s contributions were only half of the process of creation. Kirby, as the creator of the visuals of the characters (and, that’s the least he did if one credits Lee’s statements about the original ideas and plots for the characters, which I do not) was responsible for half of the character. Very simple. The key issue is whether Kirby’s portion of the creation was done under conditions of work for hire.

    • Nick Gazin says:

      Yeah, ezzackly! And a good portion of the profits derived from these characters is from merchandise in which all you see is their visual representation.

  4. patrick ford says:

    I don’t think the judge was an idiot. Oliver’s explanation was good enough for me. Lee presented himself as the center and well spring. There was no one to counter Lee’s testimony, and as a result she based her ruling on Lee’s testimony.

    I see people everywhere trying to ignore the obvious here, but it’s B&W.

    The judge does seem to be fawning over Lee in her ruling. She even includes weird little bit’s from his testimony in her ruling. For example in one place she says the Hulk was the first green super hero. She also swallows hook line and sinker one of the most onerous fabrications in the history of comics. That would be Lee’s definition of the Marvel Method as Lee, “giving the artists freedom.” In Lee’s world taking full credit and a percentage of a page rate (Kirby rightly should have been paid for plotting) has been transformed into: “I gave the artists freedom.” You expect that from Lee, but it’s flat sad that people who should know better keep parroting Lee’s description as if it’s documented history.

    Part of Lee now completely denigrating any notion Kirby plotted the stories might well stem from the fact Kirby was not paid anything for writing. If Marvel/Lee admitted Kirby plotted stories then how could his plotting have been work for hire? Is it possible to be considered hired if you aren’t being paid?

    I wonder how many people are aware that in his deposition , by way of explaining past statements crediting Kirby with co-plotting, Lee said he only credited Kirby in the past because he, “…wanted to make Jack feel good, make him feel like we were doing it together.”

    • Nick Gazin says:

      “Make him feel like we were doing it together”?!

      Like George Costanza said,”It’s not a lie if you believe it.”

    • Allen Smith says:

      The testimony of others wasn’t, or shouldn’t have been, necessary. The art pages to the Fantastic Four, Thor, Ant Man, the X-Men, ad infinitum, were Kirby’s, that wasn’t in dispute. So as the creator of the visual half of these and other Marvel characters, Kirby in fact was a cocreator. And might well have been sole creator on many of the concepts.

      And he was freelance, not an employee. If he was an employee, where are the contracts specifying terms of employment? Where’s the record of the health care and other benefits other employees normally get? I contend that these facts alone prove that Kirby was not work for hire, and that the judge was monumentally ignorant of what comics are, and were. A combination of story and art. The characters in comics are shown by the art as well as the dialogue. No art, it’s not comics. And Marvel isn’t disputing that these are comic characters. Of course, my idea means that all artists who, along with the writer, originate a character are cocreators of that character or characters.

      Allen Smith

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  6. I’m definitively on Kirby’s side with this. Kirby was arguably the Babe Ruth of creating popular superheroes. If Goodman wants popular superheroes, it doesn’t make sense that Lee would tell Kirby to stay in the dugout while he (the coach) goes up to bat to try and nail a home run, even though he never hit a home run before in his life. Especially with Marvel the comic company being on wobbly legs as it was at the time. I mean, the last time Stan tried to bring back superheroes, they flopped badly (this in the mid 50s).

    Now Lee does have an ego and part of me might have suspected that maybe he actually did just that, but then I heard Wendy Everett talk about her father Bill and Daredevil. According to her, after meeting Stan, Bill Everett came home saying he needed to create a superhero with a flaw. That was it, no other details. Due to Wendy’s poor eye sight and ability to walk around the house without glasses, he came up with a blind hero with a radar sense and the rest of his senses became super. This pretty much follows what Kirby (and his heirs) are saying what Kirby did. They created the characters, pitched them to Stan and he would accept them.

    Suddenly it hit me. If Stan really was (as he claims) creating the characters and plot and was just giving them to artists, why did he ask Bill Everett to work on Daredevil? Bill was out of comics and was working a day job for a greeting card company at the time. Except for 3 filler stories (totaling 11 pages) in 1960, Everett hadn’t drawn regularly for Marvel since 1958. Bill was a good artist no doubt, but it doesn’t make any sense that in 1964 he would call up Everett and ask him to draw a comic. Stan could have given “his” Daredevil idea to Don Heck, Wally Wood or any number of other artists either working for him or wanted to.

    The only logical reason I think Stan called up Everett was because Everett was a successful superhero creator. The Submariner being the biggie of course, but Amazing Man and other characters for other companies. What Stan needed was creators, who were also not dated artists and could plot/tell a story. Also they had to be willing to work for Goodman and fall for his verbal promises that he’d never keep (or simply not ask/expect to be paid beyond the page rate). Bill Everett fit the bill. I can not see any other reason for Stan to call Bill Everett other than to get him to pitch him a new superhero.

    • Blake Bell says:

      Hi Jamie. Only problem with the above is that Everett called Lee, not the other way around. Everett says that Lee had the Daredevil character. From my Bill Everett bio:

      “He had this idea for Daredevil,” recalled Everett. “I did take a couple of days off from work, and I came down and talked to him.”

      When Everett left the Marvel offices, he brought back the skeletal concept for the character, with the help of his family, began fleshing it out. Wendy, a sophomore in college at the time, remembers her father coming home with only the notion of a “daredevil-like” hero. “I had been born legally blind,” says Wendy, “and, over time, my sense of hearing got over-developed. So my father and I came up with that concept of using your other senses, when one sense was diminished. None of this was present when my father was given the job.”

      Thanks,
      Blake

      • patrick ford says:

        It would be interesting if someone could research and find out when Goodman registered for a trademark on the names Daredevil and Captain Marvel.

        The use of the names to two of the best selling super heroes of the golden age after finding out the trademark on those names had been allowed to lapse has the whiff of Goodman.

        I wonder if Goodman didn’t register the name Captain Marvel years before publishing a Captain Marvel comic book. As I understand it a registered trademark must be used within five years from the date the registration is granted.

        Marvel published a one shot appearance of Captain Marvel in Marvel Super Heroes early 1968. At that time DC was still distributing Marvel’s comic books through the DC owned Independent News. Even if DC objected it wouldn’t have much mattered, the trademark was secured for another year, and by then Marvel had a new owner Perfect Film and Chemical which had it’s own distribution arm going back to it’s roots as American Cigar stores.

      • Allen Smith says:

        Blake’s comment above seems to indicate that Stan Lee had a one sentence idea–”a daredevil sort of hero”–and that Everett “fleshed out the details.

        Allen Smith

      • Thanks for that Blake, I do have and read your book but did not remember that part.

  7. Kit says:

    Is this not going to be downloadable? Pat Ford’s comment saying they “get to the heart of the case at around 49min in” suggests anyone who wants to listen to this will have to sit at their computer, with nothing else to do, for an hour or two? (Hey, it could be five for all I know, your player doesn’t give us any indication or allow us to come back to a point we remember getting up to…)

  8. Kit, if you skip to 49 minutes of a 60 minute conversation, you’re missing the whole point of the dialogue. Give Oliver and me credit for working through more than just the “heart of” this judgment, and making time in our schedules to work through more than just the central conceit of the judgment. Condensing it all to the one hour allotted was difficult, but I think we managed it.

    • Kit says:

      Kit, if you skip to 49 minutes of a 60 minute conversation, you’re missing the whole point of the dialogue.

      No-one said anything about skipping! But neither the article text nor the flashplayer give any indication that the recording is an hour long – not being able to stick this on a portable player or phone and listen while on public transport or cooking or doing housework etc would have required any listener to have a completely open-ended amount of free time to sit in front of the computer, going nowhere, with headphones on, not knowing when they would be released from doubtless-fascinating bondage to go to bed / go home / go out into the fresh air and see sunlight again.

      At least your post now lets us know that we only need to find an hour of immobilarity!

  9. patrick ford says:

    Just to be clear I’m not recommending a person skip ahead to the 49min. mark. The foundational issues covered by Oliver and Steve are very important.

    For example see the comment above about how the judge must be an idiot because she doesn’t grasp the obvious fact that at a minimum Kirby created the visuals and the visuals are a minimum of Kirby’s contribution.

    That comment ignores what Oliver and Steve explained. If Lee’s “I created ever basic plot and character” comments are the truth then it doesn’t matter that Kirby created the visual aspects, because in that scenario Kirby did nothing until Lee gave him the plots and characters. That brands Kirby as a freelance illustrator doing work made for hire.

    The case wasn’t an attempt to show freelance artists working at the direction of the publisher were not subject to the work for hire legal definition.

    The case centered around Toberoff trying to show that Kirby brought to Marvel, characters and plots he created at home in his basement studio with no clear understanding they would be accepted.

    • Allen Smith says:

      No, I don’t feel that drawing a concept is just someone doing work for hire. That ignores the fact that the art part of comics is just as much a part of the creation of a comics character as the written part. Lee could write to his heart’s content (but then again, he didn’t, as he used the Marvel method) but he didn’t create a comics character, because a comics character isn’t complete until the visuals are provided. Lee didn’t provide the visuals, because he wrote the dialogue after the visuals. The plots he contributed were general, not specific, so the artist, in filling in the gaps left by a general plot, was also writing. As well as providing a visual template for the characters.

      Allen Smith

  10. Tom Scioli says:

    The legal system that says Kirby isn’t a freelancer is the same legal system that said Captain Marvel is the same thing as Superman.

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  12. Matt says:

    Thank you for putting this online and for making this happen. I’m learning so much and I think this is an important conversation for any creator or comics fan to hear.

  13. DiamondDulius says:

    So, what would have happened had Kirby’s heirs won? “Substantial payment”? Is Kirby even listed as co-creator of FF, Hulk, etc? It’s hard to believe Marvel won’t take the route DC took and just throw ‘em a bone…

  14. Steven R. Stahl says:

    Did anyone file an amicus brief in the Kirby lawsuit? I haven’t seen any indications of such filings.

    SRS

  15. James says:

    Whether or not Stan Lee “knew” he was perjuring himself (and the miracle of the sudden clarity of his memory is debatable after his years of dithering), his testimony altered the narrative that he’s been repeating for years all the way since his more honest assessment of his own input in Bullpen Bulletins (the artists worked from brief or even nonexistent plots and made complete narratives, which Stan then blurbed “like filling in a crossword puzzle”). It was Stan Lee who lost the case for the Kirbys. In that he made himself the clear villain of the situation.

    For many years I thought perhaps that Lee had been justly ashamed of how his uncle Martin Goodman had reneged on his verbal promises to include Kirby and other artists in the merchandising and royalties for their work in putting Marvel on the map…maybe Lee had even (futilely) fought with Goodman to defend his artists’ interests when Goodman sold the company.

    But now there is nothing that can be said but that it is Lee himself who screwed all of his collaborators. His testimony spit in the face of Kirby and all of the other artists he worked with. So sad to see Gene Colan’s affadavit, written at the end of his life, ignored by the judge and trampled wholesale by Lee, a man Gene respected and would not say a bad word about. I’m sorry that Gene was so misled by a man he thought was his friend.

  16. patrick ford says:

    James, Lee’s memory if it is confused had Disney/Marvel attorneys there to assist it. An example.

    The declarations from Adams, Colan, Ayers, Sinnott, and Steranko, were sought by Toberoff at the very end of discovery, and apparently sought in an attempt to counter Lee’s claims he made sure “artists” were always paid for rejected pages. That issue became important when Lee was questioned by Toberoff about Kirby’s rejected Spiderman pages. The thought being; If Kirby brought a Spiderman character to Lee (a character where the
    published version retained the name, the teen orphan, the aunt and uncle, the powers, and a mechanical web shooting device), but had never been paid for the pages, then how could the character have been purchased by Marvel?

    Here is how Toberoff described what happened after he had finished questioning Lee about Kirby’s Spiderman.

    (3/28) letter to the judge by Toberoff.

    Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I

    indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested

    a break even though the parties had just recently already taken a break. At this break, on

    my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently

    speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon

    resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which

    Lee immediately responded without any hesitation or reflection.”

    MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
    STAN LEE: Right.
    Q. Did Mr. Kirby get paid for those rejected pages?
    STAN LEE: Sure.
    Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
    STAN LEE: Any artists that drew anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw it, so I did pay them.

    Here are the creator declarations:
    Joe Sinnott:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/92/
    Dick Ayers:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/91/
    Colan:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/99/
    Steranko:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/94/
    Neal Adams:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/93/

    From Joe Sinnott’s declaration in support of the Kirby estate.

    6. There is no question in my mind Jack Kirby was the driving creative force behind most of Marvel’s top characters today including The Fantastic Four, The Mighty Thor, The Incredible Hulk, and The Avengers.
    The prolific Kirby was literally bursting with ideas and these characters and stories have all the markings of his fertile, and eclectic imagination.

    8. I semi-retired in the early 90’s, However, I still ink the “The Amazing Spider-Man” Sunday strip for Stan Lee.

    14. Years later, beginning around 1978 or 1979, Marvel suddenly changed the printed statement on the back of their checks to say that by endorsing the check the artist was acknowledging that Marvel owned all rights in the artist’s work as “work-for-hire.”
    This may well have been the first time I heard the term “work-for-hire.”

    15. In the 1950’s and 1960’s I certainly did not consider my freelance artwork to be “work-for-hire.” Nor did the other freelance artists I knew. No one was thinking along those lines as we worked out of our houses at all hours, trying to make a living by creating and selling artwork. Neither Stan Lee nor anyone else at Marvel ever told me at the time that they considered my work to be “work-for-hire.” I honestly do not believe that freelance artists, or Marvel understood, or intended that the freelance material Marvel bought was “work-for-hire.”
    I declare under penalty of perjury that to the best of my knowledge the foregoing is true and correct.

    Dated March 21, 2011 Joe Sinnott

    • Allen Smith says:

      Well, all those artists are lying bastards. Uncle Stan wouldn’t ever lie to us, would he. “Nuff Said!”

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  19. Tonebone says:

    Probably the reason Ditko was not brought in as a witness for the Kirby Estate, is for the same attitude he held in the following anecdote (From Jim Shooter’s blog… http://www.jimshooter.com/2011/06/secret-origin-of-jim-shooter-editor-in_30.html ). Neal Adams tried to organize a guild type orgainization for the sake of creater’s rights, specifically the rights to share in the copyrights of characters they created. They were all gathered (at Continuity Studios, I think) and everyone is getting worked up and lathering about getting their piece of the pie, when the focus turns to Ditko. It was brought up that the guild would champion the rights of people like Ditko… to which Ditko responded in this manner, quoting Shooter:

    Steve said that he was an adult when he did his work for Marvel in the sixties, that he knew what he was doing, that he understood the way things were done at the time and he accepted the terms. He agreed to the deal, or the standard terms that were in place then and he would not renege. If Marvel chose to be generous, fine. But he would stand by the choices he made. And, here comes the quote, he wasn’t going to let the Guild use him as a “poster child.”

    I know Shooter is like the antichrist around here, but he has some interesting things to say….

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