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Marvel/Disney’s Win Against Jack Kirby Heirs Not About Fairness

Art by Jack Kirby from Journey Into Mystery #83. ©1962 Marvel Characters.

Copyright attorney Marc Toberoff’s winning streak on behalf of comics creators collided with the Southern District Court of New York’s streak of publisher-friendly, work-for-hire rulings last week and the losers were Jack Kirby’s heirs. In a July 27 summary judgment in favor of Marvel/Disney that shut down Toberoff’s arguments before they even reached trial, Judge Colleen McMahon concluded that Kirby’s heirs were not entitled to a share in such creations as Iron Man and Thor, because they were the products of work for hire.

In September 2009, the Kirbys (Lisa, Barbara, Neal and Susan Kirby) served Marvel with 45 notices of termination in order to reclaim copyrights in several Marvel comics published between 1958 and 1963. The comics included Amazing Adventures #1-6, Amazing Fantasy #1-7, Avengers #1-2, Fantastic Four #1-21, Fantastic Four Annual #1, Journey Into Mystery #51-98, Incredible Hulk #1-6, Rawhide Kid #17-35, Sgt. Fury and His Howling Commandos #1-4, Strange Tales #67-115, Tales of Suspense #3-48 and Tales to Astonish #8 — issues that are noteworthy for having originated such recent and potential Hollywood gold mines as Iron Man, Thor, the Hulk, the Fantastic Four and the Avengers. In filing the notices of termination, Toberoff was following in the footsteps of his own successful bid on behalf Jerry Siegel’s heirs. Siegel’s heirs had been able to regain their shares in the Superman copyrights from DC under a provision of the Copyright Act of 1976, which allowed copyright terms to be extended only if the original author or authors had an opportunity to reclaim the rights when they came up for renewal.

On the strength of the Siegel ruling, the Kirbys entered into negotiations with Marvel on the expectation that Marvel might be willing to reach a settlement rather than risk losing huge chunks of its cash-cow copyrights. Instead, Marvel went on the offensive in January 2010, filing suit in the U.S. Southern District Court of New York to nullify the notices of termination on the grounds that Kirby had never owned the copyrights and therefore could not reclaim them. In March of 2010, Toberoff filed for a summary judgment in the Central District Court of California declaring the terminations to be valid and the Kirby heirs to be in control of the relevant copyrights. Toberoff later withdrew that suit “without prejudice,” meaning that it could in theory be revived. The Kirbys also crossfiled against Marvel’s suit in New York, calling for a summary judgment in their favor.

Some legal observers were expecting Marvel to be the second major comics-publisher domino to fall when Toberoff filed on behalf of the Kirbys, but there is a key difference between Kirby’s comics work and Siegel’s: It was well established that Superman already existed as a full-blown character concept before Siegel and Joe Shuster pitched him to DC, whereas Kirby, who died in 1994, did most if not all of his Marvel work on assignment from the publisher. In the case of work for hire, the Copyright Act defines the instigating employer/publisher as the Author of the work.

Clearly very conscious of recent editorials and letters in The New York Times expressing outrage at the way that Kirby had been shut out of the massive profits being reaped by Marvel/Disney, McMahon tried to distance herself from that controversy. At the outset of her ruling, she noted, “This case is not about whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruit of their labor. It is about whether Kirby’s work qualifies as work-for-hire … If it does, then Marvel owns the copyright in the Kirby works, whether that is ‘fair’ or not. If it does not, then the Kirby Heirs have a statutory right to take back those copyrights, no matter the impact on a recent corporate acquisition or on earnings from blockbuster movies made and yet to be made.”

Although today publishers are required to show contractual proof of work-for-hire arrangements, there was no such requirement during this period of Kirby’s freelance work for Marvel. In the absence of a contract, Judge McMahon relied on the instance-and-expense test. Under this test, a work-for-hire relationship is said to exist if a creator produces work at the behest of a publisher/employer and is compensated by the publisher/employer for the work. Toberoff argued that Kirby had generated ideas and concepts beyond what he had been specifically assigned to create, but McMahon concluded Marvel’s editorial supervision of Kirby’s work and its page-rate payments to him were sufficient for the relationship to pass the instance-and-expense test.

The case did not go to trial, but during the discovery phase, testimonies on both sides were collected in deposition. Testifying on behalf of Kirby were Silver Age Marvel artists Jim Steranko, Joe Sinnott and Dick Ayers and comics experts Mark Evanier and John Morrow. Lined up on Marvel/Disney’s side were Roy Thomas, John Romita Sr. and Larry Lieber, but the key testimony that seemed to carry the greatest weight with Judge McMahon came from Kirby’s erstwhile creative partner Stan Lee. The 87-year-old Lee gave a two-day deposition in support of Marvel. Based on the depositions, McMahon formed the following picture of Lee and Kirby’s working relationship: Lee gave Kirby a premise in outline and then “created the plot and dialogue for the characters after the pencil drawing was complete, [and] often times ignored any ‘margin notes’ submitted by the artist with suggestions as to the plot or dialogue in the story.”

Those familiar with how a comics story is produced under the Marvel method, may have difficulty imagining how the pencil drawing for an entire story could be complete and still be in need of a plot to be added afterward by the writer, and Evanier and Morrow argued that Kirby’s creative contributions went well beyond the instructions he received from Lee. McMahon, however, acceded to Marvel’s motion to strike Evanier and Morrow’s testimony. She seemed skeptical of their status as comics “experts,” always placing the word in quotes, and expressed the view that they would not be able to add anything to the proceedings that lay persons, or non-comics-experts, couldn’t determine on their own. Also mitigating against the relevance of Evanier’s and Morrow’s testimony was the fact that they didn’t have firsthand knowledge of industry practices before 1963.

If the case were to go to trial, the jury would be in a position to weigh the reliability of the various witnesses and judge the material evidence as to how independent Kirby’s creative processes were to Marvel’s instance and expense. In issuing her summary judgment, McMahon has precluded a jury trial from going forward, ruling that the law is clearly in favor of Marvel/Disney’s argument.

Toberoff has said that he intends to appeal to the Second Circuit Court. “Sometimes you have to lose in order to win,” he told The Hollywood Reporter. Whatever options Toberoff may pursue, last week’s ruling will certainly not help the Kirby family in its negotiations with Marvel/Disney.

It was a ruling that follows from a long line of precedents, including the recent judgment that quashed Dan DeCarlo’s challenging of Archie’s copyrights. As Judge McMahon said, it’s not about fairness. Work for hire is the best tool corporations have ever had for exploiting creative talent and the courts’ consistent safeguarding of that concept has ensured that the intent of the Copyright Act of 1976 has in part been undermined. The Act was based on a new understanding of the ways that intellectual property can turn out to have a value far beyond anything dreamt of at the time of its creation. When Siegel and Schuster sold the rights to Superman, they had no idea that the property could one day be parlayed into Blu-Ray discs and video games and computer apps — neither, for that matter, did DC. After a few decades, the property was expected to go into the Public Domain. Under pressure from entertainment companies, however, Congress has repeatedly extended the maximum limits of copyright terms, thereby adding value to intellectual property that it didn’t have at the time creators like Siegel and Kirby were turning their brainstorms over to publishers in exchange for modest pay checks. The Copyright Act of 1976 was meant to redress that to a degree, by giving the original authors a chance to benefit from the extended copyright terms. Arguably, the same principle ought to apply, whether you created something and then sold it as Siegel and Shuster did or simply accepted payment for your creative labors page by page as Kirby did.

Art by Jack Kirby, script by Stan Lee from The Incredible Hulk #4. ©1962 Marvel Characters.

 

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151 Responses to Marvel/Disney’s Win Against Jack Kirby Heirs Not About Fairness

  1. “Under this test, a work-for-hire relationship is said to exist if a creator produces work at the behest of a publisher/employer and is compensated by the publisher/employer for the work.” So, does that mean that any work that is done without a contract saying otherwise is work-for-hire and owned by the person paying for all time.

    So if Doubleday does not give Dan Brown a contract saying that he wrote the DaVinci code then Doubleday is the author of the DaVinci code the second Brown get’s paid? Or the second they ask him write it? So, if The Beatles started in the US then Brian Epstein and George Martin wrote those songs?

    I’m confused and want to punch someone.

    Another thing, a bunch of those characters Stan Lee lied about co-creating actually first had words added to Kirby’s art by Stan’s brother. Just saying.

  2. Frank Santoro says:

    I went to see Captain America yesterday with Jim Rugg. How fitting that Disney made an Army recruitment advertisement out Kirby’s genuine patriotism. The spoils of war won’t be shared though I guess. Time to mobilize a boycott of all Marvel/Disney products.

    • patrick ford says:

      For me boycotting Marvel would be like boycotting, “the gnawed remains of 5000 broiled lamb chop dinners.”

      Kirby wrote the greatest Captain America story ever published in 1975. It was about a group who called themselves “The elite” (Murdoch, Kotch?) used an electronic device to transmit electronic waves (Fox News) which stimulated the ugly side inside every man. The prejudice and anger which the young Kirby recognized was at the heart of “The Street Code,” and knew he had to reject.

      Kirby: ” Something inside me was spilling…Something the street code couldn’t touch…Something only god and my parents knew about… I was Hurting for Georgie, and hurting for me…And the lousy things we had to do for the Street Code.”
      http://www.the-isb.com/images/FreedomFreakBig.jpg

      • maker says:

        well from the panel given and the story it looks more like the “freedom Freaks are the Tea party, the Elites are the white house/congress/politicians, and the news channel is msnbc

        :)

        ( the great thing about stories, it’s all up to interpretation..but the moral stays true…)

      • erkki says:

        Think what you want about the left and the right side of politics in America now, but this was published during the Nixon/Vietnam War times, he wasn’t making a comment on how bad hippies were, he knew fully well it was the hippies who were reading his comics. Remember what the biker in Easy Rider is called? Captain America. So don’t weasel your way around the meaning here with a cop out of interpretation… Hippies wanted peace, and the good old Americans wanted Violence and War, and Order. Kirby clearly was standing up for the freaks and you would have to be a moron to think anyone in that time was commonly called a freak other than the hippies. Kirby was anti authoritarian and into weird stuff, not George Bush and the Tea Party flag waving idiots who think they are the “Normal” Americans. He was all about peace, love and fun… not Nazi Thought Police telling America what to think and enforcing it with violence.

    • John Isidore says:

      A boycott now? Really? I hope all you team-comix-alt-nerd types give back your Merry Marvel Money from the “Strange Tales” books, etc. I mean it’s not like you just found out Kirby was mistreated, right? We’ve known about this for about 40 years, or am I wrong?

      • patrick ford says:

        Speaking for myself, the Marvel comics of the 60′s are absolute crap. It’s a pity, because it’s apparent Kirby really had things to say, and his versions of many of the plots have been documented. The unfortunate thing is Lee’s awful writing style, and his destruction of character and plot reduce the comics to picture books.

        Lee is sort of a 10th rate Milton Caniff, who alternates between a very poor version of Caniff’s trademark “snappy patter” where every character is a comedian, and shallow maudlin platitudes.

        Seen at it’s worst in the cringe inducing text found in the laughably bad Silver Surfer book Lee worked on with Buscema. Lee’s attempts at being serious are plain embarrassing. Compare to something like Caniff’s “Terry” page where Col. Corkin gives Terry a pep talk.

        The notion Lee introduced character or characters with problems is just the standard parrot squawking. Kirby had produced the template for a group dynamic, and characters with problems in the early 40′s with the Newsboy Legion.

        The stories often centered around the every day problems the orphans dealt with while living in a slum. The bickering personalities seen in the FF echo the boys. Tough guy Scrapper (the Thing), Hot head talker Gabby (the Torch), Intellectual Big Words (Richards), and pragmatic diplomat Tommy (Susan).

        I’m not saying Lee didn’t contribute a lot to the published comic books, he contributed so much after Kirby was done with his work, that the published comics aren’t worth reading.

        Saying Lee collaborated with Kirby is like crediting Lazlo Toth with helping Michelangelo sculpt the Pieta.

      • John Isidore says:

        What?

      • Richard says:

        I find it amusing that a man accusing Lee’s writing of being full of “maudlin shallow platitudes” uses quite a few platitudes to do so and couples them with strange and references to Lazlo Toth when there were certainly more apt comparisons. Moreover,no good comics historian I know of argues that Lee created characters with problems. The argument is that he made such characters popular.

  3. patrick ford says:

    Nothing could be more predictable than Lee’s fans reaction the the ruling. Despite the judge prefacing her ruling by commenting , “Marvel’s case stands or falls on his (Lee’s) testimony, Lee’s MMMS insist that Lee has nothing to do with her decision which came down to work for hire.

    Of course Lee (as the judge says) has everything to do with the ruling. The Kirby estate needed to show that Kirby had created characters at home and then offered them to Lee. That is the polar opposite of Lee’s testimony where the Disney attorney leads him through a parade of the Marvel characters . Lee’s adds a repeated preamble to his accounts of how he alone created every character “I wanted to do something which had never been done before.” Lee then blathers on for a couple of paragraphs spinning is usual nonsense along the way, some of which the judge oddly quotes in her ruling (“I made the Hulk green.because there were no other green heroes). Just as Lee begins his self-serving accounts by saying his motivation was to “do something which had never been done before), he ends his tales of creation in every case by saying he created the characters and plots and then “gave it to Kirby (or another artist) to draw.”

    • Manuel A. Carmona says:

      Which we all know it’s a lie. There’s enough evidence that Kirby created entire storylines, drew them and turned them in to Lee, then Lee went over them and added some dialogue. In fact, in some cases Kirby actually wrote the dialogue, all Lee had to do was clean it up and off to the printers it goes. This is why I gave up wanting to be a penciller for Marvel, or the big 2 for that matter; for their lack of respect towards their artists.

  4. Ian Harker says:

    Let’s assume Kirby held the copyright from day one and continued to creatively produce these comics throughout the remainder of his career. Is there any reason to believe that they would be even 1/10th as valuable as they are today as media properties? Even though his career continued for another 20 years his comics were not sales leaders after the 60′s. These characters relied just as heavily from the contributions of subsequent creative persons just as much, and in some cases more, than they did from Kirby originally. What about their contributions?

    You get out of something what you put into it. Without Marvel as a publisher, and ultimately a media empire, these characters would be just as obscure and worthless as the myriad of historically comparable characters that did not enjoy the same financial backing.

    Should Kirby have been taken care of better by his former employer? Sure, but that stands true of about 90% of Americans. The only difference is that the average laborer doesn’t have a legion of irate fanboys at their disposal.

    • LWV says:

      Full Agreement.

    • “Without Marvel as a publisher, and ultimately a media empire, these characters would be just as obscure and worthless as the myriad of historically comparable characters that did not enjoy the same financial backing.”

      Mmmm…. I love ya Ian but no. Marvel/Timely/Atlas would have been out of business by 64 or so without Kirby. I don’t think the kids were tearing down the newstands for the latest issue of Patsy Walker. They were on the brink before he saved them and during those defining years he created almost everything that they have of value.

      But yeah, sure the guys that came after that built on it and grew it to the Marvel we know today. Yeah, all those guys deserve better also. It don’t make what was done right.

      The idea that everything sucks and always has sucked is a shitty ass excuse not to demand that things be better. Damn lazy.

      Marvel can do the right thing now. And they should not need a court order as motivation.

      • Ian Harker says:

        The best way for retired artists to get taken care of is for current artists to form a union and demand back pensions for retired artists.

      • That is a way. Which is better than no way. I’m a pro-Union guy but I also live in the year 2011 so I’m not too optimistic of that happening. Best? I don’t know. Easiest? Certainly not. It would be a whole lot easier for publishers to do the right thing.

        And they can even do it the corporate way. Send some junior exec with a big card board check. Send photographers. Make it a nice feel good moment in the power point presentation for the next quarterly shareholders meeting.

    • “These characters relied just as heavily from the contributions of subsequent creative persons just as much, and in some cases more, than they did from Kirby originally. What about their contributions?”

      That company makes most of its real money on characters created 50 years ago by Kirby—not on properties created by ‘subsequent creative persons.’

      You can dance around injustices as much as you like, for whatever obscure reason, but it just seems odd.

      • Ian Harker says:

        So if Marvel went under during their bankruptcy scare should they have sued the Kirby family and claimed that they were liable for the debts, or does ownership only come into play when things are in the black?

      • Tim Hodler says:

        You don’t really think that makes any sense, do you?

      • Ian Harker says:

        I’m just trying to make the point that people only want ownership of these properties while the gettin’ is good.

        For the record I don’t necessarily support either party’s claim of ownership and have issues with the concept of intellectual property to begin with and even bigger issues with the concept of inheritance. I’m just pointing out who actually brought home the bacon in this equation.

        On the contrary though I believe Abner Doubleday’s family deserves 25% of A-Rod’s salary. (obviously)

      • Jeet Heer says:

        Ian: this argument makes no frigging sense. Corporations, unlike private individuals, have limited liability. This means that various stakeholders (management, employees, shareholders) are not liable for debts. For example, when Kitchen Sink went out of business, the artists who did work for the company (Will Eisner, Charles Burns, Crumb, etc) weren’t liable for any debts. In fact, since they all owned their work, they could easily move their projects to other companies. That’s one advantage of allowing artists to own their own art.

      • jaroslav hasek says:

        correct, corpos cant go back after employees when things go south. they do, however, put up all the capital at risk. which is the ones that survive and ‘capitalize’ on their investments are the ones reaping the rewards. the only way people with ideas can ensure that they have the right to capitalize fully on their ideas is to put all of their capital at risk and self publish. that was not an option back in the day, but with technological advances now it is. sucks for people back in the day but so did living in the south before air conditioning.

      • Allen Smith says:

        No. Kirby can only be held responsible for what he created, not what he created that subsequent hands ran into the ground.

      • Matt says:

        Agreed. I think if you dismantle the most recent crop of Marvel blockbusters, it’s clear that the vast majority of concepts within are drawn fairly identically not from the fifty-odd years of stories that have been created since, but from the six-odd years of work Kirby did on the characters in the 1960s. To me, this is perhaps most stunningly true with regard to Captain America, which is the last dime I’ll be spending on anything Marvel produces until some Marvel exec wakes up one night with chills in a vision of the horrifying moral injustice he’s perpetrated upon Jack Kirby and his family, and decides to make some kind of reasonable reparations toward the Kirbys.

        It’s legal, fine. That doesn’t make it RIGHT.

      • Ian Harker says:

        My point about the subsequent creative teams wasn’t so much about the stories and concepts that they contributed as it was about the fact that they carried the torch for these properties from the early 70′s until today, during which time Kirby’s comics had fallen out of favor saleswise. That’s where the value lies, in the continuity of these properties in the public consciousness and the cultural credibility that comes with that. If all the comics had been canceled in 1969 with Kirby’s departure not a single movie, cartoon, video game, etc. would have ever been made and the copyrights would next to worthless. The value isn’t the comics themselves, it’s the market for those comics, the readers.

      • Matt says:

        I don’t know if I agree with that, either, although it’s hard to imagine an Iron Man movie being made if the last Iron Man comic had been published in 1969, for example.

        But I would argue the general public had only the vaguest sense of who some of these characters were in the first place, and that even if there hadn’t been comics published for forty-odd years, it’s not like anyone but the devout were even bothering to pay any attention to them.

        I think Kirby’s work at Marvel in the 1960s is formative for an industry, for the predominant artistic style in mainstream superhero comics, and for the entirety of Marvel’s current profit streams. When you look at the mainline Marvel universe of comics, the toys and cartoons and sippy cups aimed at kids from 2-13, the movies aimed at 14-114, it all starts with Kirby.

        Again, legally, there may very well be little recourse for the Kirby heirs. Morally, it’s a great injustice that this man’s seminal contributions to an artform, our popular culture, and most importantly THE HUGE HONKING BOTTOM LINE OF A MAJOR IP FARM, are not only completely unacknowledged from an ongoing financial perspective, but almost actively dismissed at every turn.

        It’s been a shitty week to even give half a shit about mainstream comics. Maybe that’s my problem; I should give no shit. This is the issue that boils my blood, but jesus, it’s ugly out there.

    • Jeet Heer says:

      So because capitalism is unjust we should never protest an individual case of injustice. That’s not a principled argument, it’s just a way of insuring that the status quo never changes.

      I’m amenable to the idea that the best solution is to let all this material fall into the public domain. But since it’s not in the public domain and congress keeps extending copyright, it makes more sense for artists and their families to get a stake in these properties rather than allow corporations to keep 100% ownership.

      • Ian Harker says:

        I don’t go to comics to get my political kicks, there is an entire crumbling world out there to satisfy that itch.

      • Jeet Heer says:

        I agree that “there is an entire crumbling world out there” but comics are part of that world. Just because you read comics for entertainment doesn’t mean that they aren’t made by real human beings with flesh-and-blood needs (money, health care, provisions for their family after they die). Remember the old union slogan: “an injury to one is an injury to all”? That’s surely a good reason to be concerned about the treatment meted out to Kirby, Ditko, Colon, Cockburn, etc.

        I’ll add that part of the great achievement of the Comics Journal is that it was the first magazine to treat the comics industry as an INDUSTRY, i.e. something where workplace issues are important and deserve reporting on. If you don’t want to think about workplace issues in comics, there are plenty of other sites that take a purely fannish approach and pretend that artists don’t have to eat.

      • Ian Harker says:

        But this is a bridge that has already been crossed 20+ years ago. Artists today know exactly what they are getting themselves into with work-for-hire vs. creator owned and the pros and cons of both. The outcome of this case doesn’t affect that reality one way or the other, it just financially addresses the Kirby family specifically. So from a political point of view a middle-class family fighting to become an upper-class family doesn’t exactly get my righteousness juices flowing, but that’s just me.

      • Tim Hodler says:

        For someone whose juices aren’t flowing, you sure are spending a lot of time and energy defending corporations from criticism!

      • patrick ford says:

        Jeet, It’s another version of the “America Love it or Leave it.” BS that has been circulated for decades. It’s a plea to fold the tent, to just accept things for what they are, and fall inline going down the cattle chute. Aldous Huxley warned of this type of thinking. It’s worse than the oppressive Orwell model where there at least burns a resentment against the thumb of injustice.

        Many people have come to look up to Big Brother as a benevolent ruler and love the nose rings he’s given them.

      • patrick ford says:

        Tim, It’s the new, “I’m screwed, so anyone who is better off than me I want to see screwed. Except for the heads of corporations, those guys are the boss. And I sure as hell don’t want anyone taxing my power-ball jackpot.”

      • Ian Harker says:

        I’m just trying to help this website get some comments for a change. Slow week at work. Don’t worry it won’t last.

    • DiamondDulius says:

      Actually, the main difference is the average employer doesn’t become a filthy rich media giant almost exclusively off the work of a single laborer and then lie about what said laborer did…

  5. PW says:

    Shouldn’t you have started the boycott by not going to that film?

    • Frank Santoro says:

      I found out about the lawsuit verdict after I went…

      • PW says:

        A perfectly understandable situation. I knew I could count on you to do the right thing Mr. Santaro! You have always impressed me as an upright guy.

        I’m with you on that boycott as well (though like most folks here I don’t buy much from that company to begin with–if anything! So it’s not much of a sacrifice).

  6. Danny Ceballos says:

    Let’s face it: the “work for hire” contract is an evil and vile thing. The “work for hire” agreement has needlessly ruined countless lives (just ask the Motown musicians). Have you ever seen a Disney Contract? If you sign their standard “work for hire” contract they own all you create on their premises “in perpetuity and throughout the known universes”? Ponder that doozy for a second or two without retching. I’m almost positive you’ll get a better deal from the devil for your soul.

    The problem with most of the entertainment models in the 20th century is that at the time they were created the products sold by these industries were viewed as disposable commodities: movies, pulp fictions, records, sheet music, newspaper comics, etc. Almost nobody saw the worth of these products beyond their immediate release and point of purchase or cared what happened to the materials used to create and exploit the finished product (nobody could foresee a collector’s market for original art, movie prints, comic books, 78 records, movie posters etc)

    Before television re-sales opened studio’s eyes, movies were made, put on view for a very limited time in theaters and then the prints were gathered and burned to extract a couple of pennies worth of silver. It is estimated that 90% of silent movies are gone (prints and other materials destroyed by studios either on purpose or through neglect). The studios never dreamed of future revenues coming from “libraries” or “brands” (there were exceptions, like the wise Charlie Chaplin, who owned all his movies. Perhaps his childhood of poverty taught him to hold on to everything he possessed or created).

    Whatever the outcome, Marvel can never claim any moral right to Kirby’s work. At the time he was dreaming up a vast panoply of characters to populate the Marvel Universe his thick-necked bosses were hungrily engaged in nothing more than the fine art of taking dimes out of children’s pockets. They never dreamed of “franchises” or “brands” or “intellectual properties” nor did they dream up any of the art that Jack Kirby’s hand, mind and pen did.

    • Robert Boyd says:

      Actually, work for hire has a very handy, valuable place in the world. Calling it evil is not very useful. If I hire an artist to draw a logo for my company that I plan to trademark and use forever, it makes no sense for the artist to own the copyright. I know this and the artist knows this. And the payment and the contract should reflect this. This is the kind of work designers and people who film commercials and many other kinds of creative people do frequently, and it is all work-for-hire, as it should be.

      I think where work-for-hire becomes problematic is in cases like comics or music where the creator is creating not a packaging or advertising concept for a company, but is creating the product itself.

      • patrick ford says:

        Robert is correct. I’d also point out The Rolling Stones, The Beatles , Jack Kirby, and Steve Ditko, did not sign work-for-hire contracts when they sold the copyrights to their work back in the early ’60s. In the cases of Kirby and Ditko, there was no contract of any kind. People talk about stamped waivers on the back of checks, but Marvel can not produce one from the ’50s or ’60s. Comic book publishers did not even begin using work-for-hire language in contracts until 1978. The Copyright Act of 1976 which allowed creators to seek termination of copyright went into effect on Jan. 1, 1978.
        http://www.theguardian.com/music/2009/aug/11/paul-mccartney-beatles-back-catalogue

  7. patrick ford says:

    Most of what Ian says is I think correct. The mystery here is why these characters are worth anything at all. From my point of view the characters would hopefully be worthless.

    Comic book creators interest me, not comic book characters. My interest in Carl Barks does not translate to an interest in Donald Duck. I’ve read a bit of Don Rosa, and Tony Strobl, enough to know their work doesn’t do anything for me. It’s fine, but I can’t afford to keep up with all the things I’m far more interested in let alone spend time, shelf space, and money on decent material which fails to engage me.

    In the case of the Marvel heroes my interest is primarily in the artwork by Kirby, Ditko, with a passing interest in a good deal of the rest of the art. While I assume Kirby created the characters and plots, Lee did rewrite the plots, and in my opinion Lee’s edits and dialogue made the stories so shallow, turgid, and maudlin, they are not worth reading.

    I wouldn’t think of seeing Hulk movie or buying a Hulk comic book. Not because of any protest, but because I have absolutely no present day interest in the Hulk or any “green super hero” who predated him (Lantern, Arrow, or Martian).

    If I heard Gilbert Hernandez was going to write and draw the Hulk I’d have to go buy it, but I’d be very disappointed Gilbert was working on the Hulk rather than on his own characters, though I wouldn’t begrudge him the payday.

    To the best of my knowledge the current super hero movies have almost nothing in common with their silver age roots. What surprises me is that movie studios would be willing to pay anything for the film rights to comic book heroes when they could easily invent knockoffs (The Incredibles) which they would own outright. If anything you would think the comic book companies would pay the movie studios (product placement) to promote their poor selling comic books in hopes that the 100 million dollar advertising promotions might help boost the sales of Green Lantern or Captain America above 75 thousand.

    If Marvel had faded away completely a few years ago when they were in financial trouble you couldn’t blame that on Lee, or Kirby, just as the current success of the films has far more to do with creating a product to meet a demand for big budget action/fantasy films, and promoting it full bore.

    My interest in the lawsuit has far more to do with Lee attempting to cut Kirby out of the Silver Age creative picture than it does the money aspects. That said I favor the creator over the corporation and the current law every time.

  8. kevin greenlee says:

    I’m not sure I understand why you concluded this piece by suggesting that the purposes of the 1976 copyright act had somehow been undermined. Since the Kirby work involved in this suit was created before that act became effective, the judge needed to apply not the 1976 law but the earlier version from 1909. If this case were governed by the current law, the end result would likely have been different

    • Brian says:

      Kevin, the 1970s law was written specifically to apply to works retroactively, for works created before the law was enacted.

  9. Bernard Brannigan says:

    I was looking forward to the ‘Captain America ‘ movie-just released here in Belfast but now I’ll have to wait until Marvel do the decent thing and recognise the Kirby legacy.After Kirby left, Lee created She-Hulk and Ravage. Kirby went on to create Mister Miracle,New Gods,Forever people,Kamandi,The Eternals,Machine Man etc.etc not bad for a guy who just drew the pictures according to Lee.My not buying their comics won’t make much difference to Marvel but it sure makes me feel better!

  10. patrick ford says:

    Ian: “I’m just trying to make the point that people only want ownership of these properties while the gettin’ is good.”

    Jack Kirby: At Marvel I couldn’t say anything or; it would be taken away from me, and put in another context, and all my connection with it would be lost.

    Tim Skelly: That sounds like a problem.

    Kirby: You get to feel like a ghost. You’re writing commercials for somebody, I didn’t like it much.

    Skelly: Things were bad as far as recognition goes?

    Kirby: IT WASN’T RECOGNITION. I JUST COULDN’T TAKE A CHARACTER ANYWHERE. YOU DEVOTE YOUR TIME TO A CHARACTER, HELP IT EVOLVE AND THEN LOSE ALL CONNECTION WITH IT.

  11. LWV says:

    I can’t really follow when people talk about stuff like this.

    I mean, any time you’re working you’re getting paid less than your employers are making (directly/indirectly) from your presense. Fine artists don’t bitch when their work doubles in value after sale.

    The only real question is: Did Kirby get what he bargained for? Yeah, probably a lot more. Definitely less than he deserved, but probably exactly what was agreed on.

    Being really good at something doesn’t preclude you from making mediocre business decisions that overvalue the short term.

    • DiamondDulius says:

      Actually, no… according to various sources, Kirby had been promised more money, better position in the company and bonuses that never materialized. This was why he was disillusioned during his last year at Marvel, and also why he didn’t create any new characters.

  12. Paul O'Brien says:

    “She seemed skeptical of their status as comics “experts”…”

    That’s not really the point she’s making (though she doesn’t explain it very clearly to a lay audience). She’s saying that they’re not the sort of experts whose evidence is admissible in court.

    An expert witness is supposed to be somebody who assists the court to interpret the evidence, using expertise which the judge or jury lacks. For example, a doctor who can explain medical records, or prospects of recovery, or comment on whether there was negligent treatment. Or an accident investigator who can look at the aftermath of a car crash and tell you what that implies about the speed and direction of the cars. Things like that. People who can interpret the evidence in a way that the jury can’t.

    Morrow and Evanier aren’t that sort of expert; they’re historians who know a lot about the topic, but that’s just glorified hearsay evidence. At least, that’s what I understand the judge to be saying. (Here in Scotland, much of their evidence might well have been admitted since we abolished the rule against hearsay in 1988, but on general principles the judge’s ruling makes sense to me.)

    • patrick ford says:

      One odd thing is she throws out the testimony of Evanier, but uses Evanier’s testimony as a justification for allowing the declarations of Ayers, Sinnott, and Steranko. She reasons that because Evanier had mentioned interviewing them their not appearing on a witness list in a “timely fashion” wasn’t enough to exclude their declarations. Marvel was made aware of them by Evanier, and that was enough.

      Given the willingness of Ayers, Colan, Sinnott, Adams, and Steranko, to give declarations it would have been wise for the estate to take full depositions from them. They should certainly have tried to depose Stan Goldberg and Ditko as well.

      Ditko in particular made comments in a letter to Comic Book Marketplace which contradict portions of Lee’s deposition. Evanier has said Ditko was paid a page rate for plotting Spider-Man on top of his page rate for the artwork. Ditko was credited for plotting Spider-Man, and he also says he was plotting Spider-Man with no input from Lee for quite some time before he was credited and paid for his plotting.

      Ditko also indicates that Lee wouldn’t even speak to him for around a year, I’d assume because Ditko’s credit and payment for plotting Spider-Man cut a chunk off Lee’s writing page rate.

      Steve Ditko’s letter to Comic Book Marketplace magazine published in issue #63. :

      In your Comic Book Marketplace #61, July 1998. page 45, Stan Lee talks about “…a very famous scene…” of a trapped Spider-Man lifting heavy machinery over his head. The drama of that sequence was first commented on and popularized by Gil Kane. Stan says “I just mentioned the idea…I hadn’t thought of devoting that many pages to it…” I was publicly credited as the plotter only starting with issue #26. The lifting sequence is in issue #33. The fact is we had no story or idea discussion about Spider-Man books even before issue #26 up to when I left the book. Stan never knew what was in my plotted stories until I took in the penciled story, the cover, my script and Sol Brodsky took the material from me and took it all into Stan’s office, so I had to leave without seeing or talking to Stan.

      Steve Ditko, New York

      • Paul O'Brien says:

        On your first point, there’s nothing odd about that at all. She’s waiving the failure to include the names on the witness list because in practice Marvel had notice of them, and therefore it’s just a technicality. That’s a completely separate issue from whether Evanier’s report is admissible in evidence at a trial.

        There could be many reasons why the Kirby lawyers didn’t call other creators as witnesses, and we can only really speculate. Perhaps other parts of their evidence would have played into Marvel’s hands, and a tactical decision was taken not to use them. Perhaps they figured that they had all the relevant material in the reports that were ruled as inadmissible (though I’d have thought that was a foreseeable risk). There’s no real way of knowing.

      • patrick ford says:

        Since a number of creators came forward and gave declarations late in discovery, I assume Toberoff wasn’t afraid of what they might say, he added them to the pre-trial witness list along with Stan Goldberg, and Joe Simon.

        I don’t know what the law is, but it just seemed contradictory to me she struck Evanier’s testimony, and then used it to allow the declarations of Adams, Colan, Sinnott, Ayers, and Steranko.

  13. Matt says:

    I’m a total neophyte at this point when it comes to these matters, and am admittedly poorly read on these topics other than the passing comments of others, but…

    How does Roy Thomas sleep at night? I can see Stan Lee and Larry Lieber trotting out to testify on behalf of Marvel, and John Romita Sr. to an extent…but man.

    • patrick ford says:

      I’m most disappointed by Romita’s testimony. I expected Lee’s. Romita is a guy who says Kirby was his hero. Romita said he’d like to have taken all the ideas Kirby threw in his wastebasket at Marvel because they were worth millions. Yet Lee tells us now that Kirby contributed nothing which he could put a name on between the years 1958 and 1963. So where did all the ideas Kirby didn’t toss in the wastebasket go?

      During his 2010 deposition Lee was directly confronted with prior statements from interviews, and the “Origins” books, and Lee now says:

      “So I tried to write these (The Origins books) — knowing Jack would read them, I tried to write them to make it look as if he and I were just doing everything together, to make him feel good. And we were doing it together.

      But with something like Galactus, it was me who said, “I want to do a demigod. I want to call him Galactus.”

      Jack said it was a great idea, and he drew a wonderful one and he did a great job on it. But in writing the book, I wanted to make it look as if we did it together. So I said we were both thinking about it, and we came up with Galactus.”

      John Romita (Alter-Ego Magazine): Jack got a chance to knock the stuff out, and use his own characters. Jack used to surprise Stan with new characters almost every time he turned in a story. Take Galactus who devours planets. Instead of knocking down buildings, Kirby is talking about eating planets.

      I told him once he threw away more ideas than I could think of. His throwaway bin was probably worth millions. I can imagine going through his wastebaskets, and “coming up” with all the ideas he didn’t use.

      Stan Goldberg (Alter-Ego Magazine): “Jack would sit there at lunch, and tell us these great ideas about what he was going to do next. It was like the ideas were bursting from every pore of his body. It was very interesting because he was a fountain of ideas.

      Stan would drive me home and we’d plot our stories in the car. I’d say to Stan,”How’s this? Millie loses her job.” He’d say,”Great! Give me 25 pages.” And that took him off the hook. One time I was in Stan’s office and I told him, “I don’t have another plot.” Stan got out of his chair and walked over to me, looked me in the face, and said very seriously, “I don’t ever want to hear you say you can’t think of another plot.” Then he walked back and sat doen in his chair. He didn’t think he needed to tell me anything more.”

      Jim Amash:” Sounds like you were doing most of the writing then.”

      Goldberg: “Well, I was.

      Joe Sinnott (2011 declaration):

      I got to know Jack Kirby’s work, and remarkable creativity quite well and witnessed his characters and stories as they evolved.

      There is no question in my mind that Jack Kirby was the driving force behind most of Marvel’s top characters.

      Kim Aamodt (Alter-Ego Magazine) : I really sweated out plots, unlike Jack Kirby. Jack just ignited and came out with ideas, and Joe’d just kind of nod his head in agreement. Jack’s face looked so energized when he was plotting that it seemed as if sparks were flying off him.Joe was on the ground, and Jack was on cloud nine. Jack was more of the artist type; he had great instincts.

      Walter Geier (Alter-Ego Magazine) : Jack Kirby was great about that; he always came up with the plots. Jack had a fertile mind. Joe used to sit there when the writers came in for conferences. They sat there and made up the plots for the writers. Jack did most of that. Joe would say something once in a while, but Jack was the idea man. Joe didn’t talk much. He could come up with decent plots, but it was usually very sketchy stuff. A lot of times Joe would say, ” Awww…you figure out the ending.” Jack would give me the ending, because he was good at figuring out stories. It was not hard to work with Jack. They were Jack’s plots. I just supplied the dialogue.

    • DiamondDulius says:

      It is humorous that Thomas would testify on Marvel’s side, but remember that Thomas has had his nose planted firmly up Lee’s rear end since the mid-60s… to read anything Thomas writes about those times, Lee could do no wrong. Thomas’ slavish worship of Lee truly borders on insanity… Marvel really put the screws to Thomas in the early 80s, and he couldn’t get steady work from them today even if he went to their offices with a gun… yet Lee remains his god, inexplicably.

      • patrick ford says:

        It’s flat out weird the way many people react to Lee’s “obvious bullshit” as Gary Groth put it so well. That goes for the man, as well as his really awful writing. Comparing Lee as a writer to Kirby is like comparing William Shatner in Star Trek to Marlon Brando in Julius Caesar.

        The only way I can see a person having an affection for Lee’s writing would be in the same way an adult with a young child might want to bite into an orange marshmallow circus peanut. The aroma, and taste might somehow touch a time and place that is warmly remembered.

        As far as the affection for Lee the manufactured personality. Is their anything the least bit genuine about the guy? The man has the charm and sincerity of Jerry Falwell.

      • michael L says:

        if TCJ comments had some sort of “likes” or “kudos” function, i would be using it so hard right now

  14. Robert says:

    Jack had no other employer he could go to, except DC to work for a living. He didn’t have much of a choice. What I can’t get over is how Stan says ” I created that with an artist named Jack Kirby” like he was just another employee. What Stan failed to mention was the artist drew the story before he put his wonderful prose in those ballons.

    The comments I have been reading on the web are very anti-Kirby. What I am not seeing is that Kirby’s agreement with Marvel exploited his talent and the laws should be changed so this can never happen again to another creator.
    After reading about this; I have say that if I had the next Spider-Man, I certainly would not give it to Marvel or DC.

  15. Robert says:

    I remember all those years ago; I didn’t buy Marvel comics for Stan’s outstanding prose. I bought them for Jack Kirby’s dynamic art. Kirby deserved to be more than an artist who drew for Marvel comics. He was a founding father of that company. When I read what Kirby experienced right in the pages of this magazine: I’m surprised there isn’t any comic creators voicing their support in the media.

    I’d like to see this decision repealed. I see Alan Moore was right when he said DC and Marvel are morally bankrupt.

  16. patrick ford says:

    Not only did Lee never write outstanding prose, his hackwork is the definition of bad writing. A rersonable case could be made that he was the worst writer in the field until waves of super hero fans began filtering into the industry in the 60′s. The first wave of comic book writers beginning in the late 30′s were either writer/artist cartoonists who loved comics writers like Foster, Caniff, and Fontaine Fox, or else they were low level pulp magazine hacks who had no where else to go. The writers who entered the industry in the 60′s were super hero fanatics.

  17. Acer says:

    ………………………..YEESH!!!!! BOTH sides are making this thing hard to swallow! Why doesn’t anyone just update the Copyright Act again so that it is thouroughly and greatly enforced? Then we wouldn’t have any of these despicable legal catastrophes! On top of that, maybe it’s time someone also finally thouroughly, yet clearly, defined public domain and intellectual property. I swear, if I had the fortune to do it, I would have bought both DC and Marvel and made sure everyone in the company, no matter what position, got what they deserved.

    Maybe it’s time someone also did something I’m surprised no one has thought of–create a new, more fairer and understandable version of capitalism, where there aren’t any losers, yet there is a constant rise in success. Neo-capitalism.

    Ultimately, I think it’s time comic companies stopped being so corporate all the time–what we need is a balanced approach, half-corporate and half-creative, where no character becomes obscure, where creators can call a character their own yet still, along with the company he/she works for, profit from it’s success across all platforms. Anything to keep these dumb legal wars from happening in the future and keep both sides (creator/creator’s family (who should be in good careers) and the parent company) happy and satisfied.

    Does anyone see anything wrong with my ideas?

    • Paul Slade says:

      “Does anyone see anything wrong with my ideas?”

      Well, there’s the fact that they seem entirely disconnected from the real world, and that you neglect to mention any practical way of implementing them.

  18. Robert says:

    I hope that a creative film maker produces a movie about how Kirby was treated. It would make a great film. Kirby created the look of the Marvel Universe in a medium that is known for dynamic visuals. To not admit that his controbutions were a huge influence on the brand name that is Marvel Comics is a crime.

  19. R. Fiore says:

    Funny how what people a couple of years ago would have talked about as something Marvel was doing suddenly becomes something Disney is doing, as if there would be any difference. Of course, it’s hard to imagine any company that would be less likely to be more liberal on issues of creator ownership than Disney.

    It seems to me the legal issue in the trial wasn’t so much “did Jack Kirby have a right to ownership of what he created” as “was the company sloppy enough not to have well and truly stripped him of all these rights according to the relevant law.” The initial court’s judgment was no, they weren’t that sloppy, they robbed him fair and square.

    • patrick ford says:

      ” The initial court’s judgment was no, they weren’t that sloppy, they robbed him fair and square.”

      And yet Marvel was incredibly sloppy getting nothing in writing at the time the work was created.

      It’s really Perfect Film and Marvel’s subsequent corporate parent companies which have not been sloppy.

      Beginning in 1969 after Perfect Film purchased Marvel there has been one seamless narrative in place which defines Lee, and Lee alone as the creator of the plots and characters, and Kirby as an illustrator.

      Lee’s role as mouthpiece has been secured by a contract which asks nothing specific from him (it says Lee might be asked to work a maximum of 10 to 15 hours a week), but does require that Lee do nothing which would assist in any way a challenge to Marvel’s ownership of the characters. Somewhat humorously, in an apparent concession to Lee, the contract give Lee ownership of “The Femizons.”

      In the ruling the judge said the Marvel/Disney motion, “stands or falls on Lee’s testimony,” and she went on to use it extensively throughout her ruling, even to extent of repeating weird trivial factual errors in Lee’s testimony (“I made the Hulk green, because there were no other green superheroes.”). The foundation and framework she builds, and hangs her ruling on is Lee’s explicit testimony that in ever single instance he created the basic characters and plots, and then gave them to Kirby (and the other “artists”) to illustrate.

      For the estate to have a chance of showing Kirby was owed at least a share of the copyrights it needed to show Kirby had created characters on his own and brought them to Lee/Goodman who would have given a thumbs up or down on the proposals. Creating characters on spec and offering them in the form of character sheet pitch pages had always been Kirby’s pattern, and continued to be until the end of his career. No one knows what happened to the early 60′s character proposal drawing Kirby showed to Lee.

      Jim Shooter said he “held in my hands” Kirby’s Spiderman proposal, but like the Fantastic Four proposals described by Kirby’s daughter Susan the Spiderman proposal (as well as the five page origin story seen by Ditko) has been lost, stolen, hidden, or destroyed.

      There are surviving character proposals from the 60′s which Kirby offered to Marvel. Those are the New Gods characters which Kirby later sold to DC. Kirby said he offered Marvel the characters to Marvel, but with the understanding he would be given a better contract in exchange for the use of the new characters.

      Lee says he has no memory of hearing about the New Gods characters while Kirby was at Marvel.
      http://twomorrows.com/comicbookartist/articles/02

      Roy Thomas: I have a memory that, sometime before Jack left, Jack called you up about some new ideas he had for characters. I don’t think it went any further than that. Do you recall that at all? I was always curious if those were the same ideas that appeared a year or so later as The New Gods, and wondered if they could easily have ended up as Marvel characters.

      Stan: I don’t know if he told me the ideas and I had said that I didn’t like ‘em! [laughs] I just can’t remember.

      • R. Fiore says:

        Well, I guess the whole question turns on whether they were sloppy about getting things in writing or fastidious about destroying evidence. Lord knows Stan Lee has been telling the story this way for at least 40 years, going back to when it was just glory hogging with no legal ramifications, so he ought to have it down pat by now. Summary judgment is never a good sign for a case regardless of the stage. I suppose the biggest reason to believe the case has a chance is that a lawyer this high powered is willing to invest so many hours on what has to be contingency. If the case does end in victory for the plaintiffs it would be quite the irony if the lawyers wind up with more than half. It’s a variation on the age old question, “You want to see a match burn twice?”

      • patrick ford says:

        Toberoff always works on a contingency basis. From a legal standpoint with Disney the opponent even if Toberoff won an appeal, it could be assumed the case might end up eventually in The United States Supreme Court. I think we all know how that would turn out. Roberts, Alito, Thomas, Scalia. Enough said?

  20. wce says:

    The idea that Jack Kirby was the sole creator of everything at Marvel makes you wonder if something wasn’t wrong with Jack Kirby mentally given what happened to him. If Martin Goodman, Stan Lee, and the Bullpen knew that Kirby is the sole creator then Kirby should’ve been a lot more confident in bargaining for more because they wouldn’t have been able to survive without him. And Kirby doesn’t come cross as a push over. The guy who sued him over Skymasters described him as pushy. Kirby describes himself as willing to confront mobsters and Nazis. He was also a combat vet. He had seen the best and worst of humanity. So why he sold himself out if the hyperbolic statements are true has to be explained psychologically.

    He’s either stupid or suffered from some sort of savant syndrome. Yet descriptions of his personality contradict such an idea. Yet something has to be wrong with him if what is being said here is true. And Goodman and Lee don’t act as if Kirby is their real bred and butter. It seems to me what is more likely is he and Lee were true collaborators at one point and had a falling out over Lee hogging the glory and fame and that seems more plausible. For whatever reason Kirby couldn’t, unlike later in life, articulate his point of view directly to the public and his fan base and needed Lee and Marvel as much as they needed him. Also despite his art moving in that direction he had no strong desire to get into abstract art, advertising, book illustrations etc.

    If Peter Max with so little could achieve so much, how could Jack Kirby with so much more talent artistically get stuck in the comics ghetto? He loved what he did. His writing however from the late 40’s and during the 50’s except for a few original concepts like “Fighting American” and “Challengers of the Unknown” was not exceptional like his art. In fact much of his 50’s genre work is derivative of Hollywood cliches and plots. And no one to date has found any fan letters from that time in Kirby’s personal papers that suggest Simon and Kirby were all that unique. But something happened when he and Lee collaborated. They needed each other. Kirby even admitted to comprehending, perhaps what he already knew instinctively, that while working with Lee he realized that characters needed to be people with problems. So Kirby wasn’t always the same person.

    I think Kirby accepted the deal to return to Marvel the second time because he was more interested in expressing his own ideas freely and proving that he could make another hit or two for the company without Lee taking credit for everything. If you knew a man either stole or destroyed your specs after writing a book like Origins and taking all the credit why would you collaborate with him on a Surfer book unless you’re crazy or playing a game and so Kirby is as much a bullshitter as Lee? Read the memo Kirby wrote to Lee. It’s not the tone of someone who knows he’s dealing with a thief and a liar nor is it the tone of someone groveling in fear.

    As to the stolen, lost, missing specs, I’m skeptical of those because I never read Kirby mentioning specs when he spoke of getting his art back. Shooter’s memory is to be trusted here? When did Kirby get the copy machine by the way? I’d like a direct quote from Kirby on it. We’re asked to believe that this great comics writer/artist genius sole creator was incapable of making a better deal for himself on his second go around at Marvel when despite his insults to their figurehead Lee, who took it all in good sport, they offered him a new contract and he bargained for no copyrights, no share of any licensing deals. Something doesn’t jive with the idea of him as pure victim here.

    Kirby in Foom is full of confidence about his return to Marvel not a wary man in a den of thieves and saboteurs. Not a man who sounds defeated and forced to take a rotten deal. Kirby could make hard decisions as he did to his former friend and collaborator Joe Simon in his lawsuit.

    He either didn’t care to fight for it at that time or he didn’t yet realize how much money was really at stake and was seduced by creative freedom. Yet it is unbelievable that he’d forget Batman, Superman, Mickey Mouse, and even his own share of Captain America all licensed to movies and toy companies in his heyday. He chose creative, editorial freedom over money. In fact it shows how much of a true artist he was. He wasn’t really interest in making money off toys and movies. He wanted to create. And the money was good enough to allow him do that. After the success of Starwars and the licensing boom, of course he must’ve realized his mistake and seen how much they had in fact cheated him and his family. I think it was survival of his family that was on his mind at that point when it was his creative freedom before.

    If I’m wrong then the only alternative is a clue glimpsed in the mean spirited remarks of that infamous newspaper man: Kirby was excentric, even odd, in speech and manners.

    • Frank Santoro says:

      Pat Ford is gonna beat you up…

      • patrick ford says:

        Frank, Do you have time for a killer live “Highlands” followed by a “Watch Tower?”

    • DiamondDulius says:

      @wce: Well, look at some of the evidence… compare Kirby’s track record to Lee’s before 1961. Kirby created quite a bit of characters, genres, comics, etc… while it’s generally accepted that Lee produced only hackwork. Also compare what Kirby created after leaving Marvel (New Gods, Kamandi, Eternals, OMAC, Demon, Capt. Victory, etc, etc, etc…) to what Lee created (She Hulk, Ms Marvel, Stripperella)… To anyone willing to weigh this evidence, it’s pretty obvious who did the majority of the creating. Lee certainly contributed something, but it’s pretty obvious where these characters were coming from… Kirby.

      And, as far as how someone as “pushy” as Kirby could allow himself to be taken advantage of, well consider the fact that Kirby was definitely persona non grata in the industry during the late 50s-early 60s… the “Sky Masters” lawsuit you bring up pretty much insured he would never hold a position of prominence in the industry, specifically with industry leader DC. Marvel was the dregs, so to speak. The only place he could actually get steady work… compound this with the fact that it was common place for artists to get screwed by comic companies back in those days, and perhaps it might become a little more clear as to how Kirby could be in such a position. Besides, I doubt anyone thought the characters Kirby (with help from Lee) created were going to go on to define the genre as they did…

      As for his second go around at Marvel, again, the industry norm was not to give the creator a share of the profits or copyrights… this didn’t happen ’til the direct sales boom of the early 80s. He more than likely most certainly DID believe Lee to be a weasel, but that was nothing new in the industry… Infantino had lied repeatedly to Kirby to get him over to DC. Kirby knew that anyone in power in the comics industry was, at some point, not going to play fair and shoot straight with him. However, he had a family to support…

      Finally, with regards to Kirby’s late 40s-50s output and how good it was: Boy’s Ranch was an exceptional series in terms of both writing and art. Kirby (along with Simon) invented the Romance genre at this time, a genre that did very well for almost a decade. And Simon/Kirby’s titles are almost universally recognized as the best. Also, with the exception of EC, Simon/Kirby’s genre work was usually head and shoulders above their contemporaries… specifically better than industry leaders DC.

      • wce says:

        I think they should award his family monies simply because work for hire was wrong and corrupting but that’s as unlikely as asking that working class people not be forced to sell their labor just to survive at any cost to the detriment of their sanity and humanity. Some people only care about Kirby’s plight because he’s a genius and a great cartoonist but he’s in the boat of numerous others: here you don’t own your labor.

        Of course it’s not his fault and he certainly made the best of it. I’m not here defending corporate greed. But Marvel in the 1960’s and Jack Kirby and Stan Lee in the 1960’s are not quite the same people they would become in the 1970/80’s nor are the corporations exactly the same though they reveal much about the growth of corporate greed and our worsening circumstances.

        Corporations should never have been allowed to become persons. But we’re dealing with a different sort of history. What I’m looking for is an honest account of that history that’s fair to both men as human beings rather than monster versus good guy, though I do think Jack Kirby comes out looking like the hero. Kirby is too much of an idol, though, a father figure to too many fans who don’t want to seem him realistically. This love Kirby hate Stan Lee thing is a bit too much like a Marvel comic book coming from fairly intelligence. But that’s maybe because I try to see life sometimes from a literary novelistic point of view when I take off my political hat. If you want to know, despite Obama being a human being like the rest of us, I think he’s a sellout, another lying politician. So there. But that doesn’t explain him. To do him justice as person I’d have to try to understand him. It’s all too easy for people to see monsters in a time of panic and then we right back where we started.

        I’m called a mangy dog but who would dare call Jack Kirby a mangy dog for forgetting that Stan Lee lied, stole and robbed him of credit just to work with Lee again on another Surfer book? Why? For the money perhaps? And I’m asked to believe these actions that seem odd if not unbecoming comes from a man who fought in WWII. You want to question Kirby’s integrity? So all I’m trying to do is understand the psychology behind this type of interaction. Why would he do that? Was he that desperate. Or was he and Lee once friends and they made up. The more likely explanation. How could such a genius end up in such awful situation? These are some of the questions Kirby’s contradictory behavior asks us to answer.

        Those are good rebuttals. I know that after the Skymaster’s lawsuit he was blacklisted and that on his first return to Marvel he had no choice but to accept the contract offered. He was indeed in a very difficult spot at the time with the industry set backs. And as many have said he didn’t want his kids to go what he suffered as child. With due respect to your very well reasoned points I’m not convinced that his success with Boy’s Ranch and other comics in the late 40’s and 50’, however good they were, had the same personal impact as the Lee/Kirby work. People enjoyed Simon and Kirby, I’m sure, I love much of it myself, the art mostly, but it never generated the type of fandom you see emerging in the 60’s and I don’t think Kirby art is the source for that success. Other artists quickly replaced, aping his style effectively enough to rob him of that.

        So something happened that neither Simon and Kirby achieved in the 50’s that Marvel achieved in the Sixties. And what happened in the Sixties might’ve been due in part to other forces, social, economic and political, not exactly even related to comics. Maybe it was the Batman television series for all we know. One could even say of Marvel in the Sixties it was more of an attitude, a satirical tongue in cheek, wink and nod style, perhaps influenced by Mad magazine. In any case Kirby couldn’t or didn’t achieve his success on his own at Marvel. The Marvel voice isn’t the style and tone of voice of Kirby the man. Even when Kirby is kidding around on the he sounds like tough guy and sounds the most sincere one on the recording. Marvel’s voice sounds more like Lee. And Marvel survived after Kirby left with that voice. When Kirby left Marvel what sweetened the deal was the right to write and edit his own books. Of course he couldn’t demand anything like his copyrights then. He had no leverage with them.

        On his second return to Marvel it seems he had a bit of leverage. Did he use it. He supposedly had a lawyer but god knows what good that lawyer did him. It seems he never asked for or put on the table any request for copyright or a piece of the merchandizing pie? My point is what psychologically made him not even ask for it, if he didn’t–it seems to me he had two choices, go with doing the script of others and accepting editorial input for those rights to whatever he contributed or take the option to edit and control his books.

        He seems to have chosen creative freedom. Given the fact that through his career he disliked editorial interference, it’s not surprising he took the latter. What I’d like to know is did Kirby ever even ask for something else beside a work for hire contract, like some rights to his copyrights after a certain date or royalties. Bob Kane in the most corrupt period got some name recognition for himself. Did Kirby is probably what was asking and if not why not?

        I love and collect Kirby’s DC work but Kirby seems to have failed to heed his discovery while working with Lee that characters are people with problems. I know others enjoy Kirby for his concepts and art but there other readers who want to identify with characters who are more flawed and human. Sometimes his character are too cold and uninteresting from that angle, OMAC I would say is the best example of a failed superhero character, though the series is rich with SF possibilities. Again some of Kirby’s other faults, in my opinion, are the fault of cliches from Hollywood movies and genre fiction.

      • wce says:

        I bungled some sentences after the previous correcting on the website itself didn’t go through. So I apologize for sending this uncorrected reply. I need a copyeditor with me at all times. In talking about Kirby’s voice, on a MMMS record Kirby sounds the most sincere, the most relaxed. Lee is not his best on that record as a showman. And Kirby does sound like a tough guy.

  21. wce says:

    Before you scuff at this ask yourself how many working class people you hang out with if you’re not in or of the working class.

    If I’m not mistaken, Jack Kirby at that time is never the focus of media-intellectuals taking an interest in the Marvel comics sensation among college students. Not even the famous foreign film directors that befriended Lee took any interest in Kirby. They ignored Kirby it seems to me. In Fellini’s case it’s pretty shocking because Fellini was a cartoonist. What was it about Kirby intellectually that was so off putting to intellectuals or made Kirby himself shy away from meeting more sophisticated people? Fellini should’ve demanded to see Kirby, to hang out with him etc. He didn’t? Why? The newspaper man’s mean remarks gives us a clue to Kirby’s oddness, Kirby’s eccentricity.

    Mr. Fiore described Harvey Pekar as a working class fellow without any working class glamour. Pekar like Kirby was off the streets. But unlike Kirby, Pekar was more well read and more politicized but still came across as odd. Kirby a self taught person interested mainly in commercial genre material was probably dismissed as a pseudo-intellectual if he appeared clumsy in his intellectualizing about things that seemed beyond his class. It’s this odd combination of a working class man conceptualizing that probably appeared weird.

    While Lee came across as a literate business man selling comics he didn’t take all that seriously. A working class man from the slums with intellectual ambitions is unusual even today. The reporter could tell that Kirby wasn’t an educated person, while Lee could pass himself off as one. Class played a part in Kirby’s fate.

    I surmise this is what the reporter was mocking as well as perhaps Kirby taking comics very seriously, believing in them. Lee the creator of the Marvel voice seemed not to and so the reporter felt an affinity with Lee. Kirby’s art particularly in the middle period is very serious. Kirby is the geeky genius fan boy now grown up still in love with the childhood wonder of comics and science fiction but lacked the education to perhaps articulate his understanding of comics to snobbish intellectuals back then who looked down on comics anyway despite the popularity of them. Only later will more sympatric intellectuals take an interest in Kirby and his ideas, memories and thoughts. Kirby said he was never allowed to be a person as a kid. Some of this fight was about proving himself just as good as Lee.

    We discover later that Kirby had ideals in mind regarding superheroes for example. Was he developing his philosophy about them then. Lee admitted that Kirby’s art was a source of inspiration, maybe in their early talks Kirby’s ideas influenced Lee to take superhero comics seriously rather than give up on them so Lee stopped day dreaming about being a novelist and decided to make the best of his lot in comics?

    • patrick ford says:

      “I’m crossing the street to get away from a mangy dog.”

    • DiamondDulius says:

      I suppose all that is possibly why Lee was able to garner an audience with Fellini and reap the lion’s share of the media attention, but more than likely, most of that has to do with Lee’s cousin owning the company and Lee being able to call the shots. Had Lee been a bit more honest about who did what, perhaps there might have been more “important” people wanting to speak with him. Certainly you realize that Kirby was regarded as the artist who merely illustrated Lee’s ideas until the 80s, at least. The fact is, any reporter who wanted to do a story on Marvel back then would have most definitely had to have spent a day with Lee, not Kirby. Lee was a glad hander who relished any opportunity to whore himself out to whatever media outlet would listen while Kirby was busy drawing most of the time.

      • wce says:

        Diamond, Alain Resnais was another foreign director who found Lee interesting. Both film directors are very talkative men and so maybe language was their main interest instead of images. But it’s hard to figure Fellini still.

        I agree with you, his connections and being the boss helped, also writing, words seemed to have been more important then than visuals to audiences, I think. Why did more magazines not call on Kirby to offer him work? But Lee also built up a lot of experience in the previous decade without Kirby so Lee had matured as a comics editor and writer and knew what he liked and wanted. Some of his art decisions I agree with. He worked with many artists before Kirby. Many speak fondly of him. Gene Colan speaks well of him. People have to give him that. And at the risk of making you hate me as a mangy dog too. Though it isn’t great prose, for the material, in places Lee is not bad and is readable enough as such things go.

        The fact that he failed to write beyond comics shows his limitations as a writer. He couldn’t even write his own autography completely by himself. Lee should’ve interviewed all the artists for Origins and included them in a retrospective of the era and not claim it all for himself.

        Maybe you can explain Kirby as forgiving to a fault, but I dunno, maybe that explains it. What I no longer believe but once believed was that Kirby did it all out of fear of not working because of his poverty experience. Maybe when the industry collapsed, maybe when he had no choice but to return to Marvel the first time. But I think he regained his confidence and was more ambitious. When I said the money was good I didn’t mean he gave up concern for his family but he was making enough to support his family and to express himself freely so he didn’t care about fighting the work for hire contract. He wanted to write and prove himself.

        Look how he leaves Marvel for DC and got editorial freedom, then he loses it at DC and returns to marvel, that awful evil monstrous place because he couldn’t resist the freedom to write and edit his own books. Maybe they expected more from him. Maybe he thought he’d knocked the balls out of the park and then they’d have to give him a better deal. But I think Kirby was more artistically ambitious that frightened. Old age and ill health probably frightened him and he realized maybe he should’ve gone for the money. I do think his childhood poverty and social isolation, working alone in the suburbs contributed to his not finding the right people to help him, finance more art books, say, work with a sculpture, all sorts of things. All because the man is trapped in that limited intellectual ghetto of comics. And the class baggage. I really think class perduice affected him. It was a bit before the Comics Journal’s critical awakening so the community wasn’t there at the right time.

        My weakness for Kirby is Kamanda, people can call it all sorts of names. It’s my favorite. His humanity shines there. I think he tried to get away from the sham heroics of Marvel in the New Gods, another favorite.

  22. Kenn Thomas says:

    Tremendous discussion, guys. Reminds me of the old Kirby-l list. But as the article pointed out, it’s not about fairness. It’s about legal technicality. But if this is the standard:

    “It was well established that Superman already existed as a full-blown character concept before Siegel and Joe Shuster pitched him to DC, whereas Kirby, who died in 1994, did most if not all of his Marvel work on assignment from the publisher. ”

    then Kirby fits that technicality. The Fantastic Four was the Challengers of the Unknown and, prior to that, the Crime Carnival in Sandman. Thor also appeared in Sandman and in a DC story. Full blown character concepts that obviously Kirby toted around with him, tailoring it maybe for Marvel, but clealry his creations.

  23. patrick ford says:

    “In the shadow world between success and failure there lives the driven little man who dreams of having it all. The opportunistic spoiler without character or values who preys on all things like a cannibal. Including you. Like death and taxes we all must deal with him sometime. That’s why we go where he lives…in the decaying ante-bellum grandeur of the Mockingbird estates. And “Wait for Godot” with The Funky Flashman.”

    Lee: “I’ll run him through the hoop, and see if he clicks. And if he does? Baby, I step in and fly.

    I wouldn’t call him a bum. So he breaks a leg or dies? I’ll just sip my martini by the ocean, and wait for the next fish to jump.

    Image is the thing House-Roy. Why I look almost holy. I’m ready for you world.”

    House-Roy: “The world will take you to it’s heart sir. That’s if you don’t make too many slip-ups. I must tell you there are times when the real master Funky comes through with shocking results.”

  24. Allen Smith says:

    Artists like Resnais and Fellini didn’t know Stan Lee, they knew the fame created by the hype. I’d call Stan a one trick pony except that would be insulting to the pony.

  25. Tom Spurgeon says:

    Actually, Resnais and Lee knew each other pretty well; they corresponded and as I recall even worked together on a screenplay.

    • Allen Smith says:

      Just out of curiosity, was anything ever done as a result of the collaboration? Didn’t think so. Or maybe Resnais discovered that Stan had no ideas and figured he could do just as well on his own.

  26. wce says:

    It’s surprising that the lawyer’s for the Kirbys didn’t use the numerous letters and columns in which Lee early on praises both Ditko and Kirby in particular for their considerable contributions. Sometimes to the point of sounding like his role was not so important at all but that’s Lee’s hyperbole. Lee even admits that Kirby is writer himself on one letter page or column. Lee is not trying to take credit away from them at this point and its a fascination difference to what happens later.

    But I’m not sure it’s all that easy to add dialogue and captions and to reshape the visual plot of a narrative along your own lines while doing so. It maybe an art in itself. He was certainly able to rewrite Kirby’s more realistic conceptions of both the Surfer and Dr. Doom. Try writing a poem around a photo however. Do you change the interpreations of those pictures or add something more or less; do you add something new. It seems like a fun thing to do, too. No wonder Lee enjoyed it. For me Lee’s text, the Marvel voice is less interesting than Kirby’s pages seen silently. Kirby’s Thor in the middle period for example seems very serious and interesting without the text. I enjoying the copies of his un-inked pages to the finished pages.

    Moebius is also another admirer of Lee who was fascinated by the Marvel process which was so on like the European method he was used to, if I recall what he said correctly. He worked on a Silver Surfer with Lee. It is indeed one of Lee’s better written books. As an experiment someone could try and rewrite a Kirby book this way and see how easy or how hard it is.

    If a jury had gotten the case, they would’ve seen how clearly it was some form of an extortation racket to force artists who have already finished pages of art to accept a check with a work for hire stamped on the back. You either take it or leave. It’s legalized blackmail. But isn’t every kind of job in a capitalist society if you yourself are not a company? You want to starve don’t work for peanuts. Why is it unfair in this case and not everywhere else. Well, these are not day laborers, you say, these are artists, they deserve better. One is better person than the other? Remember Kirby’s concern over personhood as child from the slums?

    Given Lee’s constant praise throughout the early books of the contributions of Ditko and Kirby, some human explanation of what happened is in order. Not everyone is self a conscious Machiavellian manipulator so it was probably growing fame of the product, his role as a spokesman and representative of the company, his managerial skills and editorial position as the publisher basically that made him delude himself later into thinking he contributed more than he did. Or if Moebius could be impressed by the method, maybe Lee did feel his method was a form of art as well and his role was just as important or even more so. He managed marvel for a whole decade without Kirby help. Given he is the voice and its seems the voice dominated the interest of the general reader or created the style of the comics, Lee might be justified into fooling himself this way. Lee’s voice is all over the comics. He was the walking talking billboard for the company.

    Given the ‘geekyness’ then of both Kirby and Ditko (others might’ve seen them so), both excentric geniuses, I’m not sure that they could’ve sold themselves or the company very successfully. Why did Kirby need Joe Simon if he could do everything himself, right. Kirby put up with it for a while because they were friends and he as a professional understood his role as employee and after his career setbacks he had to be cautious in how hard he pushed back but regaining his confidence in creating popular comics he no longer wanted or needed Lee’s self aggrandizing help. Given the drawing work load he perhaps needed Lee’s help there. Maybe Kirby wanted to get back into writing. Maybe Kirby actually at the time enjoyed Lee’s fleshing out his ideas and didn’t mind until Lee began to grab all the glory and fame. Kirby might’ve been that easy going. If you admit he is a forgiving fellow and a nice person then it isn’t impossible to think so. Look at his willingness to put up with Colletta concerned about not putting someone out of work was more important than his art being ruined. Wow!

    It’s just not right in real life or history to make monsters out of flawed human nature. The problem with comic book good and evil is that like the Nazis those who delude themselves into thinking they are good, pure, righteous end up becoming monsters themselves, calling people names and dehumanizing others. It’s what has gotten us into two foolish wars. Kirby I think tried to show in Orion something about this truth.

    Kirby’s style of superhero comics never quite garnered the fandom required to give him the support he need. I think people exaggerate the number of diehard Kirby fans actually. I think the true Kirby were folks interested in comic art and writing and not a general reader who just enjoys the comics as entertainment. This is why Marvel has continued to succeed with all sort of variations on the muscle bound strong. It’s sad that the strong man is just powerful escapist fantasy for far two many people right now.

    • patrick ford says:

      Toberoff did introduce all of Lee’s prior statements which you would know if you had been following the case.

      During his Dec. 2010 deposition Lee was directly confronted with prior statements from interviews, and the “Origins” books, and Lee testified:

      “So I tried to write these (The Origins books) — knowing Jack would read them, I tried to write them to make it look as if he and I were just doing everything together, to make him feel good. And we were doing it together.

      But with something like Galactus, it was me who said, “I want to do a demigod. I want to call him Galactus.”

      Jack said it was a great idea, and he drew a wonderful one and he did a great job on it. But in writing the book, I wanted to make it look as if we did it together. So I said we were both thinking about it, and we came up with Galactus.”

      Beyond this even in the 60′s Lee’s most specific comments concerning Kirby were at best faint praise. Lee is often credited with the idea that he promoted the artists. What he did was promote the idea a writer/artist like Kirby was a penciler. Not a promotion at all, but rather a demotion in status, one which identified Lee as the legal “author” a very important point the judge based her ruling on.

      The fact is Lee testified that in the 60′s he was paid a freelance page rate for his writing. Lee couldn’t credit Kirby as the plotter at the time, because that would have cut into Lee’s writing page rate if Kirby were to be paid as a plotter.

      KIRBY: You can’t talk to Stan about anything. Stan was a very rigid type. At least, he is to me. That’s how I sized him up. He’s a very rigid type, and he gets what he wants when the advantage is his. He’s the kind of a guy who will play the advantages. When the advantage isn’t his at all, he’ll lose. He’ll lose with any creative guy. And I could never see Stan Lee as being creative. The only thing he ever knew was he’d say this word “Excelsior!”

      I think Stan has a God complex. Right now, he’s the father of the Marvel Universe. He’s a guy with a God complex.

      Well, you don’t have to see a thing like that coming. It was happening, and I didn’t know what to do about it. Stan Lee was the editor, and Stan had a lot of influence at Marvel, and there was nothing you could do about it. Who are you going to talk to about it, see?

      I didn’t particularly care to talk to Stan, and I just gave him possibly some idea of what the next story would be like, and then I went home. I told him very little, and I went home, and I conceived and put down the entire story on paper.

      GROTH: How do you feel when he talks about what a great guy you are, what a terrific co-worker you were, which he does frequently when asked about the good ol’ days?

      KIRBY: Why wouldn’t he say that? If I hadn’t saved Marvel and if I hadn’t come up with those features, he would have nothing to work on. He wouldn’t be working right now. I don’t know what he’d be doing now. He wouldn’t be in any editorial position.

      GROTH: Do you think he believes you’re a great guy, and he loved working with you, or is that a public relations facade?

      KIRBY: I say it’s a facade, and what he really means is he loved taking me. I just hope that you don’t find yourselves in a position where you have to deal with that kind of a personality.

      My wife was present when I created these damn characters. The only reason I would have any bad feelings against Stan is because my own wife had to suffer through that with me. It takes a guy like Stan, without feeling, to realize a thing like that. If he hurts a guy, he also hurts his family. His wife is going ask questions. His children are going to ask questions.

      —because I say these things, but I’m deeply hurt because it hurt my family. There’s nothing I can do about it. I’m not going to be believed at Marvel. I’m not going to be believed anywhere else unless… Actually, my own fears probably prodded me into an act of cowardice. It’s an act of cowardice. I should have told Stan to go to hell and found some other way to make a living, but I couldn’t do it. I had my family. I had an apartment. I just couldn’t give all that up.

      I had to make a living. I was a married man. I had a home. I had children. I had to make a living. That is the common pursuit of every man. It just happened that my living collided with the times. Circumstances forced me to do it. They forced me. There wasn’t a sense of excitement. It was a horrible, morbid atmosphere. If you can find excitement in that kind of atmosphere it was the excitement of fear.

    • steven samuels says:

      “It is indeed one of Lee’s better written books.”

      If the Moebius Silver Surfer is one Lee’s “better written books,” then I don’t want to get near anything else he’s done. Glad to say I haven’t. Not that Kirby’s that much better a writer, but between Lee’s pretentious pseudo-philosophical mumblings and Kirby’s arch, tone-deaf declarations I’ll take the latter.

      • Kim Thompson says:

        Well, Stan Lee wasn’t a good writer qua writer. He was a superb editor and ringmaster with a glib command of language he could spread out like frosting on the delicious plot-and-art cakes provided by Kirby, Ditko, et al. in their prime. Whenever Lee started to believe his own hype and actually “wrote” something the results were cringe-inducing. (I read somewhere that on the SILVER SURFER graphic novel Kirby purposefully insisted that Lee actually write a full script for it and drew that, knowing full well that the result would be crappy.) This is why we have this paradox of Lee not being a particularly good writer or great creative force but FANTASTIC FOUR and SPIDER-MAN being the best written and greatest of Kirby or Ditko’s works, and Lee simultaneously bringing very little to the table and being crucial to the success of each. The team-Stan tendency to maximize Lee’s writing and the team-Jack tendency to dismiss it both kind of end up in the ditch.

      • Bobby says:

        ……..And then again, we have the somewhat less than thrilling writing of Jack Kirby, who couldn’t stitch any dialogue together with out making the character Yell or just sound completely uncomfortable. Ditko fared a little better…..the point being that these guys needed Stan as much as he needed them. They produced lightning in a bottle when they came together. Their egos got in the way of their work.

      • DiamondDulius says:

        I don’t know if you could be more incorrect!! Kirby’s prose was as unique as his art! Here’s what Christine Harper recently wrote about Kirby’s writing and those who don’t grasp it:

        “Kirby pales next to this genius? Perhaps, for those who favour pap, who groove on nostalgia, who prefer a rosey tint and a safe & warm feeling of familiarity. The people who say Kirby’s writing is ‘awkward and stilted’ because it doesn’t read like Stan Lee’s hackneyed scripting. Don’t get me wrong. Kirby was human. As a writer, and as an artist, he screwed-up occasionally. But the best of his writing, alongside the overshadowing quality of his visuals, is remarkable—powerful and unique, unlike anything else.”

        Lee’s writing was simplistic and watered down for kids… Kirby couldn’t “turn off” the way he wrote, it came out of him, just like his artwork. Kirby (and Ditko, for that matter) needed Lee like they needed a hole in the head!!

      • steven samuels says:

        “(I read somewhere that on the SILVER SURFER graphic novel Kirby purposefully insisted that Lee actually write a full script for it and drew that, knowing full well that the result would be crappy.”

        So let’s get this straight- Kirby chose to sabotage a project he was working on? Ouch!

      • Kim Thompson says:

        A little PROJECT RUNWAY Team-Challenge-ish if true, I admit. And it was probably more nuanced than that. (Maybe Lee wanted to write the story in the first place and Kirby said fine.) I haven’t re-read it in decades but I don’t remember anyone citing it as either’s best work.

      • patrick ford says:

        Actually Kirby gave Lee a full type written script for the Silver Surfer graphic novel. Mark Evanier has a copy, and two pages of it were published in an issue of The Jack Kirby Collector.
        Of course as was typical for Lee he sabotoged Kirby’s intent by altering the plot and stuccoing over Kirby’s script with his dreadful pidgin-Shakespear.
        Hearing Kim say Lee was a great editor makes me wonder when was the last time he read one of the Marvel books. Breaking a few out to read to my young son a few years ago I was reminded again of just what a bad editor Lee was. I seriously doubt you could find comic books from any other publisher littered with as many errors as a typical Silver Age Marvel comic book. Lee made so many errors (or failed to catch them) that he developed a method of layghing them off called the “No-Prize.” A good part of the reason for Lee’s sloppy editing was the fact the artists were writing the stories, and Lee often either misunderstood them, or changed the plots in ways which opened fissures in the narrative. Lee also had the strange habit of confusing the identity of characters who’s backs were turned to the reader.
        Lee routinely took carefully thought out plots by Kirby and Ditko, and reduced them to simple “Black Hat vs White Hat” pulp.
        One example is a story Kirby created because he had talked with Ditko about Objectivism, which triggered thoughts on the subject Kirby wanted to relate in a story. This article tells how Lee completely subverted the intent of Kirby’s story.
        http://twomorrows.com/kirby/articles/24compare.html
        It’s very common to see fans of super hero comic books ridicule Kirby’s dialogue. I’ve always felt the reason they react so strongly to it is because unlike most comic book dialogue Kirby’s dialogue is good. It is in perfect sync with his anatomy and design sense. Strickly in terms of word usage Kirby is very creative, and created many interesting turns of phrase, many of which have a genuine poetic quality.
        BTW getting back to the Surfer for a moment Kirby’s intent for the character from the start had nothing in common with Lee’s. The difference can be seen in Kirby border notes on the original art which were examined by Mike Gartland here:
        http://twomorrows.com/kirby/articles/23notes.html
        Gartland: “Stan’s take on the Surfer’s origins are almost directly opposite of what Jack had intended. Jack had the Surfer as an alien who progressively learns to become human; Stan turns the story on its ear and has the Surfer as a human who becomes an alien. True, Stan’s origin depicts the Surfer as a being from another planet, but the character is human in every other respect. In writing his origin, Stan throws away all the alien aspects of the character that initially made him so appealing to readers; in fact, as early as FF #55, Stan, through dialogue, represents the Surfer as a being with a silvery coating protecting his body, thereby implying that he initially may not have always been as he appears. Upon learning about Lee’s origin for the Surfer, Jack disavowed any relation to the character. That wasn’t his Surfer, as far as he was concerned.

        Gartland also comments on the later graphic novel:
        “Jack submitted a fully-typewritten plot along with his pencils for Stan to dialogue. Stan wanted changes made and Jack balked, but as usual, grudgingly gave in. This is why the story reads unevenly and loses impact. This was the last time Kirby would work with Lee in comics; one need not wonder why.”

  27. wce says:

    Now that the class question can no longer be swept under the wrong as it used to be, maybe more people with look at the class aspects of these artists and their lives. Look at Joe Shuster, I recently learned in Secret Identity that Shuster now well to do liked to “dress scruffily…Last December [1940] in Miami Beach, where he liked to loiter hatless and in shabby clothes along the uppity Lincoln Road, gawking at expensive automobiles, a policeman approached Shuster, bristling with dark suspicions…” Why did he do that psychologically. He was arrested and thrown in jail. Was it because of his awareness of where he had come from? Some sense of not really fitting in. A desire to smugly watch people look down on him while knowing he was actually richer than they were. At the height of success Shuster didn’t want to forget. He had to draw Superman however to prove who he was as get out of jail free card. It’s a very telling story. I think when Kirby speaks of personhood is saying something profound. I don’t think most of his fans cared to hear what he was trying to say. Kirby never forgot where he came from and though he didn’t harp on his own suffering, he suffered. He mentions fear driving him to succeed in life. Alfred Bester in “Something Up There Likes Me” can give anyone interested in a class relations and comics a glimpse of the difference between a college educated comics writer like Bester versus a Jack Kirby. Mort Wesinger and Jack Schiff, “took and interest in me”. It is an amusing little anecdote about his own literary intellectual pretensions and their commercial sensibility but it also suggests that they were more interested in a fellow like Bester than in a poor working class genius like Jack Kirby.

    Now that class is no longer such a taboo subject, with the apparent demise of the middle classes in the wings, scholars could investigate this more seriously. Like many people who escaped into the middle class Kirby probably wanted to forget for a while. But it seemed as he grew older he wanted to remember and tell the truth about his life. His family may not even want to deal with these painful memories, but lucky for us Kirby in many interviews told the truth about what it was like. It is the forgetting of that era that has I think led to our present circumstance. People forgot how bad the Depression was. How hard it was because too many was riding the bandwagon of getting rich quick at the expense of others.

  28. DiamondDulius says:

    The ironic thing is, the “Origins” books aren’t even written to put Kirby in that flattering of a light… they make it look as if Lee came up with all the concepts while he magnanimously allowed Kirby to illustrate them. Lee looks somewhat moronic in his statements to the court, as if he can’t even remember what he wrote. And his new, revised statements about coming up with “Galactus” smack of self-promotion in the first degree! Not to mention going against many other accounts of said story where he is quoted as simply saying to Kirby “Have ‘em fight God” and Kirby coming back with the finished product, complete with a herald (Silver Surfer) added to the mix. This whole case makes Lee (along with, to a lesser extent, Romita and Thomas) look petty and jealous.

    • patrick ford says:

      The really absurd thing is Kirby is often described by detractors as unable to manage the business aspects of his career, when based on what I’ve read he navigated those waters about as well as a man could.

      It was because Kirby didn’t play “the good soldier” that he was forced out at DC after Kirby tried to refuse Jack Schiff the extortion money Schiff was demanding. Kirby stood up too Schiff’s legal extortion the same way he stood up to the goon who represented the towel service used by Will Eisner in 1939. Because he refused to lay down Kirby was sued by Schiff. Does resisting Schiff’s extortion make Kirby a bad businessman? Sure it ended up forcing him to go to Timely, and cost him a heavy court judgment, but isn’t standing up to the industry what people say a person should do if they feel they are being cheated?

      Kirby had actually returned to Timely/Marvel in 1956 just before he began getting assignments from Schiff at DC. Because DC paid almost twice Goodman was paying at Timely Kirby only produced a few stories for Timely, and then none for about a year after Goodman came close to shutting down his comic book operation.

      Unable to get work at DC, when Kirby returned to Timely in late 1958 he found the Timely bullpen had all been fired. Lee had been reduced to working out of a tiny cubicle with almost no remaining furniture. Because Lee was a “one man office” without even a secretary, there wasn’t need for more than a stool, not that there was room for much more.

      While at Marvel Kirby made continuous demands for better credit and payment, but like Ditko he was strung along by Martin Goodman’s lies, and broken promises. Kirby wisely tried to use the new characters he was creating as leverage for a better deal, and when Goodman sold Marvel to Perfect Film Kirby had his lawyer contact Perfect Film bringing Kirby creative role to their attention. Perfect Films response was immediate legal concern, they quickly sent Kirby an insulting “take it or leave it” contract offer full of the same legal clauses contained in the later work for hire agreements, while offering Kirby nothing he had asked for in return.

      By that time Kirby had shown the characters he previously offered Marvel on spec (the New Gods, and others) to Carmine Infantino. Practically pushed out the door by Perfect Film Kirby took DC’s contract offer which paid Kirby the same top page rate DC was giving to Joe Kubert, and it’s other top creators. Further unlike his work at Marvel Kirby was paid for writing. At Marvel Lee had always taken the full writing page rate for himself, while Kirby got nothing. Ask yourself this, “If Kirby was not paid for writing (and he wasn’t) then how could his writing have been work for hire?” This situation backed Lee into a corner, and is one reason Lee’s new testimony is more exact than ever in crediting Kirby only as a penciler.

      Later when Kirby became dissatisfied at DC he took a better offer from Marvel, and returned there.

      Fans who view Kirby with contempt (they are the norm among mainstream Marvel fans) like to say things like, “Kirby crawled back to Marvel.” The fact is Marvel lured Kirby back and it was Lee who was behind the offer.

      As can be seen Kirby played one company against the other, and wisely did the best for himself that he could given the circumstances of the time.

      But, sure he should have quit the industry. Based of the hateful and insulting diatribes hurled at him on a regular basis by weird old men worried that there might not be another “Hulk” movie if the estate had won the lawsuit there are times when I wish Kirby had quit the industry. I bet he would have made a good coal miner.

  29. wce says:

    It’s true have not been following the case that closely. And I’ll take Kirby’s word that he chickened out. I must’ve forgotten this.

    I agree that Kirby and his family have every right to his copyrights. Work for hire was an easy and obvious way of stealing the natural copyrights of creative people. Kirby should have it, no disagreement there. But angry statements of Kirby in later years here doesn’t demand any sympathy from me because if Kirby was always aware of Stan as a scum bag from the beginning right when Stan walked in the door as a teenager then why write friendly memos to Lee setting forth his goals regarding the new Surfer book. It doesn’t strike me as the same person. I thought he lost all patience with them later at that point. But he is admitting that he was even a coward not to stand up to them all along. In some respects I pity Kirby more now than I respect him after reading this. Why?

    I guess I was wrong. It proves my point anyway that Kirby like every other worker is a victim of a system that forces you to betray your own sense of decency and your own self respect. He still couldn’t be a person even with that talent. This terrible. He said you needed some sort of talent to be accepted as a person when he spoke of growing up poor. I guess he was a coward too when he sold out his old buddy Joe Simon when Joe tried to stand up to them. And Joe had a family, too, right. But Kirby cared more about his own first.

    I guess I didn’t want to see Kirby this weak. I thought he was stronger than that. I was making excuses for Kirby. You despise me for defending Lee’s humanity. But is Kirby now any better than Lee. If Kirby was a nobody driving a subway car who the hell would care that he’s unhappy with himself for putting up with a lousy job and boss because he has mouths to feed. Kirby is a genius and so doesn’t deserve this in the eyes of his fans but they walk by bums and others who never made it maybe because they couldn’t live without their self respect. This is all it amounts to.

    You hate Lee but Lee perhaps is working the flip said of the same trap. Isn’t Lee and Shooter and numerous others working off the same demands placed on them by this form of competitiveness: to hell with the other guy I’ll get mine first. What about Lee’s family. The use of the family to justify survival at all cost doesn’t seem to be doing decency or justice any good.

    How can you even demand any fairness for anyone with the justification that my family trumps my own self respect? If Lee or Shooter didn’t rob Kirby how would they succeed in the company and in life. How can I make a name for myself if I don’t steal from others. This is what capitalism’s dog eat dog mentality produces. How do I know Kirby isn’t even lying about Lee to steal credit from Lee given this dog eat dog situation. He jealous of Lee and is lying. Why work there.

    I guess I thought Kirby as a combat veteran would’ve had more strength of will, of character, having seen the worst and the best in humanity, he was easy going, forgiving, Lee was not always a bad guy, no Kirby hated Lee and was just a coward. Well, if that doesn’t shatter superhero nonsense I don’t know what will. This is the guy who idealized and promoted heroic images? And I’m a foolish mangy dog for trying not to see this reality you’ve hit me with? I got it all wrong, Kirby was just a coward, he admits.

    I wanted to believe he saw others like Lee as not so venal but as weaker people. I am the one who was idealizing Kirby not you. You win. I was trying to make him stronger than he was. You even prove my point that Kirby was as much of a bullshit artist as Lee for in the Memo and in Foom he pretends and acts like everything is okay. He sells the bullshit himself to us kids and contributed to the myth of Marvel as this family, right. By not speaking up he contributed to Lee’s delusions of grandeur. He as the victim empowered Lee. I am disillusioned with the whole thing.

    I was thinking people change. People are not always the same. Both men, once friends, falling out, now are vicious enemies, but it was not always so. I doubt you can really say that you were always the same person you are today in all respects. People live and work with illusions, even delusions about themselves and others. I would never write another book with someone who did that me but I never lived through those hard savage times of the Depression. It makes sense, though. I was fooling myself as novelists do, rewriting history. He never had access to better people that could’ve given him a job elsewhere until later. I guess the fear of those horrible times never left him. Kirby speaks though as if Lee didn’t have a family. Does having a family justify being a coward and a thief. In this system of social relations it does.

    It is sad and funny, Mr. Ford that you and I should meet at cross purposes like this, that you should win this, because I tried to talk about his scars, his suffering elsewhere and was attacked for doing so, I was told that I made it sound like Kirby was harping on his suffering by even raising the question and now you use it against me here. You’ve proved my point that he was scarred by his childhood experiences. He suffered more than I wanted to believe in that he was willing to sell himself so short. If Kirby admits it. I’ll take Kirby at his word. Nuff Said. My Kirby is the Kirby of fiction not reality.

    • DiamondDulius says:

      @wce: Your syntax is certainly becoming impenetrable… I’m not really sure what point you’re trying to make. You consistently use disparaging terms to describe Kirby’s actions, like “coward” and “chickening out” but I’m not sure you even understand those terms. From what I gather, you think Kirby simply should have walked when he felt mistreated instead of staying and producing comics. Well, in the late 70s that’s just what he did. He went into animation. This option simply wasn’t open to him earlier. And, as stated earlier, the conditions were the same in every publishing house in the industry. He didn’t get treated any better at DC. He KNEW there were “scumbags” in the industry, usually in positions of power. To work in the industry, he had to get along with these people. He had to “write friendly memos” and the like when working for Marvel… what else could he do? Write angry ones?

      You seem to want to equate Kirby’s beef with a simple employee/employer dispute. The difference is said employer is STILL reaping money from Kirby’s labor. This isn’t usually the case in labor that isn’t creative. Lee has specifically used Kirby’s work (and Ditko’s, to a smaller extent) to enrich himself and magnify his talents. So, it’s not really a question of who’s “better”, as you state, but who did what. Now, it’s apparent that some ignorant judge can be swayed because he/she might not understand the industry (or simply doesn’t care), but it’s pretty obvious to anyone who cares to study either man’s career and what they did. Ultimately, that’s the bottom line.

  30. patrick ford says:

    There’s no reason you should follow the case closely, or any reason you should comment on things you haven’t bothered to inform yourself about.

    But by all means continue on, the more you say the deeper the hole you dig.

  31. Bobby says:

    Its pleasing that so many people love Jack so much. I am a fan of his art, and his ability to create concepts of lasting duration. But…..Jack knew. He knew he was getting screwed. Not just by Marvel, but by everyone who required the standard work for hire contract. And the contract was a deal with the devil, but the artists and writers who signed it, were interested in making a living in comics, not shoveling coal or making textiles. How many bad characters are out there created by good artists and writers? Plenty. And the creator ownership thing is wonderful, except that the last great characters at either DC or Marvel were probably produced under the work for hire contract( There ARE exceptions, i am sure). If the heirs of the Kirby estate were smart, they would have negotiated out of court for a piece of the action, instead of trying to beat an unbeatable legal contract. Jack Kirby was a legend in the industry; i don’t think he was a good writer, and i think the inkers he worked with contributed vastly to his work, but he was the king of concepts and the master of grand scale storytelling……..

  32. Dino C says:

    It isn’t much of a surprise that Roy Thomas would testify against the Kirby Estate. Despite his many proclamations that he wasn’t hurt by the infamous “Houseroy” character, it always seemed to me it was a case of if I say it enough I will believe it because that bit of classic satire is venomous. Kirby was fired up and it remains one of the best bits of pure writing he ever did. Look up that issue of Miracle Man (9 I think) and you will see how brutal the graphic beat down was of the shyster and the toady. Not today or even ten years from now will this be how they are both remembered but ultimately history will see Funky and Houseroy as they really were.

  33. The Kirby situation leaves much to be desired, both on a professional/ legal level, and on a moral level. The fact of the matter is, after you analyze the details, is that Kirby did a lot of the heavy lifting in the early days of the Marvel Universe warehouse/construction site, and Lee supervised from the office.

    Lee had the rough “blueprints”, (usually a one or two page synopsis, or phone calls) but Kirby had to put the pieces together into a cohesive product, since, because of deadlines, the “blueprints” were nebulous, open to interpretation and in need of improvement in foundation and detail development.

    Hardly a day goes by when you don’t see an undiscovered page from Kirby on the internet, there are reams of them. Each one, even the simplest ones, a well structured feat of creative engineering. It must have ate Kirby up over the years, to see such profits and success, some which should have gone to him and his family, lost to the corporate coffers.

    That being said, (and I’m not saying this to kiss up, I’ve done a nice bit of work for DC and other publishers over the years, but Marvel gives me next to nothing) the entity that is Marvel did push and invest in the characters, expand them with other professional creative input, and contribute to the massive commercial goodwill that the properties evolved into. So in that respect we have to acknowledge the other side of the coin. In addition, Lee is no slouch, since Kirby’s genius was so intense it could border on the manic; Lee served the useful purpose of restraining this powerful quality, and channeled it well, something even Kirby himself would have difficulty in, in his later, more eclectic work.

    But I guess it just boils down to this. Marvel has it’s position. The Kirbys have theirs. Both sides, and their supporters, have their ax to grind, and to a certain extent, both are right. Intellectual property is a royal (some might say “royalty”) pain.

    To insure the parties reach an equillibrium, perhaps both sides can yield…a little?

  34. Ed Gauthier says:

    In many ways in this case, the baby got thrown out with the bath water, and several other writers and artists got screwed besides Kirby’s camp. (For starters, Joe Simon and Larry Leiber.) Kirby created many characters, but… Iron Man was created by Don Heck and Larry. Thor was created by… oh ya – the “bashful bullpen” known as the Greeks. It’s great that Kirby came along later and drew some wonderful stuff featuring them, but he didn’t “create” those two characters any more than Stan did, or any more than Carmine Infantino created the Flash or Tarzan, despite his also after the fact art on them. As to the courts, sadly the toxic nightmare of WFH continues to claim victims, and virtually all statements of personal creation regarding ANY characters have now been tossed to the unforgiving winds.

    • DiamondDulius says:

      Actually, I believe Kirby was in on the creation of Iron Man, and it was handed off to Heck. And Kirby did indeed create (or at least co create) the MARVEL VERSION of Thor, who comes form Norse mythology, not Greek…

  35. public shell says:

    “And I was thinking how the world should’ve cried on the day Jack Kirby died.”
    Monster Magnet “Melt”

  36. Tony Solomun says:

    I’ve also basically boycotted most of Marvel.am mostly staying away from their books,with a few exceptions,because a number of my friends and connections work there,though Marvel’s treatment of Jack Kirby is disgraceful,without him they would have NOTHING, he was a trailblazer,one of the best creators in any medium EVER, it is well past time for Marvel,and any other company treating veterans poorly,there should be serious change,

  37. Allen Smith says:

    What’s really needed is a champion for Jack in the mainstream media to publicize the situation about him and others who have not received their just due, in order to shame Disney/Marvel, if they can be shamed, into acting fairly toward current and past creators who haven’t gotten their just due.

  38. Tom Conroy says:

    Stan Lee was a hack. You want to see some of his “writing talent”. Go read some of those Atlas western comics from 1955 to 1959 that he wrote. They are pure crap. All Kirby did was replace Joe Maneely as Stan Lee’s top artist. All Stan Lee was good at was hiring good talent. Remember, in the publishing business an “editor” is a guy who could not get a job as an artist or writer. In the magazine world a guy who is a bad artist gets a job as an “art directer”. Guys who have no writing talent are hired as “creative directors”. I will say it again. Stan Lee was a hack who became famous riding on the shoulders of others.

  39. patrick ford says:

    Tom, So true, even by the very low standards of the industry Lee was on the bottom rung. This is comparing him only to his fellow hacks, people like Otto Binder, or Gardner Fox. You couldn’t even think about comparing Lee to someone who could actually write, like Kirby, John Stanley, or Carl Barks.

    Anyone still suffering from the misconception he could write should go read an issue of Daredevil this very moment. His stuff from the 60′s is even worse than the old Timely stuff. What’s worse than a bad actor, a ham.

    • Tom Conroy says:

      The only thing those “bullpen boys” at D. C. and Marvel did was grind out all this super hero crap…..Wow, another guy with super powers and funny clothes….YAWN……Meanwhile the guys in Europe were turning out masterpieces of art and story….people like Jean Giraud and Hugo Pratt and others were doing stuff as good as what Gaines and Feldstein did at E. C….if not better….the Europeans had turned comics into a true art form. They did comics that an adult could read. The writers were as good as the artist. Any two pages of Lieutenant Blueberry from Pilote was better than a whole year of the shit that Stan Lee turned out. It was about 66/67 that I discovered the fantastic art that that was being done overseas. After seeing what they were doing in Europe, I felt sorry for the cartoonist in America that had to draw all that super hero crap.

  40. Allen Smith says:

    Oh, Stan could write. But as you say, it was “good” compared to the weak competition of the times. As I’m fond of quoting, “in the country of the blind the one eyed man is king.”

    • Tom Conroy says:

      When the “man with one eye” tells the blind people what he can see they call him a liar and he ends up dead. The world is full of blind people.

  41. patrick ford says:

    Yeah, but in the case of Lee he wasn’t better than the other hacks, he was about the worst of them. It’s the writing mirror of Willam Shatner singing.

    Wally Wood had Lee’s number.

    Wood wrote this and published it in the Woodwork Gazette. It should be kept in mind this isn’t something Wood said in an interview off the cuff. He wrote it, and then with deliberation published it.

    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.”

    And Wood wrote this in a letter to fan John Hitchcock.

    Wally Wood letter to John Hitchcock:

    Dear John;

    I read your comments on Ditko with interest. Knowing Steve, and his philosophy, well, I can’t help but agree with your conclusion. The Question was definitely giving Steve’s position on the issue of credit . . and other things. I envy him, and I can’t agree with him . . I want the credit (and the money) for

    everything I do! And I resent guys like Stan Lee more than I can say! He’s my one reason for living… I want to see that no-talent bum get his…

    And Wood had this to say about working with Lee on Daredevil.

    Wally Wood: “Stan was the scripter, but I was coming up with most of the ideas. It finally got to the point where I told him that if he was the writer, he’d have to come up with the plots. So, we just sat across the desk from one another in silence. “

    • Tom Conroy says:

      I was friends with Woody and he had no love for Stan Lee or Jim Warren. This is the story Paul Kirchner told me. When Woody walked into Marvel Stan Lee was all gushy-gooey and shacking Woody’s hand and telling him how thrilled he was that the GREAT Wally Wood was now going to be part of the family at Marvel. It was an honor to have Woody on board.Etc…etc….etc. Two weeks later he treated Woody like he was a nobody. Stan Lee was happy to have Woody for one reason…….$$$$$$$$$$$$$$$$$$$$$$$…MONEY. Woody said this about Jim Warren.”Jim will be glad when I’m dead….that way he won’t have to pay me when he reprints my work”. As I recall, Warren did just that.

    • Allen Smith says:

      Of course, the Stan Lee fans will say that Wood was a liar and a drunk. Wood may have been a drunk, but he had more talent in his little finger than good ‘ol glad handing unca Stan did in his whole body.

  42. patrick ford says:

    Tom, Working with people like Ditko, Woodm and Kirby lined Lee’s pocket in more ways than one.

    Two things which came out during the court case were Lee saying he was paid a freelance page rate for writing on top of his salary as editor. It’s amazing that to this day people parrot Lee’s old interview talking points about how the Marvel Method “gave the artists freedom.” What was really going on is Lee was taking the full writers page rate while Kirby, Ditko, and Wood were doing the plotting and creating. So not only wasn’t Lee giving the writer/artists

    anything, he was collecting money for plotting and creating which should have been paid to the cartoonists.

    Another thing which came out is Lee is paid a million dollars a year for life by Marvel. A clause in the contract prohibits Lee from assisting any claim against “Marvel’s” copyrights.

    • DiamondDulius says:

      Sure, that makes sense… what else would one expect from Lee? What really gets me is how Romita and Thomas absolutely have to jump right up Lee’s ass!! Whenever he writes about Kirby, I always sense Thomas is never really as impressed as the rest of fandom is… and he seems to be carrying a grudge over “Houseroy” of all things. But Romita has always gushed and gushed about Kirby. He could have really helped the case…

  43. patrick ford says:

    Dan Best has posted Marc Toberoff’s appeals brief in the Marvel vs Kirby case.

    http://ohdannyboy.blogspot.com/

    Toberoff mentions an interesting part of Larry Lieber’s deposition which was redacted from the portions Marvel published.
    Lieber testified he at first refused a request by Lee to cooperate and was told by his brother(pg 29)
    “Well I hope you don’t lose the strip (Spider-Man) because of it or something.”
    Toberoff points out Lieber also testified the Spider-Man newspaper strip has been his lone source of income for 23 years.
    Toberoff also mentions a document (pg 28) which showed:
    “…shortly after Marvel received the termination notices on the characters Disney gratuitously paid Lee significant additional monies.”

  44. patrick ford says:

    Toberoff’s brief takes a “Jack” hammer to the judge’s ruling. I hope everyone interested will reread the judge’s ruling with care, as well as the Toberoff brief.
    This is not, and never was about “fairness.” Fairness in the sense that the law is clearly against Kirby, but Marvel should do the charitable thing and give the peon a handout.
    As Toberoff points out this was about “Marvel’s case stands or falls on (Lee’s) testimony.”
    The judge said it, Toberoff quoted it, but all I hear is people saying, “Brush a few crumbs off the table for the dogs why don’t you.”

  45. James says:

    There’s virtually no point in discussing the case with Marvel Front Facers. These corporate cheerleaders gloat about the victory of a sickening greed that has captured America’s hearts and wallets with corrupt, tainted “heroes” and the liars that made it so that not a penny of billions of dollars goes to the people who did most of the work involved in making Marvel the humungous shit-spewing machine that it is. I don’t care if they hire Nobel laureates to write their crap and angels with brushes dipped in gold to draw it, boycott hell, their name should be made such mud that no Kirby would WANT Jack’s name associated with them. Thanks and have a nice day.

  46. Kim Thompson says:

    Actually, I think Marvel and DC fans are happy when Marvel and DC keep the rights to their characters rather than their reverting to the creators because it means Marvel and DC will crank out lots more stories for them to collect, simply enough. It’s pure fan selfishness, not any kind of broader, principled embrace of corporate greed. The ones who will delight at the WATCHMEN spinoffs aren’t inherently pro-corporate and anti-artist, they just want to read more Rorschach stories and they’ll applaud whichever rights situation enables that. At worst you could say they like corporations because corporations will almost by definition give them what they want, whereas individual artists might not.

  47. patrick ford says:

    It’s very easy to find huge numbers of comments from fans who strongly support the publishers on economic grounds. The most common view is the publishers couldn’t survive without the windfall of character ownership. This argument flies in the face of Jim Shooter’s claim Marvel would have gone bankrupt in the late ’70s if not for the Star Wars comic book. It also ignores one of the most successful publishers of all time Dell, published a very high percentage of comic books they not only didn’t own, but paid to license (Donald Duck, Little Lulu, Tarzan, etc.).
    A high percentage of super hero fans hold strong right wing economic views.
    That said, it’s encouraging that Kim has better things to do with his time than read DC and Marvel oriented message boards.

    • Kim Thompson says:

      Although the “my favorite publishers would go bankrupt without the flow of money from merchandising” argument is arguably just another level of the “they wouldn’t be able to provide more new FANTASTIC FOUR comics that I crave more than life itself, auughh” argument — in other words, their main concern is Marvel’s ability to deliver them their next fix, and all more abstruse concerns about fairness or creative ownership are subsumed to that.

      Dunno if it’s a matter of a high percentage of super-hero fans holding strong right-wing economic views, or a high percentage of super-hero fans who feel compelled to comment on this on message boards holding strong right-wing economic views. Although I guess if your diet consists mainly of power fantasies whose underlying message is “might makes right” you’re a lot more likely to end up in the Republican camp.

  48. James says:

    The major part of the profit from Kirby’s characters isn’t in the publishing of comic books, it is in the films, merchandising and other products derived from his concepts and those are what his handshaken but unhonored deal with Martin Goodman was about.

    • patrick ford says:

      James: “films, merchandising and other products”

      Absolutely, but as Dell showed it’s very possible to make it as a publisher and not own the copyrights to the work you publish. Margaret Mitchell owning the copyright to Gone With The Wind didn’t put Macmillan out of business.
      Of course comic book publishers well knew the potential value of the copyrights. Many comic book publishers had roots in pulp magazines where the glarring example of Tarzan, owned by the author Edgar Rice Burroughs, and The Shadow, owned by the publisher Street and Smith couldn’t have been more illustrative.

  49. James says:

    And there’s something to the idea that Kirby and his contemporaries could not have signed away rights to the use of their ideas in forms of technology that couldn’t have been anticipated back in their day.
    And that’s without mentioning that the company was/is responsible, as “caretakers” of the original art that by law actually belonged to the artists whether the company ever acknowledged that fact or not, for the value of any work that as not returned to its rightful owners, including work given away to fans and professionals, or foolishly left next to an elevator.

  50. JS says:

    I don’t support the Kirby heirs. They don’t have any moral claim to these copyrights. I don’t even think they want them. They’re middle-aged people chasing a payoff. I haven’t read Marvel in years, either.

    They are trying to exploit a section of the copyright law that allows heirs of the original author to revert the copyright in non-W4H intellectual-property sales. I believe that this section of the law violates the copyright clause of the U. S. Constitution in both letter and spirit. The copyright clause says, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The rights are supposed to be for a limited time, and it says nothing about heirs or estates being able to claim them. That’s only the province of the authors.

    Even if I didn’t object to the current law, the Kirby heirs cannot prove that Kirby did not produce the stories under W4H as defined by the 1909 copyright act. That’s what’s applicable here. As plaintiffs, the burden of proof is on them. Kirby signed an agreement acknowledging these efforts were W4H in 1972. There are no documents indicating otherwise. They can’t claim the 1972 agreement was signed under duress; Kirby didn’t work for Marvel at the time. All that’s left is direct testimony. The only one who can provide that now is Stan Lee. His statements didn’t support their claim, so that’s that. As the judge said, their case stood or fell on his testimony. (And by “stood,” she means the case had enough merit to proceed to trial.) Even if Lee’s testimony were to be successfully impeached, it wouldn’t matter. All the judge would have to go on at that point was the 1972 agreement, and that completely supports Marvel’s position. She had no choice but to issue a summary judgment in Marvel’s favor.

    Personally, I think these copyrights should be in the public domain. If not now, then shortly. The 1909 act allowed for two consecutive 28-year terms, which is plenty and indisputably constitutional besides.

    • patrick ford says:

      JS: “That’s what’s applicable here. As plaintiffs, the burden of proof is on them. ”

      JS is correct the “burden of proof” is on the plaintiff. Toberoff argues that very point at length in his appeal. The thing is Disney is the one who sued. The estate sent out termination notices. As Toberoff points out settlement talks took place on 12/3/2009. and 12/16/2009 with a plan to resume after the holidays (pg 9 of the appellate brief). Instead Marvel sued on Jan. 8. 2010.
      Disney/Marvel sued to place the case in a district court know to favor corporations on copyright issues (Jeff Trexler commented on this).
      Toberoff actually presents a devastating argument as to why the case should never have gone forward in New York (pgs 16-20 of the brief). What this came down to was the judge ruling Susan and Neal Kirby had conducted business in New York (meaning they could be sued in New York). because they had mailed the copyright termination notices to 53 different addresses 13 of which were in New York (that’s how arcane Marvel’s corporate structure is). The copyright law requires the termination notices be mailed to the publisher, and by sending mail to Marvel in New York the judge ruled Susan and Neal Kirby had conducted business in New York, and thus could be sued there. The judge is almost certainly in error on that point as detailed at length by Toberoff (16-20).

  51. JS says:

    Let me explain that “no moral claim” statement a little further. The Kirby heirs have done nothing to contribute to the value of the copyrights in question. They didn’t create the material, and they had nothing to do with marketing it. As I say, I’m not all that keen on Marvel keeping the copyrights for much longer, but Marvel has at least contributed to the value of the properties through their exploitation of them. That’s more than the Kirby heirs can claim. What they’re saying is their DNA constitutes a winning lottery ticket.

    • Jeet Heer says:

      JS: to give you credit, I think you’re arguments are much more solid than that of any other Marvel defender I’ve seen. So I want to spend a little bit of time explaining why these arguments are wrong. The ultimate problem is that they rest on the fallacy of libertarianism, the belief that people are abstract individuals with no social ties or social contexts that need to be taken into consideration. But to address the issues in detail:

      1. Constitutionality. “I believe that this section of the law violates the copyright clause of the U. S. Constitution in both letter and spirit.” If this section of the law is unconstitutional, then the proper remedy is to get the courts to strike it down as unconstitutional. The courts haven’t done so yet (nor are they likely to – the current Supreme court is fairly expansive in allow Congress to set the boundaries of copyright law). Until the courts agree with you and strike down this section of the law, the Kirby estate is within their legal rights to make what argument they can in accordance to the law as it exists. There is no legal, moral, or intellectual reason why the Kirby family should be bound by your particular interpretation of the constitution.

      2. Constitutionality 2. “The rights are supposed to be for a limited time, and it says nothing about heirs or estates being able to claim them. That’s only the province of the authors.” Of course, you could narrowly interpret the constitution in that way with the same sort of pedantic literalism that would overturn the vast majority of supreme court decisions in the last two centuries. But there is another way to read these sentences – that “limited time” just means finite time but doesn’t have to be limited to the lifetime of authors and inventors (and so could include a grace period after the death of the authors and inventors, which is in fact what copyright does include).

      3. Duress. “Kirby signed an agreement acknowledging these efforts were W4H in 1972. There are no documents indicating otherwise. They can’t claim the 1972 agreement was signed under duress; Kirby didn’t work for Marvel at the time.” It doesn’t take a very large historical imagination to understand why the 1972 statement wasn’t signed freely. Kirby had spent his entire life creating adventure and dramatic comic books. By 1972 there were only two companies that could employ the talents he had spent a lifetime developing – Marvel and DC. He was working for DC but having difficulties, so he knew he might need to work for Marvel again (as indeed turned out to be the case). So when he signed the 1972 agreement, he was hardly a free agent who could do as he please nor did he have anything amounting to an equal relationship with Marvel. To my mind, that constitutes duress.

      4. Lee’s testimony. “All that’s left is direct testimony. The only one who can provide that now is Stan Lee. His statements didn’t support their claim, so that’s that. As the judge said, their case stood or fell on his testimony. (And by ‘stood,’ she means the case had enough merit to proceed to trial.)” First of all, there are problems with Lee’s testimony. He was not an objective observer, but an interested party who would lose money if the case went in favour of the Kirby estate. Secondly, Lee’s testimony directly contradicted many earlier statements he made in interviews and in articles he wrote which credited Kirby with having a substantial role in creating those characters (including his earlier statements that Kirby invented the Silver Surfer out of whole cloth, taking Lee by surprise). Finally, I’m not at all sure that the judge had to rely solely on Lee’s testimony. If she wanted to, she could have given weight to the testimony of others who worked for Marvel in the 1960s as well as scholars who have studied the Lee/Kirby relationship. The narrow evidentiary basis of the decision wasn’t a forgone conclusion but based on a judicial decision which can be questioned and challenged.

      5.No Moral Claim? “Let me explain that ‘no moral claim’ statement a little further. The Kirby heirs have done nothing to contribute to the value of the copyrights in question. They didn’t create the material, and they had nothing to do with marketing it.” Here we get to the rub of the argument. Do artists have a right to pass on their intellectual property to their heirs? Before we answer that question, let’s compare intellectual property to other types of property – notably the property owned by stockholders. If I owned ten million dollars of stock in Disney/Marvel, I would be able to pass it along to my children (subject of course to an estate tax, which would still leave the bulk of my property intact). So as the owner of capital, I (and the other shareholders in Disney/Marvel) have the right to pass along my property after death. Jack Kirby was not a owner of capital in that sense (at least not with regard to Marvel). He was a cultural worker, so what he owned was his talents, for which he got paid a freelancers wage. But if the courts now decide that Kirby as co-creator deserves partial ownership of the characters he brought into the world, then why shouldn’t Kirby’s partial ownership be passed along (for a limited time, as the constitution allows) to his heirs? Why should the rights of capital be greater than the rights of workers? To be sure, the American legal and political system greatly favors capital over labour but there is no reason to think that this situation is moral or should go unchallenged.
      6. The Rights of the Heirs. Let’s take another look at these sentences: “Let me explain that ‘no moral claim’ statement a little further. The Kirby heirs have done nothing to contribute to the value of the copyrights in question. They didn’t create the material, and they had nothing to do with marketing it.” This would be true if Jack Kirby were a robot or a Randian psychopath with no ties or obligations to his fellow humans. But in fact Jack Kirby was a real flesh-and-blood human. He had a family which he supported economically, just as they supported him emotionally. For several years after Kirby’s death, his heirs included his widow Roz, who spent her life taking care of Kirby. Do we really believe that Kirby would have been able do create all that he did without Roz’s support? Or that his children didn’t motivate his creativity and productivity? That’s a major reason why artists should be allowed to pass along their intellectual property to their heirs (again, for a limited time as the constitution allows).

      To believe that the shareholders of Disney/Marvel should have more rights than the Kirby family isn’t moral. Nor is it moral to support a legal and political system that so one-sidedly favours capital over labour.

      • JS says:

        Mr. Heer, I have no idea where you are coming up with this libertarian characterization of me. To the best of my knowledge, libertarians have a philosophic objection to the notion of a commons, which would include the concept of public domain with regard to intellectual property.

        I also note that the Supreme Court justices who objected to the 1998 extensions of copyright protection on constitutional grounds were John Paul Stevens and Stephen Breyer, neither of whom are considered libertarian or otherwise right-wing.

        My objections to the aspect of the copyright law the Kirbys are trying to exploit are moral and ethical, and my reasons for not supporting them. My reasons for why I agree with the judge for rejecting their case are separate and treated as such.

        I suggest you look at the history of copyright law both in the U. S. and abroad before you start lecturing people about it.

        When the Constitution was written, England was the only country in the world that provided copyright protection to authors. Other countries, such as France and Italy, did not recognize intellectual-property rights at all. Such rights were considered immoral and detrimental to society. There was a philosophical tug-of-war among the Founders when it came to them. Jefferson agreed with the continental view; Madison felt the British position was reasonable. He thought the rights should only last for 14 years, with the right of renewal for another 14 if and only if the author was still alive. Madison’s views were later enshrined in the Copyright Act of 1790.

        Fourteen years, plus another 14 if the author was still alive. In practice, that is what was meant by the term “limited” by the Founders.

        That held until 1831, when Noah Webster got the initial term extended to 28 years. In 1909, the renewal term was extended to 28 years. In 1976, it was changed to 75 years or the life of the author plus 50 years. In 1998, thanks to Sonny Bono with massive lobbying help from Disney and others, it was extended again to 120 years after creation or 95 after publication, whichever is earlier. Bono’s attitude, by the way, was that copyright ought to be forever, but since that was unconstitutional, forever minus a day should be the ultimate legislative goal. The Founders must have been spinning in their graves.

        The United States has historically treated the continuity of assets across generations with disdain. It is felt that such continuities promote aristocracies and their accompanying decadence. That’s why we have a long history of estate taxes in this country. In practice, the traditional American view is that no, people are not entitled to inheritances, although we’ll look the other way as long as it isn’t large enough to promote aristocratic tendencies such as idleness. If the inheritance is that large, the society is going to take steps to claw it back for the greater good. The same attitude governs the concept of progressive taxation with regard to income

        By the way, I support estate taxes and progressive taxation. Libertarians emphatically do not.

        As I’ve said elsewhere, Lee’s testimony only mattered to the extent that it supported the Kirbys’ claims. They had the burden of proof, not Marvel.

        As for the testimony of others, they could not provide firsthand accounts of Kirby’s dealings with Lee and Marvel. Nor could they provide firsthand accounts of how Lee and Marvel dealt with people during the 1958-1963 period. All they could offer was hearsay and speculation. The judge was going to dismiss that testimony as a matter of course.

      • Jeet Heer says:

        JS. “As I’ve said elsewhere, Lee’s testimony only mattered to the extent that it supported the Kirbys’ claims. They had the burden of proof, not Marvel.” The great assumption your making here is that Lee’s testimony has to simply be taken at face value as the gospel truth. But in point of fact there are many reasons to think that Lee perjured himself. His statements under oath contradict many statements he made over the years, contradict many statements Kirby and Ditko have made, contradict what many other artists who worked for Marvel experienced in their own relation as freelancers, and, frankly, contradict common sense and the historical record. Again, I refer you to Hatfield’s discussion in Hand of Fire, which offers a judicious (le mot juste) account of the conflicting public record and concludes, as all reasonable people who have looked at this case do, that Kirby and Lee were co-creators. Instead of hiding behind the judge’s decision are you willing to flatly state that you believe that Kirby didn’t co-create the Fantastic Four, the Hulk, Thor, etc.?
        I have to say, if the judge were an undergraduate who handed in her decision as a history assignment, I would give her a D+ because she only looked a single source of evidence (Lee’s testimony) and wilfully disregarded all the other conflicting evidence. I don’t see why the judge’s can’t meet the same evidentiary standards that we except from freshmen history students.
        “As for the testimony of others, they could not provide firsthand accounts of Kirby’s dealings with Lee and Marvel. Nor could they provide firsthand accounts of how Lee and Marvel dealt with people during the 1958-1963 period. All they could offer was hearsay and speculation. The judge was going to dismiss that testimony as a matter of course.” So the burden of the case rests on the fact that Kirby and everyone else with firsthand knowledge with the exception of Lee is dead. Again, that may be legal but is it moral?
        I don’t know anything about your political views other than what you’ve posted here. If you’re not a libertarian, I apologize. But I characterized your arguments as libertarian because they have the same structure and underlying assumptions of libertarian thought: i.e., an indifference to the unequal power relations of corporations and individuals, a belief that everyone is a free agent and not subject to duress when signing contracts, a tendency to see people strictly as individuals without considering their family ties and obligations, a fetishization of the ideas of the Founding Fathers with a complete unwillingness to acknowledge the significant ways the world has changed since the end of the 18th century, a willingness to use high principals of the public good to buttress corporate power at the expense of the rights of labour.
        To take the constitutional point: you might be right about the constitutionality of the section of the law under question, but until the courts strike down that section of the law, Kirby’s heir have every right (legal and moral) to seek redress.
        In any case, I’m not so sure that the ideas of Jefferson and Madison should be the final word on these issues. For one thing, life expectancy is much longer now than in the 18th century, so it makes sense for copyright to last longer. For another, the Founders lived before corporations had personhood status: if they were living in today’s world where corporations have much more power than in the 18th century, they might have supported new laws and interpretations of the constitution to give individual authors and inventors some leverage in dealing with employers. Finally, and this can’t be said too often, Jefferson, Madison and all the rest were fallible human beings and not Gods. This means that they weren’t invariable right about everything and we have an obligation to think for ourselves (for an example of what I mean, you might want to look up Jefferson’s views on race and indeed his record as a slave-owner). To put it another way, just because George Washington had wooden teeth doesn’t mean we shouldn’t go to an up-to-date dentist.
        “By the way, I support estate taxes and progressive taxation. Libertarians emphatically do not.” Glad to hear it, but its worth noting that there is a significant difference between the proposed copyright laws you want (everything falling into the public domain with the death of the author, the heirs getting nothing) and all existing progressive taxation and estate taxes. Under progressive taxation and estate taxes, even the richest individual gets to keep most of their income and to pass along their inheritance to their kids. Under the copyright regime you want, there would be a 100% estate tax for one particular class of individuals (artists), whose children would get nothing. Again, why should those who get rich from owning stocks have more rights than those whose source of income is their talent and imagination?

      • patrick ford says:

        The judge’s ruling has some real head-scratching areas in it.
        The judge ruled to allow the declarations of Steranko, Ayers, and Sinnott, but she doesn’t mention the declarations of Colan (who was at Marvel 1958-63), and Adams (who like Romita, and Thomas came after the ’58-’63 period).
        The judge oddly gives us a little anecdote from Lee’s testimony (she parrots Lee through long portions of the ruling) describing why Lee made the Hulk green because there were no green super heroes. As Shooter knows DC had at least two green skinned heroes, but it isn’t the factual basis of the “first green hero”comment which seems weird, the statement is odd because she mentions it at all.
        If you go and read Lee’s deposition (or the 100+ pages we’ve seen of a total which was at least six times that length), it is filled with factual errors. For example Lee claims when Goodman had Lee fire the whole staff at Timely/Atlas John Romita was kept on as art director. This of course was not what happened. Romita had been working for DC for a number of years, and returned to Marvel in 1964.

  52. James says:

    JS, hmmm. Jim Shooter? Since the case fell on Lee’s word, it sure seems strange that the word of a man with a famously bad memory was so clear, and so clearly contradictory from what he has said in various places on the record, previous to his recent testimony.

  53. Alek Trencz says:

    JS: “They can’t claim the 1972 agreement was signed under duress; Kirby didn’t work for Marvel at the time”

    Wasn’t this agreement made in order to have original art returned to the artist?

    JS: “the Kirby heirs cannot prove that Kirby did not produce the stories under W4H as defined by the 1909 copyright act.”

    He wasn’t paid for any unused pages, so it was freelance work.
    Also, if it was work for hire, Marvel would own all the work Kirby produced whilst in their employ whether they used it or nor, yet they never stopped other companies from publishing work (character designs etc) that they themselves had rejected.

  54. JS says:

    James–

    Lee’s testimony would only have mattered if he SUPPORTED the Kirby heirs’ claims. If he had, they might have made it to trial. The burden of proof was not Marvel’s responsibility. The Kirbys couldn’t show any evidence that supported their claims.

    Alek–

    The original-art agreement was signed in 1986 or 1987. It was a separate matter. That agreement was the same every artist signed for art return then.

    As far as I know, Marvel wasn’t claiming copyright on unused material. For example, based on Steve Ditko’s descriptions of Kirby’s rejected Spider-Man character and story, Kirby should have been able to take it to another publisher as long as he used a different name for the character and didn’t otherwise tread on Marvel’s trademarks.

    • patrick ford says:

      JS: “Lee’s testimony would only have mattered if he SUPPORTED the Kirby heirs’ claims. If he had, they might have made it to trial.”

      That is 100% correct. As the judge said “Marvels case stands or falls on Lee’s testimony.”
      I have read the depositions, the other case material, the declarations, the rulings. Most people tell me they haven’t. They will say they don’t have the time, or something like “It’s too depressing.”
      What it boils down to is in the early ’60s Lee said of Kirby, “He’s probably a thousand times better at plotting than I am.” After the purchase of Marvel by Perfect Film Lee’s claims claims grew year by year to a point where by 1986 the Origins books sounded generous.

      Lee: ” I tried to write these (The Origins books) —knowing Jack would read them—I tried to make it look as if he and I were doing everything together, to make him (Kirby) feel good.
      But with something like Galactus it was me who said, “I want to do a demi-god. I want to call him Galactus.”
      Jack said it was a wonderful idea, and he drew a wonderful one, and he did a great job on it. But in writing the book (Origins of Marvel Comics) I wanted to make it look as if we did it together. So I said we were both thinking about it, and we came up with Galactus.

      Toberoff introduced quotes. 1967-68

      SL: I have a feeling, I’ve got the worst memory in the world, but I have a feeling, when Jack Kirby named him, he started out as a guest star in Fantastic Four. Jack and I can never really remember which of us came up with most names, but I have a feeling– He wasn’t even supposed to be in the story. When I plotted it with Jack, it was just Galactus and so forth. And when I got the story from Jack to write the copy, he had drawn this fellow on the surfboard, and I think he called him the Surfer, or the Silver Surfer, and the name was certainly euphonious, and we decided to keep it. And we all fell in love with him.

      NC: Well, I can remember trembling with anticipation waiting for the next Thor during the period when you had Id, the Living Planet, or Ego, the Living Planet I think that was it.
      SL: Yeah. That was Jack’s idea too. I remember I said, “You’ve got to be kidding.” He said, “No, let’s get a living planet, a bioverse.” Well, I didn’t want him to think I was chicken. I said, “All right, you draw it, write it.” And, yeah, I think it turned out pretty good.

      Lee’s comments in the Village Voice 1986:
      “I really don’t want to say anything against Jack,” Lee says in an interview that begins in a massive, high-tech conference room at Marvel’s Van Nuys, California, animation studio and ends in his sculpture-filled office at the other end of the complex. “I love and respect him very much. He’s one of the most talented, hard-working guys I know, but I think he thinks he created these characters because he drew them. But, I would suggest how I wanted them drawn: ‘Make him a little bigger.’ ‘The head is too wide.’ And, of course, the characters’ concepts were mine, too. I would give Jack an outline or tell him the plot I wanted and let him break it down to determine what each drawing would be. When I got them back, I would put in the dialogue to inject whatever personality I wanted. Kirby was doing what he’d always done,” says Lee, “‘drawing beautiful pictures.’ While they were not as sophisticated and polished as some artists, they had a raw power. But what brought about the renaissance of comics was the style change in the writing, my writing.”

    • Alek Trencz says:

      JS,
      By not claiming copyright on unused material (such as the New Gods characters, designed prospectively for their use) Marvel admit that they do not own it.
      If Kirby was their W4H employee, the work he did at that time would have been done at their expense and under their authority.
      That would mean that they owned (and would have payed for) all of the work, whether used or not.

      If W4H covered everything that had been bought and published in situations where the creator met the expense of creation (not being reimbursed for unwanted work) then everything ever published would be W4H.

      When the cost of creation is met by the creator and the methods of creation are determined by hir, it is not work-for-hire.

      • patrick ford says:

        Alek, That is just another legal error on the part of the judge pointed out by Toberoff.
        The judge is sympathetic to the notion the publisher is at risk in publishing the comic books. While that is true, the copyright law doesn’t concern itself with publication, it zeroes in on the view the core idea/ the creative act is being generated with no deal in place to assure payment. In that instance all the risk is on the part of the creator trying to sell work which might well be rejected (Spiderman).
        The law does not concern itself with the risk of publishing purchased material. If it did the copyright law would be pointless, the publisher would be granted an automatic win in every case (pgs. 25-27).

  55. patrick ford says:

    Mark Evanier is on record commenting on the ’72 agreement.
    http://marvelmasterworksfansite.yuku.com/sreply/249560/Ask-Mark-Evanier-

    As for Kirby’s Spiderman.

    Based on a letter from Marc Toberoff Lee was apparently willing to go so far as to say Marvel paid for rejected pages.

    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 artists 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/

    Quote from Sinnott’s declaration:

    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

  56. James says:

    Jeet makes good points but I am sure they will be ignored or twisted by the bravely anonymous JS who uses irrelevant agism (“middle aged people”) to make his (her?) distractionary points, that of course like all of Marvel’s bootlicks avoid any and all charges made with all the decietful panache of a Fox-fed Republican. As usual, the “facts” they present are all wrong…the document Kirby was first asked to sign was nothing like the one sent to the other freelancers, nor was the one he was eventually forced to sign, which was deceptively phrased by Marvel in that they never admitted that the artwork actually belonged by law to the artists in the first place, which it does—no, the artwork that hadn’t been “stolen” from Marvel’s supposed safekeeping was returned as if it was Marvel’s “gift” to the artists. They have never done anything out of generosity, never done anything they didn’t HAVE to do by law, and with the added power of Disney behind them, they will by all appearances continue these tactics as long as they are allowed to by people who don’t understand their rights and by a public that sucks up their corrupt product.

  57. Jeet Heer says:

    One last point – JS raises the issue of “moral rights” but conflates that with legal rights. It could well be that under the current law, the legal decision is correct and Kirby and his heirs have no claims on the characters he co-created.
    But let’s leave the law aside and ask a few factual and moral questions. Who created The Fantastic Four, the Hulk, the X-Men, the Silver Surfer, the Avengers, etc.? It wasn’t a corporation called Marvel comics. Nor were they created alone by a Marvel employee named Stan Lee. They were created by the team of Kirby and Lee. This is blatantly obvious to anyone who has studied the historical evidence. Charles Hatfield’s Hand of Fire: The Comics Art of Jack Kirby has a chapter laying out the evidence quite nicely.

    So if Kirby and Lee created these characters, shouldn’t Kirby have had a partial ownership stake in them? Perhaps that’s not the way it works under our political and legal system, but that’s the way it should work morally. And if Kirby deserved an ownership stake in those characters and Congress allows the heirs of an author to have a limited time ownership of his or her work, then Kirby’s heirs are also entitled (morally if not legally) to a stake in the characters Kirby co-created.

    To reason otherwise, as JS does, is to believe that not only are corporations persons but corporations are also artists, having the moral rights to works of art they supposedly create. To me it’s absurd to think of corporations as either persons or as artists.
    (And to make a side point about constitutionality — it’s worth remembering that none of the founding fathers believed that corporations are persons. The idea would have been absurd to them).

  58. patrick ford says:

    The copyright law is hand and glove with the way Lee has described “creation” since…well around 1968. Lee’s description of “The creator” is such a good match to the legal definition you would almost think he’d been briefed. Lee says the creator is the person who comes up with the idea first, the core ideas, not the way the ideas are expanded later on.
    The estate argued it was Kirby who brought Lee a character named Spiderman who was an orphan living with an aunt and uncle, had gained spider-powers, and used a mechanical web-shooter. They claim this idea was clearly derived from a logo given to Kirby by Joe Simon, and a character Kirby co-created with Simon called The Fly. They say Kirby’s rejected version of Spiderman is proof Kirby created characters on spec, and brought them to Lee who could either accept or reject them.
    In reply to this Lee testified Kirby had been paid for the rejected Spiderman pages, and Lee went further and said artists working for Marvel were always paid for rejected work.
    This was contested by Toberoff who showed Marvel paid the Kirby estate for the use of previously rejected pages. This happened with the reconstructed FF story, as well as several covers by Kirby. Marvel had to pay for the use of the pages and covers because Kirby had never been paid for them in the ’60s. Toberoff also showed other characters offered to Marvel in the ’60s, but not purchased were later used by KIrby in work for other publishers. Kirby had presented a complete revamp of Thor to Marvel (later published and sold by Kirby as a portfolio). Kirby had suggested a redesign of Captain America, and those presentation drawings were later used for a comic book called Captain Glory, and Kirby showed Marvel his New Gods presentation, but later sold it to DC.
    The estates argument was the same as Lee’s. The estate said Kirby was coming up with the core ideas and presenting them to Marvel in the form of pitch presentation drawings. Lee says he came up with the plots, ideas, and characters and gave them to Kirby to draw.
    Jim Shooter says he held Kirby’s Spiderman pitch in his hands.
    The whole case has little or nothing to do with the published comic books. The case is about the creative work done before the comic books were published, and who came up with the core ideas.

  59. James says:

    BTW while you guys are talking to Mr(s) anonymous, here’s a link to a site with scans of early Marvel original art by Jack Kirby: X-Men #1…hmmmm, isn’t this something Jack was supposed to get back but didn’t because it was stolen? What is the provenance on these? How did the site owner get access to the art? Or was this sold on Heritage….I don’t think it ever went through jack’s hands again after he drew it, although it should have been his. Clicking through to the source site there’s early Hulk pages by Jack, also missing from what was returned to him as I recall and a Marvelmania certificate signed by Lee and Kirby to a Jason Suarez (JS?).

    http://themarvelageofcomics.tumblr.com/post/18057505919/theres-something-particularly-cool-about-reading

  60. Jeet Heer says:

    JS. Again: “The United States has historically treated the continuity of assets across generations with disdain. It is felt that such continuities promote aristocracies and their accompanying decadence.” A fine and noble sentiment. And it’s true that there is a real problem with an emerging economic aristocracy in the United States and other developed countries: inequality is on the rise and social mobility has been stagnant since the early1 970s. But I’m not sure how you fight economic aristocracy by taking the side of Marvel/Disney and their shareholders as against the Kirby estate. That just doesn’t make sense, unless you’re true belief is that the right of capital should trump the right of labor.

  61. patrick ford says:

    Here is an example of Lee’s pre-Perfect Film and post-Perfect Film comments.
    Steve Ditko has said he alone created Doctor Strange and brought him to Lee.
    Lee credits Ditko in an early ’60s letter to Jerry Bails, “’twas Steve’s idea.”
    http://themarvelageofcomics.tumblr.com/post/16306907460/a-letter-written-by-stan-lee-to-super-fan-dr
    By the time of the origins books Lee’s story has changed.

    Origins of Marvel Comics (pg 223):

    “I figured if one super hero could make a mag successful, think of what two might do…
    All that remained was to find another type of character…There was an old radio show that flipped me out. It was called Chandra the Magician…Even now it turns me on…Anyway Steve Ditko took up the art chores while I penned the words.”

    After that Lee goes on for several pages about his own “Horry Hosts” dialogue as if that was the most significant thing about the series. Ditko isn’t even mentioned.

  62. James says:

    I love how Lee always liked to call what the artists did in completely articulating in the act of drawing what was at best a perfunctory bare-bones plot told over the phone by Lee the “chores”, as if they were doing the dishes or milking the cows.

  63. James says:

    The language used by Lee to describe his artists shows clearly his intent to diminish them and their contributions. His reversal under oath of his previous more honest statements on the record call the validity of his testimony into serious question. Marvel’s behavior and greed are far beyond the bounds of decency and the defenses of Marvel and the disparagements of the Kirby family by “JS=’Jim Shooter’” and other anti-Kirby pundits show clearly the depths of foulness involved here.

  64. bill harvey says:

    wow. what can one say when words fail to convey? when i saw the avengers movie i noticed loki’s helmet appearing vey similar to the one jack kirby drew decades ago. so, jack was a sort of costume design person, no?
    everything good about the avengers movie was something that reminded me of kirby’s artwork.
    in the case of the courtroom battle between marvel/disney and jack’s heirs, i would have hoped some settlement could have been reached out of court. something. some monetary agreement that would show a bit of respect for the KING of comics. one percent of gross….something. it’s difficult to imagine marvel not respecting jack’s memory.
    and how does one explain it all to a judge? some things are bigger than the word copyright. for me, personally, jack’s work is beyond the scope of measurement. there are things that shouldn’t be messed with, and when one is blessed with the mojo jack possessed….one should stand clear and offer a salute.
    all that hollywood mula…..that Marvel mula…….beware that someday the truth reaches out to the mainstream, the non-comic books readers, joe sixpack and jane new-shoes….those with common sense and grassroot perspective of what right and fair mean. beware, hollywood and marvel……

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