Taking Back the Kirby Case

When The Comics Journal asked me to write about the latest ruling in Marvel’s lawsuit against the four children of Jack Kirby, my initial plan was to focus on how the case should serve as a cautionary tale for other creators and their heirs. After all, the legal standard governing work-for-hire under the old copyright law has for years been said to create a presumption that the commissioning party holds the copyright. Overcoming this hurdle is all but impossible without clear evidence that a freelancer created the material before taking on the publisher as a client, and even then the path to victory is laden with legal landmines.

What’s more, a creator can’t count on an appeals court to share the comics community’s sense of moral outrage over the mistreatment of past writers and artists. There are deeply ingrained cultural reasons why appellate judges would be likely to identify more with Stan Lee than Jack Kirby. Not only do the elevated honorables of the federal courts of appeal glean much of their material from their lower-court counterparts, but a substantial amount of their creative output is written by anonymous clerks. In this environment receiving credit for someone else’s inspired insights is seen not as a grievous injustice, but the way the system works.

Nonetheless, as I re-read last week’s opinion affirming that Jack Kirby’s Marvel material was work made for hire, I started noticing certain aspects of the three-judge panel’s reasoning that made me wonder if there were more to this case than just another reason for creators to feel discouraged. For example, in her 2011 summary judgment opinion against the Kirbys, Judge Colleen McMahon began with a most unusual disclaimer, all but apologizing for the fact that her ruling was grounded in law, not fairness. The appellate court made no such distinction. Instead, its Marvel v. Kirby opinion sent the clear message that its ruling was fair and just.

This face-off over fairness was both a challenge and a clue. Could it be that the case has exposed fundamental problems not merely with how Marvel treated Kirby, but with the law itself?

The answer to this question could determine whether the Kirby family has any chance of having the appellate court ruling reversed. Unlike the U.S. Court of Appeals, the Supreme Court does not have to rule on every case submitted for review. Instead, it grants certiorari to — that is to say, it accepts — only a small percentage of the thousands of petitions it receives every year. Its basis for choosing a particular case typically goes beyond a factual dispute, such as whether Jack Kirby, Stan Lee, or Steve Ditko deserves the most credit for creating Spider-Man. Instead, the Court looks for a legal issue on which appellate courts disagree or that raises important constitutional concerns.

The following analysis is one possible approach. Besides explaining how a court could reach a conclusion so sharply at odds with that of many within the comics community, the story behind this scenario is also chock-full of tantalizing connections to the history of comics and graphic design, from commercial illustration and Disney’s Three Little Pigs to Joe Simon’s claim on Captain America and the king of all comics lawsuits, the dispute over the Superman copyright. It all builds to a strategy that is admittedly a long shot, but when it comes to the Supreme Court, let’s face it, aren’t they all?

Your mileage may certainly vary — and I’d love to read your own ideas below.

Why Work-for-Hire Matters in the Kirby Case

Before we dig into the reasons why the work-for-hire standard in this case is arguably unconstitutional, let’s review why the work-for-hire question is so important to this case.

The Marvel v. Kirby litigation arose because the four Kirby children — Lisa, Neal, Susan, and Barbara — submitted a filing with the Copyright Office to take back the copyrights to several Marvel properties, including the Fantastic Four, Thor, Hulk, Nick Fury, the Avengers, X-Men, and a host of classic early Marvel monsters such as Fin Fang Foom and Groot, who later became a member of the Guardians of the Galaxy. The heirs also claim that Kirby held the original copyright to Spider-Man, which doesn’t leave much more than Doctor Strange and Forbush Man on the table.

The basis of their claim is a provision enacted as part of the 1976 reforms that gives creators and their heirs the right to terminate a previous transfer of copyright. The length of a copyright term used to be 28 years. This term could be renewed once, for a maximum total of 56 years. When Congress extended the maximum length of copyright ownership in the Copyright Act of 1976 and once again in the Sonny Bono law of 1998, it gave creators and their heirs an opportunity to get the benefit of this extra time by reclaiming copyrights they had previously sold.

There is, of course, an important exception: Creators and their heirs cannot reclaim work originally made for hire, since the creator would have never had any copyright interest to sell. What makes this so difficult to determine for works created before the 1976 Act took effect on January 1, 1978, is that the previous copyright law, the Copyright Act of 1909, did not define the operative phrase, “an employer for whom such work is made for hire.”

Millions, if not billions of dollars can be at stake in disputes over whether copyrighted material was originally created as work made for hire, and Marvel’s lawsuit against the Kirby children was a preemptive strike — Lisa and Neal Kirby live in California, where in 2008 a federal district court made international headlines by awarding Superman to the Siegel heirs. Marvel chose to challenge the validity of the Kirby termination by filing instead in federal court in New York, which is part of the Second Circuit of the U.S. Court of Appeals.

Because the Second Circuit is widely considered to be a business-friendly court with the most rigorous standards for copyright claims, the Kirby heirs tried to get the lawsuit moved to California. However, their effort did not succeed, at least at the level of the district court. Both the district and appellate courts agreed with Marvel’s argument that their father’s work was work-for-hire, which, barring a successful appeal to the Supreme Court, effectively ends the family’s attempt to exercise the termination right.

Can the Kirby Heirs Sue in Another Court?

The Kirbys’ loss in the Second Circuit made headlines and led to speculation as to what the Kirbys could do next. In this regard, a number of news reports claimed that the Marvel v. Kirby appellate opinion provides an escape hatch for at least a couple of the Kirby children — namely, the two who live in California.

The Marvel v. Kirby case was filed in a New York federal district court. Barbara and Susan Kirby reside in New York, so we’ll call them the New York Kirbys. Because the New York Kirbys reside in the same geographical area over which this particular federal court has jurisdiction, it’s pretty much a no-brainer that the court can hear the case that Marvel brought against them. As a result, unless the Supreme Court agrees to take their case, the New York Kirbys are done.

However, the appellate court reversed the lower court on the jurisdiction issue, finding that the New York district court did not have jurisdiction over the California Kirbys, Neal and Lisa. This is what prompted assertions that the California Kirbys could still prevail by filing suit in California and re-litigating the case in a more favorable forum.

However, as the Second Circuit observed in its opinion, this is not likely to occur. Barring reversal by the Supreme Court, a federal court in California is most likely to consider itself bound by the Second Circuit’s ruling in this case. As a result, the Second Circuit’s lack of jurisdiction over the California Kirbys would make no practical difference on the overall outcome.

Even if this weren’t the case, the legal standard in the California federal court — the Ninth Circuit — is not as favorable to the California Kirbys as some seem to believe. The Ninth Circuit was actually the first court to apply the legal standard used by the Second Circuit to find that Kirby’s Marvel material was work-for-hire, and the circuit’s commitment to applying this standard has remained relatively firm. Perhaps the most notorious example is the 2005 case of Twentieth Century Fox Film Corp. v. Entertainment Distributing, which found President Dwight Eisenhower’s memoirs to be work made for hire owned by Doubleday.

Golden and Silver Age Freelancer Copyright

How could the law get to the point where even a president can’t own the copyright to his own autobiography?

The Marvel v. Kirby court provides a few hints in its comprehensive overview of how courts have interpreted the 1909 Act on works made for hire, though as is all too often the case the opinion focuses on the letter of the law with little regard for its underlying principles. Even if history isn’t your particular cup of legal tea, you might want to check this one out. It’s an epic judicial monologue that could actually help the Kirby family’s case.

As the court notes, the concept of work-for-hire originally applied just to material created by employees within the scope of their employment. This was a direct outgrowth of the language of Section 24 of the 1909 Act, which referred to renewal of a copyright by “an employer for whom such work is made for hire.”

Limiting the work-for-hire concept to traditional employment relationships left the courts with a dilemma: what to do with material created by freelancers at the request of a commissioning party.

The Second Circuit’s solution was a compromise that eventually went viral. In a 1939 dispute discussed in more detail here, Yardley v. Houghton Mifflin Co., the court concluded that the purchaser of a mural by freelance artist Charles Turner also bought the right to reproduce the two-panel “cartoon” on more portable media such as postcards. Accordingly, the court established the following default rule: Unless the contract stated that the creator retained the copyright, a freelancer automatically assigned the copyright to the commissioning party.

But this did not mean that the material was work made for hire. The fact that the creator assigned the copyright implied that the creator initially owned it. Accordingly, the court later confirmed another principle implicit in its 1939 ruling, namely, that a creator retained the right to renew the copyright upon the expiration of its first 28-year term. For example, the 1955 case of Shapiro, Bernstein & Co. v. Jerry Vogel Music Co. involved a composer who wrote new lyrics to a previously copyrighted song as an independent contractor. The basic legal framework was so well established that none of the disputants in the case contested it: The copyright in the lyrics was automatically assigned to the company that commissioned them, but the composer retained the right to renew the copyright at the end of its first term.

The right to renew the copyright of a previously assigned work was central to what are arguably the two most significant comics-related creators’-rights cases of the Golden Age. In the mid-1960s, Jerry Siegel filed to renew the Superman copyright and Joe Simon filed to renew the copyright to Captain America. Neither of their subsequent legal disputes attempting to enforce these claims was rejected on the grounds that such a filing was inherently improper. By that point in time, a freelance creator’s right to renew was well established, and Simon was able to parlay it into a favorable settlement with Marvel in 1969.

Siegel was less successful, and his case has a direct connection to the decision by the Second and Ninth Circuits to abandon the longstanding default rule that gave freelance creators a copyright interest in their commissioned work.


Retconning Work-for-Hire

To recap, up through the time Jack Kirby was creating the material at issue in the Marvel lawsuit, the default rule in the Second Circuit was that, barring a contract stating that the creator kept the copyright, a freelancer automatically assigned the copyright to the material’s purchaser. However, this assignment, or transfer, of copyright was only for the first term. The freelancer still held the right to renew the copyright for the second term.

T129_AresThe story of this default rule’s undoing begins in 1965 with an entrepreneurial illustrator named H.L. Baxter. In the Ninth Circuit case of Lin-Brook Builders Hardware v. Gertler, Baxter had drawn illustrations for ads and catalogs for Lin-Brook Builders, which in turn sued a competitor who place similar pictures in its own catalogs. Concluding that the copyright in these illustrations did indeed belong to the commissioning company, the court made an assertion that would have ripple effects throughout a number of cases, including Marvel v. Kirby:

In the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the title to the copyright shall belong to the party at whose instance and expense the work is done.

This may sound similar to what was before then the existing rule that merely assigned the copyright to the commissioning party, but in the broader context of the case the court appeared to be saying that illustrations were in fact work made for hire. The title wasn’t something that was transferred. It was something that the client always owned.

A year later the Second Circuit followed suit, once again with a case involving graphic art. Brattleboro Publishing Co. v. Winmill Publishing Co. involved a newspaper called the Reformer that designed ads, including illustrations, for its advertisers. One of the advertisers placed a photostatic copy of such an ad in a rival paper, which led to an allegation of copyright infringement.

The Second Circuit concluded that although the advertiser was obviously not an employer, it should nonetheless own the copyright as work made for hire. From the court’s perspective, basic principles of fairness called for this outcome:

It would be unfair in these circumstances to place the burden on the advertiser; it is far more equitable to require the Reformer to provide by express agreement with the advertisers that it shall own any copyright to the advertisements.

Supplementing this appeal to fairness, the court once again invoked the magic phrase that first appeared in the Lin-Wood Builder case, at least in the copyright context: “instance and expense.”

If the outcomes in these cases seem reasonable, that’s probably because they were. Sort of. Both of these cases could have, in effect, reached the same outcome by applying the old default rule, which would have assigned the copyright to the commissioning party. However, these rulings essentially rebooted the traditional work-for-hire standard and retconned the earlier cases, claiming that a legal standard that had been considered clear for decades was in fact ambiguous.

What followed was a retroactive re-interpretation of previous cases to imply that an automatic assignment of copyright while retaining the right of renewal actually meant that commissioned material is in fact work made for hire if it met what came to called “the instance-and-expense test.”

This shift in legal standards did not need to occur. In these mid-1960s cases contradicting the old default rule, the artwork in dispute had a relatively short marketable life span — reclassifying the material from an assignment of the freelancer’s copyright to work-for-hire had no rational relation to the interests at stake. Nonetheless, this new approach to freelance material would soon have dramatic implications for creators seeking to exercise their renewal rights.

Siegel v. Kirby

To see how, we need only look to the two cases that the Marvel v. Kirby court describes as having unambiguously established the reversal of the old default rule that freelancers merely transferred their copyright to the commissioning party for a single term.

The 1972 case of Picture Music, Inc., v. Bourne, Inc. concerned renewal of the copyright to the song, “Who’s Afraid of the Big Bad Wolf?”, from the Academy Award-winning 1933 Disney animated short, Three Little Pigs. In this case, a woman — worth noting, by the way — who helped write the song was denied co-author status on the grounds that her personal contribution was in fact work for hire. Formally recognizing the instance-and-expense standard for finding an independent contractor’s material to be work made for hire, the court concluded that the song actually belonged to the corporation and the man who supervised her creative contributions.

The other paradigmatic model for the instance-and-expense test is none other than the 1974 case of Jerry Siegel and Joseph Shuster v. National Periodical Publications, Inc., in which the co-creators of Superman unsuccessfully attempted to renew the copyright to the hero they had fatefully sold. The crux of the Siegel opinion was the relation between the federal law of copyright and the 1947 state-court ruling that Superman was work-for-hire material whose sale included the right to renew the copyright.

In the co-creators’ favor, the court found that the federal law of copyright trumped the lower court’s work-for-hire finding. In its place, the court applied the instance-and-expense test, concluding that Superman was created years before Siegel and Shuster signed the 1937 employment contract making them — you guessed it — the company’s employees. Because Superman was originally prepared outside the scope of their employment, the company’s subsequent contributions to publishing the pair’s newspaper strips in comic-book form were not sufficient to create a legal presumption that the material was work made for hire.

Nonetheless, the Second Circuit did not concede that Siegel and Shuster had a right to renew the copyright in the material they had assigned to the publisher. Although federal precedent established that copyright renewal could not be transferred to the publisher absent an express reference in the contract, the court concluded that this aspect of federal law did not trump state law governing the conveyance of rights in the contract. Because the New York state court found that Siegel and Shuster had sold the renewal right along with all other rights back in 1938, the appellate court ruled that they could not exercise what would otherwise have been their right to reclaim the copyright.

Within the comics community, Siegel served to confirm that our legal system was fundamentally rigged against creators. Established precedent regarding the right of renewal was conveniently set aside, sending a message to all corporate rights holders that the law would find a way to enable them to keep their most valuable properties. Even the tentative concession that Superman might not have been work made for hire worked against other freelance creators, the vast majority of whom would not be able to prove that they had created their characters years before they started supplying stories or art to a publisher.

It’s a tradition that continues to this day, including the recent Bizarro-Siegel appellate ruling in the Gary Friedrich case. The Second Circuit may have disagreed with a lower court’s finding that Friedrich had sold the renewal right, but it went on to state that in applying the instance-and-expense test, “a jury could easily conclude from these facts that Ghost Rider was a ‘work made for hire’ and thus that Marvel was the sole statutory author.”

The post-1965 default rule for freelance material under the 1909 Act was aptly summarized by a later court as follows: absent a contract expressly stating otherwise, “whenever one person bought authorship services from another, the seller was a copyright ‘employee’ and the buyer was a statutory ‘author.’” Since most comic-book creators from the ’30s to the early ’70s seem to have worked without a contract, the Second and Ninth Circuits had effectively shifted billions of dollars in intellectual property from its creators to their clients.

(Continued on next page)


64 Responses to Taking Back the Kirby Case

  1. patrick ford says:

    One thing I found strange about the appellate courts ruling is it seemed to accept the idea Kirby was not paid for rejected work.
    Disney/Marvel and Lee claimed Kirby and all freelancers were always paid for any work assigned to them by Lee/Marvel. They seemed to think that was an important issue, were explicit in stating that rejected work was purchased, and never backed away from the assertion.
    So, in effect the ruling expanded the law beyond the scope of what Disney/Marvel were arguing.

  2. An interesting article. Let me play devil’s advocate on a couple of points.

    You write:

    This same arguments can be applied to the Second Circuit’s decision to shift from categorizing freelance work as an assignment of copyright to work-for-hire. By changing the law, the court unconstitutionally appropriated the copyrights owned by Kirby and other similarly situated freelance creators and gave them outright to their assignees. Moreover, the Kirby family’s termination rights case makes clear that the creators were not the only ones whose property was taken — the copyrights were taken from the creators’ heirs as well.

    You appear to be making the assumption that Kirby ever had any copyright interest in the material in the first place. As far as admitted testimony and evidence are concerned, Marvel commissioned Kirby to execute Stan Lee’s ideas. I believe the only things presented that contradicted this were speculation and hearsay from Mark Evanier and John Morrow, and the likelihood of that ever being admitted I think is pretty much nil. (I guess you also have some of Neal Kirby’s statements, but I can’t see those being allowed, at least not at trial, and for the same reasons.) Are you saying Kirby had a copyright interest in the material even if he was commissioned to just execute Lee’s ideas, as extensive as the work involved with that commission was?

    You bring up CCNV v. Reid. This case concerned the IP rights for a sculpture created in 1985. The 1909 law governing Kirby’s ’60s Marvel work wouldn’t be applicable to that, would it? That would be governed by the 1976 law, which mandates work-made-for-hire to be agreed to in writing before the work is created. You note further down that “the Second Circuit takes the position that the Court’s critique of the instance-and-expense test was mere dicta, a non-binding discussion.” Isn’t that a reasonable position to take if the 1909 law wasn’t applicable to the issues of the case at hand?

  3. Patrick–

    Toberoff tried to treat the rejected work as a big deal. I don’t know that Disney saw it as such. With commercial art and writing, revision work is part of the job. If you’re a writer being paid by the word, and the editor demands the final 500 words of an article be changed, you’re highly unlikely to be paid for both the original text and the revisions. I wouldn’t think the non-payment would impact the effort’s work-made-for-hire status if those are the conditions under which it was created. I’d have to go back and check, but I believe the lower court judge referred to a ruling that backs this up in her decision.

  4. Jeff Trexler says:

    @Robert As they say in the Vatican, playing devil’s advocate is doing the Lord’s work!

    As for CCNV, calling it dicta may be technically accurate — didn’t say it wasn’t – but it dodges the underlying principles raised by the Court — namely, that (a) it was inconsistent with the earlier default rule (i.e., a due process violation), (b) it imposed an arbitrary and overreaching standard based on control, and (c) it made rational copyright bargaining impossible. The courts taking the dicta position basically are saying, sure, it was irrational, overreaching and unconstitutional, but rules is rules, dammit. The retconning of the old default rule into something that had been ambiguous is a transparent effort at getting around the constitutional implications of acknowledging an outright arbitrary reversal.

    As for the issue of whether Kirby owned it, he wasn’t an employee. That’s pretty well established in the record. The only way the court can get around the old default rule in that circumstance is by applying the instance and expense test to treat him as what the court considers to be the functional equivalent. The net result is that the company gets to treat him as an independent contractor where that classification is convenient but an employee where it enables them to keep the rights. This is the sort of legal gamesmanship that the US government & NGOs have for years been condemning in other countries as contrary to the rule of law.

  5. Allen Smith says:

    Of course, the Marvel case was supported largely by the testimony of Stan Lee, who has financial ties to Marvel and whose credibility is therefore suspect. And also suspect because of inconsistent statements made in various interviews. Now, those statements would likely be considered hearsay for the purpose of work for hire, but they surely would be usable to impeach Lee as a witness.

  6. Allen Smith says:

    With the logical result that there would be insufficient evidence for a court, as a matter of law, to find for either side. Then it goes to trial.

  7. Allen–

    Jeff can correct me on this if I’m wrong, but my understanding is that the court has to accept Lee’s testimony on those matters as definitive unless there is admissible testimony or evidence that directly contradicts his statements. The only person who would have been able to provide admissible testimony contradicting Lee would be Jack Kirby himself. As for evidence, there just isn’t any. There’s no correspondence, and Lee’s statements on the central question of who initiated the material have always been consistent with what he said in deposition.

  8. Jeff Trexler says:

    The court has to rely on the admissible evidence in the record it has, yes. And let’s take it a step further and construe all of the admissible evidence in the light most favorable to Marvel.

    The baseline is still that Kirby was an independent contractor. Lee’s testimony was decisive insofar as it applied to the instance-and-expense standard. Knock out the post-1965 instance-and-expense work-for-hire presumption and the outcome of the case is rather different.

    Up until 1965, work-for-hire did not apply outside “traditional employment”–that characterization is straight from the Supreme Court in CCNV. The rule governing freelancers, barring a contract in which they kept the copyright to themselves or sold the right to renewal to the purchaser, was that freelancers automatically transferred title to the copyright by assignment for the first 28 year term but kept the renewal right to themselves.

  9. Jeff–

    Are you saying that in 1965, Congress passed and LBJ signed a law that created the instance-and-expense default rule? Or are you saying that the courts, in their interpretation of 1909 law, created it?

    If it is a court ruling that created this, I would think it would be binding on everything governed by the 1909 law regardless of whether the material predated the ruling or not. Political rhetoric notwithstanding, courts don’t legislate from the bench, they just interpret existing law, however expansively.

    Or am I wrong about that?

  10. Jeff Trexler says:

    If anyone is curious about how creators could renew copyright they didn’t register, my brief explanation is here.

    I also have a lengthier explanation of the jurisdiction issue that I plan to link or add here later.

  11. Jeff Trexler says:

    The courts created it, but in so doing they contradicted decades of precedent in a way that effected a massive shift in property rights from authors to assignees.

    That’s problematic on multiple levels, which is a big reason why the courts after 1965 start retconning the history with words like “merged,” “ambiguous,” “clarified” and so forth. From a linguistic standpoint, it’s like putting an octagonal red sign in the middle of a freeway and saying you merged an ambiguous go into stop. Well, no.

  12. patrick ford says:

    Jeff, Can you explain why the court has to, “construe all of the admissible evidence in the light most favorable to Marvel.” ?

  13. Has the instance-and-expense test ever been challenged in the courts? If so, what was the outcome?

  14. Allen Smith says:

    Agree, Robert Stanley Martin, that Lee had the advantage as the last man standing. Of course, were it me, I’d have followed this logical progression: Stan Lee, liar, ergo, facts are in dispute, go to trial.

  15. R. Maheras says:

    Not addressed in this essay is this simple fact: How can any Silver Age Marvel artist, or the artist’s heir, “prove” they created any given character during the 1960s — particularly if someone besides the artist testifies under oath THEY were, in fact, the creator?

  16. patrick ford says:

    Russ, As Jeff points out the appellate seems to say that even if Kirby (or another creator) created the characters on a freelance basis entirely on their own , the fact they were selling most of their freelance work to Marvel would imply they created the work with the intention of offering it to Marvel; and that is enough to designate the work once it is purchased as “work-made-for-hire.” That is a claim which is so far reaching it goes a long way towards making the termination rights written in the the 1976 law close to worthless.

    As to Lee’s testimony he created the basic ideas for the characters and plots completely on his own and then assigned them to Marvel. The trial court judge did write she based in ruling in large part on Lee’s testimony. She said, “Marvel’s case stands or falls on his (Lee’s) testimony.
    Marvel has no more physical evidence Lee created the characters and plots than the heirs have. It might even be argued (as Toberoff did) Kirby’s pages are the only physical evidence which is undisputed. There are no scripts, assignments, contracts, or anything else. There are only the pages which both sides agree were generated by Kirby before Lee, an inker, or letter ever saw them.
    Lee himself can offer no eyewitness testimony as to the actual creation of the pages because it’s undisputed Kirby created them at home in his basement studio. The only eyewitness testimony concerning the physical creation of the pages came from the Kirby heirs who were witness to their creation.
    Neal Kirby described the creation of an early version of Thor where the character had horns on his helmet.
    Susan Kirby (age 15 in 1961) described the creation of the Invisible Girl and testified her father told her he would name the character “Susan” after her.
    The trial court judge allowed their testimony, but didn’t give it much, if any, weight. The judge referred to their testimony as “the recollections of children” (teenagers would have been more precise).
    It is common for courts to give little weight to the testimony of the very young (or the very old), but in this instance the heirs and Lee were not even testifying about the same thing. The heirs have no firsthand knowledge of any dealing between Lee and their father, but are the only eyewitnesses to Kirby creating his work. Lee can only testify as to what he says he did, and his dealings with Kirby. Lee was not an eyewitness to the creation of Kirby’s work.

  17. Neal and Susan Kirby’s accounts don’t contradict Stan Lee’s version of things. The art they saw could very well have been work their father was doing after Lee gave him the assignments.

    Some of us are of the view that termination rights are bad law. If you sell something in a good-faith transaction, it should stay sold. I believe the U. S. is the only country that includes seller’s-remorse provisions in its copyright laws.

    Personally, even if I didn’t think termination rights were inherently bad law, I think the extensions have created an untenable situation if there’s a dispute. Conducting proper discovery fifty years after the fact is difficult if not impossible.

  18. Jeff Trexler says:

    “Conducting proper discovery fifty years after the fact is difficult if not impossible.” — Ain’t that the truth. The difficulties really come out in the Kirby case – at least in Siegel you had a document trail going back to Wonderman & Westchester, not to mention NPP in ’74.

    The Simon-Marvel Captain America case would have been quite interesting if it hadn’t settled.

  19. Jeff Trexler says:

    Right now, I’m focused on the issue of whether there’s a viable challenge to the summary judgment. For my purposes, the underlying facts are relevant to the extent that a petition based on primarily the courts’ interpretation of the evidence is not likely to get the case picked up for review.

  20. Jeff Trexler says:

    I used that standard in the above comment in addressing a hypothetical – I wanted to address the hardest possible scenario for the Kirby side and imagined the Kirbys moving for summary judgment on the freelance vs. employee issue.

    In the actual appellate court ruling, the court noted the following: “The evidence, construed in favor of the Kirbys, establishes beyond dispute that the works in question were made at Marvel’s instance.”

    That “construed” language is a reference to the standard for ruling on a summary judgment motion. From the Supreme Court in Diebold: “On summary judgment the inferences to be drawn from the underlying facts … must be viewed in the light most favorable to the party opposing the motion.”

  21. patrick ford says:

    Jeff, Have you ever looked into the court records concerning the various lawsuits Simon filed against Martin and Jean (Stan Lee’s aunt BTW) Goodman?
    Here is a longish account of what I’ve been able to paste together. I assume it would require someone going to the state and federal courts and a search of documents to gather all the facts.
    https://www.facebook.com/groups/6624070781/permalink/10151687846160782/?comment_id=10151771790105782&offset=0&total_comments=26
    Since Simon says there was considerable discovery the records might prove to be pretty fascinating. The idea of depositions from Martin Goodman and Jean Goodman ought to be of great interest to scholars.

  22. patrick ford says:

    Understood. I can’t fault you, I love hypotheticals.

  23. patrick ford says:

    As I understand it this is a, “look at the forest not the trees kind of essay.”

  24. Jeff Trexler says:

    I haven’t taken the opportunity to do that, though it is tantalizing.

    My overall thoughts re this are part of my upcoming essay, “Instead of Invading Iraq We Should Have Spent a Trillion Dollars on Scanning All Our Court Records and Putting Them Online for Free.”

    I say a trillion, because, you know, government overhead.

  25. Patrick–

    These Facebook comments on the Simon case are stuff you’ve posted nearly everywhere.

    I’m curious as to your sources for a lot of this. I’m dubious of a good deal of it as well. Let’s go through some of it.

    You write:

    Mark Evanier has said there was reason Kirby signed the document [the 1972 affirmation of Marvel's copyright ownership].

    EVANIER: Basically, Jack signed it under duress and you’ll have to wait for my full-scale biography to understand what that duress amounted to. It’s a very complicated story…

    In 1972 Goodman called in the $1000 balance (plus 6% interest) of the May 1968 loan to Kirby.

    Calling in a four-year-old demand loan is not “duress” by any stretch of the imagination. An example of duress would be threatening to break someone’s hands. Also, I understand that Kirby’s annual income in 1972 was in excess of $35,000. (That’s over $200,000 in today’s dollars.) An outstanding loan for less than three percent of his annual income should have been a snap to dispense of without signing anything.

    Marvel laundered about half of the $3750 paid to Simon through Simon’s attorney. By shielding the full amount of the settlement from Kirby, Marvel was obligated to pay Kirby only a fraction of Simon’s settlement, the portion which had been paid directly to Simon, rather than the larger amount laundered through his attorney.

    I’d really like to see the quotes from Simon about this. As it is, this sounds like a very fanciful extrapolation from the standard practice of disbursing money in a legal settlement or judgment, mated to speculation about Kirby’s dealings with Martin Goodman. I don’t know if the fault is Patrick’s, Joe Simon’s, or The Jack Kirby Collector writer Patrick claims to have gotten this from, but someone apparently doesn’t understand how disbursements are handled and is making crap up. In general, when one hires an attorney, the attorney creates a trust account for you as the client. If you win a financial settlement or judgment, the opposing side pays ALL of the money directly to your attorney. They don’t pay anything directly to you. The attorney deposits the money in the trust account. Your attorney then deducts expenses, the contingency share, and whatever else he or she is owed from the case. After all that is taken care of, the attorney closes the trust account and sends you a check for the balance. That’s not money “laundering” by any stretch of imagination.

    Out of curiosity, how was Marvel required to pay Kirby anything? He didn’t join Simon in the lawsuit.

  26. patrick ford says:

    Apparently no one has looked into the documents for those cases (state and federal).
    What is most intriguing is if complicated discovery was involved it’s near certain Martin Goodman gave a deposition. Goodman is a man almost devoid of a spoken or written record. A deposition by him would almost have to be fascinating.

  27. Mitchell Berger says:

    While there is probably more than one reason why this case was lost, it could only have been won if the Kirby’s had shown that Stan Lee was at best a very good editor rather than a co-creator of Jack Kirby’s contribution to the Marvel canon. The Kirby’s tried to use Mark Evanier and John Morrow to make that point. But the court saw them as fact witnesses rather than s experts and disallowed their testimony.

    It was (and perhaps still is) important to eliminate the notion that Lee and Kirby were a creative team. That the vaunted “Marvel Method” was a sham because it only worked with full-fledged cartoonists like Ditko and Kirby who wrote the comics they drew (and writing a comic is much more than just the dialog). To put it briefly, regardless of Kirby’s relationship with Marvel, Stan Lee was an employee – not a free lancer. As such, unless there was contract providing otherwise, anything Lee created belonged to Marvel. If Lee was a co-creator with Kirby it wouldn’t eliminate Kirby’s authorship claims, but it would make them hellishly complicated to prove and weigh. If Lee was merely Kirby’s editor that would make Kirby’s relationship with Marvel much more like a traditional publisher/author arrangement.

    There would still be other hurdles to clear – the Court did say “Questions of who created the characters are mostly
    beside the point.” But showing that Mr. Lee has lied for decades about his role in creating the foundation of the Marvel Universe would give the Kirby’s a significant equitable edge. The best way to do this is with scientifically based expert testimony and the science of attributing disputed authorship exists, it’s called Stylometrics. That’s the kind of evidence a court would entertain. Take away Stan Lee’s claims of co-authorship and Marvel has a much weaker hand and a greater incentive to offer the Kirby family a fair settlement.

  28. Pallas says:

    ” How can any Silver Age Marvel artist, or the artist’s heir, “prove” they created any given character during the 1960s — particularly if someone besides the artist testifies under oath THEY were, in fact, the creator?”

    Well the standard of evidence would be preponderance of the evidence- so they would just have to make a more plausible case than the other person. The burden of proof isn’t on them to “prove” anything so much as it is to be more plausible than the other party.

    Business records are not hearsay- so any records should be admissible, assuming the artist kept any.

  29. Jeff Trexler says:

    Tom Spurgeon has, as usual, thoughtful comments on this post. A quick excerpt:

    I’m always convinced there’s a better way to do things than to find the most favorable legal standing — or Internet justification — for doing something that happens to benefit you and then investing as much as you can in seeing that that way of doing things holds sway. It always seems to me that a lot of people look to the courts for best outcomes, and that’s not what the courts are there to do except maybe in a potentially broad cultural engineering sense over time.

    It’s a sentiment with which I happen to agree, except for one caveat. One of the post’s themes is–as I intended, anyway–that if you’re looking to courts to proclaim creators’ rights unto all the land, you’re more than likely going to end up wanting to smash the stone tablets of the law. Track down our panel on the Siegel case at the 2013 San Diego Comic Con for more on this — courts are expensive and the law is tricky in ways that most people don’t understand. The work-for-hire story is a case in point — an unclear 1909 statute; a clear default; an unexpected and unnecessary reversal of the standard; an insistence on sticking by a flawed rule for rules’ sake.

    This has a direct bearing on Tom’s other point re resolving factual matters at such a late date. As you might have guessed, I love thought experiments–they’re crucial to devising effective legal strategies, both for transactions & in court. For the Kirby case, let’s suppose we have everything we need to prove that Kirby masterminded the whole Marvel Universe. Came up with the characters, roughed the scripts, did everything the most ardent Kirby advocate says really happened.

    The appellate court says it doesn’t matter. He was just doing his job. Remember the classic exchange in Mad Men over credit for Don’s award-winning commercial? Peggy Olsen: “But you got the Clio!” Don Draper: “That’s what the money’s for!”

    My one difference re Tom is that the system is supposed to be better. People aren’t wrong for looking to the courts in the abstract for the right outcome. That’s why they’re there. Whether the process works as intended, though, is an entirely different question.

  30. Mike Catron says:

    Jeff, this piece crystallized for me the evolution of the interpretation of copyright law, so I thank you for that, even as I try to take it all in. I also appreciate the fact that you took it to the next level by laying out one theoretical by which this institutional injustice might be corrected. So much of what I read on this topic is half-baked (or less) so I truly appreciate what you’ve done here, not merely providing a fact-based analysis but also adding a smidgen of hope for a better outcome. I hope the Kirbys and Toberoff found something in this article that gives them a little lift to keep going. I don’t know the Kirbys but I do know Toberoff a little, and I know him to be dogged and tenacious. Good luck to them.

  31. R.B. Lloyd says:

    Reading about this Kirby case since the early 80′s has taught me one thing. If I have a graphic novel idea or even the next Spider-Man or Hulk…..don’t go to Marvel or DC …..get a Kickstarter campaign and publish it independently!

  32. Knut Robert Knutsen says:

    In his book “Comic Book Makers”, Joe Simon says that the 1960′s suit was for Simon AND Kirby to reclaim Captain America and that it would be returned to both of them, in which case any settlement might go to both of them as well. I’m not sure.

    What Simon did say, was that Marvel fed Kirby a line about Simon trying to take back Captain America just for himself, and paid him off to let them keep “his” half (which meant they had full control regardless. And that they actually shortchanged Kirby by paying him less than they offered Simon.

    As it turns out, by the way the law was framed Joe Simon was actually the sole creator of Captain America for copyright purposes, as Jack Kirby got involved only after Simon sold the idea to Goodman (on the WFH side). So if Simon had pursued that argument back in the 1960′s, Marvel would have been unable to use Kirby to stop him from reclaiming Captain America.

    So by trying NOT to screw Kirby out of what he sentimentally felt he owed him as a former collaborator (but LEGALLY didn’t), Simon left himself open to being screwed by Kirby.

    Sad.

  33. Jeff Trexler says:

    @Mike Catron I’m glad this was helpful. The piece is admittedly on the long side, with a lot more technical law than I normally like to pile on in one piece, but as you say there’s been so much written about this issue that I thought the community might be interested in learning more about the backstory. It truly is a tangled tale.

    @R.B. Lloyd That’s a lesson a lot of folks are taking out of this history, and it’s certainly hard to argue with it! I wonder what the effect of start-up studios with more advantageous terms will be over the long term.

    There might be an Earth-2 out there in which Detective Comics, Inc. revised the Siegel & Shuster contracts in ’38 and ’39 not just by adding royalties, but by including a lifetime term & independent accounting. Small tweaks, but perhaps if that had become the industry norm decades ago the culture & perceived incentives today might be different.

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  35. patrick ford says:

    Kirby’s affidavit can be seen here:
    http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv00141/356975/66/15.html

    I’m not sure it offers any information which would have contradicted the specifics of Simon’s case. No one has ever taken the time to go to the state and federal court houses and examine the documents related to the 1966 (state) and 1967 (federal) lawsuits Simon filed against Martin Goodman and his wife Jean Goodman.
    Kirby says Simon was the editor in chief for Timely and he (Kirby) was a staff artist. He also says they were both on salary. Simon’s books and interviews reflect those statements.
    Kirby also says he thought what ever he, “did for Timely belonged to Timely.” This likely does not contradict Simon. Simon’s claim (and again no one has gone and looked at the case documents) was based on Goodman having failed to renew the copyright on the first ten issues of Captain America produced by Simon, Kirby and a host of others.
    There is no indication from Simon he felt any sentiment towards Kirby. Simon’s comments in his TCJ interview seem to indicate he felt the law regarded Kirby as co-creator.

    SIMON: Oh, I had the copyright. It’s right here. The first 10 issues.

    GROTH: Did you ever attempt legally to —

    SIMON: Oh, we went through the whole works. Very complicated series of lawsuits… Not lawsuits, it never came to lawsuits, but pre-trial examinations, and Goodman hired a very distinguished law firm. I met with all these young Harvard graduates, and we had a settlement.

    GROTH: I see. But you never secured the copyright —

    SIMON: This is a very complicated story. This is in the book, too. And it turns out some dirty little angles that Marvel pulled.

    GROTH: I see.

    SIMON: On Kirby, not on me.

    GROTH: Really?

    SIMON: Very dirty.

    GROTH: Was Jack involved in these pre-trial examination?

    SIMON: Yeah. They got him on their side.

    GROTH: You wouldn’t be willing to talk about that?

    SIMON; I would be very willing — its all in the book — but the thing is, it’s such an important story in the book that has never been told before. Even Kirby doesn’t know the reason that I settled.

    GROTH: Really?

    SIMON: Yeah. You know how to copyright works if there are two authors? One author renews, the other author is entitled to complete 50 percent of all negotiations, profits, sales, that type of thing.

  36. Simon’s claim (and again no one has gone and looked at the case documents) was based on Goodman having failed to renew the copyright on the first ten issues of Captain America

    People may not have looked at the case documents because they may not be available. Doesn’t at least one of the parties in the suit have to authorize their release to the public?

    If Goodman failed to renew the copyrights, those Captain America stories would be in the public domain. They’re not. Marvel still owns the copyrights for them.

    In the 2003 appeals court decision for Marvel v. Simon (click here, Simon’s 1967 lawsuit is described thusly:

    Simon sought a declaratory judgment that he, as the author of the Works, had the sole and exclusive right to the renewal term of the copyright in the Works. [...] He also sought injunctive relief to prohibit the Goodmans from applying for renewal registrations of the Works.

    It doesn’t look like Goodman failed to do anything. Simon was trying to prevent him from renewing.

  37. Also, it doesn’t appear that Simon was portraying Kirby as the co-author in either suit. Kirby wouldn’t have been legally entitled to anything Simon got in that instance.

  38. Jeff Trexler says:

    @Robert Stanley Martin – in regard to your earlier question re challenges to the instance-and-expense test under the 1909 Act, it has been challenged, but thus far to no avail. The narrative I summarize here–with my own additional info drawn from the underlying precedent to explain the context for each decision– is partially drawn from cases where it had been challenged. Folks have petitioned the Supreme Court for review, but the response has been to deny cert.

    There are a couple ways you can look at that. One is that the doctrine is for all intents & purposes fixed, which is why a company such as Marvel might feel so confident in the outcome as to take the initiative of filing suit first. The other way to see it — the Court just hasn’t seen a convincing challenge yet.

    My take in the above piece is the latter. The Court has already implicitly criticized it in CCNV, appellate courts have become too comfortable with monologuing the “the rule was that but now it’s this” narrative, and termination rights have revived the issue in a way that has a lesser likelihood of undoing any deals made under the more recent standard. The issue practically screams out for review. Thing is, there’s a lot of inertia for the old way, so my sense is that a successful petition is going to have to try a new approach.

  39. Kit says:

    Hi Jeff – this post has had all copyright assigned to Facebook, who are blocking access to outside readers.

  40. Jeff Trexler says:

    Kit, thanks for noting this. Here’s the text:

    Siegel and Shuster had rights in the material as an unpublished work; they conveyed all of their rights in the property–including the copyright title and, per the courts, the right to renewal-to Detective Comics, Inc., in 1938, which in turn registered the copyright & triggered the term.

    Federal courts have long stated that the right to the title of the copyright for term 1 and the right to renewal were separate. This includes the right to register the copyright in its first term. Action #1 was registered by Detective Comics, Inc., but the 1974 appellate ruling makes clear that were in not for the 1948 Westchester ruling, Siegel and Shuster would have been able to renew the copyright. So. Close. The state court ruling had no bearing on termination, which is why the Siegels were able to proceed with their lawsuit and might have won were it not for the settlement.

    The same goes for Simon’s renewal filing for Captain America, which is no doubt a big reason why Marvel settled twice, in 1969 and again in regard to termination rights.

    For reference, here’s a document I’ve uploaded with the Action/Cap registrations plus an illustration of term-one registration versus renewal rights from the Vogel case cited in my Kirby piece: http://www.scribd.com/doc/161656445/Copyright-Renewals-and-Registration-Vogel-Action-Captain-America

  41. patrick ford says:

    Jeff, Do you have any documents concerning either Joe Simon’s application for renewal, or the two lawsuits he is said to have filed in 1966/1967.

  42. Jeff–

    I think it’s dangerous to speculate about why any case gets settled. Settlements happen for all sorts of reasons.

    I’m not sure Marvel has ever been all that worried about Simon. It’s been reported that all he got in 1969 was $7500, which is the equivalent today of just under $50,000. That’s not much of a settlement. With the more recent case, they could very well have felt that fighting it out wasn’t worth the potential PR damage, particularly if Simon’s settlement demands were modest. I can speculate, too. We just don’t know.

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  45. Lord Byron says:

    I don’t want to be the one to leave an unpopular comment by any means, nor do I wish to play either devil’s advocate or staunch Lee supporter- many good points were raised in both this article, and the comments above. However, I’ve been so interested in this case lately, both as amateur comics historian and former criminal law student. So, I’ve been pouring myself into as much interview material as I can find, both of Lee and Kirby…

    What I’ve found, and what I feel the largely and understandably pro-Kirby crowd is perhaps overlooking, is that, whether you agree or believe it or not- Lee’s story does NOT change or contradict itself, hardly at all. As far back as 1965-1968, he is saying the same kind of things he says in the 1990s, early 2000s, whatever. I think you’ve got to remove your bias and see it from the court’s standpoint- they have no feeling for anything other than factual statement, evidence notwithstanding about both men’s resumes, output, or anything else.

    Kirby, on the other hand, changes stories quite extremely, often when provoked or, yes, instigated by Gary Groth in numerous interviews. While WE know that he was a man of extreme pride who was wronged, ridiculed, and betrayed by Marvel- which explains his contradictions- you’ve got to consider that the court will not care about that. Go and read ‘Stan Lee Interviews’ or the TwoMorrows collection ‘The Stan Lee Universe’, which are just two of the several references I’ve been hitting. Fantagraphics own collection of Kirby’s TCJ Interviews show enough contradictions to potentially harm further suits.

    Again, I am not defending Lee whatsoever! It just bothers me to see so many passionate and well-informed people fail to bring this up. In many ways, Kirby is hurting Kirby. I think Roz and Groth could see how humble, how restrained, how controlled of his rage he was, and sometimes urged him to get angry- and, like everything else, when Kirby got angry, he got GRANDIOSE. Groth had a bit of his own bias involved in that instigation, too- like it or not.

  46. patrick ford says:

    THe comments about Lee’s story not changing is completely inaccurate. A great deal of time was spent by Marc Toberoff in a Dec. 2010 deposition going over Lee’s comments made back in the ’60s and comparing them to his May 2010 deposition. Most of Toberoff’s deposition of Lee is hidden behind a protective order. It’s evident Toberoff went over at least three dozen different exhibits with Lee pointing out contradictions. Lee explained his 2010 version is different because back in the old days he knew Kirby would read the interviews and “wanted to make him feel good, like we were doing it together.” Toberoff’s deposition of Lee went on for close to 250 transcript pages of which fewer than thirty were made available to the public. Near the end Lee is groaning that he feels like he’s seen a thousand exhibits.
    The idea Kirby’s story changed is largely inaccurate. Kirby was saying as early as 1969 while he was still at Marvel that he created the characters. The idea Groth manipulated Kirby is even more inaccurate. There are interviews with Kirby by Leonard Pitts, Mark Borax, Howard Zimmerman, and many others from the same era where Kirby relates many of the same stories he told Groth.

  47. patrick ford says:

    And personally I would love it is people would not begin posts with a preamble explaining they have no dog in the fight, and then end their post by reminding everyone they have no dog in the fight.

  48. James Romberger says:

    I not only believe that Kirby was telling the truth as he knew it in his interviews with Gary Groth, I agree with his take on his “collaboration” with Stan Lee. Kirby was the primary writer for the overwhelming majority of those works in every way that counts; Lee most often just added a gloss of overwriting, though he unfortunately would occasionally derail Kirby’s intent, most likely because he didn’t understand what Kirby had in mind and had directed with his profuse and very explicit margin notes—or Lee just preferred to add sexist, jingoistic and juvenile drivel to the stories. For this questionable contribution, Lee unjustifiably took all of the writer pay and the lion’s share of the conceptual credit.
    In his more recent testimony that was the primary thing used by the judge to destroy the Kirby family’s case, Lee altered his more accurate earlier statements about the significance of Kirby’s role to deceptively claim that he had created the Marvel universe singlehandedly. I wasn’t a Lee fan before, but I hadn’t previously begrudged him his share of Marvel profits—-but for this act, he forever took on the role of a major villain in the matter.

  49. Mike Hill says:

    There can be only one unbiased side to an argument, and unfortunately if the amateur comics historian calls it first, even if he’s not defending Lee, it falls to the Kirby side to take up the biased position. It’s gratifying to learn, however, that there’s a “pro-Kirby crowd,” and someday we may be numerous enough to educate the public, amateur historians notwithstanding.

  50. Mike Hill says:

    Before I ever read the TCJ Kirby interview, I’d been told that Jack was speaking out of bitterness and anger, and that Gary Groth egged him on. If you actually read the interview, it becomes apparent that the two men are joking and having a good time, and Kirby is far from speaking out of anger. The interview’s reputation as bitter rantings is as much a part of the Lee mythology as the possibility that Stan would consider suing Jack and Roz over it (as if he’d be permitted to do so by his handlers).

  51. patrick ford says:

    Comments about Groth “egging 0n” Kirby are simply uninformed. There are a lot other interviews from the same time period where Kirby says the same things about Lee.
    At one point Kirby says in 1958 Lee was “just out of his adolescence.” Earlier in the same interview Kirby speaks of Lee as an annoyance in 1941.
    Are people really not capable of seeing Kirby is being sarcastic in speaking of 1958?
    The same with Kirby saying Lee had someone at the office write the dialogue in the comics. Why wouldn’t Kirby say that. It’s a way of making a point. Lee took the whole writers credit and page rate. Based on Kirby’s personal experience there was yet another person receiving no pay or credit writing the dialogue. Maybe Artie Simek.
    It’s called sarcasm.

  52. Allen Smith says:

    I think Jeff just missspoke. In a motion for summary judgement, the evidence is construed in a manner most favorable to the Kirbys, and the court is saying, so what? Makes no difference. As a matter of law, no matter that the evidence is construed in favor of the estate, Marvel should prevail. Is that not correct, Jeff Trexler?

  53. Allen Smith says:

    The way the messages are set up on this board, it’s difficult to follow any arguments in a linear fashion. God forbid that the Journal set up a message board like the one they used to have.

  54. George Duffy says:

    Great article and feed back to the article. I am writing a paper for my Business Law class and was wondering if you could change or amend the current copyright laws, how would you?

  55. Steibel says:

    George Duffy: “Great article and feed back to the article. I am writing a paper for my Business Law class and was wondering if you could change or amend the current copyright laws, how would you?”

    It’s a complex subject, but I’ll give you my short answer. Ideally I think an author like Jack Kirby should have the ability to pass his life’s work and a percentage of the revenues generated by his life’s work to his family for at least 1 or 2 generations. I think that’s fair and resonable; it’s a great way to reward creative people, and it helps create a thriving middle class.

    As of now, US law allows copyright protection for 70 years after the date of an author’s death; corporate material deemed “work-for-hire” is copyrighted for 95 years after publication. Before the 1976 Copyright Act the maximum copyright term was 56 years. Under that law, work published in 1957 would be passing into the public domain on January 1, 2014. I think somewhere between 50 and 70 years is a fair number if you have a healthy system in place where there is plenty of leeway for fair use, meaning I can’t put the whole Avengers movie on my website, but I can use clips if I am writing an article on the movie.

    Right now we face a complex challenge: how much copyrighted material can a regular citizen share online without violating the rights of the copyright holder? There are some who feel the internet should be wide open so as soon as an author puts a piece of information online it becomes part of the digital public domain — meaning all information should be free to use. On the other extreme there are those who think there should be draconian restrictions online and the internet should be heavily regulated — a system should be in place charging a fee or inflicting a fine on anyone who uses copyrighted material without permission.

    In my opinion we are now living in the wild, wild west phase of internet history where we have a large degree of freedom in terms of sharing information that is technically copyrighted. I suspect in the future there will be crushing censorship laws on the internet that will prevent average citizens from using anything that is copyrighted without permission or without paying for it. I suspect a mega-corporation that includes companies like Disney, Google, Microsoft, Apple, Amazon, and Facebook will merge and they will eventually own all digital data — you will have to pay them through the nose any time you want to use any digital piece of information you do not own. I think that’s where we’re headed so enjoy your online freedom while you have it.

    In a utopian world, I’d like to see creators reap some rewards from their creations during thier lifetime, and I’d like to see their families also enjoy the fruits of their parents’ labors for at least a few generations. I’m sure we have the know-how and technology to create a system where that can happen while still giving average citizens the right to use those works in a limited way for scholarship or journalism. Unfortunately we do not live in a utopian world, so I see the corporate power structure moving us in the opposite direction. I think the military industiral complex, the big banks, and the big megacorporations are going to create a world where it will be almost impossible to own your own intellectual property or use the intellectual properties of others without paying for it — everything will be funneled through the a corporate-contolled and corporate-owned internet so you will have to pay those gatekeepers every step of the way whether you are putting out your own ideas or writing about the ideas of others. Sounds Orwellian, but that’s where we are headed at the moment.

    So to get to your question: “if you could change or amend the current copyright laws, how would you?” I don’t know how to fix the system. Our fate is in the hands of the big banks, the big corporations, and big government as of today. We have to do what they say or they’ll cut off our power and our food. They want more money so if they charge us a fee to do everything online in the future, we’ll have to pay them and they will own that material if they want to (and they do).

    So really the only solution isn’t to change or amend laws that already support the system, the solution is to break out of the system and create new networks where creators share thier works with each other and support each other. That’s the only way future creators and journalists will survive without having to crawl on thier hands and knees to a company like Disney or Amazon who just bought the Washington Post. You’ll have to have an independent media where everyone supports one another financially. I suppose if there is an intellectual revolution we could fix copyright law so that it rewards individual creators, not the corporations they work for, but in our current socio-economic climate, sadly, that sounds like science fiction.

    So if I could ammend copyright law, I would have the big corporations keep detailed records of who created what and develop a system to reward those creative people during their lifetime and for about 50 years after they pass on (while maintaining generous fair use of material for academic or journalistic purposes).

    As it stands now, one day I think we will all be “work-for-hire” so all of our ideas will be corporate-owned. Of course that’s already happening, look what happened to Jack Kirby back in the 1960s. Once again, Jack was on the front lines of a battle.

  56. George Duffy says:

    Thanks so much for responding so quickly, this insight is much appreciated. (still digesting)

  57. Steibel says:

    George Duffy says: “Thanks so much for responding so quickly, this insight is much appreciated. (still digesting)”

    Just so you know, I thought you were responding to my article. I didn’t write this one, I do another column on Kirby at TCJ. I probably would have kept my yap shut but I thought you were asking me what I thought.

    I’m sure many might find my view “extremist” — that was just my take. The author of this article Jeffery Trexler might give you a different POV.

  58. George Duffy says:

    Another Question? Is there is a group or an organization that is a watchdog for the artist rights?

  59. Steibel says:

    Again, just so you know I didn’t write this article, I’m sure the author would be better able to give you legal answers to your above questions, my reply was more of a blue collar rant that might not be good for a class.

    George: “Another Question? Is there is a group or an organization that is a watchdog for the artist rights?”

    You can try the Comic Book Legal Defense Fund

    http://cbldf.org/f-a-q/

    http://cbldf.org/resources/

    http://cbldf.org/about-us/contact/

  60. George Duffy says:

    your information is appreciated, thanks.

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