Taking Back the Kirby Case

Reactions and Reform

The new default rule in favor of the commissioning party met with substantial resistance, not least of all in Congress. Among the systemic reforms put in place by the Copyright Act of 1976 was a provision establishing that a commissioned work is made for hire only “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

In addition, as noted above, Congress indirectly addressed the renewal problem exemplified by the Siegel case by creating the termination right. Although copyrights going forward would have a single lengthened term, authors and their heirs whose material was still in copyright as of the 1976 Act’s effective date — January 1, 1978 — would be able to reclaim the copyright for the remaining extra years. Moreover, creators of new material under the 1976 Act would be able to exercise the termination right 35 years after assigning or licensing their work.

One of the interesting things about the 1976 Act’s work-for-hire and termination right provisions is that they were actually drafted in a negotiated compromise with various industry representatives back in 1965. It was only after this compromise was reached and the media world was anticipating the enactment of termination rights that application of work-for-hire standards to freelance material became an issue in federal court — up until then, the notion of applying work-for-hire status to material not prepared by an employee was semantically incoherent.

This adds a new spin to a couple of things that started happening in the copyright work starting in 1965. Some companies started requiring creators to sign work-for-hire contracts. Part of this was a response to the renewal filings made for material whose value had surprisingly lasted beyond 28 years, such as the stories and characters in comic books — we see this, for instance, in Marvel’s 1969 settlement with Joe Simon and a related Marvel contract signed in 1972 by Simon’s Captain America co-creator, Jack Kirby.

More generally, the prospect of a new copyright act including the 1965 compromise also appears to have led to changes in the culture of freelancing contracts. Some corporate attorneys also started making work-for-hire contracts a normal part of freelance deals, in clear anticipation of a new requirement that work-for-hire status be in writing. The possibility also exists that some attorneys started arguing for this retroactive new work-for-hire rule as a means of preemptively gutting the termination right.

As the appellate ruling in Marvel v. Kirby illustrates, the reforms ultimately put in place in the 1976 Act are of little comfort to many creators and heirs whose material was originally copyrighted under the 1909 Act. The 1976 Act may now require express written terms to classify freelance material as work made for hire, but the Second Circuit can — and does — reach a different conclusion about earlier freelance creations.

Kirby for Hire

The Marvel opinion serves as a telling illustration of how the presumption in favor of the purchaser under the 1909 Act can prevent the exercise of termination rights. As for the operative legal standard, the Second Circuit summarizes the instance-and-expense test’s two eponymous components as follows:

• “‘Instance’ refers to the extent to which the hiring party provided the impetus for, participated in, or had the power to supervise the creation of the work.” (44)
• “The ‘expense’ component refers to the resources the hiring party invests in the creation of the work.” (46)

In assessing Kirby’s work, the court concludes that Kirby had a “close and continuous” (49) working relationship with Stan Lee sufficient to have constituted working at Marvel’s instance. Although Kirby occasionally produced material for other companies, Kirby

created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby’s creation of the works. (50)

In other words, despite Kirby’s selling material to other publishers — a hallmark of independent contractor status — the fact that Marvel was a steady client was sufficient to make all of the material that Kirby sold to Marvel work made for hire, even if Kirby had developed that material independent of any prior request or direction from the company. Accordingly,

Marvel’s inducement, right to supervise, exercise of that right, and creative contribution with respect to Kirby’s work during the relevant time period is more than enough to establish that the works were created at Marvel’s instance. (51)

As for whether Lee or Kirby — and in the case of Spider-Man, Steve Ditko — was most responsible for creating the characters that transformed Marvel from a struggling small business to a global entertainment empire, the court concludes the question is irrelevant. A finding that all of the Marvel characters are the product of Kirby’s creative genius would make no difference to the material’s work-for-hire status, since

the hired party’s ingenuity and acumen are a substantial reason for the hiring party to have enlisted him. It makes little sense to foreclose a finding that work is made for hire because the hired artist indeed put his exceptional gifts to work for the party that contracted for their benefit. (52)

The same goes for Marvel’s failure to return Kirby’s original artwork at the time of publication, an issue that the appellate court does not bother to acknowledge.

As for the second component of the test, the court concludes that Marvel’s payment of a page rate was sufficient to establish that the work was performed at its expense. The occasional rejection of some of Kirby’s pages was a sign of control, while the lack of royalties was a straightforward indication that Kirby did not have a financial stake in the material and Marvel bore the bulk of the economic risk.

By virtue of the instance-and-expense test, Kirby was in a far different position from what he might have expected from established precedent in the early 1960s and subsequent contractual language describing his earlier work.

captainamerica193For example, in 1972, Kirby entered an agreement in which he agreed to “assign” all of his rights in his Marvel work to the company. In the context of legal precedent prior to the shift to the instance-and-expense test, the language of assignment was consistent with the formalization of the 1909 Act’s default rule, according to which a freelancer assigned rights to the commissioning party unless the written contract states otherwise.

The Marvel court, however, concludes that the company was just covering its legal bases by having Kirby sign away copyrights he never owned. Or as the court puts it in the hip lingo of kids today, “we decline to infer from Marvel’s suspenders that it had agreed to give Kirby its belt.” The inclusion of a clause stating that Kirby’s previous work was work for hire is taken at face value, rather than, as with a similar provision in the the case of Joe Simon’s Captain America termination filing, a retroactive attempt to recharacterize the work that should be disregarded In the termination-rights context.


What’s Wrong with this Picture?

The Marvel court is surprisingly straightforward about what it is doing. At the time Kirby created the Marvel characters, it acknowledges, Second Circuit precedent indicated that a freelancer merely assigned the original copyright, which would have given his heirs the right to terminate the transfer and reclaim his copyrights. However, over a series of opinions culminating in the 1974 Siegel case, the court had shifted to a different rule, making the instance-and-expense test the basis for determining that freelance material was actually no different from work made by an employee.

If this seems unfair to you, you’re not alone. Attorneys, judges, and even Supreme Court justices have tried unsuccessfully to challenge this for years.

For instance, the Supreme Court has addressed the problematic nature of this approach in a 1989 case, Community for Creative Non-Violence v. Reid, which notes that some courts — including the Second Circuit — had departed from earlier precedent by applying the instance-and-expense test to freelance work.

The Court highlights two key issues with the shift to treating work by non-employees as work made for hire. One problem is that it was a relatively recent innovation inconsistent with the 1909 Act’s previously controlling precedent. For decades, including the period of time which Kirby, Steve Ditko, and other creators were producing innovative and now quite lucrative material for Marvel, the default rule was that the creator of a commissioned work holds the original copyright. Work for hire, in contrast, was a category applicable only to material prepared by employees.

In addition, the Court concludes that the instance-and-expense test is inconsistent with both the copyright statute and its underlying purpose, which is in part to provide a workable basis for bargaining between parties. By focusing on the purchaser’s control, the instance-and-expense test creates a situation in which the parties to a deal would not know the legal status of a work until after it was complete, forcing the creator to predict whether the material is likely to be considered work for hire or work with a valuable copyright interest to sell.

The explanation of the instance-and-expense test in Marvel v. Kirby is the latest in a series of rulings in which the Second Circuit and other courts layeth the smacketh down on Community for Creative Non-Violence. Because the Court’s precise ruling in that case technically concerned the applicability of the 1976 Act to earlier contracts, the Second Circuit takes the position that the Court’s critique of the instance-and-expense test was mere dicta, a non-binding discussion, thus leaving the Second Circuit free to go on its merry instance-and-expense testing way.

Another notable and more recent challenge can be found in the Ninth Circuit. In her dissent to the 2005 case finding that the autobiography of President Eisenhower was work made for hire, Judge Dorothy Nelson — former dean of the USC law school and the judge for whom I clerked after law school — counters the majority’s finding with an argument with direct relevance to the Kirby case:

As the majority explains, the 1909 Copyright Act does not contain a definition for the term “work-for-hire.” The majority describes how courts have developed the doctrine establishing the meaning of the term, and how that doctrine has evolved to encompass a broader range of employment relationships. As the majority acknowledges, this court-made doctrine initially held that only works created by traditional “employees” fell under the “work for hire” doctrine. It was not until the 1960s that this Circuit for the first time included work created by independent contractors in the scope of the “work for hire” doctrine. The presumption that a given work is “for hire” is simply that — a presumption, “based on the presumed mutual intent of the parties.” I conclude that as the law stood in 1948, it is unlikely that either party to the transaction viewed the sale of Crusade in Europe to Doubleday as the creation of a work for hire. No one has suggested that in 1948, when Eisenhower entered his deal with Doubleday, he was in a traditional employment relationship with Doubleday. Yet the law governing “work for hire” in 1948 extended only to such relationships. Thus, I fail to see how the majority can conclude that the parties intended the work to be “for hire” when that doctrine was understood to encompass only works created by employees.

What’s interesting about this argument is that despite its resonance with the Supreme Court’s own critique of the instance-and-expense test as the basis for finding freelance material to be work made for hire, the Court declined to grant cert and hear the case.

… And the Court Taketh Away

Given the Supreme Court’s history of failing to grant cert when appellants call attention to the retroactive application of the rebooted legal standard for work-for-hire under the 1909 Act, a successful challenge is likely going to require developing another line of argument. Ironically, the Second Circuit itself points the way for a new approach in a case conveniently omitted from its historical overview of the work-for-hire doctrine.

The case of Roth v. Pritikin involved a Siegel-and-Shuster-esque contract in which June Roth sold the rights to her recipes to a doctor whose book went on to become a multi-million-dollar bestseller. The contract was signed before the 1976 Act took effect, but Roth argued that Congress intended for the 1976 Act’s work-for-hire writing requirement to apply to all contracts in effect as of January 1, 1978, not just contracts written on or after that date.

The Second Circuit disagreed, citing two important constitutional provisions: due process and the takings clause.

Due process is an issue raised by both the Supreme Court’s historical dicta and Judge Nelson’s dissent — here, the Second Circuit was saying that the retroactive application of the 1976 Act would have deprived parties of their property rights arbitrarily or without sufficient procedural safeguards.

As for the matter of takings, the Second Circuit was arguing that the retroactive application of the 1976 Act would unconstitutionally deprive Pritikin of property rights — in this case, the recipe’s copyright as work-for-hire – for a public purpose without just compensation.

This same argument 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.

To a degree unparalleled in previous opinions analyzing this issue, the Marvel court is rather open about the fact that in 1972 the Second Circuit changed the default rule governing freelancers and work-for-hire under the 1909 Act. The opinion doesn’t try to mask what has happened by claiming that the new standard that began to emerge after Lin-Brook was just an expansion or merger of the old doctrine into the new. Rather, the Marvel ruling is clear: in the Second Circuit, it wasn’t until the line of cases running from Brattleboro through Siegel that the court fully established the instance-and-expense test for freelance work. Before then, freelancers had a right to take their copyrights back.

Some of you might be wondering why, if this is so egregiously unconstitutional, the Second Circuit and Supreme Court would have overlooked the due process and takings issues raised by its work-for-hire jurisprudence. There are several reasons for this, but perhaps the strongest is the ongoing evolution of the Supreme Court’s own jurisprudence on takings by the judicial branch.

The application of the takings clause to the appropriation of property by Congress, regulatory agencies, the executive branch, states and municipalities has a long and rich history. The focus on judicial takings is somewhat more recent. As a number of Supreme Court watchers have noted, the Court has shown an interest developing its doctrine in this area in recent years, most notably in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection. In this case, a plurality of four justices within a unanimous opinion concluded that when a judicial decision “that purports merely to clarify property rights” actually “declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”

Equally intriguing for our purposes is the ideological alignment on takings matters and the reason why the rest of the judges didn’t join the plurality on judicial takings. Conservative judges — such as Scalia, Roberts, Alito, and Thomas in the quotes above — are often inclined to take an interest in a takings case, since it involves the government ostensibly overstepping its bounds. More moderate and liberal judges tend to be a bit more reticent to curb takings, as exemplified by their decision to hold back on the matter until it was presented more directly in a future case.

The Marvel v. Kirby appeal could offer an attractive case for justices on both sides of the ideological fence to resolve the question of judicial takings in a mutually acceptable way. On the one hand, it is a documentable case of judges unilaterally depriving freelancers and their heirs of substantial property rights, including both the original copyright and the right to terminate the earlier transfer. In this case it’s all intellectual property, but as the court indicates in Stop the Beach Renourishment, property rights are property rights, no matter how intangible.

Yet Marvel v. Kirby is also a case that does not involve keeping the government from using specific property to promote the public good. It is instead a case that could be of interest to the Court’s more moderate and liberal justices, inasmuch as the nation’s leading copyright courts arbitrarily effected a massive transfer of wealth from creators and their heirs to companies already enjoying a superior bargaining position.

Moreover, previous cases involving the instance-and-expense test did not provide an underlying dispute with interests so compelling and current as the termination rights at stake in the Kirby dispute, which could be another factor increasing the odds of Supreme Court review. Both the 1976 Act and an earlier Supreme Court opinion have implicitly rejected the legal standard on which the appellate court relied. The Marvel v. Kirby case offers a way of addressing this issue without mucking up a host of earlier transactions. The purchasers of freelance work get to keep the assigned copyright for the entire length of the remaining copyright term — it’s just that now freelance creators and their heirs would be able to exercise their termination rights.

What Next?

When Jack Kirby returned to Marvel in 1976, his first Captain America storyline envisioned a country at risk of betraying its ideals. In Kirby’s epic “Madbomb” saga, an ostensibly benevolent elite conspires to brainwash everyone else into becoming “labor zombies,” gladly taking orders in exchange for a paycheck. Captain America and the Falcon managed to save the nation in time for its bicentennial, but Kirby’s own struggle to secure his rights as a freelance creator reached a less triumphal outcome.

There is much more that can be said about the Marvel v. Kirby appellate ruling, but for our purposes the most important takeaway is that this case is not necessarily over. There hasn’t been a 1909 Act copyright case raising such important and far-reaching issues for almost a quarter of a century, and the Kirby case could provide the perfect platform for a ruling that could make termination rights in pre-1978 material more than just a legal fiction for many creators and their families. Just as Jack Kirby revolutionized graphic storytelling, his family’s quest to reclaim his innovative creations has the potential to revolutionize copyright law.


63 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?

    • 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.

      • 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.

      • 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.

      • 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.

      • 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.

      • 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?

      • 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.

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

  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. 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.

    • Kit says:

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

      • 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

      • 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.

      • 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.

  6. 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.” ?

    • 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.”

    • 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?

      • 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.

  7. 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?

    • 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.

      • patrick ford says:

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

    • 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

    • 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.

      • 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.

  12. 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.

    • 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.

      • 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.

      • 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.

      • 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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!

  17. 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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  19. 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.

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  22. 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.

  23. 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.

  24. 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.

    • 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.

  25. 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.

    • 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).

      • 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.

  26. 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?

  27. 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.

    • George Duffy says:

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

      • 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.

  28. George Duffy says:

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

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