The Ultimate Nullifier?

On Monday the Supreme Court announced that yet another brief has been filed in support of the Kirby family’s attempt to regain the copyright to key Marvel properties. Have these briefs truly made it all but certain that the Court will not just agree to hear the case in the 2014-15 term, but rule that Jack Kirby’s creations were not work for hire?

To get the full significance of these filings it can be helpful to understand what they are. The technical term for the briefs that were filed is amicus curiae (plural: amici). This is Latin for “friend of court,” a description reflecting the fact that the person filing such a brief is not a party to the case.  Amicus briefs have become rather popular in recent years, and it’s not uncommon to read reports about how a particular brief is destined to change the world forever. This might be true in some instances, but such reports can also be the sign of a legal Funky Flashman — attorneys, academics and interest groups often use such briefs to promote their causes or themselves, and it is not uncommon for the filing of an amicus brief to be accompanied by an aggressive PR outreach.  This can serve any number of purposes, such as drumming up business, fundraising, pacifying members, or building a lobbying campaign for legal reform. Making an effective case for those with the most to lose may be beside the point.

As a result, the ABA Journal notes in a recent article, the filing of amicus briefs is not in itself a sign of momentum for either side. The Court can receive anywhere from several dozen to over a hundred amicus briefs on a single case, and some Justices view these filings as little more than flies in the judicial chardonnay. While having a respected author can increase the likelihood that the clerks and Justices might at least take an amicus seriously, that will not save it if the argument contains mistakes or merely repeats what the parties have already said.

Considered in this light, the four amici in the Kirby case could cut in a couple of ways. It’s conceivable that the amicus briefs could persuade enough Justices (or their clerks) that the Kirby case provides a good opportunity for the Court to address the question of whether the default rule for independent contractors prior to the 1976 Copyright Act was for their work to be creator-owned. It’s equally possible, though, that these briefs could be used to persuade the Justices that the Kirby case is weaker than it might have seemed.

The Ultimate Nullifier?

If you read my earlier TCJ.com article, most of the material in the amicus briefs should sound familiar.

The factual material regarding Kirby’s work is on the record. The amicus briefs also recapitulate the argument that the legal standard in Kirby’s day was for the work of independent contractors not to be work for hire, and they repeat the oft-made observation that the Second Circuit’s use of the instance and expense test to determine whether such work was work-for-hire is inconsistent with the Supreme Court’s 1989 case, Community for Creative Non-Violence v. Reid, typically abbreviated CCNV.  The majority opinion in that case sets for the basic destinction at the heart of the Kirby lawsuit: namely, that under the 1909 Copyright Act work for hire “referred only to work made by employees in the regular course of their employment,” but for commissioned works the creator, not the company, originally held the copyright.

Still, there was one essential difference between that article and the recent amicus briefs. The previous TCJ.com article was a thought experiment, not a court filing or a comprehensive law journal analysis. The aim was to see if we could come up with a new way to approach the Kirby appeal, since previous attempts to use the history above as the basis for nullifying the instance and expense test had failed. In writing that piece I made a deliberate choice to leave out some legal technicalities and historical counterpoints that I would have addressed in a brief for the Court, though the new argument presented in that article (the change in standards as a judicial taking) was adopted by Toberoff in his petition for review.

Marvel and the Court are likely not to exercise the same reserve, so to assess whether the amicus briefs really do represent a major shift in momentum I would like us, both here and in the comments thread, to engage in a different experiment — this time, I want to see if we can anticipate a viable challenge to the arguments in the amicus briefs. The aim here is not just to play devil’s advocate, which is always a useful exercise regardless of which side you believe to be on the side of the angels. I also want to explore whether the amicus briefs actually tee up certain counter-arguments by emphasizing certain arguments and pointing to source material that arguably refutes the briefs’ own assertions.

There are a number of possible points of attack, but let’s start one with one of the most substantial. If you’ve been reading the media commentary, perhaps the most celebrated of the Kirby amicus briefs is the one filed by Bruce Lehman, the former head of the U.S. Patent & Trademark Office under President Bill Clinton era. According to Lehman, the appellate clearly erred by disregarding the legislative history of the 1909 Copyright act and the Supreme Court’s opinion in CCNV, which establishes that the work is made for hire only when done for a “traditional employer,” a phrase that Lehman asserts has from the beginning been limited to a situation in which the employee has a full-time salaried position.

This may sound convincing, but if you dig into the sources cited in Lehman’s brief the facts arguably do not support this definition. Consider the following example from the legislative history for the Legislative History of the Copyright Act of 1909, the six-volume set from which Lehman selectively quotes in his brief: “if a person employs another for valuable consideration to make a portrait … the copyright in such portrait shall belong to the employer as if he were the author, in the absence of any agreement in writing to the contrary.” Even in the slower-paced days of a century ago, hiring someone to paint your portrait did not involve hiring an artist as a full-time salaried worker — you commissioned an independent contractor, much as you might do today, and in so doing you became an employer.

If it sounds strange that hiring a freelance artist could make a person an employer, that’s because we are listening with modern ears — traditional employment, like traditional marriage, didn’t always mean what it does today. To cite just a couple of the countless examples from time past, an 1899 Yale Law Journal article entitled “A Recent Attempt to Limit the Independent Contractor Doctrine” noted that “an employer is not liable for injuries resulting from the negligence of an independent contractor employed by him.” Going forward a few years, the federal discourt court in New York deemed Yale University Press to be the employer-author of a work-for-hire book series, since because it was responsible for hiring the individuals who put together the commentary and over 6000 photographs in a fifteen-volume set celebrating the nation’s 150th anniversary.

In fact, the Supreme Court itself in Footnote 8 of CCNV dismissed attempts to limit employment to a salaried work, a definition that the Court found arbitrary and inconsistent with its historic usage in the law. This is not surprising when you track the evolution of the words “employer” and “for hire” from their broad nineteenth-century use to the more bounded scope of the terms in contemporary law. At the turn of the twentieth century, an employer was anyone who paid someone to provide goods or services. “For hire” covered paying a cab driver for a ride, a sex worker for a night, an artist for a painting or a full-time engraver to print pictures in your books. Likewise, a salary was not necessarily just set pay for a full-time employee — it was payment that lasted beyond the short day-or-so span of wages, and it was used equally for factory laborers and a long-term retainer for a doctor or attorney.

The narrowing of these terms to what they connote now is an example of what linguists refer to as semantic drift — in particular, the phenomenon of specialization, in which a word ends up referring to part of the original whole. Since back in the early 1900s the term “employer” equally encompassed both hiring an independent contractor and having a worker under your continuous control, the people who worked together to draft the 1909 Copyright Act wrestled with how to adapt the pre-existing law of independent contractors, whom the employer did not control and for whose acts the employer was not legally liable, to the rapidly changing world of copyright.

And here I want to make a brief aside to help us understand precisely who these people were. When  most people talk about legislative history today, they’re referring to material set forth in Congress, such as a committee report or floor debate. The material in Legislative History of the Copyright Act of 1909 contains much more than that. Technology used in the production of copyrighted material was rapidly evolving at the turn of the twentieth century - film, audio recordings, and advances in printing and photography were putting new demands on old law. To address these issues, the nation’s first Register of Copyright, Thorvald Solberg, met with attorneys, government officials, leaders of industry trade associations, and librarians (!) to discuss and devise a workable draft.

Lehman, following the standard streamlined history discussed at greater length in my earlier TCJ piece, asserts that their answer to the work-for-hire question was simple. He observes that the Legislative History of the Copyright Act of 1909 notes that the payment of a salary “entitle[d] an employer to all rights to obtain a copyright in any work performed during the hours for which such salary [was] paid,” while “the independent artist” held the copyright. Lehman further asserts that an subsequent study by the Copyright Office in the early 1960s reached the same conclusion — in contrast, the “instance and expense” test now used to determine whether material by an independent contractor was work-for-hire was a neologism coined by courts in the mid-‘60s without any basis in the law or legislative history.

These quotes from the legislative history are like waving a cape in front of a bull - they dare the opposing attorneys to make a direct attack. And as it turns out, that’s rather easy to do. Going to the page in the legislative history referring to “the independent artist” reveals that it’s part of a longer discussion contrasting an artist whose work is commissioned to “the independent artist or man who makes a painting for art’s sake.” It is, in brief, arguably the difference between hiring Jack Kirby to create comics for your company and buying the Superman material that Siegel and Shuster had cooked up on their own four years earlier.

The very next paragraph in this discussion suggests a way to deal with this consistent with emphasis on control in the law of employer liability for the acts of agents: namely, it proposes establishing that the copyright goes to “the person at whose expense such works were made.” Accordingly, a draft memorandum stated that the publisher of work “which has been produced at his instance and expense may claim copyright in the same.” Likewise, in the same discussion, Solberg reads another summary statement noting that the definition of author includes “a corporate body with respect to the publications of such corporation, and a person or persons at whose instance and expense a composite work is produced.”

Quotes such as these — from the very source that Lehman sets forth as the authority for understanding employer work for hire under the 1909 Copyright Act — appear to refute the claim that the Second Circuit in Kirby applied an ad hoc standard with no historical support before the mid-1960s. Although the cases that first adopted the instance and expense test did not cite their source, it’s evident that at least they were echoing the Act’s legislative history. What’s more, when you read further in this history, you discover that these words weren’t incorporated into the final text after a committee from the New York City Bar argued that specific definitions were articificially limiting - the use of such general terms as employer and work for hire was designed to broaden, not narrow, their reach.

Putting all of these pieces together, we get a picture that’s far different from the heated condemnation of the Second Circuit’s high-handed defiance of so-called traditional standards. The scope of work-for-hire was originally rather wide, but over time the concepts of employer and independent contractor began to differentiate in ways that prompted legal reformers to develop stronger safeguards for copyright protection for freelancers. The result: the law governing work for hire in the 1976 Copyright Act, which replaces the instance-and-expense standard under the 1909 Act with the statutory default rule that work-for-hire applies to material created by an independent contractor only if specified in a written agreement.

Apokolips Now 

At this point you might be wondering if the argument above can be refuted. Some of you may even find it hard to believe that the amicus briefs could have overlooked this material, especially given the legal firepower behind them.

These are fair questions, and for the remainder of this post I want give them the attention they deserve.

First and foremost, it’s essential to remember that no lawyer is infallible. The same goes for judges, government officials and folks like yours truly who write about law online. One of the first things you learn in law school, if the professor is doing his or her job, is to challenge everything you see or hear, since there’s a fair chance something has been missed along the way.

Equally worth remembering is that the Supreme Court Justices are not as likely to be impressed by a brief’s authors as the rest of us. Whatever the titles following their names the attorneys who write amicus briefs are guns for hire — the legal world abounds with former government officials who have parlayed their credentials into lucrative careers representing big-name clients. Hiring an impressive title is no guarantee that you’ll be hiring someone who is an expert in the details of your case, especially when you’re dealing with something so archaic as the 1909 Act.

Another lesser-known reality: legal briefs often aren't written or researched entirely (if it all) by their named authors. They could be the work of a junior associate or even an intern, then branded with the big name after a quick review.

As a result, it’s important to probe both factual and legal claims. Consider the assertion in the briefs that the Second Circuit - along with every other court that has considered this issue - is deliberately flouting the Supreme Court precedent established by CCNV.  It’s spectacular rhetoric, yet it’s also questionable in a way that doesn’t inspire confidence in the briefs’ overall credibility. In short, when a court files an opinion, the holding and the reasoning necessary to support it constitute binding precedent, but the discussion outside of that is considered to be non-binding. The holding in CCNV concerned the nature of work-for-hire under the 1976 Copyright Act, and to that extent lower courts must follow it. Nonetheless, when the opinion reaches back into the history of the earlier 1909 Copyright Act, that’s another matter. The lower courts tend to treat this as non-binding, and disregarding a statement that’s tangential to the holding is not necessarily an act of defiance. It can also reflect an awareness that justice calls for more than blind obeisance to an authority’s passing thought.

As for refuting the argument regarding employers and work for hire that is presented above, there are a couple possibilities. One is that it may not even matter -  Marvel might not mention these arguments and the Court itself may just stick with the usual quotes and cases. That said, there’s a decent shot that a substantial challenge will come either from Marvel or within the chambers of court. The Kirby side could use the material presented here to its advantage, but doing so would require more strategic nuance than calling the Second Circuit — the nation’s leading copyright forum — a wretched hive of scum and villainy. More on what could happen next will follow in my next TCJ post.


44 Responses to The Ultimate Nullifier?

  1. Not being legal at all – my question would be, if the argument of who is the employer is at whose expense was the work produced, then my mind asks this:

    As the work was not paid for until after production would that not lend weight to the argument that Jack Kirby owns the copyright as it was produced at his expense and bought after the fact?

    When looking at an artist who paints a portrait, usually they are paid part of their fee upfront as an advance or retainer. Similar as having a doctor or lawyer on retainer. This was not the case – Jack Kirby produced work that he then sold on and was paid for after it had been produced, potentially facing non-payment if it was considered unsatisfactory.

  2. Scott Grammel says:

    Wait — when did normal average workers in America EVER get paid BEFORE they do their jobs? And doctors on retainer? Never heard of it. Even the lawyer analogy only serves to underline how unusual such a practice is.

    The tortuous efforts of pro-Kirby/anti-Marvel adherents to convince themselves that the law, and not just some kind of moral and/or ethical fairness, should be on their side in this larger fight, get a bit silly at times.

  3. patrick ford says:

    Iestyn, There isn’t any doubt Kirby’s work was produced at his expense. He bought the paper and pencils and expended his time and labor.
    It’s the published comic books which were produced at Marvel’s expense.

  4. Jeff Trexler says:

    Iestyn, payment schedules cut both ways – an employee (and I use that as we would today, when a person is under the employer’s control and so forth) would have been paid wages at the end of the day or week, but that would not have made the person less of an employee for purposes of work for hire.

    The way folks talk about salary in the burgeoning industrial age is interesting – the times they were a changing, and so were the way people paid, got paid and described the transaction.

    Scott, as they say the past is a different country! I sometimes think of it as Earth 2 – the classic one, not the one today. Same names, different referents.

    Patrick, that’s obviously one of the issues at the heart of the case!

  5. patrick ford says:

    Jeff, Correct me if I’m wrong but is it not true an employer has to pay for work done on salary or for contracted work? The employer can fire an employee at the end of a forty hour week, but they still have to pay the employee for those forty hours.
    At the lower court level Marvel made a concerted effort to claim Marvel “always” paid for any work assigned by Lee. This was not specific to Kirby. Lee testified every creator in every case was always paid even if their work was rejected. That testimony did not come about in passing. The transcript suggests Lee was asked by Marvel attorney James Quinn to give testimony tailored to that narrow point at the very end of Marc Toberoff’s Dec. 2010 deposition of Lee.
    Lee’s testimony was contradicted by his own brother as well as Dick Ayers, Gene Colan, and Joe Sinnott, all of whom sold freelance work to Marvel during the years in question (1958-1963).

    One of the odd things about the 2nd Circuit appellate courts ruling is it contained language acknowledging Marvel did reject creative work. This was mentioned in the same kind of off hand way the ruling mentioned that in the courts opinion it was not significant if Kirby did create work on spec.

    So the appellate court ceded two points to the heirs’ case, two points which Marvel vigorously contested, and then said those two points did not assist the heirs’ case.

  6. patrick ford says:

    In short-hand the Appellate Court basically said:

    “Okay, for the sake of argument let’s say Kirby did create the characters, and let’s say he did it all on his own, and let’s say Marvel could have rejected anything they wanted without paying Kirby a penny. None of that matters because Kirby created his works with the intention of first offering it to Marvel as Marvel was his largest client among the clients he was selling work to. ”

    It reminds me of a scene out of Kafka only Jack K. is on TRIAL.

  7. To clarify my point – most people work to the understanding that they will be paid for whatever they produce. Also many artists and many labourers, due to the effort involved and the fact that they cannot undo something delivered, tend to have some for of part payment up front or during the work process.

    Most builders will not build till they have received a deposit and will expect payment throughout the building process. An artist, upon accepting a commission would usually receive a part payment up front and full payment on satisfactory completion of whatever art was created.

    Even in normal life for those working zero hour contracts, they know that if they ever do get work they will definitely be paid for it.

    None of this is true for Jack Kirby at Marvel. He created a character/story on spec and hoped to sell it later – he was not commissioned or promised to have that work accepted. If he were Ditko would not have worked on Spiderman as Kirby originally proposed the visuals.

    BTW – just clarifying as i think my original point probable didn’t come across so well.

  8. Scott Grammel says:

    Considering that working even part-time from home has now become something of a small but well acknowledged and accepted practice in many companies, I’d have to guess that the issue of whether someone worked with their own or company provided pens, pencils, or even computers would be unlikely to have a large impact on any judge’s decisions in such cases.

  9. Jeet Heer says:

    @Scott Grammel. I completely agree that the Kirby estate faces an uphill battle and that the real case for them is a moral/ethical one rooted in fairness. Still, the reason this is so is that the law is set up to favor capital over labour. Here’s the deal: Marvel is allowed to regard Kirby as a de facto employee who did work for hire even though they didn’t pay him a regular salary, give him health insurance (until 1975 at least), sometimes rejected his work, and had him work out of his home and pay for his own supply. So the situation seems on any reasonable ground very one sided: they got all the benefits of a de facto employee without any of the obligations of actual employment. The fact that the law will almost certainly favor Marvel over the Kirby estate says more about the unequal distribution of political power between capital and labour than about what is fair or reasonable.

  10. patrick ford says:

    The contract Kirby signed in 1975 did not “give him health insurance.” What it did was offer Kirby the “opportunity” to purchase a company sponsored plan.
    I have not seen the plan, but it’s my understanding that the plan was so lousy very few employees and freelancers purchased the plan. I have also read the plan was so restrictive anyone covered by it was limited to the services of a small number of Doctors in the New York area. Obviously with Kirby living in California the plan would have been of no use to him.

  11. Paul Slade says:


    Who took the initiative to organise these amicus briefs and get them written? Was it the Kirby family and/or their lawyers?

    I ask because I thought I’d read somewhere that amicus briefs were submitted at the invitation of the court itself. Maybe I’ve got that wrong though …



  12. Marc Greenberg says:

    A few thoughts. If the Legislative history is this clear, and establishes that the intent of Congress in the 1909 Act was to establish a rule that if an employer pays a contractor for work and describes what the work is to be, then the work is a work for hire, then why is it that this clear and simple rule is not a part of the resulting act? I find it hard to accept that the reason is that Congress thought it was better to use vague and broad language.
    Moreover, if this was Congress’ intent, why bother with an “instance and expense” test at all? Why didn’t Congress simply rule that all expressive works belong to the party who pays the creator of those works, and that any employed creator, whether an independent contractor or an employee, retains no rights in their work. Lehman’s argument makes this point cogently.
    The argument that the 2nd Circuit is creating this interpretation is supported by the absence of language supporting this Legislative history in the Act which passed. The omission of that language, coupled with Congress’ intent in 1976 to require a written work for hire statement in independent contractor’s work, suggests instead that this view, expressed in the Legislative history, was rejected by Congress when they ultimately passed the 1909 Act.

  13. Jeff Trexler says:

    Great questions – please keep them coming, as I’ll address them either here or in a future post.

    One quick note regard the legislative history and exclusion due to a desire to avoid limiting definitions: there really was a bar committee that argued against including any specific definitions of employer & proprietor of composite works – and more about that is coming – on the grounds that they would too limiting, and the committee won the day. Thing is, the “they cut it so it’s irrelevant” argument cuts both ways – they also ditched a proposal to define work-for-hire in terms of work by an employee during the hours for which his salary is paid. Which is to say, both the instance and expense test and the salary standard – again, salary is a term that needs to be defined as it was then, not now – were set aside because they would be too *limiting* when it came to the scope of work whose copyright was owned by the employer/proprietor, a rationale that helps Marvel when it comes to defending an allegedly overbroad instance and expense test.

    Another thing to keep in mind in this regard: the amicus briefs make multiple references to the 1960s courts making up the instance and expense test out of whole cloth, when it demonstrably existed as a standard for determining publisher ownership 60 years earlier. This undermines the credibility of their history-based argument – if they missed something so basic, what else did they miss?

  14. Jeff Trexler says:

    An additional note re work for hire and the early twentieth century of employer — they didn’t define an employer as someone who pays a salary; the rejected draft gave the copyright to the employer “in the case of a work produced by an employee ….” It’s express evidence that an employer in the 19-oughts encompassed more than a full-time salary payer at that work made for hire was slotted in as a way of reflecting that breadth.

  15. patrick ford says:

    I think what has happened here is almost the entirety of the comic book world has begun parroting exactly what Warner and Disney have taught them to say. This even extends to a high percentage of people who support (or claim to support) the creators in these disputes.
    It’s disappointing to see so many people acquiesce, and go right along with idea that the law is being applied correctly.

  16. Jeff Trexler says:

    One more follow-up on why Congress might have left things out.

    One important thing to remember about the 1909 Act is that it wasn’t drafted the way we draft legislation today, at least publicly. Today public meetings are PR – town halls and all that to drum up support for something that’s being drafted in a back room. Back then, there was a series of meetings with attorneys and – most importantly – industry reps come up with a draft for Congress to consider. All that’s recorded in the legislative history, which made it a rather dangerous thing for the amicus briefs to quote. It’s thar be dragons, danger Will Robinson and the cloister bell all rolled into one.

    As for why not just give employers everything, that’s addressed directly in the committee notes – in the very same passage, in fact, from where the Lehman brief took the phrase “the independent artist.” There were reps from artists guilds too, and the consensus was to avoid a situation in which an employee for hire – i.e., someone paid for something – sold a work that they had previously made on their own. Hence the phrase work made for hire – understood literally, the distinction is whether they were paid to make it vs. whether they had previously cooked it up on their own, though functionally it works out being akin to the master-servant relation in agency law, tho in this context you’re looking at was the person hired and how much control did the employer of the independent contractor exert.

    Again, it’s an alien world, and if we want to see how alien we need only look at the cases of … well, that’s my next article.

    All of which is to say, the amicus briefs are cogent on this issue, but it’s the beauty of an artificial construct – it works as history as long as you don’t look too long at the history itself. I know this rather well – check out my first TCJ piece on the Kirby case and you’ll see the same argument laid out there, which was the ideal predicate for the judicial takings argument set up by the 2nd Circuit. The difference, as noted above, is that the amicus briefs stopped with the pretty glass house and didn’t think about what would happen if someone started throwing stones.

  17. Operative phrase here:

    “I have not seen the plan.”

    And who is your “understanding” from? John Buscema, Gene Colan, Gerry Conway, Marv Wolfman, Sal Buscema, or Joe Sinnott, who all worked for Marvel during this period under similar contracts? Roy Thomas or Steve Gerber, who were also under contract, and like Kirby, lived in California? I’m pretty familiar with Gerber’s relationship with Marvel and his history of interviews and other statements to the press. I’m reasonably certain that he never publicly complained about the insurance provisions of his contract. And he suffered from recurring health conditions such as apnea which would have made insurance pretty much a necessity.

    Many companies, if the insurance plan they offer is not a tenable option for an employee, say for location reasons, are generally willing to pay an outside plan the amount they would contribute to their own. I don’t know whether they were willing to do this for Kirby or not, but I wouldn’t doubt it, assuming he asked. Kirby’s 1975 contract had salary provisions that were the equivalent today of a quarter of a million dollars a year. The upper management clearly wanted him working for the company, and would want him happy.

    James Galton, who became Marvel’s president about the same time Kirby’s contract was signed, was a reasonably fair businessman. As long as you didn’t do something stupid, like threaten the company, you could generally work out solutions to business problems with him if it was possible. As long as you could make the case that the company wasn’t going to take a financial hit from going the extra mile, you were pretty much guaranteed he would say yes. Jim Shooter has attested to that, and he came to really dislike Galton personally. Galton was also willing to go further if he felt it was worth keeping you happy. Before Steve Gerber had the meltdown that led Marvel to fire him in 1978, he was able to get Galton to agree to more, at least in principle, than any working creator had been able to negotiate with the publishers since at least the early ’50s. Examples include royalty deals on special projects like the Kiss comic, and potentially permanent financial interest in licensing income from Howard the Duck.

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  19. Scott Grammel says:

    A smear to please the ghost of Joe McCarthy, pat!

  20. N Savory says:

    Your original point was quite clear.
    It’s just that the pro Stan Lee/pro Marvel people don’t care about fairness, and think that it’s fine that a corporation reap all the benefits rather than Kirby’s family who are seen as just being greedy.

  21. Knut Robert Knutsen says:

    A minor clarification: Marvel would under WFH rules have to pay for any material, yes. But only if it met two specific criteria:
    1) The work was what had been agreed upon. For instance, if artwork was produced based on a script, substantial deviation from the script would be grounds for rejecting it and
    2) Quality and standards. If work was not good enough or contained unacceptable material (e.g. . couldn’t meet comics code approval), those would be grounds for rejecting without pay.

    Lieber, in discussing an instance where his own work was rejected without pay, talked about it being rejected for quality reasons. It needed rewrites.

    I never found the Colan and Sinnot depositions, but as I recall there was never any mention in the press at the time of any substantial rejection of pages except for allowable reasons. Do you have a link to the Colan and Sinnot depositions so I can check the context?

    As for any mention of whether Kirby’s work was rejected without pay, that’s the kind of testimony that could only weigh equal to Lee’s if it came directly from Kirby.

  22. patrick ford says:

    Marvel was under no obligation to buy the work. Of course in most instances they would have an editorial reason for rejecting work, but they certainly had no legal obligation to purchase anything, unless there was some contract which said otherwise.

  23. William Byron says:

    This is a fantastic piece of journalistic reporting while making legal terms somewhat accessible. Says me, with a Bachelors in Law (but never took the bar exam). Whether or not this merely extends the struggle before the inevitable defeat or manages to surprise even the most jaded observer and begin to change things, I can hope that if nothing else, this story helps to expose Kirby and how he was treated to the average public. I am amazed that Neal Adams could get Siegel & Shuster’s plight televised (granted, they were alive at that time) but not one news organization outside of blog compartments of newspapers will touch the Kirby story. Maybe that will change in the near future.

  24. Michael Hill says:

    This discussion will not be permitted to continue without representation from the Marvel side, preferably by a Marvel lawyer but at the very minimum a shill. Familiarity with the writings of Mark Evanier or the interviews of Jack Kirby are no match for Mister Marvel’s knowledge of the writings of Jim Shooter or the interviews of Steve Gerber.

    The absence of any remark on Gerber’s part is nothing but a ringing endorsement of Marvel’s health insurance, regardless of the complaints of any millionaire California comic artist. (Ditto for the Buscemas, Colan, Conway, Wolfman or Sinnott… according to industry lore, they frequently met and didn’t discuss it.) I can say with authority that Steve’s silence on the subject means not only was it the best, but the company paid for it.

    Kirby’s Thousand Oaks home alone would be worth in excess of fifteen million 2050 dollars. The story that he left the field for animation just to get better health insurance is simply harder to believe that Stan Lee brought ideas to Jack Kirby.

  25. R. Fiore says:

    Not that I don’t sympathize, but I think the argument got to its nub where it said “As a result, the ABA Journal notes in a recent article, the filing of amicus briefs is not in itself a sign of momentum for either side.”

    For those who are interested, the procedure for rejecting amicus briefs to the Supreme Court is, the Chief Justice puts on a black cap and says, “You’re not my friend anymore.”

    My experience of reading legal briefs is that if you read one side’s legal brief you don’t think anyone could possibly come to a different conclusion. Then you read the other side’s brief and you feel the same way.

  26. patrick ford says:

    R., You are mistaking amicus briefs for certiorari petitions. The amicus briefs are filed in support of a petition.
    You are right though that when a petition is rejected it’s the ultimate cold shoulder. The court offers not a word as to why and the petition is simply part of a very long list of rejected petitions.

  27. demoncat_4 says:

    sadly even if the justices would take up the appeal which odds are they may not . other comic creditors like marve wolfman and steve gerber went down the route kirby is doing now and came up with nothing. even if kirby can convince the justice he was not under work for hire at the time he co created with stan lee some of the mu. for kirbies estate would be better reclaiming their share of the captain america rights since he was not a work for hire for marvel.

  28. Knut Robert Knutsen says:

    Kirby has no share of the Captain America rights. The character was the sole creation (for legal purposes) of Joe Simon.

    While there was confusion in the minds of all parties about what the law said, allowing Marvel to stop rights reversal in 1969 by buying Kirby’s share, there was no such confusion when Simon finally reclaimed it as his sole creation. With the public support of Roz Kirby (this was after Jaqck died).

    There is the added wrinkle that we don’t know what Kirby signed away in his deal with Marvel back in the late 60s. What is known is that he got a worse deal than Simon, even though it was Kirby’s deal that forced Simon to settle. For all we know, he might have signed those rights away to Marvel in perpetuity.

    And it should be noted that when the Captain America movies list the character as created by Joe Simon and Jack Kirby, it’s because Joe Simon (and later his estate) allowed it.

    Jack Kirby’s work on Captain America was always work for hire. At least as we currently understand work for hire (as this definition of WFH is part of what is challenged in the amicus briefs.)

  29. There’s no endorsement of anything, “ringing” or otherwise. I’m just highlighting that there doesn’t appear to be much, if any, criticism about Marvel’s insurance benefits from the people who actually dealt with them. Challenging someone’s statements doesn’t mean one is saying the opposite is true. Pointing out that the opposite is in the realm of possibility isn’t saying it’s true, either.

  30. patrick ford says:

    Kirby was not a freelancer, but an employee being paid a salary of $85 dollars a week when CAPTAIN AMERICA #1 was published.
    Simon was the editor and chief of Timely and also being paid a salary. Simon’s claim is he had created Captain America by himself before going to work for Goodman at Timely.
    Simon is not the legal creator of Captain America. Simon settled out of court. It can be assumed he signed the same agreement Kirby did, because the document Kirby signed in 1972 still has Simon’s name typed on it in one place Marvel forgot to white-out. In every other place on the document Kirby’s name is written in over top of where Simon’s name is presumably whited-out.

  31. Knut Robert Knutsen says:

    Sure, Joe Simon and Marvel settled out of court back in 2003, but that was always going to be the outcome, because he had a legitimate case. However, DC kept fighting the Siegel and Shuster case into the ground and Marvel are about to bury the Kirby case.

    There’s a brief summary of the Simon case here: http://www.philadelphiabar.org/page/TPLSummer03CaptainAmerica?appNum=1

    As you can see, before the settlement the court declared that Captain America was not WFH and Simon hadn’t signed away rights in 1969.

    Joe Simon being the legal creator of Captain America has nothing to do with whether he settled out of court, but whether Captain America was created on spec and sold to Goodman / Timely and who was involved with the creation before the point of sale.

    This is just like how Bob Kane is the sole legal creator of Batman. Created, then sold.

    As you can see from the link, sure, Simon signed a document way back that he created Captain America as work-for-hire, but the law doesn’t allow for that to be applied retroactively. He could have signed 1000 documents that said it was WFH, but that wouldn’t make it factually true.

  32. Jeff Trexler says:

    You hit upon one of the things that’s always on my mind when I write – so much reporting on law today, especially in connection with popular culture, tends to echo the latest filing. The 2nd Circuit comes down – doom. The Siegels or Kirbys state their case – there’s clear momentum for a victory. Since so much legal reporting today is driven by PR on both sides, I kind of see it as a duty to write about what’s not being said.

  33. Mike Hunter says:

    William Byron says:

    I am amazed that Neal Adams could get Siegel & Shuster’s plight televised (granted, they were alive at that time) but not one news organization outside of blog compartments of newspapers will touch the Kirby story. Maybe that will change in the near future…

    Not so surprising, in that they created the most famous and widely-recognized superhero ever; who’d starred in a hit TV series and theatrical animated cartoons; whose name was attached to SUPERheroes. Why, even the comics cover lettering of his name is so well-known, its imitations in business signs (i.e., http://www.windowtintingtallahassee.com/why_superdave.html , one of the less blatant examples) are legion.

    Moreover, Adams’ publicizing of their plight was riding the coattails of a massive publicity push for the then-upcoming Richard Donner first Superman movie. And took advantage of the studio’s wish to avoid negative publicity, the money going to S&S peanuts by Hollywood standards.

    And Siegel & Shuster were united in getting (morally if not legally) shafted by DC; unlike the situation with most of Kirby’s better-known creations, where “company man” Stan Lee usually hogged a big portion of the creative credit, and argued the “Kirby’s contribution was work-for-hire” Marvel corporate line, confusing the issue.

    At least, with Kirby’s creations becoming increasingly famous (though Lee is still around as the public image of Marvel, and claiming credit), hopefully things “will change in the near future…”

  34. Dennis Roy says:

    The result: the law governing work for hire in the 1976 Copyright Act, which replaces the instance-and-expense standard under the 1909 Act with the statutory default rule that work-for-hire applies to material created by an independent contractor only if specified in a written agreement.

    This is the part that concerns me most. What is the legal definition of “a written agreement”? Does it need to be a document signed by both parties prior to the contracted work being created? Or can it be as simple as a blanket disclaimer printed on the back of an endorsed check? If not, then what about other documents signed (sometimes years) after the work has already been created and paid for?

  35. Knut Robert Knutsen says:

    We’re talking about the law after 1976 here. which says that you own everything unless you sell it.

    No, a contract on the back of a check is not going to do anything in this day and age. All it ever did, legally, was REAFFIRM the expectations of the publisher implicit in the work-for-hire situation. It doesn’t transfer rights on its own (which is not the same as it being worthless).

    Also, a check payable after the worjk is in cannot create a WFH situation (as I said, only reaffirm that one is already present).

    No contract can change something into WFH after the fact. If you sign a contract saying something was WFH when it wasn’t, that part of the contract is simply unenforcable.

    A contract has to be signed and valid, reflecting a meeting of the mind between the parties before a work-for-hire product can be created. No tricks.

    A back of the check contract, for instance, is considered a trick, a coercive practice. Unless you have an existing contract and the text simply affirms that the work is produced under that contract.

    No-one can take your rights away from you unless you let them. Of course, people still sign bad contracts because they don’t know what their options are.

  36. James says:

    Steranko had a good solution to the absurd practices of Marvel: he would simply cross out that stamp on the back of the checks. It didn’t have anything to do with whether a bank would cash them or not, since it wasn’t actually legal and binding. And, he routinely retrieved his original art from the offices, since Marvel didn’t actually have any right whatsoever to keep it. I believe Neal Adams did something similar.
    It is my impression that Marvel and other companies did and still do count on creative people to not have their shit together enough to know their rights. Kirby unfortunately didn’t know his rights and didn’t take legal action against the creeps who ripped him off when he should have, despite their claims to the contrary.
    Recently DC announced a new “royalty” plan which isn’t a real royalty plan, they call the payments due to the talent “participations”, which is a similar euphemism as Marvel’s “incentives”—they think in this way they are getting over. They are not.

  37. patrick ford says:

    The earliest checks Marvel was able to produce as evidence dated from 1974. The copyrights in dispute all date from 1958-1963.
    Kirby never had a contract with Marvel between 1958 and 1970. As a matter of fact Stan Lee did not have a contract until 1972.

  38. patrick ford says:

    Kirby was aware of his rights. The difference between him and Steranko is Marvel did not cooperate with Kirby. They refused to talk to his attorney and refused to release artwork to him during a time when according to Roy Thomas and Irene Vartanoff, Stan Lee was releasing artwork to a number of artists (including Joe Sinnott, and Steranko) who signed nothing. Roy Thomas described the practice this way:
    ROY THOMAS: “It was professionally and personally repugnant to me…”

    Kirby mentioned in several interviews why he did not take legal action against Marvel. It boiled down to Kirby saying the battle would go on for years, eat up a great deal of his time, and would be tremendously expensive.
    Kirby in fact was represented by the prestigious Stephen Rohde law offices while he was seeking the return of his artwork.

  39. James says:

    Patrick, I don’t believe the accounts of Marvel mouthpieces. Lee and Marvel didn’t “cooperate” or “release” artwork to Steranko. He just went to the office and took it. You don’t ask permission to exercise your rights. See you in the funny papers.

  40. patrick ford says:

    I’m not sure how he could have gone to the office and taken the artwork without Lee’s permission. For one thing the artwork was stored in the original art warehouse. I mean if he was just going in and taking his artwork why didn’t he take most of his spreads? A very large number of those were sent by Stan Lee to Don Wallace and never returned.

  41. Stan Lee and Jim Steranko had an agreement to return his art. The staff at Marvel was fully aware of it. When Irene Vartanoff was inventorying the original art for Marvel in the ’70s, she says she discovered some Steranko pages there and sent them back to him as per the arrangement.

    Gray Morrow had an agreement for his work to be returned as well. Joe Sinnott asked for and received all of one Fantastic Four issue he inked as a work souvenir.

    Apart from these instances, no art purchased by Marvel before July 1973 is known to have been returned to the contributing artists until 1984.

  42. William Byron says:

    @Mike Hunter- I know the context of the media awareness of the Superman film at that time and I understand your point. However, the validity of Superman as a current topical mainstream interest at present is significantly changed from how it was in 1976- it might as well have been 1946. Whereas, Marvel characters have truly usurped Superman in the public subconscious; this is why I thought- perhaps naively, as you imply- there is more than a chance “some day” that someone is able to connect a story for the basic, non-informed, non-comics historian. Even if it’s a brief segment for fleeting attention, I would have to think at least a few people would find it mildly intriguing that the guy who created the Avengers, Thor, etc. etc. etc. was ripped off and his kids can’t even get free movie tickets. That’s all.

  43. James says:

    When he told me about it, Steranko made it sound a lot more like he just went in and took the work. But I suppose it is possible that he might have made some sort of more formal agreement with Lee.

  44. patrick ford says:

    In 1980 Joe Sinnott got ’60s era FF pages back without signing anything. Vartanoff mentions it in TCJ #105 on page 19.