Jack Kirby biographer Greg Theakston told the Journal he plans to file a police complaint during his Christmas vacation, accusing the Jack Kirby Museum and Research Center, an online image archive, of stealing photocopies of Kirby pencil art from Theakston.
In what has to be one of the world’s slowest-building controversies, the history behind Theakston’s grievance with the Kirby Museum began decades ago. The short version: Theakston says the museum borrowed from him more than 3,000 photocopies of Kirby pencil art and won’t return them. The museum takes the two-fold — if somewhat contradictory — position that 1) Theakston is not entitled to have the photocopies back because he donated them to the museum, and 2) he never owned them to begin with, having borrowed them from the Kirby family. The museum has asserted that the copies ultimately belong to the Kirby family, and the Kirby estate has officially sided with the museum
Attorney Paul Levine, who administers the Kirby Trust for the estate, said, “Rand Hoppe, John Morrow and the other good people involved in the Jack Kirby Museum and Research Center are doing the name of Kirby a great and selfless service. They do not deserve personal attacks, especially attacks based on erroneous information.”
How firm Theakston’s intentions are remains to be seen. Theakston has been holding the threat of a theft charge over the museum for months. In an Aug. 7 post, Rich Johnston’s Bleeding Cool website reported: “Stolen Goods Report Filed Against the Jack Kirby Museum.” In fact, Theakston hadn’t filed a theft complaint, merely threatened to do so. As the Journal attempted to parse the conflicting stories and facts in the case, it regularly checked in with Theakston to see if he had followed through on his threat. Each time, he assured the Journal the report would be filed within the week or as soon as his daughter could make it to the Hoboken Police Department. Pressed for an estimated time frame, Theakston told the Journal on Dec. 18 that he planned to file the report during his upcoming Christmas vacation. One thing is certain: Given its long history, this is a story that will not be hurried.
How did Theakston and the Kirby Museum, both ostensibly devoted to carrying on the legendary artist’s legacy, end up hurling accusations at one another? And, perhaps even more puzzling: How did photocopies and scans of photocopies get to be so coveted that they have inspired such a raging conflict? Is there nothing that comics fans aren’t willing to invest with collectibility?
From a scholarly and aesthetic point of view, the photocopies are important because they capture Kirby’s art at the pencil stage before it was inked, colored, lettered and printed. The museum, however, is in the process of scanning all the photocopies and has offered to make the scans available to Theakston. High-res scans would seem to serve research purposes as well as the photocopies.
But Theakston’s interest in the photocopies goes beyond scholarly. He estimates their value as collectible objects to range between $25 and $200 a page, with the entire collection commanding a potential value in the neighborhood of $200,000 (ironically, more than Kirby was paid for drawing the original pages, which, according to Kirby friend and historian Mark Evanier, ranged from a low of $18 a page in the early 1960s to about $40 a page after 1975).
So, who is entitled to ownership of these historical artifacts? It depends on whose story you believe.
The long version begins more than 40 years ago and continues to the present with points of overlap and points of disagreement between Theakston and the museum. Kirby’s struggle to regain his original art from Marvel is well known. Much of that art was given away or lost by Marvel. But from the mid-1960s on, Kirby kept photocopies of virtually everything he did. Initially, Marvel supplied him with copies, but beginning around 1970, the artist obtained his own copier and copied his art before mailing it to Marvel. Given Kirby’s prolific energies, over time, the copies began to fill every corner of his home in Thousand Oaks, Calif. Theakston was a frequent visitor to the Kirby household, doing his own research and helping Kirby to respond to occasional requests from other researchers and fans who wanted to get a look at, say, the first un-inked appearance of The Invincible Man.
Theakston told the Journal, “The copies were stuffed in cupboards, in the garage — I found some pages in his underwear drawer.”
To facillitate his efforts, sometime around 1984, Theakston, with Kirby’s approval, began shipping boxes of the copies to his own home in New York. The shipments were intended as a loan to allow Theakston to make his own copies of the photocopies.
Everyone is in substantial agreement on the story up to this point. The accounts begin to sharply diverge with a phone call Theakston said he received from Kirby’s wife, Roz, in 1986: “She said, ‘Jack and I are not going to live forever and we will be putting on the backs of pieces of original art hanging in the house the names of people we want them to go to. Is there any particular piece you would like?’
“I said, ‘I’ll just take the Xeroxes.’“ Theakston said he offered to make the Kirbys a set of copies of the copies, with the understanding that he would keep the “original,” or first-generation, photocopies.
That phone call does not come into Kirby Museum Trustee John Morrow’s account. In a statement on Morrow’s blog, he said, “According to Jack’s wife Roz Kirby, it was clear to both parties that these were simply a loan and would be returned when Greg was done with his research. When I spoke to Roz about those photocopies in 1996, she specifically said, ‘I loaned those to him for research purposes. He never returned them.’“
Theakston admitted to the Journal, “It was common knowledge that they loaned [the photocopies] to me — not so common knowledge that they gave them to me. Not a lot of people were privvy to this being a gift.” Asked if there was anyone other than himself who was made aware that the Kirbys had relinquished ownership of the copies, Theakston drew a blank. In fact, if the copies were gifted to Theakston, even his benefactor, Roz Kirby, had trouble remembering it. Not only had she reportedly told Morrow as late as 1996 that copies had only been loaned to Theakston, but she phoned Theakston asking that the photocopies go to Kirby’s grandson Jeremy. Theakston confirmed that Mrs. Kirby had made the request, but said he called Jeremy, who declined to take the copies.
As far as the general public knew, Theakston had borrowed the copies and never returned them. Jack Kirby died in 1994, and his widow passed away three years later. There is no evidence that anyone received original art from the Kirbys’ home with the recipient’s name on the back. In fact, Theakston said he was told by Roz Kirby’s nephew Robert Katz that names were not written on the back of art, but listed on a notepad. Katz said he had seen the notepad and Theakston’s name was not on it. To Theakston, this is proof that the photocopies were given to him, since he had chosen to take them in lieu of original art. Of course his name is not on the list, because he had already been given the copies, he reasoned.
With both Kirby and his wife gone, angry rumblings began to spread online about what was perceived as Theakston’s theft of the photocopies. Theakston remembers Rocketeer artist Dave Stevens coming up to him at a convention, demanding to know, “When are you going to give Roz her copies back?” In a recent statement, Morrow reported a 1998 phone conversation in which he confronted Theakston about Roz Kirby’s wish to bequeath the photocopies to her grandson. Morrow’s quotation of the exchange concluded with:
Morrow: So you know she wanted you to return the Xeroxes?
Theakston: Yeah, I told her to have Jeremy call me. He never did, so he lost his chance.
Asked how he was able to quote verbatim from a 16-year-old phone conversation, Morrow told the Journal, “Because of the dispute, I transcribed that part of my conversation with Greg as we spoke in 1998.” The Journal attempted to tap Jeremy Kirby’s own memories of these events, but he did not respond to inquiries.
According to Morrow, in the course of a 1998 quarrel on the Kirby-L email listserv, Theakston agreed to copy the copies and send the originals to the Kirby family but said it would have to be on his own time.
In Theakson’s account, he was contacted by an attorney from Roz Kirby’s estate in 1998. Theakston said he explained the circumstances under which he had been gifted the copies and “the attorney was satisfied.”
Morrow waited for four years, according to his account, then, on New Year’s Eve 2002, offered to mediate what he considered a resolution: Morrow’s publishing company, TwoMorrows, would scan the photocopies and provide the scans to Theakston and the Kirby family, with the original copies going to the Kirby family. Morrow said he received a shipment of photocopies from Theakston in early 2003, but “after inventorying what he’d sent, it was clear this couldn’t possibly have been all the ones Greg had.” Morrow said he asked Theakston to send the rest but got no response
These photocopies were reportedly passed to the Kirby Museum. Theakston received no scans from TwoMorrows.
Theakston’s narration of events jumps past the sending of copies to Morrow to describe a similar offer made in 2007 by current Kirby Museum Treasurer Rand Hoppe. “Rand came to my house, making high-res scans once a month,” Theakston told the Journal, “and it was taking forever.” After three years of Hoppe’s visits to Theakston’s Brooklyn studio, Theakston agreed to let Hoppe take all the photocopies away with him to complete the scans on behalf of the museum. According to Theakston, he underscored the temporary nature of the arrangement. “I said, ‘I’m not giving you these. This is just a loan.’”
He did not, however, underscore his terms in writing. Nor did the museum, apparently, document the receipt of the photocopies as a donation. As Theakston said, “The whole thing is like Amateur Night in Dixie.”
Theakston said he did have tax records showing one box sent to the museum, but it tends to undercut rather than support his position that the copies were loaned. Beginning in 2009, Theakston told the Journal, he intended to donate the copies to the museum at the rate of one box per year. This piecemeal approach, he said, was determined by his wish to have some flexibility in using the charitable donations to reduce his taxable income each year. The plan was not executed, however, beyond the first year.
In his blog post, Morrow reported, “The Kirby estate is in possession of a letter from Greg dated September 2009, in which Greg unequivocally states he has ‘donated’ the materials to the Museum.”
That letter, perhaps the closest thing to documentary evidence against Theakston, turned out to be a letter that he had sent to Jack Kirby’s daughter Lisa. In the portion of the letter quoted by Morrow, Theakston wrote:
As forty years of investigation draws to a close I have donated almost all of my Kirby files to Rand and the museum. Probably six to eight boxes of paperwork, including my set of copies of your father’s Xerox copies (thousands), as well as copies of the taped interviews, and all of the video footage I have. Just about everything I’ve collected went to the museum, and getting a collector to part with it is hard. Not so much. I’ve stood behind the man for the better part of my life and collected it for a reason: to be passed on. Finally, a museum to donate this material to: Perfect timing.
Levine said, “I have checked with all the members of the Kirby family who could possibly know anything about this, and also with close friends of the family. The unanimous consensus is that Roz Kirby expected the return of those pages as well as other items Mr. Theakston had borrowed for research purposes, and that she was very upset that he was not complying with her demands that all of the material which she had loaned to him be returned to her.”
Here was not only an official representative of the Kirby estate referring to the photocopies as the rightful property of the Kirby family, but Theakston himself apparently saying he had donated the photocopies to the museum.
Theakston remembered writing the letter. It called to his mind a happier time when Theakston, who had been in regular contact with Roz Kirby before her death a year earlier, had proudly contacted Kirby’s daughter and happily acknowledged his many contributions to the museum in the service of Jack Kirby’s legacy — including those “thousands of photocopies.”
A close reader will note that the letter refers to “my copies of your father’s Xerox copies.” Even museum spokesperson Patrick Berzinski (of Tranquility49 PR) admitted that he understood the object of the reference to be Theakston’s copies of the copies — not Kirby’s copies. As much as the letter shows Theakston in a spirit of giving, it is not necessarily ironclad proof of his intent to donate the original Kirby photocopies. But Theakston declined to make use of this escape route. He told the Journal that he had meant to include the original photocopies among his many donations to the museum. In a portion of the letter not quoted, he said he had even offered to transfer all the rights to his books to the museum.
What response did he get to this charitable letter? “I never heard from Lisa,” he told the Journal. “I have not spoken to Lisa since Jack died.” Theakston said he felt snubbed and, as a result, changed his mind about donating the photocopies. Asked if he has had any recent contact with members of the Kirby family, he said he had spoken to Kirby’s son Neal six months ago. In the old days, he said, “I talked to Roz every Sunday for a decade.” In the midst of his current conflict, Theakston told the Journal, “I feel very slighted and stabbed in the back.”
It is the museum, however, that has been the target of Theakston’s angry Facebook posts and press release. In his September statement, Theakston said, “I’m worried [the photocopies are] sitting in a corner of Randy’s basement in Hoboken. From the beginning I’ve said I’d be willing to donate them if the museum is able to move from being a website run out of his basement to an actual brick-and-mortar facility, someplace where the copies can be properly stored and conserved. But they don’t seem to be moving in that direction.” Clearly, the enthusiasm he had expressed in his letter to Lisa Kirby (“Finally a museum to donate this material to”) had waned.
The Journal asked how the copies had been stored in his own home. “All 3,500 pages were loose in my house,” he said, “but they were easy to find.”
Theakston’s Facebook page includes a link to The Tom Gulley Show, a one-man, sometimes-muckraking blog/podcast that launched an investigation into the museum’s tax records with an end-of-August episode featuring Theakston as its sole guest. Gulley also requested tax documents from the museum aimed at determining the value of donations recorded during the years that it received photocopies from Theakston. The museum responded with documents showing donations for the years 2005-2008 but stopped short of 2009, the year Hoppe took the photocopies into custody. Berzinski did not respond directly to the Journal’s questions about the museum’s 2009 tax records, instead saying, “It was up to Greg to request a letter of acknowledgement and/or to report the donation for tax purposes. The Kirby Museum provided a letter acknowledging the initial donation from Greg [the single box Theakston sent in 2009]. A letter was offered in acknowledgement of the subsequent donations, but Greg failed to follow up on that conversation.”
Gulley’s investigation has yet to turn up any conclusive evidence that would settle the Theakston/museum dispute, which is not surprising. Since the museum has taken the position that the Kirby estate is the rightful owner of the photocopies, they would not be expected to turn up in the tax documents as donations from Theakston. The Journal asked Gulley, who has been an acquaintance of Theakston’s for more than 20 years, if Theakston had urged him to investigate the museum. “I’m nobody’s attack dog or lap dog,” he said. “I pick my topics and I control my show 100%. In this case, some very inept and dishonest people have earned my contempt. I don’t disguise that on the air.”
Theakson told the Journal, “Tom smelled a story and ran with it. I’ve never asked him to do anything for me.”
What resolution of the current impasse would satisfy Theakston? “Just send me the scans and copies,” he said. His demand for both the copies and the scans suggests he would not be satisfied with the museum’s offer of scans. From his point of view, the photocopies belong to him and his next step is to file a theft report. Noting that Bleeding Cool had jumped the gun, the Journal kept a vigil watching for the threatened police report over the next four months. Whether Theakston succeeds in filing a complaint or has a change of heart — or at least a change of plans — over the holidays, the Journal will follow up
As for the museum, it already has the photocopies, and, according to Levine, “As far as my client is concerned, delivering the material to Rand Hoppe and the loyal volunteers of the Kirby Museum is just as good as returning it to the Kirby family.”
Theakston seemed surprised when the Journal pointed out that, since the Kirby estate has allied itself with the museum, his dispute with the museum was likely to be perceived as Theakston versus the Kirby family. After a short pause, he allowed, “Then I guess that’s what it’s going to come down to.”