Kirby Heirs' Claim a Tougher Row to Hoe

As if the news from comic book land couldn’t get any more sensational, the heirs of Jack Kirby have notified Marvel and the movie studios making Marvel movies of their intent to reclaim Kirby’s rights to the likes of Fantastic Four, Hulk and X-Men.

Like the news of the similar, successful attempt by the heirs of Superman co-creator Jerry Siegel against DC Comics, this news raises questions among fans about the future of these iconic comic book characters. Adding to the interest is the involvement of attorney Marc Toberoff, who is representing the Siegels in a court proceding that will determine how much DC owes them for the use of Superman since 1999.

Toberoff has had a lot of success with this sort of case, both in the courtroom and in making headlines. In this case, sending out 45 notices of intent to terminate the transfer of copyright to Marvel, Sony, Fox, Universal and more, just weeks after Disney agreed to buy Marvel and its catalog — a large portion of which Kirby had a hand in creating — for $4 billion.

But there are some pretty major differences between Kirby’s case and the Superman case. Namely, that Siegel and his partner Joe Shuster had clearly created the character of Superman prior to working for DC Comics and selling all rights to that company, while Kirby was had been working for Marvel as a freelance artist for several years before he and Stan Lee collaborated to create the characters that become the backbone of the Marvel Universe.

When the copyright laws in the United States were revised in 1976 to include provisions for original rights owners to cancel the transfer of rights, it also made clear that the same right does not exist for material created as work made for hire. That law clearly defined work made for hire and what kind of relationship qualified as WFH.

At the time Kirby co-created the Marvel characters, the specifics of the law were less clear. The 1909 Copyright Act does include the concept of work made for hire, but doesn’t clearly define it. According to this article, courts interpreted work made for hire as requiring a traditional employer-employee relationship, though around the mid 1960s they began to expand the definition to include freelancers who contributed to collective works like Kirby, Steve Ditko and everyone else who worked on those early Marvels, except for Stan Lee.

I expect this will be the crux of this case, with Marvel arguing Kirby was creating work made for hire and Toberoff arguing Kirby — who claimed in interviews he never signed any document during those years ceding his rights to the work — created copyrighted material on his own that he sold to Marvel and that his heirs now have the right to cancel.

Lee’s situation is completely different. As the editor of Marvel Comics, he had that traditional relationship with the company and I don’t think any reasonable person would consider his contributions to those comics as anything but a textbook case of work made for hire. Of course, a lot of this is going to reopen the old argument of who was contributing what to the finished work. It’s an argument that will never be settled, but what is clear is that Kirby drew the comics, while Lee wrote the dialog and served as editor. Who was most responsible for the actual content of those stories — creating characters, coming up with and pacing out the plots — is the area of dispute. Lee surely contributed some of those elements, especially in the early days, but it’s also obvious that Kirby had the greater impact in plot and character design. It’s long been fashionable to denigrate Lee’s contributions, but the personality he projected in the dialog and the copy he wrote for Kirby’s stories was essential in developing and defining the Marvel style for decades to come.

Even though Kirby was not a traditional employee, I think it’s going to be tough for the Kirby heirs to make a convincing legal argument that he was not doing work made for hire. Unless there’s some smoking gun, the issue of Kirby and Lee’s relationship has been the most scrutinized in comics history. If there were smoking gun documents still in the hands of the Kirby estate, or even Marvel documents that dated back to the time, they likely would have surfaced by now.

And a lot of this has been disputed before, back when Jack Kirby was trying to get Marvel to return his original artwork in the 1980s. (It says on Mark Evanier’s website here that Kirby never actually sued Marvel.) There was a long dispute over a release form that Marvel asked Kirby to sign that clarified Marvel’s ownership of the copyright, but also contained many measure Kirby objected to. A long, public standoff occurred, the details of which have been recorded in detail elsewhere. One such account, Michael Dean’s overview in The Comics Journal Library: Jack Kirby, states that in the end Kirby signed a a shorter form of the release that addressed his concerns and got his art back. How that, and any other documents or agreements Marvel had with Kirby over the years, would affect the copyright termination attempt will have to wait.

And that’s the other element — this is a long-term deal that won’t really have any effect for years. Consider that in the Siegel case, they successfully terminated the copyright transfer for Action Comics #1 in 1999 and are still in court determining the details and litigating exactly how much that share of the rights is worth. With the Kirby work, the copyrights aren’t even eligible to be terminated until 56 years after first publication, which is 2017 for Fantastic Four #1, 2018 for The Incredible Hulk #1 and Thor's first appearance in Journey into Mystery #83, and 2019 for X-Men #1. The window is five years, so it could be even longer before any kind of legal heat results.

And there’s also the issue of Disney’s legal acumen, especially in defending its copyrights and trademarks. Take for example this Los Angeles Times article from last year that makes the case that, due to a faulty copyright notice, Disney’s famous "Steamboat Willie" cartoon has long been in the public domain but remains de facto protected by Disney’s immense legal muscle.

As with the Siegel and Shuster case, it's clear that Kirby deserved better treatment — money and credit for his contributions — from Marvel. Unfortunately, I think this will be a much tougher argument to win. Perhaps Disney/Marvel will see the benefit in settling this without going to court. But history seems to indicate a years-long legal battle before any of this is settled for good.