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Marvel Granted Summary Judgment on Kirby Lawsuit

We knew that it was an uphill battle for Jack Kirby’s estate to reclaim the copyright on the characters he created for Marvel, and today a judge sent them back down the hill with her decision to grant Marvel’s request for summary judgment on the case, thereby stating that Jack Kirby did, in fact, create these characters for Marvel on a “work for hire” basis.

This is what I figured would happen when I first heard about the case, but I’ll admit that the lawyers for the Kirby estate did a strong job arguing with what they had to work with. Still, the evidence that Kirby’s work was “work for hire” was just too strong.

37 Comments

Mike Loughlin

July 28, 2011 at 7:09 pm

Somewhat disappointing if completely unsurprising. It’s unfortunate that Jack Kirby and his family never reaped the same benefits that Stan Lee did (and I’m not knocking Lee, just saying they deserved equal compensation). He built a huge part of the Marvel Universe, including several lucrative franchises. His artwork and stories were ripped off for generations. I’m glad he got some measure of respect later in life, at least.

The law is never about justice, it is about what can be proven. Jack Kirby created many billions of dollars worth of intellectual property, and his heirs are lawfully denied.

I marvel at these crooks.

lolwut.

These guys didn’t do shit and don’t deserve shit. Thank goodness for the judge.

Disappointing but not unexpected.

I’ve always wondered of any attempts were made by Marvel to bring back Jack Kirby into the herd, with the promise of some of Stan Lee’s flair and fame, or only to bring him back to work.

I just don’t understand why someone’s grandchildren think they are owed money for what their grandpa did.

Did they do anything? Did they work? Did they do anything but be born?

Siegel and Shuster and Kirby and Finger all got screwed. No doubt about that.

How does that mean their grandchildren are owed anything?

This is very, very predictable.

The way comics were published in the 1960s, everyone knew what the conditions were, that the characters belonged to the publisher and the creators were hired. I’m not saying the conditions were right or moral. But everyone knew what the conditions were, particularly the creators. I can’t believe Jack Kirby didn’t know what he was signing up for.

I am much less certain about the 1940s and Superman. It’s more likely that Shuster and Siegel were tricked or taken advantage of. But Kirby in the 1960s was an experienced professional.

Suck on that Kirby family

I just don’t understand why someone’s grandchildren think they are owed money for what their grandpa did.

Because the law says “heirs.”

Heck, the new law even goes as far as to specify “estate,” which is why Shuster’s estate will be involved soon even though he had no heirs.

Rene says: The way comics were published in the 1960s, everyone knew what the conditions were, that the characters belonged to the publisher and the creators were hired. I’m not saying the conditions were right or moral. But everyone knew what the conditions were, particularly the creators. I can’t believe Jack Kirby didn’t know what he was signing up for.

Wise words that sum the case up

I don’t care about lawsuits like this because it is heirs going after money. What bothers me is the actual legacy. I really do get pissed off when I encounter a young fan who thinks that Stan Lee was the creator of just about everything Marvel. They also usually think that he owned Marvel. The amount of misinformation about the Silver Age Marvel amongst the general population of young comic fans is outrageous.

Yeah i don’t understand the people who are saying this is disappointing or that Marvel are crooks. Having read the summary document it seems the Kirby family never really had a leg to stand on and were trying to pull something of a fast one themselves. It seems the work was always made for hire and that everyone who worked for Marvel in the 60’s knew damn well that it was so technically Marvel haven’t done anything wrong. We may not like the way that Kirby or others were treated but that cannot affect a billion dollar judgement which Marvel has rightfully won.

the carping against Kirby’s rightful heirs on here makes me sick to my stomach

as far as I am aware, Kirby was presented with a declaration to sign well after the fact. When he wanted some of his pages of original artwork back during the 1970’s, and if he was even to have them returned, then he was to sign this declaration that his pages were indeed created under “work for hire” conditions. At the dawn of the Marvel Universe, when this man simply had to put food on his family’s table by the sweat of his brow and the magic within his imagination, no one could have foreseen this grand future for his many creations and co-creations – least of all Kirby himself. Even so, I don’t feel Kirby would have latterly been presented with a new definitive declaration to sign unless any previous contract held between company and freelancer – if such contract even existed – was somehow felt to be in doubt.

Kirby’s life’s work is worth millions, if not billions in terms of revenue. That his family and heirs that he worked so hard to provide for have not even the least share in them, not the many reprints, deluxe editions, decades worth of foreign language editions, let alone the movie properties that currently dominate Hollywood – cannot even be seen to be granted the least share, unless the rights to the whole be held in doubt – is beyond travesty. It’s a crime.

This is the age old story of exploitation, plain and simple.

The letter of the law rarely has anything to do with plain and simple moral justice. It has absolutely none in this instance.

The Mutt said: “I just don’t understand why someone’s grandchildren think they are owed money for what their grandpa did.”

By that same reasoning, you could argue that nobody ever has the right to inherit ANY sort of valuable property from his late grandfather.

Money? A house? Stock certificates? Jewelry? Antique cars?

After all, the grandkids never earned that pile of money. They never built that house. They never invested in that stock when the company was just getting started. They never lovingly maintained that antique car that is now worth a hundred thousand dollars. So why should they be allowed to benefit from any of it after grandpa is no longer around to use those assets himself?

But in the real world, the legal system works on the assumption that a man can, in fact, bequeath the fruits of his labors to his heirs so that they will (hopefully) have an easier time of it, economically speaking, than he did when he was just getting started. So if we grant that a man is allowed to bequeath such assets to his heirs, then why shouldn’t his intellectual property rights fall into the same category as more physical assets he worked to acquire?

You’re right – the letter of the law has to do with facts. It’s not “did Kirby create Spider-man” or “should his heirs inherit his copyright.”

It was only EVER about whether not what Kirby did classified as work-for-hire under the 1909 Copyright Act.

Guess what.

It did.

And sure, the heirs getting taken advantage of by a crooked lawyer who’s whole purpose is trying to gain access to copyrights for his own purposes – yeah it sucks for them. But maybe they should have never agreed in the first place to a lawsuit that would give them access to the copyright on fucking Wolverine.

As you say, Brian, I find it hardly surprising at all. The evidence on Marvel’s side was quite concrete, whereas Kirby’s side simply didn’t have a compelling evidence to the contrary. I’m probably more surprised that they struck the expert testimony of Mark Evanier and John Morrow from the record than anything.

Awhile back, when the depositions went up online, I was reading them and wow, it really shows what money can buy you. Marvel/Disney had the money to hire one of the greatest litigators in the world, and he showed it in his work on the experts on Kirby’s side, so I was not too surprised to see them excluded. And once they were, the very real questions of fact (and there ARE questions of fact here – the notion that this was just OBVIOUSLY work for hire is preposterous) just weren’t supported by anything, so I suppose the judge’s decision got a lot clearer for her.

ILYA –

If we’re talking about moral justice, then yes, I agree. Kirby and many others, but mostly Kirby, were exploited. Even as a kid I knew there was something morally wrong with Chris Claremont being uncerimoniously booted off Marvel after building the whole X-Men franchise almost from scratch for 16 years.

But in a court of law, they have to go with the letter of the law.

I actually wish the heirs luck in trying to get whatever they can from Marvel. I just find it very unlikely that Kirby didn’t know what the conditions of his employment were. I mean, he left Marvel in 1971 and not in a very friendly fashion. He could have tried to take the characters with him then and there, if he felt there were any reasonable doubts. But he didn’t. He even came back to Marvel a few years later.

“I don’t feel Kirby would have latterly been presented with a new definitive declaration to sign unless any previous contract held between company and freelancer – if such contract even existed – was somehow felt to be in doubt.”

Not necessarily. With the Marvel characters growing so big, bigger than anyone first expected, it’s not really surprising that the company would want to reinforce its position even if there were only 1% of chance of Kirby getting the rights back.

Jack Kirby went to work every day and was paid for his services. If he didn’t like the, deal he could have left at any time. Will Eisner created The Spirit in 1940 and never lost the rights. Its not like it wasn’t common knowledge what a creator had to do to keep their work.

What a pity that it came to this, for both parties.

I think the ‘fight’ is being contested by two parties more interested in winning, fame and fortune than the actual characters and work involved.

Here you can watch Stan Lee praising Jack Kirby, saying he couldn’t have done it without him…

http://www.webofstories.com/play/16759

Awhile back, when the depositions went up online, I was reading them and wow, it really shows what money can buy you. Marvel/Disney had the money to hire one of the greatest litigators in the world, and he showed it in his work on the experts on Kirby’s side, so I was not too surprised to see them excluded.

I remember reading the unexpurgeated transcript of Evanier’s testimony and you’re absolutely right. They went at him every way to Sunday– impugning his credibility, his actual expertise, his relationship with Kirby, Kirby’s own recall, and all of it supported their basic premise: “you weren’t in the room in 1960. How would you know?” And it worked.

“But in the real world, the legal system works on the assumption that a man can, in fact, bequeath the fruits of his labors to his heirs so that they will (hopefully) have an easier time of it, economically speaking, than he did when he was just getting started. So if we grant that a man is allowed to bequeath such assets to his heirs, then why shouldn’t his intellectual property rights fall into the same category as more physical assets he worked to acquire?”

Shockingly, unearned privilege is one of the biggest problems in modern society– allowing some Trustifarian to start life on third base while everyone else is forced to hit from the plate is absolutely detrimental to running a modern society. Add to that the ridiculous length of IP rights and it’s not surprising people would suggest that the kids here are just money-grubbing. While I think Marvel shouldn’t have gotten away with ripping off Kirby like he did, there’s no reason that his kids should ever see a benefit from it either.

I can’t 100% disagree with RKajdi here.

I don’t begrudge anyone who inherits a reasonable amount – say a house and a couple of hundred grand.

When people start inheriting millions or talking as if they somehow deserve that inheritance it gets downright silly though. That’s why I’ve never really understood people who hate inheritance tax. To me it seems like the fairest most victimless tax there is.

RKajdi —

I’d never even heard the word “Trustifarian” before. A Google search led me to a page which told me it means a fake hippy who actually has lots of money available (from a trust fund, for instance) to let him buy expensive things if he really wants them.

Getting back to the main point: I really don’t see HOW inherited wealth is “absolutely detrimental to running a modern society.”

In case you were wondering, I am not rich. I don’t have any trust funds generating a fat income for me. But if I ever struck it rich, I would want my (hypothetical) kids and grandkids to benefit from that fact.

On the other hand, I AM very sympathetic to the idea that Congress shouldn’t have kept extending the maximum lifespan of old copyrights.

“But if I ever struck it rich, I would want my (hypothetical) kids and grandkids to benefit from that fact.”

Yeah, exactly. And on the flipside, if I grew up hearing that my parents/grandparents/whatever got screwed over, I’d do my best to earn them some vindication for them.

Note: I’m not saying that the Kirby family was necessarily right. But I don’t think it’s fair to say they’re motivated *just* by greed.

Yeah, sorry Mutt. I’ve made a little bit of money off my dead dad’s music.

I am a bad person.

I don’t know how I can POSSIBLY live with myself.

@ DanCJ

You wrote: “That’s why I’ve never really understood people who hate inheritance tax. To me it seems like the fairest most victimless tax there is.”

The fact is most of the time, the $ that is left to someone’s heirs has already been taxed in some way. Why should the gov’t get more of someone’s money just cause they died? Why does the gov’t deserve it more than the family/heirs? Did the gov’t not get their fair share of the $ before the person died?

i really don’t like the system of taxes in the US, but this one always made no sense to me. If you have an arguement about why the inheritance tax is good or just or reasonable, i would like to hear it. Thanks!

“I am much less certain about the 1940s and Superman. It’s more likely that Shuster and Siegel were tricked or taken advantage of. But Kirby in the 1960s was an experienced professional.”

Didn’t Kirby co-create Captain America in the 1940s?

I’m not sure of the entire legal proceedings in this case (or the Siegel and Shuster one), but I think I’d rather have a certain amount of the monies earned on a certain IP going to the creator, or estate of the creator of the works, rather than back into the giant corporation. I understand that legally the corporation owns the IP and that the corporation is legally considered a person, but… it’s not REALLY a person.

What would be nice, but won’t be done because it would set a “dangerous” precedent for corporations, would be for the corporations to voluntarily pay a certain amount of money to creators for the IP they have created in the past and which continues to make the corporations money. But then people might think they, y’know, DESERVE to be paid for what they toil to create.

Don’t forget, even Stan Lee had to sue Marvel. (What is the status on that one, Brian? I know 5-6 years ago he got a huge judgment in his favor, but has Stan actually been paid anything that he won in the settlement?)

“Getting back to the main point: I really don’t see HOW inherited wealth is “absolutely detrimental to running a modern society.”

In case you were wondering, I am not rich. I don’t have any trust funds generating a fat income for me. But if I ever struck it rich, I would want my (hypothetical) kids and grandkids to benefit from that fact. ”

If you’re trying to run a meritocratic society (which the US at least somewhat tries to be– otherwise there’s absolutely no reason to lionize wealth like we do) unearned privilege is a huge problem. Basically, if you’re trying to select for ability, start some people way ahead of others makes the whole thing a farce. Marvel’s wrong in this case too, but there’s nothing you can do to actually help the aggrieved party, since what was good for Kirby stopped being relevant around 20 years ago. The fact that it’s Marvel/Disney doing the screwing is even more ironic, since Disney is a great plunderer of the public domain while refusing to allow any of its own work to enter said domain due to increasingly long copyright terms.

Sorry, in a reasonable society the children of the rich should have no more right to their parent’s money than any other person. To do otherwise just aggravates the differences in class over time (which is obviously a problem in the US, since it’s GINI index is more in line with a banana republic than a truly modern western nation) I though all this would be pretty obvious to most people, since the odds of “what if I actually strike it rich” are somewhat less than the odds of hitting the lottery.

By the standards that many people seem to be applying, if I buy something that eventually accrues in value, it’s my “moral” obligation to go back to the original owner or their descendents and pony up more cash, or else I’m a “crook”.

This lawsuit seemed to me to be an attempt to change the rules retroactively. Kirby was payed very well for someone who was drawing 12 cent comics featuring characters that no one knew at the time would become valuable properties years after the fact. Indeed, most of the comics that Martin Goodman published over the years ended up in relative if not total obscurity. Of course, no feels sorry for a publisher who backs a failed venture and loses money. Perhaps Goodman should have tried to recoup his investments by suing the people who wrote and drew the failed books. How’s that for “moral” balance?

The problem is also that the publisher effectively gets perpetual control over the created work forever. In an ideal world, the Kirby lawsuit would be unneeded because if the Kirby estate wished to make some of their own books with said characters (or really any of the silver age characters at this point) they’d be able to since their copyright would have expired.

Honestly, half the reason that the Big 2 are so moribund creatively is that they have exclusive rights to keep going back to the well that was dug 40+ years ago. If anyone could write Superman/Spiderman/Batman stories (in the same way as anyone can write Cthulhu, Sherlock Holmes, or Alice in Wonderland stories) i think you’d see both a lot more interesting stories written about said characters (indies have always been more willing to take risks, since they have less to lose) and maybe also the Big 2 would actually start developing some of the characters that they’ve created in the last few decades instead of treating everything newer than Wolverine as some sort of damaged goods.

Jack Kirby created a world full of characters who fought when victory was improbable, who stood with the just and weak against the strong and unjust.

Now, on this board and across the internet, a legion of ill informed people glory in the triumph of the corporation against the family.

Sick at the ways of men, Lau Tzu walked into the desert.

RKajdi said:

“If you’re trying to run a meritocratic society (which the US at least somewhat tries to be– otherwise there’s absolutely no reason to lionize wealth like we do) unearned privilege is a huge problem. Basically, if you’re trying to select for ability, start some people way ahead of others makes the whole thing a farce.”

Well, what you were talking about before, in the post that first drew a response from me, was phrased much more vaguely. You had said: “Shockingly, unearned privilege is one of the biggest problems in modern society– allowing some Trustifarian to start life on third base while everyone else is forced to hit from the plate is absolutely detrimental to running a modern society.”

I wondered how inherited wealth would be so “detrimental” to “modern society.”

Now you’ve finally clarified what you meant. You feel that allowing some people to simply inherit great wealth is totally contradictory to the idea of having any given society be a Pure Meritocracy.

That statement is certainly true — as far as it goes!

But a “modern society” and a “Pure Meritocracy” are not necessarily the same thing. You seem to feel that Meritocracy is the only reasonable basis for running any modern society — but I think that’s a very sweeping assumption, and I can’t think, offhand, of any existing “modern society” which actually tries to do things that way.

In practice, I think there’s a lot to be said in favor of a system where people can be motivated to work hard in order to make life easier for their children.

On the other hand, I agree with you that it would be better if Disney didn’t keep lobbying to have the lifespan of old copyrights extended far beyond the 56 years which was the expected lifespan of anything created in the early-to-mid 20th Century.

danjack wrote:

The fact is most of the time, the $ that is left to someone’s heirs has already been taxed in some way. Why should the gov’t get more of someone’s money just cause they died? Why does the gov’t deserve it more than the family/heirs? Did the gov’t not get their fair share of the $ before the person died?

i really don’t like the system of taxes in the US, but this one always made no sense to me. If you have an arguement about why the inheritance tax is good or just or reasonable, i would like to hear it. Thanks!

I don’t think anyone deserves the money when someone dies. I think it’s a nice courtesy to let the next of kin have something – that something being say, all of it up to about the value of a decent sized house (to avoid people being kicked out of their homes), followed by a modest percentage of anything above that.

The rest I think should go back to the people to help keep the country going. Seeing as the people own the government that seems the most sensible place for it to go.

Plus, the government needs funds, which it has to take through tax and I can’t imagine a tax more painless than one than one that’s paid by people who aren’t alive any more.

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