Posted In: News
Honoring A Fallen King, Part 2
What of the House That Jack Built?
You can also go back a couple of posts and read my first Myrant volley over the Kirby/Marvel judgment.
OF COURSE the courts support corporate America; OF COURSE the deposition that mattered was Stan Lee‘s (without any concern, apparently, over the obvious conflict-of-interest inherent in Stan‘s position, and that is neither a personal attack nor slander, just an observation of long-standing fact); OF COURSE Stan the Company Man toed the company line, as he has all his life.
Having seen in my own lifetime even close friends do the same, OF COURSE this turned out as it has.
Look, I get it.
I got it on Day One.
The least I can do, individually, is forever after spurn all Marvel Kirby-derivative product.
* I am arguing and asserting that there are moral issues at stake; that there is a need to assert those moral rights, and to question why was and is it that, in the case of the Jack Kirby/Stan Lee cocreations in the Marvel Comics universe, that one co-creator (Stan Lee) has been granted exalted stature, protections, earnings, and benefits above and beyond those granted the other co-creator (Jack Kirby); and, furthermore, to argue and assert that Kirby‘s heirs have a moral (and legal) argument of merit.
* I am also arguing and asserting that, in accord with that, if all that is left to me, as a consumer, is to no longer support this morally bankrupt system with my revenue—well, then, I will no longer support Marvel Comics and all its uses of Kirby-derivative works (movies, TV programming, comics, video games, books, graphic novels, etc.) with my dollars or cents.
I urge any and all like-minded folks to do the same, but that’s up to you, individually.
I will never spend another cent on or with Marvel Comics Kirby-derived products (which, frankly, is most of them) until and unless the Kirby heirs earn, are deeded, awarded, or are granted some portion of those revenues.
This is a possibility Marvel (and Disney) willfully deny and withhold.
* Yes, dividing fair payment from Marvel to all co-creators is the ideal: I’m not saying it’s ALL down to Kirby/Lee or Ditko/Lee; I’m using a certain shorthand to try to succinctly articulate my focused ire at the very current Kirby/Marvel legal decision.
This ideal applies across the board, to all involved in key core creation of characters/concepts that fuel entire industries.
As I noted, Len Wein and the late, great Dave Cockrum should have earned, and Len still earn, from their dramatic revamp of The Uncanny X-Men (beyond simply reprint fees or reprint royalties).
You all get the point.
* Accountants and lawyers divvy up income along property lines EVERY MOMENT of EVERY DAY; cutting creators out isn’t defensible, when you know how fiscal pies are divided up among various proprietary owners/interests as a matter of course.
Accountants regularly divvy up revenue streams to corporate/company partnerships, proprietors, etc. as a matter of course.
Ensuring the creators share, even a little, in the ongoing earnings, and/or potential earnings, is the issue.
They can; they should; in many cases, some do.
* And as for heirs: PLEASE.
Heirs earn from inherited real estate, patents, companies, stocks, bonds, etc.; this isn’t rocket science.
The argument that heirs shouldn’t earn from the labors of parent creators is completely and offensively nonsensical bullshit—fortunes, and earnings from ongoing revenue streams, are passed on every day, everywhere. Arguing that real revenue-creating and generating properties like comic book characters/titles/concepts aren’t the same turf is more defeatist horseshit.
I want my now-adult kids to forever benefit off any potential earning of anything in my lifetime I’ve actually created, co-created, and have a legal stake in. Royalties, creator shares, etc. should go to them after I’m gone.
Are some of you actually arguing to the contrary? And if so, on what basis?
That is not the case I am making.
Understand, work-for-hire isn’t the foe per se.
While I share the Graphic Artists Guild’s perspective that work-made-for-hire is an inherently corrupt and corrupting legal fiction indulged by our culture, and strongly identify with and empathize with the firm stands against work-for-hire taken by good friends like cartoonist Skip Morrow, the unfortunate fact is that I have tainted my own creative life with work-for-hire, past, present, and future. I still earn income quarterly off my past work-for-hire efforts. I am currently subsidizing work-for-hire efforts on my own characters; I am currently doing work-for-hire work. I am complicit; still, I maintain there are fair work-for-hire practices and contracts.
For instance: given Alan Moore‘s publicly-known current stance concerning all the work he and I did together that I have any legal proprietary stake in, there is no little irony in the fact (fact) that the only work we did together over our decade of collaborative work together that I can and do earn income from is the work-for-hire work we did together (with John Totleben, Rick Veitch, Alfredo Alcala, John Constanza, and Tatjana Wood, under editors Len Wein and Karen Berger) on Swamp Thing.
There is no little irony in the fact (fact) that the handful of characters/properties I currently own (per contractual arrangment with the respective co-creator) and must apply work-f0r-hire agreements to for any future incarnations are the quartet of characters and pair of titles that were contracted to me in 1998 by Alan Moore after our division of the 1963 creative properties (published in 1993 by Image Comics).
I am not happy about all this, but there it is.
Work-for-hire sans royalties, sans recognition of core creator roles/credit, sans any share of revenues for key creators (as in first-creators, or those creating significant new incarnations of characters which reboot properties, a’la Wein/Cockrum on X-Men) is the problem.
There are work-for-hire contracts, systems, and transactions that do adequately compensate and treat those who work within them—as I noted, DC‘s dealings with Moore/Totleben/Veitch/Bissette on John Constantine is a case in point.
Furthermore, legally foisting work-for-hire as a legal premise of justification for creative theft, rather than fostering and sustaining creative collaboration in which primary creators of characters/concepts/titles/properties of lasting value to corporate media entities share in the earnings of creative labor, is among the moral issues on the table here for the Kirby family, and for everyone.
Work-for-hire is a fact of legal and professional life in North America, specifically in the industry I worked within for almost three full decades (and have, of late, returned to).
When I drew Swamp Thing, I did not own Swamp Thing, nor did I have any legal claim to own Swamp Thing. I should not have any claim to own Swamp Thing; I didn’t create or co-create Swamp Thing.
Work-for-hire language makes it possible for freelancers like me to occasionally work on characters I have neither created, co-created, nor should have any creator or co-creator ownership of.
I have no legal claim to Swamp Thing; yet, I still earn from my labors on Swamp Thing, as I was fortunate enough to collaborate on work of lasting value to the publisher, and which is still in print.
More to the point: I had and have no legal claim to The Demon; yet, I got to draw the Demon, a Jack Kirby creation. I earn royalties to this day from my three-issue Swamp Thing story arc featuring the Demon, who also appeared in subsequent issues of Swamp Thing that Alan Moore, Rick Veitch, John Totleben, and I still earn royalties from.
The same should have been true and possible for Jack Kirby; the same should be true and possible for his heirs, now that Jack is gone.
Let’s not get overly simplistic or jingoistic in our passion over this—the legal principles at stake are real, but the ipso facto assumption that work-for-hire is in and of itself the “villain,” if you will, is clearly not the case.
Marvel, all along, has made choices, which led to the current situation.
I wish Len and Berni earned something, too, for EVERY Swamp Thing appearance—that, in principle and in fact, is in large part what I’m fighting for, if you will.
But the fact remains that Jack Kirby‘s work contributed MORE to a SINGLE publisher/media giant—Marvel—than the labors of any other single creator other than Stan Lee in the history of the Silver Age and post-Silver Age.
Kirby is an exception; and an exception can and should be made here.
Again: As is obvious to anyone who knows my work, I have done work-for-hire work, and have often done so earning fair royalties, co-creator shares (specifically from John Constantine, Hellblazer and its various incarnations, merchandizings, and licenses), etc. I continue to occasionally do work-for-hire work (I am now).
Work-for-hire agreements are not in and of themselves unfair or odious, nor do they have to be. Work-for-hire agreements can and often do pay fair rates, guarantee fair royalties, and even grant creators and co-creators fair shares of any and all future exploitation of their respective characters and/or concepts.
However, some of the worst abuses of creators I have seen in this and other fields are linked to work-for-hire language and contracts (specifically, the worst I have ever seen came out of Archie Comics, Disney, and various gaming companies, none of whom I have personally worked for under such contracts, though I have copies of those contracts in my files).
Marvel Comics retroactive work-for-hire contracts were foisted upon me and many of my generation, under reprehensible conditions and terms.
I believe the pattern of behavior from Marvel Comics towards its freelancers should and is under scrutiny here; and the public needs to be made aware of some of these legal issues, these company conditions of “employment” with freelancers and company behaviors toward freelancers—and, above all, the singular extraordinary case of Jack Kirby and his importance to the whole of the Marvel Comics empire.
Back to work-for-hire:
I am not proud of or comfortable with this, but it’s the only way under North American copyright and trademark laws to protect standing character and title trademarks (assignment-of-copyright language would also serve, but not as well, to maintain the necessary proprietorship of my characters and titles).
In those cases, those who work with or for me will earn royalties if profits are earned, and in the one case of new characters derived from my characters, the creators involved will be taken care of by contracts guaranteeing them co-creator status, credit, and co-creator shares of any future earnings.
* If anyone needs some basics of copyright law at their fingertips to understand what’s at stake here, it’s all online, via the U.S. Copyright Office.
* Note that work-for-hire was specifically revised in 1976 to meet very specific criteria, as detailed on page 2 of “Copyright Basics,” in the section entitled “Who Can Claim Copyright?”:
In the case of works made for hire, the employer and not the employee is considered to be the author.
Section 101 of the copyright law defines a “work made for hire” as:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answer material for a test
• an atlas
[or] if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
Note that (a) Jack Kirby was a freelancer; he was not an employee of Marvel Comics (being an employee requires earning the benefits of an employee, and having state and federal taxes handled by the employer taken from the employee’s weekly paychecks, which traditionally does not apply to freelancers, who almost never earn weekly paychecks, either),
(b) legally, though comics publishers from 1977 on scrambled to embrace the language, comics are collaborative works, not (as with textbooks, encyclopedias, etc.) legally defined as “collective works,” or “contributions to a collective work,” which believe you me was agonized over by legal departments in legal contracts I have in my files dating from about 1977 to about 1982. It is arguable that Golden Age comics, or pre-Silver Age anthology comics, with their mix of comics main stories, back-up features, information-only single pagers, and various text features, may have fit the term “collective works,” but those formats had (with the arguable exception of the Classics Illustrated “World Around Us” series and one-shot specials) ceased to exist.
Thus, (c) the only section of the 1976 Copyright Act revision relative to the Kirby/Marvel case is “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
What the nature of those “written instruments” were (retroactive?), when they were drafted and signed, and under what conditions, is of central interest to this discussion.
* If bile is being cast at Stan Lee, it’s because he hasn’t risen to the behavior of his heroic characters.
Look, I like Stan (I met him once during my second visit to the Marvel offices in 1977; he smiled at me and was very kind and supportive in about two minutes).
The worst I’ve said (I think; correct me if I’m wrong) is he “damned” himself with his deposition testimony. I stand by that perception and statement.
I have great respect for Stan, what he did, what he wrote, what he built, but his deposition is shameful.
At no point in his deposition did Stan note that he could not draw the comic, or that his “idea” could not have been copyrighted or published until it was realized as a concrete expression of Stan‘s “idea” by another pair of hands, or the absolute necessity of the artist to the comicbook, or that of the thousands of characters he co-created from the 1940s onward, it’s just those he co-created with Jack Kirby (and Steve Ditko) that have become the essential foundation and spearhead of the entire Marvel media machine.
Thus, a legal fiction—that Stan‘s “idea” was in and of itself paramount (though it was not copyrightable until it was expressed, and hence, not copyrightable)—was allowed to stand to support the real legal fiction (since 1909) of work-for-hire as a means by which companies and corporations become the legal “authors” and “artists”—hence, creators—of a given “work.”
This is worst than unfortunate or unfair: it has damned the Kirby heirs to more years of suffering atop that they have suffered, consigned them to further abuse, humiliation, and costly legal proceedings (if, indeed, they can proceed or afford to proceed any further; they will likely be advised not to), and further maligned, slandered, and trivialized Jack Kirby as a man, an artist, and creator.
It’s beyond sad or tragic; one does not see Stan deeding a portion of his annual income to the Kirby heirs, for instance.
I tell you this: I willingly sent Rick Veitch a portion of my quarterly royalties from the issues of Swamp Thing Rick penciled with me, from 1985 until 1999; I kept strict bookkeeping records, and was scrupulous about sending those checks to Rick. He did not ask for it, but I always sent it (BTW, I never got a “share” of the script royalties from those issues I co-plotted with John Totleben, but that’s neither here nor there; it was right to cut Rick an ongoing share of those payments, and I only stopped upon my retirement from comics, and I notified Rick at that time of that decision).
I tell you this: Berni Wrightson and Len Wein got “bonus checks” from DC in the early 1990s for Swamp Thing activity (licensing, I presume); note that Len and Berni do not, to my knowledge, earn actual royalties from anything except the reprints of their ten issues of Swamp Thing (they earn no creator share from the character, title, or concept, to my knowledge; Len, Berni, please correct me if I’m wrong, or if that has changed). When Berni recieved his bonus check, Berni incredibly sent a share to Alan Moore, Rick Veitch, John Totleben, and myself, a gesture of unbelievable generosity and creative comraderie. When asked why, Berni told John and I (personally, during a visit to the Tundra offices), “Because it’s your guys work that earned us this.”
So, in that context, I ask, on a personal and professional level: where is Stan in all this?
Again, Stan Lee has brought this all on himself.
There were decades in which to redress this, to do “the right thing.” He let Jack dangle. Now, Jack‘s family is left to dangle.
Simply put, these “characters” without the life invested into them by their original artist co-creators would have had no life—in copyright terms, no expression, which is all that copyright does and can protect—in the first place.
We can dance and dance around this, but had there been no visual character design, there would have been no Spider-Man, no Fantastic Four, no X-Men, etc. Period.
Where is Stan Lee on this issue?
Consider, if you will, the Stan Lee interview from Jonathan Ross‘s BBC documentary In Search of Steve Ditko:
In the terms of copyright law, in the words of the U.S. Copyright Office itself, the fact is that the expression of an idea is all that can be copyrighted.
An idea is useless, sans a material expression of that idea: for instance, one cannot copyright “Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);” and any comic writer’s ideas can be expressed in the form of a script, which can be copyrighted.
Characters, however, and character designs, necessarily involve visual expression in the form of drawings; hence, one must necessarily acknowledge any artist who gave or gives initial form to a character as a co-creator, strictly speaking.
I’ll refresh memories and write more about this in my next text post—since Ditko was noticably absent from the depositions and all this recent legal action, due no doubt in part to the controversial claim Kirby‘s heirs have made concerning Jack‘s role (if any) in creating/co-creating Spider-Man, it’s apparently up to us to sort out from Ditko‘s own precise texts concerning his relationship with Stan Lee what might be relevant to the Kirby co-creation histories.
In the meanwhile, there’s plenty to read online since my Friday post, as others discuss the Kirby/Marvel case, verdict, and its consequences.
…and so it goes this week.
as if we all needed that asserted.
I fully expected John Byrne‘s stance (and he did not disappoint; I’ll bite my tongue at present about this, for the sake of civility and brevity), but many of the online exchanges on the comments threads and various comics boards about Jack Kirby‘s legacy reveal a bizarre and often spiteful and vicious misanthropy, borderline psychosis, and even sociopathic resentment of and for a great man’s great works; corporate culture really has sold a toxic bill of goods to a generation, hasn’t it?
Though everyone has Motherboxes, the Anti-Life Equation has claimed many…
The only “right” answer is for Marvel to DO right. They haven’t and won’t. So, “right answer” or not, it’s a start: deny them our funds. Naive? Nuts? It’s the LEAST we can do.
I do wish to cite one of John Byrne‘s online comments, though (linked above; scroll down once you get to that byrnerobotics.com board thread). Byrne wrote, and I quote verbatim:
What makes Kirby UNIQUE is that he’s the corner stone on which modern Marvel house has been built.
A cornerstone. He worked in collaboration with Stan Lee AND, much as the more maniacal Kirby-boosters would wish it otherwise, it was SPIDER-MAN that put the company on that map. And, again, much as some would wish it otherwise, Kirby had nothing to do with that character.
No other single creator comes close to how much valuable he has been to Marvel or the whole industry.
Spider-Man. Steve Ditko. Remove these from the equation, and do we still have Marvel?
If there is one thing that infuriates me more than perhaps any other swill I see and hear from some corners of fandom, it is this eagerness to erase Steve Ditko. Perhaps it is because Ditko had the same “deal” with Marvel that Kirby had, but, unlike Kirby, has accepted (albeit bitterly) the situation as it is, not tried to wish it into something it never was.
So Ditko MUST be ignored, or the house of cards built by Kirby‘s supporters quickly falls apart.
Well, John, no.
This will be ongoing—but for my next essay, I’ll be tapping into Steve Ditko‘s writings on his work with Stan Lee, since Steve Ditko was there, and his recollections and writings (which continue to be summarily ignored) do matter.
Be here, let’s dance.