Who Needs The Avengers?

Marvel/Disney Want You Lining Up at the Box-Office; Don’t.

Talking the Talk: Captain America® and ©Marvel Entertainment Group, Inc., or whatever their current moniker might be at this moment; all rights reserved, not posted with permission, but for archival and political purposes only, Fair Use under the terms of the still-in-effect Copyright Act—here’s Captain America spouting the kind of thing Marvel loves to have Captain America proclaim, while they merrily mash the Kirby legacy and heirs into the dirt.
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This was the opening of the initial Avengers movie preview I caught in theaters:

“You were made to be ruled.”

“In the end, it will be every man for himself.”

Is Marvel talking to US?

Because, in a nutshell, that pretty much sums it all up, from the Marvel/Disney perspective:

We were made to be ruled.

And it clearly is every man for himself.

Is it too arch to note that Jack Kirby—crib, midwife, co-creator of nearly all the current Marvel exploits—saw this coming and said as much after his departure from Marvel (as it was, circa 1972)?

Himon/Jack Kirby: “I’m a dreamer! A visionary! A ‘think-tank’ who pioneered … I dream! I roam the universe! Darkseid wants to own it!… if Darkseid puts an end to all other dreams but his!” (Mister Miracle #9, 1972; image below ©1972, 2012 DC Comics, Inc./DC Entertainment, Inc.).

Supplant “Darkseid” with “Marvel/Disney” in Jack’s dialogue…

It was, in part, Jack Kirby and Stan Lee‘s dreams that fueled my own.

I don’t want your dreams any longer, Marvel Comics.

It was Kirby‘s dreams that fed me.

A close friend asked today, since he’s bought Marvel Kirby-derivative product all his life, “What makes the movie so different?”

EVERYTHING Marvel has done with Kirby derived-product since the summer 2011 judgment is different because it follows the summer 2011 judgment.

Marvel has had decades to work this out; Marvel chose, blazed, explored, and enforced this path.

DC Comics, Paul Levitz, and Jenette Kahn started working out ways to work royalty shares with Kirby while he was still alive (using Super Powers as the initial vehicle [thanks to "Atomik Kommie" for the correction; see comments thread, below]).

Marvel hasn’t. Marvel has repeatedly demonstrated, from the late 1960s to today, that they’re not even remotely interested in “working out ways” to resolve this.

Fine. It’s their business.

And they’re getting no more of mine.

For me, it’s simple: the judgment of 2011 was the straw that broke the camel’s back. Do what you want; I’ve had it with Marvel as a consumer at this point.

I won’t be seeing The Avengers movie. I will encourage others to avoid it, if and as I can.

The thought of sitting through another bloated multi-million dollar-budgeted charade about how “it’s right to fight for justice” when Marvel/Disney can’t cough up the equivalent of, say, one day‘s shooting budget for catering or grips to toss a bone to Jack‘s heirs—well, that act of enduring that film isn’t at all attractive or appealing to me any longer on any level.

THE AVENGERS? It’s a sham.

The only “team effort” Marvel/Disney understands, or chooses to apply to real-world treatment of those (other than Stan Lee; more on that later this week) who ensured there even was a Marvel Comics for Disney to purchase in 2010, is the team of lawyers they’ve regularly paid to ensure Jack Kirby, in his lifetime, and Jack Kirby‘s heirs, since his death, get NOTHING.

Justice? Spare me.

Teams of superheroes “fighting for right against impossible odds”?? Marvel/Disney demonstrated how little they believe in the core principles of their own corporate parables.

If they don’t believe it, I sure don’t buy it—and I’m NOT buying it, or anything like it, until Marvel/Disney demonstrate they’ve got a fraction of the principles of their fictional constructs.

Having a tough time explaining the Jack Kirby/Marvel Comics judgment injustice? It’s simple: “Shouldn’t Margaret Mitchell have earned income from Gone With the Wind when it became a movie? Shouldn’t her heirs? Especially if she’d written, like, 300 Gone With the Winds?”

Insert “Stephen King” in place of Margaret Mitchell‘s name if they’re—or you’re—that dense.

Work-for-hire or not, it’s piss-poor capitalism to NOT reward innovation.

Work-for-hire does not, ipso facto, mean a creator or co-creator benefits not at all from their creations earning (in this case) billions for the parent corporation. I earn royalties on Swamp Thing to this day. Every quarter, they show up. I earn more royalties for John Constantine, Hellblazer; when the movie option yielded a movie, we each banked a $45,000 check from our fraction of a percent of our co-creator shares.

Bob Heer pointed out in August 2011 that “Todd Klein recently wrote about a minor Green Lantern character he co-created back in the 1980s and how he was recently offered a revised rights contract for the character to be used in the movie and related merchandizing, which already paid him more than he got for writing the stories in the first place.”

  • Todd’s Blog: Blog Archive: “The story behind my brief Hollywood moment and how I missed it”
  • Bob Heer added, “I’ve heard at least two creators say that the reprint money they got for some 1970s work for DC was more than their original page rate. Now, a lot of that speaks to how low their original page rate was, but it’s also an indication that reprint money isn’t unsubstantial. Especially when, like with Kirby, the volume is so high (Marvel’s probably reprinted at least 1000 pages of Kirby artwork a year since 2005).”

    At least.

    I’ve certainly earned far, far more in reprint royalties from Swamp Thing than I ever, ever earned while doing the book (when my first wife and I were scraping by, with two kids, on poverty-level income with both of us working).

    Jack clearly had his regrets about how badly he had handled his own affairs in his lifetime.

    People forget

    (a) Jack signed no contracts originally, as the real work was done in the 1960s;

    (b) Jack worked in an industry that not only discouraged freelancers having legal representation, but actually shut out and black-balled freelancers who dared to mention either agents or lawyers (such was the case, still, when I entered the field in 1977, with the notable exception of Mike Friedrich being the first agent Marvel and DC tolerated, since Mike had written for both companies prior to establishing his agency);

    (c) Martin Goodman (prior to his selling off Marvel at the end of the 1960s) and Marvel used coercion, duress, and all manner of strong-arming and bullying in dealing with Jack;

    (d) Jack was terrified of not working, and the field was very limited in terms of alternatives in the 1960s.

    The fact is, Marvel was Jack’s last-ditch station by 1959, and if it weren’t for Carmine Infantino becoming publisher at DC in the late 1960s, Jack wouldn’t have had anywhere to go from Marvel when he left the company.

    Back in January, responding to my interview with Tom Spurgeon

  • (here it is),
  • Daniel W. Ring wrote on Facebook:

    “I like what you said about Kirby’s heirs Vs. Marvel/Disney. Remind of one the last things Jack Kirby said before he died. Kirby was asked what advice he would give anyone going into comics for the first time, “Get an entertainment lawyer.” he said.”

    That same week on Facebook, Scott Shaw! cited my calling out Scott by name in the interview with Tom Sturgeon, where I said:

    “Even the die-hard Kirby fans, and die-hard Kirby pro fans, who posted with such enthusiasm on Facebook the week the Captain America movie opened, actively resented, reviled, and/or shunned my stance and argument. When I can’t convince as rabid a Kirby lover (as well as nice guy and terrific cartoonist) as Scott Shaw! that this doesn’t outweigh the addiction to Kirby-derivative media that doesn’t pay a red cent to Kirby‘s family — and I’m not meaning to be unfair to pick on Scott here, but he’s a clear example of the passionate Kirby fan and devotee who isn’t a Marvel employee who continues to support the status quo—I’m not sure there is any traction to be had, frankly. So, I speak up whenever I see that happening. Which, as far as I can see, has only made me a pariah in new arenas. Big deal. The whole vicious cycle will play out when The Avengers movie promo machine revs up and then hits.”

    Well, it’s time.

    The Avengers movie is just about here.

    Do it.

  • Click this link; sign the petition.
  • ____________________

    Need more input?

  • James Sturm on Marvel, Jack Kirby, and doing what’s right:
  • “What makes this situation especially hard to stomach is that Marvel’s media empire was built on the backs of characters whose defining trait as superheroes is the willingness to fight for what is right. It takes a lot of corporate moxie to put Thor and Captain America on the big screen and have them battle for honor and justice when behind the scenes the parent company acts like a cold-blooded supervillain. As Stan Lee famously wrote, “With great power comes great responsibility.”

    If Mitt Romney is right, and corporations are people, perhaps Marvel/Disney has the capacity to feel shame. …Tom Spurgeon…framed the issue in moral terms, as did the cartoonist Seth: “The corporate lie about Kirby’s role in the creation of all those characters is abhorrent. It’s a bold faced lie. Everyone knows it’s a lie. No one is fooled. Everyone lying for the company should be ashamed. Stan Lee should be ashamed. What the Marvel corporation is doing might be legal but it certainly isn’t right.”

    A boycott of The Avengers and other Marvel movies could conceivably strike a blow in the only place that truly hurts a corporation: its bottom line….”

    What are YOU gonna do, “True Believer”?

  • Here’s the Seth boycott letter for those interested: Mystery Hoard: Marvel Boycott Diary #6: Seth
  • “The corporate lie about Kirby’s role in the creation of all those characters is abhorrent. It’s a bold faced lie. Everyone knows it’s a lie. No one is fooled. Everyone lying for the company should be ashamed. Stan Lee should be ashamed. What the Marvel corporation is doing might be legal but it certainly isn’t right.

    I was even more disheartened to read some of the comments of comics fans last week. A great number of whom clearly have more sympathy for the Corporation than the people who crafted the comics they grew up with. I cannot understand this and I won’t bother to try. No matter what you think of the Lee/Kirby collaboration and of who did what –I simply cannot understand how anyone could agree that Mr. Kirby does not deserve at least the same credit and compensation as Mr. Lee.”

    Next: Mr. Lee.


    Discussion (29) ¬

    1. Egypt Urnash

      Signed.

      I’m not a fan of superheros in general, so the Avengers film isn’t on my list anyway – but my copies of the Fourth World Omnibuses are a shining beacon of inspiration every time I flip through them.

    2. James Robert Smith

      I won’t watch that movie or any other Marvel movie based on intellectual property they stole from the creators.

    3. Richard Caldwell

      Boycotting Marvel and their products, regardless of medium…yes! I’ll go one further and urge all Marvel staff and talent to go on strike. Walk on those contracts. The “corporations are people too” line has been used since the authoring of the fourteenth amendment. So why aren’t more creators concerned over this? Or concerned at how many contracts were disrupted in DC’s relaunch? Because corporations, sick as it sounds, are still favored more highly than are individuals in Western Capitalism. So I say let the writers and artists walk. Let them remind their white collar handlers who’s really making the money for all parties concerned. And lets see a glorious mass exodus of talent back into small press. If only more artists had balls…

    4. Atomic Kommie Comics

      Actually, it was the “Super Powers” toy line, not “Super Friends”.
      By having Kirby redesign the Fourth World characters in 1983-84 for the toy line, DC claimed them as “new” characters, enabling the King to collect royalties on their use that he couldn’t under the contract he actually created them in the 1970s.

    5. Thad

      I’m not much for Internet petitions, but kudos to you, Sturm, Seth, Adams, and the rest for speaking up — it was a vocal group of creators who caused a wave of negative publicity and shamed DC into working out a deal with Siegel and Shuster, and I’d love to see this snowball in a similar fashion.

      My understanding is that Scott Shaw’s involved in a rights dispute of his own; he’s a witness for the defense in Archie v Penders. He, Penders, and others are claiming that they never signed any contracts prior to their work on Archie’s Sonic the Hedgehog. (There’s more at http://www.tssznews.com/2012/02/13/inside-the-archie-v-penders-pre-trial-report/ .) I’m a bit skeptical that 1990′s-era Archie would have made such a glaring mistake given the company’s history of strongarming creators, but maybe they were sloppier with their licensed properties than with their own properties. (I’ve heard that part of why their TMNT series was retooled and, shortly after, canceled was that Steve Murphy retained the copyrights on half the characters and that made them nervous. That’s just forum gossip and not something I have a primary source for, but it seems plausible to me, and the TMNT series was wrapping up right around the time Penders started on Sonic — which was a couple years after Shaw did.) At any rate, I’m skeptical but I’m rooting for the creators.

      Anyhow, I’m with you. Didn’t see Cap, won’t see Avengers (unless this DOES turn into a situation where they work out an eleventh-hour deal, like Superman). Haven’t been buying Kirby-derived Marvel product at all for most of the past year; I’m still picking up Deadpool but I’m considering dropping it too.

    6. Jan Soechtig

      The scandal here for some of us isn’t that the Kirby heirs aren’t getting a cut, it’s that this material isn’t in the public domain. If it weren’t for the Mickey Mouse protection acts of 1976 and 1998, the copyrights on the material would have expired.

      Kirby signed an agreement with Marvel in 1972–two years after he left the company–that acknowledged the material was done on a for-hire basis. And in spite Mark Evanier’s unelaborated claims elsewhere, there was no evidence presented of the agreement being signed under duress. Evanier himself made no reference to it in his deposition. The only way to get around the agreement would be evidence that the material was preexisting work that was purchased by Marvel rather than work commissioned by them. Since there is no documentation in support of this, all that was left was firsthand testimony. The only person who could provide that was Stan Lee, and he essentially corroborated Kirby’s statements in the 1972 agreement.

      The Kirby heirs are not going to prevail in court. The summary judgment means there is next to no chance of a settlement in their favor.

      Anyone who thinks this could snowball the way the Siegel and Shuster situation did in the 1970s is misguided. In that case, it’s not hard to imagine the public’s heart going out to two destitute and ailing co-creators who couldn’t even get a credit byline. You are not going to see that kind of sympathy for the middle-aged children of a creator who died 18 years ago. They have had more than enough opportunity to build their own lives. People may think that it’d be nice if the heirs got something, but few are going to be particularly put off if they don’t.

      If you don’t want to see a movie because it is going to leave a bad taste in your mouth, then don’t see it. But getting all worked up over this situation is a waste of time and energy. It’s not going to accomplish anything. All one is doing is patting oneself on the back, and I would hope one would have more productive things to do.

    7. patrick ford

      To be considered a “pariah” by the MickeyMouse/MMMS is a badge of honor.
      Very much looking forward to the follow-up.
      BTW. I’d like to see more people not back down so easily on the Work For Hire issue.
      Kirby had no contract, and there IS substantial evidence he was offering characters to Marvel on spec. His rejected version of Spiderman is the best example, but it buttressed by his offering Marvel other characters which were rejected, and later used by DC and Topps. Captain Glory was presented to Marvel as a redesigned Captain America. A similar revamp of Thor was also proposed and rejected, and Kirby offered the New Gods characters as well.
      Marvel/Disney was not even able to show a canceled check with Kirby name on it from the ’60s.
      Disney was so worried about this issue they had Mr. Lee give false testimony Marvel always paid creators for rejected work.

    8. patrick ford

      Everyone should be aware the depositions were heavily redacted. Disney/Marvel asked for and was granted a Protective Order covering the depositions. As a result only a fraction of the depositions have been made public.

    9. Thad

      @Jan: Well, I won’t argue with your complaint about copyright extensions. Disney has effectively destroyed the public domain (particularly ironic for a brand that has built its movie empire on public-domain fairy tales) and I think that’s pretty damn wrong.

      That said, the Avengers (except Cap) would still be under copyright even under the original 56-year term.

      Per the ’72 agreement: you can’t retroactively make a work for-hire. The ’72 agreement stands unless historical evidence surfaces that contradicts it. If there’s hard evidence that Kirby worked on spec, then it doesn’t matter what he said about it later.

      The part that’s galling is that, if such evidence exists, it was somewhere in the stack of artwork that Marvel agreed to return to him and then “lost”.

      Per the court situation: you’re probably right. But that’s not what Steve’s talking about here; he’s acknowledged that the Kirbys will likely never prevail in court, and that’s why he’s taking a stand on ethical grounds.

      Per Evanier’s deposition: as Patrick said, the complete deposition was not released. We know some of what Evanier said, but we can’t conclusively talk about things he DIDN’T say. I think it’s entirely reasonable to assume Kirby went back to Marvel because he felt that was the only way he could make a decent living — and Marvel said they wouldn’t give it to him until he signed the documents. Sounds like duress to me, particularly in light of the hoops they tried to make him jump through a few years later.

      Per the public sentiment toward the Kirby heirs likely being tepid: you’re probably right, but that doesn’t mean that it should be. If your answer to the question, “Why should the Lees get more money than the Kirbys?” is “Because Kirby died first” then I am inclined to disagree on both logical and ethical grounds.

      I find the “they’ve had time to make their own way” talk a little offensive TBH, especially considering that the people turning a major profit on Kirby’s work include Roy Disney III and Bob Iger — would you say that those guys made their own way and never profited from family connections?

      And per your closing paragraph, the trouble is that you can apply those statements to virtually anything. No, I’m not losing sleep over Marvel’s treatment of Kirby. (Well, maybe a little — I’m typing this when I could be in bed.) Yes, I do have strong feelings about it. I suffer no illusions about whether those opinions are likely to make an impact on how Disney conducts business, but I still have them and I don’t see anything wrong with that.

      @Patrick: While I’m sure Marvel’s coached Lee over what to say, I doubt he’s taken too much convincing, and per Hanlon’s Razor I’d say his testimony was consistent with his usual embellishments. (My favorite part is where he claims credit for deciding Thor should be the son of Odin.) I don’t think he’s malicious; I think he legitimately believes the story the way he tells it.

    10. Jan Soechtig

      There’s clear evidence that Kirby didn’t work on spec all the time. The Spider-Man vs. the Human Torch story in Amazing Spider-Man #8 was obviously commissioned. So was the Sub-Mariner v. Iron Man story (which Kirby took over from Gene Colan) in Tales to Astonish #82. A 1966 New York Herald Tribune story about Marvel included an account of a plot brainstorming session between Lee and Kirby that the reporter had witnessed firsthand. The story that resulted from the session would have been commissioned

      By the way, what is at issue in the legal case is not Kirby’s ’60s work for Marvel in toto. It is the material in 45 specific publications produced between 1958 and 1963. Now, since Kirby worked on commission for Marvel at least some of the time, the heirs would have to be able to prove that he didn’t work on commission in those instances. They can’t.

      Kirby did not work for Marvel between 1970 and 1975. He was not dependent on Marvel for income when he signed the acknowledgement agreement in 1972. There doesn’t appear to be a case for duress.

    11. patrick ford

      The ’72 agreement was not helpful to Disney/Marvel because retroactive agreements are not applicable.
      Most people don’t understand the ’72 agreement was introduced by Toberoff as a way of showing, by asking Kirby to sign away his rights. Marvel was acknowledging Kirby had rights to sign away.
      In her ruling the judge said it was just the opposite, the agreement said Kirby had no rights, and by signing the agreement Kirby acknowledged he had no rights. That part of the judges ruling was challenged on appeal by Toberoff who pointed out the judge had selectively edited the portion of the agreement which said Kirby was signing away rights he has or may have. In plain terms the agreement said, “You don’t have rights, and you agree to that, but if you do have rights, or if you might have rights, you are signing those away as well.”
      Toberoff tried to show Kirby worked on spec. He didn’t have to show KIrby worked on spec in every single instance, only that Kirby offered Marvel characters like Spiderman, Captain Glory, and The New Gods, on spec.
      The judge was very specific in basing her ruling on Stan Lee’s testimony that he alone created every single character (without exception) and every single plot (without exception) completely alone before ever speaking to Kirby. In fact Lee went so far in his testimony as to say he had described the characters in visual terms to Kirby.

    12. Atomic Kommie Comics

      “A 1966 New York Herald Tribune story about Marvel included an account of a plot brainstorming session between Lee and Kirby that the reporter had witnessed firsthand. The story that resulted from the session would have been commissioned.”

      The same Herald-Tribune story clearly shows that the Silver Surfer was entirely created by Jack Kirby.
      Stan Lee points out the Surfer on a page and mentions that, when he first saw the art, he wondered who the hell it was, since there had been no discussion about such a character!
      Lee then tells the article writer that Kirby came up with the Skyrider of the Spaceways since Galactus, who was constantly feeding, wouldn’t have the time to seach for likely planets to eat, so he’d employ a servant to do the exploring, then lead him to dinner!

    13. Thad

      @Jan: Indeed, you can’t prove a negative.

      I stand corrected on the timeframe of Kirby’s return to Marvel. Still, he signed the agreement because he got something out of it, and it’s not hard to imagine it was something he thought he really needed.

      @Patrick/Atomic: Stan DID mention Silver Surfer as a character Kirby created without his input. The judge still decided in Marvel’s favor because the story itself was commissioned by Marvel.

      Of course, again, if there were evidence that Kirby had sketched up the Silver Surfer on his own, prior to inclusion in FF, that would mean that he wasn’t WFH and is eligible for termination. But as we know no such evidence has surfaced.

      And @Patrick: Certainly I think that “I don’t have any rights (and if I do I’m signing them away)” sounds awfully fishy and contradictory. But the judge says that’s a pretty standard legal strategy and it makes sense to me — make one assertion, and then a backup assertion in case the first one is thrown out in court.

      But I think Toberoff is exactly right to focus on that. It DOES seem to indicate that Marvel thinks Kirby might have a case — why else put it in there?

    14. Jan Soechtig

      1. The Silver Surfer’s first appearance was in the March 1966 issue of The Fantastic Four. It’s outside the material parameters of the suit.

      2. Lee has acknowledged on several occasions that Kirby came up with the Silver Surfer independently of him, including the introduction to the character he wrote for the Son of Origins of Marvel Comics anthology.

      3. Based on Lee’s account, Kirby did not come up with the character on spec. He did not create the character and then propose it to Marvel for use. He was commissioned to produce a Fantastic Four story and included the character in it. Any proprietary claim he had on that character was gone once he turned the story in.

    15. Jan Soechtig

      @Thad

      I’m certain Kirby received money for signing the agreement, but that’s not the same as duress. Duress is defined as “compulsion by threat.” If he wasn’t dependent on them for income at the time, and had no expectation of it in the foreseeable future–he didn’t do any work for Marvel for another three years–I don’t see what Marvel could have threatened him with.

      Lawyers cover all bases when drafting contracts. As a rule, business contracts include a lot of redundancies. A contract that leaves room for ambiguity is a poorly written contract.

    16. patrick ford

      The Surfer wasn’t at issue. The time period in question covers only 1958-1963.
      It is absolutely NOT necessary for Toberoff to prove everything Kirby did was done on spec. In the Superman case Toberoff asked for a full loaf, and I’m sure he was trilled to get a couple of slices.
      It’s standard procedure to ask for everything an attorney thinks there is any chance at all of reclaiming. Part of that is to use as bargaining chips in settlement talks. Those talks were underway, and contrary to fan propaganda it was Disney which broke them off. Toberoff covers the settlement talks in his appeals brief. There were two meetings in early December. Toberoff and Disney agreed to renew talks after the Holidays, but in early Jan. Disney filed a lawsuit against the heirs without prior notice.
      Toberoff brought up ’72 agreement, as well as the 1979 agreement (the first to address “work for hire”) which Kirby, Mike Ploog, Neal Adams, and others refused to sign. The reason was to show Marvel was asking for rights they assumed Kirby might have. The first time (1979) Kirby was asked to sign a work for hire contract he refused.
      I think it is a real shame so many creative people are willing to cede Kirby (and please substitute the word “creators” for Kirby) lost the case on legal grounds. That is a huge blow to all creative people. I think many people were eager in this particular instance to cede that point to the corporations, and begin asking Disney “do the right thing” based on some charitable notion, because fans were eager to take the focus off Lee, which is where the judge so clearly focused. It is very, very discouraging to see not just fans, but creators fold their tents on the legal issue, and begin asking for what amounts to charity.

    17. Jan Soechtig

      Jack Kirby didn’t lose the case. Jack Kirby did not bring legal action against Marvel. To the best of my knowledge, Jack Kirby has never brought legal action against Marvel.

      This action was brought by his children. They are not looking to further his legacy in any way. They are after money. In pursuit of it, they are attempting to exploit a 1976 change in the copyright law that allows for termination and refiling of copyright with sold work produced on spec. That change is part of a larger effort to undermine the constitutionally mandated limits on copyright protection in this country. What they are doing is part of the problem.

      The possibility of their pursuing such a case against Marvel existed for the last 18 years of Kirby’s life. He dealt with Marvel through a media attorney during that time. The attorney should have known about this. And yet Kirby never prepared an affidavit for the purpose of supporting their claims. Hm.

      Kirby’s children are not doing this to support the right of any artist. They served termination notices on Marvel for, among others Amazing Fantasy #15 and The Amazing Spider-Man #1-8. They didn’t do that for Steve Ditko’s benefit. One notes that Ditko has not been the least bit involved with this lawsuit at any stage. I wouldn’t blame him if he resents their conduct. They’re claiming that his efforts, including his version of Spider-Man and the characters of Dr. Octopus, the Green Goblin, as well as many others Kirby had absolutely nothing to do with, should belong to them because their father prepared a version of Spider-Man that was rejected. A version, I note, that was shown to Ditko as an example of what NOT to do.

      You want me to respect these people? They and Marvel deserve each other.

    18. Jan Soechtig

      This is for Steve to answer:

      How would you feel if the children of Len Wein and/or Bernie Wrightson served termination notices on DC for Swamp Thing #34 in order to claim ownership of John Constantine exclusively of you and your family?

    19. patrick ford

      How fitting Jan’s initials as JS.

    20. Thad

      @Jan: It seems that, in your last post, you’ve abandoned attempts to actually debate the merits and gone straight for speculation and attacks on Kirbys’ children’s character (with a completely irrelevant tangent about termination of copyright transfer being part of the Copyright Act of ’76 — never mind that it’s the part that benefits creators and their families instead of corporations).

      You made some fair points earlier on, I thought, but I don’t see how ad hominems help you.

      @Patrick: I don’t get it. JavaScript? Johann Sebastian? John Smith? Surely not James Sturm?

    21. srbissette

      FYI, fellow who posted on http://www.bleedingcool.com/forums/front-page-comic-news/56136-friday-runaround-wackervison.html as “ScotiaNova: Consultant of Cool” — no, “So were they “only” getting $30,000 each until Moore asked them to pass his share to the artists?” isn’t the proper math. It meant Rick Veitch finally got the share DC always denied him up to that point (he was “deeded” what would have been Alan’s share). And, to the same thread’s “Joe Kalicki: Captain Cool,” who posted,
      “I was going to complain that Bissette needs a new mission, but since he pointed out how awesome DC is I’ve changed my mind.” —I didn’t “point out how awesome DC is.” I pointed out DC cuts royalty shares to creators created since 1985/86. DC aren’t “awesome.” They honor their contracts. In many ways, though, they’ve been absolute dicks at times—like, for instance, refusing Rick Veitch his share of John Constantine until Alan Moore deeded his share to Rick. But I don’t expect you to know that without it being pointed out to you or the rest of what passes for a “community” in comicdom.

    22. srbissette

      Re: Jan Soechtig:
      “This is for Steve to answer:
      How would you feel if the children of Len Wein and/or Bernie Wrightson served termination notices on DC for Swamp Thing #34 in order to claim ownership of John Constantine exclusively of you and your family?”

      First of all, Jan, Len and Bernie deserve a full creator royalty/share of SWAMP THING and everything that comes from SWAMP THING. I would fully support them in that, and have told each of them so to their faces back in the 1990s. I wish Len, and his generation, had fought the necessary battles earlier in the 1970s, but like Jack Kirby, they were afraid for their jobs, pure and simple. It was left to my generation, in the 1980s, to fight those battles—and, fair or unfair, it was our generation and all who followed who benefitted as a result.

      Secondly, you’re misrepresenting the facts and actual context. I don’t see the Kirby heirs going after all properties derivative, even decades later, of their father’s initial work for Marvel: i.e., Jim Starlin’s Thanos from WARLOCK, etc. You’re misrepresenting the Kirby heirs case; you’re misrepresenting your own conjecture (Len and Bernie pursuing redress on SWAMP THING). You’re doing so only to “personalize” your attack a bit, I dare say.

      As already stated, I would and have encouraged Len and Bernie to go after SWAMP THING compensation due them; but you are provocatively framing that legitimate conjecture in terms of this somehow making me or my heirs trapped in an adversarial relationship with Len and Bernie over John Constantine, which is a stretch, and a rather absurd one at that. Well, so be it: yes, I would still champion Len and Bernie.

      FYI, though it may be inconceivable to many, Bernie once shared a “bonus payment” he received from DC for SWAMP THING back in the early 1990s. Out of the blue, he sent checks to me, John, and Rick, noting that he believed DC was sending him the check due to OUR subsequent 1980s reinvention of the character and reinvigoration of the property. It was an incredibly kind and generous action (not “gesture”) from an incredibly kind and generous creator, who we loved and whose work had inspired us and whose work had, in fact, FED us (via our work on the character in its second series). It’s also the kind of spirit of camaraderie between creators that, alas, seems unthinkable to the current generation of the “comics community”—and puts lie to your feeble attempt to somehow provoke me here by imagining a circumstance that would pit me and my family against a man and creator like Bernie Wrightson. Shame on you, Jan.

      While the publishers are happy to draft retroactive work-for-hire contracts, they’re reluctant to retroactively reward royalties. As I noted, DC went a long ways toward redressing that for prior generations during Paul Levitz’s reign; Marvel never has, and likely never will.

      Due to time constraints, I’ll not be able to reply to all the points you’ve raised in your comments here, but here goes on those points Patrick didn’t previously reply to in your conversation on this thread:

      Re: “The scandal here for some of us isn’t that the Kirby heirs aren’t getting a cut, it’s that this material isn’t in the public domain. If it weren’t for the Mickey Mouse protection acts of 1976 and 1998, the copyrights on the material would have expired.”

      Agreed. Public domain has ceased to exist in our lifetimes, for the most part—and now we see how Disney has further enriched itself by purchasing Marvel.

      Re: “Kirby signed an agreement with Marvel in 1972–two years after he left the company–that acknowledged the material was done on a for-hire basis. And in spite Mark Evanier’s unelaborated claims elsewhere, there was no evidence presented of the agreement being signed under duress. Evanier himself made no reference to it in his deposition. The only way to get around the agreement would be evidence that the material was preexisting work that was purchased by Marvel rather than work commissioned by them. Since there is no documentation in support of this, all that was left was firsthand testimony. The only person who could provide that was Stan Lee, and he essentially corroborated Kirby’s statements in the 1972 agreement.”

      Actually, there are various accounts (including Kirby’s) to indicate the 1972 contract was presented as the means of clearing a debt (due to the Kirby move to CA); having had first-hand experience in how companies use such leverage to try to force contracts on creators, I leave the circumstances of the 1972 contract’s presentation/signing to more knowledgeable Kirby scholars to detail. In any case, (a) retroactive work-for-hire is a shakier legal conceit than work-for-hire, and (b) the text of that contract, as I understand it, indeed articulates Marvel’s uncertainty as to what rights Kirby had, held, and deeded, sans contract, in the 1960s. Logic dictates, then, Marvel itself feared the 1909 work-for-hire “understanding” wouldn’t hold up in court.

      As for Stan Lee and his testimony, the conflicts of interest are abundant and self-evident. I understand the legal issues quite well—as Oliver Goodenough articulated clearly in our Vermont Law School discussion, it doesn’t matter if nepotism was at work; in a court of law, Lee’s testimony stands for the reasons you’ve stated. There is, however, the matter of the other living creator from that era, Steve Ditko; and whether Marvel or the Kirbys do or don’t (clearly, neither does) want Ditko testifying, his PUBLIC RECORD via his 16-chapter booklength published account of his Silver Age Marvel years should be cited, and introduced. Ditko counters many of Lee’s claims, under oath, in his deposition.

      Re: “The Kirby heirs are not going to prevail in court. The summary judgment means there is next to no chance of a settlement in their favor.”

      Why, thank you, Counselor. Note the appeal has already been filed; we’ll see what happens.

      Re: “Anyone who thinks this could snowball the way the Siegel and Shuster situation did in the 1970s is misguided. In that case, it’s not hard to imagine the public’s heart going out to two destitute and ailing co-creators who couldn’t even get a credit byline. You are not going to see that kind of sympathy for the middle-aged children of a creator who died 18 years ago. They have had more than enough opportunity to build their own lives. People may think that it’d be nice if the heirs got something, but few are going to be particularly put off if they don’t.”

      See my Friday post, http://srbissette.com/?p=14234. You’ve made your position abundantly clear; I won’t waste time responding to your ad hominem attacks on the Kirby heirs in the later post, save to pass your name on to my now-adult kids and let them know to expect nothing from you down the road, if ever they had need for something from you, which is unlikely, I reckon.

      Re: “If you don’t want to see a movie because it is going to leave a bad taste in your mouth, then don’t see it. But getting all worked up over this situation is a waste of time and energy. It’s not going to accomplish anything. All one is doing is patting oneself on the back, and I would hope one would have more productive things to do.”

      I am plenty productive, Jan. I won’t say I’m sorry you don’t see any apparent value in defending the legacy of forefathers and predecessors who laid the foundation for the very industry I’ve made a majority of my living in—clearly, you’ve nothing but contempt for such notions of duty. Your explicit linking of any such effort to hubris—”patting oneself on the back”—is neither fair nor accurate, but that’s your opinion. You’ve only provided a peevish context to anything else you’ve said by implying those of us who care about the dirt done to Jack Kirby and his heirs are in this for reason of ego, to which I’ll add, in as friendly terms as possible, fuck you and the horse you rode in on.

      Mind you, I say that to my friends all the time, when appropriate.

      To which I can only add, with all due respect, replying further to your comments clearly isn’t one of those “more productive things” I SHOULD, in your estimation, be doing, and I will politely bid you a fond adieu.

      I’m glad you and Patrick have conversed on the more relevant aspects of this case history, and welcome further conversation—particularly if you can do so without either presuming ulterior motives for anyone arguing on behalf of dead creators who built the comics industry, or insulting those participating in this conversation. Civil discourse is always encouraged and welcome.

    23. Chimpo

      Good stuff. Things to take away from all these people going after Marvel because the creator did not protect themselves. Legal system does not care about feelings, ethics or what you might think is “right or wrong.” a contract is binding. 

      1. It is entertainment. Always work with a contract and know what you are signing. Protect yourself and your ideas.
      2. If a company is paying you to work/create, the work is theirs unless stated in#1. Compensation is your reward unless stated in #1.
      3. Do not create IPs on company dime/money. Do not show them either. 
      4. Always negotiate residuals, royalties and rights to your art if you have a #1. 
      5. Don’t sign away your art to make a quick buck. 

    24. srbissette

      @”Chimpo”:

      Key points you raise to respond to:

      * With precious few exceptions, there WERE no contracts prior to the 1970s. Never forget that.
      * Much of what we’re seeing work its way through the legal system now is due to the lack of contracts prior to the 1970s; this process was inevitable, and will never be pretty or pleasant.
      * As with many industries that never unionized, creators were not permitted to “protect themselves.” Attempts to protect oneself—including engaging attorneys, agents, etc.—often resulted in immediate dismissal and/or informal (but strictly observed/enforced) blacklisting. NEVER FORGET THAT—it is the reality cartoonists like Jack Kirby lived with and tried to work within. It also explains (but arguably does not justify) the lack of creators “protecting” themselves, and submitting to whatever terms were imposed or enforced as things progressed toward the upheavals of the 1976/1977 Copyright Act, which was the first time the publishers were FORCED by external circumstances to deal with the legalities they themselves had ignored for decades.

      The rest of your points, in the context of 2012, are not only essential, they should be tattooed on every creator’s arm.

    25. James Robert Smith

      I’m no liberal willing to give the devil (in this case Stan Lee) his due. The fact is that Lee never created anything at Marvel. Kirby and Ditko did it all. Hell…Stan Lee even admitted as much in his intro to that early trade paperback collecting the first Silver Surfer yarns. He said that when the artwork arrived for FANTASTIC FOUR #48 he had to phone Kirby to ask who the hell the guy on the surfboard was. He had absolutely no idea. Lee wrote dialog and edited the books. Yeah, that’s a tough job, but it doesn’t mean he created the things Kirby and Ditko were concocting and plotting and illustrating. And now Lee gets his name listed as Silver Surfer’s CREATOR??!! Fuck that shit!

      Back when I collected original art I always had my suspicions of how things at Marvel worked. I owned pages from THE INCREDIBLE HULK (original series) wherein Kirby was writing in the margins in pencil what Lee should extrapolate for the dialog. In some cases Lee just had the letterer quote Kirby verbatim! In others he took Kirby’s suggestions and altered and/or improved them. But that ain’t creating THE INCREDIBLE HULK. That’s editing THE INCREDIBLE HULK.

      Kirby and Ditko were raped. Lee was rewarded. Lee was part of the corporate hierarchy.Ditko and Kirby were victims of that hierarchy.

    26. Chimpo

      @srbissett. Agreed. Back then there wasn’t these things. However they didn’t seem to care about going after the stuff UNTIL all the $ was made. From my understanding he signed it away. Is this correct?

    27. Thad

      @Chimpo: The “They didn’t go after the rights until the money was made” argument’s a bit misleading, and it ties into the Copyright Act of 1976 and the extensions/termination clause we’ve been talking about.

      Prior to 1976, copyrights expired after 56 years. That means that, for example, Captain America would be in the public domain by now, and the Fantastic Four would be entering the public domain in 2018.

      Now, the thing is, in extending copyrights they effectively rewrote every copyright sale on the books. Siegel and Shuster, for example, famously sold the rights to Superman for $130 — but that was on the understanding that National/DC would only own those rights for 56 years. All of a sudden Congress was changing the terms of the agreement so that the rights would last more than the originally-agreed-upon 56 years.

      As such Congress added an escape clause so that the creators who sold the rights — or, more likely, their statutory heirs, because how many people are still alive 56 years after selling a copyright? — could reclaim them after that initial 56 years. That’s what Siegel’s heirs have done, and what Shuster’s heirs are purportedly working on.

      And it’s why Kirby’s heirs waited this long to ask for the rights back: because we’re coming up on 56 years after the 1960′s, when he did the bulk of his work at Marvel.

      Now, the difference between the Kirby situation and the Siegel/Shuster one is that Siegel and Shuster clearly and unambiguously created Superman on their own and THEN sold him to National. On the Kirby story, there’s considerable debate as to whether he created his work and then sold it, or created it on a for-hire basis for Marvel. Marvel, of course, claims the latter, and so far their claims have held up in court, but the Kirby heirs have appealed, and Patrick Ford and others have noted in this thread that there are still some reasonable questions about whether Kirby’s work for Marvel was for-hire or not.

      As for signing his rights away, he DID sign documents, one in ’72 and another about a decade later, saying his work had been for-hire and was always Marvel’s property, and the courts have thus far taken those agreements at their word, but you can’t actually declare a work to be for-hire after the fact; it has to be agreed on as work-for-hire ahead of time. If evidence surfaces that Kirby did work on spec (that is, did it on his own and then attempted to sell it to Marvel), then it doesn’t matter what those later contracts say, it was spec, not work-for-hire.

      So the question arises, why did he sign those contracts? Steve, Patrick, and others are saying that he signed them under duress, and there’s a clear argument to be made that that was the case for the second contract (which was part of a long and drawn-out fight with Marvel to get his original art returned — which, incidentally, it wasn’t; Marvel set a big box of it out in the office and it mysteriously disappeared). I’m not sure what the conditions were of the first contract, but it’s entirely possible that Marvel was exerting similar strongarm tactics in that instance too.

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