THE KIRBY QUESTION and More Unseen DC

First off–Nomination Shmomination.  I’m honoured, and hope all the other nominees are killed in a sudden, painless skiing accident at once.  Otherwise, should they survive, I’m good if Ian Boothby gets the Shuster.  He’s rock solid funny every month over at my secret home, BONGO comics, and may not have been properly acknowledged for that yet.

Ah, the whole KIRBY thing.  If you’ve lived under a rock for the last few days, you might have missed that Kirby’s family is suing MARVEL and DISNEY for the rights to many of the characters he created, or co-created, or was down the hall when someone else co-created them (in the case of the obviously-not-created-by-Kirby Spider-Man, for instance).  I’ve read some pretty passionate calls for the Kirbys to go sink their teeth into Marvel for what was done to Jack, and some equally passionate calls for the Kirbys to back off and accept that their dad sold that stuff to Martin Goodman decades ago, and that they’re just trying to reach into Disney’s very deep pockets.  I have to admit, I come down on the side of the family, simply because us creators have to stick together, and I’d hope someday my family can reap the millions and millions that will someday come our way from my dramatic re-design of the ROCKET RED costume, or the creation of a spin-off version of MODOK in Howard the Duck.  But I’m a sucker for anything that’s anti-corporate, EVEN IF IT’S THE CORPORATION THAT EMPLOYS ME FROM TIME TO TIME.

So, I’m very interested in hearing from the folks that drop by.  Pro-family or pro-Disney, let’s holler, as the kid’s say.

No, dude.  Not SUPERMAN should holler…oh, wait, this is more of that Unseen DC stuff, today with 25% more Jerry Seinfeld?  In honor of the truly horrific flogging that Jerry’s new show “The Marriage Ref” is getting all over the critic-o-sphere,  I’m posting some of the images of Superman that went into the production of the Jerry Seinfeld/Superman/American Express commercials of six or seven years ago!   And since we’re going for “Unseen” as a theme this month, I thought I’d start with some of the preliminary artwork, and dig out the finished (and printed!) versions later.  These were all meant to be “snapshots” of Jerry and his best pal SUPERMAN, hanging out at the ball game, doing laundry, walking their dogs together and male bonding in a totally heterosexual, dockers-wearing kind of a vibe.  Here are some of the REJECTED sketches I did.  They didn’t like the flying Krypto, and wanted him walking, they didn’t like the look on Superman’s face, so that got re-drawn something like eight times.  These are the Unseen comp versions.  There are five or six of these “snapshots” in total, here’s a few to chomp on for now!

Stay Tuned for more silly reasons to repost the Mad Cover as the days wear  on, and ALL NEW BUNNY FUNNIES this weekend, as the blog morphs into a webcomic.  Slowly, but very uncertainly.

Ty the Guy

8 responses to “THE KIRBY QUESTION and More Unseen DC

  1. Since you asked, here’s my view on the Kirby vs. Disney thing:

    It’s just business. Before a big, publicly traded company like Disney buys anyone or anything else, they are obliged to perform due diligence. Disney needed to establish that Marvel had a defensible claim to the properties that The Mouse was looking to acquire.

    Of course, the Kirby family have a defensible claim, too, but my point is that Uncle Walt’s army of lawyers surely knew this at the time of the acquisition. Nobody at Disney should be surprised at what is happening now. They probably planned for it long before the Marvel merger was a sealed deal.

    I speculate that, if Disney pays a settlement to the Kirby family, it will be money that they knew they’d have to spend, eventually. It’s just an extra cost in the acquisition of the Marvel properties. Further, if Marvel had clear and incontrovertible claim to all of the characters, and the Kirbys had no case at all, I speculate that Disney would have had to pay more money up front to Marvel’s shareholders.

    In other words, I’m guessing that the legal uncertainty over Jack’s characters was already priced into the value of the acquisition. The difference between what Marvel shareholders *would* have gotten, had their ownership of the properties been uncontested, and what they *did* get is a big pile of money, and that’s essentially what the Kirbys are fighting for now.

    Of course, Disney’s lawyers are going to fight hard to keep as much of that money as they can. Really, though, this suit is just about a cash installment that hasn’t been paid yet (though Disney must have anticipated it and planned for it). Marvel shareholders got their cut, and now the Kirbys are lining up for theirs. The lawsuits are just a very public way of haggling over price.

    Apart from the money, though, the “who created what?” question that’s raised by this suit is interesting to the amateur comics historian in me. I also think it’s unanswerable. I have absolutely no doubt that Stan Lee and Steve Ditko both firmly believe themselves to be the sole creators of Spider-man. They’ve both said as much. When Kirby claimed all those years ago to have been the wall-crawler’s true originator — along with Joe Simon — he probably believed that, too. Artistic collaboration is complicated and subtle, and every artist knows that no idea is truly original in the sense that it is unprecedented by any previous idea.

    Still, the lawsuit needs to identify a specific inventor for Spider-man* (unless there’s a settlement), because that’s the way copyright law is written the US (among many/most/all countries). As a fan, though, I kinda like that nobody knows exactly where these characters came from. I worry that the suit will produce a clear but historically and aesthetically misleading account of their creation.

    * More speculation: one reason that Spider-man might be crucial to this dispute is that Simon & Kirby’s Silver Spider clearly does not fall under a work for hire agreement with Marvel/Timely/Atlas/The Goodmans.

    • Oh, I’m sure you’re right, Disney lawyers were probably aware of this, but remember how terribly all these US companies have been run lately, with insane banking, bookkeeping, and ethical lapses of ASTOUNDING surprise. When AIG, Lehman, Enron, and indeed their entire government, turned out to be run by buffoons and fools who bankrupted billion dollar organizations, it removes some of my belief that they’re always one step ahead of game on the ground.
      The question I’m interested in, though, is the idea of who SHOULD own these characters? Or more importantly, who should control and profit from them? Is Marvel (now Disney) entitled to most of their value, simply because they’ve guarded and promoted these properties in a way that Kirby simply COULD NOT HAVE EXPLOITED. In other words, why is HULK more valuable that Captain Victory, Fighting American, or Silver Star? There’s some argument that it’s the quality of the ideas, but I’d equally argue that it’s the huge organization that has promoted and re-sold and re-invented and re-vivified these character through the last 40 years of their time in front of the public. I know I’m sort of arguing against my post’s support of the Kirby’s, but I’m trying to be even handed here. I just like the ideas of families getting some money. As I said, I’m waiting for the big money coming in someday for Dagger Dixon, the Human Defense Corps, the Hunchback of Paris, Bre’eon the Green Lantern of the forest, and all the hundreds of DC characters I’ve left scattered around the edges.

  2. This evening, I took a look at the legal complaint that was filed on behalf of the Kirbys. I don’t think that they are arguing that they own (or should own) the Hulk and all of his associated trademarks. In fact, it’s not a trademark dispute at all.

    At issue is the copyright in a very specific and finite list of comic books. The list seems to consist in everything Marvel/Atlas/Zenith/Canam/whatever published during the years 1958 to 1963, inclusive (but I’m not certain of that). Nothing with a cover date of January 1964 or later is mentioned in the complaint.

    It seems that this list was first written up in 1972 by Marvel’s lawyers. Maybe it had something to do with the Goodmans’ sale of Marvel to Cadence, I dunno. Basically, Marvel asked Jack to assign — in writing — to Marvel any copyright in those old comics that he might have held. Obviously, the list includes stuff that Kirby never touched, like the first 7 issues of Amazing Spider-man, and Hulk #6 (which was all Ditko). Those details probably didn’t matter at the time; the important thing was that the copyright in all those works had been assigned to Marvel, one way or another. Everyone probably thought at the time that the grant would be permanent and irrevocable. Martin Goodman wasn’t necessarily looking ahead beyond the sale of the company and his retirement, anyway.

    I don’t know why 1963 was the cutoff criterion for this list of comics. Maybe Marvel had a work-for-hire contract with Kirby in their files dated January 1964, or something like that (actually, it would have been several months earlier, but you know what I mean), but no written contract that covered earlier work.

    The twist is that the US Copyright Act allows the creator or his/her heirs to eventually terminate a grant of copyright like the one that Jack signed in 1972. The Kirby family notified Marvel of their desire to terminate the grant last fall, but instead of complying, Marvel went to a judge, asking that the Kirby family’s request be legally canceled.

    The family’s lawsuit seeks:

    – money collected by Marvel through the sale or license of the copyrighted material since the date of the termination notice that they sent

    – acknowledgment, in the form of credits or something, that these copyrights are owned by the Kirbys

    – a piece of the licensing revenue from the recent Hulk and Wolverine movies

    – whatever original art of Jack’s they might still have at Marvel

    – punitive damages relating to Marvel’s “willful, wanton, malicious, and oppressive” treatment of Jack over the original art issue

    So, I don’t think the Kirbys are arguing that they should own Spider-man. What they are saying is that they are co-owners (with Marvel) of a bunch of comics that were first published in the late 50s and early 60s. Seems reasonable to me.

    Where it gets complicated is the issue of derivative works. If the Kirby family owns half the copyright in Hulk #1, and *every* Hulk comic, movie, and pair of Underoos is a derivative work based on the characters and situations introduced in Hulk #1, then, well, that’s a problem for Marvel and Disney. Damn near everything that Marvel sells is derivative work whose basis is something Jack drew in 1961-1963.

  3. Well, Disney’s press releases say they considered the value of the claims fully in the acquisition. They might have made a bad estimate, but they planned for something here. If the Kirbys do indeed want to claim original source for the whole Marvel catalog, they will obviously fight that very, very hard. But you always start from the extreme case, and settle for something less.

    • I’m not sure how courts tend to lean on this. I’m fairly sure the basic story is this: Kirby had been working without a contract for Marvel for YEARS in the fifties and early sixties, and had not assigned or sold the copyrights to the material to anyone. Over the years, this stuff became more and more popular, and Jack grumbled about it, but never tried to sue anyone. Another problem he grumbled about was that he had never gotten his original artwork back over the years, the way other artists had. (In fact, much of it had been given away to friends and fans by Stan Lee over the years, not maliciously, but because no one thought it would ever be worth anything, other than as souvenirs to fans). In the late Eighties, when it became obvious that Jack’s old artwork was worth a sizable fortune, the Kirbys tried to get it returned to them (as it had been returned to nearly all the other Marvel artists over the years, including myself!) and discovered Marvel was hedging and reluctant to do so. Eventually, they got Kirby to sign a release on some of his earlier work so that Marvel would get the copyrights on it, and they “found” many hundred pages of the many thousands they should have still had. Kirby tended to grumble about this deal, but they did get SOME of his art back towards the end of his life.
      Now, wasn’t that a contract signed under duress? Marvel was holding Kirby’s property hostage against his will, to obtain this contract. A court should void that in a heartbeat.
      In truth, I think Marvel has done more to invest these properties with their current market value than Kirby ever could have. As much as I like Jack’s work, his non-Marvel stuff has little or no commercial appeal, though some of it is brilliant. Marvel is more of the “author” of the legends of Hulk, X-Men, and Iron Man than Jack was, certainly they’re more able exploiters of them. The only two I’d argue are more Jack than Marvel are The Fantastic Four, and Thor…but I still side with the Kirby’s because I think Marvel screwed with him and his family in unethical ways, and they didn’t pay him the correct respect his talent deserved.
      ‘Nuff Said. Soapbox returned to under the sink

      • “Eventually, they got Kirby to sign a release on some of his earlier work so that Marvel would get the copyrights on it, and they “found” many hundred pages of the many thousands they should have still had. Kirby tended to grumble about this deal, but they did get SOME of his art back towards the end of his life.”

        The terms of the release that Jack eventually signed were never disclosed to the public. There was an earlier release that required Jack to sign over all kinds of rights, but it was so odious that there was widespread uproar about it among comics professionals, including a high-profile petition. Jack never signed that earlier release. The release that was finally signed was reportedly much less oppressive than the first one.

        Around 1900 pages were returned out of the maybe 8000 that Jack had drawn for Marvel over the years. I agree that a well-meaning Stan gave pages away to visitors to the Marvel offices, and that many others were probably destroyed, or shipped off to animation studios for other uses, or whatever. Still, we’re talking about more than 6000 missing pages!

        Also, the lawsuit concerns specific comics published during the years 1958 to 1963 (inclusive). If none of the 1900 or so pages that were returned to Jack are from that period, then any release he signed is probably irrelevant to the present case. Even the outrageous release that Jack refused to sign covered only the art that was returned. It’s reasonable to guess that the release that Jack ultimately did sign said nothing about the copyright in, say, Hulk #1.

        “In truth, I think Marvel has done more to invest these properties with their current market value than Kirby ever could have. As much as I like Jack’s work, his non-Marvel stuff has little or no commercial appeal, though some of it is brilliant. Marvel is more of the “author” of the legends of Hulk, X-Men, and Iron Man than Jack was, certainly they’re more able exploiters of them.”

        I know you’re trying to be even-handed by acknowledging the merit in both sides of the argument. That’s totally commendable. I don’t agree, though, with your point.

        It doesn’t have to be an “either-or” thing between the Kirbys and Marvel. The Kirbys aren’t suing for sole ownership in the characters. They are seeking proportional copyright based on Kirby’s contribution to specific issues of specific comics. Shared ownership of copyright acknowledges the role of both Jack and Marvel in popularizing the characters.

        Also, the point that Marvel did more than Jack to build market value in these brands seems to me to be irrelevant. Eastman and Laird own copyright in the Teenage Mutant Ninja Turtles but, frankly, the Turtles became a big financial success because of the efforts of the licensing agent, the toy company, and the animators.

        • My wife is always on my about my memory for details. I had conflated the two contracts into one, you’re right. And thanks, in general, for the much more specific story of these events. Yes, I am trying to be even handed in my thinking, and truly do believe the value of these properties owes more to Lee and Goodman than to Kirby in the long run, as those two were hustlers and Kirby was a creator, and the “value” of Marvel properties comes from the hustle probably more than the basic ideas.
          BUT…I always come down to side with the creators simply because I am one. I know about being exploited, it’s happened to me once or twice. Any time the creators or their kin can go in there at get some, I say “onward.”, hell, even if they DON’T have the legitimate rights, give it a try. The comics industry was awful to them guys on the other side of the editor’s table for most of its existence, up until Neal Adams started making such a fuss. (‘ta Neal.)
          It all got better around the time I arrived, spoilt brat that I am.
          Ty

  4. I’m for the Kirby family, of course. It’s a form of retro-active moral fairness if they are rewarded in some better form for Jack’s creations. Questions of legality and contracts don’t really figure in it for me. The law is not black and white or we wouldn’t have courtrooms, arguments and judges. Creators should be rewarded with a greater share of the copyright and royalties of their creation, no matter who fronts the dough for the paper and ink. I think Ant-Man would agree.

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