Marvel sues Kirby's heirs

[silverweb]

Here's Kirby's version of Spider-Man

 

 

Lee and Kirby "immediately sat down for a story conference" and Lee afterward directed Kirby to flesh out the character and draw some pages. Steve Ditko would be the inker.[note 3] When Kirby showed Lee the first six pages, Lee recalled, "I hated the way he was doing it! Not that he did it badly -- it just wasn't the character I wanted; it was too heroic".[6]:12 Lee turned to Ditko, who developed a visual style Lee found satisfactory. Ditko recalled:

“ "One of the first things I did was to work up a costume. A vital, visual part of the character. I had to know how he looked ... before I did any breakdowns. For example: A clinging power so he wouldn't have hard shoes or boots, a hidden wrist-shooter versus a web gun and holster, etc. ... I wasn't sure Stan would like the idea of covering the character's face but I did it because it hid an obviously boyish face. It would also add mystery to the character...."[7] ”

Amazing Fantasy #15 (August 1962). Cover art by Jack Kirby (penciller) & Steve Ditko (inker).

 

 

 

This thread is fascinating!

 

 

 

 

Watcher,

Where did you locate this? Is it from the 1963 period?

 

Has that unique Kirby quality but It does seem like Captain America with webs...

 

I like the direction Ditko took Spider-Man

 

 

[TheWatcher]

There was a thread not too long ago when the story about Kirby's heirs suing Marvel first broke. I posted part of this article, and then someone (I forget who) posted that Kirby Spider-Man concept sketch

[comicwiz]

I think the family's action will never lead to copyright ownership but probably has the goal of a financial settlement that would close this case once and for all.

 

I agree. I'd be interested to hear Mark, Brian, Scott or Chris offer an expert legal opinion.

 

From a business standpoint, the timing of this is interesting. If I were Disney, to ensure any ownership dispute doesn't turn into a potential ownership transfer or an outrageous settlement amount, first thing I would do is hire Stan Lee as a consultant.

 

The language of the copyright is a significant part of figuring out what's what. If the copyrights were drafted at a time where the characters were still in a prototypical stage, and bear no resemblance to the way the characters evolved, it will be very tricky for any one person to claim it as their own.

 

I would hire Stan Lee primarily to chart out the evolutionary map for each character that was included in the heirs claim, and with each change or turn in the characters appearance, try as best to recollect who was part of that process. The legal experts would know better, but my hunch is that this process will define the specific character elements which are attributable to the people working at Marvel at the time. Sometimes art isn't the only part of a copyright claim - and things like the colours used on the suit, their masks, weapons or powers could have changed significantly as a result of Marvels total team input in the creative process and road-testing characters post publication to meet consumer and audience interests.

 

The reason why I mentioned timing is that corporate governance at Disney would not have anywhere near the intimate or historical knowledge, and even though the evidence may appear as being one-sided if Stan Lee were a major part of any attempt to chronicle Marvels ownership defense, there is an extensive Marvel library of material to serve as reference, and who better than Stan Lee to provide those links to artists, stories and titles to back up those claims.

[drewincanada]

If Kirby had an employment contract with Marvel, and the characters were created while working for Marvel under that contract, then there would be no need for Marvel to forge a separate copyright document, and the evolution of the character is irrelevant.

 

I had to investigate copyright and "work for hire" a number of years ago in relation to some design work that our company performed for a client. The law in Canada leans a little more in favour of the artist, but in the US there's no ambiguity: if you're an employee of a company, then it's a "work for hire" and the copyright resides with the company and not with the artist.

 

As someone suggested earlier, if it can be proven that Kirby created the characters prior to his employment with Marvel then his heirs would have a case (as was the case with Siegel and Shuster).

 

Or if Kirby was a freelancer, who had no employment contract with Marvel, and who also worked for other companies at the time he was working for Marvel, then his heirs would also have a case. Freelancers do retain copyright to their works.

 

There IS an exception to this, though: if you are a freelancer, but are also just one of a number of people who contributed to the publication, then you don't retain copyright. If it's proven that Kirby WAS a freelancer, Disney could still argue that he was just one of a number of people who contributed to the publication. See 2a below. I think it's a bit of a stretch to apply it to this case, since the artists' contribution plays such a major part, but I imagine that Disney would pursue every avenue available to them, including this one.

 

Here's a bit more info on "work for hire":

 

Work-for-hire refers to the situations in which a creator of a work does not retain the rights to that work. By default, and artist or designer owns the copyright to his or her work. Work-for-hire includes two exceptions to that rule:

 

1. The creator of the work is an employee of a company, and the work falls within the scope of his or her employment. In this case, the employer owns the copyright.

 

2. A specially commissioned work is created for an independent contractor, and falls under one of the nine categories of work specified by law:

 

a. Contribution to a larger work, such as a magazine

b. A part of a motion picture or audiovisual work

c. A compilation of existing works

d. Instructional texts or graphic works

e. A translation of an existing work

f. A test

g. Answers for a test

h. Supplementary works, such as a graph for a book

i. An atlas

 

Not that this doesn't prevent Kirby's heirs from suing and reaching an out of court settlement with Disney.

[ivegotneatstuff]

Here's Kirby's version of Spider-Man

 

 

Is this really his concept drawing...done in 1962? I read he did 6 pages and Stan didn't like how he drew it... does anyone have copies of those 6 pages or has anyone ever seen it?

[drewincanada]

Here's Kirby's version of Spider-Man

 

 

Is this really his concept drawing...done in 1962? I read he did 6 pages and Stan didn't like how he drew it... does anyone have copies of those 6 pages or has anyone ever seen it?

 

That drawing doesn't look like Kirby's 1962 work. Stylistically, it looks like it came from a fair bit later. Perhaps it's a later recreation he did of how he first drew the character in 1962.

[gaz973]

That drawing doesn't look like Kirby's 1962 work. Stylistically, it looks like it came from a fair bit later.

 

I agree.

[James Howlett]

The lawsuit said the comic book titles in the notices to which Kirby claims to have contributed include "Amazing Adventures," "Amazing Fantasy," "Amazing Spider-Man," "The Avengers," the "Fantastic Four," "Fantastic Four Annual," "The Incredible Hulk," "Journey into Mystery," "Rawhide Kid," "Sgt. Fury and His Howling Commandos," "Strange Tales," "Tales to Astonish," "Tales of Suspense" and "The X-Men."

 

And what title did they forget? Thor, the one with a movie coming out next year Are the Kirby heirs only suing for characters created between '58-'63? If so, then it would leave out Galactus, the Silver Surfer, the Inhumans, Him (Adam Warlock), etc. Don't see the logic in that

 

 

They didn't forget Thor, they're suing for "Journey Into Mystery."

 

Different titles. If they don't sue over "Thor", then Kirby can't get credit for creating/co-creating any new characters introduced in that comic (while he was drawing it)

 

Thor wasn't introduced in "Thor", he was introduced in Journey into Mystery 83. Loki and Odin were introduced in JIM also.

[AtlasFan]

C'mon...how can the Kirby heirs make a serious claim to the Norse god "Thor"? Why not Hercules as well?

 

Kirby is credited where its due in all the Marvel movies...They are just looking for a settlement...I hope Dizney showz some ballz and fendz them off...

[TheWatcher]

The lawsuit said the comic book titles in the notices to which Kirby claims to have contributed include "Amazing Adventures," "Amazing Fantasy," "Amazing Spider-Man," "The Avengers," the "Fantastic Four," "Fantastic Four Annual," "The Incredible Hulk," "Journey into Mystery," "Rawhide Kid," "Sgt. Fury and His Howling Commandos," "Strange Tales," "Tales to Astonish," "Tales of Suspense" and "The X-Men."

 

And what title did they forget? Thor, the one with a movie coming out next year Are the Kirby heirs only suing for characters created between '58-'63? If so, then it would leave out Galactus, the Silver Surfer, the Inhumans, Him (Adam Warlock), etc. Don't see the logic in that

 

 

They didn't forget Thor, they're suing for "Journey Into Mystery."

 

Different titles. If they don't sue over "Thor", then Kirby can't get credit for creating/co-creating any new characters introduced in that comic (while he was drawing it)

 

Thor wasn't introduced in "Thor", he was introduced in Journey into Mystery 83. Loki and Odin were introduced in JIM also.

 

But any subsequent characters introduced in "Thor" (villains, supporting characters) wouldn't be covered in the suit

[Logan510]

I believe Kirby should get all the credit he deserves....but unfortunately sometime later in his life he started believing what the little birds who had been chirping in his ears were saying. This is how we end up with Kirby actually believing he created Spider-Man and that he "wrote" every issue of FF he ever worked on with Stan Lee.

 

I don't know if what's on Wikipedia is true or not...but

 

From http://en.wikipedia.org/wiki/Spider-man

 

 

Comics historian Greg Theakston says that Lee, after receiving Goodman's approval for the name Spider-Man and the "ordinary teen" concept, approached artist Jack Kirby. Kirby told Lee about an unpublished character on which he collaborated with Joe Simon in the 1950s, in which an orphaned boy living with an old couple finds a magic ring that granted him super-human powers. Lee and Kirby "immediately sat down for a story conference" and Lee afterward directed Kirby to flesh out the character and draw some pages. Steve Ditko would be the inker.[note 3] When Kirby showed Lee the first six pages, Lee recalled, "I hated the way he was doing it! Not that he did it badly -- it just wasn't the character I wanted; it was too heroic".[6]:12 Lee turned to Ditko, who developed a visual style Lee found satisfactory. Ditko recalled:

“ "One of the first things I did was to work up a costume. A vital, visual part of the character. I had to know how he looked ... before I did any breakdowns. For example: A clinging power so he wouldn't have hard shoes or boots, a hidden wrist-shooter versus a web gun and holster, etc. ... I wasn't sure Stan would like the idea of covering the character's face but I did it because it hid an obviously boyish face. It would also add mystery to the character...."[7] ”

Amazing Fantasy #15 (August 1962). Cover art by Jack Kirby (penciller) & Steve Ditko (inker).

 

In an early recollection of the character's creation, Ditko described his and Lee's contributions in a mail interview with Gary Martin published in Comic Fan #2 (Summer 1965): "Stan Lee thought the name up. I did costume, web gimmick on wrist & spider signal."[8] At the time, Ditko shared a Manhattan studio with noted fetish artist Eric Stanton, an art-school classmate who, in a 1988 interview with Theakston, recalled that although his contribution to Spider-Man was "almost nil", he and Ditko had "worked on storyboards together and I added a few ideas. But the whole thing was created by Steve on his own... I think I added the business about the webs coming out of his hands".[6]:14

 

Kirby disputed Lee's version of the story, and claimed Lee had minimal involvement in the character's creation. According to Kirby, the idea for Spider-Man had originated with Kirby and Joe Simon, who in the 1950s had developed a character called The Silver Spider for the Crestwood comic Black Magic, who was subsequently not used.[note 4] Simon, in his 1990 autobiography, disputed Kirby's account, asserting that Black Magic was not a factor, and that he (Simon) devised the name "Spider-Man" (later changed to "The Silver Spider"), while Kirby outlined the character's story and powers. Simon later elaborated that his and Kirby's character conception became the basis for Simon's Archie Comics superhero the Fly. Artist Steve Ditko stated that Lee liked the name Hawkman from DC Comics, and that "Spider-Man" was an outgrowth of that interest.[7] The hyphen was included in the character's name to avoid confusion with DC Comics' Superman.[9]

 

Simon concurred that Kirby had shown the original Spider-Man version to Lee, who liked the idea and assigned Kirby to draw sample pages of the new character but disliked the results—in Simon's description, "Captain America with cobwebs".[note 5] Writer Mark Evanier notes that Lee's reasoning that Kirby's character was too heroic seems unlikely—Kirby still drew the covers for the first issues of Spider-Man. Likewise, Kirby's given reason that he was "too busy" to also draw Spider-Man in addition to his other duties seems false, as Kirby was, in Evanier's words, "always busy".[10]:127 Neither Lee's nor Kirby's explanation explains why key story elements like the magic ring were dropped; Evanier states that the most plausible explanation for the sudden change was that Goodman, or one of his assistants, decided that Spider-Man as drawn and envisioned by Kirby was too similar to the Fly.[10]:127

 

 

Theakston is one of those birdies I was talking about, along with Evanier. Those guys had Kirby's ear later in life and had him convinced he had created pretty much the entire Marvel Universe from whole cloth. Any claim to Spider-Man is bogus and insulting to Ditko IMHO.

[drewincanada]

Thor wasn't launched as a title until 1966. This suit only covers the years 1958-1963.

 

I'm not clear on how it works, but when it comes to copyrighted works moving into the public domain, apparently there is a difference between works published between 1923-1963, and works published between 1964-1977.

 

So perhaps there will be a second suit sometime in the future to cover titles first published after 1963.

[TheWatcher]

I asked about that earlier, as it didn't make sense leaving out some key characters created after '63

[szelim]

Interesting article about the Kirby estate's attorney: http://www.iplawandbusiness-digital.com/iplawandbusiness/sample?pg=46

 

[ivegotneatstuff]

Interesting article about the Kirby estate's attorney: http://www.iplawandbusiness-digital.com/iplawandbusiness/sample?pg=46

 

That IS a good article..

 

 

[TupennyConan]

I side with both Marvel & DC in these disputes. They are the best -- let's see -- 'custodians' of these characters. I'm not making a legal or equitable or moral or ethical argument here. My choice is about the artistic merits of these characters' future.

[ivegotneatstuff]

Now it's on Yahoo's homepage

 

http://news.yahoo.com/s/ap/20100109/ap_en_ot/us_marvel_kirby_lawsuit

 

Marvel sues to keep Spider-Man, X-Men copyrights

Sat Jan 9, 12:20 am ET

 

NEW YORK – The home of superheroes including Spider-Man, the Fantastic Four and the X-Men sued one of its most successful artists Friday to retain the rights to the lucrative characters.

 

The federal lawsuit filed Friday in Manhattan by Marvel Worldwide Inc. asks a judge to invalidate 45 notices sent by the heirs of artist Jack Kirby to try to terminate Marvel's copyrights, effective on dates ranging from 2014 through 2019.

 

The heirs notified several companies last year that the rights to the characters would revert from Marvel to Kirby's estate.

 

The lawsuit said Kirby's work on the comics published between 1958 and 1963 were "for hire" and render the heirs' claims invalid. The famed artist died in 1994.

 

The lawsuit was dismissed by Kirby's attorney Marc Toberoff, who issued a statement saying the heirs were merely trying to take advantage of change to copyright law that allows artists to recapture rights to their work.

 

"It is a standard claim predictably made by comic book companies to deprive artists, writers, and other talent of all rights in their work," the statement said of Marvel's lawsuit.

 

"The Kirby children intend to vigorously defend against Marvel's claims in the hope of finally vindicating their father's work."

 

The statement claimed Kirby was never properly compensated for his contributions to Marvel's universe of superheroes.

 

"Sadly, Jack died without proper compensation, credit or recognition for his lasting creative contributions," the statement said.

 

Comic book characters such as Spider-Man and the X-Men have become some of Hollywood's most bankable properties in recent years.

 

The lawsuit said the comic book titles in the notices to which Kirby claims to have contributed include "Amazing Adventures," "Amazing Fantasy," "Amazing Spider-Man," "The Avengers," the "Fantastic Four," "Fantastic Four Annual," "The Incredible Hulk," "Journey into Mystery," "Rawhide Kid," "Sgt. Fury and His Howling Commandos," "Strange Tales," "Tales to Astonish," "Tales of Suspense" and "The X-Men."

 

John Turitzin, a Marvel lawyer, said in a statement that the heirs were trying "to rewrite the history of Kirby's relationship with Marvel."

 

He added: "Everything about Kirby's relationship with Marvel shows that his contributions were works made for hire and that all the copyright interests in them belong to Marvel."

 

Marvel Entertainment, a subsidiary of The Walt Disney Co., sought a judge's order that the Kirby notices have no effect.

[TupennyConan]

NPR ran a story on it this afternoon.

 

It is in the best interest of the characters & the Marvel Universe for the Kirby estate to lose this effort.

[Mac Man]

Well... the major issue I have with this is the issue surrounding Spider-Man. The ideas Jack through out there for consideration have no resemblance to the Spider-Man of Steve Ditko, so I really don't see validity in that respect. That's not to say Kirby wasn't a MASSIVE foundation to the Marvel rise to prominence with his wide-ranging work, but hands off on Spidey... that was the work of Stan and Steve.

 

[kimik]

NPR ran a story on it this afternoon.

 

It is in the best interest of the characters & the Marvel Universe for the Kirby estate to lose this effort.

 

I don't know, I think it would be great if they were shown to have an ethical legal claim here and were to be compensated more for it. As we have seen with Siegel and Shuster, the hassles Neal Adams and others faced in getting more rights for creators, and likely other issues I am not aware of, the big two were not the most generous to their talent over the years. It is similar to the way that professional athletes were "compensated" by the owners prior to free agency.