I need clarity on "stolen art" 1 1

[sfcityduck]

On 8/17/2018 at 10:16 AM, pemart1966 said:

If one looks at the big picture it tells us that most, if not all of the Marvel Silver Age art exists - it's out there.

Had art "liberation" not occurred, it's quite possible that all or most of that art could have been shredded, dumped or otherwise disposed of much like the fate that befell a lot of the Silver Age DC art.

This forum would have a whole different context to it.  We'd all be lamenting the fact that there are only a handful of pages known to exist...

 

I have never heard that Marvel shredded, dumped or otherwise disposed of the non-stolen art.  The stolen art was stolen in the last 70s or 80s, I believe.

[sfcityduck]

On 8/22/2018 at 6:52 AM, Rick2you2 said:

Then why hasn’t it been? He certainly has the supporters (or at least his estate does). I think it would be harder than you do.

Why are you making up fantastical stories?  The history of this art is pretty well known and the LoC has essentially confirmed that they viewed the AF 15 art as stolen.

You are mixing up two issues.

The first is whether Marvel or the artists were entitled to legal ownership of the art.

The second is whether the art was stolen from Marvel.

On the second question, the answer from all I've heard is "yes."  However, when the artwork entered the marketplace, Marvel essentially decided not to pursue repatriation of the art.  Perhaps due to the prominence of some of the collectors who possessed the art (George Lucas is rumoured to own the ASM 1 cover), perhaps because the individuals then making decisions for Marvel were overly sympathetic to the collector/fan community, perhaps because Marvel didn't want the way the art entered the market to come to light (it is rumoured that Marvel employees, including a prominent Silver Age figure (not Stan), in separate events either stole art to supplement their income or used art to "pay" others).  or perhaps because Marvel didn't care because of the potential correct answer to the first question.  Other explanations could exist.

What is true, according to the LoC, is that the person who donated the AF 15 interior offered to give it back to Ditko instead of donating it.  That person did so out of recognition of the questionable ownership of the art.  The comments by the LoC in this news article about Ditko's reaction to the donation are very telling:

Quote

 

Ditko, 80, was more abrupt. When reached at his Manhattan studio, he would only say: "I couldn't care less."

His comment reflects a battle that's raged for decades.

Part of the artist's reaction, said Blake Bell, author of "Strange and Stranger: The World of Steve Ditko," could be Ditko's long-standing protest over pages he feels were stolen.

"A lot of these artists were robbed of their artwork," said Bell. "'Amazing Fantasy #15' was among the artwork that disappeared from the Marvel Comics vaults, like 'Fantastic Four #1' or 'Incredible Hulk #1,' between the late '70s and early '80s.

There's been anecdotal evidence of stuff being 'liberated' or given away even in the 1960s."

While Ditko declined to comment further, he has written passionately about artistownership.

In 1993, he railed against Marvel for treating its creators poorly and chastised the company for not investigating the missing comic book pages.

"It rewards, gratifies and sanctions the 'original artwork' thieves and their thieves' market," Ditko wrote in a 28-page essay.

He even refused to participate in a fan-led effort to pressure Marvel to return artist Jack Kirby's pages in the 1980s, because the scope didn't extend to all artists. Kirby was another Lee collaborator who helped create the Fantastic Four, X-Men, Iron Man and the Hulk.

"If one believes that one artist has a right to his story/art pages, then every artist has that right," Ditko wrote. "It also means one must be against everyone who immorally holds any artist's property."

Duke said the donor wrote to Ditko offering to return the "Amazing Fantasy" pages or give them to the Library of Congress. Ditko declined to receive them, Duke said.

"Acquiring almost any comic book art is controversial," said Duke. "And I was told by the donor that provenance could be traced if necessary. It's not been an issue. There's a lot of artwork out there, and how it was dispersed is controversial."

But, Duke said, the donor gave the pages to the library with an eye toward preservation because "comic book museums come and go, but the Library of Congress has been around for 200 years."

 

 

Duke was quote elsewhere stating that LoC was hoping for further big donations from the same donor as who gave the AF 15.  I don't know if that happened, but Geppi subsequently made a huge donation to the LoC  and was quoted as stating he did so after viewing the AF 15 art at the LoC which opened his eyes as to its extensive comic holdings.

[pemart1966]

54 minutes ago, sfcityduck said:

I have never heard that Marvel shredded, dumped or otherwise disposed of the non-stolen art.  The stolen art was stolen in the last 70s or 80s, I believe.

 My original post says "could have".  I probably should have said "could have ended up..." meaning that it was a fate that might have befallen the art at some point in the future had it not been liberated.

I was alluding to what happened at DC.

Edited August 29, 2018 by pemart1966

[sfcityduck]

22 minutes ago, pemart1966 said:

 My original post says "could have".  I probably should have said "could have ended up..." meaning that it was a fate that might have befallen the art at some point in the future had it not been liberated.

I was alluding to what happened at DC.

I got that.  I just don't think we should try to paint art thieves as some sort of Robin Hood types who "saved" the art.  They didn't.  They stole it and it was buried.  It was a selfish act by the thieves and the buyers.

[pemart1966]

2 hours ago, sfcityduck said:

Why are you making up fantastical stories?  The history of this art is pretty well known and the LoC has essentially confirmed that they viewed the AF 15 art as stolen.

You are mixing up two issues.

The first is whether Marvel or the artists were entitled to legal ownership of the art.

The second is whether the art was stolen from Marvel.

On the second question, the answer from all I've heard is "yes."  However, when the artwork entered the marketplace, Marvel essentially decided not to pursue repatriation of the art.  Perhaps due to the prominence of some of the collectors who possessed the art (George Lucas is rumoured to own the ASM 1 cover), perhaps because the individuals then making decisions for Marvel were overly sympathetic to the collector/fan community, perhaps because Marvel didn't want the way the art entered the market to come to light (it is rumoured that Marvel employees, including a prominent Silver Age figure (not Stan), in separate events either stole art to supplement their income or used art to "pay" others).  or perhaps because Marvel didn't care because of the potential correct answer to the first question.  Other explanations could exist.

What is true, according to the LoC, is that the person who donated the AF 15 interior offered to give it back to Ditko instead of donating it.  That person did so out of recognition of the questionable ownership of the art.  The comments by the LoC in this news article about Ditko's reaction to the donation are very telling:

 

Duke was quote elsewhere stating that LoC was hoping for further big donations from the same donor as who gave the AF 15.  I don't know if that happened, but Geppi subsequently made a huge donation to the LoC  and was quoted as stating he did so after viewing the AF 15 art at the LoC which opened his eyes as to its extensive comic holdings.

 It wasn't cost effective to pursue getting these pages back.  These pages were not going for much when they first entered the market so for Marvel to spend $ to track down a $50 page of art would not have made sense... 

[PhilipB2k17]

2 hours ago, sfcityduck said:

 perhaps because Marvel didn't want the way the art entered the market to come to light (it is rumoured that Marvel employees, including a prominent Silver Age figure (not Stan), in separate events either stole art to supplement their income or used art to "pay" others).  or perhaps because Marvel didn't care because of the potential correct answer to the first question.  Other explanations could exist.

Right. Like "junkies" broke into the warehouse on multiple occasions with nobody noticing.

[sfcityduck]

39 minutes ago, pemart1966 said:

 It wasn't cost effective to pursue getting these pages back.  These pages were not going for much when they first entered the market so for Marvel to spend $ to track down a $50 page of art would not have made sense... 

I bought page 2 of X-Men 125 from Comics & Comix in Berkeley in the same late 70s to early 80s period in which this art was stolen (my purchase was in 1980, I think).  I paid $75 for that page.

Do you really think that the interior of AF 15 was selling for $50 a page in that time period?    When the X-Men 1 art was sold by Heritage in 2008, which I think was the first public sale, it sold for $30K a page or thereabouts.

If Marvel decided it was not "cost effective" to chase down the art, it probably made that decision because it knew it would have to hand it over to the artists or it was afraid of alienating the fan community.

[pemart1966]

1 hour ago, sfcityduck said:

I bought page 2 of X-Men 125 from Comics & Comix in Berkeley in the same late 70s to early 80s period in which this art was stolen (my purchase was in 1980, I think).  I paid $75 for that page.

Do you really think that the interior of AF 15 was selling for $50 a page in that time period?    When the X-Men 1 art was sold by Heritage in 2008, which I think was the first public sale, it sold for $30K a page or thereabouts.

If Marvel decided it was not "cost effective" to chase down the art, it probably made that decision because it knew it would have to hand it over to the artists or it was afraid of alienating the fan community.

Ahhhhh...OK I may have been off slightly in my pricing.  My point was that these pages were not very expensive when they first surfaced.  

Pages for AF were never for sale at any time in history as far as I know.  

2008 is FAR removed from 1980 especially in the history of original comic art.

You're back in to the circuitous argument as to whether or not the art belonged to the artists/inkers etc or whether they were just artists for hire and that ownership of all property intellectual and physical belonged to Marvel.

Edited August 29, 2018 by pemart1966

[sfcityduck]

2 minutes ago, pemart1966 said:

Pages for AF were never for sale at any time in history as far as I know.  

2008 is FAR removed from 1980 especially in the history of original comic art.

You're back in to the circuitous argument as to whether or not the art belonged to the artists/inkers etc or whether they were just artists for hire and that ownership of all property intellectual and physical belonged to Marvel.

The thieves sold the art into the market of dealers/collectors.  Were the AF 15 pages then sold around?  I don't know.  But, they certainly entered the market when the thieves sold them in.

You hear stories about the FF 1 original art having not only entered the market, but having been broken up into four lots.  

Yes, 2008 is removed from 1980, which is why I provided you the example of a page of 1979 original art selling for $75 in 1980 as refutation for the notion that the original art from the greatest Marvel comics of all time, from the 1961-64 time frame, were only worth $50 in 1980.  

And, no, I'm not back to the question of whether the artists owned the art they made, which I don't think is answered by the "work for hire" doctrine, as I'm noting that the art was stolen from Marvel itself.

[pemart1966]

8 minutes ago, sfcityduck said:

The thieves sold the art into the market of dealers/collectors.  Were the AF 15 pages then sold around?  I don't know.  But, they certainly entered the market when the thieves sold them in.

You hear stories about the FF 1 original art having not only entered the market, but having been broken up into four lots.  

Yes, 2008 is removed from 1980, which is why I provided you the example of a page of 1979 original art selling for $75 in 1980 as refutation for the notion that the original art from the greatest Marvel comics of all time, from the 1961-64 time frame, were only worth $50 in 1980.  

And, no, I'm not back to the question of whether the artists owned the art they made, which I don't think is answered by the "work for hire" doctrine, as I'm noting that the art was stolen from Marvel itself.

For what it's worth, I bought a Ditko Spidey page AND a Kirby FF page for under $100 ea in 1979...that's pretty darn close to 1980...

Edited August 29, 2018 by pemart1966

[sfcityduck]

1 minute ago, pemart1966 said:

For what it's worth, I bought a Ditko Spidey page AND a Kirby FF page for under $100 ea in 1979...

But I doubt they were from AF 15, FF 1, X-Men 1, etc. the key art we are discussing.

Later art was sold into the market by Kirby and Ditko (more rarely), as I understand it, after Marvel sent art to both.  Others can comment.

[pemart1966]

17 minutes ago, sfcityduck said:

But I doubt they were from AF 15, FF 1, X-Men 1, etc. the key art we are discussing.

Later art was sold into the market by Kirby and Ditko (more rarely), as I understand it, after Marvel sent art to both.  Others can comment.

No they weren't, BUT since you mentioned it, when X-Men 1 first surfaced, it apparently sold for $400 - well below $50/page by my math.

[sfcityduck]

12 minutes ago, pemart1966 said:

No they weren't, BUT since you mentioned it, when X-Men 1 first surfaced, it apparently sold for $400 - well below $50/page by my math.

Are you talking about the price charged by a thief to a collector/dealer (which may well be a fraction of market value due to the circumstances)?  There's no way the FMV of an X-Men 1 interior page was $50 (or less) in 1980.  

Here's an analogy that may help, what Chuck paid Church's heirs is not the price people are looking at when they want to know what the Mile High Action 1 sold for when it "entered" the market.  The price paid by Chuck was not FMV.  The price Chuck got when he resold to informed collectors was FMV.

[PhilipB2k17]

29 minutes ago, pemart1966 said:

No they weren't, BUT since you mentioned it, when X-Men 1 first surfaced, it apparently sold for $400 - well below $50/page by my math.

There is a lot of institutional hobby opposition to delving to far into the provenance of these kinds of pieces. This also raises my suspicion that all those early marvel covers do still exist.

[pemart1966]

1 hour ago, sfcityduck said:

Are you talking about the price charged by a thief to a collector/dealer (which may well be a fraction of market value due to the circumstances)?  There's no way the FMV of an X-Men 1 interior page was $50 (or less) in 1980.  

Here's an analogy that may help, what Chuck paid Church's heirs is not the price people are looking at when they want to know what the Mile High Action 1 sold for when it "entered" the market.  The price paid by Chuck was not FMV.  The price Chuck got when he resold to informed collectors was FMV.

You said you doubted that pages from key books were selling at $50/page at that time...I provided you an example that was LESS than that.  Nuff said!!  No post facto caveats please 

But by default, it was FMV as the entire book was sold at that time - 1st $400 takes it.  

Edited August 29, 2018 by pemart1966

[Ironmandrd]

So is there an endgame or objective to be met by all of this discourse and speculation about the immutable past?

[Rick2you2]

20 minutes ago, Ironmandrd said:

So is there an endgame or objective to be met by all of this discourse and speculation about the immutable past?

I think the endgame is to quell some fears that buying old Marvel art, in particular, may be risky if the seller didn't have actual ownership of it in the first place. 

The fact that there is all this discourse and speculation is why the old stuff is probably safely "owned". To establish ownership, or to challenge it successfully, requires proof in court which meets assorted rules on admissibility. The point I was trying to make is if the background is murky and filled with "hearsay", it won't be of much use in a court proceeding. So, as a practical matter, he who has it, keeps it.

[sfcityduck]

1 hour ago, Rick2you2 said:

I think the endgame is to quell some fears that buying old Marvel art, in particular, may be risky if the seller didn't have actual ownership of it in the first place. 

The fact that there is all this discourse and speculation is why the old stuff is probably safely "owned". To establish ownership, or to challenge it successfully, requires proof in court which meets assorted rules on admissibility. The point I was trying to make is if the background is murky and filled with "hearsay", it won't be of much use in a court proceeding. So, as a practical matter, he who has it, keeps it.

Since neither Marvel nor Kirby heirs sued Heritage or seller over X-Men 1 art in 2008, stolen Kirby art holders are probably safe.  Likely true for Ditko art holders, but there will be a Ditko estate calling shots now, not Ditko.  So I agree with the practical reality.

Still, I really don't see the problems of proof for a civil suit.  The burden is preponderance of the evidence (which just means enough to tip a scale your direction), and all you'd have to do to evidence the theft is follow the chain of possession in depositions.  Plus, you've got Ditko's statements, which might be admissible.  

To me, it's a moral compass issue.  And I think the AF 15 holder ultimately followed his moral compass.  Others should too.  The key art belongs in institutions.  

[Rick2you2]

11 hours ago, sfcityduck said:

Since neither Marvel nor Kirby heirs sued Heritage or seller over X-Men 1 art in 2008, stolen Kirby art holders are probably safe.  Likely true for Ditko art holders, but there will be a Ditko estate calling shots now, not Ditko.  So I agree with the practical reality.

Still, I really don't see the problems of proof for a civil suit.  The burden is preponderance of the evidence (which just means enough to tip a scale your direction), and all you'd have to do to evidence the theft is follow the chain of possession in depositions.  Plus, you've got Ditko's statements, which might be admissible.  

To me, it's a moral compass issue.  And I think the AF 15 holder ultimately followed his moral compass.  Others should too.  The key art belongs in institutions.  

Since you're getting into the legal weeds, I don't think you would be in a better position in a civil suit, even though the burden of proof is less. To establish conversion will still require proof of initial entitlement. There, you have an ownership issue under the old copyright laws where the artist is not  the owner of work performed on a "work for hire" basis. That changed in 1976 when the "work for hire" doctrine could no longer be applied to art like this. Apart from the legal issues, you then hit evidence issues.

If you think it is easy getting "chain of possession" depositions of people who had possession over 20 years ago, you are wrong. They can't be found, or they may be dead. You will also encounter classic hearsay issues, which are not within any exceptions. Ditko's statements are not going to be admissible to prove the truth of the matter asserted. That is classic hearsay. They might be useful for x-exam, or for some other issue, but that's it.

So, let's say your artist-client still sues and goes to trial. If you are representing the estate, so much the worse--the artist can't testify so the estate would be relying on hearsay. But go back to our living artist example. The artist who originally did the piece says he never sold it. Think about the cross-examination: (a) what took so long? (b) did you ever sell anything before? Gift it? (c) Why, with all your work, just this person? (d) How is your memory so clear? (e) Did you file a police report?  Then, the buyer takes the stand and says he bought it from John Smith. He somehow gets John Smith to testify. Smith says he bought it from Richard Roe. He even produces a receipt. Then, the buyer's lawyer makes it sound like the artist is a gold-digger who is conveniently forgetting what happened all those years ago. If you think that's an easy win for the artist, you are wrong. Finally, if you think people always tell the truth in court, or even to their lawyers, throw that misconception out, too.

[sfcityduck]

1 hour ago, Rick2you2 said:

Since you're getting into the legal weeds, I don't think you would be in a better position in a civil suit, even though the burden of proof is less. To establish conversion will still require proof of initial entitlement. There, you have an ownership issue under the old copyright laws where the artist is not  the owner of work performed on a "work for hire" basis. That changed in 1976 when the "work for hire" doctrine could no longer be applied to art like this. Apart from the legal issues, you then hit evidence issues.

If you think it is easy getting "chain of possession" depositions of people who had possession over 20 years ago, you are wrong. They can't be found, or they may be dead. You will also encounter classic hearsay issues, which are not within any exceptions. Ditko's statements are not going to be admissible to prove the truth of the matter asserted. That is classic hearsay. They might be useful for x-exam, or for some other issue, but that's it.

So, let's say your artist-client still sues and goes to trial. If you are representing the estate, so much the worse--the artist can't testify so the estate would be relying on hearsay. But go back to our living artist example. The artist who originally did the piece says he never sold it. Think about the cross-examination: (a) what took so long? (b) did you ever sell anything before? Gift it? (c) Why, with all your work, just this person? (d) How is your memory so clear? (e) Did you file a police report?  Then, the buyer takes the stand and says he bought it from John Smith. He somehow gets John Smith to testify. Smith says he bought it from Richard Roe. He even produces a receipt. Then, the buyer's lawyer makes it sound like the artist is a gold-digger who is conveniently forgetting what happened all those years ago. If you think that's an easy win for the artist, you are wrong. Finally, if you think people always tell the truth in court, or even to their lawyers, throw that misconception out, too.

I've been a civil litigator for several decades and I presently have cases in the SDNY and CDCal.  I'm aware of the law, the practical realities, and the venues.  Which is why I stated that "So, I agree with the practical reality" that Marvel and the artists are unlikely to sue.  My comment as to the issue of proof is simple:  I can depose the present holder of the art to find out who they bought it from, for how much, why they kept ownership secret, and their knowledge of the controversial nature of the art.  I can depose then depose person they bought the art from, and that probably takes me back to the identity of the thief.  The owner of the AF, according to the LoC, can provide a complete chain of provenance and clearly knew the art was stolen.  So, no, I don't think it would be hard to establish that the art was stolen from Marvel. 

My real point is that this is a moral compass issue.

Also, you again are conflating the issue of art theft from Marvel with the issue of the artist's entitlement to their art, which is more complicated than you think.  The art theft occurred after 1976, and Marvel made some agreements that would come into play potentially.