I need clarity on "stolen art" 1 1

[PhilipB2k17]

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.

Yes. We know all the old school collectors who obtained this art through questionable means, or by looking the other way, or playing dumb, hope this is true.

[PhilipB2k17]

9 minutes ago, sfcityduck said:

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.

You can probably go back only so far, though. "I bought it from two guys at a comic shop in Queens, who I did not know. I don't know where they got the art from. I have no idea whether they stole it, or someone with authority at Marvel gave it to them." And, sadly, a lot of the people you'd have to depose at Marvel are dead, or very old and you'd have a very small window of opportunity to obtain this information.

So, I suspect that a LOT of this art will start coming out of the woodwork once the current owners pass on, and their heirs liquidate it. 

[PhilipB2k17]

12 minutes ago, sfcityduck said:

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.

Greece is still trying to get back the Parthenon frieze, which was looted by Lord Elgin, and brought to Great Britain in the 18th Century. People who collect ancient artifacts have many of the same issues as Comic art collectors, in that many of the objects that are for sale were looted. It's a huge problem, and buying these objects actually creates an incentive for more looting. 

[sfcityduck]

18 minutes ago, PhilipB2k17 said:

Greece is still trying to get back the Parthenon frieze, which was looted by Lord Elgin, and brought to Great Britain in the 18th Century. People who collect ancient artifacts have many of the same issues as Comic art collectors, in that many of the objects that are for sale were looted. It's a huge problem, and buying these objects actually creates an incentive for more looting. 

A better analogy might be holocaust art.

[JadeGiant]

50 minutes ago, sfcityduck said:

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.

 

I would imagine that any succession of deposition(s) would soon lead to a dead end. The person who sold the art is unknown/not remembered, cash purchase at a con, the person who sold it is deceased, etc. Regarding the moral compass issue - I think most would agree that the initial art theft falls under this category but I also think it highly plausible that someone along the way bought the art without any inkling of moral issue(s) being present - saw the art, liked it and the price was right and bought it. 

[Ironmandrd]

34 minutes ago, sfcityduck said:

A better analogy might be holocaust art.

The courts aren't even consistent on recovery of Nazi caused lost/stolen art and which tests to apply.  See https://www.hhrartlaw.com/category/statute-of-limitations/

in which two courts came to opposite conclusions based on very similar facts involving the same family trying to recover alleged Nazi looted art from present day owners.

[sfcityduck]

1 hour ago, Ironmandrd said:

The courts aren't even consistent on recovery of Nazi caused lost/stolen art and which tests to apply.  See https://www.hhrartlaw.com/category/statute-of-limitations/

in which two courts came to opposite conclusions based on very similar facts involving the same family trying to recover alleged Nazi looted art from present day owners.

A better analogy from the perspective of the moral compass.  Holocaust art is subject to specific laws adopted in various jurisdictions that address only holocaust art.

[sfcityduck]

2 hours ago, JadeGiant said:

 

I would imagine that any succession of deposition(s) would soon lead to a dead end. The person who sold the art is unknown/not remembered, cash purchase at a con, the person who sold it is deceased, etc. Regarding the moral compass issue - I think most would agree that the initial art theft falls under this category but I also think it highly plausible that someone along the way bought the art without any inkling of moral issue(s) being present - saw the art, liked it and the price was right and bought it. 

The AF 15 owner told the LoC they could establish the provenance of the art "if necessary."  The LoC did not want to know.  

I believe that the really key art has not changed hands very many times, in some cases maybe only once since sold by the thieves.  The ASM 1 cover was supposedly bought and held for 30+ years.   Generally, witnesses do not lie under oath, and buying the ASM 1 cover is the kind of event which is unlikely to be not remembered by an art fan.

[Rick2you2]

22 hours ago, sfcityduck said:

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.

Curiously enough, I too am a civil litigator and have been doing it for several decades. While my cases are not currently in SDNY, nor have I ever been before the CDCal, they have been in SDNY, EDNY, NDNY and DNJ, as well as a fair number of cases in the state courts of NJ and NY focused on commercial construction litigation. And no, I don't agree with you about what you can "prove." What you will likely be working with, eventually, is hearsay and difficult to find people combined with conflicting stories and burden of proof issues. For example, what if someone signed an "assignment", and the artist forgot about it or didn't understand it? That is not the same as a copyright question at all.

And don't forget the OP was whether buyers of OA should be worried about their ownership rights. No suit, no judgment, no worries. 

There is another side to the "moral compass" issue which no longer comes into play anymore with current art. It does, however, deserve an airing. That's the basic rule of contract law which states that a contract is to be construed in accordance with the intent of the parties (whether actual or as applied by rule of law is a different question). If I think I bought a toaster from someone, and he thought he had the right to sell it to me, it's not fair for me to be forced to give up the toaster if he didn't own it. Yes, the original owner lost out, by why should the current buyer also suffer? Well, because someone has to, that's why. 

I know that comic artists were badly burned by low rates and miserable treatment. Honestly, I still think they are underpaid. But I am trying to stay focused on a very narrow question--that's it.

 

[sfcityduck]

1 hour ago, Rick2you2 said:

Curiously enough, I too am a civil litigator and have been doing it for several decades. While my cases are not currently in SDNY, nor have I ever been before the CDCal, they have been in SDNY, EDNY, NDNY and DNJ, as well as a fair number of cases in the state courts of NJ and NY focused on commercial construction litigation. And no, I don't agree with you about what you can "prove." What you will likely be working with, eventually, is hearsay and difficult to find people combined with conflicting stories and burden of proof issues. For example, what if someone signed an "assignment", and the artist forgot about it or didn't understand it? That is not the same as a copyright question at all.

And don't forget the OP was whether buyers of OA should be worried about their ownership rights. No suit, no judgment, no worries. 

There is another side to the "moral compass" issue which no longer comes into play anymore with current art. It does, however, deserve an airing. That's the basic rule of contract law which states that a contract is to be construed in accordance with the intent of the parties (whether actual or as applied by rule of law is a different question). If I think I bought a toaster from someone, and he thought he had the right to sell it to me, it's not fair for me to be forced to give up the toaster if he didn't own it. Yes, the original owner lost out, by why should the current buyer also suffer? Well, because someone has to, that's why. 

I know that comic artists were badly burned by low rates and miserable treatment. Honestly, I still think they are underpaid. But I am trying to stay focused on a very narrow question--that's it.

 

As far as I can tell, the storyline may be as simple this: 

* Thief shows up at comic store in NYC with some of the most significant art ever produced (FF 1, AF 15, X-Men 1, ASM 1 are all known), tells comic book store owner "this wasn't stolen, but I can't tell you how I legitimately got it - want buy for cheap no questions asked?"

* Comic store says "right buddy! here's a paltry amount of money!";

* The comic store then offers the art - on the low down - to a collector who either holds the art until the present or sell it on maybe one time;

* The holders of the art all keep their identities and the art secret for years.  It is not loaned out for the major art exhibits that have occurred;

* Stories circulate in the fan press that the art has been stolen and there is considerable discussion about the art ownership - Marvel vs. artists - with no discussion that the art was legitimately sold into the market;

* There are highly publicized campaigns to pressure Marvel to return original art to the artists (which do yield some relevant agreements);

* And as early as the 80s, and in a widely discussed article in 1993, there are also comments by the artists (which are not hearsay if offered to prove the art's then owner's knowledge of the art theft) that Marvel's failure to pursue return of the stolen art "rewards, gratifies and sanctions the 'original artwork' thieves and their thieves' market."

The legitimate inferences that a jury could draw from this factual record is that the purchasers of the art knew it was stolen and, therefore, are not entitled to the protections afforded innocent purchasers of stolen goods.  Will this happen?  We agree it is unlikely it would ever be litigated.  

I've been seeing discussion about this stolen art for 30 years or more.  And I'm not a big time original art collector.  Consequently, I really think it is naive or cynical to think that there is no reasonable possibility that it could be proven, under the low civil standard, that this art was stolen and the purchasers knew that when they made their purchases.  I also think it is naive to think that a jury would have any sympathy for the purchasers.  They've had the secret enjoyment of the art for decades, and repatriating the art to the rightful owners would cost those owners nothing as they paid a very small fraction of the art's current market value.  [I am not, however, talking about the art sold at Heritage, the ship has sailed on that art and the Heritage buyers are completely protected because of the public nature of that sell and the vetting that occurred.]

For me, the ethical issue is clear and jurors would see it.  Certainly, I don't think there's much doubt that the owners of the art should see it.  We know that the AF 15 owner did.

[PhilipB2k17]

1 hour ago, sfcityduck said:

As far as I can tell, the storyline may be as simple this: 

* Thief shows up at comic store in NYC with some of the most significant art ever produced (FF 1, AF 15, X-Men 1, ASM 1 are all known), tells comic book store owner "this wasn't stolen, but I can't tell you how I legitimately got it - want buy for cheap no questions asked?"

* Comic store says "right buddy! here's a paltry amount of money!";

* The comic store then offers the art - on the low down - to a collector who either holds the art until the present or sell it on maybe one time;

* The holders of the art all keep their identities and the art secret for years.  It is not loaned out for the major art exhibits that have occurred;

* Stories circulate in the fan press that the art has been stolen and there is considerable discussion about the art ownership - Marvel vs. artists - with no discussion that the art was legitimately sold into the market;

* There are highly publicized campaigns to pressure Marvel to return original art to the artists (which do yield some relevant agreements);

* And as early as the 80s, and in a widely discussed article in 1993, there are also comments by the artists (which are not hearsay if offered to prove the art's then owner's knowledge of the art theft) that Marvel's failure to pursue return of the stolen art "rewards, gratifies and sanctions the 'original artwork' thieves and their thieves' market."

The legitimate inferences that a jury could draw from this factual record is that the purchasers of the art knew it was stolen and, therefore, are not entitled to the protections afforded innocent purchasers of stolen goods.  Will this happen?  We agree it is unlikely it would ever be litigated.  

I've been seeing discussion about this stolen art for 30 years or more.  And I'm not a big time original art collector.  Consequently, I really think it is naive or cynical to think that there is no reasonable possibility that it could be proven, under the low civil standard, that this art was stolen and the purchasers knew that when they made their purchases.  I also think it is naive to think that a jury would have any sympathy for the purchasers.  They've had the secret enjoyment of the art for decades, and repatriating the art to the rightful owners would cost those owners nothing as they paid a very small fraction of the art's current market value.  [I am not, however, talking about the art sold at Heritage, the ship has sailed on that art and the Heritage buyers are completely protected because of the public nature of that sell and the vetting that occurred.]

For me, the ethical issue is clear and jurors would see it.  Certainly, I don't think there's much doubt that the owners of the art should see it.  We know that the AF 15 owner did.

I have a hard time believing that the original purchasers of this Key art did not know it was stolen. Nobody outside of the hobby was buying this stuff back then. 

[Rick2you2]

5 hours ago, sfcityduck said:

As far as I can tell, the storyline may be as simple this: 

* Thief shows up at comic store in NYC with some of the most significant art ever produced (FF 1, AF 15, X-Men 1, ASM 1 are all known), tells comic book store owner "this wasn't stolen, but I can't tell you how I legitimately got it - want buy for cheap no questions asked?"

* Comic store says "right buddy! here's a paltry amount of money!";

* The comic store then offers the art - on the low down - to a collector who either holds the art until the present or sell it on maybe one time;

* The holders of the art all keep their identities and the art secret for years.  It is not loaned out for the major art exhibits that have occurred;

* Stories circulate in the fan press that the art has been stolen and there is considerable discussion about the art ownership - Marvel vs. artists - with no discussion that the art was legitimately sold into the market;

* There are highly publicized campaigns to pressure Marvel to return original art to the artists (which do yield some relevant agreements);

* And as early as the 80s, and in a widely discussed article in 1993, there are also comments by the artists (which are not hearsay if offered to prove the art's then owner's knowledge of the art theft) that Marvel's failure to pursue return of the stolen art "rewards, gratifies and sanctions the 'original artwork' thieves and their thieves' market."

The legitimate inferences that a jury could draw from this factual record is that the purchasers of the art knew it was stolen and, therefore, are not entitled to the protections afforded innocent purchasers of stolen goods.  Will this happen?  We agree it is unlikely it would ever be litigated.  

I've been seeing discussion about this stolen art for 30 years or more.  And I'm not a big time original art collector.  Consequently, I really think it is naive or cynical to think that there is no reasonable possibility that it could be proven, under the low civil standard, that this art was stolen and the purchasers knew that when they made their purchases.  I also think it is naive to think that a jury would have any sympathy for the purchasers.  They've had the secret enjoyment of the art for decades, and repatriating the art to the rightful owners would cost those owners nothing as they paid a very small fraction of the art's current market value.  [I am not, however, talking about the art sold at Heritage, the ship has sailed on that art and the Heritage buyers are completely protected because of the public nature of that sell and the vetting that occurred.]

For me, the ethical issue is clear and jurors would see it.  Certainly, I don't think there's much doubt that the owners of the art should see it.  We know that the AF 15 owner did.

I have mentioned this before, and will do so again. If the art is pre-1976 Copyright Act changes, which this is, than the entity who likely owned it is Marvel unless there was some agreement which overcame the "work for hire" doctrine. 

And yes, it is possible a jury could do that. It is also possible the presumed thief would win a directed verdict or get a summary judgment before trial in its favor. I have seen way too much in court not to expect the unexpected--particularly if a lot of money is at issue. Do people ever lie under oath? You bet they do.

On the other hand, I'm not sure what protections would be afforded an innocent purchaser which would amount to much in this case--the innocent purchaser still would have to turn over the "stolen goods". Unlike the Elgin marbles and international law, US law does not create ownership if title is not passed (in absence of adverse possession of property, and frankly, I don't know if that applies outside of real property law). Domestically, that's why you will sometimes hear of cases where someone recovers back an old stolen car taken decades ago (and not claimed by the insurance company).

This whole subject is beginning to feel like I'm bringing "coals to Newcastle."

 

 

[sfcityduck]

1 minute ago, Rick2you2 said:

I have mentioned this before, and will do so again. If the art is pre-1976 Copyright Act changes, which this is, than the entity who likely owned it is Marvel unless there was some agreement which overcame the "work for hire" doctrine. 

 

And I mentioned, there were relevant agreements.  Here is what Jim Shooter had to say:

Quote

 

Before the mid-seventies, no one got artwork returned. Actually, few cared about it. As the collector market grew stronger, and the artwork became valuable, artists started caring.

By the time I became editor in chief at Marvel in 1978 (and therefore was in a position to have a voice in the Marvel management), both Marvel and DC had instituted art return policies. Marvel’s, set up by Roy Thomas, gave writers a share of the pages. Go figure. As soon as I could, I changed that — one reason why a few writers like Moench and Thomas didn’t like me. Tough. I did what I believed was right.

 

Kirby worked for Marvel during that period and had art returned to him just like everybody else. The dispute arose over the old art, from before the return plan was instituted, which was in a warehouse.

 

I was on the side of Kirby and all the other old artists. I tried at every opportunity to convince Marvel’s brass to return the old artwork. There were many reasons cited by the corporate counsel, financial officer, etc. why this was a problem — i.e., the art could be considered an asset, and couldn’t be disposed of with no benefit to the stockholders of a publicly traded company, tax issues and lots of other nonsense.

Over time, I successfully overcame those objections, and got approval from the board to return the old artwork. Kirby’s contract had expired at about that time, and he ‘d left. As soon as he left, he sued Marvel for ownership of the characters he’d created. The return of the artwork was one aspect of that case.

 

So then because he was suing Marvel, the lawyers felt that the artwork couldn’t be returned — it’s complicated, but doing so could tend to support his claims. In fact, they wouldn’t let me return artwork to anyone while the case was pending. Imagine the frustration of guys like Joe Sinnott and the Buscemas.

 

The legal sparring went on a long time. Starting, as most lawsuits do, with a period of threats and legal maneuvering, in 1978 the Kirby side began an aggressive legal and PR attack on Marvel that ended (or lessened somewhat) in mid-1986 when the matter was settled. Though it was a complex case about who owned the characters the way it was pitched to the public by their side was that Marvel — and in particular, I wouldn’t give Kirby his art back.

 

During this time, I’d run into Jack at conventions; he couldn’t have been nicer to me. If you look at what Jack said from the podium in those days, he’d acknowledge he had a dispute with Marvel, but he’d also say, “We’re trying to work it out.” He was very gracious about it. Some people around him would get pretty vicious. There was one time I was at a show; I’d sit in the back of the room if I ever went to a panel. Jack was on the panel so I went. There were some other people up there, some of the people who kind of gathered around him; some for genuinely noble reasons, some for self-serving reasons. I think it was Gary Groth who worked this crowd into a frenzy, shouting, “If you see anybody from Marvel, go after them with 2x4s!” I’m in the back of the room, and there’s 300 people between me and the door, and I thought, “Hmm, this is going to be interesting.”

 

This guy sitting next to me turns and says, “Why don’t you say something?” I said, “They’re not here to hear me talk!” I survived that incident obviously, but it was one more problem in my life than I needed. I was in a position as Marvel’s representative where I couldn’t very well get out in front of a crowd and say, “Hey, these guys upstairs at Marvel really are individual_without_enough_empathys. I keep trying to tell them to do the right thing, and they won’t.” As long as I was cashing their paychecks, my morals say I can’t do that. Now that doesn’t mean I can’t fight like a maniac behind closed doors, which I did — making a great number of enemies in the process.

 

Eventually, I convinced the lawyers that it wouldn’t compromise the case if other artists got their art back, and I was allowed to return everyone’s but Jack’s.

 

The Kirby case ended when Marvel, in discovery, produced a number of documents, including several signed with Cadence Industries’ predecessor proving that Kirby had specifically agreed more than once in exchange for compensation (beyond the original payment for the work) that Marvel owned the work (art, characters, everything). One specifically listed every story Kirby ever did — part of the proof Martin Goodman was required to provide that he owned what he was selling when he sold Marvel to Cadence, I believe. Kirby’s lawyers were apparently unaware of the existence of these documents, apologized, and dropped the suit.

 

Marvel’s lawyers would have shown them earlier, but never dreamed that the other side wasn’t aware of them.

 

The only remaining thing was returning the artwork. Kirby then demanded as a condition of  accepting the artwork that he must be given sole credit as creator on all the characters he co-created with Stan, and that Stan must specifically receive no credit. He framed his demands for the return of the artwork in such a way that to do so would be a tacit admission by Marvel that it was “his” art, i.e., he owned the underlying rights, and therefore the characters. Kirby also insisted that he created Spider-Man.

 

About a dozen times, I requested an audience with the upper management and/or lawyers to argue in favor of generosity toward Kirby. One thing I proposed was offering a settlement which would include Kirby (and all other founding fathers) in the character-creator incentive I’d established for current Marvel creators. This incentive was a profit sharing plan that paid a royalty for ALL uses of a character. It works like partial ownership. I asked for it to be retroactive to the date the plan had been installed. Retroactive payments of any kind beyond that date had been previously, adamantly ruled out by management. As it turned out, my more modest plan was ruled out too.

 

So Jack, with his lawyer’s help, sent us a letter refusing to accept the artwork back unless he were given credit as sole creator on all the old stuff he and Stan worked on together. He specifically insisted that Stan would get no credit, and that Jack must get credit, or Jack would not accept his artwork back. That just blew my mind. Shortly after that, I met with Jack in San Diego, and I talked with him. I said, “Doesn’t Stan deserve some credit?” Jack said, “Yeah, he does.” And I said, “So you’d be okay if we put ‘Stan and Jack’?” He said yes. I said, “And another thing, Jack, in your letter you insist you created Spider-Man, and I know you developed a version of Spider-Man, but it wasn’t the one that was actually used. The one that was actually used was the one Steve did.” He said, “Yeah, you’re right, that’s his.” Jack was fine with it; he had no problem. So we settled, and he got his artwork back.

 

 

[Funnyslover]

I’m sure Pete Koch would have lots and lots to contribute on this subject  Is he a member here ?

G’nite 

[Rick2you2]

17 hours ago, sfcityduck said:

And I mentioned, there were relevant agreements.  Here is what Jim Shooter had to say:

 

I've read this sort of material before, and I don't understand the point you are making about "relevant agreements". You could theoretically have an artist sign a "work for hire" agreement as an employee, but that doesn't make it legally binding (at least post-1976). On the other hand, an artist can give someone an assignment of rights--which is different than a "work for hire" agreement--and transfer the ownership the artist does have.

Then, there is the question of what Shooter was specifically saying at the end. If Kirby did get his artwork back from Marvel, then it wasn't stolen from Marvel. So what is the actual concern about current ownership? Did someone steal it from Kirby, or was there art which Marvel claimed that Kirby did not own and would not return?

My guess is that the settlement was limited to art which Marvel had on hand, and Kirby waived rights to anything Marvel did not have in its possession. If that's the case, then Marvel would have the right to sue for the value of the old art, not Kirby, to try and get it back if it wanted. 

I wish I were a "fly on the wall" in those private meetings because it sounds like there were a bunch of overly -aggressive New York lawyers. As you know, settlements are not admissible in evidence to prove liability, so I don't know how that figured into the discussion (the tax issue is an interesting angle, but there may have been a way to avoid it). Copyright ownership of a character, like Captain America, would dwarf the money Kriby could make off selling his art (or licensing it for posters and books, for example). So, I can certainly see how Marvel wouldn't go along with that when the characters were created pre-1976. 

In any event, I hope the general reader understands this isn't as simple a subject as it sounds. I'm not commenting on morality, by the way, just legality. 

[sfcityduck]

3 hours ago, Rick2you2 said:

I've read this sort of material before, and I don't understand the point you are making about "relevant agreements".

There were settlement agreements and release agreements that could come into play from what I've heard.  Neither of us has read them.  

[georgefhagenauer2]

Boy a lot has passed in a month: A few comments (and I am not a lawyer)

1) First the really big documented theft was during the DC move - while the focus is on Neal Adams - the big losers were folks like Russ Heath and Curt Swan - Irv Novick etc who lost whole packages of bronze age art . DC reported the theft but DC did not have a good inventory on the art so tracking x page to the theft is almost impossible. A lot of this art was sold i nthe original filing packages before the stories got broken up.

2) In the early days (before Irene Vartanoff I believe did an inventory) no one kept track of what was in storage (there was no Vault in either case just on site or off site storage- amjor conceptual problem comes with the word Vault as it indicates a high value on the art placed by the companies which frankly didn't value it all that high) . DC especially for years just gave art away when fans took the DC weekly tour - my Metal Man page from the first showcase issue came like that. Artists were often given pages as samples when they took over a character - the largest haul of DC pre 1957 art came from the estate of a letterer who seems to be have been given it for some reason (interior pages to a couple of dozen books). So the first problem is that neither company in the early days had good records as to what ended up in the storage areas. So the art ends up gone but no one can say what was given away and what was stolen in spite of the fact that a larger percentage of the Marvel art before the inventory was stolen . I am not sure the Marvel theft was ever documented in terms of a police report. I am not sure what the DC theft report was like as what was stolen were large moving boxes of original art.

3) One interesting issue here is that we are also looking at multiple transfers of ownership of the company. Marvel and DC have been sold multiple times I am not sure what was in those inventories.

4) I talked to a Marvel lawyer in the late 1980s early 1990's and basically she said that when returning art they handled it as a "gift" which dodged a lot of legal issues like how they divided it up between penciller and inker or as  if in one case I know of they gave a story back to the wrong artist!

5) Some artists at both companies got some art back if they asked for it for a reason- it was not general policy however

6) At the first Chicago comicon benefit art auction (1976) Stan Lee donated some Marvel art mostly pages he got as a writer. The Kirby Cap Page from TOS went for I think $47 (I had played out my money at the auction buying a Joe Kubert war cover for $15) Prices were ridiculously low back then . And the better art had been sold years before when the going price for a colan Dardevil cover was maybe $35. When Kirby got his art returned he was a selling a lot of it for $50-75 a page .

7) best thing to do is to keep track of where you got your art even today- paperwork is best but even a basic list on a spreadsheet helps - very few of us did that (I was one who did) and that is the core problem - we do provenance on high grade comics but not on art where there is a long legal history related to provenance