Stan, Jack, and Steve - The 1960's (1964) The Slow Build 5 5

[Dr. Haydn]

On 8/23/2023 at 12:02 PM, Math Teacher said:

I really like this cover, but it definitely has perspective issues.

Ya think?!

[Dr. Haydn]

On 8/23/2023 at 1:55 AM, Prince Namor said:

ON NEWSSTANDS JANUARY 1964

Strange Tales #119 - Written by Stan Lee - Drawn by Dick Ayers - Lettered by S. Rosen (Jack Kirby cover)

I'm not sure who 'wrote' the story, but why any one would take credit for it is beyond me (well, for the pay obviously). Another good example of the difference between a Marvel Comic without the benefit of Kirby or Ditko. 

Any thoughts on Tom B's theory that the Rabble Rouser was originally supposed to be the Hate Monger (from the 1963 FF story), and Stan changed his mind late in the process? R.R.'s cheesy mustache does look like a last-minute add-on.

Incidentally, what's with all these Marvel heroes "going wild"? According to a hasty online search, Captain America, the Hulk, Daredevil, the Silver Surfer, and Prince Namor, the Sub-mariner would later do the same thing. (There may have been others that I missed.)

 

[Dr. Haydn]

On 8/23/2023 at 2:05 AM, Prince Namor said:

ON NEWSSTANDS JANUARY 1964

Strange Tales #119 - MORE Ads... four of them in this issue...

Notice the cover blurb specifies "The REAL" Captain America. Was this a variant cover?

[KirbyJack]

Good eye!

[sfcityduck]

One other thing to note when we talk about Kirby and his "defenders."  Guys like Groth had an agenda. It is hilarious to read the parts of the interview where Kirby refuses to agree with the notion that he was a victim of corporate greed:

GROTH: Now. When you did this, you apparently weren’t aware of the financial ramifications — that people were going to make a lot of money on these things.

KIRBY: Oh, we were aware of it, but I didn’t know how to do business. I didn’t know where to begin to do business. I was a kid from the Lower East Side who’d never seen a lawyer, who’d never done business. I was from a family that like millions of others where doing business was concerned I was completely naive.

GROTH: Had you ever thought of going to the publishers and saying, we think this work is worth more than you’re paying us to produce it?

KIRBY: We didn’t know the value of it because Joe got the sales figures. I began to learn about sales figures. Comics were new and spreading very fast. I was just getting paid a page rate.

GROTH: Were you aare that the companies were making a lot of money on these, and you were just getting a page rate, just a fixed rate?

KIRBY: Yes. I accepted that fact because I was bringing in more money. Don’t get me wrong — the more money the books made, the more money I received, and I was feeling great. My purpose was what my father’s purpose was — to make a living and to have a family. I was going to do the right thing. My dream to me was to have money to support it and to live in the kind of house I liked.

GROTH: Did it dawn on you that the publishers you were working for were making a whole lot more money than you were off your work?

KIRBY: I didn’t care. I couldn’t conceive what they were doing in those offices. I couldn’t conceive of working with accountants. I couldn’t conceive of working with sales people. I couldn’t conceive of distribution. I couldn’t conceive of it because I couldn’t envision it. I’ve never run a business, I’ve never run a big business, and comics were growing fast. Superman had that kind of a business. They had every kind of accoutrement you could use for a big business.

GROTH: Did you resent the publishers?

KIRBY: No, I didn’t resent them. In fact, I got along well with them. When I wanted a little more money, they gave me a little more money.

ROZ KIRBY: They threw you bones.

KIRBY: Yeah, they threw me bones, and the publishers liked me.

GROTH: I bet.

KIRBY: I got along well with them.  ....

GROTH: So how did your affiliation with National come about? Did you just drop by the offices and look for work?

KIRBY: Yes. I felt National had always been a respectable house, a prestige house. I liked the people who ran the place. I liked the publisher. I liked the people who worked for them. I always liked DC — they were fair, which was very rare in comics. [Laughter.]

GROTH: When you say they were fair — you still didn’t get to own the strips you drew...

ROZ KIRBY: We thought they were fair. [Laughter.]

KIRBY: All right, I’ll qualify it. I’ll just say that nobody in the field had a contract from anybody. And DC wasn’t the only publishing house in the field. There was also Timely and Dell and a lot of others.

GROTH: But still at that time they owned everything you did, they paid a low page rate, they kept the original art.

KIRBY: Yes. They did. But the idea was the artist came from a poor section of the city... I was happy because I made enough money to give to my parents. I made enough money to get married on. I made enough money to enjoy myself a little more than I would have if I didn’t have enough money. ....

KIRBY: Comics have a caste system — an editor has to act in a certain way, an artist has to be humble, right? An artist has to be humble, an editor must be officious, and a publisher must be somewhere out in the galaxy enjoying godhood. It was a caste system, pure and simple. And it was accepted that way. Nobody thought of contracts, nobody thought of insisting on better deals.

GROTH: Did you assume when you did a book — any one of the many books you’ve done — did you assume that the publisher owned it? Or did you think about it a little later and think, wait a minute, I did this and I didn’t have a contract, and I don’t see why he should own it 100 percent.

KIRBY: No, I was growing up and becoming aware of those things. Joe Simon knew about those things.

GROTH: At the time you just assumed that the publisher owned it?

KIRBY: Yes. I assumed that he took it, OK? [Laughter.] I assumed that he took it, and I didn’t have the means to get it back. ....

GROTH: I understand that sometime in the mid-’50s Bernie Krigstein tried to start a union among comic book creators. Were you aware of that?

KIRBY: I was aware of it. It was something that I knew would fail.

GROTH: But you didn’t go to any meetings?

KIRBY: No, no. Unions almost had the connotation of communism. ....

ROZ KIRBY: Also at that time each artist was making his own deal. Jack said, “Well, I make more money than them.” Everybody can’t make the same.

KIRBY: I was doing very well — my books were selling. Whatever I drew sold.

GROTH: When you say you were doing very well, what does that mean? What was your page rate in the ’50s?

KIRBY: Thirty-five to 50 dollars for a complete page. It depended on who you worked for. Some paid less. Some paid more.

GROTH: Would that include the writing?

KIRBY: Yes, I gave them a complete page. Joe would ink it or someone else would ink it. I’d get somebody to ink it, or I’d ink it myself, and I’d get a certain amount from the publishers. That’s how it was with Challengers of the Unknown.  ....

GROTH: You were getting a page rate at Marvel?

KIRBY: Yes, I was getting a good page rate.

GROTH: Did your page rate increase substantially in the ’60s as the work became more popular?

KIRBY: Yes, it did. My object was to help the publisher to make sales. That was my job. It wasn’t a job of being a Rembrandt. ....

GROTH: The sales of the comics grew faster than they ever did.

KIRBY: Yes. And that’s what it depended on. I knew it would depend on the sale of the comics. If sales of the comics began to dwindle, then your salary is going to be stagnant. If sales fall more, they’re going to lower your salary. If it dwindles even further, your salary is going to be a lot lower than you usually make. It goes the other way, too.

[Prince Namor]

On 8/23/2023 at 2:54 PM, Zonker said:

But I have to acknowledge that at least the second tier of Kirby's Fourth World characters were quite underdeveloped as characters.  Can anyone say what exactly was distinctive about the personality of say Serifan versus Mark Moonrider versus Vykin the Black versus Lightray?  Does it matter?  To me, not so much, given the great concepts Kirby was exploring.  And if the series had been allowed to continue, I bet Jack would eventually have given us a memorable solo story about for example Big Bear that would have better fleshed him out.  But to other readers no doubt the lack of characterization meant the books were under-written, or "poorly" written, depending on one's taste.  And without a Stan Lee there to tell us how great they were... 

Yep. FF and Thor really hit their stride about 4 years into the book. Kirby's Fourth World could've used that time. We got short changed by DC. 

[Dr. Haydn]

On 8/23/2023 at 7:34 PM, Prince Namor said:

Yep. FF and Thor really hit their stride about 4 years into the book. Kirby's Fourth World could've used that time. We got short changed by DC. 

FF had flashes of brilliance early on, but #39 was the beginning of one of the best runs in comic book history, a run of sustained brilliance until #67. Imagine if New Gods had been given that much time to find itself!

[Larryw7]

On 8/23/2023 at 2:29 PM, sfcityduck said:

 

As for copyright issues, if that's what you are referring to, well the courts have spoken on that.

Yeah, because.Stan perjured.himself because he kissed Marvel's  and also kept the legend alive that he was the sole.creator of the Marvel Superheroes.

[sfcityduck]

On 8/24/2023 at 1:02 AM, Larryw7 said:

Yeah, because.Stan perjured.himself because he kissed Marvel's  and also kept the legend alive that he was the sole.creator of the Marvel Superheroes.

First, let's set aside that the Kirby family chose to settle the case with Marvel before they were to test their legal theories in the Supreme Court. They did this even though the U.S. Supreme Court had, in a decision which shocked the patent bar, granted the Kirby's petition for review of the trial court and Second Circuit rulings against them. They did this even though appellate superstar Tom Goldstein, author of the incredibly respected SCOTUSblog, had signed on to handle the appeal. They did this even though they had received supporting amicus ("friend of the Court") briefs from the former directors of the U.S. Patent and Trademark Office and the U.S. Register of Copyrights, as well as a number of labor unions (which Kirby would have called "commies"). But let's ignore that.

Instead, let's look at what the case really was about when it settled. The general issue was whether Kirby for Marvel in the late 1950s and 1960s was “work made for hire.” The more specific legal issues were: (1) Whether a court can constitutionally take copyrights to works originally owned and authored by an independent contractor and hand them to a private party by judicially re-designating them “works for hire;” (2) whether “employer” under the Copyright Act of 1909 can be judicially extended beyond conventional employment to independent contractors, when this contradicts its common law meaning, binding Supreme Court precedent and longstanding canons of statutory construction; and (3) whether “work for hire” can be determined based on post-creation contingencies, like discretionary payment, when authorship and ownership of a copyrightable work, including “work for hire,” vests at inception. 

Importantly, the case was resolved on summary judgment.  Summary judgment is not a trial.  Evidence is not weighed for credibility. The standard of decision is that there are no disputes regarding the material facts and based on those facts the defendant is entitled to judgment as a matter of law. A dispute of material fact occurs when a witness for one side says something material to the legal issue and a witness for the other side contradictions that statement. In other words, any dispute in the material facts or testimony warrants denial of a motion for summary judgment. 

So, to use your example, if Stan lied about something material to the issue and someone on the Kirby side contradicted Stan then summary judgment simply could not be granted. The fact that summary judgment was granted means that trial court and Second Circuit Court of Appeal both agreed that there were no material facts in dispute. Stated differently, this was not a Lee said vs. Kirby said case. If it had been, then the Kirby's would have had a slam dunk appeal (one they likely would not settle).

According to Marvel, the Kirby's admitted the key undisputed factual finding in the case, which was: 

* “Kirby did not create the artwork that is the subject of the Termination Notices until Lee assigned him to do so.” Pet. App. 85. “Lee edited Kirby’s work and reviewed and approved all of his work prior to publication.” Pet. App. 88. In sum, Marvel “control[led] and supervise[d] all work that it published between 1958 and 1963,” including the works at issue here. Pet. App. 91.

The evidence cited to support this conclusion notably included statements by the Kirby family:

* Kirby’s son Neal, a Plaintiff in this case, testified that his father “didn’t do work on spec[ulation], he was getting paid by the page.” (See N. Kirby Dep. at127:19–128:5.) Although Neal Kirby testified that there were instances where “his father did pitch ideas on spec to Marvel,” he also admitted that his father did not draw a comic book story until he had received approval for that story or was assigned to that story by Lee or Goodman. (N. Kirby Dep. 167:21–168:23.) 

* If Lee did not approve of the artist’s work, it was not published. (Pls.’ 56.1 ¶ 30; see also Steranko Decl. ¶ ¶ 11, 13; Sinnott Decl. ¶ 11.) Kirby was no exception. Lee edited Kirby’s work and reviewed and approved all of his work prior to publication. (Pls.’ 56.1 ¶¶ 58–59.) Lee’s testimony is consistent with the recollection of Kirby’s daughter, Susan Kirby, who testified that Lee asked her father to “redo pages.” (10/25/10 Deposition of Susan Kirby (“S. Kirby Dep.”) 37:23–25.) Neal Kirby testified about one instance where Lee rejected a “cover” created by
Kirby. (N. Kirby Dep. 58:8–18.)

It also included statements by Romita and Thomas. The Kirby family attempted to rely on "expert opinion" by Mark Evanier but that evidence was tossed because it was without sufficient factual foundation. In short, the legal issues did not hinge only on Lee's testimony. 

[Prince Namor]

On 8/24/2023 at 4:02 AM, Larryw7 said:

Yeah, because.Stan perjured.himself because he kissed Marvel's  and also kept the legend alive that he was the sole.creator of the Marvel Superheroes.

There's a lot of different views on the subject and a lot of opinion's, but the fact is, Stan Lee lied on the stand. When he claimed to have created everything and then just assigned an artist, it pretty much was something that everyone knew was BS, including his own supporters. 

[Zonker]

On 8/24/2023 at 8:02 PM, sfcityduck said:

First, let's set aside that the Kirby family chose to settle the case with Marvel before they were to test their legal theories in the Supreme Court.

Can we turn this around and ask why would Disney agree to settle with the Kirbys if the work-for-hire issue was so clearly in Disney's favor? 

[shadroch]

On 8/24/2023 at 7:22 PM, Zonker said:

Can we turn this around and ask why would Disney agree to settle with the Kirbys if the work-for-hire issue was so clearly in Disney's favor? 

Goodwill and it made sense to give Kirby something rather than pay the lawyers. I wonder if Disney was even aware of the issue when they bought Marvel.

[Prince Namor]

On 8/24/2023 at 10:22 PM, Zonker said:

Can we turn this around and ask why would Disney agree to settle with the Kirbys if the work-for-hire issue was so clearly in Disney's favor? 

It could've been disastrous for Disney... the Kirby's didn't settle. It wasn't their position to settle. Disney made an offer to settle and the Kirby's agreed. Disney had everything to lose...

Here's what Deadline said about it at the time:

The bottom line and PR risk that the media giant was taking if SCOTUS had agreed to move the family’s petition up to an actual hearing would have sent a shudder through the market and the town. As well, if there had been a hearing and if then the High Court had found for the Kirbys, the results would have thrown Marvel/Disney into turmoil as they would have to negotiate for millions and millions with the family on everything from The Avengers, this summer’s big hit Guardians Of The Galaxy, with the popular Groot character a Kirby creation, and the all the characters in the notices if they wanted to keep the franchises going at Disney and other studios. And there would have been royalties on the already made movies like the 2008 hit Iron Man and 2012’s The Avengers with its billion dollar plus box office, to name a few. As well a wide variety of copyrights across the industry, including those at Warner Bros and DC Comics, would suddenly be in play as the work of writers, composers and others designated under a freelancer or the work for hire status could suddenly gain a piece of what they created in what would now be seen as a much more traditional employee/employer arrangement.

 

[Zonker]

That is kind of what I thought: the work-for-hire issue must not have been a slam-dunk in Disney's favor, particularly after the Supreme Court surprisingly agreed to hear the case. Because Disney had to have known that by settling with the Kirbys, they would eventually also have to settle with Larry Lieber, the Don Heck & Gene Colan estates, and presumably, at some point down the road, the Ditko estate. 

[sfcityduck]

On 8/24/2023 at 7:22 PM, Zonker said:

Can we turn this around and ask why would Disney agree to settle with the Kirbys if the work-for-hire issue was so clearly in Disney's favor? 

All litigations settle because both sides believe they face downside risk. Here Disney faced the risk of losing on the legal issues even absent any dispute about the facts.

[sfcityduck]

On 8/25/2023 at 12:13 AM, Prince Namor said:

It could've been disastrous for Disney... the Kirby's didn't settle. It wasn't their position to settle. Disney made an offer to settle and the Kirby's agreed. Disney had everything to lose

 

“The Kirby’s didn’t settle”?

That is a false statement.  There are things called facts. Let’s stick to them.

Yes the Kirby’s settled.  Yes it was their position to settle. Yes they voluntarily settled. 

Yes like all settlements it resulted from negotiations. There were offers and demands and a deal was struck that made sense to both sides. The Kirby’s walked away from a lot of money, billions, they might have won if the SCOTUS would have agreed with their invitation to change the law. 

That is the way civil litigation resolves the vast majority of the time. Very few cases go to trial.  

Edited August 25, 2023 by sfcityduck

[sfcityduck]

On 8/25/2023 at 3:19 AM, Zonker said:

That is kind of what I thought: the work-for-hire issue must not have been a slam-dunk in Disney's favor, particularly after the Supreme Court surprisingly agreed to hear the case. Because Disney had to have known that by settling with the Kirbys, they would eventually also have to settle with Larry Lieber, the Don Heck & Gene Colan estates, and presumably, at some point down the road, the Ditko estate. 

Nothing is slam dunk.  All litigation involves a risk assessment.  If a litigant thinks they face a one percent chance of losing a billion dollar dispute the conservative approach is to be willing to pay up to $10,000,000.

A good question is: What did the Kirby’s and Disney respectively give up to reach this deal?

I doubt Disney has any concerns about facing a lawsuit from Lieber - one of their Star witnesses - and I don’t know why you mention Heck - Kirby claimed he created IM.  Lot of speculation here. 

[sfcityduck]

On 8/25/2023 at 7:14 AM, sfcityduck said:

If a litigant thinks they face a one percent chance of losing a billion dollar dispute the conservative approach is to be willing to pay up to $10,000,000.

A good question is: What did the Kirby’s and Disney respectively give up to reach this deal?

 

Let me spell this out:  Given the billions at stake, the monetary payment made by Disney was consistent with a 1% litigation risk assessment.  Disney reportedly gave up $30,000,000 to $50,000,000. The Kirby’s gave up over a 100x that amount.

Edited August 25, 2023 by sfcityduck

[sfcityduck]

On 8/24/2023 at 6:52 PM, Prince Namor said:

There's a lot of different views on the subject and a lot of opinion's, but the fact is, Stan Lee lied on the stand.

It is pretty hard to call that a fact when no jury, US District Court, or US Circuit Court of Appeal ever found that assertion to be true.

 

[shadroch]

Jack had a chance to do the right thing in the Joe Simon case and instead was a good company man, screwing himself in the process.

His family had a chance to do something for the entire industry and instead settled for an undisclosed amount.  I won't question their motives, perhaps they needed the money.