http://mediadecoder.blogs.nytimes.com/2009/09/20/in-wake-of- disney-marvel-deal-cartoonists-heirs-seek-to-reclaim-rights/ ?hp

This, together with ongoing claims for Superman, leaves one to wonder what the future holds for these characters, and whether we'll start to see other publishing companies with their own takes on Captain America, etc.

It doesn't say which characters would be involved, but it seems strange that there would be any sustainable claim. The rights reversion of Captain America and Superman are based on proof that they were created before being sold to Marvel and DC (Or Atlas and National) respectively.  Meaning that they specifically could not be considered work for hire.

As the fan press have shown, Fantastic Four #1 was based on a script by Stan Lee, who was the editor and represented the company. That makes Fantastic Four #1 work for hire. And everything in FF subsequent to that.

Thor was purportedly based on an outline by Stan Lee, Kirby might have been instrumental in its creation, but "Thor" as a god is in public domain, and only specific elements distinguishing the Marvel Thor from any and all previous versions would be up for grabs. And only if it could be shown that Kirby thought of those ideas before being presented with the assignment by Stan Lee.

Captain America is already placed with Joe Simon.

For Iron Man, Kirby did covers and character design ofr the original armor. Since he wasn't more involved, where's the opening for it not being "Work For Hire"?

Kirby was barely involved with X-men after the first issues, but I don't see how that series would be "pre-existing"?

Avengers was a collection of heroes from other books.

I'm sorry, but although Kirby was a creative genius and a principal force behind the creation of the Marvel Universe, I don't see how any of that translates into the work not being done "Work for hire" as that is defined. It would have to be some work that he had developed enough to shop it around to a publisher.

I can agree with the Siegel and Shuster lawsuit in that they seem to have the law on their side, but I don't see what characters the Kirby estate could possibly have a claim to based on the precedence of Captain America and Superman.

It also puts the contract Kirby was asked to sign in the 80s ( when asking for his original art back) in a new light. Because if his estate is asking for rights that he would have signed away definitively in that contract, then it wasn't so unreasonable for Marvel to seek to settle the issue at that time.  A lot of the indignation expressed at the time against Marvel was , as I understand it (and someone please correct me if I'm wrong) because the contract was interpreted as implying that Kirby was going to use the return of the original art as a way to weasel rights to the characters away from Marvel.

I haven't rechecked the interviews from the time, but what I seem to remember was that people (including several on Kirby's side) were saying that Kirby shouldn't have to sign that contract because he didn't have any legal claim to the characters anyway and this was just a way to bully him and suggest that he was asking for rights when he really wasn't.  

But like I say, It's been a long time since I read about all this in TCJ, and I certainly didn't live it.

What gives rise to the Kirby claim, is this key passage from Circular 9 (page 2):

"If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire." (italics in the original)

There was no written agreement back in the 1960s between Marvel and Kirby that he was performing work-for-hire, thus giving rise to the infamous four page contract by which Marvel sought to retroactively establish those rights.

It's certainly not a slam dunk case of the Kirby heirs, but it's muddied enough that Disney just might throw some cash at it to make it all go away.

Edited by Matthew McCallum on 20 September 2009 at 11:11pm

"independent contractor" (i.e. freelancer) could be seen as putting everything ever produced in comics back in the hands of the writers and artists. But that's not going to happen.

There are two major drawbacks to this claim:

Everything Kirby did at Marvel during the sixties was under the direct guidance and supervision of Stan Lee, who scripted most of what he did.  Stan Lee exercised final control over the product, Kirby did not.

A cursory look at the 20 point test for determining whether a worker is an independent contractor or an employee, shows that on about 15 points Kirby is clearly an employee for the purposes of the law of agency in the situation he was in at Marvel. In which case the issue of a written contract is void.

And as I understand it, the requirement that there be a written contract would only be applicable after 1976, as before that oral agreements or implied agreements covered work for hire. Most freelance contracts were oral at the time, and a requirement specified in a 1976 law cannot cover agreements made before 1976. At least a benefit of doubt or an understanding of general practice has to enter into it. I think that was part of the Wolfman case, wasn't it?   

I'm only an amateur on these matters, and I'll gladly take some guidance from any copyright lawyers in the crowd. But it's not absolutely clear that Jack Kirby would have been considered an employee of Marvel in the 1960s versus a contractor.

More to the point, you said Kirby's work was "under the direct guidance and supervision of Stan Lee." You need to remember that Stan Lee didn't script all the work of 1960s Marvel, although he dialogued it afterwards. The work product was created via the "Marvel Method", starting with a plot (written or verbal) which got pitched to the artist. After a period of time, both Jack Kirby and Steve Ditko were producing work for Marvel that Lee had no original input it: Lee didn't pitch a plot and the pages were showing up in the Marvel Bullpen with notations in the margins to instruct Lee as to what was going on.

That's the thin end of the wedge in the work-made-for-hire argument.

Moreover, the 1976 Copyright Law (and subsequent laws like the Sonny Bono Act) extended greater rights for those who had created existing works, which is why Marvel realized they were at risk with Jack Kirby and the perception of character ownership that could result from the return of the artwork. (I'm not saying that meant Kirby was in the right and that he had a winning court case. This is a risk management issue, and the lax methods of operation at the time put Marvel at risk of losing in court.)

The Marv Wolfman case was an interesting matter, but I think that one is less about copyright protection and more about a bankruptcy court protecting the investment of the creditors. Completely different venue and focus.

Edited by Matthew McCallum on 21 September 2009 at 12:29am

"You need to remember that Stan Lee didn't script all the work of 1960s Marvel, although he dialogued it afterwards. "

You need to brush up on your comics terminology, because in a comics context "scripting" means "dialoguing it afterwards".

And if you look at the Twenty-factor test for determining independent contractor vs employee  ( http://legal-dictionary.thefreedictionary.com/Independent+Co ntractor ) you'll see that the working relationship of both Kirby and Ditko are overwhelmingly in the realm of employee.  Something which I'm sure Marvel/Disney's lawyers will argue (and Disney have the best copyright lawyers in the known universe).

Let me go through the ones that are clearly employee related:
2 - employees receive in-house training. In fact, while Kirby himself might not have been "trained" at Marvel, lots of other artists describe situations where Lee used Kirby as a resource to train new artists, a task later performed by John Buscema and John Romita on occasion (among others).

3 - the work is integrated into the business, without Kirby's work, the books wopuld not get published.

4 - the services must be rendered personally, clearly they were paying Kirby for Kirby artwork, not for work created by him and assistants in his dircet employ.

5 - If an employer hires, supervises, and pays assistants for a worker - i.e. the hiring of letterers, inkers, colourists and on occasion scripters was all done by Marvel.

6 - A continuing relationship between a worker and an employer. Kirby worked there regularly and exclusively for about 10 years.

7- If a worker is working substantially full-time for an employer. Kirby worked full time and then some. And working for other big companies at the same time was generally viewed as a no-no.

10 - A worker who is required to submit regular oral or written reports to an employer is likely an employee.  Which would cover plotting sessions and discussions about the contents of following issues, either with Lee or someone in a similar capacity.

15 - A worker who can realize a profit or loss resulting from his or her services is generally an independent contractor.  Kirby had no direct stake in the sales. He had no royalties for good sales and he was paid a page rate even if a book sold poorly,

16 - A worker who performs for more than one firm at a time is generally an independent contractor.  As mentioned before, very few artists at the time worked for more than one publisher, at least not both DC and Marvel. Kirby certainly did not.

17 - If a worker makes his or her services available to the general public on a regular and consistent basis, that worker is generally an independent contractor.  As mentioned before, Kirby was exclusively working for Marvel.

18 -  An employer's right to discharge a worker tends to show that the worker is an employee. An employee must obey an employer's instructions in order to stay employed; an independent contractor can be fired only if the work result fails to meet the agreed-upon specifications.  While Kirby was never in a situation where he was fired like that from Marvel, the situation was such that people could be fired like that, and as I recall, some were.  

19 - If a worker has the right to terminate his or her relationship with an employer at any time without incurring liability, such as breach of contract, that worker is likely an employee. That seems to be the case with most at Marvel. They could leave at any time without any legal liability. A bad reputation, perhaps, but no legal liability.

Certainly there are factors that go the other way (7 or 8 of them), but those seem to be minor ones related to payment structures and workplace /equipment provisions. On the issues of control and supervision of work, Kirby seems to be very clearly an employee for the purposes of the work-for-hire law, no matter how much creative autonomy he enjoyed.

And if he's not determined to act as an independent contractors under the common law of agency, then no further contract is required.

As a big Kirby fan, I appreciate this topic being discussed.

I read much over the years regarding the legal issues and the court ruling. I will merely say that Kirby deserved more money and a percentage for his creations produced in other media such as movies, toys and merchandising; Kirby deserved more company recognition projected outwards to the public. Kirby's genius should have been rewarded with more than a work for hire compensation. Kirby always said he worked hard to provide for his family.

Kirby is the #1 reason I believed as a kid that it is possible for an artist to create cosmic, heroic, epic stories with just a pencil and paper. Kirby was magic to my eyes- and still is. And as much as I have great and utmost respect and appreciation to the other great pioneers of the Marvel Silver Age, to me there was only one true king- King Kirby.

It was a sad ending for comic book royalty. He died losing the legal battle, but justice at times can come back after years and appear with a posthumous ruling. The Superman legal case is one example. I hope Kirby's heirs do get something. Quite a few Marvel employees over the years earned more money at Marvel than Kirby ever earned in his lifetime. Marvel needs to give more money to the Kirby Estate. It's what Kirby would have wanted- to provide for his family and to give them some sort of inhertitance.

I'm not saying Kirby didn't deserve more than he got. As did a lot of other creators who helped build up the industry, and I'm sure they all wanted their heirs taken care of as well.

But I don't think the law supports the claim they're making now . Captain America and Superman were special cases.