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Rick Whiting
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Joined: 22 April 2004
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| Posted: 02 October 2014 at 12:57am | IP Logged | 1
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Here's some commentary by Kurt Busiek where he discusses the case and dismisses some of the myths and distortions about it. He makes what strikes me as an excellent point... companies or individuals who purchased intellectual property prior to 1976 were given a tremendous gift by the 1976 and 1998 copyright revisions: 39 years of additional copyright, free of charge. The concept of termination of transfer was created to balance that out, by giving creators who sold their copyrights an opportunity to also benefit financially from the change in the law.
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Please correct me if I'm wrong, but in many of those cases and in the case of Kirby's co-creations/creations for Marvel, Kirby created those characters as an employee of Marvel. He did not create those characters while he was not working for Marvel and then later approach Marvel and offer to sell them the copyright.
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Jason Czeskleba
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| Posted: 02 October 2014 at 3:11am | IP Logged | 2
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Kirby was most definitely not an employee of Marvel. Whether or not the work he did was work-for-hire is open to debate, and would have been the singular issue for the Supreme Court to decide. If you read the Busiek piece, he summarizes the arguments for the work not being done for hire.
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Brian Miller
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| Posted: 02 October 2014 at 11:28am | IP Logged | 3
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Kirby was merely a freelancer that took jobs from Marvel. That's quite a bit different than being a staff employee working for Marvel, Rick.
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Rick Whiting
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| Posted: 02 October 2014 at 11:54am | IP Logged | 4
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Kirby was merely a freelancer that took jobs from Marvel. That's quite a bit different than being a staff employee working for Marvel, Rick.
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Again, correct me if I'm wrong, but a freelancer who takes jobs from an employer is still an employee. Should a person (or their heirs) who is hired to build a house on a vacant piece of property/land by said property's owner be entitled to ownership of that property after a significant amount of time passes?
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Brian J Nelson
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| Posted: 02 October 2014 at 12:41pm | IP Logged | 5
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Intellectual property and physical property are two different things. Your example might be a better analogy if asked if the person who built the house for a property owner should be able to keep his design of the house and reuse that design to build another house elsewhere.
Also, a freelancer is not an employee of a company.
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Brad Wilders
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| Posted: 02 October 2014 at 1:40pm | IP Logged | 6
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There are three categories of "employment" at play in the copyright context. An employee is someone who is actually employed by the company and typically paid by the hour or salary, regardless of the amount completed. A freelancer is an independent contractor, receives assignments and is paid for those assignments when they are completed and if they are accepted.* Anything you create as an employee (within the scope of your employment) is automatically owned by the employer. For legal purposes, you are not considered the "author". The employer is considered the original author (and original owner) of any copyright. In contrast, a freelancer is typically considered the "author" of anything he creates and, thereby, the original owner. In the freelance situation, the employer becomes the secondary owner when the freelancer delivers and sells the work to the employer, transferring ownership in the copyright. The third status, "work for hire," is a hybrid of the two. It is a freelancer who works on assignment, not an employee, but who is treated as an employee for purposes of authorship. Today, under the modern copyright act, this status only applies to a freelancer who agrees in writing that he is performing "work for hire." As Busiek correctly explains, the dispute before the Supreme Court in the Kirby case revolves around when this hybrid was born. The Kirby family argued that there was no hybrid "work for hire" in the 1960s. That you were either an "employee" or a "freelancer". There is little doubt Kirby was a freelancer. Their case was compelling because the pre1978 copyright act said nothing about this hybrid status. And, the reason for the distinction only mattered after the 1978 act was passed, when Congress granted authors the right to terminate transfer. Before that, it was really irrelevant for copyright purposes whether you were an "employee" or whether you were a freelancer who sold all your rights to the company. *These are very generalized descriptions; there is actually a multi-factor test that courts apply to distinguish between employee and freelancer.
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Andrew W. Farago
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Joined: 19 July 2005
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| Posted: 02 October 2014 at 2:57pm | IP Logged | 7
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Again, correct me if I'm wrong, but a freelancer who takes jobs from an employer is still an employee. Should a person (or their heirs) who is hired to build a house on a vacant piece of property/land by said property's owner be entitled to ownership of that property after a significant amount of time passes?
These housing analogies only muddle up the debate. Can't we keep the focus on the actual terminology and the actual intellectual property/creator's rights/work for hire/freelance case at hand? I think we're about three posts away from arguing whether or not the Hamburglar would be entitled to profits from Happy Meals, and if that means that Sid & Marty Krofft's heirs should be allowed to own houses that they didn't build themselves. It's all gibberish after a while.
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Jason Czeskleba
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| Posted: 02 October 2014 at 4:30pm | IP Logged | 8
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Yeah, it's really impossible to make a valid analogy between intellectual property and physical property, because there's nothing in the realm of physical property that's analogous to public domain.
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Eric Jansen
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| Posted: 03 October 2014 at 2:28am | IP Logged | 9
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That Kurt Busiek explanation was very helpful and clearly lays everything out. And I like and respect Busiek very much, but I have to disagree with him on one point.
He says that his POWERMAN/IRON FIST script was not work for hire but rather he and Marvel only "pretended" that it was. Let's take that claim as an example and dissect it.
1. I don't know the percentage of Marvel comics that are done full script and those done "Marvel style," but I would think that EVERYTHING done Marvel style falls under the work for hire banner! With Marvel style, the writer gives the editor a plot that the editor either rejects or accepts. If the editor accepts this "skeleton" of a story, he then hires the writer to write the story--normally scripting the art pages done from that plot, but I assume that the editor also might usually have the writer finetune the plot before it gets to the artist. Unless the writer gets paid twice (once for the plot and then again for the script), I'm thinking that the writing job isn't really done until after it's become work for hire. (Comics where the writer couldn't finish the script are a different matter and I would imagine that then the pay for the story was then figured out.)
2. Was Busiek's script for that issue of POWERMAN/IRON FIST requested by the editor or was it done completely on spec and Busiek presented it to the editor out of the blue? In other words, was it an assignment or not?
3. Busiek was writing a story based on Marvel's trademarked characters. It's not like he could take the exact same script to another company and sell it to them with no changes. In that process, he's basically asking to be hired work for hire for that comic.
I think the argument changes depending on the following:
1. Perhaps over at DC (or anywhere else that buys finished, full scripts from writers), the writer is selling work to the publisher and, therefore, transfers ownership at that time. (But I have to think that even in these cases, the writer has enough input from the editor--who represents the company--to change the story creation to work for hire.)
2. Was Jack Kirby PAID for the Fantastic Four plots he drew? Were these plots AT ALL done in conjunction with Stan Lee? (Stan: "Hey, let's bring back the Frightful Four! The two teams fight, Medusa betrays the bad guys, and the FF wins!" Jack: "Great! I'll flesh it out!")
3. If Busiek brought in a mini-series idea to Marvel with brand new characters and they turned it down, of course he could take that anywhere. If he brings in a story idea written specifically for, say, Captain America to be inserted into the ongoing Captain America storyline that five other people are writing sections of, can he really come back decades from now and excise his portion from the rest?
I think it really comes down to one big (two-part) question: Did Jack Kirby THINK he was NOT doing work for hire work at the time, and did Marvel THINK they were buying anything that was not becoming a permanent part of their company-wide ongoing universe?
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Eric Jansen
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| Posted: 03 October 2014 at 2:29am | IP Logged | 10
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And this is all from a fan on the outside looking in trying to make sense of it all, NOT a know-it-all saying "this is the way it was!"
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Jason Czeskleba
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| Posted: 03 October 2014 at 3:15am | IP Logged | 11
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Busiek initially submitted an unsolicited plot to Denny O'Neil, and was asked to flesh it out into a full script on spec. Which he did.
The concept of work for hire was not yet legally defined when Kirby was doing the work in question. He knew the work he was creating became the property of Marvel once he turned it in and was paid for it, but he probably didn't think about it beyond that. Nor did Marvel.
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Greg Woronchak
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| Posted: 03 October 2014 at 8:10am | IP Logged | 12
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Exactly. It's easy to portray companies as monsters out to screw everyone (although I'd admit it does happen) but to me, it boils down to a publisher having paid for a service with short-term gain as the goal (selling a monthly comic).
The windfall from a successful concept is a rare winning gamble on the publishers part, IMO.
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