The difficulties Kirby's heirs face

Yesterday's announcement that Jack Kirby's heirs are trying to claim the copyrights to characters created by Kirby for Marvel probably caught many by surprise, including me. It's true that when news of Disney buying Marvel broke out, many fans speculated that the Kirby family might try to do something like this, following the footsteps of Jerry Siegel's heirs. But my thought at the time (and now) was that actually regaining to copyrights to the Fantastic Four, the X-Men, Hulk, Sgt. Fury and other characters would be extremely difficult for the Kirby family to do.

Like most of the people commenting about this and the Superman rights case, I'm not an expert on copyright law. I've followed the development of the Siegel case closely though, trying to understand the reasoning behind each decision, and based on that I think the Kirbys have some significant hurdles to cross.

Many online commenters have correctly pointed out that Kirby didn't sign work for hire contracts while he worked for Marvel, and that the current definition of "work made for hire" applies from 1978 onwards (when the new law took effect). In fact, Kirby refused to sign the work made for hire contract that Marvel started using that year. As noted in The Comics Journal #44, February '79 ("Ploog & Kirby Quit Marvel Over Contract Dispute", page 11):

Former Marvel star artist Jack Kirby also objected to Marvel's contract and Marvel has indicated that he won't be allowed to work for the company unless he signs it. Kirby had apparently been scheduled to resume drawing for Marvel at the end of the animation season. He had been working for Filmation Associates on their Fantastic Four Saturday morning cartoon series for the NBC television network.

Kirby enjoyed working in animation again [...] and remarked, "I sort of adapted to it and I like it very much." He did not want to discuss the specific details of his complaints with the contract, saying only, "I don't want to get tied to a commitment."

Marvel still hopes Kirby will consider signing the contract and returning to work, however. [Editor-in-chief Jim] Shooter says Marvel's talks with Kirby were on friendly terms and Kirby himself called them "very amicable." Nonetheless, Kirby remained unwilling to sign. "I want to try my talents in other directions," he told The Comics Journal. "Maybe this is the right time of life to try other things."

And so he did, doing more animation-related work, trying his hand at screenplays, and doing creator-owned comics like Destroyer Duck, Captain Victory, and Silver Star. (He also returned to The New Gods, but that's because DC offered him a very good deal to do so, which included royalties. The reason appearances of those characters to this day have a "Created by Jack Kirby" credit is due to that deal.)

Still, as seen in the opinion issued by Judge Stephen Larson on August 12 of this year regarding the Superman copyright, the lack of a written agreement between Kirby and Marvel may not be enough. As commented in this blog's previous entry, the Siegels were able to claim the copyrights to some important elements of the Superman franchise, but the Judge's opinion is worth reading in full for knowing which elements and stories they were not able to regain.

Beginning in page 40 of the document, the Judge deals with the Superman work produced by Siegel and Shuter after March 1, 1938 and before the employment agreement they signed in September of that year. Despite the lack of a contract, the Judge decides that the material produced during that time is work for hire, and therefore belongs to DC.

The Judge writes (pages 43-44):

In essence, the September, 1938 employment agreement formalized what had informally been ongoing beforehand. That Detective Comics' requests were made on an informal basis before the written agreements were executed does not detract from the fundamental fact that Siegel and Shuster's creation of the derivative Superman material was done at the request and instance of Detective Comics. That Detective Comics waited six months before more formally "employing" the pair to "continue" to do just that does not detract from the core point that such production by Siegel and Shuster was again done at the instance of Detective Comics; it simply shows that by that point Superman had so proven itself a commercial success that the publisher desired a more formalized arrangement to be placed down in writing to ensure that the pair would continue to produce such material for it (rather than going on to create other comic book characters for other publishers).

When these facts are considered in toto, it is easy to conclude that creation of the works in question lie further along the spectrum from that found in a more traditional employment relationship, as is the case for the comic books created by in-house employees of the publisher. The lack of any long-term guarantee or commitment by the publisher to the business enterprise itself, however, is not something which is atypical in an independent contractor situation. That the pair functioned in such a looser employment relationship with the hiring party is not critical. What is important is the existence of an engagement to create the works, and the level of control and direction the commissioning party thereafter had over creation of the works in question. And in that regard, the fact that Siegel and Shuster were commissioned by the publisher to create specific material to which the publisher had the statutory right to exert control over its creation, and for which they were paid upon the material's publication, is dispositive as to the instance prong.

In short, Detective Comics, as the copyright holder of the pre-existing work, approached the artists and asked that they create works derived from that preexisting material on a regular basis, and then paid the artists for that derivative work. As such, the material would fall within the category as a work made for hire. [emphasis mine]

It's easy to see the parallels with Kirby's situation at Marvel. He was a freelancer, but he was working under the editorial direction of Stan Lee, and he was "commisioned by the publisher to create specific material" on a regular basis for Marvel's monthly books.

Basically, until now the Siegels have been only able to regain the rights to material that Jerry Siegel developed before selling it to DC. Is the Kirby family in a position to come up with evidence that shows that Jack Kirby had written scripts or drawn stories featuring the Fantastic Four or the X-Men before he sold them to Marvel? This is doubtful, and this is the main reason why I can't see them being able to succesfully claim the copyrights to these characters.

Despite all of the above, Tom Spurgeon makes an important point: "The fact that aggressive litigator Toberoff & Associates is the attorney of record makes this a bigger deal because of their past successes" (including the recent Siegel victories). I would very much like to see the Kirby family regain these copyrights, or at least some fair compensation for the use of the characters. I believe they're in a difficult position for the reasons stated above, but at least they have chosen a powerful ally, and this may end up making an important difference.