Jim Shooter on Kirby's artwork

Over at his blog, Jim Shooter has posted his version of the story about Jack Kirby's struggles against Marvel in order to get his artwork back. This is a controversial issue even today since in the end Kirby didn't get back all of his artwork (many of his pages were stolen or lost).

The Kirby family tried recently to sue Marvel and claim damages for the lost artwork, but that particular claim was dismissed. However, their attempt to terminate Marvel's copyrights on Kirby-created work still proceeds. For more about this, check Daniel Best's blog.

Shooter's post is an updated version of something he posted back in December 1998, in the http://www.comicbookresources.com/ message boards, a copy of which I saved back then. Here's his original post (which I haven't altered in any way):

Before the mid-70's, 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 in a position to have a voice in the management), both Marvel and DC had instituted artwork 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.

Kirby worked for Marvel during that period and had artwork 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 to convince Marvel's brass to return the old artwork. There were many reasons cited bythe 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 the same time, and he'd left. As soon as he'd left, he sued Marvel for ownership of the characters he'd had a hand in creating. The return of the artwork was one aspect of that case.

Because he was suing Marvel, the lawyers felt that the artwork couldn't be returned -- it's complicated, but doing so could have tended 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 the Buscemas and Joe Sinnott.

The legal sparring went on for a long time. Though it was a complex case about who owned the characters, the way it was pitched to the public bytheirside was that Marvel, and in particular, JIM SHOOTER wouldn't give Kirby his artwork back. Unwilling to badmouth a founding father, I said nothing.

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 Kirby's.

The Kirby case ended when, in discovery, Marvel produced a number of documents, including several signed with Marvel parent Cadence Industries' predecessor proving that Kirby had specifically agreed several times, in exchange for compensation (beyond the original payment for the work) that Marvel owned the work -- art, characters, everything. One document specifically listed every story Kirby had ever done -- part of the proof Martin Goodman had been required to provide to show that he'd owned what he wasselling when he sold Marvel to Cadence, I believe. Kirby's lawyers, who were apparently unaware of the existence of these documents, immediately apologized (!) and dropped the suit.

Marvel's lawyers would have shown the documents 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'd co-created with Stan, and that Stan must be given no credit whatsoever. Kirby also insisted that he'd created Spider-Man.

I talked to Jack and convinced him that Stan should be allowed some credit, and that Stan and Ditko created the Spider-Man that was actually used (Kirby had done a sketch of a version that was rejected).

And finally, Kirby got his artwork back.

During these years, my relationship with the corporate bosses had gone downhill. They were trying to sell Marvel, and I found some of their dealings injurious to the creators and damaging to the company's future. I fought every step of the way.

Because the board was increasingly at war with me, they were only too happy to let the blame for the Kirby mess stick to me, and they did everything else they could to damage me. Why? Because at the point this all began, they felt that if I left a lot of creative people would leave with me. They did a good job of undercutting me, though, and by the time I left, everything but the Challenger disaster was my fault. People threw parties.

I'm no good at political infighting. My battles with top management took place behind closed doors, and while I'm cashing somebody's paychecks, I don't feel that I should be bad mouthing them in public. By the time I wasn't on the payroll anymore, no one wanted to hear my side.

Whatever.

Jim Shooter

It's interesting to compare Shooter's account(s) to The Comics Journal's version. The latter is interesting since it makes no mention of Kirby suing Marvel. It also mentions some interesting details that Shooter omits, such as that in 1984 Marvel was only able to account for 88 (!) pages of Kirby artwork, out of a total of more than 8000 pages that he produced. Kirby was being asked to sign a four-page document in order to get his 88 pages back, with no guarantee of getting more pages, and under conditions that were much more restrictive than the ones that other Marvel artists were being asked to submit.

Shooter doesn't mention the following either (quoted from the Journal's article):

Kirby received the form in August of 1984 and, over the months that followed, he attempted to negotiate some form of compromise with Marvel Editor in Chief Jim Shooter, asking that a more thorough list be compiled of the original Kirby art in Marvel's possession and offering to send a representative to assist the company in cataloging the materials. Shooter refused all such requests, explaining in a Jan. 25 letter to Kirby that it would be "unfair" to single Kirby's art out for special treatment -- though he apparently saw nothing unfair in devising a release form that targeted Kirby exclusively. Marvel's position remained firm that the artist must sign the four-page document in its entirety or he would receive no art back.

One thing I find strange about Shooter's version of events is his statement that Kirby's lawyers "dropped the suit" once Marvel showed them that they had documents in which Kirby had signed away his rights. This doesn't take into account that the existence of these documents was more or less well-known at the time.

Transcripts from a panel from the 1986 U.K. Comic Art Convention as published in The Comics Journal #114 show Gary Groth asking the very reasonable question: if Kirby had effectively signed away his rights (something mentioned in public by Marvel staffers such as Tom DeFalco), why were Marvel asking him to sign them away one more time (as a condition for getting his artwork back)? Shooter doesn't answer this, and in his version Kirby's lawyers were so surprised by the existence of these documents that they even apologized to Marvel.

The Journal article also mentions that Kirby's lawyers had made claims of copyright ownership, but there are no mentions of a lawsuit against Marvel. Back when Shooter posted his original version of the article, I decided to ask him about this discrepancy:

I've read other accounts of the Marvel/Kirby dispute, and they've clearly stated that Kirby never sued Marvel. He wasn't asking for ownership of the characters, he only wanted the art back.

According to you, when did Kirby sue Marvel? Are there any other sources we could check in order to confirm that Kirby sued Marvel?

Thanks,

Rodrigo Baeza

Shooter's reply was as follows (parts of this reply were incorporated in his 2011 post):

Dear Rodrigo,

Kirby wanted ownership of the characters. 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.

It is my understanding that Kirby's lawyers actually filed suit against Marvel, which is what triggered the release of documents to Kirby's lawyers, which is what prompted them to capitulate.

My recollection is supported by a copy of a letter in my possession, dated Aug. 5, 1986, from Kirby's lawyer, Mr. Paul S. Levine, Esq.,of Stephen F. Rohde, P.C., to Marvel's lawyer, Mr. Stuart J. Sinder, Esq., of Kenyon and Kenyon. This letter refers to the matter as "Kirby v. Marvel Comics."

I also have copies of several letters from Sinder to Levine written around the same time referring to the matter in similar fashion. Earlier correspondence was written under the heading: "RE: Kirby."

Whether the suit was filed, not filed, or filed and withdrawn due to the eleventh hour revelations by Marvel is minutia. As I said, I was given to understand that a suit was filed. That technicality notwithstanding, this much is well known and well documented: starting, as most 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.

As editor in chief, I was certainly kept apprised of significant developments, but I wasn't privy to every detail of the process. I was occasionally called upon to provide information, such as the inventory of Kirby art in Marvel's possession. This should have fallen to the office management department, which ran the warehouse, but my people could recognize Kirby work and theirs couldn't.

About a dozen times, I requested an audience with the upper management and/or lawyers to argue in favor of generousity 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. Louise Simonson might remember this. I seem to recall discussing it with her.

The fact is, though, I fought for the interests of Kirby (and Ditko, and Heck,and Cockrum, and Ayers, and Sinnott, and every other creator) to the best of my ability. As an employee, I didn't have the option of publicly bad-mouthing Marvel management decisions.

Kirby himself seemed to know that I wasn't the enemy. He was always friendly to me, always happy to see me, and always a gentleman.

After Kirby agreed to the final phase of the settlement, which I represented to him at the San Diego Con in 1986, I asked Jack and Roz to come to the Marvel 25th Anniversary Party as a personal favor to me. Roz was reluctant,but, indeed, that evening they showed up. Stan and I spent a good while chatting with them.

A huge picture of Cap, drawn and inscribed by Jack: "To Jim -- a good friend," is one of my most cherished possessions.

Anyway...

The bottom line is that the Kirby action against Marvel was real and significant whether or not the complaint was filed. I have represented it accurately. It did no one any good, certainly not me. To this day, people use my supposed roleas mastermind of the evil scheme to deny Kirby his artwork as the basis for attacking me. Ask Joe Sinnott how hard I worked to get artwork returned to the older artists. People who have been conditioned to assume the worst possible motive for anything I did or do never seem to question the motives of my detractors.

Jim Shooter

In this reply Shooter backtracks a little, and tries to lessen the importance of his earlier statement (whether the suit was filed or not is, in his words, "minutia"). The above exchange was discussed at the time on the now-defunct Kirby-l mailing list. Mark Evanier posted the following on December 29, 1998, in which he disagreed with Shooter's version but in which he agreed with him that it was inaccurate to portray Shooter as the sole villain:

Regarding Shooter's version of the events...

I really don't have the patience to get into a point-by-point refutation of the whole situation at this time. But Jack Kirby never sued Marvel. Shooter says he did, then he backs off that claim and says, in effect, "Well, maybe the suit was never filed, but that's not important." Obviously, there is a big difference there. Yes, Jack's lawyer occasionally threatened to sue Marvel, usually in response to a similiar threat from Marvel to sue Kirby. But it would be inaccurate to say that Marvel was actually suing Jack, just as it is inaccurate to say that Jack was actually suing Marvel.

I have copies of all (I think) the correspondence between the two sides, as well as Kirby's lawyer's notes on the matter. If you look at it in its totality, and in sequence, it lays out a very different picture than Shooter paints.

I will say that I think it's a bum rap to give Jim Shooter the blame for Kirby's art not being returned. As far as I can see, he had very little to do with that situation and probably did, at some point, try very hard to get Jack's art sent back to him, if only to abate a colossal embarrassment to the company. But his version of who did what and why does not correspond to my understanding.

In early 1999, after a software glitch at http://www.comicbookresources.com/ deleted the original postings (luckily, I'd saved copies of them), Shooter decided to post an updated version. I won't quote it in its entirety, but I was amused at the time by the fact that he'd changed some of his wording (saying for example "Because he was threatening to sue Marvel" instead of saying "because he was suing Marvel"). He also added the following note at the end:

That's the truth, the whole truth, or at least an accurate capsule description thereof, and nothing but the truth.

In a case of history repeating itself, Shooter's claims have been questioned again, and a follow-up article has been posted. In it Shooter doesn't go into much detail about the lawsuit (or lack thereof), preferring to concentrate on the way he has (in his opinion) been unfairly treated all this time. I'm glad to see he's once again posting his version of events and willing to engage in a dialogue with readers, but I still believe his version of events isn't "the whole truth", for the reasons explained above.

Coober Skeber

The story behind Coober Skeber 2: Marvel Benefit Issue has been recently covered at the Comics Comics blog. I probably became aware of this anthology of short stories featuring Marvel characters as done by alt comix creators over at the late comix@ mailing list. I was able to buy a copy around 1998 at Montreal's Librairie Astro for 5 Canadian dollars, I believe. (I was in Montreal for a business trip, but I managed to make time for visiting the local comic stores, including the now-defunct La Mouette, one of the classiest comics stores I've visited.)

Coober Skeber paved the way for DC's two Bizarro Comics anthologies and, of course, the more recent Strange Tales series that have been published by Marvel. But despite these recent attempts at doing something similar, there is still something unique about this small artifact, printed in black-and-white, and featuring artwork done by young creators riffing on characters such as Deathlok, Spider-Woman, and Devil Dinosaur. I remember bringing back home several comics thanks to that Montreal trip (Chaland books, issues of L'Association's Lapin, Steve Canyon reprints, and other stuff), but Coober Skeber was certainly one of the most memorable.

The original comic may be difficult to find these days, but it has (recently?) been scanned and made available among all the scans of new comics that appear each week. The download link is here, so if you haven't seen the book before now there's a chance to enjoy it in its entirety.

Gary Friedrich loses Ghost Rider lawsuit

Back in 2007, Gary Friedrich sued Marvel and other companies for copyright infringement regarding the use of the Marvel character, Ghost Rider, in different media. Basically, he claimed that the copyright to the character and his first appearances had reverted to him in the year 2001. A check through recent filings reveals that Friedrich (or more accurately, "Gary Friedrich Enterprises, LLC", a Friedrich-created company to which he transferred his copyrights) has lost his lawsuit, since Marvel and the other defendants' motion to dismiss has been granted.

A year ago, Judge James C. Francis recommended the dismissal of Friedrich's claims (the link requires free registration), indicating that the 1976 Copyright Act (which specifies stricter terms regarding work-for-hire creations) should apply to this case, rather than the 1909 Copyright Act as Friedrich's lawyers had claimed (which would have presumably allowed Friedrich to renew the copyright 28 years after the character's original appearance in 1972).

A more recent filing by Judge Barbara S. Jones from last month confirms Judge Francis's "R&R" (Report and Recommendation), dismissing Friedrich's objections to it:

"For the following reasons, the Court adopts the R&R, overrules Plaintiffs' Objections, and GRANTS Defendants' Motion to Dismiss."

An examination of the actual legal reasoning behind this decision is frankly beyond my ability. Unlike the documents related to the Siegel family's claims to the Superman copyrights, these documents don't reveal any details about how specific comic-book industries conducted their business or interacted with creators. Marvel and the film, toy, and gaming companies involved in the lawsuit were able to dismiss the suit without there being any need for the judges to go into this detail.

All of the above is very disappointing for those of us who would like to see creators like Friedrich get a fairer share of the profits generated by their creations. There are rumors indicating that Friedrich may have settled out of court; I hope that's the case but I'm not very optimistic.

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.