With very little pomp and circumstance the most famous contentious relationship in the history of comics has finally been amicably settled between the estate of the late Jack Kirby and Marvel Entertainment. The announcement came just one business day before the case was scheduled to be considered for hearing by the Supreme Court of the United States.
Comic historians and fans of both Marvel and Kirby know that the relationship between the two has been tenuous as far back as the mid 1960′s. The feud reached a climax in the late 1980′s when many fans and comic professionals demanded that Marvel fairly compensate him for the wealth of material that he had created which, by all standards, established the foundation on which the company had been built and supported. Marvel never did.
This discussion continued after his death in 1994 though it mostly existed as a blistering boil on the ass of the comics industry establishing Kirby as the poster child of the Creators’ Rights movement replacing Superman creators, Jerry Siegel and Joe Shuster, as the most screwed creator in comics history.
The debate about what Jack Kirby and his heirs were owed, if anything, became heated in public forums, especially on the internet, exasperated by misinformation, blind opinion, and just plain ignorance of the real matters at hand. Trolls abounded and it often got ugly.
In 2009, in accordance with provisions established in the Copyright Act of 1976, the Kirby Estate filed for termination of Marvel’s copyright claim seeking a reversion of rights which led to a legal battle that was most accurately and meticulously described by Kurt Busiek on a CBR comment thread.
Busiek laid out the truth in no uncertain terms because, as he stated, “The amount of misinformation presented in this thread is staggering.” He does a great job of cutting through the he-said-she-said bullshit of the voices of public opinion and pares it down to the cold, hard facts.
Amazingly, it is apparent that too many people, including those in creative fields, do not know the basic elements of copyright law!
If Kirby v. Marvel accomplished anything it should be a better understanding of copyright law by those people that should understand it the most; creators.
Everything you need to know about copyright can be found right here, but it can be a long and agonizing read full of legal jargon.
The following is a simple list of ten important things that creators really need to know about copyright law as it concerns what happened to Jack Kirby.
1. Ideas are not protected! Copyright only protects the expression of an idea that is able to be reproduced in virtually any form.
Two people can have the same idea but their expression of the idea needs to be different. If they are the same, it is assumed that the latter infringed upon the first.
If you “borrow” an idea from someone and create your own expression of it , that is not infringement.
When Stan Lee would give Jack Kirby plot “ideas” verbally in a meeting, unless they were written in the form of a synopsis or script, they could not become copyrighted until Kirby drew the pages of the comic book.
2. The work is protected by copyright the second it is created regardless if you placed a “© 2014 John Hancock” on it or registered it at the Copyright Office.
Placing a copyright notice on your work stakes your claim to it and is a deterrent similar to faux security signs on your front lawn. The burden of proof, however, is on you and the best and most official way to protect yourself is to register your work.
As mentioned earlier, Kirby’s work was considered copyrighted the second he drew them. It is guaranteed that he never marked them with a © or registered them. The proof that he created them prior to their publication date is all that is necessary and was enough for the Kirby Estate to challenge Marvel.
3. You can sell your copyright after you have created a work.
This is what Kirby did every time he was paid for pages he handed in that were accepted by Marvel. He sold his copyright to the material.
4. You can terminate a grant of copyright after 35 years.
Thanks to the Copyright Act of 1976 creators have a right to terminate grants of copyright that they have sold a to a publisher or another entity. They can also renegotiate a deal, often in the form of a settlement, just like Prince did after he filed termination papers with his record label.
There is a slim 5-year window within which creators must file to request this termination. Companies are betting that most creators or their heirs will not know about or pay attention to this, allowing the rights to be permanently forfeited to the current holder, like a the money on an expired gift card.
5. None of this matters if you were an employee of the company and created the work on their time. The work will be considered Work-for-Hire and the company that employs you will be considered the author and copyright owner.
Stan Lee was an employee of Marvel. Technically he was management so he has no rights to the material he co-created on the clock or otherwise. His settlement in 2005 was strictly based on an agreement he had regarding his work on the sales of Marvel films, not royalties based on ownership of copyright.
6. If you are a subcontractor, (freelancer) all of this matters because you initially owned the copyright the second you created the work and you sold that copyright to the publisher. You have a right to request termination of grant after 35 years. If you sold the copyright prior to 1978 you can request termination after 56 years, which was what the Kirby estate did.
Kirby was a freelance subcontractor, regardless of how exclusive his agreement was with Marvel, verbally, written or otherwise, he was not an employee and this was the basis of all the litigation and what the Supreme Court was considering to determine.
7. The duration of a copyright lasts the life of the author and 70 years after the author’s death.
This means that if the terminations were granted anything Kirby created would be copyrighted until 2064 and be in the control of the Kirby Estate.
8. For works created Work for Hire the term ends 95 years after its first publication.
If the Supreme court would have decided that Kirby’s work was considered Work for Hire those works owned by Marvel would have begun lapsing into public domain as early as 2053.
For this reason alone it was in Marvel’s best interest to settle with the Kirby Estate because it just bought them, presumably, an extra 11 years of ownership before the works go into public domain.
9. Copyright and Trademark are not the same thing. While a copyright can expire, a trademark can last indefinitely so long as the owner continues to renew the trademark and aggressively defends it when it is infringed upon. Copyrighted material, though it can be terminated or lapse into public domain, it cannot be used in commerce in a way that infringes on an existing trademark that is owned by the previous copyright holder.
This means that even if the Kirby Estate were to have terminated the copyrights to the works of Jack Kirby, Marvel would have still owned the trademarks to the characters. It would have been very difficult for the works to be marketed without infringing on Marvel’s trademarks, limiting the profitability of the works.
10. All things considered an amicable settlement is usually the best case scenario.
All anybody ever wanted was to see Jack Kirby treated fairly for all the incredible work he did as possibly the greatest comic creator of all time. It is a shame that he did not live to enjoy the satisfaction of a deal that, by all expectations, appears would have made him happy. It was clear that throughout his career his main goal was simply to support his family who has, expressed satisfaction with their undisclosed deal.
The Jack Kirby experience is a lesson that must be learned by all creators so that it not be continually repeated. Know copyright law. Understand agreements. Make good deals. Defend your rights. Profit fairly from your work. These are all things that creators should be as focused on as much as they are focused on their talent and creations. They all go hand-in-hand to provide lifelong satisfaction from the hard work involved.
Gerry Giovinco
