In a move the reeks of opportunism and greed, Jack Kirby’s Estate (a.k.a. his family) have hired Intellectual Property Lawyer Marc Toberoff to sue Disney/Marvel, Sony, Universal, 20th Century Fox and Paramount Pictures in an attempt to reclaim copyright ownership of the characters their late father Jacob Kurtzberg created. You may know his name better as Jack Kirby and you are most familiar with his iconic and highly popular comic book creations, The Fantastic Four, Captain America, the X-Men, Iron Man, Thor, The Hulk and The Silver Surfer.
Thanks to the guys over /Film for sharing this with us and to Rich Johnston at Bleeding Cool and Nikki Finke at Deadline Hollywod who seem to have gotten the drop on this breaking news. This is not the first lawsuit we’ve seen involving a comic book creator’s estate vs. the current owner and publisher; Just recently we reported and discussed WB/DC’s fight with the heirs of Jerry Siegel and Jerry Schuster over the rights to Superman.
The Siegel/Shuster heirs have been successful in their legal pursuit to some degree; they now have full access to Superman’s origins with many thanks going to their superstar lawyer (you guessed it) Marc Toberoff. What they are going to do with the just the origins of Superman remains a mystery to me, because after the countless retellings of Superman’s beginnings, I’m pretty sure we weren’t going to see that story again anytime soon.
Back to Jack Kirby: His Estate is currently suing and sending termination of copyrights notifications to each of the big studios that have involvement with any of characters Kirby created. The rest of this article is background information on Jack Kirby and my own observations and opinions. I am not a copyright lawyer, nor do I claim to have extensive background knowledge on U.S. Copyright Laws; so if you see something I misinterpreted, please enlighten me.
This isn’t the first time Kirby and Marvel haven’t seen eye to eye on things. In a very detailed account over at The Comic Journal, Marvel was in a major dispute with Kirby during much of the 80s, regarding his work from the 60s and 70s. At the end of the day (and after Will Eisner got involved), Marvel reluctantly agreed to give Kirby back 1900 pages of his work. That seems like a lot, but it’s actually less than 25% of what Kirby had done.
Kirby was the first illustrator hired when Jerry Iger and Will Eisner formed Eisner & Iger Studios in the 1930s. Until 1978, when the copyright laws were changed, most if not all of the comic creators hired artists under a “work-for-hire arrangement”. In other words: artists didn’t own the rights to whatever they were paid to draw. The same thing is still done today in other business models – electronics and programming are two of the biggest examples.
When a programmer working for Microsoft writes a new program and it turns into the major code behind a new piece of Microsoft software, that programmer doesn’t own the rights to his code. He was paid by Microsoft to write it and has already been fairly compensated for his time and effort. He doesn’t have the right to sue once that program starts making millions of dollars, just because he is jealous.
I don’t claim to know the copyright laws inside and out, but to me it would seem pretty simple: If Jack Kirby was hired under those aforementioned circumstances, then any characters he created should not be his to own. Sure, he will always get “creative credit” for coming up with them in the first place, but it’s not like he thought them up in his garage and then Marvel came along and stole them in the night. From what I understand, Kirby was paid fairly to create those Marvel characters and without the company publishing his work, he would not have gotten them off the ground. Of course the reverse could be (and likely will be) argued – that Kirby created the most iconic characters in Marvel’s repertoire and without him they would have died a slow comic death.
Another thing that is bothering me is: Why now? The last time Kirby had any legal action pending against Marvel was 1987 and that was more or less settled to some degree. Since that time, Marvel moved to the top of the comic book ladder and has put out more than a dozen movies grossing more than $1 billion dollars worldwide. Yet, we didn’t hear anything from the Jack Kirby Estate in that time – could it be the combination of the Superman/DC/Seigel/Schuster rulings, and the fact that “deep pockets” Disney now owns Marvel that has brought out the legal buzzards?
I can’t help but think that Kirby’s Estate is using the greed bat to whack money out of the belly of the Disney piñata; I have to say, the move on hiring Toberoff screams “ambulance chasing lawyer” to me. For all we know, Disney/Marvel has much better lawyers than WB/DC and this whole issue will resolve itself over the next few years – but what does it all mean for the upcoming movies based on Kirby’s characters? We already have a Fantastic Four reboot announced, Thor has been cast, X-Men 4 is now on the table, Screen Rant‘s Kofi Outlaw just wrote a great article on Who Should Play Captain America and Iron Man 2 releases next year with an almost guaranteed third installment to follow.
So what happens to those projects if Jack Kirby’s Estate wins the suit and regains copyright control of those properties?
It’s a very speculative answer, but I wonder if Disney would just say “Screw you” to Kirby’s heirs, give back all the properties Kirby created, stop publishing any of those characters via Marvel Comics and put a halt to all productions involving Jack Kirby’s characters. Disney would still have 4000+ characters to choose from and then Kirby’s heirs would be left with no way to make money on the future use of their newly regained copyrights. Sure they would make royalties off past uses, and that could net them at least $10 million or more, but where would they go from there?
It’s going to be an interesting bumpy ride for all parties involved – Kirby’s Estate, Disney/Marvel and the fans. It took ten years for the a ruling to come down on the Superman debacle, so I would expect at least that much time before we hear something definitive regarding Marvel and Kirby.
What do you think about Jack Kirby’s Estate suing Disney/Marvel to regain rights to Kirby characters after all this time?
More news as it develops.