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.
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