Marvel Sues to Keep Spider-Man, X-Men Copyrights

Marvel Comics is suing the estate of its second most famous figure in order to keep the rights to its most lucrative properties.

Jack Kirby Spider-manMarvel Comics is suing the estate of its second most famous figure in order to keep the rights to its most lucrative properties.

The home of superheroes including Spider-Man, the Fantastic Four and the X-Men sued one of its most successful artists Friday to retain the rights to the lucrative characters. The federal lawsuit filed Friday in Manhattan by Marvel Worldwide Inc. asks a judge to invalidate 45 notices sent by the heirs of artist Jack Kirby to try to terminate Marvel’s copyrights, effective on dates ranging from 2014 through 2019.

The heirs notified several companies last year that the rights to the characters would revert from Marvel to Kirby’s estate.

The lawsuit said Kirby’s work on the comics published between 1958 and 1963 were “for hire” and render the heirs’ claims invalid. The famed artist died in 1994.

The lawsuit was dismissed by Kirby’s attorney Marc Toberoff, who issued a statement saying the heirs were merely trying to take advantage of change to copyright law that allows artists to recapture rights to their work. “It is a standard claim predictably made by comic book companies to deprive artists, writers, and other talent of all rights in their work,” the statement said of Marvel’s lawsuit. “The Kirby children intend to vigorously defend against Marvel’s claims in the hope of finally vindicating their father’s work.”

The statement claimed Kirby was never properly compensated for his contributions to Marvel’s universe of superheroes. “Sadly, Jack died without proper compensation, credit or recognition for his lasting creative contributions,” the statement said.

Comic book characters such as Spider-Man and the X-Men have become some of Hollywood’s most bankable properties in recent years. The lawsuit said the comic book titles in the notices to which Kirby claims to have contributed include “Amazing Adventures,” “Amazing Fantasy,” “Amazing Spider-Man,” “The Avengers,” the “Fantastic Four,” “Fantastic Four Annual,” “The Incredible Hulk,” “Journey into Mystery,” “Rawhide Kid,” “Sgt. Fury and His Howling Commandos,” “Strange Tales,” “Tales to Astonish,” “Tales of Suspense” and “The X-Men.”

John Turitzin, a Marvel lawyer, said in a statement that the heirs were trying “to rewrite the history of Kirby’s relationship with Marvel.” He added: “Everything about Kirby’s relationship with Marvel shows that his contributions were works made for hire and that all the copyright interests in them belong to Marvel.”

I can’t imagine the Kirby family wins this suit. There’s no question that Jack Kirby was a major force in the creation of the Marvel Universe.  Stan Lee, certainly, never disputed that. While Kirby is mostly thought of as an artist to Lee’s writer, he was a collaborator.

But the comic industry was, until the mid-1980s or so, one where creators were mere employees working for the firm.  That started to change with Todd McFarland and now, as I understand it, creators have substantial ownership rights.   (We’ve seen the same thing in television; the networks frequently don’t own their shows anymore.)   But Kirby was from a different era and his rights are tied to the contracts and norms of the day.

FILED UNDER: Comic Books, Economics and Business, Law and the Courts, Popular Culture, , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Trumwill says:

    There are a couple of ways of looking at this: the strictly legal and the ethical/moral. Or, what the law is and what the law should be.

    Since IANAL, I assume that the courts will straighten it all out. My inclination is to agree with you and say that the Kirbys are SOL. But I would have said the same thing about the Superman lawsuit and DC lost that one. So I’m guessing there’s something in copyright law that I do not know.

    In regards to what the law should be, I am inclined to believe that Kirby and his estate did not get what was coming to them, but at this point I don’t think that anybody should have the copyright. These characters were created nearly fifty years ago. You don’t need to protect copyrights 50 years to spur creativity and compensate artists and their employers. At some point it has a detrimental effect because (a) it limits the ability of other artists to create derivative works and (b) it leads to lazyness. Maybe if DC and Marvel weren’t sitting on their IP goldmines, they’d have created more worthwhile properties in the last few decades.




    0



    0
  2. wr says:

    You know an awful lot about an awful lot of things… but the economics of the TV biz is not one of them. Networks frequently don’t own their shows anymore? Exactly the opposite. Once upon a time, before Congress repealed the fin-syn laws, networks bought shows from studios and indeed did not own them. But now networks own probably 95% of the shows they air, and often when they are produced by an outside entity they will force themselves on as co-producer (and co-owner) as the price for the pickup.




    0



    0
  3. Eric J says:

    I think that the Kirby estate thinks they have a better shot at this given the outcome of the Superman lawsuit last year. I guess the difference is that Siegel and Shuster specifically sold the rights to Superman, indicating that they at one time owned the copyrights, while under a work made for hire contract, Kirby never held the rights.

    They’re not likely to get much support from other Marvel employees of the time. Stan Lee’s certainly signed contracts with subsequent owners of Marvel comics to relinquish any claims to ownership in exchange for the ubiquitous “Stan Lee Presents…” Ditko’s not going to sue because of his hyper-Objectivist code of honor. And I don’t think anyone else from the era is seen as significant a collaborator as those two. (I don’t see John Romita or Don Heck claiming ownership of any characters they initally drew.)




    0



    0
  4. The really sad thing here is that too-long copyright was sold with an emotional appeal about widows and orphans. It really was, as this illustrates, about long term corporate ownership of ideas.

    FWIW, I think that all copyright should be 50 years, but that “trademark characters” should be handled under TM law. Let an individual (or company after purchasing the TM) keep it as long as they want, if they are willing to pay a fairly stiff yearly registration.

    This solves the “Disney problem.” Mickey can be their mouse forever, without the side effect that 10 million out-of-print books also never go out of copyright. (The Google solution to out of print books is morally and legally suboptimal.)




    0



    0
  5. BTW Trumwill, I say “50” because I consider that moderate these days. We are on a glide path to permanent copyright, which is a very bad idea IMO.




    0



    0
  6. Herb says:

    If Jack Kirby himself was suing, I might not be so inclined to side with Marvel. But Jack Kirby is dead. I can understand why his family, who had no hand in the creation of the works in question, would want the goose that laid the golden egg, but hey, who wouldn’t?

    I hope Marvel wins out on this one. Copyright was intended to give incentives to create new works (which is what Marvel is doing with their comic book properties). It was not intended to make sure that the descendants of creators get paid for life.

    The really interesting thing, decades from now, is when the copyrights for these characters revert to the public domain. Will Marvel let them go then? Will the Kirby estate if they win this case?




    0



    0
  7. Could the Kirby estate argue that the original contract was unconscionable and therefore invalid?




    0



    0
  8. John Burgess says:

    Stormy Dragon: They might argue that, but it’s a losing argument. The contracts were typical for the period, thus not ‘unconscionable’.

    That doesn’t mean the family couldn’t win in a jury trial, of course…




    0



    0
  9. PD Shaw says:

    I guess the difference is that Siegel and Shuster specifically sold the rights to Superman, indicating that they at one time owned the copyrights, while under a work made for hire contract, Kirby never held the rights.

    I think that’s right. S&S created Superman and then pitched it to a publisher. Kirby was an employee, creating work for his employer.

    Stormy Dragon: Kirby at one time ran his own comic books company, in which his employees had similar “work for hire” arrangements.




    0



    0
  10. Trumwill says:

    John P,

    I would accept 50 years. I sort of took a more extreme/desired permission figuring that this is one of those cases where you make the case for a very short period and then bargain your way up (not that I’m at the bargaining table.

    Herb,

    I don’t agree with the idea that the current state of affairs is really incentivizing Marvel to create new works in a way that it wouldn’t if it were owned by the Kirby estate. If the Kirby estate had the rights, they wouldn’t be sitting on them. They’d be licensing them to Marvel, DC, film studios, and others.

    Arguably, it’s actually worse that Marvel owns them because they can just keep cashing in on the goose’s golden eggs without developing and investing in new properties. Neither DC nor Marvel has developed any properties of great significance in decades. The only comic book properties that have been created were by a company that had to start from scratch (Image).

    That’s why I think that it’s best to keep everyone on their toes by limiting the amount of time they can exclusively capitalize on yesterday’s ideas. If Batman and Superman and Spider-man were thrown into the Public Domain, everybody would get a chance to write their stories (or incorporate those characters into their own) and the big boys would have to work harder at coming up with new ones.




    0



    0
  11. 11B40 says:

    Greetings:

    Copyright law has gone where the rest of our democracy is shortly to follow. A good basic legal concept, that creative types should have the benefit of their own output, has been given the “a camel is a horse designed by a committee” treatment resulting the predictable “lawyers arguing over a corpse” scenario. Stand by for the Michael Jackson frolics.




    0



    0
  12. Herb says:

    “Arguably, it’s actually worse that Marvel owns them because they can just keep cashing in on the goose’s golden eggs without developing and investing in new properties.”

    When you say “new properties,” do you mean new characters?

    Because Marvel, in particular, has had tremendous success taking comic book characters off the page and putting them in movies, videogames, novels, toys, clothing, etc.

    Spiderman is not just a Jack Kirby drawing anymore. And this is thanks to the efforts of Marvel, the company, not Jack Kirby and especially not Jack Kirby’s estate.

    As for this:

    “If the Kirby estate had the rights, they wouldn’t be sitting on them. They’d be licensing them to Marvel, DC, film studios, and others.”

    Hmmmm…you’re right there, but I say let’s cut out the middle man. Why license your characters from the estates of dead artists when you can make the movie for free?




    0



    0
  13. Trumwill says:

    Yeah, by “properties” I mean characters. Right now, Marvel is simply milking 50-year old properties for all their worth. Ditto for DC.

    The case of Spiderman in particular is complicated by the fact that Marvel would still have partial-ownership of the character and they could prevent some other studio from making a movie about it. My beef with Marvel is that until recently they didn’t utilize their properties. And when someone owns a property they don’t really care about or royally screw up (ie Hawkman), there’s nothing anybody can do about.

    You’re not going to get a resounding argument in favor of creators’ ownership from me. As I’ve said, I think the problem is that anybody owns it (this far out from creation). My main point of contention is against the notion that it’s good for us that Marvel/DC own it because it gets us stuff we otherwise wouldn’t get.




    0



    0
  14. Stormy Dragon: Kirby at one time ran his own comic books company, in which his employees had similar “work for hire” arrangements.

    I think it depends on what the particular artist was doing. There’s a big difference between being handed a completed reference sheet and script and being told ‘here, draw this’ and being expected to develop a new a whole new series from scratch.




    0



    0