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It was expected that intellectual property lawyer Marc Toberoff, who is suing Disney/Marvel on behalf of the heirs of legendary comics artist Jack Kirby, would appeal the decision by a federal judge in U.S. District Court for the Southern District Of New York that went against him. The judge not only granted the studio motions for summary judgment but also denied the Toberoff/Kirby’s cross-motion for summary judgment. The ruling revolved around character ownership and the fact that Kirby was a freelance writer who did work-for-hire and so didn’t retain the copyright. As Toberoff had told me at the time, “This is just the beginning.” The notice of appeal to the Second Circuit Court of Appeal was filed today. Specifically, the estate of comic book superhero legend Kirby — co-creator of Captain America, The Fantastic Four, The X-Men, The Avengers, Iron Man, Hulk, The Silver Surfer and Thor — sent notices terminating copyright to publishers Marvel and Disney, as well as film studios that have made movies and TV shows based on characters he created or co-created, including Sony, Universal, 20th Century Fox and Paramount Pictures. Normally these kinds of lawsuits are run of the mill for Hollywood. But not when they’re litigated by Toberoff, who is the bane of Big Media studios because he has a winning track record.Editor-in-Chief Nikki Finke - tip her here.
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Much of the comic book community especially want to see Kirby get something out of this lawsuit. His treatment at Marvel was humiliating for one of the greatest artists and creators in the business. His influence cannot be denied, and here’s hoping Toberoff will be successful at some point, or otherwise negotiate a settlement that is fair and honors “The King”.
Amen. And God bless Jack Kirby.
Jack Kirby is known for his artwork, not his writing.
Oh, he’s known for his writing, all right.
Unfortunately, I think he’s maligned for it.
Pick a writer, there are always people who don’t like his work. And Chris is right that Kirby is best known as an artist. But writing — including character conception and story — is a huge part in what he did, and the characters he created or co-created haven’t lasted as long as they did purely on their looks.
Plus, Kirby wasn’t credited for a lot of his writing. Much of it — including his work with Stan Lee, his work with Joe Simon and uncredited work at DC (which includes stories he concieved, but which were scripted by others from his plots) — is terrific.
You simply can not deny the impact he had on comics, the style of comics, the way we think about the Might Marvel House of Ideas. He was such a crucial part and his influence can not be measured. As a member of FOOM, I must say, give King Kirby his due! ‘Nuff said!
Good luck to the Kirby estate.
And to the Commenter above, ever read Kirby’s Fourth World for DC? He damn well could write.
if the comic book community wants him to get something maybe they can all write him a check.
if he was willing to work for what marvel paid him then why is this disney’s problem?
if he wasn’t willing to work he could have just gone home.
sounds like sour grapes and a lawyer who figures the big company will settle if he makes the legal process expensive enough.
hear hear. Imagine if everyone could “undo” their sales of property, so they could re-sell it at a higher price.
Observer, you’re obviously not at all familiar with the ‘work for hire’ deal he was laboring under in the 1960s, his arguments with Martin Goodman (the publisher until the late 60s) and Kirby’s arguments to receive what he was promised…not to mention the fact that in the 1960s a comic book artist had limited options as to where they could work.
The ‘Marvel method’ of working was Stan giving Jack an outline verbally, a few sentences, and Kirby drawing up the story, also often adding most of the story notes in the columns for Stan to transcribe and/or reinterpret. Jack Kirby co-created the Fantastic Four, the Hulk, the X-Men, Thor (the comic book version anyway), Captain America, Nick Fury, the Black Panther, he had a hand in creating Spider-Man (though the visuals were almost all Ditko), and created Galactus and the Silver Surfer on his own. His output without Stan Lee includes the Fourth World saga at DC, which bears a lot of the same tones George Lucas used for the Star Wars saga a few years later.
The Marvel Universe Disney purchase was built almost entirely on the backs of Jack Kirby and Steve Ditko.
And FYI, when Marvel refused to return the man’s artwork to him in the 70s and 80s, hundreds of creators who were making money thanks in large part to Kirby’s work in the 60s fought to help Kirby recover the art that was rightfully his, which was then sold to help him earn extra income to pay medical bills because he was denied insurance from Marvel.
The world has enough ill-informed imbeciles spouting opinions, don’t add to the mess.
did he or did he not “cash” a weekly pay check?
if so see rule 1# –that’s all you get just like me
just because I installed all the electrical in a building does not make me part owner after I get paid weekly for it!!!
or maybe we can take this look on it –he can “win ” his case then Marvell/ Disney can sue him for all those comics that did not make millions
>> did he or did he not “cash” a weekly pay check? >>
No, he didn’t.
He was paid piecework. Like freelancers, not like an employee.
>> if so see rule 1# –that’s all you get just like me >>
That’s not true either. There’s a wider range of approaches to compensation than just what you get.
Not to mention that installing wiring and creating the Silver Surfer aren’t exactly the same kind of work.
I note that most often people who have idiotic opinions make them anonymously. Kirby at his best wrote at a higher level than anyone else in comics including the copy-writer Stan Lee, who betrayed every artist he ever exploited with his testimony in court.
Good luck indeed to the Kirby estate. Kirby’s art and writing has to be taken in context. At the time, what Kirby and Marvel were doing was revolutionary. Today, it may come across as charming and naive.(though I’d argue the point).
Even as a freelancer, he co-created, and sometimes simply created, some of the most enduring characters in modern mythology. To me, that alone catapults him to the top ranks of classic writers.
As Mighty Marvel might put it:
Bah! Puny Kirby Estate with their vaunted lawyer!
I’d have more sympathy if -a- Kirby was still alive to reap the benefits of his work and the respect he deserved while he was living, and -b- Toberoff wasn’t involved. A + B just seems to equal greed to me.
well from what i can see, DC and MARVEL have been living off King Kirby’s art AND WORDS, for some time now.
one prominent contemporary comic writer, Grant Morrison, has only recently given credit to the art & words of Kirby’s 1970s DC output in his new book. hell, even Image Comics reprinted Kirby’s 1980s Pacific Comics stuff(all written & drawn by him).
personally Kirby’s entire career output will have a long lasting effect on the comics industry for years to come.
Carl Banks, Will Eisner, Jak Kirby. all Titans.
All you say may be true, but Kirby worked for-hire. He knew going into it that he would not own the characters. The family’s attempt to get money they had nothing to do with earning reeks of the same kid of greed Marvel and Disney are accused. If you want to change the laws surrounding work-for-hire, fine, but this isn’t how you do it.
Whether Kirby worked on a work-for-hire basis is the issue at hand in the dispute.
I never thought I would say this about a lawyer, but “sic ‘em, boy!” God, I think I threw up a little just saying that to someone in such a scumbag profession.
I think you mean Carl Barks? Not Banks?
I think that Marvel should be ASHAMED for not properly compensating the co-creator of many of these famous characters. People know of Stan lee but few outside the realm of comics have even heard of the “King” whose collaboration with Lee made Marvel what they are today.
Kirby deserves credit, and he deserves to have his name somewhere on everything his characters or printed or viewed on. However, aside from that, his family isn’t entitled to any money. It was a standard contract and he abided by that.
The Kirby estate isn’t entitled to any money. But Jack Kirby’s name should be on every movie, TV show, comic, etc. etc.
The real villains here are the corporations who have invented the “work for hire” provision that makes U.S. copyright law at odds with most copyright law worldwide. The person who creates is the artist. The person who duplicates is a manufacturer. Kirby, Dirko, Romita, Buscema, Lee, and the others CREATED. The guy who owned the presses just pressed “print.” ‘Nuff said.
Well said. Thank you.
you don’t really understand the publishing business do you? Marvel Comics didn’t just own the presses. They financed, commissioned, edited marketed, promoted and sold everything.
That’s like saying the directors create, the studios run the projector machines.
Regardless of what the publishers owned, the creators in question were freelance and on piecework, same as today’s writers, directors, DPs and others (with rare exceptions). One of the scandals, if not felonies, is the “retroactive work for hire” in which a writer or artist must sign a paper saying that the work is henceforth to be deemed a work for hire even though it was created independently. Years ago when Marvel’s lawyers shook down the artists and made them sign conveyance statements, that’s what happened. And I do understand the publishing business. I just had my twelfth book published and I own the copyright. In the past when I wrote works for hire those terms and conditions were discussed in advance. And when I wrote freelance for newspapers and magazines the rights reverted to me after first North American publication. That’s the way it works. And BTW, before the 1948 Paramount Consent Decree the studios DID run the projection machines. And also the labs, the distributors, and the theaters.
Marvel used to use National Periodicals’ distribution because they had none. They grew enough to be sold to a company in the late 60s that had their own set up in large part because of the properties they had which made them an attractive buy….properties created by Jack Kirby.
And Martin Goodman nearly closed down the offices before Stan & Jack created the Fantastic Four, so really, without Jack, Marvel would have gone out of business in 1961 and there’d have been no company for Disney to buy.
Curious that when Jack Kirby owned his own publishing company, all of his employees worked under the exact same “work for hire” provisions which he and his family now think so patently unfair.
Kirby and later the Kirby estate played this all wrong from the beginning. If they had taken Stan Lee’s track he could have officially signed over his tenuous rights claims to Marvel in return for a life-long compensation package. Marvel would have been more than happy, I’m sure, to have brought Kirby “back into the fold” and have him talk glowingly of his role in creating the silver age of comics.
Kirby created the Silver Surfer by himself. This is only known because Roy Thomas, then Stan Lee’s assistant, saw Stan ask Kirby who the character on the surfboard was when the pages came back fro the first Galactus story.
BULL. Stan gave Kirby complete credit for the Surfer decades ago and recalledc that incident himself in Origins of Marvel Comics..
The fact of the matter is that not only was Kirby a writer, he was a great writer in a medium where dreadful writing is very rare.
One of the main reasons super hero comic book fans detest Kirby’s writing is because it isn’t anything like what they are used to reading.
Kirby’s writing has been widely praised by novelists like Harlan Ellison, Glen David Gold, Jonathan Lethem, Michael Chabon, and Neil Gaiman. Comic book writer Grant Morrison has compared Kirby to William Blake, and commented comics fans who don’t appreciate Kirby’s writing simply don’t have Kirby’s “reading list.”
The above should have read “Kirby was a great writer in a medium where dreadful writing is common.”
One thing the appeals court should consider is while at Marvel 1958-1963 Kirby was never paid as a writer. If you aren’t paid as a writer is your writing work for hire?
Kirby was never paid as a writer post-1963 for the stuff he wrote when Stan Lee got busier dealing with the media and had less time to be hands on with the day to day comic writing, either. It was a continual bone of contention for him and one of the many things that sent him to DC.
For the comments above who dismiss this as as a case of ‘Kirby knew what he was signing off on and getting paid for’, I’m afraid, as in much of life, that things aren’t that clear cut.
First of all, the world was a very different place in the early to mid 1960′s (when many of his and Lee’s most enduring characters and concepts were created) and no one back then could possibly have forseen the avenues of commercial exploitatation that companies such as Marvel & DC now profit from (usually at greater levels than the comic books themselves).
Second, the way in which Lee & Kirby worked (as well as many other creators) wasn’t simply a case of ‘Lee wrote the script and Kirby drew it up’. Working in what’s known as the ‘Marvel Method’, Lee would provide an outline (often, as I understand, verbally) which Kirby would then elaborate into narrative art, followed by Lee scripting from these pages. Therefore the process was far more organic.
Thirdly, the manner in which Marvel got their artists to sign off on rights, with legal declarations printed on the backs of cheques, is itself being called into question, with undue pressure being an issue.
Finally, while the Judge’s ruling may have stuck to the letter of the law, it certainly wasn’t seeing justice done. The law isn’t immutable, it is shaped by, and helps to shape, the world around us. This may be one of those points where the law needs to change…
According to the NYTimes, the music biz is about to fight the same copyright revision battles by claiming Dylan, Springsteen and others made their classic albums “Work For Hire”.
http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html?_r=1&hpw
Sure kirby should have gotten something when he was alive. But its his kids that are sueing now. Who don’t really have much claims to go by. I don’t think the ruling will change.
From what I understand, the back of every Marvel check had writing that said something to the effect of by endorsing this check the endorsee gave up all rights to anything that was created for the check.
Honestly, if that’s the case it was scummy.
From time to time it’s mentioned that the Simon and Kirby studio employed artists and writers who signed away all rights to the studio.
That is correct, however there is a big difference. Simon and Kirby created the concepts first, and often the complete contents of the first couple of issues. Further Simon and Kirby gave the writers all the plots for the stories.
Walter Geier one of the shop writers said, “They were Jack’s plots, I just supplied the dialogue.”
It’s funny to see a wire stringer try to compare his work to the creative genius that came from Mr. Kirby. You should just be happy you found a job that requires no thinking whatsoever.
I agree, the electrician who compares his wiring job to creating concepts that millions enjoy for generations is a joke.
I was able to meet Jack over the years and go to his house a couple of times. He was simply the best. He told my friend and I how he created a lot of his heroes such as the Hulk, Silver Surfer, Galactus etc; He had more ideas than anyone I ever met. No way Stan Lee should have all the credit fame and money. Marvel should have taken care of him because of all the work he did for them whether it was “Work for Hire” or not. The pages he produced should have been enough to take care of him and his family. As for people who didn’t think he write or create anything for Marvel, look at his career before and after Marvel. He was and still is the KING! Nuff said!
Should be: wrote or created anything…sorry!
Jack “King” Kirby was a genius in the comic medium. His writing and artwork are legendary. and were he filing this lawsuit, I would fully be on board with him getting the compensation he rightfully deserves. What bothers me is that heirs, who may not have had any part in the work their famous ancestor may have done come crawling out of the woodwork more than 40 years later to make some cash off their dead ancestors name. This is a sad indictment on our world but par for the course in our litiguous society where everyone seems to be after a quick buck no matter how they get it.
Much, perhaps most of Jack Kirby’s artwork has been covered over in ink by numerous people of varying degrees of talent and ability.This in itself is a great tragedy; the original pencil work evolved over time into rich elaborate drawings that are masterful by any standards, brilliant and complex both in style and content, all lost now because of the archaic technology and practices that existed when Kirby was in his prime and which didn’t allow for the original drawings to be spared. The inked drawings became, because of the economic pressures of the times in which this great artist lived and worked, the sole property of his employers. Nevertheless, even these works, corrupted as they are, are now selling for , in a quick internet search just now, up to $50,000.00 each, and Jack Kirby made thousands and thousands of drawings. Kirby’s pencil art for the first comic book cover featuring Spiderman recently sold for around $75.000.00. Had just his artwork been returned to him, his beloved family would be wealthy enough not to be concerned about the financial degradations that Jack Kirby was subjected to in his virtual enslavement in the only industry that could provide him the opportunity to practice his evolutionary art, and for so many of us to benefit from the unequaled inspiration for a better world that it provided us then and still does today.Yet, even the right to own his drawings was denied this very special artist and his family. The law says this is fair and just, and laws are made by the servants of the very, very wealthy, by people who suffer the worst addiction of all, the addiction to having power over others, and they are enforced by people with guns and the willingness to use them. I will remind you that everything, everything that was done in Nazi Germany, in Stalin’s Russia, in Joe McCarthy’s and in Nixon’s and Bush’s America, was done under the rule of law, all fair and just and with due process.
Jack Kirby was a visual storyteller in a time when no other medium came close to being able to allow for his vision to be expressed, and he was a genius, brilliant and enduring. As to the question of whether it was Lee or Kirby who provided the creative impetus, someone else said it best in the Jack Kirby Collector magazine- when Jack Kirby left Marvel, he created another astonishing legion of characters and concepts that still provide fuel and inspiration, and of course money, lots and lots of money for DC, and others, and Stan Lee created Ms. Marvel and… well, that’s about it. So, I won’t waste any more time on that debate. That Jack Kirby, for all that he gave and gave to the people and companies he worked for received a paycheck- no pension, no health care,no royalties, no credit,no THANKS(!!!), , from these people and companies, even though the judges and the mob proclaim and enforce it’s LEGALITY, defies everything I hold to be moral and fair and just.The “work for hire” concept when applied to any revolutionary or evolutionary breakthrough in Art, Science or for that matter any human endeavor just doesn’t cut it.If you invented a way to wire a building that revolutionized the way in which buildings would be wired forevermore, and then saw the profits,designs,blueprints, patents and credit legally go to your employers, would you be satisfied with that? Would you think it fair and reasonable? Countless millions of dollars have been made from the work of Jack Kirby by people who have little or no connection to the work other than their own profits , and who have apparently even less understanding of it. Jack Kirby believed in true Freedom and Justice, and I applaud his heirs for continuing to abide by his ideals and for their dedication to their cause of seeing that their father receive due credit for his achievements. May they be successful, and as Leonard Cohen sang,”May the lights in the land of plenty shine on the truth some day.”