Earlier this week, the world was given a fascinating glimpse into the inner workings of the legal battle between the estate of Jack Kirby and Marvel Comics over whether Kirby’s family can rightly terminate the copyrights of forty-five characters Kirby worked on — and the family alleges he created — for Marvel during his second stint at the company from the late 1950s through the late 1960s The claim covers essentially all the major Marvel characters of that era — the Fantastic Four, the X-Men, Thor, Iron Man, Hulk, Spider-Man, etc. Partial transcripts from depositions given last year by Stan Lee, John Romita, Larry Lieber, Roy Thomas and Mark Evanier have been made public, and thanks to the tireless efforts of Daniel Best, they have been compiled to form near complete transcripts of each of the five depositions. Through these depositions, we gain a great deal of insight into the way in which both sides are approaching the situation.
At the heart of the conflict is whether Jack Kirby created/co-created these characters as “works for hire” or if he was a freelancer who sold the copyright of his creations/co-creations to Marvel when they purchased the stories in which the characters were introduced. If it is the former, then it would be Marvel, the company itself, who would be seen as the “creator” of the works in question, and therefore would be the owner of the copyrights to the characters. If it is the latter, then while Marvel would still currently own the copyrights (since Kirby sold them to Marvel decades ago), Kirby’s family could terminate Marvel’s copyright in a few years under the changes made to the Copyright Act of 1976, or at least Kirby’s half of the copyright. You see, when the United States Congress extended the amount of years copyrights could remain protected, they allowed that persons (or the heirs of those people) who transferred their copyright through sale or whatever could terminate that copyright transfer and be given the benefit of those extra years of protection. The theory being, when they initially sold the copyright, they thought that they were giving it up for 56 years, not the 75 years it became after the 1976 Act. Since that 56 year period is fast approaching, if the Court rules Kirby merely transferred the copyrights to these characters by selling them to Marvel, then his heirs would be allowed to terminate that transfer and gain at least partial ownership of the copyrights to the characters in question.
Marvel has two notable defenses against the claims of the Kirby’s, and they come up repeatedly in the depositions listed above. The first one is simply that Stan Lee was the sole creator of all of the characters in question. In his deposition, Lee seems more than willing to go along with that position, relating in some detail how he came up with the idea behind the Fantastic Four, Spider-Man, the Hulk, the X-Men, Thor, Daredevil, the Avengers and Iron Man. Demonstrating how successful the Iron Avenger’s film franchise has become, Marvel’s lawyer makes a point to prompt Lee to take credit for Pepper Potts, as well.
The second, much more important defense as, at the end of the day, I do not believe anyone would seriously believe that Stan Lee was the sole creator of the characters in question, is that Kirby created the works in question under the “works for hire” doctrine, which states that any works created “at the instance and expense of” Marvel Comics would be deemed as being created by Marvel Comics itself. Here, the depositions diverge significantly.
On the issue of “expense,” in Evanier’s deposition it is noted that on occasion, if Marvel (in this instance, Stan Lee) asked for dramatic changes to be made to a story, then Kirby would often be “forced” to re-draw multiple pages, as the changes were too big to just correct the already drawn pages . For example, if Lee said, “I don’t like this ending, do another one,” rather than try to re-draw the pages he had, Kirby would just draw a new ending. In those instances, Kirby would be paid only for the 22 pages that made it into the comic, not the 26 pages he actually produced. A number of the depositions went into detail on the “Marvel method” of telling a story, describing the way in which the artist shouldered a good deal of the responsibility in coming up with the way the actual story went, since Lee would only give the barest of details. Therefore, since Lee left a good deal of the story up to the artists in question, and since he would reject pages out of hand as “not being a good ending” and then not pay for the rejected work, it certainly sounds like the work created by Kirby was treated as though he was selling it to Marvel. If they rejected it, he ate the costs. In Larry Lieber’s deposition, he also notes that he paid for all of his supplies out of pocket — including his typewriter. These are all good pieces of evidence that creators in Kirby’s position were not in a traditional “work for hire” position.
However, on the “instance” side of things, the depositions of Lee, Romita, Lieber and Thomas all made it clear that an artist like Kirby would never start working on a story for Marvel without being directed to do so by someone at Marvel (Lee or an intermediary). In addition, while Kirby certainly made margin notes, at the end of the day, Lee had the final say as to what went into the comic book, so Lee (or ultimately, Martin Goodman) controlled the production of the comic from beginning to end. This is important if the argument is that coming up with new characters within the comic was part of the assignment given to the artist in question.
Beyond just the control of the work is the question of what was in Kirby’s mind when he sold these stories to Marvel. Did he have a reasonable belief that he was not producing “works for hire?” The fact that Kirby’s checks when he was paid by Marvel were almost certainly stamped with language stating that the creator acknowledges that the work they are being paid for was “work for hire” is not necessarily the end all/be all, although it is certainly strong evidence that Kirby believed he was providing “work for hire.” Now, if Kirby’s lawyers can demonstrate that this was not the reasonable belief of Kirby when he worked on these comics, as suddenly throwing a contract that was not agreed upon on to the back of a check saying, “You have to agree to this to get your money,” is not enough evidence of an actual “meeting of the minds”.
As a quick aside, it is interesting to note that no one seems to actually have a stamped check from the period being debated. That is kind of odd, no? Not one check?
The question remains, what were the beliefs Kirby held during his time working on the foundation of the Marvel Universe? All of the creators deposed who actually worked for Marvel at the time in question (Lee, Lieber and Romita) note that it was understood that all work done for Marvel at the time was “work for hire.” Roy Thomas came along a bit later in the game, but he, too, agrees that it was understood by Marvel’s creative teams — and the industry as a whole — that what they were creating were “works for hire.” It is therefore rather difficult to argue that Jack Kirby, someone who was working in comics before any of the people giving depositions were, was unaware of industry standards at the time.
Kirby’s beliefs were at issue in what was by far the most contentious of the five depositions, that of Mark Evanier. On the issue of whether Kirby (or artists in general) understood that his work for Marvel was “work for hire,” Evanier states in his deposition, and presumably in the expert report he prepared for the Kirby family, “[T]hey didn’t know what it meant. And so I am concluding that when the work was done in ’58 and ’63, nobody thought the words ‘work for hire’ would ever apply to their work because they didn’t know those words.” Marvel’s lawyers went after Evanier on whether he was able to speak to Kirby’s mindset at the time, during which time Evanier was only a boy. In fact, they repeatedly went after Evanier on this point, continually trying to argue that Evanier’s comments about Kirby’s positions were hearsay.
In addition, Marvel’s lawyer James Quinn, who is practically a “super-lawyer,” as he is one of the most acclaimed litigators in the world, repeatedly went after the reliability of what Kirby told Evanier about those days at Marvel by using Evanier’s own past statements about Kirby’s sometime faulty memory. When Quinn repeats to Evanier quotes like, “But for all the things Jack did well, he was not great at being interviewed. He occasionally got carried away or confused. There — there was one interview where, without realizing what he was saying, he said he created Superman. Needless to say he never really believed that, but somehow that is what came out of his mouth” and “In at least one such conversation he misspoke and claimed he designed the costume for the final version of Spider-Man,” you can certainly see where Quinn is going to go with those statements in the future, particularly when it is Evanier’s position that Stan Lee’s faulty memory is the reason for many of the contradictions between Lee’s version of events and Evanier’s version as told to him by Kirby and other creators over the years. Evanier does a strong job holding his own, which makes sense, as he is a great comic book historian, but Quinn certainly lived up to his impressive reputation with his work in the deposition.
In summation, as soon as it was announced the Kirby family was going to attempt to terminate the copyrights to the characters in question, it was seen by many to be an uphill battle to get around the “work for hire” roadblock. Jack Kirby’s situation at Marvel was quite dissimilar to earlier examples of notable copyright transferees that have received support from the Court, namely Jerry Siegel and Joe Shuster selling their Superman strip to DC Comics or Joe Simon and Kirby selling Captain America to Timely, where the characters in question already existed in independent form before the comic book companies got involved. And after reading the five available depositions, the battle doesn’t seem to be any less uphill than before.