Unpacking The Kirby Reclamation Case

Providing a jaw-dropping capper to what was already an historic month for the comics industry, the heirs of the late cartoonist Jack Kirby set the internet ablaze with chatter this week after they filed to reclaim the rights on many of the Marvel Comics superheroes he co-created in the 1960s. From the Fantastic Four to Iron Man and even to Spider-Man (a character most comics historians generally don't attribute to Kirby's pen beyond a possible hand in design), almost the entirety of what many fans both hardcore and casual would consider the core of the Marvel Universe are named in the papers, which were served both to Marvel Entertainment, their prospective buyer the Disney Corporation and Sony Pictures, Universal Pictures, 20th Century Fox, Paramount Pictures and more companies who have profited from major adaptations of the Marvel characters.

However, while the idea that the Kirby estate may regain a piece of the copyrights for the superheroes has kept talk and speculation high, only a small part of the conversation has gotten to the heart of what's at stake in the filing. While part of this comes from fact that very little about the case has made it to the public eye just yet (when reached via e-mail by CBR, the Kirby's attorney Marc Toberoff declined to comment), many of the issues surrounding copyright law and this case in particular can be confusing to those without law degrees. "In reading some of the articles that are out there, I keep wanting to send notes to people saying, 'No, that's not right,'" laughed intellectual property lawyer and comic rights expert Michael Lovitz of Los Angeles firm Buchalter Nemer. CBR contacted Lovitz (who aside from hosting the annual "Comic Book Law School" panels at Comic-Con International in San Diego also represents comic artists like Colleen Doran and Bob Layton) to help parse out the details of the Kirbys' attempt at reclaiming rights from Marvel.

Lovitz stressed that, at this point, there is no lawsuit involved in the proceedings, and for now neither side has to do much of anything for a number of years. The notice of reclamation filed by the Kirby family only indicates that they do intend to lay claim to a share of the Marvel characters once the initial period of copyright would have ended, which for the individual heroes and villains in question could fall somewhere between 2017 and 2019. "And then they could exercise their rights for the remainder of the extended period [following the termination date]. They could sell it to the same people, sell it to someone else or do something with it themselves."

"The way the copyright statute is set up, each time the law was rewritten and the term of protection extended, there was an addition that said, 'We recognize that when a creator goes to a big company and sells a property to them, they're not in the best bargaining position,'" Lovitz explained, citing the current case of Jerry Siegel's family over the rights to he and Joe Shuster's Superman as a prime example. "They made an original bargain back then for 56 years of protection. If I write a novel and sell it to [you as a company] back in the '30s, I know the maximum amount of time you'll be able to capitalize on it is 56 years, and I take that into consideration when I make the bargain with you. What the people who lobbied congress said was, 'That's fine, but you're extending from 56 to 75 and then later 95 years of protection for those older works. They only bargained for 56, so you should give the original creators the ability to terminate the transfer.' That's what's going on here: a termination of the transfer of rights."

The major difference between the Kirby case and the Siegel case (which, since its moved into an actual lawsuit with Warner Brothers, has been handled with much success by Toberoff) is that in the case of Superman no one ever argued that Siegel and Shuster had not created the character independently and then sold it to DC. "One of the reasons the Superman case is interesting is to see how this all shakes out in terms of accounting. There was never a fight over the termination. The termination was acknowledged as being appropriate and valid. The fight is over what is owed - how much is the estate entitled to receive as a result of the termination and which characters are included and how do you divide up an issue of Justice League when Superman is one of 14 heroes."

However, the Kirby case holds many more complications as the process of figuring out what exactly the family might be owed involves placing a concrete legal answer onto one of the great comic fan debates of all time: Who exactly created what and when at Marvel Comics? "Here's the general problem with this: none of us were in the room when this stuff was being created, and many of us weren't even alive - I know I wasn't alive at that point - to know what the business arrangement was between Kirby and Timely or Marvel or whatever the official company name was," said Lovitz. "I don't know what was discussed or thought or talked about. The only two people who would know were Jack and Stan, and we don't have Jack anymore, and I don't think Stan's talking unless forced to at this point.

"I was actually really surprised...It surprised me because I would have thought there was some sort of normal working relationship. This whole 'work for hire' concept - even though it wasn't officially codified in the statutes until the 1976 rewrite of the copyright statutes, it was still judicially recognized as a concept," said Lovitz giving the general name for this practice as "instance and expense." In other words, to reclaim rights to the characters the Kirby's and Toberoff will have to prove that they were created at least in part by Jack Kirby independent of an understood work for hire agreement, putting the legendary "Marvel Method" of comic creation under the legal microscope.

"If Stan creates the character and the backstory and says to Jack, 'Okay. Draw what I came up with,' I don't know if Kirby has any copyrights in the characters - maybe in certain elements of the design but not in the characters themselves because now the drawings are derivative of what Stan had created," theorized Lovitz, adding "Now having said that, I spoke Carmine Infantino at one point, and he said the way he would work at DC - and this is his version of the story - was that he would draw covers and create characters, and then DC and the writer upon seeing the character would give them a back story and then flesh it out. He had some of those elements in his mind, but they would write the story after the cover was drawn...in that instance maybe there's an argument to be made that it wasn't instance and expense. It was a person using his creativity and then them running with it. Maybe that's the angle the Kirby estate is coming from.

Lovtiz added, "This is going to be a whole, giant, fascinating mess to find out this information and see where it all falls."

As for the next step in the proceedings, either Marvel/Disney could file papers claiming that the Kirbys have no rights to the characters, or continue publishing unabated and wait for Toberoff and the Kirbys to file any actual lawsuits when the 56-year period on each character ends. "Nothing needs to be done between now and then," said Lovitz. "Both parties, however, for different reasons may want to start talks to get this all wrapped up. In my personal opinion - and everyone has different approaches - knowing that this Disney deal is happening, the question is, if you're the Kirby estate, when are you going to have the biggest chance of getting the biggest settlement? Is it while it poses a potential impediment to a bigger deal where maybe they'd be more willing to write a bigger check to go away now? Or is it better to wait it out, thinking once Disney's involved and the properties are cranked up to an even higher level than they're already at, maybe the payday would be even greater? And if you're Marvel or Disney, it's the same kind of thing. 'Do we do deal with it now and have a clear picture moving forward, or do we not worry about it knowing we have half the rights anyway where all we're dealing with is part of the profits?' I don't know. Each side has to see where their biggest benefit would be and whether it behooves them to move now or later."

Lovitz also theorized that the inclusion of companies like Sony, Fox and Paramount in the notice served by the Kirby's may add other wrinkles to the proceedings. "That adds another complication to those deals because perhaps - and now here I am conspiracy theorizing - but who knows? Perhaps there's something in the Sony contract which requires that all the exclusive rights that Marvel owns goes to them, but if there's ever a breach of that and Marvel ever owns less than 100%, then [Marvel] can get out of the deal. In that case, that could change what Disney wants to do. They could say, 'Let the termination kick in, then we can break the Fox deal or the Sony deal to get the movie rights back. We can deal with the estate later.' I haven't seen those movie contracts, but they may come into play in this whole scenario as well."

No matter what happens or when it happens, Marvel Comics and characters as they're currently published will almost certainly continue on undisturbed in a fictional sense. If the case does go to court, or even if Marvel/Disney agrees that certain rights will be shared with the Kirby estate, all that means is that both parties will be able to exploit the properties. "In the case of joint authors, which is the claim the Kirbys will have to go with, unless the authors have a written agreement to the contrary, they have an equally divided right in the entirety of the work they created," Lovitz said. "Each of them have an equal right to commercialize the work and practice those rights offered under copyright - each have the right to reproduce, to create derivative works, to license out, etc. The only duty between those authors is a duty of accounting," meaning that any profits made by either side would have to be split between the equal owners. "So Marvel can continue to create Spider-Man comics, X-Men comics, X-Men movies...any of that stuff. But they will owe 50% of any profits attributed to work Kirby created back to the co-author."

Ultimately, the future of the legal rights of Jack Kirby and Marvel both will make for exciting reading for comics fans and legal types, especially since the future may only hold more and more cases of creators and their families trying to reclaim their classic characters. "You always read these little comments of people saying, 'How interesting that in ten years you could have Time Warner doing a Spider-Man movie and Disney doing a Superman movie?' " laughed Lovitz. "And how ironic that the company that was one of the biggest proponents of the copyright extension, Disney, may find itself being burned because of those extensions that gave in the rights of reversion?"

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