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November 30, 2010

A New York federal judge has weighed in on an important case that could be worth billions of dollars and impact the future of Iron Man, X-Men, The Incredible Hulk, Spider-Man, and other iconic super-hero characters.

The case involves the ongoing attempt by the estate of comic book artist Jack Kirby to terminate a copyright grant over his legendary work. After Kirby's children served 45 notices of copyright termination, Marvel Entertainment sued the estate in New York District Court, seeking a declaration that the creations were "works-made-for-hire" and not eligible for termination.

The estate countersued, seeking its own declaration that the termination notices were served properly to Marvel.

Last week, New York federal judge Colleen McMahon rejected a bid by Marvel to throw out the Kirby estate's main counterclaim. The judge decided it wasn't a "redundant" claim, meaning she will soon have an opportunity to shake up Marvel's universe, if she so decides, with a potentially devastating future ruling.

But the judge's decision wasn't a complete loss for Marvel. Far from it.

The studio was successful in avoiding an accounting on how much money is potentially at stake. Judge McMahon agreed with Marvel's contention that it would be premature to adjudicate the issue before it's decided whether or not the Kirby material can be terminated.

Marvel also scored more victories in trimming counterclaims made by the Kirby estate, which is being represented by superattorney Marc Toberoff, the same guy who is giving Warner Bros. quite a few headaches over terminated rights to Superman.

Judge McMahon has ruled that the estate's attempt to get Marvel to return Kirby's original artwork is "untimely," barred by the statute of limitations. She has also thrown out Kirby's other counterclaims of breach-of-contract and violations under the Lanham Act.

The estate had argued that Kirby was not credited with being the author or co-author of works that served as the basis for recent films The Incredible Hulk and X-Men Origins: Wolverine.

In sum, the judge has narrowed the case to its most crucial issue. Both sides disagree about Kirby's working environment in the 1950s and 1960s when he, along with Stan Lee, conceived many of Marvel's most popular characters. The judge will soon be tasked with looking at Kirby's work history and some of the loose contracts and oral agreements that guided his efforts in those years.

Finally, Disney will be a part of this lawsuit, whether it wants to or not.

Marvel, which was purchased by Disney for $4 billion late last year, had attempted to dismiss its new corporate parent from the proceedings, shielding it from liability. Marvel had argued that the termination notices were sent a few months prior to the Disney acquisition.

However, Judge McMahon rules that it's immaterial, that Disney is now in the position to exploit Marvel's assets -- including the rights that Marvel has to Kirby-created characters -- and that Kirby's claim for declaratory relief must include Disney as well.

http://www.hollywoodrepor...ider-49897

Do these companies EVER do the right thing?

Sure, they generally act in good faith...and by that I mean taking credit for your ideas and throwing your carcass into the trash heap if you oppose.

What a mess.

These things have been going on and on, and I think DC and Marvel would love to put them behind them. So I'm curious: Has Marvel offered Kirby's estate a settlement or some kind of deal that would compensate them very well but not convey rights to them?

I understand creators' rights and all that, and I respect the immense amount of brilliance that people like Kirby and Simon and Lee and Siegel & Schuster, et al. brought to bear on the industry. But on the other hand, it gets to be like Prince's WB fight. Everyone knew what they were getting into before they signed their deals, everyone knew what their rights (and lack of) were going to be, and everyone was happy to get the money they got at the time. And there's a business side to it as well. Would we know any of Kirby's characters if he had just published them himself, or with some other company? Would the properties have been as successful?

So I'm back to my original question. If Marvel has offered the Kirby estate a hefty sum to settle, and they have refused because they think they can get more money, then which side is acting more greedily?

And I'm NOT saying that I totally agree with Marvel. Marvel and DC did some horrible things to creators throughout the years; truly despicable things like not returning original artwork, hampering their new work, etc., etc., etc. But since a lot of those people are dead or no longer at those companies, and these cases have larger impacts on copyright laws affecting lots of properties, maybe both sides have valid arguments.

Unless I'm totally misunderstanding things. In which case, disregard everything I've just said.

Efan said:

And I'm NOT saying that I totally agree with Marvel. Marvel and DC did some horrible things to creators throughout the years; truly despicable things like not returning original artwork, hampering their new work, etc., etc., etc. But since a lot of those people are dead or no longer at those companies, and these cases have larger impacts on copyright laws affecting lots of properties, maybe both sides have valid arguments.

Being a commercial artist(and knowing folks who've worked at Marvel & DC), I'm siding with the Kirby estate on this. Marvel & DC(along with many companies) treat their creative people like shit. Squeeze as much out of you for as little loot as possible. Shame on Marvel - where would they be without Lee's vision or Kirby's extraordinary talents?

uPtoWnNY said:

Efan said:

And I'm NOT saying that I totally agree with Marvel. Marvel and DC did some horrible things to creators throughout the years; truly despicable things like not returning original artwork, hampering their new work, etc., etc., etc. But since a lot of those people are dead or no longer at those companies, and these cases have larger impacts on copyright laws affecting lots of properties, maybe both sides have valid arguments.

Being a commercial artist(and knowing folks who've worked at Marvel & DC), I'm siding with the Kirby estate on this. Marvel & DC(along with many companies) treat their creative people like shit. Squeeze as much out of you for as little loot as possible. Shame on Marvel - where would they be without Lee's vision or Kirby's extraordinary talents?

Are they still as bad, though? I thought some concessions had been made and things were changing at the Big Two for the better (or at least a little better).

I admit, I have no idea what the current contracts are like and as much involvement as I've had in the industry, personally and professionally, I've never been involved from that angle at all. So I'll definitely admit I'm speaking with some ignorance here.

hmmm. wonder how this battle will affect any new releases

The estate had argued that Kirby was not credited with being the author or co-author of works that served as the basis for recent films The Incredible Hulk and X-Men Origins: Wolverine.

In sum, the judge has narrowed the case to its most crucial issue. Both sides disagree about Kirby's working environment in the 1950s and 1960s when he, along with Stan Lee, conceived many of Marvel's most popular characters. The judge will soon be tasked with looking at Kirby's work history and some of the loose contracts and oral agreements that guided his efforts in those years

Graycap23 said:

Do these companies EVER do the right thing?

The right thing and the legal thing are two seperate issues here. Jack Kirby, and a vast majority of all comic book writing and art, is work for hire. It is not and has never been owned by the artists or writers and in most cases even the creators of the characters. It is 100% assholery, but what they are doing is also 100% within their legal rights. What amazes me is that after all these years so many artists and writers still work this way. Creator owned titles still represent a very small portion of the comic book world. A lot more than they used to, but not nearly as many as there should be.

Cerebus said:

Graycap23 said:

Do these companies EVER do the right thing?

The right thing and the legal thing are two seperate issues here. Jack Kirby, and a vast majority of all comic book writing and art, is work for hire. It is not and has never been owned by the artists or writers and in most cases even the creators of the characters. It is 100% assholery, but what they are doing is also 100% within their legal rights. What amazes me is that after all these years so many artists and writers still work this way. Creator owned titles still represent a very small portion of the comic book world. A lot more than they used to, but not nearly as many as there should be.

It's a highly competitive field, so you take the work whenever you can.

uPtoWnNY said:

Cerebus said:

The right thing and the legal thing are two seperate issues here. Jack Kirby, and a vast majority of all comic book writing and art, is work for hire. It is not and has never been owned by the artists or writers and in most cases even the creators of the characters. It is 100% assholery, but what they are doing is also 100% within their legal rights. What amazes me is that after all these years so many artists and writers still work this way. Creator owned titles still represent a very small portion of the comic book world. A lot more than they used to, but not nearly as many as there should be.

It's a highly competitive field, so you take the work whenever you can.

How does it work in Japan, and the manga industry? I think the authors retain some ownership there...

Cerebus said:

Graycap23 said:

Do these companies EVER do the right thing?

The right thing and the legal thing are two seperate issues here. Jack Kirby, and a vast majority of all comic book writing and art, is work for hire. It is not and has never been owned by the artists or writers and in most cases even the creators of the characters. It is 100% assholery, but what they are doing is also 100% within their legal rights. What amazes me is that after all these years so many artists and writers still work this way. Creator owned titles still represent a very small portion of the comic book world. A lot more than they used to, but not nearly as many as there should be.

Having done some work 4 hire I understand your point but even when the "legal" side has been covered.......these companies always seem2 error in favor of themselves.