Jack Kirby Declared A Mere Marvel Workerbee… Heirs Can't Reclaim Copyrights On Hulk Or X-Men

from the termination-battles dept

We’ve been covering the looming boatload of copyright termination cases because it’s going to make for an interesting spectacle in the copyright realm. As you may or may not know, current copyright law in the US allows the original creator of a work the right to reclaim the copyright at a certain point — a right that cannot be waived. There was, however, one exception put into copyright law at the urging of certain industries: if a work was declared a “work for hire,” then it would not be subject to termination rights. We’ve already seen one big battle over termination rights with Superman and a second battle has been focused on the heirs of famed comicbook artist Jack Kriby, who sent out a flurry of copyright termination notices back in 2009.

However, in the first lawsuit concerning the Kirby family’s attempt to reclaim the rights to the Incredible Hulk and the X-Men, Marvel has prevailed. As Marvel (now owned by Disney) had argued, the judge found that Kirby was merely a Marvel workerbee and, thus, the characters he created were done under a work-for-hire basis. Of course, this case is far from over and Kirby’s heirs intend to appeal. No matter what, this case will be watched closely, because an awful lot of artists can reclaim their works in 2013… and these legal disputes will determine what’s really allowed.

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Companies: disney, marvel

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Comments on “Jack Kirby Declared A Mere Marvel Workerbee… Heirs Can't Reclaim Copyrights On Hulk Or X-Men”

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More to the point, we should dispell the misconception that copyright is ALL about the creator. We can argue legitimately about whether it’s worth it or not, and at what length and depth, but copyright is NOT about the creator. If it was, copyright would stop at the creator, which it obviously doesn’t.

Copyright is played like a shell game. It’s over here, then it’s over there, and all the while you’re too afraid to play the game because if you guess wrong on whether you can do something, you lose your dollar(s)….


Re: Re:

While I would generally agree, in this case I don’t.
While Kirby created a whole lot of awesome stuff, he was an employee getting paid directly to make that stuff for the company, not for himself. The company was paying him because of the benefits they get from copyright law. It doesn’t matter than copyright doesn’t stop with him, he gained through it.

My work is a very similar situation, and I really don’t see how, when my company is paying my salary for me to build programs for them, I should get to take the programs they paid me to make for them back later.


Re: Re: Re:

“My work is a very similar situation, and I really don’t see how, when my company is paying my salary for me to build programs for them, I should get to take the programs they paid me to make for them back later.”

Unlike your programming, Kirby’s work still has value decades later.
Your programming will be obsolete in a couple of years.


Re: Re: Re: Re:

Depends on what he programs.

Did you know that you having power and water probably still depends on some decrepit old hardware and some equally decrepit old software?

The HTTP protocol is two decades old. The TCP protocol is almost four decades old. FORTRAN, which is still in use today, was first released in 1956 (or thereabouts).

Those things are infinitely more useful than some random story about super heroes, and will also last longer because people actually need this stuff to survive. Not saying that storytelling isn’t important, but if you want the world to keep going around, you need us, the tech geeks, to keep it spinning with our crazy “programming”.

John Fendersonsays:

Re: Re: Re: Re: Re: Re:

The kind of work you describe is useful, but may not be all that creative.


That work is creative in every sense. The literal (something was created) as well as the common use (something was created using copious amounts of insight and imagination).

All programming — indeed, all engineering — is creative in every sense that art and literature is. That it results in practically useful things doesn’t diminish that one bit.


Re: Re: Re: Re:

Your programming will be obsolete in a couple of years.

Depends on what it is.

Each of a few commercial vertical market applications that I’ve written in my career have had typical lifetimes of ten, fifteen, and in one case just over twenty years. When a newer version rewritten in newer technology appears it can take the entire customer base years to upgrade. Some right away, others later, and some not until well after we discontinue any support. 🙂

If you would have told me in 1982 that the system I was working on then would still be in wide use by 2000 (and need its Y2K problem fixed) I would have laughed. We had big ideas of how we would rewrite the entire system in just a few years. Yeah, right. Once you build it, prepare to live with it for a long time.


Re: Re: Re:

While Kirby created a whole lot of awesome stuff,
he was an employee getting paid directly to make
that stuff for the company

That in fact proves that copyright is not about the creator.

If the copyright stopped at the creator, then he would have made a lot more. Maybe there should be a license for hire, but he should still own the copyright. If he’s only earning a wage, then the length of that license should be limited. If the company thinks what he created is so extremely valuable, then he should get a bigger share of the reward than just a salary.

This applies to your programming equally well. If your efforts really are worth something extremely valuable, and that value will last a long time, then you should get a greater reward.

If the result of the creativity (programming, music, art, comic characters, etc) is not so valuable, and does not require great creativity, then it should be easy to find lots of people who might do the job for you at a lower price.

For example, most production programming is not that creative. Most in-betweening in cartoons is not that creative. Even if copyright stopped with the creator, that copyright would not be marketable for much because plenty of other people would be willing and able to do the much less creative work.

Some programmers are truly outstanding and creative at what they do. So are some musicians. Artists. Etc.


Re: Re: Re:

While Kirby created a whole lot of awesome
stuff, he was an employee getting paid
directly to make that stuff for the
company, not for himself.

Kinda have to agree in this case. He was an employee. There doesn’t seem to be much wiggle room for him to claim otherwise.

They basically seem to be saying, “Yeah, but he was a really good employee!” and while that may be true, it doesn’t invalidate the work-for-hire doctrine.


Re: Re: Re:

You realise you admit exactly what the point of the article and the entire problem is, right? We constantly hear RIAA/MPAA/etc talking about artists and why they need to be “protected” with draconian and excessive copyright laws and lawsuits, but they’re really only talking about their own bottom lines. Artists can get screwed the second they stop making a product for them.


Re: Re: Re: Re:

On the RIAA/MPAA front you’re right. As for its applicability to this case, you’re off-point. Recording artists and actors aren’t employees. Kirby was an employee. Once that’s established–and I’m taking it on faith that it has been (the opinion is open in another window, waiting to be read)–it’s just wrong to try to argue that Kirby should own the content he’s created for his employer. I mean, absent an overhaul of the entire employer-employee relationship in this world (to which I would not be averse, but that’s another topic). Moreover, it’s doubly disingenuous for his heirs to storm in arguing that they deserve payouts from Marvel for Kirby’s labor when they have already gotten whatever they were left by Kirby when he died. Misguided and greedy, I say. And I hate to say it.


Re: Re:

That we have a work-for-hire provision in copyright law is proof that copyright is not about the creator or artist.

One might argue that a corporation could buy a copyright, but then the creator / artist could negotiate to sell it for something substantial, or instead license it for something long lasting like royalties.


Re: Re: Re:

It is most definately not proof that copyright is not about the creator or artist.

All the work for hire provision does is provide creators with a choice to work for hire if they want to.

I could hold the copyright to my stuff myself if I wanted, but I recognize the value the company adds and choose to make things for them for a steady salary instead.


Re: Re: Re: Re:

No, what it does is tilt the power such that the creator no longer has a choice to work for hire if they want to. You will, period.

The only way you could have the choice NOT to work for hire is to first create the work (at your own expense) and then try to market it.

If copyright stopped at the creator, you could get hired with an agreement negotiated between you and the company for a license to the creative work based on your agreed belief of how valuable the creation might be. This also leaves open the possibility that the work may turn out to be far more (or less) valuable than your agreed upon belief. That’s one reason royalties might be in the mix of compensation in a negotiated license.


Re: Re: Re: Re: Re:

“The only way you could have the choice NOT to work for hire is to first create the work (at your own expense) and then try to market it.”

OMG! Perish the thought! If you want ALL the benefits, you have to take ALL the risk and put in ALL the work! It’s TYRANNY I tell you!


Re: Re: Re:

That we have a work-for-hire provision in
copyright law is proof that copyright is
not about the creator or artist.

Regardless of what copyright is “about”, the work-for-hire doctrine is one of the few aspects of copyright that actually makes sense.

If own an office building and I pay some guy a shit-ton of money to make a sculpture or paint a mural to set my building apart and make it unique, I should be entitled to own that work, in both its physical and IP forms.

If I hire someone to write a movie for me, I should own the screenplay because it was my money that financed its creation.

Seems simple, straightforward and fair to me.


Re: Re: Re: Re: Re: Re:

I don’t think that’s what he meant, mate. I think he meant that you over-simplified WMFH. The scenario you describe could just as easily be an IC situation, where the creator owns the rights to the thing despite the shit-tons of money spent by the building owner.

It ain’t that you’re wrong, or even that your opinion is off-base to me–just that there’s a lot more nuance to this stuff. That’s why it’s litigated to death. Oh, that and the money.


HULK and X-MEN! -- How old are you people?

I love how all you CHILDREN now come here to read mike talk about grown men reading COMICS and watching cartoons for little girls. — Do you think this is IMPORTANT, mike? — This type of “entertainment” is just juvenile PROPAGANDA and so now I guess you want adults playing “Captain America” well that’s just great. — The real “CAPTAIN” AMERICA is just an oppressive imperialist DOG and there’s no such thing as an X-MAN it’s a CHILDS STORY. — Maybe you should start posting about the wicked old witch mike then we can all play in fantasy land just like the american PUPPET MASTERS want us to.

Re: HULK and X-MEN! -- How old are you people?

Ugh, what!!?? Captain America, if you actually read the comic (which plenty of adults do, btw), is definitely not a propoganda tool for the American military. Hell, his relationship with the government is one of the focal points of the series.

Oh, and it’s X-MEN, not MAN, and if you can’t even pick up the greater interests behind the series that go beyond a mere children’s story, then what can I say?

Puppet masters indeed? Who is yours? Some psycho nutjob pulling your strings to make sure you sound every bit as buckets-o-crazy as you continually do on this site? Dear lord, from all Canadians are serfs to Captain America the propoganda for imperialist dogs; you sure know how to jump around….

Re: Re: Re: HULK and X-MEN! -- How old are you people?

Uh, what the shit is THAT supposed to mean? I’m a racist pervert? And your implication is ridiculous. Are all grownups that read comics somehow under suspicioun of you?

Are you still going through all my thousands of comments on this site? One by one? Hanging them up in your bedroom so you can study them for the hidden codes designed to let the Eskimo communists come take all our ‘Merican freedoms?

With all the crazy you spout, no wonder you don’t keep an account here….


Re: Re: Re: HULK and X-MEN! -- How old are you people?

Caps really aren’t helping your case here. I don’t know if you think you’re a funny troll or what, but your post is neither interesting, factual, insightful, or funny.

There are plenty of adults who enjoy comics. It’s a form of art. Manga is another form, also considered art. Calling any form of a comic strip a kids cartoon merely shows us that you’re out of touch with reality, blue. What is dilbert if not the same thing?

I’m not a huge Marvel fan, but I don’t feel a need to harp on those who choose to enjoy it. Respect other people’s decisions.


Re: Re: Re: HULK and X-MEN! -- How old are you people?

Actually, let me point out – for the people watching this at home – that you are usually the kind to jump up and down and scream “ad hominem! ad hominem!” like a rabid animal every time someone does a (perceived or actual) “ad hom” directed at you, but you certainly don’t seem to be the one to shy away form doing it yourself when backed to a corner.

I’ll let the audience decide what to call that.


Re: HULK and X-MEN! -- How old are you people?

“…there’s no such thing as an X-MAN it’s a CHILDS STORY”

There…there isn’t? You mean it’s all…fake?


You’ve destroyed all my hopes and dreams you bastard! You’ve left me a broken, hollow shell of a man. I should sue you!!!

At least I can still count on Santa Claus to come around once a year to leave me presents, or else life just wouldn’t worth living.


Re: HULK and X-MEN! -- How old are you people?

This trolling post lacks quality, you can do better. I give it a 2/10 for the try. In the “totally-miss-the-point-and-talk-about-random-subjects-instead” field you got 10/10 and passed with distinction though.

Because copyright disputes have everything to do on how adult comic books are. Not.


Re: How old are you people?

“Maybe you should start posting about the wicked old witch”

Well, there’s currently some copyright debates going on THERE at the moment, too. Apart from the fact that the movie is now PUBLIC DOMAIN in almost every country EXCEPTING for the United States, a judge has recently declared that the MANNERISMS of characters depicted in the movie may be the subject of copyright.

So mock discussing comic books and family movies all you like, when copyright law is extended just to protect the copyright on some cartoons about a MOUSE that are from 1928, it is still appropriate for the subject of copyright.

John Nemeshsays:

Re: HULK and X-MEN! -- How old are you people?

I am almost 40 years old. I am PROUD to be a comic book fan, and Marvel has always had stories that appeal to people older than 10! Modern comic books have NEVER been only about the kids…Your ignorant rant shows that you never really READ one, so you might not be aware!

No, there is no such thing as an X-Man…its fiction! But that fiction allowed Marvel to tackle complex social issues that exist in real life, segregation, racism, and struggling to live in a world when you are “different” from everyone else.

The problem most American have is the perception that these are “Kiddy books”, and not worthy of consideration by any adult, and this couldnt be further from the truth! In other cultures (Japan, China, Korea), Manga (comics) are a valid form of adult entertainment, and are quite varied in their content. You have everything from historical accounts (fiction and non-fiction), romance, action/adventure, and even comics about cooking! In short, they have genres for every reader.

Here in the US, most mainstream comics are, of course, superhero comics, but there is a growing number of adult “Graphic Novels” from both independent publishers, as well as established ones such as Marvel or DC. These are as well written as any standard novel, its just presented in a visual format. “The Road to Perdition” is a good example…this was written well enough that Tom Hanks signed on to star in it. It went on to be nominated for SIX Oscars, winning one.

So, do yourself a favor and visit your local comic book shop. Pick up a few titles, and relieve yourself of your ignorance!


Re: HULK and X-MEN! -- How old are you people?

Dude, you know that grown-ups are the ones making comics, right? And selling them? And suing other grown-ups over the rights to them? I mean, you do know all that, right? So, while the subject matter of the books themselves may or may not live up to your standards, you just shit the fucking bed masterfully. Congrats.



When I found out that Marvel had been bought by Disney, I was genuinely surprised. It’s totally unlike their main division’s output. But then I realised that Disney had probably bought Marvel for the same reason that Warner Bros still holds on to DC: They need SOMETHING to keep the ideas flowing for movies.


Re: I'll just posit that Mike is using a sock puppet.

Well I guess it was only a matter of time mike before you started LYING to your own readers since you are such a fan of deception like the government you LOVE so dearly! — So what you make a sock puppet to accuse ME of being one? — How very conniving, I guess your capitalist MASTERS taught you well.

So congratulations I guess you’ve FORCED me to sign up for one of your “accounts” (tracking systems) just to stop you from IMPERSONATING me even though you will probably steal my password since there it seems there is no low you won’t sink to.


Re: Re: Re: I'll just posit that Mike is using a sock puppet.

Mike you are not going to scare me by making stupid ACCUSATIONS. If anyone is committing fraud here it is YOU and I am already making arrangements with my lawyer (an EXPERT unlike YOU) to expose your CONSPIRACY. Your corporatist tactics may work on the fools who read your “blog” but I am just a little bit SMARTER than that.

Re: Re: Re: Re: I'll just posit that Mike is using a sock puppet.

Ok….I am getting seriously confused here. If someone is imitating ootb, they’re both doing a fantastic job of it and it’s a pretty mean thing to do.

That said, I guess I have to assume the ootb w/the profile is the real one. Since you’ve gotten a profile to prove yourself, you damned well better take back your accusations that I’m a racist pedophile, otherwise you won’t wanna be saving these websites with their gravatars at all, since they’ll be evidence….


Re: Re: Re: Re: Re: I'll just posit that Mike is using a sock puppet.

That’s nice “Dark Helmet” aka TIM GIEGNER but there are over 5000 of your “comments” (smut and RACISM) here to back up my allegations. — Now that you’re getting a little SCARED you might try to ERASE your account but that won’t help you because I have saved all your comments and am already halfway through INDEXING them to expose your CRIMES! — I think you will be shocked to see how you look from that perspective (and I think the JUDGE will too)



That is sad. Kirby is a legend in the industry and a great artistic talent. But, sadly, this is nothing new. DC did worse to the creators of Superman and actually fired them from the company while they were still living.

As far as out_of_the_blue#1 goes, he obviously hasn’t read a comic book since WWII. Certainly not since the 70’s. Further, comics haven’t been for children for at least the 80’s. And I’d point out, it is a publishing business, therefore, it is relevant in that it illustrates copyright law and how often those who create are not treated as well as they deserve. Which, I believe, was the point of the article.

I would say that blue#1 should check his facts before he goes off on rambling tirades, but, this is the Internet, and that is a fairly forlorn hope.

Marcus Carab~ As far as blue#1 loosing it goes, I think loosing is the wrong term. Lost would be more accurate I think.


Think of it THIS way.....

Think of it this way: Would you rather work for a steady pay or work freelance in the hopes of getting paid? Kirby’s work may have value now, but back then he needed value on the spot (i.e. to be paid) to support his family.

In my opinion the whole situation is bullshit: Kirby got ripped off but on the other hand, why should his heirs now reap the rewards for his work? Why should Marvel/Disney make money off work done 30+ years ago? But, when you think about it, why SHOULDN’T they all make money off it?

If the characters were all public domain by now (and, let’s face it, this applies EQUALLY to DC and Marvel) I think there’d still be a market for them (obviously there would be), comic book artists and writers could make their own comics of these characters (thus adding value to the characters) plus the OFFICIAL versions would still come from Marvel and DC.


This trashes copyright's main excuses

Doesn’t matter about this not being the movie/music industry. They all boost existing copyright laws for their benefit, while claiming it is ‘for the artist/creator’. The fact than any creative industry can say “our workers are purely for hire and have nothing personally creative” totally undermines that ‘special’ status copytards claim for copyright. Stuff will be created for hire. Big companies will keep the copyright. It is not for the benefit of ‘individuals’. Profits must be protected. The public domain will never happen.

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