The suspense is killing me!
On Sept. 29, 2014 The Supreme Court of the United States will decide if it is going to hear the long embattled case of Kirby v. Marvel Characters, Inc.
If SCOTUS chooses not to hear the case it’s all over and Marvel retains complete ownership of everything that the late Jack Kirby had ever created to be published by them. His heirs will never benefit directly from the billions of dollars that his creations have generated for the industry giant. It will be a sad day, not just for the Kirby family and his fans, but for countless other creatives that had worked freelance as contractors in any field prior to 1976 whose creations will now be officially deemed “work for hire” with no hope of the rights ever being returned to the creator.
This would all seem to fly in the face of the intent of copyright law which, from inception attempted to protect the rights of creators and allow opportunity for revision of those rights even in the instance of commissioned work, with the sole exemption of “Work for Hire” which was not clearly defined until the Copyright Act of 1976.
Hey, this stuff is all very confusing or it would not require the brain trust of the Supreme Court to figure it out. If you don’t believe me just check out this well informed link.
The final brief offered to the Supreme Court on behalf of the Kirby side of the argument can be read here. It is an eighteen page document full of legal jargon as one would expect but it poses several basic issues that in my mind stand out as pivotal.
If authorship copyright begins at creation and the creator only receives payment if the work is accepted, how is that creator considered an employee in a work for hire situation? What would be the status of works not accepted?
How could Kirby or Marvel have determined the work be “work for hire” if the term was not yet clearly defined by the court prior to 1976?
It is important to remember that the characters in question were created specifically between the years 1958 and 1963 when Kirby helped a then, failing company avoid closure with a rash of successful characters that he co-created with Stan Lee, though there has been a long contention as to how much Lee contributed considering that the “Marvel Method” required the artist to plot and draw the story which would be scripted later by Lee.
Both men were happy to be getting any check at the time and were just trying to keep the ship afloat. Nobody could have expected the characters to be worth what they are today.
According to this timeline, Kirby had a productive and often tumultuous relationship with Marvel. Publisher, Martin Goodman seemed quite successful in his ability to manipulate Kirby, hashing out deals that were not always sincerely in Jack’s favor.
Kirby did eventually sign a three-year contract with Marvel in 1975 as shown here where he committed to do a nearly implausible 13 pages a week for $1100. That is full script and pencils for two entire issues a month for less than $85 per page at the height of his career. If Kirby was working a normal, forty-hour work week he would have had to have churned out a complete page every three hours just to punch out on time. To consider him an employee is a disgrace.
So, it is up to the Supreme Court, but first they have to decide to hear the case. If they do it will be all fingers and toes crossed for anyone that wishes that Jack Kirby’s family will see a fair decision that will have an impact far greater than just Kirby v. Marvel
As we all gear up for the final countdown, realists know that he chances are slim in this day-and-age where a giant corporation like Marvel/Disney holds all the cards but the idealists can hope that the good guy will win, just like in the comic books.
Either way the decision will be historic and have far-reaching implications.
I know whose side I’m on. How about you?
Gerry Giovinco
