As has been making its rounds on social media platform tumblr (care of everyone’s favorite big, red robot, Dylan Todd), Kurt Busiek recently responded to some CBR Community posters in regards to the recent settlement between the two. It’s an incredibly insightful read, and one that will most likely point out a staggering number of details that you or I may never have realized about the entire ordeal, therefore essentially becoming a must-read for any modern comic fan interested in one of the most important cases from our medium.
So now, we will present to you the entire write-up from Busiek for you to read, digest and consider. It’s a rather important bit of knowledge that could stand to enter into the dialogue whenever this case or any like it are brought up again in the future, going over copyright law, work-for-hire and more, all written by one of the industry’s best.
The amount of misinformation presented in this thread is staggering.
Especially when, say, Cookepuss spouts utter nonsense, and then several people tell him that legally, he’s absolutely right, when he hasn’t even got the first step right. Brian B. has it closest to right.
This wretched, insulting narrative that Kirby’s heirs up and sued Marvel because they smelled money so they ignored the deals their father had made to stick up the poor victimized company is wholly inaccurate. To start with, the Kirby Estate didn’t sue Marvel. Marvel sued the Kirby Estate.
As Brian noted, Congress changed copyright law in the mid-70s, and in doing so, they gave a huge gift to corporations: They made copyright last years longer.
So when the Fantastic Four were created, under the law, Marvel only expected to own them for a maximum of 56 years, since that was the maximum length of copyright at the time. At the end of that period, the FF would go into the public domain.
So when Congress changed the law, they knew they were giving copyright buyers something extremely valuable — many more years of copyright ownership — and they balanced it out by giving copyright sellers some new rights, too. They gave them the right to terminate any copyright assignment (i.e., sale of rights) during a particular set period of time. They couldn’t do it before that time, and if they waited to long, they couldn’t do it after that time. But they had a window during which they could reclaim rights.
The reasoning on that is pretty simple — they figured that if someone like, say, Jack Kirby sold Marvel all rights to a new creation, then both sides knew that the term of sale was 56 years. After that, Marvel wouldn’t own the thing any more; it’d be in the public domain like the Wizard of Oz and Frankenstein.
So if Congress was saying that sale was actually going to be for much longer (95 years, I believe), then the buyer was getting a much better deal, and the seller should get a chance to get a better deal too. So Congress allows the creator to revert the sale, thus being able to make more money off of the extended copyright period.
Companies get something, creators get something. The law benefits both of them.
So what happened wasn’t that the Kirby family sued Marvel just because they one day decided to up and want more money. They didn’t even sue. What they did was file for termination of copyright assignment — the very thing that the law allows creators to do. They didn’t do this against the wishes of Kirby himself — Kirby had been all for doing it, ever since the law had been changed. But they had to wait a certain amount of time, and Kirby didn’t live long enough to see it happen. But he was always on board with it.
So: Kirbys didn’t sue. Kirbys didn’t decide that Marvel had suddenly become rich so let’s bleed ’em. Kirbys followed the law — a law that Marvel benefits hugely from, but which gives benefits to creators, too.
People complain that it’s unfair for creators to use the part of the law that benefits them, but rarely complain that publishers get to use the part that benefits them. But fair’s fair — observe either the whole law, or none of it.Continued below
So the Kirbys filed (note: They did not sue), as they were legally entitled to, and in accord with Jack’s wishes.
And then Marvel sued them, to stop them from reverting those copyrights.
So the lawsuits started with Marvel suing the Kirbys, not the other way around.
At that point, what they had was a legal argument: The Kirbys were saying Kirby had sold the rights to his work to Marvel, and could therefore, under the law, revert it. Marvel said Kirby was a work-for-hire employee, and therefore had never owned the rights at all, and thus couldn’t revert the rights.
That’s the crux of this case. It’s not about whether Kirby knew Marvel got all rights — both work-for-hire and an all-rights-sale would give Marvel all rights anyway. It’s about whether Kirby owned the rights and sold them, or whether he was just an employee, and Marvel owned all his ideas before they even came out of the pencil.
This is key: An all-rights sale says I own this thing and I sell all the rights to you. Hey, wanna buy a picture? I own it and have the right to sell it to you. I can sell you all publishing rights, and if you want to make a movie of it, go ahead. That’s an all-rights sale.
But a work-for-hire deal says you’re hiring me to draw that picture, which means I never own it, and am not actually selling you the rights, because you already own them. I’m just employed to make a drawing for you, but it was always your drawing, never ever my property.
The distinction between those two is crucial: An all-rights sale can be reverted, because there was a rights transfer to revert. A work-for-hire deal can’t.
But knowing which is which isn’t all that simple. If I write a POWER MAN & IRON FIST script, and show it to Marvel, and they say they want to buy it, then that’s not work-for-hire, because I created it before they saw it, and thus they can’t possibly have hired me on a WFH basis. This means that POWER MAN/IRON FIST #90 is not a work-for-hire, because that’s how that particular issue happened. Marvel and I have signed a contract that pretends otherwise, but legally it’s impossible for it to be work-for-hire.
These days, companies are careful (or try to be) about the legalities — they want contracts signed before work commences, or else it isn’t work for hire. The reason none of George Perez’s JLA/AVENGERS commissions were in the book collection is that because he did them as commissions for fans and not under a Marvel or DC contract, then they can’t be called work for hire and DC didn’t want to publish them under non-wfh terms. It’s a narrow distinction, but it’s a hugely important one.
So don’t listen to anyone who tries to tell you that IP contracts are like agreeing to walk someone’s dog, or that if you sell a pizza you can’t get royalties years later. Copyright isn’t dog-walking and it’s not pizza. It’s governed by a whole different set of laws, so all those analogies are bad ones.
There’s a legitimate argument to be made on both sides — and it’s one that’s especially hard to get real evidence on because Marvel can’t produce any paperwork from those days, there often was none, and most of the people around then are dead. Those few who aren’t, like Stan and his brother, are perhaps a bit biased, and Stan’s famous for having a terrible memory besides.
Most of this boils down to what counts as work-for-hire employment. Most measures of that, in the past, would have regarded Kirby as an independent contractor, because he worked at home, bought his own supplies, didn’t get a salary or vacation pay or health care, and that if he did work that Marvel didn’t want to publish, he didn’t get paid for it.*
*This last bit is disputed; Stan says Kirby got paid for everything, but has no paperwork to prove it and since Kirby was able to sell stuff he submitted to Marvel to other publishers without Marvel complaining about it, it would seem that both he and Marvel considered it his property, and not a work for hire that he never had rights to at all.Continued below
So Marvel’s argument is that everybody knew it was work for hire, and because Marvel assigned Kirby work and paid him whether the work was accepted or not, then that makes it work for hire. The Kirby Estate’s argument is that no, everybody didn’t know it was work for hire, and because Kirby made up stuff on his own and didn’t get paid for rejected work, he was an independent contractor making an all-rights sale, which is now revertible under the law.[The argument that “everybody knew” it was work for hire is a particularly bad one, to my mind, because the term “work for hire” wasn’t commonly used back then, and there was no practical difference between an all-rights sale and a work-for-hire deal back then anyway; it wasn’t until they changed the law so that one is revertible and the other isn’t that they gained a practical distinction. So how would anyone (much less everyone) know, back then, that there was this key distinction that didn’t actually make a lick of difference and wouldn’t until years later when Congress changed the law?][And even Marvel clearly didn’t “know” everything was work for hire, because some of their early surviving back-of-check contracts specifically say that the artist is assigning all rights to Marvel, which makes it a sale, not a work for hire. So how could “everyone know” the terms when even Marvel’s contracts had them wrong?][But never mind — it’s a bad argument, to my mind, but a good argument to some others, possibly because it’s the only one they’ve got.]
In any case, that’s the crux of the case: Employee or Freelancer?
A court decided for Marvel, and the Kirbys appealed. This is legal. This is part of the process.
An appeals court decided for Marvel, and the Kirbys appealed to the Supreme Court. Also entirely legal.
At this point, something else started to happen. Due to the publicity, other people started noticing the case, and looking at the argument and saying, “Hey, this definition of ’employee’ doesn’t make any sense!”
And various organizations started filing amicus briefs — the Writer’s Guild, the Director’s Guild, the Screen Actor’s Guild and others, including the former head of the US Patent and Trademark Office and the former US register of copyrights (who helped write the very laws this case is based on) and others. And they argued that Marvel’s definition of employee is not workable, and that if the Supreme Court upholds it, it’ll create chaos for other industries, where things that used to be classed as rights sales suddenly got redefined as work for hire. So they wanted the Supreme Court to hear the case and decide that no, the rules of work for hire don’t work that way.
And that’s where things sat until Friday, when Marvel and the Kirbys settled, on the last possible business day before the Supreme Court started discussing whether to take the case.
Based on that, it sure doesn’t look like Marvel’s throwing the Kirbys a few bucks to go away. If that’s what they wanted to do, they could have done that any time within the last few years. Whoever blinked, it was the side that had the most to lose if the case went to the Supreme Court and risked a ruling they didn’t like.
That wasn’t the Kirbys — they were already getting nothing, so the Supreme Court deciding against them wouldn’t hurt them any.
But Disney/Marvel has billions on the line. They don’t want to risk losing that. Not even with a pro-business Supreme Court likely to rule for them. Because they’re not sure the Court would rule for them. Not with a bunch of people on the other side who make IP contracts their life — including one of the guys who helped write the 1978 Copyright Law. If that guy is saying, “No, no, it doesn’t work that way,” there’s too much of a chance that the Court will listen.
So my prediction is: All the public changes you see coming out of this are going to be favorable to the Kirbys. Probably the first thing you see will be creator credits. And the family’s going to suddenly be financially secure, like their father/grandfather wanted them to be.Continued below
I have no insider info, but we’ll see what happens.
In the meantime, don’t let anyone tell you that Kirby sued Marvel (at most, the estate responded to being sued, with a counterclaim), or that copyright law is as simple as hiring a dog-walker or buying a pizza, or that the Kirbys broke a deal that Jack made — he wanted this to happen, he was aware of it from when the law changed and made it possible, and the Kirbys would have been making those reversion claims during the window the law provides, whether Marvel was wealthy or not, bought by Disney or not.
And don’t let them tell you that everyone back in 1961 knew, understood, and accepted the difference between an assignment of all rights and a work for hire deal. Even Marvel demonstrably didn’t know the difference — in part, because back then there wasn’t any practical reason to distinguish between the two.
Beyond that, the question of how to define work for hire is going to come up again — and will probably make it to the Supreme Court someday. Because other industries simply don’t do it the way the comics industry wants to say is standard, and those Hollywood guilds, plus the guy who co-wrote the law in question — those amicus briefs are still out there and will come up every time this stuff is litigated. Right now, precedent favors the publishers, but in this case they settled rather than test the question, and as it comes up again, it’ll either get ducked again or it’ll get tested.
But for now, the Kirbys are very happy with the settlement, and Marvel’s happy too, because it’s finally done with. Disney won’t be hurting, and movies and comics will roll along like they already were, the only difference being that the family of one of the creators will get some money out of it.
The only people angry about this are people who hate the thought of that, either because they identify that strongly with the publishers or because they’ve been saying for years that the Kirbys would lose, and they’re overly invested in that stance.
And I bet, for all that some want to say the Kirbys folded, that Marc Toberoff’s phone is ringing off the hook these days…
And on another facet of all this: Stan Lee was Martin Goodman’s cousin-by-marriage (his uncle, Robbie Solomon, was related to Goodman’s wife, and it was Solomon that got Stan the job), but Goodman wasn’t making sure Stan kept rights; Goodman wanted them all. Stan, however, has made very, very lucrative deals with Marvel over the years, as publisher/spokesman/promoter, and he’s very well taken care of. That won’t change.