Worrying about how much money Kirby’s heirs “deserve” from his creations is an annoying digression from the real issue.
The second most annoying people in the world are the ones who cannot wait to explain why those who exploit and steal from you are perfectly just, and why you are an ungrateful wretch for even thinking that the situation sucks.
The most annoying people in the world? The ones who acknowledge that the exploitation and theft are indeed bad, but insist that anyone who isn’t the specific victim of said exploitation, yet attempts to rectify the matter, is a charlatan who at best is hoping to get rich or famous off of someone else’s work.
I bring this up because Jack Kirby is, once again, back in the news as we learn this week, via The Hollywood Reporter, that SAG-AFTRA, the DGA and the WGA, the big three of Hollywood guilds, have filed an amicus brief in support of the Kirby Estate’s petition to have their case heard by the US Supreme Court. And this means that once again, the parade of people complaining about how greedy or lazy Kirby’s relatives are will resume.
It is of course widely known that more than any other artist, Kirby is responsible for the original look and feel of Marvel comics, and his characters, among them Silver Surfer, The Fantastic Four, and most of The Avengers, are synonymous with Marvel itself. However, thanks to the vagueness of his original contract with the publisher, his only profit from the work that now generates billions was the relative pittance he was paid for each submission. During the 70s Kirby entertained the possibility of suing for some ownership of his characters, but lacked the resources to mount a serious challenge. Instead, he decided to fight for the return of physical copies of his art that Marvel never used. He died without ever revisiting the matter.
Since Kirby’s death in 1994, Jack Kirby’s surviving family have been waging a Quixotic battle to establish ownership of comic book characters Kirby created or co-created for Marvel during the 1960s. (Which, by the by, include most of those currently earning Disney and Marvel billions in movie theaters and home video.) In 2009, the estate attempted to terminate Marvel’s copyright under provisions of the Copyright Act of 1976. Unfortunately for them, lower courts have consistently ruled that Kirby, a so-called work for hire employee, sold to Marvel what amounts to “commissioned” art, and thus never had any claim of ownership.
If it sounds cut and dry, that’s forgivable. But these decisions may in fact be enormously unfair and legally unsupportable, problems obscured by the complexity of US copyright law, and by previous court rulings with unintended, but far-reaching consequences.
Jilted By The Law Designed To Protect You
The Copyright Act of 1976 is more famous for being the first time congress extended the term of copyright considerably (but not the last!). However, because most US copyrights are held by a small number of entities, and because many of the contracts that gave them those copyrights were not entirely fair, the bill also contains a compromise designed to provide an avenue for creators of a work to be able to reclaim said works. Creators – or their heirs, beneficiaries and representatives – who meet specific criteria have the option of issuing a notice of “termination” of copyright ownership, which would revert the rights to said creator.
While direct employees of a given company are excluded from the ability to terminate copyright – the company for which they work being considered the statutory author – freelancers whose contracts did not specifically agree to forego ownership of created works, or who meet certain other conditions, have an option to revisit the situation later. A distinction was made between qualifying freelance work and contract work classified as “work for hire”, but theoretically this shouldn’t have mattered all that much. Rather than some creepy get rich quick scam, the whole fucking point is to offer creators a second chance to benefit from their creations.
Unfortunately, the situation was complicated thanks to a 1972 Second Circuit Court ruling that broadly expanded the definition of work for hire. The decision was based on the so-called “instance and expense test” as its litmus which, as we noted back in April, “holds that if a contract does not specifically secure rights for the employee, if “the motivating factor in producing the work was the employer who induced the creation,” and if said employer is able to “supervise and direct” the contractor in their work, the contract worker cannot claim the right to copyright ownership.”
How Jack Kirby Was Definitely Screwed
Let’s revisit Jack Kirby’s time with Marvel. During the 1960s, the contract Kirby worked under was vaguely written. Or, at least Marvel seems to have thought so. At the end of the decade, Marvel offered Kirby a brand new contract that seemed very aware that he might have some kind of claim to his work. The contract included the express denial of any rights to the characters he created or co-created, and required him to agree that he would never take legal action against the company. If Kirby could never have had any legal claim to the work he delivered, why then did Marvel feel the need to specify that lack of standing? For Kirby, who was already increasingly unhappy with the way Stan Lee seemed to get far more credit than he did (Stan Lee, in fairness, insists otherwise), this was the last straw. He left Marvel rather than sign the new contract. In other words, he never agreed to permanently sign over his legal rights to benefit from his work.
That would appear to put him in the category of people eligible to challenge the copyrights on his creations. And under the Copyright Act of 1976, contract workers are provided with a somewhat broad framework in which they may legally benefit from creations that generated untold wealth for other people, but not for them. People directly employed by a company, or those considered work for hire, which is supposed to mean that they are doing a job for which all expenses are covered, are exempted from this.
So what’s the problem? Given that framework, and given Kirby’s relationship with Marvel, his heirs should have standing to challenge Marvel on his behalf. Unfortunately, courts have now so widely defined the category of people who are considered ineligible to take advantage of that framework as to make the matter almost like hunting for Unicorns. That isn’t just artists, it’s everyone who does contract work. Under the definition accepted by the courts which have rejected the Kirby estate’s claim, every single freelancer willingly gives up all rights to anything they produce unless their employer expressly agrees otherwise.
However, the Kirby Estate now intends to bring a novel argument before the Supreme Court: Kirby covered his own expenses, and further “Marvel was not obligated to pay, nor paid, for Kirby submissions it did not wish to publish.” Kirby’s agreement with Marvel didn’t have him as simply a commissioned artist, in other words, and that seems self-evident. A truly commissioned employee comes with certain gives and takes which simply aren’t present for people like Jack Kirby. Thus Marvel was not the statutory author of Kirby’s work.
It’s The Principle Of The Matter
If the Supreme Court rules in favor of the Kirby estate, this would drastically narrow the definition of what falls within the “issues and expense test” and would, in essence, create two types of employees: those who are actually employed by the company itself, and thus receive the full benefits of said employment, and those who are treated as truly self-employed, and thus are allowed to negotiate their rights on even, fair grounds. It would, unambiguously, improve the lives of millions of American workers in our increasingly contract-driven labor landscape, if only because it would require full, informed consent before people sign away any benefit from their creations. And as an added bonus, would finally reverse one of the most notorious injustices in comics history. No wonder the major Hollywood guilds have joined their side.
Did Kirby’s heirs put in the hours needed to develop his unique style? Did they create his characters? Of course they didn’t. But, literally no one in favor of their case has ever claimed otherwise.
Why does it bother people so much that Kirby’s heirs are attempting to right a tremendous wrong done to Jack? The only conclusion I can draw is that it’s because Jack Kirby was an artist, and culturally, we consider the arts to be, at best, a scam. As far as people who don’t work in a creative field are concerned, being an artist means an easy life, far divorced from what ‘real’ people do. You can almost hear the grinding of teeth when people say things like “Kirby should have considered himself lucky to be working at all” in the same tones used when explaining why people who slave away at McDonald’s on subsistence wages ought to be ashamed of themselves for having ended up with that job in the first place.
It’s telling that we suddenly develop an allergy to inheritance, and to passing on our wealth to posterity only when it involves the creative arts. Sure, taxing someone’s estate is a “death tax”, vastly wealthy people have earned the right to pass on untold, unearned millions to their descendants without any financial penalty, and so-called Job Creators must never be hindered by regulations or taxes, lest the economy crash. But here is an example of someone whose labor actually has created thousands upon thousands of jobs, of someone with heirs who, under the law, are entitled to take the actions they are taking, of someone who it is impossible to deny was completely screwed by the people he enriched. And now we’re suddenly worried about the moral hazards involved with his children’s attempts to benefit from some of that wealth?
Artists are workers, just like you and just like me, and the relative coolness of their job doesn’t make them less entitled to fair treatment. And under the law itself, that includes the artist’s heirs. Sure, OK, fine, Kirby’s family didn’t actually do any of Kirby’s work. But you know what? With the possible exception of Stan Lee, whose relationship with Marvel has in fact made him rich, the same argument applies to every single person at the company that currently owns and benefits exclusively from that work.
Frankly, tut-tutting about anything other than the issues involved doesn’t make you a superior moral thinker, it makes you kind of an asshole. This case isn’t about whether or not Kirby’s kids will get rich “unfairly”. This case is about the rights of every single contract and freelancer worker in the country. You don’t have to like the plaintiffs in the case to agree that those rights are important.
If you disagree with the arguments of the case, that’s fair. Lay into them. If you think Kirby deserved to be screwed over, that’s fair too, though, damn that’s weird. But strawman arguments don’t advance any reasonable point, even if you have a whole family of strawmen. Stick to the real issues, and stop worrying about whether or not someone, somewhere, might get an expensive car you think they don’t deserve, ok?