My guess is that the Kirbys will end up with the economic right to the characters -- a share of the profits -- but not the moral right -- the right to veto various uses and licenses.
After Disney-Marvel Deal, Cartoonist's Heirs Seek to Reclaim Rights (via Making Light)The legal notices expressed an intent to regain copyrights to some creations as early as 2014, according to a statement from Toberoff & Associates, a Los Angeles firm that helped win a court ruling last year returning a share of the copyright in Superman to heirs of the character's co-creator, Jerome Siegel.
Reached by telephone on Sunday, Mr. Toberoff declined to elaborate on the statement. A spokeswoman for Marvel had no immediate comment. Disney said in a statement, "The notices involved are an attempt to terminate rights seven to 10 years from now, and involve claims that were fully considered in the acquisition." Fox, Sony, Paramount and Universal had no comment...
Sony has the film rights to Spider-Man in perpetuity, for instance, while Fox has the X-Men and the Fantastic Four. Paramount has a distribution agreement for Marvel's next few self-produced movies, including a second "Iron Man" film. Meanwhile, Hasbro has certain toy rights and Universal holds the Florida theme park rights to Spider-Man and the Incredible Hulk, among other characters.
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This is not about creators' rights. This is two different groups of people fighting over a dead man's money. The "properties" that anybody cares about are over 30 years old. Maybe they should really be public domain by now, maybe not, either way I totally don't care who wins this fight.
These articles keep mentioning Spider-Man in such a way that one might think Kirby had something to do with him. I wonder why that is...
Kirby didn't create Spider Man
they just went after anything in Marvel that is making money , why aren't they going for Kirby Creation in DC comics ? because they aren't making money
I suspect that this section of the copyright law is "little used" for the two simple reasons that:
1.) Most material has little economic worth 35 years after it has been written.
2.) Much of the rest of it is tied up in "work made for hire," agreements. Even though many of these shouldn't stand up in court, challenging them provides a significant barrier to creators exercising their termination rights under 17 USC 203.
And of course there is a difficult to untangle mix of copyright and trademark here. Because in this country there is no "in perpetuity" for copyright. But trademarks CAN last for a perpetuity so long as you're still using them. Which is why Marvel and DC will throw in an occasional appearance by little seen silver age characters on a regular basis to make sure that they continue to hold the trademarks.
How can this be about copyright? It seems to me that this has to be a trademark issue...
Saw this at B3ta - it pretty much sums up my expectations
http://www.b3ta.com/board/9674226
@#1: kirby designed the costume, or at least the initial design for the costume. i'm not sure what his opinion was in regards to "creator" rights in regards to this, but his estate has always claimed that that alone was would constitute some sort of ownership.
How's that 75 year copyright look now, Disney?
I think it is unlikely that moral rights will be an issue in this matter because US, not EU, courts are going to hear the case. The US is unique in that it does not recognize moral rights as part of copyright law, although there is some debate among scholars as to how true this continues to be.
knowing the hoops that Kirby's widow had to go through just to posthumously secure Jack's pension, I think this is to ensure that the Kirby estate receives some share of the pie.
Am I the only one who thinks the Disney/Marvel merger should be blocked under "Anti-Trust" laws? These companies are way too big and can manipulate or dominate a market. That breaks "Supply and Demand" where the price is ultimately set by the consumers. If they can set prices and block competition and then scream for a "Bailout" when their product doesn't sell that well, there's no chance and no choice. Regardless of if it is their intent or not, they are too big to be trusted.
@2: It is copyright: 17 USC 203 creates an inalienable right of the author or surviving heirs to terminate transfers of copyright between 35 and 40 years after the transfer. An author who sold or licensed copyrights gets this five-year window to take them back or change their terms.
We haven't seen much of this yet, because the law was passed in '78, so authors have only started giving notice for transfers they'd like to terminate as of 2013. Things could get interesting if more authors (artists, songwriters...) decide they have better plans for their works than their erstwhile publishers.
See http://www4.law.cornell.edu/uscode/17/203.html
--Wendy
"I was handed a chocolate bar and an M-1 rifle and told to go kill Hitler." -- Jack Kirby (American Cartoonist and Writer, 1917-1994)
But whippin' The Mouse may be a whole lot tougher...
-- MrJM
Well I feel terribly conflicted about this.
On one hand I'm totally in favour of The King's family getting as much of the gazillions of dollars that are now spinning out of his creations as they can.
On the other, how is this different than any other case of the heirs of a creator asserting control of a property forever just because they chose their ancestors wisely? Such as the people who claim rights to the "Happy Birthday" song or the endless renewals of "Tarzan" and "Mickey Mouse" copyrights? This is the sort of thing you'd expect to drive copyfighters nuts. Especially since most of the work done with these characters is post-Kirby; especially the X-men.
I suppose you could say it's the lesser of two evils given that the alternative is having all the rights in the hands of a mish-mash of corporations.
BTW - In contrast to this situation, Conde-Naste is just giving a percentage of the proceeds from reprints of "The Shadow" magazine to the heirs of Walter Gibson because it's a nice thing to do.
@#7... Completely agree. This is a tough situation regardless of where you stand on copyright and rights of creators, etc. These men signed contracts to create stories (and characters) that the company would likely retain ownership of and those companies got really rich off of them. you want to hate the companies for that, but the fact is it was legal, albiet shady.
things like estates getting involved just muddies the water even more from a "moral" POV (are they just grabbing for money?) and even harder from a legal sense: if they get the copyrights back, are they any better than marvel in regards to locking down characters? is family ownership any better than corporate ownership?
There is no moral right under U.S. copyright law. (Cue gasps and shock from the European audience.) Artists have no moral right to control the exploitation of their works once they've signed a contract. In Europe, they do. Whether or not Americans should instate a moral right provision is the subject of heated (if incessant) debate, but as of the moment, there's no such beast in America.
So, Cory, to your last sentence--there's no way the family could have gotten the moral rights to Kirby's works. The moral rights don't exist. The most the family could hope for are the economic rights.
Kirby may have had what functionally amounted to a moral right, but if so, it would have been because the copyright owners (in this case, the studio) voluntarily allowed him to make those kinds of decisions. Unless the studios are feeling generous, I doubt the Kirby estate will get anything remotely resembling a functional moral right.
Disney-Marvel is just too awkward - how about calling it DisMal for short?
You know, I would have thought that these were all "works made for hire" and that therefore the heirs and assignees of the creators would have no termination right.
While I have a certain dislike of ANYONE who is not the actual creator of a work getting the proceeds of the copyright from it I'd rather see the family than some random suit get the money, given the choice. And the copyright on these characters is still in effect.
But it brought to mind a question: what proceeds does Stan Lee make from the copyrights on these characters? He was just a skinny jewish kid with a lot of ideas when these characters were created. So he would have done this under the same contract as Kirby.
Comic book writer/editor Nat Gertler has an excellent post at his blog that might clear up some of the misconceptions people have about the Kirby/Disney-Marvel issue.
http://www.gertler.com/nat/tv/?p=1425
@15 "This is a tough situation regardless of where you stand on copyright and rights of creators, etc."
No it's not. The copyrights should have expired already.
#7 Danbanana- No, Kirby designed the costume for the Silver Spider, an unused Otto Binder pitch that later tuned into this guy. I can't imagine the estate would be lumping that one in; they have a much better case with the other characters I'd imagine. IANAL, of course.
Steve Ditko designed Spiderman.
I don't think Jack Kirby was as screwed over by Marvel and DC, as Siegel and Shuster were screwed over by DC over the creation of Superman.
I believe that in the case of Jerry Siegel's family and Superman, the family was rewarded part of the copyright of Action Comics # 1, and not Superman.
I'm not entirely bummed about Disney owning Marvel, DC is owned by Warner Brothers and this gives them a little bit of a safety net when they try a new book or character, and they can give a comic some time to find it's audience. If a Marvel book is not meeting the sales, it gets cancelled pretty quick., the backing of Disney MIGHT, change that. Or it might give us the Mighty Ducks comic series.
What amused me about the story is that if the Kirby estate succeeds in making its case, it'll do so under the extended copyright laws that were bought and paid for by the powerful Hollywood entertainment lobby. These excessively extended copyrights distort the law and cause a lot of damage, but it's profitable for a few big corporate entertainment combines to hold on to some lucrative franchises that by now should have passed into the public domain.
It's also very much in the Hollywood style to insist that whoever originally owns a franchise continues to own it forever after, no matter how little they have to do with its subsequent development. If you don't believe me, just look at the relationship between Fran Kuzui and the Buffy/Angel universe. She didn't invent it; Joss Whedon did. She just put together the financing for the original movie (and meddled with its direction), but since then she's owned a piece of everything connected with the franchise.
Hollywood's gradually been learning how to make movies out of comics, and they've finally gotten to the point where a decent movie based on a comic is something other than a fluke. That's the only reason for Disney to have paid $4 billion for Marvel. The comics industry is in bad shape. Marvel can't be profitable enough on its own to warrant a price like that.
Hollywood would purely hate to see the Kirby estate get control of all those major Marvel characters. But if the Kirbys manage to pull this off, they can thank Disney and Hollywood for making it possible.
An interesting side note here - almost every videogame is created under a work for hire agreement. What's going to happen in 30 years time, when the valuable IP stores that are the current videogame market get plundered? Will every member of the 30+ person team who created Master Chief want a piece of the Halo pie?