The Kirbys and Marvel Reach a Settlement

Detail from the cover to Avengers #12 (Jan. 1965), drawn by Jack Kirby, inked by Chic Stone, colored by Stan Goldberg

Wow.

Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.

Two days ago, on Friday, September 26, Marvel Entertainment and the Kirby estate jointly released the above statement—which is the sum total of what we know about a last-minute legal settlement, reached just days before the Supreme Court of the United States was slated to consider the Marvel v. Kirby case in private conference.

This is a startling piece of news for those who care about comics and about Kirby. I could feel my own pulse racing—literally, I’m not being hyperbolic—when I first read the news.

What the settlement may mean remains a matter of guesswork and hope. If it works for the Kirby family, though, then the news is good. My hope is that the Kirby family will gain security and comfort from the settlement, and that Marvel’s official line about its history will come closer to acknowledging the truth about Kirby’s essential contribution to the company. I hope this will lead to more honest conversations about how Marvel Comics got made, that Kirby’s story will become an official part of Marvel’s story, and that his name will be forever attached to the company’s marquee properties, going forward. That’s my fervent hope.

The case has been long and complicated, dating back to copyright termination notices filed by the Kirbys in 2009, which sparked a suit from Marvel and a countersuit by the Kirbys. In July 2011 the US District Court for the Southern District of New York found in favor of Marvel, rejecting the Kirbys’ case. In August 2014 the Second Circuit Court of Appeals reaffirmed that decision, again handing down an opinion that favored Marvel. Last October the Second Circuit rejected a request to rehear the case, after which the Kirbys’ attorney Marc Toberoff submitted their cert petition to SCOTUS on March 21. Yet many observers felt that this would not be enough to counter the judgment of the Second Circuit; SCOTUS grants few cert petitions, and the Kirbys’  was widely seen as a gesture of last resort: a last-ditch, Hail Mary pass in spite of the fact that the matter had been firmly settled in Marvel’s favor. It appeared to many that the case was done and that the Kirbys had simply been beaten.

However, news of the cert petition reignited publicity over the case, and in May SCOTUS discussed the case in conference, after which the Court requested a response from Marvel. Then, in June, things started to happen: several important amici curiae briefs supporting the Kirbys’ petition brought high-profile attention to the case. One of these was filed on behalf of Kirby biographer Mark Evanier, Jack Kirby Collector publisher and editor John Morrow, and the PEN Center USA (a nonprofit representing diverse writers). In addition, the California Society of Entertainment Lawyers filed a brief.

Another brief that became very important for the press coverage of the  case was submitted by Bruce Lehman, former Assistant Secretary of Commerce and Director of the US Patent and Trademark Office, and an authority on intellectual property law. Lehman filed in collaboration with former US register of copyrights Ralph Oman, the Artists Rights Society, and the International Intellectual Property Institute; they were joined by the American Society of Illustrators, the National Cartoonists Society, the Association of American Editorial Cartoonists, and other organizations representing arts professionals—as well as scores of cartoonists and illustrators who also signed on.

The Hollywood Reporter‘s Eriq Gardner published an illuminating article on the Lehman and Evanier briefs, including the complete text of both, on June 19.

Another piece of big news was the brief filed by three film industry unions, SAG-AFTRA, the Directors Guild of America, and the Writers Guild of America. The unions’ support of the Kirbys’ petition made the case a Hollywood headliner. Clearly creators in many other fields besides comic books saw the ramifications of a case regarding freelance creators, work for hire law, the so-called “Instance and Expense” test invoked by the Second Circuit, and the termination rights of creators and estates. At issue were questions fundamental to IP and work for hire law. Again, Hollywood Reporter‘s Eriq Gardner spotlighted the legal implications in a helpful article, dated June 23.

Marvel, as SCOTUS requested, filed its brief in opposition to the cert petition on July 14. Marvel’s brief sought to discredit all the amici curiae briefs in support of the Kirbys. The Kirbys’ attorneys responded with a reply brief on July 29, setting the stage for a further SCOTUS conference that was to happen on Monday, Sept. 29 (tomorrow, as of this writing). The Case Page on the SCOTUS blog spells out the whole timeline from last December to now, and includes PDFs of the cert petition and all the briefs.

Marvel and the Kirbys’ eleventh-hour settlement—just as SCOTUS was poised to decide whether to take up the case—has been interpreted by some as an admission on Marvel’s part that the Kirbys’ case was stronger than they first allowed. It does seem reasonable to infer that Marvel was incented to settle before things got more complicated, or hazardous, for them. Yet the fact that the case never came to trial (the original 2011 decision was a summary judgment, not a trial verdict) makes it hard to know just what the calculations were on both sides. Interpreting the result as an unalloyed triumph or affirmation for either side would probably be too big a leap. Again, nothing is yet known publicly beyond the official joint statement: a single sentence.

News coverage all over the place hasn’t really added to the sum total of what we know. For the record, I consulted online articles from The Hollywood Reporter (Eriq Gardner again), Variety, the New York Times, the Wall Street Journal (a quick AP wire), the Los Angeles TimesHero Complex blog, Deadline, and many different comics news sites, notably Comics Alliance and The Comics Reporter. It was at The Beat that I first read the news.

Ryan Carey provides a somewhat astringent (glass half empty?) analysis of what the news means over at Geeky Universe. I think he’s mistaken about fan and freelancer pressure not making a difference in the case, but, still, what he has to say is bracing and worth the read.

Me, I’d like to quote what Tom Spurgeon says in The Comics Reporter article linked above:

Exploitation can be mitigated. Better outcomes can be sought. Credit can be shared. The world doesn’t end.

But also this sobering afterthought:

Still, this wasn’t easily won; this settlement came with significant personal and professional cost spread out across generations. The negative example remains.

Damn right. And yet it feels to me as if something important and good has happened.

Some will be disappointed that Marvel v. Kirby did not get to trial and did not become the supreme test case of work for hire law that it might have; some might have preferred for the Kirby family to take the case all the way to court, so as to bring greater clarity to that kind of law, perhaps even to effect a revolution in the law. Surely some of the those entities that submitted or signed on to the amici briefs wanted to see a trial outcome that would in effect rewrite that body of law. Yet I have to believe that the family and their counsel acted wisely in negotiating the settlement, and that it will help the Kirbys—my chief concern. Congratulations to them for sticking it out and getting Marvel to the bargaining table.

I look forward to hearing more about the terms of the settlement—and, I hope, to seeing Jack Kirby’s name highlighted at Marvel from here on out!

I will need to update my Marvel v. Kirby page. I’m glad about that. :)

 

 

 

RIP Stan Goldberg (1932-2014)

Stan Goldberg, Addanaccity, 2012

Stan Goldberg at the Cincinnati Comic Expo, 2012. Photo by Bearman, from George Ford’s addanaccity.com.

I’m saddened to report that veteran cartoonist and colorist Stan Goldberg has passed away. Mark Evanier has the news, here. As I reported on August 20, Mr. Goldberg suffered a stroke about two weeks back and had entered hospice care.

I met Stan only once, on the dais at the San Diego Comic-Con a couple of years back. He was a charming, affable man with deep, sweet memories of working in the comic book biz. His work is important to the history of comics, and graced many, many comic books, particularly at Archie and Marvel. I am sorry to learn of his passing, and extend my condolences to his loved ones.

RIP, Stan Goldberg, comics artist. If in my mind I see the world in Marvel Comics colors, what I see is because of him.

Kirby Day: What a Blast!

Kirby4Heroes

Two days ago, Thursday, August 28, was Kirby Day—that is, Jack Kirby’s birthday. It brought a delightful outpouring of remembrance and appreciation that spilled over into Friday. The Kirby4Heroes campaign took the occasion to raise money for The Hero Initiative—I hope they were able to raise a lot!

It’s never too late to donate to The Hero Initiative. :)

I was glad to contribute to Kirby Day in my own small way: with a posting at Acts of Geek (also run here on my blog), and by taking part in the big two-part (one, two) celebration over at Comics Alliance.

I went a little Twitter crazy on the 28th, tweeting links to online examples of top-notch Kirby scholarship, Kirby appreciation, and Kirbyana. For the record, here are the things I linked to (besides those mentioned above):

Requiem for Jack Kirby (2001)

Of course I also followed the #WakeUpAndDraw campaign on Twitter, which you see here:

(Dig this Hollywood Reporter article about #WakeUpAndDraw!)

Congratulations to Jillian Kirby and her family for leading the charge on Kirby Day! As far as I’m concerned, it’s now a genuine holiday. :)

 

Kirby’s Second Act (in honor of Kirby Day)

Kirby self-portrait from DC

Tomorrow, Thursday, August 28, would have been the 97th birthday of the great Jack Kirby. I call August 28 Kirby Day because I believe Kirby’s birthday ought to be a holiday for comics fans!

When tomorrow comes, I hope my readers will celebrate Kirby Day by helping the Kirby4Heroes campaign raise funds for The Hero Initiative. You can read more about the campaign in my post of August 11, here. Supporting the Initiative means supporting veteran comic book creators in need—a cause Kirby himself would have championed.

In honor of Kirby Day, I’m posting the following mini-essay, which I’ve adapted from two different sources. One is my reading script for a panel I co-presented with my colleague Ben Saunders at the Emerald City Comicon in Seattle in 2013. The other is the script for a video presentation I contributed to the “Echoes of ’82” panel at Heroes Con 2012 organized by my colleagues Craig Fischer and Ben Towle. I was proud and happy to do both events!

(The cover images are courtesy of the Grand Comics Database. Aptly named!)

Kirby’s Second Act

Jack Kirby changed comic books more than once. If he hadn’t drawn another page of comics after 1950, he’d still be remembered as one of the great comic book artists of the medium’s founding era. If he’d put down his pencil and disappeared from the comic book racks at about age thirty, he’d still be known as one of the giants.

But he didn’t do that, of course. In the 1960s and 70s, when Kirby himself was in his forties and fifties, he picked up the medium by the scruff and carried it along (some more). He changed comics again. In this remarkable second act of his career, Kirby gave his all: an outpouring of generosity and energy that renewed the medium, nudging the foundering industry onward yet again.

Fantastic Four 47 cover

Starting in the 60s, Kirby gave comic books an expanded canvas. He gave them scope: a sense of larger possibilities. If the superhero comics of that era moved from an episodic to an epic structure—or maybe I should say an epic and episodic structure—Kirby did more to make that happen than any other creator. The fact that superhero comics now so often deal with the apocalyptic—with the revelation, potential destruction, and re-creation of worlds, whole worlds—is testimony to his influence, to his genius for the costumed hero, yet also his impatience with the genre as he found it.

Kirby jacked up the threat level in superhero comics. He broadened the range and scale of the threats. He introduced to the genre a sense of discovery, of secret history, mythic origins, and eschatology—a sense of endings, and new beginnings—making costumed heroics an entryway into larger themes. Kirby’s superheroes addressed the grand, mind-rattling themes of epic fantasy. The fact that so many superhero comics today work at the level of the whole world or universe (or multiverse) is a testament to Kirby’s peculiar gift. Comic books drawn and plotted out by him, such as The Fantastic Four and Thor, and, later, comics entirely written and drawn by him, such as The New Gods and The Eternals, made the superhero genre a bridge between high and low fantasy: the grand and cataclysmic on the one hand, the low mimetic, comical, or absurd on the other; the cosmic and the urban; the epic and the crime story; the sublime vista and the lowly, grotesque caricature. Kirby knitted it all together, crazily, vitally, giving the superhero genre an infusion of energy that enabled it to survive and seduce further generations of fans.

Thor 154 cover

An important thing to remember about Kirby is that he was not an illustrator but a cartoonist—meaning an artist who developed stories and characters through the act of drawing. It was Kirby’s narrative drawing that made Marvel Comics work: he was Marvel’s busiest cartoonist, and its visual guide. He gave Marvel its momentum. He dreamed up and designed more concepts for the company than any other artist. Besides the comics that Kirby penciled himself—which he typically plotted, in effect co-wrote—he also laid out and plotted stories for many other artists, guiding and inspiring them. Most of Marvel’s other artists were urged to follow his lead.

In a great, mad rush between 1961 and the mid-decade, Kirby laid the foundations of what we now call the Marvel Universe. His drive and design chops provided most of the raw material for this new world. And now, half a century later—about 53 years after the launch of The Fantastic Four, about 51 after the launch of The Avengers—Marvel Entertainment is reaping the spectacular harvest of that effort. Graphically and conceptually, the foundation of Marvel’s success (in comics and movies) was laid in the basement of the Kirby family’s Long Island home between 1961 and 1966; yet, incredibly, during that period, in fact throughout the 60s, Kirby was only a freelancer for Marvel. During all the time he designed so many properties and spun so many stories for Marvel, he didn’t have a solid contract there. He didn’t have a contract at all.

The gap between what Kirby gave Marvel and what he got in return was enormous. He produced all these wild new concepts for a flat page rate; he had no salary, no security, no benefits, no assurances of long-term well-being. He just drew, drew, and drew, dreaming up new characters and ideas for Marvel several times a month for years on end. He worked unbelievably hard. When Marvel was sold to a new owner in 1968, Kirby sought a fair contract with the company that would take care of his family, but couldn’t get one. The new owners put faith in Stan Lee’s editorial savvy but did not understand Kirby’s vital role.

Of course Kirby got angry and angrier, and lost heart; he began to resent how much he’d given to the company with such slight return. He began to offer Marvel less and less, in terms of new ideas. After all, he couldn’t continue to work himself to the bone for such meager reward; the workload was draining, the situation maddening. So he left, hoping for greater recognition and editorial freedom elsewhere. He left to create the bizarre and visionary Fourth World and other comics for DC in the early 70s, where his imagination once again took flight and fans were able to see less diluted Kirby comics, comics “edited, written, and drawn” by Jack.

New_Gods_Vol_1_1_001

There’s nothing in the annals of so-called work-for-hire that can compare with Kirby’s run at Marvel in the 1960s—or for the richness of Kirby’s barnstorming second act. There’s nothing about comic book business-as-usual that can account for that miraculous outpouring. “Work-for-hire” does not begin to describe the indispensable, seminal, endlessly inspiring contribution that Kirby made to Marvel. Jack Kirby was the co-author of the Marvel Universe, and ought to be officially recognized as such. Further, Marvel Entertainment ought to establish a healthy relationship with Kirby’s estate by compensating his family and contributing to the study and appreciation of Kirby’s work. ’Nuff said!

Thinking of Stan Goldberg

Stan Goldberg photographed by Bruce Guthrie, 2012

Stan Goldberg at the 2012 CCI Kirby Tribute Panel. Photo by Bruce Guthrie.

Last Saturday Mark Evanier sadly reported that veteran cartoonist, Millie the Model and Archie artist, and Marvel Comics colorist Stan Goldberg had a stroke last week and is now in hospice care at a hospital in the Bronx. This is indeed sad news.

Stan Goldberg has had a storied career in comics, and, as colorist, has been a largely unsung hero in the history of Marvel and its marquee characters. In fact Goldberg is one of the last remaining veterans of the early 1960s Marvel, that crazy, formative period that laid the groundwork for so much of what has happened in American comics since. He colored a great many comics drawn by Jack Kirby, helping to set the look and feel of the classic Marvel books. As a cartoonist in his own right, he is a charmer, his work full of pep, good humor, and an easy, offhand grace.

I’ve only met Mr. Goldberg once, on the podium for the 2012 Kirby Tribute Panel at Comic-Con (see Bruce Guthrie’s photos here), where his recollections of Marvel in the old days were the highlight. I wish him and his family the best. I know the news is not encouraging (and I confess I’m afraid even to pass on what may already be out-of-date info), but I wanted to register my gratitude for his work here.

Please follow the link to Mark Evanier’s piece to learn more. As of last Saturday, according to Mark, cards and notes for Stan were welcome at:

Stan Goldberg
c/o Calvary Hospital
1740 Eastchester Rd.
Bronx, NY 10461