Legalism, consistently applied, offers certain minimal assurances and a promise of social stability. After all, a “government of laws and not of men,” as John Adams put it back in 1780, is a bulwark against the tyranny of caprice, the unpredictability of government by fiat. This is and has been a core American principle: as Tom Paine says in Common Sense (1776), “in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” This assurance is not to be tossed away lightly.
On the other hand, legalism, blindly, bluntly applied, without sensitivity to circumstance, can pose a tyranny of its own. These days, many of us have a newly piqued sensitivity, a sense of outrage even, regarding the lack of fit between legal determinations and our moral sense of what’s right. We’ve come to understand the asymmetry of power and the distortions of justice that may result when corporate “personhood” flexes its considerable muscle in our courts, our politics, and our civic life. It isn’t cynical to point out that huge, disembodied, but well moneyed corporations enjoy tremendous advantages in matters of litigation and legal settlement. Too big to fail, indeed—and often too big to be held accountable on moral grounds.
There can be a serious disconnect between what the law maintains and what we inwardly know to be right. Work-for-hire law, the legalistic basis of freelancers’ relationships to the companies for which they create work, is a case in point. Such law, now codified in the US Copyright Act of 1976, previously defined by the Copyright Act of 1909, is complex and many-sided, but does not always speak to our sense of “credit where credit is due.” The very phrase, work for hire, carries heavy, and painful, baggage in the history of comics, where corporate rights-holders have so often exerted life-changing power over the artists and writers who created the characters and trademarks that made those rights-holders rich. The case of Marvel v. Kirby—that is, the suits and countersuits between the heirs of Jack Kirby and Marvel Entertainment, Inc., as well as its subsidiaries and of course its owner, the Walt Disney Company—is a most powerful and distressing case in point.
The decision in the case, rendered on 28 July 2011 by Judge Colleen McMahon of the United States District Court for the Southern District of New York, denies the summary judgment sought by the Kirbys against Marvel and Disney, while granting Marvel and Disney summary judgment against the Kirbys. In effect, the decision refuses the Kirbys’ argument: that Jack Kirby’s work was not work-for-hire but rather work he conceived and offered to Marvel on his own initiative, and that therefore, under the terms of the law as it now stands, the Kirbys can terminate the copyrights held by Marvel to properties that Jack Kirby designed. The Kirbys argue, in essence, that they can reclaim the rights to the characters and concepts their father created for the company. Judge McMahon’s decision, however, throws out this claim. Basically, the decision reasserts that, even though there was no written contract between Kirby and Marvel during the period when he designed most of Marvel’s famous characters, his work for the company was simply work for hire, full stop, and that the Kirbys’ counterclaim is baseless.
McMahon’s decision is carefully parsed, and takes pains to delimit the grounds of the case, stating that it
is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruit of their labor.
Rather, says McMahon, it is strictly “about whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909…” In this sense, the judge’s decision seeks to cordon off the case from the considerable controversy that surrounds it—controversy of which she is clearly aware—and to remove larger moral claims from consideration, in other words to ground the case firmly in legalism. This move, however, merely serves the purpose of reinforcing Marvel’s claim to the material in question, at the cost of nullifying the genuine concerns that prompted the Kirbys’ case in the first place. McMahon seeks to exclude as inadmissible the larger set of moral concerns argued by the Kirbys’ suit.
I don’t think those concerns can or should be ignored.
What made the McMahon decision possible is, first of all, the deposition given by Stan Lee; second, the judge’s decision, per Marvel’s request, simply to “strike” the testimonies of Mark Evanier and John Morrow, reducing their considered and expert judgments to hearsay; and, third, a gross misrepresentation of the relative workloads and contributions of Lee and his freelance artists under the so-called Marvel Method of production. While McMahon’s decision acknowledges the “greater opportunity for input” afforded to cartoonists under this method (16), it insists that Lee himself set everything in motion creatively, and it overestimates Lee’s editorial input, citing his veto power over the production process—“Lee retained the right to edit or alter their work, or to reject the pages altogether”—as evidence of his essential control over the process (16).
What is missing in all this is an understanding of what cartooning as narrative drawing accomplished for Marvel, especially in the hands of its powerhouse cartoonists, Kirby and Steve Ditko. As I relate in Hand of Fire,
[Lee’s] work came most often at the fore end (in initial consultation with the artist) and the aft end (dialoguing and captioning), leaving the middle to the artist. This all-important “middle” included, at the least, layout, pacing, staging, the working-out of transitions and minor plot points, and the choreographing of action: all the ingredients of sequential narrative drawing, all the elements of page design, of mise en page, composition, and reader orientation, of dramatic visual emphasis, tonal control, gesture, and expression.
In the case of Kirby and Ditko in the mid-sixties, the middle also included much more: at the least, the occasional creation of major characters out of whole cloth (e.g., the Silver Surfer, as we’ll see), the frequent introduction of supporting characters, the interpolation of new and wholly unexpected action sequences, and moments of invention that startled even Lee. What Kirby and Ditko provided to Lee, then, was not illustration but concepts, characterization, plot points, and full-fledged narrative drawing: storytelling via images, with recourse to simplification, typification, graphic expressionism, and all the myriad devices, the visual shorthand, of cartooning. Cartooning is storytelling. So, while the Marvel method lightened Lee’s workload, it made greater demands on the artists’ time, and so reinforced the artists’ sense that they were working on stories over which they could exert significant claims to ownership (creative if not legal).
[…] Ditko and Kirby grew into their own, […] eventually stamping their respective books with their design sensibilities, predispositions, even moral outlooks or glimmerings of same—all while Lee remained the nominal writer of the books. (93)
The essential point, as I go on to argue, is that Jack Kirby, who dreamed up so much of the Marvel Universe in the early to mid sixties, ought to be recognized as Marvel’s co-founder (98). He designed the bulk of the major Marvel characters, provided blueprints, in some cases layouts, for other Marvel artists to follow, and enriched the Marvel Universe through his plotting, which was, for him, inextricable from the act of cartooning. Kirby was Marvel’s powerhouse. In short, the legalism invoked by McMahon is inadequate to describing the unique situation that led to Marvel’s rise.
James Sturm puts the matter succinctly in his Slate article explaining why he is boycotting the forthcoming Avengers and other Marvel movies:
The matter of Stan Lee’s deposition is vexing (a partial transcription is available at Dan Best’s website). In essence, the deposition, repeating much that is already known from the official histories of Marvel, oversells Lee’s degree of input into the creation of the characters, saying that it was his job to “come up with the idea” and then explain it to the artists. However, it is known from numerous examples that the artists often came up with the ideas themselves, while Lee typically polished the results and made or ordered editorial corrections as he saw fit. Though I do not dispute Lee’s crucial editorial hand in the process of making Marvel comics, I do dispute—and Hand of Fire discusses this issue carefully—the claim that Lee consistently came up with the ideas, and that his artists, Kirby included, simply took direction from him. That very description mystifies what the Marvel Method of production was all about: artist-driven storytelling.
To the extent that Lee’s deposition once again blurs and distorts the history of how Marvel was created, I believe it does harm to comics historiography and scholarship. Though Lee is his own man in this matter, having himself successfully sued Marvel in the past, it is not surprising that his testimony reinforces the official Marvel history and rejects the Kirbys’ case, since any admission by Lee to the contrary could undermine his own accounts of his role at Marvel. Understandable or not, it is deeply regrettable.
In sum, the McMahon decision—now in the process of being appealed, as the Kirbys’ lawyer Marc Toberoff promised (see comments below)—buttresses Marvel’s official rhetoric and history. Regarding that history, the cartoonist Seth puts the matter in perspective, bluntly perhaps, but, I believe, rightly:
The corporate lie about Kirby’s role in the creation of all those characters is abhorrent. It’s a bold faced lie. Everyone knows it’s a lie. No one is fooled. Everyone lying for the company should be ashamed. Stan Lee should be ashamed. What the Marvel corporation is doing might be legal but it certainly isn’t right.
Dead on target: it might be legal but it certainly isn’t right. There is nothing in work-for-hire law that adequately accounts for the creation of Marvel Comics. Jack Kirby, and in effect his family, gave prodigally to Martin Goodman’s company, and that giving laid the foundation for the Marvel Universe. It’s shameful that the decision handed down last July hedges and obfuscates this issue under a fog of cold, morally tone-deaf legalism. If the law is king here, it is a tyrant.
Since last summer fans and commentators have parsed the legal merits of the Kirbys’ case, some with the usual careless defensiveness (that’s how capitalism works, didn’t you know?), some delicately. Seemingly reasonable arguments have been put forth supporting Marvel’s case and Judge McMahon’s interpretation. For example, Terry Hart’s Copyhype, a blog on copyright and intellectual property law, seeks to summarize and clarify the case in a way that affirms the judge’s decision, concluding that it is “on solid legal ground and consistent with previous cases.” Perhaps I’m fortunate in that I do not have to make my own decisions purely on such grounds, and can stand outside of the legalistic framework. In any case, I do not agree that the issue begins and ends with a legalistic understanding of work-for-hire law as codified in 1909 or 1976. I think it properly begins and ends with moral questions, with which McMahon’s decision manifestly fails, or rather refuses, to engage.
I support the petition authored by Bryan Munn, now circulating online, which calls for acknowledging Jack Kirby’s unique role in the foundation of Marvel and compensating his family accordingly. What the petition says, I am following:
Until such a time as Marvel can make things right with Kirby’s legacy and Kirby’s family and heirs, we will refuse to purchase any Marvel product, including comic books, movies, toys, or games. We ask Marvel, Disney, and its shareholders to act ethically and morally in this situation, just as their characters would.
In my case, I interpret this boycott to include new Marvel-branded product, including republications, repackagings, and adaptations of old material, and also product not branded “Marvel” but published by Marvel, such as the creator-owned Icon comics. I understand that there may be smart people who disagree with this stance, but I know that, to me, underscoring Kirby’s role as Marvel’s co-founder means more than any pleasure I might get from those comics, films, and other products.
There is legalism, and then there is justice.