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[Yoc]

I guess this wont surprise very many here...

CBR link to the story-
http://tinyurl.com/mtmwbb

-Yoc

[John C]

I'm a bit disappointed in Toberoff, who really shouldn't have gone near the case.  In the Siegel case, Superman was sold to DC, meaning that Siegel (and Shuster) owned it and thus had rights to reclaim.

By contrast, Kirby's Marvel work (that seems to be in question, at any rate) looks to me exclusively like works for hire, and therefore Kirby never had any stake in the Hulk or Spider-Man.  I mean, he developed the characters in cooperation with the line's editor.  What about that says "freelance"?

I could understand Captain America (which it's been hinted that Simon was after, at one point), but that window has closed, to my knowledge, and is the only character where a claim can be made that the company doesn't own it all.

This sounds less like "we're reclaiming what's ours" than it does "Disney has deeper pockets than Marvel and  so might settle out of court."

Unless there's something spectacular we haven't been told, Toberoff could be looking at a malpractice suit when this is over.  I mean, I don't know how these "copyright reclaiming" things go, but in an infringement case, the loser is required to pay the winner's legal fees, and I'm guessing that the Kirby estate can't afford Disney's legal team.

(And I'm just going to ignore the part about naming the studios in the suit--they don't own any part of the copyright that Kirby might be said to own, so that's completely frivolous and will come back to haunt them.)

[John C]

Unrelated to what I said before, it's been brought to my attention that the Disney acquisition hasn't been completed yet.  That makes me wonder if this has been staged by somebody to prevent the sale from going through.

I don't necessarily think it''s them, but Sony risks losing a lot if Marvel is part of a much larger ecosystem, for example.  And tying Marvel up in litigation until 2014 that risks offending the fans could easily kill the deal and get Sony lower licensing costs in the long run.

Or it could just be the Kirby estate being just as greedy and stupid as the companies are accused of being.

[Yoc]

As was mentioned elsewhere this might just be the Kirby Estate trying to shame Disney into giving them something.  Rightly or wrongly depends on your point of view.  Any cases wouldn't be nearly as clear cut as the Superman one.
Sony only owns Spider-man's film rights afaik.  Both Sony and Disney have enough money to make the problem go away before it ever reached a judge.

[John C]

Actually, I see this as far cleaner than the Superman situation.  Up until certain pieces of evidence were located and submitted (like the non-Shuster version of the strip), nobody really knew what Siegel and Shuster created prior to 1938 beyond a primitive costume and name.  We all had suspicions, but there wasn't a real body of evidence to say that DC merely purchased the character rather than having it (re)developed at their request.

By contrast, Kirby worked for and with Lee, the editor-in-chief.  None of the Marvel characters seem to have existed before they were requested, so it's (what's now referred to as) a "work for hire," to which he had no rights for his heirs to reclaim.  The only exceptions would be Spider-Man, who wouldn't make a difference since Kirby's input seems to be borrowing from Joe Simon, and maybe Thor, who may be derived fully from the (lapsed) Fox version of the character.

Remember, this isn't a matter of who created what.  It's a matter of, basically, who paid for the furniture during the characters' creations.  If the character originated in the Marvel bullpen, then it was a Marvel product, because they gave Kirby a paycheck for ideas.  If it happened at Jack's house and was sold to Marvel, then it's Jack's, and he'd have a copy of the invoices he sent them for the characters.  To date, nobody has ever floated the idea that the latter happened or mentioned that kind of paperwork, so I doubt there's any evidence for it.

And yes, the Sony and Disney "deep pockets" are what I'm referring to.  It's clear that this is an attempt to whip the fans into a frenzy and get a settlement, because there's no way a judge is letting this into court.

The biggest question I have is, as I said before, why Toberoff would involve himself.  Not only does it not have any chance, but it's frivolous and can damage his and his clients' reputations (which potentially sets him up for a malpractice suit).  Either he has his hands on some miraculous paperwork or he's lost a few dozen IQ points.

[John C]

Yeah, I'm replying to myself again.  In the same thread.  But I've been giving this a little more thought.

Of all the characters, Thor stands out as an even bigger exception than the rest.  Why?  Kirby also used Thor and Mjolnir in one of the DC anthologies a couple of years before his Marvel gig.

A sufficiently clever and conversant lawyer could argue that blonde Thor from Fox (where Kirby worked) plus Kirby's mythological Thor at DC could be interpreted as Kirby "bringing" Thor to Marvel, not creating him for them.

But if they're looking for money, it's the wrong place to look, since Marvel may well turn around and say "take him," and shift to a non-Kirby design and identity for the public domain (mythological) character and life goes on for everybody except Dr. Blake.

[Yoc]

We live in interesting times.

[bchat]

I like how automatically, the assumption from the press is that the Kirby Heirs are going after the FF, Cap, Iron Man, etc.  Without seeing the 45 copyright-termination notices, everybody is just talkin' out their rear-end.  Did it never occur to anyone that maybe they could be going after Kirby's later Marvel work from the 70s [Eternals, Devil Dinosaur, 2001]?

[darkmark]

Anybody can use Thor in comic books.  It's just that if your interpretation or depiction of Thor comes too close to one published by another company, you can get whacked for it.  And I doubt you could put out a comic called THOR, either.  You'd have to call it GOD OF THUNDER or some such. 

[phabox]

Hercules is another good case in point, just look at the versions of him that have appeared in comic books over the past 70 years  !!!

-Nigel

[John C]

I like how automatically, the assumption from the press is that the Kirby Heirs are going after the FF, Cap, Iron Man, etc.  Without seeing the 45 copyright-termination notices, everybody is just talkin' out their rear-end.  Did it never occur to anyone that maybe they could be going after Kirby's later Marvel work from the 70s [Eternals, Devil Dinosaur, 2001]?

I'd say it's unlikely at best.  The timing is the most "official" tipoff.  Between now and the specified terminatiion date of 2014, there are only a handful of properties plausibly eligible for termination, and they happen to be the "Marvel core," rather than the later material.  Add in the fact that they're also naming Sony in the suit (which, again, I don't think Sony "owns" any rights to the characters, just movie distribution rights), and it narrows the field of options considerably.

There's also the aspect that those lower-tier characters don't really seem commercially viable, and getting access to those copyrights wouldn't be worth the legal fees.  Especially in a depressed industry, who would take the risk of publishing an off-brand Devil Dinosaur series?  But best not to dwell on that, I guess.

Anybody can use Thor in comic books.  It's just that if your interpretation or depiction of Thor comes too close to one published by another company, you can get whacked for it.  And I doubt you could put out a comic called THOR, either.  You'd have to call it GOD OF THUNDER or some such. 

Certainly true, which was (part of) my point.  A clever enough lawyer can pull together the pieces and make the argument that Marvel's specific superhero-Thor wasn't created on behalf of Marvel, but rather sold to them by Kirby, based on prior creations.  That is, it could be claimed that he merged his DC story with the Fox version (claiming that he had permission from Fox, whether or not he actually did--who's going to dispute it?) to form the basis of the Marvel character.

But, by similar logic, Marvel could just hand off the costume, non-mythological aspects of the character, and pseudo-Shakespearean prattle, keep the trademark and continuity, and nothing significant changes.  Heck, Marvel even already has, say, the Eric Masterson character who could be dumped into position, if need be.  Put him in the Simonson outfit, I guess, and Thor is essentially dekirbified.

[bchat]

Whoops!  I stand corrected, his later work would be ineligible at this point.

Still, I'm having a hard time taking the press at their word that the heirs are after the FF, etc, especially when nobody seems willing or able to show the actual documents in question.  It comes across as bad journalism when they can't back-up these statements with facts.  In this day-and-age, it isn't that hard to do, unless they're just plain lazy.  The fact that movie studios received copies of the notices really doesn't mean much of anything beyond the fact that they received a copy of the notices.  Did anyone think to ask The Kirby Heirs WHY they sent those notices to Sony, etc?  Probably not, because I guess it's more fun to assume stuff that makes their article more interesting to read and show-up higher in search results [you think "Fin Fang Foom" rates higher than Cap or Iron Man on anyone's list of things to search for?].  How many people would care if all the heirs were after are tales of nameless cowboys and assorted monster stories beyond fans of Kirby?

[melike]

Did Kirby ever create any characters that ended up in the public domain incidentally? (or do i totally reveal my confusion about the whole public domain thing with this question)

[phabox]

Sticking my neck out and speaking from the top of my head Mister Scarlet come's to mind although France C. Herron also had a hand in his creation.

-Nigel

[melike]

Hmmn..he does show up on the public domain superheroes wiki but wikipedia lists him as being owned by DC..i was looking for characters created by DC that are now public domian that i could use in my strip..thanks though!

[phabox]

DC/National has kept a tight reign on almost ALL their post 1938 creations so if there are any that are in the public domain I would guess it would only be due to an oversight on someones part.

-Nigel

[Ed Love]

With DC you're talking a couple of different things here. DC today is not the DC of circa 1940. National & Leading were very good for maintaining copyrights post Superman. Although Dr. Occult may very well be pd.

Mr. Scarlet was originally Fawcett and there are quite a few holes in their copyright renewals for books from the early 1940s. Some of his books may very well be public domain and some not.

The same can be said of Quality where everything pre-1950 was not renewed, but after that either DC or Arnold's widow renewed the copyrights up until the time the trademarks were transferred to DC.

Apparently, most of the Charlton stuff was not copyrighted correctly to begin with so...

And, as DC is currently doing the MLJ heroes, until the mid 40's most of their superhero stuff apparently wasn't renewed either (this is at the top of my list to personally verify on my next trip to the Library of Congress).

Keep in mind, this is all talking about copyrights and not trademarks.

Now, as far as stuff Kirby or Simon & Kirby created... there's Blue Bolt. They did some work on the Black Owl. A whole lot of covers. Possibly some Flying Fool for Hillman. Their later stuff, Simon has been pretty good about holding on to the rights or fighting for them: Fighting American, Stuntman, Lancelot Strong, the Fly.

[John C]

Regarding the notices to Sony, yes, we can infer a lot.  You don't ever send a third party legal notices as a courtesy.  You send them notices because they're named in the suit.  That, in turn, severly narrows down the characters that are of interest to Kirby's heirs:  It can only be (well, include) characters optioned for movies.

I agree regarding journalism, though.  Even in the "big leagues," it seems like everybody just repeats whatever comes off the AP or Reuters feed, and that's barely researched, either.  So when comic book journalists don't get into th details, it's hard to be surprissed...

Regarding the other thread and DC characters, it's important to remember that "characters," as such, don't get copyright protection, and that trademark does not correlate to copyright.  Which sounds like a bunch of mumbo-jumbo, but is actually pretty straightforward.

First things first, a "character" is not a standalone work.  You know how people say that you can't copyright an idea?  Characters are the ideas.  All you can copyright are fixed works, the stories in which the character appears--the story "fixes" the character, and THAT can be protected.  Later uses are derivative works of the stories.  So when someone refers to a "public domain character," they (should) mean a character whose stories have fallen into (or have been granted to) the public domain.

In turn, this means that a character can be considered to be in the public domain as long as you can find a single public domain source and ONLY derive your interpretation from traits that originate in that (or those) public domain source(s).  If you derive from a copyrighted source, though, you're breaking the law.  In a sense, that means you "need" first appearances and/or origin stories, since everything technically derives from them.

But that's not the entire story, because some companies "own characters," even when the stories have fallen into the public domain.  That's because they (generally speaking) bought the rights to use the trademarks relevant to the character (the names and likenesses) in their "trade dress" (the prominent parts of their product to identify what they're selling).

In other words, DC "owns" Mr. Scarlet, so it'd be hard to get away with filming a Mr. Scarlet movie, for example.  However, since Butler's stories are almost entirely in the public domain, you could use him as a character as long as his use isn't important to your marketing.  Basically, you're not allowed to put DC in a position where it looks to a potential customer like they're involved in or approve of your work unless that's really the case.

As to DC characters themselves (I don't consider the acquired companies to be "proper" DC characters, since they didn't start there), as mentioned, has done a pretty good job of registering for and renewing copyrights for all its books.

There are exceptions, but most people would never know or care.  Those books published exclusively by National Allied Publications (Major Nicholson-Wheeler's company) don't seem to have any copyrights, which is where the Dr. Occult reference comes from.  The  Superman comic strips were rarely copyrighted at the start, though technicallly they derive from the comic book.  I'm sure there's an occasional issue, here and there, that slipped through the cracks.  (Note that, as a result of the Fawcett appeal decision, DC seems to believe that the Superman strips were retroactively copyrighted, somehow.  It's an impossible interpretation of what Learned Hand said, but not a direction for the faint of heart, I imagine.)

But otherwise, you're not likely at all to find a DC character anybody's heard of whose stories are substantially in the public domain.  Partly, this is due to having staffers like Jack Schiff, who were avid and able pencil-pushers--and in Schiff's case, I mean that with nothing but respect, being paperwork-phobic, myself.  And partly, it's probably because many savvy editors would've been concerned about continuing a continuity when parts of it have fallen into the public domain.

As to Kirby works in the public domain?  Sure, but I'm not the person to ask, but I do know that, if you search the main site for "kirby," it does turn up a handful of books, at least.

I hope that's of some use, at least.

[Ed Love]

Good summation of the whatfors of copyright.

It will be interesting to see how the lawsuit goes and if it has any fallout concerning other characters and creators. Kirby wasn't the only one around. Just look at the characters in Agents of Atlas.

[bchat]

Can we stop calling the Copyright Termination Notices a "lawsuit", please?  The heirs aren't suing anybody [yet ... if ever], they're just taking the neccessary steps provided to them by the law to reclaim what may rightfully be theirs.

Regarding the notices to Sony, yes, we can infer a lot.

Without actually seeing a copy of the notices, I would prefer not to infer anything other than the heirs are contacting anyone who has dealings with Marvel.  IF I was going to assume anything about it, it would be that Sony, etc were getting "fair warning" not to use the "material in question" for future projects as Marvel may not own it in a few years.

[John C]

Can we stop calling the Copyright Termination Notices a "lawsuit", please?  The heirs aren't suing anybody [yet ... if ever], they're just taking the neccessary steps provided to them by the law to reclaim what may rightfully be theirs.

True.  "Action" would probably be more appropriate.  It isn't a suit until it goes before a judge, I suppose.  Though, by definition, unless Marvel unexpectedly settles, it has to go to court.

But I stand by my original assertion that Kirby had no ownership of the characters (again, with the possible exception of Thor), and thus they have nothing to REclaim.

Regarding the notices to Sony, yes, we can infer a lot.

Without actually seeing a copy of the notices, I would prefer not to infer anything other than the heirs are contacting anyone who has dealings with Marvel.  IF I was going to assume anything about it, it would be that Sony, etc were getting "fair warning" not to use the "material in question" for future projects as Marvel may not own it in a few years.

Never happens.  Legal action isn't about courtesy.  The studios aren't a party to the action, so it's not any of their business.  To the extent that it is their business, it's the responsibility of Marvel to inform them, and circumventing that would damage their case by bringing third parties in where they have no standing.

But even by your interpretation, such an announcement would clearly telegraph the properties in question without any question:  They can only be the characters currently optioned for movies.

I mean, it's well within your rights (and certainly responsible) to withhold you conclusions until all the facts have been released, but I can't think of a set of circumstances where the prevailing theory would turn out to be wrong.  Any thoughts?

Put simply, the 2009-2014 date must mean that they must be trying to lay claim to some subset of the 1961-1966 output, if I understand it correctly--including one copyright term plus the twenty year Bono extension.  Add in the fact that the movie studios receiving a copy of the notice means that you have standing in the action (for example, nobody would send a copy to DC in case they were planning a crossover), and there are forty-five (I believe you said) notices sent, and it shouldn't be too hard to determine the full list before the story breaks.

[bchat]

From my understanding, Copyrights can be reclaimed by the original owner after 56 years have passed [original term plus 1st renewal], and notices must be sent between 2-10 years before reclaimation [that's not a real word, is it?] would commence.  Since the claim is that the Copyright Terminations would begin to take effect beginning in 2014, that puts the original Copyright dates at 1958 at the earliest, clearly not any of Marvel's big-name characters as far as that date goes.  At this point, the furthest out the notices can reach would be 1963, which IS when the majority of major Marvel characters came into being.

To be clear:  I'm not saying that the heirs AREN'T going after anything major, it's just that all this talk about the FF, Iron Man, and whatnot is really premature until some more facts come to light, which nobody [bloggers and the press] seems to be in a rush to do.

And I only nit-picked the "lawsuit" phrasing because I don't want to see the uninformed reader/lurker thinking The Kirby Family are, at this point, suing Marvel for a large sum of money, which is how some people may interpret "lawsuit" ...  OR, if they do get that impression, let the source of that misinformation be the lazy bloggers and journalists who are too busy to make sure what they are saying is accurate in any way.

[John C]

We've all been wrong on the terms.  I actually looked it up, horror of horrors (an oddly non-trivial search, incidentally).  For works published prior to 1978, reclamation (so yes, it's a word, but spelled oddly)--or more properly, transfer termination--may occur fifty years after publication, with a five-year window to accomplish this (thirty-five years, for anything more recent).

So the 2009-2014 actually means copyrights on the books from 1960 (there isn't eough time for a decision on 1959) through 1964, and I assume they'll file for the 1965 books in the spring, if this action isn't thrown out immediately.

And I guess you're right that it IS also possible they're looking for later properties, because 1978 + 35 = 2013.  However, keep in mind that copyrights cover books, not characters.  Forty-five termination notices sounds like a lot, but could very well just also be four titles published in 1964.  (Either that, or each notice may cover more than one issue, which is entirely possible.)

Incidentally, I know there are a handful of professional writers here who may have freelanced as early as 1978.  If you did sell an article back then (or if family members did), it may be well worth a chat with the family lawyer to get the termination ball rolling.  Personally, I'm not a huge advocate for creators' rights in the abstract (that is, I don't think that one should be entitled to continued control over something that's been sold on the sole basis of creative input), but why shouldn't you take the opportunity to decide what's done with your work as long as the option's available?

For anybody falling into that category, this may be of some interest as a starting point:

http://creativecommons.org/weblog/entry/7163

[Yoc]

Hi Gang,
comicbookresources.com has an informative interview with intellectual property lawyer and comics fan Michael Lovitz about this case.  He helps explain some of the issues (pardon the pun) at the following link:
http://tinyurl.com/yezesf6

-Yoc

[John C]

I don't want to throw stones, since I'm just a computer guy with a passing interest in things.  However, Lovitz doesn't appear to have done his research here, which paints him in a very bad light as an expert.

Two specific points:  He has the term wrong; reclamation can happen after fifty years, not fifty-six.  Also, "Timely or Marvel or whatever the official company name was"?  A fan and expert, who knew the interview was coming, and it never occurred to him to have that bit of information on hand?  (I don't know it, either, but I'm also not passing myself off as an expert and don't have access to a database of corporate filings.)

I also disagree with his interpretation of the situation.  This is NOT about whether Jack or Stan "really" created the characters.  It's about the authority under which they were created.  That is, if the characters were created FOR Marvel, then Kirby had no copyright stake to reclaim unless it was somehow granted to him by Marvel.