One of history’s most influential comic book artists, Jack
Kirby had a hand in creating more than 200 characters for both Marvel and DC Comics, including Captain America, the Hulk, Iron Man, the Fantastic Four, Thor, and Spider-Man.
Since Disney bought Marvel in 2009, Captain America, Thor, and Iron Man have led hugely successful movie franchises like “The Avengers,” which made more than $US1.5 billion, while licensed movie properties like 20th Century Fox’s X-Men franchise and Sony’s Spider-Man franchise are also box-office gold.
Kirby’s kids say their dad is the true owner of his characters and they are asking the Supreme Court to hear their case, which seeks to recover the copyrights for characters the now-deceased artist created for Marvel between 1958 and 1963.
“The case deals with a substantial amount of the key character franchises for which Disney paid Marvel $4.2 billion and could now may be worth twice that amount,” Marc Toberoff, a lawyer for Lisa, Neal, Susan, and Barbara Kirby recently told Business Insider. Toberoff added, “This is like the mother of all copyright cases because of its implications.”
Jack Kirby and the creation of the First Avenger
In 1940, Kirby created his first character, Captain America, along with writer-editor Joe Simon, for Timely Comics (which became Marvel Comics in the ’60s).
The first copy, which showed the Captain punching Hitler in the jaw, was a hit with one million sales, according to “Tales to Astonish: Jack Kirby, Stan Lee, and the American Comic Book Revolution.” After its success, Kirby joined Simon at Timely as its art director.
Timely paid Kirby and Simon relatively low salaries, only $US75 and $US85 a week, respectively, according to “Tales to Astonish.”
The two ended up heading over to DC Comics, where they asked for $US250 a week each along with a one-year contract.
When Simon and Kirby left Timely, Stan Lee (who would later become Marvel’s chairman and president) took over as top editor and art director after starting out there as an assistant.
Timely, now known as Atlas Comics, tried to revive Captain America with Lee as a writer; however, the comics weren’t as big of a success and the storyline was retired.
The Stan Lee And Jack Kirby Era Of Marvel
Kirby and Simon eventually went their separate ways, with Kirby doing a lot of freelance work for DC and Atlas, which eventually evolved into Marvel Comics. Soon after, Kirby started working primarily with Lee, who was in a far more powerful position this time around.
At a time when DC Comics was having success with its Justice League franchise, Atlas was looking for a similarly bankable group of heroes. Kirby and Lee collaborated on bringing the Fantastic Four to fruition.
The story featured four characters with super powers and led to future collaborations including the Hulk, Thor, and Spider-Man in that order.
Kirby also claimed to create Iron Man, saying he “drew a cover for a bulky, grey-armoured hero” and discussed it with Lee. However, when Iron Man debuted in March 1963’s “Tales of Suspense,” Kirby’s name was nowhere to be found. Stan and his brother Larry Lieber took the idea and turned the character into the millionaire Tony Stark we know today.
Today, Marvel’s site lists Kirby as both the cover artist and author alongside Lee.
Kirby’s work on Iron Man and other iconic characters paved the way for what has been referred to as the “Marvel style.” Future Marvel editors tried to replicate the way Kirby presented the characters — “angular, muscular heroes with decorative squiggles and bold lines.”
Although Kirby helped bring big-name characters to life at Marvel, he was technically a freelancer who didn’t get the same credit as Lee.
“He was very unhappy with the way he was being treated,’ comic book writer Mark Evanier said in “Tales to Astonish.” “He found that the businesspeople wouldn’t talk to him. He had this rotten deal that wasn’t even properly committed to paper. His contract had expired. It was all kind of verbal. And he felt since Marvel had been taken over that he ought to have an actual contract that spelled out everything he was promised. He said, ‘I want this,’ and nobody would talk to him. He wouldn’t get his calls returned. He went over to the executive offices and heard people say, ‘We’re all too busy to talk to you. Go back and draw The Fantastic Four.'”
It didn’t help that his former partner Joe Simon made an agreement with Marvel in 1969 on the copyright for Captain America. Simon reportedly received a settlement of $US7,500 for the rights to the character. Kirby wasn’t paid in the Simon settlement.
After this, Kirby left Marvel and headed back to DC Comics. Despite returning in 1975, he never felt that he was given due credit for his creations. He left Marvel for good in 1978 and headed to the animation industry.
A Copyright Battle That May Be Headed To The Supreme Court
The Kirbys are trying to obtain the copyrights to many of their dad’s iconic characters under a section of the Copyright Act that allows children of deceased artists like Jack Kirby to recover their parents’ copyrights for works made before 1978. However, the Copyright Act also specifies that employers own the copyright to any works their employees made for them — so-called works for hire.
The Kirby kids say the work for hire rule doesn’t apply to their dad, though. He created his comics while working as an independent contractor — not an employee. And up until 1972, America’s courts generally interpreted the Copyright Act’s work-for-hire section to apply to official employees and not contractors, the Kirbys point out in their Supreme Court petition. The Kirbys want the Supreme Court to rule that the work-for-hire provision shouldn’t apply to contractors like their father.
First, though, the high court has to decide to take the case. The Supreme Court gets thousands of petitions for certiorari like the Kirbys’ every year, but the justices did suggest they were interested in the case by taking it up for discussion at a recent conference.
The epic copyright dispute between the Kirbys and Marvel started in September 2009, when the Kirbys served Marvel with notices that they were seeking to terminate their copyrights. Marvel then sued the Kirby kids in March 2010, claiming they had no right to serve them with the termination notices because the comic book characters at issue were works for hire.
A federal judge granted Marvel summary judgment in the case, meaning it was dismissed in the company’s favour before ever even going to trial. That judge found Kirby’s characters were in fact works for hire because they “were made at Marvel’s instance and expense.”
The Kirbys appealed that decision and lost in the Second Circuit Court of Appeals, which agreed that Marvel should own the copyright for the works because they were made with Marvel in mind.
“Although Jack Kirby was a freelancer, his working relationship with Marvel between the years of 1958 and 1963 was close and continuous,” the Second Circuit wrote in an August 2013 opinion. Here’s more from the Second Circuit:
Understood as products of this overarching relationship, Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby’s creation of the works.
If the Supreme Court reverses that decision, it could be a boon for heirs of creative independent workers like Jack Kirby, who didn’t get many of the benefits of full employment when they were alive, and it could be a nightmare for the likes of Disney.
Although Toberoff didn’t break through in the similar case of Jerry Siegel’s heirs suing Warner Bros. for the rights to Superman, he has had victories or settlements for properties including “Lassie,” “Get Smart,” “The Dukes of Hazzard,” “The Wild Wild West,” and “Smallville.”
NOW WATCH: Briefing videos
Business Insider Emails & Alerts
Site highlights each day to your inbox.