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Kirby v. Disney: Wanting to Want More

In the wake of the recent ruling against the Kirby Estate what is at stake may no longer be simple creator rights, but a deep psychology entwining creator, company and fan.

It wasn't unexpected, last week's judgment in the suit brought by the Kirby estate against Marvel (now owned by Disney), but it was heartrending. Comicbook fans, when they discover their identity as comicbook fans, learn how to rally around icons pretty easily. Finding Spider-Man to be a deeper, richer character than say, Batman, is an easy game to play growing up. And it's almost just as easy to deploy that same dynamic to assay creators and companies after a trip to San Diego's International ComicCon, or any one of the dozens of conventions that now populate the calendar.

Comics people rally around their icons. No shame in this culture. The characters rallied around are powerful vehicles for transmitting the hopes and dreams and fears of the world we live in. They connect us to the past even as we build our future. By extension then, the companies and creators that gather around them are, after a fashion, stewards. So, even if Marvel had already provided documentation that Kirby had signed "work-for-hire" agreements, hope was still alive. Maybe, just maybe a judgment favoring the Kirby Family would be passed. It is after all, incredibly easy to rally around Jack Kirby.

Of course, last week's ruling favoring Disney would dash all of those hopes. It wasn't unexpected, but it was heartrending.

Jack Kirby began his career in comics after having served in the Armed Forces during World War II. In the popular imagination, he is most deeply recognized for his time working as an artist at Marvel. It was there that he sketched out the iconic baseline for so many characters that have become mainstays of the company, even subsequent to his departure.

Production Art from The Eternals #10

What would Captain America or Fantastic Four or Thor or countless others have been without Jack Kirby there at the beginning? Who is to say. Kirby's influence on the nascent Marvel Universe, which some have argued to be the more authentic Silver Age comicbook universe, is clearly evident. Heroes look like they've been culled from the sides of mountains, villains, even the human ones, physically take on the most threatening proportions. Kirby almost singlehandedly shaped the way superheroes appear, and in so doing, shaped the way we see the world through superheroes.

The court ruling brought last week identified clearly that in the case of Kirby v. Disney, the Copyright Act of 1909 applied. "We knew when we took this on that it would not be easy given the arcane and contradictory state of 'work for hire' caselaw under the 1909 Copyright Act", says attorney Marc Toberoff, legal counsel for the Kirby Estate in this matter. Marc's response depicts another colorization of the evolving scenario of Kirby v. Disney; that what is at stake here is at least as much an intellectual challenge as a compassionate one.

That intellectual challenge lies primarily with the shape of the legal capacity for creators to participate in ownership of their creations. What exactly therefore, is the role and the potential reward for the creator of an intellectual property? And what is the role and potential reward for a company that publicizes that IP?

Kirby v. Disney goes to the heart of our legal capacity to create art that endures beyond ourselves, and to the heart of our legal capacity to shape an audience that we hope to move as artists and thinkers. Arguably, what is directly at stake is not just token recognition, but recognition accrues material rewards stemming from the continued exercise of that IP. Jack Kirby, or now his estate, should at least benefit from the hyper-recognizable status IPs he helped developed have become, especially with the recent burst of Marvel movies, many fans argue. These IPs currently enjoying a renaissance at the box office include Thor, Captain America, X-Men, and farther back in time, Hulk and Fantastic Four.

Detail from the original Captain America #1 (1941)

"The deal isn't quite the same as Siegel & Schuster having created Superman from scratch and selling it on to DC," says David Wohl. David is currently Editor-In-Chief at emergent transmedia company, Radical. When he says "deal", he means "situation" rather than "business transaction", as I later clarify. David is perhaps uniquely placed to comment on the situation. He began his career working as an Assistant Editor at Marvel, moving to Image during the early '90s. It was at Image (specifically at Marc Silvestri's Top Cow studio) that David became EIC and was involved in creating Witchblade, arguably the studio's most recognizable property. Image itself is widely acknowledged as having been founded as a kind of rebuff to what had been deemed unfair creator rights practices by Marvel.

David goes on to speak about the roles of companies in publicizing IPs once they've been created. He explains that it is easier for companies themselves to own IPs. "One aspect of creator rights issues will always be recognition," David offers, "will the creators of a certain IP be publicly recognized as the creator by the company. But another aspect is profit-sharing and royalties." David continues, describing a situation where countless dozens of artists and craftspersons work to produce a film or a television show that stems from the original idea a creator might have.

The creator then, although arguably privileged, ought to have a position among these artists and craftspersons, the company view of this situation might be. Jack Kirby, as documentation evidences, was an employee of Marvel, and was employed under "work-for-hire".

But Kirby Estate attorney Marc Toberoff is clear on one point; that the 1909 Copyright Act, the Act used in last week's ruling, is "arcane and contradictory". "However," Marc goes on to say, "the 1976 Copyright Act's termination provisions at issue were specifically designed to correct the unfairness inherent in the author/publisher relationship, and there is no better example of that than Jack Kirby and Marvel."

Detail from interior page of the original Captain America #1 (1941)

What's really at stake for Marc then is something David hit on earlier--how creators can both be recognized as creators and participate as co-owners. The problem Marc has identified is not necessarily one of ownership, but one of limitation and opportunity. While the law may be limiting, what opportunities should exist for creators?

In my head, as you do in yours, I want to be able to see a way clear for Jack Kirby's claim, or at least the claim of his estate. This isn't really Jack versus Marvel, not at this point. What Neal Kirby's (Jack's son) passionate pleas have shown is a deep and abiding need to overcome the ignominy around his father's visualizations, these unique images that open the world of the Silver Age to us all.

But the closer I get to the issue, the more it begins to feel entirely too small. I'm beginning to believe that ultimately what the Kirby Estate wants is something more transformative than anything Marvel can offer. It's perhaps something that can only be offered by Marvel's parent, Disney. Perhaps it is for Marvel itself to rally around and honor Jack Kirby in a way that Disney does Walt Disney.

In my head I want a victory for Jack, even if I'm unclear what that victory would look like. But in my heart, I know I want to be able to want more. In my heart I don't want to spend any more time clinging to these icons as if nothing can ever take their place. Jack moved from Marvel to DC where he went on to create the equally moving Fourth World Saga. And if anything, that resilience is at the core of this debate. The secure knowledge that wherever Jack went, he created mythographies feels very much like the deeper lesson here.

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