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September 21, 2009

Kirby Heirs Seek Copyright Return

The Los Angeles law firm of Toberoff & Associates has sent out 45 notices of copyright termination to several companies including Marvel, Disney, Paramount, Sony, 20th Century Fox and Universal concerning characters in which the visionary comics creator Jack Kirby had a creative hand. This likely includes the bulk of the creations driving interest that led to Marvel's recent acquisition deal by Disney and the long ramp-up of high-end deals including a run of successful movies that made this deal happen. In doing so, Toberoff & Associates are said to represent the interests of Kirby's children. As everyone and their mom has no doubt mentioned by now, Toberoff & Associates is the firm representing the interests of the heirs to the creators of Superman in their ongoing litigation with Warner Brothers and DC Comics, and is a firm that specializes in this kind of matter, doing so successfully with a number of television and film properties.

If successful in pressing this series of claims, the character rights in question would return to the Kirby children, who would then be free to seek out new deals for the length of their time holding onto the copyrights, whatever that might be, after which I believe the characters would then become public domain. Characters in which Kirby had at least at hand in their creation -- if he was not solely responsible -- include nearly every popular Marvel character from the early 1960s and almost every character made into a popular film. That would mean a cascading series of characters being up for this legal action starting in 2017. Although it's worth mentioning that the original linked-to article asserts one such claim coming up in 2014.

Some initial thoughts:

* I think a big part of this being news is who's involved as opposed to simply the kind of action being pursued. The fact that aggressive litigator Toberoff & Associates is the attorney of record makes this a bigger deal because of their past successes. It also grants some sort of foundational legitimacy, that there must be something to the legal claim because they're involved. That doesn't mean this won't be called into question. In fact, I bet someone out there asserts this is a tried-in-the-media case without standing where the law firm is expecting to set up a reaction in the press more than an outcome in the courtroom -- I can't imagine that's true, but I bet someone says it. There's also something striking about the Kirby children working together as one on this, as implied, but I'm not sure I have any specific explanation as to why that hits me a certain way.

* it's unclear to me how much previous assignments of any kind will have an impact on what's being done here. I suppose that could be the gist of the whole thing, but it could also be beside the point. I'm unclear on the law and I'm unclear on the history, to be honest. My understanding of the law as person that can spell "law" is that the bulk of what's going to be in question was created well within that window of properties targeted by the changes in copyright law, but I'm unclear as to how important it is to have a history of pre-existing creation as per the details of the Siegel Family's case as that continues. As to the history, Kirby asserted at times that he never signed documents that indicated that what he'd done was work for hire, although other mainstream comics historians disagree and certainly Marvel has always moved forward with confidence in the security of their ownership contracts and a company like Disney would not enter into the kind of overarching ownership relationship with them without a similar strength of conviction in those bonds. It could be that this permutation of copyright law makes all of this moot, too. Everyone's being quiet for now, but I look forward to links on what's being said inside these corporations and a bit of unpacking of the legal ramifications.

* it will be interesting to see if they will stick to clearer lines of creation vis-a-vis Kirby -- the characters where he's credited as artist or generally acknowledged as sole or co-creator, say -- or if it will include characters which Kirby had more of an indirect hand or even arguable contribution, specifically Spider-Man. I think the fact that Sony was apparently served means that the rights pursued include some part of Spider-Man.

* I hope without much encouragement that there won't be the usual round of hissing from superhero fans castigating the family for seeking whatever new situation they feel is due them, or the even odder permutation of asserting an imaginary ideal copyright law situation in this country as a launching point to throw some of the same stones. If I had my way with copyright law via a wave of my mighty scepter, Frank Sinatra Jr. would probably lead a team of show-biz progeny turned assassins to my home, but the family members don't get the option of reshaping the landscape of applicable law when deciding how to apply for certain considerations. Anyone that types the words "whiny" or "greedy" near the name Kirby in the next few days should be ashamed of themselves.

* I can't help but think of two things that likely don't apply to this at all: Marvel's parsimony relative to DC in making payments to original creators of characters and concepts when the movies are successful, and the longstanding rumor that DC ran around shoring up its rights to many of its characters as the Siegel Family case started to loom so as not to have a repeat.

* in the end I think these characters stay on much the same path they're on -- or one like it -- because that path has been a profitable one; getting there might be a huge pain in the ass, though, enough so to potentially alter the desirability of certain deals. If deals are pursued with alacrity and verve and fairness and a desire to do the right thing this could someday be little more than a footnote in history. Toberoff & Associates have kept that kind of ideal outcome information close to the vest with the Siegels and I expect they'll play it just as close with the Kirbys.
posted 8:30 am PST | Permalink

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