July 29, 2011
Marvel Wins Summary Judgment Against Kirby Family
As has been widely reported by now, Marvel won a summary judgment against a case brought by attorney Marc Toberoff on behalf of Jack Kirby's heirs
, challenging Marvel's ownership of characters the iconic comic book artist co-created or created. The Kirby family's own motion for a summary judgment in their favor was dismissed. Toberoff says the family plans to appeal.
Although a few comics-industry observers have confessed confusion about the relative merits of this case vis-a-vis what seemed like more grounded, recent claims for return of copyright petitioned for by the families of Superman's co-creators, there remained a great deal of sympathy for the case because of its perceived ability to right a fundamental wrong of comics. Jack Kirby, without whom Marvel as we know it today would not exist, did not significantly enjoy in the fruits of his labor while living, his family does not enjoy in the fruits now that he's gone, and he was treated and his legacy continues to be treated outright shabbily in other areas (credit, original art, general reputation). The resulting reality is some random lawyer sitting on Marvel's board in 2000s probably made more in bonuses over a two-year period off of Kirby's creations than Kirby made in his lifetime. In other words, I can imagine a lot of folks are more disappointed than they are surprised by this outcome.
A few initial observations as I dig into the legal material.
First, a summary judgment is pretty much a crushing defeat no matter how you spin it, and the judge's thorough dissection of each claim in the judgment even more so. It's difficult for me to see how there's any solid ground for appeal here unless the standards for work-for-hire are changed, there's something to be chiseled at in the judge's interpretation, or there's something demonstrably false in key testimony.
Second, Stan Lee's deposition on the matter seems to have been a
key if not the
key to this outcome (probably not the
key, given the emphasis on Kirby having signed retroactive contracts stating that work done was work-for-hire). As Lee outlived Kirby, his testimony seems to have been pitted against a construction of second-hand accounts and analysis on how the Marvel Method worked. Testimony by one of the only people "in the room," at it were, is going to outweigh most counter-arguments that don't have a similar person backing them up.
Third, any analysis that counts this loss in terms of a generic sports-style setback for attorney Marc Toberoff falls into the trap of portraying the legal system as some sort of TV Show Battle Of Personalities. It's fun, but adults should know better. The Kirby family and their attorney seem to my eye to have lost on the merits of the case as the law is currently constructed according to this judge, not because the cultural force of their attorney has been diminished. The family's moral claim remains unfazed, and some sort of easy journalistic narrative for Marc Toberoff ("the guy who seems to always win on issues of intellectual property takes one on the chops") is a distant side issue.
Fourth, this case never should have been filed. It's pathetic that it had to come to this. Marvel should have used a decade's worth of mega-cash to settle honorably with the Kirby family a long, long time ago, using their current relationship with Stan Lee -- which itself had to be haggled out in court -- as a model. Marvel doesn't even match its closest rival's efforts in terms of compensating creators for use of their characters in movies. At some point, no matter how well they treat their current crop of creators, no matter how many entertaining comics they make, no matter how many weekends are won by their movies, this easily correctable series of shitty policies should matter to people.
posted 8:00 am PST
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