I wrote a lot about the copyright case between the family of Jerry Siegel and DC Comics over Superman, but I have a lot less to say about the recent ruling against Jack Kirby’s children. Read the ruling here.
From a legal perspective, nothing should have surprised anyone about either of these cases. The facts in the Siegel case make it an ideal candidate for copyright termination while the Kirby case always depended on making a convincing argument that Jack didn’t work under work for hire rules. The depositions posted at 20th Century Danny Boy a few months back were fascinating for the details they mined about how Marvel operated in the late 1950s and early 1960s. But nothing in that testimony did anything to refute the idea that Kirby was a freelancer doing work for hire.
I wish this had at least gone to trial, so that we could hear the arguments the Kirbys’ lawyer, Marc Toberoff, planned to make in this regard. But Kirby’s life and work have been pretty thoroughly documented by this point and there appears to be not even an inkling of a smoking gun document somewhere that would turn the tables.
The Kirby and Superman cases are similar in at least one way: Neither would have been necessary had the corporate owners of DC and Marvel simply stepped up to the plate and done the right thing by giving credit to and sharing even a sliver of the wealth these artists generated for them.
Comics artist Stephen Bissette has written a lengthy post at his blog urging comics fans to engage in a boycott and stop buying any Marvel products derived from Kirby’s work. He’s picked up this idea from the success of one DC fan’s efforts to ask DC creators and execs at Comic-Con why they haven’t hired more female creators or publish more female characters. It didn’t take much — she asked the questions at several panels and it got some buzz in the comics press — but it did result in a statement from Jim Lee and Dan DiDio saying they would hire more women creators. I don’t think most fans will stop buying FF, Thor, Hulk or X-Men comics on those grounds. But bad publicity helped put some pressure on Marvel during Kirby’s art return dispute with the company in the 1980s. It also helped Siegel and Shuster get a deal in the mid-1970s for an annual stipend and health benefits. Maybe it could work again.
It would be the right thing, the moral thing for Marvel to honor Kirby’s contributions with credit and a share of the immense profits it generated.
I’m also interested in this argument Bissette has linked to that questions the legal basis of corporate ownership of copyrights and the entire work for hire concept. The United States is a very friendly place for corporations, so I expect we’ll never see corporations lose their rights to own a copyright. In fact, the opposite is likely — that corporations will get more rights and extend copyrights even further beyond the limited terms called for by the Constitution.
The best lesson for comics creators to take away from all this is to create your own characters, your own comics and don’t sell them to the first publisher that offers to put out your book. Comics as an art form and as an industry needs new ideas and new books. Much of the malaise many fans feel comes from the fact that the market is so dominated by Marvel and DC characters that are, in most casts, between 50 and 75 years old. They’re great characters, but it might be time to make some new ones, or the industry and the art form risk dying off along with the audiences that are still hanging on to ideas that increasingly struggle to be relevant to the lives of readers living in the 21st century.
I’ve had more than my share of frustrating moments this week — Why, yes! I have been dealing with the health care industry. How did you guess? — nothing upset me quite as much as getting a message from the DC Comics Movies Group on Facebook that included the following bit of blood-boiling idiocy:
In saddening news, if the heirs of Siegel and Shuster have their way Superman will die in 2013 and DC will cease publication of all related Superman comics. Talk about punch to the collective American nutsuck, right?
I instantly sent a message back to the moderator, Allynd Dudnikov, explaining his claim was factually challenged in the extreme and that I was leaving the group immediately because of it.
What he’s talking about is the most-recent development in the ongoing legal proceeding between the heirs of Superman co-creator Jerry Siegel and DC Comics, which produced a minor victory for the publisher and its parent company the other day. But I continue to be amazed at the number of people who profess to be fans of Superman in particular and comic book superheroes in general who propagate this idiotic notion that Warner Bros. and DC Comics are somehow the injured party in this dispute and that the Siegels are opportunistic and greedy people out to deprive the fans of the character they’ve come to know and love.
I’ve written about this before and there are plenty of greatsites on the web that recount the facts and provide the original documents (which are fascinating reading and highly recommended.)
I’m not an attorney, but what I undstand from following all is this is that the court decided so far is that his heirs have successfully terminated effective in spring 1999 the transfer of Jerry Siegel’s half of the copyright to the Superman story published in Action Comics #1. That means DC owes the Siegels a share to be determined at trial of the money the character earned in the time since the copyright transfer was reclaimed. Similarly, the estate of Joe Shuster has an opportunity to reclaim the other half of the Action #1 copyright in 2013. Should Shuster’s estate succeed, then DC will lose the complete copyright to that original story and will have to license the rights to it back from the creators to use the elements it introduced or to reprint that story.
This most recent ruling states that when the trial to determine the amount of money owed to the Siegels, it will include only the profits earned by DC Comics, and not of Warner Bros. as a whole. The Siegels had argued that the companies are one and the same — a claim the judge rejected. That means the Siegels’ share will come out of a smaller pie, but it’s still coming.
But it doesn’t mean the end of Superman as he exists today — or will exist tomorrow. While Action #1 introduces some of the most significant elements in the Superman mythos — the orphan sent to Earth from outer space, the alter ego of newspaper reporter Clark Kent, the love interest in Lois Lane, the basic costume and powers such as strength, invulnerability and leaping tall buildings — everything that came after Action #1 is solidly work-for-hire owned lock, stock and barrel by DC Comics for a full 95 years.
And I can’t see it making sense for DC or Warner Bros. to stop putting Superman content out there because they have to pay a percentage of the character’s profits to the Siegels. A percentage of the profits is better than no profits. And neither Warner Bros. nor DC is going to go out of business because the courts say they have to pony up to the Siegels. As Harlan Ellison, a wise and smart man — as well as a terrific writer — said about one time the studio asked him to work without pay: “What is Warner Brothers, out with an eye patch and a tin cup, begging for money?”
As I’ve said before, what’s really shameful in all of this is that this conflict was, in my opinion, unnecessary. Warner Bros. got off to a good start in the mid-1970s by restoring Siegel and Shuster’s credit and establishing an annual stipend. Had they gone a bit further and given them a sum that would have been small for so large a conglomerate but lavish for Siegel and Shuster’s final years. Even just making a big deal of the pair — sending them to festivals, comics shows, putting them on TV every now and again — I think would have done a lot more to put this dispute to rest than taking a hard position that may make good legal and business sense but is morally and ethically bankrupt.
Publishers’ shabby treatment of the folks who create and give life to the comic books we love is truly the great shame of the industry. And it’s not just folks from the past, like Siegel and Shuster, Jack Kirby or Alan Moore who are the sole victims. Ask Hero by Night creator DJ Coffman how work for hire worked out for him at Platinum Studios. And as it becomes harder and harder to make money solely by publishing comics, many of the gains made in the 1970s, 1980s and 1990s by folks like Dave Sim, Peter Laird and Kevin Eastman, the Image boys and Neil Gaiman have been pushed back by publishers who need those licensing and movie option dollars to stay in business. A quick look at the indicias and copyright notices on publishers that once used their creator-friendly deals as a selling point with fans will reveal a lot of shared copyrights — and I’ll give you one guess which party has the majority share. I expect this to get worse as more and more people create content — comics and not — with no sense of the lessons learned by the likes of Siegel and Shuster and have to learn this unnecessary lesson all over again.
I have had creators tell me revised contract terms have prompted them to stop working with publishers they had long worked with and take their work to houses like Image, which along with Fantagraphics and one or two other independent publishers, are perhaps the last bastions of creator ownership in comics.
What amazes me is that so many people buy the line that Warner Bros. and DC are entitled to make as much as they can off of Superman without any kind of legal or moral obligation to the Siegels of the world. It’s some strange kind of American corporatist thinking that gives all the power and rewards to the corporate executives who exploit a work and cuts out completely the creative people elements that give a character and a story life in the first place. (Again, I’ve been dealing with the health-care industry in a relatively very minor way this past week. It’s clear and logical to me that if someone is in the position of benefiting themselves, the company they work for or their investors by denying care, then making such a decision even in the face of overwhelming evidence to the contrary is inevitable. And there are such people making that very decision at every level of the American health care system. No wonder the industry has become a black hole for money and morals.)
Given the United States is a country that, particularly of late, has sadly been more pro-business than pro-people, I’m not surprised to see the attorneys and execs for Warner Bros. acting this way. But I wish the fans of Superman, who represents an ideal of fairness above all else, were better represented in the online chatter than by this kind of remark, which exudes above all else a selfishness and short-sightedness that the Man of Steel, were he real, would hardly approve of.