From: kehandle@unix.amherst.edu (KEITH EDWARD HANDLEY)
Subject: Re: Kirby, Claremont and rights
Organization: Amherst College
X-Newsreader: TIN [version 1.1 PL7]
Date: Tue, 29 Dec 1992 16:05:04 GMT

Dan Parmenter (dan@spiff.gnu.ai.mit.edu) wrote:
: Plenty of people have successfully sued
: Marvel and other companies for various creator rights.  Putting a work
: for hire contract (especially a retroactive one) on the back of checks
: doesn't seem to really hold up.  Steve Gerber successfully sued Marvel
: for creator credit on Howard The Duck, although he does not own the
: character.
I'm not sure that the Gerber case was decided in court, and the exact
results were secret, as I remember.  I'd like to hear of any more.

: Furthermore, when Kirby was attempting to get his original artwork
: back, the retroactive work-for-hire contract (reflecting 1978 changes
: in copyright law) which he was asked to sign was 4 times as long as
: the one that other Marvel artists signed in order to get *their*
: artwork back (the retroactive contract essentially stated that the
: artist had no claim on any original creations),

They did that because they had the most to lose if Kirby ever won a
case.  They could potentially lose revenue from the FF, Thor, X-Men,
Iron Man, etc...the big guys.  If the guy who first drew Man-Thing
somehow wins a case in court, then Marvel only loses those not-so-
lucrative Man-Thing royalties.

:  and to cap it off,
: Marvel only wanted to return about 1/4 or less  of the artwork that
: they had.  Unsurprisingly, the artwork that was being withheld was
: Kirby's early work, not his seventies stuff.

As Alexx@world pointed out, Marvel said that they only had that much
of the artwork.  Most of it was lost, damaged, stolen, or given away.
It certainly wouldn't have been odd if every page had been thrown
away in the mid-60s.

: indicates that Marvel was pretty scared and thought there was a good
: chance they might suddenly wake up and not be able to use Captain
: America any more 
I don't think that they thought that the chances of this happening was
too high, but the stakes were so high, and they thought that they
would be able to dictate to Kirby without problem.  Also, remember
that Kirby was vocal about this stuff and supported Gerber with
Destroyer Duck.

: This makes a shambles of the argument that Jack "knew what he was
: getting into" when he signed the contracts way back when.  If this is
: the case, why has Marvel gone to such absurd lengths to establish
: their ownership well after the fact?  The very fact that copyright
: law has changed also makes a shambles out of the "contracts signed in
: good faith" argument.  Contracts, when they work, must be signed in
: good faith by people who have a full understanding of the implications
: of that contract.  

The fact is that neither Kirby nor Marvel knew what they were getting
into.  There was no reason for either side to think that there would
ever be any future money, except maybe foreign reprints.  I doubt
that Kirby ever got a cent for those, and he probably knew they
existed.  I'm sure he thought (at the time) that his page rate was
all he could expect to get from Marvel.  Nobody was getting rich off
comic books in the early/mid 60s, and I'm sure that Kirby and Lee
thought that superheroes again would lose popularity, and they (K&L)
would move on to making the same modest amount of money, except they
would be making and selling westerns or classics or something else.
I'm sure they didn't think (although Lee wrote, as is part of his
style, optimistically) that anyone would remember the FF,etc.  except
as a nostalgic thing.
  
: It never ceases to amaze me how the comics industry, particularly
: Marvel (but DC as well and the others) takes bright, frighteningly
: talented people, and then proceeds to screw them to the point where
: they're prepared to write off the entire industry.  
:[...]
: The comics industry really seems to chew up and spit out talent.
: Bernie Krigstein (classic EC artist) - left the industry in disgust
: due to arbitrary editorial interference and lack of contemporary
: recognition for his talents - now practically worshipped.

This was before many comics were done in the "Marvel Style," and he
his groundbreaking stuff at EC was done when he challenged the writer's
full script breakdowns and put in his own.  There just wasn't much
of a place for him at the time, but he could have flourished in the
early 70s, when people thought that Steranko was doing the most
fabulous stuff...Krigstein would have showed them what fabulos stuff
was.

: Graham Ingels (another EC talent) - also left in disgust, now a
: born-again Christian allegedly.

While working at EC, he was an alcoholic.  He died recently.

: Wally Wood [...]
: Steve Ditko (co-creator and clear voice of the original Spider-Man) -
: has grown increasinggly withdrawn, solitary and bitter.  Now his
: prodigious talents are mocked by fanboys and he was last seen
: pencilling ROM The Spaceknight 

Bitter, yes, but I think that Ditko has gotten some work at Valiant.
Also, you should look for and buy his Public Service Message #2,
which is excellent, and uniquely Ditko.  He still had it when he
did this; 1990, I think.

: Jack Cole (Plastic Man creator) - suicide

But it probably wasn't the comics industry that did it to him.  By
the time he killed himself, he was mostly out of comics, and into
girlie gag panels for Playboy, etc., and doing much much better,
financially than he ever did for comics.  But he always to do a
newspaper strip (the same dream as most comic-book creators of
those days), and he had just sold one to a syndicate.  Then he killed
himself, in what will probably always be one of the great mysteries
of comics.

: Siegel and Shuster - reduced to poverty.  DC fired Siegel and Shuster
: summarily in 1948 after THEIR attempt to get some rights out of DC
: for creating Superman.

As with Marvel and Kirby, the stakes were too high for National to
give any ground on Superman.

: These are just a few.

Then you shouldn't have any trouble naming a few more.

: When there was NO
: self-publishing industry and creator-rights were a distant dream, a
: comic artist had little choice but to accept things the way they were.

But also realize that Kirby had co-created a few comics publishers
before the 60s.  He and Simon had previously decided not to accept
things the way they were, and had increased thier share of the pie.
Simon did most of the business part of it, certainly, but still
Kirby was not one of the young, naive types.

: Most were young, quite naive and had a burning desire to work in
: comics.

Those that had a burning desire to work in comics wanted newspaper
strips, not comic books.  Most worked in comics because it was all
they could do, or it got them the most money for the least work.

The key to this whole Kirby thing is that Marvel lucked out that
it was on the publisher end of things, and that it is still in
business, and it is still popular today (and that it got a talent
like Kirby to work for it).  If things had worked out like every-
one thought they would, nobody would be getting rich off this
stuff.

Do I wish that Marvel would give Kirby a pension and creator credit
a la Siegel and Schuster? -- yes, about $100,000/year, retroactive to
1982.  Would I think so if I were a stockholder in Marvel, no.  And
when Kirby dies, expect to see a lot of appreciations from Marvel
in the fanzines, and lots of tributes, and lots of reprints.  Those
will be cheap good will.  It's much more expensive while he's alive,
though, and Kirby would probably bitch (correctly) that whatever
they gave him wasn't enough...bad will.

Keith Handley   kehandley@amherst.ed