Jack Kirby Makes Disney and Marvel Blink

Next Monday, the Supreme Court of the United States was to announce whether it would hear an appeal from the Jack Kirby estate over the estate's copyright claims.

Today, Marvel and the Kirby estate jointly announced that they have reached a settlement.

“Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.” 

I hope that more details emerge.  From my perspective, I hope that Jack Kirby receives co-creator credit on the various comics he spearheaded with Stan Lee.  Furthermore, I hope that the estate receives royalties on Kirby reprints, Kirby designed merchandise and the flood of superhero movies that are being made using characters that Kirby designed and co-created.

There are people who are constantly commenting on various news sites that Kirby's children and grandchildren had nothing to do with creating the work and so don't deserve anything.  My response is that Robert Iger and the stockholders of the Walt Disney company had nothing to do with it either, yet they're making money from it.  Why do their rights trump Kirby's family?

I congratulate the Kirby family for their persistence.  If Jack and Roz Kirby were alive, they would be very proud that their family stood up to one of the largest entertainment conglomerates on the planet and made them acknowledge the value of Jack Kirby's work. 

It's nice to get a happy ending.

Disney Buys Lucas

You can read the details everywhere, so I won't bother with them here.

I have no doubt that Wall Street and investors will see this as a good move, as all they are concerned about is money.  However, I'm concerned with artists and Disney's trend is not artist friendly.

Why not?  Well, if you happen to be somebody working in computer animation in the San Francisco bay area, there is now one less employer in the market.  Pixar and ILM have been charged with collusion, cooperating to make sure that they didn't hire employees from each other.  Now they're the same company and they can do what they like with hiring policies and pay scales.  As neither studio is union, there is no floor to pay or benefits.

The problem goes beyond that, though.  While Disney and Pixar continue to turn out some original films, Pixar has already been strong-armed into making sequels because Disney needs to pay off the purchase price.  There will be many, many more Star Wars and Marvel films to pay off those purchases as well.

That takes money and oxygen away from original projects that potentially could become as big as Star Wars or the Marvel Universe.  The company is clearly committed to milking existing intellectual property and acquiring more of it than creating new intellectual property.  And so much of what Disney is buying is from the last century. 

Robert Iger is clearly looking backwards more than forwards.

But don't forget that the Muppets started out as a small troop of puppeteers on local television, Marvel started out as a handful of creators working out of their homes, and George Lucas got turned down by everyone until Alan Ladd, Jr. took a chance (but didn't realize the value of sequel or merchandising rights or he would have kept them).  What Robert Iger doesn't see is that great creations don't come from large companies, they come from people committed to their own ideas who work out of basements, garages, warehouses and other out of the way places.  Sort of the way Walt Disney started.  Remember him?

Which means that while Iger is busy grinding out Muppets, Marvels and Star Wars, the great creations of the 21st century will be happening elsewhere.  Seek them out.

Marvel Comics: The Untold Story

Sean Howe's book Marvel Comics: The Untold Story could just as easily have been subtitled The Never Ending Story.  It's never ending as Marvel's fictional characters die, are brought back, change their powers, get replaced, get cloned, make deals with the devil, but still go on and on.  It's also never ending because the creators behind these characters leave in disgust, get fired, sue the company and sometimes die on the job.

This book is a warts-and-all telling of the people and business behind the creation of the Marvel universe, known for characters such as Spider-man, the Fantastic Four, Captain America, Iron Man, Thor, the Hulk and the X-Men.  While it is only tangentially related to animation, it shares the problems of work-for-hire and the callous way that corporations treat the very people who create the wealth.

For those who haven't followed the comics or the company, this book may be a maddening read, as the cast of fictional and real characters runs into the hundreds.  The size of the cast prevents Howe from going into depth on more than a few people, mainly the owners, editors and to a lesser extent, writers.  The artists, as usual, get short shrift.  Anyone interested in learning more about artists John Buscema, Gene Colan and similar mainstays of the company will be disappointed.  The artists are mostly bystanders while the dance of power and money goes on above their heads.

Martin Goodman was a publisher of pulp magazines, a now extinct breed of publications that focused on genre fiction with detectives, cowboys, aviators and similar action-oriented characters.  They were named pulps for the cheap wood pulp paper they were printed on.  After the success of Superman in Action Comics in the late 1930s, Goodman was convinced to add comic books to his list of publications.  Within the first few years, he published The Human Torch (created by Carl Burgos), The Sub-Mariner (created by Bill Everett) and Captain America (created by Joe Simon and Jack Kirby).  He hired his wife's cousin, 17 year old Stanley Leiber to work in the comics division and in 1941 when editor Joe Simon left (with Kirby) after Goodman screwed them out of Captain America royalties, Leiber writing under the pseudonym Stan Lee inherited the post of comics editor.

With the exception of his stint in the military during World War II, Lee continued running the division and created nothing of value until 1961.  At that point, partnered with Jack Kirby and Steve Ditko, newly successful characters appeared for about a decade.  However, both Ditko and Kirby walked away from Lee and Marvel, angry over their lack of control and compensation.  Once that happened, Lee spent the next 40 years promoting Marvel and himself but failed to create anything similarly successful.  His greatest accomplishment was keeping himself front and center as the ownership changed repeatedly, garnering millions for himself while not lifting a finger as President and Publisher of Marvel to compensate the artists beyond paying them by the page.  He even colluded with his competitor, DC Comics, to make sure that freelancers couldn't play the two companies off each other for higher pay.

It's fitting that Disney now owns Marvel as the companies have similarities in their histories.  The business people who have taken over both companies after their founders have earned far more than the creative people who built the company in the first place.  Eric Ellenbogan, a Marvel executive who lasted just seven months, walked away with a $2.5 million severance package, more money than Jack Kirby made from Marvel in his entire career.  That's hardly different than the $140 million in severance that Michael Ovitz walked away from Disney with, more money than all nine old men made over 40 years.  John Lasseter is rapidly becoming another Stan Lee, agreeing to corporate moves he formerly disdained (like sequels) and becoming a kibitzer of other people's work rather than remaining a creator himself.  For both companies, the '90s were an anomaly where artists actually shared in the money their work generated.  Marvel went bankrupt and Disney abandoned drawn animation and the artists who created it.  In both cases, the good times didn't last.

The book contains just two illustrations: an ad for the first issue of Marvel Comics and a photograph of Stan Lee and Jack Kirby in 1965.  Undoubtedly, the publisher didn't want to deal with Disney's well-known reluctance to grant the rights to images it owns (see the delay in Amid Amidi's biography of Ward Kimball).  However, Howe has a tumblr blog which includes many illustrations and documents that should have appeared.  Somehow print attracts the copyright cops while the web escapes unscathed, more proof that the copyright laws are dysfunctional in the digital age.

Anyone who aspires to work for a leading comics or animation company and thinks they'll be entering a magic kingdom where creativity reigns supreme and the fun never stops should read this book.  Large media corporations share many of Marvel's problems. Artists are routinely taken advantage of, and the more artists realize this on the way in, the less likely they are to be disappointed.

More Reasons Why Work-for-Hire Stinks

Another copyright case from the comics world, but one that has implications for people working in animation.

Writer Gary Friedrich created Marvel's version of Ghost Rider. He sued Marvel claiming that it was created and offered to them and was not done as work for hire. He lost the suit.

Previously, Friedrich commissioned artwork of the character which he sold at various comics conventions. Here's where it gets ugly:

"As per the courts instructions Friedrich has to account for any and all money that he has received, “...relating to the gross and net amount derived from Plaintiffs' sale of goods bearing the Ghost Rider image, likeness, or Marvel trademark.” This means that Friedrich has to account for every cent each and every time he sold a print at a convention or any other item to anyone, that has the Ghost Rider image or name on it, and he has to account to all of the defendants in the case, and there’s quite a few of those, including, but not limited to, Marvel Defendants, Movie Defendants, Hasbro, Inc. and Take-Two Interactive Software, Inc. If the defendants don’t like, or don't agree with, the numbers that Friedrich supplies then they can, and probably will, ask for a deposition whereby they can question him, under oath. It was no secret that Friedrich commissioned artists such as Herb Trimpe, Arthur Suydam and others to draw Ghost Rider images which were then sold as prints over the years. If you bought one thinking you were helping Gary, well, that cash will most likely end up in Marvels pockets. This amount will be factored into any damages that the defendants can claim from Friedrich, all of which will be bundled up neatly into a final judgement so the case can then proceed to the appeal stage."

So, if you work in animation and sit at conventions selling your drawings of characters that you've worked on (or not) but don't own, you are not only violating copyright, you may have to account for each and every sale if the copyright owner ever comes after you.

Cartoonist Dave Sim once said that no corporation will ever pay you enough to successfully sue them. He's certainly right in Friedrich's case. Friedrich is appealing the copyright decision, but is already broke. He owes his lawyers $100,000.

"If his appeal fails Friedrich will be a financially ruined man. He stands to lose everything he owns, and ever will own. Naturally the court doesn’t care for this, but Marvel might. With the imminent release of the second Ghost Rider movie, a franchise that draws heavily from the mythos that Friedrich helped create and has never been compensated for from Marvel (outside of payments for the comic books), Marvel is set to see another financial windfall of multiple millions of dollars. It’d be nice to think that, perhaps, someone at Marvel can see the logic that a settlement would have in this case, if only in the value of good publicity alone. As it is Marvel have done to Friedrich what DC did to Siegel, Shuster, Bill Finger and many others – ground him into the dirt, taken his creation, made more money in a week than the original creator will see in a lifetime and then keep on keeping on. Perhaps it’s time that a campaign designed to embarrass Marvel be undertaken – the sheer threat of such a campaign worked for Dave Cockrum. While Cockrum didn’t get millions, nor did Gene Colan when he approached and asked Marvel, they did get sizable amounts which, in Cockrum’s case alone, allowed him to live his remaining years out in relative comfort and ease. As it stands the people who’ll be making the most money from the Ghost Rider sequel will be people who had nothing to do with the character. As it stands, according to Box Office Mojo, the first Ghost Rider movie has grossed over $115,800,000 worldwide. The sequel should do similar amounts, meaning Marvel will clear a nice sum, again, while denying the creator a cent."

The above information is from 20th Century Danny Boy. Torsten Adair reflects on the situation as well.

And in case you've forgotten, Marvel is owned by Disney. So if you work (or have worked) for Disney, Pixar or Marvel, pay attention.

Kirby Estate Loses Copyright Battle

I am sure that this judgment will be appealed, but a Federal court has ruled that the work Jack Kirby did for Marvel was "work-for-hire." This is despite the fact that the legal term was not part of the copyright law at the time Kirby co-created characters such as The Fantastic Four, The Hulk, The Silver Surfer, Thor, etc.

Here's the Associated Press story and here is Deadline Hollywood's.

While I am sure that there is a celebration occurring in the Disney and Marvel boardrooms as a result of this ruling, it's a questionable victory. When the artists at Marvel realized that the company was not going to compensate them beyond paying them by the page, they simply stopped creating new characters. Image Comics exists because a group of artists realized they would never be fairly compensated for their work at Marvel and so they formed their own company. Marvel's treatment of their artists has been consistently bad. See this article on the recently deceased Gene Colan.

Corporate copyright is strangling creativity, not promoting it.

Kirby's case and the ongoing litigation regarding the Superman copyright are just more evidence that anyone who creates something without securing ownership is a chump. It's one thing to be hired onto an ongoing project or series to make a contribution, but quite another to originate an idea and only be paid a regular salary or a flat price.

Stop giving your ideas to corporations. Own them and control them. Or else there will be more Jack Kirbys, Jerry Siegels, Joe Shusters, and Gene Colans ad infinitum.

Why in hell should stockholders and executives who weren't born when the work was created be profiting from it when the people who created it and their heirs get nothing?

(For my earlier take on the benefits of ownership, go here. For Heidi MacDonald, a comics news columnist, on the Kirby decision go here. It's worth quoting her conclusion: "Don’t ever create characters for work for hire, no matter how much “back end” you’re promised. In this day and age there is NO excuse for giving up your creations. We may never see another Jack Kirby among us, but let his lessons stand, both the triumphs and the sadness." )

Disney and Marvel: Two Creative Failures

Disney's purchase of Marvel has generated a lot of discussion about the specifics of the business deal and the potential synergies, but what I see is one creatively bankrupt company buying another.

This is Robert Iger's second major purchase for Disney. The first was Pixar at a cost of $7 billion. Marvel went for "only" $4 billion. These purchases have defined Iger's tenure as head of Disney, but not in a way that speaks well for him. While business writers are taken with Iger's boldness, what we have here is someone who doesn't believe that his company is able to compete.

When Walt Disney moved into live action, he didn't buy an existing studio. When he went into television, he didn't buy an existing production company. When he went into distribution, he didn't buy a distribution company. When he went into theme parks, he didn't buy an amusement park. In each case, Walt Disney grew his own company and built its expertise in these areas until the company could compete, and in some cases lead, the particular industry. When Walt Disney was interested in accomplishing something, he did it from the ground up.

By contrast, when Robert Iger needs to compete in computer animated features or to capture a larger share of the young boys audience, he pulls out the corporate wallet and buys what he needs.

Consider the numbers involved. Let's say that it costs $250 million to make and market a cgi family feature. For the $7 billion Iger spent on Pixar, he could have made 28 feature films. With 28 kicks at the can, a company could try a wide variety of approaches and techniques in trying to succeed with audiences.

One of the areas that the Marvel deal is supposed to help is the Disney XD cable channel. Let's say it's going to cost $15 million to create 13 episodes of a TV series (a very generous budget for cable). For $4 billion, Disney could create 266 TV series in an attempt to attract the boy's audience.

With those kind of resources, it's appalling that the company never made a serious attempt.

And what exactly has Disney bought in buying Marvel?

While Marvel recently celebrated it's 70th anniversary, the truth is that the company was creative for approximately 10 years of that time (1939-40 and 1961-68). If you were to remove six people from Marvel's history -- Carl Burgos, Bill Everett, Joe Simon, Jack Kirby, Stan Lee and Steve Ditko -- you would remove the majority of the characters that define Marvel and the ones that are left are based on examples created by these six.

Marvel has had success recently in creating films based on its characters, but the characters are all more than 30 years old. The company's attitude towards creators guarantees that no new characters will be forthcoming. Marvel took ownership of the work of its writers and artists (even when those people were independent contractors and not employees), but the bigger blunder was to withhold profits or royalties from those creators. As the characters gained popularity and began to generate real money, the creators finally figured out that they would see none of the wealth they created, so they stopped coming up with new ideas.

Jack Kirby and Steve Ditko both left the company as a result of broken promises for compensation. Steve Gerber and Marv Wolfman both sued the company to regain ownership of Howard the Duck and Blade, respectively (and lost). In the '90s, a group of artists split from Marvel to form Image Comics precisely because they realized that they would never receive a fair deal there. Marvel's history of dealing with creators has guaranteed that the very characters that Disney covets are finite in number.

When Disney bought Pixar, they were buying a future: Pixar was still generating new films and characters. John Lasseter and Ed Catmull, two people responsible for Pixar's success, were still with the company and still attracting audiences. By contrast, buying Marvel is buying the past. The characters are already decades old and the people who created them are no longer with the company. In this sense, the purchase of Marvel is closer to the purchase of the Muppets than the purchase of Pixar.

Time will determine if the purchase of Marvel was a good one or not. However, the pattern that Iger has established doesn't speak well for Disney's future. Creators need places where they can try things free from a corporate bureaucracy and where they can share in the wealth that they create. Disney would prefer to let those things happen elsewhere and then buy them after the fact.