The comic book industry began life in the early 20th century as the province of con men who stripped artists of their creations, then moved on to the next mark. The artists who were paid virtually nothing for work on characters that are now worth billions at the movies are nearly all dead. But their heirs are beginning to speak for them through a federal copyright law that practically invites descendants to sue for ownership interests in characters whose current value could never have been imagined at the moment of creation.
Courts have already granted a share of the copyright for Superman to the heirs of a co-creator, and sided with Captain America’s creator in another copyright fight. These cases are small fry compared with the battle now being waged between Marvel and the heirs of the legendary comic artist Jack Kirby, who breathed life into such pop culture icons as the X-Men, the Incredible Hulk, Iron Man, the Fantastic Four, Spider-Man, Thor and the Silver Surfer.
Of course these court battles are about money. They also force the modern entertainment industry to reckon with the often amoral practices of the old comics workshops. And they raise deeper questions about how to credit creative works produced at a time when even the most talented artists were treated as serfs.
Marvel pioneered a new method of comic book production. It broke with the industry’s tradition of requiring artists to draw almost by rote from a pre-existing script. Instead, it gave its best creative minds wide artistic latitude.
The Marvel editor Stan Lee sometimes offered general ideas for characters, allowing the artists to run with them. Mr. Kirby plotted stories, fleshing out characters that he had dreamed up or that he had fashioned from Mr. Lee’s sometimes vague enunciations. Mr. Lee shaped the stories and supplied his wisecrack-laden dialogue. And in the end, both men could honestly think of themselves as “creators.”
But Mr. Kirby, who was known as the King of Comics, was the defining talent and the driving force at the Marvel shop. Mr. Lee’s biographers have noted that the company’s most important creations started out in Mr. Kirby’s hands before being passed on to others, who were then expected to emulate his artistic style.
Mr. Kirby’s life experiences informed the look and feel of the genre. The cinematic movement in his narratives came out of his experience as an animator. The crowded fight scenes in comics like the Fantastic Four and the X-Men are reminiscent of his boyhood days as a street fighter on the Lower East Side during the Depression.
In 2009, shortly after Disney agreed to buy Marvel for $4 billion, the Kirby heirs filed notices of copyright termination. They argue that most of Marvel’s film earnings involve Mr. Kirby’s creations — and that therefore they have a right to a share of the copyrights.
Marvel counters that Mr. Kirby’s work falls under the rubric of “work for hire” — meaning it was done under the direction, supervision and control of the company — which, if true, would invalidate the family’s claim. But that could be difficult to demonstrate at trial, given the poor record-keeping of the era and what is known about how Mr. Kirby worked.
According to court documents, Marvel’s predecessor company fired nearly all of the art staff in 1957 to save money, making Mr. Kirby an independent operator who sold his work to the publisher. If this case comes to trial, Marvel’s star witness would likely be Mr. Lee, former chairman of Marvel Comics. In his 2010 deposition, Mr. Lee seemed to suggest that Mr. Kirby was little more than a talented foot soldier who followed the whims of his boss.
Mr. Lee sang a different tune during the Marvel glory years of the 1960s, when he sometimes described Mr. Kirby as an equal in the creative process. In a 1968 interview later quoted in The Comics Journal, Mr. Lee talked about brainstorming with Mr. Kirby, who, he noted, needed “no plot at all” to produce stories: “He just about makes up the plots for these stories. All I do is a little editing. ... He’s so good at plots, I’m sure he’s a thousand times better than I.” Analyzing published articles from that period, the writer Earl Wells, in his famous 1995 essay “Once and for All, Who Was the Author of Marvel?,” said the record “yields as much evidence that Kirby was the author as it does that Lee was — much of it in Lee’s own words!”
In the years since Mr. Kirby’s death in 1994, the once lawless comics business has been transformed into an industry where creators are more fairly paid, credit is clearly apportioned and rights are meticulously spelled out in contracts. The kinds of legal confusions that have recently flared up in the comic book realm are unlikely to ever be seen, say, in the burgeoning world of online games, where corporate authorship is firmly locked down.
It is up to the courts to decide the legal questions at the heart of the Kirby copyright case. There is no doubt that the King of Comics contributed far more to Marvel — and pop culture — than he has received credit for.