Heirs Of Comic Book Artist Alert Everyone They Want Their Copyrights Back
from the Kryptonite-vs-greed dept
In August, we wrote about the latest in the long saga of the heirs of one of Superman's creators trying to regain the rights to Superman. Copyright law, among its many complexities, includes a provision for terminating the assignment of copyrights, such that the original creator can get them back over time. Getting into exactly how it works and the reasoning behind it isn't worth mentioning here. But it's created the mess with Superman, and now the lawyer who helped win that case is helping the heirs of Jack Kirby, a comic book artist who worked on a bunch of comic books, to send out 45 letters warning pretty much everyone in Hollywood that they intend to take back the copyrights on a bunch of works, including the X-Men. Of course, the earliest they can actually do this is in 2014... so why announce it now? Well, one guess is that with Disney in the process of buying Marvel Comics, the studio might not want to have to deal with the complication and may be willing to pay off the heirs now. (Update: Some lawyers have pointed out that you have to alert the copyright holder a few years in advance to terminate... so that's another reason). While some may find it amusing to see the Hollywood studios suddenly on the "wrong" side of copyright law, the whole situation is pretty ridiculous. It's nothing more than a pure money grab on the part of heirs -- people who had nothing at all to do with the creation of a work.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: comic books, copyright, jack kirby, termination
Reader Comments
Subscribe: RSS
View by: Time | Thread
http://www.bitlaw.com/copyright/license.html
and I never thought intellectual property laws were this messed up. Who the heck made up these laws? What if someone releases a book under the GNU - FDL and later decides to terminate it and many people already relied on the notion that the book would be released for free. Now every time someone buys or sells a a book, movie, or music under a creative commons clause they HAVE to worry about possible termination of copyright? This is absolute nonsense, it even destroys our contractual workarounds to our broken intellectual property system. Who came up with these stupid laws?
[ link to this | view in chronology ]
Re:
(from above link)
This logic is only slightly worse than the logic used to defend intellectual property. If I sell something and it accumulates value over time (ie: a car) I am not entitled to take it back. That's the risk I took when I sold it. Or if I sell a car and it's broken down and the person I sold it to fixed it up and now it's worth more, I am NOT allowed to suddenly take the car back. I had my opportunity to fix up the car before I sold it and to make it valuable.
[ link to this | view in chronology ]
Re: Re:
I wish I knew whether or not I am joking...
[ link to this | view in chronology ]
Re:
So actually I don't think Hollywood has much to worry about - all they can get back are the old originals.
The GPL is a license not an assignment of copyright so I don't think that would be affected.
This law also doesn't exist outside the US (although there is in the UK a provision for authors to recover the rights to books if they are out of print)
[ link to this | view in chronology ]
Re: Re:
"So actually I don't think Hollywood has much to worry about - all they can get back are the old originals."
You're missing the point. The point is if someone writes a book and releases it under the GPL license then they can revoke it under this law.
"The GPL is a license not an assignment of copyright so I don't think that would be affected."
When someone sells the copyrights to someone else that's essentially a license so the termination of the transfer would be the termination of the license. One can say that the GPL is a "transfer" of rights to those who comply with the license. but it also really depends on how a court rules but a court could easily interpret the law the way I just did being that this seems to be the correct way to interpret it.
[ link to this | view in chronology ]
Re: Re: Re:
Agreements that the assignment of the copyright is permanent (ie: the Gnu - FDL which assigns certain terms to the material) do not void the termination of transfer, so it seems very unlikely an agreement would avoid the termination of the license.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Clearly, from the interest in the comments, it **is** worth getting into.
[ link to this | view in chronology ]
No, it is not. That's like saying that selling your car is the same as leasing it. Terms and details matter in jurisprudence.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Just, wow.
>>"The purpose for this is to give the creator of the work or the creator's heirs a second chance to exploit the work in situations where the value of the work may have been significantly enhanced since the original transfer."
The rational is completely messed up, and this case illustrates it. If a work becomes more valuable after the original transfer, it probably means that the new holder added the value by marketing, promotion, or extending the work. Why should the original author or heirs be entitled to reap the extra value that others put into a product?
Does this also mean that Hollywood will stop making movies of classic comics and books? It seems like the only safe thing for them to do is to base everything on entirely new characters and storylines.
My guess is that if there is any change in the law, it will be just a provision to repeal this clause, probably attached as a rider to some larger bill. I doubt that the industry wants to open a public discussion about a complete revision of copyright law."
[ link to this | view in chronology ]
Re: Just, wow.
[ link to this | view in chronology ]
Re: Re: Just, wow.
"Exactly. The value of the characters Jack Kirby helped create was enhanced by all the wonderful artists and writers *[who with the consent of the creator via contract]* have produced such wonderful work since, without any help from Mr. Kirby or his heirs. Merely originating a good idea should not allow one to perpetually lay claim to all the *[agreed to and legally arranged]* manifestations of that idea. That's an insult *[and possibly a financial injury]* to all the people that worked hard on *[derivative works that]* the originator never thought of."
[ link to this | view in chronology ]
Re: Just, wow.
And that would be a marvelous revolution. Hollywood would have to actually be creative and original. It would be a Renaissance of movie culture.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
This is fucking insane
[ link to this | view in chronology ]
The rationale, incidentally, makes sense. It alleviates one of the complaints about the copyright system - that it compensates the wrong people. Say you write a book. You get a $500 advance plus 7% royalties, and a similar piece of any derivative works. After expenses, you realize, say, 2% of the cover price. The book becomes a massive best-seller. You make some money, the publisher makes a lot more.
Not only does the book keep producing, but for 35 years it is a huge deal. You keep making some money, but less and less as derivatives of derivatives and massive expenses dilute your royalty. Now, assuming anyone is entitled to keep pulling in cash, why would it be the publisher? That allocation seems the _most_ likely to result in unfair transfer payments with no increase in the incentive to create.
Incidentally, the notice came out now because it is required to come out between two and 10 years before the effective date of the termination. Five years is not an uncommon window. They may well have figured that there will be ugly litigation, and they want to get that started right away.
[ link to this | view in chronology ]
Re:
You should have thought about that before signing contracts with the publisher.
[ link to this | view in chronology ]
Re:
The publisher is still producing the product. If the publisher quits working, no revenue comes in for anyone. Meanwhile, you haven't made a literary contribution in 35 years (despite having a best of all time selling book)?
Remember, the publisher may take losses on lots of things. If you can figure out a way to pay writers more and still make money, you should do it. You'd revolutionize the publishing industry and be rich and the writers would be better off too.
[ link to this | view in chronology ]
Re:
No it doesn't.
Get off your lazy butt and write a new novel "From the bestselling author of Winnie-the-Pooh."
Go with a different publisher and demand a better cut because now you have proven your worth.
Letting you (or worse, your lazy spoiled heirs) get money for nothing for decades is ridiculous. Get off your butt and work like the rest of us.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
The same thing happens with employment contracts now a days, I get a form that says I cant mark anything off and that I cant work the same job with in 100 miles reguardless of how im terminated.
I have no leverage in stuff like this, im not special or well known so I dont get the time it costs to lawyer up a better aggreement (because LAWYERS MUST be in involved)
[ link to this | view in chronology ]
Re:
Sell it on Ebay or Amazon.
Yes, you're not famous, but that doesn't mean you should be able to use the publisher to become famous and then, after using it, take the value that the publisher added to your work.
This is like selling a car under the pretext, "I don't have the resources to fix it" and when the person you sold it to does fix it, demand it back.
[ link to this | view in chronology ]
Oh yes, we wouldn't want to get into the reasons why the laws are the way they are before criticizing them.
Lazy.
[ link to this | view in chronology ]
Re:
The alleged reason/intentions for a law is irrelevant, the only thing that is relevant is what the law is used for, how the law is applied, what the law does, how it's used, the effects of the law and basically the outcome. The road to "tyranny" is paved with good intentions.
I can make a law legalizing murder with the intent of reducing litigation since murder will happen without it being illegal anyways or I can make a law outlawing dihydrogen monoxide under the pretext that it's caused a lot of harm to society ( http://www.dhmo.org/facts.html ), ie: people die from accidental inhalation and such. But the outcome is not good. It doesn't matter WHY I wanted to ban dihydrogen monoxide, the reasons are absolutely irrelevant no matter what the reasons are, what we are looking for is the OUTCOME.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
intent of right to terminate transfer
The legislative history posits that section 203 is "...a provision safeguarding authors against unremunerative transfers. A provision of this sort is needed because
of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited. Section 203 reflects a practical compromise that will further the objectives of the copyright law while recognizing the problems and legitimate needs of all interests involved." House Report on Copyright Act of 1976, H.R. Rep. No. 94-1476, at 124 (1976).
[ link to this | view in chronology ]
Re: intent of right to terminate transfer
I'm an artist and while I am a staunch protector of creator rights, even I have to admit that, a character, created while working for a large company that overtly intends to take that character and "perform" it in many different manifestations and incarnations, by combining my original work with work from many collaborating artists (or heck, with input from any kind of employees or business partners) - over a long period of time... is not something I should exclusively own in perpetuity. I'm not saying that as a creative employee everthing you do is work for hire, (I don't think it shouldn't be unless you sign that kind of contract explicitly as a condition of employment - as I have done in the past) but I don't think that it is unreasonable that as the originator - as the years go by, and as my creative kernel is dilluted/greatly enhanced by the work of others that I (and my heirs) should receive a smaller and smaller return.
Did Kirby get what he should have? No. Okay, understood. That was part and parcel for the comics industry during his era (Ref: http://www.heroinitiative.org/) Do his heirs deserve something? Yes. I just hope this legal battle doesn't result in ridiculously large dollar amounts going to his heirs. The basis for the actions is correct, I think the scale is where it can get out of control.
[ link to this | view in chronology ]
Re: Re: intent of right to terminate transfer
Do his heirs deserve something? Yes.
"""
Sorry man, I was right there with you up to this point. Please explain why his heirs *deserve* anything? They contributed how?
[ link to this | view in chronology ]
Re: Re: Re: intent of right to terminate transfer
He might not be owed that much, and so his heirs might not inherit that much. In essence, I see this as no different than an instance of back pay. When someone dies between paychecks, you don't look at the heirs and go "So what did you [child of my employee] do to deserve this money?" Do you? No. You pay them the money you owed the employee unless you are a.. [self-censored my descriptor]
So okay then. The position of the family is that the company owes (owed) Kirby. I don't see a problem with that. The issue is: How much did they underpay him? $45?, $4500?, $450,000?, 45 Bazillion dollars? We don't know (and that's where the lawyers and accountants come in to work out a fair dollar amount), but I think the family has the right to assert that the company owed him more than they paid him while he was alive - and that debt is now owed to them, his heirs.
Again I only think this will be problematic if the heirs think that they deserve the value of EVERYTHING Marvel has done with those characters - because clearly they don't.
And I think Marvel / Disney understood/understands this and so will just work it out in court as a normal business expense, which is why they don't seem to be freaking out about the family's notice of intent.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
"my father built the house you live in...
Copyright law as it stands now is a complete joke, a wellfare system for the heirs of artists, no wait I mean rightsholders, and not what it used to represent: an incentive for artists to create new works.
[ link to this | view in chronology ]
President Carter
[ link to this | view in chronology ]