And so it begins...

http://news.yahoo.com/s/ap/20100108/ap_en_ot/us_marvel_kirby _lawsuit

At the very least, I'm sure it will "thin the herd".  Some of the claims listed in the original notice of termination certainly seemed tenuous at best. Like the claim to Spider-Man.

Either way it's going to be a landmark case. The Superman case was all about pre-existing properties and contractual transfers of copyright and has little precedence for most comics work.

But if they shut down the Kirby claims,  any claim without a specific contractual agreement to back it up will be effectively shut down. Because if Kirby can't prevail as the co-creator of the Marvel Universe ....

Though personally I think that the circumstances clearly give Marvel the preponderance of evidence in favor of their assertion of a work-for-hire situation.  However much I'd like Kirby (and now his heirs) to get profit participation in the characters he created.

Stan Lee, of course, did all his work as work-for-hire and can make no claim for any of this.

I'll be curious to see how this gets ruled.

Work-for-hire sucked big time, but it was never a secret. And since Kirby ran his own company the same way, it would be really hard to make a case that he didn't understand the rules.

"'When the (1976 Copyright) statute was changed in 1978, the whole point was to give people who may have sold their property for a cheap price the chance to take it back,' says Simon's attorney Ross Charap. 'The premise is you don't know what something's worth till the public tells you. Congress said, 'Let's do something for those who sold their goods at a rate far less than the value the public established for it over time.' Somebody who gave something up for very little 50, 60 years ago should be entitled to get some additional compensation for the great work he or she did.'

"But it's not as simple as that, because copyright law also says that a creator is not entitled to his creation if he did it as a 'work for hire' -- meaning, if Simon came up with Captain America while he was working for Marvel (which, in the 1930s, was called Timely Comics), it belongs to the company. Forever."

The principal purpose of the amendments in § 304 was to provide added benefits to authors. The . . . concept of a termination right itself, w[as] obviously intended to make the rewards for the creativity of authors more substantial. More particularly, the termination right was expressly intended to relieve authors of the consequences of ill- advised and unremunerative grants that had been made before the author had a fair opportunity to appreciate the true value of his work product. That general purpose is plainly defined in the legislative history and, indeed, is fairly inferable from the text of § 304 itself.

••

Very much doubt a change of court would have made a difference to the ruling. Wolfman's case was based on what I will politely call "faulty memory", with absolutely nothing to back it up. Marvel, on the other hand, had several witnesses and interviews with Wolfman's own words on their side.

One thing that intrigued me about the Wolfman case was that if he, who later became line editor and editor in chief of Marvel Comics did not believe that work-for-hire conditions were "automatic" at Marvel, then, as the publisher's editorial representative wouldn't that be the same as saying that no work produced or characters created during his tenure by anybody was created as work-for-hire (unless an actual contract was in place)?

Now, as editor-in-chief it would be his duty to ensure that the publisher's economic interests were taken care of. That includes making sure that the material produced was "Work-for-hire".  If he didn't believe that work-for-hire existed automatically without a contract, it would be his responsibility to establish such a contract (though I don't believe he did).

So, if -hypothetically, Wolfman had won the case and had certain "creator's rights" restored to him, any writer or artist working for Marvel with him as editor could make the same claim.  And a lot of characters or stories would be disputed.

But in that case, since it would be Wolfman's actions as an employee in failing to secure work-for-hire relationships that caused Marvel to lose intellectual property rights, couldn't Marvel have sued for him to cover their losses?

A bit rambling there. Just curious. It seemed such a bizarre case even back then, when I read about it in the Comics Journal and all. (and the transcripts vindicate JBs account of the trial, however much the "story" goes differently from, the keyboards of certain pros.)