Best Example of Industry Rule 4080, 2011: The Jack Kirby Lawsuit

February 3rd, 2012 by | Tags:

The Jack Kirby case broke me, in a way. This is as good a round-up as you’ll find online. You should read it, because Tom Spurgeon is very good at his job. The short version is basically that, according to the law, Jack Kirby created all those characters and drew all those pages for Marvel under a work-for-hire contract, and therefore has no stake in the ownership of the characters he co-created or created wholesale.

Reading up on this case made me realize that a significant portion of the comics industry is built on exploitation. The law agrees with Marvel, but Marvel is the company that put language on their paychecks that forced you to relinquish ownership before you could get paid. Your choice, after completing the job, was either play ball or starve, which isn’t really a choice at all, near as I can tell. They’re the company that claimed ownership over the original art their artists created, preventing them from selling that art on the secondary market to supplement their income. (I’d heard that they lost a significant amount of that original art in a flood in the ’80s, and several of my smarter friends have, but I couldn’t find corroboration online, so maybe it’s fake, I dunno.) They’re the company that stitched Steve Ditko and Jack Kirby out and penciled in “Stan Lee Presents.” Kirby might have signed a bad contract or whatever, but he was working with snakes.

I believe that Kirby deserves the ownership he was cheated out of, and his heirs deserve his cut of what he should have earned. I feel like if you do a job for me, and you help make me a success, I owe you. I owe you big, and I should do my level best to reward you for that. Maybe that’s how I was raised. But I think that’s a healthier way to do business than leaving scorched earth behind every interaction you have with your talent.

I think Marvel should have made a deal for profit-sharing or whatever a long time ago. I think that right now, Marvel has the prestige and cash to make that happen, but the law is on their side and the accountants would never allow it, no matter how much the men and women who do the actual work at Marvel might want to. Maybe that’s irony, I dunno.

This story, and the story of the Siegel & Shuster lawsuits against DC Comics/Time Warner, rubbed me the wrong way. It makes the ugliness beneath the spandex plain. It draws all of these shadows that I was comfortable ignoring into the light. It forces me to make a choice: how strong are my morals? How much do I believe in right and wrong?

I still don’t have an answer. The hardline, no compromises side of morality says that I should wash my hands of both companies behind their history. I’ve done it in minor ways. I’m not reading Action Comics because I think it’s gross that Grant Morrison didn’t live up to the picture he painted of himself that I bought into. He went from counter-culture icon speaking at Disinfo to the guy mocking Sandman fans and just saying that Siegel and Shuster signed a contract. I’m not reading any of Jonathan Hickman’s Fantastic Four or FF, either. I get the reasoning behind the little dedications to Stan & Jack in each issue, but that’s just a reminder that, hey, Marvel wouldn’t exist without this guy (or Romita or Ditko or Buscema or Lee) and they refuse to credit him with that fact. But if the comics were better, if it were the Grant Morrison who blew my mind with Flex Mentallo instead of whoever it is writing Action Comics, would I stick to the courage of my convictions?

I like the Hulk. He’s a Lee/Kirby co-creation. Jeff Parker’s Hulk is one of Marvel’s best comics, month-in, month-out. I buy it month-in, month-out. Does that make me a hypocrite? It probably does, depending on how generous you’re feeling at the moment. But at the same time… Parker and the rest of the creative team didn’t do anything wrong. Their only crime is having good ideas and being good at their job. It’s Marvel that’s the villain. Is that how I rationalize my purchases to myself?

There’s also the matter of, if Kirby is responsible for so much of Marvel’s output, and Siegel & Shuster for DC’s, then both companies are rotten from the inside out and should be shunned on that basis. The United States and its history of oppression and genocide is next on the list, I figure.

I struggle. Sometimes I come down on the side of “I buy this because I like it, and the past is the past and hopefully the people in charge aren’t complete douchebags now.” On some days, it’s the other thing. I don’t have an answer, and probably never will. I take things as they come. It’s… probably not consistent, but it is what it is. I’m still figuring out this whole “living” thing.

One thing I hate, and I mean hate with the burning fire of a thousand screaming suns, is how my fellow comics fans look at ownership. We wouldn’t have comics if not for these people, and it’s absurd that the companies and their fans are so okay with screwing these people over time and time again.

I’m trying to do better, in large part because the Kirby lawsuit opened my eyes. I’m a tremendous fan of his work and his influence on comics. It’s harder to look away after something has been made plain. “Comics will break your heart,” right?

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30 comments to “Best Example of Industry Rule 4080, 2011: The Jack Kirby Lawsuit”

  1. Everyone does or believes something hypocritical. That’s not me condoning or condemning you still buying Hulk comics. Just commenting on human nature. But at least your cognizant of it and being that aware of yourself puts y

    But, yeah, I’d just gotten used to not buying Bru’s Cap and missing out on Morrison’s Action Comics and other good comics because of that noise that went down the past summer and that had vaguely been forgotten. And then this ordeal with the Watchmen happened and I remembered why I was ashamed with so many comic fans when I kept on seeing “Well, Moore signed the contract. Why should I sympathize with him if he didn’t know what he was signing?”

    It’s so strange seeing the same community that was up in arms about the entertainment industry flexing its corporate muscle and trying to push SOPA and PIPA, yet when it has to do with the possibility of not reading some of their favorite comics corporate might all of a sudden makes right. It’s THAT hypocrisy that astounds me. That when it’s somebody else’s problem they wonder why that person doesn’t just lie down and take it, but when they’re the one being inconvenienced there is a call to arms.

    Maybe I went a little far with that analogy, but that has been stuck in my head for the past two days. If I’m being a bit extreme then I’m sure someone smarter than me will put me in my place. lol

  2. @Joe H: “But at least your cognizant of it and being that aware of yourself” points you in the right direction for making a better choice for yourself.

  3. I’m wrestling with this same stuff myself. Conveniently, I’m down to two or three DC comics, but I still read a fair chunk of Marvel books. And I have been giving some thought to dropping them all, but there are a lot of creators that I like working on them, who I want to support and, well, whose work I just want to read. (And even if I did drop the comics, I’d probably still see the movies and watch the cartoons and read Vertigo books so it’d be kind of a sloppy “boycott”…)

    I don’t think it’s necessarily hypocrisy to avoid one thing for creator-rights reasons while still reading others with the same kind of issues. I think of it more as picking your battles. It’s kind of the old “how can you complain about shoes being made in a sweatshop when you buy Apple products” thing — there is just too much crap in the world to spend your time getting outraged about everything there is to be outraged about. Or maybe I’m just hypocritical myself.

  4. I have to say the hardest part, which you also mention, is how do you support the writers and artists you love right now if you don’t buy their works? Many of them don’t do a ton of stuff outside the Big Two so it is near impossible!

    And going about changing the business practices of these companies is pretty hard when you can’t hit them where it hurts, their wallets.

  5. I don’t know if boycotting the big two is the best policy either. It probably hurts the writers and artists more than the company, if anything, since both DC and Marvel have big corporate engines to back them up but the creators only have what they make off the books. But you’ve also got to keep telling the companies that what happened was wrong, and that refusing to do anything about it now is still wrong.

    Pretty soon it’ll be too late entirely and everyone they ripped off will be dead so I guess it’ll just be a sad moot point after that.

  6. THe result of the Kirby trial changed the way I purchased comics too. Essentially, I cut out all Marvel comics focused on Kirby creations (unfortunately that included Parker’s Hulk, but still buying Thunderbolts).

    Here is a good link covering the Kirby original art controversy:


    and in the comments on this article is the “flood story”, though perhaps not entirely reliable:


  7. I have slowly cut my comics down to Image and Dark Horse in singles and other esoteric things in trade. It is working out because I can usually get everything I want genre wise from those two companies and I never really had a draw in any of the characters from Marvel/DC.

    But then they put out nice Hardcover collections and my resolve becomes shakier.

    It is hard, depressing and kinda sad that I don’t want to support creators who I enjoy now for actions people did half a century ago but I don’t know what else to do….

  8. I’ve been slowly dropping corporate comics from my pull list over the past year or so and replacing them with creator-owned stuff where I can, but I think next time I go into the shop I’m just going to finally just cut them out entirely. It’s definitely going to suck not reading Thunderbolts or Daredevil anymore, because I do agree that Parker and Waid and their art crews are doing amazing jobs, but it absolutley is hypocritical to keep buying those titles if you’re going to complain about how Marvel & DC continue to profit off their exploitation of Kirby et al.
    Besides, this will free up some cash so I can pick up the Bucko book when that comes out, Incorruptable and other stuff, so I will still be able to support creators I like, and I will be happy to give them more of my money if they do more independent projects in the future. It really sucks that Marvel & DC are where the money in the industry is at for a lot of creators, and there are still great stories coming out of those places, but you need to be the change you want to see and all that.

  9. Very nicely said.

    I’m really struggling with the same thoughts at the moment. I can rationalize my buying habits as much as I like but in the end, it’s because I like the stories being told, and not because of any ethical argument that I keep buying Big Two comics.

    I try to avoid comics that have direct causal links to exploitation (like the prequels to Watchmen), but that argument is still riddled with gaps (like buying collections of old Marvel or DC Kirby stuff), so the hypocrisy is unavoidable.

    The more I think about it, I’m considering the Fiat Justitia Ruat Caelum approach and just stop buying Big Two comics all together, despite the fact that it’ll hurt creators that have nothing to do with the business side of the industry.

    The fan reaction to the Kirby lawsuits and the Watchmen prequels is what makes me hate the comics industry most of all though. It makes me question what kind of people I identify as my peers. You’d think people who loved morality tales so much would have internalized just a little bit of it.

  10. @Christian Otholm: I think DC still actually pays royaties to the Kirby family for his DC work.

  11. @Christian Otholm:

    Geeks in general have made me more bitter about comics, video games, and movies precisely because of their fealty to corporations who merely own the things they enjoyed as kids, and opposition to the people and ideals that made them enjoyable to begin with. It’s quite a thing to see people that I once identified myself with reveal themselves for what they really are. Makes me question who I am and why I like(d) the things I do.

  12. @RS David:

    Really? That’s very nice to hear.

    All these shady business deals makes me wonder what would happen, if the comics industry got a functioning union.

  13. Man, it’s really hard to hear stuff like this. and it isn’t like I haven’t heard this stuff before, but every time it comes up it really stings.

  14. Piracy gentlemen. We wholesale pirate everything contaminated with exploitation, get to enjoy what we read without aiding exploitation. As for the Jeff Parker example, I know dude’s trying to make his money and he is quality but he’s trying to make his money off of the creation of someone who got played. As well-meaning as it is, he too is part of the problem. I love Superman but Superman wouldn’t be down with Morrison’s corporate bottom line playing Siegel and Schuster. Neither am I.

  15. Yeah, I struggle with this stuff too. I believe unequivocally in creator’s rights. However, I still continue to buy Marvel and DC product that I like and support creators who should be supported, but utilize IP that has been acquired unfairly.

    Why? Well, part of the problem is that the Big 2 think that the people who care about the issues being discussed are not their customers, and thus they can be safely ignored.

    If you asked the decision makers about it and by some miracle got them to be honest, the response would probably be “I don’t care if some latte sipping, Fantagraphics reading, webcomics loving, amateur blog critics and pundits think our ethics stink!” You guys are constantly right but nothing is going to make a corporation listen to people who they believe don’t give them money.

    I think the key to change is to undo the brainwashing that @Joe H alludes to above. If your average crossover reader cared and raised their voices about it, things might happen. I have no idea how to accomplish this. The mind melting is pretty ingrained.

    In the meantime, we can continue to support creator owned books and donate to the sadly necessary charity funds set up to help creators in their time of need.

  16. Well, I can tell you that what finally pushed me over the edge was the realization that me feeling like a hypocrite was all Marvel and DC’s fault…that if they’d handled their business in a more ethical way I wouldn’t have to feel that way. In other words, I realized it wasn’t ME, It wasn’t that I was an ethically-deficient person…it’s that they outsource their ethical conflicts to their customers, go home and sleep peacefully on a bed of the reader’s money. It should be enough that you can buy something because you enjoy it, you shouldn’t have to worry about supporting creators you like, you shouldn’t have to feel complicit in shady business practices you don’t approve of…none of that’s cool, to have to feel while they take your money. So in the end, that’s why I stopped buying Big Two product.

    And all I can tell you that not having to feel complicit in all that shit is worth not being able to read Daredevil. As good as Daredevil is, feeling clean is better. And it’s a big comics universe out there.

    I think what happened is they made a grave PR miscalculation with the Kirby lawsuit. When they said “fuck no we won’t make amends for shitty business practices of the past”, they should’ve known they were pushing their luck.

    That’s just one happy ex-fan’s opinion, of course.

  17. “We wouldn’t have comics if not for these people, and it’s absurd that the companies and their fans are so okay with screwing these people over time and time again.”

    Fans are dumb. Always have been.

  18. It is a tough question. It really is.

    You can argue the merits of every case, but the overall picture is that the business practices of the comics industry have consistently despicable. Not a single one of those old school creators were really treated the right way. Their employers took their work and gave them as little as possible in return. To this day, neither of the Big Two have done a single thing to make it right unless they were essentially forced into it.

    Still, I love the characters.

  19. Well done post.

  20. I’ve been thinking about this all day. This was exactly the sort of thing I needed to read. Thank you.

  21. […] David Brothers’ post about the Kirby suit, and the exact same conscience crisis I’m feel… […]

  22. @Niles Day: That’s a stupid idea. You don’t boycott something and then still take advantage of it. If you don’t like it, you leave it alone.

  23. I disagree, David. Niles does have a point. If DC and Marvel don’t care about treating others ethically, they deserve the same treatment. If the urge/curiosity to check out a Big Two comic is too strong, just do what DC and Marvel do to their creators: ignore their rights completely and get a pirated copy. It’s really no more unethical than funding the company who pissed on Kirby with all the contempt they could muster, and that now prints hypocritical “lovingly dedicated to Stan & Jack” blurbs on their long-past-its-expiration-date FF comics.

  24. It is unethical though – “two wrongs don’t make a right”, “eye for an eye makes the world blind” etc. We might exempt people a little if they’re guilty of something and we’re trying to punish them, but that usually doesn’t come to a complete disregard of whatever rights they didn’t respect. If a thief stole someone else’s wallet, then you wouldn’t be allowed to steal the thief’s wallet.

    It’s all a bit too retributivistic for my tastes anyway. Plus it doesn’t actually harm them in any way (bearing the assumption that you already don’t buy the books, because buying them would be unethical). So it also fails that criteria for retribution.

  25. So guys, before you go congratulating each other on you moral superiority (by the way, haven’t bought a filthy “corporate” comic in nearly a decade so I’m in the lead there), are you 100% confidant that the rest of your consumption passes the ethics test? I know I can’t and I doubt you can either as we’re all human. Also you should be attacking Gavok as he is singing the praises of a corporate comic exploiting Jack Kirby creations (Thunderbolts). If several of you are as smug about avoiding Marvel and
    Dc as you sound, then it’s your moral duty to trash that traitor. Finally, if I decare my undying hatred for Parker, Hickman et al., do I get to sit at the cool kids’ table with superior people like you?

  26. @blahbleh2000: u mad?

    @Christian Otholm: Yeah, you got it in one. Pirating somebody’s comics out of spite isn’t retribution. That’s you justifying violating somebody’s IP in the name of justice. Niles doesn’t have a point, and neither do you, Leslie. You just want free comics, and you’re using a good cause to a bad end.

    “It’s really no more unethical” c’mon now. Two wrongs don’t make a right. They just make you feel better.

  27. Sorry, David. Not mad at you. I just get annoyed by self-righteous prattle sometimes. Some people just come off sounding like they believe themselves superior. It’s like announcing what they refuse to buy is more about declaring themselves better people that the unwashed masses who clearly don’t get it like they do. It’s just so patronizing. So you boycott Marvel and DC. Guess what, the people who give the money aren’t reading comics. So then you brag about not going to the movies or watching the tv shows, then what. Will you also boycott evrything attached to the parent companies, cause that’s who really controls things now.

    And the people who brag about their boycotts (who have the same condescending tone as people who brag about not watching tv), they have a definite amount of contempt for you David. You haven’t gone along with the cause 100%, and your colleagues here and at comics alliance are even worse in their eyes. No one at CA is boycotting Marvel. How dare they go against Bisette and Spurgeon and shill for the enemy. But that’s okay. If we just fall in lockstep with the righteous we can be good people like most of the commentors.

    Just needed to get that off my chest.

  28. If you think that’s bad, do some research on the history of the “Amen break”. For all of the fuckery involved in Kirby’s professional life, at least he and his family had/has name recognition.




    For those of you who’d rather not do the research, let’s make one thing clear- rap music (quick shout out to the ATCQ reference in the title), house music/techno music/trance music, DnB, breakbeat, dubstep, hardcore, every form of electronic/digitised music that exists on the planet is either based on or inspired by the Amen break.

    Kirby was ripped off (royalty-wise), but at least he got paid. Neither the performer nor the copyright owner of the Amen break have received a dime for their efforts, despite the fact that any person who isn’t Amish can recognise that sound within the first second (hellm even small children will remember the Powerpuff Girls theme as soon as they hear the sped up version.)

  29. P.S.-by electronic/digitised, I’m also referring to all of those wonderful post-80’s anime and video game soundtracks. Remove hip hop, trance and Drum and bass as inspirations and 3/4 of all of the music that geeks know and love are gone. And, yet again, the performer’s name (Cylvester, a name that stands out when spelled *correctly*) isn’t even common knowledge (whereas even non-comic book readers know about “Kirby dots” and the like…

  30. […] seem like a big deal perhaps, but lying to your fanbase makes them question why you did so. The more we learn about the company, the less people are willing to ignore these things and at some point they may be pushed too […]