Once again, the big corporation has crushed the little guy. I don’t think we should be proud of laws that allow corporations to live forever, but don’t force them to give ownership rights to the creative talents that are the source of their profits.
When I worked in comics, in the 1970s, there were no contracts between creative people and the corporations. Eventually, a rubber stamp on the back of the Marvel freelance check claimed it was work for hire. We all ignored the stamp and endorsed above it. In law, your signature ends the legal document. Anything below can be considered a later addition to which you did not agree.
However, the truth is, it was work for hire and everyone knew it. But that was implicit, not explicit. Therefore, arguable in law. No editor I sold a story to at DC told me “Now, you understand this story you have come up with entirely on your own is work for hire as a contribution to a collective work owned by someone else.” That’s just not how business was conducted then. There were a few people who were important enough to have contracts or were rumored to have same. I am not sure exactly what kind of deal Bob Kane had for Batman that kept his signature on comics he never even drew, but it was the foundation of great material success for Kane outside of comics. Wikipedia even says his fame was such he’d sell paintings he didn’t even paint. Go figure.
The Kirby case is more complex because Kirby had been an owner himself in the 1940s, and knew more about ownership rights than the average creator. In his later years, as I understand it he did sign some contracts, both with Marvel and DC. I don’t know the details of his particular case but obviously it had some merit or it wouldn’t have gotten this far in the court system. Kirby may have had an expectation of ownership.
I’m not a judge, but I don’t think that Kirby (and his heirs) has a legal right to the characters as the law now stands. I do think he has a moral right to them, and if the corporation to which he contributed is allowed to live forever on the profits of his creativity, then why shouldn’t Kirby’s heirs also live forever on them? But that is not how our laws currently are written.
We could change work for hire laws. There’s no real reason that the corporate copyright on Spider-Man shouldn’t run out, the way patents on vastly profitable drugs do. There’s no valid reason that every creative worker can’t share in the profits of every creative endeavor, except accounting laziness. Companies would rather not pay royalties. They also would rather not figure out what monies are owed to whom and then cut the checks. But in this lovely computer age, how difficult, really, would it be to keep track of who did what? At law firms attorneys have to account for every 15 minutes of their time so the time can be billed to specific clients. Other companies now do the same. Expand this exponentially through computer powers, and royalties or other ownership payments would be easy to orchestrate.
Our definition of what a corporation is or should be needs revision in law. Cheating creative people is just the wrong way to run the world. Contrary to what some cynical people will say, this is not how the world has always been run. Some of America’s greatest fortunes actually were founded via employees who made a significant contribution being cut in on ownership benefits. Some of the world’s greatest fortunes were founded on informal “profit sharing” by royal patrons, i.e., gifts as tokens of appreciation for services rendered. For that matter, some of my own ancestors were made rich by that very method. Our corporations are not set up to share the wealth except through giving profits to stockholders (which many companies actually do not do). That’s a mistake that is hurting our society in many, many ways, especially now, when they also seem to have forgotten any sense of community or moral responsibility.
Bottom line, I am glad the Kirby heirs are pushing for the recognition that a lasting contribution to a corporate entity should result in a lasting payout. They may not win on appeal, but getting this wretched system exposed to the light of public opinion may move us closer to enacting laws that divide up the spoils of creativity along fairer lines, as exist in other branches of creative work such as patented inventions, novels, and songwriting.
This festering situation should also be a dire warning to other creators tempted to take a pittance for work for hire instead of negotiating to be treated as a partner. Creative input is unique and valuable and should not be sold off cheaply to an immortal entity. It’s the same as selling your soul to the devil, and just as bad a deal.
