Comics / Spotlight

Copyrights and Comic Book Creators: Be Careful What You Wish For

By Hervé St-Louis
Sep 23, 2009 - 6:12

The latest news since September 20 2009, is the reported intention of the four children of the late comic book creator Jack Kirby to challenge Marvel Comics’ copyrights over several of the characters published by the New York-based comic book publisher. Some pundits allege that the motivation behind Kirby’s children is the intent by media conglomerate Disney to purchase Marvel Entertainment, including its vast library of characters which spans several thousand characters.

The law firm hired by the Kirbys is Marc Toberoff’s. Toberoff’s firm is responsible for representing the estates of Joe Shuster and Jerry Siegel in a similar case against Marvel Comics’ traditional competitor, DC Comics, which is owned by Time Warner. Already, stories about Toberoff’s skills as a lawyer are mentioned as an important factor in the case. While many comic book readers fear Toberoff’s notorious practice, others rejoice, secretly and publicly on having Disney and Marvel Entertainment having to deal with this behemoth of copyrights law.

Having already gained a reputation as an opponent to the orgy that is copyrights in the United States and the presumptions of ownerships of the estates of Siegel and Shuster to Superman, I will right off the bat extend the same criticism to Jack Kirby’s estate. What’s good for gander is good for the goose. This writer stands for the quick reversion of all copyrights to the public commons and generally opposes the extension of copyrights to estates of dead creators when they are not directly inherited. The logic in the Superman and Marvel Comics’ cases is similar although there is one distinction with Jack Kirby’s that makes it interesting from the point of view of this author.  In the case of Jack Kirby, there is a clear case of collusion between the moral rights of the Kirby estate and copyrights.

Moral rights, as a recap, are those rights which are inalienable for a creator. They cannot be removed. Jack Kirby will forever be one of the men that created the Fantastic Four. Moral rights give Jack Kirby and his estate the right to claim that he was one of the creator of the Fantastic Four and even, have that right enshrined in any material where the Fantastic Four appear. If the Fantastic Four were to be transformed into Hawaiian frogs that played the ukulele, depending on the presiding judge, Jack Kirby, and not his estate could ask for a correction to such a transformation of his work. Particularly, as concerns Jack Kirby, had he been well advised when he was alive, he could have won back the ownership of his original drawings back from Marvel Comics. But there is a caveat. Moral rights do not extend to estates as they cannot be removed from the original creator of a piece of work. This of course is not absolute and a supposedly astute lawyer, like Toberoff could make gains in that aspect of law for all estates.

But the Kirby estate is not interested, as it appear in any protection of the moral rights of Jack Kirby. After the Fantastic Four, Thor, the original X-Men and several more comic book characters have been exclusively the possession of Marvel Comics for decades, they ask for a restitution of those rights. In most jurisdictions, copyrights are retained by the estate of the original creator 50 years after his death. This is currently the case in Canada. In the United States, the situation is much different because of the influence of the entertainment industry in that polity.

As a trade off to the continuing prolongation of copyrights in the United States, American lawmakers sought to provide balance to their system, by enabling estates and creators to rescind the copyrights they had originally attributed to large media conglomerates like Disney and Time Warner. Proponents, in the comic book industry of what I have referred to as the cult of the creator base their arguments on the legitimacy of the retrieval of copyrights by creators and their estates on this allowance, granted during the last extension of copyrights in the United States.

I will not go in detail about what I refer to as the cult of the comic book creator in this article, as it is a huge topic on its own. But to explain what I refer to by this cult, I summarily describe it as a faction within the comic book industry, that shares a perspective whereby the creator of a comic book as a social construct, is more important than the creation itself. Business, publishing and artistic decisions are influenced by this perspective. Proponents of the cult of the comic book creator like to mention how comic book artists and writers have been systematically abused by publishers over the course of the history of comic books, and that creators need a way to counteract the power of publishers. But more than a balance of the system, proponents of the cult of the comic book creator assert that the creator should be the dominant actor in the comic book industry. For example, one remedial solution to control comic book publishers is for creators to assume their role as their own self publishers. By becoming a self publisher, it is thought that the lamb swallows the wolf and becomes a synthesis of both animals but with the characteristics of the lamb being dominant.

For this writer, the battle of who will dominate the comic book industry, between creators and publishers ignores the real vector of power in the comic book industry, the reader, the customer, the fan. One of my editors recently reminded me how I had banned the word fan from the lexicon of the writing guide of The Comic Book Bin and that I seem awfully fond of that word recently. He’s right. My whole philosophy about the comic book industry is that it’s a consumer dependent business that tries to ignore that ultimately, the real power does not rest with the creator or the publisher, but with the consumer. There is an element of absolutism in this perspective I admit, and this has even led another one of my editor to suggest to me that my ideal comic book industry may not really exist, except in my own mind. My position on the consumer, by the way goes hand in hand with my position on public commons and the quick return of all copyrights to the public domain.

The current fight between estates, ersatz creators at best and media conglomerates ignores that unless we are all destroyed by a nuclear accident in the next 20 years, ultimately no matter how many extensions are promulgated, how many technological locks are put on creative contents, how many laws are voted by Congress and how many creators and their proponents argue for justice, all rights, all copyrights, through practice or de jure will revert to their rightful owner, the commons. This is essential because the very fabric of culture will be crippled if there is not a return of copyrights to the commons. Culture will not be able to renew itself without the infusion of all creative inputs from the last 100 years.

But what is more important is the big picture supporters of the Kirby estate are missing. Currently, there is a movement to reform all intellectual property laws in the United States. Looking at patents laws, where a small upstart from Toronto can go to a court in Texas to stop software giant Microsoft from selling its popular word processor, Microsoft Word, there is a perception that the system has become detrimental and no longer achieves the objectives of competition that it was supposed to promote initially. The “valiant” efforts of the small Toronto start up against Microsoft is seen as an aberration of the system and large companies like Microsoft are working hard to find a way to block loopholes that could see their business model targeted by small contestants that fail to innovate. One should expect the same from copyrights law.

Anyone that thinks that Disney is not behind the scenes, soliciting support from American senators and congressmen to change copyrights laws right now to block the Kirby estate is living in Technicolor.  What the Shuster and the Siegel estates achieved with Superman should be seen as an anomaly that will quickly be resolved. Neither the Shuster, nor the Siegel nor the Kirby estates have any leverage and influence with Washington D.C. decision makers and lawmakers the way both Time Warner and Disney whose very business model depends on copyrights laws being in their favour. The Shusters, Siegels and Kirbys do not play golf with politicians on a regular basis. Anyone that thinks that Disney and Time Warner will simply sit idly and let the courts and estates take their intellectual property away from them one at a time does not see the bigger picture and why this pundit is so worried.

While in practice copyrights law eventually belong to the commons, there is nothing stopping lawmakers to satisfy a very important part of their constituent base and financial supporters by redesigning copyrights laws so they can circumvent the alleged rights of estates while further curtailing the rights of the public over its usage of copyrighted material. Cheering for the rights of the estates over copyrights today may create an environment that is totally closed and against their very interests in the future. But I’m just a fanboy suffering from arrested development who’s afraid that his precious X-Men and Superman comic books will no longer be published in their current forms by Marvel and DC Comics. So what do I know?

Last Updated: Feb 19, 2015 - 9:30

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Hope they win.
It won't happen, but wouldn't it be nice for once to have new original characters. I don't know about anyone else, but I'm tiried of seeing the same origins, the same character die only to be brought back, collecting a comic for years only to find out that it didn't happen, characters who act one way in a story only to act different in another. I hate reading the same recycled garbage over and over and over again. bubblegum-(:oops::-[]:-PB-):-o:-(:-D:-);-). But then again, they must give you what you want, because you keep them in Business, so they must be doing something right.
#1 - Deuce Devil - 09/23/2009 - 13:56
Your statement in your third paragraph is contradicted by your last paragraph. I see what you're saying about dead creators and their estates but what about living creators? Have you read the fine print for submissions to Marvel or DC? As an artist and a soon to be published comic creator, I'm very thankful for the laws that prevent a perversion of the things I create without my consent. Hypothetically, a big company taking my story and characters changing them and making a ton of money off of it. But it's unclear whether you are for or against it, as long as you get your monthly issue. I can't help but notice the big © Copyright 2002-2009, Coolstreak Cartoons Inc. at the bottome of this page.
#2 - Matt - 09/29/2009 - 09:27
Please Explain
Please explain to me where my third paragraph contradicts my last? I'm no mind reader and neither are the people reading this column.

Copyrights in the United States, just in case you didn't know were created to foster competition, no to provide a life long sinecure for creators. They were created to afford the creator enough time to generate income from his creations. Butnthey were not created as a way to guarantee creators a paycheck for life. Please read the US copyrights Act where it states that all copyrights are (my paraphrasing) to be returned to the public much like a temporary lease on a car. Copyrights in the US originally lasted but seven years. Today, they last 93 years. It's people like you who don't understand the spirit of the copyrights law, that are making them a perversion of what they are today. What I'm asking is a return to the center, where the creator is can benefit from his creations without holding the public hostage.

A frequent argument of copyrights absolutist is to paint their opponents as being against any form of copyrights and in favour of a total free for all. That's what you're trying to do by pointing out that The Comic Book Bin enforces its own copyrights. You're arguments are awfully close to the music majors in case you didn't know.

I suggest you find a copy of the copyrights act of the US and read it closely. Then read its amendments and ask yourself if they really benefit you. The attitude that unless you but concrete walls around anything you create and enforce heavy protection otherwise chaos will ensue and you will stolen from by the very public you serve, is counterproductive. Without those people that you are so afraid of, none of your comic books can go anywhere or gain any notoriety.

While you're too busy enforcing your rights, you may miss a lot more opportunities that could make you richer.
#3 - Herve St-Louis - 09/29/2009 - 19:04
Your argument is unclear. You third paragraph states that you are against the rights going to the Kirby estate. Your last paragraph sounds like you are afraid that "redesigning copyrights laws so they can circumvent the alleged rights of estates" I thought you were against the rights going back to the estate. No?
Don't assume that I don't know copyright laws. I know it's not all black and white but at the core it comes down to Artist's right to have control over their creation. Maybe you see that as competition but if you're so against the U.S. copyright as it is, I suggest you don't invoke the right on your page. I makes you seem hypocritical. I'm all for reform, but in my opinion, your very long tirade did not convey that message. I agree with the first comment that these comics, that you are so afraid will change, are all watered down and they should have ended years ago. Not rewritten and re-imagined. They've grown stale. I fear nothing, I will soon be independently putting my creation out for all to see, free of charge. BUT I reserve the right to sue the shit out of anyone that steals my work for a profit.
#4 - Matt - 10/01/2009 - 10:22
You don't understand
Hi Matt. Thanks for writing back. My third paragraph does not contradict the last one at all. What I wrote was that people wishing the estates to win this may be setting up their opponents to lobby for a rewrite of copyrights laws - rewrites that may hurt the return of the copyrights to the public domain, while damaging the prospects of the estates to win anything back. There's nothing contradictory about that. It's a two for one.

Copyrights laws were not created to afford artists/creators control from their creations. They were created to allow them to compete in the market place with their creations long enough to make a buck before others could use their properties. Please note that in the original copyrights laws, translations or even adaptations, like plays were not covered by copyrights and thus afforded creators no absolute control over their work. Absolute control of a copyrighted property is a modern concept used to block competition.

As I wrote to you above trying to pin me in a corner for for enforcing my own copyrights doesn't work. You say that you don't see copyrights as a black and white issue, yet you want me to take a black or white take. The day I write to say that my copyrights over my articles should last forever, then you can call me hypocritical. Until then, I'll continue to enforce the Comic Book Bin's right to compete in the marketplace and the right of the writers of this site to own what they wrote.

Whether the comics from Marvel or DC are stale is your opinion and I wrote nothing to that effect above. It's easy to say anything from Marvel and DC must be bad because it is owned by a large corporation. But it's a dubious argument to say that because a comic book is published by the original creator, that therefore it is inherently better and more worthwhile. This is what I refer to by the cult of the creator. The automatic assumption that owning the damn thing makes it better. It's nonsenses that has been promoted for 20 years in the comic book industry, but so far has failed the smell test.

#5 - Herve St-Louis - 10/02/2009 - 20:17
I believe it's you that does not understand
I was referring to the first comment on this post "Hope They Win" by Duece Devil, not anything you said or implied. Yes it is my opinion that some of my favorite comics have grown stale. Not because they're put out by the giants like DC or Marvel, it's because they've re-written and re-imagined these characters so many times that they have no meaning anymore. Peter Parker's Aunt May died? Well we'll just re-write history so she didn't die and Peter never married Mary Jane. In MY opinion that's incredibly lame and there's a thousand such scenario's in comics, as well as TV, Film, and Novels. It's not a big corporation vs self publishing issue for me, maybe it is for you. You say you don't or wont see things in black and white yet you just posted an article on how all or the majority of self published comics out there are inferior and it's the creators own fault for trying to go his or her own way. I suggest you take a step back and not think in such simple terms. Take away the publishing giant vs the small publisher idea and just look at the creation. Is it Art or is just product to you? Is it the way Spawn was published that caused it to go down hill after issue 20 or so or was it McFarlane's fault? I personally think it was McFarlane's own fault because he walked away from his creation. It's a much more complex issue than just "Big Publishing Power House VS the self publisher" But before you mention me in your next, very long article, let's get one thing straight. I AGREE with you that copyright laws in this country need reform. It wasn't so clear to me when I read this article, now it is, perhaps it came across as "pinning you into a corner" that is not my intention.
You can try and slam me in your articles by saying things like "a smart commenter responded to my article and saying, essentially, that because he owned his comic book, which I suppose is a Web comics, that it would not be stale but a fresh alternative" but I said nothing of the sort, that just what you read into it. You obviously don't take criticism very well and comments like that make you look immature and irrational. You don't know me, don't assume you know some hidden meaning in my words. This will probably be my last response because it's fucking long and I don't have time for this, unless of course you would like to completely misquote me again.
#6 - Matt - 10/05/2009 - 14:36
you just posted an article on how all or the majority of self published comics out there are inferior
A little projection here. In the article you referred to, I didn't say that all self publishers made worse comic books than those held by corporations. You and other people have begun to spun that idea. If you look the reviews I have written since 2002, which are all available at the Bin, you find that I've praised independent comics, company owned owned ones but I've also severely criticized others. Check how much I gave to Secret Invasion #8 last year...

The very fact that the Bin covers a wide variety of comics, be they manga, European, mainstream, independent and anything in between, and that I am the publisher of the site should give you a hint that I'm not prone to the generalizations you said I did above. Please check my reviews. It's all there. There's thousands of them. If you can prove that I've systematically sunk indy stuff in favour of DC/Marvel, then I'll shut up. The fact that people are even saying that I claimed DC/Marvel was superior means they haven't looked around or read the article properly.

I said the idea that a self published book must be better because it is self published is bullshit. That's what I said. I did not add the "logical other half" a lot of you guys say I have which is to claim that DC/Marvel is better.

I'm not sure how I'm slamming you by saying you're smart. On that one you've totally lost me. If I can't take criticisms, as you say, I'll say that you can't take compliments.
#7 - Herve St-Louis - 10/05/2009 - 16:04
This really will be my last response
I immediately regretted pressing "submit" on that last one. I can see how my words may be offensive. It was not my intent. I made the mistake of assuming your were being sarcastic all the while criticizing you of assuming too much. I apologize. We could go back and forth forever on these subjects, perhaps I will comment after part 2 of The Cult of the Creator. At the very least you have given me something to think about.
#8 - Matt - 10/05/2009 - 17:43

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