The Times reminds us (if any reminders were needed) just who rules the national roost.
... The heirs of comic book artist Jack Kirby sought to assert their rights to [Kirby's] iconic characters in 2009 ... Marvel argued that Kirby's work constituted "work for hire" -- that it was done by a freelance artist, under the direction and control of a company, which therefore retained the rights for such creative works.
"This case is not about whether Jack Kirby or Stan Lee is the real 'creator' of Marvel characters ... It is about whether Kirby's work qualifies as work for hire under the Copyright Act of 1909." ...
McMahon found the Kirby works qualified as works for hire.
See, here's the way it works: A century ago Congress, then as now a fully-owned subsidiary of our fine corporate owners, enacted legislation declaring that companies, just like people, could own copyrights and patents. And that "work for hire" was the vehicle by which they could gain ownership.
No silly-ass "moral rights" for the citizenry of the good old U.S. of A. They might create scripts and cartoon characters, but the conglomerates own them.
And it won't be changing anytime soon. So learn to love it, because the way things are going, there are minimal alternatives.
Update: The Nikkster's take on the suit:
Intellectual property lawyer Marc Toberoff has a winning track record when he goes after Hollywood studios on behalf of rightsholders. But not today. ...
See? Even a high-powered lawyer with a winning track record comes up with zip.
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14 comments:
In the 20th century, is there any creator, in any field, who was screwed worse than Jack Kirby?
Wait, so I as a business owner hire an someone to create a widget for me. That employee does this work of his/her own free-will and is compensated for the work at the rate he/she has requested. I get lucky and the widget takes off in a BIG way. I can see where I might be very appreciative of that employee's skill and give him/her a BIG ass bonus but at the end of the game that widget belongs to me.
That seems fair to me.
^^^That, unfortunately for the Kirbys, sum up why they did not prevail. The cases that did prevail in this type of suit were not already working for the companies that were sued.
Now why Marvel (and now Disney) does not feel some sort of obligation to Jack's heirs is another thing - other then a fear of setting up a precedent.
If I recall years and years ago (while Jack was still alive) he negotiated with Marvel to either receive back his original art back or possible money in the future if the properties ever made serious coin. Jack opted to get his original art back.
Wait, so I as a business owner hire an someone to create a widget for me. That employee does this work of his/her own free-will and is compensated for the work at the rate he/she has requested. I get lucky and the widget takes off in a BIG way. I can see where I might be very appreciative of that employee's skill and give him/her a BIG ass bonus but at the end of the game that widget belongs to me.
Or maybe you decide not to be appreciative and give the creator zip. And the widget still belongs to you, the company.
The U.S. is one of the few advanced countries that have very limited "moral rights" for the creators of products. (One example: screenwriters in every country save this one get 100% of foreign residuals -- i.e. "foreign levies" -- for their work. In the U.S., writers share 50-50 with the almighty corporation. I've listened to foreign screenwriters -- used to better treatment in ther own countires -- complain mightily about this.)
In the U.S.A., we live by the Golden Rule -- he that makes the rules gets the gold.
How has this happened? Understand that our corporately-owned SCOTUS has insured that in The Land of the Free, the corporation is all; individuals take a definite back seat to conglomerates and large companies.
Like it or not, we're living in a corporatist age, where the government largely exists to further the aims and ends of corporations and their owners.
"How has this happened? Understand that our corporately-owned SCOTUS has insured that in The Land of the Free, the corporation is all; individuals take a definite back seat to conglomerates and large companies."
The 60's are over.
The hippies lost.
"Or maybe you decide not to be appreciative and give the creator zip. And the widget still belongs to you, the company"
What is legal and what is fair are often at odds, this is just another case in point.
Only in the United States is the creation of intellectual property considered the equivalent of creating a 'widget.'
It is unfortunate that Jack Kirby didn't do in the 1960's what J.K. Rowling did decades later -- negotiate control over those widgets. It's clearly possible for both individual creators and corporations to make obscene profits when these intellectual properties take off. The fact that most American corporations have the need to take ALL the profits whenever they can actually leads to less innovation.
At every studio I've ever worked within, there are many artists who keep their private projects secret, to keep from being screwed out of them. Most of these projects are nothing special, but not all of them. The result is that there are potential franchises like Harry Potter or Winnie the Pooh that never see the light of day.
since workers are forced to sign an employment contract acknowledging that everything they create is deemed a "work for hire", the least the employer can do is acknowledge their employee status and provide them with decent health and welfare and pension benefits under a union agreement.
jimmygoodman
Anonymous 12:20 is spot on, and not just for artists but for a lot of industries. So many good ideas will never see the light of day because of the way the system works.
If someone who is not an entrepreneur has a great idea in the forest, does it make a sound? Most of the time, unfortunately not.
"In the 20th century, is there any creator, in any field, who was screwed worse than Jack Kirby?"
I'd say it's a tie with the King and Walt Disney - of course how Disney handled getting screwed is the example all of us should follow.
Walt Disney got screwed once, out of a marginal creation that he didn't create himself (Oswald the rabbit, who was pretty much identical to half a dozen other animated characters).
After that, Walt Disney either adapted other people's creations (classic fairy tales, plays, children's stories, etc.), or hired people to create for him. Disney himself created no properties of real interest (the creation of his studio, and of the modern theme park, are his real contributions, but that's something different).
Kirby, on the other hand, created new characters and new worlds and new concepts on a weekly basis, for a period of decades. Westerns, super heros, monsters, science fiction, and a bunch of stuff that defies classification. His work was often synergistic with other people's inputs, but Kirby was about a thousand times more creative than Disney. You're really comparing apples to oranges.
^ what he said.
You missed the point entirely of why Walt was mentioned. Walt was a cartoonist, not a very good one. Got screwed and turn around and dominated the business. regardless of how he did it, he didn't let himself be put in that position again.
Kirby was a genius, without a doubt, but didn't care to pursue the biz like Walt did, nor should he have necessarily, but then again his heirs woulda been better off.
It's comparing Ornage to lemons.
Walt Disney failed four times in business prior to succeeding and staying in the winning column for the rest of his working life. He was fortunate to learn from his early mis-steps, fortunate to have a business-minded brother in Roy and both were fortunate that Charlie Chaplin let them look at his extensive books on his theatrical feature releases prior to negotiating terms for the distribution of Disney's first feature Snow White, else they would have been robbed in the cradle and there would have been no subsequent features nor a Disney studio.
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