Category Archives: Marvel v. Kirby

RIP Stan Lee (1922-2018)

A sad day. Numerous sources have confirmed the passing, this morning, of legendary Marvel Comics writer, editor, and publisher Stan Lee (b. Stanley Martin Lieber, 1922-2018). My condolences to his loved ones and friends, and to his colleagues and fans, who were legion.

It appears that TMZ.com and The Hollywood Reporter were among the first to break the news publicly; other sources, for example the Associated PressNew York TimesLos Angeles Times, and CNN, have followed suit.

Stan Lee in the US Army, c. 1942-45

Stan Lee served in the U.S. Army Signal Corps from 1942 to 1945. Website DoDLive (www.dodlive.mil) identifies this image as simply a “U.S. Army photo.”

Lee was 95 years old. Anyone who has been following coverage of his life over roughly the past year, since the death of his beloved wife Joan Lee in July 2017, probably knows how tumultuous his final days were, marked by rumors of frailty, vulnerability, and domestic chaos. Recent images of Lee on the convention circuit have sometimes been disconcerting, as the almost mythically peppy, seemingly indefatigable Lee finally began showing signs of age and dependency. Until very recently, Lee played the part of a Pop icon with gusto, getting out in the world, engaging his fans, and burnishing his legend.

Speaking personally, I had somewhat expected Lee’s passing, as the last few months have been filled with nerve-wracking, if sometimes contradictory, reports about his status. Yet I was surprised at how shocked, and saddened, I was to hear of his death today. The news brought tears to my eyes, and I am hard pressed to say why.

I have been critical of Lee, both in my book Hand of Fire and especially since his testimony in the Marvel v. Kirby legal case. I have also been critical of his hagiographers, those who tend to describe Lee as a real-life “superhero.” When I see the usual inaccurate coverage of Lee’s career, creative work, and relationships with other creators who worked under his editorship – and I have seen that sort of glancing, thinly researched coverage this very day – I confess I seethe with frustration. What Jordan Raphael and Tom Spurgeon say at the start of their 2003 book Stan Lee and the Rise and Fall of the American Comic Book (which I consider the best single book about Lee) still applies:

Stan Lee is one of the most important figures in American popular culture. He is also one of the least understood. […]

Here is the truth about Stan Lee: he didn’t create Spider-Man or any of Marvel’s most famous characters. He cocreated them. The distinction matters, because in that distinction lies the essence of his considerable accomplishments. (ix)

This seemingly simple yet crucial caveat is still routinely swept aside when reporters reach for superlatives to put Lee’s work into context. Just what is meant by “cocreated” is something I tried to wrestle with, too tentatively perhaps, in Hand of Fire – and that is indeed a question that continues to bear upon Lee’s reputation, one that has implications for the breadth and nature of his accomplishments.

Hand of Fire seeks to split the difference between praising Lee as Marvel’s editorial architect and criticizing him for his untrustworthy, often self-aggrandizing accounts of how Marvel actually worked in its 1960s heyday. Here’s a key passage:

Of course “Stan Lee” has long served various author-functions for fans, not least the conferral of a single tone or attitude on what is, really, a shapeless amassing of decades’ worth of inconsistent, heterogeneous work. But though Lee was Marvel’s impresario and publicist par excellence in the sixties and early seventies, and though at first he contributed to the comics’ content as a scripter, polishing if not steering the work of various narrative artists, he did not solely create any enduring Marvel properties. Nor did he, in fact, serve as scenarist for many of the most celebrated Marvel comics of the mid to late sixties. By the same token, Kirby – though he provided the conceptual material, the character designs, the unmistakable graphic style, the pacing, and, eventually, the plotting and overall direction of the Marvel books with which he was linked – did not solely author any of the seminal Marvels of the period. His work was constrained and subliminally altered at the editorial level, with text that reshaped and at times redirected his plots. Furthermore, Lee’s vitalizing influence saturated Marvel and determined its editorial ethos. Kirby worked harder, but, commercially, Lee made things happen. (94-95)

This passage, which has been quoted and talked about, is one that I’m proud of, for its preciseness, its refusal to take things too simply, and its distance from the angry, intemperate things I would have said had I written Hand of Fire at a younger age. Yet during the Marvel v. Kirby case, and even since, I have not been able to convince myself that an “angry, intemperate” response was wholly uncalled-for. I tried to write the book more or less dispassionately, but since then I’ve often been passionately angry about Lee’s continued prevarications when it comes to the question of who did what at Marvel back in the sixties. It has been easy to blame Lee, or rather, hard not to blame him. He has been, after all, a Grand Old Man of American comic books (as Raphael and Spurgeon put it), a totemic figure, and one with the power to shape the way people view history. I wish he had been more forthcoming.

Some readers have told me that Hand of Fire goes too easy on Lee, or on the official Marvel history, that Lee did not contribute substantially to the comics’ content – or if he did so, then only negatively – and that he emphatically did not “steer” the work of Jack Kirby. I remain unsure of quite how to tell the story, but am convinced that Lee added considerable pizzazz, spirit, and warmth to those comics; his voice mattered. Of course I’m equally convinced of what the above says about Kirby: that Kirby provided the concepts, designs, storytelling, pacing, style, and eventually, though perhaps to some degree even at the outset, the plots of the Marvel comics he drew. The same is emphatically true of the work that the late Steve Ditko did under Lee’s editorship. The record is murky, but we do know that Lee expected Marvel’s artists to plot and to make fine decisions about pacing and storytelling, and we do know that stalwart artists Kirby and Ditko had proven their ability to create comics stories from scratch again and again prior to the Marvel explosion. Obviously, they didn’t need Lee in order to make comics – though they did need Lee to create Marvel Comics. What Lee himself had to say about the working arrangement at Marvel shifted over the years, from (sometimes) frank acknowledgment of the artists’ contributions to (sometimes) insistence that he himself had provided what was most important about the characters. In any case, the “Marvel method” of production has permanently clouded the question of who did what, who inspired what, and to what extent Lee and his artists truly worked together.

Back cover to Stan Lee's "Secrets Behind the Comics" (1947).

The back cover to Stan Lee’s 1947 book, “Secrets Behind the Comics.” As reproduced in “The Secret History of Marvel Comics,” by Blake Bell and Dr. Michael J. Vassallo (2013), page 156.

I’ve worried over these things, and felt these conflicted feelings, for quite a while, and will surely continue to feel them. Anyone paying close attention to Kirby’s career story must think about the gap between the official history (even the history adopted by Marvel in the wake of the Marvel v. Kirby settlement) and what must really have happened among the disparate talents and personalities that made possible the massively multi-authored vast narrative that is Marvel. Anyone who has delved deeply into Kirby’s story must also be have a version of Stan Lee’s story on their mind, even if that version is, like mine, conflicted.

When I was a kid, though, ah, Stan Lee’s name was one to conjure with, and his voice became as familiar as my own. I read more comics than I can count that started with this claim:Stan Lee presents

Lee’s name became part of a reading ritual; he was the figurehead of figureheads, a magic character. And to this day I have a feeling for the idea of “Stan Lee” that no amount of research has been able to quell. I was reminded of that this morning, and the feeling, oddly, hurt. Having spent the last few days pawing through some too-long-neglected boxes of comic books and reliving some of my long-ago days as a fan and collector, I may have been too-perfectly primed to be shocked by the news of his passing. News of his death sent me into a fog.

Words like charlatan and huckster cling to Lee, and comparisons to carnival barkers, or even P.T. Barnum, are never far away when Lee is the topic of talk. I understand why; frankly, those words are deserved. Lee knew this well, but he wasn’t simply a shill. A shill would have had his hour, but then faded, and fast. Lee, though, was something else. He combined the larger-than-life qualities of a Marvel hero with the affability of a beloved neighborhood character and the approachability of an old friend. Sometimes when I think of Lee, I think of his seeming mendacity and conveniently porous memory. I’ve had that version of Lee in my head for nearly thirty years and counting. But sometimes when I think of Lee, I think of being a kid with a comic book in front of him, with a whole great big world spreading out before him, and I feel, still, a certain awe and gratitude at the whole crazy business.

RIP Stan Lee. I cannot imagine my life as a reader and thinker, nor my coming of age as a comics scholar and critic, without him. As editor-impresario, Lee brought the work of Kirby and a gaggle of other disparate artists to market under one colorful banner, and in so doing enriched my life and the whole American comic book field. I don’t know if I can call Lee one of my cultural heroes – I suppose Hand of Fire tells the story of my loss of faith – but at one time he surely was, and I cannot but thank him for that. Working in tandem with other singular talents, Lee helped transform the comic book, and though his greatest period as a writer-editor spanned just a decade – only a fraction of his long career – what he helped bring to the newsstands in those days, the heady days of Kirby and of Ditko, and of the dawning Marvel Universe, was stupendous.

PS. Among the several obituaries I’ve read today, I would recommend  Jonathan Kandell and Andy Webster’s careful one for the New York Times, and Michael Dean’s excellent one at The Comics Journal. (I don’t agree with Dean’s assessment of Lee’s skill as a writer, versus Kirby’s, but it’s a lovely, insightful piece, with a ringing conclusion.)

Stan Lee at Stan Lee Day, 2016

Oct. 7, 2016: Lee enjoys “Stan Lee Day” in NYC, at Madison Square Garden (Nicholas Hunt/Getty Images, obtained from the Los Angeles Times).

PPS. I just rediscovered this odd, ambivalent poem I wrote about Stan Lee years ago. I think it captures both my gratitude and my ambivalence. ‘Nuff said.

The Kirbys and Marvel Reach a Settlement

Detail from the cover to Avengers #12 (Jan. 1965), drawn by Jack Kirby, inked by Chic Stone, colored by Stan Goldberg

Wow.

Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.

Two days ago, on Friday, September 26, Marvel Entertainment and the Kirby estate jointly released the above statement—which is the sum total of what we know about a last-minute legal settlement, reached just days before the Supreme Court of the United States was slated to consider the Marvel v. Kirby case in private conference.

This is a startling piece of news for those who care about comics and about Kirby. I could feel my own pulse racing—literally, I’m not being hyperbolic—when I first read the news.

What the settlement may mean remains a matter of guesswork and hope. If it works for the Kirby family, though, then the news is good. My hope is that the Kirby family will gain security and comfort from the settlement, and that Marvel’s official line about its history will come closer to acknowledging the truth about Kirby’s essential contribution to the company. I hope this will lead to more honest conversations about how Marvel Comics got made, that Kirby’s story will become an official part of Marvel’s story, and that his name will be forever attached to the company’s marquee properties, going forward. That’s my fervent hope.

The case has been long and complicated, dating back to copyright termination notices filed by the Kirbys in 2009, which sparked a suit from Marvel and a countersuit by the Kirbys. In July 2011 the US District Court for the Southern District of New York found in favor of Marvel, rejecting the Kirbys’ case. In August 2014 the Second Circuit Court of Appeals reaffirmed that decision, again handing down an opinion that favored Marvel. Last October the Second Circuit rejected a request to rehear the case, after which the Kirbys’ attorney Marc Toberoff submitted their cert petition to SCOTUS on March 21. Yet many observers felt that this would not be enough to counter the judgment of the Second Circuit; SCOTUS grants few cert petitions, and the Kirbys’  was widely seen as a gesture of last resort: a last-ditch, Hail Mary pass in spite of the fact that the matter had been firmly settled in Marvel’s favor. It appeared to many that the case was done and that the Kirbys had simply been beaten.

However, news of the cert petition reignited publicity over the case, and in May SCOTUS discussed the case in conference, after which the Court requested a response from Marvel. Then, in June, things started to happen: several important amici curiae briefs supporting the Kirbys’ petition brought high-profile attention to the case. One of these was filed on behalf of Kirby biographer Mark Evanier, Jack Kirby Collector publisher and editor John Morrow, and the PEN Center USA (a nonprofit representing diverse writers). In addition, the California Society of Entertainment Lawyers filed a brief.

Another brief that became very important for the press coverage of the  case was submitted by Bruce Lehman, former Assistant Secretary of Commerce and Director of the US Patent and Trademark Office, and an authority on intellectual property law. Lehman filed in collaboration with former US register of copyrights Ralph Oman, the Artists Rights Society, and the International Intellectual Property Institute; they were joined by the American Society of Illustrators, the National Cartoonists Society, the Association of American Editorial Cartoonists, and other organizations representing arts professionals—as well as scores of cartoonists and illustrators who also signed on.

The Hollywood Reporter‘s Eriq Gardner published an illuminating article on the Lehman and Evanier briefs, including the complete text of both, on June 19.

Another piece of big news was the brief filed by three film industry unions, SAG-AFTRA, the Directors Guild of America, and the Writers Guild of America. The unions’ support of the Kirbys’ petition made the case a Hollywood headliner. Clearly creators in many other fields besides comic books saw the ramifications of a case regarding freelance creators, work for hire law, the so-called “Instance and Expense” test invoked by the Second Circuit, and the termination rights of creators and estates. At issue were questions fundamental to IP and work for hire law. Again, Hollywood Reporter‘s Eriq Gardner spotlighted the legal implications in a helpful article, dated June 23.

Marvel, as SCOTUS requested, filed its brief in opposition to the cert petition on July 14. Marvel’s brief sought to discredit all the amici curiae briefs in support of the Kirbys. The Kirbys’ attorneys responded with a reply brief on July 29, setting the stage for a further SCOTUS conference that was to happen on Monday, Sept. 29 (tomorrow, as of this writing). The Case Page on the SCOTUS blog spells out the whole timeline from last December to now, and includes PDFs of the cert petition and all the briefs.

Marvel and the Kirbys’ eleventh-hour settlement—just as SCOTUS was poised to decide whether to take up the case—has been interpreted by some as an admission on Marvel’s part that the Kirbys’ case was stronger than they first allowed. It does seem reasonable to infer that Marvel was incented to settle before things got more complicated, or hazardous, for them. Yet the fact that the case never came to trial (the original 2011 decision was a summary judgment, not a trial verdict) makes it hard to know just what the calculations were on both sides. Interpreting the result as an unalloyed triumph or affirmation for either side would probably be too big a leap. Again, nothing is yet known publicly beyond the official joint statement: a single sentence.

News coverage all over the place hasn’t really added to the sum total of what we know. For the record, I consulted online articles from The Hollywood Reporter (Eriq Gardner again), Variety, the New York Times, the Wall Street Journal (a quick AP wire), the Los Angeles TimesHero Complex blog, Deadline, and many different comics news sites, notably Comics Alliance and The Comics Reporter. It was at The Beat that I first read the news.

Ryan Carey provides a somewhat astringent (glass half empty?) analysis of what the news means over at Geeky Universe. I think he’s mistaken about fan and freelancer pressure not making a difference in the case, but, still, what he has to say is bracing and worth the read.

Me, I’d like to quote what Tom Spurgeon says in The Comics Reporter article linked above:

Exploitation can be mitigated. Better outcomes can be sought. Credit can be shared. The world doesn’t end.

But also this sobering afterthought:

Still, this wasn’t easily won; this settlement came with significant personal and professional cost spread out across generations. The negative example remains.

Damn right. And yet it feels to me as if something important and good has happened.

Some will be disappointed that Marvel v. Kirby did not get to trial and did not become the supreme test case of work for hire law that it might have; some might have preferred for the Kirby family to take the case all the way to court, so as to bring greater clarity to that kind of law, perhaps even to effect a revolution in the law. Surely some of the those entities that submitted or signed on to the amici briefs wanted to see a trial outcome that would in effect rewrite that body of law. Yet I have to believe that the family and their counsel acted wisely in negotiating the settlement, and that it will help the Kirbys—my chief concern. Congratulations to them for sticking it out and getting Marvel to the bargaining table.

I look forward to hearing more about the terms of the settlement—and, I hope, to seeing Jack Kirby’s name highlighted at Marvel from here on out!

I will need to update my Marvel v. Kirby page. I’m glad about that. 🙂

 

 

 

Kirby Estate Appeals to US Supreme Court

Today brings Kirby news on the legal front—specifically, an important new development in the Marvel v. Kirby case.

The legal news site Law360, the entertainment industry news site Deadline Hollywood, and several comics news sites, such as CBR’s Robot 6 blog and Bleeding Cool, are reporting that on March 21 Jack Kirby’s heirs petitioned the US Supreme Court to review the case.

To be precise, the Kirby estate filed a petition requesting a writ of certiorari—essentially, they have asked the Supreme Court to hear their appeal and reconsider the opinion handed down last August by the Second Circuit Court of Appeals. That opinion reaffirmed the original ruling of the US District Court for the Southern District of New York (July 2011), which had favored Marvel, denying the Kirbys’ case.

The Second Circuit’s decision last August appeared to all but close the door on Marvel v. Kirby. Though the Kirbys petitioned the Second Circuit for a rehearing, their request was denied in October. However, the March 21 petition—which from here on out I’ll refer to as the Cert Petition—may yet reopen the door, at the highest court in the land.

I refer my readers once again to attorney Jeff Trexler’s Comics Journal article from last August, “Taking Back the Kirby Case,” and to the coverage at Deadline Hollywood for a reasonably complete timeline of the case, including legal documents (the original ruling of July 2011; the Second Circuit’s appeal decision, August 2013; the Cert Petition, 21 March 2014). Over the coming week, I will try to embed PDFs of these documents right here at this blog.

I’m at a loss as far as knowing what to say about this case that I have not said before. It’s a complicated and vexing case, certainly. It’s important. Because the case centers on work-for-hire law, it keeps dragging me back to the difference between legality and justice (a point I’ve examined here previously). If the Supreme Court takes up the case—which, as so many commentators have already pointed out, is a big if—it could be a game-changer.

Suffice it to say that I wish the Kirby family success, in the name of justice and a better, more honest history of the American comic book.

History was made at this board, on both coasts

Essential Reading: Taking Back the Kirby Case

US Supreme Court Building, photo by Carol M. Highsmith, from the Library of Congress

Attorney Jeff Trexler has written an excellent essay for The Comics Journal titled “Taking Back the Kirby Case” that I emphatically recommend to anyone who cares about comics, the work of Jack Kirby, the implications of copyright law for independent contractors, or just plain fairness.

Trexler not only reviews the decisions in the Marvel v. Kirby lawsuit and considers their ramifications, but also gives a thorough rundown of the legal case histories behind those decisions, in effect explaining the whole complicated story of how case law interprets and affects the work of comics freelancers. He shows, in essence, how court opinions have effected a massive shift of intellectual property from artists to corporations. Along the way, he suggests how and why the U.S. Supreme Court might take an interest in the Kirby case.

Essential reading, for which many thanks to Jeff Trexler! I learned a lot from it.

Injustice Affirmed

Important, and saddening, also enraging, news: The US Court of Appeals for the Second Circuit has just issued a decision (dated today, August 8) reaffirming Marvel’s legal victory in the case of Marvel v. Kirby and rejecting the Kirby family’s appeal.

The text of the judgment, available here, declares that the original ruling against the Kirbys (rendered in July 2011 by the US District Court for the Southern District of New York) should stand because “the district court correctly determined that the works at issue [i.e. Jack Kirby’s pioneering works for Marvel] were ‘made for fire’ under section 304(c)” of the Copyright Act of 1976.

I profess to no expertise in matters of law, but my opinion and my feelings on this issue, as stated on this blog, remain constant and intense, and my determination to boycott Marvel comics, films, and other products remains firm.

Here is the basic, bare-knuckle truth, not to be parsed out of existence by legal hair-splitting or the revisionist application of a law that postdates the works at issue: there is nothing in work-for-hire law that can account adequately for the facts of Jack Kirby’s foundational, indispensable, and still generative contributions to Marvel. The legal umbrella of work-for-hire is baldly, tragically, inadequate to the circumstances of Kirby’s work and of Marvel’s rise, and fundamentally inadequate to the imaginative gift that Kirby—none more so than Kirby, none more prodigally, more heroically, more inspiringly than Kirby—gave to Marvel. To call this gift work-for-hire is a basic insult, and blurs the truth of Marvel’s rise, enshrining company myth in the public record at the expense of historiographical accuracy and plain justice.

This is a sad, damaging, and infuriating decision. Work-for-hire law cannot begin to understand, to describe, the wealth of material that Jack Kirby brought to Marvel: the raw material of a story-world, a universe.

Go read the decision. And if you care at all about comics, hang your head.