Marvel Comics: A Sad Tale of Copyright Lost

Kids dream of being a superheroI’ve always loved comic books.  I grew up reading my dad’s old superhero comics from the ’60s, Mad Magazine, and Archie (Jughead is awesome), and I still love tough girl comic books like Wonder Woman, Fray, and Buffy Season 8.  After all, who doesn’t dream of being a superhero?   But I am not a comic book geek.  I can’t talk to you about storylines and before a few weeks ago the only comic creators I could name were Stan Lee and Joss Whedon.

Thanks to Marvel Comics: The Untold Story, however, I have learned more about the history of comic books – and have come to appreciate comic books more – in the past few weeks than in all the decades before that.

Real comic book fans will mock me for this, but before I read this book I didn’t realize how different Marvel was from DC in the way Marvel’s superheros lived in real cities (like Spiderman living in New York) and dealt with real enemies (Captain America fighting the Nazis).  In addition, they were all part of the same universe, often interacting with and impacting one another.  Marvel was also viewed, especially during the late ’60s, as much more hip and relevant to pop culture.  Stan Lee became an icon on college campuses and to other artists such as Mario Puzo (who had originally been very dismissive of him) and Federico Fellini.

Stan Lee and Marvel also changed the way the writer (e.g., Stan Lee) and artist (e.g., Jack Kirby) interacted.  Instead of providing artists with full scripts, Stan would just give the artists a plot synopsis (or sometimes they’d come up with the plot lines together) and the artists would then go draw the story – determining page-by-page pacing and deciding plot details.  The full story would then be returned to Lee, who would then fill in the dialogue.  This came to be known as the Marvel Method.

Comic book illustrator

The artwork was amazing too.  Jim Steranko, for example, used his role as artist for the Nick Fury comics to explore art – using geometry tricks and eventually quadruple-page spreads that meant you had to buy two copies of the comic and lay them together if you wanted to appreciate exactly what he did.  Jack Kirby and Steve Ditko, along with many other Marvel artists, also showed that illustrating comics was a true art form and one that allowed for plenty of social commentary.  Unfortunately, I read the book on my Kindle so I wasn’t able to see any actual examples of the artwork described in great detail in the book.  I haven’t had a chance to look at a hard copy of the book yet but I hope it actually includes some of this amazing artwork!

Legally, however, the Marvel saga – and that of comic books in general – has a sad side.  Under U.S. law, all the brilliant superheros that Stan Lee, Jack Kirby, Steve Ditko and others created never belonged to them because of a cruel exception to the general copyright rule.

In general, copyright protection is established the moment an artistic work is created in fixed form (i.e., the moment a picture is drawn or words are written on paper).  Copyright protection means that the work created automatically becomes the property of the author of the work (who is usually the creator).  Under Section 106 of the 1976 Copyright Act, the owner of the copyright (usually the author), has the exclusive right to do certain things (or has the right to authorize others to do these things), such as reproduce copies of the work or prepare derivative works based on the original creation.

Unfortunately, there’s an exception to this general rule that the creator is the legal author of a copyrighted work.  In the case of “works made for hire,” it’s the employer (in this case, Marvel) that is the author of the work.  Section 101 of the copyright law defines a “work made for hire” as, among other things, a work prepared by an employee within the scope of his or her employment.  Without authorship, the actual creator – Stan Lee, Jack Kirby, Steve Ditko – has no right to control what happens with the characters and does not profit from their use. (Stan Lee, of course, has profited more than the others because of his close affiliation with Marvel, which has given him a cut of various deals, but that’s apart from the profits he should have received as the creator of so many superheroes).

It is this cruel exception to the general copyright rule in the U.S. that doomed so many comic book artists – and not just at Marvel.  For example, Jerry Siegel, who co-created of Superman, was treated horribly by DC Comics, depsite how much they profited from his creation.  Stan Lee himself even commented once on how the comic book market is the worst market for creative talent, in part because the creator doesn’t own his own creations.

And Roy Thomas, who became Marvel’s editor-in-chief after Lee was promoted to publisher, said that he tended to reuse old Marvel superheros in his work because he knew Marvel would own anything he created and he hated the thought of them – not him – making money off of TV shows or movies based on characters he created.

Different comic book artists and writers have tried to wrestle back control of their creations over the years but they’ve generally been unsuccessful.  After Jack Kirby died his estate sued Marvel to recover the right to the iconic heroes he had created, such as the Hulk and the Fantastic Four.  In 2011, however, a federal judge granted summary judgment in favor of Marvel because it found that Kirby’s work for Marvel was “work for hire.”  In other words, despite creating what came to be known known as The House that Jack Built, Kirby and his family had no right to profit from his Marvel creations beyond what he had initially been paid (a fraction of the billions made off of his characters by Marvel and Disney).

So reading this book has made me appreciate comic books much more than I ever had before.  On the other hand, it also  makes me sad for all the brilliant artists who have seen their works taken away from them because of the “work for hire” exception to the general copyright rule.  But I appreciate the fact that they did what they did, for so little, so that so many could appreciate their work.

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).