Marvel, Jack Kirby, and the Comic-Book Artist’s Plight

One week ago, Marvel put out a press release announcing something special: a five-day celebration of the life and work of Jack Kirby, the spectacularly talented and influential artist whose work underlies the majority of modern superhero comics. “Jack ‘The King’ Kirby is one of the founding fathers of the Marvel Universe,” the release trumpeted. “From August 22nd to the 28th—what would have been Kirby's 99th birthday—Marvel will pay homage to the incredible and iconic contributions Kirby has made to the House of Ideas, entertainment, and pop-culture.” On offer were articles about Kirby’s creation of famous Marvel characters, podcast interviews with his son and granddaughter, and retrospective collections of Kirby’s art.

Born Jacob Kurtzburg in 1917, Kirby was the son of immigrant Jewish parents who settled in the lower east side of Manhattan. Kirby started drawing young, teaching himself the rudiments of the fast, explosive style that became his calling card. He drew monster comics, romance comics (a genre he had a hand in creating), westerns, and science fiction. In 1940, he and his fellow artist Joe Simon created Captain America. In 1961, he and Stan Lee collaborated on Fantastic Four, the first modern Marvel superhero comic. It was the start of a partnership that produced a pantheon of characters: Thor, Ant-Man and the Wasp, The Hulk, Iron Man, Black Panther, The Fantastic Four and Doctor Doom, The Inhumans and the X-Men, and far too many others to name. The Marvel comics universe and its accompanying blockbuster films simply would not exist without the cigar-chomping Jack Kirby. (Indeed, it’s possible that Star Wars, which bears a remarkable resemblance to Kirby’s Fourth World saga for DC Comics, wouldn’t exist either.)

Marvel’s “Kirby Week” covers all of this in glowing fashion. But the articles all gloss neatly over the other side of the story: namely, the fact that Marvel fought a decades-long battle to keep Kirby from claiming creative and financial control over his creations, culminating in a legal dustup with his heirs that very nearly landed in front of the Supreme Court. The story of Kirby’s struggle with Marvel is also one of the most public examples of the lengths to which even the greatest of creators had to go in order to get credit—and compensation—for his work.  

The origin of Kirby’s battles with Marvel go all the way back to his collaborations with Stan Lee, who, as part of the “Marvel Method,” assigned plot summaries to artists, left while they plotted and penciled the comic, and then wrote dialogue over their work. This was a method born partially of necessity: The overworked Lee wasn’t just Marvel’s primary writer, he was also the main editor with a stable of books to get out. As a result, though, Kirby was often the driving influence behind many of the stories they worked on. (In one oft cited example, Lee told Kirby simply: “Have the Fantastic Four fight God.” Kirby came back with a fully plotted saga of Galactus the World Eater and the Silver Surfer, characters who went on to become major figures in the Marvel Universe.)

As their comics grew incredibly popular, Kirby began to push for recognition for his role in plotting stories and creating characters. He made little headway. Frustrated with his lack of both credit and creative control, and angry at Marvel’s continual refusal to offer him a share of the money his creations were raking in, he eventually left for DC Comics in 1970. As recorded in Sean Howe’s Marvel Comics: The Untold Story, Kirby gave an interview shortly after his departure: “I was never given credit for the writing I did,” he said. “It was my idea to do [The Fantastic Four] the way it was...I had to come up with new ideas to help the strip sell. I was faced with the frustration of having to come up with new ideas and then having them taken from me.”

In the mid-1970s, Congress revised the laws around copyright, offering longer periods of ownership for copyright holders—if the proper paperwork could be provided. Marvel realized that many of its previous contracts were legally questionable, remnants of the comics industry’s fly-by-night origins with regards to creative work. In 1978, the company began handing out freelancer contracts that guaranteed the company “forever all rights of any kind and nature in and to the work.” As Michael Dean wrote in a 2002 issue of The Comics Journal, these “work for hire” contracts were partly a result of the superhero boom Kirby himself had a hand in creating. “It wasn’t just monthly comic books that were at stake any more,” Dean wrote. “It was the vast ancillary potential of licensing and merchandising the content of those comics.” The contracts legally formalized what had previously been loosely assumed to be corporate policy, but having it in writing gave many comics freelancers pause for thought. When Kirby got the contract, he refused to sign it and left Marvel for good.

But Marvel wasn’t done with him. When the company began offering to return original artwork it had long held in storage, it did so by referring to the art as a “gift.” In exchange, the creators had to sign a one-page release agreeing that the art had been produced as work for hire. Most did, though with reservations. Kirby himself, sick of fighting over ownership, indicated his own willingness to sign.  But instead of the standard release, Marvel sent him—and him alone—a four-page document in 1984.

The contract offered a parade of indignities, Dean wrote: Kirby would have no ownership of the physical artwork, would be unable to copy, reproduce or sell any portion of it, and in effect had only the right to store the work for Marvel. Marvel could call the work back at any time to be “revised” or “modified.” More galling, signing the contract would not only turn over Kirby’s legal rights to his characters, it would force Kirby to surrender any rights Marvel wasn’t already entitled to, forbidding him from assisting others in disputing copyrights or complaining—even in private—of the document’s unfairness. Worst of all, the contract only offered 88 pages out of the thousands of pages of work Kirby had produced for them. By signing, Kirby would acknowledge that he was entitled to nothing more.

Kirby hit the roof. For three years, he and Marvel fought over the return of his art. Enraging him further, some of his original pages began appearing for sale by private dealers (likely the result of thefts from the famously disorganized Marvel storage.) Part of Marvel’s intransigence, Dean wrote, came from their concern that any ground they gave Kirby could be interpreted as legal proof of ownership. Eventually, though, the sheer hurricane of bad publicity and pressure from the rest of the comics industry forced them to cave. In return for signing the original release guaranteeing Marvel’s ownership, Kirby got 1,900 pages of artwork back and creator credits on many of his characters. He would not, however, see financial compensation or residuals for his work.

All of this might seem like ancient history. But as the comics writer Kurt Busiek noted, the ’70s change in copyright law didn’t just extend periods of ownership, it also provided a window whereby copyright sellers could renegotiate sales. Kirby didn’t live to see that window open: He died in 1994. But in 2009, Kirby’s heirs filed notices of termination with Marvel, which the law allowed them to do.

For Marvel, which had been profiting mightily off of the boom in superhero films, this sparked a panic. The company had recently been bought by Disney for $4 billion and had begun releasing its own superhero films—Iron Man, Thor, The Incredible Hulk—all of which were making a healthy profit, and all of which were based directly on Kirby’s work. Marvel sued Kirby’s heirs to stop the copyright termination, arguing once again that Kirby’s creations had been work for hire. But this proved an unexpectedly difficult point to nail down. “It’s not about whether Kirby knew Marvel got all rights,” Busiek explained. “It’s about whether Kirby owned the rights and sold them, or whether he was just an employee, and Marvel owned all his ideas before they even came out of the pencil.” Marvel was gambling on the latter.

The resulting legal fight lasted five years, with claims, counterclaims, and appeals. In 2014, it came within a whisker of landing before the Supreme Court, with the Writer’s Guild, Directors Guild, and Screen Actors Guild—among others—filing amicus briefs arguing against Marvel. The day before the Court went into conference to decide whether or not to take the case, Marvel opted to settle. As Dominic Patten noted in his coverage for Deadline, the resulting agreement likely came from panic. The company would have had to negotiate with the Kirby family for everything, including back-royalties on hits like Guardians of the Galaxy and rights for the Avengers characters (something the family could have fairly demanded millions for).

There were further implications Marvel wanted to avoid as well. “A wide variety of copyrights across the industry, including those at Warner Bros and DC Comics, would suddenly be in play,” Patten wrote. Freelancers or those with work-for-hire status—such as writers and composers—could gain rights to their work, as if they were traditional employees.

The long battle between Kirby and Marvel had—for now—been laid to rest.

While the details of the 2014 settlement between Marvel and the Kirby family are secret, it’s likely—given the amount Marvel stood to lose if the case went to trial—that the terms were generous. But while Kirby’s family may have finally gotten some measure of compensation, they are very much the exception.

The history of comics creators getting shafted as their work went on to make thousands is a long one. A quick sampling of names: Siegel and Shuster, the creators of Superman, who lost ownership of their creation and were cast aside, only receiving cover credits and meager financial compensation in the late 1970s. There’s also Bill Finger, who did the majority of work creating Batman only to see his co-creator Bob Kane walk away with a contract for sole credit and royalties, which he largely maintains to this day.

Bill Mantlo, the creator of Rocket Raccoon, has substantial medical bills and his family often requests help from the public in meeting them.* Gary Friedrich, one of the creators of Ghost Rider, attempted to sue Marvel for control of the character, only to be hit with a countersuit demanding $17,000 in damages for the author’s sale of unlicensed merchandise at conventions, a commonly accepted practice. And who can forget Alan Moore, who produced the seminal graphic novel Watchmen under an agreement that the rights would revert to him when it went out of print, only to find that DC had no intention of allowing that to happen.

It’s a well known fact in the comics industry and fandom that while superhero films make hundreds of millions at the box office, many creators of classic characters rarely see a dime for their work. They often have to rely on charity organizations like the Hero Initiative—founded to help comic artists in financial need—if they’re alive, and they have little to leave to their families after they’re dead. This is, of course, completely legal under current definitions of copyright law, regulations that have been repeatedly altered to help protect the corporations that hoard intellectual property. But it’s also the sort of thing the companies in question largely prefer not to talk about. Marvel’s “Kirby Week” content all links to Kirby4Heroes, a program created by Kirby’s granddaughter Jillian that raises money for the Hero Initiative while neglecting to discuss why such a program might need to exist.

All of which makes Marvel’s celebration of “Kirby Week” so bittersweet. Kirby’s vast legacy marches on. So, unfortunately, does its shadow: the long history of the industry using up artists and tossing them aside like so much crumpled paper. There’s a famous anecdote told by James Romberger, the artist of the graphic novel Seven Miles a Second. In the 1980s, Romberger met Kirby at a convention and showed him some of his work. “Kid, you’re one of the best,” The King said, looking over the portfolio. “Don’t do comics. Comics will break your heart.”

* This article originally stated that Bill Mantlo depends on charity for his medical care. We regret the error.