Book Review: Kirby: King of Comics

           Today marks the 101st birthday of Jack Kirby. Kirby, who passed away in 1994, was one of the most prolific comic book creators of his generation. With the popularity and endurance of the characters he created, his legacy reaches far into today’s comic book world. 

Originally published in 2008, Mark Evanier’s Kirby: King of Comics (Anniversary Edition) (affiliate link) received a revised version in 2017, which I recently finished reading. For those wanting to learn more about Kirby, it is a must read.

            The book tracks Kirby’s life from childhood, to his early jobs, through his career in comics, his death, and the legacy he left behind. It is well-written, easy-to-read, and features great Kirby art and anecdotes about the “King,” including an amusing anecdote about how he received that particular title.

            Of particular interest to me were the business and legal issues touched on by the book, particularly during his falling out with Marvel in the 1960s. As related in the book, Kirby was aware of the increasing value of his contributions to Marvel, and, at his wife’s suggestion, even stopped creating new characters for the company to exploit. He frequently tried to obtain a better deal for himself, but was put off or ignored.

When Marvel was sold to Perfect Film and Chemical Corporation, the company was intent on keeping Stan Lee, believing he was main catalyst of Marvel’s success, but it was unaware of and didn’t care about Kirby’s contributions. As Kirby and his lawyers pushed for a better deal, or any deal at that particular point, the new owners stopped responding. The lack of respect for his contributions and the absence of long-term commitments or recognition for his contributions were primary factors in Kirby’s move to DC comics.

            While tales of character ownership, contract disputes, and lawsuits pop-up in the book from time-to-time, the revised edition also includes a chapter on the Kirby family’s attempts to reclaim copyright ownership to some of characters Kirby created for Marvel. While it doesn’t get too far into the legal issues involved, it does track the thoughts and feelings of the family leading up to their filing the copyright termination notices necessary to reclaim ownership, the initial settlement talks, and Disney’s abrupt end to the settlement talks by filing a lawsuit to seek a declaration that the characters Kirby created were made as a work-for-hire. It succinctly tells how the Kirby family lost in the district court and the second circuit, with those courts agreeing that Kirby’s contributions were done as a work-for-hire, and it briefly discusses the attempt to get the case heard before the U.S. Supreme Court, which was rendered moot after Disney/Marvel and the Kirby estate finally settled the case.

            Two themes I took away from the book were Kirby’s desire to provide for his family, and his ability to see value in comics when others didn’t. His focus on providing for his family guided him through many of his career decisions, and it led him to seek new deals to properly reflect his contributions, which he didn’t always receive. When Marvel was sold in the ’60s, the book relates how Kirby felt the value placed on the company was too low, remarking that the character Ant-Man was worth more than what Marvel was sold for. As the book points out, Kirby recognized the potential value in the characters and stories. Time has shown the value of Kirby’s contributions to the world of comics and proved he was right.   

Kirby: King of Comics is a well-crafted biography written by a former assistant, and friend, to Jack Kirby and continues to be the definitive book on his life and legacy.

Update - Hasbro and DC's Bumblebee Trademark Lawsuit

           Last year, I wrote about Hasbro filing a trademark lawsuit against DC Comics. The dispute was about DC's Superhero Girls toys featuring the character Bumblebee, which Hasbro believed infringed on its Bumblebee trademark protecting its Transformers character. I’ve continued to follow the case, and as of August 14, 2018, less than one year after the lawsuit was filed, it appears the parties have settled the case.

            DC’s counsel, James D. Weinberger of the law firm Fross Zelnick Lehrman & Zissu, P.C., filed with the court a letter to request dismissal and stating the parties have reached a settlement in principle. Details of the settlement are not given.

            As I mentioned in my original post, it was unlikely this case would actually see trial or reach a decision on its merits. Since the settlement appears to be confidential, only the parties’ actions going forward will give us clues as to what was agreed upon. I look forward to patrolling the toy aisles to see if there are any apparent changes to the packaging or branding of DC’s Bumblebee toys in the near future. 

Why Creators Don't Want to Hear Your Idea

            In the wake of San Diego Comic-Con, I’ve been seeing creators on social media reminding their fans to not pitch them their ideas for stories. Why is this? Because they, and their employers, don’t want to be sued.

            While copyright infringement is probably the first thing you’d think of, those types of lawsuits have proven difficult for plaintiffs to win. In order to win a copyright infringement lawsuit, you must have a valid copyright in a work fixed in a tangible medium, and the complained-of work must be substantially similar to the plaintiff's. Those two elements usually trip up a would-be copyright lawsuit, particularly because the plaintiff’s “work” is not eligible for copyright protection because it’s merely an idea.

            Since copyright infringement is hard to win, plaintiffs have turned to suing under an implied-in-fact contract, or more generally, an idea theft lawsuit. Basically, the plaintiff claims they described and/or showed their work to the defendant with the expectation that if the work was used, they’d be compensated for it. Instead of basing the claim in copyright law, it is now based in contract law, and by using the plaintiff’s idea without compensation, the defendant breached the implied contract. These lawsuits have been easier for plaintiffs to get deeper into court proceedings than copyright infringement lawsuits, but they have not met with great success. More often than not, especially in Hollywood ones, the plaintiff eventually loses.

            Even so, studios and companies would prefer to not fight these lawsuits, and it’s just easiest to not accept unsolicited pitches. It’s the main reason most comic book publishers with established properties do not hear unsolicited pitches for their comics, and it’s a policy they encourage their creators to follow as well.

            While your story idea might be a good, or even a great one, the risk for a creator is too high for them to hear it.

Do Dr. Seuss and Fair Use (Comic)Mix?

            I’ve been following the Dr. Seuss versus ComicMix case for a while. While the case is still ongoing, the ComicMix website recently posted a plea for help. ComicMix is starting to run out of money, and they are now seeking donations to continue defending the lawsuit.

           ComicMix chose to publish a mash-up book using intellectual property it does not own, and involving an area of copyright and trademark law that is still not well-defined, and it now finds itself involved in a lawsuit that could help define the legal boundaries of fair use, mash-ups, and even fan art, for everyone else.

            ComicMix’s plight is not atypical and brings up two points I’d like to discuss. First, fair use is a defense against copyright infringement claims. Second, defending your rights in the American legal system can be expensive and when you’re litigating a dispute in an area of law that is still being developed, your chances of winning are uncertain.

            As I’ve mentioned before, fair use is a strong defense to a copyright infringement claim. However, in order to avail oneself of it, you are probably going to be sued. Even though some courts have found the copyright statute to require copyright owners to consider whether fair use applies before filing an infringement lawsuit (see for example Lenz v. Universal Music Corp., 801 F.3d1126 (9th Cir. 2015), there have not been any cases, of which I’m aware, where the copyright owner has faced any adverse consequences for initiating a lawsuit.

            Even in the Lenz case, the court gives copyright owners leeway by stating they must have a “subjective good faith belief that the use was not authorized by law[,]” i.e., fair use. Basically, in my opinion, if an intellectual property owner believes you are infringing on their work, you are probably going to get sued if you don’t capitulate to their requests.

            No matter how great you think the chances are you will win your case, litigation is time-consuming and attorney’s fees can add up quickly. For the most part in the American legal system, each party pays their own fees. While there are some statutes that allow for a winning party to recover their attorney’s fees from the other party, it is not very common.

            One of the unfortunate side effects of the system is that it is safer and cheaper to not fight than to litigate a dispute, even if you believe you are in the right. I do applaud those people and companies that choose to fight. Without people willing to litigate cases, the boundaries of the law would not be explored and defined. Even when someone fights and loses, often society gains because the judicial decisions help shape and guide the decisions of others facing similar dilemmas.

            If you are interested in donating to assist ComicMix, the link is here.    

           

Tarzan, John Carter, Trademarks, and the Public Domain

            A while ago, I posted an article I wrote about ways content owners might be able to protect public domain works. One of the scenarios I mentioned in my article, using trademark rights as a way to protect the work, was actually used against a comic book publisher a few years ago.

            In 2010, Dynamite Entertainment launched a few new comic books adapting Edgar Rice Burroughs stories that had passed into the public domain in the United States. The titles of the comics were Lord of the Jungle, featuring Tarzan stories, and Warlord of Mars, featuring John Carter stories.

            The Edgar Rice Burroughs estate, ERB, Inc., filed a lawsuit in 2012. One of the issues ERB asserted was that Dynamite’s titles for the new comics violated ERB’s trademark rights by selling comics bearing titles confusingly similar to those used by ERB. Even though the Dynamite comics did not mention the main characters’ names in the title, the titles Dynamite chose had been used as subtitles in the past. ERB also claimed Dynamite’s publication of the books diluted or damaged its brands, partially due to some risqué covers associated with the books, and Dynamite’s publication of the books would harm the comic book licensing deals it currently had in place with another publisher.

            Unfortunately, from a legal observer perspective, the case did not get very far. After a few initial filings, the parties settled the case. Interestingly, as part of the settlement, Dynamite ended up acquiring the license to publish Tarzan and John Carter comics that had previously been with another publisher.

            Even though we did not get a ruling that might have given us a better understanding of the interplay between public domain works and trademark law, I still find it an interesting case. It shows the importance of securing trademark rights to ongoing titles, and a possible way for content owners to retain some control over works that might fall into the public domain.

            Barring another extension of the copyright term, a number of early, high-profile comic books should fall into the public domain over the next 15-20 years, such as the first appearances of Superman, Batman, Captain Marvel/Shazam, and Captain America. As tempting as it might be to reprint or create derivative works based on these stories, anyone attempting to do so should consider if there any trademark risks in doing so. Particularly, if the character is still being published.    

Why Reversion Rights Matter

            During the panel I hosted at C2E2 and another one I listened to, the concept of reversion came up multiple times. Since I believe reversion rights are an important concept for creators to understand and to ask for, I’ll talk a little more in-depth about it today.

            Reversion rights are when the rights you have granted to someone, e.g., the right to adapt your comic book into a film or TV show, automatically return to you. Typically, this occurs because of conditions set forth in your contract, such as a failure to raise enough capital within a set amount of time, failure to produce and distribute the movie/TV show within a set number of years, or it can even be a continuing progression of achievements that must be met in order for the other party to retain the rights to your work. If you do not have reversion rights, or termination rights, in your contract, you might not be able to reclaim the rights you have transferred.

            Reversion and termination are similar, but are structured differently. As I said before, reversion occurs if certain conditions aren’t met in the contract, and it’s typically supposed to occur without any action on your part. If the other party doesn’t meet the requirements, the rights come back to you on a certain date. It can also apply to all of the rights granted in the contract or only to some. Depending on the deal, a reversion could be the effective termination of the agreement, or the deal may continue with some of the rights returning. Termination provisions, while often dealing with similar subject matter, usually require an action on your part—a notification to terminate—in order for the contract to be terminated, and once a contract is terminated, the relationship is over.

            Reversion rights are important because it places an obligation on the party licensing the rights to your work to actually do something with those rights. Otherwise, they will lose the rights they’ve acquired. Reversion gives creators an easy way to regain unexploited or underutilized rights to your work and, hopefully, license them to someone else. You get more opportunities to see your work adapted into other media and more chances to make additional money.  

Wizard World Pitchfest

When the partnership was announced between Sony Pictures and Wizard World to hold pitch sessions at conventions, it was a little light on details. Now, we know how the two companies will handle the pitch sessions.

In advance of Wizard World Portland, Sony and Wizard World have revealed how to participate in their pitch process. Instead of pitching to Sony, the pitch process is with Columbia Pictures, a Sony subsidiary. To participate in the 2018 Portland Pitchfest, you must attend Wizard World Portland as an attendee, exhibitor, or artist, submit your idea for a movie through the online portal, and be selected to pitch your idea at the show. You also must agree to two privacy policies and a Submission/Pitch Release.

I skimmed over the Submission/Pitch Release, and there is a lot of the typical information you’d expect in it. Just because Columbia is hearing your pitch it isn’t obligated to buy your idea, compensate you for your idea if they don’t use it, or produce your pitch. If they like your pitch, you agree to negotiate with them. Also, I didn’t see anything obligating you to pay Wizard World. So, any money Wizard World receives should be coming directly from Columbia.

Columbia also lists a number of ways they won’t compensate you if it ends producing something similar to your idea. If your pitch “(a) is substantially similar to or contains significant elements of a concept Company already had under consideration or in development at the time of my submission or presentation, or (b) is not unique, novel, original, or concrete so as to be entitled to intellectual property protection under the law, or (c) has been made public by anyone at the time of my submission or presentation, or (d) is in the public domain or otherwise would be freely usable by a third person as a member of the general public, or (e) is not protected by federal copyright law, or (f) was not fixed in a tangible means of expression or (g) was, is or may be obtained by Company from other sources, including without limitation, Company's own employees or associates or those of third parties independently of my creation, whether before or after the date of my submission and/or presentation[,]” then Columbia will not be obligated to compensate you for your pitch. 

The agreement also includes some other unfavorable language to those pitching to Columbia. For instance, if you have to sue Columbia, by agreeing to the release you agree to binding arbitration instead of court, and the arbitration will take place in Los Angeles. Additionally, any damages you might get from Columbia are limited to fair market value of the script – at the time of original negotiation. Furthermore, you agree you cannot seek an injunction against Columbia preventing release of any TV show/film/media/etc. produced using your idea during the course of litigation, which can be a major bargaining chip. Also, if you lose in a lawsuit/arbitration, you will pay all of Columbia’s fees. Another interesting piece of language in the release puts the burden on you to prove Columbia didn’t independently develop the idea, had access to it, copied it, and otherwise establish all elements of Columbia’s liability. You also agree that your submission doesn’t presume Columbia took or copied your pitch or otherwise had access to your pitch, other than the person hearing it. 

What steps can you take to protect your idea if you are interested in participating in the pitch process at Wizard World? Based on the language giving Columbia broad exemptions, and as a best practice in general, you want your pitch to be as original as possible, as fully developed as possible, and committed to writing, paper, or other media in some way.

I still believe this to be a worthwhile effort for Columbia to find some different ideas outside of the typical Hollywood landscape. By requiring submissions in advance, they can determine if there are any ideas they are actually interested in hearing before committing resources to attend a Wizard World convention, which can limit their financial burden. Even though the release seems ridiculous and broad, Columbia needs it to manage its risk. Idea theft lawsuits are common in Hollywood, and it’s the main reason most companies don’t accept unsolicited pitches.

If you choose to participate, good luck, have fun, do your best, and don’t forget to negotiate.