Super-busy today, but can’t let this go by without urging you to read this extensive and interesting article at Copyhype on the Kirby vs Marvel case.
Like most people, I did not have a grasp on the way 1909 copyright is applied. Most contemporary creators believe that there was no work for hire provision until 1976. But the 1909 law was not wiped out by the 1976 copyright law. Terrance Hart, who is probably the best art and entertainment blogger out there, explains in detailed layman’s terms.
Factors that a court might consider include “the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.”
Also, MStein popped in with some comments to the previous Kirby post, with a look at how the Kirby case differs significantly from the Superman rights dispute. A pdf of the relevant documents is here.
It is instructive to read and compare the decision in the Superman case, which explained why Action #1 was not a work for hire and therefore could have the assignments terminated under the 1976 law as the Kirby family contended they should have been able to do.
I’ve angered a few people by stating that I don’t really thing the Kirby heirs have much of a legal case here, but I’m not sure why my stating the obvious is substantive to anyone. I am not a lawyer, so my opinion doesn’t matter much.
The moral issue of whether or not a corporation might see the benefit of granting a substantial gift to the children of a creator is a completely separate issue. I don’t think the art and entertainment industry has a track record of doing that sort of thing.
Creators, the lesson was hard won by our forefathers. Don’t sign away your precious creations without the full understanding of what you are doing. I’ve signed many work for hire agreements, and have never had cause to regret it, because the work for hire contracts I sign with DC Comics are substantially better than anything creators got 50 years ago.
Yet there are many publishers, including small ones who sell themselves as little mavericks fighting against The Man, who will sell you a bill of goods about what they want on the cheap.
You can be Jack Kirby.
Or you can be JK Rowling.
