The Case for Jack Kirby
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Jack Kirby, who died in 1994, was arguably the most important comic book creator of the 20th century. His characters, which include the Fantastic Four, the Hulk, the X-Men, the Avengers, Thor and many others, have been earning billions of dollars worldwide as the result of major Hollywood films and licensing. Kirby earned a page rate only for pencil art during the period when these characters came into being, and afterward. He was never paid for his myriad conceptual and plotting efforts, which most often involved single-handedly creating the settings, characters and situations depicted in the stories. It is exactly how those characters were created while Kirby worked for Marvel Comics in the early 1960s that is at the heart of an ongoing court case.
On Sept. 29 the Supreme Court will hold its usual Monday conference and decide if they are going to take the “Disney/Marvel vs. Kirby” case under review at a later date. This case began in September 2009, when Jack Kirby’s heirs filed 45 copyright termination notices for the myriad characters he created. According to the U.S. Congress, “An artist can recapture a transferred copyright after one of two set periods of time. If an artist sold the copyright before 1978 they, or their heirs, can reclaim it after 56 years.” Marvel, which had been purchased by Disney that same year, responded by suing the estate the following January to invalidate their termination notices. The estate lost in the lower courts and lost on appeal, thus the current appeal before the Supreme Court.
Of particular significance is the popular superhero Spider-Man. While not a character usually identified with Kirby, it is perhaps the one with the clearest lineage. Originally named “The Silver Spider,” its origins began with Kirby’s longtime partner Joe Simon (together they co-created Captain America) and Simon’s brother-in-law Jack Oleck. You can read more about this history in the essay “Spider-Man: The Case for Jack Kirby” by Stan Taylor here). The importance of Spider-Man is that Simon enlisted Kirby to update the character around the same time Marvel editor Stan Lee was seeking a new line of superheroes following the success of The Fantastic Four. It is an example of Kirby presenting material to Lee, and the existing proof includes comic pages by artist C.C. Beck, a logo by Simon and character development by Kirby, all done prior to that meeting. At the crux of this case is whether, as a freelancer without benefits or guarantee of ongoing employment, Kirby was a free agent or his creations should be considered “work for hire.” Under oath Lee has stated that he created all the characters and assigned them to Kirby simply as an artist.
Several groups, including various Hollywood labor guilds, SAG-AFTRA (Screen Actor’s Guild of America-American Federation of Television and Radio Artists), the DGA (Director’s Guild of America), and the WGA West (Writer’s Guild of America West), are supporting the Kirby Estate in their efforts, as part of the amicus (“friend of the court”) brief before the court. Bruce Lehman, former Commissioner of U.S. Patents and Trademarks, Ralph Oman, former Register of U.S. Copyrights, and the Artist Rights Society filed the brief. The American Society of Illustrators Partnership (ASIP) and 221 notable cartoonists joined the brief (I am misidentified as a “cartoonist” as one of the signers). The issues of an individual freelancer’s rights have ramifications beyond comics and extend to music, film, and television.
I interviewed Kirby’s former assistant, animator and puppet creator Steve Sherman, about his time with Kirby, and the impending case:
Steve Sherman is owner and co-producer at Puppet Studio in Southern California. For the past 25 years he has created and overseen work for such clients as Katy Perry, Pee-wee Herman, Bette Midler, Chase Bank and Princess Cruises. He was Jack Kirby’s assistant, originally alongside Mark Evanier, from 1970 to 1975, and went on to work in animation at Filmation Associates and as a toy designer.
SB: Did you read comic books as a kid, and if so, which ones?
Sherman: Yes. I think the first comic I ever read was “Dennis the Menace” when I must’ve been 5 years old, at the barbershop my Dad took me to. Prior to that I had been hooked on the Sunday comics and cartoons on TV. I was a big fan of the funny animal comics. Later, I came across some coverless EC’s being sold at a local store. I started buying the DC line, “Superboy,” “Superman,” etc. I saved them all in a wooden Army footlocker. Unfortunately, we moved out of the country for a while, and the footlocker got left behind. My younger brother, Gary, and I started buying again and saving them. In the late ’60s we started buying the Marvel comics. We bought a huge lot of back issues from a high school friend. Kept them all. The first Kirby comic I ever came across was “The Fly” when it first hit the newsstand. Wasn’t sure at the time who Kirby was, but I liked the comic a lot.
SB: How did you come to work for Kirby?
Sherman: Mark Evanier, my brother and I were working at Marvelmania International, which was set up in Los Angeles. We were all members of the Los Angeles Comic Book Club which would meet on Saturdays at a local recreation center. We found the place and the fellow running it hired us to roll posters, package envelopes, etc.
I first met Jack when I, along with Mark Evanier, Gary and our friend Bruce Simon, drove to his place in late 1968 or early 1969 in Orange County, which is south of Los Angeles. At that time he was temporarily living in a 2-story townhouse. I don’t even think a lot of the furniture had arrived yet from New York. Jack had his drawing table set up in a tiny bedroom. He and Roz were very nice to us. They were looking to buy a house in Thousand Oaks, CA, which is about 40 minutes north of Los Angeles. Jack was doing a lot of the artwork for Marvelmania. It was a nice visit. A few weeks later Jack and Roz drove up to Los Angeles and took Mark and myself to lunch. He told us he was leaving Marvel, and would we like to be his assistants on his new DC titles? Of course, we both said yes.
SB: What was that experience like? Were you assigned tasks?
Sherman: It was fun and exciting. We (Mark and I) were given a chance to come up with ideas for magazines and characters for JACK KIRBY! Who wouldn’t be jazzed. Jack gave us assignments for “In the Days of the Mob” and “Spirit World.” He also allowed us to contribute ideas for “Jimmy Olsen.” We also came up with designs for different magazines, some Jack’s idea, some ours. Much later I contributed ideas to “Kamandi” and co-created “Kobra” with Jack.
SB: Were you nervous at first?
Sherman: We didn’t have time to be nervous. Everything happened so fast. Jack had to get out a book a week, on top of doing the first issues of the magazines and other things. Plus Mark and I were putting together “Kirby Unleashed” and planning a trip to NYC to attend the Seuling Con. That first year went by pretty fast.
SB: What was his work process like?
Sherman: Jack worked 7 days a week, about 10 hours a day. He would start around noon or 1, work for a while, take a break and get back to work at about 8 p.m., until 3 or 4 a.m. He would take a blank sheet of Bristol, rule it off, and start drawing. Nothing fancy or elaborate. The story was already in his head. He basically just transferred it to paper. He could usually do three pages a day. When he was done he would copy the pages and then ship them off to DC via Special Delivery USPS.
SB: Was he open to suggestions?
Sherman: Yes. Not so much with the 4th world books, since he had a very clear vision of what he wanted to do. But with “Jimmy Olsen” and “Kamandi” he was receptive to any ideas Mark and I might have had. When he did the “1st Issue Specials” he was very open to any ideas, since he was frustrated that he was coming up with characters and concepts that were only going to be used once.
SB: Did this experience have a lasting effect on you as an artist? If yes, how?
Sherman: Yes. I learned a lot from Jack. Especially how to be professional and how to develop a story so that it flows. It was really a privilege to be able to work with him.
SB: Did you remain friends?
Sherman: Oh yes. I was friends with Jack until the very end. We worked on 2 story concepts after he left DC—“Capt. Victory” and “Silver Star.” I would visit him at least twice a month. I am still very close friends with his son Neal.
SB: What are you thoughts on the ongoing court case with the Kirby Estate and Marvel?
Sherman: Well, by the time this is published we will know whether or not the Supreme Court took the case. I hope they do. All Jack ever wanted was for his family to be taken care of when he was gone. So if the Court finds that Jack was indeed a “freelance contractor” and that he does have a claim on the copyrights, I think an amicable settlement with his Estate could be reached. I’m pretty certain that his children do not want to be in the business of publishing comics or producing movies. In my opinion, what they want is an equitable acknowledgment of the contribution that Jack made in the creation of the Marvel Universe.
To read more about Jack Kirby’s working method while at Marvel, read the series “A Failure to Communicate” by Mike Gartland, at the Jack Kirby Museum and Research Center.
Special thank you to Patrick Ford, Michael Hill and James Romberger. Main printmag.com photo of Jack Kirby by Suzy Skaar (CC-BY-SA-3.0), via Wikimedia Commons.
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About Steven Brower
Steven Brower is a graphic designer, writer, and educator and a former creative director/art director of Print. He is the author and designer of books on Louis Armstrong, Mort Meskin, Woody Guthrie and the history of mass-market paperbacks. He is director of the “Get Your Masters with the Masters” low-residency M.F.A. program for educators and working professionals at Marywood University in Scranton, Pennsylvania. You can follow him on Twitter: @stevenianbrower.View all posts by Steven Brower →