Saturday, July 31, 2010

Thor, the public domain and estates, or Support Kirby part II

How distinct is Thor from Thor?

In the follow-up I've seen to the original comment by Stephen R. Bissette, my restatement of it and Support Kirby, that seems to be the biggest lingering issue.

Well, less that anyone who has a passing knowledge of both Norse mythology and The Mighty Thor have much question of it, but as Academy Award nominated screenwriter, and my favorite Trailers From Hell guru, Josh Olson notes, "Crisp, clear soundbites are the only hope, and as much as those of us who live in the comic world understand this issue, the fact is, Kirby didn't actually create Thor."

Well, he did co-create Donald Blake, which is the story they're telling.

Jack Kirby, Stan Lee and Larry Lieber, created "The Mighty Thor", the comic book on which Thor by Kenneth Branagh is based, as much as Douglas Adams created The Long Dark Tea-Time of the Soul and Neil Gaiman created American Gods.

However, I agree, in saying that, I've already passed my "crisp, clear soundbites" for the issue, and I still haven't explained enough to get past "But it's called 'Thor'!"

What's the answer? People say use The First Avenger: Captain America as the target of such an publicity attempt. It's a great, punchy choice. Captain America is so quintessential and iconic, and so clearly created by Kirby and Joe Simon, it's not even funny.

But then that's fuzzy, too.

Captain America is a generation before the creation of the Marvel Universe, as we understand it, and it's those Silver Age icons that are what the Kirby Reclamation Case is about. I don't believe Cap is a part of it at all.

It could be set up with a "Jack and Joe already lost their claim to Cap, but..."

I think that's too drawn out, too.

What about The Avengers?

As a target, it's brilliant. Seriously. It's slightly less straight-forward and iconic outside of the comic book realm, but The Avengers is a concept co-created by Kirby, originally revolving around characters co-created by Kirby, and seemingly the movie will also be using entirely Kirby co-created characters as well.

There's nothing more Kirby than "The Avengers".

But where is the reclamation suit in 2012? Almost certainly not over, but I bet already in need of a jolt of public sympathy, especially if Marvel is riding high off the success of two movies in a row based on Kirby's work, swinging public feeling toward them even higher.

Frankly, I'm not sure the other choices are better than Thor. I think it is simply an uphill battle.

The second concern I've heard most often is that Jerry Siegel and Joe Shuster were alive to make the case. They were the actual creators, living in or near poverty while more powerful men profited enormously off their creation.

The Kirby Estate suffers in being "merely" the surviving relatives, living middle class lives. They don't have nearly the same emotional effect in simple "sound byte" terms.

Not to mention, they are easy targets for cheap, ugly and ignorant attacks such as in Jack Kirby’s Estate Sues Disney/Marvel by Paul Young, "In a move the [sic] reeks of opportunism and greed, Jack Kirby's Estate (a.k.a. his family) have hired Intellectual Property Lawyer Marc Toberoff to sue Disney/Marvel..."

Young goes on to write, "When a programmer working for Microsoft writes a new program and it turns into the major code behind a new piece of Microsoft software, that programmer doesn’t own the rights to his code. He was paid by Microsoft to write it and has already been fairly compensated for his time and effort. He doesn’t have the right to sue once that program starts making millions of dollars, just because he is jealous."

But as Bissette notes, "Work-for-hire did not exist as a legal concept prior to the 1976 Copyright Act (effective 1977). The 'understanding' was all rights were sold to the publisher, but the legal premise of that transaction, as a matter of copyright law, simply ...did not exist in North America prior to 1976."

And that's not even getting into the complexities of Reclamation Law, which Young makes no attempt at explaining or, seemingly, at understanding.

Not to mention his statement, "Sure, he will always get 'creative credit' for coming up with them in the first place..." is patently inaccurate, as can be demonstrated by walking into nearly any comic book store and flipping to the credits on one of the dozens of comic books based on his creations, or watching nearly any of the movies and television shows derived from his work.

Frankly, Marvel would have been in a much better position to say they were following what they believed to be their moral duty by Kirby and his legacy, thus making them seem much less like reprehensible thieves, had they bothered to do this one simple thing. However, they have systematically not given him his "creative credit".

I'd much rather if Kirby were alive and this was his decision to take on this battle. I'd much rather see Kirby in the limelight, making his case to the public.

But the Kirby Estate has consistently worked toward honoring the legacy of Jack Kirby and his work for many years and in many ways. I think reducing their motives to merely mercenary is cheap, and defies the evidence at hand. I think it says more about the (potential) motivations of those jumping to the conclusions than it does about the Kirby Family.

Even using that conclusion, however, I fail to see what it means, other than to slander.

As current intellectual property law goes - and in this I don't always agree in principle, but we're working from what is - the rights to these properties is not much legally different from an object.

If this were a valuable painting and it were wrongly taken from a person - or perhaps leased under an unclear arrangement from a person - and that person passed away and their family tried to reclaim that painting, would people have the same reaction?

Even if that family was merely greedy and wanted the painting for its monetary rather than its personal value, would anyone really slander them for it?

There's something seriously fucked up about people.

NOTE: In looking back, I see that Kim Newman made a mention of "American Gods" in his comment on Bissette's original statement. I suspect I was subconsciously recalling this when I made similar remarks here.

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