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Author Topic: Jack Kirby's copyrights and Steve Ditko's departure from Marvel Comics  (Read 7917 times)

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Offline John C

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #15 on: March 22, 2011, 04:03:49 PM »
Without Kirby, Marvel would be known as the company that went out of business in 1941.  Stan Lee never would have been heard of.

Even granting that, which I think might be a stretch, what difference does it make?  He got paid in 1941 for the work he did in 1941.  He got paid in 1961 for the work he did in 1961.  Fans try to make it sound like he was slave labor chained in the basement or that his private files were published without his knowledge.  He submitted work on request for an ongoing publication in exchange for money.

And on the flip side, by the way, who would have ever heard of Kirby without Timely/Marvel?  How many people HERE, let alone in the outside world, can name the Boy Commandos or the Newsboy Legion, for example?  Does anybody imagine a Guardian, Fighting American, or Captain Victory movie around the corner?  Where are the extended print runs of his comic strip work?

Without Kirby, there would have been no Silver Age comics revival because without Challengers, Showcase never would have lasted long enough for the Flash to get his own comic book, DC never would have gone on a teams binge which resulted in buying Blackhawk, creatings Sea Devil, Suicide Squad, Rip Hunter, Cave Carson and .... the Justice League of America.

OK, so how much should Image pay the Kirby family?  They've benefited, too, after all.  Perhaps all modern comic companies (and, heck, creators) should donate ten percent of their income to the Kirby family for his influence.

Oh...wait.  But what about all the creators whose work you don't care for, but kept the companies in business by producing thousands of throw-away stories that were just interesting enough to make the next sale?  They probably don't deserve anything for keeping the industry alive long enough for Jack to create his influence, of course.  They only did their work and got paid for it...

Contracts or not, my point is that he created on request (even if the request was vague and he did a lot to fill it) with full intention that someone else take ownership and publish it.  Unless Jack and Steve were complete idiots, there's no possible way either of them could have believed they owned what Marvel was publishing any more than a migrant field hand would think he's getting a cut of the profits when the crops are sold.

Also, influence isn't something an employer or client pays for after the fact.  You don't hire a lawyer then go back to him ten years later to give him more money because you've since discovered he's more talented or better connected.  Nobody seeks out Nikola Tesla's family to dump money on them because he made alternating current work...and I'd say that's a little more influential than the Challengers of the Unknown.

If Ditko had stayed at Charlton, Captain Atom and the Blue Beetle would probably have become the most successful characters of the sixties.

His track record doesn't suggest that at all, even if I'd love a history where it was true.  Nor do I see any hint that Blue Beetle was undergoing any kind of growth spurt, though I admit I've never sought out or crunched the numbers.

Digital Comic Museum

Re: Steve Ditko and the departure from Marvel Comics,
« Reply #15 on: March 22, 2011, 04:03:49 PM »

Offline narfstar

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #16 on: March 22, 2011, 08:31:31 PM »
Ditko's objectivist Blue Beetle would probably have had the same number of sales as his Mr. A. As John has pointed out the industry had as much to do with their success as they had with industries.

Offline darkmark

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #17 on: March 22, 2011, 11:56:50 PM »
Well, guys, let's face it...neither the Creeper nor the New Gods made enough money for DC to want to continue them.  Could they have become hits if DC stayed with them, as Marvel did with Conan?  Maybe.  I'd like to think so.  But...maybe not.

Also, it's debatable that Captain Atom or the Blue Beetle would have become THE success stories of the Sixties.  True, they were great characters, and I loved those books.  But Marvel and DC ruled the superhero world even then, and the other companies caught sloppy seconds from their tables.  The only one I can see making a real challenge to Marvel and DC would have been Tower, and they sputtered out all too soon.

Offline josemas

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #18 on: March 23, 2011, 08:24:05 AM »
Even if Martin Goodman didn't keep all of his promises to his creators he comes across as almost a saint when compared to a publisher like Victor Fox.

Best

Joe

Offline bminor

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    • Brian and Rebecca Minor Watercolors
Re: Steve Ditko and the departure from Marvel Comics,
« Reply #19 on: March 23, 2011, 10:08:09 AM »
Even if Martin Goodman didn't keep all of his promises to his creators he comes across as almost a saint when compared to a publisher like Victor Fox.

What was Mr. Fox like?
« Last Edit: March 23, 2011, 10:39:49 AM by Yoc »

Offline Yoc

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #20 on: March 23, 2011, 10:45:46 AM »
Funny you should ask B...   ;)

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Offline Bob Hughes

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #21 on: March 24, 2011, 04:10:43 AM »
Boy some of you buy into the company store mentality without as much as an eye blink.  Fact: Kirby had contracts with almost every publisher he ever worked with up until the late 50's.  Therefore his expectations were not to be treated as "slave labor", a field hand, or a migrant worker.  Second we're talking about contract law and copyrights here.  The "expectations" were that none of these characters were going to last long enough to bother with renewals.  Artists "sold" their work for a period of 28 years.  Until that 28 years was up and things came up for renewal there was no expectation of what would happen next.  Joe Simon got all his copyrights back.  Siegel and Shuster didn't.  The courts eventually ruled that copyrights remained with the purchaser for the renewal period- but there was no "expectation" that that would happen because it had never been done before.

All copyrights were supposed to run out after 56 years. Then Congress extended the law and returned the copyrights to the original creators.  Congress did it. The law says it.  Marvel and DC have no case.  The slaves have been freed. The Emancipation Proclamation was signed.  End of story.  Now, if Goodman had been smart enough to get Kirby to sign a work for hire contract it would be a different story. But since he can't prove it was work for hire, it wasn't.  Burden of proof is on Marvel.

Offline josemas

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #22 on: March 25, 2011, 08:44:22 AM »
Boy some of you buy into the company store mentality without as much as an eye blink.  Fact: Kirby had contracts with almost every publisher he ever worked with up until the late 50's.  Therefore his expectations were not to be treated as "slave labor", a field hand, or a migrant worker.  Second we're talking about contract law and copyrights here.  The "expectations" were that none of these characters were going to last long enough to bother with renewals.  Artists "sold" their work for a period of 28 years.  Until that 28 years was up and things came up for renewal there was no expectation of what would happen next.  Joe Simon got all his copyrights back.  Siegel and Shuster didn't.  The courts eventually ruled that copyrights remained with the purchaser for the renewal period- but there was no "expectation" that that would happen because it had never been done before.

All copyrights were supposed to run out after 56 years. Then Congress extended the law and returned the copyrights to the original creators.  Congress did it. The law says it.  Marvel and DC have no case.  The slaves have been freed. The Emancipation Proclamation was signed.  End of story.  Now, if Goodman had been smart enough to get Kirby to sign a work for hire contract it would be a different story. But since he can't prove it was work for hire, it wasn't.  Burden of proof is on Marvel.

Bob,

While I've read quite a bit about copyright regarding films over the years I'm still learning about it as regards comics (and periodicals in general).  While there are similarities I know there are differences too.

Are there any good sites you'd recommend that would address this.  I'm especially interested in any that address the ways in which a creator, such as Joe Simon, was able to regain copyrights to his material.

Thanks

Joe

Offline John C

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #23 on: March 25, 2011, 04:03:57 PM »
Joe, the formal term is Termination Right of Transfer of Copyright (informally, and stupidly misleadingly, "Copyright Termination"), I believe, and this is a decent overview.  I can't find a solid bit for writers, though, only musicians, so double-check any numbers with the Copyright Office.

http://www.aimp.org/copyrightCorner/2/Termination_Rights_-_Explained

And no, Bob, I haven't "bought in" to any mentality.  Kirby ran his own company.  It didn't survive and he went back to Atlas.  He worked independently.  Nobody knows about those projects.  Conclusion:  Marvel had more than a little to do with his success.

Now, I agree with you that copyrights have been stretched all out of proportion, but where we differ is that I don't think that Kirby's family deserves the extended rights more than Disney (Marvel's current parent) does, just because Disney is a faceless corporation.  Neither of them do, but Marvel invested more over a longer period then some relatives of the artist did, surely.

Offline Yoc

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Depositions Reveal Glimpse of Kirby/Marvel Copyright Lawsuit CBR link
« Reply #24 on: March 25, 2011, 07:25:16 PM »
Here's an entry on CBR on the very subject with depositions sited.

http://www.comicbookresources.com/?page=article&id=31268


Happy reading
-Yoc

Offline John C

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #25 on: March 26, 2011, 08:18:22 AM »
Evanier's deposition comes off as strangely desperate to me.  His idea, as quoted in the article, seems to be that it can't be a "work for hire" because the term wasn't defined until...well, the very 1976 Act that creates the Termination Right.  But if that's the case, then his assertion is essentially that nobody prior to 1978 had a work for hire agreement, which was clearly not Congress's intent in defining the term.

Offline Bob Hughes

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #26 on: March 28, 2011, 10:24:04 AM »
A lot of comics companies didn't survive the 50's- including (almost) Marvel.  When Kirby returned to Marvel Goodman was hanging on by the skin of his teeth and threatening to close up shop any minute.  Only Kirby and Ditko saved his butt.

Offline josemas

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #27 on: March 30, 2011, 09:29:01 AM »
Here's Joe Sinnott's recent testimony regarding "work for hire" and such.

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2010cv001\
41/356975/92/


I, Joe Sinnott, hereby declare as follows:
1. I am familiar with the facts set forth below and make this declaration of my
own personal firsthand knowledge in support of defendants' motion for summary
judgment and defendants' opposition to plaintiffs' motion for summary judgment.

2. I first began working as a comic book artist soon after I began my studies in
1949 at the Cartoonists and Illustrators School, which later became the School
of Visual Arts, in New York City, on the G.I. Bill. Tom Gill, an instructor at
the school, asked me to act as his assistant on his freelance comics work. I
drew backgrounds and incidentals on Gill's Western comic books published by Dell
Comics.

3. I then branched out on my own. For my first professional solo art job, I drew
the feature Trudi for issue No. 12 of the humor comic "Mopsy" (September 1950).
I made contact with Stan Lee at Timely Comics (a.k.a. Atlas Comics), which is
what the company generally was called before it became Marvel Comics, and I
began drawing and selling freelance artwork to Timely. During the 1950s and
1960s, I created artwork for hundreds of stories and comic book covers published
by Marvel, including for "Adventures into Terror" (February 1952 to February
1954), "Strange Tales" (June 1952 to October 1959, March 1962 and December
1965), "Arrowhead" (April 1954 to November 1954), "Battle" (March 1954 to March
1955, February 1958, April 1958, and February 1959 to October 1959), "Wild
Western" (June 1954 to December 1954 and May 1957 to July 1957), "Navy Combat"
(June 1955 to October 1956), "Journey into Mystery" (July 1955 to January 1960
and March 1962, April 1962, and March 1963 to September 1963), "World of
Fantasy" (February 1959 to August 1959), "Tales of Suspense" (March 1959 to
November 1959), "Tales to Astonish" (March 1959 to November 1959, March 1963 and
April 1963), "Strange Tales Annual #2" (1963), "Journey into Mystery Annual #1"
(1965), "Fantasy Masterpieces" (February 1966 and August 1966), "Thor Annual #2"
(1966), and "Marvel Tales" (July 1967 to November 1967).

4. While selling freelance artwork to Marvel, I also sold comic book artwork to
Standard Comics in 1952, to DC Comics in 1957, to Harwyn Publishing for the
Harwyn Picture Encyclopedia for children in 1958, to Charlton Comics from 1959
to 1963, to Dell Comics from 1963 to 1969, and to George A. Pflaum (publisher of
Treasure Chest) from 1962 to 1963, and from 1970 to 1971.

5. I was also a freelance inker. For instance, in 1962 I inked "Fantastic Four"
no. 5 in which Jack Kirby introduced "Dr. Doom," and I inked the now famous
56-issue run of Kirby's artwork on "Fantastic Four" from issue no. 44 in
November 1965 to issue no. 102 in September 1970. I also inked many issues of
Kirby's "The Mighty Thor," and "The Avengers." In the process I got to know Jack
Kirby's work and remarkable creativity quite well and witnessed his characters
and stories as they evolved.

6. There is no question in my mind that Jack Kirby was the driving creative
force behind most of Marvel's top characters today including "The Fantastic
Four," "The Mighty Thor," "The Incredible Hulk," "X-Men" and "The Avengers." The
prolific Kirby was literally bursting with ideas and these characters and
stories have all the markings of his fertile and eclectic imagination.

7. I was awarded the Alley Award in 1967 and 1968 by comic book fans. I also was
honored with the Inkpot Award at the 1995 Comic-Con International convention in
San Diego. In 2008, when the Inkwell Awards were created, the Joe Sinnott Hall
of Fame Award was named after me. I received my own Joe Sinnott Hall of Fame
Award in 2008.

8. I semi-retired in the early 1990's. However, I still ink "The Amazing
Spider-Man" Sunday strip for Stan Lee.

9. In the 1950's and 1960's I was not on staff at Marvel, but instead worked on
a piecemeal freelance basis. I did not work in Marvel's offices; I worked out of
my home. I furnished and paid for all of my own art supplies and overhead. I was
not reimbursed by Marvel for these or any other expenses. I also did not receive
health or other benefits from Marvel in this period.

10. I had no contract with Marvel when working as a freelancer in the 1950's and
1960's. In those days the business was very small, hectic and disorganized. You
worked hand-to-mouth to feed your family with no financial security at all. In
about 1957 Marvel decided to fire nearly all its staff, and even stopped buying
any freelance material from freelancers like me for six or seven months, because
it apparently had a surplus of material.

11. Although I had a good relationship with Marvel, it was my understanding that
they were under no legal obligation to buy any work from me, and that payment
for my material was always subject to their acceptance and approval of the
finished product. It was only after I submitted completed material, and Marvel
approved it, that I was paid at a page rate multiplied by the number of pages
Marvel bought.

12. In the mid-1970's, I went under contract with Marvel, and Marvel provided me
with health insurance, vacation pay and other benefits.

13. I recall that the checks that I received from Marvel in the 1960's as a
freelancer had pre-printed language on the back. It said that by endorsing the
check, I was acknowledging payment for my assignment of the copyright and all
other rights in my work. I was not being paid for my time or services. I
remember a particular instance when I was asked to change the splash page of a
story I had drawn; I was only paid for the final story not for redrawing the
first one. From all of this, I understood in the 1950's and 1960's that Marvel
was buying my material once they approved and accepted it.

14. Years later, beginning I believe in around 1978 or 1979, Marvel suddenly
changed the printed statement on the back of its checks to say that by endorsing
the check the artist was acknowledging that Marvel owned all rights in the
artist's work as "work for hire." This may well be the first time I even heard
the term "work for hire."

15. In the 1950's through the 1960's, I certainly did not consider my freelance
artwork to be "work for hire." Nor did the other freelance artists I knew. No
one was thinking along those lines as we worked out of our houses at all hours
trying to make a living by creating and selling artwork. Neither Stan Lee nor
anyone else at Marvel ever told me at the time that they considered my freelance
work to be "work for hire." I honestly do not believe that freelance artists or
Marvel in those days understood or intended that the freelance material Marvel
bought was "work for hire."

I declare under penalty of perjury that to the best of my knowledge the
foregoing
is true and correct.




Offline josemas

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #28 on: March 30, 2011, 09:30:05 AM »
Here's Dick Ayer's testimony.



I, Richard Ayers, hereby declare as follows:
1. I am familiar with the facts set forth below known to me of my own personal
firsthand knowledge and make this declaration in support of defendants' motion
for summary judgment and defendants' opposition to plaintiffs' motion for
summary judgment.
2. I am a comic book artist and have worked in the comic book industry since the
1940s. For my professional accomplishments, I was inducted into the Will Eisner
Comic Book Hall of Fame in 2007.
3. I first began working in comics in the late 1940s. While I was studying
under Burne llogarth at Ilogarth's Cartoonists and Illustrators School, I was
spotted by Joe Shuster, co-creator of Superman, and Shuster subsequently asked
me to draw some of his Funnyman stories. I subsequently worked as a artist,
penciling (i.e., drawing) and inking A-! Comics and Trail Colt comic books and
the Jimmy Durance humor strip, all at Magazine Enterprises, and on Prize Comics'
Prize Comics Western. I. also co-created the Western character Ghost Rider for
the Tim Holt comic book, published by Magazine Enterprises.
4. In 1952, while selling freelance work to Magazine Enterprises, I began
selling freelance work to Marvel Comics, then named Atlas Comics. Marvel began
publishing my work commencing with Spellbound No. 1 (March 1952), Adventures
into Terror No. 9 (April 1952), Adventures into Weird Worlds No. 5 (April 1952),
and Journey into Unknown Worlds No. 10 (April 1952), and continuing in numerous
other comic books. I drew the revived character of the pre-Fantastic Four Human
Torch in such issues as Young Men No. 24 (February 1954), The Human Torch Nos_
36 (April 1954), 37 (June 1954), and 38 (August 1954), and Sub-Mariner Comics
Nos. 33 (April 1954), 34 (June 1954), and 35 (August 1954).
5. I also inked Jack Kirby's newspaper strip Sky Masters of the Space Force,
syndicated George Matthew Adams Agency from September of 1959 to January of 1960
for the Sunday strips and from September of 1959 to December of 1961 for the
daily newspaper strips. Marvel was not involved in this strip.
6. During the 1950s and 1960s, I drew on a freelance basis and sold to Marvel
artwork for such titles as Astonishing (June 1952-March 1957), Battle (January
1953-April 1959), Combat Kelly (March 1954), Cowboy Action (July 1955-January
1956), Gunsmoke Western (December 1956-May 1963), Journey into Mystery (February
1954-October 1956, August-October 1965), Kid Colt Outlaw (August 1955-November
1967), Marvel Tales (June 1953-April 1956, May 1967-July 1970), Men's Adventures
(April 1953-July 1954), Mystery Tales (May 1952-April 1957), Mystic (May 1952
May 1956), The Outlaw Kid (July 1956-May 1957), Rawhide Kid (January
1956-September 1957, October 1961-December 1967), Spellbound (March
1952-February 1956), Strange Tales (July 1954-July 1956, July 1962-February
1965), Two Gun Kid (April 1954-June 1959, January 1964 May 1967), Uncanny Tales
(June 1952 June 1956), Western Outlaws (February 1955-May 1957), Wild Western
(April 1954-March 1957), and Wyatt Earp (January 1957-June 1960).
7. After Jack Kirby reinvigorated the superhero genre in 1961 with The
Fantastic Four, I drew and sold my own superhero stories to Marvel, including
the Human Torch solo stories in Strange Tales Nos. 107 (April 1963), 110 (July
1963) through 113 (October 1963), 115 (December 1963) through 119 (April 1964),
121 (June 1964), 122 (July 1964), and 124 (September 1964) through 129 (February
1965), and Giant-Man and Wasp stories in Tales to Astonish Nos. 52 (February
1964), 53 (March 1964), and 55 (May 1964) through 60 (October 1964). I also drew
most of the artwork published in Sgt. Fury and His Howling Commandos, commencing
with issue No. 8 (July 1964), and continuing through issue No. 120 (July 1974),
with only a few issues containing artwork by other artists.
8. In total, T sold freelance artwork to Marvel from 1959 to 1975.
9. During this period I sold artwork on a freelance basis to several other
companies including Magazine Enterprises, Charlton, St. John, Fago Magazines,
Prize, Harvey, Alan Class, Tower, Eerie Publications, and Skywald.
10. As a freelancer, I worked out of my home, set my own hours, received no
medical benefits or insurance, vacation time or sick pay, and paid for all my
own expenses, including for my own pens, inks, paper, pencils and other
materials. I was not reimbursed for these expenses by Marvel or by the other
companies I sold artwork to.
11. I was paid by the page; and, as one might imagine, I was simply paid for the
work that Marvel or the other comic book publishers accepted. I was not paid for
rejected material, nor was I paid for the additional work and time of redoing
any artwork at Marvel's request as a condition to their purchase of the
material. I was paid solely for the finished artwork, accepted and bought by
Marvel.
12. From 1959 to 1975, I never had a written contract with Marvel. We had a
loose, open-ended relationship. My understanding was that Marvel was not
obligated to buy material from me or to pay me for material they did not like;
and I was not obligated to Marvel to create or work on any material.
13. I did not view my artwork that Marvel published as "work for hire," and
received no indication from Marvel at the time that they considered my artwork
as "work for hire." The freelancers and the comic book publishers did not view
their relationship that way in the 1960's. In fact, I do not believe I ever even
heard the term "work for hire" mentioned in the comic book business until the
very late 1970's or early 1980's. The reality was that Marvel and other comic
book publishers bought our freelance artwork once it had been submitted and
accepted by the publisher. I believed that Marvel owned all rights to the
artwork because they bought it from me.
14. This was reflected in how we were paid after delivery and acceptance of
freelance material. Marvel's checks to me would include stamped writing on the
back,
where I was supposed to endorse the check, which stated that by signing the
check I was
transferring to the comic book publisher all of my rights in the material it had
purchased.
15. Years later, Marvel returned some of my original artwork to me. For
example, in the Spring, 1998, Marvel notified me that they had some of my
original artwork for the Rawhide Kid which they would like to return to me. I
was enthusiastic about these returns because there is a collector's market for
such material, and I could use the income. Marvel sent me a one page artwork
release form to signĄ and informed me that unless I signed and returned the form
"as is," they would not return my original artwork. I signed the release,
because I was in no position to bargain, and I would otherwise not get my
artwork back. I did not have an attorney review the legal language in the
release because, frankly, I could not afford one.
I declare under penalty of perjury that to the best of my knowledge the
foregoing is true and correct


Offline josemas

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Re: Steve Ditko and the departure from Marvel Comics,
« Reply #29 on: March 30, 2011, 09:32:01 AM »
And here is Neal Adam's testimony.


I, Neal Adams, hereby declare as follows:
1. I am familiar with the facts set forth below and make this declaration in
support of the truth as I know it. The facts set forth herein are known to me of
my own personal firsthand knowledge and, if called as a witness, I could and
would testify competently thereto under oath. Nor is it my belief or
understanding that what I say here differs from the true understanding of any
freelancer or publisher.
2. I am a professional comic book artist, who has worked in the comic book
business since the late 1950s.
3. I began drawing comic books in the late 1950s. After graduating from the
School of Industrial Art in Manhattan, I debuted professionally in one panel of
Adventures of the Fly No. 4 (January 1960), which was part of the superhero line
created and edited by Joe Simon and Jack Kirby and published by Archie Comics.
Soon afterward, I drew and wrote features published in Archie's Joke Book
Magazine, and drew the syndicated Ben Casey newspaper strip from November 1962
to September 1964.
4. Shortly thereafter, I drew on a freelance basis artwork published in numerous
DC Comics titles, including Action Comics, Batman, Detective Comics, The Brave
and the Bold, Superboy, Our Army at War, Star-Spangled War Stories, World's
Finest Comics, Adventure Comics, Superman's Pal, Jimmy Olson, Strange
Adventures, Superman's Girl Friend, Lois Lane, The Spectre, Tales of the
Unexpected, Adventures of Jerry Lewis, and The Adventures of Bob Hope.
5. In the late 1960s, I drew on a freelance basis for Marvel Comics while
continuing to sell freelance artwork to DC Comics. I drew the artwork published
by Marvel in The X-Men Nos. 56 (May 1969) through 63 (December 1969) and No. 65
(February 1970). I wrote and drew the horror story "One Hungers" published by
Marvel
1
in Tower of Shadows No. 2 (December 1969) and co-wrote another story published
in Chamber of Darkness No. 2 (December 1969). I also plotted and drew a 2-issue
story, that was dialogued by the incredible Stan Lee, published in Thor Nos. 180
(September 1970) and 181 (October 1970) and The Avengers Nos. 80 (September
1970) and 93
(November 1971) through 96 (February 1972).
6. All told, I produced and sold freelance artwork to DC Comics from 1967 to
1977 and to Marvel from 1969 to 1981. I currently produce freelance work for
Marvel and DC Comics, though today I work under contract on a freelance basis.
7. I always set my own hours, work from my own house, and paid all of my
overhead and expenses with no reimbursement of such expenses, nor any guarantee
of payment by DC or Marvel. I completely accepted the financial risk of creating
the artwork, not the publisher, because the publisher never legally obligated
itself to pay for my work except in recent years. In fact, I worked with no
contract or any real legal structure in the 1960's and 1970's.
8. There was no oversight of the creative process. For instance, Marvel did not
provide me with a written synopsis or outline or require me to provide it with a
synopsis, outline or sample of my intended artwork; nor did Marvel ask me to
submit work in stages for Marvel's approval along the way. The basic
understanding was that I would produce the artwork on my own and, since my work
was thought to be "professional," if the Marvel editor liked it, Marvel would
most likely buy it. However, there was no way to know that Marvel would in fact
accept or pay for any such work, as it was not required to do so. My acceptance
depended entirely on my assumption of my own ability.
9. Marvel, like DC Comics, was not obligated to buy my artwork or stories and
only paid me for that freelance work it ultimately accepted and purchased for
publication. In the same vein, as a freelancer, I was not obligated to Marvel or
to any other publisher.
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10. I would not be paid for any artwork rejected by the comic book publisher. I
was only paid for the finished product the publisher chose to purchase. Neither
Marvel nor DC took out taxes from their payments for my material, nor did I
receive any medical benefits, insurance, vacation or sick pay of any sort. As I
think about it, I had no financial security whatsoever as a freelancer in those
days. Nor did I expect it as a freelancer.
11. For example, the very first cover I drew for Marvel, for "The X-Men" (a
title that was to be cancelled in "two issues") was summarily rejected by
Marvel's "publisher" since I had tied and bound the protagonists to the 3D logo
"X-Men.". He felt the figures might obscure the title of the book in some way. I
suggested the figures would emphasize the title. However, he demanded a new
cover (even though I had submitted a sketch for the original cover beforehand).
I was not paid for two covers only for the cover Marvel decided to purchase.
12. I had other experiences like this with DC Comics, which was no surprise, as
we all knew we were at the whim of the publisher. My ex-partner Dick Giordano
was forced to quit as editor at DC Comics because he refused to reject, and not
pay for, a job he commissioned from Gray Morrow, a well-known professional. My
experience in any other freelance endeavor (book, magazine, advertising or
other) is that during any of this time I would receive a long (2 page) or short
(1/2 page) contract or letter, or what is known as a "purchase order" which, to
the freelancer, was a "contract." But in comics, Marvel and DC did not commit
themselves financially like this. For all of these reasons I never considered my
artwork to be "work for hire." I also do not believe that Marvel or the other
comic book publishers in the 1960's to the mid-1970's considered such freelance
artwork to be "work for hire." In fact, no one in my knowledge ever uttered such
a phrase.
13. It was a mom and pop, hand to mouth business, yet some people created
brilliant work. During this confusing time comic book publishers and freelancers
alike
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had very little reason to believe comic books would "be around next year." The
circumstances and relationship during this period was clearly that of a purchase
and assignment of completed freelance material once accepted by the comic book
publisher, not ownership from inception as "work made for hire." It was not
viewed that way. nor did that jibe with the realities of the transaction
described above.
14. For instance, Marvel's and DC Comics' checks to everyone through at least
the mid-1970's would include a printed or stamped legend on the back that stated
that by endorsing the check, the artist "transfers" and "assigns" all right,
title and interest in the artwork bought by Marvel.
15. Later, after the new Copyright Act emphasized "work for hire" with
particularity, Marvel in or about 1979 or 1980 began placing retroactive "work
for hire" language on the back of its checks and in other documents, such as the
artwork releases it required artists to sign before Marvel would return to them
their original artwork from decades earlier.
16. I would cross-out this "work for hire" language on the back of my checks
when it began to appear.
I declare under penalty of perjury that to the best of my knowledge the
foregoing is true and correct.