|Edited by John Morrow||Jack Kirby Collector celebrates the life and career of the "King" of comics through interviews with Kirby and his contemporaries, feature articles, and rare & unseen Kirby artwork. Now in tabloid format, the magazine showcases Kirby's art at even larger size.|
Hour Twenty-Five Excerpts
Transcribed by John MorrowFrom Jack Kirby Collector #19
(From the 1986 KPFK 90.7 FM Los Angeles science fiction talk radio show, where Jack Kirby, Frank Miller, Mark Evanier, Arthur Byron Cover, and Steve Gerber discussed Jack's battle with Marvel Comics over the return of his original art.)
HOUR 25: If you're a writer, you get to keep your manuscripts. If you're an artist, this does not necessarily obtain. Jack, what happened?
JACK KIRBY: What happened was that Marvel decided to return the pages to the artists, and they sent the releases out to the various artists that did work for them over the years. My release was quite different than the others. It was a release I couldn't sign, and that created a controversy. It mystified me; I don't know why I got this kind of a release. It was a four-page release; it was almost like a contract, whereas the average release was something I could sign. I would've signed it, and there would have been an ordinary exchange of release and pages. They created a situation in which I was stuck; it became a legal thing, and I'm sorry about the circumstance itself - but it was they who sent the release out, and it was I who can't sign it. So they kept my pages.
HOUR 25: You have done thousands and thousands of pages over the years. And I must say it's only Marvel we're talking about; with DC, there's no problem.
KIRBY: According to statistics, I've done one quarter of Marvel's entire output. There's a lot of hard work behind it, and a lot of hard thinking behind it. It's something that's highly individual, highly creative, and above all, it sold very well.
ARTHUR BYRON COVER: As I understand it, when they sent you the four-page more complex form, they'd only admit to having 88 pages of artwork out of all the thousands of pages you did.
KIRBY: There's eight books involved. There's 88 pages involved. There's thousands of books I did, and all they offered was eight.
FRANK MILLER: It's very important to keep in mind that we're talking about an extraordinary situation here. Jack's work is the basic stuff that Marvel Comics has, across twenty years or so, turned into the most powerful comic book publisher in the country. The ideas that sprang from him into pictures - into a visual style they use full-time, all the time now - have not been credited to him by Marvel. Everyone in the industry, everyone anywhere near it, knows what his contribution was. Marvel is refusing to acknowledge this, and now they're withholding from him his own physical artwork which they are withholding from no one else. I read these documents they want him to sign; it's the most offensive legal creation I've ever read. It's very insulting.
STEVE GERBER: I think it's important to point out also that they never paid for the physical artwork. They don't own the physical artwork; it's there only because, apparently, possession is nine-tenths of the law at the moment.
COVER: In the latest issue of The Comics Journal, they had cataloged and accounted for three-quarters of the pages. For some reason since then, they've decided that there's only 88 pages, and if the situation's changed, they're not saying how or why.
HOUR 25: Did they give you a straightforward reason for this, Jack?
KIRBY: I can only guess, and I'm not going to discuss any guessing on my part. It's very hard to communicate with Marvel; they rarely answer. I leave it entirely to my lawyers. I'm trying to do it in a conventional and sensible legal manner; I try not to offend Marvel in any way, I try to be as polite as possible. I regard management as important people to work for; I always have. My job has always been to sell books. When you sell books, you benefit the publisher as well as yourself. What I do is not out of any innate disregard for management. I see it as a business; I've been a publisher myself.
HOUR 25: The Comics Journal reported there was a panel at Comic-Con in San Diego last July, and Jim Shooter paneled with you and Frank Miller and some others discussing this. Shooter was in the audience, and he stood up and said at one point that he thought you should have the art back. He also said that as Editor In Chief at Marvel, no decisions were made without his concurrence. That would seem to be a reasonable way to work things out, but it seems the reasonableness ended right there.
KIRBY: They'll return my art, if I'll sign that release - and I can't sign it.
MILLER: Beyond the amount of work Jack did and how well it sold, the fact is it's still making money. The most popular comic book in the country is the X-Men, which is one of Jack's. If you go down the list, probably five out of the next six down will be his. What he did for comics was enormous. The whole shape of comics in these times is based on Jack's work.
MARK EVANIER: It's not that uncommon for a new artist to apply for work at Marvel and be handed old Jack Kirby books, and told, "This is what we want."
MILLER: It was done with me.
EVANIER: There are artists to this day in the business who make their living tracing old Jack Kirby panels, rearranging them slightly, using it for their own purposes, and calling it their work.
HOUR 25: Fans come up to you with original pages of your own art; where do they get them?
KIRBY: I never ask because it embarrasses them. I tell them that the art is stolen; I have my own ideas on how it's passed around, and I've investigated it. It's not a complete picture, but I have a hazy picture of what really happens. If they're young people... I had a very young boy come up to me with a page of my artwork. I don't have the heart not to sign it. I'm not going to embarrass that child, or a female, or a very sincere fan, so I sign it. I have a high respect for the people in comics. I know the average comic fan is a heckuva guy.
EVANIER: It should be pointed out, a lot of people have made a lot of money selling Jack Kirby originals, and Jack is not one of them.
MILLER: What we're talking about here is a wealth of work, but the only thing that's in dispute here is the original physical artwork to it. This is one more way a lot of people besides Jack have made money off his genius.
HOUR 25: Jack, what are you going to do?
KIRBY: What I have to do; what any American has to do. Call it corny if you like. I'm up against a corporate giant. They've got a heckuva lot more weapons than I have. If I have one lawyer, they have ten. It's a hard battle; I do it slowly, I do it piecemeal. It's a thing that lasts a long, long time.
MILLER: Another thing that's being done is The Comics Journal circulated a petition among professionals, and there's been since then a protest on the part of comics professionals on Jack's behalf; writers and artists speaking out on his behalf, hoping to at least shame Marvel into behaving like humans about this.
HOUR 25: In the current issue of The Comics Journal, Frank Miller wrote a piece, and you begin it by saying you were at a cocktail party full of professionals, and you mentioned Kirby's name, and the silence was real thick.
MILLER: It happened many times when the subject came up. I hope that it's a temporary effect; I hope it's just a simple stroke of fear running through things. I hope that at the very least, the rest of the professionals will join in signing that petition. This is one of the very few huge issues to strike the industry. It's really up to each artist's conscience as to whether he participates in supporting Jack. Simple gratitude is what anybody working in comics owes Jack. We owe him very simply our livelihood. I would not have the career I have if not for him.
EVANIER: This is not just the plight of people who worked for Marvel on Jack's characters. There would probably be no industry today if not for Jack. The fascinating thing about Jack's career is that in the 1940s, he innovated a whole kind of super-hero in Captain America, the Boy Commandos, the Newsboy Legion. If he had stopped there and never created anything else, we'd still be talking about a giant here. Then in the 1950s, he innovated romance comics, Black Magic, Fighting American, Sky Masters, Challengers of the Unknown. In the '60s he did it all over again, and in the '70s with the New Gods. It just goes on and on.
MILLER: It does show how the conditions of the industry have been very bad off and on. The 1960s turnabout that really comes from Jack's work followed a period of pretty dismal downward sales. I believe he has repeatedly built the industry up almost single-handedly. The industry has generally not invited people to do their best work, because of some legal things they insist on. Jack had always done his best, and his best has always been better than anyone else's.
HOUR 25: So what you're going to do now is keep your attorneys writing letters, and apply pressure as you can in the industry, and wait?
KIRBY: Yes. I'm rather stubborn that way. I feel I've earned it, and there's no other way it can be done. I can only work according to my own resources, and that's what I'm doing. I'll do it legally, conventionally, in as friendly an atmosphere as possible.
MILLER: If I may, my personal feeling about it is it's not Jack's job. The comic book professionals, and particularly the readers, should exercise whatever voice they have in support of him. He's already given Marvel billions of dollars worth of material, he's given us years of joy, he's given us our livelihoods. I think we can come to his side on this; I don't think we should be asking him how he's going to pursue it.
HOUR 25: Steve Gerber, you had a dust-up with Marvel. I know you can't talk about the settlement.
EVANIER: But I can! (laughter)
GERBER: The disagreement was over the ownership of the Howard the Duck character. It took three years of my life and $140,000 to pursue. Some of that, thank heavens, was offset by the two dozen or so people in the industry I can still look straight in the eye, Jack among them. Jack did the artwork for the first issue of Destroyer Duck, which was done as a benefit comic book for the lawsuit, absolutely gratis. We did return his artwork, however. (laughter) Some of it was offset later by a project that was initialed by Deni Sim [Loubert], called the FOOG Portfolio: The Friends Of Old Gerber Portfolio, (laughter) done with my blessing, but totally without my knowledge. But the proceeds from both of those projects covered 20%, possibly a little more of the lawsuit. So when you talk about suing a company like Marvel, Jack is absolutely correct. You're sitting there with one, perhaps two lawyers, facing a battery of lawyers which include, in this case, an outside firm, retained locally in California to deal with the suit; Marvel's own in-house lawyers; Cadence Industries' in-house lawyers; and a firm back in New York which is under retainer to Cadence. That's what you're up against when you go into something like this. We fought it all the way to within two weeks of actually going to court. We were prepared to go into court, and at the last moment we were able to reach a settlement which I thought was fair and equitable, and in many ways less chancy than going to court with something like this. A decision against me, which was possible, would've done a great deal of harm not only to me, but to other people who might have to sue another comics publisher or the same publisher on the same basis. I didn't want to take that risk. The trial alone would've cost another $25,000, and I could've gotten stuck with some of Marvel's legal fees after that. So looking at the whole thing on balance, I had to decide that a truly equitable settlement, which I felt this was, was the way to end the dispute. Marvel owns Howard the Duck, and Marvel has creative control over him. I'm allowed to say that because it was part of a joint press release Marvel and my attorneys and I issued at the time of the settlement.
EVANIER: One of the reasons Steve settled when he did - he's too modest to mention this - is that the comics industry at the close of the suit was not the same as at the beginning of the suit. One of the things that prompted Steve's suit in the first place was that at one point he wanted to try and work out a settlement with Marvel on parts of his contract that had been left dangling. I sent him to an agent of mine, and the agent phoned the appropriate people at Marvel, and they said, "We're not going to deal with you." They didn't recognize the rights of people to speak on behalf of artists and writers.
MILLER: We're talking about an industry that until maybe ten years ago, a contract could not be negotiated in the office of the publisher of a major comic book company, because the writer showed up with his attorney. The publisher just got up and walked out. This is a true story; I know the writer, I know the attorney, and I know the publisher. We're talking about the Dark Ages here.
EVANIER: It was 1978, I believe. (laughter) Largely because of Steve's lawsuit, and because of other people who said, "We're not going to take it anymore," the comic book companies grew up a little. They have yet to make proper redress on all of the old offenses, but they're now dealing in a more mature manner. They will talk to attorneys, and they will draw up legitimate contracts. They now realize they can not conduct major comic book company business like a lemonade stand. Steve's lawsuit was one of the main reasons for that.
GERBER: One of the things that the suit definitely made clear was simply that in the forty years between the creation of Superman in 1938, and my being escorted off Howard the Duck in 1978, essentially nothing had changed in the comic industry. Jerry Siegel and Joe Shuster were in precisely the same position that I was in - and Jack Kirby finds himself in that same position today; worse, in fact. Jack can not even get the physical artwork back, which Marvel never even claimed to own.
HOUR 25: That's the part that blows me away. We're not talking ownership or creation here; we're talking physical artwork pages, not the right to publish those pages.
EVANIER: There is a link here; it's the three words "work-for-hire." In 1976, the copyright laws in the country were amended to give the creator of the work a greater expanded power of copyright renewal. Prior to that time there had been some question that at the time the copyright expired, whether the copyright could be renewed by the writer of the book, or by the publisher of the book, or whoever. It was established clearly in that revision of the copyright law that the creator of the work had the right of renewal. So the comic book companies - and this happened outside comics as well - determined that they had to make themselves the creator. The phrase "work-for-hire" came into heavy usage at this point, and when you sign a work-for-hire contract with a comic book company, you are stating that the company is the creator, and has all rights of future renewal to the work, and you are an assistant. If Frank Miller writes a comic book, conceives of it, creates it, pencils it, letters it, inks it, colors it, takes it to the printer himself, if he signs that contract, he's saying the publisher did all that, and the publisher's the creator, and the publisher can not only get the right of copyright renewal, but any further legal rights that are ever granted in the future to the creator of the work.
KIRBY: You're leaving out one thing. The publisher did that arbitrarily; they printed that on the back of every check the artist ever got. If you didn't sign that check, you didn't get paid.
EVANIER: For a long time, the only way the companies attempted to qualify the rights was with the back of the check statement. That was your "contract" that you had to deposit at the bank. It was a non-negotiable contract. It was only in the late 1970s when they started selling the Hulk to television and Superman to movies that they went back and tried to retroactively clarify a lot of what they were claiming they had bought the rights to. Jack has never signed that work-for-hire contract, and that's a key point that has to be made. Jack got this contract that nobody else ever got to get his originals back. The reason is that Jack didn't sign a work-for-hire contract.
MILLER: It's also because Jack made up a lot of stuff that's worth a whole lot. The experts I've talked to on this confirm that the physical artwork is not related to the reproduction rights to it. It is simply the artist's work, unless he sells it. Since I gather Jack hasn't been confronted with a Bill of Sale from Marvel for those originals, no matter what they may claim about the reproduction rights to the material, the physical artwork is his.
GERBER: Neal Adams brought up that Jack was living and working in New York most of the time he was doing most of those pages. He was selling them to a company which was also located in New York City. Therefore, he had to collect, and the company had to pay, sales tax on the artwork if indeed the artwork was sold. No sales tax was ever paid, no sales tax was ever collected. It's the difference between selling a service and selling a product.
HOUR 25: Jack, what are you doing now?
KIRBY: I'm working very hard. I'm creating; I'm a producer/consultant for Ruby-Spears, which does Saturday morning TV. I create concepts; I visualize them in a way in which TV people can understand them and estimate them and create shows from them. I'm essentially doing the same thing. I'm not out to be a Leonardo DiVinci, I'm not out to be William Faulkner; I'm out to sell comics, which I think is a very valid American medium. There are people who play down comics, but comics is a valid medium. It's a visual narrative; instead of words, we like the pictures, we like the balloons. If you'll go with me to the Sistine Chapel, I'll put up a couple of balloons on Michelangelo's work and we can really tell what was going on, (laughter) because I think they're cartoons in a way.
MILLER: I found out in researching this situation on Jack that DC to a certain extent has made efforts to reward and give credit to their major creators since 1940.
EVANIER: DC cleaned out their warehouse several years ago. Although DC is not under any legal obligation to, they've given Jack a profit participation in the usage of his New Gods characters in toys and shows and things like that. The people at DC are very proud of saying that they have paid Jack Kirby more money for creating Darkseid than he was paid for creating the entire Marvel Universe. So were not talking about a bunch of disgruntled writers and artists complaining that someone didn't get enough; if Marvel adopted the DC policy on this, I think everyone would be very happy.
CALLER: Jack, what exactly was the clause in your contract that kept you from signing it?
KIRBY: Specifically, I can cite one clause that didn't allow me to sue Marvel for anything at all. It violated my civil rights; as an American you should be able to sue anyone you like. But Marvel insisted that I wasn't allowed to sue Marvel, and the entire premise of the thing was humiliating to me, to my family, and being a little macho in nature, (laughter) I couldn't do it.
GERBER: Didn't it also say that you had to say you were not the creator of those characters?
MILLER: They said you couldn't tell your daughter.
KIRBY: It was at the point of being arrogant and abusive, and I couldn't do it. It's against my nature.
HOUR 25: I want to come back to one point, which I want to make certain does not get overlooked. We're not talking here about money, or anything except pages of original artwork.
GERBER: There's no legal concept in question; that's the other thing.
MILLER: Every few weeks, I receive a package from DC Comics, containing artwork that was drawn for them. It's a Federal Express package, and I sign indicating I received it. That's the only document DC wants me to sign, a simple receipt for the return of my property.
EVANIER: Jack is the only person in this situation. Even the people who inked his comics have gotten back some of those pages. Dick Ayers, Joe Sinnott, Chic Stone, all the people who inked those books have gotten their shares of the same stories; part of it has been returned. It's Jack's pages that are not being returned.
HOUR 25: Jack, is there anything else you would like to say?
KIRBY: I'm from the old school; I'm from a generation you fellas know nothing about. I ask nobody to do anything for me. I ask people who've been listening tonight to gain whatever knowledge they could of the field, of the personalities, and maybe to gain a little knowledge about myself; but I ask them to do nothing. If they feel like writing a letter, fine. If they don't, it's still fine with me. I'll continue my own fight. It'll go on because I want it to go on. If it stops, it'll be because I stopped it. I ask nothing of anybody. It's because of my own love for the individual that I ask nothing from it. If there are any people on my side, I thank them. It's a fulfilling sensation for me, and I thank them again.
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