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Lex, Luthor: Superheroes in Court

By Paul Slade
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Murder Ballads
Secret London

“I don't like the way business is conducted in this industry. [...] You're told to work for the good of the company, and then when the company returns your favours in less than honourable ways, you're expected to smile and take it. Because, essentially, they feel they own you, and there's nowhere else for you to go.”

- Steve Gerber, The Comics Journal, August 1978.

“'It's my experience that honourable people live by the contracts they sign,' Deasey said at last. 'And not a tittle more'.”

- Michael Chabon, The Amazing Adventures of Kavalier & Clay.

“Artists are notoriously poor businessmen.”

- Joe Simon, The Comic Book Makers.

Jack Kirby did more than any other man to create all Marvel Comics' key characters back in the 1960s. And now his family wants them back.
Whether drawing their debut adventures, providing covers for the comics they first appeared in or simply feeding ideas into the characters' conception, Kirby had a hand in creating Spider-Man, Iron Man, The X-Men, The Fantastic Four, The Hulk, Thor and The Avengers. He's dead now, but in September 2009 four of his children hired Los Angeles lawyer Marc Toberoff to serve 45 copyright termination notices reclaiming all those characters and a host of Kirby's other creations.
Their action follows a shock 2008 ruling in the US courts which restored 50% of the copyright in Superman's first appearance to the family of Jerry Siegel, the writer who created him. This result has put a big dent in DC Comics' ownership of its flagship character's costume, his secret identity as Clark Kent, his origin story and most of his core powers. A relative of Joe Shuster, Siegel's artist partner, has already filed his own action claiming the remaining 50% of this material's copyright.
The Kirby notices went not just to Marvel itself, but also to Walt Disney - which paid $4bn to buy Marvel's character roster last year - and to every Hollywood studio with a Marvel project on its books. These include a handful of the world's biggest franchises, with Sony's three Spider-Man movies alone grossing a total of $2.5bn between them. If successful, the Kirbys' action will mean Marvel no longer fully owns most of its biggest characters, and cannot exploit them without handing over a chunk of the profits.
Marvel has hit back with a counter-claim arguing Kirby's work was always carried out on a work-for-hire basis, and that therefore the copyrights were never his to reclaim. This determination to squash the challenge right at its outset is a measure of just how central Kirby's work remains to Marvel's brand - more important even that of Marvel's founding writer, Stan Lee, who won his own $10m case against the company in 2005.

'It's Jack Kirby's graphics which changed the way comic books felt, not Lee's writing'

Former BBC presenter Jonathan Ross is a life-long comics fan, and so devoted to Jack Kirby's work that he named one of his children Harvey Kirby Ross. “Kirby is the cornerstone on which the modern comic book industry is built,” he told me at London's Institute of Contemporary Arts a few years ago. “Not Lee: Kirby. It's Kirby's graphics which actually changed the way comic books felt, not Lee's writing. Without the brawny, incredibly cinematic, dynamic Kirby style of artwork, Marvel probably wouldn't have survived.
“You can't help thinking, maybe here was the person who was saying to Lee 'Well, why don't we come up with a mythology-based book - Thor.' I'm certain that Kirby created that. There's no doubt in my mind about that, and people have said that's the case. If you look at Kirby's whole history, before that point and after that point, he was always going back to mythology for inspiration.” (1)
It was Toberoff who won the Siegels their landmark ruling in 2008, and there's no doubt that he'll prove a massive asset to the Kirbys too. The facts are very different, and may give the Kirbys an even steeper hill to climb, but with Toberoff in their corner, no-one can dismiss their chances.
“There are people who would have said three years ago that there wasn't a snowball's chance in hell that the Siegels were going to get anything out of the Superman claim,” says Pace University law professor Jeff Trexler. “If there'd been Vegas odds on that case, I don't think anyone would have given the Siegels a shot. But he pulled it off.
“If you look at what Toberoff's been able to do with the Siegels - it was such a huge win. You would look at any case involving Toberoff going forward and say 'You know, you just can't rule this out'.” (2)
DC is owned by Warner Brothers. In February 2010, Warners sacked the law firm that had been handling the Superman case, and appointed O'Melveny & Myers instead. That meant they were hiring Daniel Petrocelli, the formidable LA lawyer who won the Goldman family an $8.5m wrongful death payment in their civil suit against OJ Simpson. Petrocelli also defended Enron CEO Jeff Skilling and crushed a 2004 challenge to Disney's Winnie the Pooh merchandising rights. His appointment was seen either as a sign that Warners had given up all hope of settling with the Siegels and now wanted to fight the case as aggressively as possible, or that it hoped his presence alone would intimidate them into settling immediately. Whichever view you took, you had to admit that any opponent with Pooh Bear's scalp on his belt needed taking seriously.
Three months after Petrocelli's appointment, Warners took its battle with Toberoff up a notch by suing him personally over the Superman case. The studio accused him of manipulating the Siegel and Shuster families into launching cases against DC which - if successful - would end with Toberoff himself owning close to 50% of Superman's total rights.
“Toberoff has sought to enrich himself by wrongfully laying claim to purported rights to control the exploitation of Superman to the substantial detriment of DC Comics,” the Warners complaint says. “As a result of his arrangement with the Siegel and Shuster heirs, Toberoff secured control of the largest financial stake in the collective, putative Superman termination rights (ie Toberoff 47.5%, Siegel heirs 27.5%, Shuster heirs 25%)”. (3)
Toberoff immediately denied he had a financial interest in the Superman lawsuits, saying he'd receive only “a contingent legal fee”. Warners' information, he said, was based on documents a disgruntled former employee had stolen from his law firm's files and then leaked to the studio. “This is going to come back to bite Warner Brothers,” he told the LA Times. “Rather than litigating the remainder of this case on its merits, they have brought this vicious lawsuit aimed at me as a way of pressuring my clients to license back the rights to them.” The Hollywood Reporter's Matthew Belloni agreed, saying Warners' action against Toberoff was “clearly designed to discredit as much as disarm a lawyer who often seems to stand in its way”. Belloni added: “Warners has for years hated Toberoff with a unique passion.” (4, 5)
Toberoff announced at the end of June that he'd hired Richard Kendall - yet another high-powered LA attorney - to defend his own case against Warners. Challenge us over Superman, the studio seemed to be saying, and even your lawyer will need a lawyer of his own.

Quack attack: Steve Gerber & Howard (1978)

Howard the Duck's now best-remembered for his 1986 movie, which still pops up pretty regularly on critics' “worst ever” lists. Long before that, though, he was the high-profile star of a successful Marvel comic book, and popular enough to spin off into both a syndicated newspaper strip and a radio show.
      Marvel writer Steve Gerber created Howard as a throwaway supporting character for Adventure into Fear #19, published in December 1973.
      Val Mayerik drew that first appearance, depicting Howard as a three-foot tall, cigar-chomping duck wearing the top half of a blue suit-and-tie ensemble with matching Homburg. Gerber's plot had him torn from his home dimension to end up in ours, and none to happy about that fact. Howard's irascible personality won him his own back-up series in Giant-Size Man-Thing, which lasted just two episodes before he was promoted to his own monthly book.
      Howard's job there - and, by extension, Gerber's too - was to bring an underground comics sensibility to the Marvel universe, and use its superhero trappings to cast a jaundiced eye over American society. For a mainstream comics publisher, this was an unusual approach, and Howard soon started to get some national news coverage. Marvel capitalised on this by pitting him against Gerald Ford and Jimmy Carter in the 1976 Presidential campaign, selling “Vote Howard” badges to the comic's readers at $1 a pop, and generating what Stan Lee said were “thousands” of write-in votes. (13)
      So far, all Howard's stories had been written by Gerber. That continued when Howard's syndicated newspaper strip started in June 1977, but Marvel sacked him from that assignment after less than a year, claiming he'd been persistently late with his scripts.

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