The Kirby case is the latest in a long line of comic book writers' and artists' efforts to claim ownership of their work - a process that began the minute Hollywood started throwing serious money at superhero characters. Since 1980, Marvel's fought off Steve Gerber's claim to Howard the Duck, Marv Wolfman's suit over Blade and Gary Friedrich's Ghost Rider action, but was forced to settle when Joe Simon sued the company for Captain America. Former DC president Carmine Infantino - an artist rather than a writer in this case - sued his old bosses for a stake in The Flash in June 2004, but withdrew his case just three months later.
In 2005, Stan Lee - by then Marvel's chairman emeritus - won a two-year court case forcing the company to honour a clause in his 1998 employment contract giving him a 10% profit share in all Marvel's movies. That clause looked harmless enough at a time when Marvel films were universally regarded as a bad joke, but it was worth a fortune to Lee when the company started having big hits a few years later. One Lee biography claims he got the clause inserted in the first place only by threatening to challenge Marvel's ownership of the same characters the Kirbys are suing over today.
It's been a turbulent few years, made all the more so by the fact that US law opens a five-year window for creators to reclaim any copyrights they've sold 28 years, 56 years or 75 years after the deal was done. This allows corporations to extend the copyright terms they hold - delaying that awful day when characters like Superman enter the public domain - but only at the cost of renegotiating those copyrights' proper value.
Creators like Siegel and Shuster, who sold all Superman's rights to DC for just $130 in 1938, couldn't have been expected to know how valuable those rights would one day be. Therefore, at the end of the first term they signed up for, and at the end of every extension to that term, Congress says they should be entitled to reclaim what they'd sold and try to extract a higher price if they decide to sell it again.
Now factor in the point that almost all the comic book superheroes who count were born in one of two great creative bursts. Superman, the first costumed hero of them all, proved a huge hit from day one, and that meant comic book publishers were anxious to create as many other superheroes as possible. Superman's first publication in June 1938 was followed by Batman in May 1939, Captain America in March 1941 and Wonder Woman in January 1942. It's the windows opened by Superman's 56th birthday in 1994 and Captain America's three years later which prompted the Siegels and Joe Simon to each sue when they did. Joe Shuster's nephew, Mark Peary, missed the deadline to file for 1994's window, and so must wait until Superman's 75th anniversary in 2013.
There's been no sign of Bob Kane's family taking action over Batman so far, but there may be good reasons for that. Kane had already done work for DC when the company encouraged him to go off and dream up a successor to Superman, he famously secured a far better deal than Siegel and Shuster were ever able to get, and there's good evidence that much of Batman wasn't really his work anyway. Kane sub-contracted writers and artists like Bill Finger and Jerry Robinson to help produce the early Batman work he sold to DC, and it's now generally accepted that they invented many key elements of the character's world. Kane took sole credit for the resulting stories, and acknowledged the other men's role only when it was too late to matter.
In his history of the early comic book industry, Men of Tomorrow, Gerard Jones says Siegel and Shuster once tried to recruit Kane to join them in renegotiating all three men's deals with DC - then called National Periodical Publications. His account has Kane responding to this 1946 offer by going straight to National's co-owner Jack Liebowitz, telling him about Siegel and Shuster's plans, and suggesting he might like to improve Kane's contract alone to avoid further trouble. Liebowitz replies that he isn't worried, because National's ownership of both Superman and Batman is watertight.
“Then Kane pulled what may have been the most ingenious stunt of a career full of stunts,” Jones writes. “Didn't Liebowitz know, he asked, that National's income from Batman over the past seven years was based on an illegal contract? Liebowitz asked how it could be invalid, since Kane himself had signed it. 'Sure,' said Kane, 'but I was a minor at the time'.” (6)
Liebowitz knew that Kane was almost certainly born in either 1915 or 1916, making him at least 22 years old when the original Batman deal was signed. “But there was no proof,” Jones adds. “In the tradition of Jewish immigrants, his father had made his birth certificate disappear early in his life. Who could prove that Kane wasn't born in 1919, as he was now claiming, and been precocious in school? Kane assured Liebowitz that his parents would be happy to testify to that effect. With such a mess facing him, Liebowitz found it easier to buckle.” The result, according to Jones, was a further boost for Kane's already sweet deal, both in terms of the remuneration Batman brought him and the ownership rights he enjoyed.
Jones hedges this particular episode round with words like “apparently” and “reportedly”, so perhaps we shouldn't swallow it whole. But it does illustrate just what a piratical business the early comics industry was. The artists and writers working there thought of comics as just one step up from pornography, and worked there only because they had no better options. The early comics publishers depended on a distribution network owned by the mobbed-up bootleggers of prohibition days, who had used magazine trucks to distribute illicit booze round the city. Surviving in an industry like that demanded a quick mind, a strong sense of self-preservation and no illusions about its ruthless methods.
Kane seldom talked about the initial deal he struck with DC for Batman, but everyone agrees he did far better than the average freelancer. Talking to the magazine Comics Interview in 1985, he mentions a “lifetime contract” with DC, which ensured his name always appeared as Batman's creator and placed him in DC's employee pension plan. Jones adds that the deal “guaranteed him some security and control of the material”. Kane gets a credit on every Batman movie of the past 50 years and one as Batman's creator in every issue of the comic books to this day. “He's a tough businessman,” he said of Leibowitz in 1985. “But I guess, in the final analysis, I was taken care of.” (7)
Given Kane's excellent contract, and even with The Dark Knight's $1bn grosses to fight for, his family may have decided it's better to gently pressure DC behind the scenes for whatever extra cash they can secure rather than risk ruining a good thing by going to court.
“Termination is a way for someone who's been underserved by the original contract to recapture some of the value that was not anticipated in the original bargain,” says Trexler. “If you have a really, really sweet bargain at the beginning, the incentive to try and recapture that is relatively low. You have to start thinking about lawyer fees, claims like 'This was work-for-hire' and so on. Plus, there's this can of worms about who actually produced the early Batman material. You're better off just to take your millions and go home.”