Let's start at the beginning. In the 1940's, Jack "King" Kirby started working as a freelance illustrator in comics. Comics don't pay shit, so Kirby had to hustle to draw enough pages to put food on the table for his family (Gene Colan admitted that, in order to meet his three books a month requirement for a living wage, he popped amphetamines). In the early 1960's, Jack Kirby and Steve Ditko started working as freelancers at Timey Publications (later to become Marvel Comics). Their bosses were Stan Lee and his then father-in-law, Martin Goodman. Lee was an enthusiastic writer when superhero comics experienced their Renaissance, and his work with Ditko (Spider-Man) and Kirby (just about everything else) became pop culture gold.
(In the interest of fairness, it should be noted that, however great Kirby was as an artist, he needed a writer bad. I read Captain Victory And The Galactic Rangers. Also, if you remember the Kirbyverse that Topps launched as a comic, they interspersed the first issues with Kirby written and drawn pages. Satan's Six, the only one I liked, there is a very obvious difference between the Kirby-written pages and the Tony Isabella-written pages. His last work was a far cry from the guy Lee would say he just gave a page of paper with plot points to and he and Ditko did the rest. Just to keep things in perspective.)
Lee at the time went on and on about Kirby's role in co-creating the modern legends. Lee also told Kirby and Ditko that Goodman would give them a share of the characters they helped create if they ever took off. Problem: they couldn't get it in writing. Ditko declared, "Balls to this," and jumped ship. Kirby, however, still trusted Lee and Goodman and hung in there. At least, until 1970. By that time, Lee had become the public face of Marvel and was the one who was getting all the glory on the lecture circuit for creating The Fantastic Four, The Hulk, and so on. Kirby saw the writing on the wall and jumped for DC Comics.
Since then, Kirby and his estate have been engaged in various wars with Marvel Comics for compensation. Kirby got a page rate, no royalties, no artwork, and no ownership of these characters that were part of a multibillion dollar operation. The most recent salvo was for ownership, or at least, joint ownership of the characters. Things were going through negotiation channels when Disney bought Marvel. Around the industry, the bells of doom tolled.
I should explain something that I learned when I was trying to be a screenwriter. The first rule that gets pounded into your head is, "Do NOT screw with The Mouse." Mess with Disney, and your career is over. Sue them? They'll tie you up in court so long, you'll go bankrupt. Talk bad about them? They'll make sure you never work in Hollywood again. The Magic Kingdom is a great place to visit, but you don't want to work there. Several staffers and most of their animators referred to Disney as "Mousewhitz." When Disney took over Marvel, they brought in their own longtime legal expert on these kinds of deals. It was over, but the Kirby estate soldiered on. They had the best precedents they could get, testimony from Mark Evanier, and were focusing on what they could (getting more money from royalties and such was not an option, the statute of limitations having expired on that one long ago).
And so, on Thursday, the judge's ruling came in. Basically, he said that Kirby signed a deal under 1908 copyright law as work for hire and he wasn't entitled to squat. All those interviews where Lee talked about Kirby as co-creator? Means nothing. Without a piece of paper, despite all the testimony, Kirby didn't sign any rights away, because as work-for-hire, he never had any rights to begin with.
But what about the Siegel estate, currently suing DC/Time Warner for part of the Superman pie? Siegel and Shuster created Superman outright and sold him to DC. They have clear creative ownership, it wasn't done as work-for-hire. It's not the same thing.
From a legal standpoint, the judge made the right call. From an ethical standpoint? He didn't.
Here's the thing: people misunderstand the role the courts play. Courts are to protect us from excessive law. You get brought up on charges under some law that is unfair for some reason. It's the courts' role to save you and other citizens from that. They are to balance the equation.
There are plenty of court cases where people in the entertainment industry get bailed out for some bad deal they made when they were just starting out. For example, The Knack let their manager have the rights to license their songs for commercials and media and such. One ad for a pizza chain only got the band free pizza while the manager got money. They sued, and the judge gave the songs back to the band.
But here's the difference -- The Knack, good though they were, part of the forefront of the punk movement that they were, are still small potatoes. This was just a skirmish between a long ago band and their manager. This doesn't involve a multibillion dollar entertainment conglomerate afraid of what it will have to cough up to other creators if this case succeeds (has Len Wein been properly compensated for creating Wolverine yet? Anyone? Beuller?). Is it about money? Sure. If you created something when you were trying to survive and saw that go on to generate billions of dollars, wouldn't you want some of the fruits of your labors?
Comic books are a different world from when Kirby and Ditko were kicking around. Creators get triple-figure page rates. They travel on someone else's dime all over the world. They get a cut of spin-off rights. But none of that would have happened without Kirby teaching us all to read those contracts and watch out for better things, like the indie comic field that The Bigs worked to kill off with help from comic pros who didn't understand or care about what it offered.
The ghost of Steve Gerber is not with me tonight. I imagine he's up in Heaven, sharing a bottle with Kirby and Gene Colan and remarking on how little they meant to a company that wanted control and recognition. I think about the Image creators, talking about how they were holding back while working at Marvel and how you were now going to see their best stuff. How Todd McFarlane doodled a character called "Overkill" on a Marvel instructional video and had to change the character in Spawn to Everkiller because Marvel was claiming ownership of a doodle that they never used, before or since.
I think of my characters, who I love creating for and seeing people's reactions as they read their adventures.
And I feel very very cold inside....