Permanent Damage

Wed, September 23rd, 2009 at 2:28pm PDT

Comic Books
Steven Grant, Columnist

Funny how things work out. After reading Warren Ellis' lovely column DO ANYTHING the last few months, where Warren has been kicking around the quite cogent talking head of Jack Kirby each week like Sylvester II on a bender, that it really is time we drove a stake through the denatured heart of Jack's shambling, rotting corpse and let the poor guy's spirit finally rest in peace. Or burn the corpse resurrect the spirit, something like that. No slur intended on Jack or his immeasurable contribution to comics, rather on the numerous little Frankensteins out there constantly shoving penlight batteries up the corpse's rump and imagining they're calling down lightning from heaven. When they're not imagining they're latter day Knights Templar prostrated before some rude altar to kiss the ground below a mummified head they think is Jack's. Always wondered why they'd keep the head but throw away the brain, and shove the brain of Jerry Siegel, not the Superman Jerry Siegel, the Mighty Comics Jerry Siegel, in there instead, but Warren cleared that right up: he had the head all along. So everyone deludes themselves that something great and magical happens when they invoke the brainless, headless Jack Kirby meat puppet running on AAA cells. But it ain't great, 'cause it ain't Jack. Or if it is great, it's because the talent behind it is great, not because it's Jack, meaning Jack never needed to be in the picture anyway, at least other than in the background where he always is for all of us.

All by way of wondering how best to honor our legendary dead, other than propping up their stuffed remains and charging admissions like old gunfighters in Wild West sideshows. Then, aided by the attorney shepherding through the Siegel family claims to Superman, the Kirby family moved to reclaim rights to properties Jack created or co-created at Marvel.

This is, what, the fourth or fifth time we've seen this sort of thing now?

The response has been unfortunately predictable.

Marvel and Disney, it's understandable they might not be too happy with the turn of events, though Disney has said they were briefed on the possibility during negotiations. That's likely true, since nothing derails multi-billion dollar deals like third parties suddenly popping up claiming to own part of what one party is selling to the other, and there's been so suggestion of a derailment. Given the near occasion of other such efforts in recent years, Marvel's lawyers surely anticipated the possibility, if not the certainty. What happens with them and the Kirby family will be a matter for negotiation or the courts. While this is still a nascent area of copyright law, and every case is a new exploration of potential ramifications of the '76 Copyright Act and it subsequent revisions, whether this case has serious merit depends on the quality of evidence the family backs up their claims with and none of us are likely to be privy to it for a long time, so speculation is irrelevant for the moment. Likewise, whatever changes the case might ultimately rain down on Marvel are unlikely to manifest for an even longer time, aside from maybe the company battening down the hatches in the meantime.

Nonetheless, while a number of fans support the Kirbys' attempt to exercise a claim to Jack's creations and co-creations, others have spewed all manner of vitriol at the family, something now familiar from similar cases like the quests for Superman and Captain America. Among the accusations and suppositions (I'm nicking them from CBR's report and discussion to keep it in the family, but similar discussions are at comics news sites all over the web): the Kirbys are "greedy bastards"; Kirby's work was done work-for-hire and doesn't qualify; Kirby knew what the deal was and nobody should try to change it now; Jack was working for Marvel when he created his characters so Marvel owns them, just like if you work for Boeing and design an aircraft, they own that work; the Kirby family has no vested interest in Marvel and just wants to see it destroyed; and my favorite, that Marvel made Jack Kirby and he'd have been nothing without them.

This is where comics company business practices pretty much come back to bite them.

A lot of people today don't seem to understand or remember that, for much of its existence, the comics industry didn't really have any rules, economic or otherwise, and played fast and loose with the law wherever possible. Not out of malice, usually, though sometimes out of ignorance, but mostly because it was just more convenient that way. While contracts weren't unknown, from the earliest days of comics, most publishers preferred to do things with a handshake and a wink; it wasn't uncommon for freelancers to be paid in cash rather than by check. (It also wasn't uncommon for people to not even have a checking account.) Much of what became common industry practice, like publishers owning everything for a one-time page rate payment, became practice because publishers decided that's how it would be. It wasn't a labor negotiation. But claiming "industry practice" doesn't make that practice legal, even if no one challenges it. The shift to freelancers from staff writers and artists came quickly, as publishers realized it was cheaper to pay freelancers than staffers, and employees had the right to unionize. (Attempts to unionize freelancers – there were a few – generally failed due to fear work would be withdrawn should you join a union, and publishers jealously guarded their right to withhold or withdraw assignments at whim.) We created a culture where the freelancer wasn't an independent contractor but a de facto employee of the company he worked for, and more than once a publisher punished a freelancer who had the gall to "work around."

This is the culture in play at the dawn of the Marvel Age. These are the terms Jack Kirby worked under.

First up: Kirby was a freelancer. Despite Stan Lee's glowing concoction of a "Marvel bullpen" in letter pages and Bullpen Bulletins, Jack Kirby worked at home. While there's no doubt he was Stan's go to guy for art, designs, covers, etc. he was at no time in the 1960s a Marvel employee. The ramifications? Marvel can't invoke an employer's claim to work produced during an employee's employ. It doesn't apply. The question then becomes which of Kirby's works was created under Stan Lee's supervision and what did he create on his own and approach the company with. For instance, did Jack design a group of six characters call The Mutants and approach Stan with it only for Stan (or Jack) to rename them The X-Men, or did Stan say, "We need a new superteam, they should be mutants, and here's my idea for who they are and what they look like"? Times however many characters Jack's family is claiming.

Second: Kirby's '70s run at Marvel, when he created Machine Man, Devil Dinosaur and other properties, may have been done under work-for-hire, but his '60s work wasn't, as "work-for-hire" didn't exist as a legal concept until the '76 Copyright Act. ("Work-for-hire" was intended by the framers of the act to be a special circumstances thing, but it was immediately seized on by publishers of all stripes to seize rights from artists, in the broad sense of the word, without paying more money for them.) For a creation to be work-for-hire, meaning the company or corporation is the legal "creator" of the work and the freelancer is simply acting as their agent to carry out their wishes, the work-for-hire agreement must be made in advance of the creation of the work, the artist must specifically sign away all interest in the work, and money must change hands. In the absence of these conditions, work is assumed to be owned by the artist.

Third: Kirby stated in interviews that he worked without a contract. This would be the normal state for freelance talent in the early '60s. Some things are up to the family to prove, but it's up to Marvel to produce the paperwork to prove he had a contract, if he did. Kirby also stated he had conversations with Marvel then-publisher Martin Goodman assuring Kirby proceeds from his Marvel works, which, if provable, might be construed by a court as a verbal contract. Problem: unwitnessed verbal contracts are notoriously difficult to enforce, and if there were witnesses to this conversation, they have yet to step forward. I don't know whether Marvel was using the notorious "back of the check contract" in the 1960s (these are technically invalid, since valid contracts must be agreed to by both parties before work commences, and the "botcc" was a waiver that had to be signed in order to sign the check and collect payment for work already done – in other words, coercion – but other cases have used them to argue that the plaintiffs were aware of terms and didn't contest them) but if they weren't there's likely no paperwork verifying that Jack signed anything over to Marvel.

Fourth: "Standard business practice" may or may not have the force of law in court proceedings. It may be a standard business practice in a business to force all employees to vote Democrat or lose their jobs, but it's still against the law. The '60s comics business concept of how things worked was that a single payment to a freelancer for a story bought a) the physical art or script to the story; b) all reproduction rights to the art or script; c) ownership of not only the story but all intellectual property and ancillaries rights deriving from the story, forever and ever. The post-1976 reality shredded those presumptions. Physical art is no longer part and parcel with reproduction rights; they must be purchased separately, and artwork held onto by the publisher is subject to taxation. (This as much as good artist relations had a lot to do with companies finally deciding to return art.) Likewise, property rights must be specifically signed over; transfer can no longer be assumed. An ex-post-facto argument could theoretically be copped for works created before 1976, that current laws don't apply to them and then standard practice does, but it could also be argued that the law took no position on these issues prior to 1976 so in the absence of a written agreement the 1976 law is the only one that applies. A judge would have to rule on it.

Are the Kirby's greedy bastards? Near as I can tell they're doing what the law allows them to do. Doesn't mean they'll be able to prove their case, but they might be. For awhile my mother took to complaining every time it was announced some TV star or news anchor was contracted to a whopping salary, like Katie Couric signing for $35 million over a few years. She stopped when I reminded her that had anyone offered her $35 million she'd have signed right up and not worried for a moment whether she deserved it or not. Who wouldn't, as long as it didn't involve criminal or unethical practices? (And I know plenty who would regardless.) So, those who decry the Kirbys as cheapshot artists trying to milk their father's legacy without ever "creating" anything themselves (an accusation that could just as easily be leveled at Marvel the corporation, by the way), if you were told you might have a legal claim to at least a piece of The X-Men and the proceeds thereof, wouldn't you go after your share? Of course you would; you'd be an idiot not to. I suspect most hardcore Marvel fans, though they decry the Kirbys' effort as threatening to undermine all that is good and noble about Marvel Comics, would jump at the chance to have their say in the stories as well. Condemning Jack's family for doing something non-criminal and not unethical that pretty much any of us would do if we had grounds for it is... let's be nice and call it myopic.

Certainly there are aspects of the suit as proposed that seem a bit iffy, like the claim to Spider-Man. Tales of the true origin of Spider-Man range from those told by Kirby's old partner Joe Simon to the official "Stan Lee & Steve Ditko" version. One thing they all have in common is Kirby's negligible connection to the character, though Jack frequently listed Spider-Man as one of his creations. What's known is that he did a version prior to Ditko's famous one based on his work on Archie Comics' THE FLY, itself a reinvention of Joe Simon's unpublished Silver Spider that evolved from an unsold early '50s strip Simon did with CC Beck called Spiderman. But Kirby's Spiderman (the hyphen didn't set in until Ditko's version) was summarily rejected, so the question becomes did Jack bring the name to Stan or did Stan arrive at it coincidentally? "Common wisdom" would suggest the former, but I've seen plenty of coincidence in this business, so I can't even venture a guess.

It's on such questions that the value of this lawsuit rests, but bear in mind what a lawyer told me today: in suits like this, it's better to stuff the complaint with every potential issue you can think of, because once a suit gets under way it's very easy to dismiss issues but difficult as hell to add them. In other words, it's not a game of chicken; it's better to start by including a claim to Spider-Man that eventually proves untenable than to learn mid-suit that you have an unassailable claim but can't introduce it.

At any rate, I'll make one speculation: those who fear this will destroy Marvel (as we know it!) are likely worrying about nothing. Not because the Kirbys don't have a case – like I said, they might, they might not – but because Marvel, and Disney, if they're really in for the long haul – aren't dumb enough to lose the Kirby characters that are the backbone of their business. This is one area where DC has it all over Marvel. Should the Siegel family succeed in reclaiming enough of Superman to whisk the property off, DC really wouldn't lose that much aside from a merchandizing cash cow. Don't get me wrong, it'd hurt. They'd feel it in their bottom line. But DC would survive just fine, they'd switch emphasis (Batman's far more popular than Superman these days anyway, and maybe an even bigger merchandise whore), give the character a big send-off or not, and carry on. Marvel without Kirby characters, though, ouch. That'd be like driving off a cliff. At some point, Marvel would decide sharing the bacon beats losing the farm. At some point, Kirby's heirs will figure out the most effective means of exploiting Jack's creations is the system that already exists more or less for that purpose. There's no way, push came to shove, they wouldn't reach a deal, because ultimately a deal would be the best option for both side.

So we're back to the original question: how do we best honor our dead?

Mail!:

"Not sure how interested you are, but there are a couple of black lists the Bank of America story could be referring to, one more likely than the other. A lot of banks use a database called Chexsystems that each of the member banks reports to. (This is a Deluxe product, which is probably the company that makes your checks, if you still use them.) Banks typically report an account holder to Chexsystems for what is called "account abuse," the industry term for passing bad checks. Having a negative balance for a month or more will frequently get your account charged off (the account is disabled and after a period the holder is reported to a collection agency), and this would be the other likely reason for being reported to Chexsystems. The problem with this being the blacklist that the story mentions is that the database is checked before the account is ever opened. (Deluxe has another database, DeluxeDetect, that is basically impossible to to "fail"--banks that are desparate for accounts will sometimes use this database instead of Chexsystems, since they end up approving nearly all new accounts (and end up with a lot more check kiters).)

The other possibility is that the story was referring to OFAC, and while this is generally less likely, it makes more sense procedurally. OFAC is the Office of Foreign Asset Control, and banks are not allowed to open accounts for or do business with people or entities on a list that the Office maintains. Typically these are people or entities that are suspected of terrorist and/or international money laundering activities. When a new account is opened, the salesperson you deal with runs some cursory screening procedures, like Chexsystems, but a great deal more screening is done after the new account information is transmitted to the corporate offices, and this is likely where the OFAC list is checked at most banks. 

It's also possible that gentleman popped up on Chexsystems, and either the salesman or a low level manager decided to open the account anyway (nine grand looks good for one person at the branch level in some situations), he or she was read the riot act by a superior, and had to inform the gentleman that his account was being closed. The fact that the story says the funds were "frozen" makes me think, however, that a federal agency was involved."

Given the way many banks operate, I wouldn't be surprised if some bonus were connected with opening accounts and the banker knew the assets would be frozen but didn't care. The $9000 amount may have been the trigger as well, since the Feds are aware criminals know about the "alarm" $10,000 deposits supposedly set up so they parcel money just a little under. But since my bank insists no such "alarm" exists when I ask about it...

"I regularly read your column and usually enjoy it quite a bit, but have never had reason to write previously. The name of the blacklist that you are asking about is Chexsystems.

And here is a site that I found to be helpful:

Here's more information.

I found out about Chexsystems the hard way, after I was paid with what later turned out to be a fraudulent check and deposited it to one of my two Bank of America Accounts. (I had had a savings and checking account there for many years). After the initial deposit then everything seemed fine and I was even allowed to withdraw the first $100 of the check, but then suddenly there was a hold placed on my checking account where the deposit had been made.

I called in to speak with a representative who told me that the check was bad and that the $100 withdrawal had put my account over the limit. She told me it was my fault for accepting a fraudulent check and that it was my responsibility to make amends. She further told me that once I paid back both of those amounts (the $100 and the over the limit fee) then my checking account would again be in good standing. I proceeded to do that and then used the checking account to initiate payment of 2 regular bills.

Two days later I received a call from a special BofA department that contradicted the earlier representative. This rep told me that both my BofA accounts would be immediately closed and that I would be, as you said, blacklisted.

Further, while I could withdraw the money that I had deposited for those 2 regular bills (after a waiting period), the checks that I had written would not be honored. So I had two late fees/insufficient funds fees appear from both of the parties whose bills I had paid and I had to wait for about 3 weeks to get the money that I had deposited for them returned.

The rep from this 2nd department was quite rude and thoroughly uninterested in understanding my problems, accepting my word that I had been duped, caring that I and my family had long been members of the bank, or accepting any responsibility for 1) allowing me to withdraw the $100 or 2) the earlier rep giving me false information about what I needed to do in order to get my account back in good standing.

She told me that I would be reported to Chexsystems as a perpetrator of fraud, that they would recommend that no other bank do business with me, that I would remain on the list for five years, that there was no appeals process and that BofA did not want my business at that time or at any time in the future. She also told me that in most situations a bank will inquire with Chexsystems before opening a new account and that my being listed will most likely cause me to be rejected during the application process.

After several phone calls I discovered that the 2nd reps position was representative of BofA's thinking on this subject. I was quite angry, but did not think that I would get anywhere by trying to fight BofA.

Fortunately for me, I already had a money market account with a second bank and had opened another checking account with a third, when they were offering a great promotion through my employer. I hadn't really ever used that other checking account before, but was suddenly quite glad that it was there. Between those two accounts then I have been able to conduct my business while waiting for the five years in purgatory to pass.

In the almost five years since this all transpired, then I have met a handful of others who have also been placed on the list, but have never seen the list or the company mentioned in the media."

Now that's scary, not only that there's a non-governmental agency with that much power whose decisions are unquestionable, but that it could happen to anyone, for basically no reason. Especially in this economic climate, how are we supposed to know when the checks we accept in good faith are bouncers? Didn't the State Of California bounce checks on all their employees recently?

"Would be interested to read an article by you that goes over what this link goes over. (In a nutshell, it's a column by Chris "Crowbar" Ford talking about the advice he would give to those looking to get into professional wrestling. It's rather hard hitting.)  We would like to read a column like that from you about the truths and hardships of trying to become a professional writer (comic book and prose)."

Um... kind of what I've been doing in this column and MASTER OF THE OBVIOUS for the last decade plus, innit? The short synopsis: it's a lot of hard work, usually for very little money, and it's far more aggravation than satisfaction because everyone else, and I mean damn near everyone, thinks their special talent is telling you how to do your work. Anyone who thinks it's a glamour job is out of their mind, and if you want to break in it better be because you want to do the work, not because you want to be known for doing the work. Nonetheless, it's far more satisfying than working in an office or a filling station, and sometimes it even pays off too.

Notes from under the floorboards:

Not much in the way of notes this week. I'm in the midst of a minor dental crisis and it looks like emergency surgery time come Monday. At times like this I thank the good lord for not allowing death panels but I can't help but think that in Cuba the surgery would be free...

As mentioned last week, Just I'll be appearing at the Alternative Press Festival (APE) in San Francisco on Oct. 17-18, in support of the print release of my reworking of the Odyssey, ODYSSEUS THE REBEL. My first time at APE. Check the Big Head Press table for copies and signing times.

Massachusetts' highest court now allows cops there to break into cars to plant GPSs so the cars and their owners can be tracked. Only two things necessary: a warrant and the expectation that a crime or evidence of a crime might follow in its wake. Seems the cops in Massachusetts are big on breaking into things: if a bill before the state legislature passes, cops there will have the right to break into private homes to force swine flu vaccinations on the occupants. When did Massachusetts turn into Florida?

Speaking of which, in Florida the religious right is looking to change the state constitution to outlaw birth control pills and most other contraceptive method; they seem to equate contraception with abortion, apparently in the belief that life begins with the twinkle in your father's eye...

For those who care, Nintendo is supposedly dropping the price of the Wii to $199 on Sept. 27, just in time for the Christmas shopping season. Suddenly it's Christmas...

Looks like Google's Internet book publishing solution is on the skids and their "deal" is off. The deal, negotiated with some organization (sorry, I forget who) that nobody ever heard of before, basically gave Google "the right" (or at least some sort of official looking benediction) to web-reprint any text unless the author or owner of the work specifically requested otherwise. Result: virtually everyone requesting otherwise, and the Justice Dept. questioning the legality of a settlement between Google and publishers and writers groups suing over the arrangement. Everyone seems to be expecting another "deal" to be made, though...

Congratulations to my old pal Paul McEnery, who cracked last week's Comics Cover Challenge and ferreted out "emotions." (For those who couldn't: sad, love, surprise, fear, happy, anger and hate, in that order, all words or in words on the covers.) Somehow in the midst of the joy that the puzzle had finally been cracked, I neglected to ask Paul what site he wanted to pimp. Paul?

For those who came in late, almost every week I run a Comics Cover Challenge: the covers of seven seemingly unrelated comics (thanks to The Grand Comic Book Database for the covers) from throughout comics history are spread, usually not in any particular order, down the column. But a secret theme – it could be a word, a design element, an artist... anything, really - binds them together, and the first one to e-mail me with the correct solution can promote the website of their choice, subject to my approval. IMPORTANT NEW RULE: PLEASE INCLUDE WITH YOUR GUESS THE WEBSITE YOU'D LIKE TO PROMOTE IF YOU WIN. As in most weeks, a secret clue is cleverly hidden somewhere in the column, even if it doesn't make a whole lot of sense. Good luck.

Those wishing to comment should leave messages on the Permanent Damage Message Board. You can also e-mail me but the chances of a reply are next to nil these days, given my workload, though I do read all my e-mail as long as it's not trying to sell me something. IMPORTANT: Because a lot of people apparently list it in their e-address books, this account has gotten a slew of virus-laden messages lately. They're no real threat but dealing with them eats up time I don't really have, to the extent I can no longer accept unsolicited e-mail with attachments. If you want to send something via attachment (say, art samples) ask me first. If I say okay, then send. Unsolicited e-mail with attachments will be wiped from the server without being read.

IMPORTANT PUBLIC NOTICE OF COLUMN POLICY: any email received in response to a piece run in this column is considered a letter of comment available for printing in the column unless the author specifically indicates it is not intended for public consumption. Unless I check with you or the contents of your e-mail make your identity unavoidably obvious, all letters are run anonymously.

Please don't ask me how to break into the business, or who to submit work to. The answers to those questions are too mercurial for even me to keep up with.

The WHISPER NEWSLETTER is now up and running via the Yahoo groups. If you want to subscribe, click here.

I'm reviewing comics sent to me – I may not like them but certainly I'll mention them – at Steven Grant c/o Permanent Damage, 2657 Windmill Pkwy #194, Henderson NV 89074, so send 'em if you want 'em mentioned, since I can't review them unless I see them. Some people have been sending press releases and cover proofs and things like that, which I enjoy getting, but I really can't do anything with them, sorry. Full comics only, though they can be photocopies rather than the published version. Make sure you include contact information for readers who want to order your book.

TAGS:  permanent damage, marvel comics, disney, jack kirby

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