Robert Boyd
I gave a talk yesterday at Alabama Song, an alternative art space in Houston's Third Ward. I was invited to give the talk by Gabriel Martinez, who is Alabama Songs's... Director? I don't know if he has a "job title" or anything--they play stuff pretty loose. In any case, he asked if I would talk about comics. I said sure and asked if I could talk about how evil Marvel and DC are. He assented. We had a full house (about 25 people), most of whom, I would guess, knew little or nothing about comics (hence my little potted history at the beginning). They were polite and asked lots of great questions. But I wonder if I had given the same talk at a comics convention if things would have been so polite
So I thought I'd post the talk here. All of you who are familiar with super-hero comics can tell me I'm full of shit, if you think so. Whatever your reaction, this will probably be the last time I discuss superhero comic books in this blog.
Much of what is presented below came from two sources: Men of Tomorrow: Geeks, Gangsters, and the Birth of the Comic Book![]()
by Gerard Jones and Marvel Comics: The Untold Story![]()
by Sean Howe. I recommend both books highly.
Since it was a PowerPoint slide show, I'll put the slide image first and the text that went along with it second.
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Right now is a peak moment for superheroes. The astonishing success of various superhero movies and TV shows—The Avengers, Iron Man, The Flash, Batman, etc.—has made this genre one of the biggest in entertainment and has made the corporate owners of these properties even richer than they were to begin with.
These properties are owned by corporations like Time-Warner, which owns DC Comics, and Disney, which owns Marvel Comics. But they were created by individuals—by cartoonists, the people who write and draw comics. And the biggest fear of the entertainment conglomerates is that they might have to give the creators of their source of wealth a fair shake. From the scrappy little publishers that first published these comics in the 30s and 40s to the multinational corporations of today, there is one thing they all agree on above all else: if at all possible, artists and writers should never, ever own the fruits of their own labor.
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I’m going to talk about three creators of super-hero comics—perhaps the three most important creators—Joe Shuster, Jerry Siegel and Jack Kirby—and how they have been repeatedly screwed over by businessmen, even after their deaths. These three men are representative of many other comics artists, particularly of their generation (the artists who started in the field as teenagers in the 30s and 40s).
But before I get into the sad, infuriating details of the crimes against them, let me give you a bit of background about comics in general and superhero comics in particular.
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Comics as a continuously-practiced artform began in 1837 in Switzerland. There were many pieces of art before then that were comics-like—they told narratives with sequential images—but all the comics you read today anywhere in the world can trace their lineage directly to Histoire de M. Vieux Bois by Rodolphe Töpffer, first published in 1837. This printed narrative has most of what we think of as comics formally today—a lot of pictures in a sequence, combined with text, that told a story and which was mass produced. And it was instantly popular all over Europe and even in the U.S. (it was translated and published here in 1842 as the Adventures of Obadiah Oldbuck). This form of humorous storytelling was rapidly adopted by other artists, who published their works in humor magazines and general interest magazines all over the world.
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In 1895, one of those magazine artists, Richard Outcault, created a new comics feature, The Yellow Kid, for the New York World newspaper. At the time, newspapers were the biggest mass medium—every city had multiple daily papers, and circulation wars were fierce. Newspaper comic strips were a weapon in those wars. As soon as comic strips were introduced, they proved to be universally popular. If you were a cartoonist in the U.S., you wanted to be drawing a comic strip for newspapers. In addition to being very popular, many comic strips were superb and there have been quite a few important works of art in that genre, in my opinion. I could easily talk for hours on such newspaper comic strips, but that’s not why we’re here today.
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Newspaper comics remained the best gig a cartoonist could get for most of the 20th century. And the newspaper publishers wanted to leverage the popularity of these strips, so they licensed them to toymakers, movie studios, book publishers, and magazine publishers. In 1933, Famous Funnies, a collection of old comic strips, was sold as a magazine on newsstands. It is usually considered the first comic book, and it proved to be extremely popular. Publishers began to churn them out, quickly running out of material to license from the newspapers. They started hiring artists and writers to produce original material for comic books.
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If you look at this work today, it looks really crude—because it was! Essentially, the artists who worked for comic book publishers were the artists who were not good enough to get into newspapers and nicer magazines. So they tended to be either 5th rate hacks or extremely young (often teenage) artists who were “paying their dues” and getting professional experience. No one before 1938 thought of comic books as a career—they saw it at best as a stepping stone; at worst, a career dead end. But a cohort of working class Jewish New Yorkers born between 1914 and 1917 would end up creating the comic books we know today.
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1938 is an important date for us. It’s when Action Comics #1, featuring Superman, was published. And Superman was the creation of writer Jerry Siegel and artist Joe Shuster. Siegel and Shuster were from Cleveland and a couple of years older than the super-creative New Yorkers who would follow them into the comics. They were true pioneers.
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In 1934, Jerry Siegel and Joe Shuster graduated from high school and started selling comics pages almost right away. They sold their first work for $6 to Major Malcolm Wheeler-Nicholson’s New Fun comics magazine. They started developing Superman around this time. Initially it was to be a comic strip—they not only designed the comic strip, they designed ancillary products (cereal boxes and the like) for their pitch.
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In 1937, Sheldon Mayer, a teenage editor for William Gaines, formerly of McClure Syndicate, found Superman samples in Gaines files. He liked it. He showed it to Vin Sullivan, who worked for Jack Leibowitz and Harry Donenfeld, two magazine distributors who distributed mostly “spicy” pornos but were getting into comics because they were easier to get onto newsstands that were otherwise too squeamish to carry their under-the-counter sex pulps. They called their new comics company Detective Comics, or DC, after one of their first successful titles.
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To make their comic strip work as a comic book, Siegel and Shuster reworked the narrative to include Superman’s escape as an infant from the planet Krypton. They lengthened the original story and introduced Lois Lane and Superman’s alter ego, Clark Kent.
Siegel and Shuster got paid $130 for the property and signed a release assigning all rights to the publisher. (That would be a little over $2000 in today’s dollars.)
Superman appeared on the cover of Action Comics #1, cover dated June, 1938. But Superman wasn’t the only story in the comics. It was an anthology focused on adventure. Superman didn’t get the cover again until issue 7. But Donenfeld asked his sales staff to ask newsstand operators what comics were popular with the kids, and the answer came back: “The one with Superman in it.” Action Comics quickly became an all-Superman title, and a second Superman comic was soon introduced as well.
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With its proven success in comics, William Gaines asked Siegel and Shuster to work it up again as a comic strip for McClure. Donenfield, as owner of the Superman property, would get 50%. Interestingly, the first paper to buy the strip was the Houston Chronicle—it’s our city’s little part in the story of Superman. As seemingly generous as that was, Siegel was worried that he was getting ripped off. He and Shuster were getting paid $10 per page for Superman comics ($172 in today’s money), and from that, they had to pay not only themselves, but their studio assistants (the letterers, inkers, assistant artists and so forth.). No matter how you slice it, they were getting ripped off. At first, they were so happy to get published, they took what they could get. This was the Depression, after all. But they realized quickly that they were producing a hit property and getting peanuts. It’s an old story.
Donenfeld, who had been in a barely legal business before and had many mob connections was suddenly getting rich off of a legitimate publication, a wholesome comic book aimed at children. He’d go to the Stork Club or El Morocco with his much younger mistress (who he had set up in a suite in the Waldorff-Astoria) and get greeted by the swells there: “Hey, Superman!”. His wife and family lived on Central Park West. In other words, Superman very quickly made Donenfeld rich—at the same time that he was paying Siegel and Shuster $10 per page. Superman was everywhere; in newspapers, in his own radio show, and in animated cartoons—the brilliant Fleischer Brothers made some of the most beautiful art-deco cartoons ever from Superman.
Just a few months after Superman first appeared, Siegel asked for a raise and got it—from $10 to $15 a page. Jack Leibowitz gave it to him, but reminded him of his place in an letter:
And here’s the deal. The contract they signed with DC promised them “a percentage of the net profits accruing from the exploitation of Superman in channels other than magazines.” It’s vague, but it’s there—Siegel and Shuster should have been getting a cut of everything right from the start.
If Siegel and Shuster had had a lawyer on their side, or a business advisor, they probably would have done better. Their youth and naiveté betrayed them, as did their working class background. When faced with slick businessmen like Donenfeld and Liebowitz, they lost every time. This is why workers of their generation joined unions, but there was no union for comic book artists and writers then, and there has never been one since.
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Siegel and Shuster began to get some fame and recognition for their work, appearing on the radio and in magazine profiles. In 1940, Jerry Siegel pitched Superboy to DC. At that time, they turned down the idea. In 1941, Siegel again asked for a cut of the licensing profits, only to have Liebowitz assert that DC’s accounting “shows that we lost money and therefore you are entitled to no royalties. However, in line with our usual generous attitude towards you boys, I am enclosing a check for $500, which is in token of feeling.” There were more unfulfilled promises as time went on. But eventually DC couldn’t hide the income Superman was generating, and Siegel and Shuster started to get some royalty checks from Liebowitz and Donenfeld.
Siegel went into the army in 1943. Shuster’s eyesight was poor enough to have him declared 4F, not fit for duty. Some Superman work was farmed out to other writers, which was something Siegel had always opposed—he didn’t have any ownership rights, but as long as he was writing it, he had some control over the direction of Superman. In 1944, DC started publishing Superboy. The “Superboy” that Siegel had proposed four years earlier was mischievous, a prankster. The new Superboy was a good boy living in Smallville with Ma and Pa Kent. But still, Siegel had created the character and pitched it to DC, and now they were using Superboy without paying Siegel for it. The difference now was that Siegel had a lawyer. His lawyer, Albert Zugsmith, heard Siegel’s story and thought that Siegel might have an opportunity to get Superman back from DC.
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Donenfeld and especially Jack Leibowitz were contemptuous of their artists. They paid higher page rates than most of their competition because they were on top and wanted to hire the best. But mixing with them socially was out of the question. They were freelancers, grimy little laborers—the referred to them as “the boys.” And, amazingly, they were among the best publishers out there in terms of their relationship with their talent. So however poorly Siegel and Shuster were treated, remember that there were many comics creators of very valuable characters who were treated far worse.
After a while, the editor of Superman, Mort Weisinger, told Leibowitz that Siegel and Shuster were more trouble than they were worth. Weisinger was a known liar and was once described as a “malevolent toad” by one of his assistants. He was a truly terrible person. When Siegel returned to civilian life, Weisinger started assigning scripts to him, but assigned more to other writers.
Siegel and Shuster had a 10-year deal to produce Superman that was expiring in 1948. Shuster’s eyesight was going and he desperately needed income to hire artists in his studio. The two decided they needed to create something that they owned, lock stock and barrel, since DC clearly wasn’t going to relinquish their cash cow, Superman. They created a character called Funnyman, sort of a prankster hero, but it went nowhere. Lightning doesn’t strike twice. By this time, they were getting decent pay from DC—Siegel had a house in a decent neighborhood, and Shuster was able to support a large extended family.
In 1947, Siegel and Shuster sued DC for $5 million and the reversion of the rights to Superman. In 1948, the case was decided against Siegel and Shuster—they had legally signed away their rights to Superman and were owed no damages. However, they were owed damages for Superboy. DC made them an offer—if they surrendered all claim, now and in the future, to Superman and Superboy, they would get a one-time payment of $100,000 (almost $1 million in 2015 dollars).
Now this would, after lawyers’ fees, be the equivalent of what they got paid for one year’s work for DC (from which they not only paid themselves, but all the artists and letterers who worked in their studio). And they would obviously never work for DC again, after suing them. They were no better off than they were in 1938, when they had sold Superman to DC. They would never again get royalties for ancillary income based on Superman, Superboy, Lois Lane, Lex Luthor or any of the many characters they created.
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Shuster’s eyesight was too poor to continue drawing. He became a laborer working on the margins of society for many years. Siegel continued to work in comics and was even rehired by DC in the late 50s. Apparently Jack Leibowitz asked Weisinger to give his old colleague work. Siegel’s writing from this period has a high reputation, as if his struggle had given him an ability to see the tragic side of Superman. But working for Wiesinger was sheer torture.
In 1966, Siegel again challenged DC’s copyright to Superman (the first 28 year copyright term expired then, and DC had to reapply for a copyright). It failed. Siegel gradually disappeared from comics. By the early 70s, he was working for the California PUC as a clerk, for $7000 a year.
In 1967, DC Comics was purchased for $60 million to Steve Ross. Ross soon bought Warner Bros.-Seven Arts, and he folded all of his entertainment businesses together to form Warner Communications. And DC is a part of this giant multinational conglomerate to this day.
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In 1978, a high-budget blockbuster film version of Superman was released starring Christopher Reeve, Margot Kidder and Gene Hackman. The news that this movie was coming spurred Siegel into action. He wrote a 10-page press release telling his side of the story—it was very tendentious and not exactly 100% truthful—and sent out 1000 copies to media outlets around the country. A few newspapers here and there wrote about Siegel and Shuster, but DC and Warners remained mum about them, hoping the interest would blow over. Then Tom Snyder, a popular late night talk show host, had Siegel on his program to tell his story. Cartoonists Jerry Robinson and Neal Adams heard this interview and decided they would become activists on behalf of Siegel and Shuster. They began a campaign to pressure Warner Communication into doing right by the pair. They mounted a successful media campaign, and Warners concluded that it needed this to go away before Superman premiered.
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Warners realized the bad publicity that would result if a movie that cost millions (and eventually made millions) was rolled out while the two creators of Superman lived in sickness and poverty. So they gave Siegel and Shuster each a pension of $20,000 for life with a provision for their heirs. And now on all comics, movies and TV shows featuring Superman, there is credit given to Joe Shuster and Jerry Seigel as the creators. Shuster lived in reasonable comfort in a one-bedroom apartment for the rest of his life and died in 1992. Siegel and his wife lived in a condo in Marina del Rey, and his relationship with the new generation of DC editors and publishers (Leibowitz and Weisinger being long gone by then) was quite genial. He died in 1996.
There’s more to their story, but I want to talk about another artist before I take up the end of the Shuster and Siegel story.
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One of the early superhero creators was Jake Kurtzberg. He was born in 1917 in the Lower East Side. He drew comic strips for a rock-bottom syndicate for a while where he would adopt an Irish-sounding nom de plume, Jack Kirby. By the late 30s, Kirby was working for various “sweat shops” producing comics for a variety of publishers. The sweat shops were studios where a group of cartoonists would produce to fill the insatiable demand of the many comics publishers popping up in the late 30s and 40s. They were packagers, essentially.
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In 1940, Kirby teamed up with a slightly older cartoonist, Joe Simon. They were packaging work for Timely, the comics arm of a bottom rung pulp publisher run by Martin Goodman. Goodman wanted a superhero comic, and his condition was that it had to be distinct from Superman and Batman because DC was known to be litigious. Simon, who had a middle class upbringing, was a cannier negotiator than Siegel and Shuster had been. They made a deal with Martin Goodman for a new superhero, Captain America, who would have his own comic. Simon and Kirby would get 15% of the take and salaried positions with Timely as comics editor and art director.
Captain America was a big hit for Timely, so everyone was happy—until Goodman reneged on the 15% and lied about it to Simon and Kirby. Simon and Kirby left in disgust and went over to work for DC (for better pay). Goodman had to scramble to find new artists to put out Captain America, and to hire a new editor. He chose his 17-year-old nephew, Stan Lee.
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In the meantime, Kirby and Simon had moderately successful comics careers throughout the 40s and well into the 50s. But in the early 50s, there was a moral panic over the content of comic books, and in 1954 an industry censorship standard, the Comics Code, was introduced. At that time, many comics publishers closed and the readership dropped, and Kirby, with a Depression era need to be working at all times, would take any work he could get. He was a workhorse and never lacked for work, but when Stan Lee called him in 1958, he added Marvel (as Timely was now called) to his list of clients, churning out 8-page stories with twist ending for Journey into Mystery, Tales of Suspense and Tales to Astonish.
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Around this time, DC was having success with its new Justice League comic book, which featured a team of superheroes. Martin Goodman built his publishing career on churning out copies of whatever was successful in the market, and he commanded Lee to come up with a superhero team. Kirby drew it, but there is a question of who actually created the Fantastic Four. In 1962, they turned Journey Into Mystery into a superhero book by creating a modern day Thor to fight the baddies. From that moment, they started creating new characters—heroes and villains—at a rapid pace: the Hulk (1962), the X-Men (1963), the Avengers (1963), the Silver Surfer (1966), etc.
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In 1966, Joe Simon sued Marvel for the copyright for Captain America. He had a good case. To bolster Marvel’s case, Goodman asked Kirby to testify that Timely owned it all. Why would Kirby do this? Kirby was dependent on Marvel for his income, and Goodman sweetened the deal—if Kirby would testify for Marvel, he’d pay Kirby the same settlement that Marvel ended up paying Joe Simon, whatever that may be. But when Marvel settled with Simon for $7500, they never paid Kirby.
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In 1968, Lee launched a solo Silver Surfer comic using the artist John Buscema. Kirby had created the Silver Surfer 100% by himself--he had added him into a Fantastic Four storyline without input from Lee. He was angered that the character was being done by someone else. Kirby stopped creating new characters for Marvel, even though he continued to pencil many comics. He was known to tell people, “I’m not going to give them another Silver Surfer.”
Even though all his work was coming from Marvel, he was still a freelancer. He worked from home and only came into the office to deliver his artwork. Despite the “mighty Marvel bullpen” image that Lee promoted, the fact was that the work was done by freelance artists working from their home studios.
In 1968, Marvel was sold to Martin Ackerman and became a division of Curtis Publishing. The price was $15 million, some bonds from one of Ackerman’s other companies, and long term contracts for Goodman, his son Chip and Stan Lee. Kirby, who had created or co-created most of the successful Marvel characters, got nothing.
Kirby in frustration asked for a contract—no more verbal promises--and hopefully some stability. Up till now, every page he drew was as a freelancer. But the contract they sent over was so insulting that he quit on the spot. DC comics sent him a much more generous contract, and he took his work to DC.
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There has long been discussion about who created all those characters: Lee, Kirby or some combination. The scripting was done in what is now known as the “Marvel method.” Lee would give his artists a plot, the artist would draw the comic in pencil, then Lee would write dialogue and captions to fit the panels drawn by the artist. Only at this point would the comic be lettered, inked and colored. What we don’t really know was how detailed the plots were from Lee. But we have an idea of what Kirby did, because he was given photocopies of his pencils by Marvel so he could keep elements of the story consistent when he started work on the subsequent issues. They show him carefully scripting out the action in the margins, which Lee would usually follow (although in doing so, he’d give the text a jazzy spin).
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But before he worked with Kirby on the Fantastic Four, Lee had created nothing of note, and after Kirby left Marvel, Lee created nothing of note. Whereas before Lee even worked for Marvel, Kirby and Simon had already created Captain America and the Red Skull, and when Kirby went to DC, he created Darkseid and the evil planet Apokolips, which are now key parts of DC comics. Knowing this, I give Kirby the lion’s share of the credit for the characters and comics he worked on.
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Kirby briefly returned to Marvel in the late 70s (Lee had left his editorial role by then and mostly worked in California on media licensing deals).
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Now I have to talk a little bit about copyright. As we have seen, it has a lot to do with the bad relations between artists and publishers in the comics field (and in many other fields as well—music for example.) Prior to 1976, the copyright law was tilted heavily in favor toward publishers and against freelancers. You had to apply for a copyright, which was a legal process that was harder for individuals than companies, generally. And after 28 years, you had to reapply or you could lose your copyright.
The copyright law of 1976 did a bunch of good things--it defined fair use; and it aligned U.S. law more closely with the Berne Copyright Convention, which was a little friendlier to creators of copyrights than the old U.S. law. But it did a bad thing, too: it lengthened the time of copyright from 56 years to 75 years. The drafters of this law realized that they were in essence giving a free gift of ownership to people and companies who had commissioned or bought creative work between 1920 and 1976. The idea is that if you were a freelance artist, and you created a copyrighted work that you sold to a company (as opposed to retaining the copyright for yourself), you were selling them 56 years of exclusive exploitation—and the government had just unilaterally upped that to 75 years. But if you had known the copyright term was going to be 75 years when you initially sold it, you might have asked for more money.
Given this, the framers of the new law built in a copyright reversion mechanism.After the original 56 years had passed, you (or your spouse or children or grandchildren) could file for a copyright reversion, as long as the original work was not done on a “work for hire” basis. So if you wrote a song in 1950 and sold the copyright to that song to a record label, in 2006, you or your heirs could file a “notice of termination” which would give you 39 years of ownership of the original song from which you would derive all the benefits—the royalties, the licensing fees, etc.
(A footnote here—Congress in 1998 extended copyright from 75 to 99 years. It was acting at the request of the Disney corporation, which dreaded what would happen if Mickey Mouse ever fell into the public domain.)
This new copyright law spooked Marvel. It wasn’t clear whether its artist were legally “freelancers” or “work for hire” artists. Up until this point, Marvel had kept artist’s original artwork, despite the fact that artists (including Kirby) had repeatedly asked for it to be returned. So after 1976, they instituted a policy: to get your physical artwork back, you had to sign a release acknowledging that you had done it on a work-for-hire basis. Kirby willingly did so for the art he did in the late 70s for Marvel, but when he asked for his 60s artwork back, he was told it was too valuable to return.
In 1983, this policy was somewhat reversed. Marvel started going through its old artwork stores and returning art to artists—as always, making them sign retroactive work-for-hire agreements. But Kirby, when he asked for his 60s art, was consistently blown off. Finally in 1984, he was given a list of the original pages of artwork he had done for them that they still had in inventory. The list had only 88 pages of the 8000 pages he had done for Marvel in the 1960s. And in addition to the retroactive work-for-hire agreement they expected him to sign, his contract contained additional restrictions: he could not sell the artwork, he could not make copies of the artwork, he could not publicly exhibit the artwork, Marvel could have access to the artwork any time it wanted, and Marvel could modify the artwork if it needed to do so. Kirby angrily refused to sign.
These onerous demands by Marvel infuriated many younger comics artists who were currently working for Marvel, DC and other publishers. They hated to see a revered figure like Kirby treated so shabbily. Many signed a petition for the unconditional return of the artwork, but their campaign never reached the mass media the way Seigel and Shuster's did. But in 1987, Marvel finally returned about 2000 pages it had—far more than the 88 it had originally offered.
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Kirby knew that many of his creations from the early 60s would become eligible for reversion in the 2010s. He knew he probably wouldn’t live that long (he died in 1994), but he instructed his wife and children to be prepared to file the reversion notice within the window provided by the law. The heirs did this in 2009, sending Marvel (and Disney, which was then in the process of buying Marvel) 45 notices of termination for various Marvel characters that Kirby created. If the work had been created under a work-for-hire agreement, a copyright couldn’t be terminated by the creator. If I hire you to create a comic book for me, that’s work for hire. But if I bring you my ideas and you decide to publish them, that’s not work for hire. You can see how there might be a lot of shades of grey between those two poles. After getting the copyright termination notices from the Kirbys, Marvel sued them, claiming that Kirby had done all this work on a work-for-hire basis and was therefore not entitled to copyright reversion.
The thing is, there were no contracts back then. This stuff—“work for hire”, “freelance”, etc., was more fluid then mainly because U.S. copyright law at the time didn’t make those bright distinctions. If you take a gig with Marvel or DC today, you can bet they make you sign a work-for-hire contract before you have put one pencil line down on the Bristol board.
So the court fight between Marvel and the Kirby heirs all centered on Kirby’s working relationship with Marvel. Was he an employee, or was he a freelancer who brought ideas into the company? And in 2011, a district court ruled against the heirs. The Kirbys appealed and the appellate court agreed with Marvel. The Kirbys then appealed to the Supreme Court. By this time, the case had gotten a lot of publicity, and a lot of people were saying that Marvel’s definitions of “employee”, “freelancer” and “work for hire” didn’t make sense. Organizations like the Writer's Guild, the Director's Guild, the Screen Actor's Guild and others filed amicus briefs on behalf of the Kirbys. These unions wanted to protect their members in case any of them ever wanted to file termination notices.
Who knows how the Supreme Court would have ruled? But Disney realized that there was a risk that the Supreme Court might overturn the appeals court ruling and not only lose them possibly billions of dollars in valuable Marvel copyrights that they owned, but endanger many other copyrights that might be lost in termination notices brought by the heirs of screenwriters, directors, actors and animators who had done freelance work for Disney over the decades.
So Disney made a deal with the Kirbys in 2014, literally just a few days before the Supreme Court was to consider putting Marvel vs. Kirby on the docket. The Kirbys apparently were happy with the undisclosed settlement, so presumably it was for a huge amount of money. And that’s really all they wanted—they weren’t about to get into the movie business or the comic book business. If they had won the copyrights, they would have turned around and licensed them right back to Marvel for lots of money. In the end, that was what they wanted, a piece of the pie—a pie that wouldn’t exist without their dad, Jack Kirby. And they got it. Jack Kirby didn’t live to see it, but he planned for it all along. So it was a victory from beyond the grave.
While this was going on, it was being reported on various online comics news sites. It was funny and somewhat dispiriting to read comments on various comics message boards in this period. So many of the armchair legal experts on the boards accused the Kirby heirs of being greedy, or suing Marvel (which they did not do), or of spoiling their little playpen. Their loyalty to Marvel the company exceeded their feelings for the artists and writers who created Marvel. It was a classic example of false consciousness. Marvel and DC encourage this kind of "company" or "brand" loyalty.
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As for Siegel and Shuster, their heirs also applied for copyright reversion. The both lost their cases, but Warners made an agreement with the Siegel heirs for $3 million up front and 6% of DC’s gross participation of any future profits associated with Superman or the Spectre (another DC character created by Siegel). So the Siegels, in the end, did pretty well—but too late for Jerry Siegel, who died poor.
Shuster’s heirs weren’t so lucky. When Shuster died in 1992, his siblings asked DC to help pay for his burial (since Shuster’s pension stopped when he died). DC offered the heirs pensions similar to what they had paid Shuster for the rest of their lives, but only if they would sign an agreement acknowledging DC’s ownership of Superman and a promise not to sue for those rights. When they filed their rights reversion notice, DC whipped out this agreement and the court found against the Shusters.
These were three of the most important people in comics history, certainly THE most important in superhero comics history. And they were treated with exceptional shabbiness and venality. But this was the common story for many of these cartoonists. I could have easily made this talk about Bob Montana, who co-created Archie, or Carl Burgos, the 1940s creator of the Human Torch, or many other artists. Artists were paid piece rates, were un-unionized, had no health benefits, no pension, no rights to their own creative work, and often no rights to the physical work—the pages of art they turned in. It’s therefore never been considered a good career. David Hajdu’s book about the Comics Code, The Ten Cent Plague, features as an appendix a list of 100s of comics artists and writers who dropped out—stopped producing work in comics –in the 1950s and 60s. The message I got from this dispiriting list is that this is an industry that treats its creative talent shabbily and that cares very little about producing high-quality, artistically interesting work—so why should anyone stay if there wasn’t an overwhelming economic reason to do so?
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So what’s it like for a comics freelancer today? I asked comics writer Chuck Dixon about it. He’s written many comics over the years for Marvel and DC, including various Batman comics for DC and Punisher comics for Marvel. His big claim to fame is that he co-created the popular Batman villain Bane, who was used as Batman’s antagonist in the most recent Batman movie. Because DC and Marvel have contracts now and can’t easily just steal every creative thought you have forever, artists now have various forms of equity sharing (but not, it should be said, a royalty or legal co-ownership). What that means in effect is that whenever Marvel or DC uses a character you created outside the comics medium, the creators share in some of the licensing money. Dixon told me that the licensing he got from Marvel was pretty paltry, and the licensing from movies was also really small due to the onerous contracts movie production companies have with the publishers. But that whenever Bane showed up as an action figure or in a video game, Dixon would get big checks. So even though he created the character in 1993 and hasn’t written comics for DC in a long time, he still gets paid by DC. Obviously an improvement over what Siegel, Shuster and Kirby got.
Why would DC and Marvel offer this now? Because the stories of their past exploitation of older artists are well known. If they want a Chuck Dixon or a Grant Morrison or a Michael Bendis to continue to create great new characters like Bane, they have to give them some way to profit on future use of that character. It’s not that Marvel and DC suddenly became enlightened benevolent publishers. They had no choice.
Now I’ve shown that Marvel and DC comics are built on exploitation of artists, but given that the situation seems to have improved a bit, shouldn't we cut them some slack now?
No.
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Marvel comics and DC comics are designed to appeal to the broadest constituency. This means stories that are simple. It’s good vs. evil, and it’s easy to tell who is who. Problems are literally solved with the heroes’ fists. Might makes right. The bad guys are criminals—often thieves stealing valuable properties from the ruling class. Superhero comics appeal to adolescent ideas of powerlessness—they provide a fantasy outlet for the bullied boy in the basement. But post-adolescence, their value is mainly nostalgia. To me, they aren’t a useful genre for creating subtle, sophisticated works of art. They are indeed deliberately not subtle. And finally, they are products—they succeed when they enhance a corporation’s bottom line. If that means giant boobs for superheroines, because sex sells, especially to teenage boys, then that’s what you get. If it means gratuitous violence, that’s what you get. If a cartoonist creates an undeniably great work of art, but its sales aren’t high, they cancel it.
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Does this mean I think all superhero comics (and movies, etc.) are bad? No, not at all. Despite the structural and economic limitations of the genre, there have been innovative, moving, artistically significant superhero comics. Jack Kirby created many of the best. Some of Steve Ditko’s Spider-Man comics were brilliant.
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I was and remain a fan of the work of writer Steve Gerber. Alan Moore is important. Those are just a few of the highlights of the genre for me. But the pitiless economic realities of superhero comics mean these works often get nipped in the bud. Steve Gerber’s best works remained incomplete (and he eventually sued Marvel for rights to his creations—and lost). Jack Kirby’s Fourth World Saga for DC in the early 70s was terminated early.
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One of my favorite graphic novels is in part about this sorry history. It’s called Hicksville![]()
and it was written and drawn by Dylan Horrocks.
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I want to quote something from it. A character named Kupe is talking:
Could this exist? It’s too late for Jack Kirby or Joe Shuster or Jerry Siegel or Bob Montana or Harvey Kurtzman or many others. But I feel we’re in a golden age for comics right now, and this is largely because of creator-owned comics that exist as an alternative to the still lucrative world of corporate comics of the sort produced by Marvel and DC.
This is not to say that toiling in the world of alternative comics and drawing for independent publishers or self-publishing is a bed of roses. There are snakes in that garden, too. But in the end, if you choose an independent route, you are likely to own your own work at the very least. You may not be rich, but you’ll have the copyrights to the art and stories you create. They’re yours to do with what you will.
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Marvel and DC have mostly been dead to me since 1983, when I picked up Love and Rockets #2, written and drawn by Jaime, Gilbert and Mario Hernandez and published by a tiny publisher called Fantagraphics. Here was a truly independent work of comics art. I'm as excited by it now as I was 32 years ago when I first discovered it.
And what I’ve learned since about Marvel and DC’s history and business dealings has only confirmed my negative feelings towards them. They were once sleazy exploitative sweatshops, now they’re heartless, greedy multinational corporations.
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To hell with them.
I gave a talk yesterday at Alabama Song, an alternative art space in Houston's Third Ward. I was invited to give the talk by Gabriel Martinez, who is Alabama Songs's... Director? I don't know if he has a "job title" or anything--they play stuff pretty loose. In any case, he asked if I would talk about comics. I said sure and asked if I could talk about how evil Marvel and DC are. He assented. We had a full house (about 25 people), most of whom, I would guess, knew little or nothing about comics (hence my little potted history at the beginning). They were polite and asked lots of great questions. But I wonder if I had given the same talk at a comics convention if things would have been so polite
So I thought I'd post the talk here. All of you who are familiar with super-hero comics can tell me I'm full of shit, if you think so. Whatever your reaction, this will probably be the last time I discuss superhero comic books in this blog.
Much of what is presented below came from two sources: Men of Tomorrow: Geeks, Gangsters, and the Birth of the Comic Book
by Gerard Jones and Marvel Comics: The Untold Story
by Sean Howe. I recommend both books highly. Since it was a PowerPoint slide show, I'll put the slide image first and the text that went along with it second.
Right now is a peak moment for superheroes. The astonishing success of various superhero movies and TV shows—The Avengers, Iron Man, The Flash, Batman, etc.—has made this genre one of the biggest in entertainment and has made the corporate owners of these properties even richer than they were to begin with.
These properties are owned by corporations like Time-Warner, which owns DC Comics, and Disney, which owns Marvel Comics. But they were created by individuals—by cartoonists, the people who write and draw comics. And the biggest fear of the entertainment conglomerates is that they might have to give the creators of their source of wealth a fair shake. From the scrappy little publishers that first published these comics in the 30s and 40s to the multinational corporations of today, there is one thing they all agree on above all else: if at all possible, artists and writers should never, ever own the fruits of their own labor.
I’m going to talk about three creators of super-hero comics—perhaps the three most important creators—Joe Shuster, Jerry Siegel and Jack Kirby—and how they have been repeatedly screwed over by businessmen, even after their deaths. These three men are representative of many other comics artists, particularly of their generation (the artists who started in the field as teenagers in the 30s and 40s).
But before I get into the sad, infuriating details of the crimes against them, let me give you a bit of background about comics in general and superhero comics in particular.
Comics as a continuously-practiced artform began in 1837 in Switzerland. There were many pieces of art before then that were comics-like—they told narratives with sequential images—but all the comics you read today anywhere in the world can trace their lineage directly to Histoire de M. Vieux Bois by Rodolphe Töpffer, first published in 1837. This printed narrative has most of what we think of as comics formally today—a lot of pictures in a sequence, combined with text, that told a story and which was mass produced. And it was instantly popular all over Europe and even in the U.S. (it was translated and published here in 1842 as the Adventures of Obadiah Oldbuck). This form of humorous storytelling was rapidly adopted by other artists, who published their works in humor magazines and general interest magazines all over the world.
In 1895, one of those magazine artists, Richard Outcault, created a new comics feature, The Yellow Kid, for the New York World newspaper. At the time, newspapers were the biggest mass medium—every city had multiple daily papers, and circulation wars were fierce. Newspaper comic strips were a weapon in those wars. As soon as comic strips were introduced, they proved to be universally popular. If you were a cartoonist in the U.S., you wanted to be drawing a comic strip for newspapers. In addition to being very popular, many comic strips were superb and there have been quite a few important works of art in that genre, in my opinion. I could easily talk for hours on such newspaper comic strips, but that’s not why we’re here today.
Newspaper comics remained the best gig a cartoonist could get for most of the 20th century. And the newspaper publishers wanted to leverage the popularity of these strips, so they licensed them to toymakers, movie studios, book publishers, and magazine publishers. In 1933, Famous Funnies, a collection of old comic strips, was sold as a magazine on newsstands. It is usually considered the first comic book, and it proved to be extremely popular. Publishers began to churn them out, quickly running out of material to license from the newspapers. They started hiring artists and writers to produce original material for comic books.
If you look at this work today, it looks really crude—because it was! Essentially, the artists who worked for comic book publishers were the artists who were not good enough to get into newspapers and nicer magazines. So they tended to be either 5th rate hacks or extremely young (often teenage) artists who were “paying their dues” and getting professional experience. No one before 1938 thought of comic books as a career—they saw it at best as a stepping stone; at worst, a career dead end. But a cohort of working class Jewish New Yorkers born between 1914 and 1917 would end up creating the comic books we know today.
1938 is an important date for us. It’s when Action Comics #1, featuring Superman, was published. And Superman was the creation of writer Jerry Siegel and artist Joe Shuster. Siegel and Shuster were from Cleveland and a couple of years older than the super-creative New Yorkers who would follow them into the comics. They were true pioneers.
In 1934, Jerry Siegel and Joe Shuster graduated from high school and started selling comics pages almost right away. They sold their first work for $6 to Major Malcolm Wheeler-Nicholson’s New Fun comics magazine. They started developing Superman around this time. Initially it was to be a comic strip—they not only designed the comic strip, they designed ancillary products (cereal boxes and the like) for their pitch.
In 1937, Sheldon Mayer, a teenage editor for William Gaines, formerly of McClure Syndicate, found Superman samples in Gaines files. He liked it. He showed it to Vin Sullivan, who worked for Jack Leibowitz and Harry Donenfeld, two magazine distributors who distributed mostly “spicy” pornos but were getting into comics because they were easier to get onto newsstands that were otherwise too squeamish to carry their under-the-counter sex pulps. They called their new comics company Detective Comics, or DC, after one of their first successful titles.
To make their comic strip work as a comic book, Siegel and Shuster reworked the narrative to include Superman’s escape as an infant from the planet Krypton. They lengthened the original story and introduced Lois Lane and Superman’s alter ego, Clark Kent.
Siegel and Shuster got paid $130 for the property and signed a release assigning all rights to the publisher. (That would be a little over $2000 in today’s dollars.)
Superman appeared on the cover of Action Comics #1, cover dated June, 1938. But Superman wasn’t the only story in the comics. It was an anthology focused on adventure. Superman didn’t get the cover again until issue 7. But Donenfeld asked his sales staff to ask newsstand operators what comics were popular with the kids, and the answer came back: “The one with Superman in it.” Action Comics quickly became an all-Superman title, and a second Superman comic was soon introduced as well.
With its proven success in comics, William Gaines asked Siegel and Shuster to work it up again as a comic strip for McClure. Donenfield, as owner of the Superman property, would get 50%. Interestingly, the first paper to buy the strip was the Houston Chronicle—it’s our city’s little part in the story of Superman. As seemingly generous as that was, Siegel was worried that he was getting ripped off. He and Shuster were getting paid $10 per page for Superman comics ($172 in today’s money), and from that, they had to pay not only themselves, but their studio assistants (the letterers, inkers, assistant artists and so forth.). No matter how you slice it, they were getting ripped off. At first, they were so happy to get published, they took what they could get. This was the Depression, after all. But they realized quickly that they were producing a hit property and getting peanuts. It’s an old story.
Donenfeld, who had been in a barely legal business before and had many mob connections was suddenly getting rich off of a legitimate publication, a wholesome comic book aimed at children. He’d go to the Stork Club or El Morocco with his much younger mistress (who he had set up in a suite in the Waldorff-Astoria) and get greeted by the swells there: “Hey, Superman!”. His wife and family lived on Central Park West. In other words, Superman very quickly made Donenfeld rich—at the same time that he was paying Siegel and Shuster $10 per page. Superman was everywhere; in newspapers, in his own radio show, and in animated cartoons—the brilliant Fleischer Brothers made some of the most beautiful art-deco cartoons ever from Superman.
Just a few months after Superman first appeared, Siegel asked for a raise and got it—from $10 to $15 a page. Jack Leibowitz gave it to him, but reminded him of his place in an letter:
Don’t get the idea that everyone in New York is a ‘gyp’ and a highbinder and because you are treated as a gentleman and an equal not only by ourselves [Liebowitz and Donenfield] but by Mr. Gaines and the McClure people, that we are seeking to take advantage of you… so come off your high horse.They may not have been trying to take advantage of them, but that was in effect what they were doing. Almost all of the success Superman had went to DC. And Siegel had to beg for raises.
And here’s the deal. The contract they signed with DC promised them “a percentage of the net profits accruing from the exploitation of Superman in channels other than magazines.” It’s vague, but it’s there—Siegel and Shuster should have been getting a cut of everything right from the start.
If Siegel and Shuster had had a lawyer on their side, or a business advisor, they probably would have done better. Their youth and naiveté betrayed them, as did their working class background. When faced with slick businessmen like Donenfeld and Liebowitz, they lost every time. This is why workers of their generation joined unions, but there was no union for comic book artists and writers then, and there has never been one since.
Siegel and Shuster began to get some fame and recognition for their work, appearing on the radio and in magazine profiles. In 1940, Jerry Siegel pitched Superboy to DC. At that time, they turned down the idea. In 1941, Siegel again asked for a cut of the licensing profits, only to have Liebowitz assert that DC’s accounting “shows that we lost money and therefore you are entitled to no royalties. However, in line with our usual generous attitude towards you boys, I am enclosing a check for $500, which is in token of feeling.” There were more unfulfilled promises as time went on. But eventually DC couldn’t hide the income Superman was generating, and Siegel and Shuster started to get some royalty checks from Liebowitz and Donenfeld.
Siegel went into the army in 1943. Shuster’s eyesight was poor enough to have him declared 4F, not fit for duty. Some Superman work was farmed out to other writers, which was something Siegel had always opposed—he didn’t have any ownership rights, but as long as he was writing it, he had some control over the direction of Superman. In 1944, DC started publishing Superboy. The “Superboy” that Siegel had proposed four years earlier was mischievous, a prankster. The new Superboy was a good boy living in Smallville with Ma and Pa Kent. But still, Siegel had created the character and pitched it to DC, and now they were using Superboy without paying Siegel for it. The difference now was that Siegel had a lawyer. His lawyer, Albert Zugsmith, heard Siegel’s story and thought that Siegel might have an opportunity to get Superman back from DC.
Donenfeld and especially Jack Leibowitz were contemptuous of their artists. They paid higher page rates than most of their competition because they were on top and wanted to hire the best. But mixing with them socially was out of the question. They were freelancers, grimy little laborers—the referred to them as “the boys.” And, amazingly, they were among the best publishers out there in terms of their relationship with their talent. So however poorly Siegel and Shuster were treated, remember that there were many comics creators of very valuable characters who were treated far worse.
After a while, the editor of Superman, Mort Weisinger, told Leibowitz that Siegel and Shuster were more trouble than they were worth. Weisinger was a known liar and was once described as a “malevolent toad” by one of his assistants. He was a truly terrible person. When Siegel returned to civilian life, Weisinger started assigning scripts to him, but assigned more to other writers.
Siegel and Shuster had a 10-year deal to produce Superman that was expiring in 1948. Shuster’s eyesight was going and he desperately needed income to hire artists in his studio. The two decided they needed to create something that they owned, lock stock and barrel, since DC clearly wasn’t going to relinquish their cash cow, Superman. They created a character called Funnyman, sort of a prankster hero, but it went nowhere. Lightning doesn’t strike twice. By this time, they were getting decent pay from DC—Siegel had a house in a decent neighborhood, and Shuster was able to support a large extended family.
In 1947, Siegel and Shuster sued DC for $5 million and the reversion of the rights to Superman. In 1948, the case was decided against Siegel and Shuster—they had legally signed away their rights to Superman and were owed no damages. However, they were owed damages for Superboy. DC made them an offer—if they surrendered all claim, now and in the future, to Superman and Superboy, they would get a one-time payment of $100,000 (almost $1 million in 2015 dollars).
Now this would, after lawyers’ fees, be the equivalent of what they got paid for one year’s work for DC (from which they not only paid themselves, but all the artists and letterers who worked in their studio). And they would obviously never work for DC again, after suing them. They were no better off than they were in 1938, when they had sold Superman to DC. They would never again get royalties for ancillary income based on Superman, Superboy, Lois Lane, Lex Luthor or any of the many characters they created.
Shuster’s eyesight was too poor to continue drawing. He became a laborer working on the margins of society for many years. Siegel continued to work in comics and was even rehired by DC in the late 50s. Apparently Jack Leibowitz asked Weisinger to give his old colleague work. Siegel’s writing from this period has a high reputation, as if his struggle had given him an ability to see the tragic side of Superman. But working for Wiesinger was sheer torture.
In 1966, Siegel again challenged DC’s copyright to Superman (the first 28 year copyright term expired then, and DC had to reapply for a copyright). It failed. Siegel gradually disappeared from comics. By the early 70s, he was working for the California PUC as a clerk, for $7000 a year.
In 1967, DC Comics was purchased for $60 million to Steve Ross. Ross soon bought Warner Bros.-Seven Arts, and he folded all of his entertainment businesses together to form Warner Communications. And DC is a part of this giant multinational conglomerate to this day.
In 1978, a high-budget blockbuster film version of Superman was released starring Christopher Reeve, Margot Kidder and Gene Hackman. The news that this movie was coming spurred Siegel into action. He wrote a 10-page press release telling his side of the story—it was very tendentious and not exactly 100% truthful—and sent out 1000 copies to media outlets around the country. A few newspapers here and there wrote about Siegel and Shuster, but DC and Warners remained mum about them, hoping the interest would blow over. Then Tom Snyder, a popular late night talk show host, had Siegel on his program to tell his story. Cartoonists Jerry Robinson and Neal Adams heard this interview and decided they would become activists on behalf of Siegel and Shuster. They began a campaign to pressure Warner Communication into doing right by the pair. They mounted a successful media campaign, and Warners concluded that it needed this to go away before Superman premiered.
Warners realized the bad publicity that would result if a movie that cost millions (and eventually made millions) was rolled out while the two creators of Superman lived in sickness and poverty. So they gave Siegel and Shuster each a pension of $20,000 for life with a provision for their heirs. And now on all comics, movies and TV shows featuring Superman, there is credit given to Joe Shuster and Jerry Seigel as the creators. Shuster lived in reasonable comfort in a one-bedroom apartment for the rest of his life and died in 1992. Siegel and his wife lived in a condo in Marina del Rey, and his relationship with the new generation of DC editors and publishers (Leibowitz and Weisinger being long gone by then) was quite genial. He died in 1996.
There’s more to their story, but I want to talk about another artist before I take up the end of the Shuster and Siegel story.
One of the early superhero creators was Jake Kurtzberg. He was born in 1917 in the Lower East Side. He drew comic strips for a rock-bottom syndicate for a while where he would adopt an Irish-sounding nom de plume, Jack Kirby. By the late 30s, Kirby was working for various “sweat shops” producing comics for a variety of publishers. The sweat shops were studios where a group of cartoonists would produce to fill the insatiable demand of the many comics publishers popping up in the late 30s and 40s. They were packagers, essentially.
In 1940, Kirby teamed up with a slightly older cartoonist, Joe Simon. They were packaging work for Timely, the comics arm of a bottom rung pulp publisher run by Martin Goodman. Goodman wanted a superhero comic, and his condition was that it had to be distinct from Superman and Batman because DC was known to be litigious. Simon, who had a middle class upbringing, was a cannier negotiator than Siegel and Shuster had been. They made a deal with Martin Goodman for a new superhero, Captain America, who would have his own comic. Simon and Kirby would get 15% of the take and salaried positions with Timely as comics editor and art director.
Captain America was a big hit for Timely, so everyone was happy—until Goodman reneged on the 15% and lied about it to Simon and Kirby. Simon and Kirby left in disgust and went over to work for DC (for better pay). Goodman had to scramble to find new artists to put out Captain America, and to hire a new editor. He chose his 17-year-old nephew, Stan Lee.
In the meantime, Kirby and Simon had moderately successful comics careers throughout the 40s and well into the 50s. But in the early 50s, there was a moral panic over the content of comic books, and in 1954 an industry censorship standard, the Comics Code, was introduced. At that time, many comics publishers closed and the readership dropped, and Kirby, with a Depression era need to be working at all times, would take any work he could get. He was a workhorse and never lacked for work, but when Stan Lee called him in 1958, he added Marvel (as Timely was now called) to his list of clients, churning out 8-page stories with twist ending for Journey into Mystery, Tales of Suspense and Tales to Astonish.
Around this time, DC was having success with its new Justice League comic book, which featured a team of superheroes. Martin Goodman built his publishing career on churning out copies of whatever was successful in the market, and he commanded Lee to come up with a superhero team. Kirby drew it, but there is a question of who actually created the Fantastic Four. In 1962, they turned Journey Into Mystery into a superhero book by creating a modern day Thor to fight the baddies. From that moment, they started creating new characters—heroes and villains—at a rapid pace: the Hulk (1962), the X-Men (1963), the Avengers (1963), the Silver Surfer (1966), etc.
In 1966, Joe Simon sued Marvel for the copyright for Captain America. He had a good case. To bolster Marvel’s case, Goodman asked Kirby to testify that Timely owned it all. Why would Kirby do this? Kirby was dependent on Marvel for his income, and Goodman sweetened the deal—if Kirby would testify for Marvel, he’d pay Kirby the same settlement that Marvel ended up paying Joe Simon, whatever that may be. But when Marvel settled with Simon for $7500, they never paid Kirby.
In 1968, Lee launched a solo Silver Surfer comic using the artist John Buscema. Kirby had created the Silver Surfer 100% by himself--he had added him into a Fantastic Four storyline without input from Lee. He was angered that the character was being done by someone else. Kirby stopped creating new characters for Marvel, even though he continued to pencil many comics. He was known to tell people, “I’m not going to give them another Silver Surfer.”
Even though all his work was coming from Marvel, he was still a freelancer. He worked from home and only came into the office to deliver his artwork. Despite the “mighty Marvel bullpen” image that Lee promoted, the fact was that the work was done by freelance artists working from their home studios.
In 1968, Marvel was sold to Martin Ackerman and became a division of Curtis Publishing. The price was $15 million, some bonds from one of Ackerman’s other companies, and long term contracts for Goodman, his son Chip and Stan Lee. Kirby, who had created or co-created most of the successful Marvel characters, got nothing.
Kirby in frustration asked for a contract—no more verbal promises--and hopefully some stability. Up till now, every page he drew was as a freelancer. But the contract they sent over was so insulting that he quit on the spot. DC comics sent him a much more generous contract, and he took his work to DC.
There has long been discussion about who created all those characters: Lee, Kirby or some combination. The scripting was done in what is now known as the “Marvel method.” Lee would give his artists a plot, the artist would draw the comic in pencil, then Lee would write dialogue and captions to fit the panels drawn by the artist. Only at this point would the comic be lettered, inked and colored. What we don’t really know was how detailed the plots were from Lee. But we have an idea of what Kirby did, because he was given photocopies of his pencils by Marvel so he could keep elements of the story consistent when he started work on the subsequent issues. They show him carefully scripting out the action in the margins, which Lee would usually follow (although in doing so, he’d give the text a jazzy spin).
But before he worked with Kirby on the Fantastic Four, Lee had created nothing of note, and after Kirby left Marvel, Lee created nothing of note. Whereas before Lee even worked for Marvel, Kirby and Simon had already created Captain America and the Red Skull, and when Kirby went to DC, he created Darkseid and the evil planet Apokolips, which are now key parts of DC comics. Knowing this, I give Kirby the lion’s share of the credit for the characters and comics he worked on.
Kirby briefly returned to Marvel in the late 70s (Lee had left his editorial role by then and mostly worked in California on media licensing deals).
Now I have to talk a little bit about copyright. As we have seen, it has a lot to do with the bad relations between artists and publishers in the comics field (and in many other fields as well—music for example.) Prior to 1976, the copyright law was tilted heavily in favor toward publishers and against freelancers. You had to apply for a copyright, which was a legal process that was harder for individuals than companies, generally. And after 28 years, you had to reapply or you could lose your copyright.
The copyright law of 1976 did a bunch of good things--it defined fair use; and it aligned U.S. law more closely with the Berne Copyright Convention, which was a little friendlier to creators of copyrights than the old U.S. law. But it did a bad thing, too: it lengthened the time of copyright from 56 years to 75 years. The drafters of this law realized that they were in essence giving a free gift of ownership to people and companies who had commissioned or bought creative work between 1920 and 1976. The idea is that if you were a freelance artist, and you created a copyrighted work that you sold to a company (as opposed to retaining the copyright for yourself), you were selling them 56 years of exclusive exploitation—and the government had just unilaterally upped that to 75 years. But if you had known the copyright term was going to be 75 years when you initially sold it, you might have asked for more money.
Given this, the framers of the new law built in a copyright reversion mechanism.After the original 56 years had passed, you (or your spouse or children or grandchildren) could file for a copyright reversion, as long as the original work was not done on a “work for hire” basis. So if you wrote a song in 1950 and sold the copyright to that song to a record label, in 2006, you or your heirs could file a “notice of termination” which would give you 39 years of ownership of the original song from which you would derive all the benefits—the royalties, the licensing fees, etc.
(A footnote here—Congress in 1998 extended copyright from 75 to 99 years. It was acting at the request of the Disney corporation, which dreaded what would happen if Mickey Mouse ever fell into the public domain.)
This new copyright law spooked Marvel. It wasn’t clear whether its artist were legally “freelancers” or “work for hire” artists. Up until this point, Marvel had kept artist’s original artwork, despite the fact that artists (including Kirby) had repeatedly asked for it to be returned. So after 1976, they instituted a policy: to get your physical artwork back, you had to sign a release acknowledging that you had done it on a work-for-hire basis. Kirby willingly did so for the art he did in the late 70s for Marvel, but when he asked for his 60s artwork back, he was told it was too valuable to return.
In 1983, this policy was somewhat reversed. Marvel started going through its old artwork stores and returning art to artists—as always, making them sign retroactive work-for-hire agreements. But Kirby, when he asked for his 60s art, was consistently blown off. Finally in 1984, he was given a list of the original pages of artwork he had done for them that they still had in inventory. The list had only 88 pages of the 8000 pages he had done for Marvel in the 1960s. And in addition to the retroactive work-for-hire agreement they expected him to sign, his contract contained additional restrictions: he could not sell the artwork, he could not make copies of the artwork, he could not publicly exhibit the artwork, Marvel could have access to the artwork any time it wanted, and Marvel could modify the artwork if it needed to do so. Kirby angrily refused to sign.
These onerous demands by Marvel infuriated many younger comics artists who were currently working for Marvel, DC and other publishers. They hated to see a revered figure like Kirby treated so shabbily. Many signed a petition for the unconditional return of the artwork, but their campaign never reached the mass media the way Seigel and Shuster's did. But in 1987, Marvel finally returned about 2000 pages it had—far more than the 88 it had originally offered.
Kirby knew that many of his creations from the early 60s would become eligible for reversion in the 2010s. He knew he probably wouldn’t live that long (he died in 1994), but he instructed his wife and children to be prepared to file the reversion notice within the window provided by the law. The heirs did this in 2009, sending Marvel (and Disney, which was then in the process of buying Marvel) 45 notices of termination for various Marvel characters that Kirby created. If the work had been created under a work-for-hire agreement, a copyright couldn’t be terminated by the creator. If I hire you to create a comic book for me, that’s work for hire. But if I bring you my ideas and you decide to publish them, that’s not work for hire. You can see how there might be a lot of shades of grey between those two poles. After getting the copyright termination notices from the Kirbys, Marvel sued them, claiming that Kirby had done all this work on a work-for-hire basis and was therefore not entitled to copyright reversion.
The thing is, there were no contracts back then. This stuff—“work for hire”, “freelance”, etc., was more fluid then mainly because U.S. copyright law at the time didn’t make those bright distinctions. If you take a gig with Marvel or DC today, you can bet they make you sign a work-for-hire contract before you have put one pencil line down on the Bristol board.
So the court fight between Marvel and the Kirby heirs all centered on Kirby’s working relationship with Marvel. Was he an employee, or was he a freelancer who brought ideas into the company? And in 2011, a district court ruled against the heirs. The Kirbys appealed and the appellate court agreed with Marvel. The Kirbys then appealed to the Supreme Court. By this time, the case had gotten a lot of publicity, and a lot of people were saying that Marvel’s definitions of “employee”, “freelancer” and “work for hire” didn’t make sense. Organizations like the Writer's Guild, the Director's Guild, the Screen Actor's Guild and others filed amicus briefs on behalf of the Kirbys. These unions wanted to protect their members in case any of them ever wanted to file termination notices.
Who knows how the Supreme Court would have ruled? But Disney realized that there was a risk that the Supreme Court might overturn the appeals court ruling and not only lose them possibly billions of dollars in valuable Marvel copyrights that they owned, but endanger many other copyrights that might be lost in termination notices brought by the heirs of screenwriters, directors, actors and animators who had done freelance work for Disney over the decades.
So Disney made a deal with the Kirbys in 2014, literally just a few days before the Supreme Court was to consider putting Marvel vs. Kirby on the docket. The Kirbys apparently were happy with the undisclosed settlement, so presumably it was for a huge amount of money. And that’s really all they wanted—they weren’t about to get into the movie business or the comic book business. If they had won the copyrights, they would have turned around and licensed them right back to Marvel for lots of money. In the end, that was what they wanted, a piece of the pie—a pie that wouldn’t exist without their dad, Jack Kirby. And they got it. Jack Kirby didn’t live to see it, but he planned for it all along. So it was a victory from beyond the grave.
While this was going on, it was being reported on various online comics news sites. It was funny and somewhat dispiriting to read comments on various comics message boards in this period. So many of the armchair legal experts on the boards accused the Kirby heirs of being greedy, or suing Marvel (which they did not do), or of spoiling their little playpen. Their loyalty to Marvel the company exceeded their feelings for the artists and writers who created Marvel. It was a classic example of false consciousness. Marvel and DC encourage this kind of "company" or "brand" loyalty.
As for Siegel and Shuster, their heirs also applied for copyright reversion. The both lost their cases, but Warners made an agreement with the Siegel heirs for $3 million up front and 6% of DC’s gross participation of any future profits associated with Superman or the Spectre (another DC character created by Siegel). So the Siegels, in the end, did pretty well—but too late for Jerry Siegel, who died poor.
Shuster’s heirs weren’t so lucky. When Shuster died in 1992, his siblings asked DC to help pay for his burial (since Shuster’s pension stopped when he died). DC offered the heirs pensions similar to what they had paid Shuster for the rest of their lives, but only if they would sign an agreement acknowledging DC’s ownership of Superman and a promise not to sue for those rights. When they filed their rights reversion notice, DC whipped out this agreement and the court found against the Shusters.
These were three of the most important people in comics history, certainly THE most important in superhero comics history. And they were treated with exceptional shabbiness and venality. But this was the common story for many of these cartoonists. I could have easily made this talk about Bob Montana, who co-created Archie, or Carl Burgos, the 1940s creator of the Human Torch, or many other artists. Artists were paid piece rates, were un-unionized, had no health benefits, no pension, no rights to their own creative work, and often no rights to the physical work—the pages of art they turned in. It’s therefore never been considered a good career. David Hajdu’s book about the Comics Code, The Ten Cent Plague, features as an appendix a list of 100s of comics artists and writers who dropped out—stopped producing work in comics –in the 1950s and 60s. The message I got from this dispiriting list is that this is an industry that treats its creative talent shabbily and that cares very little about producing high-quality, artistically interesting work—so why should anyone stay if there wasn’t an overwhelming economic reason to do so?
So what’s it like for a comics freelancer today? I asked comics writer Chuck Dixon about it. He’s written many comics over the years for Marvel and DC, including various Batman comics for DC and Punisher comics for Marvel. His big claim to fame is that he co-created the popular Batman villain Bane, who was used as Batman’s antagonist in the most recent Batman movie. Because DC and Marvel have contracts now and can’t easily just steal every creative thought you have forever, artists now have various forms of equity sharing (but not, it should be said, a royalty or legal co-ownership). What that means in effect is that whenever Marvel or DC uses a character you created outside the comics medium, the creators share in some of the licensing money. Dixon told me that the licensing he got from Marvel was pretty paltry, and the licensing from movies was also really small due to the onerous contracts movie production companies have with the publishers. But that whenever Bane showed up as an action figure or in a video game, Dixon would get big checks. So even though he created the character in 1993 and hasn’t written comics for DC in a long time, he still gets paid by DC. Obviously an improvement over what Siegel, Shuster and Kirby got.
Why would DC and Marvel offer this now? Because the stories of their past exploitation of older artists are well known. If they want a Chuck Dixon or a Grant Morrison or a Michael Bendis to continue to create great new characters like Bane, they have to give them some way to profit on future use of that character. It’s not that Marvel and DC suddenly became enlightened benevolent publishers. They had no choice.
Now I’ve shown that Marvel and DC comics are built on exploitation of artists, but given that the situation seems to have improved a bit, shouldn't we cut them some slack now?
No.
Marvel comics and DC comics are designed to appeal to the broadest constituency. This means stories that are simple. It’s good vs. evil, and it’s easy to tell who is who. Problems are literally solved with the heroes’ fists. Might makes right. The bad guys are criminals—often thieves stealing valuable properties from the ruling class. Superhero comics appeal to adolescent ideas of powerlessness—they provide a fantasy outlet for the bullied boy in the basement. But post-adolescence, their value is mainly nostalgia. To me, they aren’t a useful genre for creating subtle, sophisticated works of art. They are indeed deliberately not subtle. And finally, they are products—they succeed when they enhance a corporation’s bottom line. If that means giant boobs for superheroines, because sex sells, especially to teenage boys, then that’s what you get. If it means gratuitous violence, that’s what you get. If a cartoonist creates an undeniably great work of art, but its sales aren’t high, they cancel it.
Does this mean I think all superhero comics (and movies, etc.) are bad? No, not at all. Despite the structural and economic limitations of the genre, there have been innovative, moving, artistically significant superhero comics. Jack Kirby created many of the best. Some of Steve Ditko’s Spider-Man comics were brilliant.
I was and remain a fan of the work of writer Steve Gerber. Alan Moore is important. Those are just a few of the highlights of the genre for me. But the pitiless economic realities of superhero comics mean these works often get nipped in the bud. Steve Gerber’s best works remained incomplete (and he eventually sued Marvel for rights to his creations—and lost). Jack Kirby’s Fourth World Saga for DC in the early 70s was terminated early.
One of my favorite graphic novels is in part about this sorry history. It’s called Hicksville
and it was written and drawn by Dylan Horrocks.
I want to quote something from it. A character named Kupe is talking:
The official history of comics is a history of frustration. Of unrealized potential. Of artists who never got the chance to do that magnum opus. Of stories that never got told—or else they were bowdlerized by small-minded editors. A medium locked into a ghetto and ignored by countless people who could have made it sing.Horrocks imagined a secret library of the other history of comics—the great masterpieces that were never created.
Could this exist? It’s too late for Jack Kirby or Joe Shuster or Jerry Siegel or Bob Montana or Harvey Kurtzman or many others. But I feel we’re in a golden age for comics right now, and this is largely because of creator-owned comics that exist as an alternative to the still lucrative world of corporate comics of the sort produced by Marvel and DC.
This is not to say that toiling in the world of alternative comics and drawing for independent publishers or self-publishing is a bed of roses. There are snakes in that garden, too. But in the end, if you choose an independent route, you are likely to own your own work at the very least. You may not be rich, but you’ll have the copyrights to the art and stories you create. They’re yours to do with what you will.
Marvel and DC have mostly been dead to me since 1983, when I picked up Love and Rockets #2, written and drawn by Jaime, Gilbert and Mario Hernandez and published by a tiny publisher called Fantagraphics. Here was a truly independent work of comics art. I'm as excited by it now as I was 32 years ago when I first discovered it.
And what I’ve learned since about Marvel and DC’s history and business dealings has only confirmed my negative feelings towards them. They were once sleazy exploitative sweatshops, now they’re heartless, greedy multinational corporations.
To hell with them.