On Kirby, Marvel, Copyright and Moral Claims: Scattered Thoughts

Thoughts on the copyright reclamation by the heirs of Jack Kirby, sparked by this post by Alan David Duane.

(In reading the below, remember I'm neither a lawyer nor a policymaker nor even one who has read the relevant legal documents; I'm going by a (semi-informed, but distinctly) layman's readings of the news stories about them. If that doesn't interest you, bail now.)

1)

The heirs of Jack Kirby have filed a notice of copyright reclamation in the case of superheroes he had a hand in creating for Marvel in the early 1960's, characters such as the Fantastic Four, the Hulk, and even Spiderman (who was created by Steve Ditko more than Jack Kirby).

2)

It's important to remember what's going on here. Kirby's heirs aren't suing anyone -- at least not yet. They are filing a notice of reclamation. They are able to do this because of the odd nature of our current lengthy copyright system.

Until 1976, copyrights were good for 56 years -- an automatic 28 with a single optional renewal. In 1976, Congress extended that period -- first to 75 and then later to 95 years (oversimplifying but in essence). This was not only prospective, applying to works copyrighted in 1976 and later, but retroactive, applying to old works too.

But this created an odd situation for those who had sold their copyrights prior to 1976. What they'd sold was copyright as it existed then, i.e. the 56 year term. What to do about the extensions for sold copyrights? Should they belong to the original owner (on the grounds that they only sold the existing copyright of 56 years and not any more), or should they belong to the new purchaser (on the grounds that the purchaser bought the copyright and the extension doesn't affect that)?

(Note that this is also a different legal situation than the one involving DC/Superman/Jerry Siegel's heirs.)

3)

This entire debate is distorted by a broader misconception in our culture about the relation of worth and wealth to merit and effort.

It is a strong cultural myth in our society -- an essential undergirding of one of the two major political philosophies of this country, and an almost-as-important one for the other -- that people who get rich deserved it. They worked hard, or had a good idea, and therefore they made it. Conservatives tend to (implicitly) assume this is the end of the story: if you work hard and/or are smart, you'll get rich; if you're poor, it's your own damn fault. Liberals, in contrast, recognize unfairness and randomness to a degree, so they tend to say that people can work hard and stay poor. But neither side tends to see the fact that wealth is at least a much a matter of chance and luck as it is of merit or effort.

The reason we don't like to see that, of course, is that it upends the supporting intellectual assumptions of most of our society: if the rich are simply lucky, then the enormous favor they receive is unearned and unfair.*

This is never more true than when we are talking about intellectual property.

I'm not (repeat, not) saying that artistic merit has no relation to how well a work does. But it's been extensively argued on theoretical grounds, amply seen throughout history and shown in controlled laboratory studies that merit is, at best, a necessary but not sufficient factor. Harry Potter may have been a good series of children's books -- but there are a lot of other books that are equally good (as I've had children's librarians say to me); J. K. Rowling may have been good, but she was mostly very, very lucky.

However true this is of the success of original works, how much more strongly true is it of intellectual properties** which have success in derivative works!

This distorts our discussion in numerous ways. In part it leads to people saying things like

I won't argue with anyone who tells me Herb Trimpe is unlikely to return to Marvel and create a blockbuster, breakthrough character that generates millions of dollars, no matter what sort of compensation deal is in place.

...which implies that the talent and effort of Herb Trimpe (who was the first man to draw (although he did not create) Wolverine) was a major role in Wolverine's becoming a breakthrough character. This is not because of what Herb Trimpe did or didn't do.*** It's because time and chance -- and broad social forces such as create a market for characters such as Wolverine -- and, above all, fashion are what made Wolverine worth what he's worth today.

The fight that will follow over the ownership of the Fantastic Four isn't quite like a fight over a lottery ticket; but it's far, far closer than anyone is granting in this discussion.

4)

There is a third party to every legal battle over intellectual property, one which has neither lawyers nor lobbyists on its side. Thanks to the recent intellectual growth of the copyleft movement, it has some advocates; but their position is largely based on reason and fairness and the public good, and is therefore extremely weak. But it is the most important party nonetheless.

I speak, of course, of the public.

Intellectual property -- a misnomer, really, since there is no thing to be owned -- is a government-enforced monopoly restricting freedom of speech. It restricts your ability to say what you want to say, in person or print or on film or in comics -- if what you want to say is, for example, "I was the shadow of the waxwing slain by the false azure of the windowpane; I was [REMAINDER DELETED DUE TO DMCA TAKEDOWN NOTICE]" It equally, and even more indefensibly, to your ability to tell an original story -- if that story is about, for example, Superman or Spiderman.

There are reasons for so limiting speech -- which is why the power to do so is explicitly granted in the Constitution -- but given that it is limiting very basic human rights, the power is moral only insofar as it is necessary to accomplish its stated ends. (Whether or not it is legal is a separate matter.)

5)

The moral case for creators' rights is both essential and irrelevant to the Kirby-copyright issue.

It's irrelevant because neither party has a very good moral (as opposed to legal) claim. On one side we have Kirby's biological heirs; on the other, the corporate descendents of the companies he worked for. Neither set of people had much to do with the effort or talent put into these characters; they are fighting for an inheritance, and like any fight for inheritance they are fighting for things they may have title to but don't in any moral sense particularly deserve.

But it's essential because it was only because of the (perceived) moral rights of creators that copyright was extended in the first place.

If the case before Congress had been that companies wished to extend their intellectual monopolies to make more money from them, then even that bribery-pliant group of sellouts would have a hard time justifying such a vote. So it was all talked up in terms of the struggling, lonely dreamer, hoping to turn his or her talent into a win for his or her heirs.

This was a fiction, of course -- as much of a fiction as the notion that estate taxes hit small farmers rather than wealthy businessmen, and a fiction of the same kind, i.e. a propagandistic one designed to hide the true beneficiaries of public policy. But in terms of the copyright extensions passed in the 1970's, and then again in the 1990's, and then again whenever Mickey Mouse next threatens to go out of copyright, it's an essential one. Without this fiction, the extra value that came from the copyright for years 57 - 95 of an intellectual property simply wouldn't exist -- or would, rather, be held by the public and not by anyone in particular.

This is why you can't say of copyrights what you'd say of, for example, real estate. If you sell a house in a poor neighborhood, and then it becomes trendy, and the owner therefore (through luck) becomes rich, you can't complain that you didn't know its worth when you sold it. But no one seriously doubts (pragmatically if not morally) the perpetual property rights to real estate.****

Whereas the purchasers of these monopolies, which have become valuable only due to chance (and the efforts of thousands, morally and artistically indistinguishable from similar efforts which led nowhere), have any chance of extending them at the expense of the public only by appealing to the moral claim of their creators.

Marvel wants to argue that, for the good of people like Jack Kirby, it must have the right to hold a monopoly on his creations -- against, in this case, his actual heirs. They need the appeal to Kirby's rights to win the broader public debate, and need to squash that same appeal to win the narrow legal one.

The myth that wealth is earned is necessary to make us think that the financial windfall is significantly due to Kirby's talent in the first place, and that this fight over a lottery ticket is a fight over who really deserves it -- blinding us to the real answer, no one.

7)

Artists can't threaten to withhold their next breakthrough character from big companies if they're not fairly compensated, because they have almost no say in whether they can create one. They put their effort and talent into what they make; but what makes it valuable is fashion, and the efforts of others, and luck, and a host of other factors.

Companies have extended copyright based on a myth of the individual creator -- who they are trying to screw over at every other moment so as to make money for themselves.

Of course artists should be fairly compensated for their work -- and there is, as I have said, a very strong pragmatic argument for copyright, one I don't disagree with (assuming that said copyright is, as provided by the U.S. constitution, "for limited terms"). But the vast wealth at stake here is irrelevant to that right, since it is all-but-irrelevant to that success.

And of course companies should be able to get funding to make (say) movies, and then profit from those endeavors. But they want more than that; they want to maintain a public monopoly on the ability to tell stories about certain characters who, for whatever reason, have caught the public's imagination, so that not only can they make and profit from stories about their characters, but so that they can ensure that theirs are the only stories about those characters that are there to be told.

8)

Since I'm not a lawyer or policymaker, but simply a citizen with opinions on public policy, I can say that I support neither Kirby's heirs nor DC/Marvel. I think that, 56 years after their creation, all works should be in the public domain. The supreme court, alas, disagrees -- which seems to mean little more than their unwillingness to open the can of worms of recognizing that our current Congressional system is so poisoned by legalized bribery that no judgments of Congress (or the President, or really the Courts) can be understood as representing the public interest save incidentally. They said it was Congress's call to make -- which would have been a reasonable argument if Congress wasn't bought and paid for by the stakeholders on one side of this particular issue.

But the Congress was bought and paid for, and the Court was unwilling to enforce the rights of the public. So what we are left with is a debate over who should get to steal from the public the winnings of a lottery.

9)

To anyone not convinced by all of the above:

I have one more argument for my position. It's a knock-down, irrefutable, overwhelming argument, such that if you heard it you could not even begin to imagine disagreeing with me. It would, in fact, revolutionize your thinking on every aspect of this issue.

But since this set of concepts can, as it happens, only be expressed in metaphorical terms as an X-Men story, I'm not legally allowed to share it with you until the X-Men go into the public domain.

Until then, you'll just have to trust me.

Update: Now cross-posted at Alas, a blog. Thanks, Amp!

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* Incidentally, the consequence of this argument isn't necessarily a socialist economy, which I wouldn't actually favor; there are extremely strong pragmatic grounds for favoring the retention of a capitalist system and, as part of that, a robust set of property rights. It's just that such a system should be supplemented by a far stronger redistributory state (in a tax-for-social-goods-sense) than is true of the U.S. today; and also (and this is almost as important) that the public culture and debate should recognize the preponderance of luck in the outcomes of economic lives.

** What a vile phrase.

*** Although in fact I think that Wolverine's blockbuster status has far more to do with Chris Claremont, and to a slightly lesser extent Frank Miller, than it does Herb Trimpe or Wolverine's creators -- although Claremont and Miller have even less legal claim than do Wolverine's originators.

**** Except the bible, of course, which wanted everything reset to zero every fifty years to ensure justice (Leviticus 25:13). What socialist commie pinko wrote that, eh?