Today is Father’s Day, a day we never celebrated in our family because my parents both thought it was a commercial construct and not a legitimate holiday. I have to thank them yet again for raising me without creating these unnecessary situations that so many people find filled with angst, with anger, and with a laundry list of unhappy memories.
I loved my father, and I knew my father loved me. He was openly affectionate, although not a big hugger and kisser. On the spectrum of standard American paternal behavior in the 1950s and 1960s, he was considerably more demonstrative than most. He also was a fairly typical heavy European father, and I had plenty of school friends with similar fathers. They were strict, they expected obedience, and they weren’t afraid to enforce it. They wanted us girls to do well in school and learn our manners and above all, be modest, chaste maidens that a likely young man would find suitable for marriage. That’s an old-fashioned standard, but that’s how those fathers, mine included, thought.
Having this kind of father could be frustrating. Daddy believed that girls should have long hair. My hair as a girl was very thick, and quite curly. In those pre-air conditioning times, my hair was a nuisance on hot days when we kids were playing outdoors (which was always, because our mothers threw us outside to play so we wouldn’t mess up their clean houses). My father would not allow me to get my hair cut in a short cut. He only allowed his cousin, among other things a trained barber, to hack off some of the ends once in a while. By third grade, I’d had enough of this, and when my elementary school made some kind of connection with a certain hairdresser, I begged my mother to take me to him and let him cut my hair. We did it. My father was so enraged that he sent me away from the dinner table in the dining room, and I was forced to eat in the cold, uninviting den, far from the family. He also threatened not to let me go to a birthday party that evening–a big deal to a nine-year-old. Rather an extreme reaction, considering the shocking new haircut was still quite conservative. Boy, was it comfortable. My father eventually adjusted.
But Daddy did not back down when it came to wearing makeup. He wouldn’t let me. Why not? Because he’d actually visited Prince Matchabelli’s cosmetics laboratory many years before. And what my father saw was that lipstick contained bleach. He said if I used lipstick it would take away the natural color of my lips. I thought this was Daddy hooey. I did not want to hear it. But I had to obey his dictum. About forty years later, cosmetics companies did finally reveal the chemicals in their products. And lo and behold, lipsticks contained bleach. Daddy was right. I’ve never worn lipstick, nor particularly missed it after those first few rebellious yearnings to be like the other girls. His logic made too much sense to me, so I didn’t even sneak it on while out and about, or while away from home at college. It was not my original choice to go the natural look route, but the times favored it, too.
So, he won some and I won some, and that’s how it went with numerous battles during my childhood. It was humbling as a young adult to discover over and over that he had been right about this or that. But it was too late to tell him, because he died when I was twenty-one and still in college.
I hope my father had the same wisdom I have gained since then, to realize that within our families we often do our best and give our best, but are not honored for doing so at the time. We make decisions our children rebel against. We hand out solid advice that our children laugh at, as we laughed at our parents’ well-meaning efforts. In negotiating adult life, I have experienced many instances of realizing that parents forgive us anyway, and in advance. Which is yet another reason to be thankful that my father did not demand a test of love each year in June on Father’s Day. Our family life was not all roses, and I don’t know how many of those Father’s Days would have been happy events. I’m guessing none. But I still love you, Daddy, and I know you loved me, and that’s what counts.
It’s not a smartphone, so it must be a dumbphone, right?
But look at all the charming little bits and pieces, each of them rather smart, that make up a conventional landline phone:
Inside this phone is an entire factory. It could be Gary, Indiana, in its heyday (but without the smokestacks). Mysterious shapes connect to other mysterious shapes. Not mysterious to you if you have some background in electronics, but definitely mysterious to me with my degree in English Literature. That’s okay. Because I don’t know what all these cute little things are, I can pretend they are far more interesting than perhaps is the reality. To me, they appear efficient, but that’s because I can’t recognize which ones are dead.
Alas, this phone suffered hard use. I banged on it with the receiver after hours of frustrating phone calls trying to get the auto club to rescue a motorist stranded in subzero weather. The phone never fully recovered from such ill-usage. Eventually, after a series of power outages that additionally outraged its systems, the phone silently declined to make or receive further calls. Mea culpa? Probably.
I’ll be recycling these pieces shortly. Perhaps some day I’ll try to learn what the guts of this phone are and do, or what I could have done to fix it, but it seems unlikely since landline phone technology is basically obsolete. This phone does not play video games. It doesn’t do e-mail. It can’t show me a weather map. On the other hand, it does not tell a spy where I am unless I plug it into a phone outlet and put in some batteries. And it does look purposeful. A tiny manufacturing plant all by itself, connecting me to the world along wires buried in the ground and then strung high in the air. How amazing.
When I was in charge of rights and permissions at DC Comics, in the 1980s, we tracked down any infringements we became aware of, and told the infringers in no uncertain terms (often as a letter directly from our lawyers) to cease and desist. This meant telling people to stop using the distinctive (and trademarked) Superman symbol. This meant telling people to stop using the distinctive (and trademarked) Superman telescopic logo lettering. Of course it meant telling them to stop using his image.
The guy who put Superman on his wedding invitations thought we were poor sports, and did not understand that he was violating copyright and trademark by swiping a specific Superman image and republishing it himself (or paying a catalog company to do it for him). He was infringing on DC Comics’ right to exploit the Superman image in wedding invitations. This might seem trivial, but it’s not. When Hallmark recently obtained a license to market Green Lantern greeting cards priced at $7.99 each, it surely paid for the exclusive right to do so, not to have competition from anybody with access to a copier and some card stock. Licensing of comics characters has had a long and lucrative history. DC Comics naturally had to protect its right to control its copyrighted and trademarked images.
The guy who spent thousands to have Superman painted on his tour bus was even more upset that DC Comics was unwilling to let someone else make money off the Superman character. He didn’t realize that the painter was ripping DC Comics off. He probably didn’t care, either, but my duty was to inform him (and our law department) that an infringement had occurred.
The recent case Scott Edelman cited [ed. note: he’s my husband] of artist Sharon Moody creating works of art by copying entire comic books spread open and creating a trompe l’oeil effect on an otherwise blank canvas has several infringement implications. I’m not a lawyer, but I was trained by one at DC Comics, and here’s what I see as the potential legal problems inherent in her utterly faithful copies of the original publications:
1. The commercial use of a significant amount of any publication, rather than a panel excerpt or up to about fifty words of text, is not fair use. It requires permission by the copyright holder, and such permission usually carries a fee based on the profit involved in the re-use. If one of Sharon Moody’s paintings of a Batman comic page sells for $50,000, she would be expected to pay DC Comics a very hefty chunk of that sale price. Such a deal would have to be negotiated before she copied and sold the material; otherwise, the rights owner could sue her to obtain all her proceeds.
2. The reproduction of any published printed copyrighted material requires a copyright notice. Although there are many instances on the Internet of people grabbing a panel here or there, or a figure, to illustrate a website article or a blog post, or even entire pages to amuse friends on Facebook, these are properly accompanied by a copyright notice. They only escape a cease and desist letter because they are not commercial use and/or they are too small and random to come to the attention of and infringe on the rights owners’ commercial rights. Sharon Moody’s artwork is on display for sale to the public in an uptown Manhattan gallery, which makes it commercial, and potentially neither small nor random, depending on the prices realized for each of her copied canvases.
3. Sharon Moody’s exact copies of published comic books can be construed both as plagiarism and as muddying a trademark. (There’s a technical legal term for the latter and I’ve forgotten it. Sorry.) In a court case, the comic book companies could make a compelling argument that she is aware the general public will mistake the pages she has copied for her own original work rather than copies of previously existing work. Their argument would be that she is passing off someone else’s work as her own. The evidence would be that she does not credit any of the original creators of the physical artwork or the words, or the copyright holders.
Most infringements are “mistakes,” that is, they are perpetrated by ignorant people who do not know anything about copyrights or trademarks. Characters such as Superman or Batman have been popular for so long they have entered the zeitgeist and therefore many people imagine they in some way belong to all of us. Perhaps they do, morally or culturally. However, both the copyrights and the trademarks of comic book characters have been the subjects of extended lawsuits for decades now. It would be hard to claim ignorance of their vast commercial value. Anyone trying to cash in on such commercial value without license runs the risk of being sued.
There’s another side to infringement enforcement, and that is what might be called plausible denial. When I did rights and permissions for DC Comics, we routinely looked for potential infringements, but we knew we probably missed some. As long as we could show a court that we vigorously defended the copyrights and trademarks every time we found an infringement, we could keep our legal right to them. Ignoring blatant commercial infringements is the road to losing those rights, which is a commercial catastrophe. Sharon Moody can call this art, but especially if big money is involved, it’s commerce.
Some comic book artists have helped support themselves in their old age by re-drawing comic book pages they were hired to originally create as works for hire for the companies in years past. Usually, the companies look the other way instead of pursuing these elderly artists for this kind of commercial use, presumably because it doesn’t involve enough money to be worth the lawsuits, and it would result in bad press. In fact, Disney did pursue the artist Carl Barks for making such copies, but backed away from the bad publicity the move generated. Bob Kane, known for his involvement in the creation of Batman, also used to sell paintings of Batman, without being sued. Thus Sharon Moody’s lawyers would have a potential rebuttal, that an artistic, single use has a pattern of being tolerated by the rights owners.
So, is Sharon Moody an infringer? By the standards I was taught while employed at DC Comics, yes, but it’s for a court of law to decide. The comic book companies may choose to ignore her. I don’t think any company bothered to sue Roy Lichtenstein for his many blatant copies of individual comic book panels in the early 1960s. Then again, he didn’t swipe entire pages, use photographic accuracy, or copy famous superhero character images and their trademarks. He wasn’t in any way threatening their licensing value. There wasn’t a Captain America movie then, or a Batman movie franchise. Less was at stake.
I’ve discovered another reason why I like to watch television shows about hoarders. It’s not what you think, not schadenfreude. To my surprise, it’s not what I thought either. The fascinating insight I’ve just gained is how close my own feelings are to those of hoarders.
I have reached the stage of life (or one might say the age in life) where I have inherited many family heirlooms. These are not necessarily valuable, though they could be. Regardless, they don’t add up to a life-changing fortune. Thus, rather than hire an auction house to run an estate sale, and myself decamp to an island paradise to await a fortune, I have to go through these pieces one by one and determine if they have a place in my future life, or, alternatively, in the lives of future generations in my family. Not much of those future generations exist as yet, so I’d have to be a sibyl to guess exactly right. Nevertheless, every person who has been landed with family treasures has to make these same decisions. Hoarders don’t. They just keep everything.
For a while I thought our family was lucky because we did not have to hurriedly clear out and dispose of a home. I’ve known friends who had a mere week or two to do it all. In our case, we had plenty of time because the family home was not being sold. Turns out that makes the proper disposition of family possessions more difficult rather than less. Family members have grown attached to pieces that have been in the home for decades, yet without ever having made the decision to own them. Now what?
When there are only a few possessions left from a person, each one is imbued with substantial emotional heft. When there are many possessions, you would think that the sentiment attached to them is milder. No, it’s not. If anything, it becomes greater because the perception is that the loved one cherished these items so much s/he could not bear to part with them even though s/he did not actively use them. Confusing that assumption is the reality that until very recently, disposing of family valuables at anything like a fair price for their value and directly to a person who would truly care about the item was not easy. It was difficult for a person who had only one antique doll to find the doll market and deal effectively in it or even to find someone else who wanted to own an antique doll. So the person kept the doll, whether it was wanted anymore or not. Then you inherit the doll and don’t know if it was dearly loved or just something still waiting to go away. The advent of online selling has changed that situation. It’s relatively simple to determine the fair market value of a piece, and only a little more complicated to sell it for a fair price directly to someone who will appreciate it. An excellent book giving many step-by-step details about how to deal with the possessions in an estate is Sell Keep, or Toss, by Harry L. Rinker. But one book isn’t going to solve the emotional issues behind the disposal tasks.
Considerations of value and appreciation are not the issue for me, I realize at last. After all, I am not throwing anything out. Everything is getting recycled to a good and appropriate home. The problem is, each piece gone is more physical proof that my loved one is dead. It is painful for me to part with them, because unless I find a piece incredibly ugly or completely useless, I think I ought to keep it. In fact I want to keep it, as another talisman. This is a completely irrational feeling, but many of us feel this way. I suddenly understand those hoarders on television who have every possession of a dead parent stuffed into their houses. People are lucky who have to make quick decisions about possessions, disposing of them ruthlessly and putting a family house up for sale in a hurry before returning to another state and a job from which they could only take a short leave. They don’t have time to wallow in the hurt of it all, and they certainly don’t have the luxury of wallowing in the pain object by object. They do feel bereft, of course. But the quick, sharp cut heals better, I think, than the repeated jabs of a dull knife.
Has my insight about hoarders helped me deal with the inevitable necessity of parting with some family possessions? I believe so. Objects are merely objects. We imbue them with personal meaning. We also can choose to disassociate from such personal meaning. I have to admit, though, that letting go of the possessions of a beloved dead relative is painful. Yet they can’t take it with them, and neither can we. Sooner or later, even hoarders have to loosen their iron grip on their possessions. My grip isn’t that tight, but I’m surprised at how close my feelings are to theirs.
Some immigrants to America expect American culture to bend and change for them. Others embrace American culture, even if there are elements in it they may not like. If they do not, they tend to remain secreted away in ethnic enclaves where they don’t have to speak or write English or acknowledge American social ways. Of course their children adapt and become distant from them, and their grandchildren do not even understand what the old grandmother or grandfather is saying in that strange foreign tongue. There always are cultural interchanges in both directions, and I don’t just mean ethnic restaurants. Even so, some immigrants do not fully become Americans.
I’ve been going through some of my father’s oldest papers, from the late 1930s and early 1940s, when he was employed by the WPA, the Works Progress Administration, one of President Franklin D. Roosevelt’s New Deal “put people back to work” programs. My father’s role for the WPA was to do a historical survey of Russian and other Eastern Orthodox churches in America. His technical title was “translator.” Why? Because most of the church records had been written in Russian, Greek, Armenian, Georgian, or other languages he could read. He could talk in those languages directly to the priests, many of whom did not speak English well, or at all.
Unlike the many priests he contacted in his research, my father wrote all his notes in English. Why would Michael S. Vartanoff do that, when Russian would have been his most familiar language, the easiest one in which to take notes from a Russian church record? He had only lived in this country for fifteen years by then. Why did he bother to write his notes in English? Because he wanted to master English and fully become an American.
Mixed in among my father’s notes of names of priests and names of churches and addresses to visit and descriptions of church hierarchies are what might at first seem like doodles. On one page, he wrote “1917” over and over. A key year for someone whose entire life was changed by the Russian Revolution. But why was he writing it? To decide which style of number seven to use, with a serif, a line through it, or slanted. Numbers may be the same in the two alphabets, but treatment of them varies. Other pages show him writing his name over and over. Again, why? He was practicing how to write his name in English cursive.
By contrast, I can’t read or write Russian cursive, despite two lazy years of college Russian. Learning the Russian alphabet, the Cryillic alphabet, is not terribly difficult. Employing it on an everyday basis, when one’s native alphabet is different, is work. I never pushed myself to learn the cursive. My father pushed himself constantly to perfect his command of English. I found page after page of quotations copied down and then copied again and again. These were in English cursive. I found pages where he was practicing the shapes of English letters. Again and again, he practiced his name. Don’t we all do that as children, practice our signatures? Imagine having to learn to sign one’s name all over again in a totally different alphabet. My father was undaunted. He made the effort.
By the time I was growing up, my father’s command of English was so perfect that it was only when I took Russian in college that I found he had one grammatical fault to his English. Just one, and itself a minor one about the use of indefinite articles. Of course once I pointed it out, he never made that error again. Not that my father shook off all aspects of being a man of international background. His perspective on the world was global, not insular. How could it be otherwise when his youth was spent halfway around the world in a completely different culture, terrain, and political structure?
Another aspect of my father’s efforts to aculturize himself to America were his scrapbooks of newspaper and magazine articles. Although at the time there were many New York newspapers available in foreign languages, he read and saved articles published in English. He saved an occasional article in Russian, but the majority of his clippings were from English language newspapers. He wrote comments on the articles in English. He familiarized himself with our politics, our culture, our literature. He never lost interest in the fate of the Russian empire in which he grew up, but he read about world events in English, the language of his new country.
I have learned from going through my father’s papers that people who immigrate and want to integrate into a new culture work at it. They don’t stop working at it as years go by, settling for a small vocabulary and a poor command of grammar. They don’t take the easy way out and only talk to people who speak their native language; they also make friends with Americans who speak English. And they don’t expect others to learn their native language. They learn English as a second language, or a third or a fourth, as in my father’s case. They cross the cultural divide. I am in awe of my father’s persistence, his attention to detail, his ambition to achieve mastery in American English. Perhaps he had a leg up, because he’d had a good education in his native country. Or perhaps he had a signal lack, because he came here alone, with no family. Many immigrants with family members perhaps don’t feel a need to connect intimately to their new country. I think they’re missing out. They’re going to be the old grandparent whose words of wisdom nobody can understand.
What is curious is how many immigrants have the exceptional drive and daring to leave their homelands and come here for a better life, but how few of them push beyond the fringes of our society to become Americans. In reading my father’s papers, I now see the difference between immigrants who want to become Americans and who work at it, and those who don’t. The daily struggle to earn a living is irrelevant, by the way; my father lived through the Great Depression and had the same problems others did. Despite that, he still made himself an American, working hard at it long after he’d become a naturalized citizen.
“Not your father’s Oldsmobile” was an ad campaign that was supposed to help make Oldsmobiles attractive to a younger crowd. Instead, it merely insulted the people who usually bought Oldsmobiles, and that was the kiss of death. Such a line stings when you realize you’re the father in the ad, not the sexy young kid.
The alienation of current comic book fans is not as important to DC Comics as is grabbing a new young audience with their massive reboot of their line. DC assumes that the older fans will resume their habit after a period of pouting. The only big unanswered question about such a marketing plan is: if current fans actually do desert comics en masse, can the smaller numbers in younger generations sustain the business as well as the huge numbers of baby boomers have? A smaller question is: are younger potential readers likely to be loyal to a company that shifts sands under their feet?
Looking at the life expectancy stats for male baby boomers still alive, they have maybe another twenty years. Some won’t make it that far and will die in their late sixties, the typical life expectancy for their birth year. DC Comics is going after a different audience with a longer life span ahead of it because otherwise its business will die with its baby boom readers. We don’t have to like it, but we are an older generation and the market does not venerate age, only buying power.
Of course many American companies make a mistake in not catering to middle-aged or older people who actually have very substantial buying power. Who today is buying all the classic comics and original art for many thousands of dollars? Too bad DC couldn’t think of a way to capture more of their financial resources.
The big mistake I see in this reboot, as I’ve said before, is in not trying to grab for 100% more market by attracting a female audience. Those new female readers would do a lot to make up for the smaller numbers in younger generations.
Comic books as a medium may be feeling its age. A radical shake-up is one of the many efforts a company makes to stay in business once it has a mature product. The American business model is always bigger and better—or bust. Dime novels and pulp magazines, once thriving businesses, are gone. Perhaps comic books can successfully migrate to iPad-style devices and find a secure new audience that will allow the medium to flourish. Otherwise, when the baby boom dies off, so will comics.
Along with this reboot come new costumes, new storylines, and more. The issue there lies in trying to do an end run around Superman’s legal creators by changing his iconic look. Supergirl does not have an iconic costume, and on the world stage of entertainment, she rates nowhere. Once Superman loses his iconic appearance, he can be tossed into the entertainment ashcan of history quite easily because there will be no generations of nostalgia associated with his modern incarnation. “Off with the old” does not automatically guarantee “on with the new.”
We’ll see. Opera is still limping along hundreds of years after its heyday, although most audience members in this country have gray or white hair. Perhaps comics, closing in on one hundred years themselves, can squeak through despite this hostile new direction. It won’t be the same, and that is the point. The new DC Comics: not your father’s comic books.
MaryJanice Davidson writes goofy blather that contains thoughts smart geeky people have about the world, which is fun, and awesome nuggets of truth, which is sobering. She wraps these pearls in silly romantic stories of vampires, werewolves, and other paranormal creatures. She got her start in publishing with an ebook called Undead and Unwed, which was autobiographical except that she is not the queen of the vampires herself, nor did she personally wed a vampire, nor has she killed anyone lately. Everything else was obviously about her.
It didn’t take long for a “real” publisher to find her and offer her a “real” publishing contract and so she has been writing
much better books the same goofy blather and getting nice advances and huge distribution and review copies and lots of invites to do fun seminars at romance writing conventions even though, really, she is at heart a comic book fan and Star Wars fan, and all the rest, and therefore, she’s supposed to exist on the techie fringes of society in some hermetically sealed cubicle and only meet actual humans at science fiction conventions. Instead, she buys expensive designer shoes because publishing has been very, very good to her, and is encouraged to reminisce about basically losing the Worst Job Ever because she wrote her novels while at work because she could complete her stupid girl typing assignments with one hand tied around her back and had to manufacture something else to “look busy.” So she wrote a novel.
But I am not writing this to talk about how you can also write geeky nonsense (interspersed with a lot of very frank sex talk) about vampires during work and lose your job but get a huge publishing contract and become the most popular girl (or boy) in your local science fiction club. For one thing, you might just lose your job, period, and be living in your car. For another, none of the sf writers will respect you for writing about love and sex, so skip it or resign yourself to being an outcast at their parties. Third (might as well count), MaryJanice, who is in fact a lovely person I had the pleasure of listening to at an intime seminar a few years ago, gets plenty of ink on her own and does not need me, a well-known comics fan from the ancien regime of comics fans, to promote her books.
However, after about three hundred of her geeky asides amused me in Wolf at the Door, I encountered one that struck me between the eyes:
“I knew I’d be the pathetic roomie who forces connections when you’re not roommates anymore. The guy who never, ever lets you off his Xmas list and who, when he’s in town to visit, insists on lunch and pretends you’re still really close.”
Oh, dear. Oh, dear oh dear oh dear. That was me. I kept in touch with my ex-roommate through her transferring to another college (in France!), moving to St. Louis, moving to Boston, marrying a complete jerk, having three children, becoming a doctor, and more. My last contact with her was a phone call 26 years ago, but I still keep her address around in case I want to make the effort to get back in touch with her. She has not called or written during most of the aforementioned period so it would be easy to assume and correct too that she is completely uninterested in hearing from me again in this life.
Don’t you just hate discovering you are pathetic? Oh, sure, I was raised to be very traditional about sending cards, writing thank you notes, and more. Since I like to write, I kept up such traditions, self-righteously claiming I was upholding standards of politeness. Still pathetic. The truth is, my poor ex-roommate had a lot to tolerate in her freshman roommate, but tolerate me she did. It has taken me a long time to acknowledge that she might not have been totally charmed by my eighteen-year-old, defensive-as-hell, nerdy, geeky, socially awkward, underachieving self who nevertheless thought she was hot stuff because she’d become a minor celebrity as a comic book fan in the minor world that was comic book fandom. Within ten years of meeting me, she became a doctor. What did I do? Flounder around as a would-be writer and then go work for a comic book company. Who takes that seriously? We didn’t even take ourselves seriously back then. I hear that people who work in comics today actually think they have real jobs. No, no. We knew we were in the sandbox, and we loved it. Immaturity reigned.
So why should my former roommate ever want to hear from me again? We spent a short time living in the same room, and then went our separate ways. We each had, and hopefully continue to have, a rich experience of life. She is a doctor, so I can always find her. I have a website and a unique name, so she can always find me. Hasn’t happened. It took MaryJane’s throwaway aside during a particularly ridiculous speech by a completely ridiculous yet endearing character to reveal to me how ridiculous I have been about insisting on trying to keep in touch with people who clearly do not give a damn if they ever hear from me or about me again in their lives. No, really? Yes, really.
Thank you MaryJane. Your book was worth the price of admission. Actually, I read a freebie review copy and so now I’ll go to hell because I am not a reviewer or even the reviewer to whom it was sent, I just sleep in the same bed with him and so MaryJanice is going to lose income because I didn’t buy her book and what’s more I read it in an imperfect stage, a galley, and am commenting on what may not be the final version and therefore that leads me to ask, why send it out unfinished to strangers in the first place, but thank you thank you thank you, MJ. I will throw out my ex-roommate doctor’s address this very minute and never think of her again, which I know will be a relief to her.
I could go on like this, but to make a fortune doing so, I would have to put a plot around it and that’s just too much work on a Sunday morning, which is why MJ is getting rich and I am simply laughing in front of a computer screen. I apologize to every single person I ever sent an unwanted greeting card, letter, or e-mail to but I do have better manners than you do and I want you to know it.
Once again, the big corporation has crushed the little guy. I don’t think we should be proud of laws that allow corporations to live forever, but don’t force them to give ownership rights to the creative talents that are the source of their profits.
When I worked in comics, in the 1970s, there were no contracts between creative people and the corporations. Eventually, a rubber stamp on the back of the Marvel freelance check claimed it was work for hire. We all ignored the stamp and endorsed above it. In law, your signature ends the legal document. Anything below can be considered a later addition to which you did not agree.
However, the truth is, it was work for hire and everyone knew it. But that was implicit, not explicit. Therefore, arguable in law. No editor I sold a story to at DC told me “Now, you understand this story you have come up with entirely on your own is work for hire as a contribution to a collective work owned by someone else.” That’s just not how business was conducted then. There were a few people who were important enough to have contracts or were rumored to have same. I am not sure exactly what kind of deal Bob Kane had for Batman that kept his signature on comics he never even drew, but it was the foundation of great material success for Kane outside of comics. Wikipedia even says his fame was such he’d sell paintings he didn’t even paint. Go figure.
The Kirby case is more complex because Kirby had been an owner himself in the 1940s, and knew more about ownership rights than the average creator. In his later years, as I understand it he did sign some contracts, both with Marvel and DC. I don’t know the details of his particular case but obviously it had some merit or it wouldn’t have gotten this far in the court system. Kirby may have had an expectation of ownership.
I’m not a judge, but I don’t think that Kirby (and his heirs) has a legal right to the characters as the law now stands. I do think he has a moral right to them, and if the corporation to which he contributed is allowed to live forever on the profits of his creativity, then why shouldn’t Kirby’s heirs also live forever on them? But that is not how our laws currently are written.
We could change work for hire laws. There’s no real reason that the corporate copyright on Spider-Man shouldn’t run out, the way patents on vastly profitable drugs do. There’s no valid reason that every creative worker can’t share in the profits of every creative endeavor, except accounting laziness. Companies would rather not pay royalties. They also would rather not figure out what monies are owed to whom and then cut the checks. But in this lovely computer age, how difficult, really, would it be to keep track of who did what? At law firms attorneys have to account for every 15 minutes of their time so the time can be billed to specific clients. Other companies now do the same. Expand this exponentially through computer powers, and royalties or other ownership payments would be easy to orchestrate.
Our definition of what a corporation is or should be needs revision in law. Cheating creative people is just the wrong way to run the world. Contrary to what some cynical people will say, this is not how the world has always been run. Some of America’s greatest fortunes actually were founded via employees who made a significant contribution being cut in on ownership benefits. Some of the world’s greatest fortunes were founded on informal “profit sharing” by royal patrons, i.e., gifts as tokens of appreciation for services rendered. For that matter, some of my own ancestors were made rich by that very method. Our corporations are not set up to share the wealth except through giving profits to stockholders (which many companies actually do not do). That’s a mistake that is hurting our society in many, many ways, especially now, when they also seem to have forgotten any sense of community or moral responsibility.
Bottom line, I am glad the Kirby heirs are pushing for the recognition that a lasting contribution to a corporate entity should result in a lasting payout. They may not win on appeal, but getting this wretched system exposed to the light of public opinion may move us closer to enacting laws that divide up the spoils of creativity along fairer lines, as exist in other branches of creative work such as patented inventions, novels, and songwriting.
This festering situation should also be a dire warning to other creators tempted to take a pittance for work for hire instead of negotiating to be treated as a partner. Creative input is unique and valuable and should not be sold off cheaply to an immortal entity. It’s the same as selling your soul to the devil, and just as bad a deal.