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Wait, What? Ep. 51.1: You and Me and USM

Jeff Lester


My hope is the days of iTunes drama is behind us and Wait, What? Ep. 51.1 has already begun a safe and steady trek to your listening device of choice, but if not and it leaves you hanging (as it did some of us for the better part of the week with our last episode), please feel free to listen to it here. It’s got everything you could want in a comics podcast: Graeme McMillan! Miles Morales! Jack Kirby! Nick Spencer! Alan Moore! The library! (Oh, and also me and Marvel and Secret Avengers and legal wrangling as wrangled by two individuals utterly untrained in the art of said wrangling…):

Wait, What? Ep. 51.1: You and Me and USM

Pull up a chair and hunker down–the second installment should be around before you know it!  (Hopefully, on iTunes as it is under heaven…) Thanks for listening!

24 Responses to “ Wait, What? Ep. 51.1: You and Me and USM ”

  1. As far as I know, Ultimate Jessica Drew last appeared in the Ultimate Enemy trilogy. Her resolution had her hired by Carol Danvers to be an agent of SHIELD. That opens her up to potentially be used by Hickman in The Ultimates, along with Ben Grimm and/or Sue Storm since Ben is a test pilot for the military and Sue Storm was last engaged to be married to Ben.

  2. Sorry, I’ve been commenting as I listen, but I think that DC is quietly cutting out the Siegel and Shuster heirs by claiming that the “New 52” has to do with increasing sales and not cutting out S&S. They’re just masking it with a company-wide reboot.

  3. iTunes is indeed better- downloaded and listened to it last night- another great show! You moved away from the bleakness of you last show, where you made me question my fond recall of X-Men stories like Mutant Massacre and Fall of the Mutants, which I also now want to go back and read. First Capt. Britain and now this– you make me question my nostalgia!

    (I did take advantage of comics at B&N to read that Secret Avengers you disliked so much, and while I thought it was another basic cross-over/fill-in issue, I didn’t think it was so notably bad.)

    Oh, and I have no problem buying Marvel books based on Kirby’s books. But you’ll need to read on to see why (bwahaha)

    But there is something I HAD to comment on, your copyright discussion. I do know copyright law pretty well, though I don’t qualify as an expert (yet):
    Basically, one of the rights guaranteed to you when you hold a copyright is the right to authorize derivative works. In practice this usually means making a book into a movie, or a sequel to the book. The new work is separately copyrightable, but the original owner still holds the underlying right in the original work.
    In the case of Superman, as it stands right now (the case isn’t done with appeals and so on) the heirs to Siegel (the Shuster case was filed later) have the rights to Action #1, and whatever was created in the issue (which is quite a lot, actually.) This includes that right to derivative works, which in this case means everything that followed. DC is apparently arguing that the modern Superman is NOT derivative, and thus a separate copyrightable character that they own outright.
    To me, this is an idiotic argument; if the character has the “S” shield and is called Superman, then it is derivative of the work in Action #1 (I think Trexler’s conclusion was similar.)
    So when you say that the DCnU Superman is derivative you are correct! But not when you imply that it gives DC rights to do what they want;. The Siegel heirs hold (as it stands now) 1/2 of the copyright to said derivative works featuring the Superman character. The changes now don’t make that any less so, and as you commented, the Morrison version is actually even more like the original. To argue some kind of “restart” is still derivative (remember: “S” shield & name.)
    Ok, this is getting long (as legal talking always does, I fear) so in an effort to trick people into reading more, I’ll end it here and continue with Kirby (and two slight Superman digressions in another post.)

  4. Ok, two slight digressions and on to Kirby! (which is shorter, I swear.)
    Slight digression #1: The Siegels themselves already closed the door on derivative characters. they argues, separately, that Superboy was NOT derivative of Superman, and that Jerry Siegel was the sole creator. Initially they won this argument, but it was later reversed. If Superboy isn’t derivative, then Superman, in all his incarnations, isn’t either.
    Slight digression #2: When I said that DC owns 1/2 the Action #1 copyright, I meant “for now” Remember that the Shusters also filed a case, and if both succeed, DC has NO copyright as of 2013 (which plays hell for the movie, no?) The cases that the heirs of both families filed is for reversion of a copyright sold to another (after a period of several decades.) This right was added to the Copyright law when it was revised in 1976, for the exact purpose seen in the Superman case, that the character later became a big moneymaker.

    Kirby: First, the Kirby case is one under the previous revision of Copyright law, from 1909 (which had to right to file for a return of copyright later.) The issue is one of who actually OWNS the copyright in Kirby’s work. In the case of Superman, Siegel & Shuster brought Action #1 TO Dc, so they owned the copyright & sold it.
    In Kirby’s case, it looks like an open & shut case (which is more or less what the court said): Kirby signed a contract to create things for Marvel(this is your “for-made-for-hire” concept) so Marvel ALWAYS owned the copyright; there is no basis for a reversion as in the Superman case.

    While I haven’t read all the dispositions in the Kirby case, what Jeff said IS potentially interesting. What Graeme said is true: a future promise is not a right and/or a contract. But an present promise MIGHT be, as some form of oral revision of Kirby’s contract(say, for a share of marketing.) I’m not as sharp on contract law, but this is certainly possible, but a real bitch to prove, especially so much later.
    Add to that the point that it would STILL have to be on the order of “Jack you own these characters” to change the copyright ownership and I think the legal case is done and unwinnable. Too much time has passed and lets face it, no corporation would make that deal, even orally, Don’t forget that Kirby at this point was no green kid, ala Siegel & Shuster, but had decades in the industry. He knew what he was signing.

    That doesn’t change Bissette’s MORAL argument one bit, however, so it’s all where you can comfortably draw the line. European copyright law does give an author moral rights, to see that his character is not mis-used. I dislike this, and it is against the grain of the American, “enter a deal fairly and its done” attitude.
    As far as I’m concerned, Kirby knew what he was doing when he signed the contract. That the corporation he contracted with stuck it to him later is not surprising; rather, it’s in its nature. So I’m not too morally bothered when I read Kirby’s legacy; rather, I’m happy that these stories are in the world at all. I think Kirby would like that sentiment.

    WOW! I can type lots!

    One final though, on last week: Amy Winehouse’s death was tragic, in a truly Shakespearean way; I was sad for the loss even as I wasn’t surprised. What happened in Norway is pure horror: it’s not just tragic but not even fully understandable. By it’s very nature its harder to grasp, especially on an emotional level.

  5. “In Kirby’s case, it looks like an open & shut case (which is more or less what the court said): Kirby signed a contract to create things for Marvel(this is your “for-made-for-hire” concept) so Marvel ALWAYS owned the copyright”

    Except he didn’t sign such a contract prior to the work being done (not one that Marvel can produce), the only contracts they have are signed years later.

    Look at it this way. Suppose Kirby had come up with the character design for Thor, brought it to Lee, and Lee said “nice try, not what we’re looking for”. Who owns that design? Marvel’s argument seems to be that the work Kirby did was work-for-hire (despite the fact that he was not an employee), so they owned that design from the second Kirby drew it (and Lee’s dubious claim is that he’d have paid Kirby for it even as he was rejecting it. Anyone really believe that?). The Kirby argument is that Marvel didn’t own it until Lee agreed to buy it. After Marvel rejected it, he could have stuck it in his files, and years later added the design to the batch of characters that he drew years later that became the New Gods (which were also drawn when he had the same freelance arrangement with Marvel, and Kirby apparently considered doing at Marvel if he could get a better deal, though I don’t know whether he actually showed anyone at Marvel the actual drawings or just confirmed that no better deal was forthcoming).

    Now, one particular judge has accepted Marvel’s view (backed by some dubious statements from Lee, who is contractually forbidden from aiding anyone in a copyright claim against Marvel, and very well paid for that service), but I think it’s definitely not an open-and-shut case.

  6. “Except he didn’t sign such a contract prior to the work being done (not one that Marvel can produce), the only contracts they have are signed years later.”

    I find it impossible to believe that Kirby or anyone at Marvel was at all confused or unclear about the work-for-hire nature of their relationship. The idea that Kirby, who was around to hear first- or secondhand every single story about how Siegel and Shuster were screwed out of Superman, was somehow ignorant of the accepted work-for-hire rules of the comic industry is just too much.

    It’s possible some legal technicality could come into play, but it still wouldn’t change the reality of the understanding between Kirby and Marvel.


  7. -I don’t know if I buy Jeff’s point that Miles Morales has to be as Spider-Manny as can be because he’s the first black guy under the mask. Comics are way past the point where every non-white character has to be flawless. The fans (or non-fans who got loud, whatever whatever) may complain, but Marvel especially is far past those days.

    -Does Batwoman count as not concentrating on the sensationalism? Her debut was terrible, and I feel like Rucka/JHW3’s comic was just… okay? Pretty art, yes, but in service is a standard story. It didn’t knock my socks off.

    -Word is that Aunt May and Gwen Stacy are going to be assisting/guiding Miles in his new career. It sets up this sorta interesting dynamic between the three, I think. MJ has been noticeably absent from the Bendis interviews I’ve read, which is also interesting.

    -Most of the troubling stuff in Hero for Hire came from Steve Englehart, ugh. The Jo Duffy/Busiek/etc stuff was actually pretty solid, with the rare dip into fake dialect.

    -Nick Spencer is terrible. That Abe Lincoln Secret Avengers issue was atrocious, this sort of sub-Superman-era Jeph Loeb. He’s on the new Cloak & Dagger miniseries for Spider-Island, which looks dire: http://www.comicbookresources.com/?page=preview&id=9422

  8. That’s fine. I think the evidence is that at the time, whenever Jack Kirby designed a character he understood he had the option to offer it to his current freelance client (Marvel) for a page rate and (what turned out to be false) promises of future participation in profits, or he could save it for future use or offer it to someone else, and that was what was generally understood in comics at the time.

    For example, some years later Dave Cockrum was working at DC, designed some characters for use in the Legion of Super-Heroes. Some were used, some weren’t. Later at Marvel he adapted some of those unused designs for characters in X-Men. And later still, I’m not sure if any of the Futurians were directly based on those designs or it just looks like that because of Cockrum’s stylistic tics, but I have no question that any of those designs not bought by Marvel or DC he still owned and could publish himself or sell to someone else.

  9. RE: Spiderman

    They did a Chinese Spiderman in Ultimates. They cloned Spiderman and he was raised in a test tube and is slightly crazy. I believe he was turned into a vampire and killed. The Chinese Spiderman comes out of these tests, where Tony Stark’s evil brother gives powers to protestors who are distabling governments around the world. Chinese Spiderman was leading a protest presumably in Tiannamen Square.

  10. I get what you Jeff was saying about Miles and I think he’s right about where they’re going to go with it, but he’s so entirely wrong about Sisko! I mean, this was the guy who actually blamed Picard for killing his wife, when Picard was of course a Borg at the time! (Yeah he got over that by the end of the pilot, but still). If anything, they were a bit too successful at giving TNG diehards reasons to dislike Sisko (aside from, well, the obvious). Of course they didn’t want to make him an asshole or a scumbag (and I doubt they ever would have, even had the role been cast with a white man) but he was never the cool patrician that Picard was, or the womanizing cowboy that Kirk was.

    I won’t argue that they did take a few years to decide who he actually was, although I still love the character from those early years, regardless.

  11. “I find it impossible to believe that Kirby or anyone at Marvel was at all confused or unclear about the work-for-hire nature of their relationship.”

    If you think there’s nothing confusing or unclear about the 1909 Copyright Act, it’s because you’ve never dealt with the 1909 Copyright Act. Everything about it was a goddamn headache.

  12. I think DC and Marvel are such a large percentage of the average comics fan’s pull list that they might as well be quitting comics to drop them. I know that when I first started reading comics at 11 they were almost all I was aware of.

    Today I find myself in a funny position where it’s almost impossible to boycott because, as Jeff mentions in the podcast, I’m just already burnt out enough that there almost isn’t a visible difference. With the sole exception of Batman, Inc., the only DC and Marvel comics I buy are creator-owned ones from Vertigo and Icon. Maybe those are morally suspect too, but I haven’t decided how I feel entirely.

    The older comics reprints I buy are much more suspect, especially since they are largely sold on the names of the same talent who were so poorly treated by the publishers. Might be time to reevaluate those. It’s unfortunate that a tiny handful of poorly behaved companies own such a staggering percentage of American comics history.

    Morrison’s “Action Comics” is the place where I am voting with my money. If it weren’t for the way Warners and DC are treating the Siegels, I would be all over that, as I generally read anything Morrison and thought, before Action Comics #900 thanking me for my “support” in the midst of the lawsuit with the Siegels (and sure, that’s not what they meant, but it was carelessly worded and made me think of it) brought it all to mind, that it was the best superhero comic of the ’00s. This will be the first Morrison comic I skip since I first started reading him and, honestly, I expected better from such an ethical guy as he seems to be. Skipping out on Marvel is easier, since they have made me feel gross for years now and I don’t bother with their superhero books.

    In prose publishing, you own your books by default. In Hollywood you don’t, but the payout is much better than in comics. Comics began as an industry that essentially stole from talent, got better between the 70s and the 90s, and in this current era of deeper corporate integration, seems to be going backwards. On my better days, I consider giving up on the big companies altogether.

  13. Thanks for the usual high quality mouthwork, Messrs Lester and McMillan! Inter-library loans, Mr Jeff Lester! Now there’s a crazy notion! Ah, you’re a funny onion so you are, sir.

    Oh well, off I go…I think the only way I would be convinced that Jack Kirby would be happy I could read his stories without any form of acknowledgment or token recompense being paid to him/his estate/his heirs would be if it was decided in a court of Law. Ideally the verdict would rest wholly on the testimony of a man paid by the people denying Jack Kirby both acknowledgement and recompense to expressly state that Jack Kirby, absent from the proceedings due to death, would be okay with that lack of acknowledgment or recompense. I imagine the verdict would be that Jack Kirby would be cock-a-hoop and, I guess, that would be okay with me. It being all legal and such.

    Alas, lacking the ability to speak with the dead I can never know what Jack Kirby would think about all this. I think I could have a good guess (I’m guessing he would be very far from cock-a-hoop. That’s my guess.) but it would be conjecture and thus (Objection, M’lud!) inadmissible. As for Jack Kirby deserving everything he got (and deserving not getting everything he didn’t get) knowing full well what was happening to him (he ran his own studio, he knew how it worked, he wasn’t stupid , companies do that so that’s okay, etc.) I don’t think things are ever that clear cut. He, allegedly (objection!), had repeated verbal assurances (objection!) that he would be “looked after” (objection!)from both Martin Goodman and Stan Lee.

    No matter how many times he had seen his colleagues bent over while the company men took their turns on them I imagine (objection!) he had the very human reaction of, against all the evidence, thinking it would be different for him. But..already I’m miring myself in speculation, narrative fantasies, loaded language, emotional assumptions and no closer to, perhaps even farther from, the truth than anyone. So, no, I can’t claim to know what Jack Kirby went through, believed or would have thought. However, I think I do know what Marvel have done. And I certainly know what I think. I think it stinks.

    Hey, I’m a simple man and this is a complex issue and I was pretty lost until (Tom Spurgeon, I think) pointed out the fact that DC credit and recompense Jack Kirby/his Estate/heirs. DC Comics of all people. DC Comics! D!C! Comics!

    Sure, it’s a complex issue so to help me to deal with it I formulated it like this:

    DC do it. Why can’t Marvel?

    Riddle me that, Jack fans.

  14. “Comics began as an industry that essentially stole from talent, got better between the 70s and the 90s, and in this current era of deeper corporate integration, seems to be going backwards.”

    I would imagine that contracts have never been tighter or more directly enforceable. How is this a backslide? Got “better” is such a nebulous way of looking at it…

    Additionally, rule of law society tends to be built on examples of “bad things” happening and people adjusting to see that it doesn’t happen again. There are inevitably bones in the grist mill of all major advances. It just so happens that these are our “cherished elder figures of comics.” Stole? No, they were paid. The going rate then was what it was. Comics as they were being operated were a frontier industry. But when money was put in the creators hands they took it.

    The suggestion that Siegel and Shuster were “just a couple of wide-eyed kids” is kind of horseshit too since none of us know what it was like to be in your mid twenties back then but I’d wager it was a far more mature and stressful period of time than it tends to be for your average 24 year old in 2011 with the Twitter and endless dithering.

    How about we waste a tear for the engineer that developed seat belts (George Cayley)? No, fuck that guy! But, then again, Cayley didn’t create a beloved childhood figure that developed in unnumbered millions a lifelong sense of doing the right thing and punching people. No sir, that poor schlub became the true father of modern aerodynamics and worked his whole life to better our understanding of flight and scientific development. By casually thinking “some safety measures should be implemented here” he SAVED MILLIONS OF LIVES. But Oh, Jerry, and Joe and all their children and children’s children should have wealth fall all over them till time ends?

    Forgive me for falling into histrionics there but come on guys. Scratch the surface a little bit and it’s silly that we’re even talking about this. The suit as I can barely comprehend it only even applies to moneys made after 1999 off the property! Why after 1999? Well, after getting paid to write the thing for TEN YEARS at a contracted price they settled their grievance case originally in 1946 for 94K. Today that’s 1.1 million. Then they got a 20k a year pension. Then that wasn’t enough. Come…..On. As a guy who gets up every day at 2 in the morning to make donuts for people and run my own business it’s hard to drum up much sympathy for a couple guys who had a good idea in the 40’s.

    On the, “What you should actually have done” side of the scale you’ve got Charles Schulz. Schulz signed a 5 year deal to do a strip and United Features kept him on for 50 years. Cut him in to all the major deals with percentages (major percentages) and did all this in the late 40’s early 1950’s. Of course, they made him call it Peanuts which he hated and had to look at every single day for the rest of his life but hey, small price to pay.

    Some people make the right deals and some don’t but trying to wrangle a fifty year fortune developed independently of your specific work after being awarded and accepting several settlement offers smacks of hubris and entitlement. To me, I find myself more and more feeling that the word “Heirs” is a dirty one.

    Kirby, I don’t know. I love the guy so much as a creator and a person of note I just can’t separate myself from the whole situation. Kirby is a guy who stuck it out and worked and created new things and stayed in the game. If it comes down to some kind of sympathy vote he’s got it in spades.

    In the past, present and undoubtedly future greatness will be starved in gutters and only after death be realized. Kirby, and to IMO a much lesser extent Siegel and Shuster created things of lasting beauty that will be acknowledged forever as THE benchmarks in the world of comics and beyond.

    Some things stand apart.

  15. Yeah, fuck George Cayley! How can anyone complain about him not getting his due when Sacco and Vanzetti were executed for crimes they didn’t commit!

    No, wait, fuck those anarchist bastards! Not until there’s justice for the native americans whose land was stolen from them!

    In other words, Holy non-sequiturs, Batman.

  16. I agree with Jeff on the point that it doesn’t really matter how the new Spider-man is pushed, as long as the result is the result it is.

    It’s not super classy of Marvel to go and use skin color as a selling point. It can come off as a story ploy with ill intentions. There are all kinds of ways to be cynical about it. The important part is though that there is a multi-racial Spider-man now out there for people to read. Whatever the intent, the result seems right.

    As for the point that this new Spider-man will sound just like the old, remember, the character’s only been in one comic thus far. It takes time to develop a character. You guys know that. So, as Jeff says, maybe Bendis warms the audience up by keeping a familiar voice, but after a few issues and a little time I’m sure Miles Morales will become his own.

    Dug the episode, guys. Interesting conversation.

  17. As I mentioned it the “non-sequitur” took up all of four sentences. Sorry if that was too big a digression but I did it simply to illustrate a point about forgotten creators and have a laugh simultaneously about who did more for the idea of man flying.

    Cayley’s contribution to science is more often remembered for being CRITICAL to actually flying (identifying necessary forces acting on fixed wing aircraft) and preceding powered flight by 50 years.

    Siegel and Shuster pretended a man could fly and then sold that idea to a publisher…and then bitched about it and made the equivalent of a million dollars…and then bitched about it some more and made more money…and so on.

    Were Cayley or his heirs awarded a slice of the Wright Brothers? Pan Am? Southwest? I merely used it to point out that sometimes you get the bull and sometimes you get the horns. Sometimes you don’t get to put a dollar sign on it or quantify it definitively because of ongoing changes. Respectfully, not a non sequitur because I’m not trying to prove anything as to whether they created a piece of work.

    I am stating that in many cases originators are not always given full credit or ownership due to choices they themselves have made that altered the logical flow of events.

    I begged forgiveness for the histrionics, BobH! What more can I do??? Haha.

  18. @J_Smitty:Do you just get up at 2am to make doughnuts for people anyway or is that part of running your own business? If it’s the former you may be in line for a special award for awesome, if it’s the latter it’s still pretty awesome.

    Have you read Rick Veitch’s MAXIMORTAL? It’s a pretty great book and has some S&S stuff in it. I thank you for bringing George Cayley to my attention!

    @BobH: Didn’t Rick Geary just release a book about Sacco and Vanzetti? I think he may have. My LCS thanks you for reminding me! Morricone did a (as usual) cracking soundtrack for a film about them too. Haven’t seen the film, though.

    @Alec Berry: I have thought about this and I think I agree with you and Mr. Jeff about the result of the USM thing outweighing the exploitative promotion. I still won’t be buying it though.

  19. John K(UK), yeah, Geary’s new THE LIVES OF SACCO AND VANZETTI was the book I just finished reading when making that comment, so the first thing that popped to mind when thinking about non-comics injustices. Very entertaining book. I need to catch up on his earlier Murder books. I keeping hoping NBM will release a bigger TREASURY OF TREASURY OF VICTORIAN MURDER.

  20. If you’re taking questions for future editions–


    This alternate cover of Fear Itself #5– please explain.

    Also: almost all of the dialogue in Fear Itself #5– please explain.

  21. Having finally got around to listening to this podcast: Jeff suggests that there was a deal with Lee for Kirby to be paid higher royalties, which Marvel subsequently reneged on. It strikes me that there are some very good reasons why the estate can’t run that argument.

    If that was the deal then it means they DID agree that Marvel were to own the work – and the estate’s position on work for hire would be blown out of the water.

    Kirby’s remedy (on that hypothesis) would presumably have been to sue Marvel for unpaid royalties due under the contract. But any such claim was probably compromised by one of the later contracts (quite aside from any timebar issues).

    One other point that I think is worth bearing in mind here: how do we know that Marvel hasn’t already made a reasonable offer? Are we simply assuming that any reasonable offer would have been accepted? I don’t see why. There’s a lot of room for argument about the numbers, and if the estate is serious about their claim to Spider-Man then a settlement will be very hard to reach no matter how reasonable the current management of Marvel might be. (Or are we all fine with the idea that Kirby deserves the credit for Spider-Man and Ditko can go hang?)

  22. “One other point that I think is worth bearing in mind here: how do we know that Marvel hasn’t already made a reasonable offer? Are we simply assuming that any reasonable offer would have been accepted? I don’t see why.”

    I could elaborate on this point for a million years.

  23. “If that [an unfulfilled promise for higher royalties] was the deal then it means they DID agree that Marvel were to own the work – and the estate’s position on work for hire would be blown out of the water.”

    I’m not sure that follows. A deal for royalties isn’t inconsistent with either a wfh or non-wfh situation. And the Kirby estate case was that Marvel did own the work back then and do own the work right now. And will continue until 56 years are up.

    And it’s perfectly possible that Marvel did make a “reasonable offer”, but I tend to doubt it, because, well, they’re Marvel. Even worse, they’re Disney. I suspect if there had been a concrete offer it would have been included in the legal filings (but possibly that’s something the attorneys for one side or the other would request be sealed?). I can say that I’ve seen some of the offers DC made (separately) to the Siegel estate and Shuster estate, and those didn’t strike me as near “reasonable” for something of the value of Superman.

  24. Have either of you ever read IRON MAN 43, 1971? An adventure in a fake hell. George Tuska’s finest hour.

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