TWO WRONGS MAKE A PROPERTY RIGHT

"I created SPIDER-MAN."-- Jack Kirby, COMICS JOURNAL interview, Feb 1990.

As I noted in this essay, Jack Kirby was certainly not the originator of any form of Spider-Man. At best, he inherited a small bundle of ideas put together by his partner Joe Simon and two freelancers Simon had employed: Jack Oleck and C.C. Beck. This proposal-idea was called "the Silver Spider" in its submission phase, though to emphasize its actual creators I'll call it SOB (Simon/Oleck/Beck) for short.

I won't revisit the same points I made in the previous essay, but after ruminating about some of the discussions of the Kirby family's current litigation against Marvel, I thought it ironic that their claim on Spider-Man is based in the notion of "intellectual property."

That is, because Kirby worked on the character when he and Simon rejiggered it into Archie's THE FLY, and because Kirby submitted a bare concept of the character to Stan Lee, Kirby's transmission of the idea of a spider-powered hero gives his estate claim to the "intellectual property" of Spider-Man.

But Kirby based his idea on the SOB concept. Does that mean that Simon and the two late freelancers also participate in the intellectual property that is Spider-Man?

One presumes that lawyers could be found to argue such a case, but such dubious legality isn't my concern.

What I find ironic is that when Kirby brought the rough Spider-Man concept to Stan Lee, he was in effect nullifying any "intellectual property" rights that the three SOB authors had to the concept, in that he claimed it as his own. Had Lee chosen to let Kirby do the SPIDER-MAN concept-- which as Greg Theakston once argued would probably have turned out a lot like THE FLY-- Kirby would have even further nullified the intellectual property claims of SOB.

Of course, back in that day and age, few people working in comic books worried about "intellectual property." The companies might have occasionally persecuted competitors, as with DC's suit against Fawcett, for copyright violations. But for those working in the trenches, ideas were common ground shared by all. One artist might resent another for "swiping" an idea, particularly if said idea made more money for Artist 2 than it did for Artist 1. But nobody owned the ideas as such.

I'd say that by the act of Kirby presenting the SOB bundle to Stan Lee as if it was Kirby's own "intellectual property" to sell, he was in essence ratifying the treatment he received by Marvel, in which even the intellectual properties to which Kirby undoubtedly created were entirely co-opted by Marvel Comics.

Like many others who've commented on the Kirby/Marvel suit, I doubt that the Kirby family will be able to get more from Marvel than "go-away money." But I'd feel a lot better about supporting them if they weren't laying claim to a property that Jack Kirby essentially "swiped" from other artists. It may have been a "swipe" given an approving nod by Joe Simon, as some fans have claimed. But IMO it vititates the rightness of the greater case, by further ratifying earlier wrongs.