The Avengers

Marvel Comics’ Troubling Origins Story

Why I’m boycotting The Avengers.

The author as a young comic book enthusiast

Growing up in the 1970s and early ’80s, I obsessively read and collected Marvel comics. I knew each hero’s origin story, rogue’s gallery, and costume details. I took pride in my knowledge of minor superheroes like Stingray, Jack of Hearts, and the Paladin, characters who didn’t have their own comics but who bounced around in the pages of more established titles. If they ever got their own comic book, I’d be able to say I knew them when.

As I grew up and my tastes in comics matured I lost interest in superheroes, but over the last decade, superhero movies have become a guilty pleasure. Although I thoroughly enjoyed Sky High and The Incredibles (arguably the best superhero movie ever made), I didn’t have the same connection with these heroes as I did with the Marvel characters of my childhood. But when the first X-Men movie was released in 2000 I got to have it all: a well-made superhero movie with characters that I knew intimately. I felt like I was 10 years old again. I had the same experience when Spider-Man came out two years later. It was like reconnecting with your best friend from third grade for a few hours. Even though both of us have changed—and frankly we might not be friends if we met for the first time today—we understand something fundamental about one another.

When I heard there was going to be a movie this summer based on The Avengers, one of Marvel’s most popular superhero teams (Thor! Iron Man! The Hulk! Captain America!), I was pretty psyched. And I wasn’t alone. With Joss Whedon of Buffy the Vampire Slayer fame directing and a slew of A-list stars (Robert Downey Jr., Scarlett Johansson, Samuel Jackson, etc.), the buzz surrounding the movie has been off the charts since day one.* When The Avengers trailer was posted in October, it was downloaded over 10 million times in the first 24 hours.

I planned on seeing the movie the first week it opened. My daughters (ages 9 and 11) love the animated X-Men: Evolution cartoon series; The Avengers would be one movie we could all get excited about. Afterward, my girls would humor me as I’d explain to them that in the comic book, Hawkeye and Black Widow weren’t original Avengers and that Black Widow used to date Hercules (in the pages of The Champions). Then we’d go get ice cream.

Unfortunately this quaint summer idyll will not come to pass. I have decided to boycott The Avengers.

The history of comics is littered with defunct publishing houses. From putting together a decent product to finding distribution to keeping pace with current fads, so much can go wrong. But if a character hit a public nerve, fortunes could be made. DC Comics thrived thanks to Superman and Batman while operations like Dynamic Publications and Standard Comics folded. Without Jack Kirby, Marvel Comics may have folded as well.

The company, first known as Timley and then Atlas and finally Marvel, followed a business strategy throughout the 1940s and 1950s of publishing whatever genre of comic was most popular at that moment. Before superheroes began dominating the market in the 1950s, they sold no better than funny animals, lovelorn teens, horror stories, and monsters. The editor that ran the company during this time was Stan Lee. He’d been hired at the age of 19 by the publisher Martin Goodman, who was married to Lee’s cousin.

In 1961, Justice League of America (featuring Batman, Superman, and Wonder Woman) was selling exceptionally well for DC, and Marvel decided it was time for another try with superheroes. Like many publishers, they had created a stable of heroes to fight the Nazis, but when the war ended reader interest in superheroes had waned. Lee turned to Jack Kirby, who was already working with him on various monster comics, and together they created The Fantastic Four (Mr. Fantastic! The Human Torch! The Invisible Girl! The Thing!). A Justice League get-together had the sterile feel of a Rotary club meeting, but the Fantastic Four was an actual family, and as in many families, there were deep-seated resentments and lots of screaming—the violent outbursts weren’t just reserved for the bad guys. Superhero comics would never be the same.

From that point forward, Kirby and Lee went on a cartooning bender that not only secured the future of Marvel but would profoundly influence popular culture. Within the next few years Kirby and Lee introduced The X-Men, The Incredible Hulk, Captain America, Thor, and The Avengers. There is disagreement as to the specifics of each man’s contributions, and their process of creating the books, later called the “Marvel Method,” makes it even harder to ascertain who has the right to be regarded as any given comic’s “author.”

At other comic-book companies like DC, a writer would type out a full script and hand it over to a “penciler” to draw. The artist was more of a director, trying to come up with dynamic shots while shoehorning all the writer’s text onto the page.

At Marvel, Lee would give his collaborator a brief story synopsis (or come up with one in conjunction with the artist) who would then draw the comic before a script was written. Comics is a visual medium, and telling the story first in pictures gave the work a fluidity that was lacking in other comics. After the comic was drawn, Lee would then add lively dialogue that would further shape the story and define the characters.

All that said, there is no doubt that Kirby’s artwork and ideas were essential to Marvel’s success, so much so that his style of drawing immediately became the house style, and Marvel came to be known as “the house that Jack built.”

Kirby himself earned the moniker “the King of Comics,” and for good reason. His style was completely original. His characters flew across the page with fierce purpose and yet total abandon, fighting their hearts out against a backdrop of crazy machinery and abstract depictions of elemental energy. Though lacking in finesse, the drawings possessed a brute force that made the reader feel a pulse-pounding urgency that other cartoonists could not elicit. Every panel propelled the story forward at warp speed. Other cartoonists’ work hit you with a water pistol; Kirby’s slammed you with a fire hose.

Even more remarkably, Kirby made you care for his outlandish characters. They seemed genuinely broken, brooding, driven, and noble. Reading certain issues of The Fantastic Four when I was 6 was as an intense of an emotional journey as watching The Wizard of Oz. I dreamed of someday working for Marvel and in 2003, I actually got to write a four-issue Fantastic Four miniseries. In tribute to Kirby, I even incorporated some of his actual panels into my story. At the time I had little reservation about working for Marvel. Since then, things have changed.

Writing in Origins of Marvel Comics, Lee discussed how cartoonists were compensated in the early days: “[T]here were no royalty payments at the end of the road ... no residuals ... no copyright ownership. You wrote your pages, got your check, and that was that.” Lee says his first scripts paid him 50 cents a page and that “[i]t wasn’t much different for the artists. Their rate of pay was somewhat higher than the writers but it took them longer to complete a page, so things seemed to even up.”

But things didn’t ever even up between Lee and Kirby. Over the years Lee, the face of the company, has been paid millions for his contributions. Kirby, on the other hand, was treated like a hired hand. Starting in 1976, Marvel refused to return artwork to artists until they signed a one-page statement that recognized Marvel as "the exclusive worldwide owner of all copyright."

Only Kirby was sent a more aggressive four-page document to sign. Thousands of pages of art would not be returned unless Kirby agreed he “shall never contest or dispute, or assist others in contesting or disputing, Marvel’s complete, exclusive, complete and unrestricted ownership of the copyright in the Artwork or Marvel’s exclusive, complete and unrestricted worldwide right to exploit the Artwork in any manner or media, and the Artist shall never claim any right inconsistent therewith.”

If Kirby signed on the dotted line, his returned artwork would be considered a “gift.” But some gift: He would not be allowed to publicly display or even sell the work. Kirby never signed the four-page document, though years later he did sign a shorter agreement whose details were not made public. Between 1960 and 1970 Kirby drew approximately 8,000 pages for Marvel. Only about 1,900 pages were returned to him.

Kirby described Marvel in a 1986 interview with The Comics Journal, “[T]hey’re grabbers. They’ll grab a copyright, they’ll grab a drawing, they’ll grab a script. They’re grabbers—that’s their policy. They can be as dignified as they like. ... They can act like businessmen. But to me, they’re acting like thugs."

When Disney bought Marvel for $4 billion in 2009, the Kirby family, not surprisingly, was shut out from this massive windfall. A lawsuit followed. It wasn’t the first time Marvel was sued by a creator looking for a piece of the action, usually after a movie deal was announced. In the early 1980s Steve Gerber reached a settlement over his claim of ownership of Howard the Duck; more recently the courts decided that Gary Friedrich has no legal rights to his brainchild, Ghost Rider.

Kirby’s heirs hired attorney Marc Toberoff, who is also representing the heirs of Jerry Siegel and Joe Shuster in their ongoing battle to reclaim the rights to Superman from DC/Warner. Last July, a federal judge sided with Marvel/Disney stating that all of Kirby’s work for Marvel was created as work-for-hire under the Copyright Act of 1909 and cannot be reclaimed.

I’m no legal scholar, so second-guessing federal judge Colleen McMahon is beyond me. But I know that Jack Kirby got a raw deal. McMahon herself noted the distinction between ethics and law in her decision, “This case is not about whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruits of their labor. It is about whether Kirby’s work qualifies as work-for-hire. ...”

What makes this situation especially hard to stomach is that Marvel’s media empire was built on the backs of characters whose defining trait as superheroes is the willingness to fight for what is right. It takes a lot of corporate moxie to put Thor and Captain America on the big screen and have them battle for honor and justice when behind the scenes the parent company acts like a cold-blooded supervillain. As Stan Lee famously wrote, “With great power comes great responsibility.”

If Mitt Romney is right, and corporations are people, perhaps Marvel/Disney has the capacity to feel shame. In any event, a public flogging has already begun. Cartoonist and educator Stephen Bissette’s blog post calling for a boycott of The Avengers kicked up a lot of dust in the blogosphere. Tom Spurgeon, writing for his well-respected industry website Comic Reporter also framed the issue in moral terms, as did the cartoonist Seth: “The corporate lie about Kirby’s role in the creation of all those characters is abhorrent. It’s a bold faced lie. Everyone knows it’s a lie. No one is fooled. Everyone lying for the company should be ashamed. Stan Lee should be ashamed. What the Marvel corporation is doing might be legal but it certainly isn’t right.”

A boycott of The Avengers and other Marvel movies could conceivably strike a blow in the only place that truly hurts a corporation: its bottom line. But I don’t have high hopes of this happening. I think most people feel that if you look at how any company makes its sausages, you are going to find some pretty nasty stuff. And few people will feel strongly enough about Kirby’s treatment to keep them from seeing one of the summer’s biggest blockbusters. Even a lot of die-hard comics fans will probably feel that boycotters are doing little more than raining on their parade.

If I really wanted to spoil Marvel’s party, I’d take a page out of a comic book and exact revenge on the company in one fell swoop. All I would have to do is jump into a time machine, travel back 51 years, and transport Jack Kirby to an alternate dimension. Without Kirby, Marvel would cease to exist.