Marvel Litigation: Joe Simon & Captain America

An Ongoing Series Looking At Who Claimed What

If there’s one aspect of the comic book industry that will always fascinate me, it’s the never ending debate as to who created what character. People can, and do, sit for hours, days, weeks and even years on end arguing over who created what. Some of the claims are spurious, some are genuine. However, short of being in the room when the actual events happened, nobody really knows who did create what character - those of us who study and write about these events look for first hand accounts. Failing that. an informed study of the characters, their tropes and history of creators will have to suffice.

And then there’s the litigants. Over the years a handful of creatives and their families have filed suit against Marvel and DC for the rights to characters, with the most famous being the decades long lawsuit against DC brought forth by Jerry Siegel and his family, at times aided by Joe Shuster and now his family.

This series will look at the characters, and comic books, that the creatives and/or their families have tried to wrestle away from the companies. I’m not going to go into the relative merits of the cases - that’s been done to death (including by myself. Have a peek through the archives here if you want to read about Siegel v DC, Kirby v Marvel, Friedrich v Marvel, Simon v Kirby etc. etc.). All I’m going to do is inform you as to what the creators laid claim to and when. In almost all cases, the outcome was the same - the companies won.

Those with the deepest pockets generally do.

Marvel have taken the most hits. The first came in October 1966 when Joe Simon filed against Marvel for the rights to Captain America. Marvel had Jack Kirby give an affidavit with his recollections of how Captain America was created.

This affidavit was at odds with what Simon recalled. Kirby remembered the process as being a collaboration between himself and Simon. Simon remembered it as being a sole process by himself, with Kirby brought in at the end to draw the issue at Simon’s request. Simon said he created the character and shopped it around before bringing it to Marvel, Kirby said that Martin Goodman asked both men for a patriotic character.

Who was right? Who knows. Both men maintained their stance to the end of their lives.

Simon filed two suits in 1966/67, as the twenty eight year term of copyright for Captain America #1 was nearing it’s completion. The first claimed that, ‘because he was the author of those works, the Goodman’s exploitation of the Captain America character constituted unfair competition and misappropriation of his state law property rights.’ Simon wanted an accounting, damages and injunctive relief.

The second case saw Simon seeking a declaratory judgement that he, as the author of the works, had the sole and exclusive right to the renewal term.

All along Simon was claiming Captain America for himself, and maintained that he had the sole rights to the character as he was the sole author. (As an aside, you’ll see a pattern in this series, that being Jack Kirby’s involvement in the creation of characters being diminished by many people. It started with Simon really.)

Suffice to say, Simon lost. In 1969 he settled for a payout that barely covered his legal fees.

Simon filed again in 1999. In 1978 the copyright act in America changed, and it gave creators the opportunity to reclaim their creations. A creator could file a notice of termination, in effect, give notice of reclaiming their works, anytime during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured. Simon saw the opportunity and took it. This time he was claiming the rights to ten comic books published by Timely Comics. He duly filed notices of termination for the rights to the first ten issues of Captain America Comics. Those books were as follows.

As there were no contracts signed at the time, Simon claimed that the works were not work for hire, nor was he an employee of Timely Comics (aka Marvel Comics), nor a creator for hire. Jerry Siegel had filed a similar claim against DC Comic for Superman at roughly the same time.

Simon lost this case as well, mainly because of the settlement agreements he signed in 1969 made it clear to the court that, upon signing, Simon had acknowledged that he did create the issues as work for hire, thus preventing him from exercising the right to terminate. Simon appealed, but the damage was done.

As was reported at the time,

The Second Circuit's most recent pronouncement on the issue, in Marvel Characters, Inc. v Simon, F3d, 2002 WL 31478878 (2d Cir. November 7, 2002), indicates that a settlement agreement containing a work for hire clause may be subject to later challenge. In Simon, the creator of "Captain America" had already litigated his entitlements to the renewal term of copyright against its publisher and ultimately entered into a settlement agreement whereby he acknowledged that his efforts were done as a work made for hire. As a result of this acknowledgment, Simon would have had no right to statutorily terminate any "grant" he made to the publisher. (Client Alert, November 2002)

Simon didn’t litigate again.

What he did do was insist, to his end days, that he, alone, created Captain America. And here’s where it gets interesting - both he and Jack Kirby gave evidence, under oath, that contradicted the other. Did either, or both, commit perjury?

Now you see where it gets difficult in trying to work out who created what.

NEXT: The characters that Stan Lee laid partial claim to in 2007. It’s a doozy.

---