Custody Battle

Marvel Comics isn't going to give up Captain America without a fight

So, a year before the United States entered World War II, Captain America was laying knuckle to Hitler's jaw and crushing the Third Reich on the cover of Captain America Comics No. 1, which debuted December 20, 1940. The Cap was the so-called Sentinel of Liberty, a scrawny soldier who, thanks to a government experiment, became a punching patriot clad in an outfit that looked like something stitched together from Betsy Ross' leftover scraps. And Captain America was, for a short while, the best-selling superhero in the funny pages--bigger, even, than that other muscle-bound man in tights fighting for truth, justice and the American way. Father and son had precious little time together: Simon, with friend and illustrating partner Jack Kirby (another whose influence would smear across the decades), worked on only 10 issues of Captain America Comics. They would leave Timely after a dispute over royalties with Goodman.

But myriad comics history books credit the creation of Captain America to both Simon and Kirby, who were to comics, from the '30s until the '60s, what Rodgers and Hammerstein were to the American musical--as inseparable as they were influential. Simon insists he brought in Kirby after he'd sketched out Captain America and outlined the first two stories. He says he gave Kirby "co-creator" credit because they were friends...and because he didn't know any better; it was a Depression, he shrugs, and he was just happy to have the work. Kirby, who died in 1994, often said he and Simon created Cap together. Marvel also claims, in legal documents, that Goodman likewise had a hand in the character's origins, something Simon vehemently disputes.

"Anyone who wanted a byline from me, they got one," he says. "It didn't matter. Now when it's a legal thing, it suddenly becomes important. You can't go back 50 years and say, 'Here's an explanation for this.' As far as Martin Goodman is concerned, and this is something I am just pulling out of a hat, but he was in business for 50 years, and no one gave him credit for creating anything."

A family photo: Joe Simon gave up Captain America for adoption in 1939. Now, he wants his boy back.
A family photo: Joe Simon gave up Captain America for adoption in 1939. Now, he wants his boy back.

But even if it were possible to prove, beyond a doubt, that Simon was Cap's only creator, Marvel still insists he has no claim to the copyright because, according to legal documents filed in February 2000, "Captain America was conceived and the insistence and expense of Timely Publications." Marvel claims it was a work for hire, meaning Simon isn't allowed to any protection under U.S. copyright law--even if he was Captain America's only father. But Charap argues that there's no way Simon could have been a Timely employee, because the company didn't have any in 1939.

"Everything was jobbed out," says the attorney. "The key is between the time Joe first met with Martin Goodman and when he said, 'Let's do it,' he already did the first two stories in their entirety, in the sense that he had blocked them out, rounded them out and done the story outlines and put in some of the script. He was prepared to sell the book to anyone who wanted it."

This is not the first time Simon's tried to recapture Captain America's copyright: In 1966 and 1967, just as the first 28-year term of copyright was expiring, he filed suits in New York courts against Goodman and others, claiming to be the sole author of Captain America. Simon sought a judgment declaring that he alone had the right to renew the character's copyright; he also insisted he was entitled to royalties and other damages from Marvel's use of his character.

Simon retained a father-and-son team with no prior intellectual property experience. Marvel countered with one of the leading copyright firms in the country, and on November 20, 1969, Simon relented and signed a settlement agreement that said "all of his work on [Captain America] was done as an employee for hire of the Goodmans." As part of the deal, he also would receive an undisclosed amount from Marvel. Marvel's attorneys point to that document as proof Simon long ago relinquished his control to the copyright.

"The only thing I can say on the record is to direct you to the facts set forth in our complaint," says Daniel Fleischer, one of Marvel's lawyers, "which point to an unequivocal acknowledgement by an intelligent man that the work was created as a work for hire." Charap insists Simon signed the agreement only because he could no longer afford to fight Marvel in court.

Fact is, the whole story has become sordid and sad: Marvel, still reeling from its recent bankruptcy, is spending a small fortune--again--to go into battle with a man who gave it one of its most enduring characters. And all Simon wants is to, once more, control the destiny of his creation. He's an old man trying to rectify mistakes he made when he was just a kid. And if he has to wage war on Marvel, if not the entire comic-book industry, then fine. Whatever it takes.

"I was taken advantage of from the beginning," Simon says. "I was 24 years old, and I was stupid. Martin was surrounded by a lot of legal people who had nothing to do but see he got every advantage. He put the copyright in his name, and I think they're still doing the same thing today. The business is going to hell in the first place, but the characters are more valuable than ever. So, we'll do the best we can."

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