Custody Battle

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

Joe Simon doesn't read comic books anymore, and not because he's an 87-year-old man with far better ways to spend his time. The former and, perhaps, future comics writer and illustrator simply doesn't get them anymore; he doesn't know who they're for, what they're about, why most of them even exist. Back in his day, Simon and his colleagues, writers and artists plying their trade in smoky office buildings, knew their audience: 12-year-old boys. They knew what they wanted: good guys in tights beating up the bad guys, who most often looked a lot like a guy named Adolf. But now, Simon says from his one-room apartment in Manhattan, "comic books are for, I dunno, the masturbation generation." His laugh sounds like a train in the distance; his is a deep, New York voice that suggests a much younger man of sharp mind and sound body.

"They all look alike--little boys with big guns and little girls with big boobs," he says, and it's hard to tell if he's amused or disgusted. "If I were in the business today, I could find out who the audience was, but it's of no interest to me to get into that area. Not anymore."

There was, of course, a time when Simon loved comic books: They raised his children, bought his house, took care of his wife. And they made him a legend, at least among those who read and revere the much-maligned medium, this trash-can literature. A very long time ago, and for a very long time, Joe Simon made comic books, some of them among the best-known and most beloved in the medium's history: Young Romance, Newsboy Legion and The Boy Commandos, original copies of which sell among collectors for thousands of dollars. More important, he is the father of one of the most iconic figures in the ill-tended-to history of the medium: In 1939, Simon gave birth to the red-white-and-blue crimebuster known as Captain America, who would become among the most famous characters in Marvel Comics' stable of heroes.

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.

Now, 62 years later, Simon wants his boy back--out of Marvel's clutches and into his own hands. There's but a single problem: Marvel, which has claimed ownership of the Captain America copyright since 1940, is not going to just turn over one of its most profitable properties without a fight. Sometime this summer, perhaps as early as June, Marvel Characters, Inc. vs. Joseph H. Simonwill head into U.S. District Court in New York, with the victor claiming the copyright to Captain America, and the ramifications of the lawsuit are enormous. If Simon wins, it will open the floodgates for other artists and writers to reclaim characters long owned and exploited by comic-book publishers. That, Simon says, is precisely the point, which explains why he's a little surprised--and saddened--to discover he's fighting this battle without support from other creators who lost their children along the way.

"Christ, I'm doing this for my children and other creative people who should have their rights," Simon insists. "I'm not doing it for myself. I'm too old to be doing this for myself, but I'm not going to quit by any means. They've spent so much money on this. Marvel must have spent a million bucks on this. I think some people would get together and back me on this."

Simon notified Marvel of his intent to reclaim the Captain America copyright on December 6, 1999--just a few months after the heirs of Superman co-creator Jerry Siegel filed similar notice with DC Comics. Simon and Siegel's estate made their claims using a 1978 revision to U.S. copyright law, which says, in essence, that once a work's original 56-year copyright expires, the creator of a work (or his estate) has five years to regain the copyright. Two months after Simon filed his claim, Marvel filed suit against the legendary artist, claiming he has no rights at all to Captain America. According to Simon, the company never offered to negotiate a settlement.

"When the statute was changed in 1978, the whole point was to give people who may have sold their property for a cheap price the chance to take it back," says Simon's attorney Ross Charap. "The premise is you don't know what something's worth till the public tells you. Congress said, "Let's do something for those who sold their goods at a rate far less than the value the public established for it over time.' Somebody who gave something up for very little 50, 60 years ago should be entitled to get some additional compensation for the great work he or she did."

But it's not as simple as that, because copyright law also says that a creator is not entitled to his creation if he did it as a "work for hire"--meaning, if Simon came up with Captain America while he was working for Marvel (which, in the 1930s, was called Timely Comics), it belongs to the company. Forever.

And that's where things get tricky, at least as far as Simon's issues are concerned. After all, heclaims to have created Captain America all by his lonesome while he was working as a free-lancer for Timely. (At the time, Simon was also a staff editor at Victor Fox Publications, which was then one of the leading comics companies.) As he tells it, he came up with the idea of Captain America when he came up with the perfect villain, Adolf Hitler. According to Simon, he then took his initial character sketch to Timely's publisher Martin Goodman, who so liked the character he wanted Timely to publish it.

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