I have now read the full decision.

The Court essentially accepted, for the sake of argument, all of the factual assertions made by Kirby. It is a given that Kirby was (1) an independent contractor not an employee, (2) was given only a plot outline by Stan, (3) may have been a co-creator of the works in question, (4) prepared his art at his own expense, and (5) was not paid for pages Stan rejected or required him to revise.

The Court then applied these facts to the extant case law and concluded that those facts failed to establish that the works in question were prepared at Kirby's "instance" (or initative) or "expense." On the facts, I don't think there can be much dispute that the works were created at Marvel's initative as Kirby was given assignments. But, I think the question of whether the works were created at Kirby's expense is a closer question. The Court rejected the argument that Kirby did bear considerable risk in creating the works in question because Marvel retained the right to reject any and all pages he produced and not pay for them, and in fact did not refuse some pages. Instead, the Court concluded that Marvel bore the risk of the creation of the works because Marvel paid Kirby for pages it accepted and bore the risk that the comics that they were used to produce would not sell. This is a very interesting distinction, and I'm curious what an experienced IP attorney would think about this line drawing.

The practical effect of this decision is to convert all work by independent contractors who work on a per page basis into work for hire, even though the independent contractor may bear a substantial risk that his client will not pay for the assignment he has been given. This may well be the law. But, I'm not entirely convinced that there are not some compelling arguments to be made for a contrary position on appeal, based on the briefs I read earlier. This is a big win for Marvel, but it is not the end of the suit if the Kirby's pursue an appeal, as I'm sure they will. This Court frames the legal issue very cleanly.