sfcityduck wrote:
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.
  

Remember though, Marvel always paid for the assignment, because the assignment was the book, not the pages. The Kirby lawyers tried to muddy this up, but Kirby wasn't sitting at home drawing 20 pages on spec, hoping that Marvel would purchase them and use them in one of their books. Kirby was working on, say, Fantastic Four #35, which he had been assigned to do. Now, as art director Stan might have Jack redo a couple of panels, or even the occasional page. He had the right to demand the completed work was up to snuff. But there was no question that Kirby was going to get paid for the assignment, or that it was an assignment in the first place. Kirby's risk was pretty limited.

- Goodman

Currently reading several decades worth of Captain America comics on my iPad, and blogging it at http://readingcaptainamerica.blogspot.com/