alexarkadin wrote:

Most people have seen examples of the New Gods characters Kirby offered to Marvel in the 60's. The estate argued that the early 60's characters were pitched to Marvel in the same way... Jim Shooter recently described holding Kirby Spiderman character proposal in his hands while at the Marvel offices in 1969.

Because Kirby wasn't under contract if it was possible to show Kirby was creating characters and pitching them to Marvel that would constitute work done on spec, just as the New Gods character proposals were done on spec.
If I understand you correctly, then why aren't the New Gods a property of the Kirby estate? They seem pretty clearly a property of DC Comics as DC has published them and used characters from them in a myriad of other projects and properties. As far as I have ever known or read, the Kirby estate is not receiving royalty payments for those characters.

In fact, Warner Brothers Television used Darkseid all through the final season of Smallville (as well as Glorious Godfrey, DeSaad, and Granny Goodness) without a single mention of Jack Kirby in the credits and I would guess a single dollar of royalty payments to the Kirby estate.

And why aren't all those other characters Kirby pitched property of Jack Kirby? Seems that those characters became the property of whatever comic book publisher bought the presentation and commissioned the book.

As to the Spider-Man proposal, there is considerable controversy surrounding that. Namely some have alleged that is was never Kirby's idea to begin with. It was Joe Simon's idea. He had C.C. Beck, not Kirby, draw up an initial story and then scrapped the idea. The allegation is that Kirby simply brought up one of Joe Simon's old ideas to Stan Lee.