alexarkadin wrote:
The key to the ruling is if Kirby created characters and plots on spec.
I'm not saying this, it's the judge who says it over and over again. She reasons that because Lee created the characters and plots before ever speaking to Kirby nothing he did was done on spec. Everything else stems from that understanding based on Lee's testimony.

Not so.  She reasons that since Kirby did his work with the expectation that it would be published by Marvel, in response to an assignment from Marvel, then it was not done on spec.  Who created what is not relevant to that decision.  Even if Kirby's scenario from TCJ interview is true (he found Stan weeping and furniture being removed, so he marched into Goodman's office and said he would create some characters to save the company, then went home and created the FF) then it would still be work for hire in the judge's reasoning.

Kirby never claimed to have created the FF independently of Marvel with the thought that he could shop it around to various publishers.  Toberoff presented no evidence to suggest that was the case.  They pretty much conceded the work was done at Marvel's instance, and focused their case on the notion that it was not done at Marvel's expense, which the judge rejected.