alexarkadin wrote:
I wouldn't be so sure Toberoff doesn't agree with me (wink).

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.
Lee created the Fantastic Four alone, wrote an outline, and then gave it to Kirby to draw. Anything Kirby added (and Lee mentions nothing which is given a name) was thus done after Lee had created and set in motion the basic characters, and plot.

If you've been talking to Toberoff "(wink)", feel free to share.  But, based on Toberoff's public statements (as well as his briefs), I just think you've got this wrong.  

Toberoff said of the decision: "We knew when we took this on that it would not be an easy fight given the arcane and contradictory state of 'work for hire' [case law under the 1909 Copyright Act].  We respectfully disagree with the court's ruling and intend to appeal this matter to the Second Circuit. Sometimes you have to lose to win."  

If Toberoff seriously thinks this comes down to the factual issue of whether Kirby worked on spec, I seriously doubt he would be giving quotes to the press stating this would not be an "easy fight" due to the "arcane and contradictory" case law.  Toberoff is clearly focused on the legal standard.

Your focus on the factual issue of whether Kirby worked on spec is entirely misplaced.  If that was the strategy, Toberoff implemented it in a very unskilled fashion.  Personally, I don't think he is that unskilled.  I think his focus has always been on the "cost" prong. 

You are giving way too much significance to the fact that Stan gave Kirby assignments, including a plot outline. 

And, frankly, I'm not sure why.  Is your intent here to argue that this decision vindicates those who say that Kirby had no role in creating Marvel's characters?  Because this opinion doesn't reach that issue.