Alex,

Just to make this real clear, here is what the Judge has to say on the creation issue:

* "... this case is not about whether Jack Kirby or Stan Lee is the 'real creator' of Marvel characters ...." [p. 3];

* "Obviously, the Marvel Method gave an artist greater opportunity for input into creating the characters and stories." [p. 16];

* "Lee and Kirby co-created the Fantastic Four." [p. 17];

* "The Incredible Hulk, a sympathetic hero-monster, was co-created by Lee and Kirby in 1962." [p. 18];


The portion of the opinion you should be focusing on, IMHO, starts at the bottom of page 33 with the phrase "In this Circuit ...." [Aside: remember that Toberoff cited 9th and 5th Circuit case law and there might be a conflict between Circuits which could lead to a change in how this issue is viewed on Appeal.]

You should also read the Reply filed by Toberoff, on the docket as no. 115, and ask yourself why the bulk of the legal argument in that brief goes to the expense prong and no emphasis is made on the "spec" argument you are pushing.