sfcityduck wrote:
...if anything, I think it is Billy's analysis which is weak on the significance of the form of disposition.  
Obviously I am not an attorney.

I based my original post on what I had been told by two different lawyers during two different lawsuits in which I was a reluctant party.  In one of the suits, we did obtain a Summary Judgement in our favor. I had been told by the attorneys involved in both cases that a Summary Judgement is generally harder to win on appeal, not because of any point of law regarding how a Summary Judgement is viewed, but such a ruling indicates at least one judge found one side of the case to be so weak that he or she decided to spare the state the cost of trial deeming the verdict a foregone conclusion. It is simply an indicator to the losing party that their case appears weak.

You seem to be arguing here that you think the attorney for the Kirbys may be hoping the case turns on different interpetations of the law between circuits. That is a legal issue well above my understanding and it also was not germaine to the suits I was a party to.

I would still think that a Summary Judgement against the Kirby's suit is hardly good news for the Kirby family.



sfcityduck wrote:
Contrary to what Billy implies, application of the "instance and expense" test does not depend on whether Jack previously sued Marvel, what his employment relationship or contract was with DC (which Billy is speculating, I think incorrectly, was analogous to what he got from Marvel), whether he could have leveraged a better deal, etc. 
I was not implying what you think I was implying.

My response was aimed at the one or two posters on the thread who have been demoninzing Marvel in general and Stan Lee in particular. My intent was to support my belief that:
   1.) Kirby knew the conditions of his employment regardless of whether he knew the specific term "work for hire."
   2.) Marvel was not alone in claiming ownership of characters created by work for hire employees.
   3.) Kirby had co-created other characters for other publishers. He also worked on characters created by others. Clearly he understood the industry practice of the publisher retaining rights to characters.

What that all means legally is not for me to say.



kirbyfanatic wrote:
Evanier says that Kirby tried and tried to negotiate with Marvel prior to his leaving the company in 1970. So it's plainly incorrect for anyone to say that Kirby simply left Marvel in a huff without so much as a goodbye.
   
I would not put things in quite the way that droid did, but the main thrust of his argument is solid.

I have no doubt that Mark Evanier is reporting what Kirby told him accurately. But that doesn't automatically make Kirby's statement true. Keep in mind, I have already posted a link to a writer who said Kirby took credit for creating The Shield - a character whose creation he had nothing to do with.

Also the word "try" is subjective. Tried how? When did those discussions take place? How many (actual hard number) were there? Did Jack consider complaining to Stan "trying" - given that, at that time, Stan was not in charge of the finances and had no control over Goodman's arrangments with the freelancers?

There are more than one witness on the other side that have said that once Kirby had his DC deal in hand, he never attempted to get a counter offer from Marvel. And that his departure from Marvel was indeed abrupt. He made a phone call and that was that.

Anyone skilled at negotiating will tell you that if you have leverage, it is easier to get more of what you want from the other side. Jack's offer from DC would have been that leverage. There is no record that he ever tried to use that leverage.

Last Edited By: BillyBatson4360 Aug 6 11 1:19 PM. Edited 1 times.