sfcityduck wrote:
Binecon wrote:
BillyBatson4360 wrote:
The Jack Kirby estate may indeed appeal, but because this was a "Summary Judgment," it is going to make their appeal extremely difficult.

In law, a summary judgment is a determination made by a court without a full trial. It means one side's case was so weak, the judge summarily decided to spare the state the cost in money and resources of actually going to trial.

It is also crystal clear in the judge's ruling that this case does NOT revolve around the question of who created what. It is simply a question of what were the working conditions under which the creator operated.

Thus the case does not hinge on Stan Lee. It hinges on Martin Goodman and the arrangements he had with his creative personnel.

As I stated in the old "Marvel Method" thread, this is simply a case of Jack Kirby being a poor negotiator. Stan, in his role as co-plotter & dialog writer, was also performing work for hire. Yet Stan was able to negotiate better and better deals for himself until today he has become rich off of properties that he certainly had a hand in developing and promoting (regardless of how much or little he contributed to their initial genesis).

If Jack had attempted to leverage his offer from DC Comics with Goodman, perhaps he could have gotten a better deal from Marvel. Stan is on record as saying he thinks such an outcome was likely. But Jack didn't do that. Jack simply accepted the DC offer and walked out of Marvel without giving them the chance to counter offer.

Did Jack sue Marvel at that time claiming ownership of the FF, Thor, Silver Surfer, Spider-Man, and others? No, he did not.

He knew that he did not own the characters he had a hand in creating. Just as he did not own the Boy Commandos, the Newsboy Legion, and countless others created under work for hire for other publishers.

While it's a somewhat sad situation, this post gets it right.

SFDuck's appraisal of the situation is weak, muddled and incorrect, and this decision (whatever we may think in terms of "wouldn't it be nice if") will be upheld on appeal.

Like Billy, I've worked extensively in work for hire situations, and that's clearly what Kirby was doing throughout his career with Marvel.

This suit was without merit from the beginning, though I share in some of Prof's outrage.

Jack was an incredibly sweet and decent man, and I wish things had gone differently for him.

Everyone is entitled to their opinions Binecon, but don't expect me to take your comment that my analysis is "weak, muddled and incorrect" seriously unless you substantiate that opinion.

As you attempt to do that, let me give you some food for thought.

First, a court of appeal reviews a grant of summary judgment without giving any deference to the trial court's ruling.  In essence, the Court of Appeal is allowed to ignore what the trial court had to say, and instead reanalyze the issue completely afresh.  As a practical matter, this means it is easier to obtain reversal of a summary judgment than other forms of disposition where the court of appeal will give deference to the trial court.  So, if anything, I think it is Billy's analysis which is weak on the significance of the form of disposition.

Second, Billy and I agree that this case does not turn on who created what.  So I'm not sure what you think is weak about my analysis on this point.  Instead, this case does turn on whether Jack was engaged in work for hire, and as framed by Toberoff's briefs, that question turns on the "expense" prong of the work for hire test.  Again, what's muddled?  

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. It depends on how the court of appeal will interpret and apply case law (and it is an open question as to what case law, as it is possible that Toberoff may be betting that he can ultimately resolve a split in the Circuits). 

So ... care to substantiate your opinion by addressing these points directly?
  
First, let me be clear in saying that I find most of what you opine weak, muddled and incorrect, so I wasn't picking on any purported legal skills specifically. Smile

This case suffered from gross facial insufficiency from the get-go, and I just pray the lawyers working for the Kirbys are doing so on a contingency basis. (If not, and they're driving the Kirbys in endless circles with the meter running, it's another excellent example of why their profession is so highly regarded, IMHO.)

But let's be fair, ducky.

You brought these arguments up, so get your most eager intern to research the case law which supports your position, and present it here. Emot_yes

The Kirbys will lose on appeal.

Sad, but true.

If you disagree, one of us could make a donation to a non-denominational relief agency based on who has correctly determined the outcome - that way it's a win-win for those in desperate need regardless of how this sad situation plays out.

What say?

Last Edited By: Binecon Aug 9 11 2:14 AM. Edited 1 times.