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Posts: 3031
Aug 8 11 3:35 PM
BillyBatson4360 wrote:It is especially ironic that Disney led the fight for this legislation as so much of their legacy is built on utilizing characters that have fallen into public domain (Snow White, Cinderella, Alice in Wonderland, Little Mermaid, Aladdin, etc.).
Posts: 471
Aug 9 11 1:23 AM
richard63 wrote:This bit from that Dave Sim commentary I think sums things up pretty succinctly...
Aug 9 11 1:33 AM
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?
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.
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.
Posts: 1455
Aug 9 11 5:48 AM
videofarmer wrote:BillyBatson4360 wrote:It is especially ironic that Disney led the fight for this legislation as so much of their legacy is built on utilizing characters that have fallen into public domain (Snow White, Cinderella, Alice in Wonderland, Little Mermaid, Aladdin, etc.). That's the same irony I sense when I hear Alan Moore blasting people as uncreative hacks for wanting to use The Watchmen or other characters he created in new stories, while he publishes League of Extraordinary Gentlemen books.
Posts: 2776
Aug 9 11 11:29 AM
Golden Age
Leocomix wrote:So your senses are wrong The LOEG books use public domain characters and what's more, do so in a creative way, fashioning its own distinctive mythology.Moore doesn't blast creative people, he blasts the corporate mentality. It's more than a fine distinction, it's at the heart of all these debates.
Posts: 4692
Aug 9 11 12:44 PM
Posts: 5920
Aug 9 11 1:46 PM
Posts: 1754
Aug 9 11 2:02 PM
Registered Member
Binecon wrote: 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. 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. 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?
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?
Now I get it. You are some sort of Tea Bagger. The name "BineCON" signals a political orientation. And somehow, somewhere, in the distant past I said something on some topic you didn't like. So now, embittered, you offer up insults with no meat to back up your opinions. Probably because you have no substance.
In other words, if this site had an "ignore" button, you'd find few responses to your posts. Fortunately, I can exercise self-restraint.Until you offer up some substance to back up the insults, and address my points, there is no reason to waste my time communicating you. The case law is in the briefs, and has been discussed on this site. If you want to offer something constructive on the legal issues, feel free.
Posts: 1238
Aug 9 11 2:36 PM
videofarmer wrote: That's the same irony I sense when I hear Alan Moore blasting people as uncreative hacks for wanting to use The Watchmen or other characters he created in new stories, while he publishes League of Extraordinary Gentlemen books.
Aug 9 11 3:40 PM
Posts: 1838
Aug 9 11 4:07 PM
Aug 9 11 4:24 PM
Aug 9 11 4:29 PM
Aug 9 11 4:31 PM
Aug 9 11 4:47 PM
Snappleshacks wrote:videofarmer wrote: "If you don't see any irony at all in the fact that Moore has made comments that current comic book creators should be creative enough to make up stories using their own characters instead of using his, well, I don't know what to say."I suppose the real question is whether we think future stories involving the Watchmen characters would be transformative works or derivative works. The preponderance of the record suggests it would just be more stories about grown men hitting each other; in other words pointless in the sense that the same story could be told in The Authority or The Avengers or JLA etc. I don't think there's any compelling reason to believe a Watchmen sequel would do to the original what Watchmen itself did to the superhero genre. There is a fundamental difference between "I have yet another Batman story to tell" and "I have a draft of DKR here."An author really wanting to play with these toys isn't a good enough reason IMO. They have to have something to say about them. And although I won't disagree that Moore did his share of WFH while at DC it's also worth pointing out that he rarely did this sort of thing. His stints on Marvelman and Swamp Thing were transformative; he wasn't writing interchangeable arcs. It's probably also worth pointing out that he was writing these stories alongside works like From Hell and V for Vendetta. The equivalent just doesn't really exist today. The idea that Geoff Johns (for example) might have a really great Watchmen story in him is just ... not even worth serious consideration.Moore's fundamental point is that the industry is just serving up retreads of the greatest hits to a cult nostalgia audience. When was the last time something truly new was embraced? What was the last mainstream comic to feature a transformative story like Moore's work on Swamp Thing? Where are the modern equivalents of V for Vendetta and Watchmen, let alone a medium-transcending work like From Hell? The entire DC universe is an exercise in fan service. The mutant books are still anchored to stories told three or four decades ago. Even truly sophisticated books like the Bendis/Brubaker Daredevil are, at the end of the day, little more than retreads of the Miller stuff. This environment is what Moore is objecting to, and he's rightly annoyed at the idea that the vampire squid might turn its blood funnel to Watchmen because quite frankly the industry hasn't demonstrated the skill to do anything great with it.
Posts: 13497
Aug 9 11 4:55 PM
Snappleshacks wrote:LoEG/Lost Girls on the other hand don't work without their literary characters intact, because the books are about what those characters represent and their ongoing legacies in our culture.
Aug 9 11 5:19 PM
videofarmer wrote: OK, so you find no irony in his position because Moore's stories are good and he believes someone else might write stories that are bad using his characters.
Aug 9 11 5:26 PM
videofarmer wrote:OK, so you find no irony in his position because Moore's stories are good and he believes someone else might write stories that are bad using his characters.
Aug 9 11 5:42 PM
Snappleshacks wrote:I suppose the real question is whether we think future stories involving the Watchmen characters would be transformative works or derivative works. The preponderance of the record suggests it would just be more stories about grown men hitting each other; in other words pointless in the sense that the same story could be told in The Authority or The Avengers or JLA etc. I don't think there's any compelling reason to believe a Watchmen sequel would do to the original what Watchmen itself did to the superhero genre.
Aug 9 11 5:44 PM
famac wrote: Jack had a nice house in California with a pool - I wish I was that poor.
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