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Posts: 851
Jul 28 11 11:20 PM
Posts: 1327
Jul 28 11 11:46 PM
Bronze Age
alexarkadin wrote:As I read it the judge's reasoning is based on Lee's deposition statements that he presented the artists with the plots or at least a plot framework either written or oral. In his deposition Lee says he created every key concept, and presented them to the artists to draw. The judge doesn't question Lee's testimony at all, because there is no one who can contradict it who has first hand knowledge. As the judge said Marvel's case "stands or falls" on Lee's testimony.
Posts: 899
Jul 28 11 11:59 PM
alexarkadin wrote:In his deposition Lee says he created every key concept, and presented them to the artists to draw. The judge doesn't question Lee's testimony at all, because there is no one who can contradict it who has first hand knowledge.
Jul 29 11 12:27 AM
Posts: 14376
Jul 29 11 12:38 AM
Registered Member
You would have to point me to where the judge says the issue of who created the characters is not important.
“At the outset, it is important to state what this motion is not about. Contrary to recent press accounts and editorials …, this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’ by companies that grew rich off the fruit of their labor. It is about whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909…. If it does, then Marvel owns the copyright in the Kirby Works, whether that is ‘fair’ or not.”
Posts: 1754
Jul 29 11 12:57 AM
alexarkadin wrote: You would have to point me to where the judge says the issue of who created the characters is not important. As I read it, it's just the opposite. She's saying there is no dispute Kirby and the other artists were creative types who contributed to fleshing out plots and characters, but that Lee created the basic concepts himself. Take Spider-Man for example. Kirby contended that he gave Lee a character called Spiderman with spider-powers (wall crawling, a web shooter, 6th sense, super-strength) who was a teenage orphan living with his aunt and uncle. This basic idea is more or less the opposite of how Steve Ditko defines creation. As Ditko explained it he saw creation as how a very basic framework was filled out. Lee has been saying since 1972 that it is the basic ideas which were his, and that he gave them to the artists. The judge accepts Lee's version of events, that it was Lee who came up with the basic Spider-Man idea, and all of the other basic concepts. There is a huge dispute right there, and it's the core of the case. Kirby always maintained that he brought the seminal ideas to Lee per Goodman's requests for super hero comic books. We can be sure many IP lawyers will weigh in on this topic.
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Jul 29 11 5:34 AM
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Jul 29 11 7:05 AM
Jul 29 11 9:31 AM
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Jul 29 11 10:04 AM
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Jul 29 11 10:13 AM
sfcityduck wrote: On the facts, I don't think there can be much dispute that the works were created at Marvel's initative as Kirby was given assignments. But, I think the question of whether the works were created at Kirby's expense is a closer question. The Court rejected the argument that Kirby did bear considerable risk in creating the works in question because Marvel retained the right to reject any and all pages he produced and not pay for them, and in fact did not refuse some pages. Instead, the Court concluded that Marvel bore the risk of the creation of the works because Marvel paid Kirby for pages it accepted and bore the risk that the comics that they were used to produce would not sell. This is a very interesting distinction, and I'm curious what an experienced IP attorney would think about this line drawing. The practical effect of this decision is to convert all work by independent contractors who work on a per page basis into work for hire, even though the independent contractor may bear a substantial risk that his client will not pay for the assignment he has been given.
Posts: 2776
Jul 29 11 10:21 AM
Golden Age
Posts: 5411
Jul 29 11 11:14 AM
Jul 29 11 1:32 PM
profh0011 wrote:"If Jack had attempted to leverage his offer from DC Comics with Goodman, perhaps he could have gotten a better deal from Marvel." How likely was he to do that, when Perfect Film essentially told him, "SIGN THIS OR GET OUT" ?
Jul 29 11 1:42 PM
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: 5920
Jul 29 11 1:44 PM
Leocomix wrote:What's the sense in Kirby signing anyway in 1972 after he got out? None.So he's a poor negotiator. Even when someone tells you "sign this or get out" there is room for negotiation. To start with, since he was a freelancer and not an employee, "get out" had no meaning.
Jul 29 11 1:45 PM
sfcityduck wrote: Summary judgments are routinely reversed on appeal. I've successfully appealed summary judgments, and I've had them in my client's favor overturned.
Jul 29 11 1:47 PM
mistergoodman wrote: Remember though, Marvel always paid for the assignment, because the assignment was the book, not the pages. The Kirby lawyers tried to muddy this up, but Kirby wasn't sitting at home drawing 20 pages on spec, hoping that Marvel would purchase them and use them in one of their books. Kirby was working on, say, Fantastic Four #35, which he had been assigned to do. Now, as art director Stan might have Jack redo a couple of panels, or even the occasional page. He had the right to demand the completed work was up to snuff. But there was no question that Kirby was going to get paid for the assignment, or that it was an assignment in the first place. Kirby's risk was pretty limited.
Jul 29 11 1:51 PM
Medieval Guy wrote: sfcityduck wrote: Summary judgments are routinely reversed on appeal. I've successfully appealed summary judgments, and I've had them in my client's favor overturned.Routinely?!?
Jul 29 11 2:18 PM
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