A sad day for those who hoped, perhaps against hope, that Jack “The King’ Kirby’s heirs would get some of the money their father’s creations have made over the years. Characters including Captain America (created in the ’40s with Joe Simon), The Hulk, Iron Man, and Thor — you know, if they called next year’s potential biggest-movie-of-all-time THE AVENGERS “JACK KIRBY’S AVENGERS” they would not be far from the mark.

Deadline has analysis, seeing it as a big setback for lawyer Marc Toberoff, who has won many unlikely IP cases against giant studios in the past:

He’s had so many victories they’re hard to count, and Toberoff has won or settled lawsuits on Lassie, Get Smart, The Dukes of Hazzard, The Wild Wild West, and Smallville. In the comic book arena on behalf of Superman creator Jerry Seigel against DC Comics against Warner Bros, the U.S. District Court Judge ruled that “after 70 years, Jerome Siegel’s heirs regain what he granted so long ago — the copyright in the Superman material that was published in Action Comics, Vol. 1. What remains is an apportionment of profits, guided in some measure by the rulings contained in this Order, and a trial on whether to include the profits generated by DC Comics’ corporate sibling’s exploitation of the Superman.”

However, this time out the court offered a summary judgement for Marvel/Disney saying that Kirby had created the characters in question under work-for-hire situations, and thus was not entitled to any ownership of them.

Frankly, we’d heard some accounts of the case that suggested that one of the reasons Marvel might be vulnerable is that they had no records of Kirby ever actually signing any work for hire documents. However, while upholding Kirby’s role as the creator, the court ruled that this was a WFH situation, thanks to agreements Kirby signed in 1972 and 1975.

Here’s the actual judgment (warning, 50 heartbreaking pages long). Jeff Trexler has posted a bunch more of the documents, including depositions from Roy Thomas,
John Romita, Larry Lieber (Stan’s brother), Neal Kirby and Stan Lee. Kirby’s letter of employment and another contract are also uploaded.

In case any of the links are hard to load, check out Trexler’s Google+ page for other links.

Trexler also supplied his initial thoughts on the ruling:

My immediate reaction when I saw the news echoed what I said–and I think I may have written–back during the attempt to get this case heard in California. Namely, this is exactly why Marvel wanted the case in New York. The Southern District has a reputation for being a strong IP court, with the law relatively friendly to corporate IP owners. 

Sometimes cases do go the other way–the Joe Simon Captain America case is perhaps the most famous SDNY example. Toberoff will likely rely on that case when challenging the Kirby court’s treatment of the 1972 & 1975 Kirby agreements. It will be probably be harder to find clear error in the Kirby court’s factual analysis vis the work-for-hire creation of the disputed characters–the Simon appeal came down to an interpretation of a key portion of the termination right statute, while the Kirby case turns largely on factual findings re the characters’ creation, in comparison with relatively more established law re work for hire.  Appeals courts tend to be more deferential to lower courts’ factual determinations.

The case is a powerful reminder of the difference between how courts & the comics community see creators’ rights. The opinion begins with that caveat and it’s an underlying theme throughout, up through the discussion of the weakness of the DeCarlo case.

We’ll have to go over these materials before rendering any other comment, but there is one huge takeaway from this: Don’t ever create characters for work for hire, no matter how much “back end” you’re promised. In this day and age there is NO excuse for giving up your creations. We may never see another Jack Kirby among us, but let his lessons stand, both the triumphs and the sadness.

PS: This ruling does not affect Superman, as far as I can tell — Superman was NOT CREATED UNDER WORK FOR HIRE — the record is pretty clear on that.

Update: here’s the John Morrow deposition and the Mark Evanier deposition (part 1 (22 pages), and part 2 (108 pages), which the judge has ruled be stricken from the record. So read it now, kids!


  1. The problem with the Kirby lawsuit is that all the characters were created under slightly different circumstances. Some of Stan’s early plots for the FF survived including the plot to FF#1. Reading it, (it’s been published a few places and is probably on the web somewhere) does not give one the impression that Stan and Jack talked about the concept before Stan went to the typewriter. On the other hand it’s well known that the Silver Surfer arrived in Kirby’s art without Stan knowing about it first. Iron Man apparently appeared as a Kirby sketch on the back of some other art complete with name, but the story and character details were worked out by Stan and his brother and the costume was redesigned almost immediately first by Don Heck and then Steve Ditko and then several times again by other artist. Joe Simon has stated that he created Captain America alone and brought Kirby in afterwards and sue and settled with Marvel to that effect. One size does not fit all.

  2. I’m not surprised by this since after saying Kirby created many characters for Marvel for years in books and interviews, when under oath Stan Lee claimed (for the first time anywhere) that Stan created everything and gave it to the artists to draw.

  3. With the sole exception of the Silver Surfer, I don’t recall Stan saying that Kirby created the characters without him doing written or at least verbal plots first. In the case of the FF Stan’s typed plot for the first story survived and very much supports his story while at the same time highlighting what Kirby brought to the project. For instance Stan envisioned both Reed and Sue’s powers working differently then they did in the published form (Kirby altered those details) and Stan’s plot started with the origin. The opening sequence of Reed calling the team together was entirely Kirby.

  4. “In this day and age there is NO excuse for giving up your creations”.

    Dumb fanboys and desperate creators will always line up to give their ideas away to these guys for a pittance and the joy of being popular at the con. This will continue as long as there are comics.

    As much as I would have loved to see some humble pie being served, the Kirby case wasnt as clear cut as the Superman case. I would live to see Simon get Cappy back one day…

  5. It’s worth bearing mind, as the judge points out, that these cases have nothing to do with whether publishers have acted fairly. As I understand it, even if Marvel or DC had acted impeccably and given massive voluntary payouts to the creators, they’d still be open to these claims under the legislation. To that extent, the law gives publishers no incentive to treat creators better – merely to hire better lawyers to draft their contracts. While in practice the law generally seems to operate to the benefit of people who lost out because of a weak bargaining position in the past, I have to say the principle of the legislation troubles me.

  6. The judge relied primarily on Lee’s deposition in forming her ruling. On page five of the ruling she says, Marvel’s motion stands or falls on his (Lee’s) testimony.
    Everything came down to Lee’s claim that he created all the plots and characters alone and passed them on to the artists in oral or written form.
    Lee’s deposition is very clear on this point even in the highly edited form seen to date.

  7. This is sad news indeed. I was hoping the Kirby estate would win something. Marvel is nothing without all the designs and work Jack Kirby did for them. Had they won, it would’ve kicked Marvel up the bum in the area of creator rights.

    One thing I don’t understand though – if anyone can correct me is — is if Jack Kirby is work-for-hire, why does current Marvel continually champion Stan Lee’s contribution/legacy to the company? Isn’t Stan Lee also work-for-hire then?

  8. One thing a lot of people fail to mention about these depositions is they are all highly edited. Marvel asked for a protective order early on in the case and far less than half of the deposition testimony has been made public.
    For example of Lee’s two depositions the document at Justia contained the following 101 pages out of a total of 396.

    A quote.
    MR. TOBEROFF: Are you referring to the Marvel method?
    MR. QUINN: The methodology that he’s testified to over the last several hours is what I’m
    (break in testimony)
    STAN LEE: “So I tried to write these — knowing Jack would read them, I tried to write them to make it look as if he and I were just doing everything together, to make him feel good. And we were doing it together.
    But with something like Galactus, it was me who said, “I want to do a demigod. I want to call him Galactus.”
    Jack said it was a great idea, and he drew a wonderful one and he did a great job on it. But in writing the book, I wanted to make it look as if we did it together. So I said we were both thinking about it, and we came up with Galactus.
    Now if you see where it says, “MR. QUINN: The methodology that he’s testified to over the last several hours is what I’m
    (break in testimony)”

    That is at the bottom of page 145 of the deposition at Justia.
    Then if you look at the next sentence from
    the posted deposition:

    “So I tried to write these — knowing Jack would read them, I tried to write them to make it look as if he and I were just doing everything together, to make him feel good. And we were doing it together”

    That is the top of page 331 of the deposition so there is a chunk of 186 missing pages right there.

  9. Anybody who’s looked at any original Jack Kirby Marvel art pages will see that Jack created the lion’s share of the characters and plot points, up to and including dialogue sometimes– usually based on a loose Stan Lee plot like, “In this issue, Cap suspects that one of Nick Fury’s most trusted men is a Hydra double agent, but he doesn’t suspect it’s actually the Red Skull until it’s too late.”
    And then Jack (Or Big John, Or Steve) would craft the entire story. Stan would polish up dialogue after the entire story was done to give it that corny 60’s Marvel style that worked so well (for the first few years, anyway).
    From what I’ve read in the past, Kirby is creator, or at very least the co-creator of many, many Marvel characters.

    What a shame about this ruling.

    My condolences to the Kurtzberg family, they deserved so much.

  10. The judge accepted Lee’s testimony apparently because there was no one who could challenge it. During the years in question Lee had no staff, not even a receptionist. All conversations between Lee and Kirby would have been private.
    The few plot outlines know to exist would seem to me to be of little value in that there is no way to know if they were generated before or after a meeting with Kirby. There is no evidence Kirby ever saw the FF#1 outline which was found in Lee’s desk at Marvel in the 70’s.
    A different judge might give greater weight to the fact that the penciled pages were obviously created before Lee ever saw them, and were created without a script. In that view the penciled pages would stand as the only tangible evidence; as opposed to Lee’s testimony which might well have been motivated by his one million dollar a year for life contract which prohibits Lee from disputing directly or indirectly Marvel’s ownership of the copyrights.

  11. That’s not really the central issue, though. From a quick skim of the judgment, the judge’s point is really pretty simple: on the undisputed facts, Kirby’s work was created at Marvel’s instance and expense, and therefore it was work for hire under the law of the time (in the absence of a contrary agreement, for which the Kirby estate has no real evidence).

    Whether Kirby was writing his own stories is a red herring. All that would mean is that he was a work-for-hire writer as well as a work-for-hire artist.

  12. I don’t see creating characters under work-fir-hire conditions as entirely bad. After all, a writer who does work for Marvel, DC, and other WFH publishers is being paid to be creative. If he creates a new villain to take on Superman, Spider-Man, or another hero and does a good job with him, the benefits to the readers and to his reputation as a creator will outweigh the loss of rights to him. If the villain was created specifically to fight _____, who else is he going to fight? And if a writer is just starting out, the benefits of accumulating writing credits will outweigh the potential loss of future revenue.

    Genre fiction writers can do work-for-hire projects. As the writer notes, there are upsides and downsides to work for hire. How important is the pay?


  13. “Whether Kirby was writing his own stories is a red herring. All that would mean is that he was a work-for-hire writer as well as a work-for-hire artist.”

    And does anyone really believe that Kirby didn’t understand he was doing work-for-hire at Marvel? This is a guy who was around to hear, first- or secondhand, every single story about how Siegel and Shuster were screwed out of Superman. That he was somehow confused or unaware of the nature of his employment is a big hard to swallow.


  14. “I don’t see creating characters under work-fir-hire conditions as entirely bad.”

    It is if you think of creating not as a profession or a craft but as playing the lottery. If you’re fixated on the idea that you’re going to come up with the next Spider-Man or Wolverine, even though you most likely aren’t, you become equally obsessed with obtaining all the hypothetical benefits of your hypothetical creation.

    Or to put it another way, if you want to own your own stuff, do your own stuff. Going to work for somebody else and expecting to own what you create for them is silly.


  15. Justia is a goldmine for this case, definitely. My aim was to provide material most directly helpful for a quick look at the case.

    Of course, as Patrick Ford notes, the documents are redacted, but there’s still a wealth of material here for comics history folks.

    For the most important documents, including redacted depositions on both sides and the controversial checks w/ copyright assignments, one may want to start with docket numbers 65, 66 and 77. The lists in each main filing provide a descriptive index of the multitude of exhibits.


  16. People who are interested should take the time to read the decision carefully.
    One of the very first statements the judge makes in explaining her ruling is that Marvel’s case, “Stands or falls” on Lee’s testimony.
    The key point relevant to copyright is Lee’s contention that he directed and guided Kirby’s work by giving him written or oral plots and characters created before Lee ever spoke to Kirby.
    The estate tried to show it was Kirby who brought the initial conceptions to Lee. If that was the case, if Kirby had created character proposals (like the Spider-Man pitch page Jim Shooter claims to have seen) brought them to Lee who consulted Goodman, and gave his approval it would show Kirby had created work on spec. Kirby’s daughter Susan described seeing her father create character pitch pages for the Fantastic Four. She said she remembers because her father said he would name the Invisible Girl “Susan” after her.
    As Lee explains it he created the basic concepts alone before ever speaking to Kirby, and gave them to Kirby to pencil.
    That huge contrast is the crux of the judge’s ruling.
    There have been comments about the later agreements (72,75) signed by Kirby.
    As I understand it the judge isn’t saying these agreements are proof Kirby signed away his rights. What she says is the language of the agreements doesn’t concede that Kirby had any copyrights to sign away.
    For example she points out the language in the agreements mentions rights that Kirby “may have” not a concession by Marvel that Kirby does have a claim.
    It was Toberoff who was using the agreements to try and show Marvel in effect was acknowledging that Kirby had the copyrights to sign away.
    It’s very clear here that for people who are creators rights advocates the guy in the black hat is Stan Lee.
    Based on the judge’s comment that Marvel’s case “stands or falls” on Lee’s testimony all Lee had to do was acknowledge that Kirby had helped formulate the characters before the work was purchased by Marvel.

  17. Jeff, Is it at all likely the full depositions will ever see the light of day?
    Yes, I know, “calls for speculation.”

  18. @Scratchie It’s in the opinion–hearsay. The court stated that he had no direct knowledge of the transactions in question; he obtained his info by talking to others. The depositions & expert report were not to serve as backdoor conduits for information that would otherwise be inadmissible.

    But that doesn’t mean you can’t read Evanier’s report:


    @Patrick Ford The parties enter excerpts & evidence into the record that they think support their respective cases. I haven’t read everything in the docket, so it’s possible that more complete versions are there.

  19. Interested to read the decision and haven’t had a chance. However, I want to address the idea that artists/writers shouldn’t do work-for-hire.

    The simple fact is that Marvel and DC pay far, FAR better than indie publishers, and for that reason, they are able to get good talent and keep the rights. It’s no different than if you designed something for the Coca-Cola Corporation–you wouldn’t expect to receive a penny off of every bottle of Coke sold with your logo on it. But you would expect to receive a big check up front.

    The lottery M. Bunge is referring to is actually in creating your own projects and hoping they make you some money one day (they make you very little up-front). Many, many books never turn any profit whatsoever, never come close, and I’m talking about successful indie books written by recognizable, marketable talents. Some do win the lottery and get made into movies (hello, MEN IN BLACK), some become gigantic publishing successes (THE WALKING DEAD), most sell a few thousand copies and disappear.

    Personally, I like both kinds of work. I read both kinds, I enjoy doing both kinds, and I love talking to people who read different types of work. But the real sad situation is that today–in light of years of sad stories like that of so many of our Silver Age heroes living without any royalties, health care, etc.–is that anyone would expect work-for-hire to mean anything other than a solid paycheck for the work.

  20. “And if a writer is just starting out, the benefits of accumulating writing credits will outweigh the potential loss of future revenue.”

    How so? To create characters as a work-for-hire writer that they’ll never get to own and receive royalties for? What’s the benefit to the writer?

    Surely it’s more beneficial for a writer, just starting out, to learn how to craft good stories with existing characters they’ve been hired to work on; and so in turn, developing their skills for work down the line. And better to save their own creations for a time they can do them.

  21. How so? To create characters as a work-for-hire writer that they’ll never get to own and receive royalties for? What’s the benefit to the writer?

    How is a writer ever going to get work on an existing series if he doesn’t show at least some creativity? If he uses an existing villain and comes up with an original scheme, that’s being creative. If he thinks of a use for a hero’s power that is logical but has never been seen before, that’s being creative.

    If he limits himself to using existing characters and existing schemes, he won’t get work. If he creates a villain specifically to use with an existing hero — a character-driven story — he wouldn’t be able to use the villain again with someone else easily, and he can reuse the basic idea — a new source for the villain’s power — anyway. The details will make the character different.

    Writers who consciously save their “best” ideas for use in material they own are. IMO, cheating their readers. Ideas aren’t that hard to come up with.


  22. Re: Mark Evanier

    “The court stated that he had no direct knowledge of the transactions in question”

    This fellow seems to talk and write about stuff of which the above would be a good description of the background from which he forms his basis.

  23. The judge did allow the declaractions from Steranko, and Sinnott, based on Evanier’s testimony. The ruling was that because their names had been mentioned by Evanier Marvel was aware they might be asked for statements.
    Using the same reasoning other creators who might be called as part of an appeal would include: Ditko, Stan Goldberg, and a dozen or more other people with knowledge of 60’s Marvel.

  24. Just to clarify, appellate review is based on the factual record before the lower court. It’s not like an ordinary trial.

    The judges will receive appellate briefs + the lower court case record. If the panel deems the case something more than a slam dunk, the parties will appear for oral argument before the three-judge panel. This doesn’t involve calling witnesses and the like; the lawyers for each side explain & answer the judges’ questions about their respective cases.

    This is the sort of opinion I could see getting cursorily affirmed, but one never knows–the judges could have a couple of diehard creators’-rights-minded comics fans as clerks, who with determination & cleverness could work an angle to flip it.

  25. A waste of time, but I’m bored with boo-hissing on cue the debt limit meller-drama).

    I find it amusing that on a blog that does little more than celebrate the explotation of creators (I just finished reading an article here actually advocating women be exploited by suggesting DC Comics hire more or them), that some commentators here find this recent judgment on creators’ rights “sad”.

    It really isn’t rocket science: One cannot be simultaneously an advocate of creators’ rights and an advocate of corporate-owned intellectual property. The two are mutually exclusive.

    I don’t expect the readers and viewers of corporate-owned “creations” or, especially, those creators who allow themselves to be exploited by corporate intellectual-property owners to understand this, but let me try anyway (like I said I got time on my hands):

    If “intellectual property” is just that, a commodity that can be bought and sold, the laws of commodity exchange come into play. There are no “rights” involved, except those the laws set forth. In this situation, the courts have ruled. There’s no “happy” or “sad” involved. Yeah, okay, it’s sad all those people lost their houses in foreclosure, but the law is the law. If you sell that old dusty vase for a buck at a garage sale and it’s subesquently sold to a museum for half a million, that’s just too bad. Tough s**t and all that. You don’t like it, change the laws or sue, but good luck with that if you can’t afford the lobbyists and lawyers that Disney can.

    This is the way it works in this “everything is product” capitalist society. Grow up and get used to it.

    On the other hand, if the act of intellectual creation is something other than the creation of “property” (a position, btw, that’s far older than the property paradigm), then there’s really only two arguments one can make:

    First, that all intellectual creation (literature, music, the duplication of paintings or archetecture, etc., as opposed to the physical medium itself) is an act that cannot be separated from the culture in which is was created and is therefore unable to be “owned,” per se, and is public domain upon creation. This was the prevailing position in Western culture until the invention of the printing press. Most contemporary creators, I suspect, would find this position abhorrent.

    Or, second, that creation is an act that cannot be separated from the creator(s), and decisions as to the use of that creation cannot be transferred exclusively to another party. Only the creator can decide how and by whom the creation can be exploited. And until very recently, an uneasy (and some say untenable) marriage of these two were codified in most copyright and patent law–if intellectual creation is in pubic domain yet can be exploited in the sale of books, shouldn’t the creator in some way reap the benefit of exploitation? Thus came the idea of “copyright” on a time-limited basis, after which time the creation again became public domain. Note that: the idea of intellectual creation as something that could be “owned” was a rather late development.

    The commoditization of intellectual creation, however, has made both these positions, shall we say, quaint. “Creators’ rights” is only even a concept if the commodity owner thinks it’s profitable for such a thing to exist.

    As it should be in a capitalist economy.

    This blog is all about product–the last two week’s output here was about nothing else but product–and the vast majority of contributors see intellectual creation as nothing but the creation of product, so I just have to laugh when commentators come here to boo-hoo about a win in court by a product owner. This place is about industry, not creation.

    Like I said, I don’t expect most contributors of this blog, being saddled with a commodity mindset, to understand any of this, but, hey, I gave it a shot.

    Creators get “rights” only when they think of their creations as a part of themselves rather than as a commodity to be bought and sold. Unless you change your mindset, untll you change the paradigm in which you create, you’ll get the same “rights” the skid row bum gets when he sells his blood to a blood bank. You get a cookie and some orange juice.

    Maybe. If you’re good.

    (For more insight on the history of the idea of intellectual property, see “Piracy: The Intellectual Property Wars from Gutenberg to Gates” by Adrian Johns)

  26. ” On page five of the ruling she says, Marvel’s motion stands or falls on his (Lee’s) testimony.”

    That’s like asking Jeffry Dahmer to be honest about where the hamburgers came from.

  27. If you read the judge’s ruling it’s clear she accepts all of Lee’s mythology.
    She even parrots Lee’s Origin of Marvel Comics nonsense about the birth of “The Marvel Method.” Lee has long painted himself as coming up with the method out of his selfless concern with seeing to it the artists could earn a living. As Lee explains it he wasn’t able to generate scripts fast enough to keep pace with the artists so he generously allowed them to work from his outlines. Isn’t it obvious to anyone how laughable that is? Lee claims the method was designed to help the artists. He even has the gall to describe the method as “giving” the artists creative freedom. See the contradiction? Work which Lee doesn’t have time for is “given” to the artists, while Lee takes the full writing page rate.
    What came out in Lee’s deposition was he was paid a freelance page rate for writing on top of his salary for editing. Lee’s obvious motivation wasn’t to help the artists, it was to line his own pocket at the expense of the artists.
    It boils down to Lee stealing the whole writers page rate from Kirby in the 60’s. I doubt Lee was very concerned about credit in 1961, no the reason he wouldn’t credit Kirby as a writer in 1961 was because it would have cut into Lee’s writing page rate if Kirby had been credited with the stories. Everything that has happened since is based on that early theft. You could say Lee painted himself into a gold plated corner.

  28. In the excerpts I’ve read, Stan Lee could not even remember who were in the Avengers. He sounds like he’s having a hard time remembering how he has been coached to answer and that is with the lawyers baby feeding him the questions. He’s either an old man with a failing memory or a liar. Maybe both. Either way, I’d put absolutely no faith in his testimony. I love Stan like an uncle but.. well, my Grandmother is the same age. I would not trust her to tell me what we had for lunch. Sorry.

  29. Maybe Jeff could comment on how common it is for a judge to give so much weight to the testimony of a first hand account witness when there are no other living witnesses? She says Marvel’s motion “stands or falls on Lee’s testimony.”
    Lee is 87, what if he like Kirby had passed away, if Lee’s testimony was so important that it was holding up Marvel’s case then what would the judge have weighed without Lee?
    The judge goes through the creation of the characters, and simply repeats Lee’s claims as if they are fact.
    Lee’s absurd description of the Marvel Method as something he came up with to better serve the artists is swallowed whole hog. She parrots Lee’s description of the Marvel Method in the same exact way comic book fans have been doing since Lee began pushing it in his self-serving origins books.
    Lee harmed his own credibility during his deposition in an instance described by Toberoff in a letter to the judge.
    Including this new (3/28) comment to the judge by Toberoff. This wasn’t an instance of Lee’s famous poor memory, it seemed to indicate Lee was deliberative, and following legal counsel.

    Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I

    indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested

    a break even though the parties had just recently already taken a break. At this break, on

    my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently

    speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon

    resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which

    Lee immediately responded without any hesitation or reflection.”

    MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
    STAN LEE: Right.
    Q. Did Mr. Kirby get paid for those rejected pages?
    STAN LEE: Sure.
    Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
    STAN LEE: Any artists that drew anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw it, so I did pay them.

    Marvel paying for rejected pages is contradicted by Sinnott, Ayers, Colan, Steranko, and Adams, in new declarations of support filed by Toberoff, and other artists in past interviews have said they weren’t paid for rejected pages.
    The judge apparently gave no consideration to this patently false claim by Lee, seemingly made at the direction of Disney attorney James Quinn.

  30. Patrick, the judge’s reasoning doesn’t depend on a finding that Marvel paid for rejected pages. Actually, she says that they didn’t pay for rejected pages, but that it’s irrelevant. The reasoning is at pages 34-36 of the judgment. Key passages:

    “It is undisputed that Kirby was paid a fixed per-page fee for all work that Marvel published… The Kirby Heirs argue that Kirby bore the risk of his work’s profitability because Marvel was not legally obligated to purchase all the work that Kirby submitted, and on occasion rejected Kirby’s work or asked him to revise it. They also assert that Kirby was not paid any ‘turn down fee’ or any extra amount if he was required to revise a drawing, and contend that this, too, shows that he bore the risk that his work would not be acceptable to Marvel… The Kirby Heirs’ argument has been made before and it has been roundly rejected… [T]he evidence that the works were created at Marvel’s instance is so overwhelming that its failure to pay Kirby a turn-down fee is effectively irrelevant.”

  31. Paul, I’ve read the ruling, I’m just pointing out one instance where Lee gave an obviously false statement with what looks like careful deliberation.
    As I said, I’m not sure how typical it is for a judge to rely so heavily (“stands or falls”) on the testimony of a central witness when that witness is the last man standing.

  32. This was a motion for summary judgment, so the test was whether Marvel won on the “undisputed facts”. The judge hasn’t decided that she believes Lee, so much as that his evidence on the key points hasn’t even been challenged in any way that counts.

    As the judge explains on page 24, “General attacks on Lee’s honesty and credibility, without more, are insufficient to raise a genuine issue of fact.” (I’d hazard a guess that any relevant challenge to Lee’s evidence on the key facts might have vanished when the expert reports were excluded.)

    When she says that the motion stands or falls on Lee’s testimony, I assume what she means is that it stands or falls on whether Marvel are entitled to rely on it as undisputed fact.

  33. I don’t disagree, if Lee had said Kirby created characters and plots which he brought to Lee as opposed to Lee saying he alone created the basic characters and plots that would have been a very different set of “facts.”

  34. Thanks, Patrick. I’ll try again. It looked like my Mac was doing it automatically and finished, but I’m still getting used to the Mac after years on PC. ‘Preciate the tip!

  35. I think Stan is getting mixed up between unused and rejected pages. For example, if Stan asked an artist to draw a 10 page story and subsequently the story was never printed, the artist got paid. (That’s why Stan once had a cupboard full of inventory material, which had been bought but never published.) However, if Stan asked the artist to redraw one of the pages because he wasn’t satisfied with it for some reason, the artist would be paid for the redrawn page (as part of the 10 page package), but not for the rejected page that was never used.

    However, as a lot of these rejected pages have since been published in the Masterworks and Omnibus editions, one would hope that the artists or their estates were compensated.