Important, and saddening, also enraging, news: The US Court of Appeals for the Second Circuit has just issued a decision (dated today, August 8) reaffirming Marvel’s legal victory in the case of Marvel v. Kirby and rejecting the Kirby family’s appeal.
The text of the judgment, available here, declares that the original ruling against the Kirbys (rendered in July 2011 by the US District Court for the Southern District of New York) should stand because “the district court correctly determined that the works at issue [i.e. Jack Kirby’s pioneering works for Marvel] were ‘made for fire’ under section 304(c)” of the Copyright Act of 1976.
I profess to no expertise in matters of law, but my opinion and my feelings on this issue, as stated on this blog, remain constant and intense, and my determination to boycott Marvel comics, films, and other products remains firm.
Here is the basic, bare-knuckle truth, not to be parsed out of existence by legal hair-splitting or the revisionist application of a law that postdates the works at issue: there is nothing in work-for-hire law that can account adequately for the facts of Jack Kirby’s foundational, indispensable, and still generative contributions to Marvel. The legal umbrella of work-for-hire is baldly, tragically, inadequate to the circumstances of Kirby’s work and of Marvel’s rise, and fundamentally inadequate to the imaginative gift that Kirby—none more so than Kirby, none more prodigally, more heroically, more inspiringly than Kirby—gave to Marvel. To call this gift work-for-hire is a basic insult, and blurs the truth of Marvel’s rise, enshrining company myth in the public record at the expense of historiographical accuracy and plain justice.
This is a sad, damaging, and infuriating decision. Work-for-hire law cannot begin to understand, to describe, the wealth of material that Jack Kirby brought to Marvel: the raw material of a story-world, a universe.
Go read the decision. And if you care at all about comics, hang your head.
HAND OF FIRE 
So if it’s not work for hire, what is it LEGALLY?
Well, the case as argued by the Kirbys’ attorney (Marc Toberoff) states that Kirby generated ideas for characters on spec and then offered them to Marvel, via Stan Lee. In other words, the argument hinges on the fact that Kirby generally worked alone, at home, not in the Marvel offices or fabled “bullpen”; that he generated ideas and characters on his own initiative, rather than doing work to order. By that measure, Kirby’s work would not have been work for hire. So far the courts have twice refused that argument.
In any case, my larger point is that there is no legal framework adequate to describe the way in which Kirby worked at Marvel, or the ways in which the Marvel Universe of characters was born. Clearly Kirby was not working alone, yet just as clearly he was not simply fulfilling a mission brief laid out by Stan Lee. The artifactual evidence (and indeed Lee’s own past testimony) very clearly show that Lee was not primarily responsible for crafting the plots of the comics that bore his name as “writer.” He trusted and expected, indeed came to demand, that cartoonists came up with their own plots. Since the essence of a comic book superhero typically resides in the character’s visual design and in plot, and since Kirby so obviously provided these, I believe that what he was doing cannot fairly be described as work for hire, not in any morally or intellectually compelling sense.
It is incredible that the artists fell for Stan Lee’s scam, that they went along with the idea that they would generate stories in nearly complete form, for Lee to just put a gloss of copywriting gloss over but then take full writer’s credit and pay for. It is to Stan Lee’s shame that he not only did took that overcredit and overpay but then also did not protect the artists who did him this great favor, either with Martin Goodman or later with the various corporate owners of Marvel. The final seal of Stan Lee’s corruption is that he got his own settlement of millions but then had the lack of character to go in front of a judge and reverse his own previous statements on the record about his “collaborators”, while negating depositions made by artists who had worked Marvel method (including Gene Colan in one of his final acts on this world, and Dick Ayers) in so doing destroy any chance Jack Kirby’s family had of getting any portion of the profits from Kirby’s work. That is how Lee showed his utter disregard for anything but himself and if there is any justice, that betrayal is what history will remember him for in the long term.