A court case that may decide the future of comics

[tomBitonti]

To the point where, generally speaking, you give the designer a need, and they spit out a design, and (perhaps with a few edits) you almost always buy it. You ask very regularly, and you almost always take their offerings. When this becomes nearly automatic, and is over long periods of time, it looks more like a regular employment relationship, and less like an occasional contract.

And that definitely looks very close to an employment relationship. However, I'm seeing a possible issue:

Neither party is bound to follow through in repeat of prior conclusions: Kirby could decline to produce, or ask for a different amount; Marvel could reject an offering, or change the payment schedule.

Every week re-affirms the provisional nature of the dealing: *If* Kirby's product meets Marvel's conditions, *then* Marvel will buy it.

I'm thinking that Marvel (or perhaps Kirby, or perhaps both) choosing to remain non-committal acts against Marvel's stance for this case.

Thx!

TOmB

 

[Umbran]

I'm thinking that Marvel (or perhaps Kirby, or perhaps both) choosing to remain non-committal acts against Marvel's stance for this case.

Eh. That's a bit of sophistry, though. The lack of a choice to commit is not necessarily a choice to not commit.

The "proof is in the pudding" point being, no matter that they *could* have done something else, they *didn't*. It seems like they acted as if they were bound together, even if it wasn't formalized. Sounds like common-law marriage. Not committed on paper, but committed nonetheless.

Also, we have to keep the time period in consideration here. These days, we are very, very careful with the contractor/part time/full time employee statuses, because they have great meaning with respect to benefits and such. Back in the 50s, that wasn't such an issue. What it looks like through today's eyes is not necessarily what it looked like at the time - and that speaks more to the intent and understanding between them.

 

[tomBitonti]

Eh. That's a bit of sophistry, though. The lack of a choice to commit is not necessarily a choice to not commit.

The "proof is in the pudding" point being, no matter that they *could* have done something else, they *didn't*. It seems like they acted as if they were bound together, even if it wasn't formalized. Sounds like common-law marriage. Not committed on paper, but committed nonetheless.

Also, we have to keep the time period in consideration here. These days, we are very, very careful with the contractor/part time/full time employee statuses, because they have great meaning with respect to benefits and such. Back in the 50s, that wasn't such an issue. What it looks like through today's eyes is not necessarily what it looked like at the time - and that speaks more to the intent and understanding between them.

Common law marriage, as it turns out, is not a great analogy. I did a little research yesterday about thinking that it might be a good example, and it differs in that:

*) The markers are more pronounced, the main being cohabitation and the couple expressing themselves as being married.
*) "Common law marriage" in common usage refers to a lot of different relationships, with the term itself legally associated with a very specific case.

What the case seems to eventually get to, as a legal question, of which side to assign rights to in a case which is ambiguous. That is informed by a couple of laws.

The brief is medium long-ish, with the appeal section not seeming very coherent, and the appeal court decision pretty well written, but still a lot to get through. There are a lot of issue to consider.

Thx!

TomB

 

[Umbran]

What the case seems to eventually get to, as a legal question, of which side to assign rights to in a case which is ambiguous.

Which is why I already said some pages up - I expect the court to not say anything that will invalidate "work for hire" as a concept. If the court finds for Kirby, it will be based on the particulars of the one case, and how Kirby and Marvel, in particular, interacted. I expect that the results of this case will imply little for other artists of that time period, and the only major precedent set may be that "work for hire" was complicated, and needs to be evaluate on a case-by-case basis.

So, no "decides the future of comics". Only "decides the future of Kirby's Marvel characters".

 

[tomBitonti]

Which is why I already said some pages up - I expect the court to not say anything that will invalidate "work for hire" as a concept. If the court finds for Kirby, it will be based on the particulars of the one case, and how Kirby and Marvel, in particular, interacted. I expect that the results of this case will imply little for other artists of that time period, and the only major precedent set may be that "work for hire" was complicated, and needs to be evaluate on a case-by-case basis.

So, no "decides the future of comics". Only "decides the future of Kirby's Marvel characters".

In that case I believe we are in agreement.

Thx!

TomB

 

[trappedslider]

Well it looks like it's been settled, no details as to what the settlement entails

http://www.hollywoodreporter.com/thr-esq/marvel-jack-kirby-estate-settlement-735921

Would have been interesting to see which way the SCOTUS ruled, considering the wider implications of such a ruling.