It'll be interesting when the copyright reversion for THE NEW GODS comes around. Those books were pretty clearly NOT work for hire - character designs were known to be around before Kirby went to DC.

The goodwill DC generated by letting Kirby "redesign" the characters for the SUPER POWERS toys (so he could get around the profit-participation cutoff) might make the family less inclined to try and take the characters back. But maybe not.

He was a Marvel employee. And that was how the game was played.

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But what if (I'm not saying that this is what actually happened) Kirby was the one who (allegedly) came up with most of the Marvel characters on his own and independently before and during his time at Marvel without the knowledge or input of Stan? Would that still qualify as work for hire? For example, some people strongly believe that the FF was all Kirby's idea because the team is very similar to the Challengers of the Unknown based solely on the background,personality's ,and similar team concept and structure.

And of course when Alan Moore denied Marvel permission to reprint his stories, they did the ethical thing and...

Reprinted the stories anyway. 

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Do you mean the Captain Britain omnibus ?

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That's the point on which the Siegel and Shuster case, turned. They had proof positive that Superman was a pre-existing character which they SOLD to National Periodicals.

There is no such evidence in the case of the Marvel characters. There ARE pre-existing characters Kirby worked on that RESEMBLE the Marvel characters, such as the infamous "Silver Spider" created with Joe Simon, but the Marvel versions are very different. And as I understand the Law, nullum simiie est idem - nothing similar is the same.

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The only thing Kirby's Spider-Man had in common with what was finally published was the name -- which Stan came up with. Kirby's version of the character was basically a recycling of the Fly, who was himself a recycling of the Silver Spider.

If the Kirby estate wants a piece of Spider-Man, they better be prepared to share whatever they get with Joe Simon.

There is no such evidence in the case of the Marvel characters. There ARE pre-existing characters Kirby worked on that RESEMBLE the Marvel characters, such as the infamous "Silver Spider" created with Joe Simon, but the Marvel versions are very different. And as I understand the Law, nullum simiie est idem - nothing similar is the same.

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That's a very good point JB.

By the same token, couldn't it also be said that there are pre-existing characters (in pulp and sci-fi novels, comics,and movies) that were NOT created by Kirby, but resemble characters that Kirby worked on before and after he started working for Marvel again? Could this be used against the Kirby heirs by saying that many of the MU characters, as well as most comic book characters in general (including characters Kirby worked on before he returned to Marvel that resemble the Marvel characters) have some resemblance to pre-existing characters from past comics,novels,and movies?

Brian,

Are you also against the generational transfer of wealth? Part of the rationale for Kirby's efforts to reclaim his art in the 1980s was to better provide for his children and grand-children. This effort by the heirs is a logical extension of that desire. Moreover, I'm certain there is a degree of emotional attachment to the characters as the kids grew up with dad/grandpa drawing them all the time and heard the stories around the dinner table about how he created this one and that one. I don't think it's unduly charitable to suggest the Kirby family sees these characters as a legacy.

Personally, I'm agnostic on this whole business. It will make little difference to my life if a large multinational corporation maintains exclusive control over these creations, or if that corporation has to share the wealth with a collection of individuals whom I've never met. Unlike the comics books, there's no heroes of villains in this exchange. It's simply business.