Certainly that aspect of the debate is rarely discussed.  You don't see any creators returning money they were paid on failed projects or the companies suing creators to get back money they lost.  

Even today, creators are knocking down Marvel and DC's door to do work for hire, despite plenty of places where they coudl do fully creator-owned work.  But few creators have the risk tolerence to work for free with a bigger slice of the backend. 

At least in Kirby's day, creators can claim at least one level of ignorance in that probably few, if any, people expected these characters to have the longevity and long-term profitability that resulted. 

Goodman had probably nothing to do with the creation process itself which is what's being discussed.

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You've never heard how the Fantastic Four came about, have you?

••

There are so many layers to this. For most of their publishing history, American comics have been viewed as the great unwashed of the Fourth Estate -- the junkyard to which artists migrated who were not "good enough" to make it in the strips.

Occasionally there were brief flurries of notice, attention paid, even praise offered, for work produced in the comicbook format, but more often than not such praise would manage to find a way to express itself as being DESPITE the fact that the object of interest was published in comicbook form. MAUS was a typical example. Reviewers seemed to fall all over themselves praising it, while being amazed that something GOOD could come out of a "comic book".

This is why the term "graphic novel", wrongly applied, has been so widely embraced, of course. One does not have to read "comic books" any more. One can read "graphic novels" -- and heaven help the poor soul who dares point out that "graphic novels" are, after all, just expensive comic books.

Being the bottom of the pile hasn't been much affected by the sudden interest Hollywood is showing in comics, either. Far to many comicbook movies -- especially the superhero variety -- strain mightily to disguise or escape their source. Director's harp on the need for "realism", eschewing the many staples of the form. It's not a little depressing that, when people ask me which comics I have worked on, I can now say FANTASTIC FOUR and X-MEN and expect them to recognize the titles, not because of any attention being paid to the comics, but because of movies that themselves strayed far from the source material.

The legend persists of Jerry Seigel and Joe Shuster being innocent farmboys from Ohio who were ripped off by the Giant Faceless Corporation when they created Superman. No room in the legend for all the newspaper syndicates who had rejected the pitch, or that Seigel and Shuster had been in the business several years when they made the deal that "lost" Superman. Nor is it noted how carelessly National Periodicals treated their new character, not even featuring him on the cover of ACTION COMICS again, after the first issue, until six issues after his debut, and not making him the regular cover feature for almost two years!

It's very true that comics were not perceived as places where great success stories would be generated -- and, perversely, it's also true that for characters like Superman, or Spider-Man, much of the money-making has been OUTSIDE the comics. Even successful movies and TV shows have rarely impacted upon actual comicbook sales.

Work-for-hire sucked, but it didn't exist so the Huge Faceless Corporations could latch on to those big mountains of cash all for themselves. It existed because comics were, at best, a barely break even proposition, with huge amounts of spoilage and undistributed and returned issues. The Publishers cut every corner they could to squeeze that dime cover price within an inch of its life. Low page rates and work-for-hire deals were standard operating procedure.

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You've never heard how the Fantastic Four came about, have you?

••

One of my favorite stories!

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Is there any truth to the idea that many comic book writers and artists
of that era up until the mid-70s or so, viewed comics as a stepping
stone or just a temporary gig until they got a job in Hollywood and
really didn't care all that much about the comics themselves? (And
thus not too concern about long term profitability or fame.)

I didn't think the Kirby estate had a case at first.

However, when there was testimony that after the "plot discussions", Kirby would still be coming in with several pages worth of storylines that Lee would reject and not pay for, repeatedly, I could see the loophole the lawyers were relying on.

If Lee didn't pay for pages that were rejected not because of quality but because he didn't want to use the storyline, but didn't correct miscommunication, then he was relying on Kirby to initiate work and submit it on spec.

If Marvel assigned the work to Kirby as work-for-hire, then barring a quality issue, a standards and practices (i.e.  comics code) issue or deviation from an assigned plot that could be produced and compared to the finished work, Kirby should have been paid for that work, even though it was scrapped.

The fact that he wasn't, is at the very least ethically dubious, and at most, as the Kirby estate seems to argue, it might undermine the issue of work-for-hire, as that requires the company to accept certain financial risks and losses.

However, as the judge pointed out, Stan Lee offered first hand testimony as to his dealings with Kirby, and since the case essentially revolves around business dealings and plotting sessions  that happened between Stan and Jack behind closed doors without a paper trail, the only way to challenge that would be through Jack Kirby's testimony.

Essentially that's what the judge wrote: That this case could only be potentially viable if Jack Kirby was still alive and able to testify so that a jury would have the opportunity to determine who was more credible, Stan or Jack.

One interesting wrinkle is that in "The Comic Book Makers", Joe Simon (as part of the Simon and Kirby partnership) tells of being savvy enough to negotiate a profit participation deal for Captain America that Martin Goodman then got around by dumping the company's overhead for work on other books into the debit column of Captain America's budget so that it technically didn't turn a profit at all.

Given that, and Kirby's other business experiences, it is unlikely that he had any expectations at all of receiving anything other than a flat page rate from Martin Goodman's Marvel, whether he was entitled to more or not.

There would have been no point to holding out for a better deal because if he got one, there'd probably be a loophole to screw him over.

Creators' rights really became an issue when it was possible for writers and artists to use their reputation, their talent and their fanbase as leverage to get paid more. Like the movie industry did over half a century before.

There are things writers and artists could have done before (and some even tried to do), like setting up a guild or union of sorts for people who made comics. But that only works when the unionized talent pool is functionally irreplacable.

There are lots of "grunts", technicians and small scale inventors all over the world who have been screwed royally by the presumptions of work-for-hire, but that is possibly a problem with the legislation. The application of work-for-hire rules may often be correct but still land on the wrong side of what we may deem to be norally or ethically correct.

Should Jack Kirby and other old-time creators (and their estates) receive a fair royalty for their creations? Certainly. But you can't get there through the courtroom because the courts do not deal in morality or ethics. They deal in laws.

For "fairness" for the old-timers, collective action needs to be taken by readers and/or creators to set up rules for compensation acceptable to both parties. But for that, expectations would have to be modest. Comics are currently not that far above break-even, unless one counts film/tv properties. And tracking storylines and incidental characters to split a modest portion of the net on a few dozen creators is a logistical nightmare.

••

Hmm. Let's take a look at this, shall we?

Stan described sending a written plot to Jack for the first issue of FANTASTIC FOUR. Roger Stern, when an editor in the Marvel offices, actually found a copy of that plot.

So -- are you suggesting Stan manufactured a plot after the fact, replete with typos? Or that Roger did?

Next, Stan described a process by which the character of Spider-Man AS WE KNOW HIM TODAY came to be created. Steve Ditko has backed up Stan's version, and STRONGLY contradicted Kirby's.

Are Lee and Ditko in collusion on this? Is it all a great conspiracy?

Or are you just working WAY TOO HARD at missing the important points?