Stan turned it into standard operating procedure at Marvel, and we the readers benefited greatly. Compare early Marvel to DC books coming out at the same time. "Marvel Method" vs full script. The difference is quite remarkable.

But, the all important bottom line here is that artists who worked for Marvel knew this was how the books were done, and it was nothing new in the industry. It was also, unfortunately, nothing new to put the writer's name first in the credits (when credits came along), thru perpetuating the impression in the minds of most readers that the artists were just drawing what the writers told them to draw.

"Work for hire doesn’t mean you’re no longer subject to editing. "

I never said or implied that it was.

"So there could be a chance that Jack would turn in a sequence as part of that story that Stan felt didn’t convey the intended story properly.  Hence the page wasn’t acceptable."

You keep turning it back to situations I already covered.

For the comprehension impaired: If Stan Lee says, in a plotting session (and I'm using a fictitious example) : "Have the Hulk juggle elephants " and Lee gets the pages back and says "Why is the Hulk juggling elephants? That's silly, I'm not paying for those pages", then that is not an acceptable reason for not paying for those pages.

I specifically stated that quality, age-appropriateness and deviations from script were acceptable reasons for rejecting the work.

However, if Kirby was in fact submitting work that was as assigned (i.e. what he and Lee had agreed that the story would be) and Lee rejected it, not because it wasn't what he asked for, but because Lee changed his mind about the storyline after providing Kirby a plot, and failed to inform Kirby in a timely manner, then he had no legal right to refuse to pay for it.

"Acceptability" doesn't mean that an employer refuses to accept work willy nilly. There are standards and guidelines for determining the "acceptable" and "unacceptable" condition of a comissioned work.

The implications of the Kirby Estate in the published depositions was clearly that Kirby provided work as assigned, and it was still rejected.

The point the judge was making was that barring Kirby's direct testimony it was impossible to consider the issue.

Alternately, the suggestion was that Kirby submitted storylines and characters to Marvel, some of which were accepted, some of which were not. Making him an independent contractor who himself absorbed the cost of rejected story pages.

And again, that required testimony from Kirby.

The bottom line is that the Kirby estate and their lawyers felt that since Kirby was at times denied payment that he would have been entitled to if he submitted work-for-hire and was consistently subjected to an approval process where his work could be argued to be always produced "on spec" with him absorbing the financial burden of large batches of unbought work, Marvel itself (through Stan Lee as Marvels agent in this process) had "blurred the line" between copyright transfer and work-for-hire.

"Are we?  Not being snarky, I’ve never seen numbers. "

It is mentioned in the published depositions from the case. Larry Lieber testifies to one such instance of picking up 4-5  Kirby pages, an entire sub-plot that Lee had rejected and that had ended up in the trash, with Kirby not being paid for them. Allusions were made to it not being a unique occurrence.

Whether Kirby was compensated for this and why the pages were rejected would be a matter that, again, could only be introduced through Kirby's own testimony.

"It doesn’t sound like “a few lines on paper” would have helped.  It’s not like Stan would hire Jack to do a story with the FF vs. Tyrannus, forget and then reject the story because Jack didn't use the Mole Man. "

We don't know that. Both men were working very hard at the time and had notoriously unreliable memories. Again, that would have been a question that could only be introduced in court through Kirby's own testimony.

"The only way to avoid what we’re talking about would be detailed plots."

Or a simple one page plot summary listing the main subplots that would take up place. We're not talking details like costume details, camera angles or other stuff that could be fixed by the inker or with a simple paste-up. We're talking chunks making up nearly a quarter of a book.  

Now, there is a verdict that there is no case, and the judge makes a good point that in the absence of any solid physical evidence like a contract, they needed Kirby's point of view to proceed. And with Lee and Kirby being the only ones in the room, Stan Lee's direct testimony must be believed (in the eyes of the law) since Kirby is not alive to offer a contrary opinion.

This has nothing to do with what actually happened, it's just about what the judge can evaluate.

"If Lee expected Kirby to come up with storylines and sub-plots on his own, and submit the completed pages for approval before paying for them, then clearly the content of those pages were not at Lee's instigation and Kirby alone  absorbed the financial risk of producing those pages if that storyline was not used."

---

The Court accepted the evidence that Kirby wasn't paid for all of the pages, but followed prior precedent which said that financial risk is measured based on the entire project and it was undisputed that if the book failed, Marvel absorbed the risk of the failure.  I suspect how financial risk is measured is going to be a chief challenge on appeal, and probably the Estate's best chance of securing a reversal of the district court's decision.

He also described how Kirby then looked at the page, and set it to one side, saying it was good, "But Stan would never accept it."

If Kirby was, indeed, practicing this kind of "self-editing" -- and what respectable artist doesn't? -- it punches quite a hole in the idea that some kind of case can be made out of a handful of pages Lee actually DID reject, and that Kirby did not, therefore, get paid for. Clearly, as when I "reject" (and tear up) my own artwork, there is implicit in this the knowledge that not all the work produced will be profitable for the artist. To expect otherwise would be most unrealistic.

___

* I'm pretty sure it was Bill, but don't hold me to it. It must be at least 25 years since I read the piece.

"Stan turned it into standard operating procedure at Marvel, and we the readers benefited greatly. Compare early Marvel to DC books coming out at the same time. "Marvel Method" vs full script. The difference is quite remarkable."

I've long thought that the adoption of full-script as the seeming standard of the industry is one of those technical/process issues that no one really thinks about but are extraordinarily influential in how the end product turns out.

Mike 

••

Given the current crop of writers who insist on working full script, the "influence" is profoundly negative. Pages of talking head spring from keyboards, not drawingboards. And I have mentioned (many) times the number of scripts I have been given in recent years that contained scenes that were simply impossible to draw, containing as they did real movement (of characters or "camera") and/or multiple actions happening simultaneously.

It's all about comics wanting to be Hollywood in the worst way -- and accomplishing exactly that!

Two pages, twenty panels, one talking head.

You know what's even worse about those two pages?  They're a crappy rendition of a talking head scene.  Using movie terms, the camera is set too far back to let the audience see the character's face; the static one-shot goes on way too long; nothing the character says in the first half of her monologue has anything to do with the second half and vice versa; and the first two extended silences steal almost all of the impact away from the last two.

Mike

Comics used to be very much about giving the audience what they could not find in movies and on TV. Now, thanks to computer generated special effects, the lowest budget SyFy extravaganza can outstrip us for scope and magnitude. And what has been the reaction of most people working in comics today, it would seem?

To give up! To turn inwards. To resort to faux intellectual navel gazing, targeting an audience that would look at those two pages and, because they are so mind-numbingly BORING, would assume they must be SMART!

I pity the poor artist who was handed that script. Even tho he duplicated a few panels!