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  1. #61
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    Quote Originally Posted by KingsLeadHat View Post
    Are you not aware that Kirby's main concern was "providing for his family" and leaving them something after his demise?
    I am aware and simply don't care. He provided for them when he was alive. Providing for them after his death in this manner is just disingenuous. The job was done and the money was spent. Suing after the fact in order to double dip reeks of greed and sour grapes.

    As a comic fan, I appreciate Kirby's massive contribution. I just don't think that he deserved any more money. It sucks that Kirby couldn't do more to provide for his family post mortem, but he wasn't entitled to any more from Marvel. The courts ruled on this. TWICE.

    I think people are on the side of right when they shame, sue or otherwise cause a big stink to get these soulless corporations to do what they should have done in the first place.
    Oh! Cry me a river. Save that Robin Hood spiel. This is business. Kirby's motivation in this lawsuit was money, not flowers and puppies. The estate was out for a payday whether it was owed to them or not. Well, congratulations. They got one.

    That Kirby didn't get health insurance sucked. Sure. I agree. He could've gotten work elsewhere. That they didn't give him significant credit is as meaningless. They owned the IP, not him. They were entitled to the credit, not him. Legal? Sure. Fair? Probably not. Either way, he was a cog in the machine. He got paid. He took that pay. It doesn't get any simpler than that.

    The paradigm is different when art is involved. Sorry, it's not just a product. These creators aren't manual laborers or otherwise non-creative cogs in a vast machine; they are the reasons these companies have any worth and its high time they're treated as such.
    Oooh. Look who's all preachy, knowing it is what artists do or want. I am a working pro artist - digital variety. You're 100% right. We aren't just manual laborers or button jockeys. What we do takes time, effort, talent, and passion. Creating art is actual work and not everybody can do it.

    At the same time, passion doesn't pay the bills. I know. Believe me, I know. I've been creating art for 25 years, 21 of them professionally. I work with contracts all of the time. I negotiate my terms. I don't cry after the fact. Trust me. There are times, especially in my younger years, when I've accidentally screwed the pooch and valued my services wrong. I didn't cry after the fact though. A deal is a deal.

    Once again, I respect the work that Kirby did. I'm not taking anything away from it. The man was a master and genuine innovator. However, at the end of the day, he got what was owed long ago. This settlement is just gravy; a reward for crying until somebody paid them to just stop.

    Anyway... I'm just happy that this is all over. Everybody's out of everybody's hair. That's all that matters. I may not like the outcome, but whatever. It doesn't affect me. As I said, I have no vested interest in this out of court settlement. It just offends my business sensibilities and rubs me the wrong way. Oh, well. It's done. That's all I can say.

  2. #62
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    Quote Originally Posted by totalsellout View Post
    i was always under the impression marvel wanted to pay kirby more, but he had been so threatening of legal action that marvel lawyers wouldn't allow them to pay him or else he could use it as proof of being owed. shooter wrote some thing about this, he tried to give kirby a deal similar (but not as good ) as stan's but marvel legal wouldn't let him. i think if anything the heirs caved in on there demands and decided to take a check instead of continuously suing for ownership, which is what bit the shuster and seagle heirs in the ass.
    That's not how lawyers work. They would advise against doing something, but they cannot stop a client from doing something. The lawyers either convinced the EiC not to do it or they convinced the publisher to not allow the EiC to do it. But they had no power to stop someone from doing something.

  3. #63
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    So glad this has been resolved amicably. Whilst I think the Kirby heirs claims were a little too OTT, it did Marvel absolutely no favours either by appearing to not want to look after the family of the man who created and co-created so much for them.

    Hopefully the Kirby heirs will now share in Marvel's continued success.

  4. #64

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    I am aware and simply don't care. He provided for them when he was alive. Providing for them after his death in this manner is just disingenuous. The job was done and the money was spent. Suing after the fact in order to double dip reeks of greed and sour grapes.
    There is nothing disingenuous or greedy about what Kirby wanted and what his family wanted and eventually got. So it's wrong to get tough or play the same game with a greed-based, unethical, immoral system like that which exists in corporate America? Man, I'm glad you're not in charge of cultural evolution! Sorry, I myself simply don't care about Marvel's contracts, or the law, when it's corrupt and hollow at the center. Works both ways.

    I do admire your honest about not caring about how the corporate world treats the creative minds that fuels its massive profits. That's fine and that's your right. But you're going to have to excuse yourself from any progressive discussion regarding justice, ethics, etc. You simply don't have the passion for it.

    As a comic fan, I appreciate Kirby's massive contribution. I just don't think that he deserved any more money. It sucks that Kirby couldn't do more to provide for his family post mortem, but he wasn't entitled to any more from Marvel. The courts ruled on this. TWICE.
    Who cares what you think or the court thinks about right and wrong? It might be "the law" but it doesn't have a damn thing to do with justice. It sucks that Kirby couldn't do more, yeah, because immoral business practices, and sympathizers like you, were in the way of him doing more.


    Oh! Cry me a river. Save that Robin Hood spiel. This is business. Kirby's motivation in this lawsuit was money, not flowers and puppies. The estate was out for a payday whether it was owed to them or not. Well, congratulations. They got one.
    Please spare ME the theatrics. "This is business" is code for "I can rape your wife and eat your kids if you sign the dotted line!" and you know it. This is the mentality that you're defending, pal. (Yes, that was hyperbole. Relax.) The estate was out for a payday that they SHOULD have gotten if Kirby was compensated as virtually all creators are today. This, of course, only came about because of the trials and tribulations, in part, of Kirby's example. They got one and they deserve it. Let's not be coy. Marvel has always been nervous about giving Kirby his due because he was so much more creative than any other "employee" that they've had.


    That Kirby didn't get health insurance sucked. Sure. I agree. He could've gotten work elsewhere. That they didn't give him significant credit is as meaningless. They owned the IP, not him. They were entitled to the credit, not him. Legal? Sure. Fair? Probably not. Either way, he was a cog in the machine. He got paid. He took that pay. It doesn't get any simpler than that.
    Don't care about legal. I care about fair. If we can possibly change fair to legal, retroactively, we have the moral and ethical obligation to do so.


    Oooh. Look who's all preachy, knowing it is what artists do or want. I am a working pro artist - digital variety. You're 100% right. We aren't just manual laborers or button jockeys. What we do takes time, effort, talent, and passion. Creating art is actual work and not everybody can do it.
    So you agree with my point but still feel snarky about it?

    At the same time, passion doesn't pay the bills. I know. Believe me, I know. I've been creating art for 25 years, 21 of them professionally. I work with contracts all of the time. I negotiate my terms. I don't cry after the fact. Trust me. There are times, especially in my younger years, when I've accidentally screwed the pooch and valued my services wrong. I didn't cry after the fact though. A deal is a deal.
    Right. If you choose to work in such a climate, you have to follow the rules. We all do. But we still need things to happen to change a climate that doesn't balance fairness and the value of the creator. We all do what we have to do to survive, but this shouldn't put up a veil to obscure the unethical behavior of our corporate overlord's. This is my point. Yeah, it's tough not focusing on self-interest and short-term goals, particularly in a capitalist society, but some people actually have the ability to do so. It seems to me that even certain creators are irritated by the fact that some people take a higher stand in terms of what's right and wrong and aren't resigned to going with the flow.

    Once again, I respect the work that Kirby did. I'm not taking anything away from it. The man was a master and genuine innovator. However, at the end of the day, he got what was owed long ago. This settlement is just gravy; a reward for crying until somebody paid them to just stop.
    How in the world can you honestly feel that Kirby got what he was owned when far less creative and prodigious creators get royalties today? If you have the power to correct a wrong, you should do it. Do you not see that the very fact that Marvel and DC eventually caved to paying royalties at all was an admission that their practices were unjust, whether or not the salient reason, from their point of view, was bad-press?


    Anyway... I'm just happy that this is all over. Everybody's out of everybody's hair. That's all that matters. I may not like the outcome, but whatever. It doesn't affect me. As I said, I have no vested interest in this out of court settlement. It just offends my business sensibilities and rubs me the wrong way. Oh, well. It's done. That's all I can say.
    Ah, there it is. "Offends my business sensibilities." The problem with this is that the American notion of "business sensibilities" has almost nothing to do with justice, ethics and morality. (Sorry to beat that drum again.) Let's be honest -- that all comes down to making as much money as possible, gaining as much "stuff" as possible, as you possibly can before you die. The totality of life, right?
    Last edited by KingsLeadHat; 09-27-2014 at 03:58 AM.

  5. #65
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    Quote Originally Posted by The Bobster View Post
    The story goes - Marvel Publisher Martin Goodman had promised Kirby more money and credit, but when Goodman sold the company to Cadence Industries no raise was forthcoming (Stan Lee signed a new contract with Marvel before the sale, probably at Cadence Industries insistence). Kirby then decided to quit and eventually went to National Comics (DC) where he was given more money and more creative control.

    Unfortunately his new titles (New Gods, Mister Miracle, Jimmy Olsen and The Forever People originally and then The Demon, Kamandi, OMAC, The Loser, Kobra, and Sandman) never caught on like the Lee/Kirby Marvel titles did and he eventually parted ways with National and returned to Marvel for a couple of years in the mid-'70s (working on titles like 2001: A Space Odyssey, Black Panther, Captain America, Machine Man, the Eternals and Devil Dinosaur). In 1979 Kirby left Marvel again to design characters for Hanna-Barbera.
    It was actually Ruby-spears, not Hanna Barbera. He worked on Thundarr the Barbarian for that animation house.

  6. #66
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    Quote Originally Posted by JohnLynch View Post
    Wasn't Stan Lee related to the publisher and made sure his work (and only his work) wasn't considered work for hire?
    Stan Lee was full employee of Marvel, so his the ownership of his 'creations' (which, really, amounted to what?) were never in question. He got a huge payday, while the true creators were left in the cold.

  7. #67
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    Quote Originally Posted by Sighphi View Post
    It would be awesome cause then Marvel would have to use imagination instead of repeating the same stories over and over.
    It would be awesome if Marvel and DC allowed creators to own the stories they create. Then you would see some innovation, perhaps.

  8. #68
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    Quote Originally Posted by Darrell D. View Post
    Then you would see some innovation, perhaps.
    No you wouldnt. Look at all the indie comics. Vast majority are generic rip offs of other, bigger characters.

  9. #69
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    Quote Originally Posted by Darrell D. View Post
    Stan Lee was full employee of Marvel, so his the ownership of his 'creations' (which, really, amounted to what?) were never in question. He got a huge payday, while the true creators were left in the cold.
    Jack Kirby made his own choices, like cashing in his checks and leaving Marvel to work for DC. Stan stayed at Marvel and helped the company flourish. If Jack had stayed at Marvel he may gotten a better deal overtime but he didn't stay.

  10. #70
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    I'm not even going to quote you all, cookepuss, Trevel8182 and others.

    The fact is the law changed AFTER Kirby created these characters. Copyright law changed in 1976, mostly to the benefit of large corporations like Disney and Marvel. The same law enacted in 1976 also gives creators the chance to get their work back and to sell the rights -- reassign the rights -- again.

    All Kirby had to do was show he didn't do the work under a work-for-hire arrangement. In the absence of physical contracts -- there were none before 1972 -- it's one word against another, and there's a lot of evidence to show Kirby wasn't doing this as work for hire, as well as evidence in the opposite direction.

    So, Marvel-Disney settled. They cried uncle here. The law worked as intended. The corporation has bought the rights to the characters and creations it wanted and Kirby's estate benefited, as it should have all along.

    I am sure, given Stan's settlement and Joe Simon's settlement, and also due to the tone of the joint statement, that Kirby's estate was given at least as much as Stan. $10 million or more sounds right; I'd bet it was tens of millions. That's significant to my mind -- that's a lot of dough! -- maybe not to Disney's bottom line, but surely it was significant to Kirby's family.

    I still don't understand the negativity about this from fans. Kirby created a lot of stories we all love. Isn't it nice to see the laws work as intended and for Jack's family to get some justice, at long last?

    As a fan, I feel great knowing I can enjoy a lot of Marvel books and movies guilt-free, finally! We're all winners here due to this settlement.
    Last edited by Brian B; 09-27-2014 at 06:15 AM.

  11. #71
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    I'm just glad it's finally settled so that tax payers don't have to pay for any more of this nonsense in court.

  12. #72
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    Quote Originally Posted by Trevel8182 View Post
    Jack Kirby made his own choices, like cashing in his checks and leaving Marvel to work for DC. Stan stayed at Marvel and helped the company flourish. If Jack had stayed at Marvel he may gotten a better deal overtime but he didn't stay.
    Stan Lee was related to the owner and got sweetheart deals that no-one else ever got.

  13. #73
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    The amount of misinformation presented in this thread is staggering.

    Especially when, say, Cookepuss spouts utter nonsense, and then several people tell him that legally, he's absolutely right, when he hasn't even got the first step right. Brian B. has it closest to right.

    This wretched, insulting narrative that Kirby's heirs up and sued Marvel because they smelled money so they ignored the deals their father had made to stick up the poor victimized company is wholly inaccurate. To start with, the Kirby Estate didn't sue Marvel. Marvel sued the Kirby Estate.

    As Brian noted, Congress changed copyright law in the mid-70s, and in doing so, they gave a huge gift to corporations: They made copyright last years longer.

    So when the Fantastic Four were created, under the law, Marvel only expected to own them for a maximum of 56 years, since that was the maximum length of copyright at the time. At the end of that period, the FF would go into the public domain.

    So when Congress changed the law, they knew they were giving copyright buyers something extremely valuable -- many more years of copyright ownership -- and they balanced it out by giving copyright sellers some new rights, too. They gave them the right to terminate any copyright assignment (i.e., sale of rights) during a particular set period of time. They couldn't do it before that time, and if they waited to long, they couldn't do it after that time. But they had a window during which they could reclaim rights.

    The reasoning on that is pretty simple -- they figured that if someone like, say, Jack Kirby sold Marvel all rights to a new creation, then both sides knew that the term of sale was 56 years. After that, Marvel wouldn't own the thing any more; it'd be in the public domain like the Wizard of Oz and Frankenstein.

    So if Congress was saying that sale was actually going to be for much longer (95 years, I believe), then the buyer was getting a much better deal, and the seller should get a chance to get a better deal too. So Congress allows the creator to revert the sale, thus being able to make more money off of the extended copyright period.

    Companies get something, creators get something. The law benefits both of them.

    So what happened wasn't that the Kirby family sued Marvel just because they one day decided to up and want more money. They didn't even sue. What they did was file for termination of copyright assignment -- the very thing that the law allows creators to do. They didn't do this against the wishes of Kirby himself -- Kirby had been all for doing it, ever since the law had been changed. But they had to wait a certain amount of time, and Kirby didn't live long enough to see it happen. But he was always on board with it.

    So: Kirbys didn't sue. Kirbys didn't decide that Marvel had suddenly become rich so let's bleed 'em. Kirbys followed the law -- a law that Marvel benefits hugely from, but which gives benefits to creators, too.

    People complain that it's unfair for creators to use the part of the law that benefits them, but rarely complain that publishers get to use the part that benefits them. But fair's fair -- observe either the whole law, or none of it.

    So the Kirbys filed (note: They did not sue), as they were legally entitled to, and in accord with Jack's wishes.

    And then Marvel sued them, to stop them from reverting those copyrights.

    So the lawsuits started with Marvel suing the Kirbys, not the other way around.

    At that point, what they had was a legal argument: The Kirbys were saying Kirby had sold the rights to his work to Marvel, and could therefore, under the law, revert it. Marvel said Kirby was a work-for-hire employee, and therefore had never owned the rights at all, and thus couldn't revert the rights.

    That's the crux of this case. It's not about whether Kirby knew Marvel got all rights -- both work-for-hire and an all-rights-sale would give Marvel all rights anyway. It's about whether Kirby owned the rights and sold them, or whether he was just an employee, and Marvel owned all his ideas before they even came out of the pencil.

    This is key: An all-rights sale says I own this thing and I sell all the rights to you. Hey, wanna buy a picture? I own it and have the right to sell it to you. I can sell you all publishing rights, and if you want to make a movie of it, go ahead. That's an all-rights sale.

    But a work-for-hire deal says you're hiring me to draw that picture, which means I never own it, and am not actually selling you the rights, because you already own them. I'm just employed to make a drawing for you, but it was always your drawing, never ever my property.

    The distinction between those two is crucial: An all-rights sale can be reverted, because there was a rights transfer to revert. A work-for-hire deal can't.

    But knowing which is which isn't all that simple. If I write a POWER MAN & IRON FIST script, and show it to Marvel, and they say they want to buy it, then that's not work-for-hire, because I created it before they saw it, and thus they can't possibly have hired me on a WFH basis. This means that POWER MAN/IRON FIST #90 is not a work-for-hire, because that's how that particular issue happened. Marvel and I have signed a contract that pretends otherwise, but legally it's impossible for it to be work-for-hire.

    These days, companies are careful (or try to be) about the legalities -- they want contracts signed before work commences, or else it isn't work for hire. The reason none of George Perez's JLA/AVENGERS commissions were in the book collection is that because he did them as commissions for fans and not under a Marvel or DC contract, then they can't be called work for hire and DC didn't want to publish them under non-wfh terms. It's a narrow distinction, but it's a hugely important one.

    So don't listen to anyone who tries to tell you that IP contracts are like agreeing to walk someone's dog, or that if you sell a pizza you can't get royalties years later. Copyright isn't dog-walking and it's not pizza. It's governed by a whole different set of laws, so all those analogies are bad ones.

    There's a legitimate argument to be made on both sides -- and it's one that's especially hard to get real evidence on because Marvel can't produce any paperwork from those days, there often was none, and most of the people around then are dead. Those few who aren't, like Stan and his brother, are perhaps a bit biased, and Stan's famous for having a terrible memory besides.

    Most of this boils down to what counts as work-for-hire employment. Most measures of that, in the past, would have regarded Kirby as an independent contractor, because he worked at home, bought his own supplies, didn't get a salary or vacation pay or health care, and that if he did work that Marvel didn't want to publish, he didn't get paid for it.*

    *This last bit is disputed; Stan says Kirby got paid for everything, but has no paperwork to prove it and since Kirby was able to sell stuff he submitted to Marvel to other publishers without Marvel complaining about it, it would seem that both he and Marvel considered it his property, and not a work for hire that he never had rights to at all.

    So Marvel's argument is that everybody knew it was work for hire, and because Marvel assigned Kirby work and paid him whether the work was accepted or not, then that makes it work for hire. The Kirby Estate's argument is that no, everybody didn't know it was work for hire, and because Kirby made up stuff on his own and didn't get paid for rejected work, he was an independent contractor making an all-rights sale, which is now revertible under the law.

    [The argument that "everybody knew" it was work for hire is a particularly bad one, to my mind, because the term "work for hire" wasn't commonly used back then, and there was no practical difference between an all-rights sale and a work-for-hire deal back then anyway; it wasn't until they changed the law so that one is revertible and the other isn't that they gained a practical distinction. So how would anyone (much less everyone) know, back then, that there was this key distinction that didn't actually make a lick of difference and wouldn't until years later when Congress changed the law?]

    [And even Marvel clearly didn't "know" everything was work for hire, because some of their early surviving back-of-check contracts specifically say that the artist is assigning all rights to Marvel, which makes it a sale, not a work for hire. So how could "everyone know" the terms when even Marvel's contracts had them wrong?]

    [But never mind -- it's a bad argument, to my mind, but a good argument to some others, possibly because it's the only one they've got.]

    In any case, that's the crux of the case: Employee or Freelancer?

    A court decided for Marvel, and the Kirbys appealed. This is legal. This is part of the process.

    An appeals court decided for Marvel, and the Kirbys appealed to the Supreme Court. Also entirely legal.

    At this point, something else started to happen. Due to the publicity, other people started noticing the case, and looking at the argument and saying, "Hey, this definition of 'employee' doesn't make any sense!"

    [continued next rock]
    Last edited by Kurt Busiek; 09-27-2014 at 05:43 PM.
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  14. #74
    Oblio Kurt Busiek's Avatar
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    [continued from last post]

    And various organizations started filing amicus briefs -- the Writer's Guild, the Director's Guild, the Screen Actor's Guild and others, including the former head of the US Patent and Trademark Office and the former US register of copyrights (who helped write the very laws this case is based on) and others. And they argued that Marvel's definition of employee is not workable, and that if the Supreme Court upholds it, it'll create chaos for other industries, where things that used to be classed as rights sales suddenly got redefined as work for hire. So they wanted the Supreme Court to hear the case and decide that no, the rules of work for hire don't work that way.

    And that's where things sat until Friday, when Marvel and the Kirbys settled, on the last possible business day before the Supreme Court started discussing whether to take the case.

    Based on that, it sure doesn't look like Marvel's throwing the Kirbys a few bucks to go away. If that's what they wanted to do, they could have done that any time within the last few years. Whoever blinked, it was the side that had the most to lose if the case went to the Supreme Court and risked a ruling they didn't like.

    That wasn't the Kirbys -- they were already getting nothing, so the Supreme Court deciding against them wouldn't hurt them any.

    But Disney/Marvel has billions on the line. They don't want to risk losing that. Not even with a pro-business Supreme Court likely to rule for them. Because they're not sure the Court would rule for them. Not with a bunch of people on the other side who make IP contracts their life -- including one of the guys who helped write the 1978 Copyright Law. If that guy is saying, "No, no, it doesn't work that way," there's too much of a chance that the Court will listen.

    So my prediction is: All the public changes you see coming out of this are going to be favorable to the Kirbys. Probably the first thing you see will be creator credits. And the family's going to suddenly be financially secure, like their father/grandfather wanted them to be.

    I have no insider info, but we'll see what happens.

    In the meantime, don't let anyone tell you that Kirby sued Marvel (at most, the estate responded to being sued, with a counterclaim), or that copyright law is as simple as hiring a dog-walker or buying a pizza, or that the Kirbys broke a deal that Jack made -- he wanted this to happen, he was aware of it from when the law changed and made it possible, and the Kirbys would have been making those reversion claims during the window the law provides, whether Marvel was wealthy or not, bought by Disney or not.

    And don't let them tell you that everyone back in 1961 knew, understood, and accepted the difference between an assignment of all rights and a work for hire deal. Even Marvel demonstrably didn't know the difference -- in part, because back then there wasn't any practical reason to distinguish between the two.

    Beyond that, the question of how to define work for hire is going to come up again -- and will probably make it to the Supreme Court someday. Because other industries simply don't do it the way the comics industry wants to say is standard, and those Hollywood guilds, plus the guy who co-wrote the law in question -- those amicus briefs are still out there and will come up every time this stuff is litigated. Right now, precedent favors the publishers, but in this case they settled rather than test the question, and as it comes up again, it'll either get ducked again or it'll get tested.

    *

    But for now, the Kirbys are very happy with the settlement, and Marvel's happy too, because it's finally done with. Disney won't be hurting, and movies and comics will roll along like they already were, the only difference being that the family of one of the creators will get some money out of it.

    The only people angry about this are people who hate the thought of that, either because they identify that strongly with the publishers or because they've been saying for years that the Kirbys would lose, and they're overly invested in that stance.

    And I bet, for all that some want to say the Kirbys folded, that Marc Toberoff's phone is ringing off the hook these days...

    *

    And on another facet of all this: Stan Lee was Martin Goodman's cousin-by-marriage (his uncle, Robbie Solomon, was related to Goodman's wife, and it was Solomon that got Stan the job), but Goodman wasn't making sure Stan kept rights; Goodman wanted them all. Stan, however, has made very, very lucrative deals with Marvel over the years, as publisher/spokesman/promoter, and he's very well taken care of. That won't change.

    kdb
    Last edited by Kurt Busiek; 09-28-2014 at 10:33 AM.
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    Quote Originally Posted by Claw View Post
    No you wouldnt. Look at all the indie comics. Vast majority are generic rip offs of other, bigger characters.
    This is true. Which is why I don't get why the indie die-hards rip on mainstream comics so much. Most of their stuff is crap. Sure, a few indie titles are beautiful works of art deserving of high praise and gratitude. Most are mediocre at best, while the rest are trash, just like comics done by the Big 2.
    Quote Originally Posted by XPac View Post
    I'm just glad it's finally settled so that tax payers don't have to pay for any more of this nonsense in court.
    I wouldn't call this nonsense. It's a lot of money, and it's something worth keeping check on considering that creators today still face some of the same challenges.

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