|Posted: 21 September 2009 at 1:47am | IP Logged | 7
"You need to remember that Stan Lee didn't script all the work of 1960s Marvel, although he dialogued it afterwards. "
You need to brush up on your comics terminology, because in a comics context "scripting" means "dialoguing it afterwards".
And if you look at the Twenty-factor test for determining independent contractor vs employee ( http://legal-dictionary.thefreedictionary.com/Independent+Co ntractor ) you'll see that the working relationship of both Kirby and Ditko are overwhelmingly in the realm of employee. Something which I'm sure Marvel/Disney's lawyers will argue (and Disney have the best copyright lawyers in the known universe).
Let me go through the ones that are clearly employee related:
2 - employees receive in-house training. In fact, while Kirby himself might not have been "trained" at Marvel, lots of other artists describe situations where Lee used Kirby as a resource to train new artists, a task later performed by John Buscema and John Romita on occasion (among others).
3 - the work is integrated into the business, without Kirby's work, the books wopuld not get published.
4 - the services must be rendered personally, clearly they were paying Kirby for Kirby artwork, not for work created by him and assistants in his dircet employ.
5 - If an employer hires, supervises, and pays assistants for a worker - i.e. the hiring of letterers, inkers, colourists and on occasion scripters was all done by Marvel.
6 - A continuing relationship between a worker and an employer. Kirby worked there regularly and exclusively for about 10 years.
7- If a worker is working substantially full-time for an employer. Kirby worked full time and then some. And working for other big companies at the same time was generally viewed as a no-no.
10 - A worker who is required to submit regular oral or written reports to an employer is likely an employee. Which would cover plotting sessions and discussions about the contents of following issues, either with Lee or someone in a similar capacity.
15 - A worker who can realize a profit or loss resulting from his or her services is generally an independent contractor. Kirby had no direct stake in the sales. He had no royalties for good sales and he was paid a page rate even if a book sold poorly,
16 - A worker who performs for more than one firm at a time is generally an independent contractor. As mentioned before, very few artists at the time worked for more than one publisher, at least not both DC and Marvel. Kirby certainly did not.
17 - If a worker makes his or her services available to the general public on a regular and consistent basis, that worker is generally an independent contractor. As mentioned before, Kirby was exclusively working for Marvel.
18 - An employer's right to discharge a worker tends to show that the worker is an employee. An employee must obey an employer's instructions in order to stay employed; an independent contractor can be fired only if the work result fails to meet the agreed-upon specifications. While Kirby was never in a situation where he was fired like that from Marvel, the situation was such that people could be fired like that, and as I recall, some were.
19 - If a worker has the right to terminate his or her relationship with an employer at any time without incurring liability, such as breach of contract, that worker is likely an employee. That seems to be the case with most at Marvel. They could leave at any time without any legal liability. A bad reputation, perhaps, but no legal liability.
Certainly there are factors that go the other way (7 or 8 of them), but those seem to be minor ones related to payment structures and workplace /equipment provisions. On the issues of control and supervision of work, Kirby seems to be very clearly an employee for the purposes of the work-for-hire law, no matter how much creative autonomy he enjoyed.
And if he's not determined to act as an independent contractors under the common law of agency, then no further contract is required.