|Posted: 29 July 2011 at 5:39am | IP Logged | 12
"The judge rejected this argument, but this issue will most likely form the basis of an appeal. "
I agree that the argument is interesting, but not only did the judge reject the argument, he specifically noted that the only way to introduce the Kirby side of that argument was through inadmissible hearsay (which is why Evanier's testimony was stricken) while Stan Lee was available to testify to Marvel's side on the record.
I cannot see how, as a matter of law, an appeal can be based on a judge's finding that refers to what his ruling on it would have been if it had been admitted, which it wasn't. Because it was hearsay and the witnesses admitted as much.
Basically the Judge said that the case boiled down to verbal agreements and personal interactions between two people of whom only one was alive and able to testify.
If Kirby had been alive and able to testify as to a version of events that made his work not work-for-hire, then there might have been a slim chance that there would be a genuine issue before the jury.
As it is, I don't see how there are grounds for appeal.
I also think this strengthens DC case in that it solidifies their hold on the work-for-hire aspects of Superman. And the fact that the Kirbys rejected a settlement and lost out completely might have a chilling effect as well.
Though in most respects the cases are unrelated.