Thank you so much for your perspective. For many years lots of people (including me) did not understand the way the 1909 copyright law was applied to WFH. I think most creators believed that there was no WFH provision until 1976, which is (in a way) true, but does not alter how the 1909 law is applied.

I’ve asked an acquaintance of mine, a noted IP attorney, to take a look at this and I am watching his blog like a hawk to see if he comments. Oh, wait, just double checked, he just did:

http://www.copyhype.com/2011/08/marvel-v-kirby-work-for-hire-and-copyright-termination/

I’m afraid I don’t see an out for the Kirby estate legally, but like most fans, would hope there is some kind of gift or other benefit that could be granted to the Kirby estate.

Having read the decision, I fail to see how Marvel altered history. You may argue that Marvel should have behaved similarly to DC in they way they gave more money to the Siegel and Schuster families before they had any legal obligation to do so. You may argue the law should have been different all along and should have given more rights to the artist. The law was changed in 1976 to do just that to a limited extent. Unfortunately, it only applied to grant of copyright. The work-for-hire provisions under the old law remained intact.

The Kirby case hinged on whether Kirby created the work on his own or was asked to do it in exchange for money upon delivery of an acceptable product. The decision holds that there was a large body of settled law regarding the defining features of work for hire under the 1909 statute, and that Marvel presented sufficient evidence – with no valid evidence presented to the contrary – that Kirby’s work constituted work for hire as the law defined it. It is instructive to read and compare the decision in the Superman case, which explained why Action #1 was not a work for hire and therefore could have the assignments terminated under the 1976 law as the Kirby family contended they should have been able to do. See:

http://uncivilsociety.org/siegel_superman_032608.pdf

The work-for-hire provision may be unfair, especially when the entity commissioning the work is free to pay nothing if they don’t like it, but gets all the rights once they accept and pay for it. But I’d say that’s really the fault of Congress, not the court.