Joe Simon once said that “we always felt, we wuz robbed.” He is not alone. This article will discuss Jack Kirby’s estate’s case against Marvel and how the current state of the law robs creators of the rights to their own works. The evaluation of case law will show that the application of the ‘instance and expense’ test creates an injustice of inconsistent results in litigation, where creators attempt to regain control of their works. If the court continues to inconsistently apply the law to these work-for-hire cases, then the Supreme Court or Congress needs to address the intended purpose of this section of the Copyright Act. As this article will address, it is troubling to see a continuous strain of inconsistent decisions coming from our court system. This problem needs to be addressed and inevitably needs to be resolved.
Thomas M. Deahl II, The Consistently Inconsistent "Instance and Expense" Test: An Injustice to Comic Books, 14 J. Marshall Rev. Intell. Prop. L. 91 (2014)