Marvel Worldwide, Inc. et al v. Kirby et al

Filing 102

DECLARATION of Marc Toberoff (Part I) in Opposition re: 60 MOTION for Summary Judgment.. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE)(Toberoff, Marc)

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JOHN MORROW interview in front of me to see, but I'm quite certain

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he said that in that interview, that he was not working from full script. Q. A. At any point between '58 and '63? I'm certain he would have said that in that

interview, yes. Q. Is there any other anecdotal evidence,

other than what you've just described in the last couple of minutes, that would bear upon whether or not Mr. Kirby was working from scripts during the periods '58 through '63 at any time? A. '58 to '63? Well, I would need to get in

front of some of those actual pages and see what the margin notes are. evidence in there. There could be some anecdotal That's a pretty telltale sign, not

the only one, but a very convincing sign when Mr. Kirby is putting margin notes around the panels, obviously, he is putting them there so that the writer, Stan Lee or Larry Lieber or whoever, would know what he's doing on the story. If you were provided a full script,

there would be no need for those. So, but I'd need to actually get some pages in front of me from that kind of example of margin notes on those.
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JOHN MORROW called them back in to publish the story. Q. A. Q. That's a legal conclusion, isn't it? That's my layman conclusion. But you're stating here an opinion that It had no

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really constitutes a legal conclusion? financial obligation. MR. TOBEROFF: argumentative. A. Objection,

You may, well, I mean, you may characterize I consider it my conclusion So, no, I'm not trying

it as legal conclusion.

based on the historical record.

to pass myself off as someone giving legal conclusions or legal advice. Q. So it's your layman's conclusion that if I

asked a freelancer to create a particular story or draw a particular piece of artwork and the freelancer brought it in, I had no obligation to pay them? A. Not if it wasn't accepted, no. At that

point, that was the standard there, was take an assignment, take a script from Stan Lee and take it home and draw it and bring it back in, and if it's accepted, they pay you for it. Q. opinion -TSG Reporting - Worldwide 877-702-9580

When you say if it's accepted, that's your

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JOHN MORROW artists. Q.

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Was it your understanding that there would

be more time spent on a story conference between Stan and an artist at the outset of a new title than there would be on issue number 83 of an existing title? MR. TOBEROFF: A. Lacks foundation. It would

I'm not sure how to answer that.

stand to reason, if you are going to launch a new title, yes, you would sit down and have a lot longer brain session than you would if you were doing a continuing story of characters you already established and everything, so. Q. On page eight of your report, in the second

paragraph you say that -- in the second sentence of that paragraph, he, referring to Kirby, was extremely independent. He did not work from many written

materials supplied by Marvel. How do you know that? A. We've seen no examples, other than that one

synopsis from Fantastic Four number one, is the only example I've ever seen of written materials supplied to Kirby. I've seen an example of Kirby supplying written

material back to Stan, an actual written script for an issue that he did while Stan was on vacation.
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He

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JOHN MORROW actually wrote the dialogue for it and sent a script back. Q. But that is the only example I've ever seen. Well, do you know if it was Kirby's habit

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to retain written synopses he may have been provided? A. Well, if it was, they are not in his files,

or not the files I had access to. Q. Do you know whether the Fantastic Four

synopsis you referred to was in Kirby's files? A. Q. A. It was not in the files that I have seen. When did you go through Kirby's files? Oh, what year? The family loaned me a lot They had a storage unit

of materials and got together.

out in California where they had a lot of stuff stored. I was allowed to kind of go through there, that was -Q. A. Sometime after 1994, correct? Oh, yes, yeah, while I was working on the

Jack Kirby Collector. Q. Do you know if there were any files that

weren't among those files? A. I have no way of knowing. I assume they

had everything that they had in that storage unit. Again, I didn't go through every single box that was in there either, so. Q. Do you have an understanding as to whether
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JOHN MORROW

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to do, in my opinion, is to credit Steve Ditko and Stan Lee as co-creators of that. Kirby certainly has some

input into it, in my opinion, but I think the final result is far enough removed that the Kirby input, while it got the ball rolling, is not the end product. Q. How do you know the Kirby input got the

ball rolling? A. Because the historical track record on that

is that Kirby had, let's see, C.C. Beck did the Silver Spider strip that was not published. in his autobiography. that he brought in. He published that

Kirby had an idea for Spider-Man He drew supposedly five pages, it

was very similar to The Fly, which Archie Comics was coming out with, and from there, Stan brought Steve Ditko in, and Ditko evolved the character into what it is now. Q. Is it your understanding that Jack Kirby

did the five pages that he did draw supposedly before discussing the character with Stan Lee? A. No. My understanding is that he brought

the idea to Stan Lee and said Stan, I have this idea for a character. It's an orphan boy with a magic ring

that gives him spider powers, and what amount Stan edited there, we're not sure.
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But then Jack went and
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JOHN MORROW drew some sample pages, brought them in and Stan said no. He rejected probably because it was too close to

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Archie Comics' Fly, and that's when Stan had Steve Ditko come in. Q. Are you saying that Jack brought the pages

without being given an assignment by Stan with respect to Spider-Man? A. No, I think Jack brought in the concept,

the idea to Stan as one that they had kind of kicked around at Mainline for doing, and Stan said sure, let's give it a try, and I don't know what level of input Stan gave Jack at that point. Q. Do you have an opinion with regard to

whether or not Jack Kirby was the sole creator of Sgt. Fury and the Howling Commandos? A. Well, I put in my report -- a quote that

really caught my attention when we interviewed John Severin for the Jack Kirby Collector. On page 12 and

13 of my report, he talked about met over coffee with Jack Kirby, and Jack at that point was trying to get syndicated newspaper strips purchased to syndicates and he had this idea that he pitched to John Severin to get John to draw it, because John was very good at drawing war comics, and -- well, the quote is in the report.
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JOHN MORROW You can read it. me.

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But that one was very interesting to Jim

That's not an interview I actually conducted.

Amash conducted that actually. Q. So returning to my question, do you have an

opinion as to whether or not Jack Kirby was the sole creator of Sgt. Fury and the Howling Commandos? A. Well, you have to define sole creator. Yes. Do

I think Jack Kirby initiated the concept?

That

right there makes me think that Jack Kirby initiated the concept. Did Stan Lee have input into the concept? I would think as editor, certainly. as simple as this is hypothetical. It could have been It could have been

as simple as Stan saying Jack, we need a war book, and Jack said oh, I got this great idea I was kicking around, and then he presented it, and maybe Stan added some stuff, something like that. It could have been that Jack walked in and said Stan, here's an idea. can do it. know. If you want to use it, we

I, of course, wasn't there, so I don't

But this leads me to believe that Jack initiated

the concept outside of Marvel and through whatever process it was brought in. input into it. I'm sure Stan had some

The question is how much?
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lessen that Stan didn't add to it, but it's -- Jack -Q. When you say it's a Jack Kirby creation -MR. TOBEROFF: he said but Jack. BY MR. FLEISCHER: Q. A. I thought you had finished your answer. Well, just that it just screams that was a He was still talking,

Jack Kirby creation. Q. A. Q. A. Q. Screams that to you? To me, yes. That is your opinion? That is my opinion, yes. Now, do you know whether Jack Kirby put

pencil to paper before discussing the Thor character or the concept of a Thor book with Stan Lee? A. Q. No, do not. So when you say it's your conclusion that

it's the sole creation of Jack Kirby, you are saying it was his idea? A. That is my opinion, yes. The idea to take

Thor and use him as an ongoing superhero and cloak him into Norse mythology would have been Jack's idea. Q. But he wouldn't have drawn anything until

getting the go ahead of from Stan and having a story
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JOHN MORROW conference of some kind with Stan, is that correct? MR. TOBEROFF: foundation. A. Assumes facts, lacks

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Again, I wasn't there in 1961 and '62 when I can give you my

these books were being produced.

opinion, if that's what you'd like. My opinion is that Jack came to Stan Lee and said hey, I got this idea for a superhero based on Thor. And Stan would say something along the lines of

okay, we've got a dead magazine and a mystery with nothing going on. off. Let's do it. Our superheros are starting to take At that point, they would kick That's my opinion.

around details of it. Q.

Do you have an opinion with regard to who

is the creator of Ant Man? A. He is such a lesser known character, I

don't think I actually included anything about Ant Man in there. I have not heard or read much historical What I do know about Ant Man is

data on Ant Man. that -Q. questions. A. Q.

Just try to restrict yourself to my

I'll say no, I have no opinion. I don't mean to cut you off, but we are
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JOHN MORROW identification.) Q. A. Q. typewriter? A. Q. A. No, I have not seen a ribbon copy. Do you know what it is? I do, yes. Roy Thomas ran this in Alter Have you ever seen this before? I've seen it in print, yes. Did you ever see any ribbon copy from the

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Ego Magazine.

It's Stan Lee's two-page synopsis for

Fantastic Four number one. Q. Roy Thomas? A. Q. I don't believe so, no. And do you know how Roy Thomas came to Have you ever discussed this document with

publish this? A. Q. A. How he came to publish it? How he came to put it into the Alter Ego? I'm not sure where he got a copy of it, but I think it

he said he wanted to run that in, I forget. was Alter Ego number one, I said great. Q.

Do you know whether or not this document

was either physically delivered to Jack Kirby before he started drawing or communicated to him verbally before he started drawing Fantastic Four number one?
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JOHN MORROW A. I have no idea. Kirby has gone on record

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in an interview saying he did not get a synopsis for Fantastic Four number one. Q. A. Q. Do you credit that statement by Kirby? Yes, I do. It's pretty definitive.

And you discredit Stan Lee's statement

under oath in this case that this synopsis was communicated to Jack Kirby before Mr. Kirby started work? MR. TOBEROFF: Objection, lacks

foundation, assumes facts. A. Well, could I see Mr. Lee's statement Because I've not seen it.

before I answer that? Q.

Let me ask you to assume that Stan Lee has

testified under oath that this synopsis was communicated either verbally or in writing to Mr. Kirby before Mr. Kirby began work on Fantastic Four number one. MR. TOBEROFF: answer. A. I would give more credence to Mr. Kirby's Objection. You can

account than to Stan Lee's account. Q. Is it your testimony that that's an

unbiased conclusion?
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JOHN MORROW to weigh an opinion between the two men's statements, and so that's always a possibility. Q.

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Is it your understanding, forgive me if you

have already answered this, when we were talking Thor earlier, that before Mr. Kirby started to draw Thor, he got the assignment to do so from Jack Kirby? MR. BARD: Q. question. MR. TOBEROFF: Objection, vague. You mean Stan Lee. Let me restate the

Sorry, Stan Lee.

BY MR. FLEISCHER: Q. Is it your understanding that before Jack

Kirby put pencil to paper with respect to the first Thor story, that he had been asked to write that story by Stan Lee? MR. TOBEROFF: A. Objection, vague.

Well, it's my opinion that the Thor concept What the

would have come from Jack, not from Stan.

process was to get Jack beginning on drawing the physical story, obviously Jack was not the editor. Jack could not decide to publish a Thor comic book on his own. He brought the idea to Stan. Stan said sure, It's not Jack was

let's run with that in Journey into Mystery. like they started a new Thor comic though.
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JOHN MORROW turning out work for Mystery books and Journey into Mystery was apparently not doing well and the

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superheros were, so they started to add a superhero to it. All I can offer is my opinion there. My

opinion was Jack came up with this idea, and at that point, Stan said yes, let's put that in Journey in Mystery, and they probably worked on it together, and -Q. This is 15. Have you ever seen this

document before? A. Q. A. Yes, I have. And what is it? This is a typed transcript of a radio

interview that Stan Lee and Jack Kirby gave in 1967. The year's audiotape recording for the story housed in Stan Lee's archives at the University of Wyoming. One

of our authors Danny Fingeroth went to the University of Wyoming to go through Stan Lee's archives to give it to us for Stan Lee's book. (The document referred to was marked Plaintiff's Morrow Exhibit Number 15 for identification.) Q. Do you have any reason to believe that this
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JOHN MORROW went ahead and published Kirby's fill-in story. Q. And the idea was that Kirby's story

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couldn't advance the plot at all, because that might affect what was already in the works with Steranko? A. Q. Right. I've placed before you what I have marked

as Exhibit 24, and it appears to be a two-page document and it's entitled: Introduction by John Morrow.

(The document referred to was marked Plaintiff's Morrow Exhibit Number 24 for identification.) Q. A. Is this a document that you wrote? It is. With all these introductions,

Marvel editorial staff had the ability to change things. them. MR. TOBEROFF: I just want to note for It's I don't recall any major changes on any of

the record it's a bit hard to read. very dark, at least for me. MR. FLEISCHER:

I agree that it's

dark, but I also would submit that it's entirely legible. Q. There's a statement in the third paragraph:

As usual, for most new issues in the 1960s, Kirby was
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called in to work on the initial issues before handing it off to others to continue. Did you have in mind the other new series that you were referring to there? A. Ironman. For instance, Daredevil, Kirby

was brought in in some capacity for his covers by him. There are some character concept drawings by Kirby. The character called the Plunderer, and I forget the other one that are in early Daredevil stories that are all -- it's Kirby giving a sketch of what it should look like and writing notes off to the side of the character's, you know, personality and his powers and things like that, that were submitted to the artist who was drawing that issue to go by. Q. Ironman? A. didn't he? Q. A. Q. Yes. I believe so. I'm telling you. I'm asking you. I believe Larry Lieber scripted that, Do you know who wrote the first issue of

Is it your understanding that Larry Lieber did it? A. I would say yes.
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JOHN MORROW Q. I don't want to testify. And who drew that issue? A. Q. That's Don Heck, I believe.

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And is it your recollection that Jack Kirby

was asked to do the cover? A. Q. Yes. Now, what was the -- this Exhibit 24 an

introduction to? A. Well, based on what I'm reading here, I'm

assuming this was the one I did for the S.H.I.E.L.D. series, but let's see, since I'm talking about Shield here, it must have been for the Agent of Shield collection. Q. Now, in the fifth paragraph, you say in the While Stan scripted most of the issues

first sentence:

presented here, Kirby was undoubtedly the guiding creative force. What did you mean by Stan scripted most of the issues? A. Scripted meaning dialogue, put the words in

the balloons. Q. A. You don't mean creating the scripts? No, not working from the script, no.

Scripting and dialoguing are kind of used
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