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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A so -Q

I couldn't recall.

Since we have grown up

Do you recall when the last time you

discussed that topic with any of your sisters? A I probably discussed it with Lisa within

the past year, I would think. Q What do you recall saying to Lisa and what

do you recall her saying to you during the course of that discussion? A I believe I was just relating a certain

story, you know, we were just talking on the phone and something jogged my memory about a certain story and we just kind of discussed that for a few minutes. Q A Q What story were you talking about? I believe it was when he was creating Thor. And what do you recall telling Lisa at that

time about Thor, its creation? A Well, my father was always very interested,

he loved mythology, he loved studying religion and history, just knew all about it, his bookshelves were just loaded with that kind of stuff, so as a kid I was always at that time more into history than I was science but we would have long discussions about it. But I kind of got into it, I guess you might say, on a more practical basis and I remember kind of
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standing by his drawing board as he was kind of doing the Thor character and he had the big, if I remember right, either Thor or one of the other characters that had big horns coming out of the helmet and I said a real Viking wouldn't have big horns coming out of his helmet and we were laughing and that was about it. I think my father kind of laughed and made some

statement that well, this isn't, you know, Viking reality, it is a visual impact, so he gave me a little art lesson there. Q Do you know whether the drawing that your

father was working on that you witnessed was the first iteration of the Thor character or some iteration of the character after it was first published? MR. TOBEROFF: A Q Compound.

I believe it was the first. And how did you, what is the basis for your

belief that it was the first? A I recall his -- we were -- we were talking

about the -- about Thor's costume and he was doing it for the first time and, again, there were other things. I think I had made some comment about the

big circles on the front of the character and, you know, again my father was, you know, jokingly,
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jokingly referring to visual impact other than possible reality of what a true Viking might have worn. Q What led you to believe it was the first

drawing your father was doing concerning the Thor? MR. TOBEROFF: A Asked and answered. The basic creation

Again, the same thing.

of the costume. Q Did your father tell you that this was the

first drawing he was making of Thor? A Q He did refer to doing a new character, yes. And was it the Thor character or some other

character that became part of the Thor comic book? A Q No, it was the Thor character. And your recollection is that part of the

costume that he was creating had a helmet with horns? A Q I believe so, yes. Do you know whether or not your father had

had discussions with anyone at Marvel before undertaking the Thor project? A Q No, I have no knowledge of that. Did you have an understanding at the time

that you were witnessing your father drawing Thor for the first time that was being drawn for Marvel as opposed to some other publisher?
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Q

Did you have an understanding of whether he

was one of the most highly paid artists or in the middle of the pack or in the bottom of the pack? MR. TOBEROFF: Q Compound.

In the 1958-1963 timeframe. MR. TOBEROFF: Compound.

A that. Q

At that time, no, I would have no idea of

Did you ever discuss with your father

specific contributions he made to characters or stories that were published by Marvel? MR. TOBEROFF: A Assumes facts.

We would have discussions or at least if I

was watching him work where he would be saying "I'm doing a new character" or something to that effect, yes. Q Did he ever tell you what was triggering

his work on a new character? MR. TOBEROFF: A Q A Vague.

A specific character? Yes. Well, I could -- in one instance I think

Sergeant Fury, I think it was called the Howling Commandos if I remember correctly, that was based on a comic he had done I believe in either late fifties,
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I believe, called, I think it was called Combat, and, of course, on his personal war experiences. Q And how did that relate to the creation of

a new character for Howling Commandos? A that? Q A Yes. Just the fact that my father had been in How did his previous experience relate to

combat in World War II and the fact that he had done a combat comic previously which I guess he enjoyed, you know. I don't want to say expounding on combat,

but I think he wanted to express to people what soldiers were going through. MR. FLEISCHER: minutes? Do you want to take a few

We can go off the record. Off video at 12:28 p.m.

THE VIDEOGRAPHER: (Recess) THE VIDEOGRAPHER: p.m. BY MR. FLEISCHER: Q

Back on video at 12:36

Mr. Kirby, do you know whether your father

had been asked by anyone at Marvel in connection with the work that he was doing on the Nick Fury and the Howling Commandos book to populate the story with new characters?
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or something like that. Q Have you seen that interview or article

anytime within the past several years? A Q withdrawn. Do you recall any other instances in which your father relayed discussions he had had with Stan Lee about the work your father was doing at Marvel? A Again, specific, you know, dates and times No, I haven't. Can you recall any other instances in --

I can't give you but I know in that period in the early to mid-sixties before I went off to college on a couple of occasions, I know we discussed more so as I got a little bit older as a teenager, more so he would just discuss his frustration with not getting the credit he believed he should be getting, either through some interview that Stan Lee gave or whether -- again, whether it was on air or print I couldn't be specific, but we did discuss that on a few occasions. Q Apart from the specific instance that you

recall with respect to Fantastic Four, can you recall the specifics of any of those instances where your father relayed to you statements made to him or others by Stan Lee that were the subject of concern
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to your father? A I can remember one instance, again I do not

recall if it was a print interview or, you know, on-the-air interview or what it might have been, but I do recall one instance involving the creation of Thor and I guess Stan had taken -- he had created that and my father was very upset about that. said Thor was his idea, his creation. Honestly, given my father's interest in mythology and Norse mythology and, again, biblical history and all kind of history, that kind of thing just flowed out of his mind. I mean, to me just from He

my knowledge of comic history, and I'm not a comic historian by any means, but my knowledge of it and my personal history, the thought of Stan Lee, honestly, coming up with concepts of, you know, Thor, Loki and Ragnarok, The Rainbow Bridge and every other part of Norse mythology coming out of Stan Lee's mind is relatively inconceivable. Q Do you know for a fact that the original

concept that became Thor was not devised by Stan or someone else at Marvel? A Well, it was devised by my father, the I have no reason to believe that

creation of Thor.

my father would lie to me about something like that.
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your father confided work-related issues in the fifties or sixties at any time? A No, I'm not aware of any. There might have

been but not that I can recall. Q You were never present at a conversation

where you heard your father discussing work issues with another non-family member; is that correct? A Q Correct. That would be correct.

I want to go through a few specifics with

regard to some of the characters that are the subject of the termination notices at issue in this and let me start with Spider-Man. Do you have any information with regard to the circumstances under which the Spider-Man character was created? A I'm not -- I'm not aware of any specific

information as to the creation of Spider-Man. Q Do you know if your father created the

Spider-Man character or co-created the Spider-Man character? A I'm aware that he had a hand in the

beginnings of the character and in the design of the character. You know, again, as to meetings that

might have taken place, I wouldn't have been privy to that.
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Q

When you say you are aware he had a hand in

the beginning of the character or the design of the character, what do you mean? A In terms of -- well, that would involve

creating the character, I would suppose, if you are creating the design of the character. Q Do you know whether your father did the

illustrations for the first published book in which the Spider-Man character appeared? A I believe he did the first cover. I don't

recall if he did the first book or part of the first book. But I do know that he did at least the first

cover, possibly more. Q Did you ever hear your, either of your

parents indicate in your presence that your father did not create or co-create Spider-Man? A Q A Q Hear from my parents that he did not. Yes. Not in my presence. Did you ever hear your mother correcting

people if they suggested that he had co-created or created Spider-Man? A happening. Q Have you ever discussed the issue of how
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Again, I don't recall an instance of that

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what I believe in just trying to come up with new characters as he always did, you know, that I might question as to being inaccurate. As to the style of

drawing, whether he didn't think my father suited the character and Nick did, that I couldn't attest to. could just attest to what my father, you know, said at the time which was that he was too busy to do the script based on his other work. Q Did your father tell you that the idea for I

Spider-Man was his? A I believe he did say that, and I can't

recall his exact words from that time ago, but, you know, I do recall him saying that, you know, they had discussed a new character with the powers of a spider and so on. I remember him because if I remember, I

do remember there was a discussion, he was telling me, you know, how he was going to get his powers, might have a radioactive spider or something like that, so I do remember that discussion. Q Do you know whether those concepts that you

have just described were precipitated by Stan Lee or your father or some other way? A At the moment, you know, I don't recall,

you know, as to whether, you know, exactly how my father worded that. I know in the future sometimes
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Q

Have you ever seen the interview your

father appears to have given to The Spirit creator Will Eisner concerning the Spider-Man character? MR. TOBEROFF: evidence. A Q No, I haven't seen that interview. What information, if any, Mr. Kirby, do you Assumes facts not in

have concerning the circumstances of the creation of the Iron Man character? A I'm trying to recall. At this time I don't

have any recollection of Iron Man specifically, how that came about. Q Do you know what contribution, if any, your

father made to the Iron Man character? A Again, I believe at the very least, I As to the initial

believe he designed the costume.

idea and creation of the character, I'm sure at the very least he probably contributed to that. Q part? A Well, I wouldn't call it speculation, I Is that just shear speculation on your

would call it based on -- based on the knowledge of that he pretty much had a hand in everything Marvel did and based on my knowledge of his creativity. Q Well, was he the artist assigned to draw
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A

He never mentioned to me that he worked off

a synopsis and usually he was penciling stories in the margins of the comics. He usually, if I could

jump in there, he usually started, he always started in the middle of a story and then he went back to the beginning and then he would finish up and do the end, that was just the way he worked. I would think if

you are working off a story or a synopsis that you don't need to do that but -Q As you have indicated, though, you don't

know what conversations may have occurred between Stan and your father before you saw him working on a drawing, correct? A I wouldn't have been privy to those

conversations. Q Right. And you don't know whether or not

your father had been given a synopsis or a script before he began working on a particular story; is that correct? MR. TOBEROFF: A Yes. Asked and answered.

I never saw a script or synopsis by

his drawing board. Q What information, if any, do you have

concerning the creation of The Fantastic Four? A In discussions with my father The Fantastic
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Four basically was a derivative of the, from what he told me, basically he came up with the idea just as a derivative from the Challengers of the Unknown that he had done several years earlier. Q So your father told you that The Fantastic

Four was his idea? A Q Yes. Did your father ever tell you about any

discussions that he had with Stan Lee concerning The Fantastic Four? A recall. Q Did your father ever discuss with you any Any specific discussions, not that I can

synopsis that Stan Lee had given to your father? A No, he never discussed that with me and as

I said previously, I never saw him work on a synopsis. (Neal Kirby Exhibit 3, a document, Bates Nos. MARVEL0014587 to MARVEL0014588, marked for identification, as of this date.) MR. FLEISCHER: three, please. MR. TOBEROFF: I just want to clarify, any Would you mark that as

document that you produce in this action will have Bates stamps and if it is a document like
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MR. TOBEROFF: Q A Q

He is not finished.

Did I interrupt you? That would be fine, yes. What specific characters did your father

tell you that he had named? A Specifically I could say The Fantastic

Four, I suppose you could say all the characters in Thor although obviously they had been previously created about a thousand years ago, Sergeant Fury. That's what I could think of right now. There may

have been more but that's what my memory is coming up with at the moment. Q I think you indicated that Sergeant Fury

was a book that your father had worked on prior to the resurrection of the title in the sixties; is that correct? A Well, he had done a comic book in the 1950s

which, if I remember correctly, was called Combat. Whether the characters' names in that comic book were the same as the characters in Sergeant Fury, I don't recall that at the moment. Q What specific names did your father tell

you that he had given to the various characters of Combat or the later version which I think you said was called Sergeant or Nick Fury and the Howling
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Commandos? A Right. Well -I don't think he said Nick

MR. TOBEROFF: Fury, Sergeant Fury. MR. FLEISCHER: capable of -MR. TOBEROFF: testimony. MR. FLEISCHER: MR. TOBEROFF: MR. FLEISCHER:

The witness is perfectly

You are misstating his

It is not your role -I disagree. -- to interject what you

think is a misstatement of the testimony. MR. TOBEROFF: A I disagree. I

Well, I know that he did a Nick Fury.

don't recall the names of the other characters in that little ensemble group at the moment. The Combat

comic book was not a specific group, it was basically war stories. Q So what was the relationship, if any,

between the Combat series and the Sergeant Fury series other than the fact that they both involve war stories? A I think it was just a progression going

back to the 1940s where he did Boy Commandos and that was an ensemble group if you want to use that word.
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And then the next opportunity for a war book being the Combat book which was just really a compilation of stories. Q Now do you -- and the basis for your

statement that your father created the name Sergeant Fury or Nick Fury, whichever is appropriate -A Q A Q Sergeant Nick Fury. Sergeant Nick Fury is what? That he told me. Any other information concerning the name

of that character that you have? A Q Not that I can recall. And am I correct that you have no knowledge

with regard to conversations that occurred between your father and Stan Lee concerning Sergeant Nick Fury prior to the introduction of that character? that correct? A It is correct in saying that my father Is

didn't -- in my discussions with my father that did not come up. Q And you weren't present at any

conversations as you have indicated between your father and Stan Lee. A Q That would be correct. Do you recall who was the assigned writer
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it over the weekend I promise but, no, I don't recall that part of the deposition. Q Do you have any information to suggest that

the idea and concept of Ant-Man was something other than an idea of Stan's assigned by your father to work on? A Again, I would have no information to that

and I would have no recollection of it. Q What information, if any, do you have

concerning the circumstances of the creation of the X-Men comic book and character? A I believe the X-Men my father came up with

and in doing something a little bit different rather than the bitten by the atomic bug kind of thing, actually having mutants born in that way and what their kind of -- I think he wanted to tell a story there that you had people that were different and subjected to persecution. was always my take on it. Q Apart from your take which I take it is That was always -- that

inferential, what firsthand knowledge do you have about the circumstances of the creation of X-Men? A Well, my firsthand knowledge again comes

from standing around the drawing board and watching him draw the X-Man and basically asking him what's
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going on and him explaining the characters.

Usually

he would say something to the effect of this is a new story I've come up with, what do you think of this and here is where I'm going with this. our discussions would go. Q Specifically with regard to the X-Men did That's how

your father say the concept and basic story of the X-Men universe was solely his creation? A I do recall him saying again along those

same lines this is the new characters and story, you know, I've come up with. Q You read Mr. Lee's testimony concerning the

creation of X-Men, correct? A Q Yes, I did. And Mr. Lee testified under oath that the

concept was his and that he assigned the book to your father, correct? A Q Uh-huh. Do you have any reason to believe that that

testimony was not correct? A Again, as I stated before, my reasons for

not believing Mr. Lee is that, you know, I have no reason not to disbelieve my father and pretty much every reason to disbelieve Mr. Lee. I just don't

believe in his deposition he was telling the truth or
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maybe he just didn't recall the truth properly. will try to be somewhat respectful. Q Are there -- apart from your own

I

recollections of what your father told you that you have testified about with respect to X-Men, are you aware of any evidence to corroborate your belief that the X-Men story was a creation solely of your father's? A I am not aware if you are referring to like

some kind of written evidence or -- I'm not quite sure exactly what you are referring to. Q Any -- any evidence, whether it is written

or something you observed. A Well, I observed him drawing X-Men, Number

1, and talking -- and talking to the -- talking about the story with me so, again, that's where it is coming from. I have no knowledge, I cannot recall

anything about there being any other type of written evidence that might exist. Q Well, if your father had been assigned the

story by Mr. Lee who had suggest an outline for the story or a synopsis, whether verbally or in writing, you would have still observed your father drawing the first issue of X-Men, correct? MR. TOBEROFF: Argumentative.
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basis of my discussions with my father.

If you are

asking me to make determinations of copyright law as to who owns what creation, I certainly don't have the game stance for that kind of question. Q No, my question is very specific. My

question is what specific characters which are the subject of those notices do you and your sisters contend were created solely by your father. A Well, I cannot speak for my sisters. I can

speak to myself from my knowledge of discussion with my father and this would be The Fantastic Four and, of course, Galactus and, of course, Silver Surfer, Nick Fury, Thor. Q That's what I can recall right now.

Do you contend that Spider-Man was the sole

creation of your father? A I would contend that my father had a hand

in the creation. Q So the answer to my question is you don't

contend that Spider-Man was the sole creation of your father? A Well, I don't have -- it would be my

recollection at the moment that he had at the very least a very large part in the creation. Q And do you have any information as to who

had other parts in the creation?
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denying that allegation. A The factual basis is like we've discussed

over the past several hours; that it is our family's contention that my father's contribution was much more than just here is an idea, go draw it. Q And I understand what you are contending.

I'm asking what the factual basis for that is given the testimony that you have already given that you don't know what preceded your father's work on the drawings that he did for Marvel. MR. TOBEROFF: Argumentative, misstates

prior testimony, asked and answered as to "factual basis." MR. FLEISCHER: This is the last

deposition, Marc, that you will get a away with this at. MR. TOBEROFF: A Ask a proper question.

My factual basis is like I have stated

several times previously and going on the basis of what my father told me during our discussions. Q You have indicated very clearly that your

father never did work for Marvel on spec, correct? A In terms of -- maybe I need to qualify In terms of would my father have pitched

that, okay?

an idea, if you don't mind my using the word "pitch,"
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you know, met with somebody else saying gee, I have this good idea for a character, you know, would you like to go for it, that he would have done it, you know. Definitely I would consider that coming up There's no -- there's

with an idea and speculation.

no guarantee if you are going to come up with an idea that they're going to say yea, nay or otherwise. sorry. MR. TOBEROFF: answer. A In terms of would he, maybe this was a Feel free to finish your I'm

little confusing before, what I was trying to get at. In terms of would he sit down and spend three days, four days, however long, actually doing -- I don't recall how long comic books were at the time, I think they were 22 pages, something like that, would he sit down and do a 22-page comic book and then bring that in to -- bring that in to Stan Lee or anyone else and go, "Would you like to buy this," probably not. Because if they said no he is So

out five days worth of work and all those pages.

in regards to just to clarify my statement as to, you know, as to on spec. Q So if I understand what you are saying, you

believe that he never sat down to draw a story until
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difference between a trademark and a copyright? A I really don't understand the difference It is only conjecture.

between the two. Q

Are you aware of any attempts by you or

your siblings to exploit any intellectual property rights with respect to any of the characters or stories your father created for Marvel? A Q I am not aware of any. Have you or your sisters ever attempted to

exploit any intellectual property rights with respect to characters or stories your father created for other publishers? A I can only speak for myself. I haven't. I

have no idea about my sisters. Q Are you aware of any attempts by Lisa or

any of your other sisters to exploit intellectual property rights with respect to characters or stories created by your father for publishers other than Marvel? A I don't -- I'm not aware of anything for

other publishers, no. Q Are you aware of any attempts on their part

to exploit rights with respect to characters or stories published by Marvel? A No, I'm not aware of anything along those
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to be worded, that's not my area of expertise. Q You were willing to suggest that the credit

that was given to your father on the Hulk film was inappropriate in some fashion. A Yes. Because I would have preferred the

word "created" in it as I mentioned before. Q Are you aware that Wolverine's first

appearance was in 1974 well after your father had stopped work on X-Men? MR. TOBEROFF: evidence. A No, I was not aware of that. No. I don't Assumes facts not in

recall that. Q Did you do any research to determine

whether any of the characters that were the subject of your notices were in fact created by your father or co-created by him? A Q A I did some. What research did you do? Oh, just some with books that I have or a

little talking with my sister and so on. Q A Q A Which sister? Lisa. And what books? Oh, just the coffee table history of comic
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kind of books. Q Can you be more specific? Are these books

that you have in your home? A Q A Q Yes, they are. And do you still have them in your home? I do, yes. And do you recall specifically what titles

and what authors? A No, I can't at the moment. There's one

book by Mark Evanier which I guess is the newest book. I think it is just titled "Jack Kirby, King of

Comics," I believe. Q Did you ever inquire of Mr. Evanier as to

whether he had any direct knowledge of the circumstances of the creation of the characters that your father drew for Marvel? A No, I haven't had any conversations with

Mark Evanier. Q Do you know if Mark Evanier was privy to

any of the meetings or discussions at Marvel between your father and Stan Lee? A Mark Evanier, as far as I know, would not

have been around at that time. Q Do you know what the basis for Mr.

Evanier's statements in the book that you relied on
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litigation was commenced? A No. I'm mean, I'm sorry, yes, you are correct in that. Q Are you aware of any significance these

pages have to the issue of the circumstances of the creation of any of the characters depicted in these pages? A of that. Q Now a lot of the pages have either captions That I honestly cannot say that I'm aware

or other handwritten notations other than the ones that appear to be actually printed. A Q Yes, I do. Let's take an example, K 10. Can you Do you see that?

identify the handwriting at the foot of the pages saying "Hunters say"? A Q That would appear to be my father's. And do you know what that notation was

intended to represent or be? A margins. My father used to add comments in the If sometimes he did not write dialogue

directly, from what I understand, he would add those comments to guide the person adding the dialogue in the balloons.
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second page of the exhibit as that of your father's? A It does appear to be his signature. MR. FLEISCHER: questions. MR. TOBEROFF: A couple questions. I have no further

EXAMINATION BY MR. TOBEROFF: Q A Just look at the camera. I'm sorry. I forgot about the camera. Do you want to switch

MR. FLEISCHER: places? A

No, he is in my good ear so that's fine. MR. TOBEROFF: Do you mind?

Q

You had testified, and I'm not purporting

to quote you exactly, but you testified to the effect that when -- on the issue of your father working on spec that your father, you characterize your father coming up with an idea on his own and then pitching it to Marvel as being on spec. Once Marvel -- in the

instances where Marvel said that it liked the idea and proceeded to do work, did you consider that work to be on spec or not on spec? MR. FLEISCHER: A Objection.

Well, in the report, in respect to even if
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