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

Filing 110

DECLARATION of Sabrina A. Perelman (Reply) in Support re: 70 MOTION in Limine to Exclude the Expert Report and Testimony of John Morrow., 67 MOTION in Limine to Exclude the Expert Report and Testimony of Mark Evanier.. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company. (Attachments: # 1 Exhibit 1)(Quinn, James)

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

Doc. 110 Att. 1

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Dockets.Justia.com

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- VOLUME B IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE

IN RE:

; Chapter 11 Case

MARVEL ENTERTAINMENT GROUP INC., THE ASHER CANDY COMPANY, FLEER CORP., FRANK L. FLEER CORP., HEROES WORLD : Case No. 97-638-REM DISTRIBUTION INC., MALIBU COMICS ENTERTAINMENT INC., MARVEL CHARACTERS: INC., MARVEL DIRECT MARKETING INC.,

and SKYBOX INTERNATIONAL INC.

11 12 13 14 15 16 17 18 19 20 21 22 23

Wilmington, Delaware Tuesday, November 16, 1999 At 1005 a.m.

BEFORE:

HONORABLE RODERICK R. NcKELVTE, U.S.D.C.J.

APPEARANCES: PEPPER HAMILTON LLP BY: DAVID B. STRATTON, ESQ. -andBATTLE FOWLER LLP BY DAVID FLEISCHER, ESQ. and JODI KLEINICK, ESQ, (New York, Now York) Counsel for Marvel Enterprises, Inc.

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Brian P. Gaffigan Official Court Reporter

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3-214 Evanier - direct 1 community of what he relies on to show that general industry 2 practice, if that is the direction you are headed. 3 BY MR. DILIBERTO: 4 Q. Okay. Mr. Evanier, in the late 19608 through December

5 31, 1977, are you aware of any custom or practice in the 6 comic book industry that gave comic book compan1s ownership 7 of materials they published? 8 A. On only a company-by-company basis, what specific

9 companies may have issued. 10 MR. FLEISCHER: Your
?cnnr

I'll

object to this

11 because it's beyond the scope of the report. Mr. Evanler, 12 in his report, gave opinions on that subject matter but was 13 unspecific as to time. And in his deposition, he indicated 14 that his report was not time specific. And, therefore, any

15 testimony that he gives with respect to these time specific
16 questions would be beyond the scope of his report. 17 TRE COURT: Overruled. MR. DILIBERTO: Thank you, your Honor. 19 BY MR. DILIBERPO: YOu were saying? Where was I? I'm lost. Okay. Yes. The question was, are you aware of any

20 Q. 21 A.

22 Q.

23 comic book industry custom or practice between the late 1960s 24 to December 31 of 1977 that would have given comic book 25 companies ownership of any characters and stories that they

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B-215 Evanier - direct 1 published? 2 A. 3 Q. Not an industry-wide practice, no. Did the issue of ownersbip of characters and stories

4 vary by different companies? 5 A. Yes, it did. In what way? Different companies had different forms, different

6 Q. 7 A.

8 documents. Some had none whatsoever.. Different policies. 9 Q. 10 So when you see, for exap1e, Joe Simon's. complaint,
{n frrTnnry your nnininn

i.s that somethina you r1.v upon

as to

11 whether creators had given a price to characters? 12

A.

I had that opinion before I saw the Joe Simon

13 complaint but, yes, in this particular case, this, the Joe 14 Simon situation here as evidenced in this document presents 15 a complete new situation let me take that back. There

16 were other examples of it, but there were quite a few 17 there were quito a few cases where business was done very 18 different. There were, no lawsuits of this kind of other 19 characters. it was specific to the Captain America. 20 Q. So is it your opinion then that creators believed that

21 they own rights to characters unless they transferred rights 22 of those characters? 23 A. I believe so, yes, Can you give other examples of creators who were

24 Q.

25 attempting to enforce rights on their characters, say, in the

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