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

Filing 114

DECLARATION of Marc Toberoff (Reply) in Support re: 73 MOTION for Summary Judgment.. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Toberoff, Marc)

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Martin was in a pretty gloomy mood that day, and he said to me, 'You know, what they don't realize, they don't realize the risk that I'm taking. books don't sell, it costs. Because if the

I lose a lot of money, and And we have

I have no guarantee the books will sell.

periods for months after month after month where I'm losing money, where the books don't sell. cut their rate. I don't fire them. But I don't

I try to keep

going as much as possible.'

And he gave me this whole

thing from the publisher's point of view." This is you speaking. Do you remember saying that at your deposition? A. Q. Yes. Now, I do, yes.

I'd like to read you an excerpt from the book The Amazing Life of Stan Lee," by Stan Lee M-A-I-R.

"Excelsior:

and George Mair. A. Q.

Mair, I think. This book was published in 2002. MR. TOBEROFF: And please mark it as

Exhibit 48. (Whereupon, Defendants' Exhibit Number LEE 48 was marked for identification.) THE WITNESS: We're only up to 48? It feels

like we've done a thousand.
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BY MR. TOBEROFF: Q. A. Q. Did you write this book, Mr. Lee? I wrote the part that wasn't in italics. And the part in italics was written by

George Mair? A. Q. Yeah. Okay. George Mair wrote the italics part. So if you could turn to Page 80, I'd

just like to read from the last full paragraph on Page 80. A. Q. Okay. I'll read. "So when a slump would hit, I kept paying our best people to continue doing strips that we really didn't need at the time, knowing we'd eventually have use for them. I simply stored the strips in a large To me it was an

office closet after they were done.

investment both in people and in inventory. "When Martin one day learned of all the material I had been accumulating for later use, he took an extremely dim view of what I had done. dim view is putting it mildly. In fact, a

For starters, he told

me that he was running a business and not a charitable institution. Then as he kept warming to the subject, a Martin

light suddenly went on inside his head.

realized that he had an expensive bullpen being paid
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every week and a closet full of complete unpublished strips. "He instantly decided he didn't need both. suppose from a business point of view, it was a rational decision. But I hated it. The bullpen was I

immediately disbanded.

Most of the salaried creative

people were let go, while I was ordered to use up all the inventory material. "Martin decided that we would only work with artists and writers on a freelance basis from that day forward, not assigning any strips unless they were definitely scheduled to be used." Do you recall writing that? A. Q. A. Q. Oh, yes. Is that accurate? Yes. And previously you mentioned that in some

publicity you would refer to the Marvel bullpen when there wasn't a bullpen. The time when there was not a bullpen refers to the time shortly after all of these Marvel employees were let go; is that right? A. Q. A. Say that again. Previously, you said that in publicity -Yes.
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Q. bullpen. A. Q. bullpen. A. Q.

-- you issued, you would refer to the Marvel

Oh, yeah. And you said at that time there wasn't a

Right. Does that refer to the period when people were

working on freelance? A. It referred to all the period. We never had a

big bullpen. had. Q. A. Q.

The kind of bullpen people thought we

But before all these people were let go -Right. -- that you refer to in the passage I just

quoted, you did have more employees; correct? A. We had a lot of artists, freelance, that we And we had -- we had a production We had a colorist or so. We had a

were keeping busy. person on staff. few people, yeah. Q. A.

But I'm referring to the passage I just read. To the what? MR. QUINN: The passage.

BY MR. TOBEROFF: Q. A. This particular passage that I just read. Right.
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Q. A. Q.

I'm not just speaking in general. Right. In the passage I just read, you speak about

how, because you had stockpiled an inventory of material, Mr. Goodman felt, Why do we have to keep people on salary, and they were fired -- and I'm paraphrasing -- and he said, From now on we're going to work freelance; correct? A. Well, we had very few artists on salary. I

think what it might have meant was he had given some artists guarantees. each month. They would get so much work to do

Whether we could -- we always used it, but

whether we could use it or not. And I think what he meant when he said to me we're just going to go freelance, we would only buy what we needed, and it wouldn't -- I would never have an opportunity to build up an inventory of unused stuff again. Q. And -- but you did have certain artists and

writers who were on staff at Marvel before you converted to a complete freelance model; correct? A. Maybe John Romita was on staff, and

Marie Severin was on -- I think as a colorist then, or maybe an artist. artists go.
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But that's about all as far as

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Q. A. Q. A.

And then they were let go -Yes. -- after this edict? Yeah. Well, they were no longer -- well, see, Romita might have been kept

again, I don't remember.

on as art director because we needed somebody to do covers and to do whatever had to be done. But we didn't any longer have guarantees to anybody. And I wasn't just buying things that maybe

we'd use and maybe we didn't use. He was just -- he just got very strict with me because I -- I had built up that inventory, which there were strips I liked and I thought we would use them, not realizing the business would be bad and we couldn't publish as many books as we wanted to. Q. I'd like to go to another, Page 94, which is

part of this Exhibit 48. A. Q. Got it. You write, "Naturally, as a result of

Wertham's War, the market for comic books disintegrated, with artists and writers being fired by the baleful. I was amazed that Martin kept me on, but

then he had to have somebody to fire all those other people for him. "Again, it was indescribably difficult for me.
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For a second time I was forced to lay off talented, hardworking people who were more than just fellow employees to me. I remember the dark day when Martin I

told me, 'Stan, we have to let the whole staff go. want you to fire everybody.' "I said, 'I can't do that.' "He replied, 'You have to. I'm going to

Florida on vacation, and someone's got to do it.' that was that." Do you remember writing that? A. Q. A. Yes. Is that accurate? Yes. MR. TOBEROFF: All right.

And

I have no further

questions, but I reserve the right to ask questions following your redirect, if you have any. MR. LIEBERMAN: Let us take up a conversation

because there's something you wanted that I want to talk to Jim about. So it's a good time for a break.

Let me talk to Jim, see if we can accommodate you during the break, during a five-minute break. MR. QUINN: Just let me talk to Arthur. Off the record, Counsel? Should I sit here? You can.
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MR. LIEBERMAN: THE WITNESS: MR. QUINN:

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