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

Filing 118

DECLARATION of Marc Toberoff in Opposition re: 111 MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),]. MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. 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)(Toberoff, Marc)

EXHIBIT A

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JOHN MORROW

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF NEW YORK

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MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC.,

6

and MLV RIGHTS, LLC,

7
8
9

Plaintiffs,
v.

Case No. 10-141-CMKF

LISA R. KIRBY, BARBARA J.
KIRBY, NEAL L. KIRBY and

10

SUSAN N. KIRBY,

11
12

Defendants.
------------------------------x

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14

Video Deposition of JOHN MORROW

15

(Taken by Plaintiffs)

16

Raleigh, North Carolina

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January 10, 2011

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Reported by:

Marisa Munoz-Vourakis RMR, CRR and Notary Public

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TSG JOB NO. 35702
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APPEARANCE OF COUNSEL:

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For the Plaintiffs:

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DAVID FLEISCHER, ESQ.

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Haynes and Boone, LLP

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1221 Avenue of the Americas

7

New York, NY 10020

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9
10
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Also Present:

ELI BARD,
VP - Deputy General Counsel, Marvel

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13
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For the Defendants:

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MARC TOBEROFF, ESQ.

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Toberoff & Associates

17

2049 Century Park East

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Los Angeles, CA 90067

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Also Present:

DeANDRAE M. SHIVERS, Videographer

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Video Deposition of JOHN MORROW, taken by

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the Plaintiffs, at Smith Anderson, 2500 Wachovia

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Capital Center, 150 Fayetteville Street, Raleigh, North

6

Carolina, on the 10th day of January, 2011 at 8:43

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a.m., before Marisa Munoz-Vourakis, Registered Merit

8

Reporter, Certified Realtime Reporter

9

and Notary Public.

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Marvel paid for them, Jack wouldn't have had the

3

opportunity to throw them in the garbage.

4

have done something with them.

5

Q.

Marvel would

Am I correct that you don't have any

6

firsthand knowledge about whether or not Jack was paid

7

for the pages you're referring to in this sentence?

8
9

A.

Well, by firsthand knowledge, was I there,

for instance?

No, of course not.

I was much too young

10

to be there.

11

books, so, no, I can't say definitively that it was on

12

the books that he was paid.

13

You know, I'm not privy to Marvel's

I know when we did -- Marvel wanted to do a

14

book called Fantastic Four Lost, which was -- I

15

assembled an unused Fantastic Four story from various

16

collector's collections.

17

this story that Marvel -- Jack had drawn in, I guess,

18

1969 but Marvel never published.

19

They had scattered pieces of

Marvel read my article in the Kirby

20

Collector and said oh, we should get that together and

21

finish it and publish it.

22

So when they contacted me about doing all

23

of that, I told them that, you know, unless there's

24

some reason to believe that they paid for that

25

originally that, you know, no, they're not going to get
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the article for free.

3

the Kirbys for that and finally pay for the page use,

4

which they did, and that's what this was.

5

paid the $325 per page to use that unpublished story.

6

Q.

They are going to have to pay

They finally

Are you aware of testimony given by Stan

7

Lee in this case to the effect that whether pages were

8

rejected or not, if he had asked Jack to draw a story,

9

he would pay for it?

10

contradict a statement to that effect by Stan Lee?

11
12

Do you have any reason to

MR. TOBEROFF:
A.

Asked and answered.

Yeah, I do, I mean, there's a lot of

13

historical references to artists saying when their work

14

got rejected, they didn't pay for it.

15

included one in here from John Romita talking about

16

when Stan canceled a story on him, he didn't get paid

17

for those.

18

I think I

But there's a lot of other instances

19

throughout all the stuff I've read and published over

20

the years, where people say things got rejected, we

21

didn't get paid for it, or, you know, Stan was always

22

asking me to make changes on things, and I didn't get

23

paid for it.

24
25

So, yeah, I've got a major reason to
dispute that.
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Q.

137

What I'm getting to is this, if you had

3

written a scientific paper, where you set forth, take a

4

wild example, the proof of Fermat's last theorem.

5

A.

Whatever that is.

6

Q.

Which is A to the end, plus B to the end

7

equals C to the end, has no whole number solution

8

greater than two, and you published that paper, the

9

scientific mathematical community would be in a

10

position to test that by looking at your calculations.

11

And I'm trying to get to is there any way the reader of

12

your report could apply some methodology to testing the

13

reliability of your conclusions?

14

A.

A methodology to test reliability?

By, I

15

assume, by reading the rest of the testimony in this

16

case, other people's depositions, that could, you know,

17

support or reject some of the things I say in my

18

opinions.

19

how to answer that question.

20

Q.

But, again, I'm not -- I don't really know

Let me direct your attention to page three

21

of your report, not the final report, that's the one --

22

Exhibit 9, and specifically to the sentence appears to

23

be the third sentence in the second full paragraph,

24

which I'll read for the record, "Prior to my 1996

25

article, the unused Fantastic Four story was unknown to
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the public at large and to the then current Marvel

3

138

Comics editorial department."

4

What is the factual basis -- well, first of

5

all, let me ask you, is it intended by you to be a

6

statement of fact that the then current Marvel

7

editorial board was unaware of the unused story?

8

A.

Yes.

9

Q.

And that's a statement of fact?

10

A.

Yes.

11

Q.

And how -- what is the basis for that

12
13

statement of fact?
A.

The main basis for that is Tom Brevoort,

14

who is an editor, or still is an editor up at Marvel,

15

when he contacted me about reassembling that story, the

16

sense I got from our discussion was that prior to my

17

doing an article in 1996, they didn't even know about

18

that story.

19

As far as the public at large, same thing,

20

all of these letters of comment that we got to our

21

publication, after we published that article or

22

actually after I published that article, we said wow,

23

we had no idea there was an unused Fantastic Four story

24

out there.

25

publication as this lost Fantastic Four story further

The fact that Marvel billed this

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leads me to conclude that no one knew about this thing.

3
4
5

139

So, yes, I intend that as a statement of
fact.
Q.

Now, apart from Tom Brevoort, do you know

6

who the other members of Marvel Comics were part of the

7

editorial department at the time?

8

A.

I'm sure I was familiar with a few of them,

9

but Tom was one of the key people there and certainly

10

if they knew what was going on, Tom would have known.

11

Q.

That's a presumption on your part?

12

A.

You could say that, sure.

13

Q.

You don't know whether or not --

14

A.

I did not speak to every member of Marvel's

15

editorial department and get a sense from them whether

16

they knew about this story.

17

there who has the most thorough knowledge of, you know,

18

Marvel's history and comics history and what they

19

published in the past, and I don't think it's any

20

stretch to think that if Tom wasn't aware of this, that

21

anyone else up there, who is much younger and less

22

knowledgeable about it, would have.

23
24
25

MR. TOBEROFF:

But Tom is the editor up

How do you spell his

name?
THE WITNESS:

Brevoort,

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mentioned it earlier.
Q.

From that, don't you conclude, at least as

4

far as Mr. Goodman was concerned, Simon and Kirby were

5

not at that time free to submit work to others as

6

full-time workers of Marvel?

7

A.

Well, you could.

You could also consider

8

that as not that they weren't necessarily free, but he

9

just took that as a major sign of disloyalty, that they

10

were doing it behind his back, and that he wasn't happy

11

with their unhappiness over the financial arrangements

12

of Captain America, so to make things easier for him,

13

he just got rid of them.

14
15

Q.

Are you familiar with the Challengers of

the Unknown story?

16

A.

Yes.

17

Q.

Who created Challengers of the Unknown?

18

A.

To my knowledge, Jack Kirby created

19

Challengers of the Unknown.

20

Q.

Is he the sole creator of it?

21

A.

There's some dispute on that.

Joe Simon

22

might have been involved in some respect, but I've yet

23

to see evidence to prove that.

24
25

We know that Kirby went to DC and did
Challengers of the Unknown.

Simon wasn't involved at

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that point.

3
4

So you could ask Joe Simon on that, but to
my knowledge, Kirby was the creator of that.

5
6

185

Q.

When was the first issue of Challengers of

the Unknown published?

7

A.

Oh, I am going to have to ask your

8

forgiveness on that.

9

It was sometime in the mid-'50s, but I don't remember

I don't remember the exact date.

10

the specific cover date.

11

number -- it wasn't in Challengers of the Unknown, it

12

was in Showcase Comics number -- what number was that?

13

I don't recall, but DC had a tryout comic, where they'd

14

try out new ideas first, and it was called Showcase,

15

and it started in there, had about three or four

16

appearances there before it got its own comic.

17

Q.

It was actually in Showcase

Do you know if Challengers of the Unknown

18

was created pursuant to an assignment by some editor at

19

DC?

20

A.

No, I don't believe that was.

I believe

21

that was something -- my understanding is that that

22

strip was probably created while Simon and Kirby were

23

doing their Mainline publishing company.

24

things went bad with that, that was a left over

25

creation that they had done on their own at Mainline
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and brought over to DC.
Q.

Do you know what arrangements with regard

4

to the copyright ownership of the work done on that

5

strip at DC were made between Mr. Kirby and/or

6

Mr. Simon and DC?

7

A.

No, I'm not, sorry.

8

Q.

Returning to the development of the Marvel

9
10
11

method, do you know what circumstances gave rise to the
development of the Marvel method by Mr. Lee?
A.

Well, Mr. Lee has gone on the record saying

12

that it was a very expedient way to do things so that

13

he could keep more artists working at the same time to

14

produce more work.

15

So whereas prior to that, he had sat at his

16

typewriter all day, supposedly on yellow legal paper,

17

and typed out script after script after script, and

18

artists, whenever they walked in, would take whatever

19

script was on top of the stack and go home and draw it.

20

For expediency sake, so he can keep his entire staff of

21

artists -- I'm not going to say staff -- all of his

22

freelancers working, he developed that method, where

23

you had a big story conference, you go on your way and

24

start working, you're a good story teller, so you can

25

plot out the pages and all that, as you see fit, and
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A.

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I believe I saw the one for Captain

3

America.

4

remember -- I don't remember any terminology -- the

5

terminology work-for-hire in anything prior to -- I

6

know the first time I even heard that term was, as I

7

mentioned earlier, Neal Adams was mentioning getting

8

the original art back and stuff, that was in the late

9

'70s, is the first time I even heard the term

10
11

It's been a number of years though.

I don't

work-for-hire, so.
Q.

So it's your testimony that when you

12

reviewed the copyright registration applications for

13

Captain America one through ten, there's no reference

14

to work-for-hire?

15

A.

I don't recall any in there, no.

16

Q.

And if it was Marvel's practice on all of

17

its copyright applications to identify the work as a

18

work made-for-hire, would that change the opinion that

19

you rendered here, to the effect that Marvel itself

20

understood that the freelance work was not work

21

made-for-hire?

22
23
24
25

MR. TOBEROFF:

Lacks foundation,

assumes evidence, assumes facts.
A.

Well, I think that's -- no, that's

irrelevant, because the creators involved, I don't
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no, I don't believe I relied on this for the report.
Q.

I place before you Exhibit 19, which bears

production numbers JM282 through 285.

5

(The document referred to was marked

6

Plaintiff's Morrow Exhibit Number 19 for

7

identification.)

8

Q.

Is this a document that you prepared?

9

A.

Yes.

10

Q.

And it's headed list of research materials

11

in possession of John Morrow.

12
13
14

What was the purpose for your preparation
of this document?
A.

You had sent a request for documentation

15

from the expert report, people who were doing expert

16

reports, which Mr. Toberoff's office forwarded to me,

17

and if I'm remembering correct, I believe part of that

18

request was you guys were asking for this.

19
20
21
22
23

Q.

Where are the documents that are identified

in Exhibit 19?
A.

The items listed are all in my home about

20 miles from here.
MR. FLEISCHER:

Let me make a request

24

for the record for copies of the Birnbaum

25

interview identified under item five.
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are not questions.

3

things for the record that we would like to

4

have.

5

I just want to identify

MR. TOBEROFF:

Could I make a

6

suggestion that we had asked a long time ago

7

if there's anything on this list you want,

8

please let us know, and you didn't.

9

best thing to do is just send me a letter.

10
11
12

MR. FLEISCHER:
Marc.

The

This is more for me,

I made note of them in preparation.
So the other ones on this document

13

that I'd like to see are the documents

14

under -- identified in number seven on

15

Exhibit 19, number 10 and number 11.

16
17
18

We'll take a break now.

The tape

needs to be -THE VIDEOGRAPHER:

19

4:05 p.m.

20

We're off the record.

21

(Recess.)

22

THE VIDEOGRAPHER:

The time is

This is the end of tape number 6.

23

4:13 p.m.

24

number seven.

The time is

This is the beginning of tape
We're back on the record.

25

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3

A.

Q.

A.

10

No, I wish I were, but no, I was 13 then.

That would have been a lot of fun.

8
9

By any chance were you at the San Diego

Comic-Con in 1975?

6
7

No, I have no reason to think they would be

inaccurate.

4
5

256

Q.

I've placed before you a document

consisting of two pages.

It appears to be an article

entitled Leave Them Wanting More, by John Morrow.

11

(The document referred to was marked

12

Plaintiff's Morrow Exhibit Number 23 for

13

identification.)

14

Q.

Can you identify this document?

15

A.

I believe I wrote this for a collection of

16

Marvel's Nick Fury Agent of S.H.I.E.L.D. series.

17

Q.

The bottom of the first page there's a

18

sentence that begins:

19

the next page that Jim was running late with the final

20

installment of the Tale and as an assurance against

21

missing the deadline, Stan called up Kirby and asked

22

him to pencil an issue that'd fill -- that's that,

23

apostrophe D -- 20 pages without actually advancing the

24

plot.

25

Legend has it, and runs over to

Well, first of all, let me ask you if you
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have any information with regard to whether these

3

257

fill-in pages were pages for which Kirby was paid?

4
5

A.

pages that were published.

6
7

Q.

And they were intended as an assurance

against Jim Steranko not turning in his pages on time?

8
9

Oh, I would assume, yes, they were actually

A.

Not assurance exactly, they thought

Mr. Steranko wasn't going to turn in his pages in time

10

and had to get the issue out on time, so they turned to

11

Jack Kirby, knowing he could turn a story around in a

12

weekend.

13

America and we need it by Monday, and you can't tell a

14

story with it.

15

it is, because then the next issue we are going to

16

publish Steranko's conclusion to the story.

And said Jack, we need an issue of Captain

You just have to keep the story where

17

Jack drew the story, turned it in, it was

18

published, and then the following issue they ran part

19

three of Steranko's story.

20

Q.

Was that the last one or the penultimate

22

A.

Which one?

23

Q.

You said that Kirby's fill in was to -- was

21

one?

24

restricted to the story line that was in the preceding

25

issue.

And so that the final issue -- I thought I
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understood you to say so that the final issue would

3

also be consistent.

4

doing was the issue -- same issue that Kirby did, same

5

story, right?

6

A.

Was the pages that Steranko was

Well, Steranko had a three-part story in

7

the works.

8

in the second issue on time and they were published.

9

But it was obvious to the people of Marvel that he was

He got in the first issue on time.

He got

10

going to miss his deadline for part three of that

11

story.

12

running and get an issue out on time.

13

come up with something to fill that until Steranko got

14

his story finished so that it could be in -- the third

15

part could be in the fourth issue.

16
17

They still had to keep the printing presses
So they had to

So they just had an empty hole there, and
they had to fill it with something.

18

So they called in Jack Kirby, asked him to

19

create a story over the weekend, to print it in, that

20

was issue 112, I believe, of Captain America.

21

Otherwise they wouldn't have had an issue to ship that

22

month.

23
24
25

Q.

And then they ultimately did publish the

third installment that Steranko did?
A.

They did, but a month late, because they
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went ahead and published Kirby's fill-in story.

3

Q.

And the idea was that Kirby's story

4

couldn't advance the plot at all, because that might

5

affect what was already in the works with Steranko?

6

A.

Right.

7

Q.

I've placed before you what I have marked

8

as Exhibit 24, and it appears to be a two-page document

9

and it's entitled:

10

Introduction by John Morrow.

(The document referred to was marked

11

Plaintiff's Morrow Exhibit Number 24 for

12

identification.)

13

Q.

Is this a document that you wrote?

14

A.

It is.

With all these introductions,

15

Marvel editorial staff had the ability to change

16

things.

17

them.

18

I don't recall any major changes on any of

MR. TOBEROFF:

I just want to note for

19

the record it's a bit hard to read.

20

very dark, at least for me.

21

MR. FLEISCHER:

It's

I agree that it's

22

dark, but I also would submit that it's

23

entirely legible.

24
25

Q.

There's a statement in the third paragraph:

As usual, for most new issues in the 1960s, Kirby was
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interchangeably, or at least our company does.
Q.

Is it interchangeably anywhere else, other

than your company?

5

A.

A lot of scholarly comics publications do.

6

Q.

Is there such a thing as a scholarly comic

7

publication?

8

A.

9
10

Well, ours are scholarly publications.

I

consider them that.
Q.

I've placed before you Exhibit 25, which

11

bears production numbers PHP3278 through -- oh, no,

12

right, it's an internal number.

13

PH3278.

14

They are all labeled

In any event, it's a document entitled Joe

15

Sinnott Interview, Interviewed by John Morrow on

16

December 18, 1995.

17

(The document referred to was marked

18

Plaintiff's Exhibit Number 25 for

19

identification.)

20
21
22
23
24
25

Q.

Is this document an interview that was

published that you did of Joe Sinnott?
A.

Yeah, I believe it was published in Jack

Kirby Collection number nine, if I remember correctly.
Q.

And is the transcription of the interview

set forth here an accurate transcription?
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263

A.

Yes, I was doing all my own transcribing in

3

those days.

I would do some editing as I transcribed,

4

so this is an edited version.

5

Q.

I've placed before you Exhibit 26, which is

6

a document entitled:

7

Can you tell me what this is?

8
9

A.

Journey into Mysteries Avenger.

It's actually Avenger Reassembled, it's a

piece -- hang on a second.

10

(The document referred to was marked

11

Plaintiff's Morrow Exhibit Number 26 for

12

identification.)

13
14
15

Q.

Oh, I see, the title goes over into the

next page?
A.

Across.

This is a, much like we did with

16

that Fantastic Four story that was not published, there

17

were a lot of these unused store pages that are all

18

from the same sequence.

19

together into the, what we perceived to have been

20

Mr. Kirby's original version of the story and tried to

21

from that deduce, you know, what happened, why the

22

pages got rejected and what the original story would

23

have been.

24
25

Q.

And we tried to put those back

And the article begins, I'm sorry, and

you're the author of this?
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