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 C

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF NEW YORK

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MARVEL WORLDWIDE, INC., MARVEL

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CHARACTERS, INC., and MVL RIGHTS, )

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LLC,

)

)

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)

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PLAINTIFFS, )

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)

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VS.

)NO. 10 CV 141 (CM)(KNF)

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)

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LISA A. KIRBY, BARBARA J. KIRBY,

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NEAL L. KIRBY and SUSAN N. KIRBY, )

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)

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DEFENDANTS. )

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__________________________________)

)

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VIDEOTAPED DEPOSITION OF MARK EVANIER

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LOS ANGELES, CALIFORNIA

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DECEMBER 6, 2010

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REPORTED BY: CHRISTY A. CANNARIATO, CSR #7954, RPR, CRR

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JOB NO.: 34168

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December 6, 2010

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9:35 a.m.

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Deposition of Mark Evanier, taken on behalf of

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Plaintiffs, held at the offices of Paul Hastings,

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515 S. Flower Street, 25th Floor, Los Angeles,

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California, before Christy A. Cannariato,

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CSR #7954, RPR, CRR.

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A P P E A R A N C E S

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REPRESENTING THE PLAINTIFFS:

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WEIL, GOTSHAL & MANGES

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BY:

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BY: RANDI W. SINGER, ESQ.

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767 FIFTH AVENUE

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NEW YORK, NY

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JAMES W. QUINN, ESQ.

10153

-AND-

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HAYNES AND BOONE

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BY:

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1221 AVENUE OF THE AMERICAS, 26TH FLOOR

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NEW YORK, NY

DAVID FLEISCHER, ESQ.

10020

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REPRESENTING THE DEFENDANTS:

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TOBEROFF & ASSOCIATES

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BY:

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2049 CENTURY PARK EAST, SUITE 2720

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LOS ANGELES, CA

MARC TOBEROFF, ESQ.

90067

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ALSO PRESENT:

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ELI BARD, DEPUTY GENERAL COUNSEL MARVEL ENTERTAINMENT

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CHRIS JORDAN, VIDEOGRAPHER

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with other people relating to Marvel history who had done

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similar interviews or investigations over time.

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those people be?

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A.

Who would

Well, I spent an awful lot of time talking to

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people about comic book history.

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naming names?

Want me to just start

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Q.

Yeah.

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A.

Yes, I talked to John Morrow many times.

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Q.

Did you talk to him in connection with his

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Did you talk to John Morrow?

acting as an expert in this case?

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A.

No, I did not.

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Q.

Who else have you talked to?

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A.

About?

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Q.

About Marvel history.

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A.

Marvel history?

Every year I go to the Comic

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Convention in San Diego and talk to dozen, if not

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hundreds, of people about Marvel history.

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conventions all the time, and I talk to people there.

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talked to a pretty large percentage of people who worked

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for Marvel or worked freelance for Marvel or did freelance

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work for Marvel or were around the offices.

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MR. TOBEROFF:

I go to

You can name names.

Even if

I

there are hundreds, you can still name names.
A.

Names.

about Marvel:

All right.

People I have talked to

Steve Ditko, Don Heck, Wally Wood, Gene

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Colan, John Buscema, Saul Buscema, Marie Severin.

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say Roy Thomas?

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Brodsky, Janice Cohen, John Verpooten, Tony Mortellaro,

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Herb Trimpee, Chick Stone, Joe Sinott, Frank Giacoia, Mike

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Esposito, Barry Smith.

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Did I

Gary Friedrick, Alan Brodsky, Sol

These are just people who did work for Marvel

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or did freelance work for Marvel.

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at other companies about Marvel history.

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I have talked to people

Getting back to people at Marvel, Len Wein,

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Marv Wolfman, Steve Englehart, Steve Gerber, Gerry Conway,

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Dan Adkins, Vince Colletta, Syd Shores.

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I apologize.

You're going to have to look up

a lot of these on the Internet to find the spellings.

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George Tuska, Johnny Craig, Archie Goodwin.

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Did I say Jim Shooter?

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Kalish, Peter David.

Tom DeFalco, Mark Gruenwald, Carol

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Q.

That's fine.

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A.

I've got about another 300 if you want to take

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the time.
Q.

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No, we can move on.
But I'm correct that in connection with the

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actual preparation of your report, you didn't actually

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discuss -- have the interviews with those people; correct?

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A.

No.

And quite a few of those people are

deceased.

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Q.

Do you know whether all those people actually

worked at Marvel between 1958 and 1963?

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A.

Some of them did.

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Q.

And others didn't?

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A.

Correct.

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Q.

In fact, during that period of time,

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between '58 and '63, Marvel had a very small staff; right?

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A.

Correct.

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Q.

So most of those people didn't work there

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between '58 and '63, did they?

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MR. TOBEROFF:

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A.

Vague as to "worked

there."

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Objection.

Well, I talked to a very large percentage of

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people who either worked on staff at Marvel between '58

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and '63 or did freelance work for Marvel between '58 and

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'63.

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Q.

Marvel between '58 and '63 that you talked to?

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MR. TOBEROFF:

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Do you know who the people were who worked at

A.

Same objection.

Vague.

Are you talking about people in the office or

talking about freelancers?

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Q.

Either.

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A.

All right.

Well, in the office there was Stan

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Lee.

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I'm not sure if Nancy Murphy was there at that time.

There was Flo Steinberg.

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There was Sol Brodsky.

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I

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briefly met Martin Goodman.

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think -- well, Stan Goldberg was partly on staff during

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that time.

But between '58 and '63, I

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Q.

How about Larry Lieber?

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A.

Larry Lieber was freelance during that period,

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I believe.

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I don't believe he was on staff.

Q.

But he was working from Marvel between '58 and

A.

He was in the freelance category, I believe.

'63?

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MR. QUINN:

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MR. TOBEROFF:

I though I said either.
You can continue with your

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answer because he asked for both freelance and at the

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office.

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A.

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In freelance, people who worked for Marvel --

excuse me.

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People who did freelance work for Marvel

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during '58 and '63 would include Jack Kirby, Steve Ditko,

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Don Heck, Dick Ayers, Gene Colan, Vince Colletta, Russ

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Heath, Stan Goldberg, Al Hartley.

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out.

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Leaving some people

These are people who I spoke to.
John Buscema did, I think, a few jobs for them

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during this period.

Bill Everett did a few jobs for them

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during this period.

Joe Sinott, Larry Lieber, Don Rico.

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I think George Roussos.

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Reinman, Artie Simek, Sam Rosen.

I'm missing somebody.

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Paul

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to the comic as a co-creation.

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Q.

But you are aware that Mr. Lee has said that

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he did do the plot outline and gave it to Mr. Kirby before

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Kirby started to draw?

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A.

Q.

Now, you say in your expert report in

paragraph 15 --

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10

And he still sometimes referred to Jack

as the co-creator of the comic.

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Yes.

A.

Okay, I'm losing my paperwork here.

Hold on

here.

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Q.

Exhibit 1.

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A.

Paragraph 15.

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Q.

Page 15.

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A.

Okay.

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Q.

"The Fantastic Four contained so many elements

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Page 15 or paragraph 15?

I'm sorry.

Second paragraph on page

15.

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that have antecedents in Kirby's other work, particularly

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his Challengers of the Unknown for DC Comics."

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Do you see that?

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A.

Yes.

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Q.

It's fair to say that it was not uncommon for

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comic books to have a team or a group of characters;

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right?

That wasn't something all that new, was it?

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A.

It wasn't that common.

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Q.

It wasn't uncommon either, was it?

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A.

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Let me think about that for a second.
When Challengers of the Unknown came out, it

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was the first comic in quite some time that had four

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characters.

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most team comics were huge.

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spawned a whole series of four-person teams in comics, DC

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and at other publishers.

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in that momentum.

Usually teams were either huge or -- well,
Challengers of the Unknown

And The Fantastic Four followed

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Q.

Justice League, was that --

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A.

That was about nine characters.

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Q.

But was that before or after Challengers of

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the Unknown?

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A.

Justice League followed Challengers.

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Q.

Okay.

And it's not uncommon in these

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circumstances for a group to have, you know, a leader and

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a muscle man and a girl?

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A.

Yes, it would be -- when Challengers of the

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Unknown came out, that was uncommon.

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Unknown did not have a girl in it.

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Q.

Did it have comic relief?

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A.

Yes.

Challengers of the

There was a character in it named Rocky

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who was a dese, dem, and does type guy, talked low with a

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Brooklyn accent, very much like The Thing with the

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Fantastic Four.

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MR. TOBEROFF:

I reject to the pun.

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THE WITNESS:

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MR. TOBEROFF:

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A.

No.

When you said comic

relief.

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You're objecting to me now?

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No, I thought he meant comic relief for real.
There was a lighter character.

There was a

professorial type character.
Q.

You say at the bottom of page 15 that you find

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it highly unlikely that Lee acted alone in conceiving

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these characters.

Is it your testimony that Lee is just

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misremembering or lying?

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his version is false?

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A.

Or how have you concluded that

Well, I am addressing one of his versions.

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When I have talked to Stan, he talks about -- he has in

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the past frequently talked about Jack coming up with ideas

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left and right for everything they did.

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And so when you've got this person like Jack

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Kirby who was famous for coming up with ideas for new

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characters, and when you look at the way these men always

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worked, the way they had worked on unimportant nonseries

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romance stories before then, when Jack was involved in

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plotting the things, I don't understand the logic behind

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leaving -- omitting Jack from the process of creating what

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was going to be a very important new comic for them.

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don't see the reason to leave him out of that process.

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you were an editor or writer, you would beg to have a guy

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like that in the room helping flesh out whatever ideas you

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had, change them, and bring in his input.

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I'm not saying Stan is lying.

I'm saying he's

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choosing his words carefully, remembering a version.

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disagree with Stan about some aspects of Marvel history.

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We've had friendly arguments about certain issues and

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certain comics and how things came about and how they were

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published.

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show him evidence.

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I

And sometimes I get him to agree with me.

Q.

I

Well, one thing we've established, during this

period from '58 to '63, Stan was there, and you weren't.

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A.

Yes.

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Q.

You say in your expert report at page 15

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carrying over to 16 that "It is also worth noting that

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Stan Lee did not create any important characters either

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before Jack Kirby first worked with Lee or after Jack

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Kirby stopped working with Lee in 1970."

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Do you see that bottom of 15 over to 16 in

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your report?

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A.

Hold on here.

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Q.

After he stopped working for Lee in 1970, what

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Yes, I see that.

successful characters did Kirby create?
A.

Well, he created a series for DC called The

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New Gods.

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most important villains in Allied DC Comics.

Featured a villain called Dark Side, one of the

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Did a book