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

Filing 65

DECLARATION of Randi W. Singer in Support re: 60 MOTION for Summary Judgment.. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16-1, # 17 Exhibit 16-2, # 18 Exhibit 16-3, # 19 Exhibit 16-4, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30)(Quinn, James)

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

Doc. 65 Att. 10

EXHIBIT 10

Dockets.Justia.com

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JOHN MORROW UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC.,

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and MLV RIGHTS, LLC, Plaintiffs, v. LISA R. KIRBY, BARBARA J. KIRBY, NEAL L. KIRBY and Case No. 10-141-CMKF

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SUSAN N. KIRBY, Defendants. ------------------------------x

Video Deposition of JOHN MORROW (Taken by Plaintiffs) Raleigh, North Carolina January 10, 2011

Reported by:

Marisa Munoz-Vourakis RMR, CRR and Notary Public

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JOHN MORROW Q. A. And that continues today? It does. I think we actually told them we

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would be dropping it to just about 800 an issue now because of the economy and all sales have kind of declined. Q. Do you have any understanding with

Mr. Toberoff with regard to any arrangement to publish anything about this case in consideration of your providing a report? A. No. No. I hope after it's all said and

done that I can interview various parties involved, if they're allowed to talk about it. But, no, we don't

have an arrangement or anything like that. Q. Have you ever had any business dealings

with Mr. Toberoff prior to being contacted in connection with this case? A. No, other than my initial request to get an

interview from him, which never resulted in anything. Q. A. Q. How old are you? About 48. And would you summarize your educational

background, beginning with high school? A. Sure. Twelve years of high school diploma,

four-year college degree with a bachelor in fine arts.
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JOHN MORROW that Jack was going to be working on in the future? A. Mark. I'm not sure.

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You would need to check with

I just recall Mark said he was there when Stan So I

and Jack were hashing out a story over the phone.

know recall whether it was I think it was either for Fantastic Four or Thor, which were the two main books he was doing at the time, but I don't recall which one. And I recall the specifics of, you know, was it one that Jack had already halfway drawn and they were making changes to or it was one that Jack was about to begin, I'm not sure. answer. Q. Do you have an understanding as to whether That's why Mark would be able to

or not Stan Lee and Jack Kirby communicated with one another about the work that Jack was engaged in once he began this story and was somewhere between the beginning and the end? A. Well, actually I can't say that I do, no.

I've not heard any instances that I can recall right now of, for instance, Stan calling in the middle while Jack was drawing a story and changing anything. There

are instances of the Marvel offices, for instance, if a book wasn't doing well, quite often, Stan would ask Jack Kirby to take it over. In doing so, Marvel
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JOHN MORROW offices would send Jack these little photostats of say like the previous issue, so he could see where he's kind of jumping off from. those from the family. I have access to a lot of

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They kept those for years and

years and have loaned them to me for the magazine. Those are interesting historically, because you can kind of see well, first of all, why would -for instance, why would Jack have a Steve Ditko set of Hulk stats with a Steve Ditco Hulk story? You look and

see oh, the issue after that is one where Jack took it over. Okay, that's why it's in Jack's files. There's a lot of instances of that where you would see some totally unrelated artist's work in Jack's files. They were sending material to Jack so he

could see where he was taking over from. But as far as -- back to the question as far as knowledge of instances of Stan, for instance, getting involved while Jack was doing something? don't really recall those. I

Everything I've seen, it's There would be some

a pretty straightforward thing.

kind of story conference, whatever that would entail, and then Jack would go, do his work, he was drawing the pages, plot them, write margins in the notes, in a lot of instances, when he was done, bring them back in.
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JOHN MORROW Q. Is it your understanding that between '58

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and '63, 1958 and 1963, all of the work that Jack Kirby did that was published by Marvel was done utilizing the so-called Marvel method? A. Q. A. Is it my understanding that all of it was? Yes. No, that's not my understanding. My

understanding was that some was.

There's, as far as

which ones were and which ones weren't, you know, my understanding is that Larry Lieber has said that he provided scripts on some stories to Jack, and Jack was working from full script, but that has some pitfalls to it too. Because if you go back to when Simon and Kirby

were working for DC in the '40s, they had writers that would come in and work for them and provide scripts, and there's famous stories of writers would bring in their scripts to Joe Simon or Jack Kirby studio, and as they were leaving, they would see pages floating out the window where they would just look at them and go well, we will just do it ourselves. They would

completely write their own scripts, even though they commissioned somebody to do one. So Kirby's history bears out that. It's

just he was a very creative person, and anything he
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JOHN MORROW

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worked on he put his stamp on, and most publishers were wise enough to let him do it, because he was so creative and would come up with such interesting work. Q. Is it correct that on some occasions during

this period, from '58 to '63, you understand that Jack was given conventional scripts for work? A. I have heard Larry Lieber say that he I've not seen

provided full scripts for some material. those scripts.

I've not seen any scripts from Stan

from then, and I've not -- of all the interviews I've read with Stan, I've not heard Stan say that they weren't working Marvel method. Stan has always been

very proud about touting the Marvel method, because he felt that was something they pioneered. I've not seen

him go on the record and say no, I wasn't giving Jack scripts on all this stuff. Q. Let's make sure our lexicon is the same. Would you describe what you understand the Marvel method to be? A. Oh, sure. Marvel method, as I understand

it, is the, well, we'll use the term writer and artist, even though some can be used different term. The

writer or scripter and the artist get together, discuss an idea, then the artist will go back to his studio,
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wherever it is he does his work, and then based on that initial story conference, break the story down into panels, page by page, pace it the way the artist feels it should be, add a lot of characterization and possibly some new characters, things like that, and then bring the finished story, finished pages back in to submit for publication. At that point, the writer would take the pencil pages, in some cases they might actually type a script for the letterer to go by. In some cases, they

might actually go and pencil things in margins or write actual balloons on there. passed on to the letterer. there and the balloons. At that point, the art is They ink the lettering on

It's passed on to the inker,

so it goes to the artist's pencil drawings, so that they'll reproduce in blank ink, and, you know, I mean, that's generally the Marvel method. for story conference. They get together

The artist goes and does his

work and then turns the work back in. Q. Would you distinguish that from what I'll

call the conventional method, or the method that was used prior to the introduction of the Marvel method? A. Very different. The method that DC comics

had always used up through that period, the writer
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JOHN MORROW that point after Joe Simon and Jack Kirby left the company. Q.

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And what role, if any, did Mr. Goodman play

in the company at that time? A. Oh, well, he was the publisher. I'm

assuming he handled all the money and also helped -made publishing decisions about the company like any publisher would. Q. Did he direct Stan Lee in the type of

stories to publish? A. Based on Stan's accounts of working with

Martin Goodman in the '60s, I would say, I would assume definitely yes, because he was certainly involved, to some extent, in the '60s. So I -- there's no reason to think he wouldn't have been involved with Stan in the '40s when Stan was just starting out. Q. When you say run, you're reflecting Stan's

position as an editor or as the editor? A. Q. A. Editor-in-chief, yes. Did he have that title in 1941? I'm not sure he had the official title I believe he had the title of editor.

editor-in-chief. Q.

Turning to page five, the first sentence of
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JOHN MORROW Q. Do you have any information to the effect

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that Stan -- that Jack Kirby began drawing Sgt. Fury and the Howling Commandos before getting an assignment from Stan to do so? A. Q. No, not that he began drawing it, no. Had Stan Lee ever done war comics for

Marvel before Nick Fury? A. Q. Yes, he had. Was there something unique about Sgt. Fury

and this Howling Commandos and the war of comic genre? A. Q. A. Yes, there was. What was unique about it? Sgt. Fury was, for me, the first war comic I never enjoyed war comics.

I actually could read.

There was something about the feel and the tone of it and the level of action in it that I really enjoyed. At that point, I had never discovered Kirby's earlier war comics. But when I first saw Sgt. Fury, it was

like, okay, this is almost like superhero comics, which I like, but done as a war comic. It had a lot of the

same trademarks that the superhero comics had. Q. it? A. It was unique in the sense that it was
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It was unique in the sense that you liked

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JOHN MORROW going to be here longer than we need to be if you are answering questions I haven't asked you.

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With respect to the X-Men, are you aware of any X-Men characters that were the sole creation of Jack Kirby? A. The sole creation of Jack Kirby? No, not

sole creation. Q. Do you have any information with regard to

the -- Kirby's contribution to any of the X-Men characters? A. Q. No specific information I can add, no. Are you aware of whether Marvel ever made

changes in artwork that Jack Kirby submitted and was paid for after submission? A. That they made changes after Kirby was paid

for the accepted artwork? Q. A. Q. Yes. Yes, there were many instances. And is it true that the inker would

typically be selected by the editor at Marvel, and in most cases during the period we're talking about, '58 to '63, Stan Lee? A. Q. Yes. And some inkers would do more modification
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JOHN MORROW to pencils than others? A. Yes, stylistically speaking, their styles

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were a little heavier, so more changes would be made. Q. Apart from instances that you've already

described, are you aware of any instances in which Stan asked Kirby to make corrections in work that he submitted that Kirby did make and received payment for? A. Any instances where he made changes and was

paid for making the changes? Q. example. Was submitted. Let's just take an easy

Submitted a story and Stan asked him to make

changes on certain panels in the story right on the spot in the office? A. Yes, there were some instances of that.

There's no indication that he was paid additionally for making those changes. Q. Are you aware of any instance in which Jack

Kirby refused to make changes in accordance with directions he received from Stan or any other editor at Marvel? A. I cannot think of one. Jack was a very

dedicated employee and had a good work ethic and generally did what the editor told him. have always been happy about them, but.
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He may not

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JOHN MORROW Q.

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I think you indicated earlier, I just want

to make sure I'm clear for the record, is it your understanding that Marvel had the right to make changes in the work submitted by Kirby? A. Well, that's generally the job of an editor The editor accepts the work

in any publishing house. and they edit it. Q. A. Q.

So the answer would be -Would be yes. Yes.

Do you know whether Jack Kirby ever

received any vacation pay from Marvel? A. Q. No, none that I'm aware of. Well, are you aware that he didn't receive

vacation pay? A. My understanding is that he did not, and

that's why he produced so many pages at such a faster rate than most of the other artists, so that he could keep up with his family finances and be able to take a little time off once in a while. Q. Am I correct that you cannot testify from

firsthand knowledge that throughout Mr. Kirby's career with Marvel, he never received any form of vacation pay? A. From firsthand knowledge, no, I cannot.
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JOHN MORROW ring that gave him spider powers; whereas The Fly was an orphan boy that had a magic ring that gave him fly powers. That seemed too similar. But that's, again,

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just my assumption. Q. Is there any other similarities, in your

view, between The Fly and Spider-Man? A. None that I can think of. When you say

Spider-Man as he is today or Spider-Man as Jack Kirby would have presented it? Q. Spider-Man as he was depicted in Amazing

Fantasy number 15? A. Fantasy 15. He was depicted by Steve Ditko in Amazing Oh, well, no, there's really not much

similarity between the published version of Spider-Man, Amazing Fantasy 15 and The Fly. Q. I've placed before you Exhibit 16, which is

a copy of a document I pulled off the web site indicated on the bottom of the page a week or so ago. (The document referred to was marked Plaintiff's Exhibit Number 16 for identification.) Q. And on the third page of this document,

there are some penciled drawings. Are these the Ditko drawings that you
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referred to a minute ago, comparing Kirby's Spider-Man with Ditko's Spider-Man? A. Q. Yes. And do you agree that Kirby's Spider-Man

looks like the Simon Kirby Captain America character? A. There are similarities certainly, but there It's I

are similarities among most superhero costumes. kind of that's just the way superheros are drawn. think the finished Spider-Man is obviously very different from either of the other two. Q.

And in this document, there is a depiction

of The Fly, particularly on the second page on a couple of covers, do you see those? A. Q. Yes. And would you agree that the look of The

Fly is substantially different than the look of Spider-Man? A. Q. Yes, I would. I'd like to direct your attention again to

your report in Exhibit 9, the final version, and the first sentence of your conclusion says, and I'm going to quote it: "To recap, I believe that Kirby's work

for Marvel from 1958 to 1963 was not 'work for hire'". I had understood you earlier to have
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called in to work on the initial issues before handing it off to others to continue. Did you have in mind the other new series that you were referring to there? A. Ironman. For instance, Daredevil, Kirby

was brought in in some capacity for his covers by him. There are some character concept drawings by Kirby. The character called the Plunderer, and I forget the other one that are in early Daredevil stories that are all -- it's Kirby giving a sketch of what it should look like and writing notes off to the side of the character's, you know, personality and his powers and things like that, that were submitted to the artist who was drawing that issue to go by. Q. Ironman? A. didn't he? Q. A. Q. Yes. I believe so. I'm telling you. I'm asking you. I believe Larry Lieber scripted that, Do you know who wrote the first issue of

Is it your understanding that Larry Lieber did it? A. I would say yes.
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JOHN MORROW Q. I don't want to testify. And who drew that issue? A. Q. That's Don Heck, I believe.

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And is it your recollection that Jack Kirby

was asked to do the cover? A. Q. Yes. Now, what was the -- this Exhibit 24 an

introduction to? A. Well, based on what I'm reading here, I'm

assuming this was the one I did for the S.H.I.E.L.D. series, but let's see, since I'm talking about Shield here, it must have been for the Agent of Shield collection. Q. Now, in the fifth paragraph, you say in the While Stan scripted most of the issues

first sentence:

presented here, Kirby was undoubtedly the guiding creative force. What did you mean by Stan scripted most of the issues? A. Scripted meaning dialogue, put the words in

the balloons. Q. A. You don't mean creating the scripts? No, not working from the script, no.

Scripting and dialoguing are kind of used
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JOHN MORROW A. Yes.

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Well, with help from Shane Foley and

Sean Kleefeld. Q. And it begins with the sentence: It wasn't

all that unusual for Jack Kirby to occasionally end up with some unused pencil pages from his stories. Were those pages -- were you referring to pages that would not have been submitted by Jack to Marvel? A. Q. Generally, yes. Do you recall Stan Lee ever altering any

concept for a story illustrated by Jack Kirby? A. Q. A. Q. process? A. Yes. MR. TOBEROFF: Calls for speculation. Altering it in what way? Changing character motivations, plot? Yes. That was part of the normal editorial

BY MR. FLEISCHER: Q. I've placed before you a document entitled

Apokolips, spelled A-P-O-K-O-L-I-P-S, Now, A Major Production. A. Can you tell me what this is? Yes, this is an article I wrote on

Mr. Kirby's original version of a 1984 story that he
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