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. 5

EXHIBIT 5

Dockets.Justia.com

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ) ) ) PLAINTIFFS, ) ) vs. ) No. 10-141-CMKF ) LISA R. KIRBY, BARBARA J. KIRBY, ) NEAL L. KIRBY and SUSAN N. KIRBY, ) ) DEFENDANTS. ) ___________________________________) MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC. and MVL RIGHTS, LLC,

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VIDEOTAPED DEPOSITION OF NEAL KIRBY Los Angeles, California Wednesday, June 30, 2010

Reported by: SUSAN A. SULLIVAN, CSR #3522, RPR, CRR JOB NO. 31595
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A Q

That's correct. Would you state their full names and birth

dates for me if you can. A My oldest sister is Susan. Her birth date

is December 6, 1945.

My sister who is slightly Her birthday is I

younger than me is Barbara.

believe November 26th and I think that -- I think she was born in '53. And my youngest sister is Lisa and

I believe her birthday, I'm going with September 6th on this one. Q A September 6th? If I recall right. Well, let's see. She

is about 13 years younger than I am so that would be -- she was probably born in '61, I guess. Q Somewhere I had a note that Barbara was Is that possible?

born in '52. A Q A Q A Q A

It is possible, yes. And what is your birth date? My birthday is May 25th, '48. Do you have any children? Yes, I do. How many? I have two children by my first marriage

and one with my current wife. Q And would you just give me the names of
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MR. TOBEROFF: MR. FLEISCHER:

Let's take a short break. Let's go off the record. This marks the end of

THE VIDEOGRAPHER: DVD Number 1. (Recess) THE VIDEOGRAPHER: a.m.

Off video at 11:42 a.m.

Back on video at 11:51

This marks the beginning of DVD Number 2

of the video deposition of Neal Kirby. BY MR. FLEISCHER: Q Mr. Kirby, have you ever discussed the

termination notices which are the subject of this lawsuit with Mr. Evanier? A Q No, not with Mr. Evanier. Have you ever discussed the termination

notices with anyone other than Mr. Toberoff or a member of his law firm? A Q Not that I can recall, no. Did you ever attend any meetings between

Mr. -- you are Mr. Kirby -- between Jack Kirby and anyone at Marvel at the time Mr. Kirby was working for Marvel? A No, I was not -- if I went into the office,

I wasn't party to any meeting. Q I'm sorry, you said you went with him to

the office but you didn't attend any meetings?
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A

Yes, as a child, as a kid occasionally my

parents were nice enough to let me play hooky once in awhile and I would go sit in with my father if he had to go and bring in artwork and go up to Marvel's office and just kind of sit and wait for him; a little bit later go to the zoo or something. Q Did you have an understanding at that time

about who your father was meeting with when he went to the offices of Marvel? A I would just assume he would be meeting

with Stan Lee or some other person in charge, I guess. Q Do you have any recollection of discussing

with your father any of the meetings he had had with Stan Lee? A Q No, I don't. Was it your father's practice to talk with

you about the subject of those meetings or not? A Q No, not really. I don't recall right now.

Did you have an understanding of the

purpose of the meetings your father was having with Mr. Lee or anyone else who might have been behind that closed door? A Well, I suppose you might say as a kid it

was my understanding he was bringing his artwork to
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New York, gave it to them; they looked at it, they bought it or didn't and on he went. Q Did you have any understanding at the time

that part of the function of the meetings was to discuss future assignments or work? MR. TOBEROFF: A Q No, I didn't. Am I correct then that you have no Assumes facts.

knowledge whatsoever of any discussions between your father and Stan Lee concerning your father's work for Marvel? A Q I was never a party to any discussion. Did your father ever tell you anything Mr.

Lee had said to him? A He never -- I don't recall. I don't recall

anything specific where my father said something like Stan said this or anything, no. Q Do you have any recollection of your father

bringing in artwork that Marvel did not pay for? A Yes, I do because, I know from time to time

it was kind of a topic of discussion at the dinner table where my father would be upset, he might have brought in some pages and whatever might have been something that they didn't like with the pages and they had to redo them and I would know he and my
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don't recollect specifically, only that it was at dinner so I would assume that Susan and Barbara might have been there. Q Are there any documents or drawings or

articles that you could refer to to refresh your recollection of which you are aware about the specifics of the discussions that you were privy to between your mother and father? A Q I'm not aware of any, no. Did you have an understanding one way or

another as to whether the work your father presented to Marvel was being done as a result of a request by Marvel that your father do the work? A I don't recall as a child, you know,

knowing that, knowing the circumstances under which he did the work, only that he did do the work and occasionally brought into New York City. Like I

said, it was my understanding at the time, he would bring it in, they would look at it, they would buy it or they didn't. Q Apart from this one Thor drawing, can you

recall any instance that you witnessed that your father brought in work that he did not -- that he returned home with? A Not when I was with him, no.
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co-created for other publishers. A I believe characters such as Fighting

American, there were some horror comics that he did, Black Magic and Young Romance during the late forties, early fifties, some -- honestly I don't know if it was the Marvel or pre-Marvel entity in terms of the characters but Challengers of the Unknown, The Fly which he did with Joe Simon. Oh, I'm sorry, am I

not -- I'm moving out of the way there. He did, let's see, Ant-Man. Q A Q A Q by Marvel? A No, I don't. I don't know who the Ant-Man, did you say? I believe it was called Ant-Man, yes. A-n-t? A-n-t, yes. Do you know whether Ant-Man was published

publisher is. Q A more. Q Okay. Any others come to mind?

Not that I -- I'm sure that there are many I can't recall any at this particular moment. Do you have any firsthand knowledge of your

father working on any character or story which is the subject of one of the termination notices here before being asked by Stan Lee or someone else at Marvel to
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Q

But my question is do you know whether any

of those characters was created -- do you have knowledge one way or the other as to whether those characters were created pursuant to specific assignments or commissions by Marvel? A Q No, I don't. Forgive me if I've asked this before, it is

not my intention to repeat questions, but did your father ever discuss with you or in your presence any assignments he had received from Marvel or Stan Lee? MR. TOBEROFF: evidence. A Q Not that I can recollect right now. Do you know how your father was paid for Assumes facts not in

the work he did and was published by Marvel? A Well, like I said previously, he would

bring the work when I was there, anyway, he would bring the work to New York, bring in the pages, and I believe he got paid by check in the mail. Q Do you know the basis for the payments that

he received for the work? A Q He got paid by the page that they bought. And was that something that you knew at the

time or something that you have learned since? A No, I knew that at the time.
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Q

Did you have an understanding at the time

that that was consistent with the way other comic book artists were paid? A Q A Yes, I did. And how did you come by that understanding? In just by kind of, you know, discussion.

I could not tell you the specific time or instance but I know from time to time, you know, he said that's how he got paid, by the page. Q Did you have an understanding at the time

how much he was being paid by the page? A Q No, I didn't. Did he ever discuss financial matters in

your presence? A No. MR. TOBEROFF: Excuse me. Give me time to

object to the question before you answer. THE WITNESS: MR. TOBEROFF: "financial matters." A paid, no. Q Did he ever discuss how much he got paid in If you are referring to how much he got Sorry. Vague and ambiguous as to

relation to other comic book artists? A No.
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in front of me, if that's what you are referring to. Q You indicated that you weren't privy to the

conversations that occurred between your father and Stan Lee or others at Marvel even when you were at the offices. A Q That's correct. But when he came home or when he left the

Marvel office and you were together did he ever indicate that he had been asked to make changes in pages? A I don't recall him like at any particular

time when I was watching him draw, I don't recall him at any particular time going, "Oh, I need to make this change because they asked me to," no. Q Is it possible that your father had

delivered work to Marvel and was asked to make changes and, in fact, took the work home and did make changes and resubmitted it? MR. TOBEROFF: A Calls for speculation.

I would have no way of knowing that. MR. FLEISCHER: Marc, your objections are

speaking objections and I have not taken issue with it but the objection that you are supposed to make is objection to form. You are not

supposed to say assumes facts, you are not
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A

Yes.

Because he had either created or

co-created most of their characters, if not all of their characters during that timeframe. If it wasn't

for him the company might have and probably would have gone down the tubes. And he put all of his

heart and work and effort, even 16, hours a day, I remember that, doing all this work and got paid by the page and Marvel and other people at Marvel got very wealthy. Q Was she referring to anyone in particular

when she said Marvel and other people at Marvel got wealthy? A Well, in particular Stan Lee and, you know, And I should say,

Marvel as a corporate entity, yes.

I would like to say it wasn't so much the matter of the wealth, that was probably a poor choice of words on my part. I think the genuine really cause for her

upset is that he never really got due credit for what he did. Q Did she ever indicate to you that he had

been treated differently than other talented comic book creators during the time that he was working for Marvel and other publishers? A Q Treated differently in what respect? Either in terms of payment or credit or any
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other aspect of the work. MR. TOBEROFF: A Compound.

I don't recall ever discussing with my

mother how much my father was paid by the page in relation to any other artist, no. Q Did you have an understanding that your

father -- withdrawn. Did you have an understanding that other comic book artists were paid by the page during the time that your father worked in the industry? A Yes. I guess it was you might say common

knowledge that that's how comic book artists were paid. Q And was it your understanding that the

writers of comic books were also paid by the page? A Q That I had no knowledge of. Do you recall ever having a discussion with

your father with respect to the contribution, if any, that Stan Lee or other writers at Marvel had to the stories that he was working on? A I know my father was -- there were times

when he was visibly upset if Stan Lee, say, would take credit for something my father was done or didn't get due credit for something that my father had done.
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the course of, I don't know from, maybe when I was eight years old onward, maybe even younger, up until I left for college it was kind of my daily habit. I

would come home from school, go downstairs, you know, say hi to my father, see what he was working on, you know. He would kind of tell me what he was drawing,

what he was doing. I would go upstairs, get a snack, get my books and I would go back down in the basement to do my homework because I kind of liked being in proximity. And I was doing homework, go into the And

studio and watch, go back out and do homework.

eventually we would get my homework done and we would watch T.V. together. he worked. Q Now did your father ever discuss with you At least I watched T.V. while

any deadlines he had in connection with the work that he was doing for Marvel? A He would occasionally say that, you know,

that he had to get a certain story in by a certain day or something to that effect. Q And I think you said that at certain points

in time your father often worked into the -- worked 16- to 18-hour days. A Yes.
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Q A Q A

If I recall your testimony earlier. Uh-huh. Do you know why he worked those long hours? He worked those long hours because he was The more pages he could

getting paid by the page.

do, the more money he earned. Q Do you recall whether those hours had

anything to do with his effort to meet specific deadlines? A Specifically, I couldn't say. Those long It wasn't like

hours were consistent over the years.

a deadline coming up, I'm going to work long hours. Those were his consistent hours. Q Would you say those were his consistent

hours between 1958 and 1963? A I would say at least in the period of my

good memory, if you wanted to do that, at least in the -- through, say, early sixties through when I went off to college, yes. Q Just to set the context for how old you

were at the time, in 1958 you would have been 10, correct? A Q 10, yes. And when would you put the point at which

your recollection is its best with regard to the
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events concerning your father's work? A Probably from that point to when I went,

left for college in September of '66, and my recollection during those years was that he always kept very long work hours. He would start working

around lunchtime usually and would work until usually 3:00 or 4:00 in the morning. Sometimes -- sometimes

he had to start earlier and sometimes he would go later. But always put in a lot of hours, usually There wasn't any weekend he

six, seven days a week. didn't work. Q

Did you have any sense at the time, at any

point between the time that you were 10 and you went off to college as to where in the spectrum of comic book artists' compensation your father stood? A Q At that time, no. Did you later come to have an understanding

about where he stood in the spectrum from low to high of compensation during those years? A I never had an understanding or I never

knew where he stood let's say in relation to a specific artist and I never knew exactly how much he got paid for, you know, per page. I mean, however,

obviously I -- they had a house and we all ate every day so I assume he made enough money.
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your father confided work-related issues in the fifties or sixties at any time? A No, I'm not aware of any. There might have

been but not that I can recall. Q You were never present at a conversation

where you heard your father discussing work issues with another non-family member; is that correct? A Q Correct. That would be correct.

I want to go through a few specifics with

regard to some of the characters that are the subject of the termination notices at issue in this and let me start with Spider-Man. Do you have any information with regard to the circumstances under which the Spider-Man character was created? A I'm not -- I'm not aware of any specific

information as to the creation of Spider-Man. Q Do you know if your father created the

Spider-Man character or co-created the Spider-Man character? A I'm aware that he had a hand in the

beginnings of the character and in the design of the character. You know, again, as to meetings that

might have taken place, I wouldn't have been privy to that.
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Spider-Man was created with your sister Lisa? A Q A them. Q Do you have any specific information with No, I haven't, that I can recall. How about with Barbara or Susan? No, I don't recall discussing that with

regard to your father's contribution, if any, to the actual creation of the character other than penciling the cover for the first issue? A That's -- he may have done more. I don't

have, that I can recall, any other specific information. Q Were you ever told by your father that he

had been assigned to draw the first Spider-Man and that his style of drawing was ultimately determined by Stan Lee to be too heroic for the character? MR. TOBEROFF: A Compound.

If I recall at the time Spider-Man was

being created and the script started, I know he did mention that because of all the other strips that he was doing, FF and Thor and so on, that he was too busy to do Spider-Man. Q A And did he tell you that at the time? I believe it did come up. Again, I

couldn't recall a specific date or time or how the
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he would get upset when Spider-Man was brought up, so to speak, you know, that, again, he and others involved basically didn't get any credit. Q Of your own firsthand knowledge do you know

whether the concept for the Spider-Man character and the basic powers of a Spider-Man character were conceptualized initially by Stan Lee or someone else? A Well, I would say my firsthand knowledge,

my first guess would be my father just because of his -- just his knowledge of science, his use of science fiction in stories, just in his if you want to call it pattern, for lack of a better word, of how do you get a human to have super powers, you know, without direct intervention from God. Well, the best

way to do it was somehow altering DNA which was the big thing at the time with the Cold War going on and so on. Q Now is it true that what you just described

is your own speculation and, in fact, is not based on your knowledge of how the idea was first floated? A Well, I'd say it is based on my knowledge

of how my father worked and his knowledge and in my personal discussions with him at the time I certainly felt that way. Q Well, leaving aside how you felt, can you
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testify as a matter of fact that Stan Lee didn't come to your father initially with the idea of the Spider-Man character? A Well, I can't -- I can't say what might or

might not have been discussed between my father and Stan Lee or Stan Lee and anybody else given that I was a teenager and not privy to those discussions. MR. FLEISCHER: Kirby 2. MR. TOBEROFF: Thank you. Would you mark this as

(Neal Kirby Exhibit 2, a document, marked for identification, as of this date.) Q Mr. Kirby, I place before you an article

marked for identification as Neal Kirby Exhibit 2. A Q Uh-huh. Have you ever seen the story reflected in

this exhibit? A I will let you know as soon as I read it. MR. TOBEROFF: It is hard to tell looking Can you tell me what

at the exhibit what it is. this is? entry. MR. FLEISCHER:

Or I should say this looks like a blog

Apart from what it appears

to be on the face of it, I can't offer you any information about it.
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Q

Have you ever seen the interview your

father appears to have given to The Spirit creator Will Eisner concerning the Spider-Man character? MR. TOBEROFF: evidence. A Q No, I haven't seen that interview. What information, if any, Mr. Kirby, do you Assumes facts not in

have concerning the circumstances of the creation of the Iron Man character? A I'm trying to recall. At this time I don't

have any recollection of Iron Man specifically, how that came about. Q Do you know what contribution, if any, your

father made to the Iron Man character? A Again, I believe at the very least, I As to the initial

believe he designed the costume.

idea and creation of the character, I'm sure at the very least he probably contributed to that. Q part? A Well, I wouldn't call it speculation, I Is that just shear speculation on your

would call it based on -- based on the knowledge of that he pretty much had a hand in everything Marvel did and based on my knowledge of his creativity. Q Well, was he the artist assigned to draw
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the initial issue of Iron Man? A Q That I do not know. Do you have any basis to contradict Mr.

Lee's testimony that the concept for the Iron Man character was his? A Do I have any basis for that? I have the

basis that I know my father's creativity versus Mr. Lee's creativity and Mr. Lee was an excellent marketer, he was an excellent manager, excellent self-promoter. I honestly don't believe he had any

creative ability. Q A times. Q And is it on the basis of your assessment You've never met Mr. Lee, have you? When I was younger, yes, I met him several

of him as a teenager that you make that statement that he wasn't creative? A It is on that basis. It is on the basis

of, you know, having seen and read some of his interviews and so on. Q Am I correct that you have no firsthand

knowledge about whose idea the Iron Man character was; is that correct? A Q I cannot recall at this moment. Do you recall being aware that Don Hecht
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was the artist who drew the first issue of Iron Man? A He may have been. You know, I'm not aware

of who drew the first issue. Q Do you know whether the cover for the Iron

Man book that your father did was created before or after the panels for the first publication were created? A Q I don't have any recollection of that. Are you saying -- when you say you don't

have any recollection, do you believe at one point you knew and have forgotten or are you saying that you never knew? A No, I'm saying that I don't remember. Right at this I

may have at one point in the past. moment I don't recall. Q

Is there anything of which you are aware

that would refresh your recollection about that subject? A Well, I don't know. I suppose we can get a

Psychology 101 book and get out all the standard memory refreshers. But it is possible something

could pop up in the future that might refresh my memory, I don't know. Q You are not aware of any document or

drawing or anything that currently exists of which
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you are aware that could refresh your recollection; is that correct? A I have not seen anything recently that I

would say would, can refresh my memory. MR. TOBEROFF: Before you go on to a new

character, there was a name you mentioned in connection with Exhibit 2 and I just wanted to -- rather than having her go back to the record can you tell me that name. MR. FLEISCHER: MR. TOBEROFF: MR. FLEISCHER: MR. TOBEROFF: MR. FLEISCHER: itself. THE VIDEOGRAPHER: in about five minutes. MR. TOBEROFF: Q I'm sorry, I didn't see it. We have to change tapes Will Eisner? No, the person who -Al Nickerson? Yeah. It is in the article

Mr. Kirby, a minute ago you said something

to the effect that your father had a hand in everything that Marvel did. time were you referring? A sixties. Q And how do you know for a fact that that
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During what period of

Referring to the time late fifties to early

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was the case? A Just my, again, my understanding of the

way -- the way my father operated and contributed ideas and came up with and created ideas. Q statement? A And, again, based on the fact I don't know Anything else on which you make that

what other creative forces at Marvel existed other than my father at that period of time. Q Well, not being aware of what other

creative forces existed, how can you make that statement? MR. TOBEROFF: A Argumentative.

Again, just my -- just my knowledge and

basis of, you know, having been around my father and at the time that the things were, at Marvel things were happening. it. Q Well, you are suggesting that there was no I don't know another way of wording

other creative force at Marvel other than your father. A Do you have a basis for that understanding? Well, in terms of -- I think if you look at

Marvel after my father left I'm not sure, and, again, I'm not sure that anything new came out of Marvel after he left the company so you could look at it in
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that aspect. Q Does that as a scientist speak to what

happened while your father was there? MR. TOBEROFF: A Argumentative.

Well, as a scientist I'm not sure how we

apply scientific method to this but, no, it just goes on the basis of what I have known and just my discussions with my father. Q Did your father ever tell you that he was

the sole creative force at Marvel during his tenure there? A I don't recall him using -- again, my

father would have been too humble a person to even word anything like that but I know in discussions it just, to me, he certainly seemed that way. Q It seemed that way because you were aware

of what else was going on at Marvel other than what you saw your father do? A Well, yes. We got all the comic books and

pretty much knew what was going on at Marvel at the time as children. Q And was it your view at the time that Mr.

Hecht who was a Marvel artist at the time was not a significant creative force at Marvel? A I couldn't say one way or the other.
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I

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never met Mr. Hecht. Q A Q Are you aware of the work of Bill Everett? I know his name. Is it your view that Mr. Everett was not a

creative force at Marvel in the fifties and sixties? A Again, I never met Mr. Everett and I'm not

totally familiar with his work so I wouldn't conjecture on that one way or the other. Q So my question is how can you say that your

father was effectively the sole creative force at Marvel during the fifties or sixties. A Again, that's come just from my discussions

with my father and my perception of the situation at the time. Q Do you know who the editor and chief at

Marvel was during the fifties and sixties? A Lee. Q Do you know if it was part of the work that I would guess that would have been Stan

your father did on Marvel's behalf to review and direct Marvel publications other than the ones that he was working on as an artist? A Q A Are you staying it was Stan Lee's job? No, your father's job. To edit other artists' work?
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I'm not quite

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A

He never mentioned to me that he worked off

a synopsis and usually he was penciling stories in the margins of the comics. He usually, if I could

jump in there, he usually started, he always started in the middle of a story and then he went back to the beginning and then he would finish up and do the end, that was just the way he worked. I would think if

you are working off a story or a synopsis that you don't need to do that but -Q As you have indicated, though, you don't

know what conversations may have occurred between Stan and your father before you saw him working on a drawing, correct? A I wouldn't have been privy to those

conversations. Q Right. And you don't know whether or not

your father had been given a synopsis or a script before he began working on a particular story; is that correct? MR. TOBEROFF: A Yes. Asked and answered.

I never saw a script or synopsis by

his drawing board. Q What information, if any, do you have

concerning the creation of The Fantastic Four? A In discussions with my father The Fantastic
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Four basically was a derivative of the, from what he told me, basically he came up with the idea just as a derivative from the Challengers of the Unknown that he had done several years earlier. Q So your father told you that The Fantastic

Four was his idea? A Q Yes. Did your father ever tell you about any

discussions that he had with Stan Lee concerning The Fantastic Four? A recall. Q Did your father ever discuss with you any Any specific discussions, not that I can

synopsis that Stan Lee had given to your father? A No, he never discussed that with me and as

I said previously, I never saw him work on a synopsis. (Neal Kirby Exhibit 3, a document, Bates Nos. MARVEL0014587 to MARVEL0014588, marked for identification, as of this date.) MR. FLEISCHER: three, please. MR. TOBEROFF: I just want to clarify, any Would you mark that as

document that you produce in this action will have Bates stamps and if it is a document like
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work on The Fantastic Four? A Again, I can only say what I said before.

I had never seen him work from a synopsis, he never had a synopsis or a story on his drawing table or anywhere near his drawing table that I could see when he was working, and in none of our discussions did he ever mention to me working off of any kind of synopsis by Stan Lee. Q Apart from those observations you made as a

young man or teenager, do you have any reason to doubt the veracity of Stan Lee's testimony to the effect that this is a synopsis he created and gave to your father for the purposes of assisting his work as the artist on The Fantastic Four? A Q A Q A Do I have reason to disbelieve him? Yes. Yes, I do have reason to disbelieve him. And what is the basis for your disbelief? The basis for my disbelieve is that I

believe Stan Lee, and I'm trying not to be mean-spirited here at all or anything like that, who was brought up to be respected by my elders and at my age it is nice to call someone else an elder, but I believe Stan Lee is -- he is basically a selfpromoter so I believe, you know, I believe he is
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narcissistic and I believe he is a self-promoter and I believe he will do whatever needs to be done to carry on the myth that he was the creator of everything at Marvel. Q Did your father ever tell you that he

created the names of The Fantastic Four characters? A They came up in discussion, yes, that my

father was joining them, this is so is so, this is so and so. Q Do you know if those were the names he gave

to the characters or the names that Stan Lee had given to the characters or someone else had given to the characters? MR. TOBEROFF: A Compound.

It was my understanding from our discussion

that he had given the names to the characters. Q He had told you that he had given the names

to The Fantastic Four characters? A Q I believe so, yes. Did he tell you that when the initial issue

of Fantastic Four was on the drawing board or some other time? A If I recall, it was -- it was -- I don't

recall honestly if it was while he was still drawing it or if it was before the actual published book
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And then the next opportunity for a war book being the Combat book which was just really a compilation of stories. Q Now do you -- and the basis for your

statement that your father created the name Sergeant Fury or Nick Fury, whichever is appropriate -A Q A Q Sergeant Nick Fury. Sergeant Nick Fury is what? That he told me. Any other information concerning the name

of that character that you have? A Q Not that I can recall. And am I correct that you have no knowledge

with regard to conversations that occurred between your father and Stan Lee concerning Sergeant Nick Fury prior to the introduction of that character? that correct? A It is correct in saying that my father Is

didn't -- in my discussions with my father that did not come up. Q And you weren't present at any

conversations as you have indicated between your father and Stan Lee. A Q That would be correct. Do you recall who was the assigned writer
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to the Thor comic book at the time of its first issue? A Q No, I don't recall that. Do you know what contribution the assigned

writer of Thor made to that character? A I don't recall right now. No, I don't

recall what that might have been. Q Do you recall what discussions took place

between Stan Lee and your father prior to your father beginning work on the Thor comic book? A I have no knowledge of what their Same thing. My

discussions might have been.

discussions with my father were about basically creating, you know, a book around Norse mythology. Q Do you know if Stan Lee asked your father

to create a book based on Norse mythology? A that. Q Was it your understanding your father would I have no recollection or knowledge of

begin working on a book without any discussion with Stan before doing so? A I would say it was my understanding if my

father had an idea for a book or a character to create he could bring it up and get a yea or nay. Q Was it your understanding that he would
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begin working; that is, drawing panels prior to getting a go ahead from Marvel or Stan Lee? A I don't believe -- that is not my My father didn't do work on spec, he

understanding.

was getting paid by the page. Q A Let's talk about Ant-Man for a minute. If I could just interject here, if he was

to do something on spec like that and do a whole 20page story which would take him hours and hours and hours to do and bring that into New York and oh, sorry, you know, idea but not now let's wait a couple of years, he doesn't get paid for it so that wouldn't have been the way my father would operate. Q Okay. What information, if any, do you

have about the circumstances surrounding the creation of Ant-Man? A I really don't recall that. Ant-Man would

have been when I was really young. Q You read, as you said, Mr. Lee's deposition

testimony, correct? A Q Uh-huh. And he described the circumstances of his Do you remember

idea about Ant-Man to your father. reading that testimony? A Actually, no, I don't.
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going on and him explaining the characters.

Usually

he would say something to the effect of this is a new story I've come up with, what do you think of this and here is where I'm going with this. our discussions would go. Q Specifically with regard to the X-Men did That's how

your father say the concept and basic story of the X-Men universe was solely his creation? A I do recall him saying again along those

same lines this is the new characters and story, you know, I've come up with. Q You read Mr. Lee's testimony concerning the

creation of X-Men, correct? A Q Yes, I did. And Mr. Lee testified under oath that the

concept was his and that he assigned the book to your father, correct? A Q Uh-huh. Do you have any reason to believe that that

testimony was not correct? A Again, as I stated before, my reasons for

not believing Mr. Lee is that, you know, I have no reason not to disbelieve my father and pretty much every reason to disbelieve Mr. Lee. I just don't

believe in his deposition he was telling the truth or
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maybe he just didn't recall the truth properly. will try to be somewhat respectful. Q Are there -- apart from your own

I

recollections of what your father told you that you have testified about with respect to X-Men, are you aware of any evidence to corroborate your belief that the X-Men story was a creation solely of your father's? A I am not aware if you are referring to like

some kind of written evidence or -- I'm not quite sure exactly what you are referring to. Q Any -- any evidence, whether it is written

or something you observed. A Well, I observed him drawing X-Men, Number

1, and talking -- and talking to the -- talking about the story with me so, again, that's where it is coming from. I have no knowledge, I cannot recall

anything about there being any other type of written evidence that might exist. Q Well, if your father had been assigned the

story by Mr. Lee who had suggest an outline for the story or a synopsis, whether verbally or in writing, you would have still observed your father drawing the first issue of X-Men, correct? MR. TOBEROFF: Argumentative.
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Galactus, he is going to be a planet eater, planet destroyer, went into the concept of the Silver Surfer of being his scout or herald, as he called it. Q Did he indicate in front of anyone else

that he had created the names Galactus and the Silver Surfer? A Q done so? A I don't recall him saying that in front of He might have. Do you have a recollection of him having

me and someone else. Q Are you aware of your father ever giving an

interview in which he claimed credit for naming the Silver Surfer? A He may have. Again, I have no recollection

of one in specific. Q Are you familiar with a character called

Rawhide Kid? A Q Yes, I am. And do you have any information concerning

the circumstances under which that character was created? A Rawhide Kid I don't. I don't recall. I

believe the Rawhide Kid was one of the first things that he did when he went -- at that time with Marvel.
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MR. TOBEROFF:

You can answer that as long

as your answer does not implicate the substance of conversations with me. A My role would have been in helping to

identify the characters that I was aware of. Q Rawhide Kid is a character that is the

subject of the notice, correct? A my head. Q What information did you have about the I believe recall all 45 them off the top of

creation of Rawhide Kid that was pertinent to the notices? A Q I don't recall at this time. The notices pertain to characters that

appeared in publications that were made between 1958 and 1963, correct? A Q I believe so. And can you tell me what characters which

are the subject of those notices you and your sisters contend were created solely by your father as opposed to co-creations? A As opposed to co-creations. MR. TOBEROFF: conclusion. A You know, again, I could only go on the
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A Q

No, I don't. Do you have any information concerning the

circumstances of the creation of The Incredible Hulk? A That honestly I don't recall. I recall my

father again working on the first issue and obviously subsequent issues and going over the storyline with me about how he becomes the Hulk and so on, Bruce Banner and all that. I cannot recall right now

discussions about creation, creation of that character. Q Are you aware of any documents that would

assist you in refreshing your recollection? A think of. Q Do you contend that The Incredible Hulk was No, I'm not aware of anything that I can

the sole creation of your father? A Again, my personal knowledge is after it

had been released he had a major part in the creation of it. Q Would it be correct to say you don't know

one way or the other as to whether there were others who made a significant contribution to The Incredible Hulk? A I would say my personal knowledge is there I don't know how significant it might
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have been. Q Did you review Stan Lee's testimony

concerning the concept for The Incredible Hulk character? A Q I did read it. I don't recall all of it.

Do you have any reason to believe that the

idea for the character was not a creation of Stan Lee's? A I could only say, as I said before,

according to Stan Lee's deposition he created everything solely. Again, trying to be somewhat

respectful, you know, but to say that would seem highly unlikely. You know, honestly I just think Mr.

Lee is again propping up his own ego with whatever he sees fit at this point. What's the expression, he

has the benefit of being the last man standing, so to speak. Q Do you feel that Mr. Lee's testimony in

some way diminished the contribution that your father made to the various characters that he worked on at Marvel? A Diminished I think is -- I think diminished I think Stan Lee is kind of

is the least of it.

rewriting history but -Q You know, with respect to the creation of a
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you know, met with somebody else saying gee, I have this good idea for a character, you know, would you like to go for it, that he would have done it, you know. Definitely I would consider that coming up There's no -- there's

with an idea and speculation.

no guarantee if you are going to come up with an idea that they're going to say yea, nay or otherwise. sorry. MR. TOBEROFF: answer. A In terms of would he, maybe this was a Feel free to finish your I'm

little confusing before, what I was trying to get at. In terms of would he sit down and spend three days, four days, however long, actually doing -- I don't recall how long comic books were at the time, I think they were 22 pages, something like that, would he sit down and do a 22-page comic book and then bring that in to -- bring that in to Stan Lee or anyone else and go, "Would you like to buy this," probably not. Because if they said no he is So

out five days worth of work and all those pages.

in regards to just to clarify my statement as to, you know, as to on spec. Q So if I understand what you are saying, you

believe that he never sat down to draw a story until
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being given an okay by someone on the editorial staff at Marvel? A I'm saying that he wouldn't draw, I don't

believe that he would draw a brand new out-of-hishead idea story, actual set it pencil to paper, without knowing in advance that it would be purchased. Q And do you have any information one way or

the other as to whether any of the stories that he worked on as an artist for Marvel were the result of the collaboration on the story idea between your father and Stan Lee? A I'm sorry, could you just repeat the

question, please? Q Sure. (Record read) A I would have no information that I can

think of right now for that. Q Do you believe that Marvel had the right to

exercise creative control with respect to the contributions your father submitted to Marvel? MR. TOBEROFF: conclusion. A It was my understanding that they were As to what legal rights
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that entitled them to, I don't have the knowledge to answer that question. Q Well, you have indicated that you think

that there were pages that your father had brought to Marvel that were rejected. A Q Correct. And I think your testimony was that you

don't recall whether there were instances in which your father brought artwork to Marvel and corrections were requested but would you agree that that could have happened? A That corrections -MR. TOBEROFF: Q Calls for speculation.

That your father brought in work and then

Marvel may have asked that corrections be made or changes be made. A The only thing that I can say, I don't know

what Marvel may or may not do or what they may or may not have requested my father to do. I do know that

he never mentioned to me in any of our discussions look, I'm making a change on a page because so and so asked me to do so. Q Given your knowledge of the industry as

you've suggested you have earlier, isn't it commonplace for art directors and editors to make
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changes or request changes by artists and writers in connection with the stories? A My limited knowledge of the industry is,

you know, that might take place. Might I add something that -- oh, I'm sorry. Q There's no pending question. In Paragraph 10, I will read the first sentence. "Any contributions made by Kirby to the Works were done at the expense of the Marvel Entities." And that allegation, as well as the second sentence that is part of Paragraph 10, is denied. A Q Uh-huh. What is the factual basis for the denial

that the contributions made by your father to the comic books he worked on for Marvel were made at Marvel's expense? MR. TOBEROFF: conclusion. A To the best of my knowledge, as we Calls for a legal

discussed previously, my parents paid for all their own supplies, obviously his studio was in the house, that was at their expense, and to the best of my
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knowledge they were not reimbursed for those expenses. Q I thought you testified earlier that you

had no knowledge one way or the other as to whether or not they were reimbursed. A I can't recall exactly what I said but,

however, there would be -- if my mother or if my parents were getting reimbursed for their expenses there would have been no reason for them to complain about them or to even bring that up since it would be a net wash. Q Do you have an understanding of the

earliest date on which any of the 45 termination notices becomes effective? A If I recall right, it is somewhere around I don't

2014, I believe, somewhere in that area. recall specifically. Q A Q I think you are correct. I don't recall which character.

And in respect to the characters which are

the subject of the termination notices, are you aware of any limitations on Marvel's rights to exploit the copyrights associated with those characters prior to the effective date of the termination notices? A I can't say that -- you know, I can't say
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to be worded, that's not my area of expertise. Q You were willing to suggest that the credit

that was given to your father on the Hulk film was inappropriate in some fashion. A Yes. Because I would have preferred the

word "created" in it as I mentioned before. Q Are you aware that Wolverine's first

appearance was in 1974 well after your father had stopped work on X-Men? MR. TOBEROFF: evidence. A No, I was not aware of that. No. I don't Assumes facts not in

recall that. Q Did you do any research to determine

whether any of the characters that were the subject of your notices were in fact created by your father or co-created by him? A Q A I did some. What research did you do? Oh, just some with books that I have or a

little talking with my sister and so on. Q A Q A Which sister? Lisa. And what books? Oh, just the coffee table history of comic
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kind of books. Q Can you be more specific? Are these books

that you have in your home? A Q A Q Yes, they are. And do you still have them in your home? I do, yes. And do you recall specifically what titles

and what authors? A No, I can't at the moment. There's one

book by Mark Evanier which I guess is the newest book. I think it is just titled "Jack Kirby, King of

Comics," I believe. Q Did you ever inquire of Mr. Evanier as to

whether he had any direct knowledge of the circumstances of the creation of the characters that your father drew for Marvel? A No, I haven't had any conversations with

Mark Evanier. Q Do you know if Mark Evanier was privy to

any of the meetings or discussions at Marvel between your father and Stan Lee? A Mark Evanier, as far as I know, would not

have been around at that time. Q Do you know what the basis for Mr.

Evanier's statements in the book that you relied on
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litigation was commenced? A No. I'm mean, I'm sorry, yes, you are correct in that. Q Are you aware of any significance these

pages have to the issue of the circumstances of the creation of any of the characters depicted in these pages? A of that. Q Now a lot of the pages have either captions That I honestly cannot say that I'm aware

or other handwritten notations other than the ones that appear to be actually printed. A Q Yes, I do. Let's take an example, K 10. Can you Do you see that?

identify the handwriting at the foot of the pages saying "Hunters say"? A Q That would appear to be my father's. And do you know what that notation was

intended to represent or be? A margins. My father used to add comments in the If sometimes he did not write dialogue

directly, from what I understand, he would add those comments to guide the person adding the dialogue in the balloons.
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Q

And do you know if the comments that your

father would make in the margins were ever used verbatim in the final version of the story? A That I would really -- I don't know, I

couldn't tell you. Q Was it your understanding that those

marginal notations that your father put on the drawings were subject to the inclusion or not inclusion at the discretion of the editor or art director? A I couldn't say at the time if I had any

knowledge of that, if that was going it happen or not. I do know that, you know, that my father was

adding to guide the story and sometimes he would do the work because I know he mentioned the letterer will go over these at a later date, something to that effect. Q The notations that you are talking about

were not notations that were intended to be going over by the letterer, were they? A Q Not the ones in the margins, no. Was it your father's custom, do you know,

to actually put in captions or balloons on the drawings themselves? A I can't say if he did it every time.
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I