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. 7

EXHIBIT 7

Dockets.Justia.com

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SUSAN MERYL KIRBY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________ ) MARVEL WORLDWIDE, INC., MARVEL) CHARACTERS, INC., AND MVL, ) RIGHTS, LLC, )Civil Action No.: )10 CIV. 141 Plaintiffs,)(CM) (KNF) v. ) ) LISA R. KIRBY, BARBARA J. ) KIRBY, NEIL L. KIRBY, ) AND SUSAN KIRBY, ) ) Defendants.) ) ______________________________)

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DEPOSITION OF: DATE: TIME: HELD AT:

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VIDEOTAPED SUSAN MERYL KIRBY October 25, 2010 10:00 a.m. Ethan Allen Hotel 21 Lake Avenue Extension Danbury, Connecticut Sarah J. Miner, LSR

By:
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TSG JOB NO. 34010
TSG Reporting - Worldwide 877-702-9580

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SUSAN MERYL KIRBY you? A. She was in California. residence address. I don't remember her

She had an apartment there in, I

don't remember what town, somewhere near Ventura. Q. Do you know how long she had been in California before moving back? A. Several years, because she had lived with my parents before she got her own place. Q. Would you tell me when your birth date was? A. 12/6/45. Q. You are the daughter or one of the daughters of Jack Kirby, right? A. Yes, the eldest. Q. Do you have any memory of being present while your father worked on projects involving Marvel characters? A. Yes. Q. Do you have any recollection of discussing with your father the work he was doing for Marvel? A. Yes. I was in his office a lot, because he

had a vast library of books, because he was into everything. And I used to go down there and read, so

I used to read his books, and stuff, and one day I was upstairs, and mom told me to go downstairs because Dad
TSG Reporting - Worldwide 877-702-9580

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SUSAN MERYL KIRBY was creating some new super heroes. So I went He

downstairs, and he said, "I want you to see this." said, I named the female super hero after you, her name is Sue," Sue Storm he was talking about, it was the Fantastic Four. Q. Do you remember what year that was? A. Oh, gosh, I was a teenager, that is all I remember, maybe 15 or 16, so 1961, '62. Q. And when you went downstairs did you discuss with your father what he was doing? A. Yes. Q. What did you say to him? you? A. I said it looked great. There were three And I What did he say to

characters on the board, three of the four.

asked about who they are, and he told me who each one was. And I said, "It looks great, they look great". Q. Do you recall anything else being said between the two of you at that time? A. Not at that particular conversation, no. Q. How long would you say you had that conversation with your father? A. Oh, about an hour or so. Q. And do you know what conversations, if any,
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SUSAN MERYL KIRBY occurred between your father, and anyone at Marvel prior to his working on that? A. No, I wasn't present. Q. Did your father ever tell you what conversations, if any, had occurred before this conversation you had with him? A. No, he did not. Q. Did your mother say anything to you about the work your father was doing, other than that he was -A. Just that she was upset because he never slept. He was always working. Even when he wasn't

selling something to Marvel, he was always creating murals, and all kinds of things, his conception of God. His mind was always going. Q. Did you ever have a discussion with any of your siblings concerning your father's work? A. We always talked about Dad's work. the main thing in the family. Q. Would you summarize your educational background for me, beginning in the year you graduated from high school? A. That was '63. year. And I went to college for a That was

So from '64 to '65 I was in college. Q. Okay. Where did you graduate from high
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SUSAN MERYL KIRBY A. Because I have seen him do it. Q. Do you know if prior to you witnessing your father writing, he had had any discussions with anyone at Marvel? A. Not that I am aware of. Q. Do you know that he -- do you know one way or the other whether such discussions occurred? A. No, I don't. MR. TOBEROFF: BY MR. FLEISCHER: Q. You said, "I think," that you saw your father writing. A. Yes. Q. What form has that writing taken place? A. As he draws he fills in the bubbles. He kind Vague as to discussions.

of invented all his "Pow, Slam" stuff, that they use today. That is how he wrote. He wrote sentences,

conversations between the characters, just off the top of his head. Q. Is it your testimony that you witnessed your father drawing the dialogue bubbles, and story narrative in the panels he was drawing? A. Yes, I have witnessed it. Q. Do you know whether the works that were
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SUSAN MERYL KIRBY published by Marvel contained the words that your father had put in those bubbles, and narrative boxes? A. To my knowledge, they were. Q. Did you read comic books as a kid? A. Yes, all kinds. Q. Did you have a specific recollection of seeing a comic book containing the dialogue that you saw your father write? A. Fantastic Four, Volume I. Q. Do you know if your father had been given any direction by Marvel prior to the time he began working on Fantastic Four? A. Not that I am aware of. Q. Did anyone ever tell you that a synopsis of Fantastic Four had been given to your father? A. No, I had never seen him with one. Q. Are you acquainted with Stan Lee? A. I met him once when I was a child. Q. What were the circumstances under which you met him? A. He came over the house for a drink with Mom and Dad, him and his wife. Q. Did you ever go to the office of Marvel as a child?
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SUSAN MERYL KIRBY siblings about acquiring the rights to any works your father contributed to, published by someone other than Marvel? A. No, I have never had that conversation. Q. Did you have an understanding when you were living in East Williston about the economic terms of your father's relationship with any publisher? A. Well, I knew that Marvel paid him by the page, and that he and mom used to argue about it, because he would be up all night doing pages, and Marvel would say, "Well, we don't want to buy this." Then they would go ahead and make him do the whole thing over again, and he would just get paid for the artwork that he did over again. So he was doing

things twice, and getting half the money. Q. When do you recall hearing a conversation to that effect? A. Early '60's, late '50's. Q. Do you know what character or characters were involved in those discussions? A. No. Q. Was there any mention of who it was that was asking your father to redo pages or correct pages? A. From what I recall Stan Lee.
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SUSAN MERYL KIRBY A. No, sir. Q. Are you aware of any particular comic book or comic book character that your father worked on before receiving an assignment from Marvel? MR. TOBEROFF: THE WITNESS: MR. TOBEROFF: BY MR. FLEISCHER: Q. Did you ever have occasion to discuss any assignment your father had received from Marvel? MR. TOBEROFF: answer. THE WITNESS: BY MR. FLEISCHER: Q. Did you ever discuss with your father any of his contributions to any of the characters that were published by Marvel? A. I just saw him create. That is all I saw. No. Asked and answered. You can Misstates testimony. No, sir. Lacks foundation.

Q. Did you ever discuss what he was drawing with him? A. No, there was no discussion that I recall, just telling me what was going on in the scripts, and strips, I don't know what you call them. Q. Do you have any knowledge about the
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SUSAN MERYL KIRBY circumstances of the creation of the Spiderman comic book character? A. That is not Dad's. costume. I think he did the

I think he originated the costume, but not

the character itself. Q. How did you come to that understanding? A. I believe someone told me, maybe my mother, I recall. Q. What were the circumstances under which she told you that? A. We were discussing the character, because my brother liked Spiderman. time. He was a little kid at the It came up in

We were just talking about it.

the conversation. Q. Do you recall your brother asking about whether your father had created Spiderman? A. Yes, he did ask. Q. What did your father say? A. I don't think my father was there. just my mother. costume. Q. Did your mother ever discuss with you any other characters that were published by Marvel that your father created or didn't create?
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It was

She said he created Spiderman's

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SUSAN MERYL KIRBY A. Well, the Incredible Hulk. he was creating him. I was there when

He called me over, and said, "I He said, "This is I

want you to see a new super hero." the Incredible Hulk.

What do you think of him?"

said, "He is incredible." Q. Do you remember what color he was? A. Green, yes. Q. Was he green on your father's drawing board? A. No, he was black and white, but I remember the color he was in the books. Q. Was he -- when you saw it on the drawing board, was it inked? A. No, it was pencil. Q. Was there any dialogue written on the drawing? A. No, it was just a drawing of the Hulk. had just started working on it. Q. Do you know whether he had had any conversations with anyone at Marvel before that about the Hulk character? A. I have no idea. Q. Have you ever discussed the characters that your father worked on for Marvel with anyone other than Mr. Toberoff and your siblings?
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He

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SUSAN MERYL KIRBY publishers? A. I don't know. Q. Do you know whether your father was ever working on a publication deadline? A. He was always on a deadline. 20 hours a night sometimes. Q. Do you know who give him that deadline or deadlines? A. Stan Lee. Q. How do you know that? A. I just remember Dad was always saying, I have to make a deadline. to get that done. Q. Are you aware of -- strike that. Were you I have to get this done. I have He used to work

aware of your father leaving Marvel's -- withdrawn. Were you aware of your father ceasing to submit work to Marvel sometime in the 1970's? A. I don't recall. I wasn't home then.

Q. Were you aware of your father beginning to work exclusively for DC Comics? A. No. Q. Are you aware of whether your father owned any rights to the work he submitted to DC Comics? A. I don't know. I guess he did.
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SUSAN MERYL KIRBY Q. Do you recall whether it was in pencil when you saw it or ink? A. It was in pencil. Q. Were there any dialogue balloons? A. There were balloons, but there was nothing in them yet. Q. Did your father ever discuss the work he was doing on the X-Men comic book? A. No. Q. Did your father ever indicate whether or not he was working with a writer on X-Men? A. No. Q. Did your father ever indicate where the idea for the X-Men story came from? A. No. Q. Do you have a recollection of the names of any of the X-Men characters? A. No. Q. Did you ever see one of the X-Men movies? A. Is that the one with Wolverine in it? Q. Yes. A. Yes, I saw one. Q. Let's focus for a second on Ant Man? A. I don't even know who that is.
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SUSAN MERYL KIRBY Q. Do you know whether your father had any association with Ant Man? A. I have never heard of it before. (Plaintiff's Exhibit 1 marked for identification.) BY MR. FLEISCHER: Q. Ms. Kirby, have you ever seen what we have marked for identification as Susan Kirby Number 1, and take your time to look through it. A. I see my name on it as a plaintiff. Q. I am sorry. reporter just put on? A. Yes. Q. Apart from that? A. I don't see anything. Q. Do you know who wrote what is on this page? A. Yes, Dad. Q. And did your father have a typewriter? A. A typewriter, no. He may have had one of You mean on the sticker that the

those old typewriters, not an electric one. Q. Did he, with respect to Fantastic Four, write out a synopsis or a script for Fantastic Four? A. No. Q. What is the basis for your statement that
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SUSAN MERYL KIRBY character, my intention is to ask you whether that was the first iteration of the character, the invention of the character? A. Yes. Q. With respect to Rawhide Kid, do you have any information about who invented Rawhide Kid? A. That would be my Dad. Q. How do you know that? A. I believe I was told. Q. By whom? A. My father. Q. What did he say in that regard? A. I don't really recall the exact words. It

was one of his comic books in the library, and I was reading it. I asked, you know, is this one of yours, That is all I remember.

and he said, yes.

Q. Did you ever see him at work on a Rawhide Kid comic book? A. No. Q. Would I be correct, then, that you would not have any information as to whether or not he had been assigned the project of working on a comic book called Rawhide Kid? A. You would be correct.
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SUSAN MERYL KIRBY A. I don't recall. Q. Do you disagree with the substance of the statement made in that paragraph? MR. TOBEROFF: conclusion. lawyer. Objection, calls for legal She is not a

It is a legal document.

Uses terms of art.

BY MR. FLEISCHER: Q. He hasn't directed you not to answer the question. A. I don't know. Q. Do you have any information as to whether the work that your father did, published by Marvel, was done as a result of an assignment your father received from Marvel? A. Not that I know of. Q. What information do you have that would lead you to conclude that it was not done as a result of an assignment? A. I can't conclusively say so. any knowledge. Q. You don't know one way or another? A. Yes. Q. Are you aware of whether any of the counterclaims asserted by you and your siblings
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I don't have