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. 8

EXHIBIT 8

Dockets.Justia.com

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF NEW YORK MARVEL WORLDWIDE, INC., MARVEL ) CHARACTERS, INC., and MVL RIGHTS,) LLC, ) ) Plaintiffs, ) ) vs. ) ) LISA A. KIRBY, BARBARA J. KIRBY, ) NEAL L. KIRBY and SUSAN N. KIRBY,) ) Defendants. ) _________________________________)

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CASE NO. 10 CV 141 (CM)(KNF) Pages 1 - 192

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VOLUME I VIDEOTAPED DEPOSITION OF MARK EVANIER LOS ANGELES, CALIFORNIA TUESDAY, NOVEMBER 9, 2010

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REPORTED BY: LESLIE L. WHITE CSR NO. 4148 JOB NO.: 34167

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Q

Now you mentioned that you saw him a lot

during that period, let's say from 1972 until his death in -- I believe it was 1994, was it? A Q I should know this. '94 I believe, yes.

During that period of time I take it you

remained in close contact with Mr. Kirby? A Q A Q Yes, I did. Is that a fair statement? That is a fair statement, yes. And you would have dinners with the family,

among other things? A Q From time to time, yes. And, in fact, Mr. Kirby became a very close

friend of yours; isn't that right? A Q I would like to think so. And you stated publicly that he treated you

like family; isn't that right? A I may have said that at times, yes. I

actually -Q And, indeed, he even introduced as his son

Mike from time to time? A Q He made that slip once, yes. And it's fair to say that over that period of

time you came to idolize Jack Kirby, didn't you? A I would never -- I would not use the word
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A Q

No, they were not. And I take it that some of them eventually

ended up at DC; is that right? A Q DC and other places, yes, other companies. Now focusing on the "other" category, the

category that you say Mr. Kirby told you about, the rejected pages, what did Mr. Kirby tell you about those? A He showed me pages that -- well, he showed me

pages that were from old -- that I recognized, and which he confirmed were recent issues of Thor or Fantastic Four -- there might been some Captain Americas in there -- pages that Marvel had sent back to him because they wanted something different, they wanted the pages changed. In some cases he had erased pages and sent

them back, but in some cases it was easier for him or necessary for him because the requests for revision were so extensive that he drew on fresh paper. He also -- and he showed me -- not on my first visit with him, but on a subsequent visit -- he showed me a story in progress that he had to do extensive revisions on in order to get Marvel to accept. Q revisions. Now you indicated that he had to do extensive Did he tell you when he submitted these who

he submitted them to at Marvel? A Um, I believe -- I don't know that he told me
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specifically. Stan Lee. Q A Q

I just assumed they were submitted to

To the editor? Yes. And was it your understanding that from time

to time the editor, whether it was Stan Lee or later, whoever replaced Stan Lee, that they would ask for changes in the work done by Mr. Kirby? A Well, first of all, if we're talking about the

material he showed me in 1969 -(Speaking simultaneously.) BY MR. QUINN: Q A editors -Q A Q A again? Q A Q Sure. All right. Based on what Kirby told you, was it your Fair enough --- because Stan was the editor -Fair enough. Let's see -- now can I have the question Yes, let's focus on that material. -- then there would not be subsequent

understanding that from time to time Stan Lee, the editor, would ask Mr. Kirby to make changes in some of
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the artwork he submitted? A Yes. He would also just reject, say, "I don't Do something different with

like the end of this story. it." Q

And, in fact, Mr. Kirby would then go back and

make a change or come up with a new ending; is that fair? A Yes, that is correct. I might also add that Jack also complained to me that pages were being rejected, but not returned to him; that the art was -- he was not getting the pages back that he felt he was owed. Q A Q A Q A years. Q And it's correct, is it not, that after the When did he tell you this? 1969, when I first met him. All this time when you were 17 years old? Yes. Okay. And he subsequently talked about it in later

changes were made they would be resubmitted for approval by Mr. Lee? A Q Jack would redo the material and send it back. And when he redid the material and sent it

back, he would get his page rate; correct?
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A Q A

For the -- yeah, for the -- yes. For the redone material. Well, he got the page rate for the story. I

mean, Jack's complaint was that when he -- if he had to draw 26 pages for a 20-page story, he was only paid for 20 pages. Q A also. Q Let me see if I have this right. He submits a And that's a complaint he made to you? Yes. And his wife complained about that a lot

story, and Lee says to him, "You got to change four pages" -A Yes. Excuse me, let me amend that. I don't

know that Stan would specifically say, "Change four pages --" Q A Q A Okay. -- he might just say -"I don't like this"? -- "I don't like the ending of the story. I

want something else." Q Fine. And Kirby would go back, redo the

ending of the story, resubmit it and then get paid for the story? A Q Correct. Okay. Now when did you meet Stan Lee for
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and that that is how the comic was created. Q Do you agree with Mr. Lee's statement -- it is

also his testimony, but let's put it aside -- you're familiar with the statement that the Fantastic Four came about, at least in part, because of a discussion that he had with Martin Goodman -- by the way, do you know who Martin Goodman is? A Q A briefly. Q A Q A Many, many years ago? 1970, the same meeting. Same meeting? It was not the same day actually. It was a Yes, I do. Did you ever meet him? I shook hands with him in a hallway very

day or two afterwards. Q Other than shaking hands with Mr. Goodman, you

have never had a substantive conversation with him; correct? A Q That is correct. Go back. Do you agree with Mr. Lee's

statements that the Fantastic Four, at least in part, came about as a result of discussions that Mr. Lee had with Mr. Goodman in connection with the idea of coming up with a group of superheroes?
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A

My understanding is that Mr. Goodman said to

Mr. Lee, "I see DC Comics has some very decent sales on what is called the Justice League of America. try a comic like that." Mr. Lee, in many interviews, said as I related, that Mr. Goodman had played golf with Jack Leibowitz, who was the head of DC Comics at the time, and that Leibowitz had bragged about the sales of Justice League, and that that prompted Mr. Goodman to come back from the golf game and say, "We should -- we should create a comic like that." Mr. Lee has told this story on many occasions. Mr. Leibowitz, when he was interviewed, said he never played golf with Goodman in his entire life. So based on that, I tend to disbelieve at least that part of Mr. Lee's story. Q A record. Q Have you seen the document that is -- I guess So you think Lee is just lying about it? No, I think he just is being casual about the We should

was it a plot outline -- a document that I guess it has come to have the term "synopsis" with regard to the first issue of the Fantastic Four? A Q Yes, I have. And are you -- when did you first see that
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deposition of Mark Evanier. 11:42 a.m.

We're off the record at

(A recess was taken from 11:42 a.m. to 11:56 a.m.) THE VIDEOGRAPHER: This is the beginning of disc We're on the

No. 2 in the deposition of Mark Evanier. record at 11:56 a.m. BY MR. QUINN: Q

Mr. Evanier, just to close this particular

loop, so it was your understanding, with regard to the Fantastic Four, that Mr. Kirby and Mr. Lee sat down beforehand and discussed the plot and the storyline, before it was published, before -- let me rephrase that. A Q All right. Was it your understanding that Kirby and Lee

sat down to discuss the plot and the storyline before Mr. Kirby actually began to draw the characters? A Q A Q A there. Q A Go ahead. You were asking me why I thought that the
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Yes, that is correct. Okay. I actually didn't -I'm sorry -I didn't finish my answer before the break

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synopsis had followed a meeting with Jack's giving his input. Another reason is that the storyline of Fantastic Four is very similar in a number of ways to a comic Jack had done previously called the Challenger of the Unknown, very similar structure to the characters. It feels an awful lot more like Jack's earlier work than anything that Stan had done to that date. So I find it very difficult to believe that Jack did not have input into the creation of the characters prior to the -- that synopsis, whenever it was composed. And, also, I have the fact that I talked to Stan many times, and he told me -- and he said it in print in a few places -- that he and Jack had sat down one day and figured out what the Fantastic Four would be. Q And they discussed the plot before they

actually -- the drawings were done? A They discussed the plot before the alleged

synopsis was done also. Q And was it your understanding, with regard to

these other characters -- and we can go through all of them, or just we can get a general understanding -- that this was typically what was done, that Lee and Kirby
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would sit down together, discuss the plot, discuss the storyline, and then Kirby would go and draw whatever he was going to draw? A Q Correct. Now -- and at least in part, that

understanding is based on what Mr. Kirby told you? A Mr. Kirby's accounts to me are part of my

understanding. Q Right. And some of Mr. Lee's statements to

you are part of your understanding? A That has also contributed to my

understanding -Q A What you read is part of your understanding? Yes. Let me show you a document we will mark And this was a document

MR. QUINN:

this as Kirby -- Evanier 2.

that I believe was produced from your files -- and the reason I say that is, as you will see, it has your initials, production initials on it. (Exhibit 2 was marked for identification by the Reporter.) MR. TOBEROFF: bottom. THE WITNESS: ///
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He's referring to the "ME" at the

Good, I get to be a code number.

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sequence that was a story -- roughly concurrent, they were all from about the same period of time, which would have been '66 or so. Q '66 or '67.

So it's fair to assume that at least with

regard to some issues, in fact, Stan Lee did prepare plot outlines? A These were all plot outlines that were notes

for meetings where Jack had input, that they said in them, "As we discussed in this," and such. And I also do not know for sure that these were Stan Lee prepared. They were filling the role that

Stan allegedly performed, but they may have been typed up -- written by an editorial assistant who sat in the meetings for all I know. Q But you did refer to them here as "Stan Lee

plot outlines"? A Yes, yes, I was being casual. They were

Stan Lee plot outlines, even if they were ghosted by somebody else or typed up by somebody else, but they were not necessarily all Stan's work. Q And it's your understanding that Lee and Kirby

would have discussions, and then Stan Lee, or one of his editorial assistants, would then create a plot outline for Kirby to use in connection with his artwork? MR. TOBEROFF: Objection. Overbroad.
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attention to that kind of thing." Was that your understanding of how Jack operated? MR. TOBEROFF: MR. QUINN: THE WITNESS: Where is that?

Last sentence of the first paragraph. Jack paid very little attention to

who inked his work, yes, that's correct. BY MR. QUINN: Q And two pages later there's a question, "Did

Jack really have a bad memory?" And you write: "By common definition yes...but I think it was more a matter of his mind wandering in 19 directions at once. Every so often, he would

surprise me with some (apparently) crystal-clear recollection of 30 years before." And that was your understanding with regard to Mr. Kirby's memory? A Well, this is -- first of all, this is And I probably

something I wrote about 10 years ago. would phrase it differently today.

But Jack did -- you

know, he made mistakes, like a lot of people do. Q When you're writing these answers to
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Frequently Asked Questions, you do try to be accurate, don't you? A Yes. Yes, I try to be accurate. I am not

speaking in lawyer language. Q No, you're speaking in people language. I

understand that. A I'm speaking in language that I think will be

understood by the kind of people who would come to the website looking for information on Jack. Are we done with 11? Q 12. A Q Okay. Could you go to 13: And specifically there is Do We're done with 11, and we're going to skip

a question, "Did Jack design Spider-Man's costume?" you see that? A Q Yes. And you answered, "No, Steve Ditko designed

the distinctive costume we all know and love." And that's your understanding; right? A Q Yes. And then in the next paragraph you make

reference to (Reading): "But for all the things Jack did well, he was not great at being
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interviewed.

He occasionally got There

carried away or confused.

were -- there was one interview where, without realizing what he was saying, he said he created Superman. Needless to say he never

really believed that, but somehow that is what came out of his mouth." You wrote that, didn't you? A Yeah. Actually, when I originally wrote it

there was another paragraph after this -- which I guess I deleted, because it is not in here -- talking about how Stan Lee used to occasionally refer to Superman. I was trying to point out that both guys referred to Superman erroneously in print. Q A This is what you wrote? I wrote -- yes, I'm just saying there was

another paragraph here that I guess I deleted it. Q A Q You deleted that other paragraph -At some point, yes. Then you go on later to say: "In at least one such conversation" -- this is a couple lines down -- "he" referring to
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Jack -- "misspoke and claimed he designed the costume for the final version of Spider-Man." Do you see that? A Q A Q Yes. And he was mistaken about that, wasn't he? Yes. And then at the last sentence you say: "In this case, however, the cover was drawn after Stan had rejected one drawn wholly by Ditko"; right? A Q Yes. And originally it is your understanding that

with regard to Spider-Man, Lee had initially assigned it to Jack Kirby, and then he switched it to Ditko; correct? A Originally Jack drew Spider-Man, and then they

stopped Jack, and Ditko took over. Q A Q And that was at Stan Lee's request, wasn't it? I would assume so. And on the next page you wrote -- actually, in

the bottom of the next page -- or bottom of this page under, "What did Jack do on the first stories of Iron Man and Daredevil," you wrote, "The first Iron Man story was wholly drawn by Don Heck"; correct?
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A yes. Q

I think there were a couple of other reasons,

What were the other reasons that you think

that they did that? A I think they liked the idea that you were

dependent on them, that you worked -- that a freelancer was at their financial mercy. And if you worked out in Los Angeles there seemed to be always this possibility you might get -sell work to other people or get other sources of income and would not then be so dependent on the company's page rates. Q Looking at what is page 66 in this article, in

the middle column -A Q Uh-huh. -- you say, referring to how it was until

recently (Reading): "This was the way it was in comics until very recently." This was in 1984, so -A Q Yeah. (Continuing): "If you had a great -- if you had the greatest idea for a comic book, the new Spider-Man, there was no
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American comic book publisher to whom you could take the damn thing and share in its success. They wouldn't guarantee you creative control of it, they wouldn't guarantee you a continuing credit on it, they wouldn't guarantee not to fire you and bring in someone else." That was your understanding; correct? A Q Yes. Jones, the questioner, says: "Wasn't this No one.

negotiable?" And you say, "No, they had a policy." Correct? A Q A Q Yes, I said that. That was your understanding? Yes. In the next paragraph -- the next column, I'm

sorry, there is a reference to -- you say: "I was there for some of this. DC's publisher was sitting in a very expensive suite at the Beverly Hills Hotel telling Jack that DC could not pay royalties, they could
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not and would not ever give anyone a profit participation." Do you see that? A Q Yes. And then you go on to say: "I heard executives

at Marvel essentially saying the same thing," and that was your understanding at the time; right? A Q Yes. They wouldn't pay royalties, they wouldn't

give a profit participation, would they? A Q Right. Bottom of page 69, first column, very bottom,

you talking (Reading): "He's tough for me to talk about" -- referring to Jack -"because we're practically family. In fact, you know, Jack has a bad memory at times. I have known him

over 15 years, and he always introduces me to people as Mike, and he sometimes introduces me as his son." So actually he did it more than once, didn't he? A No, I think he only did it once.
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BY MR. QUINN: Q A Q Bottom of page 78, the third column -Uh-huh. -- you state: "I can say with some authority -and with quotes from both Stan and Jack to back me up and much existing paperwork -- that most of the Lee and Kirby comics were done as follows. Stan and Jack

sometimes get together and talk out the direction of the story, and then Stan would sometimes type up a plot outline incorporating both their ideas. always. That's sometimes, not

At some point, Jack would

go to the drawing board and pencil out 20 pages or whatever, writing notes in the margin as to what was going on. If you come across Kirby

original art of the period, you can see his notes in the margins explaining to Stan what was going on. Now, in some cases Jack would In

have a discussion with Stan.
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some cases, he'd have a short plot outline. In some cases, he'd have

absolutely nothing at all; he'd just pencil the issue out, and when he handed it in, Stan would find out that the story was about. Stan

would then take the pages home and write the copy and that would go -that would go in the balloons. some cases he would take Jack's marginal notes and turn them into presentable speech and use them. In other cases, he would deviate from what Jack intended, as much as anyone can deviate when the page is already drawn, and the poses and attitudes of characters are set." Now was that your effort to describe what came to be known as the "Marvel method"? A That was my attempt to describe the way Lee In

and Kirby worked at the time. Q And did that particular description come to be

known in comic book circles as the "Marvel method"? A Q Loosely, yes. On page 83 in this interview in the first
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