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)

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Marvel Worldwide, Inc. et al v. Kirby et al Doc. 65 Att. 9 EXHIBIT 9 Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF NEW YORK MARVEL WORLDWIDE, INC., MARVEL ) CHARACTERS, INC., and MVL RIGHTS, ) LLC, ) ) PLAINTIFFS, ) ) VS. )NO. 10 CV 141 (CM)(KNF) ) LISA A. KIRBY, BARBARA J. KIRBY, ) NEAL L. KIRBY and SUSAN N. KIRBY, ) ) DEFENDANTS. ) __________________________________) VIDEOTAPED DEPOSITION OF MARK EVANIER LOS ANGELES, CALIFORNIA DECEMBER 6, 2010 REPORTED BY: CHRISTY A. CANNARIATO, CSR #7954, RPR, CRR JOB NO.: 34168 TSG Reporting - Worldwide 877-702-9580 Page 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 period of time. You would agree with me, would you not, that under these circumstances a man like Mr. Goodman was -- did have significant financial risk as a result of the nature of the industry? A. I would not necessarily agree with that depending on the definition of "significant." Q. Well, he was at financial risk, was he not, as to whether or not a particular comic book would be successful; correct? A. Q. He was at some financial risk, probably. Yes. You indicated here, among other things, that That would be a financial risk, he borrowed funds. wouldn't it? A. Q. Yes. And if a particular line of comics failed, that would -- he would incur financial risk as a result of that, wouldn't he? A. Q. Some financial risk. Yes. And, in fact, as I believe you testified, publishers like Mr. Goodman often had comic books that were not successful and that they had to discontinue; correct? A. Yes. I would phrase it slightly differently than that, but I would say they often had books that they discontinued because they believed they were not TSG Reporting - Worldwide 877-702-9580 Page 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 successful or would not be successful. One of my key opinions about Mr. Goodman is that he was frequently wrong about that. Q. A. Q. But -- I will come back to that. All right. You would agree, would you not, that if a book had to be discontinued or was discontinued, it was because the publisher concluded, rightly or wrongly, that it wasn't going to make money? A. There were occasional other reasons to discontinue a comic. Q. Putting aside the other reasons, one of the reasons for sure was that the publisher made a determination that he couldn't make money with a particular comic book line; -MR. TOBEROFF: Q. A. -- correct? Hold on. Putting aside the other -- putting The question is Vague. aside the other issues -- I'm sorry. confusing me. Q. A. You testified that -- It sounds like you're asking me: Aside from the fact that -- aside from the cases that he discontinued because he wasn't making money wasn't the only reason he discontinued wasn't that he was making money. TSG Reporting - Worldwide 877-702-9580 Page 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. simpler. books. I will rephrase it. Let me try this. Maybe this will make it Publishers made determinations to discontinue Sometimes they were forced to discontinue them by Sometimes they were Sometimes the distributors for content reasons. forced to discontinue them for rights reasons. they had opinions that the book would not -- did not sell or would not sell. they were wrong. a comic. But if your question is: Did they cancel Then Sometimes they were right; sometimes There were a myriad of reasons to cancel books because they thought they were losing money? the answer is: Q. A. Q. Yes, that was a very frequently a reason. That's fine. Okay. All right. You mentioned that Mr. Goodman borrowed money Do you happen to know who in order to set up his company. he borrowed it from and how much? A. Q. No. I don't know that. And you also had mentioned that you made notes after having been to Marvel offices from time to time to put down things that you wanted to remember. those notes? A. Q. Not to this day. Looking at your report again on page 5. Let's Did you keep TSG Reporting - Worldwide 877-702-9580 Page 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 self-explanatory, but -Q. Let me focus for a second on when you say "co-created," what do you mean by "co-created"? A. Co-created would be when the creation would So each of probably be credited to more than one person. the creators would be a co-creator. Q. Now, focusing on this period between 1958 and 1963, and the particular comic book characters that are the subject matter at issue in this case, what conclusions did you reach with regard to whether those characters were created solely by Mr. Kirby or were created or co-created, rather, by Mr. Kirby and others, focusing specifically with regard to on Mr. Lee? MR. TOBEROFF: A. Vague. Let me have it one more time. MR. QUINN: Yeah, read it back. (The record was read.) A. this way. I believe that the characters -- let me put it I believe that the properties Fantastic Four, The Hulk, Thor, several others here, the overall properties were co-created by Stan Lee and Jack Kirby. Q. And what opinions or conclusions did you reach as to how that co-creation process worked? A. sit down. My understanding is that the two of them would They'd bring in rough ideas they might have had TSG Reporting - Worldwide 877-702-9580 Page 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apart, throw them back and forth like any collaboration. Jack would offer ideas for characters. ideas for characters. Stan would offer Some ideas would get discarded. And then they would Some ideas would get expanded upon. emerge with some idea of what Jack was going to go home and draw. Jack would draw the story. If it was 20 He would bring pages, he would draw 20 pages of material. it back. Assuming that Stan didn't -- assuming that Stan was happy with what Jack brought in, Stan would then write the copy, the dialogue, the captions on the pages. And then the work would proceed from that through lettering, and inking, and coloring, and publishing. Q. Now, do you have any evidence or did you reach any conclusion or have an opinion as to whether Kirby had created or co-created any of these characters prior to when he returned to Marvel in 1958? these particular characters. A. focusing on? Q. A. The ones you mentioned. The ones I mentioned? I believe Jack had On which particular characters were you And we're focusing on previously done, in some cases, antecedents that were a starting point. He came in with ideas that were then later shaped with input from Stan. TSG Reporting - Worldwide 877-702-9580 Page 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time is 12:28 p.m. and we are back on the record. And this marks the beginning of Disk No. 3, the Deposition of Mark Evanier. Q. BY MR. QUINN: Before we took a break, we were talking about the statement in your report in the Superman case on the discussion of your understanding of the nature of the work for hire relationship, and specifically the reference you made to receiving some measure of supervision as a factor in determining whether or not a particular work was a work for hire. And I was asking you what you meant by the phrase, "receiving some measure of supervision." MR. TOBEROFF: in his expert report. A. Mischaracterizes the statement You can answer. What I meant was I think you have to take that Supervision, I mean, every publisher sentence as a whole. supervises work to the extent of deciding whether to publish or saying I won't publish it unless you change this word. I've had that done to me on materials where I've owned the copyright, and I've had that done to me on the materials where I did not own the copyright. In this particular case, this particular is about the Siegel and Shuster case. says: (Reading:) I understand in the nature of the And the first sentence TSG Reporting - Worldwide 877-702-9580 Page 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the work that Mr. Kirby did in drawing these characters in his basement or wherever -A. Q. It was in his basement often. -- that that work was performed after he and Mr. Lee had sat down and discussed the general plot of what was going to go on and discussed what characters were going to be part of the comic book. And it was after that that Mr. Kirby would then begin his drawings in his basement. MR. TOBEROFF: testimony. A. That's not -MR. TOBEROFF: A. case. MR. TOBEROFF: Period. Q. is. You would agree with me, would you not, that a particular character or a particular comic book story or plot would not be published unless -- and we're talking now at Marvel -A. Q. Okay. -- so '58 to '63 -- would not be published Fine. The record is going to be whatever it It misstates his testimony. He didn't say that. Objection. Misstates his I didn't say that that that was always the TSG Reporting - Worldwide 877-702-9580 Page 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unless it was approved either by Mr. Lee or by Mr. Goodman or both of them. A. As with any publisher, yes, the publisher and editor have the final say whether they're going to publish something or not. Q. And you testified previously that from time to time Mr. Lee, when he received materials from Mr. Kirby, would comment on them, and he would make changes in them; correct? A. He would of course comment on them. As an editor, his job is to comment on them. them? To make changes in If he had purchased the pages from Mr. Kirby, he would make -- he could do whatever he wanted with them once he bought them. Q. Didn't he, from time to time, we'd agree, he was being paid -- Kirby was being paid on a per page rate? A. Q. Yes. And did Mr. Lee from time to time ask Mr. Kirby to make changes or suggest changes in material that he submitted? A. There were times when Stan would say, I need I can't take this story as it is. Yes. something else here. You've got to fix this before we can buy it. Q. And Mr. Kirby would, in fact, make those changes and resubmit; correct? TSG Reporting - Worldwide 877-702-9580 Page 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I think there were times he didn't make the changes and offered something else, solved the problem a different way or did something different. I'm sorry. Q. Okay. Go ahead. But, yes. I finished my sentence. And there were also times where he did make the changes, resubmitted, and it got published. A. Q. Correct. So when you're referring to supervision in this paragraph, you're talking about the fact that there was nobody, Stan Lee or someone else from Marvel, in Mr. Kirby's basement overseeing the actual drawings of the books. A. Is that your -I would make it broader than that. But certainly Jack was working at home. work on his own. own. work. Q. He was drawing the He was plotting out the stories on his He was not being supervised in the creation of the You are aware that the -- -- and I believe you have testified previously and written extensively that with regard to these characters between '58 and '63 that I believe you referred to the fact that Mr. Lee and Mr. Kirby were co-plotting, was your term, co-plotting the books and characters; correct? MR. TOBEROFF: testimony -Vague as to the previous TSG Reporting - Worldwide 877-702-9580 Page 138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 into this discussion. give you an example. But you submit work to -- let me I submitted scripts to DC Comics in 1968. editors -- to Charlton. And the editors there said -- The sometimes sent them back and said we don't want this. was rejected. I was not paid for it. If you can It Once or twice the editor said: come up with a better ending for this, I might buy it. I did a -- rewrote the ending and submitted the work again. Now, the first version that I submitted was rejected, rejected being the opposite of accepted here. The fact that some of the work didn't change doesn't change the fact that the first version in totality was rejected. Q. So that's your understanding of "they were So only paid if the work was accepted"? A. Q. Yes. But would you agree with me that the practice was if the work was accepted, the artist or writer was paid, whether or not it was published? A. Q. That I would agree with. Yes. Now, you mention that there were times that you brought things to DC Comics, I believe you said, and some of the work was not accepted. Was that work that TSG Reporting - Worldwide 877-702-9580 Page 148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work for Marvel's books. And that coincided with the exhaustion of the inventory of material to the point where now more material was being purchased. Does that make sense what I just said? I think I said that inside out, but that's what happened. Q. I got it. Now, during the period I think that we're talking about, and prior to that, it's fair to say that Martin Goodman was responsible essentially for anything that happened during the time he ran Marvel? A. Q. I'm sorry. Yeah. Could I have that again? You've written, haven't you, that Mr. Goodman was responsible for anything that happened during the time you owned the company. MR. TOBEROFF: A. Vague. Is that a fair statement? Mr. Goodman was the publisher, the primary owner of the company, so he was doing the publisher's duties which -- he didn't make all the decisions there certainly, but he was in charge of the company. Q. A. Q. A. Q. line. Fair? He had the final say so -I would --- as to what got published and what didn't? Yes, I would assume he had the final say so. And that was because it was his money on the TSG Reporting - Worldwide 877-702-9580 Page 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. His family's money. His family? His family owned the company. He had a lot of relatives on the payroll. Q. Right. And it was their money on the line with regard to the company; right? A. I don't know which relatives had money in the They used to refer to it as Martin's company or not. House of Nepotism. Q. right? A. Somebody's money. Somebody who was named The Goodman family money was on the line; Goodman had their money on the line. Q. that list? A. Q. I believe so. Yes. Fair enough. And Martin was at the top of Is it fair to say that because he was the ultimate decision maker that he had the final authority on decisions about story lines or characters or what books -what new books would be begun and which ones would be canceled? A. He certainly had the final say on which books would be begun and canceled, to answer the second part of your question first. Insofar as story lines are concerned, every TSG Reporting - Worldwide 877-702-9580 Page 155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his work. A. Q. A. Q. A. Q. Do you see that? Yes. I may have been wrong about that. You may have been wrong, but you wrote it. Yes, I wrote it. Somewhere in the last two years; right? Yes. Yes. But now, because it's inconsistent with what Is that your prior testimony, you may have been wrong. your current testimony? A. was paid. Q. A. wrong. Q. But you wrote it down anyway. No, I just don't know where I heard that he Yeah, I wrote it, and I think I may have been By the way, it was Mr. Lee that made the assignments as to which artist would work on which particular book; right? A. Q. A. Q. During this period? Yes, this was -During the period of this? Yes. Yes, "this" being because this referred to During this period, you know late 50s, 1965, I guess. early 60s, it was Mr. Lee who determined which artists would work on which book; right? A. Yes. That was part of -- TSG Reporting - Worldwide 877-702-9580 Page 190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. And you are aware, aren't you, that, for example, Mr. Lieber, Larry Lieber, has said on many occasions that he wrote full scripts for the comics that he was doing. A. Q. You're aware of that? Yes, he has said that. And that, in fact, includes a number of the comics that Jack was doing the artwork for; correct? A. Q. Yes. By the way, do you have any basis for disagreeing with Mr. Lieber's statements that he would write the scripts before the panels would be drawn? MR. TOBEROFF: about exactly. Q. With regard to those comics that Mr. Lieber Vague as to what we're talking wrote the scripts for, do you have any basis for disagreeing that he wrote those scripts before the panels were drawn? A. My understanding is that Larry Lieber wrote scripts before the panels were drawn, but that that statement as you phrased it does not give a full portrait of the process. Q. Other than the phone call that you described in 1969, do you have any other personal direct knowledge of how the comic books that Lee and Kirby worked on TSG Reporting - Worldwide 877-702-9580 Page 193 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. When he was not given enough of a story line from the putative writer to create a coherent story without them. I also say here, (Reading:) This breakdown of the rules of writer and artist, with the artist assuming much of what had traditionally been done by writer, led to much confusion and debate within the comics industry, community. There are people in comics -- there are artists in comics who have been in comics for 20 or 30 or 40 years who never invented a villain, recurring villain or hero. Q. They just drew what the writer told them to do. Isn't it true that often Mr. Kirby would submit material and that he would be very upset when Stan would widely make changes that widely deviated from what Jack had intended? A. Q. you? A. Q. didn't it? A. I don't think I said it happened on a fairly Yes. And it happened on a fairly regular basis, That did happen. In fact, you wrote about it happening, didn't regular basis. Q. Let's look at your book, 292. You write that, TSG Reporting - Worldwide 877-702-9580 Page 194 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Reading:) Sometimes Stan's would deviate Jack didn't wildly from what Jack had intended. like that either. He loved the stories he developed and would often feel that Stan's word balloons stripped some issue of its meaning or inverted a key concept. Jack especially resented it when Stan would take the first part of a story in a different direction than he intended. Not only would Jack feel his work was being harmed, but it also meant that he would have to withdraw the last half without pay, of course, to correspond. That's what you wrote here. A. Q. A. Q. Redraw, not withdraw. Oh. Yes. "To redraw the last half without pay, of course, to correspond." A. Q. A. Q. Yes. I wrote that. Yes. And you believe that to be accurate; right? I believe that to be accurate. Yes. Because Stan would often take what was given to him and totally change the meaning around, wouldn't he? A. Q. I said sometimes. Sometimes. You're saying often. TSG Reporting - Worldwide 877-702-9580 Page 195 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. I said sometimes. Okay. We'll agree on sometimes. All right. Not always, but sometimes. Yeah. Sometimes. But he had the right to do it all the time, didn't he, -MR. TOBEROFF: Q. Objection. -- as the editor? MR. TOBEROFF: Calls for a legal conclusion. Outside the scope of his testimony. A. Q. The right to do it? Yeah, as his job as editor. MR. TOBEROFF: you've got to pause -THE WITNESS: MR. TOBEROFF: THE WITNESS: day. MR. TOBEROFF: Thanks. Okay. -- and let me object. I will learn to do that some Excuse me. When I object, The objection is, as to Stan Lee's rights it calls for a legal conclusion. It's outside the scope of Mr. Evanier's expert assignment. A. Q. Can I have the question again in full? You understood that even though Mr. Lee, as TSG Reporting - Worldwide 877-702-9580 Page 197 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have somebody else make the changes. MR. TOBEROFF: legal conclusion. A. Isn't that right? Calls for a Same objection. He could, once he had purchased the material, Or he he could ask someone else to make the corrections. could -- or he could say he could not purchase the material in its present state unless Jack made the corrections. What he could not do was to make the changes in the material and then say, oh, we're not going to buy this story or we're not going to buy this sequence. going to send it back to Jack. Maybe I'm splitting hairs here, but I'm trying to answer the question you're asking me, which is -Q. A. Q. Go ahead. -- compounded here somehow. You're aware that there are instances where We're there was work submitted by Jack as part of this whole process you have described in your report where he was asked to make changes. And there was also work submitted where Stan had somebody else make changes. A. Q. A. Q. That's correct. Correct? That is correct. Yes. And, in fact, there was situations where Stan TSG Reporting - Worldwide 877-702-9580 Page 201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 where Jack did the entire writing on his own. Q. A. Other than those, can you think of any others? Then later, when he went back to Marvel in the 70s, there were quite a few stories. Q. A. No, we're talking about in the 60s. In the 60s I think that's the only ones. I might have missed one. Q. A. Any of the others -Yeah, there was a story in one of the western books, I believe, in the 60s. Q. Do you know what time period? Between '58 and '63 or later? A. Q. I believe that would have been later. Yeah. You also have written that Stan gave up Is that your writing full scripts around 1962. understanding? A. Q. A. Yes. So prior to 1962 he was writing full scripts? No. Well, he started writing Marvel style Marvel Method scripts around 1955 or -56, but he wrote full scripts for some artists or some situations for a while there. During the period when they were not buying a lot of material, he wrote a lot of full scripts so he could get paid for them. The scripts that were done for TSG Reporting - Worldwide 877-702-9580 Page 202 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inventory, he couldn't work Marvel Method because there was no artist involved in those scripts. projects the artist would come much later. Q. A. Q. A. Q. A. Q. A. Q. After the scripts had been produced. Yes. In your book on Kirby -Yes. -- page 299. Turn to that page. In those We're using the K numbers; right? The K numbers? Yeah. 299. Got it. Yes. And there's a drawing, pencil drawing, and Do you see that? some handwritten notes. A. Q. Yes. Yes. And could you tell me whose handwriting are the handwritten notes? A. Q. I believe the handwriting notes are from Stan. And he's saying in one instance, "Jack, can this be the" -- oh, boy. A. Q. The Rainbow Bridge. -- the Rainbow Bridge?" And in another instance he's saying, "Put Oden here." A. much. Is he telling him to move -Omit Oden here. He'll cut into Masthead too In other words, Oden will cut into the title letter TSG Reporting - Worldwide 877-702-9580 Page 203 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when it's placed, so we have to keep that area clean. So -Q. A. Q. Oh, that's the top one. I see. -- let's put Oden in the bottom. So he's essentially telling him to move some of the stuff on the drawing? A. Q. Yes. Is that something that he typically did after seeing some of the drawings? A. This is very rare. I think I say on the next This is page that they almost never even worked this way. a very rare artifact. It's one of the few times Jack ever did a cover sketch like this. Q. But this is an example of Jack actually giving some pretty specific directions -- of Stan giving Jack some pretty specific directions with regard to at least this particular drawing; right? A. I don't know they're that specific. "Can this be the Rainbow Bridge?" Leaving it up to Jack to decide. That's "Put Oden here somehow if you can." leaving it up to Jack to decide. Usually a cover usually when an editor goes over a cover sketch -- and Jack didn't do very many cover sketches in his career -- usually the editor does a much more detailed composition. They would have something done TSG Reporting - Worldwide 877-702-9580 Page 204 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the office. They do an overlay and have another artist maybe move things around and show where to put them. This is very undetailed, a very undetailed set of suggestions. Q. It's fair to say that it's an example, at least, of Mr. Lee giving at least some direction to Mr. Kirby about how he should do this drawing. fair? A. Very little direction. I'm not sure what Isn't that you're trying to get me to say here. Q. I'm not trying to get you to say anything. That's all. Say I'm trying to get some testimony here. whatever you want. A. As we've established before, there were times when Stan sent things back to Jack and said, This has to be -- you know, I can't use this in the form it's in. Let's do something different. I would suppose. Are we done with this book? Q. yeah. A. All right. Okay. Can I get a glass of water Yeah. Don't let it go too far away. But This is an example of that, at some point here? MR. QUINN: Why don't you get it now. I will get it. MR. TOBEROFF: TSG Reporting - Worldwide 877-702-9580 Page 225 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe Stan sent Jack off to draw an important first issue without preliminary sketches and conferences." Right? A. Q. Yes. Okay. And so isn't what you're saying here is that obviously Stan and Jack had conferences before he sent him off to draw. A. Yes. (Plaintiffs counsel confer.) Q. On the two pages later, referring to the first issue, it says, "The first issue was clearly cobbled up in a hurry and does show some surface attempt to comply with Goodman's directive and replicate DC's Justice League of America." What did you mean by that? A. The cover scene on Fantastic Four No. 1 depicts a scene that appears nowhere in the story. Designed a cover that doesn't connect with the story therein, but it does kind of look a little like the composition of a DC Comic called The Brave and the Bold, issue No. 28, which first introduces the Justice League. And Jack's layouts inside the comic, his page layouts look more like a DC Comic in terms of the panel shapes. It's like somebody had shown him Justice League and said, Let's try and make the book look a little bit TSG Reporting - Worldwide 877-702-9580 Page 231 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like that in the room helping flesh out whatever ideas you had, change them, and bring in his input. I'm not saying Stan is lying. I'm saying he's I choosing his words carefully, remembering a version. disagree with Stan about some aspects of Marvel history. We've had friendly arguments about certain issues and certain comics and how things came about and how they were published. And sometimes I get him to agree with me. I show him evidence. Q. Well, one thing we've established, during this period from '58 to '63, Stan was there, and you weren't. A. Q. Yes. You say in your expert report at page 15 carrying over to 16 that "It is also worth noting that Stan Lee did not create any important characters either before Jack Kirby first worked with Lee or after Jack Kirby stopped working with Lee in 1970." Do you see that bottom of 15 over to 16 in your report? A. Q. Hold on here. Yes, I see that. After he stopped working for Lee in 1970, what successful characters did Kirby create? A. New Gods. Well, he created a series for DC called The Featured a villain called Dark Side, one of the Did a book most important villains in Allied DC Comics. TSG Reporting - Worldwide 877-702-9580 Page 238 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. And isn't that correct with regard to much of Most of the time you're just guessing; your testimony? isn't that right? A. Q. No, I don't think so. On page 16 of your report in the middle paragraph under Mighty Thor, referring to The Mighty Thor -- am I correct, by the way, Larry Lieber was the one who actually wrote the script for The Mighty Thor? A. Larry Lieber did the script for the first Thor story in Journey into Mystery No. 83. THE REPORTER: A. In -- what? Thor story in Journey into Mystery No. 83. THE REPORTER: THE WITNESS: Thank you. As the day winds down, I get less coherent. THE REPORTER: Q. BY MR. QUINN: And I get more tired. And was it your understanding that Lieber wrote the script before Kirby drew the panels? A. It's my understanding that Lieber wrote the Yes. script before Kirby drew the panels. Q. And is it also your understanding that Larry Lieber named Thor's alter ego Don Blake? A. Q. Larry says he did. Do you have any reason to disbelieve him? TSG Reporting - Worldwide 877-702-9580 Page 246 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. They're both lying, with a question mark. I would not use the term "lying." I think they And when I report the history, both have their versions. I will report both of them and let the reader decide. Q. You are aware that Larry Lieber was -- did -- was assigned to write the full script; correct? A. Q. Larry Lieber wrote a script. Yes. And he wrote the script before Heck drew the -- before he drew the comic? A. Q. Yes. And what role does Kirby say he played in the first issue of Iron Man? A. Jack says he came up with the concept, presented it to Stan as an idea that they would do together. They talked it out. The idea was put on hold And because there was no place to do it at that moment. then subsequently Stan did it with Don Heck or put it into Tales of Suspense and had Don Heck draw the first one. wasn't happy with what Heck did, so Jack came in and started drawing it after that. Let me finish. Q. A. Please. Jack also -He By all means finish. And Jack also drew the cover of the first issue, and on that cover he designed the look of Iron Man and the idea of the character putting on this iron which TSG Reporting - Worldwide 877-702-9580

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