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

Filing 69

DECLARATION of Sabrina A. Perelman in Support re: 67 MOTION in Limine to Exclude the Expert Report and Testimony of Mark Evanier.. 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)(Quinn, James)

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

Doc. 69 Att. 2

EXHIBIT 2

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. )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

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and Mr. Williamson? A. Q. Maybe an hour. And in preparation for your deposition today,

did you review any documents apart from your report itself? A. I reviewed the subpoena of I don't know if --

I don't know if it counts for appearance today, but I reviewed the subpoena of materials to be produced. Q. A. Q. Any other documents? No. Did you, in preparation for your deposition

today, review any deposition transcripts in this case? A. Q. No. Now, I know we touched on this briefly in your

initial deposition, but could you tell us again how you came to be retained as an expert in this matter? MR. TOBEROFF: A. Asked and answered.

Mr. Toberoff asked me to be an expert witness

in this matter. Q. A. Q. a year ago? A. Q. I don't remember. Do you recall whether it was before or after And when approximately did that occur? I don't remember. Was it -- give me your best estimate. Was it

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and comic book characters published by Marvel between '58 and '63 as well as his relationship with Marvel during this key period? A. Q. Got it? A. No, no. Let me -- the opinion is not on that The opinion is throughout the report. Yes, I was. Okay. That's the opinion I'm referring to.

page you're citing.

Are you asking me to how do I -- how did I arrive at the opinion stated throughout the document that are summarized on this page? Q. A. Q. A. Yes. All right. Yeah. No. Okay.

Not a trick question. I'm just trying to answer -- I was trying

to figure out why you were calling my attention to that one sentence. Q. Because it summarized your opinion. MR. TOBEROFF: the report. A. Objection. Mischaracterizes

It doesn't summarize his opinion. The opinions in this report were formulated by

my calling upon years and years of studying Marvel Comics, reading Marvel Comics, interviewing and talking to people who made Marvel Comics, visiting the Marvel offices, discussing Marvel history with other people who have done

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similar investigations and interviews, reading articles about Marvel. It's -- the opinions are based on 40 years

of -- more than 40 years of following Marvel Comics, probably 50 years. Q. And specifically you referred to reviewing

or -- let me go back. Could you tell me with some level of specificity the people interviews -- take it back. the question. In connection with preparing the report itself, did you conduct any interviews in order to prepare the report? A. Did I conduct any interviews specifically for Strike

towards this report? Q. A. Q. Yes. No, I did not. And specifically with regard to the

preparation of the report, did you review any documents or reference works in connection with preparing the report? A. I got some dates out of my own book on Jack,

and I think I looked some up on the Internet to just verify my recollection of dates and spellings. Q. So other than checking on some dates and

spellings from your book on Jack Kirby and other information available on the Internet, you didn't review

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any other documents that are reference materials; correct? A. Let me think. Well, I clipped some of my

qualification from a bio of myself which was easier to just paraphrase or transcribe some of that. I think I cut

and pasted some of my own credits out of another bio of myself I had on my computer. MR. TOBEROFF: question. THE WITNESS: A. Okay. Take your time in answering the

I -- well, I had taken when Mr. Toberoff told I took

me of the assignment here, what he needed from me.

notes on my computer as he was telling me on the phone, and then that was the file I used. In other words, I had jotted that down, then I basically I expanded my notes on top of that. the file that had -- he had written. I opened

He had said -- he

told me a couple little facts about the case, and I had took that, and then I took that -- it's not a separate document, it's -- I took that, opened that file on my computer, and then I wrote the expert report in that file using, you know, material that was above and below to -Q. A. What was the material? Well, like he told me about the dates of the

some checks that were supplied that were in evidence, and he told me we have these checks from these periods. And

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so I had the dates of those checks in that file so I could reference them here. Q. Have you ever seen a check from the period

between 1958 and 1963? A. Q. From '58 and '63? No.

That would be the part, the period, that you

say in your report is the key period; correct? A. That is my understanding of the case is that

the main focus is on that period. Q. What were the other facts -- and I use that in

quotes -- but what was the other information that Mr. Toberoff supplied to you in connection with the preparation of your report? A. He didn't supply much of anything. I took --

while he was telling me what he needed, I made some notes to myself of things that I wanted to cover that I thought I should cover that occurred to me while I was talking to him. I wrote "original art" and a couple other key words. He didn't supply -- let me think if I can -what else he supplied me, if there's anything else. Well, I wrote -- as reference, I looked at the expert report that I had filed in the Superman matter just for the form to cover the format of an expert report, and the headings such as the compensation in prior cases and publications.

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Q.

I'm not focused on, you know, the form.

I'm

asking whether in addition to what you've already testified about can you think of any other documents or reference materials that you utilized in the preparation of your report? A. Q. I don't believe so. No.

And you mentioned something about some visits Did you visit the Marvel offices in

to Marvel offices.

connection with your preparation of your report? A. Q. offices? A. Oh, the first time was around the July 4th And then I probably visited the office No. When did you make visits to the Marvel

weekend of 1970.

every two or three years after that. Q. And in the course of those visits, did you

interview people in connection with what they did at Marvel? A. Q. A. Yes, I did. Who? That's a very long list. I talked to -- by

interview, are you meaning informal conversations or formal conversations? Q. example? Either way. Did you speak to Mr. Lee, for

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A. Q. A. Q. A. Q. A. Q. offices? A. Q.

Many times. Mr. Romita? Yes.

Yes.

And Roy Thomas? Yes. Any others? Probably 50 to 100 others. When was the last time you visited the Marvel

About five years ago. In connection with any of your visits, did you

make any notes or obtain any documents relating to your visits? A. I made some notes occasionally after to remind I made some notes

myself -- not notes at the time.

afterwards to jot down things that I was wanting to remember. By visits to Marvel offices, are you including things like going out to lunch with people? I probably

talked to these people more at lunch across the street or down the street than actually at the office. Q. right? A. Q. Since 1970. Now, I think you mentioned having discussions This is over a long period of time; is that

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Colan, John Buscema, Saul Buscema, Marie Severin. say Roy Thomas? Gary Friedrick, Alan Brodsky, Sol

Did I

Brodsky, Janice Cohen, John Verpooten, Tony Mortellaro, Herb Trimpee, Chick Stone, Joe Sinott, Frank Giacoia, Mike Esposito, Barry Smith. These are just people who did work for Marvel or did freelance work for Marvel. I have talked to people

at other companies about Marvel history. Getting back to people at Marvel, Len Wein, Marv Wolfman, Steve Englehart, Steve Gerber, Gerry Conway, Dan Adkins, Vince Colletta, Syd Shores. I apologize. You're going to have to look up

a lot of these on the Internet to find the spellings. George Tuska, Johnny Craig, Archie Goodwin. Did I say Jim Shooter? Kalish, Peter David. Q. A. the time. Q. No, we can move on. But I'm correct that in connection with the actual preparation of your report, you didn't actually discuss -- have the interviews with those people; correct? A. deceased. No. And quite a few of those people are That's fine. I've got about another 300 if you want to take Tom DeFalco, Mark Gruenwald, Carol

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I think Marie Severin did some freelance work for them during this period, maybe a little later than '63. There's probably another name or two -Q. A. Q. Okay. That's fine.

-- I can't think of at the moment. That's fine. Now, when you were first retained by Mr.

Toberoff, what did he say to you about specifically about the opinions that he wanted you to render? MR. TOBEROFF: facts. A. Well, I think the issue of me doing an expert Lacks foundation. Assumes

report was first mentioned by The New York Times before Mr. Toberoff approached me. I declined to be interviewed

by The Times, and in an article they said Evanier would not -- some form of Evanier didn't speak to us because he'll probably be a witness in this case or an expert. And I believe Mr. Toberoff said something like, Well, I guess The New York Times was ahead of us. Then he asked me to prepare an expert report, and he said that he wanted me to cover -- he wanted me to address the relationship -- the working relationship that Jack had with Marvel, how he worked for them, what his relationship to the company was.

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Q.

Well, did you go to any reference work or

textbook or publication of any kind to check to see whether or not the conclusions you reached were, in fact, reliable? A. I don't know of any reference book or source I derived a

like you're describing that would do that.

lot of my knowledge about Marvel from books, as I mentioned. There is very little written and published A lot of what has been

about a lot of this material.

published about it was written by me. So if the question is, did I check my opinions against published works by others, I don't think there are any published works by others that would cover this material. Q. Okay. And my question -- and that's close, Is there any way that you can think

but my question is:

of to test the reliability of the opinions that you reached or what you say is your understanding of what occurred back in '58 through '63? A. Any way to test that?

Let me think for a minute. I don't know of any way to test this kind of

thing. Q. Take a look at your report. And I want to

point you to certain things that you wrote. Let's look at page 5, for example. Starting

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people there, printers there to pay. And the companies were frequently pleading poverty, lowering rates. It was a very -- it was a

business that very few people bet would be there in the future. It's amazing that it's still there. Even when

I got into comic books into the early 70s, there were people, prominent people, in the industry predicting the industry had less than five years to live and predicting demise. And then you still had -- would have frequent

cases where you came in one day and they'd canceled half the line or laid off half the staff. And there were

problems meeting payroll sometimes, problems paying people. So when I say "fly-by-night," that's kind of a way of saying the industry was not very well grounded in -Q. How did you come to find out all these facts? MR. TOBEROFF: A. All right. Asked and answered.

Well, since about 1966 or -67, I was

I've been talking to people who did comics. fascinated by comic books.

And I have interviewed just

about everybody I could meet who ever worked in comic books, including, you know, people who ran xerox machines or photostat cameras.

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And whatever was written about comics, which for a long time was not much, I bought, I read. all the comic books. collections around. And I have been going to comic book conventions since 1970. There's this annual convention in I've been I read

I still have one of the largest

San Diego that's now -- they've had 41 of them. to all 41 of them.

And at most of them I've conducted

panels and seminars and interviewed people extensively. Because there has not been as much written about comics as there probably should be, the history has been mostly oral. And I've been fortunate to have

interviewed a lot of people who worked in comic books in the early days, frequently the only interview they ever gave. The convention has been very nice. If I tell

them they've located an oldtimer who worked in comic books in the 40s who hasn't been around the industry for a while, he's never been to a convention, they'll send him a first class ticket and fly him to San Diego to be there. And I'm usually the person who interviews that person. can give you examples of that, if you want. But at the convention, most of the panels that are about comic book history are conducted by me. And so I

it's been kind of since the late 60s it's been kind of an

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interest of mine.

And even before I thought I might work

in the comic book field, I was fascinated by it. And just, you know, when I was in high school, I found out that one of the kids in my chemistry class had a father who had worked in comics. I meet your father? And I asked him, Could

And he didn't understand why I wanted But I went over one

to, and his father didn't understand.

day and spent the afternoon talking to his father about working for publishers in the 1950s. His father had not I

drawn a comic book since, well, in at least 10 years.

just wanted to know what the business was like, how he was treated, how he did what he did, how the work was produced. I don't know if I'm answering your question. Q. Yeah. That's fine. Okay.

You mentioned at the top of page 5 in that connection that: Comic book publishers did not see any

value in the product, in their product, beyond monthly sales figures. What's the basis for that statement? A. Early on, this is something that was told to

me by the artists and the editors and people I talked to. Jack Kirby talked to me greatly about that. comics almost from the beginning. Jack was in

And he was by no means

the only one who told me this, but he used to say that

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these guys had no imagination; that the publishers all they thought about was this month's sales and that they didn't realize that they were -- that they had the underpinnings of a media conglomerate. term at that time, obviously. But these characters that they were doing could be exploited in other fields. You know, he would Didn't use the

point to, in fact, Walt Disney was not interested in just making Mickey Mouse cartoons. Walt Disney was interested

in expanding Mickey Mouse into all different fields and doing toys and games and comic books and comic strips and eventually a theme park. Whereas someone like Martin

Goodman at Marvel, who he cited frequently, was he thought was a man of limited vision, limited imagination. And he told stories about how he would go to Martin Goodman and tell him what Marvel could be, how it could expand. This is even before it was called Marvel. It was just -- he

And he got back very little response.

did not -- he always thought that Martin Goodman grossly undervalued Marvel when he sold it in the late 60s. Q. Now, your testimony is or your opinion is that

publishers didn't see any value in the product beyond monthly sales figures, but you previously testified, I believe, and written that during this period of time the publishers also would not negotiate with artists with

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A. Q. A.

No. You never heard that before? I never heard that he fired them because they No.

were working for other publications. Q. A. Q. What -No, I did not.

Did you ever hear that they were working for

other publications? A. Q. A. Q. paragraph. Yes. At the same time they were working for Marvel? Yes. Go back to page 5 for a moment. First full paragraph. The top

You write, "There was

no expectation that it would ever be reprinted and little that the characters would be merchandised or exploited in other media." What was the basis for that conclusion? A. The way it was described to me by people who

were working there in the comics at the time. Q. In fact, a number of publishers did reprint

their books, did they not, back in this period of time? A. Q. 60s. A. There was very little reprinting done of What period are we talking about? We're talking about up through the 50s and

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There was a lot of romance material for Crestwood. was a book called Young Romance. Strange Worlds of your Dreams. called Young Love.

There

There was a book called There was also a book

There was a book called Young Brides.

Do you want more than that? Q. No, that's fine. With regard to going back to this issue of reprints and merchandising and so forth. Am I correct

that, in fact, there were merchandise that was sold with regard to Captain America back in the 40s and 50s? A. Q. A. In the 40s, very little. There was some? There was a Captain America fan club that they You could get -- you

advertised in the comics and sold.

could join the Captain America Sentinels of Liberty, and you could get a pin and a badge and a certificate for a dime. Q. What about Superman? There was -- Superman

was merchandised back in the 40s and 50s, wasn't it? A. Q. Superman was merchandised. Yes.

Now, in connection with the opinions in your

report, is one of the bases for reaching those opinions or reaching the understandings that you had -- the personal interactions you had with Mr. Kirby? A. Yes.

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Q. A. Q.

And with the Kirby family, Mrs. Kirby? Yes. Now, did it -- you've testified previously

that, I think in the prior deposition but also in other places, that Kirby often had some poor memory about things that had occurred in the past as to things that were created or not created. MR. TOBEROFF: A. Misstates prior testimony.

I don't think you're characterizing my

testimony correctly. Q. Okay. What was it that -- what was your

understanding of -- strike that. It's a fact, is it not, that from time to time Jack Kirby would make statements with regard to the creation of characters that turned out to be incorrect; isn't that right? A. No. Once in a while there was -- there were a

couple occasional incidents, and he corrected himself when he realized his mistake. Q. Okay. The record will speak for itself.

Did it ever occur to you, based on your interactions with Kirby and Roz, that his version of what had occurred back in 1958 through 1963 may have been incorrect? A. It occurred to me that it might have been, and

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versions Mr. Kirby has given.

Let me say that again.

Mr.

Kirby's version was always consistent.

Mr. Lee's version

has changed from time to time, and Mr. Kirby's version is in conflict with some of the accounts Mr. Lee has given. Q. And you chose to find Mr. Kirby's version more

credible than Mr. Lee's; is that correct? A. I chose to find -- I chose to believe the

version which I heard from both of them which coincided and to discount any versions which only served one person's purposes. MR. QUINN: please. (The record was read.) Q. So you chose to disbelieve certain parts of Let me have that answer back,

Mr. Lee's version or testimony in favor of Mr. Kirby's version; correct? MR. TOBEROFF: A. No. No. Misstates the record. He said Misstates --

MR. TOBEROFF:

he had never read Lee's testimony. A. First of all, I'm not talking about testimony.

I'm talking about versions that -- I'm talking about sitting across from Stan at lunch and hearing him tell me things and talking to him informally and talking to him one on one. I have also read interviews of him.

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Mr. Lee's versions occasionally differ from one another. You can't believe all of them because

occasionally they're mutually exclusive. When Mr. Lee's version and Mr. Kirby's version matched up, and they matched the printed comics, and they kind of coincide with what people around them told me, then that is the version that I take to be the most credible. Q. And when they don't match up, you chose Mr.

Kirby over Mr. Lee; isn't that true? MR. TOBEROFF: A. Misstates testimony.

That's -- yeah, that's misstating testimony

like the man says. Q. A. I'm not asking for the testimony. No. No. What I'm saying is that in cases

where I have heard multiple versions, or things which sometimes which just don't match the printed comics that I can hold in my hand, I choose to -- I make a value judgment for myself, as anybody doing journalism would do, and I believe the version that seems to be the most consistent throughout more people's versions. Q. Now, in reaching the opinions that you reached

in connection -- in connection with your report, is it your testimony that you did not read the sworn testimony of Stan Lee in this case?

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A. Q.

I glanced at it.

I did not read it in full.

And is it also your testimony that you did not

read the sworn testimony of John Romita in this case? A. Q. I did not see Romita's testimony. And is it your testimony that you did not read

the sworn testimony of Roy Thomas in this case? A. Q. I did not read Mr. Thomas's testimony. And so you mentioned as a journalist that you

would want to get the fullest information possible to reach certain conclusions. Wouldn't it have been useful

for you to have read the actual sworn testimony of people who were at Marvel at part of or all of the period from 1958 through 1963? MR. TOBEROFF: Objection. You're referring to

depositions that occurred after this report. A. That's what I was going to say. Are you

asking me did I read the testimony -- are you asking me did I read their testimony before I prepared my report? Q. A. report. Q. Mr. Lee testified -MR. TOBEROFF: Q. Some did; some didn't. Your testimony -- your So by my Yes. The testimony didn't exist when I prepared my

-- in May of 2010.

report is dated in November of 2010.

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recollection, that's -- it did exist for about six months. A. Q. I had not -- I was not aware of it. So I have it right. Mr. Toberoff did not make

you aware of Mr. Lee's testimony before you issued your report. A. Is that your testimony? I did not have a copy of Mr. Lee's testimony

before I issued my report. Q. your report? A. Q. A. place yet. Q. So Mr. Toberoff did not inform you that Mr. No, I did not. Were you aware there was such a deposition? I was not necessarily aware that it had taken Did you ask for a copy of it before you issued

Lee had been deposed in this lawsuit under oath prior to your issuing the report; is that correct? right? A. remember. Q. It's fair to say, is it not, that essentially Let me think. I don't remember that. I don't Do I have that

the methodology you used in coming to the opinions that you did in your report is that you took versions from Kirby, versions from Lee, and you decided which ones you thought were the most credible; isn't that right? A. No.

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MR. TOBEROFF: A. No.

Misstates testimony. I

No, that's not what I said at all.

said, first of all, I said I looked at the printed comics. I looked at whatever materials existed. I talked to other

people who were around at the time who had histories of working with Stan Lee and with Jack. I talked extensively

with Sol Brodsky, who was Stan's right-hand man during this period. I talked to other -- I talked to Steve

Ditko, who was working for Marvel during this period. MR. TOBEROFF: A. Yeah. You can keep answering. I'm sorry. Then I lost my

All right.

train of thought here. It is not merely a matter of me weighing Stan's accounts against Jack's. Q. In reaching the conclusions that you reached

in your report, which was submitted to us in early November, I'm correct that you did not read the testimony of Stan Lee, John Romita, and Roy Thomas who testified in this case; correct? A. Q. That is correct. Even though all of those depositions took

place before you issued your report? A. Q. A. I don't know that that's true. I will so represent to you that it's true. I did not read those depositions.

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A. used.

Jack's original pages of Spider-Man were not Then Steve Ditko did it. However, Jack maintained

that he created Spider-Man. Q. And so this would be a circumstance, for

example, where -- maybe I've got this wrong. But put aside what he maintained. you conclude as to the creation of Spider-Man? What did Did you

find Mr. Kirby's version more credible than Mr. Lee's, which is in clear conflict? A. I don't find them completely in conflict. I

find certain areas that overlap.

And in this particular

-- this is -- you're kind of asking me for what could be a very long answer here, if you want to go through the whole thing. Q. A. people. I don't know. That's a good question.

Because I've spent hours discussing this with My version that I reported on, written about, of

the creation of Spider-Man allows for certain he said/he said variations. There are, however, certain parallels in

the stories and the accounts that I find indisputable. Q. So you're taking an amalgam of different facts

and versions and choosing to try to make them consistent in such a way that you reach a conclusion? A. Well, when I report on this, I try to separate

what is conjecture from what is, I believe, indisputable.

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And I leave it -- well, when I have written about this, I generally leave it to the reader to make certain decisions about the process. I think that there are things you can say about it that are obvious. I think there are things you

can say that are simply common sense, because I don't think that either Stan's or Jack's accounts exactly match the physical evidence of the printed comic that resulted. But I think it is possible to come to a scenario of how Spider-Man came to be that allows for the fact that at various stages there's the Stan Lee version, and the Jack Kirby version, and they could in some cases both be true based on interpretation of certain words, certain verbs. It's something when I have written about it I'm very careful to try and not take -- not to say either Stan's version was completely correct or Jack's version was completely correct, because I don't think either one of those tells the entire story. But they are not -- it

is wrong to say that they are in complete conflict. Q. Some areas we can agree on. I think we did

agree on one, which was that Stan, in fact, didn't use the original drawings by Jack with regard to Spider-Man; correct? A. That is correct.

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A. Q. A.

All right.

Where did I say that word?

We'll come back to it. Depending on the context, that might be the

correct word. MR. TOBEROFF: Q. Misstates his testimony.

I think you testified previously in the prior

deposition, but I want to ask you a follow up in this context. You have written extensively about Jack Kirby and his contributions to the comic book industry; correct? A. Q. Yes, I have. And you also have given lectures and spoken

extensively on that subject? A. Q. I have. And could you estimate for me or for us how

much you've been paid or how many royalties you've received in connection with the books you've published on Jack Kirby, the articles that you've written on Jack Kirby, the presentations you've made on Jack Kirby going back over the last 20 or 30 years? A. Well, lectures I think I have never been paid I have been paid for lectures

for a lecture about Jack.

where Jack was mentioned, but he was not the primary subject of the lecture. Articles? I have written the Forwards for --

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I'm going to give you an estimate. number.

This is not a finite

I have written the Forwards for approximately 20 And I usually

to 25 reprint collections of Jack's work.

get somewhere between $250 or $500 for each one, which is a standard fee for Introductions of these kind of things. Q. A. Mm-hmm. I have written one book about Jack. I really

don't remember how much I've been paid on that, but I believe we're furnishing that material to you, if I can dig out the records of what I've been paid on that. What else is there? Q. would be? A. Well, for the Forwards maybe -MR. TOBEROFF: book. A. Q. A. The book? I don't have -I think he's referring to the Do you have an estimate as to how much that

I was referring to the book. I don't have an estimate for it. They're way

behind in paying me, so I don't know. Q. You refer yourself in the report at one point Is there anybody else in the

as a comic book historian.

industry that you consider to be a comic book historian? A. Yes. You know, to varying degrees there are Roy Thomas

lots of people who write about comic books.

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MR. TOBEROFF: A.

Compound.

Well, Mr. Kirby believed -- said that he took He

some of the ideas that became the Marvel heroes in. brought them in, did sketches first, took them in and showed them to Stan. So to the extent that that answers your question, that answers your question. Q.

Well, I'm asking for your understanding as to,

first of all, what did Mr. Kirby tell you about that, which characters, when did he do that, and whether or not this was one of the versions you chose to believe. A. Okay. Mr. Kirby told me that he brought in

sketches for knew characters, including rough sketches of The Fantastic Four that he did on his own. in. His version of the creation of Fantastic Four was that when Mr. Goodman asked for a superhero book to parallel DC Comics' Justice League of America, Stan's initial idea was to revive the characters from the 1940s The Human Torch, The Submariner, Captain America, and certain others. And Mr. Kirby then went out and said, no, we need new characters. And he came up with some sketches. Brought them

And he took them in, and The Fantastic Four was born out of those discussions.

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Brodsky, who was the right-hand man who was present for a lot of this, he more or less endorsed the Kirby version to me. Q. A. Sol Brodsky is dead; right? Yes, he is. But I haven't published this.

This is an area where when I write about this, I say that, and I think I say in my book, in effect, Jack and Stan got together and came up with the characters. I don't remove

from that period, which as you keep reminding me I was not present for -Q. A. anyway. You know, there's a limit to how much we can know about what two men did behind closed doors years ago. There's also a limit to how much each of them could even remember about that at the time. And I was sometimes when I have written about this I also from my own experience talk about the fact that collaborators can honestly disagree five minutes after a meeting of whose idea was which because one person threw out an idea and another person expanded on it and such. So I have not uncovered anything which would convince me that Jack didn't bring in some sketches. And I haven't reminded you the whole day. I think you did someplace in there, but

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I don't know how much those sketches resembled the finished product. But Jack said he brought in ideas. I

know that Jack was a fountain of ideas; that he had a lifetime history of batting out ideas for new characters and sketches. And every single human being who ever

worked with Jack will tell you that, including Stan Lee. So I choose to believe that because of Jack's modus operandi, and the way he always worked, that he brought in something, and Stan brought in something, and collectively The Fantastic Four emerged from those discussions. And I specifically avoid trying to say that

I know exactly what happened behind those closed doors, because it was apparent to me that there was some level of collaboration there. I find in my own experience, and in my own observation, and talking to the people who knew Jack well, Jack was a creating character machine. creating characters. asked to. He was also

He created characters when he was

He created characters when he wasn't asked to. And Stan has said that many

He was a very fertile person. times. Q. A.

Do you know -- I'm sorry.

Please finish. But

So I hope I'm answering your question.

the mere fact that somebody says, you know, that a publisher says I would really like to do a western, and

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I would want to know if, you know, The New York Times gave him the typewriter he was working on. Q. A. Q. Anything else? I think those right there are -Well, let's assume they're going to pay him

for the article whether or not they publish it. MR. TOBEROFF: Again I object. He's not a

lawyer, asking for a legal conclusion as to whether something is work for hire under the 1909 Copyright Act that even lawyers have trouble answering. the scope of his expert opinion. A. I think this question is too vague to answer It's outside

even as it is. MR. QUINN: break for lunch. THE VIDEOGRAPHER: is 1:10 p.m. (Recess.) THE VIDEOGRAPHER: time is 2:20 p.m. Q. A. Q. BY MR. QUINN: Good afternoon, Mr. Evanier. Back on the record. The Off the record. The time This is probably a good place to

Good afternoon, sir. You had mentioned previously in connection

with one of the answers you had given regarding conclusions you had reached relating to Jack Kirby's
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relationship with Marvel back in the '58 to '63 period that you'd had discussions with, among other people, Sol Brodsky. A. Q. discussions? A. 1975 and 1976. Met mr. Brodsky before that. Remember that? Yes. Could you tell me when you had those

We had an extended conversation in '75 and another one in '76. Q. And do you recall -how long ago, by the

way, did Mr. Brodsky pass away? A. Q. Oh, early 80s. '83, '84, I think.

You mentioned you had a conversation with him What do you recall him telling you at

in '75 and '76.

that time about the Kirby/Lee relationship in the '58 to '63 period? A. Well, mostly I told Sol the way I understand

the situation, and he agreed or amplified or corrected me. I was mostly using him as, you know, Jack told me this, Stan told me this, what do you think? Q. Do you recall the specifics of the

conversation you had with Mr. Brodsky about what you were saying your understanding was and what his responses were as to what Jack told you or what Stan told you? A. He endorsed pretty much most of what Jack told

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me but with some corrections and different memories. you have a specific topic? Q. A. Q. Well -We talked for hours.

Do

What is it that Jack told you that you say Mr.

Brodsky endorsed? A. Well, I asked him in the early days was it

true that Jack would come up with the plots for things, and Jack would go home often with know -- with very little input from Stan. Or that sometimes it would be done over

the phone, and Stan would say, "I don't have time to talk about the next issue with you, so just do something," and Jack would go ahead and draw an issue. I remember one thing he told me was that -and this is not a quote; this is a paraphrase by me -that repeatedly there was a situation where Jack would come into the office, and he and Stan would talk about the next issue of Fantastic Four, the issue of Fantastic Four that Jack was going to go home and start working on. And on the way out, Jack -- and Stan would say to Jack: Oh, then after that we're going to do a Thor Got any ideas for that?

story, you know, next month.

And Jack would say -- this is me making something up here -- Jack would say something like: yeah, I got an idea for a story with Loki in it. Oh,

And then

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Jack would go home and draw the Thor story that wasn't needed next instead of The Fantastic Four story that was. He would get confused as to which story he was supposed to do in what order. So he would do this whole issue of Thor and bring it in, and Stan would say: of Fantastic Four we were doing? And he'd say: Thor first. Oh, I thought we were doing Well, where's the issue

He would get confused as to which book he was

to do in which order. Q. had to meet? A. They were pretty much ahead of deadlines. Is that because there were deadlines that he

It's just that one book may be way farther ahead than another. next. Stan would pick out which -- let's do a Thor

Based on sometimes the deadlines had less to do

when the material was needed for publication than when the artist would be inking the story would be needing work. In other words, if the inker of Fantastic Four was not busy, they might do a Fantastic Four issue next so they could feed work to that inker. Most of the stories they did were way ahead of publication deadline because Jack and Stan were both very prolific, both very fast and producing an awful lot of work. Jack occasionally would do an issue, you know, in a

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Q.

You state in the paragraph that starts "But until

"Goodman meanwhile" about a few lines down.

the debut of Fantastic Four in 1961, few comics seemed to be permanent fixtures." What's the basis for that statement? A. Looking at the history of publishing at The ones

Marvel, they tended to cancel books very fast.

that -- the ones that kept going for quite some time were flukes. And, you know, I have talked to an awful lot of people about Martin Goodman, and there is a unanimity of opinion about him from people who worked in that time period. And Stan Lee has said this on many occasions, and It's a consistent

Sol Brodsky said it, and Jack said it.

portrait of a man who was always trigger happy, ready to cancel a comic when he got one bad sales report. were down, he would cancel a book. Sol Brodsky told me that frequently, very often, in fact, what would happen would be that they would get the sales figures in on, let's say, you know, Issue 22 of a comic. cancel it. And Martin would go, oh-oh, it's down. Let's Sales

Then someone would tell him, well, we've got We've got the next three issues sitting on

Issues 22, 23. the shelf.

And he would decide, well, it would be cheaper So

to publish them than to write that material off.

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they'd publish those issues.

And by the time they could

cancel the book and not have inventory left over, they would get some encouraging sales figures, so he would uncancel the book. And so very few comics at Marvel were ever done with the expectation, well, this comic will be done a year from now or two years from now, which was different from quite a few of the other publishers. Most of the

major publishers had a few titles that were solidly ensconced. And DC Comics was never worried they would Dell Comics was never

have to cancel Superman soon.

worried they would have to cancel Donald Duck soon. But Martin ran his company with the idea that, well, we may have to cancel all war comics and replace them with Westerns, or replace all our love comics and replace them with comic books about funny rabbits or something. Q. A. Q. A. Q. A. 60s. Yes. Q. Those, that group of titles, in fact, did last You're familiar with Marvel's horror titles? The ones in the 50s? Yes. Yes, I am. Amazing Fantasy and Journey into Mystery? Amazing Fantasy was in the late 50s, early

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most of these stories. A. I am not familiar with that deposition. I

have seen him claim that on some occasions. Q. Okay. On page 10 of your expert report at the

top of the page you say. (Reading:) As Stan Lee himself noted on many

occasions, "plotting" with Kirby could often be accomplished in a matter of minutes and in later years might be done via brief phone call with Jack telling Stan what the next issue would be about. Now, what is the basis for that statement? A. I listened in on one of Jack and Stan's

plotting -- on Jack's end of a phone call the first day I ever met Jack. Q. And how did that go? What do you recall about

listening in to a plotting phone call between Jack and Stan Lee? A. Three friends of mine and I visited Jack. I think it was the second week

This was in July of 1969. of the month. Q. A.

I think you testified about that previously. While we were there, I was talking to Jack in Roz came

this little den he had in his house in Irvine. in and said, "Stan Lee is on the phone."

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And Jack said, "Tell him I will call him back." And Roz said, "It's 5:30 in New York," whatever the time was. "He's got to leave for the day.

He needs to talk to you." And Jack said -- apologized to us, and he took the call in front of us. And Jack just told -- just had

on his drawing board at the time he had Fantastic Four No. 98, which he had just completed and was about to send in. And he already had -- he knew what he was doing on -- he was going to draw an issue of Thor next. And he knew what he was going to do for that. And Stan

was calling to find out when The Fantastic Four issue would be in and to discuss what Jack would do for the next issue because Stan needed to write some advertising copy that would say what the issue was about. And Jack told him what he had in mind for the story. And Stan said, Great. And I did not hear Stan's

end of the conversation. Q. I was going to ask you that. It wasn't on a

speaker phone, was it? A. Q. A. No, no, but -Didn't have speaker phones back then. But the whole conversation was probably less And I

than four minutes, so it was a brief phone call.

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heard Jack tell Stan what the next issue would be about, which is what I wrote here. Q. A. And that's the basis for the statement? That's exactly the basis of the statement.

And on top of that -Q. A. So other than the one -No, no. Let me finish my sentence, please.

On top of that, Stan said things like that all the time. Stan told me on many occasions that, especially

on the later issues, Jack was controlling the story lines. I think there's a quote elsewhere in my book here where I quote Stan as saying, "Sometimes Jack will tell me what the next issue is about." That's from an interview that

Stan gave in Castle of Frankenstein magazine about this time. So that's the basis for that. I mean, this is

a very consistent portrait here, and I see no evidence to the contrary anywhere. Q. You are aware, are you not, that at least with

regard to some of the characters there were actual scripts and outlines that were prepared? MR. TOBEROFF: A. Q. Vague.

I don't know what you mean by that. Well, we've seen before the outline for

Fantastic Four we looked at it in the last deposition.

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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

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together were plotted? A. Talking to people who worked with them,

talking to Sol Brodsky, talking to other people who worked with Stan and Jack concurrently. Q. A. Who were the other people? Talking to Stan for that matter, Stan himself.

Stan and Jack both told me stories that matched up about those meetings. You know, if Stan says, oh, yeah,

sometimes I just called Jack and said do another issue of Dr. Doom, and Jack tells me the same thing, I assume that's pretty good verification. Q. On page 10 also you wrote that, "As Kirby

worked, he would not only draw out the story and invent new characters where necessary" -- by the way, part of his assignment was as to invent new characters, where necessary, wasn't it? MR. TOBEROFF: Q. Vague.

Wasn't that part of the shtick? MR. TOBEROFF: Vague. No Yiddish, please.

A.

I understand Yiddish a little bit. As you phrased it, that's difficult to answer.

Give me a minute here. Jack was paid and credited as the artist. has never been in the industry an assumption that the artist would make up characters when he drew the comic. It

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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.

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old picture of me. MR. TOBEROFF: Very cherubic.

What number are we up to? Q. us, please. A. This is a scan or xerox of my column that 14. Can you just identify this document for

appeared in Jack Kirby Collector No. Thirty-Eight Q. And just a couple of questions on this. You

were being asked, I guess, a series of This is Jack FAQs. A. Q. is: Yes. Frequently Asked Questions. And one of them

Jack Kirby designed Spider-Man's custom. And you answer: False. Steve Ditko designed Jack did

the distinctive costume we all know and love.

claim to have presented the idea to Stan of doing a hero named Spiderman, no hyphen, who walked on walls and other Spiderman themed powers, a claim which Stan formally denies. A. Q. denies. Tell me which version do you believe with regard to Jack's supposedly bringing the idea of Superman -- Spider-Man to Stan Lee? or Stan's vociferous denial? Do you believe Jack's version I think I said vociferously denies. Oh, I'm sorry. You're right. Vociferously

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A.

As I stated earlier, I believe -- well, I

believe that Jack did bring in the idea of doing Spiderman to Marvel. Q. A. Q. A. So you believe Jack's version? I believe that part of Jack's version. That's the part I'm asking you about. Okay. I believe that Jack did come in and

present that to Marvel. Q. with Jack? A. Based on my discussions with Jack, based on Okay. And that's based on your discussions

the fact that he had this piece of artwork that said Spiderman done by Joe Simon earlier. Q. That's the one that you don't have any idea

where it is today; right? A. it's -Q. A. Q. Did you ever see the piece of work? I held it in my hands. You did. And what happened to it? Do you I don't know where it is today, no, but

have any idea? A. Jack kept it for many years, and at one point

when he was talking to Joe Simon, Joe said, "Hey, I'd like that back." And he sent it back to Joe Simon. I think I

answered this question earlier.

And the last I saw of it

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