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. 3

EXHIBIT 3

Dockets.Justia.com

Page 1
1 2 3 4

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. ) _________________________________)

5

6

7

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

8

9

10 11 12 13 14 15 16 17 18 19 20 21 22

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

23

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

24 25

TSG Reporting - Worldwide

877-702-9580

Page 17
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

BY MR. QUINN: Q I will put it this way: Any of the plaintiffs

or related Marvel companies, do you have any personal knowledge -A Q Any personal knowledge? No, I do not.

Now just go through some data points. What was -- what is your date of birth?

A Q A Q

March 2nd, 1952. So that would make you about 58 years old? I would think so, yes. And am I correct that between the years 1958

and 1963 you were between six and 11 years old? A Q A Q That would follow, yes. Yes, and you lived in California? Yes. And I assume that between that period of time

you had no involvement with anyone at Marvel? A Q A Marvel. Q You understand that in connection with this Between '53 and '62 -'58 and '63. '58 and '63? No involvement with anyone at

lawsuit those years are the years that are most relevant to the works that are at dispute -A I understand that -TSG Reporting - Worldwide 877-702-9580

Page 19
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

And that would have been about a week after I got out of high school. 1969. Q Okay. And that really was when you began as a So it would have been June of

freelance writer? A Q A Q A version? Q Whatever the most complete version you can Correct. Did there come a time that you met Jack Kirby? Yes. And how did that come about? You want the long version or the short

give me without boring us to death. A Well, you better leave now. In -- at that time -- the time being July of '69 -- I was the president of a local comic book club called the Los Angeles Comic Book Club. Jack and his

wife Rosalyn attended a science fiction convention on the July 4th weekend of that year that was held at the Miramar Hotel in Santa Monica. And at that convention they met some of the officers of our club. I was not present for the

convention, but they met some officers of the club, and they invited them, they said, "Why don't you bring your Board of Directors down to our house for a visit."
TSG Reporting - Worldwide 877-702-9580

Page 20
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

So the following Tuesday I think it was, three of the other officers of the club and I drove down to Irvine, California where the Kirbys were living. None

of us could drive at that time, so one of the officer's mothers drove us down, and that was the day I met Jack and Roz. Q A Q A Q And how old were you? This was June of '69, so I was 17 years old. And -Excuse me, this was July of '69. Okay. Fair enough.

And did you subsequently go to work for Mr. Kirby as an assistant or an apprentice? A Q A Yes. And how did that come about? Well, after -- the day after I met Jack I met

the people at a company, local firm called Marvelmania International, which was a licensee of Marvel that was producing fan club material. They were selling posters And I got hired

and little plastic pillows and decals.

by them to be their in-house Marvel expert and to edit the club fan magazine. And I met Jack -- I had a lot of dealings with Jack for several months, the balance of '69, as he was -- as we were doing merchandise based on his artwork
TSG Reporting - Worldwide 877-702-9580

Page 27
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

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
TSG Reporting - Worldwide 877-702-9580

Page 28
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

"idolize." Q you? A Q years? A Q A

I certainly respected the man greatly. You had great affection for him too, didn't

Yes, I did. Now have you done work for Marvel over the

Yes, I have. Could you describe that for us. Let's see, I wrote -- well, this gets

complicated because there were a number of -- I did quite a number of projects where I wrote materials that I was paid by another firm but Marvel published them. was paid by someone else, and then Marvel published the books -Q A Q A Q A Uh-huh. -- but my paycheck came from someone else. From somebody else? Yes. Right. In that category I did -- I was the editor of I

the -- I was the writer and then subsequently the editor of a line of comics for Hanna Barbera, which Marvel published. I was hired by the Edgar Rice Burroughs

Company to write a series of Tarzan comics, and Marvel published one or two of those.
TSG Reporting - Worldwide 877-702-9580

Page 38
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

Okay.

I'm going to rephrase.

It's correct, is it not, that over the years you have earned a significant amount of money writing about Jack Kirby, haven't you? A No -Lacks foundation.

MR. TOBEROFF: BY MR. QUINN: Q

You have earned money writing about Jack

Kirby; correct? A Q A Yes. "Significant" is a relative term; right? Um, in the sense that "significant" implies a

lot of money, that would not be correct. Q You have earned, over the course of a number

of years, money writing about Jack Kirby; right? A I have earned -- I have been paid to write

about Jack, yes. Q And did you search for documents that would

show the amount of compensation you earned in connection with writing about Jack Kirby? A No, I did not. We would request that, since it is part I direct that to you, Mr. Toberoff.

MR. QUINN: of the Subpoena. Q

Did you search for documents that related or

might relate to the dispute that you described with
TSG Reporting - Worldwide 877-702-9580

Page 39
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

regard to the artwork? A Q A Q The current dispute over artwork? Yes. I did not have -- no, I did not have any. Your testimony is that you did not have any

documents relating -- that might relate to the artwork dispute in your files? A any. Q Okay. We'll come back to that. My testimony is that I knew I did not have

Fair to say -- you mentioned that you had visited the Marvel offices sometime in the '70s; is that right? A Q right? A Q That's correct. So you personally have no knowledge about the I visited several times during the '70s. You hadn't visited between 1958 and 1963;

activities going on in connection with the creation of comic books between the years 1958 and 1963 at Marvel; correct? A Q I do not agree with that statement. Other than what you have been told by somebody

else, you personally have no knowledge about what occurred between 1958 and 1963 in the creation of comic
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

books at Marvel in New York City, do you? MR. TOBEROFF: Asked and answered. He already

answered that question. BY MR. QUINN: Q A Q Answer it again. I do not agree with that statement. I'm going to ask it one more time. No, you can't ask the same question

MR. TOBEROFF: three times. BY MR. QUINN: Q

I tell you what, you're right. Tell me why you don't agree with that

statement, Mr. Evanier. A Because I believe I know an awful lot about

what happened at Marvel Comics during that period of time. Q A Q Perhaps you weren't listening to my question. All right. I'll try it one more time in that context. I

am not asking you what you believe you know. I'm asking you whether -- isn't it a fact that since you weren't there you have no personal firsthand knowledge about what happened in the creation of comic books between 1958 and 1963? it?
TSG Reporting - Worldwide 877-702-9580

That's a fact, sir, isn't

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

MR. TOBEROFF: THE WITNESS: MR. TOBEROFF: THE WITNESS:

Asked and answered. Um -You can answer one more time. I don't agree with that statement --

well, you added the word "personal" this time. If your question is did I watch them creating the comics, no, I was not there when they created the comics. BY MR. QUINN: Q A That's the question. All right. You could have asked it that way

and saved us a lot of time. Q So you didn't see any story conferences that

went on; correct? A went on. I was not present for story conferences that In -(Speaking simultaneously.) BY MR. QUINN: Q A Q A Q A And you didn't see any -Excuse me, let me -I'm sorry --- let me answer the question. -- go ahead, please. I was not present for story conferences that

went on between 1958 and 1963.
TSG Reporting - Worldwide 877-702-9580

Page 45
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

foundation. THE WITNESS: Um, as I said before, I was not Does that

present in the offices between '58 and '63. answer your question? BY MR. QUINN: Q A

As long as you say yes my question is correct. I don't understand your question. You don't have to agree with his

MR. TOBEROFF: question.

Just answer his question, and if you feel

like you can't answer the question, don't . . . THE WITNESS: I do not understand the question well

enough to answer it, to give you a yes or no answer to it. BY MR. QUINN: Q Since you weren't present as you just

testified -A Q Yes. -- you could not have observed the manner in

which Stan Lee gave plot outlines, gave scripts, gave direction to the artists, such as Jack Kirby, during that period of time 1958 to '63; true? MR. TOBEROFF: Again, the question is assuming all

sorts of facts that haven't been established, and lacks foundation. MR. QUINN: Read it back.
TSG Reporting - Worldwide 877-702-9580

Page 46
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 record was read as follows: "Q Since you weren't present as

you just testified -"A "Q Yes. -- you could not have

observed the manner in which Stan Lee gave plot outlines, gave scripts, gave direction to the artists, such as Jack Kirby, during that period of time 1958 to '63; true?") MR. TOBEROFF: THE WITNESS: Same objections. Um, I don't understand -- I don't

understand the use of the phrase "during that time." If you are asking me did I observe it during that time, no, I did not observe it during that time. BY MR. QUINN: Q A That's what I was asking you. I was not watching them do it -- between 1958

and 1963 I was not there watching them do it. Q Right. Okay. And did you ever personally see

any paychecks that Mr. Kirby received from work that he performed at Marvel that covered the period 1958 to 1963? A No, I did not.
TSG Reporting - Worldwide 877-702-9580