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. 5

EXHIBIT 5

Dockets.Justia.com

In Re: Marvel Enterainment Group, Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Mark Evanier October 12, 1999
EXHIBIT NO. DESCRIPTION 9 Document titled 'Expert Rs,. Mark Evanle( 19 pages) 10 Copy ol a portion of 'The Art ot 200 the Conic Rook, an Aeolholic History' (12 pages) II Copy of R. portion ot "The Cornice
213 Journal' (41 pages) 12 Copy of a portion ol 'The Comics 259 Journal' (9 pages)

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Page 8 u p MARK EVANIER, (2] having been duly sworn, (3) was examined and testified as follows: DI EXAMINATION 161 BY MR. FLEISCHER: Page 2 171 0: Mr. Evanier, would you state your Deposition ot MARK EVAN1ER, taken by Manial Enterprises, Inc. at 2 049 CantlaY address 181 for the record, please. Pant East, Suite 2350, Los Angeles, A: 6282 Drexel Avenue, D-r-e-x-e-1, Galitornla, commencing al 11:35 arm, Tuesday, October 12, 1990, be/ore Avenue, 1101 L.A., 90048. Laura L. Gray, C.S.R. No. 4104, and tui Q: How old are you, sir? Geertlynn StrosnIder, C.S.R. No. 4128. (12) A: 47. Page APPEARANCES OF COUNSEL' (131 MR. FLEISCHER: Let me ask the reON BEHALF OF MARVEL ENTERPRISES, INC.: porter to [14) mark for identification as BATTLE FOWLER LLP BY: DAVID FLEISCHER, ESO. Evanier Exhibit 1 a photocopy (151 of a 75 Fast 55th Street deposition notice dated September 24, 1.999. ON BEHALF OF MARVIN A. WOLF MAN: THE LAW FIRM OF KLEINBEREI & LERNER, LLP 16) (Evanier Exhibit No.1 117) was nu-kV BY: MICHAEL R. DILIBERTO, ESQ. for identification.) ADRIAN R. ASKARIEH, Esu. (As Noted) Salle 1000 (81 BY MR. FLEISCHER: 2049 Century Park E0/4 [19) 0: Mr. Evanier, have you ever seen a Lot Angsles, California 90067-3112 copy of (20) what we've marked as Page 4 Exhibit 1? APPEARANCES OF COUNSEL: (Coned) ON BEHALF OF NEW LINE CINEMA: 12n A: I believe this is a copy of a LEOPOLD, PETR1C118, SMITH document ;221 that I was given, yes. BY: LOUIS P. PETRICH, ESQ. (As Noted) Suite 3110 23) Q: Directing your attention to page 8 2049 Century Park East of the (24) (10CLUTIC [It, there are a series of Los Angetes, California 90067-3274 ALSO PRESENT: numbered paragraphs Rs] requesting MARVIN A. WOLFMAN (As Noted) documents, Did you review your flies for the Page 5 INDEX Page 9 WITNESS EXAMINATION PAGE MARK EVANIER purpose of ascertaining whether you (A.M. Session) had any documents [2] responsive to the By Au. Fleischer 8 numbered paragraphs in the document (P.M. Session) By Mr. Fleischer 99 (3) request? UNANSWERED QUESTIONS In A: Could I have that one more time? PAGE LINE 74 2 is] 0: Did you review your records, EX14131TS wherever you (6) keep them, to deteEVANIER EXHIBIT NO. DESCRIPTION PAGE rmine whether you had in your (71 1 Deposition notice (10 pages) possession or control any documents I II 2 Marvel Comics Group voucher that fell into the (al categories requested page) in paragraphs 1 through 17 of the [91 Page 6 document request? EXHIBIT No, DESCRIPTION PAGE 3 Letter from Mark S. Evanier to 13 1101 A: Yes, I did. Western Publishing Company, Ina 1111Q: And did you bring them with you (1 page) 4 Document tilled 'Artwork Release 13 today? dated 6/14/79 (1 )age) (12) A: I brought the material I under5 Document tilled 'Assignment' IS (10 pages) stood was 113) covered, yes. 18 6 Februag 20, 1987 letter on Marvel (14( 0: Okay. May I see it, please. Entertainment Group letterhead Irom Joseph A. Calarnart to Mr. Jack Kirby,
(13) R. DILIBERTO:This is an original M with attachment (11 pages) we 'd (isi like to have back, but I have 7 Document tilled 'Acknowledgement Di 17 Copyright Owne(ship" (2 pages) ma de a copy foryou, which 117) is in here. It Complaint and second emended 19 nal MR. FLEISCHER:Okay. (191 Off the complaint In Simon vs. Goodman, or el. (14 pages) record a second. Newlander & Newlander (888) WeReport

IN RE: MARVEL ENTERTAINMENT GROUP, INC.;) THE ASHER CANDY COMPANY; FLEER CORP.; ) FRANK H. FLEER CORP.; HEROES WORLD) DISTRIBURON, INC.; MAUBU COMICS ) CaGe No. 97:638FIRM ENTERTAINMENT, INC.; MARVEL ) CHARACTERS, INC.; MARVEL DIRECT) MARKETING INC.; and SKYBOX) INTERNATIONAL, INC., Debtors. DEPOSITION OF MARK EVANIER Tuesday, October 12, 1999 NEWLANDER NEWLANDER 1138 WILSHIRE BOULEVARD, SUITE 200 LOS ANGELES, CALIFORNIA 82017 TELEPHONE: [phone]

'f-the-record discussion.) . FLEISCHER:Let me nnark for izzi identification as Evanier Exhibit 2 a photocopy of a (231 document that has a,' voucher number of 125733 at the (241 upper right-hand corner and the doe.: ument control number (23) WOLF 239 in the lower right-hand corner.
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in (Evanier Exhibit No.2 rai was mrk'd for identification.) Di BY MR. FLEISCHER: (4(0: Mr. E yanier, how did you come into si possession of Exhibit 2? (6) A: When I was working for Marvel in the [7] Eighties,' was sent a pile of these, of which this is aj one copy of many duplicates. 19i Q: I notice that the document has a control nu( number in the lower righthand corner.Was the control [in number placed on the document after you furnished it to (12) Mr.Wolfman's counsel? U3) A: Yes, it was. When you asked me this, I was referring to the Lis] document that was xeroxed, not the document that you (161 handed me. 117] Q: Right. You were referring to the (is) original. 091 A: Correct. 120) Q: And are you able to tell us when for the 120 first time you received a document in the form of (22) Exhibit 2 from Marvel? (23) MR. DILIBERTO:Objection. Vague and 124] ambiguous. Page 11 1] BY MR. FLEISCHER: (2) 0: Do you understand the question? (3] A: What (1 ^ 1 do now? 141Q: You can answer. is) A: All right. Q: Throughout the deposition, you will hear (71 objections. (A] A: All right. Ask me again, please. 19i MR. FLEISCHER: Would you read it back, Ito) please. 1111 (The record was read as follows: (12) "Q. And arc you able to tell us (13) when for the first dine you received a [141 document in the form of Exhibit 2 from psi Marvel?") 1161 BY THE WITNESS: [171A: I received it at some point in the early [IS) to mid Eighties. (191 BY MR. FLEISCHER: (20( 0: Do you remember in connection with what (211 work, if any, you received the first document of this ( 22 ) type? 123) A: No. (3) Page 1 - Pagel].

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MARVEL0016627

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Re: Marvel Enterainment Group, Inc.
cases of artists retaining creative control over Ill their work. There were more cases of people making 112) deals where they held the copyrights to their c (13) haracters. (14) here were more cases where peoT ple were ( 1 3) working in even a wider variety of methods for 116) individual companies. That is to say that there was [17) less reliance on any given company on one way of doing is comics I think the business matured in that they were 1151) willing to tolerate even more creative variance. People 120) got to write about more adult-subject material [21) sometimes, they got to be more experimental in the (22) artwork, they began experimenting with computer 1231 lettering and computer coloring that had not existed (Ai before '78. (25) Its a very different -The Industry Page 182 )I) every year or so is different from, you know, the years (2) before. [31 (IvIr.Askarieh left the room.) [4] BY MR, FLEISCHER: Q: Specifically with respect to the ownership 161 of copyright, were there any changes in the industry of in which you were aware that occurred after January 1 of is 1978? 19) A: Some of the companies became more willing (10) to make deals in which the artist or writer or some (n) combination thereof held the copyright to material than 02) they had been before. 113) 0: Focusing on the mainstream publishers that [14) you identified earlier, what was the position of DC on 1151 the ownership of copyright prior to 1978? us] A: I don't know. 117) What was the position of Marvel? Q: 118) I don't know that there ever was a A: clearly (19) stated position. 120) Q: What was the position of Western? 1211 A: I don't know what their position was. 1221 0: What was the position of Archie? 123) A: I don't know what their position was. (24) 0: What was the position of Harvey? 125) A: I don't know what their position was.
more Page 183 [1] Q : What was the position of Charlton? [6] 0:

Mark Evanier October 12, 1999
And how did you come to that 171 understanding? 111) A: Looking at Print Mint comics and seeing 191 the copyright notices. 110) 0: And in your view, Print Mint was a i11) mainstream p ublisher prior to 197$? )12) A: Well, by my definition, it would be. They 1131 certainly sold an awful lot of comics. I'm basing 114) "mainstream'. on sales figures. (1s) (Mr. Askarieh returned to the room.)

[ 1 .4] pro fitsharing plan - I take that back. It would be a in) royalty provision, which was similar to the 116] profit-sharing plan that Western Publishing had in the [171 Sixties and into the Seventies, but DC had not similarly Lis) had that across-theboard plan for anyone who created (19) new property for them or who was doing a comic that sold 1201 over a certain level. (21) 0: Any other changes between those two (221 periods that you are aware of? )23) A: There were many changes, as there continue IN to be changes in the business constantly as different )251 deals are made and as different contracts are made. I'm
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(16) Y MR. FLEISCHER: B
(17) : )3y order of magnitude, what 0 would you say 1151 that Print Mint's total comic book sales in 1977 were as 1191 compared with those of either DC or Marvel? (20) A: I don't know. The sales figures in the 1211 comic book industry at that time were generally 122) considered to fall into two categories: secrets and (231 lies. (24) Q: I thought you numbered Print Mint among [251 the mainstream publishers because of your understanding
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sure - If you could ask me a more specific 121 question, I'll try to give you a more specific answer. 13) Q: I'm not referring to specific transactions [41 between a specific writer and a specific company. I'm is) trying to ascertain whether it is your underthere were material m charges in the way the rights to comic book mate rials (a) were handled by comic book publishers before 1978 and Di after 1978. pia A: Okay. Yes. I understand now. Thank you. in) In the latter period - not necessarily [12) immediately after 1978, but in the period that you're (131 describing, there was much more reliance on written (14) contracts, deal memos in advance of doing the work, (15) allowing lawyers to consult on comic book company [16) contracts,agents.There actually were agents that- (1711 never heard prior to '78 of anyone having an agent 1181 represent them in a negotiation with a comic book (19) company, but that happened later on. (20] There were new contracts and new language 121) we had never seen before, some of which I believe was [22) retroactively trying to acquire tights materials )231 created prior to 1978. [2. 1) 0: Anything else? r251 A: They started printing on different paper
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(11 not

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a lot during the Eighties.Cornic books were more (2) distributed by a method called direct distribution, )3) which sold the comics on a nonreturnable basis to comic (4) book shops as opposed to selling them through what were [5( called ID distributors which put them on newsstands on a 16) returnable basis. (7) There was more emphasis on credits, on )8] artists and writers having their names prominently (9) displayed on their works in the Eighties. There were [101

)11 stocks

of their sales. (2) A: Yes. (31 Q: So what was your understanding of their [4] sales? (51 A: My understanding of their sales was that 161 they sold an awful lot of comic books that were around (7) on an awful lot of racks. (sj 0: What do you mean by "awful lot of comic 191 books"? ma A: Th ey published a substantial number of nu comics. I can't quote you accurate sales figures here 1121 because the sales figures in the business have long been [13) kept very secretive or, when they were published, (14] rumored to have been completely inaccurate,But we Hs] heard stories of individual Print Mint titles selling [16) 200, 300,000 copies. 1171 0: Which titles were those? [18) A: I can't give you the names offhand. I [19) believe they published Zap Comix for a while. I believe [201 they published a couple of ghost, monstertype comics. 1211 1 don't really know, [22) Q: What was the name of the comic that you ) 23) saw the copyright notice on that led you to believe that (241 the practice of Print Mint was to leave the copyright rzsi with the writer?
Ill Page 185

)2) A: I don't know what their position
was. (3] Q: What was the position of Print Mint? ol A: Print Mint, generally I believe the 151 artists usually held the copyrights on their work.

(i) A: I can't cite a specific one. I just (21 always saw copyright notices in Print Mint comics. 131 Q: And what did the copyright notices in (4] Print Mint comics say that you recall? (33)

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