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

Filing 82

DECLARATION of Randi W. Singer (Supplemental) in Opposition re: 73 MOTION for Summary Judgment.. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel Worldwide, Inc.. (Attachments: # 1 Exhibit 58, # 2 Exhibit 59, # 3 Exhibit 60, # 4 Exhibit 61, # 5 Exhibit 62, # 6 Exhibit 63)(Quinn, James)

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

Doc. 82 Att. 6

EXHIBIT 63

Dockets.Justia.com

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JOHN MORROW UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC.,

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and MLV RIGHTS, LLC, Plaintiffs, v. LISA R. KIRBY, BARBARA J. KIRBY, NEAL L. KIRBY and Case No. 10-141-CMKF

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SUSAN N. KIRBY, Defendants. ------------------------------x

Video Deposition of JOHN MORROW (Taken by Plaintiffs) Raleigh, North Carolina January 10, 2011

Reported by:

Marisa Munoz-Vourakis RMR, CRR and Notary Public

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TSG JOB NO. 35702
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JOHN MORROW A.

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Based on stories from various creators who

were involved there. Q. Are you aware of any instance in which Jack

Kirby complained to anyone at Marvel about not being paid for pages he had prepared and submitted? A. Well, what immediately springs to mind is

those three Hulk pages from whatever, 1962, I guess, that ended up in the trash can at Marvel. Apparently, as I understand the story, when Kirby left the offices, he was very angry and like either tore them up or just threw them in the trash and stormed out. So, I guess, you could consider that complaining that he wasn't going to get paid for those pages. Q. Apart from that instance, are you aware of

any complaint by Mr. Kirby that he wasn't paid for work he had submitted? A. another one. In issue 13 of the Jack Kirby Collector, we published an article about a -- it was actually one of the final stories that Kirby created at Marvel before he left to go to work for DC.
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Let me think for a moment.

Yes, I do know

It was called The
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JOHN MORROW Monster, and I think it was an eight or ten-page mystery story. Mr. Kirby drew the entire story in They rejected it.

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pencil, submitted it to Marvel.

He

had to go back and completely redraw it.

He chopped up

the original pages and rearranged them, in some instances had to draw new pages, had to draw a lot of new art and was, by all accounts I've written very, very disappointed, because he felt that the original story was really superior to what he ended up having to turn in and get accepted. Q. A. Q. And --

Sorry, I didn't mean to interrupt you. Go ahead. What accounts are you referring to with

regard to this incident? A. Accounts from Marie Severin, who sent us

photocopies of the original versions of the story as Kirby submitted it before he had to make all the changes. I believe I would have to reread the article

to see who else we had quoted in that article, but I know Marie told us that yes, Jack was very upset about that. Q. A. story.
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Upset about? The rejection and having to redo that

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JOHN MORROW Q.

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Do you know whether or not he was paid for

both the original version and the redone version? A. My opinion is that no, he was not, because They didn't keep

he had to rework the physical pages.

the pages and say go back and redraw it or redo this. He actually had to butcher his original art to do it. Q. for both? A. If they were paying for pages, they would What about that implies that he wasn't paid

have paid for the original pages and had him just go back and redraw the story generally. Q. So do you know whether or not he was paid

for the original pages? A. I do not know conclusively, but it stands

consistent with other instances of artists, including Mr. Kirby not getting paid, and it stands to reason that he did not get paid twice for that and only got paid for the published version that was submitted. Q. You say it stands to reason, it's your

conclusion -A. Q. It's my opinion, yes. Are you aware of any other instances in

which you believe Mr. Kirby was not paid for work he submitted to Marvel?
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JOHN MORROW A. immediately. Those are the ones that come to mind There may be others, but those are the

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ones that immediately come to mind. Q. A. And there may not be others, correct? It's possible there's not others. If I had

time to think about it, I could possibly come up with some more. Q. Returning to the time when Jack Kirby and

Joe Simon were employed by Marvel in the early '40s working on Captain America, is it your understanding that Simon and Kirby's arrangement with Marvel, as employees, left them free to submit work to other publishers at that time? A. As far as I am aware, there wasn't like an

actual statement, you know, you cannot freelance for other companies. There could have been, but I'm not

aware of a strict rule, a regulation thereby Martin Goodman telling them that they couldn't. Q. You were aware of the story that

Mr. Goodman fired them when he found out they were submitting work to DC, correct? A. Q. A. Yes, I've heard that story. Do you not credit that story? Yes, I credit that story.
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I believe I

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JOHN MORROW BY MR. FLEISCHER: Q. Mr. Morrow, I've placed before you a copy

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of what's labeled Defendants' Responses and Objections to Plaintiffs' First Set of Interrogatories. (The document referred to was marked Plaintiff's Exhibit Number 13 for identification.) Q. A. Q. Have you ever seen this document before? I don't believe so, no. Let me direct your attention to page six of With respect to the page from -- are you

the document.

aware of any page from Avengers number three for which Jack Kirby submitted -- withdrawn. Are you aware of whether a page from Avengers number three was submitted by Mr. Kirby to Marvel and rejected? A. Q. that page? A. I actually don't know anything about it. Yes, I'm aware of that page. What are you aware about the rejection of

I've just seen it in a publication. Q. Do you know whether that was a page that

was actually submitted to Marvel? A. Not conclusively, no, but I have no reason
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JOHN MORROW to think it wasn't. Q. Well, is it possible that it was a page

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that was prepared and self-rejected, if you will, by Mr. Kirby and never submitted? A. Certainly possible, but, again, I can't say

conclusively either way. Q. Same question with respect to 14 pages to Are you familiar with

the Black Rider Rides Again. those pages? A. Q. A. Q.

Are these unused pages, unpublished pages? Yes. No, I'm not aware of those. With respect to Captain America, items

under Section C here, the cover of Captain America number 105 and the character design for Captain America Comic Book, which is indicated as dated 1965, do you have any information with regard to the submission of those pages by Mr. Kirby? A. I'm not sure. I would really need to see

the Captain America cover to know which one you're talking about. And then as far as the one, this other

one, the character design for Captain America Comic Book recycled as Captain Glory, if that's the piece I'm thinking of, which we ran on the cover of the Kirby
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JOHN MORROW

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Collector, I've always known that to be called Captain Glory. So I'm not aware -- I'm not saying it wasn't I'm just not aware of that

meant for Captain America. information. Q.

Do you know whether Mr. Kirby was paid for

that or not paid for that? A. Q. A. For Captain Glory? Yes, for the page that's referenced here? You know, I have no idea. I always just I wasn't

assumed it was a piece he did on his own.

aware that he submitted that to Marvel, but, you know, you have here that it was a character designed for Captain America Comic Book. Q. character? A. Captain Glory was a personal character I'm not aware of that.

Was Captain Glory a character, Marvel

Kirby created that was eventually used at Topps Comics in the 1990s. Like I said, he may have had his genesis as being for Captain America, but I have not heard that story. Q. to Marvel? A. I have no idea.
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Do you know whether it was ever submitted

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JOHN MORROW objected to that, because he felt like he was doing three-fourths of the finished artist's work for them.

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At that point, all you have to do is go in and add the details, and he felt he should be getting a much higher percentage of page rate for those. So he asked him not to be made to do layouts any longer. Q. you know? A. As far as I know, Stan Lee stopped asking Was that request accommodated, as far as

Jack to do layouts for other people. Q. here. Do you have any information with regard to the -- any of the items listed under the Fantastic Four heading, which begin on page six and go over to page seven? A. These are all -- let's see. I'm not sure Those Let's go to the Fantastic Four section

what the Fantastic Four 102 and 103 covers are.

spring to mind, but the earlier ones number 20, 64 and 71, those I do recall. And those all -- I think we

were the first to publish -- well, not for 64, but we were the first to publish number 20 in the Jack Kirby Collector. That came from a private collection.
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JOHN MORROW I believe 71 came from a private

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collection, which lead me to believe that if Marvel had purchased those pages, they would not have ended up in the private collection or not the private collections they were in. So they would have gotten them as a gift from Jack Kirby, because he got them back and they weren't paid for, or Jack Kirby sold them at a convention, because he got them back and they weren't paid for. Q. Do you know whether they were ever

submitted to Marvel? A. Oh, yes, I have no doubt those are Those are finished covers, and

submitted to Marvel.

then there's another version very similar but different in print. So, yes, there's absolutely, I believe, they

were submitted to Marvel. Q. A. Do you know whether they were or not? Do I know? Well, I don't have the

originals to look and see if like there's a Marvel stamp on the back. sure. That would be the way to know for

But yes, I have no reason to think they weren't.

They were finished covers, and the finished -- the final printed cover was a revised version of this
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JOHN MORROW cover. Q. And do you have any information as to

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whether or not Mr. Kirby was paid for these covers? A. As I was just saying, because they were in

private collections, that leads me to form the opinion that they rejected them, gave them back to him and he sold them to private collectors or gave them to private collectors. Q. Did any of the work that Jack Kirby did

over the years for Marvel disappear from Marvel's warehouse from time to time? A. Q. Yes. And is it conceivable that these covers are

among pages that were looted from the warehouse? A. conceivable. No, because -- no, I don't think that's The work that's missing from Marvel

warehouse over the years is finished, published work, inked work. These three covers we're talking about are

all still in pencil form, so they never got accepted and inked and lettered completely. Q. Do you have any information with regard to

any of the items under section E on page seven? A. The third item number 17, number 23, if

those are the ones I'm recalling, there may have been
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JOHN MORROW Q. G is Ironman layout of page Tales of

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Suspense number 70? A. Q. That one is not coming to mind. The five pages to Amazing Fantasy number

15, that's the famous pages that Jack Kirby supposedly did and that Stan didn't like and reassigned the book to Ditko? A. Q. Right. And do you know whether or not Jack was

paid for those pages? A. We assume not, because they were rejected I

and they have never been in print, as far as I know. don't know anyone who has ever seen them. heard of anyone who has seen them. I never

Obviously, Stan Lee

has seen them, and I believe Steve Ditko saw them, because they were handed to Steve Ditko to see what they weren't going to do with the news strip. Q. pages? A. I don't believe he was, because they were Do you know if Jack was paid for those

rejected, and the standard at the time was not to pay for rejected pages. Q. Weren't they in Marvel's possession in

order for them to get to Ditko?
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JOHN MORROW A. They were. They would have had to have

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been, of course. Q. And can we infer anything from the fact

that Marvel had the pages to give to Ditko about payment or nonpayment? A. You can hypothesize, but that's not

anything conclusive, certainly. Q. It's not conclusive, but it's a piece of

evidence that suggests that he was in fact paid for it, yes or no? A. Q. Not necessarily, no. All things being equal, is it more likely

if Marvel had the pages in its possession, that they were paid for than not? A. Based on historic record, I think it's more

likely if they were rejected pages, they were not paid. That's more consistent with history. Q. But in any event, you have no direct

personal knowledge as to whether or not Jack was paid for that? A. would. Do not. Probably, I mean, I don't know who

Stan Lee wouldn't, because he said he didn't

deal with the bookkeeping and the accounting and the payrolls and stuff. So I don't know how you could
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JOHN MORROW conclusively say that. Q.

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If Stan Lee testified at his deposition in

this case that he did pay Jack for those pages, would that change your assessment of the situation? A. No, it wouldn't, because Stan has

repeatedly said over the years that he wasn't involved in the accounting, the bookkeeping, going to bat for people to get them raises. So no, I don't know that Stan would know short of what company policy was. If company policy

was yes, we always pay for rejected pages, then, yes, Stan knew that was company policy, then I would expect that. But that doesn't sound like that was the case,

because so many people were not paid for their rejected pages. Q. your -A. Well, when John Romita tells me personally Again, that's all based on hearsay on

he wasn't paid for a job, that's not hearsay, that's first person, isn't it? Q. A. Q. told you. No, unless you were there, it's hearsay. Oh, okay. In other words, it's something John Romita It's not something that anyone was present
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JOHN MORROW at the time the pages were submitted and rejected and not paid for you witnessed. drawing. A. sir. Q. The next one is two pages from Strange Okay. Then that would be hearsay, yes,

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That's the distinction I'm

Tales number 151? MR. TOBEROFF: I should point out

there are hearsay exceptions to admissibility. We are getting into legal -I'm not talking about

MR. FLEISCHER: admissibility. hearsay is. A.

I'm just talking about what

Two pages from Strange Tales number 151. So I'm sorry, I

Those are not ringing a bell with me. can't really comment on those. Q.

Do you have any information about any of

the pages listed under J, the Thor? A. Well, a lot of these are -- fall under that

same area of Kirby retained possession of these rejected covers and pages in his collection, and in some instances used these for that -- I think I mentioned the Marvel Mania portfolio that that company licensed the rights for Marvel to publish.
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JOHN MORROW So a lot of these were unpublished pages that appeared in there. So he had possession of those, Marvel didn't, which leads me to believe he was not paid for them or Marvel would have kept possession of them. Q. So there is some relevance about who

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retains the pages? A. I think so, but, again, there's, you know,

a certain amount of fluidity to the working relationship there, particularly in the early days of Marvel, when everybody is trying to please everybody else. Q. Would I be correct again in saying that you

have no firsthand knowledge as to whether or not Jack Kirby was paid for these pages? A. Q. No, I do not. The next one, the last one I'll ask you Do you have any information about

about is the X-Men. this? A.

The X-Men one is interesting, because it So that leads me to

was actually inked by Chick Stone.

believe that that one may have been paid for, because it got to the inking stage. It was actually inked and

lettered and had a logo put on it, and apparently at
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JOHN MORROW the last minute, I assume Stan decided to change it. So that would lead me to believe that the unused cover of X-Men 10 was paid for, and certainly

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they probably would have paid the inker for it as well, Chick Stone. Number 17, that's probably one of those I mentioned before that was on the back of a published page. That could have been one of the ones where Stan

was actually asking Jack to regularly do layouts for, I'm not sure. Q. actually -A. Q. No, I don't. In the early 1960s, was Jack Kirby the only So you don't know whether or not it was

significant, creative force at Marvel? A. He was the most significant, but he was not

the only significant. Q. Who were the other significant, creative

forces in terms of artists? A. Well, I would say up to about 1964 or '65, The

Jack Kirby was the significant creative influence.

company was really Kirby and people trying to do Kirby in their own styles. You had artists like Don Heck, who had been
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