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

Filing 85

DECLARATION of Marc Toberoff in Opposition re: 70 MOTION in Limine to Exclude the Expert Report and Testimony of John Morrow.. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Toberoff, Marc)

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

Doc. 85 Att. 2

EXHIBIT B
Dockets.Justia.com

CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. I don't know. Now, you indicated that Kirby had left and S. LEE

come back to Marvel at several different periods of time. To your knowledge, when Mr. Kirby was working for other comic book publishers, did he do some of his own writing? A. I think so. I didn't really follow it, but I

think when he worked for DC that he may have written some of the characters he created. Q. But I don't know for sure.

Do you know whether after he left Marvel he

had -- his characters had the same kind of success that the characters that came about during the period of time he was at Marvel? A. Well, I don't think they became as successful

as the Marvel heroes, no. Q. I want to focus specifically on the creation

of a number of the specific characters that -- we talked about several, but I want to go into them in a little bit more detail. And let's start with the Fantastic Four. actually referenced them earlier. You

Tell me to the best you

can recall, how did the idea for the Fantastic Four come about, and who they were, and what was the back story with regard to the Fantastic Four. A. Well, as I mentioned, Martin Goodman asked me

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 60 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 possible. S. LEE to create a group of heroes because he found out that National Comics had a group that was selling well. So I

went home, and I thought about it, and I -- I wanted to make these different than the average comic book heroes. I didn't want them to have a double -- a secret identity. And I wanted to make it as realistic as Instead of them living in Gotham City or

Metropolis, I felt I will have them live in New York City. And instead of the obligatory teenager Johnny Storm driving a whiz bang V8, he would drive a Chevy Corvette. I wanted everything real, and I wanted their relationship to be real. Instead of a girl who didn't

know that the hero was really a superhero, not only did she know who he was, but they were engaged to be married, and she also had a superpower. So, you know, things like that. I would try that. And I thought

So I wrote up a very brief synopsis

about that, and naturally I called Jack, because he was our best artist, and I asked him if he would do it. seemed to like the idea. He

Took the synopsis, and he drew

the story and put in his own touches, which were brilliant. And it worked out beautifully. Books sold,

and that was the start of the Marvel success, you might

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. say. Q. And tell me or tell us all your thinking in S. LEE

the creating the four different characters, Mr. Fantastic, the Invisible Woman, the Human Torch, and The Thing. MR. TOBEROFF: I'm sorry? You can answer. Tell you what? Tell us what was your thinking with regard to Assumes facts.

or the idea behind these specific four characters. A. Well, I wanted them to be a team, but I wanted So they didn't always get

them to act like real people. along well.

I wanted one of them to be -- we called him

The Thing, to be kind of a very powerful ugly guy who would be pathetic because -- they all got their superpowers by being in a spaceship that was hit by cosmic rays. limbs. And Mr. Fantastic got the ability to stretch his The girl Sue Storm had the ability to become And

invisible and surround herself with the force field.

the boy Johnny Storm, her brother, was able to burst into flame and fly. I took that from an old Marvel book, one of Timely Comics' first books called The Human Torch. I

always loved that character who had been an android, a

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. along well. robot or something. Storm that power. S. LEE But I felt I'm going to give Johnny He can fly and burst into flame.

So we had a guy who can stretch, a girl who could be invisible, a man who was an ugly monster. And

again, to go against type, I thought I'd make the ugly monster kind of a funny guy. the comedy relief. He's pathetic, but he's also

And he was always arguing and fighting

with The Human Torch, who was always trying to give him a hot foot. And he was always trying to grab him and

throttle him. They all loved each other, but they never got The more they fought amongst themselves, the And that was the way I

more the readers loved it. envisioned them.

(Lee Exhibit 7 marked for identification.) Now I'm going to mark as Lee I believe it's 7,

the next exhibit. A. Q. There's no little blue thing. I'll get you there. It's a document that's

actually a magazine entitled "Alter Ego, the Comic Book Artist Collection." And are you familiar with the Alter Ego? Oh, yes. It's a well known fanzine.

And is a man by the name of Roy Thomas --

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 87 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 me. Q. A. S. LEE And this happened on other occasions where -Yeah. There were times when I would ask Larry Mm-hmm.

to write something. Q. A.

Now let's talk -Excuse me one second. I may have asked Larry

to write it in script form and then give it to Don to draw. Q. A. Q. I'm not sure. I may have done that.

Let's talk next about Thor. Mm-hmm. And how Thor was created and what was your

idea behind Thor. A. Same thing. I was looking for something And I figured

different and bigger than anything else. what could be bigger than a god?

Well, people were pretty

much into the Roman and the Greek gods by then, and I thought the Norse gods might be good. And I liked the

sound of the name Thor and Asgaard and the Twilight of the Gods' Ragnarok and all of that. And Jack was very much into that, more so than So when I told Jack about that, he was really And we got together, and we did Thor the same

thrilled. way. Q. his deal?

And what was the idea behind Thor?

What was

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. S. LEE I wanted him to be -MR. TOBEROFF: and ambiguous. Q. A. You can answer. I wanted him to be the son of Odin, who is the And I wanted him to have Excuse me. Objection. Vague

King of the Gods, like Jupiter. an evil brother, Loki.

And just like the Fantastic Four

were always fighting Dr. Doom, and Spider-Man was usually fighting the Green Goblin, I figured Loki would be the big villain. He's Thor's half brother. He's jealous of Thor.

He has enchantment powers.

So in a way he's a good foe.

Thor has strength, but Loki is like a magician and can do all kind of things. So that seemed good to me.

And then Thor had a girlfriend from legend called Sif, S-I-F. And I would have her involved in the

stories and have jealousy. And then I wanted some comedy relief, so it wasn't -- I don't think it was until the strip had been going for a while, but I decided there were three guys. called them The Warriors 3 that I wanted to include, a very fat guy named Volstag, The Voluminous Volstag, I called him, who acts like a real hero. get them." "Come on, let's go I

But when the fights start, he's cowardly and

always holds back.

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. the Dashing. Wish. S. LEE Another guy like Errol Flynn called Fandral And a guy like Charles Bronson in Death And the three

I think I called him Hogan the Grim.

of them, Fandral the Dashing, Hogan the Grim, and Volstag the Voluminous I thought they could be Thor's friends, and they would provide comedy relief. And I'm happy to see

they're using them in the movie, I think. And it was something that we both enjoyed doing very much. that he gave them. And Jack was wonderful with the costumes I mean, nobody could have drawn

costumes like he gave them. Q. The character Thor, how did -- what idea did

you have to come up to give him his powers? A. Q. Well, he had -What was the back story? MR. TOBEROFF: Oh, yeah. Assumes facts.

He had mainly a hammer, an

enchanted hammer.

The back story was I decided to make But

him a guy here on Earth, Dr. -- I forgot his name.

whatever his name was, he was lame and he walked with a cane. And for some reason he went to Norway, and there he

-- I think -- the Stone-Men from Saturn or somewhere. Some aliens who were stone men had landed in Norway and they wanted to kill our doctor.

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 90 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 from them. S. LEE And he rushes into a cave somewhere to hide And they're coming toward him, but he sees a

hammer in the ground, and some kind of a sign that said -I don't remember the exact wording, but, Whoever is worthy would be able to lift this hammer, sort of like the King Arthur legend. lift it up. And it seems that destiny had prepared that for him over the centuries. The minute it lifts it up, he And he grabs the hammer, and he's able to

turns into The Thunder God Thor, and wielding the hammer he takes care of the Stone-Men. become Dr. Don Blake. Blake. And then he can always I believe Don

That was his name.

If he hits the hammer on the ground, it turns back He

into the cane that he always had because he was lame. walked with a cane as Don Blake, Dr. Don Blake.

So he's a surgeon, who walks with a cane, but when he hits the cane on the ground, he turns into the mighty Thor, God of Thunder. Q. And that was the idea. Do you have any

You have a lot of doctors.

lawyers in this whole process? A. Maybe next time. Next go round. We do have a

lawyer Daredevil. Q. A. Daredevil. Yeah. Tell me about Daredevil. Oh, by the way. I think

Same thing.

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Page 91 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 hero. us. I figure I will get a blind man and make him a And how you do that. So I said, what if all his What if he can hear so well Q. A. S. LEE Thor also was written by my brother. After I came up with

the outline, I think Larry wrote the first script. Now, let me see. Daredevil. Daredevil.

I want to hear about the lawyer.

Again I'm trying to think of what can I do And it occurred to me --

that hasn't been done. Q.

Well, certainly making a lawyer a hero would But, in any event, go ahead.

fall into that category. Tell me about Daredevil. A.

After this is over, I want him to write for

other senses are very acute?

that he can tell if you're lying to him because he hears your pulse rate speed up, your heart beat. And he can

smell so well he can tell if a girl has been in a room. He could smell her cologne even if it was two days ago. You know, you get your balance through your ears. So he's like an acrobat, like a circus tightrope walker. can do. good. He can do anything any trained athlete And I figured that's kind of So

And on and on.

Oh, and he has a radar sense and a sonar sense.

when he's Daredevil, nobody knows he's blind.

He is like

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