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

Filing 95

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MEMORANDUM OF LAW in Opposition re: 60 MOTION for Summary Judgment. 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, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE)(Toberoff, Marc) Modified on 3/28/2011 (db).

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MR. TOBEROFF: Q.

Paragraph 4-G.

So pursuant to this subparagraph, in addition

to your stock options and your million-dollar salary, you are to receive 125,000 per year to author the syndicated Spider-Man newspaper strip; is that correct? A. Q. Well, that's what this says, yeah. And do you receive money from Marvel to author

the Spider-Man newspaper strip? A. Q. I don't think I'm getting that anymore. Were you being paid 125,000 a year to author

the Spider-Man strip? A. Q. Well, I must have been if it says it here. Okay. It also says, in Paragraph 4-G, that

you had been -- you had been receiving, prior to the 1998 agreement, 125,000 a year. When did you first start receiving that amount? A. Q. I don't remember. Do you know whether it was a few years before

or one year before? A. Q. No. But you did receive the amount prior to the

1998 agreement? A. Q. Well, I must have if it says it here. Okay.
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of the work, using a rubber stamp and ink pad." A. Q. Uh-huh. Do you believe that Millie prepared the text

on these rubber stamps? A. Q. stamps? A. Q. I have no idea who did what. Do you believe that Marvel would have a That she prepared what? Did Millie prepare the text on the rubber

bookkeeper prepare the text on its rubber stamps? A. Q. A. Q. you? A. Q. I had nothing to do with it. Were you involved with -- in the period 1958 I don't know. You did not prepare -Oh, no. -- the language on Marvel's rubber stamps, did

to 1963, were you in charge of payroll at Marvel? A. I was never in charge of payroll. I was just

in charge of the artists and the writers, the letters, the inkers and the colorists. work. Somewhere there was a door, and behind that door were a lot of people at desks with adding machines. And that was the payroll or the bookkeeping
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The people who did the

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department.

And I have no idea what went on there.

I know there was a girl named Millie who worked there. forget. And there was another guy whose name I

And I would call them if a check was late or

if an artist called and said, "I didn't get my check." That's all I know about that part of it. Q. A. Q. Do you know Dick Ayers? Yes. And he worked as a freelance comic book artist

for Marvel; correct? A. Right. MR. TOBEROFF: I'd like to mark the next

exhibit as Lee Exhibit 27, comprising -- it's a two-page exhibit, comprising of copies of two checks from Marvel Comics Group to Richard B. Ayers. (Whereupon, Defendants' Exhibit Number LEE 27 was marked for identification.) BY MR. TOBEROFF: Q. Mr. Lee, these checks, front and back, to

Mr. -- to Dick Ayers, aka Richard B. Ayers, were produced by Marvel in this action. I'd like to read to you the legend that appears on the first page, on the back of the first check. A. Uh-huh.
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over here. of order.

I get the one thing where they're all out

MR. TOBEROFF: you do the payroll. THE WITNESS: so easy. Thank you. MR. QUINN: THE WITNESS: BY MR. TOBEROFF: Q.

Now, I know why they didn't let

I wish you hadn't made it look

You're very welcome. Okay.

I'm just drawing your attention to something You can read along with me.

that I'm going to read.

On Page 214, the first column, about eight lines down, the interviewer asks, "A little bit of history here." And you reply, "Oh, I'm not good at that. have no memory." Do you see that? A. Q. Yes. That's it. MR. TOBEROFF: The next exhibit I'd like to I

mark as Lee 29 -- for now -- I'd like to mark as Lee Exhibit 29, it is entitled "Excerpts from the 1975 Stan Lee Panel." And it says, "Held at the 1975

San Diego Comic-Con." This is a document Bates Number 1298 to 1302
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that we produced -- that was produced by Marvel in this action. Excuse me. It was produced by the defendants

in this action, not by Marvel. (Whereupon, Defendants' Exhibit Number LEE 29 was marked for identification.) BY MR. TOBEROFF: Q. So I'm just going to draw your attention to You see

the first page, the first column near the top. it says, "Stan Lee," and then there are audience questions, and then you respond. So the second

audience question, it says, "How did you get started?" Do you see that? A. Q. Yes. And then you respond, and in the third

paragraph of your response, it says, "Then I heard there was a job open at Marvel Comics, which was then called Timely Comics, for a reason that nobody has figured out. Jack Kirby and Joe Simon were practically

the whole staff, and they -- I better watch what I say because I never know. Jack may be here. I'm not noted

for always telling the truth, but at least people don't usually catch me at it. I'll be careful." MR. QUINN: ///
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But Jack may remember this, so

And then there was laughter.

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BY MR. TOBEROFF: Q. Do you have any reason to believe you were

misquoted in this article? A. I was kidding around with the audience. This

was not a serious lecture. Q. I'm just asking whether you said that. MR. QUINN: THE WITNESS: BY MR. TOBEROFF: Q. A. Did you say this? Yes. MR. QUINN: around. you. BY MR. TOBEROFF: Q. Mr. Lee, by asking that question, I wasn't I think it That will show, you don't kid You heard his testimony. You heard my answer.

35 years later, it will come back to haunt

implying that you weren't kidding around.

stands for -- the interview stands -- Marvel's counsel said it speaks for itself. MR. TOBEROFF: The next exhibit is Exhibit 30.

(Whereupon, Defendants' Exhibit Number LEE 30 was marked for identification.) BY MR. TOBEROFF: Q. And this is an interview of you entitled

"Stan Lee TV Archives, 2004," which was produced by Roy
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Thomas in this case.

Bates Number 365 to 82.

This is an interview that you appeared to have given with the American Archive of American Television on March 22, 2004. Did you give this interview with the American Archive of American Television? A. Q. A. Q. Yes. Please turn to Page 3, second column. I'm sorry. Did you say Page 3? All the way down in

Page 3, second column.

your response on the second column -- excuse me, all the way down the second column of that page, you see the questioner is Lisa Tarata, and she asked the following question: "Can you talk a little bit

about -- and you mentioned that what the comic book industry was like there. reputation at the time. It didn't have a great But can you just talk a little

bit of what the industry looked like in the early '40s." And you respond, "Well, in the early '40s -and, again, I'm not really good at this, I have the word's worst memory for detail," and then you continue. Do you see that? A. Yes. MR. TOBEROFF: I'd just like to show you one
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villain. Thor.

He's Thor's half brother.

He's jealous of

He has enchanting powers." I just wanted you to be aware of that

deposition testimony. And I want to go back to Exhibit 12, which is "Origins of Marvel Comics," by Stan Lee. A. Q. It's the big thick one. Got it.

On Page 185 of that exhibit -- note that On Page 185 -Right? It's this

Page 184 is blank. A. Okay.

185 is the script.

(indicating). Q. A. Right. No. That's 186. No. It's 185.

MR. QUINN: THE WITNESS:

185 is the first page. Actually, I'm going to

MR. TOBEROFF: short-cut this.

We don't have to go over this. Okay. You can put it aside.

MR. QUINN:

MR. TOBEROFF: MR. QUINN: BY MR. TOBEROFF: Q.

He's going to move on.

I'd like to go back to "Son of Origins of

Marvel Comics." Chapter 1 of this book is entitled "Make Way for the Mutants."
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A. Q. A. Q. A. Q. A.

The Memory Mutants. And that refers to the X-Men characters? Uh-huh. Is that "yes"? Pardon me? That refers to the X-Men characters? Oh right. MR. QUINN: Yes. What page are we on?

BY MR. TOBEROFF: Q. Turn to Page 14, second full paragraph. It

states, "Why not create a group of characters who are born with their unique abilities. team of mutants." And then further down the page, at the fifth full paragraph, you write, "No sooner did I discuss the basis premise with Jack, then we were off and running. We decided to create two groups of mutants, one evil and the other good. One would be eternally striving to We would create a

subjugate mankind and the other would be ceaselessly battling to protect the human race." Did you write that? A. Q. Uh-huh. Yes. This is

I'd like to turn to a new exhibit.

your fault for being so prolific. MR. TOBEROFF: I'd like to mark as Exhibit 38
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excerpts from "Five Fabulous Decades of the World's Greatest Comics." And then it states, "Marvel, by

Les Daniels, with an introduction by Stan Lee." This book was published in 1991 by Marvel Comics Group. (Whereupon, Defendants' Exhibit Number LEE 38 was marked for identification.) BY MR. TOBEROFF: Q. A. it. Q. A. Who is Les Daniels? I guess he was a guy we hired to write this. Are you familiar with this Marvel book? I'm not really familiar with it. I've gotten

I don't really remember him. Q. On Page 111 -- turn to Page 111, second column

in 111, the last paragraph on the page. A. Q. Must be here. Okay.

On that page, it's written, "Once again

Jack Kirby joined Lee as co-creator of the comic book. "'Jack was the best guy to work with, you can imagine,' says Lee. could make it better. 'Any idea I would give him, he When Jack brought in the first

story, it opened with all the X-Men fighting in the place they called The Danger Room, where they were trained. That was Jack's idea.
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brilliant opening because it started with action and showed all their abilities immediately.'" Do you have any reason to believe you did not say that? A. Q. Absolutely true. Now, switching gears to Spider-Man. In your deposition, you stated that you originally asked Jack Kirby to draw Spider-Man. is on Page 75 lines 6 through 9. Do you recall that? A. Q. used? A. Q. Was not what? That Jack -- the pages Jack Kirby did for Oh, yes. And that you also stated that his work was not This

Spider-Man were not used in the original issue. A. Q. That's right. During this period, you were the editor of

Marvel; is that right? A. Q. Oh, yes. And who handled -- at that time, do you recall

who handled -- strike that. MR. TOBEROFF: I'd like to mark the next

exhibit as Exhibit 39, exhibit -MR. LIEBERMAN: Did I miss something?
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Was

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there a question? MR. TOBEROFF: No. There's no question. I'll

ask the next question when I'm ready. Exhibit 39 is an excerpt from the magazine Comic Scene, which was also retrieved from the Stan Lee Archives of the American Heritage Center of the University of Wyoming. It is an interview of Stan Lee

conducted by Clifford Meth, M-E-T-H, and Daniel -- Dick Holtz, H-O-L-T-Z. (Whereupon, Defendants' Exhibit Number LEE 39 was marked for identification.) BY MR. TOBEROFF: Q. Now, these documents that we've retrieved from

the Stan Lee archives of the University of Wyoming, are these things that you once had and you donated to the university? A. Q. A. Q. Yes. Do you recall giving this interview? Pardon me? Do you recall giving this interview? This

particular interview. A. Peter Paul was doing the interview? I didn't

hear what you said. Q. No, no. Let me short-circuit.

Do you have any reason to believe you didn't
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give this interview? A. Well, let me look at it. No, probably -- if you got it from the archive, I must have done it. interview I have given. Yeah, it looks like an

I've given a million

interviews, but this looks like one. Q. Page 36. interview. A. Q. Got it. Halfway down, on the right-hand column of the "To this day, I don't know It might have been Now, if you go to page -- please go to I'd like to read something from this

page, it reads as follows:

who made up the Spider-Man costume.

Kirby who did those first few pages and Ditko might have copied Kirby's costume or Ditko might have just made up the costume and disregarded what Kirby did. can't remember." Now, when you refer here to Kirby's costume, you're speaking of Spider-Man's costume in the first Spider-Man pages that Jack Kirby did before you brought in Steve Ditko? A. Yes. MR. QUINN: Object to the form. I

You can answer. THE WITNESS: Yes, those were the pages I had
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rejected. MR. TOBEROFF: I'd like to mark as Exhibit 40

an excerpt from David Anthony Kraft's Comic Interview, Number 5, dated July 1983. (Whereupon, Defendants' Exhibit Number LEE 40 was marked for identification.) THE WITNESS: be around Page 46. MR. QUINN: THE WITNESS: page said. BY MR. TOBEROFF: Q. A. Q. A. Q. On Page 46, is that a picture of you -As soon as I get to Page 46. -- on the phone? Oh, it's in the beginning. Okay. Yes. Don't guess. Let him do it. Well, I'm guessing it's got to

Well, that's what the contents

Do you have any reason to believe that

you didn't give this interview? A. Q. No. On page 49 -- I'd like you to turn to Page 49,

in the middle of the right-hand column. A. Q. Yes. It says the following: "I don't know whether

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A. see it.

The right-hand column?

Oh, there it is.

I

MR. TOBEROFF: Q.

Bear with me.

You're being questioned about Spider-Man and

Spider-Man's costume in the interview. A. Q. Right. And in the -- on the right-hand column, "I

approximately in the middle, you say the following:

don't know whether this was the case or not, but maybe when Ditko did the story, he used the costume that Jack created. I don't remember." Did -- do you believe you made this statement in the interview? A. Q. Yes. I'd like to go back to exhibit -- what was

marked in your prior deposition as Exhibit 12, "Origins of Marvel Comics." A. Q. A. Q. Back to that book? Yes, please. Got it. Now, if you turn to Page 139 of the book,

there appears to be a reprint of the first Spider-Man story as it originally appeared. Do you see that? A. Yes.
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Q. story? A. Q.

Do you believe that's the first Spider-Man

Yes. Now -MR. QUINN: THE WITNESS: MR. QUINN: THE WITNESS: MR. QUINN: Sorry. What page are we on?

Page 139, I believe. Okay. Yes. Thank you. All right.

BY MR. TOBEROFF: Q. And this story is "Amazing Fantasy,"

Number 15. That's when Spider-Man first appeared? A. Q. That's right. If you look at the cover of "Amazing Fantasy,"

Number 15, there's a blurb that says, "Also in this issue, an important message to you from the editor about the new amazing," exclamation point, end quote. Do you see that? A. Q. Yes. Now, turn to the last page of the Spider-Man

story on Page 150, please. A. Q. 150. Okay.

Do you see where it says, "Be sure to see the

next issue of Amazing Fantasy for the further amazing
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exploits of America's most different new teenage idol, Spider-Man." Do you see that? A. Q. Yes. So the next issue would have been Amazing

Fantasy, Number 16? A. Q. Right. Now, going back to your May 13 deposition -The character of

I'm now switching to a new character. Galactus? A. Q. Galactus. Okay.

In your May 13 deposition, on Page 71, at "We had so

lines 4 through 11, you say the following:

many villains who were so powerful, I was looking for somebody who would be more powerful than any. figured somebody would be" -- excuse me. So I

"So I figured

somebody who was a demigod, who rides around in space and destroys planets. I told Jack Kirby about it and And

told him how I wanted the story to go generally. Jack went home and drew it." A. Q. A. Q. Right.

Do you recall saying that in your deposition? Yes. Then later in the deposition, on Page 128,

lines 14 through 25, you confirmed as true a statement
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Martin was in a pretty gloomy mood that day, and he said to me, 'You know, what they don't realize, they don't realize the risk that I'm taking. books don't sell, it costs. Because if the

I lose a lot of money, and And we have

I have no guarantee the books will sell.

periods for months after month after month where I'm losing money, where the books don't sell. cut their rate. I don't fire them. But I don't

I try to keep

going as much as possible.'

And he gave me this whole

thing from the publisher's point of view." This is you speaking. Do you remember saying that at your deposition? A. Q. Yes. Now, I do, yes.

I'd like to read you an excerpt from the book The Amazing Life of Stan Lee," by Stan Lee M-A-I-R.

"Excelsior:

and George Mair. A. Q.

Mair, I think. This book was published in 2002. MR. TOBEROFF: And please mark it as

Exhibit 48. (Whereupon, Defendants' Exhibit Number LEE 48 was marked for identification.) THE WITNESS: We're only up to 48? It feels

like we've done a thousand.
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BY MR. TOBEROFF: Q. A. Q. Did you write this book, Mr. Lee? I wrote the part that wasn't in italics. And the part in italics was written by

George Mair? A. Q. Yeah. Okay. George Mair wrote the italics part. So if you could turn to Page 80, I'd

just like to read from the last full paragraph on Page 80. A. Q. Okay. I'll read. "So when a slump would hit, I kept paying our best people to continue doing strips that we really didn't need at the time, knowing we'd eventually have use for them. I simply stored the strips in a large To me it was an

office closet after they were done.

investment both in people and in inventory. "When Martin one day learned of all the material I had been accumulating for later use, he took an extremely dim view of what I had done. dim view is putting it mildly. In fact, a

For starters, he told

me that he was running a business and not a charitable institution. Then as he kept warming to the subject, a Martin

light suddenly went on inside his head.

realized that he had an expensive bullpen being paid
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every week and a closet full of complete unpublished strips. "He instantly decided he didn't need both. suppose from a business point of view, it was a rational decision. But I hated it. The bullpen was I

immediately disbanded.

Most of the salaried creative

people were let go, while I was ordered to use up all the inventory material. "Martin decided that we would only work with artists and writers on a freelance basis from that day forward, not assigning any strips unless they were definitely scheduled to be used." Do you recall writing that? A. Q. A. Q. Oh, yes. Is that accurate? Yes. And previously you mentioned that in some

publicity you would refer to the Marvel bullpen when there wasn't a bullpen. The time when there was not a bullpen refers to the time shortly after all of these Marvel employees were let go; is that right? A. Q. A. Say that again. Previously, you said that in publicity -Yes.
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Q. A. Q.

I'm not just speaking in general. Right. In the passage I just read, you speak about

how, because you had stockpiled an inventory of material, Mr. Goodman felt, Why do we have to keep people on salary, and they were fired -- and I'm paraphrasing -- and he said, From now on we're going to work freelance; correct? A. Well, we had very few artists on salary. I

think what it might have meant was he had given some artists guarantees. each month. They would get so much work to do

Whether we could -- we always used it, but

whether we could use it or not. And I think what he meant when he said to me we're just going to go freelance, we would only buy what we needed, and it wouldn't -- I would never have an opportunity to build up an inventory of unused stuff again. Q. And -- but you did have certain artists and

writers who were on staff at Marvel before you converted to a complete freelance model; correct? A. Maybe John Romita was on staff, and

Marie Severin was on -- I think as a colorist then, or maybe an artist. artists go.
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But that's about all as far as

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Q. A. Q. A.

And then they were let go -Yes. -- after this edict? Yeah. Well, they were no longer -- well, see, Romita might have been kept

again, I don't remember.

on as art director because we needed somebody to do covers and to do whatever had to be done. But we didn't any longer have guarantees to anybody. And I wasn't just buying things that maybe

we'd use and maybe we didn't use. He was just -- he just got very strict with me because I -- I had built up that inventory, which there were strips I liked and I thought we would use them, not realizing the business would be bad and we couldn't publish as many books as we wanted to. Q. I'd like to go to another, Page 94, which is

part of this Exhibit 48. A. Q. Got it. You write, "Naturally, as a result of

Wertham's War, the market for comic books disintegrated, with artists and writers being fired by the baleful. I was amazed that Martin kept me on, but

then he had to have somebody to fire all those other people for him. "Again, it was indescribably difficult for me.
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EXAMINATION BY MR. QUINN: Q. You recall that Mr. Toberoff asked you some

questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you -- the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them? A. Q. instead? A. Q. pages? A. Q. Sure. And did you have a practice at that time with Right. Did Mr. Kirby get paid for those rejected Right. And you decided to use Ditko, Steve Ditko,

regard to paying artists even when the pages were rejected by you or required large changes? A. Any artists that drew anything that I had

asked him or her to draw at my behest, I paid them for it. If it wasn't good, we wouldn't use it. But I

asked them to draw it, so I did pay them. Q. A. Q. I'm going to jump around a little bit. You have some filing system. I do.
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