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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successful or would not be successful.

One of my key

opinions about Mr. Goodman is that he was frequently wrong about that. Q. A. Q. But -- I will come back to that. All right. You would agree, would you not, that if a book

had to be discontinued or was discontinued, it was because the publisher concluded, rightly or wrongly, that it wasn't going to make money? A. There were occasional other reasons to

discontinue a comic. Q. Putting aside the other reasons, one of the

reasons for sure was that the publisher made a determination that he couldn't make money with a particular comic book line; -MR. TOBEROFF: Q. A. -- correct? Hold on. Putting aside the other -- putting The question is Vague.

aside the other issues -- I'm sorry. confusing me. Q. A. You testified that --

It sounds like you're asking me:

Aside from

the fact that -- aside from the cases that he discontinued because he wasn't making money wasn't the only reason he discontinued wasn't that he was making money.

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self-explanatory, but -Q. Let me focus for a second on when you say

"co-created," what do you mean by "co-created"? A. Co-created would be when the creation would So each of

probably be credited to more than one person. the creators would be a co-creator. Q.

Now, focusing on this period between 1958 and

1963, and the particular comic book characters that are the subject matter at issue in this case, what conclusions did you reach with regard to whether those characters were created solely by Mr. Kirby or were created or co-created, rather, by Mr. Kirby and others, focusing specifically with regard to on Mr. Lee? MR. TOBEROFF: A. Vague.

Let me have it one more time. MR. QUINN: Yeah, read it back.

(The record was read.) A. this way. I believe that the characters -- let me put it I believe that the properties Fantastic Four,

The Hulk, Thor, several others here, the overall properties were co-created by Stan Lee and Jack Kirby. Q. And what opinions or conclusions did you reach

as to how that co-creation process worked? A. sit down. My understanding is that the two of them would They'd bring in rough ideas they might have had

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apart, throw them back and forth like any collaboration. Jack would offer ideas for characters. ideas for characters. Stan would offer

Some ideas would get discarded. And then they would

Some ideas would get expanded upon.

emerge with some idea of what Jack was going to go home and draw. Jack would draw the story. If it was 20 He would bring

pages, he would draw 20 pages of material. it back.

Assuming that Stan didn't -- assuming that Stan

was happy with what Jack brought in, Stan would then write the copy, the dialogue, the captions on the pages. And

then the work would proceed from that through lettering, and inking, and coloring, and publishing. Q. Now, do you have any evidence or did you reach

any conclusion or have an opinion as to whether Kirby had created or co-created any of these characters prior to when he returned to Marvel in 1958? these particular characters. A. focusing on? Q. A. The ones you mentioned. The ones I mentioned? I believe Jack had On which particular characters were you And we're focusing on

previously done, in some cases, antecedents that were a starting point. He came in with ideas that were then

later shaped with input from Stan.

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Q. A. Q.

And then he would go out and draw? Yes. And which ones would those be where he had a

starting point and then collaborated with Stan? A. Well, I believe Jack had done several stories And I believe he Or at the

prior to '58 about a version of Thor.

brought in that idea, he suggested the idea.

very least, when the idea of doing Thor came up, he said, Oh, I've done Thor. He had existing ideas about Thor

prior to '58 that he brought into the mix. Q. Right. But he didn't actually draw the Thor

character prior to '58; correct? MR. TOBEROFF: A. Q. Misstates his testimony. Yes.

He draw a Thor character prior to 1958. No, let me be very precise.

I didn't say a

Thor character.

I said he didn't draw the Thor character,

the character that became Thor, prior to 1958; correct? A. To my knowledge, he did not draw the Marvel

version of Thor prior to 1958. Q. Any others, other than having had ideas with

regard to Thor-like characters? A. Well, Jack had been pitching an idea prior to

coming back to Marvel that became -- that was a clear precedent from his viewpoint for Sgt. Fury and the Howling Commandos. He had an idea. He developed ideas as a

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newspaper strip for a war comic, a newspaper strip with -about a sergeant who was very similar to the way Sgt. Fury came out. Q. So he brought that idea to some extent. And then he sat down with Stan Lee, and they

ultimately came up with what became Sgt. Fury? A. Q. A. Q. A. Q. else? A. Well, Jack had worked on a character called He had worked -- there are Yes. Then he went and drew that? He drew the first issue. Yes.

After consulting with Mr. Lee? I assume so. Yes.

Other than those, can you think of anything

Spiderman prior to 1958.

antecedents in The Fantastic Four to earlier work of his, particularly "The Challenge of the Unknown," which he started for DC. Am I answering your question? Q. Well, he himself and others in the Kirby You're

family have stated he did not create Spider-Man. aware of that? A. Q. I am not aware of that.

In fact, his drawing for Spiderman, original

drawing for Spiderman, was rejected by Mr. Lee, and he asked Mr. Ditko to actually draw Spider-Man; correct?

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Q.

He initially he had assigned Jack to do the --

this is your understanding -- initially assigned Jack to do the Spider-Man drawings, looked at them, for whatever reason didn't want to use them, and then assigned Ditko, Steve Ditko, to actually do the drawings that were used. A. in dispute. Q. You mentioned that Jack had some idea for Is that Yes. And I believe that, for example, is not

Spiderman prior to or something like Spider-Man. based on, what, The Fly? A. No.

There was a character when Simon and

Kirby were working together in the 50s, they sold -- they did a lot of presentations and pitches and characters they took around to different publishers, and one of them was a character called Spiderman or The Silver Spider. tried to sell it under both names. And Jack had a title logo, a big piece of art board on which was lettered "Spiderman by Joe Simon," the logo that might be on the cover of the comic. logo easily predated the Marvel Spider-Man. And that And Jack They

would show that logo around and say: I brought this in and showed this to Stan. I had this in my closet. And when

we were looking for new characters, I brought that in. Where there was a piece of physical evidence there that at least proves that Jack was talking about a

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words, before you answer any of his questions. THE WITNESS: Q. A. Q. A. Q. All right.

Looking at page 98, line -We're on Exhibit 5, page 98. Page 98, lines 15 through 18. Okay. And you were asked the question this time not

by Mr. Fleischer but by somebody else that: (Reading:) Now, Mr. Evanier, you consider

yourself an advocate for comic creators' rights; isn't that correct? You answer: A. there. Q. Yes. It refreshes your recollection; correct? MR. TOBEROFF: A. Q. A. Q. A. Q. A. Q. He used the word "advocate." I would say so. Yes.

Yes, I guess I did use the word "advocate"

I agreed with Mr. Perkins' word. And you agree with that today. Yes. You remain an advocate -Yes. -- for comic creators' rights; right? Yeah. Not exclusively, but yes. And you have taken it upon

And fair enough.

yourself from time to time to right wrongs that you

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perceive to have taken place in the comic book community; correct? A. Q. A. I believe we had an exchange about that. The very next page. Yeah. The question was whether in the

question on line 18 -- I was confused as to whether in the question on line 18 where Mr. Perkins -- I think it was Mr. Perkins -- asked me, "And on occasion you've taken yourself -- upon yourself to right perceived wrongs that have taken place in the comic book -THE REPORTER: to slow down when you read. THE WITNESS: THE REPORTER: THE WITNESS: I'm sorry. That's okay. Let me start over here. Let me I'm sorry, you're going to have

get a drink of water and start over. A. All right. Starting over. In the question

Mr. Perkins asked me that commences at line 18, he said, "And on occasion you've taken it upon yourself to right perceived wrongs that have taken place in the comic book community; is that right?" I did not understand was he saying on behalf of comic creators or rights -- wrongs of any kind. Because I believe that I have at times been involved in righting wrongs that have not been done to comic book

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when it's placed, so we have to keep that area clean. So -Q. A. Q. Oh, that's the top one. I see.

-- let's put Oden in the bottom. So he's essentially telling him to move some

of the stuff on the drawing? A. Q. Yes. Is that something that he typically did after

seeing some of the drawings? A. This is very rare. I think I say on the next This is

page that they almost never even worked this way. a very rare artifact.

It's one of the few times Jack ever

did a cover sketch like this. Q. But this is an example of Jack actually giving

some pretty specific directions -- of Stan giving Jack some pretty specific directions with regard to at least this particular drawing; right? A. I don't know they're that specific. "Can this

be the Rainbow Bridge?"

Leaving it up to Jack to decide. That's

"Put Oden here somehow if you can." leaving it up to Jack to decide.

Usually a cover usually when an editor goes over a cover sketch -- and Jack didn't do very many cover sketches in his career -- usually the editor does a much more detailed composition. They would have something done

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in the office.

They do an overlay and have another artist

maybe move things around and show where to put them. This is very undetailed, a very undetailed set of suggestions. Q. It's fair to say that it's an example, at

least, of Mr. Lee giving at least some direction to Mr. Kirby about how he should do this drawing. fair? A. Very little direction. I'm not sure what Isn't that

you're trying to get me to say here. Q. I'm not trying to get you to say anything. That's all. Say

I'm trying to get some testimony here. whatever you want. A.

As we've established before, there were times

when Stan sent things back to Jack and said, This has to be -- you know, I can't use this in the form it's in. Let's do something different. I would suppose. Are we done with this book? Q. yeah. A. All right. Okay. Can I get a glass of water Yeah. Don't let it go too far away. But This is an example of that,

at some point here? MR. QUINN: Why don't you get it now. I will get it.

MR. TOBEROFF:

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old picture of me. MR. TOBEROFF: Very cherubic.

What number are we up to? Q. us, please. A. This is a scan or xerox of my column that 14. Can you just identify this document for

appeared in Jack Kirby Collector No. Thirty-Eight Q. And just a couple of questions on this. You

were being asked, I guess, a series of This is Jack FAQs. A. Q. is: Yes. Frequently Asked Questions. And one of them

Jack Kirby designed Spider-Man's custom. And you answer: False. Steve Ditko designed Jack did

the distinctive costume we all know and love.

claim to have presented the idea to Stan of doing a hero named Spiderman, no hyphen, who walked on walls and other Spiderman themed powers, a claim which Stan formally denies. A. Q. denies. Tell me which version do you believe with regard to Jack's supposedly bringing the idea of Superman -- Spider-Man to Stan Lee? or Stan's vociferous denial? Do you believe Jack's version I think I said vociferously denies. Oh, I'm sorry. You're right. Vociferously

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A.

As I stated earlier, I believe -- well, I

believe that Jack did bring in the idea of doing Spiderman to Marvel. Q. A. Q. A. So you believe Jack's version? I believe that part of Jack's version. That's the part I'm asking you about. Okay. I believe that Jack did come in and

present that to Marvel. Q. with Jack? A. Based on my discussions with Jack, based on Okay. And that's based on your discussions

the fact that he had this piece of artwork that said Spiderman done by Joe Simon earlier. Q. That's the one that you don't have any idea

where it is today; right? A. it's -Q. A. Q. Did you ever see the piece of work? I held it in my hands. You did. And what happened to it? Do you I don't know where it is today, no, but

have any idea? A. Jack kept it for many years, and at one point

when he was talking to Joe Simon, Joe said, "Hey, I'd like that back." And he sent it back to Joe Simon. I think I

answered this question earlier.

And the last I saw of it

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Silver Spider pages or printed the title logo. Q. A. The title logo you're referring to? The title logo that's the Spiderman that has

been printed a couple of times in different magazines. Q. A. Do you have any idea which magazines when? There was a magazine called Pure Imagination I'm not sure which issue. I

that I know printed it.

think it's probably been in some issue of the Jack Kirby Collector, but I don't know specifically. Q. A. Q. Iron Man? A. insides. Q. And am I right that Lee was the one who came Jack drew the cover, and Don Heck drew the You're familiar with the Iron Man; right? Yes. And who is the artist on the first issue of

up -- Stan Lee came up with the plot outline for the Iron Man? A. Q. Stan says he did. Jack says he did.

And you are at least aware -- by the way, who

did you decide to believe there, Stan or Jack? A. cases -THE REPORTER: you said, Mr. Quinn. I'm sorry, I didn't hear what Neither. I choose -- this is one of those

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Q. A.

They're both lying, with a question mark. I would not use the term "lying." I think they And when I report the history,

both have their versions.

I will report both of them and let the reader decide. Q. You are aware that Larry Lieber was -- did --

was assigned to write the full script; correct? A. Q. Larry Lieber wrote a script. Yes.

And he wrote the script before Heck drew the

-- before he drew the comic? A. Q. Yes. And what role does Kirby say he played in the

first issue of Iron Man? A. Jack says he came up with the concept,

presented it to Stan as an idea that they would do together. They talked it out. The idea was put on hold And

because there was no place to do it at that moment.

then subsequently Stan did it with Don Heck or put it into Tales of Suspense and had Don Heck draw the first one. wasn't happy with what Heck did, so Jack came in and started drawing it after that. Let me finish. Q. A. Please. Jack also -He

By all means finish.

And Jack also drew the cover of the first

issue, and on that cover he designed the look of Iron Man and the idea of the character putting on this iron which

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is depicted in three small panels that appear on that cover. Q. A. me. Q. And it's your understanding that Kirby did the This is what Kirby told you? This is what Kirby told me and what Heck told

cover before Heck drew the panels? A. That's what Kirby told me, and that's what

Heck told me. Q. And is it also your understanding with regard

to the script that Lieber Larry was working from a plot that Stan had given him? A. Q. about that? A. No. I just don't know how much of the plot Larry says he got the plot from Stan. Do you have any reason to disbelieve Larry

that Stan gave him came from Jack. Q. A. You don't know one way or the other; right? I don't know. I assume that some of it came

from Jack because Jack had already drawn the cover by that point. Q. You assume that because he drew the cover.

But other than, because he drew the cover, do you have any other basis to believe that he contributed to the plot? MR. TOBEROFF: Asked and answered.

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A. plot. Q. Don Heck? A. Q. A. Q.

Don Heck believed Jack had contributed to the

And that was based on discussions you had with

Yes. Is Don Heck alive? No, he's not. You did write in the King of Comics, page 273,

Iron Man written at first by Larry Lieber and drawn initially by Don Heck. However, Lieber was working from a

plot Stan had given him, and Heck was drawing from a cover and some concept sketches by Kirby. When you wrote that Lieber was working from a plot Stan had given him, you didn't mention that Kirby had anything to do with the plot there when you wrote it, did you? A. Q. No, not in the way I phrased it there. And then it goes on to say, "Stan wasn't happy

with the first story, so he immediately turned the art chores over to Kirby, and Jack was the answer to all problems." A. Q. Yes. Right. So that was another instance where

Stan decided to reassign work because he was unhappy? A. Yeah.

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