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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Dockets.Justia.com Page 66 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 JOHN MORROW interview in front of me to see, but I'm quite certain 66 he said that in that interview, that he was not working from full script. Q. A. At any point between '58 and '63? I'm certain he would have said that in that interview, yes. Q. Is there any other anecdotal evidence, other than what you've just described in the last couple of minutes, that would bear upon whether or not Mr. Kirby was working from scripts during the periods '58 through '63 at any time? A. '58 to '63? Well, I would need to get in front of some of those actual pages and see what the margin notes are. evidence in there. There could be some anecdotal That's a pretty telltale sign, not the only one, but a very convincing sign when Mr. Kirby is putting margin notes around the panels, obviously, he is putting them there so that the writer, Stan Lee or Larry Lieber or whoever, would know what he's doing on the story. If you were provided a full script, there would be no need for those. So, but I'd need to actually get some pages in front of me from that kind of example of margin notes on those. TSG Reporting - Worldwide 877-702-9580 Page 179 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 JOHN MORROW called them back in to publish the story. Q. A. Q. That's a legal conclusion, isn't it? That's my layman conclusion. But you're stating here an opinion that It had no 179 really constitutes a legal conclusion? financial obligation. MR. TOBEROFF: argumentative. A. Objection, You may, well, I mean, you may characterize I consider it my conclusion So, no, I'm not trying it as legal conclusion. based on the historical record. to pass myself off as someone giving legal conclusions or legal advice. Q. So it's your layman's conclusion that if I asked a freelancer to create a particular story or draw a particular piece of artwork and the freelancer brought it in, I had no obligation to pay them? A. Not if it wasn't accepted, no. At that point, that was the standard there, was take an assignment, take a script from Stan Lee and take it home and draw it and bring it back in, and if it's accepted, they pay you for it. Q. opinion -TSG Reporting - Worldwide 877-702-9580 When you say if it's accepted, that's your Page 192 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 JOHN MORROW artists. Q. 192 Was it your understanding that there would be more time spent on a story conference between Stan and an artist at the outset of a new title than there would be on issue number 83 of an existing title? MR. TOBEROFF: A. Lacks foundation. It would I'm not sure how to answer that. stand to reason, if you are going to launch a new title, yes, you would sit down and have a lot longer brain session than you would if you were doing a continuing story of characters you already established and everything, so. Q. On page eight of your report, in the second paragraph you say that -- in the second sentence of that paragraph, he, referring to Kirby, was extremely independent. He did not work from many written materials supplied by Marvel. How do you know that? A. We've seen no examples, other than that one synopsis from Fantastic Four number one, is the only example I've ever seen of written materials supplied to Kirby. I've seen an example of Kirby supplying written material back to Stan, an actual written script for an issue that he did while Stan was on vacation. TSG Reporting - Worldwide 877-702-9580 He Page 193 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 JOHN MORROW actually wrote the dialogue for it and sent a script back. Q. But that is the only example I've ever seen. Well, do you know if it was Kirby's habit 193 to retain written synopses he may have been provided? A. Well, if it was, they are not in his files, or not the files I had access to. Q. Do you know whether the Fantastic Four synopsis you referred to was in Kirby's files? A. Q. A. It was not in the files that I have seen. When did you go through Kirby's files? Oh, what year? The family loaned me a lot They had a storage unit of materials and got together. out in California where they had a lot of stuff stored. I was allowed to kind of go through there, that was -Q. A. Sometime after 1994, correct? Oh, yes, yeah, while I was working on the Jack Kirby Collector. Q. Do you know if there were any files that weren't among those files? A. I have no way of knowing. I assume they had everything that they had in that storage unit. Again, I didn't go through every single box that was in there either, so. Q. Do you have an understanding as to whether TSG Reporting - Worldwide 877-702-9580 Page 198 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 JOHN MORROW 198 to do, in my opinion, is to credit Steve Ditko and Stan Lee as co-creators of that. Kirby certainly has some input into it, in my opinion, but I think the final result is far enough removed that the Kirby input, while it got the ball rolling, is not the end product. Q. How do you know the Kirby input got the ball rolling? A. Because the historical track record on that is that Kirby had, let's see, C.C. Beck did the Silver Spider strip that was not published. in his autobiography. that he brought in. He published that Kirby had an idea for Spider-Man He drew supposedly five pages, it was very similar to The Fly, which Archie Comics was coming out with, and from there, Stan brought Steve Ditko in, and Ditko evolved the character into what it is now. Q. Is it your understanding that Jack Kirby did the five pages that he did draw supposedly before discussing the character with Stan Lee? A. No. My understanding is that he brought the idea to Stan Lee and said Stan, I have this idea for a character. It's an orphan boy with a magic ring that gives him spider powers, and what amount Stan edited there, we're not sure. TSG Reporting - Worldwide But then Jack went and 877-702-9580 Page 199 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 JOHN MORROW drew some sample pages, brought them in and Stan said no. He rejected probably because it was too close to 199 Archie Comics' Fly, and that's when Stan had Steve Ditko come in. Q. Are you saying that Jack brought the pages without being given an assignment by Stan with respect to Spider-Man? A. No, I think Jack brought in the concept, the idea to Stan as one that they had kind of kicked around at Mainline for doing, and Stan said sure, let's give it a try, and I don't know what level of input Stan gave Jack at that point. Q. Do you have an opinion with regard to whether or not Jack Kirby was the sole creator of Sgt. Fury and the Howling Commandos? A. Well, I put in my report -- a quote that really caught my attention when we interviewed John Severin for the Jack Kirby Collector. On page 12 and 13 of my report, he talked about met over coffee with Jack Kirby, and Jack at that point was trying to get syndicated newspaper strips purchased to syndicates and he had this idea that he pitched to John Severin to get John to draw it, because John was very good at drawing war comics, and -- well, the quote is in the report. TSG Reporting - Worldwide 877-702-9580 Page 200 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 JOHN MORROW You can read it. me. 200 But that one was very interesting to Jim That's not an interview I actually conducted. Amash conducted that actually. Q. So returning to my question, do you have an opinion as to whether or not Jack Kirby was the sole creator of Sgt. Fury and the Howling Commandos? A. Well, you have to define sole creator. Yes. Do I think Jack Kirby initiated the concept? That right there makes me think that Jack Kirby initiated the concept. Did Stan Lee have input into the concept? I would think as editor, certainly. as simple as this is hypothetical. It could have been It could have been as simple as Stan saying Jack, we need a war book, and Jack said oh, I got this great idea I was kicking around, and then he presented it, and maybe Stan added some stuff, something like that. It could have been that Jack walked in and said Stan, here's an idea. can do it. know. If you want to use it, we I, of course, wasn't there, so I don't But this leads me to believe that Jack initiated the concept outside of Marvel and through whatever process it was brought in. input into it. I'm sure Stan had some The question is how much? TSG Reporting - Worldwide 877-702-9580 Page 203 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 JOHN MORROW 203 lessen that Stan didn't add to it, but it's -- Jack -Q. When you say it's a Jack Kirby creation -MR. TOBEROFF: he said but Jack. BY MR. FLEISCHER: Q. A. I thought you had finished your answer. Well, just that it just screams that was a He was still talking, Jack Kirby creation. Q. A. Q. A. Q. Screams that to you? To me, yes. That is your opinion? That is my opinion, yes. Now, do you know whether Jack Kirby put pencil to paper before discussing the Thor character or the concept of a Thor book with Stan Lee? A. Q. No, do not. So when you say it's your conclusion that it's the sole creation of Jack Kirby, you are saying it was his idea? A. That is my opinion, yes. The idea to take Thor and use him as an ongoing superhero and cloak him into Norse mythology would have been Jack's idea. Q. But he wouldn't have drawn anything until getting the go ahead of from Stan and having a story TSG Reporting - Worldwide 877-702-9580 Page 204 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 JOHN MORROW conference of some kind with Stan, is that correct? MR. TOBEROFF: foundation. A. Assumes facts, lacks 204 Again, I wasn't there in 1961 and '62 when I can give you my these books were being produced. opinion, if that's what you'd like. My opinion is that Jack came to Stan Lee and said hey, I got this idea for a superhero based on Thor. And Stan would say something along the lines of okay, we've got a dead magazine and a mystery with nothing going on. off. Let's do it. Our superheros are starting to take At that point, they would kick That's my opinion. around details of it. Q. Do you have an opinion with regard to who is the creator of Ant Man? A. He is such a lesser known character, I don't think I actually included anything about Ant Man in there. I have not heard or read much historical What I do know about Ant Man is data on Ant Man. that -Q. questions. A. Q. Just try to restrict yourself to my I'll say no, I have no opinion. I don't mean to cut you off, but we are TSG Reporting - Worldwide 877-702-9580 Page 230 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 JOHN MORROW identification.) Q. A. Q. typewriter? A. Q. A. No, I have not seen a ribbon copy. Do you know what it is? I do, yes. Roy Thomas ran this in Alter Have you ever seen this before? I've seen it in print, yes. Did you ever see any ribbon copy from the 230 Ego Magazine. It's Stan Lee's two-page synopsis for Fantastic Four number one. Q. Roy Thomas? A. Q. I don't believe so, no. And do you know how Roy Thomas came to Have you ever discussed this document with publish this? A. Q. A. How he came to publish it? How he came to put it into the Alter Ego? I'm not sure where he got a copy of it, but I think it he said he wanted to run that in, I forget. was Alter Ego number one, I said great. Q. Do you know whether or not this document was either physically delivered to Jack Kirby before he started drawing or communicated to him verbally before he started drawing Fantastic Four number one? TSG Reporting - Worldwide 877-702-9580 Page 231 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 JOHN MORROW A. I have no idea. Kirby has gone on record 231 in an interview saying he did not get a synopsis for Fantastic Four number one. Q. A. Q. Do you credit that statement by Kirby? Yes, I do. It's pretty definitive. And you discredit Stan Lee's statement under oath in this case that this synopsis was communicated to Jack Kirby before Mr. Kirby started work? MR. TOBEROFF: Objection, lacks foundation, assumes facts. A. Well, could I see Mr. Lee's statement Because I've not seen it. before I answer that? Q. Let me ask you to assume that Stan Lee has testified under oath that this synopsis was communicated either verbally or in writing to Mr. Kirby before Mr. Kirby began work on Fantastic Four number one. MR. TOBEROFF: answer. A. I would give more credence to Mr. Kirby's Objection. You can account than to Stan Lee's account. Q. Is it your testimony that that's an unbiased conclusion? TSG Reporting - Worldwide 877-702-9580 Page 233 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 JOHN MORROW to weigh an opinion between the two men's statements, and so that's always a possibility. Q. 233 Is it your understanding, forgive me if you have already answered this, when we were talking Thor earlier, that before Mr. Kirby started to draw Thor, he got the assignment to do so from Jack Kirby? MR. BARD: Q. question. MR. TOBEROFF: Objection, vague. You mean Stan Lee. Let me restate the Sorry, Stan Lee. BY MR. FLEISCHER: Q. Is it your understanding that before Jack Kirby put pencil to paper with respect to the first Thor story, that he had been asked to write that story by Stan Lee? MR. TOBEROFF: A. Objection, vague. Well, it's my opinion that the Thor concept What the would have come from Jack, not from Stan. process was to get Jack beginning on drawing the physical story, obviously Jack was not the editor. Jack could not decide to publish a Thor comic book on his own. He brought the idea to Stan. Stan said sure, It's not Jack was let's run with that in Journey into Mystery. like they started a new Thor comic though. TSG Reporting - Worldwide 877-702-9580 Page 234 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 JOHN MORROW turning out work for Mystery books and Journey into Mystery was apparently not doing well and the 234 superheros were, so they started to add a superhero to it. All I can offer is my opinion there. My opinion was Jack came up with this idea, and at that point, Stan said yes, let's put that in Journey in Mystery, and they probably worked on it together, and -Q. This is 15. Have you ever seen this document before? A. Q. A. Yes, I have. And what is it? This is a typed transcript of a radio interview that Stan Lee and Jack Kirby gave in 1967. The year's audiotape recording for the story housed in Stan Lee's archives at the University of Wyoming. One of our authors Danny Fingeroth went to the University of Wyoming to go through Stan Lee's archives to give it to us for Stan Lee's book. (The document referred to was marked Plaintiff's Morrow Exhibit Number 15 for identification.) Q. Do you have any reason to believe that this TSG Reporting - Worldwide 877-702-9580 Page 259 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 JOHN MORROW went ahead and published Kirby's fill-in story. Q. And the idea was that Kirby's story 259 couldn't advance the plot at all, because that might affect what was already in the works with Steranko? A. Q. Right. I've placed before you what I have marked as Exhibit 24, and it appears to be a two-page document and it's entitled: Introduction by John Morrow. (The document referred to was marked Plaintiff's Morrow Exhibit Number 24 for identification.) Q. A. Is this a document that you wrote? It is. With all these introductions, Marvel editorial staff had the ability to change things. them. MR. TOBEROFF: I just want to note for It's I don't recall any major changes on any of the record it's a bit hard to read. very dark, at least for me. MR. FLEISCHER: I agree that it's dark, but I also would submit that it's entirely legible. Q. There's a statement in the third paragraph: As usual, for most new issues in the 1960s, Kirby was TSG Reporting - Worldwide 877-702-9580 Page 260 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 JOHN MORROW 260 called in to work on the initial issues before handing it off to others to continue. Did you have in mind the other new series that you were referring to there? A. Ironman. For instance, Daredevil, Kirby was brought in in some capacity for his covers by him. There are some character concept drawings by Kirby. The character called the Plunderer, and I forget the other one that are in early Daredevil stories that are all -- it's Kirby giving a sketch of what it should look like and writing notes off to the side of the character's, you know, personality and his powers and things like that, that were submitted to the artist who was drawing that issue to go by. Q. Ironman? A. didn't he? Q. A. Q. Yes. I believe so. I'm telling you. I'm asking you. I believe Larry Lieber scripted that, Do you know who wrote the first issue of Is it your understanding that Larry Lieber did it? A. I would say yes. TSG Reporting - Worldwide 877-702-9580 Page 261 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 JOHN MORROW Q. I don't want to testify. And who drew that issue? A. Q. That's Don Heck, I believe. 261 And is it your recollection that Jack Kirby was asked to do the cover? A. Q. Yes. Now, what was the -- this Exhibit 24 an introduction to? A. Well, based on what I'm reading here, I'm assuming this was the one I did for the S.H.I.E.L.D. series, but let's see, since I'm talking about Shield here, it must have been for the Agent of Shield collection. Q. Now, in the fifth paragraph, you say in the While Stan scripted most of the issues first sentence: presented here, Kirby was undoubtedly the guiding creative force. What did you mean by Stan scripted most of the issues? A. Scripted meaning dialogue, put the words in the balloons. Q. A. You don't mean creating the scripts? No, not working from the script, no. Scripting and dialoguing are kind of used TSG Reporting - Worldwide 877-702-9580

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