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Case 11-3333, Document 77, 01/26/2012, 509516, Page1 of 320

CASE NO. 11-3333


UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,


MVL Rights, LLC,
Plaintiffs-Counter-Defendants - Appellees,
Walt Disney Company, Marvel Entertainment, Incorporated,
Counter-Defendants - Appellees,
v.
Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby, Barbara J. Kirby,
Defendants-Counter-Claimants - Appellants.

APPELLANTS’ JOINT APPENDIX, VOLUME VI OF X

Appeal From The United States District Court for the Southern
District of New York,
Civil Case No. 10-141 (CM) (KF), Hon. Colleen McMahon

TOBEROFF & ASSOCIATES, P.C.


Marc Toberoff
mtoberoff@ipwla.com
22631 Pacific Coast Highway #348
Malibu, California 90265
Telephone: (310) 246-3333
Facsimile: (310) 246-3101
Attorneys for Defendants-Appellants,
Lisa R. Kirby, Neal L. Kirby, Susan M.
Kirby and Barbara J. Kirby
Case 11-3333, Document 77, 01/26/2012, 509516, Page2 of 320

CASE NO. 11-3333


UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,


MVL Rights, LLC,
Plaintiffs-Counter-Defendants - Appellees,
Walt Disney Company, Marvel Entertainment, Incorporated,
Counter-Defendants - Appellees,
v.
Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby, Barbara J. Kirby,
Defendants-Counter-Claimants - Appellants.

APPELLANTS’ JOINT APPENDIX, VOLUME VI OF X

Appeal From The United States District Court for the Southern
District of New York,
Civil Case No. 10-141 (CM) (KF), Hon. Colleen McMahon

TOBEROFF & ASSOCIATES, P.C.


Marc Toberoff
mtoberoff@ipwla.com
22631 Pacific Coast Highway #348
Malibu, California 90265
Telephone: (310) 246-3333
Facsimile: (310) 246-3101
Attorneys for Defendants-Appellants,
Lisa R. Kirby, Neal L. Kirby, Susan M.
Kirby and Barbara J. Kirby
Case 11-3333, Document 77, 01/26/2012, 509516, Page3 of 320

TABLE OF CONTENTS

JA Docket Date Description Pages


Volume No.
VI 93 3/25/2011 Declaration of Neal Adams re: Plaintiffs’ 1384
Motion for Summary Judgment
VI 94 3/25/2011 Declaration of James Steranko re: 1390
Plaintiffs’ Motion for Summary
Judgment
VI 95 3/25/2011 Declaration of Mark Toberoff (Part II) 1397
re: Motions for Summary Judgment
VI 95-1 3/25/2011 Exhibit A – September 16, 2009 1408
“Fantastic Four” Termination Notice
VI 95-2 3/25/2011 Exhibit B – Excerpts from the November 1424
9, 2010 Deposition of Mark Evanier
VI 95-3 3/25/2011 Exhibit C – Excerpts from the December 1437
6, 2010 Deposition of Mark Evanier
VI 95-4 3/25/2011 Exhibit D – Excerpts from the January 1477
10, 2011 Deposition of John Morrow
VI 95-5 3/25/2011 Exhibit E – Excerpts from the January 7, 1513
2011 Deposition of Lawrence Lieber
VI 95-6 3/25/2011 Exhibit F – Excerpts from the October 1532
21, 2010 Deposition of John Romita
VI 95-7 3/25/2011 Exhibit G – Excerpts from the June 30, 1559
2010 Deposition of Neal Kirby
VI 95-8 3/25/2011 Exhibit H – Excerpts from the October 1602
25, 2010 Deposition of Susan Kirby
VI 95-9 3/25/2011 Exhibit I – Excerpts from the May 13, 1611
2010 Deposition of Stan Lee
VI 95-10 3/25/2011 Exhibit J – Excerpts from the December 1621
8, 2010 Deposition of Stan Lee
VI 95-11 3/25/2011 Exhibit K – Excerpts from the October 1653
27, 2010 Deposition of Roy Thomas

i
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JA Docket Date Description Pages


Volume No.
VI 95-12 3/25/2011 Exhibit L – Plaintiffs’ December 20, 1660
2011 Response to Defendants’ First Set
of Requests for Admissions
VI 95-13 3/25/2011 Exhibit M – Attached as Exhibit 17 to 1668
the Declaration of Randi Singer
VI 95-14 3/25/2011 Exhibit N – Jack Kirby Pencil Drawings 1675
of “Thor”

ii
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INDEX TO APPENDICES

Joint Appendix

JA Docket Date Description Pages


Volume No.
I N/A 1/9/2012 Docket for Civil Case 1:10-cv-00141- 1
CM-KNF as of January 9, 2012
I 1 1/8/2010 Complaint 19
I 9 3/9/2010 Notice of Defendants’ Motion to 36
Dismiss for Lack of Personal
Jurisdiction and Failure to Join
Necessary Parties
I 10 3/9/2010 Defendants’ Memorandum of Law re: 39
Motion to Dismiss
I 11 3/9/2010 Declaration of Lisa Kirby re: Motion to 67
Dismiss
I 12 3/9/2010 Declaration of Neal Kirby re: Motion to 71
Dismiss
I 13 3/9/2010 Declaration of Marc Toberoff re: Motion 75
to Dismiss
I 18 3/26/2010 Declaration of Alan Braverman re: 78
Motion to Dismiss
I 19 3/26/2010 Declaration of Eli Bard re: Motion to 80
Dismiss
I 20 3/26/2010 Declaration of James Quinn re: Motion 84
to Dismiss
I 23 4/6/2010 Reply Declaration of Marc Toberoff re: 87
Motion to Dismiss
I 24 4/6/2010 Reply Declaration of Lisa Kirby re: 91
Motion to Dismiss
I 27 4/14/2010 Order Denying Defendants’ Motion to 95
Dismiss
I 30 4/28/2010 Answer to Complaint and Counterclaims 111

iii
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JA Docket Date Description Pages


Volume No.
I 43 10/14/2010 Order re: Deposition of Mark Evanier 140
I 50 12/6/2010 Answer to Counterclaims 142
I 60 2/25/2011 Notice of Plaintiffs’ Motion for 150
Summary Judgment
I 61 2/25/2011 Plaintiffs’ Rule 56.1 Statement re: 152
Plaintiffs’ Motion for Summary
Judgment
I 62 2/25/2011 Plaintiffs’ Memorandum re: Plaintiffs’ 186
Motion for Summary Judgment
I 65 2/25/2011 Declaration of Randi Singer re: 214
Plaintiffs’ Motion for Summary
Judgment
II 65-1 2/25/2011 Exhibit 1 – Excerpts from the May 13, 226
2010 and December 8, 2010 Depositions
of Stan Lee
II 65-2 2/25/2011 Exhibit 2 – Excerpts from the October 327
21, 2010 Deposition of John Romita
II 65-3 2/25/2011 Exhibit 3 – Excerpts from the October 378
26 and October 27, 2010 Depositions of
Roy Thomas
II 65-4 2/25/2011 Exhibit 4 – Excerpts from the January 7, 422
2011 Deposition of Lawrence Lieber
II 65-5 2/25/2011 Exhibit 5 – Excerpts from the June 30, 448
2010 Deposition of Neal Kirby
II 65-6 2/25/2011 Exhibit 6 – Excerpts from the July 1, 497
2010 Deposition of Lisa Kirby
III 65-7 2/25/2011 Exhibit 7 – Excerpts from the October 515
25, 2010 Deposition of Susan Kirby
III 65-8 2/25/2011 Exhibit 8 – Excerpts from the November 531
9, 2010 Deposition of Mark Evanier
III 65-9 2/25/2011 Exhibit 9 – Excerpts from the December 553
6, 2010 Deposition of Mark Evanier

iv
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JA Docket Date Description Pages


Volume No.
III 65-10 2/25/2011 Exhibit 10 – Excerpts from the January 581
10, 2011 Deposition of John Morrow
III 65-15 2/25/2011 Exhibit 15 – August 31, 2009 Press 599
Release from the Walt Disney Company
III 65-20 2/25/2011 Exhibit 17 – May 30, 1972 Agreement 603
between Jack Kirby and Magazine
Management Co., Inc.
III 65-21 2/25/2011 Exhibit 18 – 1981 Interview with Stan 609
Lee by Leonard Pitts, Jr.
III 65-28 2/25/2011 Exhibit 25 – November 1, 1998 629
Agreement between Stan Lee and
Marvel Enterprises, Inc.
III 65-29 2/25/2011 Exhibit 26 – August 6, 2007 Interview 640
with Lawrence Lieber by Daniel Best
III 65-30 2/25/2011 Exhibit 27 – January 9, 1963 Letter from 671
Stan Lee to Jerry Bails
III 65-31 2/25/2011 Exhibit 28 – Excerpt from Kirby: King 674
of Comics by Mark Evanier
III 65-32 2/25/2011 Exhibit 29 – “Stan Lee Made Up the Plot 677
… And I’d Write the Script” by Roy
Thomas
III 65-33 2/25/2011 Exhibit 30 – Two-page synopsis of The 692
Fantastic Four
III 66-1 2/25/2011 Exhibit 31 – Interview with Stan Lee by 695
Dan Hagen
III 66-2 2/25/2011 Exhibit 32 – Transcript of Interview with 715
Stan Lee by Eric Leguebe
III 66-3 2/25/2011 Exhibit 33 – Excerpts from Origins of 724
Marvel Comics by Stan Lee
III 66-4 2/25/2011 Exhibit 34 – June 11, 2007 Affidavit of 758
Stan Lee

v
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JA Docket Date Description Pages


Volume No.
III 66-5 2/25/2011 Exhibit 35 – March 7, 2006 Agreement 774
between Stan Lee and Marvel
Entertainment, Inc.
III 66-6 2/25/2011 Exhibit 36 – May 19, 1978 Agreement 777
between John Romita and Marvel
Comics Group
III 66-7 2/25/2011 Exhibit 37 – June 1, 1978 Agreement 779
between Roy Thomas and Marvel
Comics Group
III 66-8 2/25/2011 Exhibit 38 – April 28, 2008 Letter from 781
Gene Colan to Marvel Comics
Enterprises
III 66-9 2/25/2011 Exhibit 39 – Excerpt from The Art of 784
Jack Kirby by Ray Wyman, Jr.
III 66-10 2/25/2011 Exhibit 40 – January 9, 1966 Article 787
“Super-Heroes With Super Problems” by
Nat Freedland
IV 66-11 2/25/2011 Exhibit 41 – Interview with Jack Kirby 794
and 66- by Gary Groth
12
IV 66-13 2/25/2011 Exhibit 42 – Excerpt from Jack Kirby 826
Collector Fifty-Four
IV 66-14 2/25/2011 Exhibit 43 – Interview with Jack Kirby 829
by Mark Herbert
IV 66-15 2/25/2011 Exhibit 44 – July 12, 1966 Affidavit of 841
Jack Kirby
IV 66-16 2/25/2011 Exhibit 45 – Renewal Copyright 853
Registrations signed by Jack Kirby
IV 66-17 2/25/2011 Exhibit 46 – March 24, 1975 Agreement 874
between Jack Kirby and Marvel Comics
Group

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JA Docket Date Description Pages


Volume No.
IV 66-18 2/25/2011 Exhibit 47 – June 16, 1986 883
Acknowledgement of Copyright
Ownership by Jack Kirby
IV 66-19 2/25/2011 Exhibit 48 – June 16, 1987 Agreement 886
between Jack Kirby and Marvel Comics
Group
IV 66-20 2/25/2011 Exhibit 49 – May 12, 1987 Letter from 898
Joseph Calamari to Jack Kirby
IV 66-21 2/25/2011 Exhibit 50 – October 3, 1986 Article 901
“Response: Jack Kirby replies to Marvel
Statement”
IV 66-22 2/25/2011 Exhibit 51 – November 19, 1997 Letter 904
from Stephen F. Rohde to Joseph
Calamari
IV 66-23 2/25/2011 Exhibit 52 – Interview with Stan Lee by 908
David Anthony Kraft
IV 66-24 2/25/2011 Exhibit 53 – Interview with Stan Lee by 925
Clifford Meth and Daniel Dickholtz
IV 66-26 2/25/2011 Exhibit 55 – September 22, 2009 Article 931
“Who Created Spider-Man? [Kirby
Lawsuit]” by Al Nickerson
IV 66-27 2/25/2011 Exhibit 56 – Excerpt from “The JACK 934
F.A.Q.”
IV 66-28 2/25/2011 Exhibit 57 – Excerpt from “The JACK 939
F.A.Q.”
IV 67 2/25/2011 Notice of Plaintiffs’ Motion to Exclude 945
the Testimony of Mark Evanier
IV 69 2/25/2011 Declaration of Sabrina Perelman re: 947
Plaintiffs’ Motion to Exclude the
Testimony of Mark Evanier
IV 69-2 2/25/2011 Exhibit 2 – Excerpts from the December 950
6, 2010 Deposition of Mark Evanier

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JA Docket Date Description Pages


Volume No.
IV 69-3 2/25/2011 Exhibit 3 – Excerpts from the November 995
9, 2010 Deposition of Mark Evanier
IV 69-4 2/25/2011 Exhibit 4 – Excerpts from November 16, 1008
1999 trial proceedings in In re Marvel
Entertainment Group Inc., et al., Case
No. 97-638-RRM, in the U.S. District
Court for the District of Delaware
IV 69-5 2/25/2011 Exhibit 5 – Excerpts from the October 1014
12, 1999 Deposition of Mark Evanier in
In re Marvel Entertainment Group
IV 70 2/25/2011 Notice of Plaintiffs’ Motion to Exclude 1017
the Testimony of John Morrow
IV 72 2/25/2011 Declaration of David Fleischer re: 1019
Plaintiffs’ Motion to Exclude the
Testimony of John Morrow
IV 72-2 2/25/2011 Exhibit B – Excerpts from the January 1021
10, 2011 Deposition of John Morrow
IV 73 2/25/2011 Notice of Defendants’ Motion for 1077
Summary Judgment
IV 74 2/25/2011 Declaration of Mark Evanier re: 1080
Defendants’ Motion for Summary
Judgment
V 74-1 2/25/2011 Exhibit A – November 4, 2010 Expert 1088
Report of Mark Evanier
V 74-2 2/25/2011 Exhibit B – Excerpts from Kirby: King 1116
of Comics by Mark Evanier
V 74-3 2/25/2011 Exhibit C – 1972 “Jack Kirby’s Gods” 1125
Portfolio
V 74-4 2/25/2011 Exhibit D – 1969-1971 Presentation 1132
Pieces by Jack Kirby
V 75 2/25/2011 Declaration of John Morrow re: 1135
Defendants’ Motion for Summary
Judgment

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JA Docket Date Description Pages


Volume No.
V 75-1 2/25/2011 Exhibit A – November 4, 2010 Expert 1140
Report of John Morrow
V 75-2 2/25/2011 Exhibit B – Fantastic Four: The Lost 1161
through Adventure #1
75-4
V 78 2/25/2011 Defendants’ Rule 56.1 Statement re: 1229
Defendants’ Motion for Summary
Judgment
V 82 3/25/2011 Supplement Declaration of Randi Singer 1235
re: Defendants’ Motion for Summary
Judgment
V 82-1 3/25/2011 Exhibit 58 – Excerpts from the October 1238
21, 2010 Deposition of John Romita
V 82-2 3/25/2011 Exhibit 59 – Excerpts from the October 1242
26 and October 27, 2010 Depositions of
Roy Thomas
V 82-3 3/25/2011 Exhibit 60 – Excerpts from the January 1249
7, 2011 Deposition of Lawrence Lieber
V 82-4 3/25/2011 Exhibit 61 – Excerpts from the June 30, 1252
2010 Deposition of Neal Kirby
V 82-5 3/25/2011 Exhibit 62 – Excerpts from the October 1256
25, 2010 Deposition of Susan Kirby
V 82-6 3/25/2011 Exhibit 63 – Excerpts from the January 1259
10, 2011 Deposition of John Morrow
V 83 3/25/2011 Opposition to Local Rule 56.1 Statement 1277
re: Defendants’ Motion for Summary
Judgment
V 85 3/25/2011 Declaration of Marc Toberoff re: 1295
Plaintiffs’ Motion to Exclude the
Testimony of John Morrow
V 85-3 3/25/2011 Exhibit C – Excerpts from the January 1299
10, 2011 Deposition of John Morrow

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JA Docket Date Description Pages


Volume No.
V 85-5 3/25/2011 Exhibit E – “Battling the Kirby Bug” by 1315
John Morrow
V 85-6 3/25/2011 Exhibit F – Cover of Challengers of the 1317
Unknown, No. 1
V 87 3/25/2011 Declaration of Marc Toberoff re: 1319
Plaintiffs’ Motion to Exclude the
Testimony of Mark Evanier
V 87-3 3/25/2011 Exhibit C – Excerpt from Kirby: King of 1323
Comics by Mark Evanier
V 87-5 3/25/2011 Exhibit E – Excerpts from the December 1325
6, 2010 Deposition of Mark Evanier
V 87-6 3/25/2011 Exhibit F – Excerpts from the October 1342
21, 2010 Deposition of John Romita
V 87-7 3/25/2011 Exhibit G – Excerpts from the October 1348
26 and October 27, 2010 Depositions of
Roy Thomas
V 88 3/25/2011 Declaration of Mark Evanier re: 1356
Plaintiffs’ Motion to Exclude the
Testimony of Mark Evanier
V 89 3/25/2011 Declaration of John Morrow re: 1359
Plaintiffs’ Motion for Summary
Judgment
V 90 3/25/2011 Declaration of Mark Evanier re: 1364
Plaintiffs’ Motion for Summary
Judgment
V 91 3/25/2011 Declaration of Richard Ayers re: 1372
Plaintiffs’ Motion for Summary
Judgment
V 92 3/25/2011 Declaration of Joe Sinnott re: Plaintiffs’ 1378
Motion for Summary Judgment
VI 93 3/25/2011 Declaration of Neal Adams re: Plaintiffs’ 1384
Motion for Summary Judgment

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JA Docket Date Description Pages


Volume No.
VI 94 3/25/2011 Declaration of James Steranko re: 1390
Plaintiffs’ Motion for Summary
Judgment
VI 95 3/25/2011 Declaration of Mark Toberoff (Part II) 1397
re: Motions for Summary Judgment
VI 95-1 3/25/2011 Exhibit A – September 16, 2009 1408
“Fantastic Four” Termination Notice
VI 95-2 3/25/2011 Exhibit B – Excerpts from the November 1424
9, 2010 Deposition of Mark Evanier
VI 95-3 3/25/2011 Exhibit C – Excerpts from the December 1437
6, 2010 Deposition of Mark Evanier
VI 95-4 3/25/2011 Exhibit D – Excerpts from the January 1477
10, 2011 Deposition of John Morrow
VI 95-5 3/25/2011 Exhibit E – Excerpts from the January 7, 1513
2011 Deposition of Lawrence Lieber
VI 95-6 3/25/2011 Exhibit F – Excerpts from the October 1532
21, 2010 Deposition of John Romita
VI 95-7 3/25/2011 Exhibit G – Excerpts from the June 30, 1559
2010 Deposition of Neal Kirby
VI 95-8 3/25/2011 Exhibit H – Excerpts from the October 1602
25, 2010 Deposition of Susan Kirby
VI 95-9 3/25/2011 Exhibit I – Excerpts from the May 13, 1611
2010 Deposition of Stan Lee
VI 95-10 3/25/2011 Exhibit J – Excerpts from the December 1621
8, 2010 Deposition of Stan Lee
VI 95-11 3/25/2011 Exhibit K – Excerpts from the October 1653
27, 2010 Deposition of Roy Thomas
VI 95-12 3/25/2011 Exhibit L – Plaintiffs’ December 20, 1660
2011 Response to Defendants’ First Set
of Requests for Admissions
VI 95-13 3/25/2011 Exhibit M – Attached as Exhibit 17 to 1668
the Declaration of Randi Singer

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JA Docket Date Description Pages


Volume No.
VI 95-14 3/25/2011 Exhibit N – Jack Kirby Pencil Drawings 1675
of “Thor”
VII 95-15 3/25/2011 Exhibit O – Article “Kirby’s Gamma 1682
Rays: Alpha to Omega! – An Ultra-Rare
Find from 1962!”
VII 95-16 3/25/2011 Exhibit P – July 7, 2006 Agreement 1690
between Lisa Kirby and Marvel
Characters, Inc.
VII 95-17 3/25/2011 Exhibit Q – December 23, 2008 1692
Agreement between Lisa Kirby and
Marvel Characters, Inc.
VII 95-18 3/25/2011 Exhibit R – November 3, 2008 1704
Agreement between Lisa Kirby and
Marvel Characters, Inc.
VII 95-19 3/25/2011 Exhibit S – “Article “Fantastic Four 1713
#108: Jack’s Way”
VII 95-20 3/25/2011 Exhibit T – March 21, 1965 “Request for 1723
Payment” from Don Heck to Western
Printing and Lithographic
VII 95-21 3/25/2011 Exhibit U – Excerpts from “Five 1726
Fabulous Decades of the World’s
Greatest Comics: Marvel” by Les
Daniels
VII 95-22 3/25/2011 Exhibit V – Excerpts from “Alter Ego 1737
Presents: John Romita … and All that
Jazz!” by Roy Thomas and Jim Amash
VII 95-23 3/25/2011 Exhibit W – Excerpts from Jack Kirby 1746
Checklist Gold Edition
VII 95-24 3/25/2011 Exhibit X – Excerpts from The Art of 1763
Jack Kirby
VII 95-25 3/25/2011 Exhibit Y – Article “Kirby Gets 1776
Cracked”

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JA Docket Date Description Pages


Volume No.
VII 95-26 3/25/2011 Exhibit Z – Article “The Monster of 1781
Moraggia”
VII 95-27 3/25/2011 Exhibit AA – 1974-1975 Checks to 1791
Richard Ayer
VII 95-28 3/25/2011 Exhibit BB – 1986 Check to Jack Kirby 1817
VII 95-29 3/25/2011 Exhibit CC – Article “Would You Like 1820
to See My Etchings?”
VII 95-30 3/25/2011 Exhibit DD – Attached as Exhibits 36 1828
and 37 to the Declaration of Randi
Singer
VII 95-31 3/25/2011 Exhibit EE – Draft Agreement between 1831
Jack Kirby and Marvel Comics Groups
VII 97-1 3/25/2011 Exhibit FF – Artwork by Jack Kirby 1842
VII 97-2 3/25/2011 Exhibit GG – Excerpts from Article “A 1850
Failure to Communicate: Part Two”
VII 97-3 3/25/2011 Exhibit HH – Excerpts from Article 1860
“Jack Kirby”
VII 97-4 3/25/2011 Exhibit II – Excerpts from Article “Hour 1863
Twenty-Five”
VII 97-5 3/25/2011 Exhibit JJ – Excerpts from Article “Jack 1865
Kirby Interview”
VII 97-6 3/25/2011 Exhibit KK – Excerpts from Article 1869
“Wow-What an Interview”
VII 97-7 3/25/2011 Exhibit LL – November 12, 1980 1872
Declaration of Donald S. Engel and
Exhibits C, D, E, attached thereto from
Gerber v. Cadence Industries
Corporation, et al., Case No. 80 3840
DVK, in the U.S. District Court for the
Central District of California
VII 97-8 3/25/2011 Exhibit MM – Excerpts from “Stan Lee: 1899
Conversations”

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JA Docket Date Description Pages


Volume No.
VII 97-9 3/25/2011 Exhibit NN – Excerpts from Article 1904
“Jack Kirby A Celebration”
VII 97-10 3/25/2011 Exhibit OO –Article “Jack Kirby 1907
Interview”
VII 97-11 3/25/2011 Exhibit PP – Article “Kirby and Goliath: 1909
The Fight for Jack Kirby’s Marvel
Artwork”
VII 97-12 3/25/2011 Exhibit QQ – November 19, 1985 Letter 1917
from DC Comics to The Comics Journal
VII 97-13 3/25/2011 Exhibit RR – Handwritten Notes of Jack 1919
Kirby
VII 97-14 3/25/2011 Exhibit SS – Excerpt from Article “A 1924
Talk with Artist-Writer-Editor Jack
Kirby”
VII 97-15 3/25/2011 Exhibit TT – Article “Jack Kirby 1926
Interview”
VII 97-16 3/25/2011 Exhibit UU – Excerpts from “Superhero 1929
Women” by Stan Lee
VII 97-17 3/25/2011 Exhibit VV – Excerpts from “Interview 1933
with Stan Lee” from ign.com
VII 97-18 3/25/2011 Exhibit WW – Excerpts from “Son of 1937
Origins of Marvel Comics” by Stan Lee
VII 97-19 3/25/2011 Exhibit XX – Excerpts from “The 1942
Fantastic Four” by Stan Lee
VII 97-20 3/25/2011 Exhibit YY – Excerpts from “Alter Ego, 1946
No. 74”
VII 97-21 3/25/2011 Exhibit ZZ – Excerpts from Article 1950
“Jack Kirby – The Master of Comic
Book Art”
VII 97-22 3/25/2011 Exhibit AAA – Excerpts from Article 1953
“Stan Lee Interview – WBAI Radio NY
– August 12, 1986”

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JA Docket Date Description Pages


Volume No.
VII 97-23 3/25/2011 Exhibit BBB – Excerpts from “The 1956
Incredible Hulk” by Stan Lee
VII 97-24 3/25/2011 Exhibit CCC – Excerpts from Article 1959
“The Goldberg Variations”
VII 97-25 3/25/2011 Exhibit DDD – Excerpts from Article 1962
“Stan Lee Interview – WBAI Radio NY
– March 3, 1967”
VII 97-26 3/25/2011 Exhibit EEE – Article “Jack Kirby: 1965
Prisoner of Gravity”
VIII 97-27 3/25/2011 Exhibit FFF – Article “Jack Kirby: A 1968
By-the-Month Chronology”
VIII 97-28 3/25/2011 Exhibit GGG – Article “The Highs and 2006
Lows of Henry Pym”
VIII 97-29 3/25/2011 Exhibit HHH – Article “They Were 2011
Aces”
VIII 97-30 3/25/2011 Exhibit III – December 24, 1980 2014
Declaration of Stephen Gerber and
Exhibit 3, attached thereto from Gerber
v. Cadence Industries Corporation, et al.
VIII 97-31 3/25/2011 Exhibit JJJ – Excerpts from “Nimmer on 2037
Copyright” (1963)
VIII 97-32 3/25/2011 Exhibit KKK – August 5, 1986 Letter 2049
from Joe Sacco to Paul Levine and
enclosure
VIII 98 3/25/2011 Opposition to Local Rule 56.1 Statement 2056
re: Plaintiffs’ Motion for Summary
Judgment
VIII 99 3/25/2011 Redacted Declaration of Gene Colan re: 2146
Plaintiffs’ Motion for Summary
Judgment
IX 108 4/8/2011 Reply to Local Rule 56.1 Statement re: 2152
Plaintiffs’ Motion for Summary
Judgment

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JA Docket Date Description Pages


Volume No.
IX 110 4/8/2011 Reply Declaration of Sabrina Perelman 2286
re: Plaintiffs’ Motions to Exclude the
Testimony of Mark Evanier and John
Morrow
IX 110-1 4/8/2011 Exhibit 1: Excerpts from November 16, 2288
1999 trial transcript in In re Marvel
Entertainment Group
IX 114 4/8/2011 Reply Declaration of Marc Toberoff re: 2292
Defendants’ Motion for Summary
Judgment
IX 114-1 4/8/2011 Exhibit 1: Excerpts from “Five 2296
Fabulous Decades of the World’s
Greatest Comics: Marvel” by Les
Daniels
IX 114-2 4/8/2011 Exhibit 2 – Excerpts from the December 2302
8, 2010 Deposition of Stan Lee
IX 114-3 4/8/2011 Exhibit 3 – Excerpts from the December 2313
6, 2010 Deposition of Mark Evanier
IX 114-4 4/8/2011 Exhibit 4 – Excerpts from the October 2319
21, 2010 Deposition of John Romita
IX 114-5 4/8/2011 Exhibit 5 – Excerpts from the October 2325
26 and October 27, 2010 Depositions of
Roy Thomas
IX 116 4/8/2011 Reply to Local Rule 56.1 Statement re: 2332
Defendants’ Motion for Summary
Judgment
IX 121 7/28/2011 Order Granting Plaintiffs’ Motion for 2367
Summary Judgment and Denying
Defendants’ Motion for Summary
Judgment
IX 123 8/8/2011 Judgment 2417
IX 124 8/15/2011 Notice of Appeal 2419

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Volume No.
X N/A Transcript for the May 13, 2010 2421
Deposition of Stan Lee (requested by the
Court and submitted by Plaintiffs on
June 6, 2011)

Confidential Appendix

CA Docket Date Description Pages


Volume No.
I 103 3/25/2011 Declaration of Gene Colan re: Plaintiffs’ 1
Motion for Summary Judgment
I 103 3/25/2011 Exhibit A: March 22, 1975 Agreement 7
between Gene Colan and Marvel Comics
Group
I 103 3/25/2011 Exhibit B: May 30, 1978 Agreement 15
between Gene Colan and Marvel Comics
Group
I 103 3/25/2011 Exhibit C: April 28, 2008 Letter from 16
Gene Colan to Joe Quesada
I 103 3/25/2011 Exhibit D: May 31, 2008 Agreement 18
between Gene Colan and Marvel
Characters, Inc.
I 103 3/25/2010 Confidential Declaration of Marc 28
Toberoff re: Plaintiffs’ Motion for
Summary Judgment
I 103 3/25/2010 Exhibit 2: July 26, 2002 Agreement 33
between Stan Lee and Marvel Enterprises,
Inc
I 103 3/25/2010 Exhibit 4: March 20, 2006 Agreement 35
between Silver Creek Pictures, Inc. and
POW! Entertainment, Inc.
I 103 3/25/2010 Exhibit 5: May 2, 2008 Agreement 39
between Silver Creek Pictures, Inc. and
POW! Entertainment, Inc.

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Volume No.
I 103 3/25/2010 Exhibit 6: December 31, 2009 47
Agreement between Catalyst Investments,
LLC and POW! Entertainment, Inc.
I 103 3/25/2010 Exhibit 7: December 18, 2009 59
Agreement between Silver Creek
Pictures, Inc. and POW! Entertainment,
Inc.
I 103 3/25/2010 Exhibit 8: June 11, 2007 Agreement 72
between Marvel Entertainment, Inc. and
Stan Lee.
I 103 3/25/2010 Exhibit 9: Excerpts from the January 7, 77
2011 Deposition of Lawrence Lieber
I 103 3/25/2010 Exhibit 10: March 22, 1975 Agreement 82
between Gene Colan and Marvel Comics
Group
I 103 3/25/2010 Exhibit 11: September 1, 1974 91
Agreement between Roy Thomas and
Marvel Comics Group
I 103 3/25/2010 Exhibit 12: August 27, 1976 Agreement 99
between Roy Thomas and Marvel Comics
Group
I 103 3/25/2010 Exhibit 13: February 24, 1978 Letter 110
between Cadence Publishing Division
and Roy Thomas, enclosing March 7,
1977 Agreement between Roy Thomas
and Marvel Comics Group
II N/A Transcript for the October 21, 2010 115
Deposition of John Romita (requested by
the Court and submitted by Plaintiffs on
July 12, 2011)
III N/A Transcript for the October 26, 2010 395
Deposition of Roy Thomas (requested by
the Court and submitted by Plaintiffs on
July 12, 2011)

xviii
Case 11-3333, Document 77, 01/26/2012, 509516, Page21 of 320

CA Docket Date Description Pages


Volume No.
III N/A Transcript for the October 27, 2010 601
Deposition of Roy Thomas (requested by
the Court and submitted by Plaintiffs on
July 12, 2011)
IV N/A Transcript for the December 8, 2010 705
Deposition of Stan Lee (requested by the
Court and submitted by Plaintiffs on June
6, 2011)

Special Appendix

SA Docket Date Description Pages


Volume No.
I 123 8/8/2011 Judgment 1
I 121 7/28/2011 Order Granting Plaintiffs’ Motion for 3
Summary Judgment and Denying
Defendants’ Motion for Summary
Judgment
I 27 4/14/2010 Order Denying Defendants’ Motion to 53
Dismiss

xix
CaseCase 11-3333, Document 77,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 93 509516, Page22Page
Filed 03/25/11 of 3201 of 6

Marc Toberoff (MT 4862)


TOBEROFF & ASSOCIATES, P.C.
2049 Century Park East, Suite 2720
Los Angeles, CA 90067
Tel: 310-246-3333

Attorneys for Defendants Lisa R. Kirby, Barbara J.


Kirby, NealL. Kirby and Susan N. Kirby

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

MARVEL WORLDWIDE, INC.,


MARVEL CHARACTERS, INC. and
MVL RJGHTS, LLC,
Civil Action No. 10-141 (CM) (KF)
Plaintiffs,
[Hon. Colleen McMahon]
-against-
[ECF Case]
LISA R. KIRBY, BARBARA J. KIRBY,
NEAL L. KIRBY and SUSAN N . KIRBY,

Defendants.

DECLARATION OF NEAL ADAMS IN SUPPORT OF


DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS'
OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

JA1384
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Document 93 509516, Page23Page
Filed 03/25/11 of 3202 of 6

1, Neal Adams, hereby declare as follows:

1. I am familiar with the facts set forth below and make this declaration in

support of the truth as I know it. The facts set forth herein are known to me of my own

personal firsthand knowledge and, if called as a witness, I could and would testify

competently thereto under oath. Nor is it my belief or understanding that what I say here

differs from the true understanding of any freelancer or publisher.

2. I am a professional comic book artist, who has worked in the comic book

business since the late 1950s.

3. I began drawing comic books in the late 1950s. After graduating from the

School of Industrial Art in Manhattan, I debuted professionally in one panel of

Adventures ofthe Fly No. 4 (January 1960), which was part of the superhero line created

and edited by Joe Simon and Jack Kirby and published by Archie Comics. Soon

afterward, I drew and wrote features published in Archie's Joke Book Magazine, and

drew the syndicated Ben Casey newspaper strip from November 1962 to September

1964.

4. Shortly thereafter, I drew on a freelance basis artwork published in

numerous DC Comics titles, including Action Comics, Batman, Detective Comics, The

Brave and the Bold, Superboy, Our Army at War, Star-Spangled War Stories, World's

Finest Comics, Adventure Comics, Superman's Pal, Jimmy Olson, Strange Adventures,

Superman's Girl Friend, Lois Lane, The Spectre, Tales ofthe Unexpected, Adventures of

Jerry Lewis, and The Adventures ofBob Hope.

5. In the late 1960s, I drew on a freelance basis for Marvel Comics while

continuing to sell freelance artwork to DC Comics. I drew the artwork published by

Marvel in The X-Men Nos. 56 (May 1969) through 63 (December 1969) and No. 65

(February 1970). I wrote and drew the horror story "One Hungers" published by Marvel

JA1385
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Document 93 509516, Page24Page
Filed 03/25/11 of 3203 of 6

in Tower ofShadows No.2 (December 1969) and co-wrote another story published in

Chamber ofDarkness No. 2 (December 1969). I also plotted and drew a 2-issue story,

that was dialogued by the incredible Stan Lee, published in Thor Nos. I 80 (September

1970) and 181 (October 1970) and The Avengers Nos. 80 (September 1970) and 93

(November 1971) through 96 (February 1972).

6. All told, I produced and sold freelance artwork to DC Comics from 1967

to 1977 and to Marvel from 1969 to 1981. 1 currently produce freelance work for Marvel

and DC Contics, though today I work under contract on a freelance basis.

7. I always set my own hours, work from my own house, and paid all of my

overhead and expenses with no reimbursement of such expenses, nor any guarantee of

payment by DC or Marvel. I completely accepted the financial risk of creating the

artwork, not the publisher, because the publisher never legally obligated itself to pay for

my work except in recent years. In fact, I worked with no contract or any reallcgal

structure in the 1960's and 1970's.

8. There was no oversight of the creative process. For instance, Marvel did

not provide me with a written synopsis or outline or require me to provide it with a

synopsis, outline or sample of my intended artwork; nor did Marvel ask me to submit

work in stages for Marvel's approval along the way. The basic understanding was that I

would produce the artwork on my own and, since my work was thought to be

"professional," if the Marvel editor liked it, Marvel would most likely buy it. However,

there was no way to know that Marvel would in fact accept or pay for any such work, as

it was not required to do so. My acceptance depended entirely on my assumption of my


own ability.

9. Marvel, like DC Comics, was not obligated to buy my artwork or stories

and only paid me for that freelance work it ultimately accepted and purchased for

publication. In the same vein, as a frcelancer, I was not obligated to Marvel or to any

other publisher.

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10. I would not be paid for any artwork rejected by the comic book publisher.

I was only paid for the finished product the publisher chose to purchase. Neither Marvel

nor DC took out taxes from their payments for my material, nor did I receive any medical

benefits, insurance, vacation or sick pay of any sort. As I think about it, I had no

financial security whatsoever as a freelancer in those days. Nor did I expect it as a

freelancer.

11. For example, the very first cover I drew for Marvel, for "The X-Men" (a

title that was to be cancelled in "two issues") was summarily rejected by Marvel' s

"publisher" since I had tied and bound the protagonists to the 3D logo "X-Men.". He felt

the figures might obscure the title of the book in some way. I suggested the figures

would emphasize the title. However, he demanded a new cover (even though I had

submitted a sketch for the original cover beforehand). I was not paid for two covers only

for the cover Marvel decided to purchase.

12. I had other experiences like this with DC Comics, which was no surprise,

as we all knew we were at the whim of the publisher. My ex-partner Dick Giordano was

forced to quit as editor at DC Comics because he refused to reject, and not pay for, a job

he commissioned from Gray Morrow, a well-known professional. My experience in any

other freelance endeavor (book, magazine, advertising or other) is that during any of this

time I would receive a long (2 page) or short (1/2 page) contract or letter, or what is

known as a "purchase order" which, to the freelancer, was a "contract." But in comics,

Marvel and DC did not commit themselves financially like this. For all ofthcsc reasons 1

never considered my artwork to be "work for hire." I also do not believe that Marvel or

the other comic book publishers in the 1960's to the mid-1970's considered such

freelance artwork to be ''work for hire." In fact, no one in my knowledge ever uttered

such a phrase.

13. It was a mom and pop, hand to mouth business, yet some people created

brilliant work. During this confusing time comic book publishers and freelancers alike

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had very little reason to believe comic books would "be around next year." The

circumstances and relationship during this period was clearly that of a purchase and

assignment of completed freelance material once accepted by the comic book publisher,

not ownership from inception as ''work made for hire." It was not viewed that way, nor

did that jibe with the realities of the transaction described above.

14. For instance, Marvel's and DC Comics' checks to everyone through at

least the mid-1970's would include a printed or stamped legend on the back that stated

that by endorsing the check, the artist "transfers" and "assigns" all right, title and interest

in the artwork bought by Marvel.

15. Later, after the new Copyright Act emphasized "work for hire" with

particularity, Marvel in or about 1979 or 1980 began placing retroactive "work for hire"

language on the back of its checks and in other documents, such as the artwork releases it

required artists to sign before Marvel would return to them their original artwork from

decades earlier.

l6. I would cross-out this ''work for hire" language on the back of my checks

when it began to appear.

I declare under penalty of perjury that to the best of my knowledge the

foregoing is true and correct.

Dated: Marchg}j_, 20 l 0

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing was served electronically by

the Court’s ECF system and by first class mail on those parties not registered for ECF

pursuant to the rules of this court.

Dated: March 25, 2011 Respectfully submitted,


TOBEROFF & ASSOCIATES, P.C.

/s/ Marc Toberoff


Marc Toberoff
2049 Century Park East, Suite 3630
Los Angeles, California 90067
Tel. (310) 246-3333
Facsimile: (310) 246-3101
E-mail: mtoberoff@ipwla.com

Attorneys for defendants


Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby

5
JA1389
FROM : TYPESOI..JRCE
CaseCase 11-3333, Document
1:10-cv-00141-CM-KNF 77, 01/26/2012,
Document 94 509516,
FRX 1'£1. : 61121 :3 7121121867
Page28
Filed 03/25/11 of212111
3201 1215:
Page
Mar. 24 of 72I2IPM Pl

Maro Toberoff (MT 486.2)


TOBE.ROFF &ASSOCIATES. P.C.
2049 Centwy Park East. Suite 2720
Los Angaes, CA 90067
Tel: 310-246-3333
Attorneys for Defendants Lisa R Kirby, Barbara J.
Kirby, NealL. Kirby and Suaan. N. Kirby

UNITED STATES DISTRICT COURT


SOU'Il:IERN DISTRICT OF NEW YOR.K

MARVEL WOIUDWIDE. INC .•


MARVEL CHARAC'iER.s, INC. and
MVL RIOHTS, ILC,
Civil Action No. 10..141 (CM) (I(F)
· Plaintiffa,
[Hon. Colleen McMahon]
-against-
[ECF Case]
USA R K.IR.BY, BARBARA 1. KIRBY,
NEALL. KIRBY and SUSAN N. KIRBY~

Defendants.

DECLARATION O.F JAMES F. STERANKO IN SUPPORT OF DEFENDANTS'


MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS' OPPOSITION
TO PLAJNlW'S' MQTIQN FOR SUMMARY JUPGMENT

Reoeived Mer-24-11 12125~ FrQII-SID 3700887 To- P1111 DOl

JA1390
FROM : TYPE50I..RCE
CaseCase 11-3333, Document
1:10-cv-00141-CM-KNF 77, 01/26/2012,
Document 94 509516,
FAX I'IJ. :61121 ::5 i12Jel867
Page29
Filed 03/25/11 of212111
3202 1215:
Page
Mar. 24 of 72I2IPM P2

I, Jzunea F. Stenmko, hereby declare as follows:

1. · I am familiar with the facts Rt forth below and make this declaration in
suppon of defendants' modon for summary judgment and ctercndams• opposition to
plaintiffil' motion for summary judgment. The facts set forth herein are known to me of
my own personal finrthand knowledge tmd, if called as a witness, I could and would
teStf1Y competently thereto undCC' oath.
2. 1 am a lonatime comic book artist and historian. I am the author of the
two-volume 'I1lt _Ster&nkoHiltpQ" of CgmjSJA, foe whioh I was awarded the 1970 Shazam
Award for Ou.qtanding Aclllcvement by an Individual by lhe Academy of Comic Book
Arts. I also was inducted into the Will Eisner Comic Book Hall of Fame in 2006.
Wizard Magazine, a comic industry publication. has credited me as The Fifth Most
Influential ~om.ies Artist in the History of the Form. Michael Chabon cited me as an
inspiration for his Pulitzer PriUrwinning novel. The Advenrures of.KDvalter ci Ckzy.
3. · I brolce into the comic book business. in 1966 when I sold atori.ec to editor
Joe Simon· at Harvey Comics. Simon was· spearheeding a new line of superhero comics
at Harvey under the Harvey Thrlllcr banner. and I sold Stories 1 wrote to ~ey. which
published them in its Spyman Nos. I and 2 and Double...IJare Adventures No.1.
4. I then sold arorieJ and artworlc: on a freelance basis to Marvel for its
superspy Nick Fury feature inS~ Tales Nos. 151 throoP 168 (December 1966 to
May 1968) and then for its stand-alone Ntck Fury. Agent ofSHIELD comie boolc Nos. 1
through 7 (June 1968 to December 1968). I also ~d MatV.-J stori.s and artwork that

were published in Captain A.nNrica NOB. 110, 111 and 113 (Fcbroary, Marcl1 and May
1969),XMenNos. 50 and 51 (November 1968 and .December 1968). TowuofShadows
No. 1 (September 1969) and Our Love Stmy No. S (June 1970),. and artwork for Marvel's
1he Incredible Hulk Special No. J (October l968h X -Men No. 49 (Ootobcr 1968). Doc

. ·1

Reoeived Mar-24·11 !2:26pm FrOfl-810 3700867 To· Page 002

JA1391
FROM : TYPESCIURCECaseCase 11-3333, Document
FAX NO.77,
1:10-cv-00141-CM-KNF 01/26/2012,
Document
:51~ 37~7
94 509516, Page30
Filed 03/25/11 of~11
3203 ~:21PM
Page
Mar. 24 of 7 P3

Savage Noa. 2 and 3 (December 197'2 and FebiU&JY 1973), $hanna the SM-D6vil Noa. 1
and 2 (December 1972 and February 1973), Svpernatural Thrtller3 Nos. 1 and 2
(l)eeember 1972 and FebruatY 1973) and Fantastic Four Noa. 130 throuab 132 (Janum:y

1973 through March 1973).


s. In total, I sold stories and IIJ"tWOrk. to Marvel on a regular basis from 1966

w. 1913. 1 :nay~ busy with oth« projects as well. In 1969 I tbrmed my own publishing
c:om~any. Superaraphica. through which I publiahed in 1970 and 1972 The Stcnplm
HiRtQty of Cpmjq. I aold to Warren Publishing tho artwork for the oovor of Ewl6 No. 2S
(Jan\W'Y 1970). AJao in 1970, Iworiced with writer Byron Preiss on The Block, an anti-

drui comic book: that was ,Non out at el~entarY cchools acrou the United States. In
1972 I began publishiua throu&h Su~hics the magazine Comix!Oene, which
became Mediaacene in 1973 and later. Prevue maaazine. I also sold storic::s and artwork
to DC Comics, Archio Comics, Baronet Publishing, Eclipse. HM Communications. Inc.,

Image. Radical Comic;s and Vanguard Produc;tions, among others.


6. I was awarded the Alley Award in 1968 for Best Pencil Artist; my cover
for NtckFury, Agent ofSHIELD No. 6 was aiveil the Alley Award that same year for
Best Covor, and the Nick Fwy, Agtlnt ofSH1ELD title wu named to the Alley Awards'
Hall ofFame. In 1969, my covc:r for Captain .America No. 113 won the Alley Award for
Best CoV«, and my atory "At the Stroke ofMidniaht"' for Toweroj'ShadowsNo. I was
given the Alley Award for Best Feature Story. In 1973, I became the founding editor of

Marvel's official fan magazine, FOOM.


7. . I understand ftom press coveraae of this case that Marvel is claiming that
the artworlc created by Jack Kirby and other freelance .artim in the 1960s Wti "work
made for hire."
8. I neither &igncd nor waa offcxcd a CiOIItraCt when I sold my stories and
artwork to M.alvelln the 19608 and the early I 970s. In this period no one at Marvel
informod me either before or after l had. created stories and anwork at my own expense

Received Mar-24-11 12:25PI Fro.-810 3700887 To- Pqe 003

JA1392
FROM : TYPESOURCE
CaseCase 11-3333, Document
1:10-cv-00141-CM-KNF 77, 01/26/2012,
Document 94 509516,
FAX I'D. : 610 3 7001367
Page31
Filed 03/25/11 of2011
3204 05:21PM
Page
Mar. 24 of 7 P4

that MarVel somehOw owned it at inception as "WOlle for hire." Given Marvel's mlence
as to "work for hire" during this period, r aincerely doubt that even Marvel con;idered the
material it bought by the page from freelancen to be "Work f« hire." In fact, 1 do not
believe that I. the other tteelancers. Marvel·s editor. Stan Lee. or Marvef•s small staff
were even farniliu with the term "work for hire" in the 1960'& or early 1970'"·
9. At that timo, I ~ and the people l dealt with at Marv.l appee.red
to understand simply that I was 1Sdling and the publisher was purchasing my fteelance

work. It would not have been credible then and Jt i& not credible now to say that the work
I aold to Marvel or to the other comic book. publiaherw in those days was "work for hire."
owned by the publisher from the moment of its creation..
1o. During this period I wrote and drew comic book stortes at my own S1Udlo-
residence and minimally interacted with Marvel until! submitted my material for
acceptance. With few exceptions, I plottocl, wrOte, drow, inked and colored the works I
created which were published by Marvel. I determined my own hours of wmk, u5UB.lly

into the night and paid for my own overhead. research rna.teriab and art supplies
(pea.cila, bruahea, ink, etc.) with which I created the material. MaJvel did not reimburse
me for eny of these expenses, including my travel ~penses (gas, tolls, parkjng) whcm I
drove ftom out of~ to ~eir offices. Marvel and the other comic book companies also
did not provide me with any Jcind of vacation pay, side pay, or health bonefits,noc did
they withhold money from my checks £or tax pwpoae5. I had to handle all of this on my
ownl with no financial acc:urity.

11. It was understood that Marvel had the option to purchase or reject my

worlc (as they·did on sever&l occuione), and that! had no con1raetwith them, so I wu
free to sell my work to any other publi.!hcr in a similZU" mamta. It would be umrue tO say
. now that Marvel owned the material I aeated in this fashion as •"work for hi~ ftom the
moment my pencil touched paper. This did not match up with the industry standard,
teality or conduct of freelaDO«S and/or publishcn at this time.

Received Mar-24-11 12:2SPI Fr01"'610 3700867 To- Pan 004

JA1393
CaseCase 11-3333, Document
1:10-cv-00141-CM-KNF 77, 01/26/2012,
Document 94 509516,
FAX 1'£1. : 61121 3 7eJ12186 7
Page32
Filed 03/25/11 of212111
Mar. 24Page3205 ~:22PM
of 7 P5
FROM : TYPESOURCE

12. On tho backs ofmany.ofthe checb 1 rcocived from Marvel in the \960s
and I 970s wu a ~tamped leaatd which stated that by endorsing the check. I was
ass~ to the pUblisher all rights in the work. including the copyright. Nowhere did
the phrase ''work for hire"" or "worJc made for hire• appear.

13. . A.a waa typical for the time:, I was paid by Ma.Ivcl and the other comic
book companies on a per-page basis tor the pages Marvel purcllased, rathet" than a
strai.aht salary or on a per-project basia.. Payment, of~ wu contingent on the
approval ofMarvel'a editor of tho oompleted woric, and Marvel paid freeiiiJJoe artists only
for those pages of' material it accepled .
. 14. In tboae days we worked without any tangible guarantee from the
publiahers. and shouldered the financial risk of creating our own material. Marvel also
did not pay freelancers for the additional time of revi3ing their artwOik to Marvel's
satisfaction before MalVel would purchase it It was clear that we were not being paid
for our aervices or time, but that Marvel waa buying a :finiahed product from us.
IS. Sometime in the early I980s) Marvel :tuddenly began returning original
artwork to freclancers, including to me. It was my undemanding at lbat lime that it had
come to Uaht that comic book publishers in CaJi£omia wefe withholding/paying aales tax
on their purchase offreolanc. artwork, and that :first DC Cornice_ and then Marvel.
became concerned that if it did not ,n,turn to freelancei3 their original artwork, it ran the

risk of owing a aiaantic sum in back sales taX. to Albany, NY.


16. 1, and the other fraelancen, welcomed the- return of our artwork u it
provided a source of income. However, Marvel used this u leverage and ti011di1ioned the
return of such artwork on our signing release forriJ.s drafted by Marvel ·s attOrneys. The
releases re-chara.cterized evezytblng published by Marv~I yeara earlier u "work made for
hire." I dicasree<f with this and doubted its legality. but ultimately signed the :rdcase as

fra-DlD !TDDIDT To- Pap DO&


JA1394
CaseCase 11-3333, Document 77,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 94 509516, Page33Page
Filed 03/25/11 of 3206 of 7
f"ROM : TYPESOURCE FAX NJ. : 6lli!l 371i!11211367 Mar. 24 21i!111 121!5: 2:3PM P6

Marvel would not have otherwise returned my orisinal artwodc.

I declare under penalty of pajury that to the best of my knowledge the


foregoing is true and Oon-eot.

Dated: March,.!t 2011

Received ~ar-24-11 12t26pa From-61D 37DD867 To- P..a DDS

JA1395
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1:10-cv-00141-CM-KNF 01/26/2012,
Document 94 509516, Page34Page
Filed 03/25/11 of 3207 of 7

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing was served electronically by

the Court’s ECF system and by first class mail on those parties not registered for ECF

pursuant to the rules of this court.

Dated: March 25, 2011 Respectfully submitted,


TOBEROFF & ASSOCIATES, P.C.

/s/ Marc Toberoff


Marc Toberoff
2049 Century Park East, Suite 3630
Los Angeles, California 90067
Tel. (310) 246-3333
Facsimile: (310) 246-3101
E-mail: mtoberoff@ipwla.com

Attorneys for defendants


Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby

6
JA1396
CaseCase 11-3333, Document 77,
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Document 509516,
95 Filed Page35Page
03/25/11 of 320
1 of 11

TOBEROFF & ASSOCIATES, P.C.


2049 Century Park East, Suite 3630
Los Angeles, CA 90067
Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com

Attorneys for Defendants Lisa R. Kirby, Barbara J.


Kirby, Neal L. Kirby and Susan M. Kirby

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

MARVEL WORLDWIDE, INC., Civil Action No. 10-141 (CM) (KF)


MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC, DECLARATION OF MARC
TOBEROFF IN SUPPORT OF
Plaintiffs, DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR
-against-
SUMMARY JUDGMENT
LISA R. KIRBY, BARBARA J. KIRBY,
[Hon. Colleen McMahon]
NEAL L. KIRBY and SUSAN M. KIRBY,
[ECF Case]
Defendants.

LISA R. KIRBY, BARBARA J. KIRBY,


NEAL L. KIRBY and SUSAN M. KIRBY,

Counterclaimants,

-against-

MARVEL ENTERTAINMENT, INC.,


MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC., MVL
RIGHTS, LLC, THE WALT DISNEY
COMPANY and DOES 1 through 10,

Counterclaim-Defendants.

JA1397
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Document 509516,
95 Filed Page36Page
03/25/11 of 320
2 of 11

I, Marc Toberoff, hereby declare as follows:

1. I am familiar with the facts set forth below and make this declaration in

further support of defendants’ opposition to plaintiffs’ Motion for Summary Judgment.

The facts set forth herein are known to me of my own personal firsthand knowledge and,

if called as a witness, I could and would testify competently thereto under oath.

2. I am an attorney and the founding partner of Toberoff & Associates, P.C.,

located at 2049 Century Park East, Suite 3630, Los Angeles, California, 90067.

3. My firm represents Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and

Susan M. Kirby (the “Kirbys”), the children of legendary comic book artist and writer

Jack Kirby.

4. On September 16, 2009, the Kirbys availed themselves of their right under

the Copyright Act to recapture their father’s copyright interests by serving 45 notices of

termination (“Termination Notices”) by first class mail on plaintiffs and all of their

known predecessors and successors-in-interest pursuant to 17 U.S.C. § 304(c).

5. Attached hereto as “Exhibit A” is a true and correct copy of one of the

“Fantastic Four” Termination Notices that my firm served on September 16, 2009.

6. The Termination Notices have varying “effective dates,” with the majority

of such dates falling between 2017-2019, for the most famous characters.

7. Attached hereto as “Exhibit B” are true and correct copies of excerpts

from the November 9, 2010 deposition of Mark Evanier, which I attended.

8. Attached hereto as “Exhibit C” are true and correct copies of excerpts

from the December 6, 2010 deposition of Mark Evanier, which I attended.

9. Attached hereto as “Exhibit D” are true and correct copies of excerpts

1
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from the January 10, 2011 deposition of John Morrow, which I attended.

10. Attached hereto as “Exhibit E” are true and correct copies of excerpts

from the January 7, 2011 deposition of Larry Lieber, which I attended.

11. Attached hereto as “Exhibit F” are true and correct copies of excerpts from

the October 21, 2010 deposition of John V. Romita, Sr., which I attended.

12. Attached hereto as “Exhibit G” are true and correct copies of excerpts

from the June 30, 2010 deposition of Neal Kirby, which I attended.

13. Attached hereto as “Exhibit H” are true and correct copies of excerpts

from the October 25, 2010 deposition of Susan Kirby, which I attended.

14. Attached hereto as “Exhibit I” are true and correct copies of excerpts from

the May 13, 2010 deposition of Stan Lee, which I attended.

15. Attached hereto as “Exhibit J” are true and correct copies of excerpts from

the December 8, 2010 deposition of Stan Lee, which I attended.

16. Attached hereto as “Exhibit K” are true and correct copies of excerpts

from the October 27, 2010 deposition of Roy Thomas, which I attended.

17. Attached hereto as “Exhibit L” is a true and correct copy of plaintiffs’

Response to Defendants’ First Set of Requests for Admission, served on December 20,

2010.

18. Attached hereto as “Exhibit M” is a true and correct copy of an

“Assignment” by Jack Kirby to Magazine Management Co., Inc. which was fully

executed on June 5, 1972.

19. Attached hereto as “Exhibit N” are true and correct copies of six large

pencil drawings by Jack Kirby that were in the possession of Larry Lieber and produced

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at his January 7, 2011 deposition in response to defendants’ subpoena. The drawings

were marked as Exhibit 5 at Mr. Lieber’s deposition, which I attended.

20. Attached hereto as “Exhibit O” is a true and correct copy of an article

entitled “Kirby’s Gamma Rays: Alpha to Omega!- An Ultra-Rare Find from 1962” from

The Jack Kirby Collector No. 41 (Fall 2004), which was marked as Exhibit 6 at the

January 7, 2011 deposition of Larry Lieber, which I attended.

21. Attached hereto as “Exhibit P” is a true and correct copy of an agreement

between Marvel Characters, Inc. and Lisa R. Kirby, as administrator of the estate of Jack

Kirby, dated July 7, 2006, which defendants produced in this action.

22. Attached hereto as “Exhibit Q” is a true and correct copy of an agreement

between Marvel Characters, Inc. and Lisa R. Kirby, as administrator of the estate of Jack

Kirby, dated December 23, 2008, which defendants produced in this action.

23. Attached hereto as “Exhibit R” is a true and correct copy of an agreement

between Marvel Characters, Inc. and Lisa R. Kirby, as administrator of the estate of Jack

Kirby, dated November 3, 2008, which defendants produced in this action.

24. Attached hereto as “Exhibit S” is a true and correct copy of an article

entitled “Fantastic Four #108: Jack’s Way” from The Collected Jack Kirby Collector,

Volume 1, which was produced by defendants in this action.

25. Attached hereto as “Exhibit T” is a true and correct copy of a “Request for

Payment” dated March 21, 1965 from Don Heck to Western Printing and Lithographing

Co. , which defendants produced in this action.

26. Attached hereto as “Exhibit U” are true and correct copies of excerpts

from the book “Five Fabulous Decades of the World’s Greatest Comics: Marvel” by Les

3
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Daniels, which was marked as Exhibit 38 at the December 8, 2010 deposition of Stan

Lee, which I attended.

27. Attached hereto as “Exhibit V” are true and correct copies of excerpts

from the book “Alter Ego Presents: John Romita…and All that Jazz!” by Roy Thomas

and Jim Amash, which was produced to defendants by John Romita in this action and

marked as Exhibit 6 at the October 21, 2010 deposition of Mr. Romita, which I attended.

28. Attached hereto as “Exhibit W” are true and correct copies of excerpts

from the book Jack Kirby Checklist Gold Edition, which defendants produced in this

action.

29. Attached hereto as “Exhibit X” are true and correct copies of excerpts

from the book The Art of Jack Kirby, which plaintiffs produced in this action.

30. Attached hereto as “Exhibit Y” is a true and correct copy of an article

entitled “Kirby Gets Cracked” from The Collected Jack Kirby Collector, Volume 5.

31. Attached hereto as “Exhibit Z” is a true and correct copy of an article

entitled “The Monster of Moraggia” from The Collected Jack Kirby Collector, Volume 3,

which defendants produced in this action.

32. Attached hereto as “Exhibit AA” are true and correct copies of checks

issued to freelance artist Dick Ayers by plaintiffs’ predecessors in 1974 and 1975, which

plaintiffs produced in this action.

33. Attached hereto as “Exhibit BB” is a true and correct copy of a check

purportedly issued to Jack Kirby in 1986, which plaintiffs produced in this action.

34. Attached hereto as “Exhibit CC” are true and correct copies of excerpts

from an article entitled “Would You Like to See My Etchings?” from the The Collected

4
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Jack Kirby Collector, Volume 2, which defendants produced in this action.

35. Attached hereto as “Exhibit DD” are true and correct copies of an

agreement between John Romita and Marvel Comics Group dated May 19, 1978 as well

as an agreement between Roy Thomas and Marvel Comics Group dated June 1, 1978,

which plaintiffs produced in this action.

36. Attached hereto as “Exhibit EE” is a true and correct copy of a draft

artwork release between Jack Kirby and Marvel Comics Group, which was produced by

defendants’ expert Mark Evanier in this action.

37. Attached hereto as “Exhibit FF” are true and correct copies of artwork by

Jack Kirby produced in this action.

38. Attached hereto as “Exhibit GG” is a true and correct copy an article

entitled “A Failure to Communicate: Part Two” from The Collected Jack Kirby Collector,

Volume 5.

39. Attached hereto as “Exhibit HH” are true and correct copies of excerpts

from an article entitled “Jack Kirby” from Comics Interview, produced by defendants in

this action.

40. Attached hereto as “Exhibit II” are true and correct copies of excerpts

from an article entitled “Hour Twenty-Five” from The Collected Jack Kirby Collector,

Volume 4, produced by defendants in this action.

41. Attached hereto as “Exhibit JJ” are true and correct copies of excerpts

from an article entitled “Jack Kirby Interview” from The Collected Jack Kirby Collector,

Volume 6.

42. Attached hereto as “Exhibit KK” are true and correct copies of excerpts

5
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from an article entitled “Wow-What an Interview” from The Collected Jack Kirby

Collector, Volume 2, produced by defendants in this action.

43. Attached hereto as “Exhibit LL” is a true and correct copy of the

Declaration of Donald S. Engle and exhibits “C,” “D,” and “E” attached thereto

submitted on November 12, 1980 in the action Stephen Gerber v. Cadence Industries

Corporation, et al, Case No. 80-3840, U.S. District Court, Central District of California.

44. Attached hereto as “Exhibit MM” are true and correct copies of excerpts

from a book entitled Stan Lee Conversations, produced by plaintiffs in this action

45. Attached hereto as “Exhibit NN” are true and correct copies of excerpts

from an article entitled “Jack Kirby A Celebration” from The Comics Journal No. 167,

produced by defendants in this action.

46. Attached hereto as “Exhibit OO” is a true and correct copy an article

entitled “Jack Kirby Interview” from The Collected Jack Kirby Collector, Volume 5.

47. Attached hereto as “Exhibit PP” is a true and correct copy an article

entitled “Kirby and Goliath: The Fight for Jack Kirby’s Marvel Artwork” from The

Comics Journal Library: Jack Kirby, produced by defendants in this action.

48. Attached hereto as “Exhibit QQ” is a true and correct copy a letter dated

November 19, 1985 from DC Comics to The Comics Journal, produced by plaintiffs in

this action.

49. Attached hereto as “Exhibit RR” is a true and correct copy of handwritten

notes signed by Jack Kirby produced by defendants’ expert Mark Evanier in this action.

50. Attached hereto as “Exhibit SS” are true and correct copies of an excerpt

from an article entitled “A Talk with Artist-Writer-Editor Jack Kirby” from The

6
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Collected Jack Kirby Collector, Volume 4, produced by defendants in this action.

51. Attached hereto as “Exhibit TT” is a true and correct copy an article

entitled “Jack Kirby Interview” from The Collected Jack Kirby Collector, Volume 1,

produced by defendants in this action.

52. Attached hereto as “Exhibit UU” are true and correct copies of excerpts

from the book Superhero Women by Stan Lee, which was Exhibit 42 at the December 8,

2010 deposition of Stan Lee.

53. Attached hereto as “Exhibit VV” are true and correct copies of excerpts

from an article entitled “Interview with Stan Lee” from the website ign.com, which was

Exhibit 43 at the December 8, 2010 deposition of Stan Lee.

54. Attached hereto as “Exhibit WW” are true and correct copies of excerpts

from the book Son of Origins of Marvel Comics (1975) by Stan Lee, which was Exhibit

34 at the December 8, 2010 deposition of Stan Lee.

55. Attached hereto as “Exhibit XX” are true and correct copies of excerpts

from the book The Fantastic Four by Stan Lee, which was Exhibit 41 at the December 8,

2010 deposition of Stan Lee.

56. Attached hereto as “Exhibit YY” are true and correct copies of excerpts

from the book Alter Ego No. 74, which was Exhibit 33 at the December 8, 2010

deposition of Stan Lee.

57. Attached hereto as “Exhibit ZZ” are true and correct copies of excerpts

from an article entitled “Jack Kirby-The Master of Comic Book Art” from The Collected

Jack Kirby Collector, Volume 1, produced by defendants in this action.

58. Attached hereto as “Exhibit AAA” are true and correct copies of excerpts

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from an article entitled “Stan Lee Interview- WBAI Radio NY-August 12, 1968,”

produced by defendants’ expert John Morrow in this action.

59. Attached hereto as “Exhibit BBB” are true and correct copies of excerpts

from the book Incredible Hulk by Stan Lee, which was Exhibit 35 at the December 8,

2010 deposition of Stan Lee.

60. Attached hereto as “Exhibit CCC” are true and correct copies of excerpts

from an article entitled “The Goldberg Variations.”

61. Attached hereto as “Exhibit DDD” are true and correct copies of excerpts

from an article entitled “Stan Lee Interview- WBAI Radio NY- March 3, 1967”.

62. Attached hereto as “Exhibit EEE” is a true and correct copy an article

entitled “Jack Kirby: Prisoner of Gravity” from The Collected Jack Kirby Collector,

Volume 3, produced by defendants in this action.

63. Attached hereto as “Exhibit FFF” is a true and correct copy of an article

entitled “Jack Kirby: A By-the-Month Chronology” for the periods 1950-1959 and 1960-

1964 from the online database marvelmasterworks.org.

64. Attached hereto as “Exhibit GGG” are true and correct copies of excerpts

of an article entitled “The Highs and Lows of Henry Pym” from The Collected Jack

Kirby Collector, Volume 4, produced by defendants in this action.

65. Attached hereto as “Exhibit HHH” is a true and correct copy of an article

entitled “They Were Aces” from The Jack Kirby Collector No. 25, produced by

defendants expert John Morrow in this action.

66. Attached hereto as “Exhibit III” is a true and correct copy of the

Declaration of Stephen Gerber and exhibit “3,” attached thereto submitted on December

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24, 1980 in the action Stephen Gerber v. Cadence Industries Corporation, et al, Case No.

80-3840, U.S. District Court, Central District of California.

67. Attached hereto as “Exhibit JJJ” are true and correct copies of excerpts

from the 1963 treatise Nimmer on Copyright by Melville B. Nimmer.

68. Attached hereto as “Exhibit KKK” is a true and correct copy of a letter

dated August 5, 1986 from Joe J. Sacco to Paul Levine enclosing an interview with the

Sales Tax Department for New York, produced by defendants in this action.

69. Attached hereto as “Exhibit LLL” is a true and correct copy of the cover

of Challengers of the Unknown, No. 1 , retrieved from the website “comics.org,” and

located at http://www.comics.org/series/1293/covers/.

70. I cross-examined Stan Lee at a deposition on December 8, 2010. After I

indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested

a break even though the parties had just recently already taken a break. At this break, on

my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently

speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon

resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which

Lee immediately responded without any hesitation or reflection.

I declare under the penalty of perjury that to the best of knowledge the foregoing

is true and correct.


/s/ Marc Toberoff
Dated: March 25, 2011 ___________________________
Marc Toberoff

9
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing was served electronically by

the Court’s ECF system and by first class mail on those parties not registered for ECF

pursuant to the rules of this court.

Dated: March 25, 2011 TOBEROFF & ASSOCIATES, P.C.


/s/Marc Toberoff
By: __________________________________
Marc Toberoff (MT 4862)

2049 Century Park East, Suite 3630


Los Angeles, CA 90067
Tel: 310-246-3333

Attorneys for defendants Lisa R. Kirby, Barbara J.


Kirby, Neal L. Kirby and Susan M. Kirby

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EXHIBIT A

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NOTICE OF TERMINATION OF TRANSFER


COVERING EXTENDED RENEWAL TERM

"FANTASTIC FOUR"

To:

Marvel Entertainment, Inc. The Walt Disney Company


c/o John Turitzin c/o Alan Braverman
Exec. Vice Pres. & General Counsel Sr. Exec. Vice Pres. & General Counsel
417 5th Avenue 500 South Buena Vista Street
New York, NY 10016 Burbank, CA 91521

Marvel Animation LLC Marvel Animation, Inc.


c/o Simon Phillips c/o Simon Phillips
Chief Executive Officer Chief Executive Officer
2711 Centerville Road, Suite 400 417 5th Avenue, 11th Floor
Wilmington, DE 19808 New York, NY 10016

Marvel Books LLC Marvel Characters B.V.


c/o Kenneth Long c/o John Turitzin
3257 Del Mar Avenue, Suite B Exec. Vice Pres. & General Counsel
Rosemead, CA 91770 417 5th Avenue, 11th Floor
New York, NY 10016

Marvel Characters B.V. Marvel Characters, Inc.


c/o John Turitzin c/o Ryan Potter
Exec. Vice Pres. & General Counsel Associate Counsel
2240 Palm Beach Lakes Blvd. 9242 Beverly Blvd., Suite 350
Ste. 101 Beverly Hills, CA 90210
West Palm Beach, FLA 33409
Marvel Enterprises LLC Marvel Enterprises, Inc.
c/o Ernest Antoine c/o John Turitzin
8810-C Jamacha Blvd., Ste. 359 Exec. Vice Pres. & General Counsel
Spring Valley, CA 91977 417 5th Avenue, 11th Floor
New York, NY 10016

Marvel Entertainment Group, Inc. Marvel Entertainment Group, Inc.


c/o John Turitzin clo John Turitzin
Exec. Vice Pres. & General Counsel Exec. Vice Pres. & General Counsel
10880 Wilshire Blvd., Suite 1400 417 5th Avenue
Los Angeles, CA 90024 New York, NY 10016

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Marvel Entertainment Inti. Ltd. Marvel Film Productions LLC


Europa House c/o John Turitzin
54 Great Marlborough St., London Exec. Vice Pres. & General Counsel
W1 F 7JU, England 417 5th Avenue
New York, NY 10016

Marvel Internet Productions, LLC Marvel Networks LLC


c/o Ryan Potter 1222 S. Serenade Avenue
Associate Counsel West Covina, CA 91790
9242 Beverly Hills Blvd., Ste. 350
Beverly Hills, CA 90210

Marvel Properties LLC Marvel Property DNY


404 N. Maple Drive, Suite 304 c/o John Turitzin
Beverly Hills, CA 90210 Exec. Vice Pres. & General Counsel
417 5th Avenue
New York, NY 10016

Marvel Property, Inc. Marvel Publishing, Inc.


c/o John Turitzin c/o John Turitzin
Exec. Vice Pres. & General Counsel Exec. Vice Pres. & General Counsel
417 5th Avenue 417 5th Avenue
New York, NY 10016 New York, NY 10016

Marvel Publishing LLC Marvel Sales Corp.


c/o Ryan Potter c/o John Turitzin
Associate Counsel Exec. Vice Pres. & General Counsel
1600 Rosecrans Avenue 417 5th Avenue
Manhattan Beach, CA 90266 New York, NY 10016

Marvel Studios Marvel Studios, Inc.


clo David Maisel c/o Ryan Potter
1600 Rosecrans, Bldg. 7, Suite 110 Associate Counsel
Manhattan Beach, CA 90266 9242 Beverly Hills Blvd., Ste. 350
Beverly Hills, CA 9021 0

Marvel Worldwide Consumer MVL Development LLC


Products c/o Ryan Potter
c/o John Turitzin Associate Counsel
Exec. Vice Pres. & General Counsel 9242 Beverly Blvd., Suite 350
417 5th Avenue Beverly Hills, CA 90210
New York, NY 10016

2
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MVL Film Finance, Inc. MVL Film Finance LLC


c/o Joshua B. Grode c/o Ryan Potter
1100 Glendon Avenue, 14th Floor Associate Counsel
Los Angeles, CA 90024 9242 Beverly Hills Blvd., Ste. 350
Beverly Hills, CA 90210

MRV, Inc. MVL International LLC


2711 Centerville Road, Suite 400 2711 Centerville Road, Suite 400
Wilmington, DE 19808 Wilmington, DE 19808

MVL Productions, Inc. MVL Productions LLC


c/o Joshua B. Grode c/o Ryan Potter
1100 Glendon Avenue, 14th Floor Associate Counsel
Los Angeles, CA 90024 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210

MVL Rights, Inc. MVL Rights LLC


c/o Joshua B. Grode c/o Ryan Potter
1100 Glendon Avenue, 14th Floor Associate Counsel
Los Angeles, CA 90024 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210

Squad Productions LLC Asgard Productions LLC


c/o Ryan Potter c/o Ryan Potter
Associate Counsel Associate Counsel
9242 Beverly Blvd., Suite 350 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210 Beverly Hills, CA 90210

Iron Works Productions LLC Iron Works Productions II LLC


c/o Ryan Potter c/o Ryan Potter
Associate Counsel Associate Counsel
9242 Beverly Blvd., Suite 350 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210 Beverly Hills, CA 90210

Incredible Productions LLC Assemble Line Productions LLC


c/o Ryan Potter c/o Ryan Potter
Associate Counsel Associate Counsel
9242 Beverly Blvd., Suite 350 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210 Beverly Hills, CA 90210

3
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Assembled Productions LLC Marvel International Character


2711 Centerville Road, Suite 400 Holdings LLC
Wilmington, DE 19808 c/o Ryan Potter
Associate Counsel
1600 Rosecrans Ave.
Building #7, Suite 110
Manhattan Beach, CA 90266

Marvel Toys Ltd. Vita-Ray Productions LLC


1/F., HK Spinners Industrial Bldg 9242 Beverly Blvd., Suite 350
Phase I &II Beverly Hills, CA 9021 0
800 Cheung Sha Wan Rd.
KLN
Hong Kong

Twentieth Century Fox Film Corp. Fox Filmed Entertainment


c/o Gregory Gelfan c/o Gregory Gelfan
Executive Vice President Executive Vice President
10201 W. Pico Blvd. 10201 W. Pico Blvd.
Los Angeles, CA 90035 Los Angeles, CA 90035

4
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PLEASE TAKE NOTICE that pursuant to Section 304(c) of the United States

Copyright Act (17 U.S.C. § 304(c)) and the regulations issued thereunder by the

Register of Copyrights, 37 C.F.R. section 201.10, the undersigned Lisa R. Kirby,

Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby, being the persons who own an

interest sufficient to terminate transfers pursuant to said statutory provisions, hereby

terminate all pre-January 1, 1978 exclusive or non-exclusive grants of a transfer or

license of the renewal copyright(s) (to the extent of author Jack Kirby's (a.k.a. Jacob

Kurtzberg) share in the ownership of the renewal copyright) in and to THE FANTASTIC

FOUR work(s) made by Jack Kirby and/or by any other person defined in 17 U.S.C. §

304(a)(1 )(C); and the undersigned set forth in connection therewith the following:

1. The names and addresses of the grantees and/or successors in title

whose rights are being terminated are as follows: Marvel Entertainment, Inc., 417 5th

Avenue, New York, NY 10016; The Walt Disney Company, 500 South Buena Vista

Street, Burbank, CA 91521; Marvel Animation LLC, 2711 Centerville Road, Suite 400,

Wilmington, DE 19808; Marvel Animation, Inc., 417 5th Avenue, 11th Floor, New York,

NY 10016; Marvel Books LLC, 3257 Del Mar Avenue, Suite B, Rosemead, CA 91770;

Marvel Characters B.V., 417 5th Avenue, 11th Floor, New York, NY 10016; Marvel

Characters B.V., 2240 Palm Beach Lakes Blvd., Ste. 101, West Palm Beach, FLA

33409; Marvel Characters, Inc., 9242 Beverly Blvd., Suite 350, Beverly Hills, CA 90210;

Marvel Enterprises LLC, 8810-C Jamacha Blvd., Ste. 359, Spring Valley, CA 91977;

Marvel Enterprises, Inc., 417 5th Avenue, 11th Floor, New York, NY 10016; Marvel

Entertainment Group, Inc., 10880 Wilshire Blvd., Suite 1400, Los Angeles, CA 90024;

Marvel Entertainment Group, Inc. 417 5th Avenue, New York, NY 10016; Marvel

Entertainment International Ltd., Europa House, 54 Great Marlborough St., London,

5
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W1 F 7JU, England; Marvel Film Productions LLC, 417 5th Avenue, New York, NY

10016; Marvel Internet Productions, LLC, 9242 Beverly Hills Blvd., Ste. 350, Beverly

Hills, CA 90210; Marvel Networks LLC, 1222 S. Serenade Avenue, West Covina, CA

91790; Marvel Properties LLC, 404 N. Maple Drive, Suite 304, Beverly Hills, CA 90210;

Marvel Property DNY, 417 5th Avenue, New York, NY 10016; Marvel Property, Inc., 417

5th Avenue, New York, NY 10016; Marvel Publishing, Inc., 417 5th Avenue, New York,

NY 10016; Marvel Publishing LLC, 1600 Rosecrans Avenue, Manhattan Beach, CA

90266; Marvel Sales Corp., 417 5th Avenue, New York, NY 10016; Marvel Studios,

1600 Rosecrans, Bldg. 7, Suite 110, Manhattan Beach, CA 90266; Marvel Studios,

Inc., 9242 Beverly Hills Blvd., Ste. 350, Beverly Hills, CA 90210; Marvel Worldwide

Consumer Products, 417 5th Avenue, New York, NY 10016; MVL Development LLC,

9242 Beverly Blvd., Suite 350, Beverly Hills, CA 90210; MVL Film Finance, Inc., 1100

Glendon Avenue, 14th Floor, Los Angeles, CA 90024; MVL Film Finance LLC, 9242

Beverly Hills Blvd., Ste. 350, Beverly Hills, CA 90210; MRV, Inc., 2711 Centerville

Road, Suite 400, Wilmington, DE 19808; MVL International LLC, 2711 Centerville

Road, Suite 400, Wilmington, DE 19808; MVL Productions, Inc., 1100 Glendon Avenue,

14th Floor, Los Angeles, CA 90024; MVL Productions LLC, 9242 Beverly Blvd., Suite

350, Beverly Hills, CA 90210; MVL Rights, Inc., 1100 Glendon Avenue, 14th Floor, Los

Angeles, CA 90024; MVL Rights LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA

90210; Squad Productions LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA

90210; Asgard Productions LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA

9021 0; Iron Works Productions LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA

90210; Iron Works Productions II LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA

9021 0; Incredible Productions LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA

6
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90210; Assemble Line Productions LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills,

CA 9021 0; Assembled Productions LLC, 2711 Centerville Road, Suite 400, Wilmington,

DE 19808; Marvel International Character Holdings LLC, 1600 Rosecrans Ave. Building

#7, Suite 110, Manhattan Beach, CA 90266; Marvel Toys Ltd., 1/F., HK Spinners

Industrial Bldg Phase I &II, 800 Cheung Sha Wan Rd., KLN, Hong Kong; Vita-Ray

Productions LLC, 9242 Beverly Blvd., Suite 350, Beverly Hills, CA 90210; Twentieth

Century Fox Film Corp., 10201 W. Pico Blvd., Los Angeles, CA 90035 and Fox Filmed

Entertainment, 10201 W. Pico Blvd., Los Angeles, CA 90035. Pursuant to 37 C.F.R.

Section 201.10(d), service of this notice is being made by first class mail.

2. Each work (individually, "Work;" collectively, the "Works") to which this

Notice of Termination applies was authored or co-authored by Jack Kirby (a.k.a. Jacob

Kurtzberg) and is identified as follows: The title of the original copyrighted work to

which this Notice of Termination applies is THE FANTASTIC FOUR, along with all

characters, story elements, and/or indicia appearing therein, which was first published

and embodied in the illustrated comic book story in The Fantastic Four, Vol. 1, No. 1,

cover-dated November, 1961, for which copyright was originally secured on August 8,

1961 in the name of Canam Publishers Sales Corporation under Copyright Registration

No. B917811. Renewal for the work was made on November 1, 1989, in the name of

Marvel Entertainment Group, Inc., claiming as proprietor of copyright, under Copyright

Renewal Registration No. RE0000443829. The remaining works to which this Notice of

Termination applies 1 are:

1
This Notice of Termination applies to each and every work (in any medium whatsoever,
whenever created) that was registered with the United States Copyright Office and/or published
within the Termination time window, as defined by 17 U.S.C. § 304(c) and the effective date of
this Notice of Termination, and which includes or embodies any character, story element, or
indicia reasonably associated with THE FANTASTIC FOUR or THE FANTASTIC FOUR stories,

7
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Title Name of Author/ Date CoQ~right CoQ~right


CoQ~right Secured Reg. No.
Claimanf
THE FANTASTIC FOUR IN 3 :

The Fantastic Four #2 Canam Publishers September 28, 1961 8928094


Sales Corporation
The Fantastic Four #3 " December 12, 1961 8942377

3. The grant(s) to which this Notice of Termination applies is (are) made in

that certain Agreement, between Jack Kirby (a.k.a. Jacob Kurtzberg}, on the one hand,

and Magazine Management Co., Inc., on the other hand, which was executed by Jack

Kirby on May 30, 1972 and executed by Magazine Management Co., Inc. on June 5,

1972. 4

such as, without limitation, Mr. Fantastic (a.k.a. Reed Richards), the Invisible Girl (a.k.a. Susan
"Sue" Storm), the Human Torch (a.k.a. Johnny Storm), the Thing (a.k.a. Ben Grimm), Namor the
Sub-Mariner, the Mole Man, the Skrulls, The Baxter Building, The Pogo Plane, Central City,
The Miracle Man, Doctor Doom, Galactus, the Silver Surfer, Uatu (a.k.a. The Watcher), Willie
Lumpkin, the Fantasticar, the Kree, the lnhumans, Adam Warlock, the Negative Zone, the Black
Panther, Wakanda, Alicia Masters, Franklin Storm, H.E.R.B.I.E., Agatha Harkins, Franklin
Richards, the Frightful Four, and Impossible Man, to the extent that such characters, story
elements or indicia appear in works subject to this Notice of Termination. Every reasonable
effort has been made to find and list herein every such THE FANTASTIC FOUR work.
Nevertheless, if any such work has been omitted, including but not limited to any
advertisements or other promotional materials relating to and published prior to the publication
of such THE FANTASTIC FOUR work, such omission is unintentional and involuntary, and this
Notice of Termination also applies to each and every such omitted work.
2
Pursuant to 37 C.F.R § 201.10(b)(1)(iii), this Notice includes the name of at least one
author of each work to which this Notice of Termination applies. The listing of any corporation as
author of any work is done per the practice shown in Copyright Office records, and is not to be
construed as an admission that any given work is or was a "work made for hire;" nor is anything
else herein to be construed as any such admission. Nothing contained in this Notice of
Termination shall be construed to in any way limit or waive any right or remedy that the
undersigned might have, at law or in equity, with respect to the subject matter hereof, all of
which is hereby expressly reserved.
3
"THE FANTASTIC FOUR IN:" means any and all works as described in footnote no. 1.
4
This Notice of Termination shall also apply to any alleged pre-January 1, 1978 implied
or express oral license by Jack Kirby, and/or by any other person defined in 17 U.S. C. §
304(a)(1)(C), of any copyright interest in THE FANTASTIC FOUR and/or of any character, story
element, or indicia reasonably associated with THE FANTASTIC FOUR or THE FANTASTIC

8
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4. The effective date of termination shall be December 17,2017. 5

5. No prior termination of the grant(s) of rights in the copyright of the

aforementioned Works for their renewal copyright term has been exercised by the

author, Jack Kirby, or his statutory heirs or representatives pursuant to Section 304(c) of

the United States Copyright Act (17 U.S.C. § 304(c)).

6. Jack Kirby (a.k.a. Jacob Kurtzberg) died on February 6, 1994. Mr. Kirby is

survived by his four children: Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan

M. Kirby. Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby, who own

and constitute more than one-half of author Jack Kirby's termination interest, are

executing this notice and constitute all of those persons entitled to exercise the

termination interest of Jack Kirby as to the grant(s) of the transfer(s) described herein-

above. To the best knowledge and belief of the undersigned, this Notice of Termination

has been signed by all persons whose signature is necessary to terminate said grant(s)

[continued on next page]

FOUR stories. Every reasonable effort has been made to find and list herein every grant of
transfer of the renewal copyright to any THE FANTASTIC FOUR work (as described in footnote
no. 1) by any person defined in 17 U.S.C. § 304(a)(1 )(C). Nevertheless, if any such grant has
been omitted, such omission is unintentional and involuntary, and this Notice also applies to
each and every such omitted grant.
5
The undersigned intend to serve successive notices of termination covering successive
THE FANTASTIC FOUR works in order that the effective date of termination applicable to such
works pursuant to 17 U.S. C. §304(c)(3) be in the earliest possible year.

9
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under Section 304(c) of Title 17, United States Code.

Date: September \C, 2009

(::~£ /~~
Lisa R. Kirby
c/o Marc Toberoff, Esq.
2049 Century Park East, Suite 2720
Los Angeles, CA 90067

arbara J. Kir
c/o Marc T oberoff, Es
2049 Century Park East, Suite 2720
Los Angeles, CA 90067

Neal L. Kirby
c/o Marc Tober , Es
2049 Century Park Eas , Suite 2720
Los Angeles, CA 90067

---=2--c~' ~ •~~-~\
Susan M. Kirby ~ (_)
c/o Marc T oberoff, Esq.
2049 Century Park East, Suite 2720
Los Angeles, CA 90067

10
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CERTIFICATE OF INVESTIGATION

I hereby certify that before serving the foregoing document described as NOTICE

OF TERMINATION OF TRANSFER COVERING EXTENDED RENEWAL TERM, and

pursuant to 37 C.F.R. Section 201.10(d), I caused a reasonable investigation to be

made on our behalf as to the current ownership of the rights being terminated, by

commissioning a search of U.S. copyright records, including a search of the records in

the U.S. Copyright Office.

I declare under penalty of perjury that the foregoing is true and correct. Executed

this ~day of September, 2009, at Los Angeles, California.

Marc Toberoff, Esq,


Toberoff & Associates, P.C.
2049 Century Park East, Suite 2720
Los Angeles, CA 90067

Counsel for Lisa R. Kirby, Barbara J. Kirby,


NealL. Kirby and Susan M. Kirby

11
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CERTIFICATE OF SERVICE

I hereby certify that I caused a true copy of the foregoing document described as

NOTICE OF TERMINATION OF TRANSFER COVERING EXTENDED RENEWAL

TERM to be served this J~li day of September, 2009, by First Class Mail, postage
prepaid, upon the following:

To:

Marvel Entertainment, Inc. The Walt Disney Company


c/o John Turitzin c/o Alan Braverman
Exec. Vice Pres. & General Counsel Sr. Exec. Vice Pres. & General Counsel
417 5th Avenue 500 South Buena Vista Street
New York, NY 10016 Burbank, CA 91521

Marvel Animation LLC Marvel Animation, Inc.


c/o Simon Phillips c/o Simon Phillips
Chief Executive Officer Chief Executive Officer
2711 Centerville Road, Suite 400 417 5th Avenue, 11th Floor
Wilmington, DE 19808 New York, NY 10016

Marvel Books LLC Marvel Characters B.V.


c/o Kenneth Long c/o John Turitzin
3257 Del Mar Avenue, Suite B Exec. Vice Pres. & General Counsel
Rosemead, CA 91770 417 5th Avenue, 11th Floor
New York, NY 10016

Marvel Characters B.V. Marvel Characters, Inc.


c/o John Turitzin c/o Ryan Potter
Exec. Vice Pres. & General Counsel Associate Counsel
2240 Palm Beach Lakes Blvd. 9242 Beverly Blvd., Suite 350
Ste. 101 Beverly Hills, CA 90210
West Palm Beach, FLA 33409
Marvel Enterprises LLC Marvel Enterprises, Inc.
c/o Ernest Antoine c/o John Turitzin
8810-C Jamacha Blvd., Ste. 359 Exec. Vice Pres. & General Counsel
Spring Valley, CA 91977 417 5th Avenue, 11th Floor
New York, NY 10016

Marvel Entertainment Group, Inc. Marvel Entertainment Group, Inc.


c/o John Turitzin c/o John Turitzin
Exec. Vice Pres. & General Counsel Exec. Vice Pres. & General Counsel
10880 Wilshire Blvd., Suite 1400 417 5th Avenue
Los Angeles, CA 90024 New York, NY 10016

12
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Marvel Entertainment Inti. Ltd. Marvel Film Productions LLC


Europa House c/o John Turitzin
54 Great Marlborough St., London Exec. Vice Pres. & General Counsel
W1F 7JU, England 417 5th Avenue
New York, NY 10016

Marvel Internet Productions, LLC Marvel Networks LLC


c/o Ryan Potter 1222 S. Serenade Avenue
Associate Counsel West Covina, CA 91790
9242 Beverly Hills Blvd., Ste. 350
Beverly Hills, CA 90210

Marvel Properties LLC Marvel Property DNY


404 N. Maple Drive, Suite 304 c/o John Turitzin
Beverly Hills, CA 90210 Exec. Vice Pres. & General Counsel
417 5th Avenue
New York, NY 10016

Marvel Property, Inc. Marvel Publishing, Inc.


c/o John Turitzin c/o John Turitzin
Exec. Vice Pres. & General Counsel Exec. Vice Pres. & General Counsel
417 5th Avenue 417 5th Avenue
New York, NY 10016 New York, NY 10016

Marvel Publishing LLC Marvel Sales Corp.


clo Ryan Potter c/o John Turitzin
Associate Counsel Exec. Vice Pres. & General Counsel
1600 Rosecrans Avenue 417 5th Avenue
Manhattan Beach, CA 90266 New York, NY 10016

Marvel Studios Marvel Studios, Inc.


c/o David Maisel c/o Ryan Potter
1600 Rosecrans, Bldg. 7, Suite 110 Associate Counsel
Manhattan Beach, CA 90266 9242 Beverly Hills Blvd., Ste. 350
Beverly Hills, CA 90210

Marvel Worldwide Consumer MVL Development LLC


Products c/o Ryan Potter
c/o John Turitzin Associate Counsel
Exec. Vice Pres. & General Counsel 9242 Beverly Blvd., Suite 350
417 5th Avenue Beverly Hills, CA 90210
New York, NY 10016

13
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MVL Film Finance, Inc. MVL Film Finance LLC


clo Joshua B. Grode c/o Ryan Potter
1100 Glendon Avenue, 14th Floor Associate Counsel
Los Angeles, CA 90024 9242 Beverly Hills Blvd., Ste. 350
Beverly Hills, CA 90210

MRV, Inc. MVL International LLC


2711 Centerville Road, Suite 400 2711 Centerville Road, Suite 400
Wilmington, DE 19808 Wilmington, DE 19808

MVL Productions, Inc. MVL Productions LLC


c/o Joshua B. Grode c/o Ryan Potter
1100 Glendon Avenue, 14th Floor Associate Counsel
Los Angeles, CA 90024 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210

MVL Rights, Inc. MVL Rights LLC


c/o Joshua B. Grode c/o Ryan Potter
1100 Glendon Avenue, 14th Floor Associate Counsel
Los Angeles, CA 90024 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210

Squad Productions LLC Asgard Productions LLC


c/o Ryan Potter c/o Ryan Potter
Associate Counsel Associate Counsel
9242 Beverly Blvd., Suite 350 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210 Beverly Hills, CA 90210

Iron Works Productions LLC Iron Works Productions II LLC


c/o Ryan Potter c/o Ryan Potter
Associate Counsel Associate Counsel
9242 Beverly Blvd., Suite 350 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210 Beverly Hills, CA 90210

Incredible Productions LLC Assemble Line Productions LLC


clo Ryan Potter c/o Ryan Potter
Associate Counsel Associate Counsel
9242 Beverly Blvd., Suite 350 9242 Beverly Blvd., Suite 350
Beverly Hills, CA 90210 Beverly Hills, CA 90210

Assembled Productions LLC Marvel International Character


2711 Centerville Road, Suite 400 Holdings LLC
Wilmington, DE 19808 c/o Ryan Potter
Associate Counsel
1600 Rosecrans Ave.
Building #7, Suite 110
Manhattan Beach, CA 90266

14
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Marvel Toys Ltd. Vita-Ray Productions LLC


1/F., HK Spinners Industrial Bldg 9242 Beverly Blvd., Suite 350
Phase I &II Beverly Hills, CA 90210
800 Cheung Sha Wan Rd.
KLN
Hong Kong

Twentieth Century Fox Film Corp. Fox Filmed Entertainment


c/o Gregory Gelfan c/o Gregory Gelfan
Executive Vice President Executive Vice President
10201 W. Pico Blvd. 10201 W. Pico Blvd.
Los Angeles, CA 90035 Los Angeles, CA 90035

I declare under penalty of perjury that the foregoing is true and correct. Executed

this )Jtday of September, 2009, at Los Angeles, California.

/~/--?~
e--------
Marc Toberoff, Esq.
Toberoff & Associates, P.C.
2049 Century Park East, Suite 2720
Los Angeles, CA 90067

Counsel for Lisa R. Kirby, Barbara J. Kirby,


NealL. Kirby and Susan M. Kirby

15
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EXHIBITB

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Page 1
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF NEW YORK
3

4 MARVEL WORLDWIDE, INC., MARVEL


CHARACTERS, INC., and MVL RIGHTS,)
5 LLC,

6 Plaintiffs,
CASE NO.
7 vs. 10 CV 141 (CM) (KNF)
Pages 1 - 192
8 LISA A. KIRBY, BARBARA J. KIRBY,
NEALL. KIRBY and SUSAN N. KIRBY,)
9

Defendants.
10

11

12 VOLUME I
13 VIDEOTAPED DEPOSITION OF MARK EVANIER
14 LOS ANGELES, CALIFORNIA
15 TUESDAY, NOVEMBER 9, 2010
16

17

18

19

20

21

22 REPORTED BY:
LESLIE L. WHITE
23 CSR NO. 4148
JOB NO. : 34167
24

25

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Page 2
1
li
2

3 Tuesday, November 9, 2010


4 9:42 a.m.
5

7 Videotaped deposition of MARK


8 EVANIER, Volume I, held at 515 South Flower
9 Street, 25th Floor, Los Angeles, California,
10 before Leslie L. White, CSR No. 4148.
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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Page 3 ,~
1 A P P E A R A N C E S:
2

3 WEIL, GOTSHAL & MANGES


4 Attorneys for Plaintiffs
5 767 Fifth Avenue
6 New York, New York 10153
7 BY: JAMES w. QUINN, ESQ. -and- !:'
(f
8 RAND I W. SINGER, ESQ.
9

10 TOBEROFF & ASSOCIATES


11 Attorneys for Defendants
12 2049 Century Park East
13 Los Angeles, California 90067
14 BY: MARC TOBEROFF, ESQ.
15

16

17

18

19 ALSO PRESENT:
20 CHRIS JORDAN, Videographer
21 ELI BARD, Deputy General Counsel
22

23

24

25

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Page 50
1 Q Okay.
2 A When I first met Jack, the very first day I
3 met Jack, he showed me things that he had submitted to
4 Marvel which they had not purchased from him, either
5 because they didn't want them or because they would not
6 meet his terms for them.
7 He had ideas for new characters that he said
8 Marvel could have if they gave him a better deal than he
9 was currently getting, and they apparently did not do
10 that.
11 He also had pages he had prepared for issues
12 of comics that he was working on with them, things he
13 was selling to them, that they had rejected and not paid
14 him for.
15 In fact, I asked him if I could have some of
16 those pages, and he declined because he was still hoping
17 that he could sell them to them again later.
18 BY MR. QUINN:
19 Q Now you said that -- first of all, remembering
20 back to when you were 17 years old, would you tell the
21 record precisely what the materials were that you claim
22 were submitted and rejected.
23 A Well, there were several categories of these.
24 Jack had drawn up a number of ideas for new characters.
25 He had done these beautiful little presentation pieces,

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Page 51 11

1 and he had shown them to Marvel and not received the


2 kind of offer that he felt was appropriate for them.
3 He had also prepared sketches of a revamp of
4 the character Thor, which he was working on, he was
5 doing stories of Thor for them at the time, a lot for
6 Thor.
7 And he had an idea for revamping the Thor
8 strip with a whole new approach, and he had prepared
9 sketches to show what that would look like, and he had
10 sent them to Marvel, and Marvel had said, "Well, we want
11 to do this approach, but we want to just pay you the
12 same rate we're paying you all along."
13 He said, "No, if you want to revamp Thor by my
14 new idea, I want a better deal for that," and they had
15 declined to pay him for that.
16 He also had pages for comic books that he had
17 recently drawn that Marvel had purchased from him where
18 they had rejected certain pages and sent them back to
19 him, and they had not paid him for them, he said.
20 And he had a pile of approximately a hundred
21 of those pages, which I thought were, you know,
22 beautiful, wonderful work, and I asked him, "Oh, could I
23 have one of those?" And then I asked him -- and he
24 said, "Well, no, I might find a way to sell them to him
25 later."

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Page 56
1 Q "Evanier," I'm sorry, Mr. Evanier.
2 As you sit here today, can you recall the
3 names of any of the characters that Kirby had sketched
4 for Marvel that they didn't accept?
5 A Urn --

6 MR. TOBEROFF: Misstates his testimony.


7 THE WITNESS: Yeah, my testimony was that Jack
8 had well, we're compounding some things here.
9 Jack had a pile of pages that had been
10 rejected for Thor comics or Captain America comics or
11 Fantastic Four comics, other stories, materials that he
12 was -- books in which his work was regularly appearing
13 at the time.
14 He had that pile of pages. So that would be
15 pages with Captain America and Thor and the Fantastic
16 Four as such on them.
17 He had another pile of pages of present
18 presentations of material -- new characters. Some of
19 those characters later, when he used those concepts in

20 other comics at DC, for example, one of the characters


21 was known as Darkseid, D-a-r-k-s-e-i-d; one of them was
22 known as Mr. Miracle; one of them was known as Orion,
23 0-r-i-o-n; one of them was known as Metron, M-e-t-r-o-n.
24

25 And he had submitted some of those to Marvel.

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Page 57
1 I don't know specifically which ones, but he said that
2 he had shown these to Marvel, people at Marvel, and they

3 had said, "Oh, we want to publish those," and he said,


4 "Well, you're not getting these for the same crummy page
5 rate you pay me. I must have a better deal for these,"
6 and they said, "No, we're not going to give you anything
7 above what we pay you now per page."
8 He also had to the pile of presentations for a
9 new version of Thor, and he wanted -- and he also had a I.~
~J

10 presentation for a new version of Captain America. And,


11 again, he submitted those to Marvel, or showed them to
12 the people there, and they said, "We want to use this
13 material, we just don't want to pay you any more for
14 it."
15 So the use of -- my reticence to use the word
16 "reject" here is because some of that material was
17 desired by Marvel, they just couldn't make a deal or
18 were unwilling to make a deal. Some of the material was
19 rejected. So I think I'm answering your question.
20 Q Fine. And you know what, I'm going to
21 separate out the two categories. One category is the
22 sketches and other ideas which Marvel you said and
23 this is all based on what Mr. Kirby told you; correct?
24 A What he told me and what he showed me. And I
25 later discussed some of this with people at Marvel also.

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Page 58
1 Q Who did you discuss this with, people at
2 Marvel?
3 A With Stan Lee, and I talked to Stan a lot
4 about Jack over the years and even when I first met him.
5 Q And did you specifically discuss with Stan Lee
6 these particular characters or sketches that you just
7 identified?
8 A No, I did not discuss those specifically with
9 Stan.
10 Q And other than what you just testified, can
11 you remember the names of any other characters that fall
12 into the category of having been discussed with Marvel,
13 and they indicated they weren't willing to pay anything
14 additional for them?
15 A There was a character called The Black Sphinx.
16 Sphinx as in "Sphinx." There was a character called
17 Lightray, all one word. L-i-g-h-t-r-a-y.
18 There were some unidentified characters that
19 didn't have names. They were designs that he wanted to
20 incorporate -- or he hadn't named them yet.
21 There was a great robot character that
22 really impressive design of a robot that I don't think
23 he named.
24 Q And none of these were ever published by
25 Marvel; correct?

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Page 61
1 the artwork he submitted?
2 A Yes. He would also just reject, say, "I don't
3 like the end of this story. Do something different with
4 it."
5 Q And, in fact, Mr. Kirby would then go back and
6 make a change or come up with a new ending; is that
7 fair?
8 A Yes, that is correct.
9 I might also add that Jack also complained to
10 me that pages were being rejected, but not returned to
11 him; that the art was -- he was not getting the pages
12 back that he felt he was owed.
13 Q When did he tell you this?
14 A 1969, when I first met him.
15 Q All this time when you were 17 years old?
16 A Yes.
17 Q Okay.
18 A And he subsequently talked about it in later
19 years.
20 Q And it's correct, is it not, that after the
21 changes were made they would be resubmitted for approval
22 by Mr. Lee?
23 A Jack would redo the material and send it back.
24 Q And when he redid the material and sent it
25 back, he would get his page rate; correct?

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Page 62 !':

1 A For the -- yeah, for the -- yes.


2 Q For the redone material.
3 A Well, he got the page rate for the story. I

4 mean, Jack's complaint was that when he -- if he had to


5 draw 26 pages for a 20-page story, he was only paid for
6 20 pages.
7 Q And that's a complaint he made to you?
8 A Yes. And his wife complained about that a lot
9 also.
10 Q Let me see if I have this right. He submits a
11 story, and Lee says to him, "You got to change four
12 pages"
13 A Yes. Excuse me, let me amend that. I don't
14 know that Stan would specifically say, "Change four
15 pages --"
16 Q Okay.
17 A he might just say
18 Q "I don't like this"?
19 A "I don't like the ending of the story. I

20 want something else."


21 Q Fine. And Kirby would go back, redo the
22 ending of the story, resubmit it and then get paid for
23 the story?
24 A Correct.
25 Q Okay. Now when did you meet Stan Lee for

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Page 74
1 "Well, here's what the Thor comic is like. Here's what
2 we're going to do with it."
3 He did not recall if he had written any
4 material before Jack drew it or not.
5 Q And what about with regard to Iron Man?
6 A Um, well, I had interviewed Don Heck, who was
7 the artist who drew the first Iron Man story, and I ran
8 by Larry my recollections of what Don had told me about
9 that.
10 I was trying to determine if Jack had done as
11 much -- had as much input into Iron Man as I tended to
12 think he had, and as Don believed he had. And Larry
13 didn't have any recollections that ran contrary to my
14 understanding --
15 Q I'm sorry, I don't want to cut you off.
16 What was Mr. Lieber's recollection with regard
17 to Iron Man?
18 A His recollection with regard to Iron Man is
19 that he was shown that -- that Stan showed him a cover
20 that Jack had drawn that designed the character's
21 initial look and feel and such. And Stan told him the
22 basic premise of the first story, which Jack had told me
23 had come from him.
24 And I asked Larry, "Did you know if that
25 was -- that storyline was Stan's idea or Jack's idea?"

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Page 75
1 And he said he did not know.
2 Q Okay. Um, you know a man by the name of
3 John Morrow?
4 A Yes, I do.
5 Q Have you discussed this litigation with
6 Mr. Morrow?
7 A I don't believe I have.
8 Q Have you discussed the issues relating to
9 Jack Kirby with Mr. Morrow?
10 A I have talked to John about Jack Kirby many
11 times.
12 Q And what has been the substance of the
13 discussions that you had -- you and Mr. Morrow had
14 relating to Jack Kirby?
15 A That's way too vague a question to answer.
16 Q Okay. When is the first time did you have a
17 discussion with -- when did you first meet John Morrow?
18 A I would say in the year after Jack passed
19 away.
20 Q Early '90s?
21 A Yes.
22 Q Do you know if Mr. Morrow had known Mr. Kirby?
23 A I don't think he ever met him.
24 Q And how did you meet Mr. Morrow?
25 A Jack's widow, Roz, called me and said,

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EXHIBIT C

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Page 1
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF NEW YORK
3

5 MARVEL WORLDWIDE, INC., MARVEL


6 CHARACTERS, INC., and MVL RIGHTS,
7 LLC,
8

9 PLAINTIFFS,
10

11 VS. )NO. 10 CV 141 (CM) (KNF)


12

13 LISA A. KIRBY, BARBARA J. KIRBY,


14 NEAL L. KIRBY and SUSAN N. KIRBY,
15

16 DEFENDANTS.
17

18

19 VIDEOTAPED DEPOSITION OF MARK EVANIER


20 LOS ANGELES, CALIFORNIA
21 DECEMBER 6, 2010
22

23

24 REPORTED BY: CHRISTY A. CANNARIATO, CSR #7954, RPR, CRR

25 JOB NO.: 34168

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Page 2 11

1 fi
fi
2 ~

[1
3

7 December 6, 2010
8 9:35 a.m.
9

10

11

12

13 Deposition of Mark Evanier, taken on behalf of


14 Plaintiffs, held at the offices of Paul Hastings,
15 515 S. Flower Street, 25th Floor, Los Angeles,
16 California, before Christy A. Cannariato,
17 CSR #7954, RPR, CRR.
18

19

20

21

22

23

24

25

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Page 3 :,

1 A P P E A R A N C E S
2

3 REPRESENTING THE PLAINTIFFS:


4 WEIL, GOTSHAL & MANGES
5 BY: JAMES W. QUINN, ESQ.
6 BY: RAND I W. SINGER, ESQ.
7
767 FIFTH AVENUE
8 NEW YORK, NY 10153
9 -AND-
10 HAYNES AND BOONE
11 BY: DAVID FLEISCHER, ESQ.
12 1221 AVENUE OF THE AMERICAS, 26TH FLOOR
13 NEW YORK, NY 10020
14

15 REPRESENTING THE DEFENDANTS:


16 TOBEROFF & ASSOCIATES
17 BY: MARC TOBEROFF, ESQ.
18 2049 CENTURY PARK EAST, SUITE 2720
19 LOS ANGELES, CA 90067
20

21 ALSO PRESENT:
22 ELI BARD, DEPUTY GENERAL COUNSEL MARVEL ENTERTAINMENT
23 CHRIS JORDAN, VIDEOGRAPHER
24

25

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Page 23
1 briefly met Martin Goodman. But between '58 and '63, I

2 think -- well, Stan Goldberg was partly on staff during

3 that time.
4 Q. How about Larry Lieber?
5 A. Larry Lieber was freelance during that period,
6 I believe. I don't believe he was on staff.
7 Q. But he was working from Marvel between '58 and
8 I 63?

9 A. He was in the freelance category, I believe.


10 MR. QUINN: I though I said either.
11
I'f'
MR. TOBEROFF: You can continue with your

12 answer because he asked for both freelance and at the


13 office.
14 A. In freelance, people who worked for Marvel --
15 excuse me.
16 People who did freelance work for Marvel
17 during '58 and '63 would include Jack Kirby, Steve Ditko,
18 Don Heck, Dick Ayers, Gene Colan, Vince Colletta, Russ

19 Heath, Stan Goldberg, Al Hartley. Leaving some people


20 out. These are people who I spoke to.
21 John Buscema did, I think, a few jobs for them
22 during this period. Bill Everett did a few jobs for them
23 during this period. Joe Sinott, Larry Lieber, Don Rico.
24 I think George Roussos. I'm missing somebody. Paul

25 Reinman, Artie Simek, Sam Rosen.

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1 I think Marie Severin did some freelance work
2 for them during this period, maybe a little later than
3 '63.
4 There's probably another name or two --
5 Q. Okay. That's fine.
6 A. -- I can't think of at the moment.
7 Q. That's fine.
8 Now, when you were first retained by Mr.
9 Toberoff, what did he say to you about specifically about
10 the opinions that he wanted you to render?
11 MR. TOBEROFF: Lacks foundation. Assumes
12 facts.
13 A. Well, I think the issue of me doing an expert
14 report was first mentioned by The New York Times before
15 Mr. Toberoff approached me. I declined to be interviewed
16 by The Times, and in an article they said Evanier would
17 not -- some form of Evanier didn't speak to us because
18 he'll probably be a witness in this case or an expert.
19 And I believe Mr. Toberoff said something like, Well, I
20 guess The New York Times was ahead of us.
21 Then he asked me to prepare an expert report,
22 and he said that he wanted me to cover -- he wanted me to
23 address the relationship -- the working relationship that
24 Jack had with Marvel, how he worked for them, what his
25 relationship to the company was.

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Page 31 1
,

1 at the bottom of page 4, and then over to page 5. And

2 you're talking about the period, I think, in the 30s to

3 the 60s where you say that "the comic book industry was
4 very much a fly-by-night industry." Do you see that?
5 A. Yes.
6 Q. And what did you mean by that?
7 A. Comic book publishers were -- well, the
8 industry was born out of leftovers from the pulp magazine
9 business, and the sheet music business, and a few other
10 publications.
11 And publishers were not very stable. They
12 came and went. They were small operations. They did not
13 project an air of stability to their freelancers. A lot
14 of people who worked for comic book companies weren't sure
15 they were ever going to get paid. A lot of checks
16 bounced.
17 There was always -- there was often a sense
18 that the business was always a year from ending. During
19 the 1950s, in particular, publishers came and went at an
20 alarming rate. Over the years I heard many, many stories
21 from artists and writers that they would go to an office
22 to turn in work, and the company wouldn't be there
23 anymore. Or they would get there and find out that the
24 books that they were submitting for had been canceled.
25 They started up titles and ended them at an alarming rate.

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1 If you go through even the major publishers in
2 that period, there are all these incidences of the
3 company, you know, clinging to the window ledge by its
4 fingernails, just barely holding on, threatening to close
5 down, closing down sometimes and reopening a couple weeks
6 later.
7 People being paid in cash. People being paid

8 under the table, kickbacks.

9 It was not a mature business in the sense that

10 the companies had stable foundations. There were

11 companies that didn't even have physical offices.

12 Somebody edited a line of comics out of their garage.


13 Q. And how did you come -- I'm sorry. You can
14 finish. I'm sorry.
15 A. Well, just that the first generation of comic
16 book publishers, until you had corporate takeovers in the
17 late 60s, were small operations from -- generally owned by

18 men who had stumbled into publishing. A large number of


19 comic book publishers were cases where someone had started

20 a company, gone bankrupt, and the printer had acquired the


21 assets of the company and kept it going in order to keep
22 their presses rolling.
23 So that never struck me as a mature way to
24 have a publishing firm when you're putting out product
25 just to keep the presses operative because you've got

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1 people there, printers there to pay.

2 And the companies were frequently pleading

3 poverty, lowering rates. It was a very it was a

4 business that very few people bet would be there in the

5 future.
6 It's amazing that it's still there. Even when
7 I got into comic books into the early 70s, there were
8 people, prominent people, in the industry predicting the
9 industry had less than five years to live and predicting
10 demise. And then you still had -- would have frequent
11 cases where you came in one day and they'd canceled half
12 the line or laid off half the staff. And there were
13 problems meeting payroll sometimes, problems paying
14 people.
15 So when I say "fly-by-night," that's kind of a
16 way of saying the industry was not very well grounded
17 ln
18 Q. How did you come to find out all these facts?
19 MR. TOBEROFF: Asked and answered.
20 A. All right. Well, since about 1966 or -67,
21 I've been talking to people who did comics. I was
22 fascinated by comic books. And I have interviewed just

23 about everybody I could meet who ever worked in comic

24 books, including, you know, people who ran xerox machines


25 or photostat cameras.

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1 interest of mine. And even before I thought I might work
2 in the comic book field, I was fascinated by it.
3 And just, you know, when I was in high school,
4 I found out that one of the kids in my chemistry class had

5 a father who had worked in comics. And I asked him, Could

6 I meet your father? And he didn't understand why I wanted


7 to, and his father didn't understand. But I went over one
8 day and spent the afternoon talking to his father about
9 working for publishers in the 1950s. His father had not
10 drawn a comic book since, well, in at least 10 years. I

11 just wanted to know what the business was like, how he was
12 treated, how he did what he did, how the work was
13 produced.
14 I don't know if I'm answering your question.
15 Q. Yeah. That's fine. Okay.
16 You mentioned at the top of page 5 in that
17 connection that: Comic book publishers did not see any
18 value in the product, in their product, beyond monthly
19 sales figures.
20 What's the basis for that statement?
21 A. Early on, this is something that was told to
22 me by the artists and the editors and people I talked to.
23 Jack Kirby talked to me greatly about that. Jack was in
24 comics almost from the beginning. And he was by no means
25 the only one who told me this, but he used to say that

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1 these guys had no imagination; that the publishers all

2 they thought about was this month's sales and that they

3 didn't realize that they were -- that they had the

4 underpinnings of a media conglomerate. Didn't use the

5 term at that time, obviously.


6 But these characters that they were doing
7 could be exploited in other fields. You know, he would
8 point to, in fact, Walt Disney was not interested in just
9 making Mickey Mouse cartoons. Walt Disney was interested
10 in expanding Mickey Mouse into all different fields and

11 doing toys and games and comic books and comic strips and

12 eventually a theme park. Whereas someone like Martin


13 Goodman at Marvel, who he cited frequently, was he thought

14 was a man of limited vision, limited imagination.

15 And he told stories about how he would go to

16 Martin Goodman and tell him what Marvel could be, how it
17 could expand. This is even before it was called Marvel.
18 And he got back very little response. It was just -- he
19 did not -- he always thought that Martin Goodman grossly

20 undervalued Marvel when he sold it in the late 60s.


21 Q. Now, your testimony is or your opinion is that
22 publishers didn't see any value ln the product beyond
23 monthly sales figures, but you previously testified, I
24 believe, and written that during this period of time the
25 publishers also would not negotiate with artists with

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1 successful or would not be successful. One of my key
2 opinions about Mr. Goodman is that he was frequently wrong
3 about that.
4 Q. But -- I will come back to that.
5 A. All right.
6 Q. You would agree, would you not, that if a book
7 had to be discontinued or was discontinued, it was because
8 the publisher concluded, rightly or wrongly, that it
9 wasn't going to make money?
10 A. There were occasional other reasons to
11 discontinue a comic.
12 Q. Putting aside the other reasons, one of the
13 reasons for sure was that the publisher made a
14 determination that he couldn't make money with a
15 particular comic book line; --
16 MR. TOBEROFF: Vague.
17 Q. -- correct?
18 A. Hold on. Putting aside the other -- putting
19 aside the other issues -- I'm sorry. The question is
20 confusing me.
21 Q. You testified that --
22 A. It sounds like you're asking me: Aside from
23 the fact that -- aside from the cases that he discontinued
24 because he wasn't making money wasn't the only reason he
25 discontinued wasn't that he was making money.

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1 self-explanatory, but --
2 Q. Let me focus for a second on when you say
3 "co-created," what do you mean by "co-created"?
4 A. Co-created would be when the creation would
5 probably be credited to more than one person. So each of
6 the creators would be a co-creator.
7 Q. Now, focusing on this period between 1958 and
8 1963, and the particular comic book characters that are
9 the subject matter at issue in this case, what conclusions
10 did you reach with regard to whether those characters were
11 created solely by Mr. Kirby or were created or co-created,
12 rather, by Mr. Kirby and others, focusing specifically
13 with regard to on Mr. Lee?
14 MR. TOBEROFF: Vague.
15 A. Let me have it one more time.
16 MR. QUINN: Yeah, read it back.
17 (The record was read.)
18 A. I believe that the characters -- let me put it
19 this way. I believe that the properties Fantastic Four,
20 The Hulk, Thor, several others here, the overall
21 properties were co-created by Stan Lee and Jack Kirby.
22 Q. And what opinions or conclusions did you reach
23 as to how that co-creation process worked?
24 A. My understanding is that the two of them would
25 sit down. They'd bring in rough ideas they might have had

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1 apart, throw them back and forth like any collaboration.
2 Jack would offer ideas for characters. Stan would offer
3 ideas for characters. Some ideas would get discarded.
4 Some ideas would get expanded upon. And then they would
5 emerge with some idea of what Jack was going to go home
6 and draw.
7 Jack would draw the story. If it was 20
8 pages, he would draw 20 pages of material. He would bring
9 it back. Assuming that Stan didn't -- assuming that Stan
10 was happy with what Jack brought in, Stan would then write
11 the copy, the dialogue, the captions on the pages. And
12 then the work would proceed from that through lettering,
13 and inking, and coloring, and publishing.
14 Q. Now, do you have any evidence or did you reach
15 any conclusion or have an opinion as to whether Kirby had
16 created or co-created any of these characters prior to
17 when he returned to Marvel in 1958? And we're focusing on
18 these particular characters.
19 A. On which particular characters were you
20 focusing on?
21 Q. The ones you mentioned.
22 A. The ones I mentioned? I believe Jack had
23 previously done, in some cases, antecedents that were a
24 starting point. He came in with ideas that were then
25 later shaped with input from Stan.

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1 Q. And then he would go out and draw?
2 A. Yes.
3 Q. And which ones would those be where he had a
4 starting point and then collaborated with Stan?
5 A. Well, I believe Jack had done several stories
6 prior to '58 about a version of Thor. And I believe he
7 brought in that idea, he suggested the idea. Or at the
8 very least, when the idea of doing Thor came up, he said,
9 Oh, I've done Thor. He had existing ideas about Thor
10 prior to '58 that he brought into the mix.
11 Q. Right. But he didn't actually draw the Thor
12 character prior to '58; correct?
13 MR. TOBEROFF: Misstates his testimony.
14 A. He draw a Thor character prior to 1958. Yes.
15 Q. No, let me be very precise. I didn't say a
16 Thor character. I said he didn't draw the Thor character,
17 the character that became Thor, prior to 1958; correct?
18 A. To my knowledge, he did not draw the Marvel
19 version of Thor prior to 1958.
20 Q. Any others, other than having had ideas with
21 regard to Thor-like characters?
22 A. Well, Jack had been pitching an idea prior to
23 coming back to Marvel that became -- that was a clear
24 precedent from his viewpoint for Sgt. Fury and the Howling
25 Commandos. He had an idea. He developed ideas as a

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1 newspaper strip for a war comic, a newspaper strip with --
2 about a sergeant who was very similar to the way Sgt. Fury
3 came out. So he brought that idea to some extent.
4 Q. And then he sat down with Stan Lee, and they
5 ultimately came up with what became Sgt. Fury?
6 A. Yes.
7 Q. Then he went and drew that?
8 A. He drew the first issue. Yes.
9 Q. After consulting with Mr. Lee?
10 A. I assume so. Yes.
11 Q. Other than those, can you think of anything
12 else?
13 A. Well, Jack had worked on a character called
14 Spiderman prior to 1958. He had worked -- there are
15 antecedents in The Fantastic Four to earlier work of his,
16 particularly "The Challenge of the Unknown," which he
17 started for DC.
18 Am I answering your question?
19 Q. Well, he himself and others in the Kirby
20 family have stated he did not create Spider-Man. You're
21 aware of that?
22 A. I am not aware of that.
23 Q. In fact, his drawing for Spiderman, original
24 drawing for Spiderman, was rejected by Mr. Lee, and he
25 asked Mr. Ditko to actually draw Spider-Man; correct?

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1 Q. He initially he had assigned Jack to do the --
2 this is your understanding -- initially assigned Jack to
3 do the Spider-Man drawings, looked at them, for whatever
4 reason didn't want to use them, and then assigned Ditko,
5 Steve Ditko, to actually do the drawings that were used.
6 A. Yes. And I believe that, for example, is not
7 in dispute.
8 Q. You mentioned that Jack had some idea for
9 Spiderman prior to or something like Spider-Man. Is that
10 based on, what, The Fly?
11 A. No. There was a character when Simon and
12 Kirby were working together in the 50s, they sold -- they
13 did a lot of presentations and pitches and characters they
14 took around to different publishers, and one of them was a
15 character called Spiderman or The Silver Spider. They
16 tried to sell it under both names.
17 And Jack had a title logo, a big piece of art
18 board on which was lettered "Spiderman by Joe Simon," the
19 logo that might be on the cover of the comic. And that
20 logo easily predated the Marvel Spider-Man. And Jack
21 would show that logo around and say: I brought this in and
22 showed this to Stan. I had this in my closet. And when
23 we were looking for new characters, I brought that in.
24 Where there was a piece of physical evidence
25 there that at least proves that Jack was talking about a

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1 words, before you answer any of his questions.
2 THE WITNESS: All right.
3 Q. Looking at page 98, line --
4 A. We're on Exhibit 5, page 98.
5 Q. Page 98, lines 15 through 18.
6 A. Okay.
7 Q. And you were asked the question this time not
8 by Mr. Fleischer but by somebody else that:
9 (Reading:) Now, Mr. Evanier, you consider
10 yourself an advocate for comic creators' rights;
11 isn't that correct?
12 You answer: I would say so. Yes.
13 A. Yes, I guess I did use the word "advocate"
14 there. Yes.
15 Q. It refreshes your recollection; correct?
16 MR. TOBEROFF: He used the word "advocate."
17 A. I agreed with Mr. Perkins' word.
18 Q. And you agree with that today.
19 A. Yes.
20 Q. You remain an advocate --
21 A. Yes.
22 Q. -- for comic creators' rights; right?
23 A. Yeah. Not exclusively, but yes.
24 Q. And fair enough. And you have taken it upon
25 yourself from time to time to right wrongs that you

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1 perceive to have taken place in the comic book community;
2 correct?
3 A. I believe we had an exchange about that.
4 Q. The very next page.
5 A. Yeah. The question was whether in the
6 question on line 18 -- I was confused as to whether in the
7 question on line 18 where Mr. Perkins -- I think it was
8 Mr. Perkins -- asked me, "And on occasion you've taken
9 yourself -- upon yourself to right perceived wrongs that
10 have taken place in the comic book --
11 THE REPORTER: I'm sorry, you're going to have
12 to slow down when you read.
13 THE WITNESS: I'm sorry.
14 THE REPORTER: That's okay.
15 THE WITNESS: Let me start over here. Let me
16 get a drink of water and start over.
17 A. All right. Starting over. In the question
18 Mr. Perkins asked me that commences at line 18, he said,
19 "And on occasion you've taken it upon yourself to right
20 perceived wrongs that have taken place in the comic book
21 community; is that right?"
22 I did not understand was he saying on behalf
23 of comic creators or rights -- wrongs of any kind.
24 Because I believe that I have at times been involved in
25 righting wrongs that have not been done to comic book

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1 unless it was approved either by Mr. Lee or by Mr. Goodman

2 or both of them.
3 A. As with any publisher, yes, the publisher and
4 editor have the final say whether they're going to publish
5 something or not.
6 Q. And you testified previously that from time to
7 time Mr. Lee, when he received materials from Mr. Kirby,
8 would comment on them, and he would make changes in them;

9 correct?
10 A. He would of course comment on them. As an
11 editor, his job is to comment on them. To make changes in

12 them? If he had purchased the pages from Mr. Kirby, he

13 would make -- he could do whatever he wanted with them


14 once he bought them.
15 Q. Didn't he, from time to time, we'd agree, he

16 was being paid -- Kirby was being paid on a per page rate?
17 A. Yes.
18 Q. And did Mr. Lee from time to time ask Mr.
19 Kirby to make changes or suggest changes in material that
20 he submitted?
21 A. There were times when Stan would say, I need
22 something else here. I can't take this story as it is.

23 You've got to fix this before we can buy it. Yes.


24 Q. And Mr. Kirby would, in fact, make those

25 changes and resubmit; correct?

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1 get a distributor to give you an advance, and you can keep

2 the costs of production of the item down, the risk ln


3 publishing comic books at times can be very minor. There
4 is a risk certainly, but
5 Q. So sometimes it's minor; sometimes it's major?
6 A. Yes. Yes.
7 Q. You stated in your report on page 5, I believe

8 it's page 5, in the middle of the paragraph that, "Writers


9 and artists were only paid if their work was accepted."
10 Do you see that?
11 A. Yes. 1!
~~
12 Q. What is the basis for that statement? Who
13 told you that?
14 A. Everybody. That was just the way people

15 understood it was done. That's the way when I got into

16 the business it was done. And when I asked about that,


17 they said that's how we do business.
18 Q. Would you dispute the testimony of Mr. Lee and

19 Mr. Romita and Mr. Thomas who all testified that in this

20 case that, in fact, writers and artists were paid for


21 whatever page they produced, whether or not it was
22 published?
23 MR. TOBEROFF: Objection. I'm not sure they

24 all said that.


25 A. Well, if the work was accepted and paid for,

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1 it might not be published. So the publication rarely,
2 and I'm not saying this never happened, rarely did
3 publishers keyed payment to the publication. What they
4 keyed it to, what they based it on, was the acceptance of
5 the work.
6 So if Romita, and Stan Lee, and the other
7 gentleman Roy Thomas, said that artists -- that they
8 always got paid for their work even if it wasn't
9 published, well, they didn't always pay for the work.
II
10 They rejected scripts. They rejected artwork. They made
11 -- they told artists to redo things if they accepted it,
12 but the fact they did not publish it did not cause them to

13 ask the artist to give the money back.


14 Q. So when -- is it your view that if an artist
15 is asked to redo a page or a panel or make a change that
16 that's a rejection?
17 A. It's a rejection of the work as it stands
18 unrevised.
I
19 Q. Is it fair to say that
20 A. If they -- excuse me. I'm sorry. Go ahead.
21 Q. Is it fair to say -- is it your view that if,
22 in fact, they redo the work and submit it, and they're
23 paid for it, then that work would not have been rejected?
24 I'm trying to understand what you mean by "rejected."
25 A. Well, I don't know if I introduced that word

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1 into this discussion. But you submit work to -- let me
2 give you an example.
3 I submitted scripts to DC Comics in 1968. The

4 editors -- to Charlton. And the editors there said --


5 sometimes sent them back and said we don't want this. It
6 was rejected. I was not paid for it.
7 Once or twice the editor said: If you can
8 come up with a better ending for this, I might buy it. So
9 I did a -- rewrote the ending and submitted the work
10 again.
11 Now, the first version that I submitted was
12 rejected, rejected being the opposite of accepted here.
13 The fact that some of the work didn't change doesn't
14 change the fact that the first version in totality was
15 rejected.
16 Q. So that's your understanding of "they were
17 only paid if the work was accepted"?
18 A. Yes.
19 Q. But would you agree with me that the practice
20 was if the work was accepted, the artist or writer was
21 paid, whether or not it was published?
22 A. That I would agree with. Yes.
23 Q. Now, you mention that there were times that
24 you brought things to DC Comics, I believe you said, and
25 some of the work was not accepted. Was that work that

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1 did as well, not just Marvel?
2 A. Yes.
3 Q. So they would be buying stories, artwork, et
4 cetera, to possibly use in the future, or not, based on

5 their own decision?


6 A. They would be buying material that they
7 expected to use, and it was -- I don't think they bought
8 anything without a very reasonable expectation that they
9 would print it soon. But what frequently happened was
10 that books would be canceled, and there would be stories

11 and work left over.

12 There were a number of instances in the case

13 of Marvel where a comic would be canceled, and there would

14 be two or three issues which had not been printed yet.

15 And Mr. Goodman would decide if they were not worth

16 publishing, then the stories would go on the shelf. And

17 then at some time later they might be taken off and

18 published. He found a place to use them.

19 Q. Are you aware as you sit here today of any

20 specific pages that Jack Kirby worked on back during this

21 '58 to '63 period that were not accepted?


22 A. The five pages or six he did of the first

23 Spider-Man story were not accepted.


24 Q. And was it your testimony that he was not paid

25 for that?

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1 A. He told me he was not paid for it. He asked
2 repeatedly for the pages to be returned, and they never
3 were.
4 Q. Other than Mr. Kirby telling you that, do you
5 have any basis one way or the other as to whether or not
6 he was, in fact, paid for it, those pages?
7 A. I think Sol Brodsky told me Jack was not paid

8 for them.
9 Q. And if Stan Lee testified under oath that he
10 was paid for them, you would just choose to believe Kirby?
11 A. Well, I would tend to believe that Stan didn't
12 know what frequently people were being paid for.
13 Q. And what's the basis of that?
14 A. Stan.
15 Q. -- statement?
16 A. Stan inoculated himself frequently from that
17 end of the business.
18 Q. How do you know?
19 A. Sol Brodsky was the guy who usually would take
20 care of making out the checks, or making out the check
21 request forms, and such. But you're dealing here with
22 something quite some time ago that people at the time
23 didn't pay much attention to.
24 Q. When you say "quite some time ago people
25 didn't pay much attention to," what do you mean? What did

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1 they not pay much attention to?
2 A. Stan would not have paid much attention to
3 whether or not Jack was paid for the story at the time.
4 Q. And is that statement by you or that's an
5 opinion? What is that based on?
6 A. My understanding of how Marvel was set up is
7 that Stan would try to distance himself from the actual
8 page rates and the checks. One of the things Sol Brodsky
9 complained to me about good naturedly and jokingly how
10 often he got stuck with being the bad guy for Stan and
11 telling people they weren't going to get paid for things,
12 or their rate was being cut, or their check was going to
13 be late. But he handled that type of thing.
14 And Stan was -- Stan was not in the office
15 very often, was not in the office every day. Other people
16 would handle the bookkeeping. He was not Stan was not
17 a bookkeeper. He was not a guy who spent a lot of time
18 filling out the forms.
19 And frequently, when I asked Stan questions
20 about the financial end of Marvel, he would just shrug and
21 say, "That's not my job. I didn't do that."
22 Q. He was in the creative end?
23 A. He was in the editorial end, creative end,
24 yeah. He was ln charge of the stories and artworks areas,

25 not in charge of the bookkeeping department.

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1 Q. You state in the paragraph that starts
2 "Goodman meanwhile" about a few lines down. "But until

3 the debut of Fantastic Four in 1961, few comics seemed to


4 be permanent fixtures."
5 What's the basis for that statement?
6 A. Looking at the history of publishing at

7 Marvel, they tended to cancel books very fast. The ones

8 that -- the ones that kept going for quite some time were

9 flukes.

10 And, you know, I have talked to an awful lot

11 of people about Martin Goodman, and there is a unanimity

12 of opinion about him from people who worked ln that time

13 period. And Stan Lee has said this on many occasions, and
14 Sol Brodsky said it, and Jack said it. It's a consistent

15 portrait of a man who was always trigger happy, ready to


16 cancel a comic when he got one bad sales report. Sales

17 were down, he would cancel a book.


18 Sol Brodsky told me that frequently, very

19 often, ln fact, what would happen would be that they would

20 get the sales figures in on, let's say, you know, Issue 22
21 of a comic. And Martin would go, oh-oh, it's down. Let's
22 cancel it. Then someone would tell him, well, we've got
23 Issues 22, 23. We've got the next three issues sitting on
24 the shelf. And he would decide, well, it would be cheaper
25 to publish them than to write that material off. So

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1 they'd publish those issues. And by the time they could
2 cancel the book and not have inventory left over, they ,,
3 would get some encouraging sales figures, so he would

4 uncancel the book.


5 And so very few comics at Marvel were ever
6 done with the expectation, well, this comic will be done a
7 year from now or two years from now, which was different
8 from quite a few of the other publishers. Most of the

9 major publishers had a few titles that were solidly

10 ensconced. And DC Comics was never worried they would


11 have to cancel Superman soon. Dell Comics was never
12 worried they would have to cancel Donald Duck soon.
13 But Martin ran his company with the idea that,
14 well, we may have to cancel all war comics and replace
15 them with Westerns, or replace all our love comics and
16 replace them with comic books about funny rabbits or
I
17 something.
18 Q. You're familiar with Marvel's horror titles?
19 A. The ones in the 50s?
20 Q. Yes.
21 A. Yes, I am.
22 Q. Amazing Fantasy and Journey into Mystery?
23 A. Amazing Fantasy was in the late 50s, early
24 60s. Yes.
25 Q. Those, that group of titles, in fact, did last

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1 for a long period of time, didn't they?
2 A. Amazing Fantasy was canceled after No. 15.
3 Q. Journey into Mystery?
4 A. Journey into Mystery changed into Thor. The
5 comic -- that comic did last for a long time. That was a
6 book that -- let me speak to a larger issue here.
7 During the 50s, they published dozens and
8 dozens of what they called Weird Comics. They were ghost

9 stories, horror stories.


10 Q. Right. ~
i'
11 A. And they had a huge inventory of them. And
12 they would change titles and cancel them. In those
13 particular books, they could cancel one title and stick
14 the material in another comic because there were no
15 continuing characters. So the material done for Marvel
16 Tales could be used in Uncanny Tales or could be used in
17 Adventures of the Weird World or whatever.
18 Those comics as a bulk went on for a long
19 time. Then they all got canceled because of the
20 negativism in the country about horror comics. And they
21 brought some of them back in a different format. They
22 used the same name during the -- the content of Journey
23 into Mystery changed. They just used that as a blanket
24 title. Originally it was a horror comic. Later it was a
25 science fiction comic. Later it was the comic starring

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1 Thor.

2 Then they turned the title Journey into

3 Mystery into the comic called Thor. The numbering of

4 Journey into Mystery blend into the numbering of Thor.

s And then later still, they brought back another comic

6 called Journey into Mystery, which reprinted old stories


7 from before Thor was in the comics. So it was not a
8 consistent ongoing title.
9 But they did have books that lasted awhile.
10 They just did not have comics that ever looked like they

11 would last for a while.


12 Q. You also say in your report that one of the

13 many casualties, referring to one of the publishing

14 companies that didn't make it in the 50s, was Mainline

15 Publications, which was a relatively new company, I guess,

16 that Simon and Kirby had put together in the mid 50s?
17 A. Yes.
18 Q. What did Mainline Publications actually
19 publish?
20 A. They published four titles. And I will tell
21 you the titles in a minute here. Police Trap, In Love,

22 Fox Hole. And there was a war comic called Fox Hole,
23 Police Trap, Bullseye, and In Love were the four titles.
24 And they were about to launch two new ones at the time
25 that --

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1 when it's placed, so we have to keep that area clean.
2 So --
3 Q. Oh, that's the top one. I see.
4 A. -- let's put Oden in the bottom.
5 Q. So he's essentially telling him to move some
6 of the stuff on the drawing?
7 A. Yes.
8 Q. Is that something that he typically did after
9 seeing some of the drawings?
10 A. This is very rare. I think I say on the next
11 page that they almost never even worked this way. This is
12 a very rare artifact. It's one of the few times Jack ever
13 did a cover sketch like this.
14 Q. But this is an example of Jack actually giving
15 some pretty specific directions -- of Stan giving Jack
16 some pretty specific directions with regard to at least
17 this particular drawing; right?
18 A. I don't know they're that specific. "Can this
19 be the Rainbow Bridge?" Leaving it up to Jack to decide.
20 "Put Oden here somehow if you can." That's
21 leaving it up to Jack to decide.
22 Usually a cover usually when an editor goes
23 over a cover sketch -- and Jack didn't do very many cover
24 sketches in his career -- usually the editor does a much
25 more detailed composition. They would have something done

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1 in the office. They do an overlay and have another artist
2 maybe move things around and show where to put them.
3 This is very undetailed, a very undetailed set
4 of suggestions.
5 Q. It's fair to say that it's an example, at
6 least, of Mr. Lee giving at least some direction to Mr.
7 Kirby about how he should do this drawing. Isn't that
8 fair?
9 A. Very little direction. I'm not sure what
10 you're trying to get me to say here.
11 Q. I'm not trying to get you to say anything.
12 I'm trying to get some testimony here. That's all. Say
13 whatever you want.
14 A. As we've established before, there were times
15 when Stan sent things back to Jack and said, This has to
16 be -- you know, I can't use this in the form it's in.
17 Let's do something different. This is an example of that,
18 I would suppose.
19 Are we done with this book?
20 Q. Yeah. Don't let it go too far away. But
21 yeah.
22 A. All right. Okay. Can I get a glass of water
23 at some point here?
24 MR. QUINN: Why don't you get it now.
25 MR. TOBEROFF: I will get it.

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1 A. Yes.
2 Q. And you are aware that Mr. Kirby, in signing
3 that, received monies as part of that deal; correct?
4 A. I'm aware that he received part of the money

5 he was promised.
6 Q. He received monies as a result of that?
7 A. I answered your question.
8 Q. Well, I'm going to say it really simply, Mr.
9 Evanier.
10 A. All right. ['
1\
11 Q. He received money in connection with the

12 Captain America settlement, didn't he?


13 A. He received some money.
14 Q. Right. And you say on page 14 at the top of

15 the page you conclude that.


16 (Reading:) It is extremely doubtful that
17 either Marvel or freelance artists such as Jack
18 Kirby, particularly between 1958 and 1963, had
19 any understanding or intent that their freelance
20 material created at home on their own steam, on
21 their own dime, and later purchased on a per page
22 basis after it was completed and approved for
23 publication, was somehow work made for hire.
24 What is the basis of that statement as to what is
25 Kirby's or other freelance artists' understanding or

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1 intent was back in 1958 to 1963?
2 A. Well, in 1978, around 1978, when both DC and
3 Marvel began to put the words "work for hire" into their
4 contracts and releases and paperwork, there was an outcry
5 in the comic book business about it because no one really
6 knew -- had seen that term before.
7 I was on a panel at a convention called "What

8 the Hell is Work for Hire?" Artists and writers did not
9 -- had not been confronted with that language before, did

10 not know what it meant. There was a lot of protest.


11 There were people circulating petitions refusing to sign
12 those documents.
13 DC Comics, at least, and maybe Marvel,
14 modified their original agreements because there was so
15 much protest from freelancers that they would not sign the
16 contracts as they were initially worded.
17 So the words "work for hire" suddenly came
18 into the comic book community, and people just were
19 baffled by them. They didn't know what it meant.
20 And so I am concluding that when the work was
21 done in '58 and '63, nobody thought the words "work for
22 hire" would ever apply to their work because they didn't
23 know those words.
24 Q. You do understand that the work for hire

25 concept was in the 1909 Copyright Act? Been around

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1 old picture of me.
2 MR. TOBEROFF: Very cherubic.
3 What number are we up to?
4 Q. 14. Can you just identify this document for
5 us, please.
6 A. This is a scan or xerox of my column that
7 appeared in Jack Kirby Collector No. Thirty-Eight
8 Q. And just a couple of questions on this. You
9 were being asked, I guess, a series of This is Jack FAQs.
10 A. Yes.
11 Q. Frequently Asked Questions. And one of them
12 is: Jack Kirby designed Spider-Man's custom.
13 And you answer: False. Steve Ditko designed
14 the distinctive costume we all know and love. Jack did
15 claim to have presented the idea to Stan of doing a hero
16 named Spiderman, no hyphen, who walked on walls and other
17 Spiderman themed powers, a claim which Stan formally
18 denies.
19 A. I think I said vociferously denies.
20 Q. Oh, I'm sorry. You're right. Vociferously
21 denies.
22 Tell me which version do you believe with
23 regard to Jack's supposedly bringing the idea of Superman
24 -- Spider-Man to Stan Lee? Do you believe Jack's version
25 or Stan's vociferous denial?

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1 A. As I stated earlier, I believe -- well, I
2 believe that Jack did bring in the idea of doing Spiderman
3 to Marvel.
4 Q. So you believe Jack's version?
5 A. I believe that part of Jack's version.
6 Q. That's the part I'm asking you about.
7 A. Okay. I believe that Jack did come in and
8 present that to Marvel.
9 Q. Okay. And that's based on your discussions
10 with Jack?
11 A. Based on my discussions with Jack, based on
12 the fact that he had this piece of artwork that said
13 Spiderman done by Joe Simon earlier.
14 Q. That's the one that you don't have any idea
15 where it is today; right?
16 A. I don't know where it is today, no, but
17 it's --
18 Q. Did you ever see the piece of work?
19 A. I held it in my hands.
20 Q. You did. And what happened to it? Do you
21 have any idea?
22 A. Jack kept it for many years, and at one point
23 when he was talking to Joe Simon, Joe said, "Hey, I'd like
24 that back." And he sent it back to Joe Simon. I think I
25 answered this question earlier. And the last I saw of it

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1 Silver Spider pages or printed the title logo.
2 Q. The title logo you're referring to?
3 A. The title logo that's the Spiderman that has
4 been printed a couple of times in different magazines.
5 Q. Do you have any idea which magazines when?
6 A. There was a magazine called Pure Imagination
7 that I know printed it. I'm not sure which issue. I
8 think it's probably been in some issue of the Jack Kirby
9 Collector, but I don't know specifically.
10 Q. You're familiar with the Iron Man; right?
11 A. Yes.
12 Q. And who is the artist on the first issue of
13 Iron Man?
14 A. Jack drew the cover, and Don Heck drew the
15 insides.
16 Q. And am I right that Lee was the one who came
17 up -- Stan Lee came up with the plot outline for the Iron
18 Man?
19 A. Stan says he did. Jack says he did.
20 Q. And you are at least aware -- by the way, who
21 did you decide to believe there, Stan or Jack?
22 A. Neither. I choose -- this is one of those
23 cases --
24 THE REPORTER: I'm sorry, I didn't hear what
25 you said, Mr. Quinn.

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1 Q. They're both lying, with a question mark.
2 A. I would not use the term "lying." I think they
3 both have their versions. And when I report the history,
4 I will report both of them and let the reader decide.
5 Q. You are aware that Larry Lieber was -- did --
6 was assigned to write the full script; correct?
7 A. Larry Lieber wrote a script. Yes.
8 Q. And he wrote the script before Heck drew the
9 -- before he drew the comic?
10 A. Yes.
11 Q. And what role does Kirby say he played in the
12 first issue of Iron Man?
13 A. Jack says he came up with the concept,
14 presented it to Stan as an idea that they would do
15 together. They talked it out. The idea was put on hold
16 because there was no place to do it at that moment. And
17 then subsequently Stan did it with Don Heck or put it into
18 Tales of Suspense and had Don Heck draw the first one. He
19 wasn't happy with what Heck did, so Jack came in and
20 started drawing it after that.
21 Let me finish. Jack also --
22 Q. Please. By all means finish.
23 A. And Jack also drew the cover of the first
24 issue, and on that cover he designed the look of Iron Man
25 and the idea of the character putting on this iron which

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1 is depicted in three small panels that appear on that
2 cover.
3 Q. This is what Kirby told you?
4 A. This is what Kirby told me and what Heck told
5 me.
6 Q. And it's your understanding that Kirby did the
7 cover before Heck drew the panels?
8 A. That's what Kirby told me, and that's what
9 Heck told me.
10 Q. And is it also your understanding with regard
11 to the script that Lieber Larry was working from a plot
12 that Stan had given him?
13 A. Larry says he got the plot from Stan.
14 Q. Do you have any reason to disbelieve Larry
15 about that?
16 A. No. I just don't know how much of the plot
17 that Stan gave him came from Jack.
18 Q. You don't know one way or the other; right?
19 A. I don't know. I assume that some of it came
20 from Jack because Jack had already drawn the cover by that
21 point.
22 Q. You assume that because he drew the cover.
23 But other than, because he drew the cover, do you have any
24 other basis to believe that he contributed to the plot?
25 MR. TOBEROFF: Asked and answered.

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1 A. Don Heck believed Jack had contributed to the
2 plot.
3 Q. And that was based on discussions you had with
4 Don Heck?
5 A. Yes.
6 Q. Is Don Heck alive?
7 A. No, he's not.
8 Q. You did write in the King of Comics, page 273,
9 Iron Man written at first by Larry Lieber and drawn
10 initially by Don Heck. However, Lieber was working from a
11 plot Stan had given him, and Heck was drawing from a cover
12 and some concept sketches by Kirby.
13 When you wrote that Lieber was working from a
14 plot Stan had given him, you didn't mention that Kirby had
15 anything to do with the plot there when you wrote it, did
16 you?
17 A. No, not in the way I phrased it there.
18 Q. And then it goes on to say, "Stan wasn't happy
19 with the first story, so he immediately turned the art
20 chores over to Kirby, and Jack was the answer to all
21 problems."
22 A. Yes.
23 Q. Right. So that was another instance where
24 Stan decided to reassign work because he was unhappy?
25 A. Yeah.

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Page 1
1 JOHN MORROW 1
2 UNITED STATES DISTRICT COURT
3 SOUTHERN DISTRICT OF NEW YORK
4 ------------------------------x
5 MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC.,
6 and MLV RIGHTS, LLC,
7 Plaintiffs,
8 v. Case No. 10-141-CMKF
9 LISA R. KIRBY, BARBARA J.
KIRBY, NEAL L. KIRBY and
10 SUSAN N. KIRBY,
11 Defendants.
12 ------------------------------x
13

14 Video Deposition of JOHN MORROW


15 (Taken by Plaintiffs)
16 Raleigh, North Carolina
17 January 10, 2011
18

19

20

21

22

23 Reported by: Marisa Munoz-Vourakis -


RMR, CRR and Notary Public
24

25 TSG JOB NO. 35702

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1 JOHN MORROW 2
2 APPEARANCE OF COUNSEL:
3 For the Plaintiffs:
4 DAVID FLEISCHER, ESQ.
5 Haynes and Boone, LLP
6 1221 Avenue of the Americas
7 New York, NY 10020
8

10

ll Also Present: ELI BARD,


VP - Deputy General Counsel, Marvel
12

13

14 For the Defendants:


15 MARC TOBEROFF, ESQ.
16 Toberoff & Associates
17 2049 Century Park East
18 Los Angeles, CA 90067
19

20

21

22 Also Present: DeANDRAE M. SHIVERS, Videographer


23

24

25

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2

3 Video Deposition of JOHN MORROW, taken by


4 the Plaintiffs, at Smith Anderson, 2500 Wachovia
5 Capital Center, 150 Fayetteville Street, Raleigh, North
6 Carolina, on the lOth day of January, 2011 at 8:43
7 a.m., before Marisa Munoz-Vourakis, Registered Merit
8 Reporter, Certified Realtime Reporter
9 and Notary Public.
10

ll

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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2 interview in front of me to see, but I'm quite certain
3 he said that in that interview, that he was not working
4 from full script.
5 Q. At any point between '58 and '63?
6 A. I'm certain he would have said that in that
7 interview, yes.
8 Q. Is there any other anecdotal evidence,
9 other than what you've just described in the last
10 couple of minutes, that would bear upon whether or not
11 Mr. Kirby was working from scripts during the periods
12 '58 through '63 at any time?
13 A. '58 to '63? Well, I would need to get in
14 front of some of those actual pages and see what the
15 margin notes are. There could be some anecdotal
16 evidence in there. That's a pretty telltale sign, not
17 the only one, but a very convincing sign when Mr. Kirby
18 is putting margin notes around the panels, obviously,
19 he is putting them there so that the writer, Stan Lee
20 or Larry Lieber or whoever, would know what he's doing
21 on the story. If you were provided a full script,
22 there would be no need for those.
23 So, but I'd need to actually get some pages
24 in front of me from that kind of example of margin
25 notes on those.

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2 because I thought it kind of wasn't pertinent, and then


3 you guys would think I'm some kind of expert on
4 work-for-hire, which I'm not. So that's why I took

s that out.
6 Q. Did something prompt you to take it out?
7 A. No, just rereading back over it.
8 Q. So in a subsequent draft, this sentence was
9 modified or deleted?
10 A. I believe so. I don't have the -- I

11 thought this was the final version, but I guess it's


12 not.
13 Q. The last phrase of that sentence that I
14 just read, where it says Marvel finally paid Jack
15 Kirby's estate $325, what did you mean by finally
16 there?
17 A. Because he had not been paid for it when it
18 was originally drawn.
19 Q. And you know that how?
20 A. Because rejected work, all the historical
21 data shows rejected and redrawn work or rejected work
22 wasn't paid for, and that redrawn work wasn't like, you
23 know, paid again for.
24 Q. And what historical data are you referring
25 to to support that statement?

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2 A. A lot of, I guess, you might call it
3 anecdotal evidence. But there's -- I think I get into
4 that elsewhere in the report. But there's a lot of
5 rejected pages over the years that Kirby had in his
6 collection. If they were -- you know, if they were
7 paid for, Marvel would have kept the physical pages
8 there at the office to use for, you know, inking
9 sample, inking tryouts and things like that.
10 In addition to that, there was a lot of
11 instances where Kirby had rejected pages that he might
12 have repurposed for a different project, for a
13 different company even, and, of course, if Marvel had
14 paid for that, that doesn't seem like that would have
15 happened.
16 I know there's -- we published some Hulk,
17 some very early Hulk pages that actually, I think Larry
18 Lieber provided through an art dealer that were
19 rejected from one of the very early Hulk stories, which
20 was a great find. We couldn't believe when that art
21 dealer turned up those pages, he said Larry had them in
22 his closet all these years and that Marvel had rejected
23 them and Jack threw them in the trash and he rescued
24 them from the trash, I think, something like that. And
25 that would say to me that if they were rejected and

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2 Marvel paid for them, Jack wouldn't have had the
3 opportunity to throw them in the garbage. Marvel would
4 have done something with them.
5 Q. Am I correct that you don't have any
6 firsthand knowledge about whether or not Jack was paid
7 for the pages you're referring to in this sentence?
8 A. Well, by firsthand knowledge, was I there,
9 for instance? No, of course not. I was much too young
10 to be there. You know, I'm not privy to Marvel's
11 books, so, no, I can't say definitively that it was on
12 the books that he was paid.
13 I know when we did -- Marvel wanted to do a
I
14 book called Fantastic Four Lost, which was -- I
15 assembled an unused Fantastic Four story from various
16 collector's collections. They had scattered pieces of
17 this story that Marvel -- Jack had drawn in, I guess,
18 1969 but Marvel never published.
19 Marvel read my article in the Kirby
20 Collector and said oh, we should get that together and
21 finish it and publish it.
22 So when they contacted me about doing all
23 of that, I told them that, you know, unless there's
24 some reason to believe that they paid for that
25 originally that, you know, no, they're not going to get

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2 the article for free. They are going to have to pay
3 the Kirbys for that and finally pay for the page use,
4 which they did, and that's what this was. They finally
5 paid the $325 per page to use that unpublished story.
I.
6 Q. Are you aware of testimony given by Stan
7 Lee in this case to the effect that whether pages were
8 rejected or not, if he had asked Jack to draw a story,
9 he would pay for it? Do you have any reason to
10 contradict a statement to that effect by Stan Lee?
11 MR. TOBEROFF: Asked and answered.
12 A. Yeah, I do, I mean, there's a lot of
13 historical references to artists saying when their work
14 got rejected, they didn't pay for it. I think I
15 included one in here from John Romita talking about
16 when Stan canceled a story on him, he didn't get paid
17 for those.
.
18 But there's a lot of other instances
19 throughout all the stuff I've read and published over
20 the years, where people say things got rejected, we
21 didn't get paid for it, or, you know, Stan was always
22 asking me to make changes on things, and I didn't get
23 paid for it.
24 So, yeah, I've got a major reason to
25 dispute that.

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2 the public at large and to the then current Marvel
3 Comics editorial department."
4 What is the factual basis -- well, first of
5 all, let me ask you, is it intended by you to be a
6 statement of fact that the then current Marvel
7 editorial board was unaware of the unused story?
8 A. Yes.
9 Q. And that's a statement of fact?
10 A. Yes.
11 Q. And how -- what is the basis for that

12 statement of fact?
13 A. The main basis for that is Tom Brevoort,
14 who is an editor, or still is an editor up at Marvel,
15 when he contacted me about reassembling that story, the
16 sense I got from our discussion was that prior to my
17 doing an article in 1996, they didn't even know about
18 that story.
19 As far as the public at large, same thing,
20 all of these letters of comment that we got to our
21 publication, after we published that article or
22 actually after I published that article, we said wow,
23 we had no idea there was an unused Fantastic Four story
24 out there. The fact that Marvel billed this
25 publication as this lost Fantastic Four story further

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2 leads me to conclude that no one knew about this thing.
3 So, yes, I intend that as a statement of
4 fact.
5 Q. Now, apart from Tom Brevoort, do you know
6 who the other members of Marvel Comics were part of the
7 editorial department at the time?
8 A. I'm sure I was familiar with a few of them,
9 but Tom was one of the key people there and certainly
10 if they knew what was going on, Tom would have known.
11 Q. That's a presumption on your part?
12 A. You could say that, sure.
13 Q. You don't know whether or not --
14 A. I did not speak to every member of Marvel's
15 editorial department and get a sense from them whether
16 they knew about this story. But Tom is the editor up
17 there who has the most thorough knowledge of, you know,
18 Marvel's history and comics history and what they
19 published in the past, and I don't think it's any
20 stretch to think that if Tom wasn't aware of this, that
21 anyone else up there, who is much younger and less
22 knowledgeable about it, would have.
23 MR. TOBEROFF: How do you spell his
24 name?
25 THE WITNESS: Brevoort,

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2 Vassallo has done a lot. What are some of the other


3 authors? I'm not coming up with the names off the top
4 of my head, but Roy deals with a lot of different
5 contributors.
6 Q. So when you include this statement in your
7 report, you're basically reflecting information you
8 derived from research done by Roy Thomas and the other
9 individuals that you mentioned?
10 A. Yes, and stuff we published, stuff that has
11 been published in various other history books as well.
12 It's my overall sense of what I've absorbed over the
13 years from my research.
14 Q. How would you determine whether Martin
15 Goodman had a -- or confirmed the reliability of that
16 statement that -- I assume what you mean by primarily
17 is at least 51 percent of his business was publishing
18 mens' magazines?
19 A. Urn-hum.
20 Q. Do you know what other businesses he had?
21 A. Other than comics? He published paperback
22 books as well. Let's see, what else did he do? I'm
23 sorry, it's just not coming to me at this point, but.
24 Q. Okay. And a little ways down in that
25 paragraph you say the comic book industry grew out of

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2 the great depression. What do you mean by that?
3 A. Well, people were looking for cheap,
4 inexpensive entertainment. They had very little money
5 to spend and along came comics at a dime apiece, in
6 some cases a nickel apiece. You would get a very
7 healthy dose of entertainment from those. They were
8 done in very exciting and sometimes lurid ways. They
9 appealed to the mass public pretty well.
10 So they grew out of the hard times. People
11 could afford them and also the creators working on them
12 could turn out a lot of work and for very little money,
13 so the publishers could afford to do them.
14 ::
Q. And you go on in that same sentence to say
15 and was hardly an industry at all, referring to the
16 comic book industry. What do you mean by that?
17 A. That it was done on a shoestring. It
18 started out initially it wasn't even original stories.
19 The first comic books were collections of newspaper
20 comic strips that they would cut up and paste up on
21 pages and print in booklets. That was just sort of an
22 afterthought. Hey, I wonder if they would sell,
23 because newspaper strips were very popular at that
24 time. It was a very hodgepodge group of publishers.

25 It wasn't like today. You would have Time,

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2 Incorporated that owns Warner Brothers that publishes
3 an arm of comic books. Companies were springing up
4 literally overnight. You would see them stick around
5 sometimes for just a few months and then fade away. It
6 was just not an organized industry in any way,
7 particularly early on.
8 Q. Now, this section of the report, was this
9 one of the sections of the report that you drafted
10 primarily, or was this a section of the report that was
11 drafted primarily by someone in Mr. Toberoff's office?
12 A. This was drafted primarily by them.
13 Q. And in the last sentence of that paragraph,
14 you say: Comic books were considered the lowliest form
15 of publishing in both cultural and business terms.
16 Considered by whom?
17 A. Oh, by pretty much anybody; the publishers
18 themselves, because they used the absolutely cheapest
19 stock they could get to print these books on and the
20 general public. Even to today, comics still have sort
21 of a negative connotation for more affluent people, for
22 more educated people. They think comics are for the
23 lowly educated to read.
24 Q. When you say in both cultural and business
25 terms, when you use the term business there, are you

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2 referring to profitability?
3 A. Yes. In general, you are talking a low
4 ticket item, and one that was returnable as well. So,
5 you know, bang it out, don't worry about doing too much
6 terribly original creative work and get onto the next
7 month's release so you could make some more money.
8 Q. Were you intending to say it was the
9 lowliest form of publishing in the sense that it wasn't
10 as profitable as other publishing?
11 A. In many instances.
12 Q. In all instances?
13 A. No, of course not. When you have a big I
14 hit, then you'd make a lot of money. But the big hits
15 were few and far between really until Superman carne
16 along.
17 Q. Now, the next sentence in the second
18 paragraph of this section says, Goodman's relative
19 Stanley Lieber, a/k/a Stan Lee, started in 1939 as an
20 office assistant at Timely Comics, is that a statement
21 of fact?
22 A. Oh, absolutely, yes.
23 Q. What is the basis for that specific fact?
24 A. Any number of historical documents. Stan's
25 own words. He started working for Martin Goodman as an

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2 Q. So all this occurred in 1949?
3 A. Yes.
4 Q. And the next paragraph of your report jumps
5 to 1954. What happened between '49 and '54 with regard
6 to Timely or Mr. Goodman's publications?
7 A. Between '49 and '54, they started using up
8 the surplus art that was in that closet. A lot of
9 comic scholars have gone through and tried to compare
10 the little job numbers that are printed in the art on
11 the issues that it was published, to see which ones
12 were done as "new" stories for this publication during
13 that time period, and which ones were surplus stories
14 that were just finally getting published.
15 So after some period of time, and we're not
16 sure of the exact amount, the surplus art was used up
17 and they resumed getting work from a lot of the same
18 employees but on a freelance basis.
19 Q. Now, in this paragraph that begins in 1954,
20 it looks like the third sentence says, most comic book
21 companies shuttered, and those that remained, like
22 Timely, fired nearly all of their employees and was
23 barely afloat.
24 What employees are you talking there?
25 A. They were firing other employees, a lot of

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2 would call them when it was time for an assignment and
3 try to round them back up. I think Dick Ayers, for
4 instance, had taken a job working at the post office
5 and got a call from Stan Lee saying hey, we're taking
6 new assignments now.
7 Q. Were Ayers and the other freelancers you're
8 referring to here exclusive to Marvel at that time?
9 A. Well, no, at this point, they weren't with
10 Marvel at all. I mean, they were out of work.
11 Q. But when they got an assignment, did that
12 imply that they couldn't take assignments from other
13 publishers?
14 A. No, I don't think so. I'm certain not.
15 They were probably working where they could.
16 Q. And then in the next sentence you say,
17 however, it had no financial obligation to purchase
18 such freelance material and no ongoing financial
19 commitment to such freelancers.
20 With respect to your statement that it had
21 no financial obligation to purchase such freelance
22 material, is that a statement of fact or opinion?
23 A. Well, I mean, my entire report is opinion
24 based on fact. So, I mean, we're kind of getting back
25 to what I was saying earlier before the break. I mean,

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2 fact and opinion are intertwined here. I've read facts


3 over the years, and I formed my opinions based on
4 those. So that's my opinion based on fact.
5 Q. When you talk in terms of financial
6 obligation, you are talking a legal financial
7 obligation, correct?
8 A. Right. They weren't obligated to buy that
9 work from freelancers when they hired them back to do
I
10 news stories in the same way in the paragraph above in
11 I
the report John Romita says he was in the middle of the
12 story when Stan pulled the plug on it and he didn't get I'
13 paid for it.
14 Q. My question is, your conclusion that there
15 was no financial obligation to purchase is a legal
16 conclusion, isn't it?
17 A. I guess you could consider that a legal
18 conclusion, that's my opinion.
19 Q. But you are not qualified to give legal
20 opinions, are you?
21 A. No, I'm not a lawyer. I'm not qualified to
22 give legal advice. But I think just in layman's terms,
23 Marvel at that point, they can say hey Dick Ayers, come
24 back in and do a story, but they were not at that point
25 committed to pay Dick Ayers to do that story until he

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2 called them back in to publish the story.
3 Q. That's a legal conclusion, isn't it?
4 A. That's my layman conclusion.
5 Q. But you're stating here an opinion that
6 really constitutes a legal conclusion? It had no
7 financial obligation.
8 MR. TOBEROFF: Objection,
9 argumentative.
10 A. You may, well, I mean, you may characterize
11 it as legal conclusion. I consider it my conclusion
12 based on the historical record. So, no, I'm not trying
13 to pass myself off as someone giving legal conclusions
14 or legal advice.
15 Q. So it's your layman's conclusion that if I
16 asked a freelancer to create a particular story or draw
17 a particular piece of artwork and the freelancer
18 brought it in, I had no obligation to pay them?
19 A. Not if it wasn't accepted, no. At that
20 point, that was the standard there, was take an
21 assignment, take a script from Stan Lee and take it
22 home and draw it and bring it back in, and if it's
23 accepted, they pay you for it.
24 Q. When you say if it's accepted, that's your
25 opinion --

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2 A. Based on stories from various creators who
3 were involved there.
4 Q. Are you aware of any instance in which Jack
5 Kirby complained to anyone at Marvel about not being
6 paid for pages he had prepared and submitted?
7 A. Well, what immediately springs to mind is
8 those three Hulk pages from whatever, 1962, I guess,
9 that ended up in the trash can at Marvel.
10 Apparently, as I understand the story, when
11 Kirby left the offices, he was very angry and like
12 either tore them up or just threw them in the trash and
13 stormed out.
14 So, I guess, you could consider that
15 complaining that he wasn't going to get paid for those
16 pages.
17 Q. Apart from that instance, are you aware of
18 any complaint by Mr. Kirby that he wasn't paid for work
19 he had submitted?
20 A. Let me think for a moment. Yes, I do know
21 another one.
22 In issue 13 of the Jack Kirby Collector, we
23 published an article about a -- it was actually one of
24 the final stories that Kirby created at Marvel before
25 he left to go to work for DC. It was called The

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1 JOHN MORROW 181
2 Monster, and I think it was an eight or ten-page
3 mystery story. Mr. Kirby drew the entire story in
4 pencil, submitted it to Marvel. They rejected it. He
5 had to go back and completely redraw it. He chopped up
6 the original pages and rearranged them, in some
7 instances had to draw new pages, had to draw a lot of
8 new art and was, by all accounts I've written very,
9 very disappointed, because he felt that the original
10 story was really superior to what he ended up having to
11 turn in and get accepted. And --
12 Q. Sorry, I didn't mean to interrupt you.
13 A. Go ahead.
14 Q. What accounts are you referring to with

15 regard to this incident?


16 A. Accounts from Marie Severin, who sent us
17 photocopies of the original versions of the story as
18 Kirby submitted it before he had to make all the
19 changes. I believe I would have to reread the article
20 to see who else we had quoted in that article, but I
21 know Marie told us that yes, Jack was very upset about
22 that.
23 Q. Upset about?
24 A. The rejection and having to redo that
25 story.

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2 Q. Do you know whether or not he was paid for
3 both the original version and the redone version?
4 A. My opinion is that no, he was not, because
5 he had to rework the physical pages. They didn't keep
6 the pages and say go back and redraw it or redo this.
7 He actually had to butcher his original art to do it.
8 Q. What about that implies that he wasn't paid
9 for both?
10 A. If they were paying for pages, they would
11 have paid for the original pages and had him just go
12 back and redraw the story generally.
13 Q. So do you know whether or not he was paid
14 for the original pages?
15 A. I do not know conclusively, but it stands
16 consistent with other instances of artists, including
17 Mr. Kirby not getting paid, and it stands to reason
18 that he did not get paid twice for that and only got
19 paid for the published version that was submitted.
20 Q. You say it stands to reason, it's your

21 conclusion
22 A. It's my opinion, yes.
23 Q. Are you aware of any other instances in
24 which you believe Mr. Kirby was not paid for work he
25 submitted to Marvel?

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2 artists.
3 Q. Was it your understanding that there would
4 be more time spent on a story conference between Stan
5 and an artist at the outset of a new title than there
6 would be on issue number 83 of an existing title?
7 MR. TOBEROFF: Lacks foundation.
8 A. I'm not sure how to answer that. It would
9 stand to reason, if you are going to launch a new
10 title, yes, you would sit down and have a lot longer
11 brain session than you would if you were doing a
12 continuing story of characters you already established
13 and everything, so.
14 Q. On page eight of your report, in the second
15 paragraph you say that -- in the second sentence of
16 that paragraph, he, referring to Kirby, was extremely
17 independent. He did not work from many written
18 materials supplied by Marvel.
19 How do you know that?
20 A. We've seen no examples, other than that one
21 synopsis from Fantastic Four number one, is the only
22 example I've ever seen of written materials supplied to
23 Kirby. I've seen an example of Kirby supplying written
24 material back to Stan, an actual written script for an
25 issue that he did while Stan was on vacation. He

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2 actually wrote the dialogue for it and sent a script
3 back. But that is the only example I've ever seen.
4 Q. Well, do you know if it was Kirby's habit
5 to retain written synopses he may have been provided?
6 A. Well, if it was, they are not in his files,
7 or not the files I had access to.
8 Q. Do you know whether the Fantastic Four
9 synopsis you referred to was in Kirby's files?
10 A. It was not in the files that I have seen.
11 Q. When did you go through Kirby's files?
12 A. Oh, what year? The family loaned me a lot
13 of materials and got together. They had a storage unit
14 out in California where they had a lot of stuff stored.
15 I was allowed to kind of go through there, that was --
16 Q. Sometime after 1994, correct?
17 A. Oh, yes, yeah, while I was working on the
18 Jack Kirby Collector.
19 Q. Do you know if there were any files that
20 weren't among those files?
21 A. I have no way of knowing. I assume they
22 had everything that they had in that storage unit.
23 Again, I didn't go through every single box that was in
24 there either, so.
25 Q. Do you have an understanding as to whether

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2 to do, in my opinion, is to credit Steve Ditko and Stan
3 Lee as co-creators of that. Kirby certainly has some
4 input into it, in my opinion, but I think the final
5 result is far enough removed that the Kirby input,
6 while it got the ball rolling, is not the end product.
7 Q. How do you know the Kirby input got the
8 ball rolling?
9 A. Because the historical track record on that
10 is that Kirby had, let's see, C.C. Beck did the Silver
11 Spider strip that was not published. He published that
12 in his autobiography. Kirby had an idea for Spider-Man
13 that he brought in. He drew supposedly five pages, it
14 was very similar to The Fly, which Archie Comics was
15 coming out with, and from there, Stan brought Steve
16 Ditko in, and Ditko evolved the character into what it
17 is now.
18 Q. Is it your understanding that Jack Kirby
19 did the five pages that he did draw supposedly before
20 discussing the character with Stan Lee?
21 A. No. My understanding is that he brought
22 the idea to Stan Lee and said Stan, I have this idea
23 for a character. It's an orphan boy with a magic ring
24 that gives him spider powers, and what amount Stan
25 edited there, we're not sure. But then Jack went and

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2 drew some sample pages, brought them in and Stan said
3 no. He rejected probably because it was too close to
4 Archie Comics' Fly, and that's when Stan had Steve
5 Ditko come in.
6 Q. Are you saying that Jack brought the pages
7 without being given an assignment by Stan with respect
8 to Spider-Man?
9 A. No, I think Jack brought in the concept,
10 the idea to Stan as one that they had kind of kicked
11 around at Mainline for doing, and Stan said sure, let's
12 give it a try, and I don't know what level of input
13 Stan gave Jack at that point.
14 Q. Do you have an opinion with regard to
15 whether or not Jack Kirby was the sole creator of Sgt.
16 Fury and the Howling Commandos?
17 A. Well, I put in my report -- a quote that
18 really caught my attention when we interviewed John
19 Severin for the Jack Kirby Collector. On page 12 and
20 13 of my report, he talked about met over coffee with
21 Jack Kirby, and Jack at that point was trying to get
22 syndicated newspaper strips purchased to syndicates and
23 he had this idea that he pitched to John Severin to get
24 John to draw it, because John was very good at drawing
25 war comics, and -- well, the quote is in the report.

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2 You can read it. But that one was very interesting to
3 me. That's not an interview I actually conducted. Jim
4 Amash conducted that actually.
5 Q. So returning to my question, do you have an
6 opinion as to whether or not Jack Kirby was the sole
7 creator of Sgt. Fury and the Howling Commandos?
8 A. Well, you have to define sole creator. Do
9 I think Jack Kirby initiated the concept? Yes. That
10 right there makes me think that Jack Kirby initiated
11 the concept.
12 Did Stan Lee have input into the concept?
13 I would think as editor, certainly. It could have been
14 as simple as this is hypothetical. It could have been
15 as simple as Stan saying Jack, we need a war book, and
16 Jack said oh, I got this great idea I was kicking
17 around, and then he presented it, and maybe Stan added
18 some stuff, something like that.
19 It could have been that Jack walked in and
20 said Stan, here's an idea. If you want to use it, we
21 can do it. I, of course, wasn't there, so I don't
22 know. But this leads me to believe that Jack initiated
23 the concept outside of Marvel and through whatever
24 process it was brought in. I'm sure Stan had some
25 input into it. The question is how much?

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2 lessen that Stan didn't add to it, but it's -- Jack --
3 Q. When you say it's a Jack Kirby creation --
4 MR. TOBEROFF: He was still talking,
5 he said but Jack.
6 BY MR. FLEISCHER:
7 Q. I thought you had finished your answer.
8 A. Well, just that it just screams that was a
9 Jack Kirby creation.
10 Q. Screams that to you?
11 A. To me, yes.
12 Q. That is your opinion?
13 A. That is my opinion, yes.
14 Q. Now, do you know whether Jack Kirby put
15 pencil to paper before discussing the Thor character or
16 the concept of a Thor book with Stan Lee?
17 A. No, do not.
18 Q. So when you say it's your conclusion that
19 it's the sole creation of Jack Kirby, you are saying it
20 was his idea?
21 A. That is my opinion, yes. The idea to take
22 Thor and use him as an ongoing superhero and cloak him
23 into Norse mythology would have been Jack's idea.
24 Q. But he wouldn't have drawn anything until
25 getting the go ahead of from Stan and having a story

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2 conference of some kind with Stan, is that correct?
3 MR. TOBEROFF: Assumes facts, lacks
4 foundation.
5 A. Again, I wasn't there in 1961 and '62 when
6 these books were being produced. I can give you my
7 opinion, if that's what you'd like.
8 My opinion is that Jack came to Stan Lee
9 and said hey, I got this idea for a superhero based on
10 Thor. And Stan would say something along the lines of
11 okay, we've got a dead magazine and a mystery with
12 nothing going on. Our superheros are starting to take
13 off. Let's do it. At that point, they would kick
14 around details of it. That's my opinion.
15 Q. Do you have an opinion with regard to who
16 is the creator of Ant Man?
17 A. He is such a lesser known character, I
18 don't think I actually included anything about Ant Man
19 in there. I have not heard or read much historical
20 data on Ant Man. What I do know about Ant Man is
21 that --
22 Q. Just try to restrict yourself to my
23 questions.
24 A. I'll say no, I have no opinion.
25 Q. I don't mean to cut you off, but we are

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2 identification.)
3 Q. Have you ever seen this before?
4 A. I've seen it in print, yes.
5 Q. Did you ever see any ribbon copy from the
6 typewriter?
7 A. No, I have not seen a ribbon copy.
8 Q. Do you know what it is?
9 A. I do, yes. Roy Thomas ran this in Alter
10 Ego Magazine. It's Stan Lee's two-page synopsis for
11 Fantastic Four number one.
12 Q. Have you ever discussed this document with
13 Roy Thomas?
14 A. I don't believe so, no.
15 Q. And do you know how Roy Thomas came to
16 publish this?
17 A. How he came to publish it?
18 Q. How he came to put it into the Alter Ego?
19 A. I'm not sure where he got a copy of it, but
20 he said he wanted to run that in, I forget. I think it
21 was Alter Ego number one, I said great.
22 Q. Do you know whether or not this document
23 was either physically delivered to Jack Kirby before he
24 started drawing or communicated to him verbally before
25 he started drawing Fantastic Four number one?

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2 A. I have no idea. Kirby has gone on record
3 in an interview saying he did not get a synopsis for
4 Fantastic Four number one.
5 Q. Do you credit that statement by Kirby?
6 A. Yes, I do. It's pretty definitive.
7 Q. And you discredit Stan Lee's statement
8 under oath in this case that this synopsis was
9 communicated to Jack Kirby before Mr. Kirby started
10 work?
11 MR. TOBEROFF: Objection, lacks
12 foundation, assumes facts.
13 A. Well, could I see Mr. Lee's statement
14 before I answer that? Because I've not seen it.
15 Q. Let me ask you to assume that Stan Lee has
16 testified under oath that this synopsis was
17 communicated either verbally or in writing to Mr. Kirby
18 before Mr. Kirby began work on Fantastic Four number
19 one.
20 MR. TOBEROFF: Objection. You can
21 answer.
22 A. I would give more credence to Mr. Kirby's
23 account than to Stan Lee's account.
24 Q. Is it your testimony that that's an
25 unbiased conclusion?

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2 to weigh an opinion between the two men's statements,
3 and so that's always a possibility.
4 Q. Is it your understanding, forgive me if you
5 have already answered this, when we were talking Thor
6 earlier, that before Mr. Kirby started to draw Thor, he
7 got the assignment to do so from Jack Kirby?
8 MR. BARD: You mean Stan Lee.
9 Q. Sorry, Stan Lee. Let me restate the
10 question.
11 MR. TOBEROFF: Objection, vague.
12 BY MR. FLEISCHER:
13 Q. Is it your understanding that before Jack
14 Kirby put pencil to paper with respect to the first
15 Thor story, that he had been asked to write that story
16 by Stan Lee?
17 MR. TOBEROFF: Objection, vague.
18 A. Well, it's my opinion that the Thor concept
19 would have come from Jack, not from Stan. What the
20 process was to get Jack beginning on drawing the
21 physical story, obviously Jack was not the editor.
22 Jack could not decide to publish a Thor comic book on
23 his own. He brought the idea to Stan. Stan said sure,
24 let's run with that in Journey into Mystery. It's not
25 like they started a new Thor comic though. Jack was

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1 JOHN MORROW 234
2 turning out work for Mystery books and Journey into
3 Mystery was apparently not doing well and the
4 superheros were, so they started to add a superhero to
5 it.
6 All I can offer is my opinion there. My
7 opinion was Jack came up with this idea, and at that
8 point, Stan said yes, let's put that in Journey in
9 Mystery, and they probably worked on it together,
10 and --
11 Q. This is 15. Have you ever seen this
12 document before?
13 A. Yes, I have.
14 Q. And what is it?
15 A. This is a typed transcript of a radio
16 interview that Stan Lee and Jack Kirby gave in 1967.
17 The year's audiotape recording for the story housed in
18 Stan Lee's archives at the University of Wyoming. One
19 of our authors Danny Fingeroth went to the University
20 of Wyoming to go through Stan Lee's archives to give it
21 to us for Stan Lee's book.
22 (The document referred to was marked
23 Plaintiff's Morrow Exhibit Number 15 for
24 identification.)
25 Q. Do you have any reason to believe that this

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1 JOHN MORROW 259
2 went ahead and published Kirby's fill-in story.
3 Q. And the idea was that Kirby's story
4 couldn't advance the plot at all, because that might
5 affect what was already in the works with Steranko?
6 A. Right.
7 Q. I've placed before you what I have marked
8 as Exhibit 24, and it appears to be a two-page document
9 and it's entitled: Introduction by John Morrow.
10 (The document referred to was marked
11 Plaintiff's Morrow Exhibit Number 24 for
12 identification.)
13 Q. Is this a document that you wrote?
14 A. It is. With all these introductions,
15 Marvel editorial staff had the ability to change
16 things. I don't recall any major changes on any of
17 them.
18 MR. TOBEROFF: I just want to note for
19 the record it's a bit hard to read. It's
20 very dark, at least for me.
21 MR. FLEISCHER: I agree that it's
22 dark, but I also would submit that it's
23 entirely legible.
24 Q. There's a statement in the third paragraph:
25 As usual, for most new issues in the 1960s, Kirby was

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1 JOHN MORROW 260
2 called in to work on the initial issues before handing
3 it off to others to continue.
4 Did you have in mind the other new series
5 that you were referring to there?
6 A. Ironman. For instance, Daredevil, Kirby
7 was brought in in some capacity for his covers by him.
8 There are some character concept drawings by Kirby.
9 The character called the Plunderer, and I forget the
10 other one that are in early Daredevil stories that are
11 all -- it's Kirby giving a sketch of what it should
12 look like and writing notes off to the side of the
13 character's, you know, personality and his powers and
14 things like that, that were submitted to the artist who
15 was drawing that issue to go by.
16 Q. Do you know who wrote the first issue of
17 Ironman?
18 A. I believe Larry Lieber scripted that,
19 didn't he?
20 Q. Yes.
21 A. I believe so.
22 Q. I'm telling you. I'm asking you.
23 Is it your understanding that Larry Lieber
24 did it?
25 A. I would say yes.

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2 Q. I don't want to testify.
3 And who drew that issue?
4 A. That's Don Heck, I believe.
5 Q. And is it your recollection that Jack Kirby
6 was asked to do the cover?
7 A. Yes.
8 Q. Now, what was the -- this Exhibit 24 an
9 introduction to?
10 A. Well, based on what I'm reading here, I'm
11 assuming this was the one I did for the S.H.I.E.L.D.
12 series, but let's see, since I'm talking about Shield
13 here, it must have been for the Agent of Shield
14 collection.
15 Q. Now, in the fifth paragraph, you say in the
16 first sentence: While Stan scripted most of the issues
17 presented here, Kirby was undoubtedly the guiding
18 creative force.
19 What did you mean by Stan scripted most of
20 the issues?
21 A. Scripted meaning dialogue, put the words in
22 the balloons.
23 Q. You don't mean creating the scripts?
24 A. No, not working from the script, no.
25 Scripting and dialoguing are kind of used

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EXHIBITE

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Page 1
f'
['
1

2 UNITED STATES DISTRICT COURT


3 SOUTHERN DISTRICT OF NEW YORK
4 MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC., 1.·

5 and MVL RIGHTS, LLC,

6 Plaintiffs,
Case No.
7 10-141-CMKF
vs.

8 LISA R. KIRBY, BARBARA J.


KIRBY, NEAL L. KIRBY, and
9 SUSAN N. KIRBY,

10 Defendants.
----------------------------)
11 **REVISED**
12 PARTIALLY CONFIDENTIAL
13 PURSUANT TO PROTECTIVE ORDER
14 (Pages 66 through 70)
15 VIDEOTAPED DEPOSITION OF LAWRENCE LIEBER
16 New York, New York
17 January 7, 2011
18

19

20

21

22

23 Reported by:
24 KATHY S. KLEPFER, RMR, RPR, CRR, CLR
25 JOB NO. 35338

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Page 2
1

2 January 7, 2011
3

4 Partially confidential videotaped


5 deposition of LAWRENCE LIEBER, held at
6 Weil Gotshal & Manges, 767 Fifth Avenue,
7 New York, New York, before Kathy S. Klepfer,
8 a Registered Professional Reporter, Registered
9 Merit Reporter, Certified Realtime Reporter,
10 Certified Livenote Reporter, and Notary Public
11 of the State of New York.
12

13

14

15

16

17

18

19

20

21

22

23

24

25

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Page 3
1

2 A P P E A RAN C E S:
3

4 WEIL, GOTSHAL & MANGES


5 Attorneys for Plaintiffs
6 767 Fifth Avenue
7 New York, New York 10153
8 BY: RANDI W. SINGER, ESQ.
9 SABRINA A. PERELMAN, ESQ.
10

11 TOBEROFF & ASSOCIATES


12 Attorneys for the Defendants
13 2049 Century Park East, Suite 2720
14 Los Angeles, California 90067
15 BY: MARC TOBEROFF, ESQ.
16

17

18 ALSO PRESENT:
19 ELI BARD, Marvel Entertainment
20 MATTHEW SMITH, Legal Video Specialist
21

22

23

24

25

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Page 29
1 L. Lieber
2 question.
3 A. Okay.
4 Q. How did you get paid for the work that
5 you were doing for Marvel, 1958 to 1965?
6 A. It was the same before. It's vague.
7 I put in a voucher. I had a certain page rate,
8 which I don't recall exactly.
9 There were various page rates. I did
10 not get paid as much as Stan, you know, his
11 rate. And I put in a voucher. I assume I
12 I -- I must have put it in and given it to
13 Stan's office, perhaps his secretary or
14 somebody, I think I did, and then they paid me
15 and I -- I don't remember.
16 I remember being -- I spent a lot of
17 time in the office then, and I remember being in
18 the office and Milly, who was the bookkeeper,
19 would sometimes come -- would come around and
20 give out checks to the people on staff, I
21 believe, and also to freelancers. Or perhaps
22 the freelancers had a different hour or
23 different day, I don't know.
24 I just remember people saying
25 sometimes, "Oh, you just missed Milly," and if

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Page 71
1 L. Lieber
2 Q. You mentioned that you have never been
3 deposed in a lawsuit before.
4 A. No.
5 Q. Have you ever submitted a, what we
6 call a declaration or affidavit in connection
7 with a lawsuit?
8 A. No.
9 Q. Do you know what a declaration is?
10 A. I would imagine it's a statement of
11 some kind that you sign or you write. And so,
12 no, not that I recall.
13 Q. Did you -- were you ever interviewed
14 in connection with any lawsuit previously?
15 A. No. No. The only, and this isn't
16 interviewed, but, no, no, no, no, no.
17 Q. Moving on to your -- a new subject
18 career at Marvel, you testified that you began
19 doing freelance work for Marvel in approximately
20 June 1958; is that correct?
21 A. Yes.
22 Q. And you were writing scripts?
23 A. Yes.
24 Q. And those scripts were purchased by
25 Marvel?

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1 L. Lieber
2 A. Yes.
3 Q. You also at times did artwork?
4 A. Yes. Yes.
5 Q. And that artwork was also purchased by
6 Marvel?
7
A. Yes.
8 MS. SINGER: Objection to form.
9 Assumes facts.
10 And now this is the part where I ask
11 you same thing he asked you: If you can
12 just give a pause so if I have to jump in
13 with an objection.
14 THE WITNESS: Oh, I didn't -- I'm
15 sorry.
16 MS. SINGER: That's okay.
17 THE WITNESS: I didn't hear. I'm --
18 MS. SINGER: No worries. No worries.
19 THE WITNESS: I'm trying to think of
20 the answers so much and I -- yeah, I'll
21 wait.
22 Q. During all the time you did work with
23 Marvel, did you have a written contract with
24 Marvel?
25 A. No.

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Page 73
1 L. Lieber
2 MS. SINGER: Good work. Good pause.
3 Q. When you did free -- when you did
4 freelance work between 1958 and 1964, you did
5 not have a written contract, correct?
6 A. No.
7 Q. Actually, I said "correct," so your--
8 A. Yes, it's correct.
9 MS. SINGER: You have to give a pause
10 so he can object to his own questions too.
11 Q. Now, when you submitted your freelance
12 work to Marvel, whether it's script or artwork,
13 was it -- was it your understanding that Marvel
14 was obligated to purchase that material from
15 you?
16 MS. SINGER: Objection. Assumes
17 facts.
18 A. My understanding they were not
19 obligated.
20 Q. And was it your understanding that
21 when they did buy your work, that they owned all
22 rights to it?
23 MS. SINGER: Objection. Assumes
24 facts.
25 A. Yes.

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Page 74
1 L. Lieber
2 Q. And that's because they had purchased
3 it from you?
4 MS. SINGER: Objection.
5 A. Yes.
6 Q. Now, during the period when Marvel was
7
buying your work, did you submit any work,
8 whether scripts or artwork, to any other
9 publishers? :
·..

10 A. No.
11 Q. Do you know of other, any other
12 writers or artists who are working freelance, on
13 a freelance basis with Marvel, who at that time
14 were also submitting freelance work to other
15 comic book publishers?
16 A. I -- I'm not certain. I know there
17 were artists who work for other companies. I'm
18 not certain whether it was at the same time they
19 were working for Marvel. There were artists and
20 writers who had worked -- I was almost the only
21 one in the profession who couldn't work for
22 another company, which, in this case, the most
23 likely one would have been DC, because Stan was
24 my brother. And should I go on?
25 Q. Please.

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Page 75
1 L. Lieber
2 A. And once I tried, because I couldn't
3 get work from Marvel and I sent some samples of
4 my -- not original artwork because I didn't have
5 it, but I sent some comic books over to DC
6 through a friend of mine, Frank Giacoia, who had
7 worked for them, they knew him. And they didn't
8 give me the work, and Stan had said he wasn't
9 surprised that they didn't because they would be
10 suspicious of me working for them while I'm Stan
11 Lee's brother.
12 So I always felt I couldn't get work
13 from any other company, and some years later, I
14 met the man who was the, I guess, art director
15 there and we were -- we were chatting, and I
16 happened to bring this up about I sent work over
17 and I never got it, and he looked at me in
18 surprise and said, "You mean that was on the
19 level?" I said "Yes, I needed work."
20 So, so that was it for me. For
21 others, I don't think that was the case. They
22 could go from one to another, and some of the
23 artists would actually play, you know, one
24 company against another in the sense of saying,
25 "Oh, I've been offered more money there," so if

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Page 76
1 L. Lieber
2 the art director wanted to keep him, he had to,
3 you know, give him -- give him a little more.
4 Q. Now, again, during the period 1958 to
5 '65, where were you living at the time?
6 A. I was living in Tudor City.
7
Q. And is that where you did your
8 freelance work?
9 A. Yes. I had a furnished room in
10 somebody's apartment. I did my freelance work
11 there.
12 Q. And did you pay for your own supplies,
13 whatever they were?
14 A. I believe so, yes.
15 Q. So your own paper and pencils and
16 writing implements?
17 A. Yeah, I yeah, I guess.
18 Q. Did you work on a typewriter?
19 A. Yes.
20 Q. And did you pay for that typewriter?
21 A. Yes, I -- I remember I went with Stan
22 and I bought it once. We went to a typewriter
23 store on Lexington Avenue and I paid for it,
24 sure.
25 Q. Now, as a freelancer, if your work was

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Page 77
1 L. Lieber
2 rejected, you wouldn't be paid for that, would
3 you?
4 MS. SINGER: Objection.
5 A. I felt that they didn't have to pay me
6 for it. It depends. And usually for me, as I
7
saw it, work wouldn't be rejected because they
8 know who they're dealing with and they know what
9 you can do.
10 But they, if they just wanted you to
11 make corrections, they might say, in later years
12 anyway, I think they would have said, "Well, put
13 in a voucher," if they wanted to be nice, "Put
14 in a voucher for production work. You're doing
15 a little production work. Change this or change
16 that."
17 It didn't happen to me usually, except
18 one instance where I had to do things and I
19 wasn't paid for it.
20 Q. What is the what is the instance
21 you can recall where you had to redo something
22 and weren't paid for that?
23 A. It was after I had done The Rawhide
24 Kid and I was trying, trying to earn a living
25 doing some drawing of covers and also writing,

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Page 78
1 L. Lieber
2 and I wrote various stories.
3 Well, Marvel was at that time putting
4 out black and white, what we call black and
5 white books. And I don't remember the specific
6 story, but I was working on something and maybe
7 a zombie book or a horror book or some such
8 thing, and I -- I was given -- I had to make up
9 a story.
10 I made up a plot and I brought it in
11 to the editor, and the editor thought it wasn't
12 good enough and told me to go back and rewrite
13 it, the plot, work on it some more, develop it.
14 So I went back home and I did so, and I came
15 back and I think either he didn't like it a
16 second time or he accepted it, but there was
17 another story that he made me redo again.
18 My -- the reason I remember is that I
19 was worried about paying my rent, and I
20 wondered, if he doesn't like this, how often do
21 I have to keep redoing this plot. Finally, you
22 know, he did like it and I was allowed to write
23 the script and I got paid for the script.
24 Q. So you got paid for the script but you
25 weren't paid for your redoing the plot a number

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Page 79
1 L. Lieber
2 of times?
3 A. No. Because if I had been, I might
4 not have been so concerned about my expenses.
5 Q. Now, when you were paid by the page
6 for the purchase of your work, did they take out
7
any taxes from your checks?
8 MS. SINGER: Objection.
9 A. No.
10 Q. Did they -- did Marvel provide you
11 with any paid vacation?
12 A. No.
13 Q. None whatsoever?
14 A. No. None whatsoever.
15 Q. For all the time you worked there?
16 A. That I did freelance work for them?
17 No.
18 Q. Did Marvel provide you with any health
19 insurance or health benefits during the time you
20 worked there?
21 A. Yes.
22 Q. When was that?
23 A. Years later.
24 Q. So not in the period 1958 to 1965?
25 A. No. No. No. No. I don't think so,

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Page 100
1 L. Lieber
2 A. Yes.
3 Q. Moving to a different subject, you
4 testified earlier that it was your recollection
5 that there were legends on the back of checks
6 you received from Marvel for your freelance
t.
7 work?
I
8 A. Writing on the back, yes.
9 Q. And we'll just call that writing :

10 legends for purposes --


11 A. Okay, I didn't know the term. Yeah,
12 something printed.
13 Q. And is it fair to say you don't know
14 when those legends first started appearing?
15 MS. SINGER: Objection.
16 A. I think I had them at the very
17 beginning when I started writing. I think I had
18 them then because I -- I don't recall thinking
19 there was something new, but perhaps, perhaps
20 they weren't there. So I don't really know.
21 Q. And was it your understanding that the
22 import of the writing on the back of these
23 checks was that by signing the check and
24 accepting payment for your work, you were
25 transferring over to Marvel all rights in your

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Page 101
1 L. Lieber
2 work?
3 MS. SINGER: Objection.
4 A. Yes, it was my understanding.
5 Q. And do you recall -- strike that. On
6 the checks you received for your freelance work,
7 did they have language stating that your work
8 was work made for hire?
9 A. No. No.
10 Q. When lS the first time you heard the
11 phrase "work made for hire," if any?
12 A. The first time. I don't know which
13 came first, but I've only heard it recently ln
14 the last year or so, once from you using it to
15 me in a conversation, and then I -- I looked up
16 the case out of curiosity on the Internet and
17 they were talking about it and they mentioned it
18 as being an important thing or was it work for
19 hire or not.
20 And then there was maybe not there,
21 but I know I -- maybe it was it was there and
22 also in the New York Times they had an article
23 about this case some time ago, and in the
24 article they mentioned again what it was about.
25 I -- I don't understand the things very well,

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Page 103
1 L. Lieber
2 A. Well, this must have been a Hulk story
3 and I have the originals at home. I don't
4 remember when I first got them. I don't
5 remember the year, but I obtained them when they
6 were discarded.
7 Q. Can you tell me how you came into
8 possession specifically of these drawings?
9 A. They -- I was in the office, the
10 Marvel office. It probably was at -- no, it
11 must have been at the -- on 57th Street when
12 they were there on Madison, and Jack Kirby came
13 out of Stan's office from -- and from the
14 direction of Stan's office. He may, probably,
15 he had come out of Stan's office, and he seemed
16 upset. And he took the drawings, he had these
17 drawings, he took them and he tore them in half
18 and he threw them in a trash can, a large trash
19 can.
20 And I, since I was such a big fan of
21 his, I knew that at the end of the day, they
22 would be discarded, you know, and would be
23 trash. And I -- I saw it as an opportunity to
24 have some of his originals to keep, to look at
25 and study, and so I took them out of the trash

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JA1529
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Page 104
1 L. Lieber
2 can.
3 And there were other people in the
4 office, but nobody else seemed to have noticed
5 this, which I was glad about, and I just took
6 them, walked over to where I was sitting and put
7 them in my case. And I took them home and I
8 taped them together, you know, I taped them all,
9 and I kept them and I've kept them all these
10 years to look at them and, as I say, to study
11 them.
12 Q. If you look at the center of the page,
13 you see a line going through the center of the
14 first page, the third, fourth, fifth and sixth
ii

15 pages?
16 A. Yeah.
17 Q. Do you see that line?
18 A. Yes, I see the line.
19 Q. Is that because those pages were
20 originally ripped in half?
21 A. Yeah, that's where it was ripped and I
22 have tape on them.
23 Q. And the black marks on the left and
24 right-hand margins --
25 A. Scotch tape.

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JA1530
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Page 105
1 L. Lieber
2 Q. in this photostat copy are scotch
3 tape?
4 A. Yes.
5 Q. Have you scotch-taped them together?
6 A. Yes.
7 Q. What was your understanding of why or
8 your impression of why Jack Kirby was upset when
9 he tore these up and threw them in the trash?
10 A. I didn't know. I didn't speak to him.
11 I assumed, seeing a man walk out of the office
12 and tear his artwork up, that -- or I thought
13 probably they were rejected and he was annoyed
14 or disgusted. I didn't, you know, and I didn't
15 know what it was. I didn't hear anything, so I
16 just -- that was my first assumption, but I
17 didn't know.
18 (Lieber Exhibit 6, an excerpt from
19 Jack Kirby Collector Forty-One, marked for
20 identification, as of this date.)
21 MR. TOBEROFF: I would like to mark as
22 Lieber Exhibit 6 an excerpt from Jack Kirby
23 Collector Forty-One.
24 A. Oh, yes.
25 Q. If you would please turn to page 71.

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EXHIBITF

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Page 1
1

2 UNITED STATES DISTRICT COURT


3 SOUTHERN DISTRICT OF NEW YORK
4

5 MARVEL WORLDWIDE, INC.,


MARVEL CHARACTERS, INC. and
6 MVL RIGHTS, LLC,
No. 10-141-CMKF
7 Plaintiffs,

8 vs.

9 LISA R. KIRBY, BARBARA J.


KIRBY, NEAL L. KIRBY and
10 SUSAN N. KIRBY,

11 Defendants.
-----------------------------)
12

13

14

15

16

17 CONFIDENTIAL VIDEOTAPED DEPOSITION OF


18 JOHN V. ROMITA
19 Garden City, New York
20 Thursday, October 21, 2010
2l

22

23 Reported by:
24 KRISTIN KOCH, RPR, RMR, CRR, CLR
25 JOB NO. 34124

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Page 2
1

3
I
4 October 21, 2010 I'
5 9:32 a.m.
6

8 Confidential Videotaped Deposition


9 of JOHN V. ROMITA, held at The Garden City
10 Hotel, 45 7th Street, Garden City,
11 New York, before Kristin Koch, a Registered
12 Professional Reporter, Registered Merit
13 Reporter, Certified Realtime Reporter,
14 Certified Livenote Reporter and Notary
15 Public of the State of New York.
16

17

18

19

20

21

22

23

24

25

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Page 3
1

2 A P P E A RAN C E S:
3

5 WEIL, GOTSHAL & MANGES, LLP


6 Attorneys for Plaintiffs
7
767 Fifth Avenue
8 New York, New York 10153
9 BY: RANDI W. SINGER, ESQ.
10 SABRINA A. PERELMAN, ESQ.
11

12

13 TOBEROFF & ASSOCIATES, P.C.


14 Attorneys for Defendants
15 2049 Century Park East
16 Los Angeles, California 90067
17 BY: MARC TOBEROFF, ESQ.
18

19

20 ALSO PRESENT:
21

22 ELI BARD, Marvel Entertainment, LLC


23 HENRY MARTE, legal Video Specialist
24 VIRGINIA ROMITA
25

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Page 15
1 Romita - Confidential
2 A. For whatever I do. Freelance I
3 put in a freelance voucher and they pay me. I
4 also get royalties, some royalties.
5 Q. Can you estimate approximately how
6 much money you might get from Marvel in a year,
7
just a ballpark?
8 A. Sometimes
9 MR. TOBEROFF: Vague as to time.
10 MS. SINGER: You can answer the
11 question.
12 A. Yeah, sometimes as little as 7 -- 6-
13 or $7,000 in a year, sometimes as much as 11,
14 depending on what's selling in the reprint
15 department, and sometimes they take -- they
16 have made a series of collections and whenever
17 I am ln a collection, I get a check, sometimes
18 $20, sometimes $200, and occasionally a bigger
19 check when it's a big project.
20 Q. Let's focus on when you were at
21 Marvel the first time while you were in the
22 servlce and you went up there in the early
23 1950s.
24 Would you consider yourself a
25 freelancer or an employee at that time?

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Page 16
1 Romita - Confidential
2 A. Freelancer. No -- flying without a
3 parachute. Absolutely no security. No
4 unemployment insurance, because I didn't have a
5 job. No perks, no medical insurance, no
6 nothing. Every year I would save 2- or $300
7
and then the government would raise the
8 unemployed -- the -- I forget what the tax was.
9 There was a tax that was applicable to
10 freelance people, and that tax went up just
11 about whatever I had saved, so I generally
12 broke even every year.
13 Q. And how were you paid? What was the
14 basis for your compensation?
15 A. I would do a certain amount of pages
16 at a certain rate, $25 a page, $30 a page. I
17 would do ten pages, $300. I would sign a
18 voucher for $300 worth of work and they would
19 pay me two weeks later or something. And I
20 would be responsible for the taxes. I don't
21 believe they took the taxes out. I'm not sure.
22 Q. Where did you do your work? Did you
23 do it ln the Marvel office?
24 A. No. I worked home.
25 Q. Did you ever go into the Marvel

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Page 65
1 Romita - Confidential
2 Q. Was there a form that you filled out
3 or was there a voucher?
4 A. It was a voucher, an actual small
5 slip with the name of the book, the number and
6 month of the book, how many pages, your rate,
7 and you sign it.
8 Q. And then what would happen after you
9 filled out the voucher?
10 A. I would submit it to the editor and
11 the editor would process it through the
12 bookkeeping department and they would send me a
13 check. Checks used to be like every two weeks
14 or something, once a month. I'm not even sure.
15 It varied. Especially with different
16 incarnations of conglomerates.
17 Q. Do you recall would there be
18 anything printed on the check?
19 A. There was a disclaimer on the back.
20 No disclaimer.
21 MR. TOBEROFF: Vague as to time.
22 MS. SINGER: You can answer the
23 question.
24 A. It was -- it was fairly clear. It
25 was saying that we were giving up the rights to

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Page 66
1 Romita - Confidential
2 anything that was done in the books, the future
3 rights to them, so we -- I wanted to cash the
4 check, so I signed it.
5 Q. I am going to show you something
6 that, for the record, has already been marked
7 as Plaintiff's Exhibit 2 at the deposition of
8 Stan Lee on May 13, 2010.
9 Mr. Romita, don't worry about the
10 front of this. I just would like you to turn
11 to the last page of Plaintiff's Exhibit 2.
12 A. The back of the old checks.
13 Q. Okay. I know this isn't your
14 signature. It's a little hard to read.
15 A. No, that's John D'Agostino.
16 MR. TOBEROFF: I would like to
17 object to this exhibit because the --
18 despite the inferences in the affidavit,
19 which I find somewhat misleading, the check
20 is actually, I believe, a 1987 check. If
21 you look at the markings on the back of the
22 check, it says City National, JE-87, so
23 it's a 1987 check we are talking about.
24 Q. So, Mr. Romita, I know it's a little
25 hard to read, so, for the record, of the back

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Page 123
1 Romita - Confidential
2 the book. The number on the bottom is 396 is
3 the bottom number there, if that's easier to
4 look at. Page 34 of the internal numbering.
5 A. I have it. "Super Slurpee."
6 Q. Yes. If you look on the left side
7 of the page there, it says "RT." Do you see
8 where it says that the first time? The first
9 little thing with the italics.
10 A. Roy Thomas, yes.
11 Q. Okay. So Roy Thomas asks you --
12 says: "He was one of the best guys around for
13 drawing animals in action. So how did things
14 go bad for you at Timely?"
15 And then it says "Romita," and
16 that's you, right, Romita?
17 A. Yes.
18 Q. "Around 19 57 was when Stan and I
19 were at our lowest ebb in our relationship. In
20 the last year, he cut my rate every time I
21 turned in a story. He was not even talking to
22 me then. He was embarrassed, because he had
23 given me raises for two years every time I went
24 ln, and then he took it all away. I went from
25 $44 a page to $24 a page in a year."

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Page 124 ,
1 Romita - Confidential
2 Then Roy Thomas says: "As Gil was
3 fond of saylng, "comics giveth and comics
4 taketh away."
5 And then Romita, that's you, says:
6 "Virginia kept saying, "well, how long are you
7
going to take the cuts until you go somewhere
8 else?" And I told her, "I'll hang on, I'll
9 hang on." Then, when it came time that he ran
10 out of money and had to shut down, or cut down
11 to the bone, I had done two or three days'
12 work, ruling up the pages, lettering the
13 balloons, and blocking in the figures on a
14 story -- and here comes a call from his
15 assistant -- she had beautiful bangs, beautiful
16 brown hair, I forget her name, but she was
17 adorable and she says, "John, I have to tell
18 you that Stan says to stop work on the Western
19 book because we're going to cut down on a lot
20 of titles." I said to her, "well, I spent
21 three days on it. I'd like to get $100 for the
22 work, to tide me over." She said, "okay, I'll
23 mention it to Stan." I never heard another
24 word about the money, and I told Virginia, "if
25 Stan Lee ever calls, tell him to go to hell."

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Page 125
1 Romita - Confidential
2 And that was the last work I did for him until
3 1965."
4 Do you see that?
5 A. Yes.
6 Q. Is that consistent with your
7 recollection?
8 A. That's exactly my recollection. I

9 would never forget that.


10 Q. Is there anything in that statement
11 that you don't agree with today?
12 A. No.

13 Q. Let's turn a little later in that


14 book to page 160.
15 A. 160 or
16 Q. 160.
17 A. We are in the 300s already.
18 Q. I'm sorry. 522.
19 A. Yeah, I have it, 522.
20 Q. Okay. Down towards the bottom of
21 the left column on page 160 or Romita 522 lS

22 the Bates stamp on this, it says "JA." Do you


23 know who JA is?
24 A. Jim Amash.
25 Q. Okay. So this lS a different

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Page 191
1 Romita - Confidential
2 bring the pages to him for him to ink and he
3 would pay me.
4 Q. Do you recall whether or not he
5 would pay you when he got paid or pay you when
6 you turned in your penciling?
7 A. I can't remember exactly. It might
8 have varied depending probably on how much his
9 bank balance was. It seems to me I got paid as
10 soon as I gave him the pages.
11 Q. Just, again, as a word of caution or
12 advice, I know you are trying to answer my
13 questions to the best of your ability, but if
14 you really don't know one way or another, I
15 don't want you to speculate.
16 A. Okay.
17 Q. So do you know one way or another
18 whether you were paid upon turning the
19 penciling in or when Mr. Zakarin was paid?
20 A. I can't remember.
21 Q. And Stan Lee was at Timely at this
22 time when you were doing work for Mr. Zakarin?
23 A. According to Mr. Zakarin, that's who
24 he was working for.
25 Q. But you didn't meet Stan?

TSG Reporting- Worldwide 877-702-9580

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2 A. I didn't meet Stan until 1951.
3 Q. And at that time you began working
4 for Atlas Comics?
5 A. Timely was the company. It was
6 Atlas, but Timely was the company that my
7 checks were made out by. I think they were
8 subsidiaries. I don't know.
9 Q. So you were doing work by Atlas but
10 you got checks from Timely?
11 MS. SINGER: Objection.
12 A. All I knew is I was -- they were
13 Timely Comics when I went up there. That's the
14 only memory I have of it. In retrospect I
15 remember that the books used to have Atlas. I

16 think Atlas was the distributor. Atlas Comics


17 were distributing -- distributing Timely Comics
18 and other comics, I think.
19 Q. And you were --
20 A. Just a guess.
21 Q. And you were working freelance at
22 this time?
23 A. Yes.
24 Q. You were not a salaried employee?
25 A. No, sir.

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2 Q. At the time you were ghost penciling
3 for Mr. Zakarin, did you do work for any
4 other -- anyone else?
5 A. I believe I did. The time
6 relationship is vague and almost gone, but I
7 know I did a story for Famous Funnies, a
8 romance story, a twelve-page story, and I also
9 did some work for Avon Comics, which was
10 another publisher. Lester Zakarin had all of 11

11 these publishers in his book and he kept [;


12 leading me to work.
13 Q. What about Trojan Comics?
14 A. There was a Trojan Comics, believe
15 it or not. Yes, I did a couple of covers for
16 Trojan Comics. A western and a crime, a crime
17 cover. A little man with a cowboy hat. That's
18 all I remember.
19 Q. And this was prior to 1951?
20 A. Yes.
21 Q. Now, after you started working as a
22 freelancer with Atlas in 1951, did you do
23 freelance work for other comic book companies?
24 A. I did, yes.
25 Q. Do you remember some of the names of

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I
1 Romita - Confidential
2 those companies?
3 A. The only company, I believe, was DC
4 Comics. I might have done some Avon past in f'

5 2001 or 2002. I'm not sure. I don't believe


6 so, because I was in the army and I didn't have
7
a lot of time. I think I was just doing work
8 for Stan Lee, but I did later on, after I got
9 out of the army I did some work for DC, romance
10 comics, while I was working with Stan.
11 Q. And when you were working with Atlas
12 you had no written agreement; correct?
13 A. Correct.
14 Q. And did you select and pay for your
15 own materials?
16 A. Yes, I did.
17 Q. And you worked out of your home?
18 A. Yes.
19 Q. Purchased your own paper and
20 pencils?
21 A. Yes.
22 Q. Where did you buy them?
23 A. There was two stores near -- Sam
24 Flax and Art Brown. When I worked at DC, I
25 used to go to Art Brown. When I worked at --

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2 for Stan I did -- I went to Sam Flax, I
3 believe.
4 Q. At what time did -- you mentioned, I
5 believe I'm not attempting to quote you, but
6 I believe you mentioned that work started to
7 1:
slow down in the late 1950s. Is that correct? 1:

8 A. Yes.
9 Q. Did the work start to slow down by
10 mid 1957?
11 MS. SINGER: Objection.
12 You can answer.
13 A. I believe it was in the period of
14 about 18 months, like late '56 to mid '58,
15 something like that, because my reference to
16 the fact that every time I went in, I got a
17 cut, every like once a month or once every two
18 months I would get a cut in rate, so it needed
19 a few months to accumulate to lose me $20 plus
20 ln my page rate.
21 Q. We looked up ln the Grand Comic
22 Database -- are you familiar with that database
23 on the Internet?
24 No.
A.
25 Q. It's a database that lists

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2 inaccuracies.
3 Q. Now, if you would turn to Bates
4 number 458. When I say "Bates numbers," those
5 are the little printed pages on the bottom. It
6 says ROM 458.
7 I have it.
A.
8 Q. On the top right-hand -- towards the
9 top right-hand corner Mr. Amash asks you the
10 following question: "Why were you saving
11 pencil stubs?" And you answer: "When you're a
12 freelancer for 15 years, and you have to buy
13 your own materials, you don't waste anything.
14 I've still got some brushes from like 40 years
15 ago. And she would always reveal that kind of
16 stuff. She'd say, "this guy is crazy"."
17 A. Marie Severin.
18 Q. Do you see that?
19 A. Yes.
20 Q. Why don't you waste anything when
21 you are a freelancer?
22 A. Well, because if you are making a
23 small amount of money, every penny counts when
24 you are expending it. She used to make fun of
25 me all the time, make cartoons of me hoarding

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2 pencils and papers. She was a very funny
3 woman.
4 Q. In 1958 was Atlas experiencing
5 financial difficulties?
6 A. Absolutely.
7 What was the reason for that; do you
Q.
8 know?
9 A. Two reasons. Well, this may be my
10 own -- first of all, the comic industry was
11 under fire because of an old crank who claimed
12 that comic books led to juvenile delinquency
13 and the comic companies pulled their horns in
14 and tried to defend themselves and stammered
15 their way through the congressional hearings
16 and it looked very bleak for comics. They
17 bailed themselves out by instituting a Comics
18 Code Authority which they all put money up to
19 create an impartial code authority which would
20 pass judgement on comics and make them family
21 friendly and child friendly. The other problem
22 was that all the companies were over-extended.
23 They had too many titles and each one of their
24 titles could only sell a certain amount because
25 they were in competition with themselves. They

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2 would put out fifty to sixty titles, mostly
3 garbage, because you can't get fifty or sixty
4 good books out, there aren't good enough --
5 enough good artists. I fought for thirty years
6 to have Marvel cut down on the amount of books
7 they put out, because it was always suicide to
8 over-produce. So between the over-production
9 and glutting the market with garbage and the
10 Senate hearings, comics was about to go under.
11 That's why in '58 Marvel --Marvel Comics
12 Timely Comics shut down to two books from fifty
13 titles.
14 Q. From fifty to two?
15 A. At least -- two may have been an
16 exaggeration, but they cut down to the bone.
17 There was only like two or three artists
18 working. Dick Ayers and -- I have forgotten
19 the other guy. Don Heck. These were the only
20 guys that Stan kept on. I was not one of them.
21 Q. Would you say they cut down by
22 A. By just letting people go.
23 Q. By about 90 percent or more
24 possibly?
25 A. I don't know how many artists he

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Page 202 '


1 Romita - Confidential
2 had. Whatever it was, it was dozens down to
3 two, or a dozen artists down to two, whatever
4 it was, yes.
5 Q. So at that point you stopped selling
6 your work to Marvel and started doing business
7 with DC?
8 MS. SINGER: Objection.
9 You can answer.
10 A. I went to DC then, yes. Because I
11 had done romance with them I had an opening
12 there and I called them up and they had work
13 for me doing romance comics.
14 Q. I'd like you to turn to Bates number
15 374, turn back to it, please.
16 A. Got it.
17 Q. I believe this is an interview you
18 were questioned on previously entitled 50 Years
19 On the "A" List.
20 A. Correct.
21 Q. Do you recall giving this interview
22 with Roy Thomas?
23 A. Yes.
24 Q. Is there anything that you believe
25 is inaccurate in this interview?

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2 Mr. Amash that there was something inaccurate
3 about his quotes of your statements in this
4 interview?
5 A. Not that I remember.
6 Q. Turn to page, please, 428. In the
7
first column of the interview it says, if you
8 look at the second full paragraph on the left
9 side: "Timely publisher Martin Goodman used to
10 close shop at the drop of a hat. If expenses
11 got too high, he'd say "the hell with it," and
12 close shop. Nobody had any protection because
13 there were no pensions, no severance pay or
14 insurance plans, or saving plans. Everyone who
15 worked in comics were flying by the seat of
16 their pants."
17 A. True.
18 Q. Is that a true statement?
19 A. That was my impression.
20 Q. That's your understanding?
21 A. That was my impression of the way
22 the industry -- the way he ran his company. I
23 wasn't very bright.
24 Q. Does what you said about Marvel also
25 apply to your experience at DC after you left

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2 Marvel in 1958?
3 MS. SINGER: Objection.
4 A. You are asking did I think DC was
5 run better than Marvel?
6 Q. No, I am just saying does your
7 comment about everyone who worked in comics
8 were flying by the seat of their pants, did
9 that apply to your work at Marvel after you
10 left Marvel in --
11 A. I had no
12 Q. Excuse me. Did that apply to your
13 work at DC after you left Marvel?
14 A. The same things applied. I had no
15 insurance, no security.
16 Q. You can turn to page -- just one
17 moment. Sorry. Turn to page Bates number 407.
18 A. Yes.
19 Q. On the left side towards the top of
20 the page in the interview Roy Thomas asks you:
21 "In other words, don't eat for six months and
22 maybe we'll give you work again? They did that
23 with young mystery writers in the late '60s
24 which is how we got Marv Wolfman, Gerry Conway,
25 Len Wein" --

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2 A. Len Wein.
3 Q. Len Wein, excuse me -- "and several
4 other guys over at Marvel." Do you see that?
5 A. Yes.
6 Q. And you respond: "DC didn't even
7 say that. When (editor) Jack Miller told me
8 and of course he was on the frying pan
9 already -- I remember asking him, "could you
10 introduce me to some of the other editors?"
11 And he said, "nah, I don't think so -- they
12 I
aren't looking for anybody." He told me,
13 "listen, you're a freelancer. You're not on
14 contract. You're free to go and get work
15 anywhere."
16 MS. SINGER: I think you missed a
17 line there.
18 A. Yeah, the type on this book is
19 terribly small. That's probably why most
20 people don't read every line.
21 Q. Oh, excuse me. "And he said, "nah,
22 I don't think so -- they are looking for
23 anybody."
24 A. "They aren't looking."
25 Q. "They aren't looking for anybody."

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1 Romita - Confidential
2 He never even got off his ass to introduce me
3 to anybody. He told me, "listen, you're a
4 freelancer. You're not on contract"."
5 A. Yes.
6 Q. Does this comport with your
7 understanding of how things were back at those
8 days?
9 A. This was a shining example to
10 confirm my opinions. Yes. And he was a prize
11 package. He didn't last long.
12 Q. But as a freelancer you were free to
13 work for whoever you wanted to?
14 A. Sure, as long as they were not
15 putting you under kind of -- occasionally an
16 editor would tell you, "if you work exclusively
17 for me, I will give you first crack at the
18 scripts," which was a verbal promise that they
19 couldn't always keep, but some people fell for
20 it. I think Stan Lee said that to me when I
21 went and did romance stories for DC. He put me
22 ln that spot.
23 Q. So Atlas was sometimes referred to
24 as Timely and vice versa?
25 A. Timely was one of the -- one of the

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1 Romita - Confidential
2 out."
3 Is that correct that you worked at
4 home from 1949 to 1965?
5 A. Correct.
6 Q. And you did this work at home as a

7 freelancer?
8 A. Correct.
9 Q. And then in 1965 you were employed
10 by Marvel?
11 A. Right.
12 Q. To make sure I understand your
13 previous testimony, for the first few months at
14 Marvel you continued to work as a freelancer?
15 A. Yes. I worked at home.
16 Q. And then that changed and you began
17 working at Marvel as a salaried employee?
18 A. Yes. In 1966, January of 1966.
19 Q. How many months did you work as a
20 freelancer?
21 A. I believe it was from some part of
22 July, five months.
23 Q. So you started there in July 1965?
24 A. I believe, yes, i think. DC let me
25 go sometime in June or July.

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1 Romita - Confidential
2 '58 when things started to wind down at Marvel,
3 then you went to DC in 1958. Between 1958 and
4 1963 --
5 A. '64. '65.
6 Q. Between 1958 and the time in mid '65
7 when you went back to Marvel, did you do any
8 work for Marvel?
9 A. No. I wouldn't even answer the
10 phone for the first couple of years.
11 Q. What does that mean?
12 A. Well, at first I didn't want to talk
13 to him. I was mad at him. Secondly, when I
14 did answer the phone, I would ask him how
15 much are you -- I was getting $44 a page to do
16 love stories and I asked Stan -- he would call
17 up and say "come back to Marvel," and I would
18 say, "how much are you paying a page? He said,
19 "$25 a page." I said, "Stan, I have got a kid
20 to raise. I'm not gonna do it," and that was
21 it. I had two kids at the time.
22 Q. So during that period you didn't do
23 any work with Marvel?
24 A. No, absolutely.
25 Q. Just to be clear, when you said

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1 Romita - Confidential
2 "absolutely," "absolutely I did not"?
3 A. Not during that period.
4 Q. Did you work with Jack Kirby between
5 1958 and 1963?
6 A. No.
7 Q. And, again, when was the first time
8 you met Jack Kirby?
9 A. In '65. Sometime between July and
10 January he was in the office and I was
11 introduced to him.
12 Q. That was the story you recounted --
13 A. Where he was correcting someone's
14 art.
15 Q. Do you know what Jack Kirby was paid
16 per page during the years between 1958 and
17 1963?
18 A. I wouldn't have the slightest clue.
19 Q. Did you ever ask Jack Kirby what his
20 business relationship was with Marvel during
21 those years?
22 A. No. We never asked questions like
23 that of each other.
24 Q. I'd like you to turn to -- back to
25 Exhibit 6, which is the big one.

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EXHIBIT G

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Page 1
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3

4 MARVEL WORLDWIDE, INC.,


MARVEL CHARACTERS, INC. and
5 MVL RIGHTS, LLC,

6 PLAINTIFFS,

7 vs. No. 10-141-CMKF

8 LISA R. KIRBY, BARBARA J. KIRBY,


NEAL L. KIRBY and SUSAN N. KIRBY,
9

DEFENDANTS.
10

11

12

13

14 VIDEOTAPED DEPOSITION OF NEAL KIRBY


15 Los Angeles, California
16 Wednesday, June 30, 2010
17

18

19

20

21

22

23 Reported by:
24 SUSAN A. SULLIVAN, CSR #3522, RPR, CRR
25 JOB NO. 31595

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Page 2
1 June 30, 2010
2 10:17 a.m.
3

4 VIDEOTAPED DEPOSITION OF NEAL KIRBY,


5 taken by Plaintiffs, at the offices
6 of Paul Hastings, 515 South Flower
7 Street, Los Angeles, California, before
8 Susan A. Sullivan, CSR, RPR, CRR, State
9 of California.
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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Page 3 1
1 A P P E A R A N C E S:
2

3 WEIL, GOTSHAL & MANGES, LLP


4 Attorneys for the Plaintiffs
5 767 Fifth Avenue
6 New York, New York 10153
7 (Not Present)
8 -and-
9 HAYNES AND BOONE, LLP
10 Attorneys for the Plaintiffs
11 1221 Avenue of the Americas, 26th Floor
[t
12 New York, New York 10020 r
1.:
13 BY: DAVID FLEISCHER, ESQ.
14

15 TOBEROFF & ASSOCIATES, P.C.


16 Attorneys for the Defendants
17 2049 Century Park East, Suite 2720
18 Los Angeles, California 90067
19 BY: MARC TOBEROFF, ESQ.
20

21 Also Present:
22 ELI BARD, Vice President, Deputy General
23 Counsel, Marvel Entertainment, Inc.
24 Videographer:
25 BRENT JORDAN

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Page 50
1 A I couldn't recall. Since we have grown up
2 so --
3 Q Do you recall when the last time you
4 discussed that topic with any of your sisters?
5 A I probably discussed it with Lisa within
6 the past year, I would think.
7 Q What do you recall saying to Lisa and what
8 do you recall her saying to you during the course of
9 that discussion?
10 A I believe I was just relating a certain
11 story, you know, we were just talking on the phone
12 and something jogged my memory about a certain story
13 and we just kind of discussed that for a few minutes.
14 Q What story were you talking about?
15 A I believe it was when he was creating Thor.
16 Q And what do you recall telling Lisa at that
17 time about Thor, its creation?
18 A Well, my father was always very interested,
19 he loved mythology, he loved studying religion and
20 history, just knew all about it, his bookshelves were
21 just loaded with that kind of stuff, so as a kid I
22 was always at that time more into history than I was
23 science but we would have long discussions about it.
24 But I kind of got into it, I guess you might say, on
25 a more practical basis and I remember kind of

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Page 51
1 standing by his drawing board as he was kind of doing
2 the Thor character and he had the big, if I remember
3 right, either Thor or one of the other characters
4 that had big horns coming out of the helmet and I
5 said a real Viking wouldn't have big horns coming out
6 of his helmet and we were laughing and that was about
7 it. I think my father kind of laughed and made some
8 statement that well, this isn't, you know, Viking
9 reality, it is a visual impact, so he gave me a
10 little art lesson there.
11 Q Do you know whether the drawing that your
12 father was working on that you witnessed was the
13 first iteration of the Thor character or some
14 iteration of the character after it was first
15 published?
16 MR. TOBEROFF: Compound.
17 A I believe it was the first.
18 Q And how did you, what is the basis for your
19 belief that it was the first?
20 A I recall his -- we were -- we were talking
21 about the -- about Thor's costume and he was doing it
22 for the first time and, again, there were other
23 things. I think I had made some comment about the
24 big circles on the front of the character and, you
25 know, again my father was, you know, jokingly,

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1 jokingly referring to visual impact other than
2 possible reality of what a true Viking might have
3 worn.
4 Q What led you to believe it was the first
5 drawing your father was doing concerning the Thor?
6 MR. TOBEROFF: Asked and answered.
7 A Again, the same thing. The basic creation
8 of the costume.
9 Q Did your father tell you that this was the
10 first drawing he was making of Thor?
11 A He did refer to doing a new character, yes.
12 Q And was it the Thor character or some other
13 character that became part of the Thor comic book?
14 A No, it was the Thor character.
15 Q And your recollection is that part of the
16 costume that he was creating had a helmet with horns?
17 A I believe so, yes.
18 Q Do you know whether or not your father had
19 had discussions with anyone at Marvel before
20 undertaking the Thor project?
21 A No, I have no knowledge of that.
22 Q Did you have an understanding at the time
23 that you were witnessing your father drawing Thor for
24 the first time that was being drawn for Marvel as
25 opposed to some other publisher?

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Page 57
1 New York, gave it to them; they looked at it, they
2 bought it or didn't and on he went.
3 Q Did you have any understanding at the time
4 that part of the function of the meetings was to
5 discuss future assignments or work?
6 MR. TOBEROFF: Assumes facts.
7 A No, I didn't.
8 Q Am I correct then that you have no
9 knowledge whatsoever of any discussions between your
10 father and Stan Lee concerning your father's work for
11 Marvel?
12 A I was never a party to any discussion.
13 Q Did your father ever tell you anything Mr.
14 Lee had said to him?
15 A He never -- I don't recall. I don't recall
16 anything specific where my father said something like
17 Stan said this or anything, no.
18 Q Do you have any recollection of your father
19 bringing in artwork that Marvel did not pay for?
20 A Yes, I do because, I know from time to time
21 it was kind of a topic of discussion at the dinner
22 table where my father would be upset, he might have
23 brought in some pages and whatever might have been
24 something that they didn't like with the pages and
25 they had to redo them and I would know he and my

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1 mother would discuss he would get upset because, from
2 what I understand, he didn't get paid for those
3 pages.
4 And how did you come to the understanding
Q
5 that he wasn't paid for those pages?
6 A I believe he mentioned it and I believe my
7 mother mentioned it as well.
8 Do you have any specific recollection with
Q
9 regard to any particular pages that you recall your
10 father saying he had not been paid for?
11 A Well, I do recall, I know it was one page
12 in particular but I don't know specifically the page,
13 it was a Thor cover. I could not tell you what issue
14 or anything. But I believe they said it was too
15 detailed for the inker and they sent it back to him.
16 I know about that one particular page because several
17 years later in the early seventies he gave it to a
18 very good friend for a Chanukah present.
19 And that was a drawing in pencil for a Thor
Q
20 cover?
21 A Yes, ln pencil.
22 Q Do you have a recollection of who the
23 friend was who received the drawing?
24 A Yes, I do.
25 Q Who?

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1 year. Just not that often because of the business.
2 Q How does he spell his last name?
3 A F-o-1-k-m-a-n.
4 And he lives in Thousand Oaks?
Q
5 A Yes.
6 Q Do you know whether your father ever
7
attempted to sell the Thor drawing that we're talking
8 about, the one that was too detailed for the inkers?
9 A Prior to giving it to Mr. Folkman?
10 Q Yes.
11 A Not to my recollection.
12 Q Do you recall any other occasion in which
13 your father was not paid for work that he brought in
14 for Marvel?
15 A Other than like I mentioned previously,
16 having, him having a discussion with my mother,
17 something to that topic, on a couple of occasions and
18 that one page specifically, no.
19 Q Can you be more specific about what you
20 recall being said between your mother and father on
21 this topic of not being paid?
22 A I don't recall specifically, I just recall,
23 you know, my father and my mother being upset about
24 some, from time, very, very -- it was rare, but just
25 being upset about doing some pages that he had to --

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1 he didn't accept and he wasn't getting paid for it.
2 Q Do you remember when those discussions
3 occurred?
4 A We are talking time frame of years?
5 Q Yes, years.
6 A I am guessing early sixties.
7 MR. TOBEROFF: I just want to make it clear
8 that you are entitled to estimate and sometimes
9 people when they're estimating say they're
10 guessing but I don't want you to guess.
11 A Okay.
12 MR. TOBEROFF: If you have a basis; for
13 example, sitting in this room you can estimate
14 the length of this table but if you never came
15 into the room you would be guessing.
16 Q Is it your best recollection that this
17 discussion between your mother and father that you
18 were privy to occurred in the early 1960s?
19 A In the early 1960s, yes.
20 Q And you would have been somewhere between
21 12 and 15 at the time?
22 A Yes, about that.
23 Q Were any of the other members of the family
24 present at those discussions or that discussion?
25 A At that particular discussion I really, I

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1 Q Did you have an understanding of whether he
2 was one of the most highly paid artists or in the
3 middle of the pack or in the bottom of the pack?
4 MR. TOBEROFF: Compound.
5 Q In the 1958-1963 timeframe.
6 MR. TOBEROFF: Compound.
7 A At that time, no, I would have no idea of
8 that.
9 Q Did you ever discuss with your father
10 specific contributions he made to characters or
11 stories that were published by Marvel?
12 MR. TOBEROFF: Assumes facts.
13 A We would have discussions or at least if I
14 was watching him work where he would be saying "I'm
15 doing a new character" or something to that effect,
16 yes.
17 Q Did he ever tell you what was triggering
18 his work on a new character?
19 MR. TOBEROFF: Vague.
20 A A specific character?
21 Q Yes.
22 A Well, I could -- in one instance I think
23 Sergeant Fury, I think it was called the Howling
24 Commandos if I remember correctly, that was based on
25 a comic he had done I believe in either late fifties,

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1 I believe, called, I think it was called Combat, and,
2 of course, on his personal war experiences.
3 Q And how did that relate to the creation of
4 a new character for Howling Commandos?
5 A How did his previous experience relate to
6 that?
7 Q Yes.
8 A Just the fact that my father had been in
9 combat in World War II and the fact that he had done
10 a combat comic previously which I guess he enjoyed,
11 you know. I don't want to say expounding on combat,
12 but I think he wanted to express to people what
13 soldiers were going through.
14 MR. FLEISCHER: Do you want to take a few
15 minutes? We can go off the record.
16 THE VIDEOGRAPHER: Off video at 12:28 p.m.
17 (Recess)
18 THE VIDEOGRAPHER: Back on video at 12:36
19 p.m.
20 BY MR. FLEISCHER:
21 Q Mr. Kirby, do you know whether your father
22 had been asked by anyone at Marvel in connection with
23 the work that he was doing on the Nick Fury and the
24 Howling Commandos book to populate the story with new
25 characters?

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1 or something like that.
2 Q Have you seen that interview or article
3 anytime within the past several years?
4 A No, I haven't.
5 Q Can you recall any other instances in --
6 withdrawn.
7 Do you recall any other instances in which
8 your father relayed discussions he had had with Stan
9 Lee about the work your father was doing at Marvel?
10 A Again, specific, you know, dates and times
11 I can't give you but I know in that period in the
12 early to mid-sixties before I went off to college on
13 a couple of occasions, I know we discussed more so as
14 I got a little bit older as a teenager, more so he
15 would just discuss his frustration with not getting
16 the credit he believed he should be getting, either
17 through some interview that Stan Lee gave or
18 whether -- again, whether it was on air or print I
19 couldn't be specific, but we did discuss that on a
20 few occasions.
21 Q Apart from the specific instance that you
22 recall with respect to Fantastic Four, can you recall
23 the specifics of any of those instances where your
24 father relayed to you statements made to him or
25 others by Stan Lee that were the subject of concern

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1 to your father?
2 A I can remember one instance, again I do not
3 recall if it was a print interview or, you know,
4 on-the-air interview or what it might have been, but
5 I do recall one instance involving the creation of
6 Thor and I guess Stan had taken -- he had created
7 that and my father was very upset about that. He
8 said Thor was his idea, his creation.
9 Honestly, given my father's interest in
10 mythology and Norse mythology and, again, biblical
11 history and all kind of history, that kind of thing
12 just flowed out of his mind. I mean, to me just from
13 my knowledge of comic history, and I'm not a comic
14 historian by any means, but my knowledge of it and my
15 personal history, the thought of Stan Lee, honestly,
16 coming up with concepts of, you know, Thor, Loki and
17 Ragnarok, The Rainbow Bridge and every other part of
18 Norse mythology coming out of Stan Lee's mind is
19 relatively inconceivable.
20 Q Do you know for a fact that the original
21 concept that became Thor was not devised by Stan or
22 someone else at Marvel?
23 A Well, it was devised by my father, the
24 creation of Thor. I have no reason to believe that
25 my father would lie to me about something like that.

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Page 86 ;
1 Marc.
2 Q Do you recall ever being aware that your
3 father was compensated other than on a page rate
4 basis by DC Comics?
5 A Not that I'm aware of. I know that on many
6 occasions I would go with my mother or my father or
7 both to the art supply store to buy his supplies and
8 my mother would write a check for whatever they
9 purchased. Neither she nor my father ever mentioned
10 to my recollection about ever getting reimbursed for
11 that.
12 Q Did they ever say they weren't being
13 reimbursed for that?
14 A I know on occasion I believe my mother said
15 something to the effect of, you know, how expensive
16 the paper was, you know; something to the -- you
17 know, effect that they had to pay for it. In other
18 words, I do not recall my mother saying -- well, I
19 probably should say I don't recall but --
20 Q I don't want you to guess. Your counsel
21 cautioned you about that.
22 A Right.
23 Q But if you have a recollection, whether it
24
lS vague or specific, we specifically want it.
25 A I know that, I do recall, you know, my

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1 specific area.
2 Are you aware of whether Stan Lee has ever
Q
3 asserted ownership rights with respect to any of the
4 work that he did for Marvel over the years?
5 A I am not aware. I really don't know one
6 way or the other.
7 Did your father ever discuss with you any
Q
8 agreement or understanding that he had with any comic
9 book publisher as to who would own the rights to the
10 work that he did for that publisher?
11 A Not that I can recall.
12 Q You testified that while living in East
13 Williston you recalled witnessing your father at work
14 in his studio.
15 A Uh-huh.
16 Q Which I think I've seen referred to as the
17 dungeon.
18 A The dungeon, correct.
19 And you have described or mentioned the
Q
20 character Thor that you saw him working on.
21 A Uh-huh.
22 Do you recall any other specific characters
Q
23 that your father was working on in his studio that
24 you watched him draw?
25 A Probably every one of them. I mean, from

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1 the course of, I don't know from, maybe when I was
2 eight years old onward, maybe even younger, up until
3 I left for college it was kind of my daily habit. I

4 would come home from school, go downstairs, you know,


5 say hi to my father, see what he was working on, you
6 know. He would kind of tell me what he was drawing,
7 what he was doing.
8 I would go upstairs, get a snack, get my
9 books and I would go back down in the basement to do
10 my homework because I kind of liked being in
11 proximity. And I was doing homework, go into the
12 studio and watch, go back out and do homework. And
13 eventually we would get my homework done and we would
14 watch T.V. together. At least I watched T.V. while
15 he worked.
16 Now did your father ever discuss with you
Q
17 any deadlines he had in connection with the work that
18 he was doing for Marvel?
19 A He would occasionally say that, you know,
20 that he had to get a certain story in by a certain
21 day or something to that effect.
22 Q And I think you said that at certain points
23 in time your father often worked into the -- worked
24 16- to 18-hour days.
25 A Yes.

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1 If I recall your testimony earlier.
Q
2 A Uh-huh.
3 Do you know why he worked those long hours?
Q
!
4 A He worked those long hours because he was f
5 getting paid by the page. The more pages he could
6 do, the more money he earned.
7 Do you recall whether those hours had
Q
8 anything to do with his effort to meet specific
9 deadlines?
10 A Specifically, I couldn't say. Those long
11 hours were consistent over the years. It wasn't like
12 a deadline coming up, I'm going to work long hours.
13 Those were his consistent hours.
14 Q Would you say those were his consistent
15 hours between 1958 and 1963?
16 A I would say at least ln the period of my
17 good memory, if you wanted to do that, at least in
18 the -- through, say, early sixties through when I
19 went off to college, yes.
20 Q Just to set the context for how old you
21 were at the time, in 1958 you would have been 10,
22 correct?
23 A 10, yes.
24 Q And when would you put the point at which
25 your recollection is its best with regard to the

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I
Page 93
1 events concerning your father's work?
2 A Probably from that point to when I went,
3 left for college in September of '66, and my
4 recollection during those years was that he always
5 kept very long work hours. He would start working
6 around lunchtime usually and would work until usually
7
3:00 or 4:00 in the morning. Sometimes -- sometimes
8 he had to start earlier and sometimes he would go
9 later. But always put in a lot of hours, usually
10 six, seven days a week. There wasn't any weekend he
11 didn't work.
12 Q Did you have any sense at the time, at any
13 point between the time that you were 10 and you went
14 off to college as to where in the spectrum of comlc
15 book artists' compensation your father stood?
16 A At that time, no.
17 Q Did you later come to have an understanding
18 about where he stood in the spectrum from low to high
19 of compensation during those years?
20 A I never had an understanding or I never
21 knew where he stood let's say in relation to a
22 specific artist and I never knew exactly how much he
23 got paid for, you know, per page. I mean, however,
24 obviously I -- they had a house and we all ate every
25 day so I assume he made enough money.

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1 your father confided work-related issues in the
2 fifties or sixties at any time?
3 A No, I'm not aware of any. There might have
4 been but not that I can recall.
5 Q You were never present at a conversation
6 where you heard your father discussing work issues
7 with another non-family member; is that correct?
8 A Correct. That would be correct.
9 Q I want to go through a few specifics with
10 regard to some of the characters that are the subject
11 of the termination notices at issue in this and let
12 me start with Spider-Man.
13 Do you have any information with regard to
14 the circumstances under which the Spider-Man
15 character was created?
16 A I'm not -- I'm not aware of any specific
17 information as to the creation of Spider-Man.
18 Q Do you know if your father created the
19 Spider-Man character or co-created the Spider-Man
20 character?
21 A I'm aware that he had a hand in the
22 beginnings of the character and in the design of the
23 character. You know, again, as to meetings that
24 might have taken place, I wouldn't have been privy to
25 that.

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1 Q When you say you are aware he had a hand in
2 the beginning of the character or the design of the
3 character, what do you mean?
4 A In terms of -- well, that would involve
5 creating the character, I would suppose, if you are
6 creating the design of the character.
7 Q Do you know whether your father did the
8 illustrations for the first published book in which
9 the Spider-Man character appeared?
10 A I believe he did the first cover. I don't
11 recall if he did the first book or part of the first
12 book. But I do know that he did at least the first
13 cover, possibly more.
14 Q Did you ever hear your, either of your
15 parents indicate in your presence that your father
16 did not create or co-create Spider-Man?
17 A Hear from my parents that he did not.
18 Q Yes.
19 A Not in my presence.
20 Q Did you ever hear your mother correcting
21 people if they suggested that he had co-created or
22 created Spider-Man?
23 A Again, I don't recall an instance of that
24 happening.
25 Q Have you ever discussed the issue of how

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1 what I believe in just trying to come up with new
2 characters as he always did, you know, that I might
3 question as to being inaccurate. As to the style of
4 drawing, whether he didn't think my father suited the
5 character and Nick did, that I couldn't attest to. I
6 could just attest to what my father, you know, said
7 at the time which was that he was too busy to do the
8 script based on his other work.
9 Q Did your father tell you that the idea for
10 Spider-Man was his?
11 A I believe he did say that, and I can't
12 recall his exact words from that time ago, but, you
13 know, I do recall him saying that, you know, they had
14 discussed a new character with the powers of a spider
15 and so on. I remember him because if I remember, I
16 do remember there was a discussion, he was telling
17 me, you know, how he was going to get his powers,
18 might have a radioactive spider or something like
19 that, so I do remember that discussion.
20 Q Do you know whether those concepts that you
21 have just described were precipitated by Stan Lee or
22 your father or some other way?
23 A At the moment, you know, I don't recall,
24 you know, as to whether, you know, exactly how my
25 father worded that. I know in the future sometimes

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1 Q Have you ever seen the interview your
2 father appears to have given to The Spirit creator
3 Will Eisner concerning the Spider-Man character?
4 MR. TOBEROFF: Assumes facts not in
5 evidence.
6 A No, I haven't seen that interview.
7 Q What information, if any, Mr. Kirby, do you
8 have concerning the circumstances of the creation of
9 the Iron Man character?
10 A I'm trying to recall. At this time I don't
11 have any recollection of Iron Man specifically, how
12 that came about.
13 Q Do you know what contribution, if any, your
14 father made to the Iron Man character?
15 A Again, I believe at the very least, I
16 believe he designed the costume. As to the initial
17 idea and creation of the character, I'm sure at the
18 very least he probably contributed to that.
19 Q Is that just shear speculation on your
20 part?
21 A Well, I wouldn't call it speculation, I
22 would call it based on -- based on the knowledge of
23 that he pretty much had a hand in everything Marvel
24 did and based on my knowledge of his creativity.
25 Q Well, was he the artist assigned to draw

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1 A He never mentioned to me that he worked off
2 a synopsis and usually he was penciling stories in
3 the margins of the comics. He usually, if I could
4 jump in there, he usually started, he always started
5 in the middle of a story and then he went back to the
6 beginning and then he would finish up and do the end,
7 that was just the way he worked. I would think if
8 you are working off a story or a synopsis that you
9 don't need to do that but --
10 Q As you have indicated, though, you don't
11 know what conversations may have occurred between
12 Stan and your father before you saw him working on a
13 drawing, correct?
14 A I wouldn't have been privy to those
15 conversations.
16 Q Right. And you don't know whether or not
17 your father had been given a synopsis or a script
18 before he began working on a particular story; is
19 that correct?
20 MR. TOBEROFF: Asked and answered.
21 A Yes. I never saw a script or synopsis by
22 his drawing board.
23 Q What information, if any, do you have
24 concerning the creation of The Fantastic Four?
25 A In discussions with my father The Fantastic

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1 Four basically was a derivative of the, from what he
2 told me, basically he came up with the idea just as a
3 derivative from the Challengers of the Unknown that
4 he had done several years earlier.
5 Q So your father told you that The Fantastic
6 Four was his idea?
7 A Yes.
8 Q Did your father ever tell you about any
9 discussions that he had with Stan Lee concerning The
10 Fantastic Four?
11 A Any specific discussions, not that I can
12 recall.
13 Q Did your father ever discuss with you any
14 synopsis that Stan Lee had given to your father?
15 A No, he never discussed that with me and as
16 I said previously, I never saw him work on a
17 synopsis.
18 (Neal Kirby Exhibit 3, a document, Bates
19 Nos. MARVEL0014587 to MARVEL0014588, marked
20 for identification, as of this date.)
21 MR. FLEISCHER: Would you mark that as
22 three, please.
23 MR. TOBEROFF: I just want to clarify, any
24 document that you produce in this action will
25 have Bates stamps and if it is a document like

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1 MR. TOBEROFF: He is not finished.
2 Q Did I interrupt you?
3 A That would be fine, yes.
4 Q What specific characters did your father
5 tell you that he had named?
6 A Specifically I could say The Fantastic
7 Four, I suppose you could say all the characters in
8 Thor although obviously they had been previously
9 created about a thousand years ago, Sergeant Fury.
10 That's what I could think of right now. There may
11 have been more but that's what my memory is coming up
12 with at the moment.
13 Q I think you indicated that Sergeant Fury
14 was a book that your father had worked on prior to
15 the resurrection of the title in the sixties; is that
16 correct?
17 A Well, he had done a comic book in the 1950s
18 which, if I remember correctly, was called Combat.
19 Whether the characters' names in that comic book were
20 the same as the characters in Sergeant Fury, I don't
21 recall that at the moment.
22 Q What specific names did your father tell
23 you that he had given to the various characters of
24 Combat or the later version which I think you said
25 was called Sergeant or Nick Fury and the Howling

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1 Commandos?
2 A Right. Well --
3 MR. TOBEROFF: I don't think he said Nick
4 Fury, Sergeant Fury.
5 MR. FLEISCHER: The witness is perfectly
6 capable of --
7 MR. TOBEROFF: You are misstating his
8 testimony.
9 MR. FLEISCHER: It is not your role --
10 MR. TOBEROFF: I disagree.
11 MR. FLEISCHER: -- to interject what you
12 think is a misstatement of the testimony.
13 MR. TOBEROFF: I disagree.
14 A Well, I know that he did a Nick Fury. I
15 don't recall the names of the other characters in
16 that little ensemble group at the moment. The Combat
17 comic book was not a specific group, it was basically
18 war stories.
19 Q So what was the relationship, if any,
20 between the Combat series and the Sergeant Fury
21 series other than the fact that they both involve war
22 stories?
23 A I think it was just a progression going
24 back to the 1940s where he did Boy Commandos and that
25 was an ensemble group if you want to use that word.

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1 And then the next opportunity for a war book being
2 the Combat book which was just really a compilation
3 of stories.
4 Q Now do you -- and the basis for your
5 statement that your father created the name Sergeant
6 Fury or Nick Fury, whichever is appropriate --
7 A Sergeant Nick Fury.
8 Q Sergeant Nick Fury is what?
9 A That he told me.
10 Q Any other information concerning the name
11 of that character that you have?
12 A Not that I can recall.
13 Q And am I correct that you have no knowledge
14 with regard to conversations that occurred between
15 your father and Stan Lee concerning Sergeant Nick
16 Fury prior to the introduction of that character? Is
17 that correct?
18 A It is correct in saying that my father
19 didn't -- in my discussions with my father that did
20 not come up.
21 Q And you weren't present at any
22 conversations as you have indicated between your
23 father and Stan Lee.
24 A That would be correct.
25 Q Do you recall who was the assigned writer

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1 it over the weekend I promise but, no, I don't recall
2 that part of the deposition.
3 Q Do you have any information to suggest that
4 the idea and concept of Ant-Man was something other
5 than an idea of Stan's assigned by your father to
6 work on?
7 A Again, I would have no information to that
8 and I would have no recollection of it.
9 Q What information, if any, do you have
10 concerning the circumstances of the creation of the
11 X-Men comic book and character?
12 A I believe the X-Men my father came up with
13 and in doing something a little bit different rather
14 than the bitten by the atomic bug kind of thing,
15 actually having mutants born in that way and what
16 their kind of -- I think he wanted to tell a story
17 there that you had people that were different and
18 subjected to persecution. That was always -- that
19 was always my take on it.
20 Q Apart from your take which I take it is
21 inferential, what firsthand knowledge do you have
22 about the circumstances of the creation of X-Men?
23 A Well, my firsthand knowledge again comes
24 from standing around the drawing board and watching
25 him draw the X-Man and basically asking him what's

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1 going on and him explaining the characters. Usually
2 he would say something to the effect of this is a new
3 story I've come up with, what do you think of this
4 and here is where I'm going with this. That's how
5 our discussions would go.
6 Q Specifically with regard to the X-Men did
7 your father say the concept and basic story of the
8 X-Men universe was solely his creation?
9 A I do recall him saying again along those
10 same lines this is the new characters and story, you
11 know, I've come up with.
12 Q You read Mr. Lee's testimony concerning the
13 creation of X-Men, correct?
14 A Yes, I did.
15 Q And Mr. Lee testified under oath that the
16 concept was his and that he assigned the book to your
17 father, correct?
18 A Uh-huh.
19 Q Do you have any reason to believe that that
20 testimony was not correct?
21 A Again, as I stated before, my reasons for
22 not believing Mr. Lee is that, you know, I have no
23 reason not to disbelieve my father and pretty much
24 every reason to disbelieve Mr. Lee. I just don't
25 believe in his deposition he was telling the truth or

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1 maybe he just didn't recall the truth properly. I
2 will try to be somewhat respectful.
3 Q Are there -- apart from your own
4 recollections of what your father told you that you
5 have testified about with respect to X-Men, are you
6 aware of any evidence to corroborate your belief that
7 the X-Men story was a creation solely of your
8 father's?
9 A I am not aware if you are referring to like
10 some kind of written evidence or -- I'm not quite
11 sure exactly what you are referring to.
12 Q Any -- any evidence, whether it is written
13 or something you observed.
14 A Well, I observed him drawing X-Men, Number
15 1, and talking -- and talking to the -- talking about
16 the story with me so, again, that's where it is
17 coming from. I have no knowledge, I cannot recall
18 anything about there being any other type of written
19 evidence that might exist.
20 Q Well, if your father had been assigned the
21 story by Mr. Lee who had suggest an outline for the
22 story or a synopsis, whether verbally or in writing,
23 you would have still observed your father drawing the
24 first issue of X-Men, correct?
25 MR. TOBEROFF: Argumentative.

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1 basis of my discussions with my father. If you are
2 asking me to make determinations of copyright law as
3 to who owns what creation, I certainly don't have the
4 game stance for that kind of question.
5 Q No, my question is very specific. My
6 question is what specific characters which are the
7 subject of those notices do you and your sisters
8 contend were created solely by your father.
9 A Well, I cannot speak for my sisters. I can
10 speak to myself from my knowledge of discussion with
11 my father and this would be The Fantastic Four and,
12 of course, Galactus and, of course, Silver Surfer,
13 Nick Fury, Thor. That's what I can recall right now.
14 Q Do you contend that Spider-Man was the sole
15 creation of your father?
16 A I would contend that my father had a hand
17 in the creation.
18 Q So the answer to my question is you don't
19 contend that Spider-Man was the sole creation of your
20 father?
21 A Well, I don't have -- it would be my
22 recollection at the moment that he had at the very
23 least a very large part in the creation.
24 Q And do you have any information as to who
25 had other parts in the creation?

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1 denying that allegation.
2 A The factual basis is like we've discussed
3 over the past several hours; that it is our family's
4 contention that my father's contribution was much
5 more than just here is an idea, go draw it.
6 Q And I understand what you are contending.
7 I'm asking what the factual basis for that is given
8 the testimony that you have already given that you
9 don't know what preceded your father's work on the
10 drawings that he did for Marvel.
11 MR. TOBEROFF: Argumentative, misstates
12 prior testimony, asked and answered as to
13 "factual basis."
14 MR. FLEISCHER: This is the last
15 deposition, Marc, that you will get a away with
16 this at.
17 MR. TOBEROFF: Ask a proper question.
18 A My factual basis is like I have stated
19 several times previously and going on the basis of
20 what my father told me during our discussions.
21 Q You have indicated very clearly that your
22 father never did work for Marvel on spec, correct?
23 A In terms of -- maybe I need to qualify
24 that, okay? In terms of would my father have pitched
25 an idea, if you don't mind my using the word "pitch,"

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1 you know, met with somebody else saying gee, I have
2 this good idea for a character, you know, would you
3 like to go for it, that he would have done it, you
4 know. Definitely I would consider that coming up
5 with an idea and speculation. There's no -- there's
6 no guarantee if you are going to come up with an idea
7 that they're going to say yea, nay or otherwise. I'm
8 sorry.
9 MR. TOBEROFF: Feel free to finish your
10 answer.
11 A In terms of would he, maybe this was a
12 little confusing before, what I was trying to get at.
13 In terms of would he sit down and spend
14 three days, four days, however long, actually
15 doing -- I don't recall how long comic books were at
16 the time, I think they were 22 pages, something like
17 that, would he sit down and do a 22-page comic book
18 and then bring that in to -- bring that in to Stan
19 Lee or anyone else and go, "Would you like to buy
20 this," probably not. Because if they said no he is
21 out five days worth of work and all those pages. So
22 in regards to just to clarify my statement as to, you
23 know, as to on spec.
24 Q So if I understand what you are saying, you
25 believe that he never sat down to draw a story until

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1 difference between a trademark and a copyright?
2 A I really don't understand the difference
3 between the two. It is only conjecture.
4 Q Are you aware of any attempts by you or
5 your siblings to exploit any intellectual property
6 rights with respect to any of the characters or
7 stories your father created for Marvel?
8 A I am not aware of any.
9 Q Have you or your sisters ever attempted to
10 exploit any intellectual property rights with respect
11 to characters or stories your father created for
12 other publishers?
13 A I can only speak for myself. I haven't. I
14 have no idea about my sisters.
15 Q Are you aware of any attempts by Lisa or
16 any of your other sisters to exploit intellectual
17 property rights with respect to characters or stories
18 created by your father for publishers other than
19 Marvel?
20 A I don't -- I'm not aware of anything for
21 other publishers, no.
22 Q Are you aware of any attempts on their part
23 to exploit rights with respect to characters or
24 stories published by Marvel?
25 A No, I'm not aware of anything along those

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JA1594
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1 to be worded, that's not my area of expertise.
2 Q You were willing to suggest that the credit
3 that was given to your father on the Hulk film was
4 inappropriate in some fashion.
5 A Yes. Because I would have preferred the
6 word "created" in it as I mentioned before.
7 Q Are you aware that Wolverine's first
8 appearance was in 1974 well after your father had
9 stopped work on X-Men?
10 MR. TOBEROFF: Assumes facts not in
11 evidence.
12 A No, I was not aware of that. No. I don't
13 recall that.
14 Q Did you do any research to determine
15 whether any of the characters that were the subject
16 of your notices were in fact created by your father
17 or co-created by him?
18 A I did some.
19 Q What research did you do?
20 A Oh, just some with books that I have or a
21 little talking with my sister and so on.
22 Q Which sister?
23 A Lisa.
24 Q And what books?
25 A Oh, just the coffee table history of comic

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1 kind of books.
2 Q Can you be more specific? Are these books
3 that you have in your home?
4 A Yes, they are.
5 Q And do you still have them in your home?
6 A I do, yes.
7 Q And do you recall specifically what titles
8 and what authors?
9 A No, I can't at the moment. There's one
10 book by Mark Evanier which I guess is the newest
11 book. I think it is just titled "Jack Kirby, King of
12 Comics," I believe.
13 Q Did you ever inquire of Mr. Evanier as to
14 whether he had any direct knowledge of the
15 circumstances of the creation of the characters that
16 your father drew for Marvel?
17 A No, I haven't had any conversations with
18 Mark Evanier.
19 Q Do you know if Mark Evanier was privy to
20 any of the meetings or discussions at Marvel between
21 your father and Stan Lee?
22 A Mark Evanier, as far as I know, would not
23 have been around at that time.
24 Q Do you know what the basis for Mr.
25 Evanier's statements in the book that you relied on

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1 litigation was commenced?
2 A No.
3 I'm mean, I'm sorry, yes, you are correct
4 in that.
5 Q Are you aware of any significance these
6 pages have to the issue of the circumstances of the
7 creation of any of the characters depicted in these
8 pages?
9 A That I honestly cannot say that I'm aware
10 of that.
11 Q Now a lot of the pages have either captions
12 or other handwritten notations other than the ones
13 that appear to be actually printed. Do you see that?
14 A Yes, I do.
15 Q Let's take an example, K 10. Can you
16 identify the handwriting at the foot of the pages
17 saying "Hunters say"?
18 A That would appear to be my father's.
19 Q And do you know what that notation was
20 intended to represent or be?
21 A My father used to add comments in the
22 margins. If sometimes he did not write dialogue
23 directly, from what I understand, he would add those
24 comments to guide the person adding the dialogue in
25 the balloons.

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1 second page of the exhibit as that of your father's?
2 A It does appear to be his signature.
3 MR. FLEISCHER: I have no further
4 questions.
5 MR. TOBEROFF: A couple questions.
6

7 EXAMINATION
8 BY MR. TOBEROFF:
9 Q Just look at the camera.
10 A I'm sorry. I forgot about the camera.
11 MR. FLEISCHER: Do you want to switch
12 places?
13 A No, he is in my good ear so that's fine.
14 MR. TOBEROFF: Do you mind?
15 Q You had testified, and I'm not purporting
16 to quote you exactly, but you testified to the effect
17 that when -- on the issue of your father working on
18 spec that your father, you characterize your father
19 coming up with an idea on his own and then pitching
20 it to Marvel as being on spec. Once Marvel -- in the
21 instances where Marvel said that it liked the idea
22 and proceeded to do work, did you consider that work
23 to be on spec or not on spec?
24 MR. FLEISCHER: Objection.
25 A Well, in the report, in respect to even if

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1 they liked the idea and you would go back and let's
2 say pencil, come up with either character concepts or
3 full pages, I believe he had the understanding that
4
they still might not purchase that work, he would
5 still be out the time.
6 Q And you had given an example of I believe
7 of a Thor cover that was given to a friend of yours
8 as a Chanukah present as an example of an instance
9 where he had done the work and they did not pay him
10 for the work.
11 A Correct.
12 Can you think of any other examples?
Q
13 A Yes, I can. I don't know if I mentioned
14 earlier, I did recall it, there was one instance, I
15 do remember coming home from school and there being
16 some, I believe there were a couple of Thor pages on
17 the kitchen table. That's normally where family
18 things happened, on the kitchen table. I just
19 remember my father being upset that -- he was getting
20 ready to go back downstairs into the dungeon but that
21 he had gone into the city that day and Marvel didn't
22 like those pages so he was upset that he would have
23 to again redo them at his time and expense. I don't
24 know if he use those words exactly, but that was the
25 gist of that.

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1 Was it your understanding that he was paid
Q
2 for those drawings on the kitchen table or not paid?
3 A It was my understanding that he wasn't
4 paid. If they didn't like the work they wouldn't pay
5 him.
6 Are there any other examples that you
Q
7 recall where he had done work and was not paid for
8 his work?
9 A Yes. I recall another time after we went
10 into, one time I went into the city with him and
11 afterwards we went to -- I believe we went to, we
12 were going to go to the Central Park Zoo and he sat
13 down on a bench and I could tell, obviously a kid can
14 tell when their parent is upset and he just -- he
15 always carried this big black leather portfolio,
16 that's what he used to take work into the city, and,
17 you know, just kind of looking through that, looking
18 at the pages, and it was kind of the same thing. He
19 just said that he was upset. He had some pages. I

20 think they were Fantastic Four. I don't know how


21 many pages or what issue or any of the details but it
22 was kind of the same situation that he had those
23 pages that he had brought in but he needed to redo
24 new pages. So, again, same thing. That he was upset
25 that he would have to take the time to do it and so

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1 on and not be paid for it.
2 MR. TOBEROFF: I have no further questions.
3

4 FURTHER EXAMINATION
5 BY MR. FLEISCHER:
6 Did something happen between --
Q
7 MR. TOBEROFF: Just a second. I would like
8 a time count on the time.
9 THE VIDEOGRAPHER: Right now we're at SlX

10 I'
hours and 51 minutes.
11 MR. TOBEROFF: You've got nine minutes not
12 counting my time.
13 Q Did anything happen to refresh your
14 recollection about the zoo incident and the Thor
15 incident that you just described between the time you
16 testified earlier today about those questions and
17 your testimony a minute ago?
18 A I wouldn't say anything in particular
19 happened but I just happened to think of them.
20 Q Did Mr. Toberoff do anything to refresh
21 your recollection with regard to those issues?
22 A No, on the contrary. I told Mr. Toberoff
23 that I had thought of a couple more instances.
24 Q And with respect to the Thor pages, do you
25 know if your father made any changes on those pages

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EXHIBITH

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Page 1
1 SUSAN MERYL KIRBY
2 UNITED STATES DISTRICT COURT
3 SOUTHERN DISTRICT OF NEW YORK
4

6 MARVEL WORLDWIDE, INC., MARVEL)


CHARACTERS, INC., AND MVL, )
7 RIGHTS, LLC, )Civil Action No.:
) 10 CIV. 141
8 Plaintiffs,) (CM) (KNF)
v.
9

LISA R. KIRBY, BARBARA J.


10 KIRBY, NEIL L. KIRBY,
AND SUSAN KIRBY,
11

Defendants.)
12

13
14
15 VIDEOTAPED
16 DEPOSITION OF: SUSAN MERYL KIRBY
17 DATE: October 25, 2010
18 TIME: 10:00 a.m.
19 HELD AT: Ethan Allen Hotel
21 Lake Avenue Extension
20 Danbury, Connecticut
21

By: Sarah J. Miner, LSR


22
23
24

25 TSG JOB NO. 34010

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Page 2
1 SUSAN MERYL KIRBY
2 A P P E A RAN C E S:
3 Representing the Plaintiff:
4 David Fleischer, Esq.
Haynes and Boone, LLP
5 1221 Avenue of the Americas, 26th Floor
New York, New York 10020
6 david.fleischer@haynesboone.com
7

8 Representing the Defendants:


Marc Toberoff, Esq.
Toberoff & Associates, PC
9 2049 Century Park East, Suite 2720
Los Angeles, California 90067
10 mtoberoff@ipwla.com
11

12

13 Also Present:
14 Peter CoFrancesco
15

16

17

18

19

20

21

22

23

24

25

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Page 9
1 SUSAN MERYL KIRBY
2 you?
3 A. She was in California. I don't remember her
4 residence address. She had an apartment there in, I
5 don't remember what town, somewhere near Ventura.
6 Q. Do you know how long she had been in
7 California before moving back?
8 A. Several years, because she had lived with my
9 parents before she got her own place.
10 Q. Would you tell me when your birth date was?
11 A. 12/6/45.
12 Q. You are the daughter or one of the daughters
13 of Jack Kirby, right?
14 A. Yes, the eldest.
15 Q. Do you have any memory of being present while
16 your father worked on projects involving Marvel
17 characters?
18 A. Yes.
19 Q. Do you have any recollection of discussing
20 with your father the work he was doing for Marvel?
21 A. Yes. I was in his office a lot, because he
22 had a vast library of books, because he was into
23 everything. And I used to go down there and read, so
24 I used to read his books, and stuff, and one day I was
25 upstairs, and morn told me to go downstairs because Dad

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1 SUSAN MERYL KIRBY
2 was creating some new super heroes. So I went
3 downstairs, and he said, "I want you to see this." He
4 said, I named the female super hero after you, her
5 name is Sue," Sue Storm he was talking about, it was
6 the Fantastic Four.
7 Q. Do you remember what year that was?
8 A. Oh, gosh, I was a teenager, that is all I
9 remember, maybe 15 or 16, so 1961, '62.
10 Q. And when you went downstairs did you discuss
11 with your father what he was doing?
12 A. Yes.
13 Q. What did you say to him? What did he say to
14 you?
15 A. I said it looked great. There were three
16 characters on the board, three of the four. And I
17 asked about who they are, and he told me who each one
18 was. And I said, "It looks great, they look great".
19 Q. Do you recall anything else being said
20 between the two of you at that time?
21 A. Not at that particular conversation, no.
22 Q. How long would you say you had that
23 conversation with your father?
24 A. Oh, about an hour or so.
25 Q. And do you know what conversations, if any,

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Page 37
1 SUSAN MERYL KIRBY
2 siblings about acquiring the rights to any works your
3 father contributed to, published by someone other than
4 Marvel?
5 A. No, I have never had that conversation.
6 Q. Did you have an understanding when you were
7 living in East Williston about the economic terms of
8 your father's relationship with any publisher?
9 A. Well, I knew that Marvel paid him by the
10 page, and that he and mom used to argue about it,
11 because he would be up all night doing pages, and
12 Marvel would say, "Well, we don't want to buy this."
13 Then they would go ahead and make him do the whole
14 thing over again, and he would just get paid for the
15 artwork that he did over again. So he was doing
16 things twice, and getting half the money.
17 Q. When do you recall hearing a conversation to
18 that effect?
19 A. Early '60's, late 'SO's.
20 Q. Do you know what character or characters were
21 involved in those discussions?
22 A. No.
23 Q. Was there any mention of who it was that was
24 asking your father to redo pages or correct pages?
25 A. From what I recall Stan Lee.

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1 SUSAN MERYL KIRBY
2 A. Everyone knows my Dad. I have talked to a
3 lot of people about him. They would come up, and say,
4 "we know your Dad's work, he is really fantastic."
5 And I would say, "Thank you, I appreciate that."
6 Q. Did your father ever discuss with you the
7 contributions of any other people to the characters
8 that he worked on for Marvel?
9 A. Absolutely not.
10 Q. Did your mother ever discuss with you, or in
11 your presence, the contribution of anyone else to
12 characters your father worked on while at Marvel?
13 A. No.
14 Q. Have you ever become aware of any gifts made
15 by Marvel to your mother?
16 A. No, I am not aware of any.
17 Q. Are you aware of any money paid to your
18 mother after your father's death?
19 A. No, I am not aware of it.
20 Q. Money paid by Marvel?
21 A. I don't believe so, no.
22 Q. Did you ever hear your father complain that
23 he didn't own anything that he had worked on published
24 by Marvel?
25 A. Just the stuff that Marvel bought from him

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1 SUSAN MERYL KIRBY
2 that they obtained the rights to it. And he was upset
3 about that.
4 Q. What did he say about that?
5 A. Just that, you know, he didn't have the
6 rights to his work, and he was upset in case something
7 happened in the future. I know they were having
8 trouble with the checks Marvel sent them, because they
9 had a lot of writing on the back that they said --
10 where they said they owned -- that they bought and
11 owned Dad's work, and Mom didn't understand it. So
12 she went around the block, one of my friend's father li

13 I
was a lawyer. And I went to see him. So she called
14 his father and said, "Can I talk to you?" And she
15 went and showed him the checks. And he said, "Well,
16 this just says that they own the rights of the
17 characters they bought from Dad." That lS all I
18 remember about that.
19 Q. Did you ever see any of the writing on the
20 back of the checks?
21 A. No, I don't remember. Mom never discussed
22 finances with me. She just showed me the checks,
23 because she said they were confusing.
24 Q. Well, did you look at the writing on the back
25 of the check?

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Page 46
1 SUSAN MERYL KIRBY
2 A. I looked at it. It was confusing to me, too.
3 I said you better talk to Bernie Flegal about that.
4 Q. Approximately what year was this?
5 A. I can't remember that. I was a teenager,
6 maybe 1960.
7 Q. Do you remember becoming aware of any action
8 taken with respect to the writing on the back of the
9 checks by your father?
10 A. No, I don't.
11 Q. Are you aware of any complaint that your
12 father made to Marvel with regard to the writing on
13 the back of the checks?
14 A. I am not aware. I am just aware of the fact I
15 that the lawyer told, Mr. Flegal told my mother, that
16 it was an unusual thing to do.
17 Q. How did you come to know that?
18 A. Mom told me.
19 Q. Are you aware of any advice your mother gave
20 your father with regard to the checks?
21 A. No. I know he had to sign them, because he
22 had to feed his family. That is the only way to do
23 it.
24 Q. Were you aware of any written agreements,
25 other than what may have been on the checks, between

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EXHIBIT I

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Page 1
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3

4 MARVEL WORLDWIDE, INC.,


5 MARVEL CHARACTERS, INC. and
6 MVL RIGHTS, LLC,
7 PLAINTIFFS,
8

9 vs. NO. 10-141-CMKF


10
11 LISA R. KIRBY, BARBARA J. KIRBY,
12 NEAL L. KIRBY and SUSAN N. KIRBY,
13 DEFENDANTS.
14
15
16 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
17 VIDEOTAPED DEPOSITION OF STAN LEE
18 LOS ANGELES, CALIFORNIA
19 MAY 13, 2010
20
21
22 REPORTED BY:
23 CHRISTY A. CANNARIATO, CSR #7954, RPR, CRR, CLR
24 JOB NO.: 30189

25

TSG Reporting 877-702-9580

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Page 2 ti
1

7 May 13, 2010

8 9:35 a.m.

10

11

12

13 Deposition of Stan Lee, taken on behalf of

14 Plaintiffs, held at the offices of Paul Hastings,

15 515 South Flower Street, 25th Floor, Los Angeles,

16 California, before Christy A. Cannariato,

17 CSR #7954, RPR, CRR.

18

19

20

21

22

23

24

25

TSG Reporting 877-702-9580

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Page 3
1 A P P E A R A N C E S

3 REPRESENTING THE PLAINTIFFS:

5 WEIL, GOTSHAL & MANGES, LLP

6 BY: JAMES W. QUINN, ESQ.

7 RANDI W. SINGER, ESQ.

8 767 FIFTH AVENUE

9 NEW YORK, NY 10153

10

11 -AND-

12
13 HAYNES AND BOONE, LLP

14 BY: DAVID FLEISCHER, ESQ.

15 1221 AVENUE OF THE AMERICAS, 26TH FLOOR

16 NEW YORK, NY 10020

17

18
19 REPRESENTING THE DEFENDANTS:

20
21 TOBEROFF & ASSOCIATES, P.C.

22 BY: MARC TOBEROFF, ESQ.

23 2049 CENTURY PARK EAST, SUITE 2720

24 LOS ANGELES, CA 90067

25

TSG Reporting 877-702-9580

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Page 4
1 APPEARANCES (Cont'd)

2
3

4 FOR THE WITNESS:

6 GANFER & SHORE, LLP

7 BY: ARTHUR LIEBERMAN, ESQ.


8 360 LEXINGTON AVENUE, 14TH FLOOR

9 NEW YORK, NY 10017

10 REPRESENTING

11

12

13

14

15

16

17

18 ALSO PRESENT:
19 BRENT JORDAN, VIDEOGRAPHER

20 ELI BARD, MARVEL ENTERTAINMENT

21

22

23

24

25

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Page 10
1 S. LEE

2 DeWitt Clinton High School. And that's about the extent

3 of it.

4 Q. And when did you graduate from DeWitt Clinton

5 High School?

6 A. You know, honest to God, I don't remember the

7 year, but I did graduate.

8 Q. Fair enough. And did you serve in the

9 military?

10 A. Yes. I was ln the US Army Signal Corps ln

11 World War II.

12 Q. And how long were you ln the military?

13 A. Three years.

14 Q. And could you briefly, or as briefly as you

15 can, tell us your employment history after you left DeWitt

16 Clinton High School?

17 A. Well, I had a lot of different jobs. I was --

18 I wrote obituaries for a press service. I was an office

19 boy. I was an usher. I did some advertising for the

20 National Jewish Hospital at Denver. I never knew what I

21 was supposed to be advertising, whether telling people to

22 get sick to go to the hospital, but ...

23 And finally I got a job at a place called

24 Timely Comics which published comic books.

25 Q. And approximately when was that? The late

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Page 11
1 S. LEE

2 1930s, 1940s?

3 A. I think it must have been 1939 or 1940,

4 somewhere around there.

5 Q. And what was your first job responsibility at

6 Timely?

7 A. Well, I was hired by two people, Joe Simon and

8 Jack Kirby, who were producing the comics at that time for

9 this company which was called Timely Comics.

10 Q. And

11 A. And my job was to really be an assistant. I

12 went down, and I got them their lunch sandwiches for them,

13 and I filled their -- in those days they dipped the

14 brushes in ink and used pencil sharpeners. And I

15 sharpened the pencils. I erased the pages after they were

16 finished. And I did whatever an assistant or an office

17 boy would do.

18 Q. And at that time who was running or owned

19 Timely?

20 A. The company was owned by a man named Martin

21 Goodman.

22 Q. And he was the publisher?

23 A. Yes.

24 Q. And did Timely -- is Timely a predecessor or

25 did Timely eventually become what we now know as Marvel?

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Page 17
1 S. LEE

2 what it was, or in a script if I felt there was too much

3 dialogue or too little dialogue, it was -- it was up to me

4 to make the stories as good as I could make them.

5 Q. Now, you mentioned that you did perform

6 services not only as an editor but also as a writer.

7 A. Mm-hmm.

8 Q. Did you consider the services you performed as

9 a writer part of your duties as the editor or something

10 additional?

11 A. Well, I never thought of it that way. I was

12 the Editor. I was the Art Director. And I was also a

13 staff writer.

14 Q. And how were you paid ln connection with the

15 work that you did?

16 A. How was I paid?

17 Q. How were you paid ln connection with the work

18 as Editor and as a writer?

19 A. I received a salary which paid me as Editor

20 and Art Director, but I got paid on a freelance basis for

21 the stories that I wrote.

22 Q. And when you say you were paid on a freelance

23 basis, how were you paid? On what basis?

24 A. The same as every other writer. I was paid

25 per page, so much money per page of script.

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Page 23
1 S. LEE
2 I said sometimes I can't remember. And he said, "Stan,
3 don't you remember? Sometimes if somebody wanted a job as
4 an inker at our place," and an inker is somebody who goes
5 over the pencil drawings with ink so that they can be
6 reproduced better at the engraver, he said, "If we wanted
7 to test an inker to see how good he'd be, we would take
8 one of the pages of Jack's that you hadn't used and ask
9 the inker to ink over them as samples."
10 And I had forgotten about that, but John
11 Romita -- we were talking about that. It was a few years
12 ago he told me that.
13 Q. And when you had that conversation with Mr.
14 Romita, did that refresh your recollection that you had
15 from time to time rejected pages from Jack Kirby?
16 A. Yeah. Actually probably less from Kirby than
17 anybody else, because he was so good. But I had -- there
18 were times when things had to be rejected for a myriad
19 reasons.
20 (Lee Exhibit 1 marked for identification.)
21 Q. Let me mark as Lee Exhibit 1 an affidavit,
22 it's a document entitled "Affidavit of Stan Lee," and ask
23 you to take a look at that.
24 MR. TOBEROFF: I would like to make a standing
25 objection, if you will agree, otherwise I have to make it

TSG Reporting 877-702-9580


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Page 71
1 S. LEE
2 Q. Could you tell us how the Silver Surfer came
3 about?
4 A. Right. I wanted to have a villain called
5 Galactus. We had so many villains who were so powerful.
6 I was looking for somebody who would be more powerful than
7 any. So I figured somebody who is a demigod who rides
8 around in space and destroys planets.
9 I told Jack about it and told him how I wanted
10 the story to go generally. And Jack went home, and he
11 drew it. And he drew a wonderful version. But when I
12 looked at the artwork, I saw there was some nutty looking
13 naked guy on a flying surfboard.
14 And I said, "Who is this?"
15 And he said -- well, I don't remember whether
16 he called him the surfer or not. He may have called him
17 the surfer. But he said, "I thought that anybody as
18 powerful as Galactus who could destroy planets should have
19 somebody who goes ahead of him, a herald who finds the
20 planets for him. And I thought it would be good to have
21 that guy on a flying surfboard."
22 I said, "That's wonderful." I loved it. And
23 I decided to call him The Silver Surfer, which I thought
24 sounded dramatic.
25 But that was all. He was supposed to be a

TSG Reporting 877-702-9580


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EXHIBIT J

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Page 150
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3

4 MARVEL WORLDWIDE, INC.,


MARVEL CHARACTERS, INC.,
5 and MVL RIGHTS, LLC,

6 Plaintiffs,

7 vs. )Case No. 10-141-CMKF


)
8 LISA R. KIRBY, BARBARA J.
KIRBY, NEAL L. KIRBY and
9 SUSAN N. KIRBY,

10 Defendants.

11

12

13

14

15 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER


16 VOLUME II
17 DEPOSITION OF STAN LEE
18 LOS ANGELES, CALIFORNIA
19 WEDNESDAY, DECEMBER 8, 2010
20
21

22

23

REPORTED BY:
24 Alejandria E. Kate
CSR NO. 11897, HI 448, RPR, CLR
25 JOB NO.: 35197

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Page 151
1

5 DECEMBER 8, 2010
6 9:11 A.M.
7

9 Deposition of STAN LEE, held at the offices


10 of VENABLE LLP, 2049 Century Park East, Suite
11 2100, Los Angeles, California, pursuant to
12 agreement before Alejandria E. Kate, a
13 Registered Professional Reporter and
14 Certified Shorthand Reporter of the State of
15 California.
16

17

18

19

20

21

22

23

24

25

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Page 152
1 A P P E A RAN C E S:
2
3 ATTORNEY FOR THE PLAINTIFFS:
4 WEIL, GOTSHAL & MANGES
BY: JAMES W. QUINN, ESQ.
5 RANDI W. SINGER, ESQ.
767 Fifth Avenue
6 New York, New York 10153
7 -AND-
8 HAYNES AND BOONE
BY: DAVID FLEISCHER, ESQ.
9 1221 Avenue of the Americas
26th Floor
10 New York, New York 10020
11

12 ATTORNEY FOR THE DEFENDANTS:


13 TOBEROFF & ASSOCIATES
BY: MARC TOBEROFF, ESQ. I'
f;
14 NICHOLAS C. WILLIAMSON, ESQ.
JEFFREY R. RHOADS, ESQ. (Page 200)
15 2049 Century Park East
Suite 2720
16 Los Angeles, California 90067
17
18 FOR THE WITNESS:
19 GANFER & SHORE
BY: ARTHUR LIEBERMAN, ESQ.
20 (APPEARANCE VIA VIDEO CONFERENCE)
360 Lexington Avenue
21 14th Floor
New York, NY 10017
22
23 ALSO PRESENT:
24 ELI BARD, Marvel Entertainment
25

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Page 194
1 MR. TOBEROFF: Paragraph 4-G.
2 Q. So pursuant to this subparagraph, in addition
3 to your stock options and your million-dollar salary,
4 you are to receive 125,000 per year to author the
5 syndicated Spider-Man newspaper strip; is that correct?
6 A. Well, that's what this says, yeah.
7 Q. And do you receive money from Marvel to author
8 the Spider-Man newspaper strip?
9 A. I don't think I'm getting that anymore.
10 Q. Were you being paid 125,000 a year to author
11 the Spider-Man strip?
12 A. Well, I must have been if it says it here.
13 Q. Okay. It also says, in Paragraph 4-G, that
14 you had been -- you had been receiving, prior to the
15 1998 agreement, 125,000 a year.
16 When did you first start receiving that
17 amount?
18 A. I don't remember.
19 Q. Do you know whether it was a few years before
20 or one year before?
21 A. No.
22 Q. But you did receive the amount prior to the
23 1998 agreement?
24 A. Well, I must have if it says it here.
25 Q. Okay.

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Page 254 f;

1 il'
(Whereupon, Defendants' Exhibit Number
2 LEE 23 was marked for identification.)
3 MR. TOBEROFF: Exhibit 23 is an amendment
4 dated as of May 2, 2008 to the agreement dated June 11,
5 2007, called a "Cooperation Agreement," between Marvel
6 Entertainment and Stan Lee. Bates Numbers 16141 to 42.
7 Q. Can you please turn to Page 2 of this
8 document, Mr. Lee. Just turn to Page 2.
9 A. Page 2?
10 Q. Yes.
11 A. That's my signature.
12 Q. That was my -- how did you guess that was my
13 question. Thank you. You're a quick study.
14 Now, let's turn back to what was marked as
15 Exhibit 1 in your prior deposition. It's your
16 June 11th, 2007, affidavit.
17 MR. QUINN: It's in here somewhere. I'll find
18 it.
19 THE WITNESS: Oh. Thanks, Jim.

20 BY MR. TOBEROFF:
21 Q. Putting the agreement aside for a second.
22 When did you first start working for Marvel
23 years ago?
24 A. Before it was Marvel.
25 Q. Before it was Marvel.

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Page 255
1 I know Marvel has had various names like
2 Timely and other names.
3 A. Yeah. When I first really started, I was
4 about 17 or 18 years old. So-- what's 17 from-- 22
5 and 17 is, what 32? 35?
6 Q. 39.
7 A. 39. Somewhere around there. 1930s.
8 Q. Does -- does 1940 ring a bell?
9 A. Maybe, yeah.
10 Q. And at the end of 1941, you were promoted to
11 the position of editorial director?
12 A. Right.
13 Q. Please turn to Paragraph 8 of the affidavit.
14 MR. QUINN: On Page 5.
15 THE WITNESS: Got it. That's the easiest
16 part, finding the numbers.
17 BY MR. TOBEROFF:
18 Q. If you go down three-quarters of the way down
19 the page, in that paragraph, you see the sentence that
20 reads, "Although I had no written agreement with
21 Timely, it was our mutual understanding and agreement
22 throughout the 23-year period."
23 Do you see that sentence?
24 A. Yes. That my creative contributions were made
25 as a result of my having been commissioned by Timely to

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Page 256
1 create the works and that Timely would, therefore, own
2 whatever rights existed to any materials I created or
3 co-created for publication by it, including any new
4 characters that I created for publication by Timely and
5 that I had no right to claim"
6 Q. You don't have to read the whole sentence.
7 MR. QUINN: Well, it's good for the record.
8 THE WITNESS: Yeah. That was for the record.
9 MR. TOBEROFF: You keep saying the document
10 speaks for itself.
11 Q. In any event, what I was getting at here is
12 it's correct that you had no written agreement with
13 Marvel for at least the first 23 years you worked
14 there; is that correct?
15 A. You mean I had no agreement before this? I'
16 Q. You had no written agreement with Marvel for
17 at least the first 23 years that you worked there? I'

18 A. I don't know. How do you know?


19 Q. Well, we previously looked at an agreement --
20 a '72 agreement with Cadence, and no earlier agreement
21 has been produced.
22 And I asked you whether you had an earlier
23 agreement with Cadence or Marvel.
24 A. Okay.
25 Q. So it could have been -- actually, since you

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Page 257
1 started working at Marvel in about 1940, 1972, it could
2 have been longer than 23 years, it could have been 32
3 years that you had no written agreement; is that
4 correct?
5 A. I'm trying to remember. I don't know if I had
6 a contract when Cadence took over. If they gave me a
7 contract. There was a contract because -- am I allowed
8 to say this?
9 Q. Yes.
10 MR. QUINN: Whatever your testimony is.
11 THE WITNESS: There was a contract because
12 Cadence wouldn't buy the company unless Martin had me
13 under contract.
14 And I remember him saying to me, "Stan, you've
15 got to sign a contract with me or I won't be able to
16 sell the company."
17 And then he sold the company, so I assume I
18 I know I signed something. Now, I don't have a copy of
19 it. I don't know where it is or what it is. But I
20 know something was signed in order for Cadence to buy
21 the company.
22 Q. So based on that, is it your belief that the
23 first agreement, written agreement you had with Marvel,
24 was shortly before Cadence bought the company?
25 A. I would think so, yes.

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Page 275
1 of the work, using a rubber stamp and ink pad."
2 A. Uh-huh.
3 Q. Do you believe that Millie prepared the text
4 on these rubber stamps?
5 A. That she prepared what?
6 Q. Did Millie prepare the text on the rubber
7 stamps?
8 A. I have no idea who did what.
9 Q. Do you believe that Marvel would have a
10 bookkeeper prepare the text on its rubber stamps?
11 A. I don't know.
12 Q. You did not prepare --
13 A. Oh, no.
14 Q. -- the language on Marvel's rubber stamps, did
15 you?
16 A. I had nothing to do with it.
17 Q. Were you involved with -- in the period 1958
18 to 1963, were you in charge of payroll at Marvel?
19 A. I was never in charge of payroll. I was just
20 in charge of the artists and the writers, the letters,
21 the inkers and the colorists. The people who did the
22 work.
23 Somewhere there was a door, and behind that
24 door were a lot of people at desks with adding
25 machines. And that was the payroll or the bookkeeping

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Page 276
1 department. And I have no idea what went on there.
2 I know there was a girl named Millie who
3 worked there. And there was another guy whose name I
4 forget. And I would call them if a check was late or
5 if an artist called and said, "I didn't get my check."
6 That's all I know about that part of it.
7 Q. Do you know Dick Ayers?
8 A. Yes.
9 Q. And he worked as a freelance comic book artist
10 for Marvel; correct?
11 A. Right.
12 MR. TOBEROFF: I'd like to mark the next
13 exhibit as Lee Exhibit 27, comprising -- it's a
14 two-page exhibit, comprising of copies of two checks
15 from Marvel Comics Group to Richard B. Ayers.
16 (Whereupon, Defendants' Exhibit Number
17 LEE 27 was marked for identification.)
18 BY MR. TOBEROFF:
19 Q. Mr. Lee, these checks, front and back, to
20 Mr. -- to Dick Ayers, aka Richard B. Ayers, were
21 produced by Marvel in this action.
22 I'd like to read to you the legend that
23 appears on the first page, on the back of the first
24 check.
25 A. Uh-huh.

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Page 284
1 over here. I get the one thing where they're all out
2 of order.
3 MR. TOBEROFF: Now, I know why they didn't let
4 you do the payroll.
5 THE WITNESS: I wish you hadn't made it look
6 so easy. Thank you.
7 MR. QUINN: You're very welcome.
8 THE WITNESS: Okay.
9 BY MR. TOBEROFF:
10 Q. I'm just drawing your attention to something
11 that I'm going to read. You can read along with me.
12 On Page 214, the first column, about eight
13 lines down, the interviewer asks, "A little bit of
14 history here."
15 And you reply, "Oh, I'm not good at that. I
16 have no memory."
17 Do you see that?
18 A. Yes.
19 Q. That's it.
20 MR. TOBEROFF: The next exhibit I'd like to
21 mark as Lee 29 -- for now -- I'd like to mark as Lee
22 Exhibit 29, it is entitled "Excerpts from the 1975
23 Stan Lee Panel." And it says, "Held at the 1975
24 San Diego Comic-Con."
25 This is a document Bates Number 1298 to 1302

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JA1632
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Page 285
1 that we produced -- that was produced by Marvel in this
2 action. Excuse me. It was produced by the defendants
3 in this action, not by Marvel.
4 (Whereupon, Defendants' Exhibit Number
5 LEE 29 was marked for identification.)
6 BY MR. TOBEROFF:
7 Q. So I'm just going to draw your attention to
8 the first page, the first column near the top. You see
9 it says, "Stan Lee," and then there are audience
10 questions, and then you respond. So the second
11 audience question, it says, "How did you get started?"
12 Do you see that?
13 A. Yes.
14 Q. And then you respond, and in the third
15 paragraph of your response, it says, "Then I heard
16 there was a job open at Marvel Comics, which was then
17 called Timely Comics, for a reason that nobody has
18 figured out. Jack Kirby and Joe Simon were practically
19 the whole staff, and they -- I better watch what I say
20 because I never know. Jack may be here. I'm not noted
21 for always telling the truth, but at least people don't
22 usually catch me at it. But Jack may remember this, so
23 I'll be careful."
24 MR. QUINN: And then there was laughter.
25 ///

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1 BY MR. TOBEROFF:
2 Q. Do you have any reason to believe you were
3 misquoted in this article?
4 A. I was kidding around with the audience. This
5 was not a serious lecture.
6 Q. I'm just asking whether you said that.
7 MR. QUINN: You heard his testimony.
8 THE WITNESS: You heard my answer.
9 BY MR. TOBEROFF:
10 Q. Did you say this?
11 A. Yes.
12 MR. QUINN: That will show, you don't kid
13 around. 35 years later, it will come back to haunt
14 you.
15 BY MR. TOBEROFF:
16 Q. Mr. Lee, by asking that question, I wasn't
17 implying that you weren't kidding around. I think it
18 stands for -- the interview stands -- Marvel's counsel
19 said it speaks for itself.
20 MR. TOBEROFF: The next exhibit is Exhibit 30.
21 (Whereupon, Defendants' Exhibit Number
22 LEE 30 was marked for identification.)
23 BY MR. TOBEROFF:
24 Q. And this is an interview of you entitled
25 "Stan Lee TV Archives, 2004," which was produced by Roy

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1 Thomas in this case. Bates Number 365 to 82.
2 This is an interview that you appeared to have
3 given with the American Archive of American Television
4 on March 22, 2004.
5 Did you give this interview with the American
6 Archive of American Television?
7 A. Yes.
8 Q. Please turn to Page 3, second column.
9 A. I'm sorry. Did you say Page 3?
10 Q. Page 3, second column. All the way down in
11 your response on the second column -- excuse me, all
12 the way down the second column of that page, you see
13 the questioner is Lisa Tarata, and she asked the
14 following question: "Can you talk a little bit
15 about -- and you mentioned that what the comic book
16 industry was like there. It didn't have a great
17 reputation at the time. But can you just talk a little
18 bit of what the industry looked like in the early
19 '40s."
20 And you respond, "Well, in the early '40s --
21 and, again, I'm not really good at this, I have the
22 word's worst memory for detail," and then you continue.
23 Do you see that?
24 A. Yes.
25 MR. TOBEROFF: I'd just like to show you one

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1 villain. He's Thor's half brother. He's jealous of
2 Thor. He has enchanting powers."
3 I just wanted you to be aware of that
4 deposition testimony.
5 And I want to go back to Exhibit 12, which is
6 "Origins of Marvel Comics," by Stan Lee.
7 A. It's the big thick one. Got it.
8 Q. On Page 185 of that exhibit -- note that
9 Page 184 is blank. On Page 185 --
10 A. Okay. 185 is the script. Right? It's this
11 (indicating).
12 Q. Right.
13 A. No. That's 186.
14 MR. QUINN: No. It's 185.
15 THE WITNESS: 185 is the first page.
16 MR. TOBEROFF: Actually, I'm going to
17 short-cut this. We don't have to go over this.
18 MR. QUINN: Okay.
19 MR. TOBEROFF: You can put it aside.
20 MR. QUINN: He's going to move on.
21 BY MR. TOBEROFF:
22 Q. I'd like to go back to "Son of Origins of
23 Marvel Comics."
24 Chapter 1 of this book is entitled "Make Way
25 for the Mutants."

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1 A. The Memory Mutants.
2 Q. And that refers to the X-Men characters?
3 A. Uh-huh.
4 Q. Is that "yes"?
5 A. Pardon me?
6 Q. That refers to the X-Men characters?
7 A. Oh right. Yes.
8 MR. QUINN: What page are we on?
9 BY MR. TOBEROFF:
10 Q. Turn to Page 14, second full paragraph. It
11 states, "Why not create a group of characters who are
12 born with their unique abilities. We would create a
13 team of mutants."
14 And then further down the page, at the fifth
15 full paragraph, you write, "No sooner did I discuss the
16 basis premise with Jack, then we were off and running.
17 We decided to create two groups of mutants, one evil
18 and the other good. One would be eternally striving to
19 subjugate mankind and the other would be ceaselessly
20 battling to protect the human race."
21 Did you write that?
22 A. Uh-huh. Yes.
23 Q. I'd like to turn to a new exhibit. This is
24 your fault for being so prolific.
25 MR. TOBEROFF: I'd like to mark as Exhibit 38

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1 excerpts from "Five Fabulous Decades of the World's
2 Greatest Comics." And then it states, "Marvel, by
3 Les Daniels, with an introduction by Stan Lee."
4 This book was published in 1991 by Marvel
5 Comics Group.
6 (Whereupon, Defendants' Exhibit Number
7 LEE 38 was marked for identification.)
8 BY MR. TOBEROFF:
9 Q. Are you familiar with this Marvel book?
10 A. I'm not really familiar with it. I've gotten
11 it.
12 Q. Who is Les Daniels?
13 A. I guess he was a guy we hired to write this.
14 I don't really remember him.
15 Q. On Page 111 -- turn to Page 111, second column
16 in 111, the last paragraph on the page.
17 A. Must be here. Okay.
18 Q. On that page, it's written, "Once again
19 Jack Kirby joined Lee as co-creator of the comic book.
20 "'Jack was the best guy to work with, you can
21 imagine,' says Lee. 'Any idea I would give him, he
22 could make it better. When Jack brought in the first
23 story, it opened with all the X-Men fighting in the
24 place they called The Danger Room, where they were
25 trained. That was Jack's idea. And it was the most

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1 brilliant opening because it started with action and
2 showed all their abilities immediately.'"
3 Do you have any reason to believe you did not
4 say that?
5 A. Absolutely true.
6 Q. Now, switching gears to Spider-Man.
7 In your deposition, you stated that you
8 originally asked Jack Kirby to draw Spider-Man. This
9 is on Page 75 lines 6 through 9.
10 Do you recall that?
11 A. Oh, yes.
12 Q. And that you also stated that his work was not
13 used?
14 A. Was not what?
15 Q. That Jack -- the pages Jack Kirby did for
16 Spider-Man were not used in the original issue.
17 A. That's right.
18 Q. During this period, you were the editor of
19 Marvel; is that right?
20 A. Oh, yes.
21 Q. And who handled -- at that time, do you recall
22 who handled -- strike that.
23 MR. TOBEROFF: I'd like to mark the next
24 exhibit as Exhibit 39, exhibit --
25 MR. LIEBERMAN: Did I miss something? Was

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1 there a question?
2 MR. TOBEROFF: No. There's no question. I'll
3 ask the next question when I'm ready.
4 Exhibit 39 is an excerpt from the magazine
5 Comic Scene, which was also retrieved from the Stan Lee
6 Archives of the American Heritage Center of the
7 University of Wyoming. It is an interview of Stan Lee
8 conducted by Clifford Meth, M-E-T-H, and Daniel -- Dick
9 Holtz, H-O-L-T-Z.
10 (Whereupon, Defendants' Exhibit Number
11 LEE 39 was marked for identification.)
12 BY MR. TOBEROFF:
13 Q. Now, these documents that we've retrieved from
14 the Stan Lee archives of the University of Wyoming, are
15 these things that you once had and you donated to the
16 university?
17 A. Yes.
18 Q. Do you recall giving this interview?
19 A. Pardon me?
20 Q. Do you recall giving this interview? This
21 particular interview.
22 A. Peter Paul was doing the interview? I didn't
23 hear what you said.
24 Q. No, no. Let me short-circuit.
25 Do you have any reason to believe you didn't

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1 give this interview?
2 A. Well, let me look at it.
3 No, probably -- if you got it from the
4 archive, I must have done it. Yeah, it looks like an
5 interview I have given. I've given a million
6 interviews, but this looks like one.
7 Q. Now, if you go to page -- please go to
8 Page 36. I'd like to read something from this
9 interview.
10 A. Got it.
11 Q. Halfway down, on the right-hand column of the
12 page, it reads as follows: "To this day, I don't know
13 who made up the Spider-Man costume. It might have been
14 Kirby who did those first few pages and Ditko might
15 have copied Kirby's costume or Ditko might have just
16 made up the costume and disregarded what Kirby did. I
17 can't remember."
18 Now, when you refer here to Kirby's costume,
19 you're speaking of Spider-Man's costume in the first
20 Spider-Man pages that Jack Kirby did before you brought
21 in Steve Ditko?
22 A. Yes.
23 MR. QUINN: Object to the form.
24 You can answer.
25 THE WITNESS: Yes, those were the pages I had

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1 rejected.
2 MR. TOBEROFF: I'd like to mark as Exhibit 40
3 an excerpt from David Anthony Kraft's Comic Interview,
4 Number 5, dated July 1983.
5 (Whereupon, Defendants' Exhibit Number
6 LEE 40 was marked for identification.)
7 THE WITNESS: Well, I'm guessing it's got to
8 be around Page 46.
9 MR. QUINN: Don't guess. Let him do it.
10 THE WITNESS: Well, that's what the contents
11 page said.
12 BY MR. TOBEROFF:
13 Q. On Page 46, is that a picture of you --
14 A. As soon as I get to Page 46.
15 Q. -- on the phone?
16 A. Oh, it's in the beginning. Yes.
17 Q. Okay. Do you have any reason to believe that
18 you didn't give this interview?
19 A. No.
20 Q. On page 49 -- I'd like you to turn to Page 49,
21 in the middle of the right-hand column.
22 A. Yes.
23 Q. It says the following: "I don't know whether
24 this is the case or not, but maybe when Ditko did the
25 story" --

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1 A. The right-hand column? Oh, there it is. I
2 see it.
3 MR. TOBEROFF: Bear with me.
4 Q. You're being questioned about Spider-Man and
5 Spider-Man's costume in the interview.
6 A. Right.
7 Q. And in the -- on the right-hand column,
8 approximately in the middle, you say the following: "I
9 don't know whether this was the case or not, but maybe
10 when Ditko did the story, he used the costume that Jack
11 created. I don't remember."
12 Did -- do you believe you made this statement
13 in the interview?
14 A. Yes.
15 Q. I'd like to go back to exhibit -- what was
16 marked in your prior deposition as Exhibit 12, "Origins
17 of Marvel Comics."
18 A. Back to that book?
19 Q. Yes, please.
20 A. Got it.
21 Q. Now, if you turn to Page 139 of the book,
22 there appears to be a reprint of the first Spider-Man
23 story as it originally appeared.
24 Do you see that?
25 A. Yes.

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1 Q. Do you believe that's the first Spider-Man
2 story?
3 A. Yes.
4 Q. Now --
5 MR. QUINN: Sorry. What page are we on?
6 THE WITNESS: Page 139, I believe.
7 MR. QUINN: Okay. All right.
8 THE WITNESS: Yes.
9 MR. QUINN: Thank you.
10 BY MR. TOBEROFF:
11 Q. And this story is "Amazing Fantasy,"
12 Number 15.
13 That's when Spider-Man first appeared?
14 A. That's right.
15 Q. If you look at the cover of "Amazing Fantasy,"
16 Number 15, there's a blurb that says, "Also in this
17 issue, an important message to you from the editor
18 about the new amazing," exclamation point, end quote.
19 Do you see that?
20 A. Yes.
21 Q. Now, turn to the last page of the Spider-Man
22 story on Page 150, please.
23 A. 150. Okay.
24 Q. Do you see where it says, "Be sure to see the
25 next issue of Amazing Fantasy for the further amazing

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1 exploits of America's most different new teenage idol,
2 Spider-Man."
3 Do you see that?
4 A. Yes.
5 Q. So the next issue would have been Amazing
6 Fantasy, Number 16?
7 A. Right.
8 Q. Now, going back to your May 13 deposition --
9 I'm now switching to a new character. The character of
10 Galactus?
11 A. Galactus. Okay.
12 Q. In your May 13 deposition, on Page 71, at
13 lines 4 through 11, you say the following: "We had so
14 many villains who were so powerful, I was looking for
15 somebody who would be more powerful than any. So I
16 figured somebody would be" -- excuse me. "So I figured
17 somebody who was a demigod, who rides around in space
18 and destroys planets. I told Jack Kirby about it and
19 told him how I wanted the story to go generally. And
20 Jack went home and drew it."
21 A. Right.
22 Q. Do you recall saying that in your deposition?
23 A. Yes.
24 Q. Then later in the deposition, on Page 128,
25 lines 14 through 25, you confirmed as true a statement

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Page 367
1 Martin was in a pretty gloomy mood that day, and he
2 said to me, 'You know, what they don't realize, they
3 don't realize the risk that I'm taking. Because if the
4 books don't sell, it costs. I lose a lot of money, and
5 I have no guarantee the books will sell. And we have
6 periods for months after month after month where I'm
7 losing money, where the books don't sell. But I don't
8 cut their rate. I don't fire them. I try to keep
9 going as much as possible.' And he gave me this whole
10 thing from the publisher's point of view."
11 This is you speaking.
12 Do you remember saying that at your
13 deposition?
14 A. Yes. Now, I do, yes.
15 Q. I'd like to read you an excerpt from the book
16 "Excelsior: The Amazing Life of Stan Lee," by Stan Lee
17 and George Mair. M-A-I-R.
18 A. Mair, I think.
19 Q. This book was published in 2002.
20 MR. TOBEROFF: And please mark it as
21 Exhibit 48.
22 (Whereupon, Defendants' Exhibit Number
23 LEE 48 was marked for identification.)
24 THE WITNESS: We're only up to 48? It feels
25 like we've done a thousand.

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1 BY MR. TOBEROFF:
2 Q. Did you write this book, Mr. Lee?
3 A. I wrote the part that wasn't in italics.
4 Q. And the part in italics was written by
5 George Mair?
6 A. Yeah. George Mair wrote the italics part.
7 Q. Okay. So if you could turn to Page 80, I'd
8 just like to read from the last full paragraph on
9 Page 80.
10 A. Okay.
11 Q. I'll read.
12 "So when a slump would hit, I kept paying our
13 best people to continue doing strips that we really
14 didn't need at the time, knowing we'd eventually have
15 use for them. I simply stored the strips in a large
16 office closet after they were done. To me it was an
17 investment both in people and in inventory.
18 "When Martin one day learned of all the
19 material I had been accumulating for later use, he took
20 an extremely dim view of what I had done. In fact, a
21 dim view is putting it mildly. For starters, he told
22 me that he was running a business and not a charitable
23 institution. Then as he kept warming to the subject, a
24 light suddenly went on inside his head. Martin
25 realized that he had an expensive bullpen being paid

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Page 369
1 every week and a closet full of complete unpublished
2 strips.
3 "He instantly decided he didn't need both. I
4 suppose from a business point of view, it was a
5 rational decision. But I hated it. The bullpen was
6 immediately disbanded. Most of the salaried creative
7 people were let go, while I was ordered to use up all
8 the inventory material.
9 "Martin decided that we would only work with
10 artists and writers on a freelance basis from that day
11 forward, not assigning any strips unless they were
12 definitely scheduled to be used."
13 Do you recall writing that?
14 A. Oh, yes.
15 Q. Is that accurate?
16 A. Yes.
17 Q. And previously you mentioned that in some
18 publicity you would refer to the Marvel bullpen when
19 there wasn't a bullpen.
20 The time when there was not a bullpen refers
21 to the time shortly after all of these Marvel employees
22 were let go; is that right?
23 A. Say that again.
24 Q. Previously, you said that in publicity --
25 A. Yes.

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1 Q. I'm not just speaking in general.
2 A. Right.
3 Q. In the passage I just read, you speak about
4 how, because you had stockpiled an inventory of
5 material, Mr. Goodman felt, Why do we have to keep
6 people on salary, and they were fired -- and I'm
7 paraphrasing -- and he said, From now on we're going to
8 work freelance; correct?
9 A. Well, we had very few artists on salary. I
10 think what it might have meant was he had given some
11 artists guarantees. They would get so much work to do
12 each month. Whether we could -- we always used it, but
13 whether we could use it or not.
14 And I think what he meant when he said to me
15 we're just going to go freelance, we would only buy
16 what we needed, and it wouldn't -- I would never have
17 an opportunity to build up an inventory of unused stuff
18 again.
19 Q. And -- but you did have certain artists and
20 writers who were on staff at Marvel before you
21 converted to a complete freelance model; correct?
22 A. Maybe John Romita was on staff, and
23 Marie Severin was on -- I think as a colorist then, or
24 maybe an artist. But that's about all as far as
25 artists go.

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1 Q. And then they were let go --
2 A. Yes.
3 Q. -- after this edict?
4 A. Yeah. Well, they were no longer -- well, see,
5 again, I don't remember. Romita might have been kept
6 on as art director because we needed somebody to do
7 covers and to do whatever had to be done.
8 But we didn't any longer have guarantees to
9 anybody. And I wasn't just buying things that maybe
10 we'd use and maybe we didn't use.
11 He was just -- he just got very strict with me
12 because I -- I had built up that inventory, which there
13 were strips I liked and I thought we would use them,
14 not realizing the business would be bad and we couldn't
15 publish as many books as we wanted to.
16 Q. I'd like to go to another, Page 94, which is
17 part of this Exhibit 48.
18 A. Got it.
19 Q. You write, "Naturally, as a result of
20 Wertham's War, the market for comic books
21 disintegrated, with artists and writers being fired by
22 the baleful. I was amazed that Martin kept me on, but
23 then he had to have somebody to fire all those other
24 people for him.
25 "Again, it was indescribably difficult for me.

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1 EXAMINATION
2 BY MR. QUINN:
3 Q. You recall that Mr. Toberoff asked you some
4 questions in connection with Spider-Man, and there was
5 some testimony that you gave regarding the fact that
6 you -- the original pages that Kirby had drawn --
7 Mr. Kirby had drawn with regard to Spider-Man, that you
8 had rejected them?
9 A. Right.
10 Q. And you decided to use Ditko, Steve Ditko,
11 instead?
12 A. Right.
13 Q. Did Mr. Kirby get paid for those rejected
14 pages?
15 A. Sure.
16 Q. And did you have a practice at that time with
17 regard to paying artists even when the pages were
18 rejected by you or required large changes?
19 A. Any artists that drew anything that I had
20 asked him or her to draw at my behest, I paid them for
21 it. If it wasn't good, we wouldn't use it. But I
22 asked them to draw it, so I did pay them.
23 Q. I'm going to jump around a little bit.
24 A. You have some filing system.
25 Q. I do.

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1 Q. Now, when you -- when you were serving as an
2 editor at Marvel, in the period 1958 to 1963, you were
3 paid a salary as an editor?
4 A. Yes.
5 Q. And how were you paid for your work as a
6 writer on the comics?
7 A. I was paid on a freelance basis, like any
8 freelance writer.
9 Q. And does that mean you were paid by the page?
10 A. Yes.
11 Q. And was it your belief that because Marvel had
12 bought that work from you, that they owned all right,
13 title and interest in the work?
I
14 A. Yes, I did believe that.
15 MR. TOBEROFF: I'm done.
16 MR. QUINN: Okay. I have nothing further.
17 MR. LIEBERMAN: You may leave, Mr. Lee.
18 THE COURT REPORTER: No stipulation, then?
19 It's Code?
20 MR. TOBEROFF: In California, we do a
21 stipulation.
22 MR. LIEBERMAN: Mr. Lee, leave. We're
23 finished.
24 MR. FLEISHCHER: Why don't we go off the
25 record, Marc, and tell us what stipulation you want to

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EXHIBITK

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Page 207
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3 Case No. 10-141-CMKF
4

5 MARVEL WORLDWIDE, INC.,


6 MARVEL CHARACTERS, INC., and
7 MVL RIGHTS, LLC,
8 Plaintiffs,
9 VS.
10 LISA R. KIRBY, BARBARA J. KIRBY,
11 NEAL L. KIRBY and SUSAN N. KIRBY,
12 Defendants.
13

14

15 Volume II
16 Videotape Deposition of:
17 Roy Thomas
18 Wednesday, October 27, 2010
19 Orangeburg, South Carolina
20

21

22

23

24

25

TSG Reporting- Worldwide 877-702-9580

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Page 208
1 APPEARANCES:
2 FOR THE PLAINTIFFS:
3 MARVEL WORLDWIDE, INC., MARVEL CHARACTERS,
4 IN.C, and MVL RIGHTS, LLC
5 BY: JODI AILEEN KLEINICK
6 PAUL HASTINGS JANOFSKY & WALKER
7 75 East 55 Street
8 New York, NY 10022
9
1:
10 -AND-
11

12

13 ELI BARD
14 VICE PRESIDENT, DEPUTY GENERAL COUNSEL
15 MARVEL ENTERTAINMENT, INC.
16 417 Fifth Avenue
17 New York, NY 10016
18

19

20

21

22

23

24

25 (Appearances continued:)

TSG Reporting- Worldwide 877-702-9580

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Page 209
1 FOR THE DEFENDANTS:
2 LISA R. KIRBY, BARBARA J. KIRBY,
3 NEAL L. KIRBY and SUSAN N. KIRBY
4 BY: MARC TOBEROFF
5 TOBEROFF & ASSOCIATES
6 2049 Century Park East
7 Suite 2720
8 Los Angeles, CA 90067
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TSG Reporting - Worldwide 877-702-9580

JA1656
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Page 220
1 Thomas
2 MS. KLEINICK: Objection; states
3 facts not in evidence.
4 A. I haven't any knowledge of that.
5 It would have, you know, surprised
6 me; but if he did, he probably misspoke.
7 Q. Is it your understanding that at
8 Marvel, artists were -- part of their duties
9 were to plot the stories through the -- through
10 their artwork and through notes in the margins
11 and suggested dialogue?
12 MS. KLEINICK: Objection.
13 A. We didn't use that, you know, think
14 about that much or use that term then.
15 But as I look back on it, and over
16 the years and analyze it, I realize they
17 were -- I would say co-plotting the stories. I
18 would not say plotting.
19 When you are given a story idea,
20 even if it is a few sentence, quite often, and
21 certainly if it was more, as it was in many
22 cases, you're certainly not plotting the story,
23 you were co-plotting.
24 Q. Starting at the time you started --
25 well, whether or not they were co-plotting or

TSG Reporting - Worldwide 877-702-9580

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Page 232
1 Thomas
2 same thing.
3 So I don't pay any attention or
4 didn't take any great recollection of it.
5 Q. Was it your understanding that by
6 signing the checks, you were acknowledging that
7 you were signing to Marvel all right, title and
8 interest in your work?
9 MS. KLEINICK: Objection.
10 A. Yes, I did.
11 Q. Were they putting legends on your
12 freelance checks when you became editor-in-
13 chief in 1972?
14 A. I have no recollection at all.
15 That language was written in the
16 contract.
17 So I wouldn't have paid any
18 attention to remember whether it was or not.
19 Q. When you began work with Marvel in
20 1965, which comic book titles did you write
21 for?
22 A. The first thing I did over the
23 weekend, after Stan hired me, was a -- to do
24 the dialogue for an already drawn and plotted
25 comic called: Modeling With Millie, which was

TSG Reporting - Worldwide 877-702-9580

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Page 267
1 Thomas
2 time, art was either returned to the -- to an
3 individual artist as an exception or perhaps
4 given away to fans at other companies.
5 And so they felt they should get it
6 back in order to be able to sell it or either
7 keep it themselves, if they wanted to, or sell
8 it if they wanted to make a little extra
9 income.
10 And our purpose, as much as
11 anything, was to get goodwill from the artists
12 and maybe give them a chance to make a little
13 extra income.
14 Q. Was there an issue at that time
15 about sales to -- the payment of sales tax in
16 connection with Marvel's artwork?
17 A. I remember at some stage various
18 artists coming up with -- talking about adding
19 sales tax and bringing that up.
20 Maybe they had talked to attorneys
21 about it. But I don't remember Stan and me
22 talking about it.
23 Q. But you were part of Marvel's
24 management at that time, correct?
25 A. Yes.

TSG Reporting - Worldwide 877-702-9580

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EXHIBITL

JA1660
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James \V. Quinn


Randi \V. Singer
\VeiL Gotshal & i\fanges LLP
767 Fifth Avenue
New York, NY 10153
ret.: (212) 31 o-sooo
Fax: (2 I 2) 310-8007

DaviJ Fleischer
I Iayncs anJ Boone, LLP
153 East 53rd Street
New York, NY 10022
Tel.: (212) 659-7300
Fax: (212) 918-8989

Jodi A. Kieinick
Paul, Hastings, Janof.,ky (.~ Walker LLP
75 East 55th Street
New York, NY I 0022
Tel.: (212) 318-6000
Fax: (212) 3 I 9-4090

.1/torneysfor PlaintUfs·

{ INITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

i\1ARVEL \VORLDWIDE. INC ..


i\1ARVEL CHARACTERS. INC. and
iVIVL RIGHTS. LLC,

Civil Action No. 10-141 (CJvl) (KF)


Plaintiffs.
-against-
I Hon. Colleen ,\fci'vfahon 1
LIS:\ R. KIRBY. BARBAR.-\ J. KIRBY.
!ECFCasc}
\i E. \L L. KIRBY ~mJ SI ·s:\N \f. KIRBY.
l )cfcndants.

I IS.\ R. KIRBY. 13.\RB:\R.\ J. KIRBY.


'\F.\L L. KIRBY and SCS ..\N \f. KIRBY.

( \ nmtcrc !aim ants.

JA1661
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-against-

:VfARVEL ENTERTAINiv1ENT, INC.,


rvtARVEL \VORLDWIDE, INC.,
\ttARVEL CI IA£0\CTERS, INC .• ivlVL
RIGHTS, LLC, THE \VALT DlSNEY
COiv1PANY and DOES 1 through IO,

Counterclaim-Defendants.

RESPONSE TO DEFENDANTS' FIRST SET OF REQUESTS FOR ADI\'IISSI()N

Pursuant to Rules 33 and 36 of the Federal Rules of Civil Procedure, Plaintiffs Marvel

Worldwide, Inc., Marvel Characters, Inc. and NlVL Rights, LLC (collectively, ·"Marvel"), by

their undersigned attorneys, Weil, Gotshal & Manges LLP, Haynes and Boone LLP, and Paul,

Hastings, Janof5ky & Walker LLP, hereby respond and object to the First Set of Requests for

Admission to Plaintitfs Marvel Worldwide, Inc., Marvel Characters, Inc. and MVL Rights, LLC

dated November 17, 2010 (the ''First Request to Admif') of Defendants Barbara J. Kirby and

Susan ivL Kirby (collectively, ··Defendants'') as follows:

GENERAL OB.JECTIONS

A. Marvel objects to the First Request to Admit to the extent that it purports to

obligate ivlarvel to respond in a manner which exceeds the requirements of the Federal Rules of

Civil Procedure.

B. \farvel objects to the First Request to Admit to the extent that it requires

llisclosure of any matter that involves pri\·ileged attOilley-dient material. attorney \\ork product.

uris nthenvisc protected from discovery.

C. \ fan·el objects to the Detinitions and Instructions contained in the First Request

to \Jmit on the ground that they are on:rhroad and amhiguous.

JA1662
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D. :VIarvel docs not waive and hereby expressly reserves its right to object to the

relevancy, materiality or admissibility of any request rnade in or response to the First Request to

Admit.

RESP<lNSES AND ()B.JECTI<lNS TO THE REQUESTS

1. Admit that YOU have no written AGREE~1ENT between KIRBY and ~fAR VEL

from January I, 1950- January l, 1964.

RESPONSE: Admitted that ~farvel does not possess copies of any written agreement

between KfRB Y and MAR VEL from January 1, I 950- January I, 1964.

2. Admit that YOU have no checks issued to KIRBY from MARVEL between

January I, I 950 - January l, 1966.

RESP(lNSE: Admitted that rviARVEL does not possess copies of any checks issued to

KIRBY from MARVEL between January l, 1950- January I, 1966.

]. Admit that you have no written AGREENIENT between any freelance artist ~ind

~1ARVEL from January l, 1957- January I, 1964.

I{ESP()NSE: Adn1itted that rvtARVEL does not possess copies of any written

agreement between any freelance artist and ivfARVEL fron1 January I. 1957- January I. I 964.

-+. .\Jmit that you ha\e no checks issued to any freelance artists from \L\RVEL

hetv,:een January I. 1950- Januarv I. !9n4.

I~ESPONSE: 1\Jmitted that \L\RVEL Joes not possess copies of any checks issucJ to

cmy freelance artists from :YL\RVFL between January I. 1()50- January 1. J<)6.f.

JA1663
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5. Admit that John Romita~ Sr. did not work for rvtARVEL bct\veen 1958 - 1963.

RESP<)NSE: Adrnitted that John V. Rom ita did not work for ~1AR VEL bct\veen

approximately the middle of 1958 and 1963. Denied that John V. Romita did not work for

rvtAR VEL for the entirety of 195 8.

6. Admit that Roy Thomas did not work for rvtARVEL between 1958- 1963.

RESPONSE: Admitted.

7. Admit that James Shooter did not work for MARVEL bet\veen 1958- 1963.

RESPONSE: Admitted.

8. Admit that KIRBY did work that was purchased and published by entities other

than MARVEL bet\veen 1958- I 963.

RESP()NSE: MARVEL lacks knowledge and information to admit or deny, and states

that such information cannot readily be obtained through reasonable inquiry.

9. Adn1it that between 1958 - 1963 KIRBY was not paid for those pages of his

artviork that rvtARVEL rejected.

RESPONSE: Denied.

10. ,\Jmit that KIRBY \\'as not pnJ\ided health insurance by \fAR VEL hct\vcen

1958- 1963.

I~ESP():\SE: ,\dmittcd.

--+ JA1664
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ll. Admit that KIRBY was not_provid~d health benetits by ivL\RVr:L bet\vcen

1958- I 963.

RESP<>NSE: Admitted.

12. Admit that KIRBY was not provided vacation pay by IV1AR VEL between

1958-1963.

RESP()NSE: ivtAR VEL does not have sufficient knowledge to either admit or deny this

Request, as rvtAR VEL does not possess any docurnents that address the subject nor does

MARVEL have any employees with knowledge on the subject.

13. Admit that MARVEL did not withold [sicJ any income tax from checks issued to

KIRBY by MARVEL between 1958 and 1963.

RESPONSE: Admitted.

14. Admit that no legend appeared on the back of checks issued to freelance artists by

ivfARVEL bet\veen 1958 and 1963.

RESPONSE: Denied.

15. Admit that legends, if any, on the hack of checks issued to freelance artists by

\L \R VEL changed between I <)58 and 1988.

RESPf>~SE: ,\dmitted.

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Dated: ~ew York, New York


December 20. 20 I 0

PAUL, l lASTINGS, JANOFSK Y


& WALKER LLP

By (l.J 1

~Kleinick
• tl 14"' ·(/i
75 East 55th Street
New York, NY 10022
(212) 318-6000

James W. Quinn
Randi W. Singer
WElL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
(212) 310-8000

David Fleischer
HAYNES AND BOONE, LLP
153 East 53rd Street
New York, NY 10022
(212) 659-7300

Attorneys for PIa in tiff~·

() JA1666
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CERTIFICATE <>F SEI~VICE

I hereby certify that on December 20, 2010, I caused a true and correct copy of the

foregoing Response to Defendants' First Set of Requests for Admission to he scrvcJ by first

class mail on the folknving counsel of recorJ:

Toberoff & Associates, P.C.


2049 Century Park East, Suite 2720
Los Angeles, California 90067

1\ttorneys for Defendants

Jodf A. Kkinick

7 JA1667
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EXHIBITM

JA1668
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•· ., .. .,....I "'c ,-'i,. .._.,.r..... .._ ... . -
c;
.' .
ASSIGNt!ENT

~-1: is an assignment bet\teen>ff'rc .6_ __/~~- Tr~<·:


• -~=-·a citizen and resident ot'(~,·r·•,cf and t~agazine
Mauagement Co,, Inc,, a corpora.tion of the State or Delaware,
having its principal pla.ce of business a.t 625 Madison Avenue,
New York, New York,
For and in con$ideration of the covenants and agreement
herein contained and the sum of One Dollar ($1), the receipt of
which Simon hereby acknowledges,
IT IS HEREBY AGRE"....D as follows :
l.A.Kt&.~Z shall. and hereby does assign to Maga.zine
Management Co,, Inc, any and all right, title and interest he
M8:f have or contrbl or which he has had or controlled in .and to
·the following (without warranty tha.t he has had. or controlled
any suCh right, title or interest):
(1) Any and all MATE!UALS, including any and all·
I
ideas, names, chara.ct.ers, symbols, designs, likenesses,
visual representations, atories, episodes, literary
property, etc,, which ha.ve been in whol.e or in part
acquired, published, mercha.ndised, ~vertised and/or
licensed in any form, field, or media_ by the Goorunans,
their affiliates, and/or their predecessors or succes-
sors in interest (which sha.ll be understood broadly and
.. to include their licensees and all who derive any
' interest from the .Goodmans), or any of ~he;; and
I • (2) ·Any and a.ll RIGHTS, including any and all
cop~rights, trademarks, statutory rights, common law

.
I
'•"AI..-
ftr.tt
rights, cood~<ill, and any other riGhts whatsoever
rela tin·c to the HATERIALS in any and all mcd ia and/or
fields including any and all riGhts t9 rcnc~<al or

f J~
-~

t i
-·-
K 01531
JA1669
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extension of copyright, to recover for past infringe-


ment and to make application or institut~ suit therefor,
and including by way of example and without ll.mitation
/~;,,.,; ;lii'la.l.m to renewal copyright in Volume 2 1
Nos. l-10 of the w~rk entitled "Captain America Comics•,
these being evidenced by Re;;istration Nos. R 429502
R 446534, a 446535, a 44E535, a 446537, a 446538,
R 446539, R 446540, R 446541 and R 448324 in the
,United States Copyright Office,
all herel.nafter. referred to 'as MATERIALS
. and
. RIGHTS, including,
without ll.mitation and as jusi an example, all the MATER~
listed in Schedules 1, 2 and 3, as amended, ~ttached hereto.
l B. Everything relating in any way to any MATERIALS
and RIGHTS and any,papers evidencing an ownership claim in.any
·· · MATERIALS and RIGHTS shall be physically transferred or surrendere
to the Goodms.ns or their designees.
l C. It is the intention of the parties that by this
aa.signm.ent j:Jc'.':.lfis. transferring t~ Magazine ~ement Co., Inc.
any and all MATERIALS and RIGHTS he may clal..m, have or control
or haS claimed, had or contr.olled in the. paat in any way whatso-
ever concerning or relating to Captain America and any other -of
the aforesaid ~IATERIALS and.RIGHTS, and that}t.•''fj"ehali have no

I further claim of any kind arising out of or relating to any past

I business relationship with the Goodmans, their affiliates, or

I,. predecessors or successors in interest. -- t


• 2. {i-<'r1 'I: 'hereby warrants that he has not assigned·,
licensed, or pledged and has no~ attempted or' purported to assign,
license, or pledge any of the MATERIALS and RIGHTS to anyono other

- 2 -

K 01532
JA1670
'

1.
.
' '

'
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..
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3204 of 7
Page

·.

than the Goodmans, their affiliates, predecessors or successors


in interest, and/or their designees and that he Will not do so

in the future.
3, (\"[LtAI shall execute or cause to be executed upon
request by the Goodm&ns, their affiliates or successors ~

interest and/or designees, any and all additional ·applications,


assign!nents, statements, pleadings, or other papers >~hich are
deemed by thera to be necessary o'r appropriate for effecting the
transfer of rights herein recited or for securing the benefit
and exclusive enjoYI!Ient thereof to the Goodrnans, their affiliates
successors in interest, and/or designee1,
4. /!r.u.;-asr~es not to contest either directly o;>r /
·. indirectly the full and complete ownership by the Goodmans,·
their affiliates, designees, or successors in interest, of all
right, title and interest in and to the MATERIALS and RIGHTS or
·th~ validity of the RIGHTS, which may be conferred on Haguine

Management Co.'· .Inc~. by this Agreement, or to assist others in


so· doing.
Examples or such prohibited contestation would be,
without limitation, applying for copyriGht, renewal copyright,
trademarks, patents, etc, for the MATERIALS and RIGHTS herei!l
specified or the publication by f<J:.21J'j or his assiGils or agents
· or lit.erar;r property which would infrint;e upon, viol"ate or ·be
' . .
confusingly s illlile.r to such MATERIALS and RIGHTS.
5. Kii1rJ'i _e.cltnowledaes and aa;recs that e.ll his work on
the MATERIALS, and All his work which created or related to the .
RIGHTS, was done as an employee for hire of the Goodm:ms.
6. This Acreemcnt shall be bindinc upon the parties
hereto, their affiliates and subsidiaries, local rcprcocntativc5,
£uccessors and predecessors in interest, (l.nd n::.::;i._;us.

- 3 -

K 01533
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7. The invalidity of any provision or part hereof or

obligation hereunder, or the contraven~ion thereby of any law,

rule or regulation of any State, The Federal Government or any


aqency, ehall not relieve any party from ita obliqation under,
nor deprive any party of the advantages of, any other provision

or part of thie Agreement.

;'l J 1--
Dated& !210

Magazine Management Co., Inc.

Attest• sy,dAz£

-... --

- 4 -

K 01534JA1672
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ST~TE OF CALIFORNIA)
) as. 1
COUNTY OF VENTURA )
. . (J.> I '17;....
)'rU
on this J'o <lay of ~ ~ before me p~rsonally
came ._}10-" /:.1/!..:Jf t.o me l<nown and .known t.o me t.o be the individua

described in and Who executed the foregoing instrument and

acknowledged that he carefully read and examined the same and

executed it of his own free will.

STATE OF NEW YORK )


) aa.t
COUNTY 0!' NEW YORJ<)

X.,.,e I '!7V
day of ~. ~. before me pcrsorally

..., known. and l<nown t.o me to be authorized

and enopowered by Ha9"zine Managemant co., Inc. to execute

inst.ru~t.s .uch aa the foregoing on it• bahalf nnd ho duly

a~nowledged t.o me that he had carefully read and ~xamined ·the

foregoing instrument and duly executed it on behalf of Magazine


-..
Management Co., Inc.

Notnry Public
.- ~~Htl.m ~r,.nwrr.:
WOUoi:.Y tJ:~ ~~. :.;t ''~ d ~·'"' V:A
lt.. ~ l·f~~·,·.!:;. .
0:1< ... 11!.-~J lll Qll·' '"' c.:.tll·t·
("'ft\llth;~.. ( J.lllh1 '-'...ltt:"' 30. \1174

- 5 -

K 01535JA1673
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"•

Schedule• 1, 2 and 3, ae amended, to 'this Assignment

are the schedules served and filed by Magazine Management Co.,

Inc. together with other defendant• in the atate court action

in response to Plaintiff, Joseph H. Simon'• Bill of Particular•


and Notice to Produce, SChedule l being aerved on June 12, 1967,

and amended June 13, 1967, and Schedules 2 and 3 being •erved

on Hay 18, 1967, and amended on November l3, 1967 •

.
"

. ' .

,.
'",
I'
...
"•
. : 'f!. '.

'.• -.
-.
'.
'·.'

K 01536
JA1674
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EXHIBIT N

JA1675
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Page

,.
I

.• - ·1 .

~--~· -;·/'i.,
. ::::---
.: )

JA1676
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Page

' '

_::;4"r~
'::.t,.,--

)
~ ·•'d
/--- ·/"f
... "t

~ !,.::.;-.-

·~ '
leo
~· ~ --~~
if ~: ':-::--,t-- - -~

JA1677
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Page

JA1678
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Page
:1
I

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,. _

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'/, ' f \p ' " - . '"h=<-\:) ~-~ .

T ~~,~}'''i3t~i\ ,
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Special Appendix/ Joint

Appendix were served electronically by the Court’s ECF system and by priority

mail on those parties not registered for ECF pursuant to the rules of this court.

Pursuant to Local Rules 25.3 and 30.1, six paper copies of the Joint Appendix and

Special Appendix have been mailed to the Court on the date this brief was

electronically filed.

Dated: January 13, 2011 /s/ Marc Toberoff


Malibu, California Marc Toberoff (MT 4862)

TOBEROFF & ASSOCIATES, P.C.


22631 Pacific Coast Highway #348
Malibu, California 90265
Telephone: (310) 246-3333
Facsimile: (310) 246-3101
mtoberoff@ipwla.com

Attorneys for Defendants-Appellants,


Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby