Kirby - Marvel Appellate Document Record Volume 1

Case 11-3333, Document 72, 01/26/2012, 509508, Page1 of 247
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 I 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 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 I 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

Marc Toberoff
mtoberoff@ipwla.com
Telephone: (310) 246-3333
Facsimile: (310) 246-3101
Lisa R. Kirby, Neal L. Kirby, Susan M.
Kirby and Barbara J. Kirby
TABLE OF CONTENTS
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: 75
Motion 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 111
Counterclaims
I 43 10/14/2010 Order re: Deposition of Mark Evanier 140
i

Volume No.
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
Judgment
ii
INDEX TO APPENDICES
Joint Appendix

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
Dismiss
I 30 4/28/2010 Answer to Complaint and Counterclaims 111
iii

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
Judgment
I 62 2/25/2011 Plaintiffs’ Memorandum re: Plaintiffs’ 186
I 65 2/25/2011 Declaration of Randi Singer re: 214
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
iv

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

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
vi

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
vii

Volume No.
IV 69-3 2/25/2011 Exhibit 3 – Excerpts from the November 995
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
Testimony of John Morrow
IV 72-2 2/25/2011 Exhibit B – Excerpts from the January 1021
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
Judgment
viii

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
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
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
V 82-6 3/25/2011 Exhibit 63 – Excerpts from the January 1259
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
Testimony of John Morrow
V 85-3 3/25/2011 Exhibit C – Excerpts from the January 1299
ix

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
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
V 87-6 3/25/2011 Exhibit F – Excerpts from the October 1342
V 87-7 3/25/2011 Exhibit G – Excerpts from the October 1348
Roy Thomas
V 88 3/25/2011 Declaration of Mark Evanier re: 1356
V 89 3/25/2011 Declaration of John Morrow re: 1359
Judgment
V 90 3/25/2011 Declaration of Mark Evanier re: 1364
Judgment
V 91 3/25/2011 Declaration of Richard Ayers re: 1372
Judgment
V 92 3/25/2011 Declaration of Joe Sinnott re: Plaintiffs’ 1378
VI 93 3/25/2011 Declaration of Neal Adams re: Plaintiffs’ 1384
x

Volume No.
VI 94 3/25/2011 Declaration of James Steranko re: 1390
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
VI 95-3 3/25/2011 Exhibit C – Excerpts from the December 1437
VI 95-4 3/25/2011 Exhibit D – Excerpts from the January 1477
VI 95-5 3/25/2011 Exhibit E – Excerpts from the January 7, 1513
VI 95-6 3/25/2011 Exhibit F – Excerpts from the October 1532
VI 95-7 3/25/2011 Exhibit G – Excerpts from the June 30, 1559
VI 95-8 3/25/2011 Exhibit H – Excerpts from the October 1602
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
xi

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”
xii

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”
xiii

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”
xiv

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
Judgment
IX 108 4/8/2011 Reply to Local Rule 56.1 Statement re: 2152
Judgment
xv

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
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
IX 114-4 4/8/2011 Exhibit 4 – Excerpts from the October 2319
IX 114-5 4/8/2011 Exhibit 5 – Excerpts from the October 2325
Roy Thomas
IX 116 4/8/2011 Reply to Local Rule 56.1 Statement re: 2332
Judgment
IX 121 7/28/2011 Order Granting Plaintiffs’ Motion for 2367
Summary Judgment and Denying
Judgment
IX 123 8/8/2011 Judgment 2417
IX 124 8/15/2011 Notice of Appeal 2419
xvi

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
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
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.
xvii

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
I 103 3/25/2010 Exhibit 10: March 22, 1975 Agreement 82
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
July 12, 2011)
xviii

Volume No.
III N/A Transcript for the October 27, 2010 601
Deposition of Roy Thomas (requested by
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
Judgment
Dismiss
xix
Case:Case 11-3333, Document 72,
1:10-cv-00141-CM-KNF As01/26/2012, 509508,
of: 01/09/2012 06:28Page22
PM ESTof 247
1 of 18
CLOSED, APPEAL, CASREF, ECF
U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:10−cv−00141−CM−KNF
Marvel Worldwide, Inc. et al v. Kirby et al Date Filed: 01/08/2010

Assigned to: Judge Colleen McMahon Date Terminated: 08/08/2011
Referred to: Magistrate Judge Kevin Nathaniel Fox Jury Demand: Both
Cause: 28:2201 Declaratory Judgement Nature of Suit: 820 Copyright
Jurisdiction: Federal Question
Plaintiff
Marvel Worldwide, Inc. represented by David Fleischer
Haynes and Boone, LLP (NY)
30 Rockefeller Plaza
26th Floor
New York, NY 10112
212−659−7300
Email: david.fleischer@haynesboone.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
James W. Quinn
Weil, Gotshal &Manges LLP (NYC)
767 Fifth Avenue, 25th Fl.
New York, NY 10153
212−310−8000
Fax: 212−310−8007
Email: james.quinn@weil.com
Jodi Aileen Kleinick

Paul Hastings LLP (NY)
75 East 55th Street
New York, NY 10022
(212) 318−6751
Fax: (212) 230−7691
Email: jodikleinick@paulhastings.com
Randi Wolkenbreit Singer

New York, NY 10153
(212)−310−8000
Fax: (212)−310−8007
Email: randi.singer@weil.com
Robert Bruce Rich

New York, NY 10153
(212) 310−8000
Fax: (212) 310−8007
Email: r.bruce.rich@weil.com
Plaintiff
Marvel Characters, Inc. represented by David Fleischer
(See above for address)
LEAD ATTORNEY
JA1
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2 of 18
James W. Quinn


Robert Bruce Rich

Plaintiff
MVL Rights, LLC represented by David Fleischer
LEAD ATTORNEY
James W. Quinn


Robert Bruce Rich

V.
Defendant
Lisa R. Kirby represented by Marc Toberoff
Law Offices of Marc Toberoff, Plc
1999 Avenue of The Stars, Suite 1540
Los Angeles, CA 90067
(310)−246−3333
Fax: (310)−246−3101
Email: mtoberoff@ipwla.com
LEAD ATTORNEY
Defendant
Barbara J. Kirby represented by Marc Toberoff
LEAD ATTORNEY
Defendant
Neal L. Kirby represented by Marc Toberoff
LEAD ATTORNEY
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Defendant
Susan N. Kirby represented by Marc Toberoff
LEAD ATTORNEY
Counter Defendant
The Walt Disney Company represented by James W. Quinn
New York, NY 10153
2123108000
Fax: 2128333148
Email: james.quinn@weil.com
LEAD ATTORNEY
David Fleischer

Counter Defendant
Marvel Entertainment, Inc. represented by David Fleischer
LEAD ATTORNEY
James W. Quinn
LEAD ATTORNEY

Counter Claimant
Lisa R. Kirby represented by Marc Toberoff
LEAD ATTORNEY
Counter Claimant
Barbara J. Kirby represented by Marc Toberoff
LEAD ATTORNEY
Counter Claimant
Neal L. Kirby represented by Marc Toberoff
LEAD ATTORNEY
Counter Claimant
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Susan N. Kirby represented by Marc Toberoff
LEAD ATTORNEY
V.
Counter Defendant
MVL Rights, LLC represented by James W. Quinn
LEAD ATTORNEY

Counter Defendant
Marvel Worldwide, Inc. represented by James W. Quinn
LEAD ATTORNEY

Counter Defendant
Marvel Characters, Inc. represented by James W. Quinn
LEAD ATTORNEY

Date Filed # Docket Text

01/08/2010 1 COMPLAINT against Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, Susan N.
Kirby. (Filing Fee $ 350.00, Receipt Number 890821)Document filed by MVL
Rights, LLC, Marvel Worldwide, Inc., Marvel Characters, Inc.(ama) (Entered:
01/11/2010)
01/08/2010 SUMMONS ISSUED as to Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, Susan
N. Kirby. (ama) (Entered: 01/11/2010)
01/08/2010 Magistrate Judge Kevin Nathaniel Fox is so designated. (ama) (Entered:
01/11/2010)
01/08/2010 Case Designated ECF. (ama) (Entered: 01/11/2010)
01/08/2010 2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying The Walt
Disney Company as Corporate Parent. Document filed by MVL Rights, LLC,
Marvel Worldwide, Inc., Marvel Characters, Inc.(ama) (Entered: 01/11/2010)
01/08/2010 Mailed notice to Register of Copyrights to report the filing of this action. (ama)
(Entered: 01/11/2010)
01/19/2010 3 ORDER SCHEDULING AN INITIAL PRETRIAL CONFERENCE:... Initial
Conference set for 4/23/2010 at 09:45 AM in Courtroom 14C, 500 Pearl Street,
New York, NY 10007 before Judge Colleen McMahon. (Signed by Judge Colleen
McMahon on 1/19/2010) (tve) (Entered: 01/19/2010)
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02/05/2010 4 WAIVER OF SERVICE RETURNED EXECUTED. Lisa R. Kirby waiver sent on
1/8/2010, answer due 3/9/2010. Document filed by MVL Rights, LLC; Marvel
Worldwide, Inc.; Marvel Characters, Inc.. (Fleischer, David) (Entered: 02/05/2010)
02/05/2010 5 WAIVER OF SERVICE RETURNED EXECUTED. Neal L. Kirby waiver sent on
1/8/2010, answer due 3/9/2010. Document filed by MVL Rights, LLC; Marvel
02/05/2010 6 WAIVER OF SERVICE RETURNED EXECUTED. Susan N. Kirby waiver sent
on 1/8/2010, answer due 3/9/2010. Document filed by MVL Rights, LLC; Marvel
02/05/2010 7 WAIVER OF SERVICE RETURNED EXECUTED. Barbara J. Kirby waiver sent
on 1/8/2010, answer due 3/9/2010. Document filed by MVL Rights, LLC; Marvel
02/19/2010 8 ENDORSED LETTER: addressed to Judge Colleen McMahon from James W.
Quinn dated 2/18/2010 re: In light of the inability to reach agreement on this
matter, Plaintiffs request a conference with Your Honor so that this case may
proceed as expeditiously as possible. While the Order currently provides for a
conference on April 16, 2010 Plaintiffs request that a conference be held on a date
at Your Honor's earliest in advance of April 16. ENDORSEMENT: Since you
can"t agree, Come in for a conference as scheduled do not send me long letters. So
Ordered. (Signed by Judge Colleen McMahon on 2/19/2010) (js) (Entered:
02/19/2010)
03/09/2010 9 MOTION to Dismiss for Lack of Jurisdiction. Document filed by Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, Susan N. Kirby.(Toberoff, Marc) (Entered:
03/09/2010)
03/09/2010 10 MEMORANDUM OF LAW in Support re: 9 MOTION to Dismiss for Lack of
Jurisdiction.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
Susan N. Kirby. (Toberoff, Marc) (Entered: 03/09/2010)
03/09/2010 11 DECLARATION of Lisa R. Kirby in Support re: 9 MOTION to Dismiss for Lack
of Jurisdiction.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
03/09/2010 12 DECLARATION of Neal L. Kirby in Support re: 9 MOTION to Dismiss for Lack
of Jurisdiction.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
03/09/2010 13 DECLARATION of Marc Toberoff, Esq. in Support re: 9 MOTION to Dismiss for
Lack of Jurisdiction.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit
C)(Toberoff, Marc) (Entered: 03/09/2010)
03/15/2010 14 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be
referred to the Clerk of Court for assignment to a Magistrate Judge for General
Pretrial (including discovery) discovery dispute. Referred to Magistrate Judge
Kevin Nathaniel Fox. (Signed by Judge Colleen McMahon on 3/15/2010) (jar)
(Entered: 03/15/2010)
03/19/2010 15 ORDER. IT IS HEREBY ORDERED that a telephonic conference will be held in
the above−captioned action on March 22, 2010, at 3:30 p.m. The telephonic
conference shall be initiated by counsel to the defendants to (212) 805−6705.
(Telephone Conference set for 3/22/2010 at 03:30 PM before Magistrate Judge
Kevin Nathaniel Fox.) (Signed by Magistrate Judge Kevin Nathaniel Fox on
3/18/10) (rjm) (Entered: 03/19/2010)
03/22/2010 Minute Entry for proceedings held before Magistrate Judge Kevin Nathaniel Fox:
Discovery Hearing held on 3/22/2010 re: deposition of Mr. lee. Deposition need
not go forward prior to the parties' conference w/ the assigned district judge. (tro)
(Entered: 03/25/2010)
03/26/2010 16 ENDORSED LETTER addressed to Judge Colleen McMahon from Marc Toberoff
dated 3/25/2010 re: Counsel for Defendants write to request a brief extension until
4/7/2010 of the time for defendants to serve their reply to plaintiffs' Opposition to
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Motion to Dismiss. ENDORSEMENT: OK. (Signed by Judge Colleen McMahon

on 3/26/2010) (tro) (Entered: 03/26/2010)
03/26/2010 17 MEMORANDUM OF LAW in Opposition re: 9 MOTION to Dismiss for Lack of
Jurisdiction.. Document filed by MVL Rights, LLC, Marvel Worldwide, Inc.,
Marvel Characters, Inc.. (Quinn, James) (Entered: 03/26/2010)
03/26/2010 18 DECLARATION of Alan N. Braverman in Opposition re: 9 MOTION to Dismiss
for Lack of Jurisdiction.. Document filed by MVL Rights, LLC, Marvel
Worldwide, Inc., Marvel Characters, Inc.. (Quinn, James) (Entered: 03/26/2010)
03/26/2010 19 DECLARATION of Eli Bard in Opposition re: 9 MOTION to Dismiss for Lack of
Jurisdiction.. Document filed by MVL Rights, LLC, Marvel Worldwide, Inc.,
Marvel Characters, Inc.. (Quinn, James) (Entered: 03/26/2010)
03/26/2010 20 DECLARATION of James W. Quinn in Opposition re: 9 MOTION to Dismiss for
Lack of Jurisdiction.. Document filed by MVL Rights, LLC, Marvel Worldwide,
Inc., Marvel Characters, Inc.. (Quinn, James) (Entered: 03/26/2010)
04/02/2010 21 CALENDAR NOTICE TIME CHANGE Rule (16) Conference set for 4/16/2010 at
02:45 PM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge
Colleen McMahon. (Signed by Judge Colleen McMahon on 4/2/10) (cd) (Entered:
04/02/2010)
04/06/2010 22 REPLY MEMORANDUM OF LAW in Support re: 9 MOTION to Dismiss for
Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered: 04/06/2010)
04/06/2010 23 REPLY AFFIDAVIT of Marc Toberoff, Esq. in Support re: 9 MOTION to Dismiss
for Lack of Jurisdiction.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal
L. Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered: 04/06/2010)
04/06/2010 24 REPLY AFFIDAVIT of Lisa R. Kirby in Support re: 9 MOTION to Dismiss for
Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered: 04/06/2010)
04/06/2010 25 RESPONSE in Support re: 9 MOTION to Dismiss for Lack of Jurisdiction.
Defendants' Evidentiary Objections to the Declarations of Eli Bard and James W.
Quinn Regarding Defendants' Motion to Dismiss. Document filed by Lisa R.
Kirby, Barbara J. Kirby, Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc)
(Entered: 04/06/2010)
04/08/2010 26 NOTICE OF CHANGE OF ADDRESS by David Fleischer on behalf of all
plaintiffs. New Address: Haynes and Boone, LLP, 1221 Avenue of the Americas,
26th Floor, New York, New York, 10020, 212−659−7300. (Fleischer, David)
(Entered: 04/08/2010)
04/14/2010 27 DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS:
ORDER denying 9 Motion to Dismiss for Lack of Jurisdiction. For all the
foregoing reasons, the Defendants' Motions to Dismiss (docket no. 9) is denied.
The Clerk of the Court shall remove the motion at docket no. 9 from the Court's
active motion list. This constitutes the decision and order of this Court.(Signed by
Judge Colleen McMahon on 4/14/2010) (jmi) (Entered: 04/14/2010)
04/16/2010 Minute Entry for proceedings held before Judge Colleen McMahon: Initial Pretrial
Conference held on 4/16/2010. Decision: Conference held. Scheduling order
entered. (Submitted by Shireen Barday). (mde) (Entered: 04/19/2010)
04/19/2010 28 CIVIL CASE MANAGEMENT PLAN: The parties disagree as to whether this
case is to be tried to a jury. Plaintiffs believe a jury trial is not required. Defendants
believe a jury trial is required. No additional parties may be joined After July 26,
2010; No pleading may be amended after July 26, 2010; All discovery, including
expert discovery, must be completed on or before January 14, 2011. The deposition
of Stan Lee for the purpose of preserving testimony shall be taken no later than 30
days from the date of this Order, defendants may cross−examine then and/or may
depose Mr. Lee at a later date, but if they do, they run the risk that they will never
be able to cross−examine and understand that the presumed testimony will be
admissible at trial. Mr. Lee will not be questioned twice about the same matters.
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The Court gravely doubts that there is any relevant e−discovery; you must come
back to Judge McMahon if any e−discovery is believed necessary. (Signed by
Judge Colleen McMahon on 4/16/10) (djc) Modified on 4/22/2010 (djc). (Entered:
04/19/2010)
04/28/2010 29 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent.
Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, Susan N.
Kirby.(Toberoff, Marc) (Entered: 04/28/2010)
04/28/2010 30 ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM against The
Walt Disney Company, Marvel Entertainment, Inc., MVL Rights, LLC, Marvel
Worldwide, Inc., Marvel Characters, Inc.. Document filed by Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, Susan N. Kirby.(Toberoff, Marc) (Entered:
04/28/2010)
05/24/2010 31 MOTION to Dismiss Counterclaims. Document filed by The Walt Disney
Company, Marvel Entertainment, Inc., MVL Rights, LLC, Marvel Worldwide,
Inc., Marvel Characters, Inc..(Quinn, James) (Entered: 05/24/2010)
05/24/2010 32 MEMORANDUM OF LAW in Support re: 31 MOTION to Dismiss
Counterclaims.. Document filed by The Walt Disney Company, Marvel
Entertainment, Inc., MVL Rights, LLC, Marvel Worldwide, Inc., Marvel
Characters, Inc.. (Quinn, James) (Entered: 05/24/2010)
05/24/2010 33 DECLARATION of Eli Bard in Support re: 31 MOTION to Dismiss
Characters, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B (1 of 3), # 3 Exhibit B
(2 of 3), # 4 Exhibit B (3 of 3), # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E)(Quinn,
James) (Entered: 05/24/2010)
06/02/2010 34 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that
shall govern the handling of confidential material...ENDORSEMENT: The Court
agrees to this order in order to facilitate discovery. The parties must understand that
the Court reserves the right to conclude that the part under materials designated
"confidential" are in fact nothing of the sort and to "declassify" any document in
any decision or at any trial of this matter unless a party can demonstrate to the
Court's satisfaction why it should remain on public issues. So Ordered (Signed by
Judge Colleen McMahon on 6/2/2010) (js) (Entered: 06/02/2010)
06/10/2010 35 MEMORANDUM OF LAW in Opposition re: 31 MOTION to Dismiss
Counterclaims.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
06/10/2010 36 RESPONSE in Opposition re: 31 MOTION to Dismiss Counterclaims. Defendants'
Objection to the Declaration of Eli Bard. Document filed by Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered:
06/10/2010)
06/11/2010 37 WAIVER OF SERVICE RETURNED EXECUTED. Marvel Entertainment, Inc.
waiver sent on 5/6/2010, answer due 7/6/2010. Document filed by Lisa R. Kirby;
Barbara J. Kirby; Neal L. Kirby; Susan N. Kirby. (Toberoff, Marc) (Entered:
06/11/2010)
06/11/2010 38 WAIVER OF SERVICE RETURNED EXECUTED. The Walt Disney Company
waiver sent on 5/6/2010, answer due 7/6/2010. Document filed by Lisa R. Kirby;
Barbara J. Kirby; Neal L. Kirby; Susan N. Kirby. (Toberoff, Marc) (Entered:
06/11/2010)
06/21/2010 39 REPLY MEMORANDUM OF LAW in Support re: 31 MOTION to Dismiss
Characters, Inc.. (Quinn, James) (Entered: 06/21/2010)
06/21/2010 40 DECLARATION of James W. Quinn in Support re: 39 Reply Memorandum of
Law in Support of Motion. Document filed by The Walt Disney Company, Marvel
Characters, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Quinn,
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09/07/2010 41 ENDORSED LETTER addressed to Judge Colleen McMahon from David
Fleischer dated 9/1/2010 re: Plaintiffs respectfully submit that Mr. Toberoff's
supplemental declaration should have no effect on plaintiffs' pending motion to
dismiss defendants' counterclaims. ENDORSEMENT: I can sort out the relevance
of all this when I decide the motion. I will accept the supplemental declaration but
if it is irrelevant I will pay it no mind. (Signed by Judge Colleen McMahon on
9/6/2010) (jpo) (Entered: 09/08/2010)
Telephone Conference held on 9/22/2010. Date for deposition of non−party
witness fixed. (mro) (Entered: 09/23/2010)
09/27/2010 42 ENDORSED LETTER addressed to Magistrate Judge Kevin N. Fox from Randi
W. Singer dated 9/22/10 re: counsel for plaintiff and Mr. John Romita, Sr.
respectfully request that the Court order that the deposition of John Romita, Sr.
take place at 9:30 am on October 21 and, if necessary, continue on October 22,
2010 at the Garden City Hotel, 45 Seventh Street, Garden City, NY 11530.
ENDORSEMENT: Application granted. So Ordered. (Signed by Magistrate Judge
Kevin Nathaniel Fox on 9/27/10) (pl) (Entered: 09/27/2010)
10/14/2010 43 ORDER: The plaintiffs request to: (i) depose Evanier as a fact witness, on
November 9, 2010, in Los Angeles, California; and (ii) depose Evanier as an expert
witness, on December 6, 2010, in Los Angeles, California, is granted. (Signed by
Magistrate Judge Kevin Nathaniel Fox on 10/13/2010) (jfe) (Entered: 10/14/2010)
11/03/2010 44 Letter addressed to To all counsel in Marvel Worldwide, Inc., et. al. v. Lisa R.
Kirby, et. al., (10cv141) from Judge Colleen McMahon dated 11/3/2010 re: In their
Answer and Counterclaims, the Kirbys allege that Marvel and Jack Kirby entered
into an agreement on October 31, 1986, whereby Marvel agreed to return to Kirby
all of his original artwork still in Marvel's possession or control. The contract is
discussed in the Kirbys' fourth counterclaim and is the basis for the Kirbys'
breach−of−contract claim. The contract is not attached to the Kirbys' Answer, and I
could not find it in any of the parties' filings. Because the agreement is relied on by
the Kirbys in asserting their counterclaim, I ask that either party produce to the
Court a copy of the 1986 contract. (jpo) (Entered: 11/03/2010)
11/04/2010 45 DECLARATION of Marc Toberoff, Esq. in Opposition re: 31 MOTION to
Dismiss Counterclaims.. Document filed by Barbara J. Kirby, Susan N. Kirby.
(Attachments: # 1 Exhibit A)(Toberoff, Marc) (Entered: 11/04/2010)
11/05/2010 46 DECLARATION of James W. Quinn in Opposition to Declaration of Marc
Toberoff. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel
Worldwide, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Quinn,
11/05/2010 47 RESPONSE in Opposition re: 31 MOTION to Dismiss Counterclaims. and
Objection to the Declaration of James W. Quinn. Document filed by Barbara J.
Kirby, Susan N. Kirby. (Attachments: # 1 Declaration of Marc Toberoff)(Toberoff,
Marc) (Entered: 11/05/2010)
11/15/2010 48 ENDORSED LETTER addressed to Magistrate Judge Kevin Nathaniel Fox from
Marc Toberoff dated 11/14/10 re: We respectfully ask this Court to clarify that
while it ordered that Mr. Evanier could be separately deposed as a "fact witness"
and an expert witness, Mr. Evanier should not be required to be deposed for more
than seven hours in total per F.R.C.P. 30(d)(1). ENDORSEMENT: Fed. R. Civ. P.
30 (d)(1) speaks to the number and presumptive length of each deposition ("... a
deposition is limited to 1 day of 7 hours"); Accordingly, a deponent who
participates in a litigation in different capacities, for example, in an individual
capacity and as a corporate representative (See Fed. R. Civ. P. 30(b)(6)), might
testify at more than one deposition proceeding. In such a circumstance, each
deposition would be governed by Fed. R. Civ. P. 30(d)(1). Therefore, the
December 6, 2010 expert witness deposition is limited to one day of seven hours.
(Signed by Magistrate Judge Kevin Nathaniel Fox on 11/15/10) (rjm) (Entered:
11/15/2010)
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11/22/2010 49 DECISION AND ORDER GRANTING IN PART AND DENYING IN PART
COUNTERCLAIM−DEFENDANTS' MOTION TO DISMISS granting in part and
denying in part 31 Motion to Dismiss. Granted as to Counterclaim−Plaintiffs'
second, third, fourth, and fifth counterclaims. Counterclaim−Defendants' motion to
dismiss the first counterclaim is denied. Counterclaim−Defendants' motion to
dismiss The Walt Disney Company and Marvel Entertainment, Inc as
Counterclaim−Defendants is also denied. (Signed by Judge Colleen McMahon on
11/19/10) Copies Sent By Chambers By ECF. (cd) (Entered: 11/22/2010)
12/06/2010 50 ANSWER to Counterclaim. Document filed by MVL Rights, LLC, Marvel
Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide, Inc., The Walt
Disney Company.(Quinn, James) (Entered: 12/06/2010)
Telephone Conference held on 1/24/2011. (mro) (Entered: 01/26/2011)
01/26/2011 51 ENDORSED LETTER addressed to Judge Collen McMahon from James W.
Quinn dated 1/25/2011 re: Counsel request a brief telephonic conference to get the
Court's guidance as to how Your Honor would like counsel to proceed. The parties
respectfully request the opportunity to address and resolve the jury trial issue
before preparing their pretrial order. ENDORSEMENT: Did you move to strike the
jury demand? If not, why should I deal with them now?. (Signed by Judge Colleen
McMahon on 1/26/2011) (jfe) (Entered: 01/26/2011)
01/28/2011 52 MOTION to Strike Jury Demand. Document filed by MVL Rights, LLC, Marvel
Disney Company.(Kleinick, Jodi) (Entered: 01/28/2011)
01/28/2011 53 MEMORANDUM OF LAW in Support re: 52 MOTION to Strike Jury Demand..
Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel
Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company.
(Kleinick, Jodi) (Entered: 01/28/2011)
01/28/2011 54 DECLARATION of Jodi A. Kleinick in Support re: 52 MOTION to Strike Jury
Demand.. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel
(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Kleinick, Jodi) (Entered:
01/28/2011)
dated 1/28/2011 re: Requesting a two week extension of the February 11, 2011
deadline for the parties to file summary judgment motions. ENDORSEMENT: Ok.
(Signed by Judge Colleen McMahon on 1/31/2011) (jpo) (Entered: 01/31/2011)
02/02/2011 56 NOTICE OF CHANGE OF ADDRESS by David Fleischer on behalf of MVL
Rights, LLC, Marvel Characters, Inc., Marvel Worldwide, Inc.. New Address:
Haynes and Boone, LLP, 30 Rockefeller Plaza, 26th Floor, New York, New York,
USA 10112, 212−659−7300. (Fleischer, David) (Entered: 02/02/2011)
02/07/2011 57 ENDORSED LETTER addressed to Judge Colleen McMahon from James W.
Quinn, dated 2/2/2011, re: Counsel for Plaintiffs Marvel Worldwide, Inc., Marvel
Characters, Inc and MVL Rights, LLC, together with counsel for the Defendants,
write to request a brief postponement of the deadline for the parties to submit their
Joint Pretrial Order and accompanying pretrial materials until forty−five (45) days
after the jury demand issue is resolved, whether by consent or decision.
ENDORSEMENT: OK. (Signed by Judge Colleen McMahon on 2/7/2011) (lnl)
(Entered: 02/07/2011)
02/16/2011 58 STIPULATION &ORDER: 1. All of Marvel's claims and Defendants' remaining
counterclaim in the action will be tried to the Court without a jury. 2. Marvel's
January 28, 2011 motion to strike Defendants' jury demand is withdrawn as moot.
3. Marvel waives any and all claims to any costs or legal fees associated with its
motion to strike Defendants' jury demand. SO ORDERED. (Signed by Judge
Colleen McMahon on 2/16/2011) (lnl) (Entered: 02/16/2011)
02/18/2011 59 ENDORSED LETTER: addressed to Judge Colleen McMahon from Randi W.
Singer dated 2/18/2011 re: Counsel for Marvel request permission to file a non
compatible disc with the Clerk of Court by conventional means. So Ordered.
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ENDORSEMENT: OK. So Ordered. (Signed by Judge Colleen McMahon on

2/18/2011) (js) (Entered: 02/18/2011)
02/25/2011 60 MOTION for Summary Judgment. Document filed by MVL Rights, LLC, Marvel
Disney Company. (Attachments: # 1 Exhibit Certificate of Service)(Quinn, James)
(Entered: 02/25/2011)
02/25/2011 61 RULE 56.1 STATEMENT. Document filed by MVL Rights, LLC, Marvel
Disney Company. (Quinn, James) (Entered: 02/25/2011)
02/25/2011 62 MEMORANDUM OF LAW in Support re: 60 MOTION for Summary Judgment..
Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company. (Quinn,
02/25/2011 63 SEALED DOCUMENT placed in vault.(mps) (Entered: 02/25/2011)
02/25/2011 64 DECLARATION of Eli Bard in Support re: 60 MOTION for Summary Judgment..
(Attachments: # 1 Exhibit 1−1, # 2 Exhibit 1−2, # 3 Exhibit 1−3, # 4 Exhibit 1−4, #
5 Exhibit 1−5, # 6 Exhibit 1−6, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10
Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7)(Quinn, James) (Entered: 02/25/2011)
02/25/2011 65 DECLARATION of Randi W. Singer in Support re: 60 MOTION for Summary
Judgment.. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel
(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit
5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11
Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16
Exhibit 16−1, # 17 Exhibit 16−2, # 18 Exhibit 16−3, # 19 Exhibit 16−4, # 20
Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30)(Quinn, James)
(Entered: 02/25/2011)
02/25/2011 66 DECLARATION of Randi W. Singer in Support re: 60 MOTION for Summary
(Attachments: # 1 Exhibit 31, # 2 Exhibit 32, # 3 Exhibit 33, # 4 Exhibit 34, # 5
Exhibit 40, # 11 Exhibit 41−1, # 12 Exhibit 41−2, # 13 Exhibit 42, # 14 Exhibit 43,
# 15 Exhibit 44, # 16 Exhibit 45, # 17 Exhibit 46, # 18 Exhibit 47, # 19 Exhibit 48,
# 20 Exhibit 49, # 21 Exhibit 50, # 22 Exhibit 51, # 23 Exhibit 52, # 24 Exhibit 53,
# 25 Exhibit 54, # 26 Exhibit 55, # 27 Exhibit 56, # 28 Exhibit 57)(Quinn, James)
(Entered: 02/25/2011)
02/25/2011 67 MOTION in Limine to Exclude the Expert Report and Testimony of Mark Evanier.
(Attachments: # 1 Exhibit Certificate of Service)(Quinn, James) (Entered:
02/25/2011)
02/25/2011 68 MEMORANDUM OF LAW in Support re: 67 MOTION in Limine to Exclude the
Expert Report and Testimony of Mark Evanier.. Document filed by MVL Rights,
LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide,
Inc., The Walt Disney Company. (Quinn, James) (Entered: 02/25/2011)
02/25/2011 69 DECLARATION of Sabrina A. Perelman in Support re: 67 MOTION in Limine to
Exclude the Expert Report and Testimony of Mark Evanier.. Document filed by
MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel
Worldwide, Inc., The Walt Disney Company. (Attachments: # 1 Exhibit 1, # 2
Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Quinn, James) (Entered:
02/25/2011)
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02/25/2011 70 MOTION in Limine to Exclude the Expert Report and Testimony of John Morrow.
(Attachments: # 1 Exhibit Certificate of Service)(Fleischer, David) (Entered:
02/25/2011)
02/25/2011 71 MEMORANDUM OF LAW in Support re: 70 MOTION in Limine to Exclude the
Expert Report and Testimony of John Morrow.. Document filed by MVL Rights,
Inc., The Walt Disney Company. (Fleischer, David) (Entered: 02/25/2011)
02/25/2011 72 DECLARATION of David Fleischer in Support re: 70 MOTION in Limine to
Exclude the Expert Report and Testimony of John Morrow.. Document filed by
MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel
Worldwide, Inc., The Walt Disney Company. (Attachments: # 1 Exhibit A, # 2
Exhibit B, # 3 Exhibit C)(Fleischer, David) (Entered: 02/25/2011)
02/25/2011 73 MOTION for Summary Judgment. Document filed by Barbara J. Kirby, Lisa R.
Kirby, Neal L. Kirby, Susan N. Kirby.(Toberoff, Marc) (Entered: 02/25/2011)
02/25/2011 74 DECLARATION of Mark Evanier in Support re: 73 MOTION for Summary
Judgment.. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby,
Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4
Exhibit)(Toberoff, Marc) (Entered: 02/25/2011)
02/25/2011 75 DECLARATION of John Morrow in Support re: 73 MOTION for Summary
Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B (part one), # 3 Exhibit
B (part two), # 4 Exhibit B (part three))(Toberoff, Marc) (Entered: 02/25/2011)
02/25/2011 76 MEMORANDUM OF LAW in Support re: 73 MOTION for Summary Judgment..
Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby.
(Toberoff, Marc) (Entered: 02/25/2011)
02/25/2011 77 DECLARATION of Marc Toberoff in Support re: 73 MOTION for Summary
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I,
# 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, #
15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20
Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25
Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, #
30 Exhibit DD, # 31 Exhibit EE)(Toberoff, Marc) (Entered: 02/25/2011)
02/25/2011 78 RULE 56.1 STATEMENT. Document filed by Barbara J. Kirby, Lisa R. Kirby,
Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered: 02/25/2011)
02/28/2011 79 DECLARATION OF RANDI W. SINGER IN SUPPORT OF PLAINTIFFS' AND
COUNTERCLAIM−DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(with accompanying CD with Exhibit 11). Document filed by MVL Rights, LLC,
Marvel Characters, Inc., Marvel Worldwide, Inc.***Accepted for filing by the
Honorable Colleen McMahon on 2/18/11, document number 59.(mro) (Entered:
02/28/2011)
03/09/2011 80 STIPULATION AND ORDER, that 1. Defendants' oppositions to Plaintiffs'
Motions to Exclude must be filed and served on or before March 25, 2011; and 2.
Plaintiffs' reply briefs in further support of their Motions to Exclude must be filed
and served on or before April 8, 2011. ( Responses due by 3/25/2011, Replies due
by 4/8/2011.) (Signed by Judge Colleen McMahon on 3/9/11) (pl) Modified on
3/9/2011 (pl). (Entered: 03/09/2011)
03/25/2011 81 MEMORANDUM OF LAW in Opposition re: 73 MOTION for Summary
Worldwide, Inc.. (Quinn, James) (Entered: 03/25/2011)
03/25/2011 82 DECLARATION of Randi W. Singer (Supplemental) in Opposition re: 73
MOTION for Summary Judgment.. Document filed by MVL Rights, LLC, Marvel
Characters, Inc., Marvel Worldwide, Inc.. (Attachments: # 1 Exhibit 58, # 2
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Exhibit 59, # 3 Exhibit 60, # 4 Exhibit 61, # 5 Exhibit 62, # 6 Exhibit 63)(Quinn,
03/25/2011 83 COUNTER STATEMENT TO 78 Rule 56.1 Statement. Document filed by MVL
Rights, LLC, Marvel Characters, Inc., Marvel Worldwide, Inc.. (Quinn, James)
(Entered: 03/25/2011)
03/25/2011 84 MEMORANDUM OF LAW in Opposition re: 70 MOTION in Limine to Exclude
the Expert Report and Testimony of John Morrow.. Document filed by Barbara J.
Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered:
03/25/2011)
03/25/2011 85 DECLARATION of Marc Toberoff in Opposition re: 70 MOTION in Limine to
Exclude the Expert Report and Testimony of John Morrow.. Document filed by
Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1
Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit
F)(Toberoff, Marc) (Entered: 03/25/2011)
03/25/2011 86 MEMORANDUM OF LAW in Opposition re: 67 MOTION in Limine to Exclude
the Expert Report and Testimony of Mark Evanier.. Document filed by Barbara J.
03/25/2011)
03/25/2011 87 DECLARATION of Marc Toberoff in Opposition re: 67 MOTION in Limine to
Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1
Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F,
# 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Toberoff, Marc) (Entered: 03/25/2011)
03/25/2011 88 DECLARATION of Mark Evanier in Opposition re: 67 MOTION in Limine to
Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc)
(Entered: 03/25/2011)
03/25/2011 89 DECLARATION of John Morrow in Opposition re: 60 MOTION for Summary
Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B (part 1), # 3 Exhibit B
(part 2), # 4 Exhibit B (part 3))(Toberoff, Marc) (Entered: 03/25/2011)
03/25/2011 90 DECLARATION of Mark Evanier in Opposition re: 60 MOTION for Summary
Exhibit D)(Toberoff, Marc) (Entered: 03/25/2011)
03/25/2011 91 DECLARATION of Richard Ayers in Opposition re: 60 MOTION for Summary
03/25/2011 92 DECLARATION of Joe Sinnott in Opposition re: 60 MOTION for Summary
03/25/2011 93 DECLARATION of Neal Adams in Opposition re: 60 MOTION for Summary
03/25/2011 94 DECLARATION of James Steranko in Opposition re: 60 MOTION for Summary
03/25/2011 95 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU −
MEMORANDUM OF LAW in Opposition re: 60 MOTION for Summary
Judgment. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby,
Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I,
# 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, #
15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20
Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25
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Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, #

30 Exhibit DD, # 31 Exhibit EE)(Toberoff, Marc) Modified on 3/28/2011 (db).
(Entered: 03/25/2011)
03/25/2011 96 MEMORANDUM OF LAW in Opposition re: 60 MOTION for Summary
03/25/2011 97 DECLARATION of Marc Toberoff (Part II) in Opposition re: 60 MOTION for
Summary Judgment.. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L.
Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit FF, # 2 Exhibit GG, # 3 Exhibit
HH, # 4 Exhibit II, # 5 Exhibit JJ, # 6 Exhibit KK, # 7 Exhibit LL, # 8 Exhibit
MM, # 9 Exhibit NN, # 10 Exhibit OO, # 11 Exhibit PP, # 12 Exhibit QQ, # 13
Exhibit RR, # 14 Exhibit SS, # 15 Exhibit TT, # 16 Exhibit UU, # 17 Exhibit VV,
# 18 Exhibit WW, # 19 Exhibit XX, # 20 Exhibit YY, # 21 Exhibit ZZ, # 22
Exhibit AAA, # 23 Exhibit BBB, # 24 Exhibit CCC, # 25 Exhibit DDD, # 26
Exhibit EEE, # 27 Exhibit FFF, # 28 Exhibit GGG, # 29 Exhibit HHH, # 30
Exhibit III, # 31 Exhibit JJJ, # 32 Exhibit KKK, # 33 Exhibit LLL)(Toberoff,
03/25/2011 98 COUNTER STATEMENT TO 61 Rule 56.1 Statement. Document filed by
(Entered: 03/25/2011)
03/25/2011 ***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE
ERROR. Note to Attorney Marc Toberoff to RE−FILE Document 95
Memorandum of Law in Opposition to Motion. Use the event type Declaration in
Opposition of Motion found under the event list Replies, Opposition and
Supporting Documents. REMINDER − Be sure that the word SUPPLEMENTAL
is added in front of the word DECLARATION when the document is re−filed. (db)
(Entered: 03/28/2011)
03/25/2011 103 SEALED DOCUMENT placed in vault.(nm) (Entered: 03/28/2011)
03/26/2011 99 DECLARATION of Gene Colan in Opposition re: 60 MOTION for Summary
Susan N. Kirby. (Attachments: # 1 Exhibit A (Filed Under Seal), # 2 Exhibit B
(Filed Under Seal), # 3 Exhibit C (Filed Under Seal), # 4 Exhibit D (Filed Under
Seal))(Toberoff, Marc) (Entered: 03/26/2011)
03/26/2011 100 DECLARATION of Marc Toberoff [Redacted]− Original Filed Under Seal in
Opposition re: 60 MOTION for Summary Judgment.. Document filed by Barbara J.
Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit 1
(Filed Under Seal), # 2 Exhibit 2 (Filed Under Seal), # 3 Exhibit 3 (Filed Under
Seal), # 4 Exhibit 4 (Filed Under Seal), # 5 Exhibit 5 (Filed Under Seal), # 6
Exhibit 6 (Filed Under Seal), # 7 Exhibit 7 (Filed Under Seal), # 8 Exhibit 8 (Filed
Under Seal), # 9 Exhibit 9 (Filed Under Seal), # 10 Exhibit 10 (Filed Under Seal),
# 11 Exhibit 11 (Filed Under Seal), # 12 Exhibit 12 (Filed Under Seal), # 13
Exhibit 13 (Filed Under Seal), # 14 Exhibit 14 (Filed Under Seal), # 15 Exhibit 15
(Filed Under Seal))(Toberoff, Marc) (Entered: 03/26/2011)
03/26/2011 101 Objection re: 60 MOTION for Summary Judgment.. Document filed by Barbara J.
03/26/2011)
03/28/2011 102 DECLARATION of Marc Toberoff (Part I) in Opposition re: 60 MOTION for
Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C,
# 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9
Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14
Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19
Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24
Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29
Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE)(Toberoff, Marc) (Entered:
03/28/2011)
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04/01/2011 104 NOTICE of Elements of Claim and Defense. Document filed by MVL Rights,
Inc., The Walt Disney Company. (Quinn, James) (Entered: 04/01/2011)
04/01/2011 105 PRETRIAL STATEMENT filed pusruant to paragraph 3.E.ii of the Court's
Individual Practices. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L.
Kirby, Susan N. Kirby.(Toberoff, Marc) (Entered: 04/01/2011)
dated 4/5/2011 re: Requesting a five page extension of the page limit.
ENDORSEMENT: Ok. (Signed by Judge Colleen McMahon on 4/5/2011) (jpo)
(Entered: 04/05/2011)
04/08/2011 107 REPLY MEMORANDUM OF LAW in Support re: 60 MOTION for Summary
Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company. (Quinn,
04/08/2011 108 COUNTER STATEMENT TO 61 Rule 56.1 Statement. Document filed by MVL
Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel
Worldwide, Inc., The Walt Disney Company. (Quinn, James) (Entered:
04/08/2011)
04/08/2011 109 REPLY MEMORANDUM OF LAW in Support re: 70 MOTION in Limine to
Exclude the Expert Report and Testimony of John Morrow., 67 MOTION in
Limine to Exclude the Expert Report and Testimony of Mark Evanier.. Document
filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc.,
Marvel Worldwide, Inc., The Walt Disney Company. (Quinn, James) (Entered:
04/08/2011)
04/08/2011 110 DECLARATION of Sabrina A. Perelman (Reply) in Support re: 70 MOTION in
Limine to Exclude the Expert Report and Testimony of John Morrow., 67
MOTION in Limine to Exclude the Expert Report and Testimony of Mark Evanier..
(Attachments: # 1 Exhibit 1)(Quinn, James) (Entered: 04/08/2011)
04/08/2011 111 MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF,
JJJ, LLL) and 102 (Ex. Y),]. Document filed by MVL Rights, LLC, Marvel
Disney Company.(Kleinick, Jodi) (Entered: 04/08/2011)
04/08/2011 112 MEMORANDUM OF LAW in Support re: 111 MOTION to Strike Document No.
[89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),].
MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF,
JJJ, LLL) and 102 (Ex. Y),].. Document filed by MVL Rights, LLC, Marvel
Disney Company. (Kleinick, Jodi) (Entered: 04/08/2011)
04/08/2011 113 DECLARATION of Jodi A. Kleinick in Support re: 111 MOTION to Strike
Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102
(Ex. Y),]. MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ,
OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. Document filed by MVL Rights, LLC,
Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide, Inc., The
Walt Disney Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, #
4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Kleinick,
Jodi) (Entered: 04/08/2011)
04/08/2011 114 DECLARATION of Marc Toberoff (Reply) in Support re: 73 MOTION for
Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, #
4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Toberoff, Marc) (Entered: 04/08/2011)
04/08/2011 115 REPLY MEMORANDUM OF LAW in Support re: 73 MOTION for Summary
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04/09/2011 116 COUNTER STATEMENT TO 78 Rule 56.1 Statement. Document filed by
(Entered: 04/09/2011)
04/22/2011 117 MEMORANDUM OF LAW in Opposition re: 111 MOTION to Strike Document
No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),].
MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF,
JJJ, LLL) and 102 (Ex. Y),].. Document filed by Barbara J. Kirby, Lisa R. Kirby,
Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc) (Entered: 04/22/2011)
04/22/2011 118 DECLARATION of Marc Toberoff in Opposition re: 111 MOTION to Strike
OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. Document filed by Barbara J. Kirby, Lisa
R. Kirby, Neal L. Kirby, Susan N. Kirby. (Attachments: # 1 Exhibit A, # 2 Exhibit
B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8
Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Toberoff,
04/29/2011 119 REPLY MEMORANDUM OF LAW in Support re: 111 MOTION to Strike
OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. Document filed by MVL Rights, LLC,
Walt Disney Company. (Kleinick, Jodi) (Entered: 04/29/2011)
04/29/2011 120 DECLARATION of Jodi A. Kleinick (Reply) in Support re: 111 MOTION to
Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and
102 (Ex. Y),]. MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG,
JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. Document filed by MVL Rights, LLC,
Walt Disney Company. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kleinick, Jodi)
(Entered: 04/29/2011)
07/28/2011 121 MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS'
#100581 CROSS MOTION FOR SUMMARY JUDGMENT. For the reasons
discussed in this memorandum opinion and order, the Plaintiffs' motion for
summary judgment is granted. The Defendants' cross motion for summary
judgment is denied. The Docket Clerk is instructed to remove docket entries 60 and
73 from the Court's list of pending motions. Further, the Plaintiffs' motions to
strike the expert reports of Mark Evanier and John Morrow are granted. The
Docket Clerk is instructed to remove docket entries 67 and 70 from the Court's list
of pending motions. Plaintiffs' motion to strike the declarations of Sinnott and
Steranko is denied. The Docket Clerk is instructed to remove docket entry 111
from the Court's list of pending motions. The Court will enter judgment in favor of
Plaintiffs and close the case. (Signed by Judge Colleen McMahon on 7/28/11)
Copies Sent By Chambers via ECF to All Counsel. (rjm) Modified on 7/28/2011
(ajc). (Entered: 07/28/2011)
07/28/2011 Transmission to Judgments and Orders Clerk. Transmitted re: 121 Memorandum
&Opinion to the Judgments and Orders Clerk. (rjm) (Entered: 07/28/2011)
08/04/2011 122 NOTICE of Notice of Change of Firm Name. Document filed by MVL Rights,
Inc., The Walt Disney Company. (Kleinick, Jodi) (Entered: 08/04/2011)
08/08/2011 123 CLERK'S JUDGMENT That for the reasons stated in the Court's Memorandum
Opinion and Order dated July 28, 2011, Plaintiffs' motion for summary judgment is
granted; defendants' cross−motion for summary judgment is denied; plaintiffs'
motion to strike the expert reports of Mark Evanier and John Morrow are granted;
plaintiffs' motion to strike the declarations of Sinnitt and Steranko are denied, and
judgment is entered is favor of plaintiffs'; accordingly, the case is closed. (Signed
by Clerk of Court Ruby Krajick on 8/8/11) (Attachments: # 1 Notice of Right to
Appeal)(dt) (Entered: 08/08/2011)
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08/15/2011 124 NOTICE OF APPEAL from 123 Clerk's Judgment. Document filed by Barbara J.
Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. Filing fee $ 455.00, receipt
number 465401014037. (tp) (Entered: 08/16/2011)
08/16/2011 Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court
of Appeals re: 124 Notice of Appeal. (tp) (Entered: 08/16/2011)
08/16/2011 Transmission of Notice of Appeal to the District Judge re: 124 Notice of Appeal.
(tp) (Entered: 08/16/2011)
08/16/2011 Appeal Record Sent to USCA (Electronic File). Certified Indexed record on
Appeal Electronic Files for 84 Memorandum of Law in Opposition to Motion filed
by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 6 Waiver of
Service Executed filed by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL
Rights, LLC, 13 Declaration in Support of Motion, filed by Susan N. Kirby, Lisa
R. Kirby, Barbara J. Kirby, Neal L. Kirby, 31 MOTION to Dismiss Counterclaims.
filed by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, The
Walt Disney Company, Marvel Entertainment, Inc., 76 Memorandum of Law in
Support of Motion filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal
L. Kirby, 47 Response in Opposition to Motion, filed by Susan N. Kirby, Barbara
J. Kirby, 112 Memorandum of Law in Support of Motion, filed by Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, The Walt Disney
Company, Marvel Entertainment, Inc., 71 Memorandum of Law in Support of
Motion, filed by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights,
LLC, The Walt Disney Company, Marvel Entertainment, Inc., 73 MOTION for
Summary Judgment. filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby,
Neal L. Kirby, 32 Memorandum of Law in Support of Motion filed by Marvel
Company, Marvel Entertainment, Inc., 22 Reply Memorandum of Law in Support
of Motion filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
90 Declaration in Opposition to Motion, filed by Susan N. Kirby, Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, 101 Objection (non−motion) filed by Susan N.
Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 70 MOTION in Limine to
Exclude the Expert Report and Testimony of John Morrow. filed by Marvel
Company, Marvel Entertainment, Inc., 4 Waiver of Service Executed filed by
Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 120
Declaration in Support of Motion, filed by Marvel Worldwide, Inc., Marvel
Characters, Inc., MVL Rights, LLC, The Walt Disney Company, Marvel
Entertainment, Inc., 11 Declaration in Support of Motion filed by Susan N. Kirby,
Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 69 Declaration in Support of
LLC, The Walt Disney Company, Marvel Entertainment, Inc., 91 Declaration in
Opposition to Motion filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby,
Neal L. Kirby, 121 Memorandum &Opinion, 119 Reply Memorandum of Law in
Support of Motion, filed by Marvel Worldwide, Inc., Marvel Characters, Inc.,
MVL Rights, LLC, The Walt Disney Company, Marvel Entertainment, Inc., 43
Order, Set Deadlines/Hearings,, 19 Declaration in Opposition to Motion filed by
Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 24 Reply
Affidavit in Support of Motion filed by Susan N. Kirby, Lisa R. Kirby, Barbara J.
Kirby, Neal L. Kirby, 23 Reply Affidavit in Support of Motion filed by Susan N.
Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 82 Declaration in
Opposition to Motion, filed by Marvel Worldwide, Inc., Marvel Characters, Inc.,
MVL Rights, LLC, 86 Memorandum of Law in Opposition to Motion filed by
Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 27 Order on
Motion to Dismiss/Lack of Jurisdiction, 55 Endorsed Letter, Set
Deadlines/Hearings,, 49 Order on Motion to Dismiss, 98 Counter Statement to
Rule 56.1 filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
Barbara J. Kirby, Neal L. Kirby, 10 Memorandum of Law in Support of Motion
filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 93
Declaration in Opposition to Motion filed by Susan N. Kirby, Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, 48 Endorsed Letter, 44 Letter, 34 Protective
Order, 25 Response in Support of Motion, filed by Susan N. Kirby, Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, 122 Notice (Other) filed by Marvel Worldwide,
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Inc., Marvel Characters, Inc., MVL Rights, LLC, The Walt Disney Company,
Marvel Entertainment, Inc., 54 Declaration in Support of Motion, filed by Marvel
Company, Marvel Entertainment, Inc., 115 Reply Memorandum of Law in Support
of Motion filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
Barbara J. Kirby, Neal L. Kirby, 99 Declaration in Opposition to Motion, filed by
Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 57 Endorsed
Letter, 61 Rule 56.1 Statement filed by Marvel Worldwide, Inc., Marvel
Entertainment, Inc., 45 Declaration in Opposition to Motion filed by Susan N.
Kirby, Barbara J. Kirby, 37 Waiver of Service Executed filed by Susan N. Kirby,
Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 38 Waiver of Service Executed
Memorandum of Law in Opposition to Motion filed by Susan N. Kirby, Lisa R.
Kirby, Barbara J. Kirby, Neal L. Kirby, 113 Declaration in Support of Motion,,
Walt Disney Company, Marvel Entertainment, Inc., 111 MOTION to Strike
OO, FFF, JJJ, LLL) and 102 (Ex. Y),]. filed by Marvel Worldwide, Inc., Marvel
Entertainment, Inc., 109 Reply Memorandum of Law in Support of Motion, filed
by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, The Walt
Disney Company, Marvel Entertainment, Inc., 59 Endorsed Letter, 33 Declaration
in Support of Motion, filed by Marvel Worldwide, Inc., Marvel Characters, Inc.,
Memorandum of Law in Support of Motion filed by Marvel Worldwide, Inc.,
Marvel Characters, Inc., MVL Rights, LLC, The Walt Disney Company, Marvel
Entertainment, Inc., 78 Rule 56.1 Statement filed by Susan N. Kirby, Lisa R.
Kirby, Barbara J. Kirby, Neal L. Kirby, 85 Declaration in Opposition to Motion,
Declaration in Opposition to Motion filed by Marvel Worldwide, Inc., Marvel
Characters, Inc., MVL Rights, LLC, 3 Order for Initial Pretrial Conference, 108
Counter Statement to Rule 56.1 filed by Marvel Worldwide, Inc., Marvel
Entertainment, Inc., 64 Declaration in Support of Motion, filed by Marvel
Company, Marvel Entertainment, Inc., 94 Declaration in Opposition to Motion
Declaration in Support, filed by Marvel Worldwide, Inc., Marvel Characters, Inc.,
Declaration in Support of Motion, filed by Marvel Worldwide, Inc., Marvel
Entertainment, Inc., 2 Rule 7.1 Corporate Disclosure Statement filed by Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 41 Endorsed Letter,
Set Deadlines/Hearings,, 87 Declaration in Opposition to Motion, filed by Susan N.
Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 60 MOTION for Summary
Judgment. filed by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights,
LLC, The Walt Disney Company, Marvel Entertainment, Inc., 42 Endorsed Letter,
Set Deadlines,, 72 Declaration in Support of Motion, filed by Marvel Worldwide,
Marvel Entertainment, Inc., 12 Declaration in Support of Motion filed by Susan N.
Opposition to Motion, filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby,
Neal L. Kirby, 74 Declaration in Support of Motion, filed by Susan N. Kirby, Lisa
R. Kirby, Barbara J. Kirby, Neal L. Kirby, 9 MOTION to Dismiss for Lack of
Jurisdiction. filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby, 52 MOTION to Strike Jury Demand. filed by Marvel Worldwide, Inc.,
Entertainment, Inc., 83 Counter Statement to Rule 56.1 filed by Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 36 Response in
Opposition to Motion filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby,
Neal L. Kirby, 95 Memorandum of Law in Opposition to Motion, filed by Susan N.
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Opposition to Motion filed by Marvel Worldwide, Inc., Marvel Characters, Inc.,
MVL Rights, LLC, 26 Notice of Change of Address filed by Marvel Worldwide,
Inc., Marvel Characters, Inc., MVL Rights, LLC, 30 Answer to Complaint,
Counterclaim, filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby, 92 Declaration in Opposition to Motion filed by Susan N. Kirby, Lisa R.
Kirby, Barbara J. Kirby, Neal L. Kirby, 106 Endorsed Letter, 28 Case Management
Plan, 35 Memorandum of Law in Opposition to Motion filed by Susan N. Kirby,
Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 65 Declaration in Support of
LLC, The Walt Disney Company, Marvel Entertainment, Inc., 29 Rule 7.1
Corporate Disclosure Statement filed by Susan N. Kirby, Lisa R. Kirby, Barbara J.
Kirby, Neal L. Kirby, 118 Declaration in Opposition to Motion,, filed by Susan N.
Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 105 Pretrial Statement filed
by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 39 Reply
Memorandum of Law in Support of Motion filed by Marvel Worldwide, Inc.,
Entertainment, Inc., 68 Memorandum of Law in Support of Motion, filed by
Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, The Walt
Disney Company, Marvel Entertainment, Inc., 117 Memorandum of Law in
Opposition to Motion, filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby,
Neal L. Kirby, 104 Notice (Other) filed by Marvel Worldwide, Inc., Marvel
Entertainment, Inc., 81 Memorandum of Law in Opposition to Motion filed by
Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 124 Notice
of Appeal filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby,
107 Reply Memorandum of Law in Support of Motion filed by Marvel Worldwide,
Marvel Entertainment, Inc., 67 MOTION in Limine to Exclude the Expert Report
and Testimony of Mark Evanier. filed by Marvel Worldwide, Inc., Marvel
Entertainment, Inc., 51 Endorsed Letter,, 75 Declaration in Support of Motion,
Counter Statement to Rule 56.1 filed by Susan N. Kirby, Lisa R. Kirby, Barbara J.
Kirby, Neal L. Kirby, 77 Declaration in Support of Motion,, filed by Susan N.
Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 50 Answer to Counterclaim
Walt Disney Company, Marvel Entertainment, Inc., 46 Declaration filed by Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 14 Order Referring
Case to Magistrate Judge, 17 Memorandum of Law in Opposition to Motion filed
by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 15 Order,
Set Deadlines/Hearings,, 123 Clerk's Judgment,, 1 Complaint filed by Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 5 Waiver of Service
Executed filed by Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights,
LLC, 56 Notice of Change of Address, filed by Marvel Worldwide, Inc., Marvel
Characters, Inc., MVL Rights, LLC, 7 Waiver of Service Executed filed by Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, 114 Declaration in
Support of Motion, filed by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal
L. Kirby, 58 Stipulation and Order, 97 Declaration in Opposition to Motion, filed
by Susan N. Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 8 Endorsed
Letter, Set Deadlines/Hearings, 16 Endorsed Letter, 66 Declaration in Support of
LLC, The Walt Disney Company, Marvel Entertainment, Inc., 80 Stipulation and
Order, Set Scheduling Order Deadlines, 21 Order, Set Deadlines/Hearings, 88
Declaration in Opposition to Motion filed by Susan N. Kirby, Lisa R. Kirby,
Barbara J. Kirby, Neal L. Kirby, 62 Memorandum of Law in Support of Motion
Walt Disney Company, Marvel Entertainment, Inc. were transmitted to the U.S.
Court of Appeals. (tp) (Entered: 08/16/2011)
12/09/2011 125 NOTICE OF CHANGE OF ADDRESS by Marc Toberoff on behalf of Barbara J.
Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. New Address: Toberoff
&Associates, P.C., 22631 Pacific Coast Highway #348, Malibu, California, United
States 90265, 310−246−3333. (Toberoff, Marc) (Entered: 12/09/2011)
JA18
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James W. Quinn
R. Bruce Rich
Randi W. Singer
JUDGE Mc\WION
10 cv 141
Wei!, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Tel: (212) 310-8000
Fax: (212) 310-8007
David Fleischer
Jodi A. Kleinick
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, NY 10022
Tel.: (212) 318-6000
Fax: (212) 319-4090
Attorneys for Plaintijft
UNITED STATES DISTRICT COURT.

SOUTHERN DISTRICT OF NEW YORK
·----------·---------------------------------------------··)(
MARVEL WORLDWIDE, INC.,

MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC,
Plaintiffs,
Civil Action No.
-against-
COMPLAINT
LISA R KIRBY, BARBARA J. KIRBY,
NEALL. KIRBY and SUSAN N. KIRBY,
Defendants .
. ---------.---.--------.---------------.--.-.-- .. ---------·JC
Plaintiffs Marvel Worldwide, Inc. ("MWI"), Marvel Characters, Inc. ("MCI") and
MVL Rights, LLC ("MVL"), by their attorneys Wei!, Gotshal & Manges LLP and Paul,
Hastings, Janofsky & Walker LLP and for their complaint, allege as follows:
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BACKGROUND AND NATURE OF ACTION
1. This case involves an invalid attempt, by means of termination notices
purportedly issued under provisions of the Copyright Act of 1976 (the "1976 Act"), to acquire
certain rights to iconic Marvel comic book characters and stories published between 1958 and
1963 to which Jack Kirby is claimed to have made contributions.
2. Any contributions made by Kirby to the works at issue were made at the
instance and expense of plaintiffs' predecessors in interest and, as such, were works made for
hire. The termination provisions of the 197 6 Act upon which defendants' notices rely are
expressly inapplicable to works made for hire. Accordingly, plaintiffs seek a judgment declaring
the termination notices issued by defendants to be invalid and of no legal force or effect.
JURISDICTION AND VENUE
3. The Court has jurisdiction over this action pursuant to 28 U.S. C. §§ 1331
and 1338.
4. Venue is proper in this district pursuant to 28 U.S.C. § 139l(b) because a
substantial part of the events giving rise to this action occurred in this district. Specifically, any
contributions by Kirby were made in this district, and all of the comic books at issue were
published in this district.
PARTIES
5. MWI is a Delaware corporation maintaining its principal place of business
at 417 Fifth Avenue, New York, New York 10016. MWI has published and is currently engaged
in publishing various comic books utilizing the intellectual property contained in the comic
books at issue.
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6. MCI and MVL are Delaware corporations maintaining their principal
places of business at 1600 Rosecrans Avenue, Manhattan Beach, California 90266. MCI and
MVL own the intellectual property contained in the comic books at issue.
7. Defendants claim to be the children of Kirby on whose behalf the
termination notices have been sent to plaintiffs.
ALLEGATIONS
8. At various times during the period September 1958 through September
1963, and at various times before and after that period, Kirby was engaged as a comic book artist
by certain predecessors in interest of plaintiffs (the "Marvel Entities"), located at all relevant
times in New York, New York.
9. At all times that Kirby was engaged as a comic book artist by the Marvel
Entities, Kirby made contributions to various comic books (the "Works") at the instance of
members of the editorial staff of the Marvel Entities, who had the right to· exercise creative
control with respect to those contributions.
10. Any contributions made by Kirby to the Works were done at the expense
of the Marvel Entities. In particular, Kirby was compensated by the Marvel Entities for all such
contributions made by him.
11. The Marvel Entities registered the copyrights in and to the Works, which
are copyrightable subject matter under the copyright laws of the United States. The registrations
were recorded by the Register of Copyrights, as set forth in Exhibit 1 hereto, and plaintiffs, and
each of the Marvel Entities, have complied in all respects with all laws governing copyright.
12. On or about September 17, 2009, defendants sent 45 notices to plaintiffs
and filed them in the Copyright Office. The notices identify defendants as persons owning a
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sufficient interest under the termination provisions of the 1976 Act, 17 U.S.C. § 304(c), and the
regulations thereunder to exercise rights of termination with respect to transfers of certain rights
in and to the Works.
13. The notices specifically seek to terminate all pre-January 1, 1978
exclusive or non-exclusive grants of a transfer or license of the renewal copyrights covering (a)
various comic books published by the Marvel Entities from September 1958 through September
1963 and all printed and graphic material therein, including various fictional characters, (b)
various fictional characters identified in the notices, and (c) other publications identified in the
notices. By their terms, the notices purport to become effective on various dates from 2014
through2019.
14. The comic book titles identified in the notices, to which Kirby is claimed
to have made contributions, include Amazing Adventures, Amazing Fantasy, Amazing Spider-
Man, The Avengers, the Fantastic Four, Fantastic Four Annual, The Incredible Hulk, Journey
·into Mystery, Rawhide Kid, Sgt. Fury and His Howling Commandos, Strange Tales, Tales to
Astonish, Tales of Suspense and The X-Men. The notices purportedly terminate alleged grants of
copyright interests in all characters, story elements, and other copyrightable subject matter in the
comic books regardless of whether any such subject matter was claimed to be contributed by
Kirby.
CLAIM FOR RELIEF
15. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 14
hereof.
16. Kirby's contributions to the Works were done at the instance and expense
of the Marvel Entities and, as such, his contributions were works made for hire. Accordingly,
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defendants have no right under section304(c) of the 1976 Act to tenninate alleged grants by
Kirby pertaining to the Works. In addition, defendants have no right to terminate plaintiffs'
interests in any subject matter not contributed by Kirby to the Works.
17. The issuance of the notices threatens to inhibit the ability of plaintiffs to
fully exploit their rights in and to the Works. Plaintiffs' commercial development of the Works
involves multi-year commitments by plaintiffs and their licensees, involving not only the comic
books themselves but also exploitation through film projects and other media. In order for
plaintiffs to continue to pursue these commercial endeavors, present judicial relief is needed.
18. Accordingly, plaintiffs seek a judgment pursuant to 28 U.S. C.§ 2201
declaring that the notices are invalid and of no legal force or effect.
WHEREFORE, plaintiffs respectfully demand judgment against defendants
(a) declaring that the notices are invalid and of no legal force or effect, (b) awarding the costs
and disbursements of this action including without limitation reasonable attorneys' fees, and
(c) granting snch other and further relief as to the Court may deem just and proper.
Dated: New York, New York

January 8, 2010
WEIL, GOTSHAL & MANGES LLP PAUL, HASTINGS, JANOFSKY

&WALKERLLP
By __ ~~~v~~~~~-~&~~~U~i~~~-~~~/
James W. Quinn
B~ David Fleischer
R. Bruce Rich Jodi A Kleinick
Randi W. Singer 75 East 55th Street
7 67 Fifth Avenue New York, NY 10022
New York, NY 10153 (212) 318-6000
(212) 310-8000
Attorneys for Plaintiffs
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Exhibit 1
First
Vol. Issue
Publication Title Publication ©Owner ©RegNo.
No. No.
Date
Amazing Adventures 1 1 3/7/1961 MCI B889877
Amazing Adventures 1 2 4/611961 MCI B895316
Amazing Adventures 1 4 6/1/1961 MCI B907458
Amazing Adventures 1 6 81111961 MCI B917812
Amazing Fantasy 1 15 6/511962 MCI B976775
Amazing Spider-Man 1 1 12/10/1962 MCI B12112
Amazing Spider-Man 1 3 4/911963 MCI B32700
Amazing Spider-Man 1 4 6/1111963 MCI B45564
Amazing Spider-Man 1 5 71911963 MCI B50165

Fantastic Four
Annual 1 7/2/1963 MCI A645698
Journey Into Mystery 1 51 12/2/1958 MCI B759768
Journey Into Mystery 1 52 2/3/1959 MCI B766!40
Journey Into Mystery 1 53 4/311959 MCI B768628
Journey Into Mystery l 56 10/!/1959 MCI B803626
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First
Vol. Issue
No. No.
Date
Joumey Into Mystery 1 63 7/29/1960 MCI B860878
Journey Into Mystery 1 73 8/111961 MCI B91 7814
Joumey Into Mystery 1 77 12/511961 MCI B941994
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First
Vol. Issue
No. No.
Date
Journey Into Myste1y 1 86 9/4/1962 MCI B992974
Rawhide Kid 1 17 3/2811960 MCI B835093
Rawhide Kid 1 18 5/31/1960 MCI B847044
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First
Vol. Issue
No. No.
Date
Rawhide Kid 1 19 7/28/1960 MCI B855747
Rawhide Kid 1 20 9/28/1960 MCI B867623
Rawhide Kid 1 21 1/5/1961 MCI B878949
Rawhide Kid 1 22 317/1961 MCI B889879
Rawhide Kid 1 23 5/9/1961 MCI B903232
Rawhide Kid 1 24 7/1111961 MCI B912666
Rawhide Kid 1 25 9/5/1961 MCI B923782
Rawhide Kid 1 26 11/9/1961 MCI B934589
Rawhide Kid 1 27 1/911962 MCI B948090
Rawhide Kid 1 28 3/8/1962 MCI B957584
Rawhide Kid 1 29 5/8/1962 MCI B969573
Rawhide Kid 1 30 7110/1962 MCI B982806
Rawhide Kid 1 31 9111/1962 MCI B992186
Rawhide Kid 1 32 11/8/1962 MCI B6027
Rawhide Kid 1 33 111011963 MCI Bl7485
Rawhide Kid 1 34 3/12/1963 MCI B28147
Rawhide Kid 1 35 5/911963 MCI B37742

Sgt. Fury and His
Howling Commandos 1 1 3/5/1963 MVL B28319
Sgt. Fury and His
Howling Commandos 1 2 5/2/1963 MCI B382254
Sgt. Fury and His
Howling Commandos 1 3 7/2/1963 MCI B50173
Sgt. Fury and His
Howling Commandos 1 4 9/311963 MCI B61936
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First
Vol. Issue
No. No.
Date
Strange Tales 1 67 10/2/1958 MCI B742623
Strange Tales 1 68 12/211958 MCI B752544
Strange Tales 1 69 . 2/3/1959 MCI B766145

MCI
Strange Tales 1 70 4/3/1959 B768625
MCI
Strange Tales 1 71 6/5/1959 B787168
MCI
Strange Tales 1 72 7/3111959 B796411
MCI
Strange Tales 1 73 10/1/1959 B803619
MCI
Strange Tales 1 74 11/30/1959 B813405
MCI
Strange Tales 1 75 1/29/1960 B824068
MCI
Strange Tales 1 76 3/28/1960 B835088
MCI
Strange Tales 1 77 5/31/1960 B847048
MCI
Strange Tales 1 78 6/2711960 B849996
MCI
Strange Tales 1 79 7/28/1960 B855752
MCI
Strange Tales 1 80 8/29/1960 B861708
MCI
Strange Tales 1 81 9/2811960 B867624
MCI
Strange Tales 1 82 10/27/1960 B872496
MCI
Strange Tales 1 83 1/5/1961 B878951
MCI
Strange Tales 1 84 217/1961 B883747
MCI
Strange Tales 1 85 317/1961 B889878
MCI
Strange Tales 1 86 4/1311961 B902924
MCI
Strange Tales 1 87 5/9/1961 B903238
MCI
Strange Tales 1 88 6/8/1961 B907454
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First
Vol. Issue
No. No.
Date
MCI
Strange Tales 1 89 7f11f1961 B912661
MCI
Strange Tales 1 90 8/8/1961 B917821
MCI
Strange Tales 1 91 9/5/1961 B923745
MCI
Strange Tales 1 92 9/28/1961 B928095
MCI
Strange Tales 1 93 11/9(]961 B934590
MCI
Strange Tales I 94 12f12f1961 B942379
MCI
Strange Tales 1 95 1/9/1962 B948091
MCI
Strange Tales 1 96 2/8/1962 B951307
MCI
Strange Tales 1 97 3/8/1962 B957583
MCI
Strange Tales 1 98 4(]0/1962 B964102
MCI
Strange Tales 1 99 5/8/1962 B969572
MCI
Strange Tales 1 100 6/12/1962 B975402
MCI
Strange Tales 1 101 7/10/1962 B982809
MCI
Strange Tales 1 102 8/9/1962 B988507
MCI
Strange Tales 1 103 9/11/1962 B992202
MCI
Strange Tales 1 104 10/9/1962 B999792
MCI
Strange Tales 1 105 11/8(]962 B6037
MCI
Strange Tales 1 106 12(]0/1962 B12120
MCI
Strange Tales 1 107 Ill 0/1963 B17484
MCI
Strange Tales 1 108 2/12/1963 B22022
MCI
Strange Tales 1 109 3(]2/1963 B28143
Strange Tales 1 110 4/9/1963 MVL B34036
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First
Vol. Issue
No. No.
Date
Strange Tales 1 Ill 5/9/1963 MVL B38264

MCI
Strange Tales 1 112 6/11/1963 B45565
MCI
Strange Tales 1 113 7/9/1963 B51854
MCI
Strange Tales 1 114 8/8/1963 B57888
MCI
Strange Tales 1 115 9/10/1963 B66036
MCI
Tales of Suspense 1 1 9/2/1958 B736089
MCI
MCI
Tales of Suspense 1 4 3/311959 B768626
MCI
MCI
MCI
Tales of Suspense 1 7 9/l/1959 B798703
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
Tales of Suspense 1 .
16 1/5/1961 B878950
MCI
MCI
Tales of Suspense 1 18 3/7/1961 B889881·
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First
Vol. Issue
No. No.
Date
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
Tales of Suspense l 38 11!8/1962 B6029
Tales of Suspense 1 39 12/10/1962 MVL B12121

MCI
Tales of Suspense 1 40 1110/1963 Bl7487
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First
Vol. Issue
No. No.
Date
MCI
Tales of Suspense 1 41 2!12/1963 B22023
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
Tales to Astonish 1 1 9/2/1958 B736088
MCI
MCI
MCI
MCI
Tales to Astonish 1 6 711/1959 B790631
MCI
MCI
I
MCI
MCI
MCI
MCI
MCI
MCI
Tales to Astonish 1 '>-· 14 7/28/1960 B855751
MCI
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First
Vol. Issue
No. No ..
Date
MCI
Tales to Astonish I 16 9/28/1960 B867626
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
MCI
Tales to Astonish 1 27 9/28/1961 MVL B928099

MCI
MCI
MCI
MCI
MCI
MCI
MCI

MCI
Tales to Astonish I 36 7110/1962 •.. B982808
MCI
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First
Vol. Issue
No. No.
Date
MCI
MCI
Tales to Astonish I 39 10/2/1962 B999783
MCI
MCI
Tales to Astonish 1 41 12/3/1962 Bl2122
MCI
Tales to Astonish 1 42 1/10/1963 Bl6382
MCI

MCI
MCI
MCI
Tales to Astonish l 47 6/411963 B45556
MCI
Tales to Astonish l 50 9/311963 MCI B61940
The Avengers 1 1 7/2/1963 MVL B51853

MCI
The Avengers .
1 2 9/311963 B61952
MCI
The Fantastic Four 1 1 8/8/1961 B917811
MCI
MCI
The Fantastic Four 1 3 1211211961 B942377
MCI
The Fantastic Four I 4 2/8/1962 B951327
MCI
MCI
MCI
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First
Vol. Issue
No. No.
Date
MCI
MCI
MCI
MCI
The Fantastic Four I II 1111/1962 B6036
MCI
MCI
The Fantastic Four I 13 1/3/1963 Bl7483
MCI
The Fantastic Four I 14 2112/1963 B22021
MCI
MCI
MCI
MCI
MCI
MCI
MCI
The Incredible Hulk I I 3/1/1962 MVL B958840

MCI
The Incredible Hulk I 2 511/1962 B969596
MCI
The Incredible Hulk I 3 7/3/1962 B984340
MCI
MCI
The Incredible Hulk I 5 1111/1962 B6033
MCI
MCI
TheX-Men 1 .. 1 7/2/19.63 B51855
MCI
TheX-Men I 2 9/3/1963 B61951
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Marc Toberoff (MT 4862)

2049 Century Park East, Suite 2720
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


MVL RIGHTS, 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 M. KIRBY,
Defendants.
NOTICE OF DEFENDANTS’ MOTION TO DISMISS FOR LACK OF

PERSONAL JURISDICTION AND FAILURE TO
JOIN INDISPENSABLE PARTIES
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PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law in
Support of Defendants’ Motion to Dismiss, the Declarations of Marc Toberoff, Lisa R.
Kirby and Neal L. Kirby, and the exhibits annexed thereto; and on all prior proceedings
and matters of record in this case, defendants Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby, shall move before the Honorable Colleen McMahon, United
States District Judge, in Courtroom 14C of the United States District Court for the
Southern District of New York, 500 Pearl Street, New York, New York, 10007, for an
Order dismissing the Complaint herein pursuant to Rules 12(b)(2), 12(b)(7) and 19 of the
Federal Rules of Civil Procedure.
PLEASE TAKE FURTHER NOTICE that opposing affidavits and memoranda of
law, if any, must be served upon the undersigned within two weeks and must be filed
with the Court in accordance with applicable rules, including the Individual Practices of
Judge McMahon. Unless such affidavits and memoranda of law are timely served and
filed, the relief sought herein may be granted.

March 9, 2010
s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333
Attorneys for defendants Lisa R. Kirby, Barbara J.

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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 9, 2010 TOBEROFF & ASSOCIATES, P.C.

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

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Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com



MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO

DISMISS FOR LACK OF PERSONAL JURISDICTION AND FAILURE TO
JOIN INDISPENSABLE PARTIES
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TABLE OF CONTENTS
INTRODUCTION .............................................................................................................1
FACTUAL AND PROCEDURAL BACKGROUND.......................................................2
ARGUMENT.....................................................................................................................3
I. PLAINTIFFS’ COMPLAINT MUST BE DISMISSED FOR

LACK OF PERSONAL JURISDICTION OVER LISA KIRBY
AND NEAL KIRBY, WHO ARE BOTH INDISPENSABLE
PARTIES ...................................................................................................3
A. This Court Lacks General and Specific Jurisdiction Over

Lisa Kirby and Neal Kirby.............................................................3
i. General Jurisdiction ...........................................................5
ii. Specific Jurisdiction...........................................................7
iii. Due Process Analysis.......................................................11
B. The Complaint Must Be Dismissed Against All Defendants

For Lack of Personal Jurisdiction Over Two Indispensable
Parties...........................................................................................12
i. The Kirby Heirs Are Necessary Parties ...........................13
ii. This Action Must Be Dismissed Pursuant to FRCP

12(b)(7) Because Lisa Kirby and Neal Kirby Are
“Indispensable Parties” under FRCP 19(b)......................15
C. Plaintiffs’ Forum-Shopping Should Not Be Countenanced.........19
CONCLUSION................................................................................................................20
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TABLE OF AUTHORITIES
Federal Cases
American Optical Co. v. Curtiss,

59 F.R.D. 644 (S.D.N.Y. 1973) ................................................................................ 15-16
Arquest, Inc. v. Kimberly-Clark Worldwide, Inc.,

2008 U.S. Dist. LEXIS 60987 (S.D.N.Y. July 31, 2008) ........................................ 4-5, 11
Bancroft & Masters, Inc. v. Augusta Nat’l Inc.,

223 F.3d 1082 (9th Cir. 2000) .........................................................................................11
Beacon Enters., Inc. v. Menzies,

715 F.2d 757 (2d Cir. 1983)......................................................................................... 7-10
Bell Paper Box, Inc. v. Trans Western Polymers,

53 F.3d 920 (8th Cir. 1995) ...............................................................................................8
Bensusan Rest. Corp. v. King,

126 F.3d 25 (2d Cir. 1997)...............................................................................................11
Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985).....................................................................................................4, 11
CP Nat’l Corp. v. Bonneville Power Admin.,

928 F.2d 905 (9th Cir. 1991) ...........................................................................................19
Copterline Oy v. Sikorsky Aircraft Corp.,

649 F. Supp. 2d 5 (E.D.N.Y. 2007) ................................................................................10
CutCo Indus., Inc. v. Naughton,

806 F.2d 361 (2d Cir. 1986)...............................................................................................7
Doe v. Unocal Corp.,

248 F.3d 915 (9th Cir. 2001) ...........................................................................................11
EEOC v. Peabody,
400 F.3d 774 (9th Cir. 2005) ...........................................................................................15
Ediciones Quiroga S.L. v. Fall River Music, Inc.,

35 U.S.P.Q.2d 1814 (S.D.N.Y. 1995) .............................................................................17
Enrenfeld v. Mahfouz,
2006 U.S. Dist. LEXIS 23423 (S.D.N.Y. 2006)............................................................ 7-8
ii
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Envirotech Corp. v. Bethlehem Steel Corp.,

729 F.2d 70 (2d Cir. 1984) ........................................................................................15, 17
Far West Capital, Inc. v. Towne,

46 F.3d 1071 (10th Cir. 1995) ...........................................................................................8
Felix Cinematografica v. Penthouse International, Ltd.,

99 F.R.D. 167 (S.D.N.Y. 1983) .......................................................................................18
Fort Knox Music, Inc. v. Baptiste,

139 F. Supp. 2d 505 (S.D.N.Y. 2001)................................................................................9
Freeplay Music, Inc. v. Cox Radio, Inc.,

2005 U.S. Dist. LEXIS 12397 (S.D.N.Y. 2005)................................................................6
Global Discount Travel Servs., LLC v. TWA,

960 F. Supp. 701 (S.D.N.Y. 1997)...................................................................................18
Graphic Controls Corp. v. Utah Med. Prods.,

149 F.3d 1382 (Fed. Cir. 1998)..........................................................................................9
Helicopteros Nacionales de Colombia v. Hall,

466 U.S. 408 (1984).....................................................................................................5, 11
Hoffritz for Cutlery, Inc. v. Amjac, Ltd.,

763 F.2d 55 (2d Cir. 1985)............................................................................................. 5-7
IP Co. LLC v. General Commun., Inc.,

2007 U.S. Dist. LEXIS 81451 (S.D.N.Y. 2007) .............................................................10
Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945).....................................................................................................4, 11
Kernan v. Kurz-Hastings, Inc.,

175 F.3d 236 (2d Cir. 1999)...............................................................................................4
Kulko v. Superior Court,

436 U.S. 84 (1978)...........................................................................................................11
LSI Indus. Inc. v. Hubbell Lighting, Inc.,

232 F.3d 1369 (Fed. Cir. 2000).........................................................................................4
Mareno v. Rowe,
910 F.2d 1043 (2d Cir. 1990)......................................................................................... 4-6
iii
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MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007).........................................................................................................19
Merck & Co., Inc. v. Mediplan Health Consulting, Inc.,

425 F. Supp. 2d 402 (S.D.N.Y. 2006) ...............................................................................6
Modern Computer Corp. v. Ma,

862 F. Supp. 938 (E.D.N.Y. 1994) ....................................................................................9
Overseas Media, Inc. v. Skvortsov,

407 F. Supp. 2d 563 (S.D.N.Y. 2005)................................................................................4
Philips Elec. N. Am. Corp. v. Maeser,

43 U.S.P.Q.2d (BNA) 1541 (S.D.N.Y. June 25, 1997) ....................................................9
Plunket v. Estate of Conan Doyle,

Copy. L. Rep. (CCH) P28, 237, 2001 U.S. Dist. LEXIS 2001 (S.D.N.Y. Feb. 22,
2001) ....................................................................................................................... passim
Potomac Electric Power Co. v. Babcock & Wilcox Co.,

54 F.R.D. 486 (D. Md. 1972)...........................................................................................18
Ronson Corp. v. First Stamford Corp.,

48 F.R.D. 374 (D. Conn. 1970)........................................................................................17
Scott v. Paramount Pictures Corp.,

449 F. Supp. 518 (D.D.C. 1978) ................................................................................ 16-17
Serco Services Co. v. Kelley Co., Inc.,

51 F.3d 1037 (Fed. Cir. 1995)..........................................................................................19
Smith v. Kessner,
183 F.R.D. 373 (S.D.N.Y. 1998) .....................................................................................18
Sound Around Inc. v. Audiobahn, Inc.,

2008 U.S. Dist. LEXIS 108263 (E.D.N.Y. 2008)............................................................10
Thomas v. Ashcroft,
470 F.3d 491 (2d Cir. 2006)...............................................................................................4
Tradem, Inc. v. Stainbrook,

2004 U.S. Dist. LEXIS 8107 (S.D.N.Y. May 10, 2004) ...................................................9
Viacom Int’l, Inc. v. Kearney,

212 F.3d 721 (2d Cir. 2000)....................................................................................... 12-13
iv
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Wales Industrial, Inc. v. Hasbro Bradley, Inc.,

612 F. Supp. 510 (S.D.N.Y. 1985)...................................................................................17
Warner Bros. Entm’t v. Ideal World Direct,

516 F. Supp. 2d 261 (S.D.N.Y. 2007)................................................................................6
Wilton v. Seven Falls Co.,

515 U.S. 277 (1995).........................................................................................................19
Wiwa v. Royal Dutch Petroleum Co.,

226 F.3d 88 (2d Cir. 2000).................................................................................................5
State Cases
Landoil Resources Corp. v. Alexander & Alexander Services, Inc.,

77 N.Y.2d 28, 563 N.Y.S.2d 739 (1990) ...........................................................................5
Federal Statutes, Rules and Regulations
37 C.F.R. § 201.10(d) ..............................................................................................2, 8, 12
17 U.S.C. § 304........................................................................................................ passim
FRCP 4...............................................................................................................................4
FRCP 12................................................................................................................... passim
FRCP 19................................................................................................................... passim
State Statutes, Rules and Regulations
N.Y. C.P.L.R. § 301...........................................................................................................5
N.Y. C.P.L.R. § 302................................................................................................. passim
Other Authorities
M. Nimmer & D. Nimmer,

3 Nimmer on Copyright § 11.03[A].................................................................................14
3 Nimmer on Copyright § 11.03[A][2][a]........................................................................13
3 Nimmer on Copyright § 11.03[A][2][b]........................................................................13
3 Nimmer on Copyright § 11.03[A][3] ............................................................................13
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3 Nimmer on Copyright § 11.08[B] .................................................................................14
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INTRODUCTION
This action, filed by Plaintiffs Marvel Worldwide, Inc, Marvel Characters, Inc.
and MVL Rights, LLC (collectively, “Marvel”) must be dismissed pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure (“FRCP”) for lack of personal
jurisdiction over the defendants Lisa R. Kirby and Neal L. Kirby, who are both
indispensable parties.
This court has neither “general” nor “specific” jurisdiction over Lisa Kirby or
Neal Kirby. Lisa and Neal Kirby are not citizens or residents of the State of New York,
have no “continuous and systematic” business contact with New York, and own no
property or other assets in New York. Unsurprisingly, Plaintiffs failed to even allege
personal jurisdiction over the Defendants in their Complaint.
By this action Marvel seeks a declaratory judgment invalidating Defendants’
exercise of their rights under section 304(c) of the Copyright Act to serve notices of
termination (“Termination Notices”) regarding the copyrights to numerous comic books
authored by their father, Jack Kirby (“Kirby”). Such termination rights may only be
exercised in the first place by a majority of Kirby’s statutory heirs – in this case at least
three out of his four children. 17 U.S.C. § 304(c)(1). Moreover, under the Copyright Act
all four Kirby children, who in fact executed the Termination Notices, own the
reversionary copyright interests pursuant to the Termination Notices which vested upon
service of the notices on Marvel and related entities. 17 U.S.C. § 304(c)(2)(B).
Accordingly, this Court cannot grant full or binding declaratory relief with respect to the
Termination Notices, as it lacks personal jurisdiction over two of the four Kirby children
who are indispensable parties. A judgment in this action would not finally resolve this
dispute, and would pose the risk of duplicative lawsuits and inconsistent verdicts.
On March 9, 2010, all four Kirby children filed a declaratory relief action in the
United States District Court in the Central District of California, which has jurisdiction
over all parties to this action. Lisa and Neal Kirby have long resided in the State of
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California and the other two Kirby children, Barbara and Susan Kirby, have consented to
the court’s jurisdiction. Two of the three Marvel parties (Marvel Characters, Inc. and
MVL Rights, LLC) are headquartered in Los Angeles, California, as is Marvel’s
corporate parent, The Walt Disney Company (“Disney”), and the third Marvel party
(Marvel Worldwide, Inc.) regularly conducts business in California. The Central District
of California thus provides a reasonable forum wherein all parties are subject to personal
jurisdiction and are afforded an adequate remedy. This action should therefore be
dismissed pursuant to Rules 12(b)(2), 12(b)(7) and 19.
FACTUAL AND PROCEDURAL BACKGROUND
The Defendants, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M.
Kirby are the children of legendary comic book artist and writer Jack Kirby. See
Declaration of Lisa R. Kirby (“Lisa Decl.”), ¶ 1; Declaration of Neal L. Kirby (“Neal
Decl.”), ¶ 1. On September 16, 2009, Defendants availed themselves of their right under
the Copyright Act to recapture their father’s copyright interests by serving 45
Termination Notices on Plaintiffs pursuant to 17 U.S.C. § 304(c). See Declaration of
Marc Toberoff (“Toberoff Decl.”), ¶ 4; Lisa Decl., ¶ 4; Neal Decl., ¶ 3. The Termination
Notices were served by first class mail on Plaintiffs and/or on all of their known
predecessors and successors-in-interest pursuant to 17 U.S.C. § 304(c)(4) and 37 C.F.R. §
201.10(d). Id.
On December 3, 2009, Defendants’ counsel held an in-person settlement
conference with Plaintiffs’ parent corporation, Disney, and on December 16, 2009,
Defendants’ counsel engaged in another lengthy settlement conference with Disney and
Plaintiffs’ counsel herein. Toberoff Decl., ¶ 5. At the conclusion of the second
settlement conference, it was expected that Disney and Plaintiffs would get back to
Defendants after the Christmas holidays. Id. Instead, Plaintiffs filed the present action
on January 8, 2010 without warning and without any indication that such settlement
discussions had concluded. Id.
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Plaintiffs do not allege in their complaint that this Court has personal jurisdiction
over any of the Defendants. See Complaint (“Compl.”) at ¶¶ 3-4, 7. Defendants Lisa
Kirby and Neal Kirby are both citizens and residents of the State of California. See Lisa
Decl., ¶ 2; Neal Decl., ¶ 2. Neither individual resides in or operates a business in the
State of New York or “systematically and continuously” transacts or solicits any business
in New York. See Lisa Decl., ¶¶ 6-8; Neal Decl., ¶¶ 5-7. Neither individual owns or
maintain offices, bank accounts, real property or other assets in New York, and neither
has any employees in New York. See Lisa Decl., ¶ 7; Neal Decl., ¶ 6. Neither individual
has committed, nor been accused by Plaintiffs of committing, a tort within the State of
New York underlying any allegations in the Complaint.
Two of the three Plaintiffs, Marvel Characters, Inc. and MVL Rights, LLC,
maintain their principal place of business in Manhattan Beach, California, and the third
Plaintiff, Marvel Worldwide, Inc., regularly conducts business in California. Compl. at ¶
6. Plaintiffs’ corporate parent, Disney, maintains its principal place of business in
Burbank, California. Toberoff Decl., Ex. B.
On March 9, 2010, all the Kirby children filed a complaint in the United States
District Court for the Central District of California against Disney and Marvel seeking,
inter alia, a declaratory judgment that their Termination Notices are valid and effective
under the United States Copyright Act. See Lisa Decl., ¶ 9; Neal Decl., ¶ 8; Toberoff
Decl., Ex. A.
ARGUMENT
I. PLAINTIFFS’ COMPLAINT MUST BE DISMISSED FOR LACK OF

PERSONAL JURISDICTION OVER LISA KIRBY AND NEAL KIRBY,
WHO ARE BOTH INDISPENSABLE PARTIES
A. This Court Lacks General and Specific Jurisdiction Over Lisa

Kirby and Neal Kirby
The requirement that federal courts have personal jurisdiction over the litigants
before them arises from “an individual’s liberty interest in not being subject to the
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binding judgments of a forum with which he has established no meaningful ‘contacts,
ties, or relations.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985)
(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 318-319 (1945)). In order to
survive a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), “a
plaintiff must make a prima facie showing” and bears the ultimate burden of establishing
that the court has personal jurisdiction over each defendant. Thomas v. Ashcroft, 470
F.3d 491, 495 (2d Cir. 2006). See also Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240
(2d Cir. 1999). A motion to dismiss must be granted if a court lacks personal jurisdiction
over a defendant who is “indispensable” to the action. See FRCP 19(b).
Plaintiffs’ action for declaratory relief under the Copyright Act relies for subject-
matter jurisdiction on this Court’s federal-question jurisdiction. See Compl. ¶ 3. As
there is no federal statute governing personal jurisdiction in a copyright action, this Court
must look to New York state law as to whether it has personal jurisdiction over Lisa
Kirby and Neal Kirby. See Overseas Media, Inc. v. Skvortsov, 407 F. Supp. 2d 563, 567
(S.D.N.Y. 2005); Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir. 1990); FRCP
4(k)(1)(A). A personal jurisdiction inquiry “consists of two steps: (1) whether the
defendant is amenable to process in the forum state (i.e., whether there is personal
jurisdiction under the state long arm statute); and (2) whether exercise of jurisdiction is
constitutional.” Arquest, Inc. v. Kimberly-Clark Worldwide, Inc., 2008 U.S. Dist. LEXIS
60987 at *12-13 (S.D.N.Y. July 31, 2008), (citing LSI Indus. Inc. v. Hubbell Lighting,
Inc., 232 F.3d 1369, 1370 (Fed. Cir. 2000)).
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Under New York’s long arm statutes, N.Y. C.P.L.R. §§ 301-302, a court may
exercise personal jurisdiction based on either “general” or “specific” jurisdiction. See
generally Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414-15 (1984).
i. General Jurisdiction
Under N.Y. C.P.L.R. § 301, general jurisdiction only applies to a non-resident “if
it is ‘doing business’ in New York so as to establish its presence in the state. A foreign
corporation is said to be ‘doing business’ in New York if it engages in a continuous and
systematic course of conduct in New York.” Mareno, 910 F.2d at 1046 (citations
omitted). See also Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000)
(holding that the non-resident must “do business in New York not occasionally or
casually, but with a fair measure of permanence and continuity”) (internal quotation
marks omitted); Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 77
N.Y.2d 28, 33-34, 563 N.Y.S.2d 739, 741 (1990) (same). The New York courts, “in
applying the pragmatic test for section 301 jurisdiction have focused upon factors
including: the existence of an office in New York; the solicitation of business in the
state; the presence of bank accounts and other property in the state; and the presence of
employees of the foreign defendant in the state.” Hoffritz for Cutlery, Inc. v. Amjac, Ltd.,
763 F.2d 55, 58 (2d Cir. 1985). See also Arquest, Inc., 2008 U.S. Dist. LEXIS 60987 at
*14-15.
Here, Plaintiffs failed to allege anywhere in their Complaint that this Court has
personal jurisdiction over any of the Defendants. This defect alone merits dismissal of
the action. See Plunket v. Estate of Conan Doyle, Copy. L. Rep. (CCH) P28, 237, 2001
U.S. Dist. LEXIS 2001 at * 8 (S.D.N.Y. Feb. 22, 2001) (plaintiff’s allegations were
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insufficient to make a prima facie showing that the court had personal jurisdiction where
plaintiff did not allege that defendants conducted business in New York); Warner Bros.
Entm’t v. Ideal World Direct, 516 F. Supp. 2d 261, 267 (S.D.N.Y. 2007) (granting Rule
12(b)(2) motion in copyright infringement case because “Plaintiffs’ generalized
allegation that all sixteen original Defendants had ‘continuing and ongoing business
contacts with residents of the state of New York’ is insufficient to establish jurisdiction”);
Freeplay Music, Inc. v. Cox Radio, Inc., 2005 U.S. Dist. LEXIS 12397 (S.D.N.Y. 2005)
(ruling that personal jurisdiction did not exist in copyright infringement case through
long-arm statute when there were no allegations that unlicensed use of material via
Webcasts occurred in New York or that New York residents access the Webcasts); Merck
& Co., Inc. v. Mediplan Health Consulting, Inc., 425 F. Supp. 2d 402, 420 (S.D.N.Y.
2006) (dismissing claims against individual for lack of personal jurisdiction where
plaintiffs failed to make sufficient jurisdictional allegations in the complaint to make a
prima facie showing of jurisdiction based on the individual’s contacts with New York).
Neither Defendants Lisa Kirby nor Neal Kirby are residents or citizens of the
State of New York, and neither is engaged in a “continuous and systematic” course of
business conduct in New York that would possibly subject them to “general” jurisdiction.
See Lisa Decl., ¶¶ 6-8; Neal Decl., ¶¶ 5-7; Mareno, 910 F.2d at 1046. There are no
“indicia” of business contacts with New York that have “a fair measure of permanence
and continuity”: neither Lisa Kirby nor Neal Kirby owns or maintains offices, bank
accounts, real property or other assets in New York, and neither has any employees in
New York. Hoffritz , 763 F.2d at 58. See Lisa Decl., ¶ 7; Neal Decl., ¶ 6. Moreover,
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neither Lisa Kirby nor Neal Kirby pays any income, property or use taxes to the State of
New York. See Hoffritz, 763 F.2d at 58; Lisa Decl., ¶ 8; Neal Decl., ¶ 7.
ii. Specific Jurisdiction
N.Y. C.P.L.R. § 302(a) confers specific jurisdiction over a non-domiciliary “as to
a cause of action arising from any of the acts enumerated [below]…:
1. transacts any business within the state or contracts anywhere to supply

goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of action for
defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or
property within the state, except as to a cause of action for defamation of
character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods used or
consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in
the state and derives substantial revenue from interstate or international
commerce; or
4. owns, uses or possesses any real property situated within the state.”
N.Y. C.P.L.R. §302(a).
Here, section 302(a)(1) does not apply because Plaintiffs’ claim does not arise
from Defendants’ “transact[ion of] business within the state” of New York. See Lisa
Decl., ¶¶ 6-8; Neal Decl., ¶¶ 5-7. For purposes of section 302(a)(1), “a non-domiciliary
transacts business in New York when he purposefully avails himself of the privilege of
conducting activities within New York and thus invokes the benefits and protections of
its laws.” Enrenfeld v. Mahfouz, 2006 U.S. Dist. Lexis 23423 at *12 (S.D.N.Y. 2006)
(citing CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986)). See also
Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 766 (2d Cir. 1983) (same).
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Plaintiffs may strain to argue that the Defendants’ mailing of the Termination
Notices to certain Marvel entities at New York addresses establishes “specific
jurisdiction” under section 302(a)(1).
Firstly, it is impossible to characterize such statutory notice under the U.S.
Copyright Act as “purposefully … invok[ing] the benefits and protections of New York
law.” Beacon, 715 F.2d at 766. To exercise the Termination Notices, the Kirby heirs
were required to serve Kirby’s grantees or such grantees’ successors at their last known
address pursuant to 17 U.S.C. § 304(c)(4) and 37 C.F.R. § 201.10(d) (the “notice of
termination shall be served upon each grantee whose rights are being terminated, or the
grantee’s successor in title … by first-class mail sent to an address which, after a
reasonable investigation, is found to be the last known address of the grantee or successor
in title”). Compliance with such a statutory requirement in no way means that Lisa Kirby
and Neal Kirby “purposefully availed” themselves of the laws of the forums to which
such notices were mailed.
Secondly, the mere use of interstate mail from outside New York into the
jurisdiction is wholly insufficient to sustain personal jurisdiction. Beacon, 715 F.2d at
766 (“Courts have consistently refused to sustain section 302(a)(1) jurisdiction solely on
the basis of defendant’s communication from another locale with a party in New York.”)
(collecting cases); Enrenfeld, 2006 U.S. Dist. LEXIS 23423 at *12 (same); Bell Paper
Box, Inc. v. Trans Western Polymers, 53 F.3d 920, 922-23 (8th Cir. 1995) (holding that
the use of “interstate facilities, such as telephones or mail” alone are insufficient to
establish personal jurisdiction); Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077
(10th Cir. 1995) (same).
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Thirdly, the act of sending a notice of one’s legal rights or claims to a New York
addressee is insufficient to establish specific jurisdiction under section 302(a)(1). See
Beacon, 715 F.2d at 766 (California resident’s letter to a New York corporation claiming
copyright and trademark ownership does not sustain specific jurisdiction in New York
under section 302(a)(1) in declaratory relief action) (collecting cases). See also Graphic
Controls Corp. v. Utah Med. Prods., 149 F.3d 1382, 1387 (Fed. Cir. 1998) (dismissing a
declaratory relief action for lack of jurisdiction because two letters sent to New York
addressee claiming patent infringement were “of insufficient quality and degree to be
considered the ‘transaction of business’ under New York law because they do not
constitute the purposeful availment by [defendant] of the benefits and protections of New
York laws”); Fort Knox Music, Inc. v. Baptiste, 139 F. Supp. 2d 505 (S.D.N.Y. 2001)
(holding no specific jurisdiction in declaratory relief action under section 302(a)(1) over
Louisiana defendant who wrote multiple letters to New York plaintiff claiming sole
copyright ownership and who regularly received royalties collected by a licensing
clearinghouse in New York); Modern Computer Corp. v. Ma, 862 F. Supp. 938, 945
(E.D.N.Y. 1994) (ruling that courts have “consistently held” in the context of copyright
or patent cases that notice or claim letters are “insufficient to establish the minimum
contacts necessary for personal jurisdiction”); Philips Elec. N. Am. Corp. v. Maeser, 43
U.S.P.Q.2d (BNA) 1541, 1542 (S.D.N.Y. June 25, 1997) (holding that demand letters and
phone calls related to a patent license did not constitute purposeful availment of New
York laws); Tradem, Inc. v. Stainbrook, 2004 U.S. Dist. LEXIS 8107 at *9 (S.D.N.Y.
May 10, 2004) (holding that a letter claiming trademark ownership and infringement did
not establish personal jurisdiction over Ohio musician sued in New York).
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“It is significant that New York courts have refused to sustain jurisdiction over
defendants with far more extensive contacts with the forum” than Lisa and Neal Kirby
whose contacts with New York are slim to none. Beacon, 715 F.2d at 766 (collecting
cases). See also Copterline Oy v. Sikorsky Aircraft Corp., 649 F. Supp. 2d 5 (E.D.N.Y.
2007) (holding no specific jurisdiction under section 302(a)(1) in a suit alleging sale of
defective helicopter component although defendant shipped component through New
York and sold millions of dollars worth of goods and services to New York customers
annually); Sound Around Inc. v. Audiobahn, Inc., 2008 U.S. Dist. LEXIS 108263
(E.D.N.Y. 2008) (holding no specific jurisdiction over California defendants under
section 302(a)(1) in declaratory patent and trademark action where defendants had seven
authorized retailers in New York to sell their products and had sent several cease and
desist letters to plaintiff in New York); IP Co. LLC v. General Commun., Inc., 2007 U.S.
Dist. LEXIS 81451 (S.D.N.Y. 2007) (holding no specific jurisdiction under section
302(a)(1) over Alaska defendants in declaratory trademark action when defendants were
listed on the New York stock exchange, raised capital in New York, and purchased
supplies in New York).
Lastly, Sections 302(a)(2)-(3) do not apply, as Plaintiffs have not alleged that
Defendants have committed any tortious acts, in New York or otherwise. See Complaint
¶18. Section 302(a)(4) does not apply, as neither Lisa Kirby nor Neal Kirby owns any
real property in the State of New York. See Lisa Decl., ¶ 7; Neal Decl., ¶ 6.
In light of the above, it is clear that neither Lisa Kirby nor Neal Kirby is subject to
the “general” or “specific” jurisdiction of the State of New York.
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iii. Due Process Analysis
As the tests for both “general” and “specific” jurisdiction have not been met, this
Court need not undertake a separate analysis under the due process clause of the
Constitution. See Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997) (If New
York law does not confer personal jurisdiction, then the court does “not address the issue
of due process.”); Arquest, Inc., 2008 U.S. Dist. LEXIS 60987 at *29 (“Because this
court finds no specific or general jurisdiction over [defendant], it need not address the
constitutional requirements for personal jurisdiction.”).
Notwithstanding this, the constitutional due process requirement for personal
jurisdiction is not satisfied here. The due process clause of the Fourteenth Amendment
requires that a defendant have “minimum contacts” with the forum state such that the
maintenance of the action does not offend “traditional notions of fair play and substantial
justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). To establish
jurisdiction, a defendant’s activity in the state must be such that it would be fair and
reasonable to require him to defend himself in that state. See Kulko v. Superior Court,
436 U.S. 84, 92 (1978). “Minimum contacts exist where the defendant ‘purposefully
availed itself’ of the privilege of doing business in the forum state and could ‘reasonably
anticipate being hauled into court there.’” Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474-75 (1985); Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001). To establish the
minimum contacts necessary to support jurisdiction, Plaintiffs must establish that
Defendants Lisa and Neal Kirby have “continuous and systematic” business contacts with
New York. See Helicopteros, 466 U.S. at 416. See Bancroft & Masters, Inc. v. Augusta
Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (noting that this jurisdictional standard is
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“fairly high,” and “requires that the defendant’s contacts be of the sort that approximate
physical presence”).
As discussed above, this standard is not satisfied here. Neither Lisa Kirby nor
Neal Kirby has sufficient “minimum contacts” with New York because they are not
residents of New York and they do not conduct “continuous and systematic” business in
New York. See Lisa Decl., ¶¶ 6-8; Neal Decl., ¶¶ 5-7. Moreover, the mere service of the
Termination Notices by mail on New York addressees pursuant to federal regulation
simply does not establish constitutionally sufficient “minimum contacts” with New York.
37 C.F.R. § 201.10(d).
B. The Complaint Must Be Dismissed Against All Defendants For Lack

of Personal Jurisdiction Over Two Indispensable Parties
Plaintiffs are seeking declaratory relief regarding the exercise by Kirby’s four
children of their termination rights under section 304(c) of the Copyright Act. 17 U.S.C.
§ 304(c). This Court has personal jurisdiction over two of the Defendants, Barbara and
Susan Kirby. However, it cannot grant full and final declaratory relief as to the validity
of the Termination Notices because it lacks personal jurisdiction over Lisa and Neal
Kirby, the other two statutory heirs who executed the Termination Notices, who are
indispensable under the Copyright Act to the exercise of the Kirbys’ termination right,
and who co-own the reversionary copyright expectancy pursuant thereto. 17 U.S.C. §
304(c)(1).
“[FRCP] 19 sets forth a two-step test for determining whether the court must
dismiss an action for failure to join an indispensable party. First, the court must
determine whether an absent party belongs in the suit, i.e., whether the party qualifies as
a ‘necessary’ party under Rule 19(a).” Viacom Int’l, Inc. v. Kearney, 212 F.3d 721, 724
12
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(2d Cir. 2000), cert. denied, 531 U.S. 1051, 121 S. Ct. 655, 148 L. Ed. 2d 558 (2000).
Where a “necessary” party cannot be joined, “the court must finally determine whether
the party is ‘indispensable.’ If the court determines that a party is indispensable, then the
court must dismiss the action pursuant to Rule 19(b).” Id. at 725.
i. The Kirby Heirs Are Necessary Parties
A person is a “necessary” party under Rule 19(a) if “in that person’s absence, the
court cannot accord complete relief among existing parties,” or if he/she “claims an
interest relating to the subject of the action and is so situated that the disposition of the
action in the person’s absence … may as a practical matter impair or impede the person’s
ability to protect that interest.” FRCP 19(a). As shown below, the Kirbys are
“necessary” parties.
Here, all four of Kirby’s children, who are all statutory heirs under the Copyright
Act, executed the Termination Notices served on Disney and Marvel. Toberoff Decl., ¶¶
3-4, Lisa Decl., ¶ 4; Neal Decl., ¶ 3. Under 17 U.S.C. § 304(c)(2)(B), all four children
“own” the termination interest with respect to their father’s works, which vested upon
service of the Termination Notices. See 3 Nimmer on Copyright §§ 11.03[A][2][a] (If
“there is no surviving spouse, the children own the entire termination interest, equally
divided among them.”), 11.03[A][3] (“[T]he rights of those who are recipients of the
terminated rights vest upon the date the notice of termination is served”).
Furthermore, under 17 U.S.C. § 304(c)(2)(B), if, as here, the author is survived
only by his children, a majority of such children are required in order to exercise the
termination right. See 3 Nimmer on Copyright § 11.03[A][2][b] (“If there is no surviving
spouse, then a majority of the [author’s] children are required to join in a termination”).
13
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The same majority of statutory heirs would be required for any further grant or settlement
of the copyrights recaptured by the Termination Notices. See 3 Nimmer on Copyright §
11.08[B] (“A further grant … of any right that has theretofore been terminated by
operation of the statutory termination provisions must be executed by the same number
and proportion of owners of the termination interest as was necessary in order to
effectuate the prior termination. Thus, if a majority of owners of the termination interest
was required in order to terminate the grant of a given right, a majority is also required in
order to make a new grant, or an agreement to make a new grant, of the same right.”); 17
U.S.C. § 304(c)(6)(C). Accordingly, three out of the four Kirby children would be
required to grant or settle the copyright interests recaptured pursuant to the Termination
Notices. Id.
Each of the Kirby children are therefore “necessary parties” under FRCP 19(a)
because each “claims an interest relating to the subject of the action … and the
disposition of the action in [their] absence…may impair or impede [their] ability to
protect that interest.” For instance, a ruling against Barbara and Susan Kirby may
unfairly prevent Lisa and Neal Kirby from re-granting their recaptured copyright
interests, as any disposition of such copyrights would require the consent of a majority of
Kirby’s statutory heirs. See 17 U.S.C. § 304(c)(6)(C). The Court likewise “cannot
accord complete relief” regarding the Termination Notices as it has personal jurisdiction
over only two of the four Kirby heirs who together own the termination interest. See
FRCP 19(a); 17 U.S.C. § 304(c)(6)(C), 3 Nimmer on Copyright § 11.03[A]; § 11.08[B].
See Plunket, 2001 U.S. Dist. LEXIS 2001 at *8 (dismissing complaint because plaintiff’s
request for declaratory relief that a “notice of termination” was ineffective goes to the
14
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underlying ownership of certain copyrights and failure to join all affected parties violates
FRCP 19); American Optical Co. v. Curtiss, 59 F.R.D. 644, 648 (S.D.N.Y. 1973)
(holding that all alleged co-owners of a patent were necessary parties in an action in
which the patent’s ownership was in dispute).
ii. This Action Must Be Dismissed Pursuant to FRCP 12(b)(7)

Because Lisa Kirby and Neal Kirby Are “Indispensable
Parties” under FRCP 19(b).
If a “necessary” party under Rule 19(a) cannot be joined for lack of jurisdiction,
“the court [in deciding whether such party is ‘indispensable’] must determine whether, in
equity and good conscience, the action should proceed among the existing parties or
should be dismissed.” FRCP 19(b). “Indispensable parties under Rule 19(b) are persons
who not only have an interest in the controversy, but an interest of such a nature that a
final decree cannot be made without either affecting that interest, or leaving the
controversy in such a condition that its final termination may be wholly inconsistent with
equity and good conscience.” EEOC v. Peabody, 400 F.3d 774, 780 (9th Cir. 2005). See
Envirotech Corp. v. Bethlehem Steel Corp., 729 F.2d 70, 75 (2d Cir. 1984) (where a
party “possess[es] rights … ‘which are ‘inextricably intertwined’ with issues bound to be
raised in an action,” that party should be considered an “indispensable party”) (internal
citations omitted). Under FRCP 19(b) the Court is to consider the following factors to
determine if a party is indispensable:
“(1) the extent to which a judgment rendered in the person's absence might
prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by: (A)
protective provisions in the judgment; (B) shaping the relief; or (C) other
measures;
(3) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.”
15
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With respect to the first factor, a judgment invalidating the Termination Notices
as to Barbara and Susan Kirby, in the absence of Lisa and Neal Kirby, would obviously
prejudice the latter, because, as set forth above, they would be unable to exercise their
copyrights in the terminated works without a “majority” of the four Kirby children. 17
U.S.C. § 304(c)(2). As two of the Kirby heirs are residents of New York, subject to the
jurisdiction of this Court, an adverse judgment herein would create a “deadlock.”
Because any further grant of the copyrights recaptured pursuant to the Termination
Notices requires the consent of a majority of the Kirby children, Lisa and Neal Kirby
could not exploit such copyrights, even if a different court with jurisdiction over them
were to find that the Termination Notices are valid and effective. See American Optical
Co., 59 F.R.D. at 650 (If “the very basis of [a non-party’s] patent ownership would be
undercut” by a verdict, and “would rob [the non-party co-owner] of all but nominal
indices of ownership,” then that co-owner is an “indispensable party” requiring dismissal
of the action.).
As to FRCP 19(b)’s second factor, there is no way such prejudice to Lisa and
Neal Kirby could be “lessened.” If this Court grants the relief sought by Plaintiffs and
declares that the Termination Notices are invalid, there is simply no way to “shape” such
relief to avoid the resulting prejudice to Lisa and Neal Kirby described above. Because
this action seeks a declaration of rights regarding the exercise by all four children of their
termination rights under the Copyright Act, the lack of personal jurisdiction over all four
children that could be affected by an adverse ruling warrants dismissal. See Plunket,
2001 U.S. Dist. LEXIS 2001 at *8; Scott v. Paramount Pictures Corp., 449 F. Supp. 518,
520 (D.D.C. 1978) (dismissing complaint for failure to join necessary party whose
16
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copyright interests would be affected by an adverse judgment); Wales Industrial, Inc. v.
Hasbro Bradley, Inc., 612 F. Supp. 510, 517 (S.D.N.Y. 1985) (holding that because a
non-party would not be bound by a judgment declaring certain Transformer copyrights
invalid, all persons having an interest therein must be joined or the action dismissed).
With respect to FRCP 19(b)’s third factor, a judgment in this action would not
adequately and completely resolve this dispute, and would pose “the possibility of
multiple lawsuits and inconsistent verdicts” because such judgment would not be binding
on Lisa or Neal Kirby for lack of personal jurisdiction. See Wales Industrial, Inc., 612 F.
Supp. at 517; Plunket, 2001 U.S. Dist. LEXIS 2001 at *8, 21 (dismissing complaint
because failure to join all affected parties “would thus risk the possibility of multiple
lawsuits and inconsistent verdicts.”). See also Ediciones Quiroga S.L. v. Fall River
Music, Inc., 35 U.S.P.Q.2d 1814, 1823 (S.D.N.Y. 1995) (holding that adjudication of
copyright owned by indispensable non-party may result in multiple, inconsistent verdicts,
thus requiring either joinder or dismissal); Ronson Corp. v. First Stamford Corp., 48
F.R.D. 374, 377 (D. Conn. 1970) (dismissing the case pursuant to FRCP 19 because “any
judgment would substantially affect [the non-party’s] possession and use of the property”
and therefore “would almost certainly result in a new lawsuit.”).
With respect to FRCP 19(b)’s fourth factor, the filing of a parallel complaint by
all four Kirby children in the Central District of California provides Plaintiffs with an
adequate, if not far more complete, remedy than the present action, which should
appropriately be dismissed. See Envirotech Corp., 729 F.2d at 76 (“The New York and
California suits provide ready avenues for [defendant] to pursue its counterclaim with all
three parties present. In addition, since the federal suit has not yet gone to trial and the
17
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parties have agreed that discovery done in preparation for that trial may be used in any
state proceedings, little is lost by dismissing the federal suit at this point.”); Smith v.
Kessner, 183 F.R.D. 373, 376 (S.D.N.Y. 1998) (“The factor that weights most clearly in
favor of dismissal is the availability of an alternate, more appropriate forum for plaintiffs'
claims … plaintiffs have already filed a state court action against two former defendants
in this case … which alleges the same facts and seeks the same damages that are sought
in this action. Upon dismissal of this action, plaintiffs would be able to join the
defendants in this action as defendants in the state action.”). See also Global Discount
Travel Servs., LLC v. TWA, 960 F. Supp. 701, 710 (S.D.N.Y. 1997) (federal action
dismissed in part because “satisfactory alternative exists” to pursue claims in pending
state action); Potomac Electric Power Co. v. Babcock & Wilcox Co., 54 F.R.D. 486, 491
(D. Md. 1972) (the fourth factor “stands out most strikingly” where “plaintiffs have
available to them … another forum” on the basis of a separately-filed lawsuit, “plaintiffs
are not left without a remedy” and FRCP 19 dismissal is appropriate); Felix
Cinematografica v. Penthouse International, Ltd., 99 F.R.D. 167, 172–73 (S.D.N.Y.
1983) (granting motion to dismiss when alternate forum existed in Italian and New York
state courts).
Plaintiffs will not be prejudiced by litigating this case in the Central District of
California. As noted above, two of the three named Marvel Plaintiffs are headquartered
in Los Angeles and the third Marvel Plaintiff, Marvel Worldwide, Inc. regularly conducts
business in Los Angeles. Compl. at ¶ 6. Disney, the parent company of all three
Plaintiffs, also has its principal place of business in Los Angeles. Toberoff Decl., Ex. B.
A number of key third-party witnesses are located in Los Angeles, including Stan Lee,
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who Plaintiffs are eager to depose. Toberoff Decl., Ex. C. The Ninth Circuit, like the
Second Circuit, is considered a leading and influential circuit on copyright law. Lastly,
as the initial scheduling conference in this matter has not even been held, there will be no
“waste” of judicial resources if this action is dismissed and the parallel action
appropriately proceeds in the Central District of California.
All of Kirby’s children are indispensable parties who should be before a court of
competent jurisdiction, so as to efficiently and “finally determine the entire controversy,
and do complete justice, by adjusting all the rights involved in it.” CP Nat’l Corp. v.
Bonneville Power Admin., 928 F.2d 905, 912 (9th Cir. 1991) (internal citation omitted).
As this Court only has jurisdiction over two of the four indispensable Kirby heirs, the
Complaint must be dismissed pursuant to FRCP 12(b)(7) and 19.1
C. Plaintiffs’ Forum-Shopping Should Not Be Countenanced
The parties were in the midst of detailed settlement discussions and the Kirby
family awaited a response from Disney/Marvel, when, without warning, Marvel filed this
action in the Southern District of New York right after the Christmas holidays. Toberoff
Decl., ¶ 5. In retrospect it is apparent that, while Disney/Marvel sidetracked the Kirbys,
Marvel raced to the courthouse so as to choose the forum and re-clothe itself as a
“Plaintiff.”
1
Even were Lisa and Neal Kirby not indispensable, the Declaratory Judgment Act
accords “unique and substantial discretion” to district courts to decline to entertain
jurisdiction. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007) (quoting
Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). “[T]here is no absolute right to a
declaratory judgment, for the statute specifically entrusts courts with discretion to hear
declaratory suits or not depending on the circumstances.” Serco Services Co. v. Kelley
Co., Inc., 51 F.3d 1037, 1039 (Fed. Cir. 1995). In light of the substantially similar
lawsuit that has been filed in the Central District of California without jurisdictional
defects, this Court should decline this action. Toberoff Decl., Ex. A.
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Disney/Marvel were well aware that two of the four Kirby children resided in
California and that of these two, Lisa Kirby manages the affairs of the Kirby estate as
Trustee of The Rosalind Kirby Trust. Lisa Decl., ¶ 3. Disney/Marvel were likewise
aware that the Kirbys’ counsel, Toberoff & Associates, who were retained to draft and
enforce the Termination Notices, are also located across the country in Los Angeles,
California. Toberoff Decl., ¶ 5; Lisa Decl., ¶¶ 4-5; Neal Decl., ¶¶ 3-4. Disney/Marvel’s
improper and inconvenient forum choice clearly provides them with the inappropriate
strategic “benefit” of burdening the Kirbys by increasing the expense of enforcing their
rights under the Copyright Act and of thereby dissuading such enforcement.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court grant
Defendants’ motion to dismiss in its entirety.
Dated: New York, New York TOBEROFF & ASSOCIATES, P.C.

March 9, 2010
s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

20
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s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

21
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Document 11 509508, Page88Page
Filed 03/09/10 of 2471 of 4

Tel: 310-246-3333



MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
DECLARATION OF LISA R. KIRBY IN SUPPORT OF

DEFENDANTS’ MOTION TO DISMISS
JA67
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/09/10 of 2472 of 4
I, Lisa R. Kirby, hereby declare as follows:
1. I am the daughter of the comic book creator and artist Jack Kirby, (a.k.a.
Jacob Kurtzberg). I am familiar with the facts set forth below and make this declaration
in support of defendants’ motion to dismiss. 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 a resident and citizen of the State of California. I reside in Ventura
County, California and have lived there nearly 40 years.
3. I am the Trustee of the Rosalind Kirby Trust and in that capacity I manage
the affairs of my father’s and mother’s estate.
4. Along with my siblings, Barbara J. Kirby, Neal L. Kirby and Susan M.
Kirby, I executed and served by first class mail on September 16, 2009, forty-five notices
of termination (“Notices of Termination”) regarding prior alleged grants of copyrights in
works authored or co-authored by my father.
5. I have been designated by my two sisters to act as a “point person” to
oversee, along with my brother, Neal Kirby, the Notices of Termination and any litigation
with respect thereto. In that capacity, I arranged for the retention of the Los Angeles law
firm of Toberoff & Associates, P.C. to draft and serve the Notices of Termination and to
handle any related litigation, and I regularly consult with the firm regarding this matter.
6. I do not operate a business in the State of New York nor do I
“systematically and continuously” transact or solicit business in New York.
7. I do not own or maintain any offices, bank accounts, real property or
other assets in New York, nor do I have any employees in New York.
8. I do not pay income, property or use taxes to the State of New York.
9. On March 9, 2010, I, along with my siblings, filed a lawsuit in the United
States District Court, Central District of California, seeking, among other things, a
1
JA68
- ----------

1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/09/10 of 2473 of 4
declaratory judgment that our Notices of Termination are valid and effective under the
Copyright Act.
I declare under penalty of perjury that to the best of my knowledge the
foregoing is true and correct.
/
Dated: March 9, 20 10
2
JA69
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Filed 03/09/10 of 2474 of 4

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

3
JA70
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Filed 03/09/10 of 2471 of 4

Tel: 310-246-3333



MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
DECLARATION OF NEAL L. KIRBY IN SUPPORT OF

JA71
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Filed 03/09/10 of 2472 of 4
I, Neal L. Kirby, hereby declare as follows:
1. I am the son of Jack Kirby, (a.k.a. Jacob Kurtzberg). I am familiar with
the facts set forth below and make this declaration in support of defendants’ motion to
dismiss. 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 a resident and citizen of the state of California. I reside in Orange
County, California and have lived in California since 1970.
3. Along with my siblings, Barbara J. Kirby, Lisa R. Kirby and Susan M.
Kirby, I executed and served by first class mail on September 16, 2009, forty-five notices
of termination (“Notices of Termination”) regarding prior alleged grants of copyrights in
works authored or co-authored by my father.
4. I, along with my sister, Lisa Kirby, oversee the Notices of Termination
and any litigation with respect thereto. I was involved in the retention of the Los Angeles
law firm of Toberoff & Associates, P.C. to draft and serve the Notices of Termination
and consult with the firm with respect to any litigation regarding the Notices.
5. I do not operate a business in the State of New York nor do I

“systematically and continuously” transact or solicit business in New York.
6. I do not own or maintain any offices, bank accounts, real property or
other assets in New York, nor do I have any employees in New York.
7. I do not pay income, property or use taxes to the State of New York.
8. On March 9, 2010, I, along with my siblings, filed a lawsuit in the United
States District Court, Central District of California, seeking, among other things, a
declaratory judgment that our Notices of Termination are valid and effective under the
Copyright Act.
1
JA72
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Filed 03/09/10 of 2473 of 4
I declare under penalty of perjury that to the best of my knowledge the
Dated: March 9, 2010
JA73
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Filed 03/09/10 of 2474 of 4

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

3
JA74
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/09/10 of 2471 of 3

Tel: 310-246-3333



MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
DECLARATION OF MARC TOBEROFF, ESQ. IN SUPPORT OF

JA75
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/09/10 of 2472 of 3
I, Marc Toberoff, hereby declare as follows:
1. I am familiar with the facts set forth below and make this declaration in
support of defendants’ Motion to Dismiss. 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 Place, Suite 2720, 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 (a.k.a. Jacob Kurtzberg).
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. On December 3, 2009, I held an in-person settlement conference in Los
Angeles with the general counsel of plaintiffs’ parent corporation, The Walt Disney
Company (“Disney”) regarding the Termination Notices. On December 16, 2009, I
engaged in another lengthy settlement conference with Disney’s general counsel and
plaintiffs’ current counsel. At the conclusion of the settlement conference, it was clearly
contemplated and expected that Disney and plaintiffs would get back to me regarding the
settlement under discussion after the Christmas holidays. Instead, plaintiffs filed the
present action on January 8, 2010, without warning or any prior indication that our
settlement discussions had concluded.
JA76
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Filed 03/09/10 of 2473 of 3
6. On March 9, 2010, my firm filed on behalf of all ofthe Kirbys a complaint
in the United States District Court for the Central District of California against Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC and Disney seeking, inter
alia, a declaratory judgment that the Kirbys' Termination Notices are valid and effective.
A true and correct copy of that complaint is attached hereto as "Exhibit A."
7. A true and correct copy of the California Secretary of State's online listing
for The Walt Disney Company that I caused to be printed is attached hereto as "Exhibit
B."
8. A true and correct copy of a letter from plaintiffs' counsel James W.
Quinn, Esq. to me dated February 8, 2010 is attached hereto as "Exhibit C."
I declare under the penalty of perjury that to the best of knowledge the foregoing
is true and correct.
Dated: March 9, 2010

Marc Toberoff
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MVL RIGHTS, LLC,
Civil Action No. 10 Civ. 141 (CM) (KNF)
Plaintiffs,
-against-

Defendants.
------------------------------------------------------X
DECLARATION OF ALAN N. BRAVERMAN IN SUPPORT OF

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
I, Alan N. Braverman, declare under penalty of perjury as follows:
1. The facts set forth herein are known to me of my own personal knowledge.
2. I am currently employed as General Counsel ofThe Walt Disney Company
("Disney").
3. On August 31,2009, Disney announced its agreement to acquire Marvel
Entertainment, LLC, the parent company ofthe plaintiffs in this action, and all of its subsidiaries.
The acquisition closed on December 31, 2009. Pursuant to this acquisition, Disney acquired all
of Marvel's rights to the works in question in this action.
4. On or about September 16, 2009, shortly after Disney's acquisition of Marvel was
publicly announced, Marvel received from Defendants' counsel numerous Termination Notices
that purported to exercise a right to terminate certain alleged pre-1978 grants to Marvel by
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Marvel artist Jack Kirby of the renewal copyrights to the works in question in this litigation (the
"Termination Notices").
5. Shortly after Marvel received the Termination Notices in September 2009,
Defendants' counsel approached me to explore the possibility of a settlement of this matter.
6. Over the course of approximately three months, beginning in October 2009, I
personally engaged in several lengthy discussions - both in-person and telephonically - with
Defendants' counsel regarding settlement ofMarvel's potential claims against the Defendants.
Specifically, I met with Defendants' counsel in-person on October 13, 2009 and December 16,
2009. We spoke via telephone on November 24, 2009 and December 5, 2009. Ultimately, no
resolution could be reached.
7. Neither I nor anyone else at Disney or Marvel ever committed to refrain from
litigation, nor did we condition our willingness to engage in discussions on a commitment from
the Defendants to refrain from filing suit or otherwise acting in any way Defendants found
appropriate to protect their rights.
I declare under penalty of perjury that the foregoing facts are true and correct. This
declaration was executed on the~ day of March, 2010 in Burbank, California.
Alan N. Braverman
2
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MVL RIGHTS, LLC,
Plaintiffs,
-against-

Defendants.
------------------------------------------------------X
DECLARATION OF ELI BARD IN SUPPORT OF

I, Eli Bard, declare under penalty of peljury as follows:
1. I am currently employed as Vice President, Deputy General Counsel ofMarvel
Entertainment, LLC, the parent company of the plaintiffs in this action. I have been employed
by Marvel or its predecessor-in-interest (together, "Marvel") since 2003.
2. The facts set forth herein are known to me of my own personal knowledge, or
based on my review of Marvel's records or publicly available documents.
3. Jack Kirby ("Kirby") was an artist whose drawings appeared in numerous comic
books published by predecessors-in-interest of Marvel. Upon information and belief, Kirby
contributed to these works from at least 1939 to 1978, with some periods of absence.
4. During the years 1958 through 1963, Kirby contributed to numerous comic books
published by Marvel that feature many famous characters.
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5. From 1939 and throughout the timeframe relevant to this litigation, Marvel and its
predecessors-in-interest have maintained headquarters in New York. During the years 1958
through 1963, Marvel's principal place ofbusiness was located in New York and Marvel
maintained no offices or other business outside of New York.
6. Marvel's publishing business, including publication of the comic books at issue in
this action, has always been run out ofNew York, and all creative and executive decision-
making relating to these publications has been in New York.
7. Upon information and belief, Kirby resided in New York and worked entirely in
New York during the time period relevant to this action.
8. Upon information and belief, assignments were given to all artists, including
Kirby, by Marvel's management in New York, all discussions about the creation ofthese
publications occurred in New York, and all of the pages created by the artists, including Kirby,
were delivered to Marvel in New York. To my knowledge, none of these interactions took place
outside ofNew York. Indeed, all ofthe work that went into the writing, illustrating, editing,
layout, proofreading and creation of the works at issue in this lawsuit took place in New York.
9. Upon information and belief, based on Marvel's payroll practices and interviews
Kirby himself gave in the early 1990s, Kirby was paid on a per-page basis and received his
paychecks from the accounting department at Marvel's New York office. Having lived and
worked in New York, Kirby presumably paid income taxes to the State of New York in all of the
years from 1958 to 1963.
10. On approximately September 16,2009, Kirby's four children- Lisa R. Kirby,
Barbara J. Kirby, NealL. Kirby and Susan J. Kirby (the "Kirby Heirs")- collectively sent a total
of forty-five (45) Termination Notices to various Marvel entities and licensees. The Termination
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Notices identify eleven entities that purport to be Marvel entities in New York, as well as other
Marvel entities. It is my understanding that the Kirby Heirs also sent the Termination Notices to
Marvel licensees in New York, including, for example, NBC Universal.
11. The Termination Notices, each ofwhich pertains to a specific Marvel comic book
character or group of characters, purport to exercise a right to terminate certain alleged pre-1978
grants of transfers or licenses of renewal copyrights to the works in question from Kirby to
MarveL
12. By their terms, if valid, the Termination Notices would go into effect
automatically upon the dates designated therein, which vary from 2014 to 2019.
13. Defendant Lisa Kirby has entered into several agreements with Marvel entities
located in New York, pursuant to which Marvel purchased certain works of Jack Kirby's
artwork, including artwork relating to certain of the characters listed in one or more of the
Termination Notices. Each of these agreements is executed by Lisa Kirby in her capacity as
administrator of Jack Kirby's estate. All but one ofthe agreements contain New York choice-of-
law and forum-selection provisions. The one agreement that lacks such provisions contains no
choice-of-law or forum-selection provisions at all. Pursuant to these agreements, Marvel paid
for the subject artwork in New York and subsequently published works containing that artwork
in New York.
14. Defendant Lisa Kirby also entered into several agreements with Marvel entities
located in New York concerning Galactic Bounty Hunters, a comic book property based on
concepts and artwork created by Kirby. Lisa Kirby granted to Marvel the rights to print, publish
and distribute comic book works based on this property. Pursuant to the agreements with Lisa
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Kirby, Marvel employees, working at Marvel offices in New York, performed editing,
proofreading, production and accounting services, as well as the coordination of sales, printing
and distribution with respect to the Galactic Bounty Hunters works. The agreements contain
New York choice-of-law and forum-selection provisions. Six editions of the Galactic Bounty
Hunters works and a hardcover compilation were published and placed on sale by Marvel
between July 2006 and June 2008. Payments under those agreements were made by Marvel
from New York.
15. Lisa Kirby sent various emails to Marvel in New York in connection with the
production and renewal contracts relating to Galactic Bounty Hunters, as well as the negotiations
and agreements for the sale of Jack Kirby's artwork to Marvel.
16. Upon information and belief, over the last several years, various books examining
the life and work of Jack Kirby have been published by New York publishers that include credits
and acknowledgements to the estate of Kirby for the right to reprint certain images and material.
Marvel believes in good faith that, in her capacity as administrator of Jack Kirby's estate, Lisa
Kirby had contacts in New York relating to the publication of these books. Additionally, it
would have been common practice for the publishers of these books to have paid a fee to reprint
the artwork in this fashion.
declaration was executed on the 25th day of March, 2010 in Ne
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------------------------------------------------------X

MVL RIGHTS, LLC,
Plaintiffs,
-against-

NEALL. KIRBY and SUSANN. KIRBY,
Defendants.
------------------------------------------------------X
DECLARATION OF JAMES W. QUINN IN SUPPORT OF

I, James W. Quinn, declare under penalty of perjury as follows:
1. I am a partner at the law firm Weil, Gotshal & Manges LLP and am duly admitted
to practice in the State of New York and before this Court. Together with the law firm Paul,
Hastings, Janofsky & Walker LLP, I serve as counsel for Marvel Worldwide, Inc., Marvel
Characters, Inc. and MVL Rights, LLC (collectively, "Marvel") in this action.
2. The facts set forth herein are known to me of my own personal knowledge.
3. On January 19, 2010, this Court issued its Order Scheduling an Initial Pretrial
Conference (Docket No. 3) ("Scheduling Order") that, among other things, directed the parties to
meet and confer within thirty (30) days of the date ofthat Order to attempt to arrive at a mutually
agreeable discovery schedule. The Order directed that "[t]he parties are free to set their own
deadlines as long as the plan provides for completion of all discovery within six months."
(emphasis in original). The Scheduling Order set a date of April 16, 2010 for the initial pretrial
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conference in this case, and stated that the need for the conference would be obviated if the
parties could arrive at an agreed discovery schedule in advance of that date. However, the
Scheduling Order made clear that if the parties were not able to agree to a discovery schedule,
the initial pretrial conference would proceed as scheduled.
4. On the same day that the Court issued its Scheduling Order, I contacted
Defendants' counsel to inform him of the initial conference. During that conversation, I also
explained that Marvel was willing to exchange documents on an expedited basis, and that there
are several witnesses of advanced age that are of critical importance to this case- including then
87-year-old Stan Lee, Jack Kirby's editor and principal collaborator who Marvel wanted to
depose in an expedited manner. Further, I explained to Defendants' counsel the Court's
direction that discovery be completed within six months of the Scheduling Order, and that
Marvel agreed that discovery could reasonably be concluded within the Court's timeframe.
Later that day, I also sent Defendants' counsel a copy of the Scheduling Order.
5. From late January through mid-March 2010, the parties continued to confer on
their respective proposed discovery schedules. Ultimately, the parties were unable to arrive at a
mutually agreeable schedule.
6. On March 22, 2010, Magistrate Judge Fox held a telephonic conference to address
the parties' dispute regarding the expedition of certain depositions. Magistrate Judge Fox
granted Defendants' request for a limited stay of discovery until this Court holds its initial
pretrial conference on April 16,2010, at which time Magistrate Judge Fox found that this Court
would offer its direction on how discovery should proceed in this action.
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declaration was executed on the
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Tel: 310-246-3333



MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
REPLY DECLARATION OF MARC TOBEROFF, ESQ. IN SUPPORT OF

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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’ Motion to Dismiss. 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 2720, 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 (a.k.a. Jacob Kurtzberg).
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 The Walt Disney Company,
plaintiffs and all of their known predecessors and successors-in-interest pursuant to 17
U.S.C. § 304(c) and 37 C.F.R. § 201.10(d). The Termination Notices were researched
and prepared by my firm in Los Angeles, California and mailed from Los Angeles,
California. The Termination Notices were sent to a total of 53 different addresses, 13 of
which were in New York.
5. The Termination Notices have varying “effective termination dates.” The
earliest effective termination date is September 7, 2014 for Tales of Suspense and Tales
to Astonish comics. However, the effective termination dates for all of Jack Kirby’s most
famous works and characters (e.g., Fantastic Four, The Hulk, X-Men and Thor) fall
between 2017-2019. In order for the Termination Notices to be valid and effective, the
1
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Kirbys are required by 17 U.S.C. § 304(c)(4)(A) to file copies ofthe Termination Notices
with the U.S. Copyright Office prior to the respective "effective termination date" of each
notice. Because the Termination Notices do not become effective until well into the
future, none of the Termination Notices have been filed yet with the U.S. Copyright
Office.
I declare under the penalty of perjury that to the best of my knowledge the

~-------..,.
Dated: April 6, 201 0

~/~~
Marc Toberoff
2
JA89
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pursuant to the rules of this Court.
Dated: April 6, 2010 TOBEROFF & ASSOCIATES, P.C.

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333
Fax: 310-246-3101

3
JA90
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Tel: 310-246-3333



MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
REPLY DECLARATION OF LISA R. KIRBY IN SUPPORT OF

JA91
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I, Lisa R. Kirby, hereby declare as follows:
1. I am the daughter of Jack Kirby (a.k.a. Jacob Kurtzberg), the comic book
creator and artist, and the Trustee of The Rosalind Kirby Trust (“Trust”), the California
testamentary trust of my mother. I am familiar with the facts set forth below and make
this declaration in further support of defendants’ motion to dismiss. 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. In or about June, 2006, I, as Trustee of the Trust, was contacted at my
residence in California by Marvel Characters, Inc. (“MCI”), which sought to purchase a
single page of my father’s comic book artwork that was owned by the Trust. MCI sent
the Trust a one-page form “Artwork Transfer and Ownership Agreement,” which I
promptly signed without negotiation. MCI paid a minor “per page” rate for the artwork,
and I deposited MCI’s check in the Trust’s California bank account.
3. I read in paragraph 6 of Plaintiffs’ complaint in this action that MCI is a
“Delaware corporation[] maintaining its principal place of business at 1600 Rosecrans
Avenue, Manhattan Beach, California 90266.”
4. Sporadically in 2008, I, as Trustee of the Trust, was again contacted at my
residence in California by MCI, which sought to purchase a few additional pages of my
father’s artwork, owned by the Trust, for the same per page rate. For this MCI furnished
and I promptly signed three form agreements. One of them listed a California address for
MCI. As before, I deposited MCI’s checks in the Trust’s California bank account.
5. In recently looking over these agreements I realize that they purport to be
with “Lisa R. Kirby, as administrator of the estate of Jack Kirby,” but I nonetheless
1
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signed them "Lisa R. Kirby, Trustee"-- that is, as Trustee of The Rosalind Kirby Trust.
was never the administrator of my father's estate, which, in any event, closed shortly
after his death on February 6, 1994.
6. Marvel Publishing, Inc. entered into an agreement with me dated February
21, 2006 for the limited publication of my father's Galactic Bounty Hunter work. Marvel
provided me with a form publishing agreement which by its terms expired in February
2007. On June, 24, 2008 this agreement was renewed for one year, but Marvel
terminated it shortly thereafter and the work was not republished.
7. I have entered into no other agreements with MCI or any other Marvel
entity.
I declare under penalty ofpetjury that to the best of my knowledge the
/
Dated: April6, 2010
2
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Dated: April 6, 2010 TOBEROFF & ASSOCIATES, P.C.

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333
Fax: 310-246-3101

3
JA94
Case 1:10-cv-00141-CM-KNF Document 27 Filed 04/14/2010 Page 1 of 16
USDS SDNY
UNITED STATES DISTRICT COURT DOCUMENT
SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED
MARVEL WORLDWIDE, INC., DATE FILED:

flI l__
MVL RIGHTS, LLC,
10 Civ. 141 (CM) (KNF)
Plaintiffs,
- against-

NEAL L. KIRBY and SUSAN N. KIRBY,
Defendants.
DECISION AND ORDER DENYiNG DEFENDANTS’ MOTION TO DISMISS
McMahon, J.:
OVERVIEW
Presently before the Court is a motion by defendants Lisa and Neal Kirby to dismiss this
case as against them for lack of personal jurisdiction, and a motion by all defendants to dismiss
the action in its entirety on the ground that it cannot proceed in the absence of Lisa and Neal
Kirby, who are indispensable parties. For the reasons set forth below, the Court concludes that it
has transactional personal jurisdiction over Lisa and Neal Kirby; therefore, the motion to dismiss
is denied and the case will proceed on the merits here in New York.’
FACTUAL AND PROCEDURAL BACKGROUND
Jack Kirby was an illustrator whose drawings appeared in comic books published by
predecessors-in-interest of Marvel for the better part of forty years. (Compl. ¶ 8; Decl. of Eli
Defendants’ objections to Plaintiffs’ declarations have been considered and rejected.
JA95
Case 1 :10-cv-00141-CM-KNF Document 27 Filed 04/14/2010 Page 2 of 16
Bard (“Bard Dccl.”) ¶ 3.) Between 1958 and 1963, Kirby collaborated with other individuals
engaged by Marvel to contribute to the creation of many now-treasured comic books, featuring
such familiar and enduring characters as the Fantastic Four, the Incredible Hulk and the X-Men
(hereinafter “the Works”). (Compl. ¶J 8-9, 14; Compl. Ex. 1.)

Kirby died in 1994. (Dccl. of Marc Toberoff (“Toberoff Dccl.”) Ex. A at ¶ 18.)
Defendants Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan J. Kirby (collectively, the
“Kirby Heirs” or “Defendants”) are Kirby’s children. Barbara and Susan Kirby live in New
York; Lisa and Neal Kirby live in California. (i4 ¶j 5-8.)

Since its inception in 1939 (under the name “Timely Comics”), and during all times
relevant to this action, Marvel and its predecessors-in-interest have been headquartered in New
York. (Compi. ¶ 8; Bard Dccl. ¶ 5.) Marvel and its predecessors-in-interest maintained no
offices outside of New York between 1958 and 1963, the time period during which the Works
were created. (Bard Dccl. ¶ 5.) During that time, Kirby worked in New York, and all of the
conceiving, writing, illustrating, editing, layout and proofreading of the Works at issue in this
lawsuit took place in New York. (Id. ¶J 6, 8.) To this day, the center of gravity of Marvel’s
publishing business is New York. (Id. ¶ 6.) While Marvel has offices in Los Angeles, its New
York office has always been the center for creative and executive decision-making on all matters
related to the publication of its comic books. ($ee I4
On August 31, 2009, the Walt Disney Company announced that it had agreed to acquire
Marvel’s ultimate parent. (Deci. of Alan N. Braverman (“Braverman Dccl.”) ¶ 3.) Two weeks
later, on or about September 16, 2009, the Kirby Heirs sent approximately forty-five Termination
Notices relating to the Works to Marvel and other Marvel-related and unrelated entities. (Compl.
¶ 12; Bard Dccl. ¶ 10.) The Termination Notices are addressed to eleven Marvel-named entities
JA96
in New York. (Bard Deci. ¶ 10.) The Notices purport to terminate all alleged transfers to
Marvel of rights relating to Kirby’s contribution to the Works. (Compl. ¶J 13-14.) The notices
assert that Defendants are persons owning a sufficient interest in the Works under the Copyright
Act to exercise a right to terminate a purported transfer of rights in the Works to Marvel.
(Compi. ¶ 12); see also 17 U.S.C. § 304(c).

Under the Copyright Act, the Termination Notices are self-executing documents;
assuming they are valid, they automatically divest Marvel of its exclusive rights in the Works on
the dates specified therein. However, Marvel believes that the Termination Notices are invalid.
It takes the position that Kirby never had any copyright in the Works, because all of them were
created as works made for hire. (Compi. ¶ 16.) If that is correct, then the copyrights are
Marvel’s as a matter of federal law, and Kirby’s heirs have no ability to terminate Marvel’s
rights.
Shortly after serving the Termination Notices, Defendants’ counsel contacted Disney to
try to seek a settlement arrangement. (Braverman Deci. ¶ 6.) For several months, the parties
engaged in a good-faith attempt to resolve the dispute. (Ii) When it became clear that the
issues could not be resolved, Marvel filed the instant complaint on January 8, 2010. The
complaint seeks a declaration that the Works were in fact works for hire, that Marvel owns the
copyrights, and that the Termination Notices were invalid. (Compi. ¶j 16-18.)
On January 19, 2010, in accordance with Federal Rule of Civil Procedure 26(f) and this
Court’s Order Scheduling an Initial Conference, the parties conferred telephonically to attempt to
arrive at a mutually agreeable discovery schedule. (Decl. of James W. Quinn (“Quinn Decl.”) ¶J
3-4.) Ultimately, however, the parties were unable to reach agreement. (Id. ¶ 5.) On March 9,
2010—the same day they filed their Motion to Dismiss in this Court—Defendants filed their own
JA97
complaint in the United States District Court for the Central District of California, seeking,
among other things, the mirror image of the declaratory judgment sought by Marvel in this
action. (ToberoffDecl. ¶ 6, Ex. A.)
On March 22, 2010, Magistrate Judge Fox issued an order staying discovery in this action
until the initial pretrial conference before the Court, scheduled for April 16, 2010. (Quinn DecI.
¶ 6.)
DISCUSSION
I. Legal Standard
Where, as here, “there are two competing lawsuits, the first suit should have priority,
absent the showing of balance of convenience. . . or. . . special circumstances. . . giving priority
to the second.” First City Nat. Bank and Trust Co. v. Simmons, 878 F.2d. 76, 79 (2d Cir. 1989).
The action filed in this District was unquestionably first in time, and there is no “convenience of
the parties or witnesses” basis to transfer it to California under 28 U.S.C. § 1404 or 1406, The
case is governed by federal copyright law, with which the two courts in question are equally
familiar. Therefore, there are no special circumstances favoring the second action, and the case
should be litigated in New York in the absence of a jurisdictional defect.
On a Rule 1 2(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff “bears
the burden of showing that the court has jurisdiction over the defendant.” In re Magnetic
Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003). Ifjurisdictional facts are disputed,
the Court has the power and the obligation to consider matters outside the pleadings, such as
affidavits, documents, and testimony, to determine whether jurisdiction exists. APWU v. Potter,
343 F.3d 619, 627 (2d Cir. 2003).
JA98
In opposing Defendants’ pre-discovery motion to dismiss, Marvel need only make a
prima facie showing that the non-domiciliary Defendants are amenable to personal jurisdiction in
New York. A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir. 1993). To determine
whether such a prima facie showing has been made, “The Court must accept the allegations of
the plaintiff’s complaint and affidavits as true, and all doubts are resolved in favor of the
plaintiff, notwithstanding any controverting presentation by the moving party.” Andy Stroud,
Inc. v. Brown, No. 08 Civ. 8246, 2009 WL 539863, at *3 (S.D.N.Y. Mar. 4, 2009). “However,
conclusory allegations are not enough to establish personal jurisdiction.” Galerie Gmurzynska v.
Hutton, 257 F. Supp. 2d 621, 625 (S.D.N.Y. 2003) (internal quotations omitted), aff’d, 355 F.3d
206 (2d Cir. 2004).
Here, it is undisputed that two of the defendants live in New York and two live in
California. The Court concludes that it has jurisdiction over the two California defendants.
Therefore, the motion to dismiss is denied, the stay of discovery imposed by Magistrate Judge
Fox is lifted, and the action will proceed here.
II. New York Long Arm Jurisdiction
In this case, this Court’s jurisdiction over New York residents Susan and Barbara Kirby
is undisputed. Defendants’ motion centers on the contention that, as non-residents, neither Lisa
Kirby nor Neil Kirby is amenable to suit in New York. This contention is wrong.
New York law determines this Court’s jurisdictional reach over Defendants. See PDK
Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997); see also Fed. R. Civ. P. 4(k)(l)(a).
Under New York Civil Practice Law and Rules (“CPLR”) § 302(a)(l), a non-domiciliary
defendant is subject to personal jurisdiction if he or she “transacts any business within the state
or contracts anywhere to supply goods or services in the state,” as long as the cause of action
JA99
“aris[es] from any” such transaction of business. CPLR § 302(a)(l). The section 302(a)(1)
inquiry involves two elements: first, did the non-domiciliary defendant “transact business” in
New York; and second, does the plaintiffs claim against the defendant arise out of that activity?
See, e.g., Andy Stroud, Inc., 2009 WL 539863 at *4 (citations omitted). If the answer to both
those questions is yes, the Court must also decide whether the exercise ofjurisdiction comports
with due process. Capitol Records, LLC v. VideoEgg, Inc., 611 F. Supp. 2d 349, 364 (S.D.N.Y.
2009).
A. Defendants Have Transacted Business in New York
Acting collectively, Defendants transacted business in New York within the meaning of
the CPLR.
Under section 302(a)(1), “the issue is whether the defendant ‘has engaged in some
purposeful activity in this State in connection with the matter in the suit.” Andy Stroud, Inc.,
2009 WL 539863 at *4 (quoting Madden v. International Ass’n of Heat & Frost Insulators and
Asbestos Workers, 889 F. Supp. 707, 710 (S.D.N.Y. 1995)). Courts take a broad view of what
qualifies as “transacting business.” The term “business” in the context of CPLR section
302(a)(l) encompasses “more than profit-seeking” or purely “commercial” activities. Madden,
889 F. Supp. at 710. The qualifying activity need not be repeated or of any particular duration—
“An exercise ofjurisdiction under New York’s long-arm statute is valid on the basis of a single
act, even one taken outside New York, as long as the transaction is purposeful and a substantial
relationship exists between the act and the claim being brought.” John Wiley & Sons, Inc. v.
Treeakarabenjakul, No. 09 Civ. 2108, 2009 WL 1766003, at *4 (S.D.N.Y. June 18, 2009) (citing
Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, (2006) (internal quotation
marks omitted)).
JA100
Defendants dispatched a multitude self-executing Termination Notices to Marvel entities
and licensees in New York in September 2009. This constitutes “transacting business” under
section 302(a)( 1). By virtue of having mailed the Termination Notices to Marvel, all four Kirbys
—the two who live in New York and the two who live in California—”project[ed] themselves
into New York and into the local commerce.” John Wiley & Sons, Inc., 2009 WL 1766003 at *5
(internal quotation marks and alterations omitted).
The Termination Notices, which purport to operate automatically to divest Marvel of its
exclusive interests in the Works on the dates specified therein, see 17 U.S.C. § 304(c)(6) (“all of
a particular author’s rights under this title that were covered by the terminated grant revert, upon
the effective date of termination, to that author or . . . to the persons owning his or her
termination interest”), are the fulcrum of Defendants’ plan to obtain royalty payments in relation
to the Works. As their complaint in the California action makes clear, Defendants seek the right
to deal directly with licensees and to obtain significant royalties from third parties. ($.
ToberoffDecl., Ex. A at ¶ 32.) They sent the Termination Notices with the intention of
disrupting Marvel’s established New York-based publishing business, so that they could divert
any royalties associated with licensing Jack Kirby’s work from Marvel to themselves.
In the Second Circuit, letters sent into New York aimed in part at “negotiating royalty
agreements” with alleged violators of a party’s intellectual property rights have been considered
to be a transaction of business for purposes of CPLR section 302(a)(l). PDK Labs, 103 F.3d at
1109. In Andy Stroud, Inc. v. Brown, 2009 WL 539863, at *4..5, for example, plaintiffs satisfied
their prima facie burden under section 302(a)(l) because, inter alia, they alleged that the non
domiciliary defendant represented to a third-party record company that he, not plaintiffs, should
be sent royalties arising from works at issue. Here, Defendants sent a total of forty-five
JA101
termination notices to Marvel entities and licensees. (Compl. ¶12; Bard Dee!. ¶10.) Among
them, were eleven entities in New York. (Bard Deci. ¶ 10.)

It is true that defendants sent their notices to Marvel and related entities, not to the third
parties with whom they hope some day to deal, so the notices were not in furtherance of some
future business deal. However, I reject Defendants’ argument that the Termination Notices were
insufficient to trigger specific jurisdiction. Defendants argue that the Notices were merely acts
required to comply with 17 U.S.C. § 304(c)(4) and did not constitute purposeful availment; that
legal notices or claims of rights to New York addressees are insufficient under CPLR §
302(a)( I); and that the use of interstate mail for the purpose of sending the Termination Notices
is insufficient to sustain personal jurisdiction. These arguments are without merit.
When a communication constitutes the transaction at issue, it provides a basis for
asserting jurisdiction over a non-domiciliary defendant under CPLR 302(a)(1). Parke-Bernet
Galleries, Inc. v. Franklyn, 26 N.Y.2d 13 (1970). The interstate communications here in issue—
the Termination Notices—constitute the business transaction between the plaintiffs and
defendants. It is the document that purports to end a course of New York-based business that
that parties have engaged in since 1958, when Jack Kirby began working for Marvel. The
sending of the notices was designed to stop Marvel from controlling the rights to characters it has
long published and licensed to others, as well as to compel Marvel to take some action in order
to protect its rights.
Unlike a cease and desist letter, which merely warns a party that he may be infringing
upon another’s intellectual property rights, communications like the Termination Notices confer
transactional personal jurisdiction over non-domiciliaries because they alter the status quo
between the parties, by requiring the recipient to take legal action or lose his intellectual property
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rights. For example, in Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th
Cir. 2008), the court found that a Colorado district court had personal jurisdiction over a foreign
company that had submitted notices of claimed copyright infringement (“NOCIs”) to eBay in
California. The court reasoned that the defendants’ “express aim in acting was to halt a
Colorado-based sale by a Colorado resident.” I at 1075-76. The court relied on the fact that “it
was defendants who. . . took the intentional action of sending a NOCI specifically designed to
terminate plaintiffs’ auction.” j at 1074 (emphasis added). The court expressly distinguished
such a notice from an ordinary cease-and-desist letter sent into the forum: “Defendants’ NOCI
went well beyond providing notice to plaintiffs of the claimed infringement and seeking
settlement; it purposefully caused the cancellation of their auction and allegedly threatened their
future access to eBay and the viability of their business.” Id. at 1082 (emphasis added). “The
letter initiated procedures under which the plaintiff either had to give in to the defendant’s
demands (thereby losing use of its domain name), or take legal action.” Id.
Similarly, in Bancroft & Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082 (9th Cir.
2000), the court held that a foreign company was subject to personal jurisdiction in California
because it had sent a notice to a website domain registrar in Virginia, which resulted in the
cancellation of the California plaintiff’s website. 14. at 1087-88. The defendant’s notice was
“purposeful availment” because it “forced [the plaintiff] to bring suit or lose control of its
website.” Id. at 1087. Unlike a cease-and-desist letter, the notice did more than simply put the
plaintiff “on notice” of a competing claim; rather, it served automatically to disable access to the
website. 14. at 1089. After receiving the notice, the plaintiffs were forced either to accede to the
disabling of the website or to file a declaratory judgment action to protect their rights. Sc. at
1088.
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The facts here are even more compelling. As in Dudnikov, the Termination Notices
“went well beyond providing notice to [plaintiff] of the claimed” rights held by Defendants.
Instead, the Termination Notices were intended to “purposefully cause[] the cancellation of”
Marvel’s rights in the Works. Dudnikov, 514 F.3d at 1082. And, as in Bancroft, the
Termination Notices purport to become “automatically” effective and to operate “automatically”
to prevent Marvel from exercising its exclusive rights in the Works. See Bancroft, 223 F.3d at
1089. Unlike Bancroft and Dudnikov, however, the Termination Notices not only had direct and
targeted effects in the forum, but they were also actually sent directly into the forum where
Marvel has filed suit. Thus, there is even more reason to find jurisdiction in this case as
compared to Dudnikov and Bancroft, both of which suggest that there would be jurisdiction in
New York even if the Termination Notices had been sent only to Marvel entities outside New
York. The exercise of personal jurisdiction over the non-resident Defendants therefore “is
triggered by [their] own action in projecting. . . [themselves] into New York.” Sluys v. Hand,
831 F Supp. 321, 325 (S.D.N.Y. 1993). And here, Defendants “knew or reasonably should have
known that by sending the [Termination Notices] into New York, [they were] running the risk of
suit in New York in connection with that activity.” 14
To support their contention that the Termination Notices were no different than cease-
and-desist letters, Defendants cite to Carlson v. Cuevas, 932 F. Supp. 76, 79 (S.D.N.Y. 1996),
and this Court’s opinion in Arguest. Inc. v. Kimberly-Clark Worldwide, Inc., 2008 U.S. Dist.
LEXIS 60987, at *2729 (S.D.N.Y. July 31, 2008). (Defs.’ Reply in Supp. of Mot. to Dismiss
(“Defs.’ Reply Br.”) at 5.) These cases are completely distinguishable. The Termination Notices
are fundamentally unlike ordinary cease-and-desist letters. Marvel could not simply choose to
ignore the Termination Notices, because they did not merely “alleg[e] infringement in an
10
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unspecified locale and threaten[] litigation in an unspecified forum.” Beacon Enters., Inc. v.
Menzies, 715 F.2d 757, 766 (2d Cir. 1983). Rather, they purported to terminate Marvel’s
exclusive rights. Indeed, if Defendants are correct that Jack Kirby held a copyright in his
characters, they did terminate Marvel’s existing rights in these works. The cases in which cease-
and-desist letters were found to be insufficient to invoke section 302(a)(1) jurisdiction are
inapposite, because cease-and-desist letters do nothing except give notice, whereas these
Termination Notices effect a business transaction.
Defendants argue that because the Copyright Act required them to serve the Termination
Notices on Marvel in New York, the service of the Termination Notices on New York addressees
did not constitute availment of New York laws. ( Defs.’ Mem. in Supp. of Mot, to Dismiss
(“Defs.’ Mot.”) at 8.) There is no merit to this argument. Under both Supreme Court and
Second Circuit precedent, the fact that a communication was required to be sent into the forum
state actually counsels in favor of a court’s exercise of personal jurisdiction. $c Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 480 (1985) (contacts were sufficient to impose personal
jurisdiction in part because governing contract required all relevant notices and payments to be
sent into forum); Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 368 (2d Cir. 1986) (finding
sufficient contacts based in part on royalties and fees sent to plaintiffs’ New York office where
such transmissions were required by operative agreement). The relevant question is not whether
Defendants’ contacts with New York were voluntary, but whether Defendants purposefully
projected their interests into the State. Here, they plainly did just that.
Because they chose to purposefully avail themselves into New York for the purpose of
advancing their business interests, the Court concludes that it has jurisdiction over Lisa and Neal
Kirby in connection with this dispute. As a result, it is not necessary to reach any of the other
11
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issues raised by plaintiffs, including their assertion that Lisa Kirby conducted business in New
York with sufficient regularity to subject her to general jurisdiction, and that all the Kirbys can
be sued in New York because their late father could indisputably have been sued in New York.
B. Marvel’s Claim Arises out of Defendants’ Contacts with New York
The requirement in the section 302(a)(l) analysis that Marvel’s cause of action must
“arise out of’ Defendants’ contacts with the forum is easily met. A cause of action arises out of
a particular transaction in New York “if there is a ‘substantial relationship’ or ‘articulable nexus’
between the activity and the lawsuit.” John Wiley & Sons, Inc., 2009 WL 1766003, at *4
(citations omitted). There is unquestionably a substantial relationship between the filing and
sending of the Termination Notices to New York and Marvel’s claim that the Termination
Notices are invalid. Moreover, the underlying dispute involves Works that were created in New
York while Kirby lived in New York, pursuant to work assignments given by Marvel to Kirby in
New York, delivered to editors and publishers in New York, and for which Kirby received
payment in New York. (See Bard DecI. ¶J 7-9.)

III. Due Process
The Court’s exercise of personal jurisdiction over Lisa and Neal Kirby comports with the
Due Process Clause of the Fourteenth Amendment. Due Process requires that the defendant
have “certain minimum contacts with [the forum state] such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial justice.” International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). This analysis involves a two-part inquiry: first,
Defendants must be shown to have sufficient “minimum contacts” in New York; second,
maintenance of the lawsuit in New York must be reasonable. See Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 99 (2d Cir. 2000).
12
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A. Defendants’ Transaction of Business in New York Is Sufficient to Satisf’ the

“Minimum Contacts” Requirement of Due Process
The ultimate purpose of the due process inquiry is simply to determine whether
Defendants could have foreseen that they would be subjected to suit in New York based on their
activities in the State. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). The “minimum contacts” test therefore looks to the “quality and nature” of the
defendant’s contacts in New York under a totality-of-the-circumstances test, with the crucial
question being whether the defendant has “purposefully avail[ed] [himself] of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its
laws.” Burger King, 471 U.S. at 474-75. The inquiry does not, as Defendants contend, require
that Marvel “establish that Defendants Lisa and Neal Kirby have ‘continuous and systematic’
business contacts with New York.” (Defs.’ Mot. at 11.) The “continuous and systematic”
standard, which Defendants misstate, is in fact “a more stringent minimum contacts test” used to
determine whether a defendant is subject to general personal jurisdiction. Metropolitan Life
Ins. Co. v. Roberison-Ceco Corp., 84 F.3d 560, 568 (2d Cir. 1996). Here, plaintiffs assert only
specific or transactional jurisdiction.
New York’s long-arm statute has been found to be coextensive with the constitutional
limit. John Wiley & Sons, Inc., 2009 WL 1766003, at *7 (“Because New York’s long-arm
statute has been interpreted to extend to the constitutional limit, exercising jurisdiction consistent
with that statute. . . also passes constitutional muster.”) (citation omitted). Accordingly,
Defendants’ sending of the Termination Notices into New York is sufficient to satisfy the
“minimum contacts” inquiry under the Due Process Clause.
13
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B. Maintenance of Marvel’s Action against Defendants in New York Would Be

Reasonable
As the Second Circuit has explained, “Once a plaintiff has made a ‘threshold showing’ of
minimum contacts, the defendant must come forward with a ‘compelling case that the presence
of some other considerations would render jurisdiction unreasonable.” Wiwa, 226 F.3d at 99
(quoting Metro. Life Ins. Co., 84 F.3d at 568). Under the factors articulated in Asahi Metal
Indus. Co. v. Superior Court of California, 480 U.S. 102 (1987), the non-domiciliary Defendants
must show that this Court’s jurisdiction would be unfair based on: (1) the burden that the
exercise ofjurisdiction will impose on them; (2) the interests of the forum state in adjudicating
the case; (3) Marvel’s interest in obtaining convenient and effective relief; (4) the interstate
judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the
shared interests of the states in furthering social substantive policies. Id. at 113; Burger King,
471 U.S. at 476-77.
Defendants’ moving papers fail to address this second prong of the due process inquiry,
let alone make a “compelling” case that the exercise ofjurisdiction in this Court is unreasonable.
The particulars of this case weigh decidedly in favor of the Court’s exercise ofjurisdiction.
“[W]here individuals purposefully derive benefit from their interstate activities, it may well be
unfair to allow them to escape having to account in other States for the consequences that arise
proximately from such activities; the Due Process Clause may not be readily wielded as a
territorial shield.” Burger King, 471 U.S. at 473-74 (citation omitted). It can scarcely be
disputed here that Defendants have purposefully derived a substantial benefit from their
interstate activities: if the Termination Notices are valid, they automatically give Defendants
certain rights in the Works, which would allow them to obtain substantial royalties for any grants
or licenses of those rights.
14
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This Court has a significant interest in adjudicating this action because it involves the
fundamental rights of its citizens. Marvel is headquartered in New York and two of the four
Defendants live in New York. The result in this case rests entirely on the nature of the
relationship between Kirby and Marvel, which was formed and existed in New York. The
greatest import of the Termination Notices will be felt by Marvel and its affiliates in New York.
Moreover, having sent the Termination Notices to Marvel and its licensees in New York,
Defendants cannot hide behind the non-residence of the remaining Defendants to avoid being
subject to litigation here. Defendants’ attempt to dictate the forum for this litigation by choosing
which Defendants will consent to which jurisdiction offends equity and fairness.
Marvel also has a substantial interest in obtaining convenient and effective relief in this
Court, and the resolution of this case will be most efficient in this district. All of the underlying
events that gave rise to the creation of the Works, as well as most of the documentary evidence
and several of the witnesses, are located here. Even if Defendants are ultimately successful in
this litigation, Marvel and its New York licensees will retain certain rights in the Works and in
derivative works based on those Works, which will continue to be exploited and licensed in New
York. See 17 U.S.C. § 304(c)(6)(A). Any claimed inconvenience to the non-domiciliary

Defendants as a result of litigating in New York falls far below the threshold of what is
constitutionally unreasonable and can be, and already has been, mitigated by the use of
telephonic and electronic communication. See, erg., John Wiley & Sons, Inc., 2009 WL
1766003, at *8; Centrifugal Force, Inc. v. Softnet Commc’n. Inc., No. 08 Civ. 5463, 2009 WL
1059647, at *8 (S.D.N.Y. Apr. 17, 2009) (finding that burden on the defendant “falls well short
of depriving defendant of due process” because “[m]odern technology may be able to overcome
many of the difficulties associated with travel”).
15
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CONCLUSION
For all the foregoing reasons, the Defendants’ Motions to Dismiss (docket no. 9) is
denied. The Clerk of the Court shall remove the motion at docket no. 9 from the Court’s active
motion list.
This constitutes the decision and order of this Court.
Dated: April 14, 2010

/1 I
U.S.D.J.
BY ECF TO ALL PARTIES
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Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com



MVL RIGHTS, LLC, Civil Action No. 10-141 (CM) (KF)
DEFENDANTS’ ANSWER
Plaintiffs, & COUNTERCLAIMS
-against- DEMAND FOR JURY TRIAL
LISA R. KIRBY, BARBARA J. KIRBY, [Hon. Colleen McMahon]
[ECF Case]
Defendants.

Counterclaimants,
-against-
MARVEL ENTERTAINMENT, INC.,

MARVEL CHARACTERS, INC., MVL
RIGHTS, LLC, THE WALT DISNEY
COMPANY and DOES 1 through 10,
Counterclaim-Defendants.
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Defendants Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby
(collectively “Defendants” or the “Kirbys”), by and through their attorneys, hereby
answer plaintiffs’ Complaint, filed January 8, 2010:
1. Defendants admit only that plaintiffs have brought this civil action for
declaratory relief as set forth in the Complaint, but otherwise deny the allegations in
paragraph 1.
2. Defendants deny the allegations in paragraph 2, except admit that plaintiffs
are seeking a judgment declaring the termination notices to be invalid and of no legal
force or effect.
3. Defendants admit only that plaintiffs purport to assert that this Court has
subject matter jurisdiction as alleged in paragraph 3, but otherwise deny the allegations in
paragraph 3.
4. Defendants admit only that plaintiffs purport to assert that venue is proper in
this district as alleged in paragraph 4, but otherwise deny the allegations in paragraph 4.
5. Defendants lack knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 5, and on that basis deny the same.
7. Admitted.
8. Denied.
9. Denied.
10. Denied.
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12. Defendants admit the allegations in paragraph 12, except deny that the
notices were served on September 17, 2009 and that the 45 notices have been filed in the
Copyright Office.
13. Defendants admit the allegations in paragraph 13 only to the extent such
allegations accurately reflect the contents of documents, and respectfully refer the Court
to such documents for evidence of the contents thereof.
14. Defendants admit the allegations in paragraph 14 only to the extent
such allegations accurately reflect the contents of documents, and respectfully refer the
Court to such documents for evidence of the contents thereof.
15. Defendants re-allege and incorporate by reference paragraphs 1-14 inclusive,
as though fully set forth herein.
16. Denied.
17. Denied.
18. Defendants deny the allegations contained in paragraph 18, except admit that
plaintiffs seek a declaratory judgment pursuant to 28 U.S.C.§ 2201.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
19. The Complaint fails to state a claim upon which the relief sought or any relief
could be granted.
SECOND AFFIRMATIVE DEFENSE
(Estoppel)
20. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of laches,
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waiver, acquiescence and/or estoppel.
THIRD AFFIRMATIVE DEFENSE
(Unclean Hands)
21. Plaintiffs’ claims are barred, in whole or in part, by the equitable doctrine of
unclean hands.
FOURTH AFFIRMATIVE DEFENSE
(Reservation of Right to Amend)
22. The Complaint and each purported claim therein fails to state the claims for
relief with sufficient particularity to permit Defendants to discern and raise all
appropriate defenses, and Defendants therefore reserve their rights to amend or
supplement this answer with additional defenses.
FIFTH AFFIRMATIVE DEFENSE
(Unknown Defenses)
23. The answering Defendants believe, and based upon such information and
belief allege that the Defendants may have additional affirmative defenses available to
them, which are not now fully known and which these answering Defendants are not
fully aware. The Defendants accordingly reserve the right to assert any additional
affirmative defenses after the same have been ascertained.
SIXTH AFFIRMATIVE DEFENSE
(Unjust Enrichment)
24. The Complaint and each purported claim therein is barred, in whole or in part,
by the equitable doctrine of unjust enrichment.
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SEVENTH AFFIRMATIVE DEFENSE
(Illegality)
25. Plaintiffs are not entitled to any relief with respect to any of the claims in the
Complaint to the extent of any illegality of any matters set forth in the Complaint.
EIGHTH AFFIRMATIVE DEFENSE
(Failure to Comply With FRCP)
26. Defendants are not required to separately admit or deny each averment
contained in each paragraph of the Complaint due to plaintiffs’ failure to comply with
Rules 8(a) and 8(e) of the Federal Rules of Civil Procedure.
NINTH AFFIRMATIVE DEFENSE
(Lack of Personal Jurisdiction)
27. The Complaint fails to allege personal jurisdiction over any of the Defendants
and this Court lacks personal jurisdiction over Defendants Lisa R. Kirby and Neal L.
Kirby, who are necessary and indispensable parties to this action.
TENTH AFFIRMATIVE DEFENSE
(Res Judicata)
by the doctrines of res judicata and/or collateral estoppel.
ELEVENTH AFFIRMATIVE DEFENSE
(Duress)
29. Plaintiffs’ claims are barred, in whole or in part, by the fact that any alleged
contract between the parties or their respective predecessors-in-interest is unenforceable
and/or void because of duress.
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TWELFTH AFFIRMATIVE DEFENSE
(Statute of Frauds)
and/or void because of the Statute of Frauds.
THIRTEENTH AFFIRMATIVE DEFENSE
(Failure of Consideration)
and/or void because the contract(s) lacked consideration.
FOURTEENTH AFFIRMATIVE DEFENSE
(Misrepresentation)
and/or void because of the misrepresentations of plaintiffs’ and/or their predecessors-in-
interest.
FIFTEENTH AFFIRMATIVE DEFENSE
(Defendants’ Compliance with 17 U.S.C. §304(c))
33. The termination of the grants of copyrights, pursuant to Defendants’ Notices
of Termination, are effective due to Defendants’ compliance with 17 U.S.C. § 304(c) and
37 C.F.R. § 201.10.
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SIXTEENTH AFFIRMATIVE DEFENSE
(Defendants’ Termination Notices Not Invalidated By Technical Errors)
34. Under 17 U.S.C. § 304(c) and 37 C.F.R. § 201.10, Defendants’ Termination
Notices are not invalidated or curtailed due to technical errors or omissions, if any, since
Defendants’ intent to terminate all prior grants by Jack Kirby of his copyright interests in
all works listed in the Notices is made clear to Plaintiffs in the Termination Notices
timely served on Plaintiffs.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Termination Interests Under 17 U.S.C. § 304(c) Cannot Be Waived)
35. Defendants could not have waived or effectively waived, directly or
indirectly, any of their termination rights or interests under 17 U.S.C. § 304(c) because
such termination rights or interests are inalienable and persist “notwithstanding any
agreement to the contrary,” and cannot be waived.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Not “Works-Made–For-Hire”)
36. The works created or co-created by Jack Kirby, referred to in the Complaint
and/or in the Termination Notices do not constitute “works-made-for-hire,” and cannot be
invalidated on that basis.
NINETEENTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
by plaintiffs’ failure to bring such claims within the governing statute of limitations.
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TWENTIETH AFFIRMATIVE DEFENSE
(No Statute of Limitations Applicable To 17 U.S.C. §304(c) Termination)
38. Since Defendants complied with the timing, notice and other prerequisites to
the termination of prior copyright grants under 17 U.S.C. § 304(c), no statute of
limitations runs against Defendants’ Terminations Notices, nor is the statute of
limitations triggered by plaintiffs’ denial of the validity of such terminations.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Against Public Policy)
39. Any contract alleged in the Complaint which is contrary to public policy is
unenforceable, and any relief requested in the Complaint which is contrary to public
policy should not be granted.
FOR THESE REASONS, Defendants pray that the Court dismiss all of plaintiffs’
claims and find for Defendants on all counts, and that Defendants be awarded costs,
including reasonable attorneys’ fees under Section 505 of the United States Copyright
Act, and pray for such other and further relief as this Court deems just and proper.
COUNTERCLAIMS
1. This is a civil action seeking declaratory relief arising out of
counterclaimants Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby’s
(“Counterclaimants”) termination, pursuant to the United States Copyright Act of 1976,
17 U.S.C. § 304(c), of prior grants of copyright in and to the original characters and
works created and/or co-created by Jack Kirby (a.k.a. Jacob Kurtzberg) (“Kirby”), known
as “The Fantastic Four,” “Iron Man,” “Ant-Man,” “X-Men,” “The Incredible Hulk,” “The
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Avengers,” “Thor,” “Nick Fury,” “Spider-Man,” “Journey Into Mystery,” “Rawhide
Kid,” “Strange Tales,” “Tales of Suspense,” “Amazing Adventures” and “Tales to
Astonish.”
2. This Court has subject matter jurisdiction over the claims set forth in
these Counterclaims pursuant to the United States Copyright Act (hereinafter, the
“Copyright Act”), 17 U.S.C. § 101 et al., pursuant to the Lanham Act, 15 U.S.C. §§ 1121
and 1125(a) and (c), and 28 U.S.C. §§ 1331 and 1338(a) and (b). This Court has
supplemental jurisdiction over the related state claims herein under 18 U.S.C. § 1367, in
that these claims form part of the same case and controversy as the federal claims herein,
and because such claims derive from a common nucleus of operative facts.
3. This Court has personal jurisdiction over the Counterclaim-Defendants
in that Counterclaim-Defendants are regularly doing business in the State of New York
and in this district and maintain contacts within the State of New York and this district.
4. Venue is proper in the United States District Court for the Southern
District of New York pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1400(a), because all
of the Counterclaim-Defendants are conducting business in this district and are subject to
personal jurisdiction in this district.
PARTIES
5. Counterclaimant LISA R. KIRBY (hereinafter “Lisa Kirby”) is an
individual and a citizen of and resides in the State of California, in the County of
Ventura, and is and at all times has been a citizen of the United States. Lisa Kirby is the
daughter of Jack Kirby.
6. Counterclaimant BARBARA J. KIRBY (hereinafter “Barbara Kirby”)
is an individual and a citizen of and resides in the State of New York, in the County of
Putnam, and is and at all times has been a citizen of the United States. Barbara Kirby is
the daughter of Jack Kirby.
7. Counterclaimant NEAL L. KIRBY (hereinafter “Neal Kirby”) is an
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individual and a citizen of and resides in the State of California, in the County of Orange,
and is and at all times has been a citizen of the United States. Neal Kirby is the son of
Jack Kirby.
8. Counterclaimant SUSAN M. KIRBY (hereinafter “Susan Kirby”) is
an individual and a citizen of and resides in the State of New York, in the County of
Putnam, and is and at all times has been a citizen of the United States. Susan Kirby is
the daughter of Jack Kirby.

9. Counterclaimants are informed and believe and based thereon allege that
Counterclaim-Defendant THE WALT DISNEY COMPANY (hereinafter “Disney”) is a
corporation organized and existing under the laws of the State of Delaware, which has its
principal place of business in Los Angeles County, California, and which regularly
conducts significant business in the State of New York.
Counterclaim-Defendant MARVEL ENTERTAINMENT, INC. (hereinafter, collectively
with defendants MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC., and
MVL RIGHTS, LLC, “Marvel”) is a corporation organized and existing under the laws
of the State of Delaware and which regularly conducts significant business in the State of
New York. Counterclaimants are informed and believe and based thereon allege that
Marvel was recently purchased by Disney, on December 31, 2009.
Counterclaim-Defendant MARVEL WORLDWIDE, INC. is a corporation organized and
existing under the laws of the State of Delaware, which has its principal place of business
in New York, New York, and which regularly conducts significant business in the State
of New York.
Counterclaim-Defendant MARVEL CHARACTERS, INC. is a corporation organized
and existing under the laws of the State of Delaware, which has its principal place of
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business in Los Angeles County, California, and which regularly conducts significant
business in the State of New York.
Counterclaim-Defendant MVL RIGHTS, LLC is a corporation organized and existing
under the laws of the State of Delaware, which has its principal place of business in Los
Angeles County, California, and which regularly conducts significant business in the
State of New York.

Marvel is the relevant successor-in-interest to the following entities: Timely Comics;
Atlas Comics; Atlas Magazines, Inc.; Magazine Management Company, Inc.; Canam
Publishers Sales Corporation; Non-Pareil Publishing Corporation; Vista Publications,
Inc.; Zenith Publishing Corporation; Bard Publishing Corporation; Warwick Publications,
Inc.; Male Publishing Corp.; Miss America Publishing Corporation; Chipiden Publishing
Corporation; Marvel Comics Group; and Marvel Entertainment Group, Inc. (“Marvel’s
Predecessor(s)”).
Counterclaim-Defendants MARVEL ENTERTAINMENT, INC., MARVEL
WORLDWIDE, INC., MARVEL CHARACTERS, INC., MVL RIGHTS, LLC and THE
WALT DISNEY COMPANY (collectively, “Counterclaim-Defendants”) are the alter-
egos of each other and there exists a unity of interest and ownership among such
Counterclaim-Defendants such that any separateness has ceased to exist with respect to
the works authored or co-authored by Kirby that are the subject hereof.
the fictitiously named Counterclaim-Defendants captioned hereinabove as Does 1

through 10, inclusive, and each of them, were in some manner responsible or legally
liable for the actions, damages, events, transactions and circumstances alleged herein.
The true names and capacities of such fictitiously named Counterclaim-Defendants,
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whether individual, corporate, associate, or otherwise are presently unknown to
Counterclaimants, and Counterclaimants will amend these Counterclaims to assert the
true names and capacities of such fictitiously named Counterclaim-Defendants when the
same have been ascertained. For convenience, each reference herein to a named
Counterclaim-Defendant shall also refer to the Doe Counterclaim-Defendants and each of
them.
each of the Counterclaim-Defendants was the agent, partner, servant, employee, or
employer of each of the other Counterclaim-Defendants herein, and that at all times
herein mentioned, each of the Counterclaim-Defendants was acting within the course and
scope of such employment, partnership and/or agency and that each of the Counterclaim-
Defendants is jointly and severally responsible for the damages hereinafter alleged.
FACTS COMMON TO ALL CLAIMS FOR RELIEF
18. Jack Kirby is widely considered to be one of the most talented and
prolific comic book artists/authors of all time. Beginning in 1936, and continuing almost
uninterrupted until his death in 1994, Kirby conceived, drew and authored numerous
comic books that were ultimately published by a wide variety of publishers, including
Marvel.
19. Between 1958 and 1963, Jack Kirby authored or co-authored numerous
original comic book stories featuring a variety of characters, including “The Fantastic
Four,” “X-Men,” “Iron Man,” “Spider-Man,” “The Incredible Hulk,” “Thor,” “The
Avengers,” “Nick Fury” and “Ant-Man,” that were purchased by Marvel’s Predecessors
and published in their following periodicals: Amazing Adventures, Vol. 1, Nos. 1-6;
Amazing Fantasy, Vol. 1, No. 15; The Amazing Spider-Man, Vol. 1, Nos. 1-7; The
Avengers, Vol. 1, Nos. 1-2; The Fantastic Four, Vol. 1, Nos. 1-21; The Fantastic Four
Annual, No. 1; Journey Into Mystery, Vol. 1, Nos. 51-98; The Incredible Hulk, Vol. 1,
Nos. 1-6; The Rawhide Kid, Vol. 1, Nos. 17-35; Sgt. Fury and His Howling
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Commandoes, Vol. 1, Nos. 1-4; Strange Tales, Vol. 1, Nos. 67-115; Tales of Suspense,
Vol 1., Nos. 1, 3-48; Tales to Astonish, Vol. 1, Nos. 1, 3-50; and The X-Men, Vol. 1, Nos.
1-2 (hereinafter, the “Kirby Works”).
20. For much of this period, the comic book division of Marvel’s
Predecessors was on the brink of bankruptcy, due in large part to criticism in Fredric
Wertham’s book, “Seduction of the Innocent,” the ensuing 1954 hearings of the Senate
Subcommittee on Juvenile Delinquency, and the resulting censorship imposed on the

comic book industry by the introduction of the “Comic Code Authority” in 1954. Shortly
thereafter, the comic book market underwent a severe contraction.
21. In the period relevant to this action, Marvel’s Predecessors had a tiny
office, very few employees, and fed the printing presses of related entities with comic
book material purchased for publication from “freelancers” to which they had little or no
obligation.
22. During this period, Kirby was not an employee of any of Marvel’s
Predecessors and was not paid a fixed salary or wage by any of them. Marvel’s
Predecessors were not financially obligated to Kirby, kept their options open, and thus
never committed to any written agreement pursuant to which Kirby was to create his
works. Like many others during this difficult economic time, Kirby worked solely on a
freelance basis out of his own home, with his own instruments and materials and thereby
bore the financial risk of creating his copyrighted materials. At completion, such
material was submitted to Marvel’s Predecessors, and if they accepted it for publication,
they purchased Kirby’s material at a per-page rate.
23. The Kirby Works were not created as “works-made-for-hire” for
Marvel’s Predecessors.
24. A decade later, on or about May 30, 1972, at the request of Marvel’s
Predecessors, Kirby entered into an agreement with Magazine Management Co., Inc.
whereby he assigned his copyrights in the Kirby Works to Magazine Management Co.,
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Inc. for additional compensation (hereinafter, the “1972 Grant”). Marvel is the alleged
successor-in-interest to Magazine Management Co., Inc.
25. On September 16, 2009, Counterclaimants served by first class mail,
postage prepaid, notices of termination, pursuant to the Copyright Act, 17 U.S.C. §
304(c) (hereinafter, the “Termination Notices”) on each of the Counterclaim-Defendants
and a number of their subsidiaries, licensees and affiliates, terminating the 1972 Grant
and any prior implied grant to Marvel’s Predecessors of the renewal copyright to the
Kirby Works listed in the Termination Notices, including any character, story element or
indicia reasonably associated with the Kirby Works, all as set forth in the Termination
Notices.
the copyrights to all the Kirby Works listed in the Termination Notices were renewed by
Marvel or Marvel’s Predecessors.
27. The Termination Notices were drafted and served on Counterclaim-
Defendants, all in full compliance with the Copyright Act, 17 U.S.C. § 304(c), and the
regulations promulgated thereunder by the Register of Copyrights, 37 C.F.R. § 201.10.
28. The Termination Notices will terminate on their respective effective
dates (hereinafter, the “Termination Dates”) all operative prior grants or purported grants
of the renewal copyrights in and to the Works for their extended renewal terms. On the
Termination Dates, Counterclaimants will recapture ownership of Kirby’s original
copyright interest in and to the Kirby Works for their respective extended copyright
renewal terms (hereinafter, the “Recaptured Copyrights”).
FIRST CLAIM FOR RELIEF
(Declaratory Relief That the Notices of Termination Are Effective Pursuant to 17 U.S.C.
§ 304(c) - Against All Counterclaim-Defendants)
29. Counterclaimants re-allege and incorporate by reference paragraphs 1
through 28 inclusive, as though fully set forth herein.
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30. By reason of the foregoing facts, an actual and justiciable controversy
has arisen and now exists between Counterclaimants and Counterclaim-Defendants under
federal copyright law, 17 U.S.C. §§ 101 et seq., concerning their respective rights and
interests in and to the copyrights to various Kirby Works, for which Counterclaimants
desire a declaration of rights.
31. Counterclaimants contend and Counterclaim-Defendants deny that:
a. The Termination Notices are effective and will terminate on their

respective Termination Dates the 1972 Grant and any other operative grants, assignments
or transfers by Kirby of copyrights for the renewal terms in and to each and/or all of the
Kirby Works (as defined in paragraph 19 hereinabove) to any of Marvel’s Predecessors,
and will likewise terminate any assignments or licenses of such copyrights by Marvel or
the Marvel Predecessors to third parties;
b. With respect to those Kirby Works solely authored by Kirby,
Counterclaimants will own the Recaptured Copyrights for their renewal terms as of their
respective Termination Dates;
c. With respect to those Kirby Works co-authored by Kirby
(hereinafter “Co-Owned Kirby Works”), Counterclaimants will own Kirby’s undivided
co-authorship share of the copyright to such works for their renewal terms as of their
respective Termination Dates;
d. With respect to Co-Owned Kirby Works, Counterclaimants will be
entitled to a pro rata percentage of any and all proceeds, compensation, monies, profits,
gains and advantages from the exploitation of, or attributable to, in whole or in part, such
Co-Owned Kirby Works (hereinafter, sometimes referred to as “Profits”); and
e. With respect to Co-Owned Kirby Works, as of the respective

Termination Dates, Counterclaim-Defendants will jointly own the copyrights to such
works for their renewal terms; both Counterclaimants and Counterclaim-Defendants will
have the non-exclusive right to exploit such jointly owned copyrights, subject to a duty to
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account to one another for a pro rata share of the Profits derived from such exploitation;
and neither Counterclaimants nor Counterclaim-Defendants will have the authority to
confer exclusive licenses or grants to third parties with respect to such jointly owned
copyrights, and/or any element thereof.
32. A declaration of the Court is necessary pursuant to the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 et seq., so that the parties may know their respective
rights and obligations with respect to the Termination Notices and the copyright interests
thereby recaptured by Counterclaimants.
SECOND CLAIM FOR RELIEF
(Declaratory Relief Regarding the Principles to be Applied in an Accounting of Profits
from the Exploitation of Co-Owned Copyrights - Against All Counterclaim-Defendants)
33. Counterclaimants re-allege and incorporate by reference paragraphs 1
through 32 inclusive, as though fully set forth herein.
34. By reason of the foregoing facts, an actual and justiciable controversy
has arisen and now exists between Counterclaimants and Counterclaim-Defendants
concerning how Profits from Co-Owned Kirby Works should be defined for purposes of
Counterclaim-Defendants’ and Counterclaimants’ duty to account to one another for their
respective exploitation of such works after their respective Termination Dates.
35. Counterclaimants contend and Counterclaim-Defendants deny that:
a. Profits should include revenues from the exploitation of new
derivative works based, in whole or in part, on Co-Owned Kirby Works and produced
and/or completed on or after the respective Termination Dates, including but not limited
to works produced and/or completed prior to such Termination Dates, but which are
modified after such Termination Dates so as to comprise new derivative works under the
Copyright Act (hereinafter collectively, “New Derivative Works”);
b. Profits should include profits from New Derivative Works,
notwithstanding that the underlying license agreement(s) for such New Derivative Works
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were entered into prior to the respective Termination Dates;
c. Profits should include Counterclaim-Defendants’ revenues from
the exploitation on or after the respective Termination Dates of New Derivative Works in
foreign territories, when such revenues result from the predicate exercise in the United
States of any right under the copyright to a Co-Owned Kirby Work, by any Counterclaim
Defendant, its licensees or assign;
d. Profits should include Counterclaim-Defendants’ revenues from

the exploitation of the copyright to a Co-Owned Kirby Work, or any elements thereof;
notwithstanding that such copyright or copyrighted element is also subject to trademark
protection or contains a registered trademark(s), if any, owned by any of the
Counterclaim-Defendants;
e. There should be no apportionment of Profits from the exploitation
of a Co-Owned Kirby Work subject to an accounting, because such an accounting
between joint copyright owners is governed by state law, which provides that each co-
owner is entitled to a pro rata share of the Profits derived from co-owned property,
irrespective of any “improvements” unilaterally made by another co-owner;
f. Alternatively, if apportionment is ordered, it should apply only to
Profits from the exploitation of a New Derivative Work created by a Counterclaim
Defendant, but not to Profits from the mere licensing of a Co-Owned Kirby Work(s),
because the compensation for such licensing inherently reflects market value
apportionment;
g. Alternatively, if apportionment is ordered, there should be no
apportionment for any item or element, the cost of which is already deducted in
computing Counterclaim-Defendants’ Profits, because this would be “double counting”;

h. Profits should include the Profits of the Marvel Counterclaim-
Defendants and/or their parent, Disney, and the Profits of any entity owned by either of
them, and Counterclaim-Defendants should be enjoined from reducing or diluting
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Counterclaimants’ share of Profits by intra-corporate licensing between them or closely
held or related entities; and
i. In determining Profits, deductible costs should include only
reasonable costs directly attributable to the exploitation of New Derivative Works, of the
type customarily deducted in arms’ length agreements to exploit copyrights of
comparable value, all in compliance with Generally Accepted Accounting Principles
(“GAAP”).
36. A declaration of the Court is necessary pursuant to the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 et seq., so that the parties may know their respective
rights and obligations with respect to an accounting of Profits from the exploitation of the
Recaptured Copyrights after the Termination Dates.
THIRD CLAIM FOR RELIEF
(Conversion – By Counterclaimants Barbara J. Kirby and Susan M. Kirby
(“Barbara and Susan”) – Against all Counterclaim-Defendants)
37. Counterclaimants Barbara and Susan re-allege and incorporate by
reference paragraphs 1 through 36 inclusive, as though fully set forth herein.
38. Marvel’s Predecessors took possession of Kirby’s original artwork (the
“Kirby Artwork”) for purposes of publishing the Kirby Works. The Kirby Artwork is of
great historical and artistic value and significance.
39. Kirby was the lawful owner of the Kirby Artwork. Kirby died on
February 6, 1994, whereupon ownership of the Kirby Artwork passed to his spouse,
Rosalind Kirby. Upon the death of Rosalind Kirby, ownership of the Kirby Artwork
passed to The Rosalind Kirby Trust, of which Counterclaimants Barbara and Susan are
beneficiaries.
40. In or around 1982, Jack Kirby demanded that Marvel return all of the
Kirby Artwork in its possession or control.
41. Counterclaimants Barbara and Susan are informed and believe, and
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based thereon allege that in or around 1984, the New York State Board of Equalization
made inquiries as to sales tax due in connection with Marvel’s purchase of comic book
artwork.
42. Thereafter, in or around October, 1986, Marvel purported to return to
Kirby all of the Kirby Artwork in its possession or control. Marvel represented to Kirby
that it had no other Kirby Artwork in its possession or control than that returned to Kirby,
and Kirby and his successors, including Counterclaimants, relied on Marvel’s

representations.
43. Counterclaimants Barbara and Susan are informed and believe and based
thereon allege that Marvel retains in its possession certain Kirby Artwork that it did not
return to Kirby, thereby exerting dominion over such Kirby Artwork and converting it to
their own use. Counterclaimants are informed and believe and based thereon allege that
Marvel concealed and continues to conceal that Marvel retained certain Kirby Artwork
that it did not return to Kirby, and due to such ongoing concealment Counterclaimants
did not demand that Marvel return such Kirby Artwork.
44. Counterclaimants Barbara and Susan are further informed and believe
and based thereon allege that during the period in which Marvel had physical possession
of the Kirby Artwork, individual pieces of Kirby Artwork were taken by Marvel’s
employees and/or agents with Marvel’s knowledge, consent or acquiescence.
45. Counterclaimants Barbara and Susan are unaware of the ultimate
disposition of the Kirby Artwork converted by Marvel or its employees, because such
knowledge is within the exclusive possession of Marvel.
thereon allege that pieces of Kirby Artwork, which were not returned either to Kirby or
another person who participated in the creation of such Kirby Artwork, have recently
been publicly sold with Marvel’s knowledge, consent or acquiescence.
47. As a proximate result of Marvel’s conversion, Counterclaimants Barbara
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and Susan have been deprived of their rightful possession of the Kirby Artwork,
including the opportunity to use, enjoy, sell, license or otherwise dispose of such artwork,
all to their damage in an amount to be determined at trial.
48. Counterclaim-Defendants’ acts alleged hereinabove were willful,
wanton, malicious, and oppressive, and justify the awarding of exemplary and punitive
damages.
FOURTH CLAIM FOR RELIEF
(In the Alternative: Breach of Contract - By Counterclaimants Barbara and Susan –
Against all Counterclaim-Defendants)
reference paragraphs 1 through 48 inclusive, as though fully set forth herein.
50. On or about October 31, 1986, Jack Kirby and Marvel entered into an
agreement whereby Marvel promised to return to Kirby any and all of the Kirby Artwork
in their possession, custody or control.
51. Jack Kirby performed all conditions required to be performed under the
terms and conditions of the October 31, 1986 agreement.
52. Kirby died on February 6, 1994, whereupon his rights under the October
31, 1986 agreement passed to his spouse, Rosalind Kirby. Upon the death of Rosalind
Kirby, Kirby’s rights under the October 31, 1986 agreement passed to The Rosalind
Kirby Trust, of which Susan Kirby and Barbara Kirby are beneficiaries.
thereon allege that Counterclaim-Defendants have breached the October 31, 1986
agreement by failing to perform their duties and obligations under the agreement,
including their failure to return to Jack Kirby all of his original artwork in their
possession, custody or control.
54. As a direct and proximate result of Counterclaim-Defendants’ breach of
the October 31, 1986 agreement, Counterclaimants Barbara and Susan have suffered
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damages in an amount to be proven at trial.
FIFTH CLAIM FOR RELIEF
(Violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B) – By Counterclaimants
Barbara and Susan – Against all Counterclaim-Defendants)
reference paragraphs 1 through 54, inclusive, as though fully set forth herein.
thereon allege that on or around June 13, 2008, the major motion picture The Incredible
Hulk, based on the Kirby Works, was released. On or about May 1, 2009, the major
motion picture X-Men Origins: Wolverine, based on the Kirby Works ,was released
(collectively, The Incredible Hulk and X-Men Origins: Wolverine are referred to as the
“Kirby Films”).
thereon allege that the Kirby Films were released pursuant to a license from Marvel or
Marvel’s predecessors to third party licensees, and that such licenses did not require the
licensees to properly credit Kirby as the author or co-author of the underlying works on
which the Kirby Films were based.
58. Marvel has manufactured, distributed and/or licensed innumerable
products associated with the Kirby Films, such as merchandising (the “Kirby Film
Merchandise”).
thereon allege that in the Kirby Films and in the commercial advertising and promotion
for the Kirby Films, Kirby was not properly identified by Marvel’s licensees as the author
or co-author of the underlying works on which the Kirby Films were based.
thereon allege that in the commercial advertising and promotion for the Kirby Film
Merchandise, Kirby was also not properly identified by Marvel as the author or co-author
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of the underlying works on which the Kirby Films and the Kirby Film Merchandise were
based.
thereon allege that Counterclaim-Defendants thereby misrepresented in commercial
advertising and promotion that Kirby is not the author or co-author of the Kirby Works
underlying the Kirby Films and Kirby Film Merchandise. Such false claims,
representations and wrongful omissions misrepresented in commercial advertising and

promotion the nature, characteristics and qualities of the Kirby Films and Kirby Film
Merchandise.
thereon allege that such false or misleading descriptions, representations and omissions of
fact regarding the Kirby Films and Kirby Film Merchandise in interstate commerce
materially affected the purchasing decisions of consumers of such products.
63. Such use of false or misleading descriptions or representations of fact in
interstate commerce is in opposition to the protection of the public interest.
thereon allege that such false or misleading descriptions or representations were made by
Marvel with a willful disregard for the public interest.
65. Counterclaimants Barbara and Susan are effectively in commercial
competition with Marvel with respect to the sale and licensing of works authored or co-
authored by Kirby, and of derivative works based thereon.
66. Counterclaim-Defendants’ wrongful conduct has proximately caused
and will continue to cause Counterclaimants Barbara and Susan substantial injury and
damage including, without limitation, loss of customers, dilution of goodwill, injury to

their business reputation, lost profits and diminution of the value of their interests in
Kirby’s works, derivative products and commercial activities and in Kirby’s name and
reputation.
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67. The ongoing harm this wrongful conduct will cause to Counterclaimants
Barbara and Susan is both imminent and irreparable, and the amount of damage sustained
by such Counterclaimants will be difficult to ascertain if such wrongful conduct is
allowed to continue unabated.
68. By reason of the foregoing, Counterclaim-Defendants have violated and
continue to violate the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).
69. Counterclaimants Barbara and Susan are entitled to an injunction, during

the pendency of this action and permanently, restraining Counterclaim-Defendants, their
officers, agents and employees, and all persons acting in concert with them, from
misrepresenting that Kirby is not the author or co-author of the Kirby Works underlying
the Kirby Films, the Kirby Film Merchandise and associated derivative products.
70. Counterclaimants Barbara and Susan have no adequate remedy at law
with respect to these ongoing violations.
71. Counterclaimants Barbara and Susan are further entitled to recover from
Counterclaim-Defendants, under 15 U.S.C. § 1117(a), up to three times the damages they
sustained and will sustain, and any income, gains, profits, and advantages obtained by
Counterclaim-Defendants as a result of their wrongful acts and omissions alleged
hereinabove, plus reasonable attorneys’ fees and costs, in an amount which cannot yet be
fully ascertained, but which shall be assessed at the time of trial.
WHEREFORE, Counterclaimants pray for relief as follows:
PRAYER FOR RELIEF
ON THE FIRST CLAIM FOR RELIEF
72. For a declaration as follows:
a. That pursuant to the Copyright Act, 17 U.S.C.§ 304(c),
Counterclaimants will validly terminate, on the respective Termination Dates, all prior
grants, assignments or transfers of the renewal copyrights in and to each and/or all of the
Kirby Works to any of the Counterclaim-Defendants and any of their predecessors-in-
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interest;
b. That, with respect to Kirby Works solely authored by Kirby,
Counterclaimants will exclusively own the Recaptured Copyrights thereto for their
renewal terms as of their respective Termination Dates, and any prior assignments or
licenses to third parties of the renewal copyrights to such Kirby Works, in whole or in
part, by Marvel or Marvel’s Predecessors will be terminated as of the respective
Termination Dates;
c. That, with respect to Kirby Works co-authored by Kirby,
Counterclaimants will own a pro rata share of the copyrights thereto for their renewal
terms as of their respective Termination Dates;
d. That, with respect to such Co-Owned Kirby Works,
Counterclaimants are entitled to a pro rata percentage of any and all Profits attributable
thereto, in whole or in part; and
e. That, with respect to such Co-Owned Kirby Works, both
Counterclaimants and Counterclaim-Defendants will each have the non-exclusive right to
exploit the jointly owned copyrights thereto; that both Counterclaimants and
Counterclaim-Defendants will be subject to a duty to account to the other for a pro rata
share of the Profits derived from such exploitation; and that neither Counterclaimants nor
Counterclaim-Defendants will have the authority to confer exclusive copyright licenses
or grants to third parties with respect to such Co-Owned Kirby Works, or any element
thereof.
ON THE SECOND CLAIM FOR RELIEF
73. With respect to Counterclaimants’ and Counterclaim-Defendants’ duty
to account to one another for their Profits from Co-Owned Kirby Works, for a
declaration as follows:
a. That Profits should include Counterclaim-Defendants’ revenues
from the exploitation of any and all New Derivative Works;
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b. That Profits should include Counterclaim-Defendants’ revenues
from any New Derivative Works, notwithstanding that the underlying license
agreement(s) for such New Derivative Works were entered into prior to the respective
Termination Dates;
c. That Profits include Counterclaim-Defendants’ revenues from New
Derivative Works in foreign territories, when such revenues result from the predicate
exercise in the United States of any right under the copyright to a Co-Owned Kirby
Work, by any Counterclaim-Defendant, their licensees or assigns;
d. That Profits include Counterclaim-Defendants’ revenues from the
exploitation of the Co-Owned Kirby Works or any elements thereof in New Derivative
Works; notwithstanding that such copyrights or copyrighted elements are also subject to
trademark protection or comprise registered trademarks owned by Counterclaim-
Defendants, if any;
e. That there should be no apportionment of Profits since
Counterclaimants are entitled to a pro rata share of all such Profits as joint owners of the
Co-Owned Kirby Works;
f. Alternatively, that apportionment, if any, will apply only to Profits
from the exploitation of the Co-Owned Kirby Works in New Derivative Works created
by a Counterclaim-Defendant, but not to Profits from the mere licensing of the Co-
Owned Kirby Works by any of the Counterclaim-Defendants;
g. Alternatively, that there will be no apportionment for any item or
element, the cost of which is already deducted in computing Counterclaim-Defendants’
Profits;
h. That Profits include the Profits of any and all Counterclaim-

Defendants, their subsidiaries and divisions; and
i. That in determining Profits, only reasonable costs directly
attributable to the exploitation of the Co-Owned Kirby Works, of the type customarily
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deducted in arms’ length agreements to exploit copyrights of comparable value to that of
the Co-Owned Kirby Works, should be deducted from gross revenues, all in compliance
with GAAP.
ON THE THIRD CLAIM FOR RELIEF
74. For the value of the property converted or, in the alternative, the return
of the property in Counterclaim-Defendants’ possession, custody or control;
75. For damages for the proximate and foreseeable loss resulting from
Counterclaim-Defendants’ acts according to proof as shall be determined at trial;
76. For interest at the legal rate on the foregoing sums;
77. For damages for time and money properly expended in pursuit of the
converted property in the sum of an amount to be determined at trial; and
78. For punitive and exemplary damages.
ON THE FOURTH CLAIM FOR RELIEF

79. For compensatory damages in an amount to be proven at trial; and
80. For specific performance of the October 31, 1986 contract, including the
return of all of Jack Kirby’s original artwork in Counterclaim-Defendants’ possession,
custody or control.
ON THE FIFTH CLAIM FOR RELIEF
81. For an order preliminarily and thereafter permanently enjoining
Counterclaim-Defendants from making such false or misleading descriptions,
representations, and omissions of fact in connection with the Kirby Films, Kirby Film
Merchandise, and Counterclaim-Defendants’ licensing and commercial activities, and
from engaging in any further violations of the Lanham Act;
82. For up to three times the damages Counterclaimants Barbara and Susan
sustained and will sustain and any income, gains, profits, and advantages obtained by
Counterclaim-Defendants as a result of their violation of the Lanham Act in an amount
which cannot yet be fully ascertained, but which shall be assessed at the time of trial; and
25
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83. For such and other relief and remedies available under the Lanham Act,
15 U.S.C. §§ 1125 and 1117, which the Court may deem just and proper.
ON ALL CLAIMS FOR RELIEF
84. For Counterclaimants’ costs of suit;
85. For interest at the highest lawful rate on all sums awarded
Counterclaimants other than punitive damages;
86. For reasonable attorneys’ fees; and
87. For such other and further relief as the Court may deem just and proper.

April 28, 2010 TOBEROFF & ASSOCIATES, P.C.
s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

26
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JURY TRIAL DEMANDED
Defendants and Counterclaimants hereby request a trial by jury on each claim for
relief alleged in the Complaint and Counterclaims.

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

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s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

28
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\W·~:;:~:,=·:.:T~=:c;::~~.,,
• ... •• ; ';, ~ ">1
.- 1;-·-~i
---------------------------------------------------------------){
MARVEL WORLDWIDE, INC. et al.,
Plaintiffs,
-against- ORDER
10 Civ. 141 (CM)(KNF)

LISA R. KIRBY, et al.,
Defendants.
---------------------------------------------------------------){
KEVIN NATHANIEL FO){
UNITED STATES MAGISTRATE JUDGE
In April2010, the defendants identified Mark Evanier ("Evanier") as a fact witness,
pursuant to Fed. R. Civ. P. 26(a)(l)(A). The plaintiffs issued a subpoena to Evanier for
documents to be provided to them, on or before September 3, 2010, and for his deposition to be
conducted, on September 13, 2010. On September 13, 2010, the defendants informed the
plaintiffs that they would submit an expert report prepared by Evanier. Thereafter, in late
September 2010, documents responsive to the plaintiffs' subpoena were made available by the
defendants, on Evanier's behalf
The plaintiffs now seek to: (a) depose Evanier, as a fact witness, pursuant to Fed. R. Civ.
P. 30(a)(l); and (b) depose Evanier, as an expert witness, pursuant to Fed. R. Civ. P. 26(b)(4)(A).
The defendants contend the plaintiffs are "entitled to depose Mr. Evanier about his personal
knowledge, if any, as well as his expert opinions, but this does not entitle [them] to take two
separate depositions ofMr. Evanier."
"Unless, on motion, the court orders otherwise for the parties' and witnesses'
convenience and in the interest of justice: (A) methods of discovery may be used in any
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sequence; and (B) discovery by one party does not require any other party to delay its discovery."
Fed. R. Civ. P. 26(d)(2). Here, the plaintiffs were thwarted in their effort to obtain discovery in
early September, and to examine Evanier, by the defendants' delay in surrendering documents to
the plaintiffs, on Evanier's behalf When the defendants provided the requisite documents to the
plaintiffs, the defendants determined that the deposition the plaintiffs planned to take, to
ascertain the factual information Evanier has pertinent to this action, should not be taken.
No reason exists why the defendants should control the sequence or the way in which the
plaintiffs wish to conduct discovery. That the defendants delayed in responding to the subpoena
on Evanier's behalf, and subsequently decided to use Evanier as an expert witness and not a fact
witness is not determinative ofthe plaintiffs' right to control the way they wish to prosecute their
action.
The plaintiff's request to: (i) depose Evanier as a fact witness, on November 9, 2010, in
Los Angeles, California; and (ii) depose Evanier as an expert witness, on December 6, 2010, in
Los Angeles, California, is granted.
Dated: New York, New York SO ORDERED:

October 13, 2010
_L~~%£
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
-2-
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------------------------------------------------------x
:
MARVEL WORLDWIDE, INC., :
MARVEL CHARACTERS, INC. and :
MVL RIGHTS, LLC, :
:
Plaintiffs, :
:
- against- :
:
LISA R. KIRBY, BARBARA J. KIRBY, :
NEAL L. KIRBY and SUSAN N. KIRBY, :
:
Defendants. :
------------------------------------------------------x Civil Action No. 10 Civ. 141 (CM) (KNF)
:
:
Counterclaimants, :
:
- against- :
:
MARVEL ENTERTAINMENT, INC., :
MARVEL CHARACTERS, INC., :
MVL RIGHTS, LLC, :
THE WALT DISNEY COMPANY, :
and DOES 1 through 10, :
:
Counterclaim-Defendants. :
------------------------------------------------------x
ANSWER OF COUNTERCLAIM-DEFENDANTS
MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC., MVL RIGHTS LLC,
MARVEL ENTERTAINMENT, INC., AND THE WALT DISNEY COMPANY TO
COUNTERCLAIMANTS’ COUNTERCLAIM
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Marvel Entertainment, LLC (successor by merger to Marvel Entertainment, Inc.),
Marvel Worldwide, Inc., Marvel Characters, Inc. (“Marvel Characters”), MVL Rights LLC
(“MVL Rights”), and The Walt Disney Company (collectively, the “Counterclaim-Defendants”),
by and through their undersigned counsel, hereby answer the counterclaimants’ first
counterclaim (the “Counterclaim”). Pursuant to the Opinion and Order of the Honorable Colleen
McMahon, issued November 22, 2010, the counterclaimants’ second, third, fourth, and fifth
counterclaims for relief have been dismissed. Accordingly, no response is required as to
paragraphs 33 through 87 of the Counterclaim. With respect to Counterclaim-Defendant The
Walt Disney Company, its responses to paragraphs 18-22 and 24-25 of the Counterclaim are
made upon information and belief.
1. Paragraph 1 of the Counterclaim states legal conclusions as to which no
responsive pleading is required. To the extent an answer is required, the Counterclaim-
Defendants admit that the Counterclaim purports to state a cause of action for declaratory relief
arising out of their attempt to terminate alleged prior grants of copyright ownership rights to
certain characters listed in Paragraph 1 of the Counterclaim, and deny all other allegations of
Paragraph 1 of the Counterclaim.
Defendants admit that this Court has subject matter jurisdiction over the only remaining
counterclaim, and deny all the remaining allegations of Paragraph 2 of the Counterclaim.
1
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Defendants admit that this Court has personal jurisdiction over the Counterclaim-Defendants.
Defendants admit that venue is proper.
PARTIES
5. The Counterclaim-Defendants lack knowledge and information sufficient to form
a belief as to the truth of the allegations in Paragraph 5 of the Counterclaim.
9. The Counterclaim-Defendants admit the allegations in Paragraph 9 of the
Counterclaim.
10. The Counterclaim-Defendants admit that Marvel Entertainment, LLC regularly
conducts business in the State of New York, and deny all the remaining allegations in Paragraph
10 of the Counterclaim.
11. The Counterclaim-Defendants admit the allegations in Paragraph 11 of the
Counterclaim.
12. The Counterclaim-Defendants admit that Marvel Characters is a Delaware
Corporation which maintains its principal place of business in Manhattan Beach, California, and
deny all the remaining allegations in Paragraph 12 of the Counterclaim.
2
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13. The Counterclaim-Defendants deny the allegations in Paragraph 13 of the
Counterclaim.
14. The Counterclaim-Defendants admit that Marvel Characters and MVL Rights are
each successors-in-interest to certain of the entities identified in Paragraph 14 of the
Counterclaim and deny all the remaining allegations in Paragraph 14 of the Counterclaim.
Defendants deny the allegations in Paragraph 15 of the Counterclaim.
FACTS COMMON TO ALL CLAIMS FOR RELIEF
18. The Counterclaim-Defendants admit that Jack Kirby was a comic book artist who
contributed to numerous comic books and deny all other allegations in Paragraph 18 of the
Counterclaim.
19. The Counterclaim-Defendants admit that, between 1958 and 1963, Jack Kirby
made contributions to comic books featuring a variety of characters and deny all other
allegations in Paragraph 19 of the Counterclaim.
20. The Counterclaim-Defendants deny the allegations in the first sentence of
Paragraph 20 of the Counterclaim. The Counterclaim-Defendants lack knowledge or
information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 20
3
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of the Counterclaim.
Counterclaim.
22. The Counterclaim-Defendants admit the allegations in the first sentence of
Paragraph 22 of the Counterclaim and deny all the remaining allegations in Paragraph 22 of the
Counterclaim.
Defendants deny the allegations in Paragraph 23.
24. The Counterclaim-Defendants admit that, on or about May 30, 1972, Jack Kirby
entered into an agreement with Magazine Management Co., Inc. and that Marvel is the
successor-in-interest to Magazine Management Co., Inc. Counterclaim-Defendants deny all
other allegations in Paragraph 24 of the Counterclaim.
25. The Counterclaim-Defendants admit that on or about September 16, 2009,
Counterclaimants served notices that purported to terminate certain grants of renewal copyrights
pursuant to the Copyright Act, 17 U.S.C. § 304(c). The Counterclaim-Defendants deny all other
26. Upon information and belief, the Counterclaim-Defendants admit that the
copyrights in the copyrightable subject matter to which reference is made in the
Counterclaimants’ Termination Notices (as defined in paragraph 25 of the Counterclaim) were
renewed by Marvel Characters or MVL Rights or their predecessors and deny all other
4
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27. Paragraph 27 of the Counterclaim states a legal conclusion as to which no
Counterclaim.
FIRST CLAIM FOR RELIEF
(Declaratory Relief That the Notices of Termination are Effective Pursuant to 17 U.S.C. §
304(c) – Against All Counterclaim-Defendants)
29. The Counterclaim-Defendants repeat their responses to each and every allegation
contained in Paragraphs 1 through 28 of the Counterclaim as if set forth fully herein.
Defendants deny the allegations of Paragraph 30.
responsive pleading is required. To the extent an answer is required the Counterclaim-
Defendants deny the allegations of Paragraph 32 of the Counterclaim.
DEFENSES AND AFFIRMATIVE DEFENSES
Without assuming any burden they would not otherwise bear, and without waiving and
hereby expressly reserving the right to assert any and all such defenses at such time and to such
extent as discovery and factual developments establish a basis therefor, the Counterclaim-
Defendants assert the following additional and/or affirmative defenses as to The Counterclaim:
5
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FIRST ADDITIONAL OR AFFIRMATIVE DEFENSE
The Counterclaim is barred, in whole or in part, for failure to state a claim upon which
relief may be granted.
SECOND ADDITIONAL OR AFFIRMATIVE DEFENSE
The Counterclaim is barred, in whole or in part, by the doctrine of waiver.
THIRD ADDITIONAL OR AFFIRMATIVE DEFENSE
The Counterclaim is barred, in whole or in part, by the doctrine of res judicata or
estoppel.
FOURTH ADDITIONAL OR AFFIRMATIVE DEFENSE
The Counterclaim is barred, in whole or in part, by the doctrine of laches.
FIFTH ADDITIONAL OR AFFIRMATIVE DEFENSE
The Counterclaim is barred, in whole or in part, by the doctrine of unclean hands.
SIXTH ADDITIONAL OR AFFIRMATIVE DEFENSE
The Counterclaim is subject to dismissal based upon documentary evidence.
SEVENTH ADDITIONAL OR AFFIRMATIVE DEFENSE
Counterclaimants have no ownership interests in the characters identified in the copyright
termination notices under the work-for-hire provision of the Copyright Act of 1909, which is
controlling in this case.
EIGHTH ADDITIONAL OR AFFIRMATIVE DEFENSE
Counterclaimants are not entitled to an award of attorneys’ fees or costs.
6
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PRAYER FOR RELIEF
For the reasons set forth above, the Counterclaim-Defendants respectfully request that the
Court:
1. Dismiss the Counterclaim in its entirety with prejudice;
2. Enter judgment in favor of the Counterclaim-Defendants and against
Counterclaimants on the only remaining claim for relief set forth in the Counterclaim;
3. Award all reasonable fees, costs and expenses to the Counterclaim-Defendants as
permitted by law; and
4. Award such other and further relief as the Court deems just and proper.

December 6, 2010 By: /s/ James W. Quinn
WEIL, GOTSHAL & MANGES LLP

James W. Quinn
R. Bruce Rich
Randi W. Singer
767 Fifth Avenue
New York, NY 10153
Tel: (212) 310-8000
Fax: (212) 310-8007
PAUL, HASTINGS, JANOFSKY &

WALKER LLP
Jodi A. Kleinick
75 East 55th Street
New York, NY 10022
Tel.: (212) 318-6000
Fax: (212) 319-4090
HAYNES AND BOONE, LLP

David Fleischer
1221 Avenue of the Americas, 26th floor
New York, NY 10020
(212) 659-7300
Attorneys for Plaintiffs and Counterclaim-

Defendants
7
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------------------------------------------------------x
:
MVL RIGHTS, LLC, :
:
Plaintiffs, :
:
- against- :
:
:
Defendants. :
:
:
Counterclaimants, :
:
- against- :
:
MVL RIGHTS, LLC, :
:
------------------------------------------------------x
NOTICE OF MOTION FOR SUMMARY JUDGMENT
PLEASE TAKE NOTICE that upon the annexed Memorandum of Law and
accompanying Local Rule 56.1 Statement of Material Facts As To Which There Is No Genuine
Issue To Be Tried and the Declarations of Randi W. Singer and Eli Bard, dated February 18,
2011, and the exhibits thereto, Plaintiffs and Counterclaim-Defendants Marvel Worldwide, Inc.,
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Marvel Characters, Inc. and MVL Rights, LLC, Marvel Entertainment, LLC (sued herein as
Marvel Entertainment, Inc.) and The Walt Disney Company hereby move the Court, before the
Honorable Colleen McMahon, United States District Judge, United States District Court for the
Southern District of New York, at the Daniel Patrick Moynihan United States Courthouse, 500
Pearl Street, New York, New York for an order pursuant to Rule 56(c) of the Federal Rules of
Civil Procedure for summary judgment as to the cause of action of Plaintiffs’ complaint and as to
Defendants’ sole remaining counterclaim, and for such other and further relief as this Court may
deem just and proper.
Dated: February 25, 2011 By: /s/ James W. Quinn

James W. Quinn
R. Bruce Rich
Randi W. Singer
Sabrina A. Perelman
767 Fifth Avenue
New York, NY 10153
Tel: (212) 310-8000
Fax: (212) 310-8007
PAUL, HASTINGS, JANOFSKY & WALKER LLP

Jodi A. Kleinick
75 East 55th Street
New York, NY 10022
Tel: (212) 318-6000
Fax: (212) 230-7691

David Fleischer
30 Rockefeller Plaza, 26th floor
New York, NY 10112
Tel: (212) 659-7300
Fax: (212) 884-9567
Attorneys for Plaintiffs/Counterclaim-Defendants
-2-
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------------------------------------------------------x
:
MVL RIGHTS, LLC, :
:
Plaintiffs, :
:
- against- :
:
:
Defendants. :
:
:
Counterclaimants, :
:
- against- :
:
MVL RIGHTS, LLC, :
:
------------------------------------------------------x
LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS

NO GENUINE ISSUE TO BE TRIED IN SUPPORT OF MOTION BY PLAINTIFFS AND
COUNTERCLAIM-DEFENDANTS FOR SUMMARY JUDGMENT
Pursuant to Local Rule 56.1 of the Local Rules of the United States District Court for the
Southern District of New York (“Local Rules”), Plaintiffs Marvel Worldwide, Inc. (“MWI”),
Marvel Characters, Inc. (“MCI”) and MVL Rights, LLC (“MVL”) (collectively, “Plaintiffs”),
and Counterclaim-Defendants Marvel Entertainment, LLC, sued herein as Marvel Entertainment,
US_ACTIVE:\43591286\13\79593.0027
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Inc. (“Marvel Entertainment”) and The Walt Disney Company (“Disney”), by and through their
undersigned counsel, respectfully submit the following statement of material facts as to which
there is no genuine issue to be tried in support of their motion for summary judgment.
THE PARTIES
1. Since its inception in the 1930s as Timely Comics, the companies now known as
Marvel were preceded by numerous predecessors-in-interest (collectively with MWI, MCI, MVL
and Marvel Entertainment, “Marvel”), including Amazing Detective Cases Corp., Americas
Magman Sales Corp., Animated Timely Features, Inc., Animirth Comics, Inc., Atlas Magazines,
Inc., Atlas News Co., Inc., Bard Publishing Corp., Bilbara Publishing Co., Inc., Brief Digest
Corp., Britan Publishing Corp., Broadcast Features Publications, Inc., Canam Publishers Sales
Corp., Chipiden Publishing Corp., Christiana Publishing Corp., Classic Detective Stories, Inc.,
Classic Syndicate, Inc., Comedy Publications, Inc., Comic Combine Corp., Commonwealth
Publishing Corp., Complete Photo Story Corp., Cornell Publishing Corp., Crime Bureau Stores,
Inc., Crime Files, Inc., Current Detective Stories, Inc., Daring Comics Inc., Emgee Publications,
Inc., Empire State Consolidated Adv. Corp., Euclid Publishing Co., Inc., Eye Publishing Corp.,
Fantasy Comics, Inc., Feature Story Corp., Foto Parade, Inc., Gem Publications, Inc., Hercules
Publishing Co., H-K Publications, Inc., International Magazine Sales, Interstate Publishing Co.,
Jaygee Publications, Inc., Jeangood Publishing Corp., Jest Publishing Co., Inc., Leading Comic
Corp., Leading Magazine Corp., Lion Books, Inc, Magazine Management Co., Inc., Magman
Export Corp., Male Publishing Corp., Manvis Publications, Inc., Margood Publishing Corp.,
Marjean Magazine Corp., Marjean TV Enterprises, Marvel Comics Group, Marvel Comics, Inc.,
Medalion Publishing Corp., Miss America Publishing Corp., Mohawk Publishing Corp;, Mutual
Magazine Corp., Newsstand Publications, Inc., Non Pareil Publishing Corp., Official Magazine
2
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Corp., Olympia Publications, Inc., Olympus Publishing Corp., Postal Publications, Inc., Prime
Publications, Inc., Red Circle Magazines, Inc., Revere Publishing Corp., Select Publications Inc.,
Snap Publishing Co., Inc., Sphere Publications, Inc., Sports Action, Inc., Stag Publishing Corp.,
Timely Comics, Inc., Timely Publications, Tip Top Publications, Inc., 20th Century Comic
Magazine Corp., 20th Century Comics Corp., Universal Crime Stories, Inc., U.S.A. Comic
Magazine Corp., Transcontinental Publishing Corp., Vista Publications, Inc., Walden Publishing
Co., Inc., Warwick Publications, Inc., Western Fiction Pub. Co. Inc., Young Allies, Inc., Zenith
Books, Inc., Zenith Publishing Corporation and Zest Publishing Co., Inc., Martin Goodman, Jean
Goodman, Perfect Film & and Chemical Corporation, Cadence Industries Corporation and
Marvel Entertainment Group, Inc. (collectively, the “Marvel Predecessors”). Declaration of Eli
Bard dated February 18, 2011 (“Bard Decl.”) ¶ 2; Declaration of Randi W. Singer dated
February 18, 2011 (“Singer Decl.”) Exhibit (“Ex.”) 12 at ¶ 14.
2. Jack Kirby (“Kirby”) was a comic book artist whose drawings appeared in comic
books published by Marvel during the period September 1958 through September 1963, and at
various times before and after that period. Singer Decl. Ex. 13 at ¶ 8; id. Ex. 12 at ¶¶ 18-19.
3. Between 1958 and 1963, Kirby contributed to the creation of many now iconic
comic book stories and characters appearing in publications of the Marvel Predecessors,
including The Fantastic Four, The Incredible Hulk and The X-Men. Id. Ex. 12 at ¶ 19.
4. Kirby died in 1994. Id. Ex. 12 at ¶ 18; see also November 9, 2010 Deposition of
Mark Evanier (“Evanier Dep. (11/9/10)”) annexed as Ex. 8 to the Singer Decl. at 27:1-4.
5. Kirby was married to Rosalind (“Roz”) Kirby and together they had four children:
Susan M. Kirby, Neal L. Kirby, Barbara J. Kirby and Lisa R. Kirby (the “Defendants”). Singer
Decl. Ex. 12 at ¶ 7. Roz Kirby died on December 22, 1997. See id. Ex. 14.
3
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THE TERMINATION NOTICES AND CLAIMS OF COPYRIGHT OWNERSHIP
6. On August 31, 2009, Disney announced publicly that it had agreed to acquire
Marvel Entertainment, Inc. See id. Ex. 15.
7. In approximately mid-September, 2009, Defendants served forty-five (45) notices
on Marvel, Disney and various other entities purporting to terminate an alleged assignment of the
copyrights in various works to which Kirby had allegedly contributed (the “Termination
Notices”). See id. Ex. 16; id. Ex. 12 at ¶ 12.
8. The Termination Notices identify the following published works (including the
story lines, characters and other copyrightable elements contained therein), each of which was
published with a cover date ranging from 1958 to 1963, as purportedly being subject to
termination: Amazing Adventures, Vol. 1, Nos. 1-6; Amazing Fantasy, Vol. 1, No. 15; The
Amazing Spider-Man, Vol. 1, Nos. 1-7; The Avengers, Vol. 1, Nos. 1-2; The Fantastic Four, Vol.
1, Nos. 1-21; The Fantastic Four Annual, No. 1; Journey Into Mystery, Vol. 1, Nos. 51-98; The
Incredible Hulk, Vol. 1, Nos. 1-6; The Rawhide Kid, Vol. 1, Nos. 17-35; Sgt. Fury and His
Howling Commandos, Vol. 1, Nos. 1-4; Strange Tales, Vol. 1, Nos. 67-115; Tales of Suspense,
Vol. 1, Nos. 1, 3-48; Tales to Astonish, Vol. 1, Nos. 1, 3-50; and The X-Men, Vol. 1, Nos. 1-2
(collectively, the “Works”). See id. Ex. 16.
9. The alleged assignment to which the Termination Notices relate, executed by
Kirby on May 30, 1972 (the “1972 Agreement”), purports to assign from Kirby to Magazine
Management Co., Inc. “any and all right, title and interest [Kirby] may have or control” in any
work Kirby ever created for Marvel. Id. Ex. 17 at ¶ 1.A.(1).
10. The 1972 Agreement further provides that “Kirby acknowledges and agrees that
all his work on the MATERIALS, and all his work which created or related to the RIGHTS, was
done as an employee for hire of” Marvel. Id. at ¶ 5.
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11. According to the terms of the Termination Notices, and under the statutory
scheme set forth in section 304(c) of the Copyright Act of 1976, the earliest date on which any of
the Termination Notices will become effective is in 2014 and the latest effective date is in 2019.
See id. Ex. 16; June 30, 2010 Deposition of Neal Kirby (“N. Kirby Dep.”) annexed as Ex. 5 to
the Singer Decl. at 172:12-17.
12. The initial copyright registration for each of the Works was filed with the United
States Copyright Office in the name of the relevant Marvel Predecessor as author. Marvel also
filed renewal copyright registrations for the following works in the United States Copyright
Office, each of which lists one of the Marvel Predecessors as the renewal claimant and proprietor
of copyright in the subject works as works made for hire: Amazing Adventures, Vol. 1, Nos. 1-6;
Amazing Fantasy, Vol. 1, No. 15; The Amazing Spider-Man, Vol. 1, Nos. 1-7; The Avengers,
Vol. 1, Nos. 1-2; The Fantastic Four, Vol. 1, Nos. 1-21; The Fantastic Four Annual, No. 1;
Journey Into Mystery, Vol. 1, Nos. 51-98; The Incredible Hulk, Vol. 1, Nos. 1-6; The Rawhide
Kid, Vol. 1, Nos. 17-26, 28-35; Sgt. Fury and His Howling Commandos, Vol. 1, Nos. 1-4;
Strange Tales, Vol. 1, Nos. 67-84, 96-115; Tales of Suspense, Vol. 1, Nos. 3-48; Tales to
Astonish, Vol. 1, Nos. 3-50; and The X-Men, Vol. 1, Nos. 1-2. See Bard Decl. Ex. 1. There is no
evidence in the record that Kirby ever sought to register the copyrights in the Works in his own
name.
13. Copyright title passed from Martin and Jean Goodman – the owners of various of
the Marvel Predecessors – to MCI and MVL through a series of copyright assignments.
Specifically, on June 28, 1968, Martin and Jean Goodman (and all of their various companies),
executed a Copyright Assignment to Cadence Industries Corporation (previously, before a
change of name, known as Perfect Film & Chemical Corporation) of all copyrights in the
5
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publications listed on Schedule B annexed to the assignment, which included, among other
things, the Works. Id. Ex. 2. On January 1, 1972, Magazine Management Co., Inc. executed a
Copyright Assignment to Cadence Industries Corporation of all copyrights relating to Magazine
Management Co.’s Marvel Comics Group Division and its comics business. Id. Ex. 3. On
December 29, 1986, Cadence Industries Corporation executed a Copyright Assignment to
Marvel Entertainment Group, Inc. of all copyrights relating to the Marvel Comics Group
business. Id. Ex. 4. On September 1, 1995, Marvel Entertainment Group, Inc. executed a
Copyright Assignment to MCI of all copyrights relating to its comics business. Id. Ex. 5. On
August 31, 2005, MCI executed a Short Form Copyright Assignment to MVL of all copyrights
relating to the characters and works and the registered copyrights set forth on the schedules
attached to the assignment. Id. Ex. 6. Finally, pursuant to a Supplemental Short Form Copyright
Assignment made as of September 29, 2006, MCI assigned all copyrights relating to the main
characters, subsidiary characters and minor characters of Hulk and Iron Man and the registered
copyrights set forth on the schedules attached to the assignment, to MVL. Id. Ex. 7.
MARVEL’S WORK-MADE-FOR-HIRE PRACTICES
Martin Goodman Had The Right And Authority To Control Marvel’s Creations
And Bore The Financial Risk Relating to Marvel’s Comic Book Business
14. During the years 1958 through 1963 (the “Time Period”), Martin Goodman was
Marvel’s publisher and Stan Lee was Marvel’s editor. May 13, 2010 and December 8, 2010
Deposition of Stan Lee (“Lee Dep.”) annexed as Ex. 1 to the Singer Decl. at 11:18-23, 14:2-17.
15. At all times during the Time Period, as publisher, Goodman had the authority to
supervise and direct the creation of all of Marvel comic books, including the creation of
characters and storylines, and had the final say as to what comic books Marvel would publish.
Lee, as editor, at all times answered to Goodman, who was the “ultimate boss” and who always
6
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“had to be happy with what [Lee] was doing.” Lee Dep. at 16:14-19, 18:17-19:17, 19:24:-20:6,
25:22-26:21, 97:8-11; Singer Decl. Ex. 18 at MARVEL0017522 (“I was just doing what my
publisher asked me to do.”); see also October 26 and 27, 2010 Deposition of Roy Thomas
(“Thomas Dep.”) annexed as Ex. 3 to the Singer Decl. at 59:6-21, 60:22-61:4; October 21, 2010
Deposition of John V. Romita (“Romita Dep.”) annexed as Ex. 2 to the Singer Decl. at 242:21-
243:4; December 6, 2010 Deposition of Mark Evanier (“Evanier Dep. (12/6/10)”) annexed as Ex.
9 to the Singer Decl. at 100:4-21, 104:20-105:5, 148:12-23; January 10, 2011 Deposition of John
Morrow (“Morrow Dep.”) annexed as Ex. 10 to the Singer Decl. at 149:4-18.
16. No comic book was ever published by Marvel unless Goodman approved of it.
Lee Dep. at 97:8-11; see also Evanier Dep. (12/6/10) at 104:20-105:5.
17. Martin Goodman first hired Stan Lee in approximately 1939 or 1940. From the
outset of his career and, except for a brief period in the fall of 1998, Stan Lee has always been an
employee of Marvel and all his work, including the work he did as a freelance writer, was done
as works made for hire. See Singer Decl. Exs. 19-25.
18. From time to time, Lee also performed work for Marvel as a freelance writer, for
which he was separately compensated on a per-page basis for scripts that he submitted, the same
as every other freelance writer. Lee Dep. at 17:8-25.
19. If a particular comic book did not sell well or lost money, Martin Goodman, as
publisher and owner of Marvel, would bear the loss. Lee Dep. at 43:3-44:2; see also Evanier
Dep. (12/6/10) at 40:7-41:3, 149:10-16.
20. During the Time Period, Marvel artists and writers were paid for work they
submitted before the book to which they contributed went on sale, and payment to artists and
writers did not depend on whether or not the book was successful. Lee Dep. at 42:21-43:2.
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21. At times, Goodman decided to discontinue certain comic book series if they were
not selling well. Romita Dep. at 204:6-17; see also Lee Dep. at 56:18-22; Evanier Dep.
(12/6/10) at 41:6-42:13.
Stan Lee Had The Right And Authority To Control Marvel’s Comic Book Creations
22. One of Stan Lee’s main responsibilities in his role as editor and creative director
of Marvel during the 1950s and 1960s was to originate the ideas for most of the stories that
Marvel published during that timeframe. Lee Dep. at 35:5-10, 35:23-36:6; Romita Dep. at
19:24-20:15; January 7, 2011 Deposition of Lawrence Lieber (“Lieber Dep.”) annexed as Ex. 4
to the Singer Decl. at 12:19-13:5, 13:22-14:4. Lee provided the characters’ origin stories and
personalities, and the role of the artist was to create the characters’ look or costume. Romita
Dep. at 85:10-86:6, 109:6-110:6.
23. As editor of Marvel, Lee oversaw all of the creative and editorial aspects of every
comic book that Marvel published during the Time Period. Lee Dep. at 16:14-19. Marvel’s
artists and writers were always required to report to Lee and to abide by his “marching orders.”
Thomas Dep. at 28:19-29:5. In all events, Marvel’s contributors during the 1950s and 1960s
were bound to perform their duties in “the way Stan wanted the stuff done.” Romita Dep. at
39:7-13; Lieber Dep. at 15:5-15; Singer Decl. Ex. 26 at MARVEL0017350 (“The only one I was
concerned about was Stan because I had to show it to him. I was only hoping Stan would like it .
. . .”); id. Ex. 11, Track 3 (Kirby stating, “[w]ell, that’s Stan Lee’s department and he can answer
that. The editor always has the last word on that.”).
24. During the Time Period, Stan Lee was responsible for assigning particular writers
and artists to each comic book issue to be published by Marvel. Lee Dep. at 15:14-20, 15:22-
16:7; Lieber Dep. at 14:5-8, 23:18-21; see also Thomas Dep. at 48:10-14, 48:17-49:8, 56:16-18,
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59:6-21, 61:12-24 (Lee gave assignments to artist and writers during the 1960s); Romita Dep. at
18:15-20, 61:4-6, 61:12-19 (same in 1950s and 1960s); Evanier Dep. (12/6/10) at 155:15-20.
Artists did not have the authority to assign themselves to work on any comic book they chose.
Thomas Dep. at 58:10-13.
25. Lee had the authority to reassign artists and writers onto different projects when
he deemed it necessary or appropriate to do so, and he exercised that authority on numerous
occasions during the Time Period. Singer Decl. Ex. 11, Track 5; Lee Dep. at 113:16-115:13; see
also Thomas Dep. at 58:24-59:5 (Lee had the authority to reassign artists and writers in the
1960s); Romita Dep. at 44:22-46:12, 68:22-70:3 (same in 1950s and 1960s); Singer Decl. Ex. 27
at THOM0002629; Morrow Dep. at 57:14-58:6. For example, if an artist was not able to do one
book, Lee was in charge of assigning another artist that book, and then the second artist had to be
replaced on his book by yet another artist, and so on; Lee has described this process as “falling
dominos.” Lee Dep. at 115:6-13.
26. During the Time Period, Stan Lee set deadlines for each person who contributed
to a finished comic book to ensure that each book would be published and distributed on
schedule each month. The schedule was established by the printer; if a comic book was not
ready to be printed at the time designated in the printer’s schedule, Marvel would be responsible
for the substantial costs associated with the delay because Marvel had already scheduled the
press time. Deadlines were very important to Marvel’s operation; artists always knew their work
was required to be delivered by a specified date. Lee Dep. at 42:10-20, 384:22-385:11; see also
Thomas Dep. at 59:22-60:21.
27. Marvel – and, during the Time Period, Lee – supervised all aspects of the process
for the creation of a comic book, which involved contributions by numerous different people.
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First, after Lee developed the initial concept for a story, he assigned a penciler to draw the initial
pencil artwork for the comic book issue and provide the assigned penciler with the story he was
to draw, in either a detailed script or at least a plot outline. Once completed, the pencil drawings
were submitted to Lee for his review. If the pages met with Lee’s approval, they were given to a
writer to fill in the captions and dialogue balloons to match the action in the artwork; during the
Time Period, Lee himself was the designated writer for most of Marvel’s comic books. Lee Dep.
at 17:5-13, 31:23-33:7; see also Romita Dep. at 70:4-8 (Lee was usually the designated writer of
comics in the 1950s and 1960s); Thomas Dep. at 48:4-50:22 (same in 1960s).
28. Once the captions and dialogue balloons also were completed in pencil, the pages
were provided to a letterer, who went over the dialogue balloons and captions in ink. The next
step was to provide the drawings to the inker, who went over the pencil drawings in ink. Singer
Decl. Ex. 11, Track 4; Lee Dep. at 31:23-33:7; Thomas Dep. at 50:23-52:10.
29. After the pages were lettered and inked, they were sent to the engraver, who ran
the inked drawings through a Photostat machine to reduce them to the proper size of a comic
book page. The engraver then sent the pages to the colorist, who colored the pages and sent
them back to the engraver and ultimately to the printer for publication. Lee Dep. at 31:23-33:7;
Thomas Dep. at 52:11-53:14.
30. As Marvel’s editor during the Time Period, it was Lee’s responsibility to hire and
supervise all of the pencil artists, letterers, inkers and colorists who, among others, contributed to
the creation of the comic book. Lee Dep. at 15:9-13. Specifically, Lee reviewed all artwork that
was submitted for publication by each of these individuals, and had the final say on whether
artwork would be published. No artwork or story was published while Lee was editor of Marvel
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unless Lee himself had approved it. Lee Dep. at 33:25-34:7; see also Thomas Dep. at 112:25-
113:23.
31. Likewise, as editor, Lee always had the last say on the plot and dialogue of all of
Marvel’s comic book stories during the Time Period, and would explain to the artists the way in
which the story should proceed. This was so even though artists might submit margin notes with
suggestions as to plot or dialogue from time to time. Lee took pride in creating the characters’
personalities through the dialogue and has explained that he typically would ignore these margin
notes because he was not able to write in an another person’s style. Lee Dep. at 16:8-13, 51:17-
52:5; see also Thomas Dep. at 66:13-67:2; Romita Dep. at 70:9-74:17.
32. It was part of Lee’s job to make edits, or direct that edits be made by others, to
any work that was submitted for publication. Lee Dep. at 16:20-17:4, 22:11-14, 33:9-17, 33:25-
34:7; Thomas Dep. at 62:6-63:6, 115:23-116:12; Romita Dep. at 21:12-19, 23:4-25, 59:25-60:7;
Lieber Dep. at 15:16-16:8, 16:14-17:4. For example, Lee requested changes if he felt that the
artwork on the page lacked sufficient action, or if he felt the panels as they were drawn were
confusing to the reader. Lee Dep. at 16:20-17:4. Lee at times required changes to the facial
features or expressions of a character in a drawing when he did not like its appearance, or when
he thought it was “not as glamorous or not as effective as it should be,” or would require that a
scene be changed from a nighttime setting to the daytime. Romita Dep. at 23:4-25, 55:23-56:25.
33. Lee often had changes made to artwork without first consulting the original artist.
Thomas Dep. at 63:23-64:19. Lee commonly exercised his authority to require changes to the
artwork when he deemed it necessary, but did not do so too often, because it wasted Marvel’s
money and time. Lee Dep. at 33:9-17.
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34. At all times during the Time Period, Lee maintained editorial control over comic
book covers as well as stories. Lee and Goodman agreed that covers were the most important
part of a comic book because they were what caught the readers’ eye. Lee frequently
conceptualized how he wanted the covers to look and he decided which artist would be assigned
to draw the cover, sometimes assigning a different artist to draw the cover than the artist who
was assigned to draw the comic book itself. Lee Dep. at 36:19-37:2, 37:17-21, 38:4-20, 44:4-17;
see also Thomas Dep. at 67:16-68:6.
35. Lee had the authority to make changes or revisions to comic book covers and he
exercised that authority frequently. Lee Dep. at 38:21-22, 44:21-23; Thomas Dep. at 68:7-10;
see also Evanier Dep. (12/6/10) at 202:6-204:18. For example, Mark Evanier’s biography of
Kirby includes an exemplar of a cover sketch featuring the character Thor, drawn by Kirby, that
features Lee’s handwritten notes directing Kirby to make certain changes. Singer Decl. Ex. 28 at
K00299; see also Evanier Dep. (12/6/10) at 202:6-204:18.
Development of the Marvel Method
36. Prior to the early 1960s, Marvel’s artists drew comic book stories based on
detailed scripts that were written either by Lee or another writer who had received from Lee a
plot outline or a synopsis (which could be either written or oral). These scripts were extremely
detailed, similar to film shooting scripts, and included a title, an allocation of pages, and a panel-
by-panel breakdown for each page that gave the artist explicit instructions as to the action that
was to take place in each panel and the dialogue that would be inserted later. These detailed
scripts were written before any artwork for the comic book was drawn, and the artists based the
artwork on the script. Romita Dep. at 17:13-18:14; Lieber Dep. at 9:14-18, 11:6-13:5; Singer
Decl. Ex. 29 at MARVEL0018165; see also Evanier Dep. (12/6/10) at 201:14-202:5.
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37. During the Time Period, Lee developed a new system wherein he provided the
artist with a short outline or synopsis – which could be written or oral – that instructed the artist
as to what Lee wanted to happen, what he wanted the hero to do, and how he wanted it to look.
After Lee provided the synopsis to the assigned artist, they would then discuss it at a “plotting
conference.” Following the plotting conference, the artist proceeded to draw a complete story
based on Lee’s directions. Once Lee received the penciled drawings and had approved them –
after any changes that had to be made – he inserted dialogue and captions to develop the story
the way he wanted it to progress. This process became known as the “Marvel Method.” Singer
Decl. Ex. 11, Track 7, Track 2 and Track 6; Lee Dep. at 20:11-21:25, 35:11-22; Singer Decl. Ex.
30 ; id. Ex. 27; see also Thomas Dep. at 218:14-219:16; Romita Dep. at 39:14-42:13; Evanier
Dep. (11/9/10) at 92:22-93:4; Morrow Dep. at 60:18-61:20.
38. The Marvel Method was developed because Lee had become so busy that he
could not write scripts quickly enough to keep up with the artists. As Marvel’s freelance artists
were paid by the page that they submitted to Marvel for publication, if they were not given an
assignment by Lee, they would not get paid by Marvel. Lee Dep. at 20:11-21:25; Singer Decl.
Ex. 11, Track 6; Romita Dep. at 41:13-42:13; see also Lieber Dep. at 14:9-15:4.
39. Artists and writers did not draw pages prior to obtaining an assignment and a plot
or synopsis from Stan Lee. Lee Dep. at 41:20-42:9; see also id. at 383:18-21, 384:18-21;
Thomas Dep. at 56:12-15, 57:25-58:9; Evanier Dep. (11/9/10) at 91:15-18.
40. Working under the Marvel Method, artists were afforded greater freedom to draw
the stories, but at all times the artists were constrained to keep to the main theme and plot that
Lee supplied and the instructions he gave. If the artwork strayed too far from his expectations
for the plot of the story or had done something wrong, Lee “fixed” some of the discrepancies by
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inserting dialogue and captions to ensure that it kept to the story he had envisioned without
having to spend the time to request changes to the artwork. At Lee’s discretion, he could fill in
the plot through his own dialogue to make the finished work a seamless product that followed
from his original plot; Lee has often mused that this process “was like doing a crossword
puzzle.” Lee Dep. at 20:11-21:25, 55:9-13, 343:18-344:22; Singer Decl. Ex. 31 at 83.
41. Under the Marvel Method process of story creation during the Time Period, it was
part of the artists’ assignment to fill in any necessary details or to create new characters or plot
elements to flesh out the plot that Lee had provided for the story. Lee Dep. at 54:16-56:9, 72:21-
73:23, 377:12-19; Singer Decl. Ex. 32 at MARVEL0017515 (explaining that Marvel Method
involved Lee “discussing the story with the artist and having the artist do the penciled art on his
own, drawing whatever he wants so long as it tells the story we’ve discussed”); see also Thomas
Dep. at 55:4-15, 55:16-56:3, 220:7-221:12.
42. If an artist or writer introduced a new character into an existing comic book, it
was the responsibility of either Goodman as publisher or Lee as editor to decide whether the
character was interesting enough to create a new comic book title devoted it. Lee Dep. at 79:3-
19.
43. At all times during the Time Period, Lee maintained the ability to edit and make
changes to work that writers and artists had created, and, when necessary, he determined that it
was not fit for publication. Lee Dep. at 22:11-16.
44. Except for certain instances in which Lee continued to use detailed scripts in
advance of assigning an artist to draw the pencil artwork for a comic book issue, Lee used the
Marvel Method for the creation of comic books published by Marvel from the early 1960s on,
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until he became publisher of Marvel in the early 1970s. Lee Dep. at 22:2-10; Lieber Dep. at
47:20-48:21; see also Evanier Dep. (12/6/10) at 56:7-57:13; Morrow Dep. at 59:2-23, 60:5-17.
Payment of Artists and Writers
45. During the Time Period, Marvel’s freelance artists and writers were paid flat rates
for work they performed on a per-page basis. Lee Dep. at 17:22-25, 30:11-14, 58:13-21, 396:1-
10; see also Thomas Dep. at 28:5-15 (freelancers paid per-page rates in 1960s); Romita Dep. at
16:13-21 (same in 1950s and 1960s).
46. Marvel did not purchase artwork from artists on speculation during the Time
Period. Lee Dep. at 41:20-42:9; see also Thomas Dep. at 58:14-23 (same in 1960s and 1970s).
47. During the Time Period, Marvel’s artists were paid for work they were assigned
by Marvel and submitted for publication, even if Marvel did not ultimately publish the artwork.
Lee Dep. at 18:6-16, 30:11-31:5, 376:16-22; see also Romita Dep. at 32:2-5 (in 1950s, if an artist
did the work, he would be paid for it).
48. Marvel’s artists and writers also were paid their agreed per-page rate for work
submitted for publication during the Time Period, even if Lee required changes to be made to the
work after submission. Lee Dep. at 376:16-22; Lieber Dep. at 30:10-12; see also Thomas Dep.
at 68:24-69:6, 74:19-25 (during 1960s and 1970s, artists were paid for work even if changes
were required).
49. During the Time Period, writers and artists at Marvel and other major comic book
publishers did not receive royalties or other profit participation based on the work they submitted
that was published. Lee Dep. at 45:4-9; Singer Decl. Ex. 33 at MARVEL0017691 (noting that in
comic books, “unlike most other forms of writing, there were no royalty payments at the end of
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the road . . . no residuals . . . no copyright ownership. You wrote your pages, got your check,
and that was that.”); see also Evanier Dep. (11/9/10) at 164:18-165:18, 165:21-166:11.
Marvel’s Artists and Writers Understood and Acknowledged That Their Work
Created for Marvel Was Work-Made-For-Hire
50. On numerous occasions, Lee has expressly acknowledged and asserted that all
works to which he contributed while working for Marvel were works made for hire. Singer
Decl. Ex. 11, Track 8 (“I never owned these characters. I did them as a work for hire. So the
company owned the characters.”); Lee Dep. at 26:22-28:6, 100:25-101:17, 396:11-14; Singer
Decl. Ex. 34 at ¶¶ 4, 11; id. Ex. 23 at ¶ 4, id. Ex. 24 at ¶ 4, id. Ex. 35 at ¶ 2.
51. Marvel’s policy that it owned all works submitted for publication as works made
for hire was well known among its artists and writers in the 1950s and 1960s. Lee Dep. at 27:21-
28:11; Thomas Dep. at 85:12-86:19. For example, while working both at Marvel and DC
Comics, artist John V. Romita understood that the company always owned the works to which he
contributed that were published under the company’s name. Romita Dep. at 68:7-10, 86:7-8,
86:13-20; Singer Decl. Ex. 36. Similarly, writer Roy Thomas also understood that the copyrights
to the materials he submitted for publication were owned by Marvel. Thomas Dep. at 84:16-
85:19; Singer Decl. Ex. 37; see also Lieber Dep. at 32:6-16 (“I didn’t think much about
[Marvel’s work-for-hire policy] because I felt the only reason I was doing it was to get paid, you
know.”); Singer Decl. Ex. 38 (“In the narrow field of comic art, one either worked ‘for hire’ or
didn’t work!”); id. Ex. 39 at MARVEL0018273 (Kirby stating, “[e]verybody was ‘work-for-hire’
. . . It was the traditional way that artists got jobs”).
52. Likewise, Marvel’s artists and writers understood that Marvel had the right to
introduce existing characters into a different comic book series being drawn and/or written by a
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different artist and/or writer without consulting the original writer or artist. Thomas Dep. at
65:13-17, 65:23-66:7, 67:3-14; see also Lee Dep. at 79:3-19.
53. Marvel artist John Romita, writer Larry Lieber and writer-turned-editor Roy
Thomas all testified that they recall that the payroll checks by which they were paid for their
freelance work bore a legend on the back stating that they retained no rights in the work for
which they were being paid. Thomas Dep. at 71:17-72:19, 229:4-25; Romita Dep. at 64:14-
65:19, 65:24-66:4, 66:24-67:14, 67:17-20, 273:24-274:11; Lieber Dep. at 31:17-21, 32:4-33:8.
Stan Lee recalls endorsing paychecks from Timely Comics and its various successors for his
writing that bore such an acknowledgement, which was the “standard practice” for all writers
and artists who worked for Marvel on a freelance basis. Lee testified that he never thought
anything of this practice because he always assumed that Marvel owned the rights to the works
he created or co-created. Lee Dep. at 28:20-29:11.
KIRBY’S WORKS WERE WORKS-MADE-FOR-HIRE
Stan Lee’s Authority To Review and Edit Kirby’s Work
54. During the Time Period, some assignments were given to Kirby to draw based on
a detailed script, and others were given to him pursuant to the Marvel Method. Under either
process, Kirby was assigned to draw a particular comic book issue based on Stan Lee’s initial
concept and plot outline. When working under the Marvel Method, after Kirby was given the
assignment and initial concept, Lee and Kirby discussed the plot in a plotting conference, and
only then did Kirby draw the complete story based on the plot and his discussion with Lee. Lee
Dep. at 39:25-41:19, 47:21-25, 94:24-95:12, 383:18-21; Lieber Dep. at 47:20-48:8; see also
Evanier Dep. (11/9/10) at 91:9-18, 92:22-93:4, 111:4-14, 168:4-169:24; Thomas Dep. at 111:12-
14, 112:8-17; Romita Dep. at 80:19-25; Singer Decl. Ex. 40.
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55. Kirby did not begin work on any artwork for a book published by Marvel during
the Time Period before he had been assigned to that project by Lee. Lee Dep. at 383:18-21,
384:18-21; see also Evanier Dep. (11/9/10) at 92:22-93:4; Evanier Dep. (12/6/10) at 225:5-8.
56. In plotting conferences during the Time Period, if Kirby and Lee ever had
differing views on an element of an upcoming comic book issue, Lee always had the final say as
to what would go into the book. Lee Dep. at 52:3-5, 73:17-23, 111:2-17; see also Romita Dep.
at 81:18-83:21 (describing plotting conferences in 1960s); Singer Decl. Ex. 11, Track 3.
57. In the course of fleshing out the outlines into complete comic book stories during
the Time Period, Kirby from time to time introduced new characters into the story. This
introduction of new elements was part of his assignment, and was always done within the context
of the work Lee had assigned him and the script or the plot that Lee provided to him. Lee Dep.
at 54:16-56:9, 377:12-19.
58. During the Time Period, Stan Lee had the right to direct and supervise Kirby’s
work and had the ability to review all of Kirby’s artwork prior to publication. In reviewing
artwork that Kirby submitted for publication, Lee had the authority to determine whether the
artwork would be published, or to require changes or edits prior to approval or prior to
publication. Lee Dep. at 22:11-23:19, 47:15-25; see also Thomas Dep. at 113:18-114:11;
Evanier Dep. (12/6/10) at 105:6-14, 105:18-23.
59. At Lee’s discretion, Kirby was sometimes instructed to make changes and
revisions to artwork he submitted to Marvel for publication. Lee Dep. at 22:11-19, 23:13-19;
Thomas Dep. at 113:25-114:11; see also Evanier Dep. (11/9/10) at 59:22-60:4, 60:23-61:8,
61:20-23; Evanier Dep. (12/6/10) at 105:6-14, 105:18-23, 106:5-7; N. Kirby Dep. at 170:23-
171:4; October 25, 2010 Deposition of Susan Kirby (“S. Kirby Dep.”) annexed as Ex. 7 to the
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Singer Decl. at 37:23-25; Morrow Dep. at 205:13-19, 206:5-207:10, 264:11-18. Lee does not
recall any instance when Kirby ever refused to make any of the edits or changes that Lee
directed. Lee Dep. at 48:10-13.
60. Lee sometimes requested that an artist make changes to another artist’s work. See
Thomas Dep. at 114:13-115:9; see also Evanier Dep. (12/6/10) at 197:17-24. For example, John
Romita recalled that when he first met Kirby, Kirby was sitting in Marvel’s bullpen making
changes to a cover that had been penciled originally by artist Steve Ditko. Romita Dep. at 74:23-
76:7. Additionally, from time to time, Lee asked John Romita to make changes to artwork that
Kirby had submitted for publication. For example, Lee asked Romita to change certain facial
features on Kirby’s characters. Romita found this difficult because he idolized Kirby’s work, but
he “did it because [he] had no choice. Stan asked [him] to do it.” Id. at 76:8-78:21. Romita
recalls that Kirby rarely read any comic book in its final published format, and for that reason
may have been unaware of the changes that were made to his artwork after its submission. Id. at
88:16-24.
61. Kirby was paid for all the artwork pages that he submitted to Marvel during the
Time Period, even if it was not used for publication and even if Lee required that changes be
made to it prior to publication. Lee Dep. at 30:24-31:5, 376:3-22 (“Any artists that drew
anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good,
we wouldn’t use it. But I asked them to draw it, so I did pay them.”); see also Evanier Dep.
(11/9/10) at 61:24-62:1, 62:10-24; Evanier Dep. (12/6/10) at 138:19-22. Lee sometimes later
used these inventory pages as tests for new inkers. Lee Dep. at 22:11-23:19.
62. Like all freelance artists at Marvel during the Time Period, Kirby was paid an
agreed per-page rate for his artwork. Lee Dep. at 58:13-21; Singer Decl. Ex. 41 at
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MARVEL0017230; N. Kirby Dep. at 72:20-22, 73:1-4, 81:8-13; see also Evanier Dep. (12/6/10)
at 105:15-17. Kirby was paid the highest per-page rate offered by Marvel because Lee
considered him to be Marvel’s best artist. Lee Dep. at 30:15-23.
63. When Kirby submitted his artwork for Lee’s review, he sometimes included notes
in the margins of the pages to describe his ideas for a plot or dialogue being depicted. Lee had
discretion as to whether to use any of those notes, and he almost always ignored them and
inserted his own dialogue instead. Lee Dep. at 48:24-52:20; Thomas Dep. at 117:11-22; Singer
Decl. Ex. 42 at MARVEL0017976; see also Evanier Dep. (12/6/10) at 193:13-17, 193:25-195:3.
64. Kirby never did any artwork for publication by Marvel without having been
assigned to do so by Marvel, and Kirby never submitted artwork to Marvel on spec. N. Kirby
Dep. at 127:19-24 (“Q: Was it your understanding that your father would begin working on a
book without any discussion with Stan before doing so? A: I would say it was my
understanding if my father had an idea for a book or a character to create he would bring it up
and get a yea or nay.”); id. at 127:25-128:5 (“Q: Was it your understanding that [Kirby] would
begin working; that is, drawing panels prior to getting a go ahead from Marvel or Stan Lee? A:
I don’t believe – that is not my understanding. My father didn’t do work on spec, he was getting
paid by the page.”); id. at 168:24-169:7; Lee Dep. at 48:2-4, 56:10-16, 57:12-18; Thomas Dep. at
112:19-23.
65. Throughout their working relationship, Lee had (and continues to have) an
extremely high opinion of Kirby. Lee would have preferred to have used Kirby as the pencil
artist on all of Marvel’s comic books during the Time Period, but he was not able to do so
because Kirby was “just one guy,” and did not have the time. Lee Dep. at 36:19-23, 46:25-47:8;
Singer Decl. Ex. 27 at THOM0002629.
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Kirby Acknowledged Marvel’s Authority and Editorial Control
66. In an interview with Mike O’Dell on WBAI-FM NY radio, conducted on March
3, 1967, when asked whether, “now that Captain America is back in the fight, has there been any
talk about sending him to Vietnam?” Kirby replied: “Well, that’s Stan Lee’s department and he
can answer that. The editor always has the last word on that.” Id. Ex. 11, Track 3.
67. In an interview with Mark Herbert of The Nostalgia Journal in 1969, Kirby
stated: “My job is what the policy of the organization [i.e., Marvel] calls for.” Id. Ex. 43 at
MARVEL0017197.
Kirby Acknowledged the Work-For-Hire Nature of His Works for Marvel On

Numerous Occasions
68. Kirby has been quoted as saying: “Everybody was ‘work-for-hire’ . . . It was the
traditional way that artists got jobs. The publishers made certain that they owned the rights to
everything. When you came in for work, everything you did was owned by the guy giving you a
paycheck.” Id. Ex. 39 at MARVEL0018273.
69. In an affidavit signed on July 12, 1966, Kirby averred that with respect to the
creation of the Captain America character with writer Joe Simon, he “felt that whatever [he] did
for Timely belonged to Timely as was the practice in those days.” Id. Ex. 44 at
MARVEL0000354.
70. In 1968 and 1969, Kirby signed Applications for Registration of a Claim to
Renewal Copyright for certain Captain America comic books, in which Marvel Comics Group
claimed a renewal copyright as a “[p]roprietor of copyright in a work made for hire.” Kirby
certified that the statements made in the applications were correct to the best of his knowledge.
Id. Ex. 45.
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71. In an agreement signed in 1972, Kirby “acknowledge[d] and agree[d] that all his
works on the MATERIALS, and all his work which was created or related to the RIGHTS,” that
were the subject of the Agreements “was done as an employee for hire of” Marvel. Id. Ex. 17 at
¶¶ 4-5.
72. In a Writers and Artists Agreement dated March 24, 1975, Kirby agreed that
Marvel had, among other things, the exclusive right to secure copyrights in all material delivered
to Marvel under the agreement. Id. Ex. 46 at ¶ 7.
73. In an Acknowledgement of Copyright Ownership dated June 16, 1986, Kirby
acknowledged: “I have no copyright rights and no claim to copyright, or to the renewal or
extension of copyright, or any other rights (except only for my ownership of the original physical
artwork being returned to me by Marvel) in any artwork, characters, publications or other
material . . . created or prepared by me for or on behalf of, or which was published by or under
the authority of, Marvel Comics Group or any predecessor company.” Id. Ex. 47 at ¶ 1.
74. In an Artwork Release dated June 16, 1987, Kirby acknowledged that the artwork
subject to the release “was specially commissioned by and prepared for Marvel, . . . and is a
work made for hire pursuant to all applicable copyright laws.” The Artwork Release further
provides that Kirby was “fully compensated for all [his] work in preparation of the Artwork,”
that “Marvel is the exclusive worldwide owner of all copyrights in and to the Artwork,” and that
the agreement “shall be binding upon the Artist, and [his] heirs.” Id. Ex. 48 at
MARVEL0013635, at ¶¶ 1-3, 7.
75. Kirby signed a letter from Marvel, dated May 12, 1987, in which he
acknowledged that “notwithstanding [his] execution of the Marvel Artwork Release . . . Marvel
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has given [Kirby] special permission to arrange for the public exhibition of artwork originally
drawn by [him] for Marvel.” Id. Ex. 49.
Kirby Was Concerned With Receiving Credit For His Work, Not With Copyright
Ownership
76. In a statement to the Comic Buyer’s Guide, published on October 3, 1986, Kirby
stated: “I feel I’m entitled to receive proper credit for my role in the creation of The Fantastic
Four, Spider-Man, The Hulk, Silver Surfer, etc. . . . This has nothing to do with copyright
ownership.” Id. Ex. 50.
77. In a letter to Marvel dated November 19, 1997, written on behalf of Roz Kirby
and the Estate of Jack Kirby, attorney Stephen Rohde wrote: “At the outset, let me assure you
that Roz is not challenging Marvel’s rights in the various characters which Jack created. Any
issues regarding ownership have long since been put to rest.” Id. Ex. 51 at ME0170.
78. Defendants have acknowledged that the central dispute with respect to Kirby’s
works created for Marvel involves Marvel’s alleged failure to give proper credit to Kirby for his
work. N. Kirby Dep. at 80:10-19; July 1, 2010 Deposition of Lisa Kirby (“L. Kirby Dep.”)
annexed as Ex. 6 to the Singer Decl. at 66:18-67:5.
CREATION OF SPECIFIC CHARACTERS AT ISSUE
79. Stan Lee has identified over 150 characters that he has attested under oath were
created or co-created by him for Marvel and that were created for Marvel as works made for hire.
These characters include the main and subsidiary characters in The Fantastic Four, The Mighty
Thor, The Incredible Hulk, The Amazing Spider-Man, The X-Men, Iron Man, The Avengers and
Ant-Man, among others. Singer Decl. Ex. 34; see also Lee Dep. at 145:7-21, 377:20-379:3.
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Creation of Fantastic Four
80. In 1961, Martin Goodman instructed Stan Lee to create a new team of
superheroes to compete with National Comics’s The Justice League of America. Singer Decl.
Ex. 52 at MARVEL0017498 (“I worked for [Goodman] and I had to do what he wanted, so I was
willing to put out a team of superheroes.”); Lee Dep. at 36:7-18, 59:16-60:16; see also Evanier
Dep. (11/9/10) at 87:21-88:19.
81. Lee developed the concept behind Marvel’s new team of heroes, The Fantastic
Four, including the genesis of their superpowers, their realistic personalities and their
relationships with one another. Lee Dep. at 59:16-60:16, 61:10-62:15; Singer Decl. Ex. 11,
Track 9; id. Ex. 33 at MARVEL0017694. While Lee conceived of the main characters Mr.
Fantastic, Invisible Girl and The Thing, his idea for the Human Torch was borrowed from one of
Timely Comics’s first comic books from the early 1940s. Lee Dep. at 61:23-62:3.
82. Lee typed up a synopsis laying out the plot of the first issue of The Fantastic Four
comic book and then assigned Kirby to draw the story. Lee and Kirby discussed Lee’s ideas in a
plotting conference, after which Kirby proceeded to produce the pencil drawings for the first
issue of The Fantastic Four based on Lee’s synopsis and their discussion. Singer Decl. Ex. 30;
Lee Dep. at 36:15-18, 60:17-61:2, 65:5-10, 384:18-21.
83. Throughout the process of creating the first issue of The Fantastic Four, and even
after several issues had already been published, Lee continued to make changes to the characters
and story, for example to the personalities, abilities or appearances of the characters. Lee Dep. at
67:6-70:2, 81:21-82:5; Singer Decl. Ex. 53 at 36.
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84. The Fantastic Four was originally published in its own comic book, The Fantastic
Four, Vol. 1, No. 1, with a cover date of November 1961. See Bard Decl. Ex. 1 at
MARVEL0001026.
Creation of The Incredible Hulk
85. In 1962, Lee conceived of the story of The Incredible Hulk, a sympathetic
monster who was also a hero. Lee was inspired by the story of the misunderstood monster in the
Boris Karloff film Frankenstein, as well as with the story of Dr. Jekyll and Mr. Hyde. Lee Dep.
at 80:10-81:19, 83:14-84:14; Singer Decl. Ex. 33 at MARVEL0017749. Lee assigned Kirby to
draw the first issue. Lee Dep. at 83:5-13, 84:18-23.
86. The first issue of The Incredible Hulk, Vol. 1, No. 1 was published with a cover
date of May 1962. Bard Decl. Ex. 1 at MARVEL0001100.
87. The Hulk was originally gray-skinned, but after the printer had trouble printing
the color consistently throughout the book, Lee decided to change the coloration of the hero’s
skin to green after the first issue was published. Lee Dep. at 81:20-83:4; Singer Decl. Ex. 33 at
MARVEL0017750; see also id. Ex. 11, Track 12.
Creation of The Mighty Thor
88. In 1962, Lee decided to introduce a new comic book story centered on Thor, the
Norse god of thunder. Lee gave a synopsis of the plot to his brother Larry Lieber, who wrote a
full panel-by-panel script for the first Thor issue based on Lee’s outline and made up the name of
Thor’s alter ego Don Blake and his enchanted Uru hammer. Because Kirby had an interest in
mythology, he was given the script that Lieber had written and assigned to draw the first issue to
feature Thor and the subsidiary characters of the Asgaardian realm. Singer Decl. Ex. 11, Track
14; Lee Dep. at 87:11-89:8, 89:13-90:19, 91:2-3; Lieber Dep. at 19:9-19, 20:8-21:17, 48:25-49:4;
Singer Decl. Ex. 33 at MARVEL0017848 (Lee notes that he provided an outline to Lieber;
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explaining that “[e]ven though [he] wouldn’t be writing the script, [Lee] always tried to ensure
that the basic concepts would be [his]”); see also Evanier Dep. (12/6/10) at 190:2-9, 190:15-22,
238:6-21.
89. Thor first appeared in Journey Into Mystery, Vol. 1, No. 83, published with a
cover date of August 1962. Bard Decl. Ex. 1 at MARVEL0001182.
Creation of Spider-Man
90. In 1962, Lee came up with the idea and name for Spider-Man, a realistic and
nerdy teenage hero who had the power to stick to walls and ceilings like an insect. Initially, Lee
assigned the artwork for the Spider-Man story to Kirby. However, when Lee saw that Kirby’s
initial pencil drawings depicted an overly muscular and heroic-looking character and did not
capture his expectations for the appearance of the hero, Lee paid Kirby for his work, took him
off the comic book and replaced him with artist Steve Ditko. Singer Decl. Ex. 11, Track 11; Lee
Dep. at 37:3-38:3, 74:6-75:5, 75:9-23, 376:3-15; see also Evanier Dep. (11/9/10) at 133:13-20;
Morrow Dep. at 236:11-16, 237:5-19; Singer Decl. Ex. 33 at MARVEL0017803-04 (“But alas
and alack, when I saw the first few pages that Jack had drawn, I realized we had a problem.
They were too good. Try as he might, he had been apparently unable to deglamorize Spidey
enough. . . I realized it might be better to let someone else try Spider-Man . . . I asked Steve
[Ditko] to draw Spider-Man. And he did. And the rest is history.”).
91. Lee assigned Kirby to draw the cover of the first appearance of Spider-Man in
Amazing Fantasy. Kirby drew the cover for the first appearance of Spider-Man after the comic
book art was completed. Lee Dep. at 38:23-39:5.
92. The first appearance of Spider-Man was in Amazing Fantasy, Vol. 1, No. 15,
published with a cover date of September 1962. Bard Decl. Ex. 1 at MARVEL0000988.
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93. The Spider-Man character was so successful that Goodman later decided to give
the character its own comic book. See Lee Dep. at 77:21-25. The new book, The Amazing
Spider-Man, was first published with a cover date of March 1963. Bard Decl. Ex. 1 at
MARVEL0000992.
Creation of Iron Man
94. In early 1963, Lee came up with the idea for the character Iron Man, who was a
hero in an incredibly powerful suit of metal armor; he was a millionaire playboy but was also
tragically vulnerable due to an injury to his heart. After conceiving of the plot and characters,
Lee assigned Larry Lieber to write a detailed panel-by-panel script for the first comic book to
feature Iron Man; Larry Lieber conceived of the hero’s “civilian name,” Anthony Stark. Singer
Decl. Ex. 11, Track 13; Lee Dep. at 84:24-85:24, 86:6-87:8; Lieber Dep. at 23:22-24:7, 24:19-
25:25, 48:25-49:4; see also Evanier Dep. (12/6/10) at 190:2-9, 190:15-22, 246:5-7; Morrow Dep.
at 260:16-261:7.
95. Lee then assigned artist Don Heck to do the artwork based on Lieber’s script. Lee
Dep. at 36:19-23, 85:21-86:5; Lieber Dep. at 26:2-11. Lee assigned Kirby to draw the cover of
the first issue to feature the Iron Man character. Lee Dep. at 36:25-37:2, 85:25-86:5.
96. The Iron Man character first appeared in Tales of Suspense, Vol. 1, No. 39,
published with a cover date of March 1963. Bard Decl. Ex. 1 at MARVEL0001452.
Creation of The X-Men
97. In 1963, Martin Goodman asked Lee to create another team of superheroes. Lee
conceived of The X-Men, a team of mutants who were born with their superpowers. After
Goodman directed Lee to revise the original name he had made up – The Mutants – Lee decided
on the name The X-Men, based on the main character Professor Xavier and the fact that the
heroes had “extra” powers. With the new name, Goodman approved of the project. Singer Decl.
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Ex. 11, Track 15; Lee Dep. at 92:25-94:23. Lee assigned the artwork for the new book to Kirby.
Lee Dep. at 94:24-95:4.
98. The first issue of The X-Men, Vol. 1, No. 1 was published with a cover date of
September 1963. Bard Decl. Ex. 1 at MARVEL0001654.
Creation of The Avengers
99. In 1963, Lee created yet another team of superheroes, in which existing popular
superheroes on Marvel’s roster would gather together to become a fighting team called The
Avengers. After he had conceived of the initial plot and had obtained Goodman’s approval, Lee
assigned the first issue of The Avengers to Kirby to draw. Lee Dep. at 96:19-98:9.
100. The first issue of The Avengers, Vol. 1, No. 1, was published with a cover date of
September 1963. Bard Decl. Ex. 1 at MARVEL0001020.
Creation of Ant-Man
101. Lee initially conceived of the idea of Ant-Man as a miniature hero. After
Goodman “okayed” the project, Lee assigned the story to Larry Lieber, who wrote a detailed
panel-by-panel script for the first comic book to feature Ant-Man, and also named the hero’s
alter ego, Henry Pym. After the script was completed, it was assigned to Jack Kirby, who drew
the pencil artwork for the first issue. Lee Dep. at 98:14-99:15, 99:21-24; Lieber Dep. at 27:11-
28:9, 28:13-23, 48:25-49:4.
102. The first appearance of Ant-Man and his cast of subsidiary characters was in
Tales to Astonish, Vol. 1, No. 27, published with a cover date of January 1962. Bard Decl. Ex. 1
at MARVEL0001966.
Creation of Nick Fury
103. In 1963, Lee decided to reintroduce a popular Marvel character from a war series
called Sgt. Fury and His Howling Commandos, which Marvel had discontinued years earlier.
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Lee assigned the artwork for the new series to Kirby because he thought it was “right up
[Kirby’s] alley” and oversaw the creation of the comic book under the Marvel Method. Lee Dep.
at 95:13-96:18; see also Morrow Dep. at 201:2-6.
104. The Nick Fury character was first reintroduced to Marvel’s line of comic books in
Sgt. Fury and His Howling Commandos, Vol. 1, No. 1, published with a cover date of May 1963.
Bard Decl. Ex. 1 at MARVEL0001236.
Creation of The Rawhide Kid
105. Lee created The Rawhide Kid for Goodman because Goodman loved westerns.
Lee decided on the title because Goodman liked names that involved “the Kid.” Lee wrote the
first issue of The Rawhide Kid, and Kirby was assigned to draw the pencils. After Kirby moved
on to drawing superhero books, the writing and artwork were reassigned to Larry Lieber. Lee
Dep. at 99:25-100:24; Lieber Dep. at 33:9-18.
106. The first issue of The Rawhide Kid named in the Termination Notices is Vol. 1,
No. 17, which was published with a cover date of August 1960. See Bard Decl. Ex. 1 at
MARVEL0001768.
Creation of Silver Surfer
107. In 1966, Lee conceived of a new super-villain called Galactus to be featured The
Fantastic Four. Lee told Kirby his idea and assigned him to draw the issue. In the course of the
assignment and fleshing out Lee’s ideas, Kirby inserted a new character, a silver-toned figure on
a flying surfboard, who would serve as Galactus’s herald in space. Lee approved the addition
and included the character, which he named The Silver Surfer, in the new issue of The Fantastic
Four. Singer Decl. Ex. 11, Track 10; Lee Dep. at 70:23-73:23, 79:20-80:9, 331:2-18.
108. The Silver Surfer did not appear until Fantastic Four, Issue No. 48 in 1966, so the
character is not subject to the Termination Notices. See Singer Decl. Ex. 16.
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DEFENDANTS LACK KNOWLEDGE AND INFORMATION SUFFICIENT TO RAISE

A GENUINE ISSUE OF MATERIAL FACT
Defendants Lack Knowledge of Marvel’s Work-For-Hire Practices
109. Susan Kirby was born on December 6, 1945 and was between the ages of
approximately thirteen and eighteen during the years 1958 to 1963. S. Kirby Dep. at 9:10-11.
110. Neal Kirby was born on May 25, 1948 and was between the ages of
approximately ten and fifteen during the years 1958 to 1963. N. Kirby Dep. at 7:18-19.
111. Barbara Kirby was born on November 26, 1952 and was between the ages of
approximately six and eleven during the years 1958 to 1963. Id. at 7:5-8, 7:15-17. Defendants
have represented that Barbara Kirby is not competent to testify in this action and that she has no
personal knowledge or admissible evidence regarding this action. Singer Decl. Ex. 54.
112. Lisa Kirby was born on September 7, 1960 and was approximately three years old
in 1963. L. Kirby Dep. at 6:2-3.
113. None of the Defendants was present during any meeting between Kirby and Lee,
and none of the Defendants has any personal knowledge regarding the substance of any meetings
or discussions that Kirby had with Lee or any other non-family member about the Works or any
of the work he did for Marvel. N. Kirby Dep. at 55:18-56:19, 57:8-17, 77:2-6, 97:5-8, 117:10-
15; L. Kirby Dep. at 96:14-18; S. Kirby Dep. at 10:25-11:8.
114. Defendants have no personal knowledge as to whether any of the characters to
which Kirby contributed were created pursuant to specific assignments or commissions from
Marvel, or whether any of the stories to which Kirby contributed were the result of a
collaboration between Kirby and Lee. N. Kirby Dep. at 72:1-6, 169:8-18; S. Kirby Dep. at 27:3-
9, 76:17-23.
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115. Neal Kirby has no way of knowing whether Kirby ever worked from a script or
synopsis. Defendants did, however, acknowledge that Kirby worked on deadlines and often
would work 16-18 hours per day to meet those deadlines, and that he never worked on spec. N.
Kirby Dep. at 91:16-25, 117:16-22, 127:25-128:5 (“My father didn’t do work on spec, he was
getting paid by the page.”); S. Kirby Dep. at 52:4-14.
116. Neal Kirby has no information to dispute the fact that Lee had discretion to, and
routinely did, ignore the notes that Kirby would sometimes make in the margin of his pencil
drawings. N. Kirby Dep. at 218:15-219:5.
117. Neal Kirby acknowledged that Stan Lee was “in charge” of Kirby’s submission of
artwork for publication. N. Kirby Dep. at 56:10-12.
Defendants Have No Knowledge Regarding The Creation Of Specific Works

Subject To The Termination Notices
118. In their depositions, Defendants were unable to identify any specific facts
regarding the circumstances under which any of the Works were created. N. Kirby Dep. at
64:10-20, 69:15-18, 97:13-17, 99:6-22, 104:4-17, 104:25-105:7, 108:7-12, 108:25-109:2, 109:3-
11, 109:21-24, 111:19-112:18, 113:9-114:14, 117:23-118:7, 120:9-121:19, 126:13-127:18,
128:14-18, 130:12-131:2, 137:17-23, 139:10-13, 141:20-142:1, 142:6-17, 194:14-195:1; L.
Kirby Dep. at 34:6-11, 92:15-94:3, 94:18-95:3, 95:8-17, 99:22-23, 103:24-104:5, 107:20-108:23,
109:5-8, 113:3-6, 113:17-24; S. Kirby Dep. at 28:11-17, 43:19-22, 59:24-60:4, 64:21-25.
119. Neal Kirby did no research prior to serving the Termination Notices regarding
whether any of the Works were in fact created or co-created by Kirby. N. Kirby Dep. at 194:14-
195:1.
120. Lisa Kirby has no personal knowledge regarding the circumstances of the creation
of any characters to which Kirby contributed while working for Marvel, and she was too young
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at the time to have any personal knowledge of the relevant facts. L. Kirby Dep. at 34:6-11,
92:15-94:3, 94:18-95:3, 95:8-17, 99:22-23.
121. Neal Kirby has no personal knowledge or recollection of the circumstances under
Kirby created any of the Works. N. Kirby Dep. at 64:10-20. Neal Kirby’s best recollection of
the events concerning Kirby’s work are outside the Time Period. Id. at 92:24-93:3.
122. Defendants can point to no evidence to dispute Lee’s testimony that he, and not
Kirby, conceived of The Fantastic Four. N. Kirby Dep. at 117:23-118:7, 120:9-121:19; S. Kirby
Dep. at 28:11-17.
123. Neal Kirby has no specific firsthand knowledge regarding the circumstances
surrounding the creation of Iron Man and his only basis to dispute Stan Lee’s statements in this
regard is speculation. N. Kirby Dep. at 108:7-12, 108:25-109:2, 109:21-24, 109:3-11, 111:19-
112:4. Neal Kirby knows nothing about what other creative forces might have existed at Marvel
during the Time Period and Kirby never told Neal that he (Kirby) was the sole creative force at
Marvel. Id. at 111:25-112:18, 113:9-114:14.
124. None of the Defendants has any specific information on the circumstances
surrounding the creation of The Incredible Hulk. L. Kirby Dep. at 107:20-108:2; N. Kirby Dep.
at 141:20-142:1, 142:6-17; S. Kirby Dep. at 43:19-22.
125. Neither Neal nor Lisa Kirby has any specific information on the circumstances
surrounding the creation of Spider-Man, although Neal Kirby has acknowledged that Kirby did
not contribute artwork to the published first issue of Spider-Man. L. Kirby Dep. at 103:24-
104:5; N. Kirby Dep. at 97:13-17, 99:6-22. Neal Kirby can only “guess” that Kirby conceived of
Spider-Man because he was not privy to what might have been discussed between Lee and Kirby
with respect to Spider-Man or any other character. N. Kirby Dep. at 104:4-17, 104:25-105:7.
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126. Lisa Kirby has admitted that Spider-Man was not drawn by Kirby, and has noted
that she has “heard [her] mother correcting people if they alluded to that fact.” Singer Decl. Ex.
55 at MARVEL0017407. Defendant Susan Kirby also acknowledged that the Spider-Man
character “is not [Kirby’s].” S. Kirby Dep. at 41:25-42:6.
127. Mark Evanier, proffered as both a fact witness and an “expert,” has noted that
Jack once misspoke when he said that he designed the costume for the final published version of
Spider-Man. Evanier Dep. (11/9/10) at 132:22-133:7; Singer Decl. Ex. 56 at MARVEL0017065.
128. Evanier also has commented that Kirby had a notoriously poor memory. Evanier
Dep. (11/9/10) at 130:9-131:4; Singer Decl. Ex. 57 at MARVEL0017057.
129. Neither Neal nor Lisa Kirby has any knowledge regarding the circumstances of
the creation of the Thor character. N. Kirby Dep. at 126:25-127:18; L. Kirby Dep. at 108:3-23.
130. Lisa Kirby has no specific information on the circumstances surrounding the
creation of The X-Men. L. Kirby Dep. at 109:5-8. Neal Kirby’s only basis to dispute Stan Lee’s
testimony regarding the creation of The X-Men is that he has no reason to disbelieve his father.
N. Kirby Dep. at 130:12-131:2.
131. Neither Lisa nor Neal Kirby has any specific information on the circumstances
surrounding the creation of Nick Fury. L. Kirby Dep. at 113:3-6; N. Kirby Dep. at 126:13-24.
132. None of the Defendants has any specific information on the circumstances
surrounding the creation of The Rawhide Kid. L. Kirby Dep. at 113:17-24; N. Kirby Dep. at
137:17-23; 139:10-13; S. Kirby Dep. at 64:21-25.
133. None of the Defendants has any specific information regarding the timing or
circumstances under which Ant-Man was created, and neither Neal nor Susan Kirby even knows
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that Ant-Man was a character published by Marvel. N. Kirby Dep. at 69:15-18, 128:14-18; L.
Kirby Dep. at 108:24-109:4; S. Kirby Dep. at 59:24-60:4.

New York, New York
James W. Quinn
R. Bruce Rich
Randi W. Singer
Sabrina A. Perelman
767 Fifth Avenue
New York, NY 10153
Tel: (212) 310-8000
Fax: (212) 310-8007

Jodi A. Kleinick
75 East 55th Street
New York, NY 10022
Tel. (212) 318-6000
Fax. (212) 230-7691

David Fleischer
New York, NY 10112
Tel. (212) 659-7300
Fax. (212) 884-7691
Attorneys for Plaintiffs and Counterclaim-Defendants
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:
MVL RIGHTS, LLC, :
:
Plaintiffs, :
:
- against- :
:
:
Defendants. :
:
:
Counterclaim-Plaintiffs, :
:
- against- :
:
MARVEL CHARACTERS, INC., MVL :
RIGHTS, LLC, THE WALT DISNEY :
COMPANY and DOES 1 through 10, :
:
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PLAINTIFFS’ AND COUNTERCLAIM-DEFENDANTS’ MEMORANDUM OF LAW

IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
US_ACTIVE:\43594819\15\79593.0027
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1
UNDISPUTED MATERIAL FACTS ........................................................................................... 3
Goodman, Marvel’s Publisher And Owner, Had The Right And Authority To
Control Marvel’s Creations And Bore The Financial Risk Associated With Its
Comic Book Business ........................................................................................................ 3
Lee, Marvel’s Editor, Oversaw All Aspects Of, And Had The Right And
Authority To Control, Marvel’s Comic Book Creations ................................................... 4
Payment To Freelance Artists For Work Contributed To Marvel’s Comic Books ........... 6
Kirby’s Work Was Subject To Marvel’s Authority And Control...................................... 7
Kirby And Other Marvel Freelancers Have Acknowledged Their Work Is Work
Made For Hire.................................................................................................................... 8
The Termination Notices And Copyright Ownership In The Works ................................ 9
ARGUMENT................................................................................................................................. 9
I. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT ....................... 9
II. THE UNDISPUTED RECORD EVIDENCE DEMONSTRATES THAT THE

WORKS AT ISSUE WERE WORKS MADE FOR HIRE UNDER THE 1909
COPYRIGHT ACT.......................................................................................................... 10
A. There Is No Termination Right For Works Made For Hire Under The 1909
Copyright Act....................................................................................................... 10
B. Marvel Is Entitled To The Almost Irrebuttable Presumption That The

Works Are Works Made For Hire ....................................................................... 11
C. The Undisputed Record Evidence Establishes That The Works Were

Created At Marvel’s Instance .............................................................................. 12
1. Marvel Induced The Creation Of The Works And Maintained The

Authority To Direct And Supervise Their Creation ................................ 12
2. Artistic Freedom Is Irrelevant To Whether The Works Were

Created At Marvel’s Instance .................................................................. 14
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(continued)
Page
D. The Undisputed Record Facts Establish That The Works Were Created At
Marvel’s Expense................................................................................................. 17
1. Kirby’s Flat-Rate Payment Is Indicative Of A Work-For-Hire

Relationship ............................................................................................. 17
2. Marvel Bore All The Financial Risk Associated With The Works ......... 17
III. THE RECORD IS UTTERLY DEVOID OF ANY FACTS FROM WHICH

DEFENDANTS COULD CARRY THEIR BURDEN TO REBUT THE
PRESUMPTION THAT THE WORKS ARE WORKS MADE FOR HIRE.................. 18
A. Defendants Have Not Produced A Single Witness With Personal

Knowledge Or Any Admissible Evidence........................................................... 19
B. Defendants’ So-Called Experts Fail To Raise Any Genuine Issue Of

Material Fact ........................................................................................................ 20
C. Kirby Acknowledged Marvel’s Direction And Control ...................................... 22
CONCLUSION............................................................................................................................ 23
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Page(s)
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................9
Bickerstaff v. Vassar Coll., 196 F.3d 435 (2d Cir. 1999) ..............................................................10
Dolman v. Agee, 157 F.3d 708 (9th Cir. 1998)..............................................................................11
Easter Seal Soc’y for Crippled Children & Adults of La., Inc. v. Playboy Enters., 815
F.2d 323 (5th Cir. 1987) ..........................................................................................................11
Fifty-Six Hope Road Music Ltd. v. UMG Recordings, Inc., No. 08 CIV. 6143 (DLC),
2010 WL 3564258 (S.D.N.Y. Sept. 10, 2010)................................................................. passim
Estate of Hogarth v. Edgar Rice Burroughs, Inc., No. 00 Civ. 9569 (DLC), 2002 WL
398696 (S.D.N.Y. Mar. 15, 2002) ................................................................................... passim
Estate of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149 (2d Cir. 2003).......................2, 11
Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary
Dance, Inc., 380 F.3d 624 (2d Cir. 2004) ..........................................................................11, 12
In re Marvel Entm’t Group, Inc., 254 B.R. 817 (D. Del. 2000) ............................................ passim
Murray v. Gelderman, 566 F.2d 1307 (5th Cir. 1978) ............................................................12, 15
Ocean Group LLC v. Marcal Mfg., LLC, No. 09 Civ. 7679 (CM), 2010 WL 4963155
(S.D.N.Y. Dec. 2, 2010).............................................................................................................9
Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213 (2d Cir. 1972) ...............................................13
Playboy Enters., Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995)................................................. passim
Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710 (S.D.N.Y. 1997).............................................14
Scherr v. Universal Match Corp., 417 F.2d 497 (2d Cir. 1969)....................................................12
Siegel v. Nat’l Periodical Publ’ns, 508 F.2d 909 (2d Cir. 1974) ............................................11, 16
Siegel v. Time Warner Inc., 496 F. Supp. 2d 1111 (C.D. Cal. 2007) ............................................18
Siegel v. Warner Brothers Entm’t Inc., 658 F. Supp. 2d 1036 (C.D. Cal. 2009) .................. passim
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(continued)
Page(s)
Twentieth Century Fox Film Corp. v. Entm’t Distrib.,

429 F.3d 869 (9th Cir. 2005) ......................................................................................12, 17, 19, 20
Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000)..............................................................9
Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939).......................................................13
FEDERAL STATUTES
17 U.S.C. § 26................................................................................................................................10
17 U.S.C. § 304(c) .........................................................................................................................10
17 U.S.C. § 410(c) .........................................................................................................................22
Fed. R. Civ. P. 56(c) ........................................................................................................................9
Fed. R. Evid. 702 ...........................................................................................................................20
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Plaintiffs Marvel Worldwide, Inc., Marvel Characters, Inc. and MVL Rights, LLC
(collectively, “Plaintiffs”) and Counterclaim-Defendants Marvel Entertainment, LLC (successor
by merger to Marvel Entertainment, Inc. and together with Plaintiffs, “Marvel”) and The Walt
Disney Company (“Disney”) respectfully submit this Memorandum of Law in Support of Their
Motion for Summary Judgment.
PRELIMINARY STATEMENT
The undisputed facts show that each of the characters, stories and other copyrightable
elements in the Marvel comic books at issue in this case (collectively, the “Works”) was created
at Marvel’s direction, subject to Marvel’s editorial control, and at Marvel’s expense. Second
Circuit precedent thus mandates that Marvel is, and always has been, the owner of the Works as
works made for hire. The notices sent by Defendants – the children and legal heirs of comic
book artist Jack Kirby – purporting to terminate an alleged assignment by Kirby of the
copyrights in such comic books as The Fantastic Four, The Incredible Hulk, The X-Men, and The
Avengers, among others (the “Termination Notices”) are therefore invalid, and Marvel and
Disney are entitled to judgment as a matter of law.
A work is made for hire under the Copyright Act of 1909 (the “1909 Act”) when it meets
the “instance and expense” test. That test is satisfied when the hiring party induces and pays for
the creation of a work, and the hired party cannot prove that the parties explicitly agreed the
works would be treated as anything other than works made for hire. Playboy Enters., Inc. v.
Dumas, 53 F.3d 549, 554-55 (2d Cir. 1998). As the hiring party, Marvel need only show “some
credible evidence” that the Works were created at its instance and expense to be entitled to the
“almost irrebuttable presumption” that they are works made for hire and Marvel is the author.
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See Estate of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 158 (2d Cir. 2003)
(emphasis added); In re Marvel Entm’t Group, Inc., 254 B.R. 817, 828 (D. Del. 2000).
Marvel has more than met its threshold burden to establish the work-for-hire
presumption. Indeed, following exhaustive discovery, the record is all one way. Stan Lee, the
protagonist of and percipient witness to the creation of the Works, has given precisely detailed
testimony making clear that the Works were created at Marvel’s instance and expense:
• Marvel, through its publisher Martin Goodman and editor Lee, at all times maintained
and exercised authority to direct and control the Works’ creation. No work ever was
published without Lee’s and/or Goodman’s prior approval.
• Marvel assigned, and when necessary reassigned, artists and writers, including Kirby,
to work on particular stories and characters.
• To the extent artists, including Kirby, proposed new characters or story elements for
the comics to which they were assigned, they did so as part of their overall
relationship with Marvel, in carrying out assignments given by Lee.
• Lee had the authority to, and frequently did, require edits and revisions to Kirby’s
artwork submitted to Marvel for publication.
• Marvel, not Kirby, bore the financial risk of the success of the Works.
• Freelance artists for Marvel, including Kirby, were paid an agreed per-page rate for
all assigned work that they submitted to Marvel, including work that was not used,
and acknowledged on numerous occasions that their work was “work made for hire.”
Against the foregoing, Defendants have entirely failed to overcome the work-for-hire
presumption. To do so, Defendants must prove by a preponderance of the credible evidence that
there was an explicit agreement between Marvel and Kirby that the Works were not intended to
be works made for hire. Playboy Enters., 53 F.3d at 554-55. There indisputably was no such
agreement. To the contrary, the testimony of those with firsthand knowledge conclusively
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establishes that all of Kirby’s contributions to the Works were done at Marvel’s behest and
expense. Indeed, while generally uninformed on any specifics, Kirby’s own son Neal Kirby – a
Defendant in this action – testified unequivocally that “[his] father didn’t do work on spec.”
Lacking any other relevant admissible evidence, Defendants fall back on the testimony of
so-called comic book “historians,” who, without reviewing any of the testimony, make a vain
effort to transform multiple layers of hearsay into admissible evidence. But in the end, even they
concede the core elements of Marvel’s case – they admitted that Kirby never put pencil to paper
for a work published by Marvel without an express assignment to do so, that Marvel paid Kirby a
flat per-page rate, and that Marvel bore the financial risk associated with its comic books during
the relevant time period.
This is an easy case for summary judgment. The proof is undisputed and the law is
settled. The Works were made for hire and are therefore expressly exempt from the termination
provisions of section 304(c) of the Copyright Act of 1976. Defendants’ attempt to invoke that
provision to “recapture” Kirby’s alleged rights to the Works falls flat, as section 304(c) has no
application here. There are simply no rights for Defendants to recapture, and the Termination
Notices are invalid. Hence, Marvel and Disney are entitled to judgment as a matter of law on
both Marvel’s own claim for declaratory judgment and Defendants’ sole remaining counterclaim.
UNDISPUTED MATERIAL FACTS
Goodman, Marvel’s Publisher And Owner, Had The Right And Authority To
Control Marvel’s Creations And Bore The Financial Risk Associated With Its
Comic Book Business
Marvel owner and publisher Martin Goodman and editor Stan Lee oversaw and
controlled the creation of Marvel’s comic books from conception through publication throughout
the period 1958 through 1963 (the “Time Period”). See Marvel’s Local Rule 56.1 Statement
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(“56.1 Stmt.”) ¶¶ 14-15, 22-27, 30-32, 34. As publisher, Goodman was the “ultimate boss” and
no Marvel comic book story, character or series was published without his approval. See id. ¶¶
15-16. He often directed that comic books with a specific idea or theme be created. See id. ¶¶
80, 97, 105; see also id. ¶ 15. For example, The Fantastic Four was created because Goodman
instructed Lee to create a team of superheroes to compete with National Comics’s popular
Justice League of America series, id. ¶ 80, and Lee created The Rawhide Kid specifically because
“Goodman loved westerns.” Id. ¶ 105.
As the owner, Goodman had his money on the line when it came to Marvel’s comic
business, and he bore all the financial risk associated with each comic book Marvel published.
See id. ¶ 19. If a comic book did not sell well, Goodman bore the loss, id., and it was up to him
to decide whether to discontinue comic books that were not profitable. Id. ¶ 21. Still, Marvel
paid its artists and writers for all their assigned work when they submitted it – long before the
book went on sale – so artists were paid regardless of whether the comic book to which they had
contributed was a financial success. Id. ¶ 20.
Lee, Marvel’s Editor, Oversaw All Aspects Of, And Had The Right And Authority
To Control, Marvel’s Comic Book Creations
While Goodman oversaw the business at a high level, Lee supervised the day-to-day
comic book business. Lee was responsible, among other things, for overseeing the creative
direction and all other aspects of Marvel’s comic books, characters and stories. Id. ¶¶ 22-23, 27,
30-32, 34-35. One of Lee’s main responsibilities during the Time Period was to execute
Goodman’s ideas for comic books and to originate concepts himself. See id. ¶ 22. After
conceiving the characters and storyline to be featured in a particular comic book, he decided
which writer and artist to assign to write and draw it. See id. ¶¶ 24, 27. Prior to the Time Period,
writers composed a detailed script, complete with page breakdowns and panel-by-panel
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descriptions of the action and visuals, as well as full dialogue and captions. Id. ¶ 36. Lee wrote
most Marvel scripts; if he was not writing the book himself, Lee gave the assigned writer an
outline or synopsis of the plot. See id. The full script was provided to an artist, who created
pencil drawings based on the scenes and directions in the script. Id.
Marvel paid its freelance artists for each page that they submitted for publication, so
without an assignment from Lee, they had no work and received no pay. Id. ¶¶ 38, 45. As Lee’s
workload increased during the Time Period, he had less time to devote to writing full scripts.
See id. ¶ 38. As artists depended on assignments from Marvel to support themselves, Lee had to
find a way to keep the artists busy. To that end, he devised a new system for writing comic
books: instead of giving the artist a detailed panel-by-panel script, he gave the assigned artist a
written or oral plot synopsis directly in a “plotting conference.” Id. ¶ 37. Artists did not put
pencil to paper before they obtained the synopsis from Lee; it was only after the plotting
conference that the artist drew a complete comic book story based on Lee’s plot and instructions.
Id. ¶ 39. Once the artist’s pencil drawings were submitted, Lee wrote the captions and dialogue
for the story. See id. ¶¶ 37, 40. This process came to be known as the “Marvel Method.” Id. ¶
37.
Once the writing and artwork were finalized in pencil, a letterer lettered the captions and
dialogue and an inker went over the pencil drawings in ink. Id. ¶¶ 27-28. These pages were then
sent to an engraver, who reduced them to the proper size, and then a colorist colored the pages
and sent them to the printer. See id. ¶ 29. The printer set the printing schedule each month and
Marvel reserved time on the press in advance. Id. ¶ 26. Lee hired, supervised and coordinated
all of the people who contributed to the final published comic book and established deadlines for
each component to be sure that each book went out on schedule each month. Id. ¶¶ 26, 30. He
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sometimes reassigned artists and writers onto different projects when he felt it was necessary or
appropriate. Id. ¶ 25; see also id. ¶ 90. If deadlines were not met and a comic book was not
ready to be printed at the time reserved, Marvel bore the entire loss. Id. ¶ 26.
While the Marvel Method gave artists significant freedom to flesh out Lee’s plots, for all
of the work – including the addition of any new characters or storylines – Marvel maintained
control. See id. ¶¶ 40-43. Thus, Lee reviewed all artwork, including covers, during the Time
Period. Id. ¶¶ 27, 30, 32-35, 40, 43. He decided what artwork would be published, what artwork
would be revised, and what artwork would be reassigned to a different artist. Id. ¶¶ 25, 30, 32-
33, 35, 40, 43; see also id. ¶¶ 83, 87. Likewise, Lee also had the final say on plot and dialogue
and he sometimes changed those elements as well. Id. ¶¶ 31, 37, 40; see also id. ¶ 66. He
routinely ignored the dialogue that artists, including Kirby, suggested. Id. ¶¶ 31, 63. New
material that an artist introduced was understood to be part of the assignment, and Lee and
Goodman determined whether it would find its way into a published Marvel comic book. Id. ¶¶
40-42, 57; see also id. ¶ 107.
If any disagreement arose between Kirby (or any other artist) and Lee, Lee always had
the last word. Id. ¶¶ 56, 66; see also id. ¶ 23. Marvel never published any material unless Lee
approved it. Id. ¶ 30.
Payment To Freelance Artists For Work Contributed To Marvel’s Comic Books
Marvel did not pay artists royalties, and did not purchase artwork on spec. Id. ¶¶ 46, 49.
Rather, Marvel paid artists, including Kirby, an agreed-upon flat rate per page for the assigned
work that they submitted, regardless of whether Lee required changes to the artwork prior to
publication, and even if Marvel did not ultimately publish it. Id. ¶¶ 45, 47-48, 61-62. While no
payroll checks from the Time Period have survived, Marvel’s witnesses uniformly testified that,
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based in part on legends on the backs of paychecks, they understood that Marvel owned all of the
rights in work they submitted to Marvel during the 1950s and 1960s. See id. ¶ 50-53.
Kirby’s Work Was Subject To Marvel’s Authority And Control
Artist Jack Kirby contributed to Marvel’s comic books at various times from around 1940
until his death in 1994. See id. ¶¶ 2-4. Lee assigned Kirby to draw original artwork for various
of the Works, including the now iconic Thor, The Fantastic Four, The Incredible Hulk, The X-
Men, and The Avengers. Id. ¶¶ 3, 82, 85, 88, 97, 99, 101, 103, 105. Marvel paid Kirby an
agreed per-page rate for the work he submitted for publication, like Marvel’s other freelance
artists. Id. ¶ 62. As his son Neal conceded, Kirby did not work on any artwork for a Marvel
comic book during the Time Period before getting the assignment from Lee; Kirby simply
“didn’t do work on spec.” Deposition of Neal Kirby (“N. Kirby Dep.”) at 127:25-128:5; 56.1
Stmt. ¶¶ 64, 115.
Before Kirby put pencil to paper, Lee provided him with either a written or oral plot
synopsis during a plotting conference, or a detailed panel-by-panel script. E.g., 56.1 Stmt. ¶¶ 54-
55, 64, 115. For example, Kirby drew the first issue of The Fantastic Four based on Lee’s
written synopsis, and Kirby drew the first stories to feature Thor and Ant-Man based on a
detailed script written by Larry Lieber based on Lee’s plot synopsis. Id. ¶¶ 82, 88, 101. During
the Time Period, Lee often directed that changes be made to Kirby’s artwork, and he asked Kirby
himself to make changes to other artists’ pages on occasion. See id. ¶¶ 58-60. Kirby never
refused to make the requested changes. Id. ¶ 59.
In some cases, Lee determined that Kirby was not the right artist for the job. For
instance, although Lee initially assigned Kirby to draw the first Spider-Man story, when Kirby’s
sketches did not fit Lee’s vision for the hero and his alter-ego, Lee replaced Kirby with artist
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Steve Ditko, whose artwork was used for the first Spider-Man story. Id. ¶¶ 90-91. Kirby was,
nonetheless, paid his customary per-page rate for the pages he had submitted, as was Marvel’s
policy during the Time Period. Id. ¶¶ 47, 61, 90. For the first comic book to feature Iron Man,
Lee decided from the outset to assign another artist, Don Heck, to draw the story from a script
written by Lieber based on a plot provided by Lee. See id. ¶¶ 94-95. Lee did, however, assign
Kirby to draw the cover of the first Iron Man story. Id. ¶ 95.
Kirby And Other Marvel Freelancers Have Acknowledged Their Work Is Work
Made For Hire
Marvel artists and writers, including Kirby, expressly acknowledged that their
contributions to Marvel comic books were works made for hire. See id. ¶¶ 50-53, 68-75; see
also id. ¶¶ 66-67. For example, Lee, who was paid as a freelancer for the writing he did over and
above his editorial duties, has signed numerous agreements and sworn statements stating that his
work for Marvel – including the Works – was all work made for hire. See id. ¶¶ 17-18, 50, 53,
79. Likewise, artists John Romita and Gene Colan and writers Larry Lieber and Roy Thomas all
acknowledged that they retained no rights in the works they created for Marvel during the 1950s
and 1960s, as they were works made for hire owned by Marvel. See id. ¶¶ 51-53.
Kirby himself signed numerous agreements and sworn statements acknowledging that he
understood his contributions to Marvel publications were works made for hire. Id. ¶¶ 68-75.
Among these was an agreement dated May 30, 1972 (the “1972 Agreement”), in which “Kirby
acknowledges and agrees that all his work on the [Works], and all his work which created or
related to the RIGHTS, was done as an employee for hire” of Marvel. Id. ¶¶ 10, 71. There is no
record evidence that Kirby ever sought to register the copyright in any of the Works in his own
name, id. ¶ 12, and in the late 1960s, he even signed copyright renewal applications for certain
Captain America comic books (not at issue here but to which he also was a contributor) in which
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Marvel claimed a renewal copyright as a “[p]roprietor of copyright in a work made for hire.” Id.
¶ 70. Indeed, on a number of occasions, Kirby and those acting on his behalf acknowledged that
his belief that he was not given proper credit for his contributions “ha[d] nothing to do with
copyright ownership.” Id. ¶ 76; see also id. ¶¶ 77-78.
The Termination Notices And Copyright Ownership In The Works
Marvel registered the copyrights in the Works for both the initial and renewal periods in
its own name. See id. ¶ 12. In 2009, just two weeks after Disney announced its plan to purchase
Marvel (but before the transaction closed), Defendants served the Termination Notices on
Marvel, Disney and various other entities. Id. ¶¶ 6-7. The Termination Notices claim to exercise
a right under section 304(c) of the Copyright Act of 1976 to terminate an alleged assignment
from Kirby to Marvel of the copyright in the Works. Id. ¶¶ 7-9, 11. They purport to take effect
automatically to divest Marvel of certain rights beginning in 2014. Id. ¶ 11.
ARGUMENT
I. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
At summary judgment, “[t]he time has come . . . to put up or shut up.” Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (internal quotations and citation omitted). After
nine months of discovery, Defendants have failed to “put up”; they have not identified a single
relevant fact, let alone the preponderance of the evidence required, that might rebut the “almost
irrebuttable presumption” that Marvel was the sole copyright owner in the Works. A party is
entitled to summary judgment when the pleadings and admissible evidence show that there is “no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A party opposing summary judgment must show sufficient evidence upon which a reasonable
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factfinder could return a verdict in its favor. E.g., Ocean Group LLC v. Marcal Mfg., LLC, No.
09 Civ. 7679 (CM), 2010 WL 4963155, at *10 (S.D.N.Y. Dec. 2, 2010) (McMahon, J.).
“Statements that are devoid of specifics, but replete with conclusions, are insufficient to defeat a
properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435,
452 (2d Cir. 1999).
II. THE UNDISPUTED RECORD EVIDENCE DEMONSTRATES THAT THE

WORKS AT ISSUE WERE WORKS MADE FOR HIRE UNDER THE 1909
COPYRIGHT ACT
A. There Is No Termination Right For Works Made For Hire Under The 1909
Copyright Act.
The Copyright Act of 1909 and case law construing it govern whether the Works were
made for hire because the Works were published prior to the January 1, 1978 effective date of
the Copyright Act of 1976 (the “1976 Act”). See, e.g., Playboy Enters., 53 F.3d at 553.
Defendants rely on a provision of the 1976 Act that entitles the author of a work governed by the
1909 Act (or after his death, prescribed other family members or legal representatives) to
terminate a prior copyright assignment or license after a certain time period. Critically, this
provision is expressly inapplicable to works made for hire under the 1909 Act: “In the case of
any copyright subsisting in either its first or renewal term on January 1, 1978, other than a
copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of
the renewal copyright or any right under it . . . is subject to termination.” 17 U.S.C. § 304(c)
(emphasis added). The 1909 Act did not itself define the term “work made for hire”; it merely
stated that “[t]he word ‘author’ shall include an employer in the case of works made for hire.”
17 U.S.C. § 26 (repealed).
Works made for hire are not subject to the section 304(c) termination provisions because
the copyright in such works “never belonged to the artist in the first instance to grant; instead, it
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belonged at the outset to the party that commissioned the work.” Siegel v. Warner Bros. Entm’t
Inc., 658 F. Supp. 2d 1036, 1056 (C.D. Cal. 2009). Thus, a creator’s purported grant of the
copyright in a work made for hire is “merely a superfluous act that did not alter the pre-existing
ownership rights to that copyright.” Id.
B. Marvel Is Entitled To The Almost Irrebuttable Presumption That The Works

Are Works Made For Hire.
Courts in the Second Circuit use the “instance and expense” test to determine if a work
governed by the 1909 Act is a work made for hire, and it is well established that the test applies
equally to independent contractors and to traditional employees. See, e.g., Martha Graham Sch.
& Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 380 F.3d 624, 634-
35 (2d Cir. 2004); Hogarth, 342 F.3d at 159-63; Playboy Enters., 53 F.3d at 554. The test is met
“when the motivating factor in producing the work was the employer who induced the creation.”
Playboy Enters., 53 F.3d at 554 (quoting Siegel v. Nat’l Periodical Publ’ns, 508 F.2d 909, 914
(2d Cir. 1974)); see also Fifty-Six Hope Road Music Ltd. v. UMG Recordings, Inc., No. 08 CIV.
6143 (DLC), 2010 WL 3564258, at *8 (S.D.N.Y. Sept. 10, 2010) (instance and expense test met
when “the employer induces the creation of the work and has the right to direct and supervise the
manner in which the work is carried out”).
The hiring party – here, Marvel – must proffer “some credible evidence” that the works at
issue were created at its instance and expense to be entitled to the “almost irrebuttable
presumption” that those works were created as works made for hire. See Dolman v. Agee, 157
F.3d 708, 712 (9th Cir. 1998); In re Marvel, 254 B.R. at 828; see also Hogarth, 342 F.3d at 158;
Fifty-Six Hope Road Music Ltd., 2010 WL 3564258 at *8; cf. Easter Seal Soc’y for Crippled
Children & Adults of La., Inc. v. Playboy Enters., 815 F.2d 323, 327-28 (5th Cir. 1987). To
overcome this presumption, Defendants must prove by the preponderance of the credible
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evidence the existence of an express written or oral agreement between Marvel and Kirby
evidencing their mutual intent that the Works would not be works made for hire. See Playboy
Enters., 53 F.3d at 554-55; Fifty-Six Hope Road Music Ltd., 2010 WL 3564258 at *8; see also
Twentieth Century Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869, 881 (9th Cir. 2005) (“The
presumption may be rebutted only by evidence that the parties did not intend to create a work-
for-hire.”); Murray v. Gelderman, 566 F.2d 1307, 1309 (5th Cir. 1978). Here, the undisputed
facts establish that Marvel has more than discharged its evidentiary burden; Defendants have
adduced no admissible evidence – let alone a preponderance of such evidence – to rebut the
work-for-hire presumption.
C. The Undisputed Record Evidence Establishes That The Works Were Created At
Marvel’s Instance.
1. Marvel Induced The Creation Of The Works And Maintained The Authority To
Direct And Supervise Their Creation
The undisputed record necessitates the conclusion that all of the Works were created at
Marvel’s instance. Under controlling Second Circuit precedent, the essential element in
determining whether a work was created at the hiring party’s instance under the 1909 Act is that
party’s right to direct and supervise the manner in which the work is performed. E.g., Playboy
Enters., 53 F.3d at 554; see also Martha Graham Sch. & Dance Found., Inc., 380 F.3d at 635.
The hiring party need not actually exercise this right; rather, the core consideration is whether the
hiring party had the authority to do so. See, e.g., Martha Graham Sch. & Dance Found., Inc.,
380 F.3d at 635 (citing Scherr v. Universal Match Corp., 417 F.2d 497, 500-01 (2d Cir. 1969));
Playboy Enters., 53 F.3d at 554 (“[T]he hallmark of an ‘employment for hire’ is whether the
employer could have exercised the requisite power to control or supervise the creator’s work.”)
(emphasis added; citation omitted); Murray, 566 F.2d at 1310 (“Actual exercise of that right is
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not controlling, and copyright is vested in the employer who has no intention of overseeing the
detailed activity of any employee hired for the very purpose of producing the material.”) (citing
Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939)). At bottom, where a hiring party
“took the initiative in engaging” the artist and “had the power to accept, reject, or modify [his]
work,” then the work is created at its instance. Estate of Hogarth v. Edgar Rice Burroughs, Inc.,
00 Civ. 9569 (DLC), 2002 WL 398696, at *18 (S.D.N.Y. Mar. 15, 2002) (quoting Picture Music,
Inc. v. Bourne, Inc., 457 F.2d 1213, 1217 (2d Cir. 1972)), aff’d, 342 F.3d 149 (2d Cir. 2003).
Here, it is beyond dispute that Marvel, through Goodman and Lee, took the initiative to
engage the artists needed to create all of the Works, and retained the authority to supervise and
control all aspects of their contributions and the ultimate publication. 56.1 Stmt. ¶¶ 15-16, 22-
24, 26-27, 30-31, 34-35, 56. Marvel repeatedly exercised this authority by directing changes,
reassigning artists and even canceling certain comic books. Id. ¶¶ 15-16, 21, 25, 32-35, 58-60;
see also id. ¶¶ 83, 87, 90. Lee testified that he assigned an artist – in many cases, Kirby – to
draw the Works after he had either described the premise in a plot outline or plotting conference
or provided them with a detailed script. See id. ¶¶ 36-37, 39, 54, 82, 85, 88, 94-95, 97, 99, 101.
Lee’s testimony is corroborated both by contemporaneous accounts and documentary evidence
like his two-page synopsis of the first issue of The Fantastic Four. See Declaration of Randi W.
Singer, dated February 18, 2011 (“Singer Decl.”) Exhibits 11, 27, and 30. Lee’s testimony also
is consistent with that of others who worked for Marvel during the late 1950s and 1960s,
including writer Larry Lieber, artist John Romita and writer-turned-editor Roy Thomas, see 56.1
Stmt. ¶¶ 37, 39, 54, 88, 94-95, 101.
Marvel’s assignment process alone is sufficient support for a finding that the Works were
created at its instance. See In re Marvel, 254 B.R. at 830 (finding where hiring party “gives an
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artist specific assignments or asks the artist to create particular works, the artist works at the
employer’s instance”) (citing Playboy Enters., 53 F.3d at 556). Yet, the evidence that the Works
were made at Marvel’s behest goes even further. Lee supervised the creation of Marvel’s comic
books generally, and the Works in particular, from conception to publication. He engaged and
supervised all contributors to the comic books – including pencil artists like Kirby as well as
writers, letterers, inkers and colorists – and ensured that all the components of the books were
completed by specific deadlines. See 56.1 Stmt. ¶¶ 24, 26-27, 30. Lee also reviewed all artwork
that was submitted and no artwork was published unless it met with his approval. See id. ¶¶ 27,
30, 32-35, 40, 43. Even after he gave an assignment to an artist, Lee had the authority to, and
occasionally did, reassign the artist to a different project. Id. ¶ 25. No clearer example exists
than the origin of Spider-Man. There, Lee was displeased with Kirby’s initial drawings of
Spider-Man, so he paid Kirby for his work and reassigned it to artist Steve Ditko, who then drew
the entire issue based on Lee’s vision for the character. Id. ¶ 90.
Finally, the undisputed evidence shows that Kirby was paid for assigned artwork that he
submitted to Marvel, regardless of whether it was edited and even if it was not published. See id.
¶¶ 61, 90; see also id. ¶¶ 47-48. This factor not only satisfies the expense test, below, but also
weighs heavily in favor of a finding that Marvel was the motivating factor in the creation of the
Works to which Kirby contributed. See Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 715
(S.D.N.Y. 1997).
2. Artistic Freedom Is Irrelevant To Whether The Works Were Created At

Marvel’s Instance
The Court need not assess of the degree of Kirby’s creative contribution to a Work, or the
leeway he may have been afforded in carrying out his assignments in determining whether it was
created as a work for hire. The undisputed record is clear that Kirby did not work on an
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assignment from Marvel until after he received Lee’s instructions and guidance, and that Lee,
Goodman and Marvel had control over whether and in what form to use Kirby’s work product.
See 56.1 Stmt ¶¶ 55, 58-60, 63-64, 90; see also id. ¶ 42. Ultimately, as one of the Defendants
himself has conceded, Kirby never did any artwork for Marvel without Marvel’s prior approval
and an assignment from Lee because he “didn’t do work on spec.” N. Kirby Dep. 127:25-128:5;
see also 56.1 Stmt. ¶¶ 64, 115; see also id. ¶ 46. As has been judicially recognized, “[w]here an
independent contractor would not have created the work but for the hiring party’s assignment to
do so, then the work is made at the hiring party’s ‘instance.’” Hogarth, 2002 WL 398696 at *18.
Indeed, to permit an artist to defeat a finding that a work is made for hire because she had
artistic license over its creation “would permit an employee to circumvent the works for hire
doctrine simply by demanding creative freedom as a condition of employment.” Murray, 566
F.2d at 1311. Thus, when an employer gives an assignment, it “need not control or mandate the
content of an artist’s creation.” In re Marvel, 254 B.R. at 830 (finding characters and works
were created at Marvel’s instance where “Marvel asked [writer] to produce scripts and ideas for
specific comic book titles”) (citing Playboy Enters., 53 F.3d at 556). Since Marvel at all times
maintained the right to accept, reject or modify the Works, the degree of Kirby’s artistic freedom
is “legally irrelevant” to the work-for-hire analysis. See Fifty-Six Hope Road Music Ltd., 2010
WL 3564258 at *10 (“[T]hat Marley may have exercised artistic control over the recording
process, however, is legally irrelevant; what is dispositive is that Island [Records] had the
contractual right to accept, reject, modify and otherwise control the creation of the Sound
Recordings.”) (emphasis in original); Siegel, 658 F. Supp. 2d at 1068; Hogarth, 2002 WL
398696 at *19 (“[T]hat Hogarth, a master illustrator with extensive prior experience . . . was
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treated with deference and respect in the execution of the art is not sufficient to undercut the
strong evidence that the Books were made at ERB’s instance.”), id. at *22.
The cases make clear that the considerable artistic freedom Marvel granted Kirby does
not undercut the conclusion that the Works were created at Marvel’s instance. It is undisputed
that Kirby submitted all of his artwork pursuant to assignments and based on plots that he
discussed with Stan Lee before Kirby began to draw. 56.1 Stmt. ¶¶ 39-41, 54-55, 57, 64, 82, 85,
88, 90-91, 97, 99, 101, 103, 105. That Kirby may have, from time to time, created additional
characters or fleshed out plotlines in the course of executing an assignment makes no difference
here. These tasks were understood to be part of his assignment, and in all events were done to
further the story that Lee had assigned him. See id. ¶¶ 57, 107; see also id. ¶¶ 40-42; cf. In re
Marvel, 254 B.R. at 830 (finding work made for hire where, inter alia, Marvel expected writer to
produce fresh stories that would include new plots and characters). It is also undisputed that Lee
had the final word on the plot and dialogue of every Marvel comic book and he routinely ignored
any suggestions Kirby or other artists may have made. 56.1 Stmt. ¶¶ 31, 37, 40, 63, 66.
This case is readily distinguishable from several cases on which Defendants likely will
rely. In Siegel, for example, writer and artist Jerry Siegel and Joseph Shuster created the original
incarnation of the Superman character in the form of a comic strip “on spec” long before they
offered it to Detective Comics. It was also undisputed that Detective Comics had no
involvement whatsoever in the concept or creation of Superman and that the character “had been
spawned by the plaintiffs four years before the relationship between his authors and the
defendants existed.” Siegel, 508 F.2d at 914. In contrast, certain later Superman works were
found to be works made for hire, where, among other things, the works were not done on spec
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but rather pursuant to an engagement by the company, which maintained a level of control and
direction over their creation. See Siegel, 658 F. Supp. 2d at 1065-70, 1077-80.
D. The Undisputed Record Facts Establish That The Works Were Created At
Marvel’s Expense.
1. Kirby’s Flat-Rate Payment Is Indicative Of A Work-For-Hire Relationship
There can be no dispute that Kirby, like all of Marvel’s freelance artists and writers
during the Time Period, was paid a fixed per-page rate for assigned artwork that he submitted for
publication. See 56.1 Stmt. ¶¶ 45, 62; see also id. ¶¶ 18, 38, 49. This fact alone is sufficient to
satisfy the second prong of the Second Circuit’s instance and expense test. Playboy Enters., 53
F.3d at 555 (“The simple fact that Playboy paid Nagel a fixed [per-page] sum for each of the
works published in Playboy magazine is sufficient to meet the requirement that the works be
made at Playboy’s expense.”); Twentieth Century, 429 F.3d at 881 (expense prong satisfied
where, among other things, author was paid a lump sum instead of royalty); In re Marvel, 254
B.R. at 830 (finding comic book characters were created at Marvel’s expense where Marvel paid
writer flat fee per page of copy that writer provided). It is also undisputed that Marvel engaged
additional staff to work as inkers, letterers and colorists to complete comic books to which Kirby
contributed. See 56.1 Stmt. ¶¶ 24, 26-30. Thus, the Works were created at Marvel’s expense.
See Twentieth Century, 429 F.3d at 881 (finding book was created at publisher’s expense where,
inter alia, publisher “shouldered the expense for the entire staff who assisted” in its creation).
2. Marvel Bore All The Financial Risk Associated With The Works
Defendants cannot dispute that Marvel and its publisher Martin Goodman bore the entire
financial risk associated with the creation of the Works. See, e.g., id. (book made at publisher’s
expense where, among other things, publisher “took on all the financial risk of the book’s
success”); Hogarth, 2002 WL 398696 at *20 (expense prong met where employer took “full
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assumption of the risk of loss on the project”). As even Defendants’ purported expert has
conceded, Goodman’s money was on the line at every step of the process. See 56.1 Stmt. ¶¶ 19-
21; see December 6, 2010 Deposition of Mark Evanier (“Evanier Dep. (12/6/10)”), attached as
Exhibit 9 of the Singer Decl., at 40:7-18; 148:12-149:16. Marvel scheduled press time in
advance, and if the book could not go to press on time, Marvel bore the costs of the delay. See
56.1 Stmt. ¶ 26. Moreover, if a book or series was not successful, Goodman and Marvel lost
money, but it still paid the artists and writers who contributed to it in full. See id. ¶¶ 19-20.
That Kirby worked from his home or bought his own art supplies is irrelevant and cannot
serve to create a genuine issue of material fact. The case law applying the work-for-hire doctrine
under the 1909 Act is clear that such factors are relevant only to the question of whether the
commissioned party was an independent contractor and not a formal employee, and “have no
bearing on whether the work was made at the hiring party’s expense.” Playboy Enters., 53 F.3d
at 555; Hogarth, 2002 WL 398696, at *20; see also Siegel, 658 F. Supp. 2d at 1058; Siegel v.
Time Warner Inc., 496 F. Supp. 2d 1111, 1138 (C.D. Cal. 2007).
III. THE RECORD IS UTTERLY DEVOID OF ANY FACTS FROM WHICH

DEFENDANTS COULD CARRY THEIR BURDEN TO REBUT THE
PRESUMPTION THAT THE WORKS ARE WORKS MADE FOR HIRE
In light of the overwhelming and undisputed evidence that the Works were created at
Marvel’s instance and expense, the burden shifts to Defendants to rebut the almost irrebuttable
presumption that they are works made for hire. Defendants must come forward and prove by a
preponderance of the credible evidence that Marvel and Kirby both intended that the Works
would not be works made for hire and that there was an explicit agreement that the copyrights
were to vest with Kirby. See Playboy Enters., 53 F.3d at 554-55; Fifty-Six Hope Road Music
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Ltd., 2010 WL 3564258 at *8. No such evidence exists because no such agreement was ever
made.
A. Defendants Have Not Produced A Single Witness With Personal Knowledge Or

Any Admissible Evidence.
All of Defendants’ witnesses have admitted that they lack any personal knowledge
regarding the specific circumstances under which the Works were created. See 56.1 Stmt. ¶¶
118-133. Thus, none of the Defendants was present during any meeting between Kirby and Lee
and none has personal knowledge of Lee’s assignments and guidance to Kirby for particular
comic books. See id. ¶¶ 113-115; see also id. ¶¶ 119-112. Neal Kirby, who was between ten and
fifteen years old during the Time Period, further conceded that he has no basis to dispute the fact
that Lee had the right to, and routinely did, disregard any margin notes that Kirby submitted with
his artwork. Id. ¶¶ 110, 116.
Additionally, there is no credible evidence – let alone a preponderance of the evidence –
of an explicit agreement that the copyrights to the Works would vest with Kirby. Defendants’
reference to the alleged assignment language in the 1972 Agreement is legally insufficient,
especially in the face of Marvel’s overwhelming evidence that the Works were created at its
instance and expense. Such purported language of assignment, by itself, cannot rebut the work-
for-hire presumption. See Fifty-Six Hope Road Music Ltd., 2010 WL 3564258, at *11 (finding,
in granting summary judgment for hiring party, that language that “assigns” or “licenses” rights
to hiring company was not dispositive of work-for-hire issue; noting that “the Second Circuit has
held that a work was ‘made for hire’ under the 1909 Act despite the absence of such magic
words in the contract”); see also, e.g., Twentieth Century, 429 F.3d at 881 (contract with
assignment language was insufficient to rebut work-for-hire presumption “without any evidence
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as to the circumstances or intendment of its execution”); Playboy Enters., 53 F.3d at 557;
Hogarth, 2002 WL 398696 at *23.
Further, despite exhaustive discovery, Defendants failed to muster even a single fact to
show the “circumstances or intendment of [the] execution” of the 1972 Agreement, let alone the
parties’ supposed mutual intent to vest Kirby with the copyright in the Works. See Twentieth
Century, 429 F.3d at 881. Indeed, the language of the 1972 Agreement itself belies Defendants’
argument, as it reflects Kirby’s clear “acknowledge[ment] and agree[ment] that all his works on
the MATERIALS, and all his work which was created or related to the RIGHTS” that were
subject to the Agreement “was done as an employee for hire of” Marvel and his agreement not to
contest the validity of Marvel’s rights in any of the subject works. 56.1 Stmt. ¶¶ 10, 71.
B. Defendants’ So-Called Experts Fail To Raise Any Genuine Issue Of Material

Fact.
As detailed in Marvel’s accompanying Motions to Exclude, the so-called “expert”
opinions of self-styled comic book historians Mark Evanier and John Morrow seek only to
introduce inadmissible hearsay and epitomize the type of unreliable and inadmissible testimony
that the Federal Rules of Evidence mandate be excluded. See, e.g., Fed. R. Evid. 702. Evanier
and Morrow each admitted a lack of any personal knowledge of the facts surrounding the
creation of the Works. See Evanier Dep. (12/6/10) at 231:10-12; January 10, 2011 Deposition of
John Morrow (“Morrow Dep.”), attached as Exhibit 10 of the Singer Decl., at 13:20-21. More
importantly, however, both Evanier and Morrow agree with Marvel on all of the material facts.
Evanier explicitly admitted that:
• As publisher, Goodman had the final say as to what Marvel published and bore the
financial risk of the success of Marvel’s comic books (Evanier Dep. (12/6/10) at 40:7-
41:3, 41:6-42:13, 100:4-21, 104:20-105:5, 148:12-23, 149:10-24);
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• Lee decided which artist would work on a particular comic book, had the authority to
accept, reject or require revisions to artwork, and Kirby did not begin to draw until after
he discussed the idea and plot with Lee (id. at 105:6-14, 105:18-23, 106:5-7, 155:15-20,
225:5-8; November 9, 2010 Deposition of Mark Evanier (“Evanier Dep. (11/9/10)”),
attached as Exhibit 8 of the Singer Decl., at 59:22-60:4, 60:23-61:8, 61:20-23, 91:15-18,
92:22-93:4);
• Kirby was paid for all artwork that he submitted to Marvel for publication that Marvel
accepted, even if that artwork was never actually published (Evanier Dep. (12/6/10) at
138:19-22; Evanier Dep. (11/9/10) at 61:24-62:1, 62:10-24);
• During the Time Period, freelance artists for major comic book publishers did not receive
royalties for their works and were paid a fixed per-page rate (Evanier Dep. (11/9/10) at
164:18-165:18, 165:21-166:11);
• The Fantastic Four was created because of Goodman’s instruction to create a team of
superheroes (id. at 87:21-88:4); and
• Lee reassigned the first Spider-Man comic book from Kirby to Steve Ditko when he was
not satisfied with Kirby’s work (see id. at 133:13-20; see also id. at 132:22-133:7).
Similarly, Morrow acknowledged that:
• As publisher, Goodman decided the type of stories Marvel would publish and “handled
all the money” related to Marvel’s comic business (Morrow Dep. at 149:4-18);
• Lee had the authority to reassign artists to different projects (see id. at 57:14-58:6);
• During the Time Period, some of Marvel’s comic books were created using the
conventional process of assigning an artist to draw based on a detailed script, while
others were created using the “Marvel Method,” under which the assigned artist would
draw the artwork based on a discussion with the writer regarding the basic plot (id. at
59:2-23, 60:5-61:20); and
• Lee maintained the authority to – and frequently did – make changes to Kirby’s artwork
and altered scripts and concepts as part of the normal editorial process; Kirby never
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refused to make any such changes and “generally did what the editor told him” (id. at
205:13-19, 206:5-207:10, 264:11-18).
Accordingly, even if the Court were to accept the improper testimony of Evanier and/or Morrow,
there is no genuine issue of fact as to any element relevant to the work-for-hire inquiry.
C. Kirby Acknowledged Marvel’s Direction And Control.
The evidence in this case that the Works were created at Marvel’s instance and expense is
further corroborated in statements Kirby himself made acknowledging Marvel’s authority to
direct and control his work. See 56.1 Stmt. ¶¶ 66-75. In interviews, Kirby expressly
acknowledged that Lee, as editor, “always ha[d] the last word” on the creative direction of
Marvel’s comic books. Id. ¶ 66; see also id. ¶ 67. Kirby and those acting on his behalf also
stated on numerous occasions that his grievance with Marvel over whether he was afforded
sufficient credit for his involvement in the Works had “nothing to do with copyright ownership.”
Id. ¶¶ 76-78. Indeed, in both sworn statements and multiple agreements with Marvel over the
course of some 25 years, Kirby acknowledged that all of Marvel’s works to which he contributed
were created as works made for hire. Id. ¶¶ 68-75; cf. id. ¶¶ 17, 50-53, 79.
Finally, a determination that the Works were made for hire is consistent with the fact that
Marvel filed both the initial and renewal copyright registrations for the Works in its name, and
that no record evidence shows that Kirby ever sought to register the copyrights in the Works in
his own name. See id. ¶ 12. Kirby even signed copyright renewal applications for certain
Captain America comic books (not at issue in this case) in which Marvel claimed a renewal
copyright as a “[p]roprietor of copyright in a work made for hire.” See id. ¶ 70. These
certificates of registration “constitute[] prima facie evidence of the validity of the copyright and
of the facts stated in the certificate.” 17 U.S.C. § 410(c); see also Fifty-Six Hope Road Music
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Ltd., 2010 WL 3564258 at *9 & n.13 (finding copyright registrations in company’s name were
consistent with circumstances showing songs were created as works made for hire).
CONCLUSION
Defendants have not (and cannot) come forward with any evidence – let alone a
preponderance of the evidence – to attempt to rebut the presumption that the Works were created
at Marvel’s instance and expense as works made for hire. Consequently, Marvel is entitled to
judgment as a matter of law that the Termination Notices are invalid and of no force or effect.
For all the foregoing reasons, summary judgment should be entered in favor of Marvel on its sole
cause of action of its Complaint, and in favor of Marvel and Disney on Defendants’ sole
remaining counterclaim.

James W. Quinn
R. Bruce Rich
Randi W. Singer
Sabrina A. Perelman
767 Fifth Avenue
New York, NY 10153
Tel: (212) 310-8000
Fax: (212) 310-8007

Jodi A. Kleinick
75 East 55th Street
New York, NY 10022
Tel: (212) 318-6000

David Fleischer
New York, NY 10112
Tel: (212) 659-7300
Attorneys for Plaintiffs/Counterclaim-Defendants
23
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------ ----------------------------------- ----- ----x

MVL RIGHTS, LLC,
Plaintiffs,
- against-

Defendants.
x Civil Action No. 10 Civ. 141 (CM) (KNF)

Counterclaimants,
- against-
MARVEL ENTERTAINMENT, INC.,

MARVEL CHARACTERS, INC.,
MVL RIGHTS, LLC,
THE WALT DISNEY COMPANY,
and DOES 1 through 10,
Counterclaim-Defendants.
x
DECLARATION OF RANDI W. SINGER IN SUPPORT OF PLAINTIFFS' AND

COUNTERCLAIM-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I, Randi W. Singer, declare under penalty of perjury as follows:
1 I am a partner of Weil, Gotshal & Manges LLP and am duly admitted to practice
in the State of New York and before this Court. Together with the law firms Paul, Hastings,
Janofsky & Walker LLP and Haynes and Boone, LLP, I am counsel to Plaintiffs and
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Counterclaim-Defendants Marvel Worldwide, Inc., Marvel ( liaracters, Inc., MVL Rights, LLC,
Marvel Entertainment, LLC (sued herein as Marvel Entertainment, Inc.) (collectively as
"Marve) - ) and The Walt Disney Company in this action.
2. Annexed hereto as Exhibit 1 is a true and correct copy of excerpts from the
Deposition of Stan Lee conducted on May 13, 2010 and December 8, 2010 that are cited in the
accompanying Memorandum of Law in Support of Plaintiffs' and Counterclaim-Defendants'
Motion for Summary Judgment and Local Rule 56.1 Statement.
Annexed hereto as Exhibit 2 is a true and correct copy of excerpts from the
Deposition ofJohn V. Romita conducted on October 21, 2010 that are cited in the accompanying
Memorandum of Law in Support of Plaintiffs' and Counterclaim-Defendants' Motion for
Summary Judgment and Local Rule 56.1 Statement.
Deposition of Roy Thomas conducted on October 26 and 27, 2010 that are cited in the
Deposition of Lawrence Lieber conducted on January 7, 2011 that are cited in the accompanying
Deposition of Neal Kirby conducted on June 30, 2010 that are cited in the accompanying
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7. Annexed hereto as 1:\hibit 6 is a true and correct copy of excerpts from the
Deposition of Lisa Kirby conducted on July 1, 2010 that are cited in the accompanying
Summary Jud& ent and Local Rule 56.1 Statement.
Deposition of Susan Kirby conducted on October 25, 2010 that are cited in the accompanying
Deposition of Mark Evanier conducted on November 9, 2010 that are cited in the accompanying
Deposition of Mark Evanier conducted on December 6, 2010 that are cited in the accompanying
Expert Deposition ofJohn Morrow conducted on January 10, 2011 that are cited in the
12. Annexed hereto as Exhibit 11 is a true and correct copy of a disc containing audio
and video clips of interview with Stan Lee, which was marked as Exhibit #9 at the Deposition of
Stan Lee conducted on May 13, 2010.
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13. Annexed hereto as Exhibit 12 is a true and correct copy of De lendants' Answer
and Counterclaims dated April 28, 2010.
14. Annexed hereto as Exhibit 13 is a true and correct copy of the Complaint
initiating this action dated January 8, 2010.
15. Annexed hereto as Exhibit 14 is a true and correct copy of the document produced
by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan N. Kirby ("Defendants") as part of
discovery in this proceeding and identified by the bates number K001616 containing the
Certificate of Death of Rosalind Kirby issued on December 30, 1997.
16. Annexed hereto as Exhibit 15 is a true and correct copy of a press release issued
by The Walt Disney Company on August 31, 2009 entitled "Disney to Acquire Marvel
Entertainment."
17. Annexed hereto as Exhibit 16 is a true and correct copy of the forty-five (45)
termination notices served by Defendants in September 2009 on Marvel, Disney and various
other entities.
by Marvel as part of discovery in this proceeding and identified by the bates numbers
MARVEL0014572-576 containing an agreement between Jack Kirby and Magazine
Management Co., Inc., executed by Kirby on May 30, 1972.
MARVEL0017520-535 containing a transcript of Leonard Pitts's 1981 interview with Stan Lee
printed in Stan Lee Conversations (Jeff McLaughlin, ed., University of Mississippi Press, 2007).
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?0. Annexed hereto as Exhibit 19 is a true and correct copy of the document produced
by Marvel as part of discovery in this proceeding and identi lied by the bates numbers
MARVEL0014175-178 containing an Employment Agreement between Stan Lee and Cadence
Industries Corporation dated January 19, 1972.
Industries Corporation dated April 9, 1976.
h urvo| as part of discovery in this proceeding and identified by the bates numbers
Industries Corporation dated April 1, 1980.
b arvo| as part of discovery in this proceeding and identified by the bates numbers
MARVEL0014778-779 containing an Employment Agreement between Stan Lee and Marvel
Entertainment Group, Inc. dated March 28, 1988.
Entertainment Group, Inc. dated December 22, 1989.
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Entertainment Group, Inc. dated April 1, 1994.
Enterprises, Inc. dated November 1, 1998.
b urvc| as part of discovery in this proceeding and identified by the bates numbers
MARVEL0017333-362 containing a transcript of an August 6, 2007 interview with Lawrence
Lieber conducted by Daniel Best.
by Roy Thomas as part of discovery in this proceeding and identified by the bates numbers
THOM002629-630 containing a letter from Stan Lee to Jerry Bails dated January 9, 1963.
29. Annexed hereto as Exhibit 28 is a true and correct copy of an excerpt from the
document Kirby: King of Comics by Mark Evanier (Abrams, 2008), produced by Defendants as
part of discovery in this proceeding and identified by the bates numbers K00143—K00377.
b urvc| as part of discovery in this proceeding and identified by the bates numbers
MARVEL0018162-175 containing an interview with Lawrence Lieber conducted by Roy
Thomas entitled "Stan Made Up the Plot . . . And I'd Write the Script . . ." published in The Alter
Ego Collection, Vol. 1 (ed. Roy Thomas. TwoMorrows Publishing, 2006).
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MARVEL0014587-588 containing a two-page synopsis of the plo o the first issue of The
Fantastic Four.
32. Annexed hereto as Exhibit 31 is a true and correct copy of an inte iewith Stan
Lee conducted by Dan Hagen entitled - Publisher: Stan Lee" published in David Anthony Kraft's
Comics Interview #85 (1990) and marked as Exhibit #44 at the Deposition of Stan Lee conducted
on December 8, 2010.
MARVEL0017512-519 containing a transcription of audiotaped recorded responses to written
interviewquestions by Eric Leguebe recorded in 1978, printed in Stan Lee Conversations (Jeff
McLaughlin, ed., University of Mississippi Press, 2007).
34. Annexed hereto as Exhibit 33 are true and correct copies of the documents
produced b arvc| as part of discovery in this proceeding and identified by the bates numbers
MARVEL0017682, MARVEL0017689-695, MARVEL0017744-751, MARVEL0017799-807,
and MARVEL0017842-849 containing excerpts from Origins of Marvel Comics by Stan Lee
(Simon and Schuster, 1974).
35. Annexed hereto as Exhibit 34 is a true and correct copy of the Affidavit of Stan
Lee dated June 11, 2007 and marked as Exhibit #1 at the Deposition of Stan Lee conducted on
May 13, 2010.
MARVEL0005214-215 containing an agreement between Stan Lee and Marvel Entertainment,
Inc. dated March 7, 2006.
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by Marvel as part o f disco% cry in this proceeding and identi lied by the hates number
MARVEL0008187 containing a Work for Hire Agreement between John V. Romita and Marvel
Comics Group dated May 19, 1978.
h arYei as part of discovery in this proceeding and identified by the bates number
MARVEL0008220 containing a Work for Hire Agreement between Roy Thomas and Marvel
Comics Group dated June 1, 1978.
MARVEL0013504-505 containing a letter from Gene Colan to Marvel Comics Enterprises dated
April 28, 2008.
document The Art of Jack Kirby by Ray Wyman, Jr. (The Blue Rose Press, 1992) produced by
Marvel as part of discovery in this proceeding and identified by the bates numbers
MARVEL0018249-473.
41. Annexed hereto as Exhibit 40 is a true and correct copy of an article entitled
"Super-Heroes with Super Problems" by Nat Freedland, which was published in The New York
Herald Tribune, Sunday Magazine Section on January 9, 1966 and marked as Exhibit #3 at the
Deposition of Stan Lee conducted on May 13, 2010.
MARVEL0017206-236 containing an interview with Jack Kirby conducted by Gary Groth,
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originally published in The Comics Journal #134 (February 1990) and reprinted in The Comics
Journal Library: Jack Kirby (ed. ( ie( 2,C Mi lo, Fantagraphics Hooks. 2002).
document Jack Kirby Collector Fifty-Four (ed. John Morrow, TwoMorrows Publishing, 2010)
produced by Marvel as part of discovery in this proceeding and identified by the bates numbers
MARVEL0017916-999130.
MARVEL0017190-200 containing an interview with Kirby conducted by Mark Herbert,
originally published in The Nostalgia Journal issues #30 and #31 (November and December
1976) and reprinted in The Comics Journal Library: Jack Kirby (ed. George Milo, Fantagraphics
Books, 2002).
by Ma el as part of discovery in this proceeding and identified by the bates numbers
MARVEL0000350-360 containing an affidavit ofJack Kirby executed on July 12, 1966.
46. Annexed hereto as Exhibit 45 is true and correct copy of a compilation document
marked as Exhibit #11 at the Deposition of Neal Kirby conducted on June 30, 2010 which
contains Applications for Registration of a Claim to Renewal Copyright signed by Jack Kirby
and filed by Marvel Comics Group in the Copyright Office on December 16, 1968, December
19, 1968, February 26, 1969, April 4, 1969, April 24, 1969, May 12, 1969, July 14, 1969, and
September 11, 1969.
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MARVELOOl 4564-571 containing a Writers and Artists Agreement between Jack Kirby and
Marvel Comics Group dated March 24, 1975.
MARVEL0014558-559 containing an Acknowledgment of Copyright Ownership signed by Jack
Kirby and notarized on June 16, 1986.
MARVEL13634-644 containing the Artwork Release between Jack Kirby and Marvel Comics
Group dated June 16, 1987.
MARVEL0014560-561 containing a letter from Joseph Calamari to Jack Kirby, endorsed by
Jack Kirby, dated May 12, 1987.
MARVEL0013819-820 containing an article from Comic Buyer's Guide published on October 3,
1986 entitled "Response: Jack Kirby replies to Marvel Statement."
by Mark Evanier as part of discovery in this proceeding and identified by the bates numbers
ME0170-172 containing a letter from Stephen F. Rohde to Joseph Calamari dated November 19,
1997.
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MARVEL0017489-504 containing an interview with Stan Lee conducted by David Anthony
Kraft and originally published in room, Vol. 1, No. 17 (March 1977) reprinted in Stan Lee
Conversations (Jeff McI.aughlin, ed., University of Mississippi Press, 2007).
54. Annexed hereto as Exhibit 53 is a true and correct copy of an interview of Stan
Lee conducted by Clifford Meth and Daniel Dickholtz entitled "Stan Lee: It's a Marvelous Life:"
published in Comics Scene Special (1987) and marked as Exhibit #39 at the Deposition of Stan
Lee conducted on December 8, 2010.
55. Annexed hereto as Exhibit 54 is a true and correct copy of the Stipulation
Regarding Defendant Barbara J. Kirby dated December 22, 2010.
MARVEL0017406-407 containing the article "Who Created Spider-Man? [Kirby Lawsuitl" by
Al Nickerson published by Newstex on September 22, 2009.
MARVEL0017064-067 containing an excerpt from page 4 of "The JACK F.A.Q." section of
http://www.povon I ine.com/j ackfaci/JackFaql.htm.
MARVEL0017055-059 containing an excerpt from page 2 of "The JACK F.A.Q." section of
http://www.povonline.com/jackfaq/JackFacil.htm.
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Page 12 of 12
declaration was executed on the 18th day of February York rk.
Randi W. Singer
JA225
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)

Telephone: (310) 246-3333
Facsimile: (310) 246-3101
mtoberoff@ipwla.com

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

Kirby - Marvel Appellate Document Record Volume 1

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Case 11-3333, Document 72, 01/26/2012, 509508, Page1 of 247

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME I OF X

TOBEROFF & ASSOCIATES, P.C.

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME I OF X

TOBEROFF & ASSOCIATES, P.C.

JA Docket Date Description Pages

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SA Docket Date Description Pages

Marvel Worldwide, Inc. et al v. Kirby et al Date Filed: 01/08/2010

Jodi Aileen Kleinick

Randi Wolkenbreit Singer

Robert Bruce Rich

Jodi Aileen Kleinick

Randi Wolkenbreit Singer

Robert Bruce Rich

Jodi Aileen Kleinick

Randi Wolkenbreit Singer

Robert Bruce Rich

Jodi Aileen Kleinick

Jodi Aileen Kleinick

Jodi Aileen Kleinick

Jodi Aileen Kleinick

Jodi Aileen Kleinick

Date Filed # Docket Text

Motion to Dismiss. ENDORSEMENT: OK. (Signed by Judge Colleen McMahon

James) (Entered: 06/21/2010)

ENDORSEMENT: OK. So Ordered. (Signed by Judge Colleen McMahon on

Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, #

Kirby, Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, 18 Declaration in

UNITED STATES DISTRICT COURT.

MARVEL WORLDWIDE, INC.,

BACKGROUND AND NATURE OF ACTION

1. This case involves an invalid attempt, by means of termination notices

1963 to which Jack Kirby is claimed to have made contributions.

JURISDICTION AND VENUE

4. Venue is proper in this district pursuant to 28 U.S.C. § 139l(b) because a

published in this district.

5. MWI is a Delaware corporation maintaining its principal place of business

LEGAL_US_E# 86413174.1 -2-

6. MCI and MVL are Delaware corporations maintaining their principal

7. Defendants claim to be the children of Kirby on whose behalf the