Kirby - Marvel Appellate Document Record Volume 5

Case 11-3333, Document 76-1, 01/26/2012, 509515, Page1 of 129
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 V 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 V 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.
V 74-1 2/25/2011 Exhibit A – November 4, 2010 Expert 1088
Report of Mark Evanier
V 74-2 2/25/2011 Exhibit B – Excerpts from Kirby: King 1116
of Comics by Mark Evanier
V 74-3 2/25/2011 Exhibit C – 1972 “Jack Kirby’s Gods” 1125
Portfolio
V 74-4 2/25/2011 Exhibit D – 1969-1971 Presentation 1132
Pieces by Jack Kirby
V 75 2/25/2011 Declaration of John Morrow re: 1135
Defendants’ Motion for Summary
Judgment
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 1235
Singer re: Defendants’ Motion for
Summary Judgment
V 82-1 3/25/2011 Exhibit 58 – Excerpts from the October 1238
21, 2010 Deposition of John Romita
26 and October 27, 2010 Depositions of
Roy Thomas
V 82-3 3/25/2011 Exhibit 60 – Excerpts from the January 1249
7, 2011 Deposition of Lawrence Lieber
V 82-4 3/25/2011 Exhibit 61 – Excerpts from the June 30, 1252
2010 Deposition of Neal Kirby
i

Volume No.
25, 2010 Deposition of Susan Kirby
10, 2011 Deposition of John Morrow
V 83 3/25/2011 Opposition to Local Rule 56.1 1277
Statement re: Defendants’ Motion for
Summary Judgment
V 85 3/25/2011 Declaration of Marc Toberoff re: 1295
Plaintiffs’ Motion to Exclude the
Testimony of John Morrow
V 85-3 3/25/2011 Exhibit C – Excerpts from the January 1299
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
Testimony of Mark Evanier
V 87-3 3/25/2011 Exhibit C – Excerpt from Kirby: King 1323
V 87-5 3/25/2011 Exhibit E – Excerpts from the 1325
December 6, 2010 Deposition of Mark
Evanier
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
ii

Volume No.
Plaintiffs’ Motion for Summary
Judgment
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
Motion for Summary Judgment
iii
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
I 27 4/14/2010 Order Denying Defendants’ Motion to 95
Dismiss
I 30 4/28/2010 Answer to Complaint and Counterclaims 111
iv

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
II 65-3 2/25/2011 Exhibit 3 – Excerpts from the October 378
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
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
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
v

Volume No.
III 65-10 2/25/2011 Exhibit 10 – Excerpts from the January 581
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
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
vi

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
vii

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
IV 69-2 2/25/2011 Exhibit 2 – Excerpts from the December 950
viii

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
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
Judgment
Report of Mark Evanier
V 74-2 2/25/2011 Exhibit B – Excerpts from Kirby: King 1116
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
Judgment
ix

Volume No.
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
Roy Thomas
7, 2011 Deposition of Lawrence Lieber
V 82-4 3/25/2011 Exhibit 61 – Excerpts from the June 30, 1252
V 83 3/25/2011 Opposition to Local Rule 56.1 Statement 1277
re: Defendants’ Motion for Summary
Judgment
V 85-3 3/25/2011 Exhibit C – Excerpts from the January 1299
x

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 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
Judgment
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
xi

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
xii

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”
xiii

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”
xiv

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”
xv

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
xvi

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
xvii

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.
xviii

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)
xix

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
I 27 4/14/2010 Order Denying Defendants’ Motion to 53
Dismiss
xx
CaseCase 11-3333, Document 76-1,
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EXHIBIT A
JA1088
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Marc Toberoff (MT 4862)

2049 Century Park East, Suite 2720
Los Angeles, CA 90067
Tel: 310-246-3333
Attorneys for Defendants Lisa R. Kirby, Barbara J.

Kirby, Neal L. Kirby and Susan M. Kirby
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
MARVEL WORLDWIDE, INC.,

MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC,
Civil Action No. 10-141 (CM) (KF)
Plaintiffs,
[Hon. Colleen McMahon]
-against-
[ECF Case]
LISA R. KIRBY, BARBARA J. KIRBY,
NEALL. KIRBY and SUSAN M. KIRBY,
Defendants.
DEFENDANTS' INITIAL DESIGNATION OF EXPERT WITNESS

MARK EVANIER
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Pursuant to Rule 26 of the Federal Rules of Civil Procedure and the Court's April
19,2010 Order, defendants and counterclaimants Lisa R. Kirby, Barbara J. Kirby, Neal
L. Kirby and Susan M. Kirby (collectively "Defendants") hereby designate Mark Evanier
as an expert witness whose testimony Defendants intend to introduce at the trial of these
matters. A copy of Mr. Evanier's expert report is attached hereto as Exhibit A.
Defendants' foregoing initial designation does not include any expert whose
testimony may be offered solely for purposes of impeachment or rebuttal. Defendants
reserve the right to amend and/or modify its expert witness designation in accordance
with the Federal Rules of Civil Procedure and the Local Rules of this Court.
Dated: New York, New York TOBEROFF & ASSOCIATES, P.C.

November 4, 2010
----~
By: /-c;->;;.c~-:l'r-----
Marc Toberoff(MT 4862)

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

Kirby, NealL. Kirby and Susan M. Kirby
JA1090
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EXHIBIT A
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EXPERT REPORT OF MARK EVANIER
I.
INTRODUCTION
I have been informed that Lisa R. Kirby, Neal L. Kirby, Susan M. Kirby and
Barbara Kirby, the four children of Jack Kirby ("Kirby"), have filed termination notices
under the Copyright Act to recapture Jack Kirby's copyrights in works that he created or
co-created that were published by Marvel or its predecessors ("Marvel") between 1958
and 1963. I have also been informed that Marvel has filed suit challenging the Kirbys'
termination notices.
I have been asked to analyze and give my opinions regarding the following topics:
The tirst is the manner in which Jack Kirby created or co-created comics and
comic book characters published by Marvel betweenl958-1963, as well as Kirby's
relationship with Marvel during this key period.
The second concerns Marvel's policies and conduct with respect to the return of
original artwork to artists, including Jack Kirby.
II.
QUALIFICATIONS
I have been involved in the comic book industry for over forty years as a writer,
columnist and historian. My tirst sale as a professional writer came in 1969. when I was
17 years old. and soon after I was hired by a Los Angeles-based tirm that was operating a
licensed fan club tor the Marvel properties, called Marvel mania, which advertised in
Marvel comics. The "'club" was a means of merchandising items such as posters and
decals of the Marvel characters. and I was hired as the local linn's in-house expert and as
the editor of a fan magazine that Marvel authorized. Not long before !left that position,
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Mr. Kirby hired me as an assistant to help him on some new projects he was producing
for DC Comics. I assisted him with storylines, handled research and co-authored the
letter pages in his comic books and did a limited amount of art production work.
While apprenticing under Kirby, I began working as a comic book writer for The
Walt Disney Company and also for Western Publishing, which was issuing comic books
published under the Gold Key imprint (Bugs Bunny, Daffy Duck, Porky, etc.). Shortly
after that, I was hired as the editor and head writer for the Edgar Rice Burroughs estate
(Tarzan).
In 1974, I began writing for television. My comedy writing experience includes
working on The Nancy Walker Show, Cheers. That's Incredible, Love Boat, Superboy.
Pryor ·s Place, Bob (starring Bob Newhart as a comic book artist) and Welcome Back,
Kotter, where I worked as story editor. After leaving Welcome Back, Kotter. I worked
for and eventually ran the comic book division of Hanna- Barbera Studios, as editor and
head writer.
My animated series writing experience includes television shows such as Scooby
Doo, Plastic Man, Thundarr the Barbarian, The ABC Weekend Special, CBS Storvbreak,
Richie Rich. The Wuzzles, Superman: The Animated Series. Dungeons & Dragons and
Garfield and Friends.
While I continue to work in film and television. I have also worked on a number
of comic books, including writing Superman Adventures, The New Gods and Blackhmvk
for DC Comics. I was both the writer and the editor for Blackhml'k Since 1983. I have
collaborated with artist Sergio Aragones on the long-running comic book series, Groo the
Wanderer. which has been published in the past by Pacific Comics, Eclipse Comics,
Marvel Comics and Image Comics. and which is currently published by Dark Horse
Comics. I have also written, co-created and sometimes edited several other comic books
series including The DNAgents (with Will Meugniot) and Crossfire (with Dan Spiegle),
both of which were published by Eclipse; Holly1vood Superstars (with Spiegle). which
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was published by Marvel; and Magnor (with Aragones), which was published by Malibu
Comics.
I have been nominated for three Emmy Awards for my work on Gwfield and
Friends (two) and Pryor's Place (one). In 2003, I was awarded the Lifetime
Achievement Award in Animation Writing by the Animation Writers Caucus of the
Writers Guild of America, West (WGAw).
I have been a panelist or moderator at numerous comic book industry events,
including the Comic-Con International in San Diego, WonderCon in San Francisco, the
Big Apple Comic Convention in New York City, and the Mid-Ohio Con in Columbus,
Ohio. The Comic-Con International is the largest event of its kind in the world, and each
year I spend much of the convention in panels and events during which I interview the
comic book "greats" about their work. For my efforts in recording and preserving the
history of the comic book art form, the convention awarded me the prestigious Bob
Clampett Humanitarian Award in 2001.
In addition, the convention administers the industry's top award, the Will Eisner
Award, which is given for excellence in the creation of comic books, and I have been
awarded four "Eisners" and have been nominated seven times. The other major award in
the comic book field is called the ''Harvey'' and I have been nominated three times for
this award and have won twice.
Furthermore, I am active as an author writing about comic books, having
published five books on the subject, including the recent Kirby: King of Comics, a
biography of Jack Kirby which won both the Eisner and Harvey awards, and Mad Art, a
history of }vfad Magazine, tracing its evolution from a comic book into a magazine and
other media.
I have been called upon to write numerous forewords and introductory material
for books about comics. including many reprint volumes published by DC Comics and
Marvel. and to appear on television programs and supplemental DVD materials dealing
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with animation and comics. These include commentary for Marvel's Maximum Fantastic
Four, an analysis of the first issue of the Fantastic Four comic book, and the foreword for
the recent Marvel Afasterworh. The Mighty Thor Vol. 6 (reprinting past issues of The
Mighty Thor) and Marvel Masterwork\': The Inhumans.
At Stan Lee's request, I appeared on the episode of the TV series, Biography
(broadcast on the A&E Network and released on home video) detailing his life and
career. I was interviewed as well for the feature-length documentary "With Great Power
-The Stan Lee Story" and I have recently been asked by its producer-director to review
this documentary for factual accuracy and to help correct factual errors. I also worked for
Mr. Lee as the Vice-President of Creative Affairs at Stan Lee Media, a firm he presided
over for a time.
I have also acted as an informal advisor and historian for most of the major comic
book publishers. including DC, Marvel and Dark Horse. All these publishers have called
on me from time to time to help them establish facts about their past publications and
contributors. For example, I have been asked by staffers at Marvel to identify who
"inked" particular Marvel comic book issues, and to determine the identity of
pseudonymous contributors to various materials they have published in the past.
III.
ANALYSIS
Jack Kirby's Relationship with Marvel
From its beginnings in the 1930s to the 1960s and beyond. the comic book
industry was very much a fly-by-night industry that germinated during the Great
Depression. The tlrst comic books were merely reprints of contemporary newspaper
comic strips. re-pasted into a comic book page format. When publishers could not
acquire reprint rights to newspaper strips (or wished to not pay the fees). they hired or
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commissioned young, aspiring artists to create the same kind of material. Comic book
publishers did not see any value in their product beyond monthly sales figures.
Little attention was paid to the copyrights and ownership of the newly-created
material. The books were of a disposable nature, printed on the cheapest paper via the
least expensive process available. There was no expectation that it would ever be
reprinted and little that the characters would be merchandized or exploited in other
media. The writers and artists who created the material were mostly young, Depression-
era kids who were desperate for work to help put food on the family table.
At some companies, they worked on the premises, paid by the hour or the week to
write and draw stories, usually at long rows of desks that resembled a factory setup. At
others, the work was all freelance. The writers and artists worked at home and submitted
their output to an editor who might or might not purchase it for publication on a per-page
basis. The writers and artists were only paid if their work was accepted.
Both methods were used at times at the company we now know as Marvel
Comics, which was started by a man named Martin Goodman. He operated under a
variety of company names but during the forties, his operation was usually referred to as
Timely Comics. Goodman had a background in magazine distribution, and with
borrowed tunds, he set up his own company which at first published "pulp" magazines.
They were cheaply-printed periodicals tilled with short stories, usually of an adventure or
romance nature, sometimes both. The line was not the success Goodman hoped it would
be so he began looking for other kinds of things to publish that might prove more
lucrative. When he heard about the rising popularity of comic books - in particular,
super-hero comic books- he decided to give that a try.
And so in 1939, Timely Comics began with the publication of lvfarve/ Comics No.
L containing material he bought from an outside editorial service called Funnies. Inc.
The book was a financial success and Goodman decided to start his own in-house comic
book division. which he did by engaging Joe Simon. who was one of the creators of
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material for Funnies, Inc. Simon, in tum, suggested the hiring of Jack Kirby, an artist
with whom he was then collaborating on freelance work for several publishers.
Jack Kirby's career is emblematic of the haphazard, un-businesslike nature of the
industry in this era. Kirby (born Jacob Kurtzberg in 19I 7) began his career in the depths
of the Great Depression, hauling his art portfolio to various publishers, newspaper
syndicates, and animation companies in and around New York. Between 1935 and 1940,
he worked at the Max Fleischer animation studio, the Lincoln Features Syndicate,
Universal Phoenix Syndicate, and Fox Comics, Inc. When he was employed as a staff
artist, he would try to supplement his income in his off-hours with freelance comic book
work for other companies. While at Fox Comics, Kirby formed his partnership with Joe
Simon, and together they created and sold comics material to several different publishers
before going to work for Martin Goodman. In fact, they continued to freelance while
working for Goodman. Shortly after they sent the first issue of a new creation, Captain
America, to press for Goodman's firm, they produced the first full issue of Captain
lvfarvel Adventures to be published by a rival firm, Fawcett.
Simon and Kirby produced ten issues of Captain America, as well as other titles
published by Timely. Their agreement with Goodman called for them to receive 25% of
the profits on new creations but they came to believe they were being cheated in the
accounting. They left and took what they believed to be a more honest deal creating
material for publication by DC Comics.
Goodman replaced them with a young man who'd been hired as an otlice boy and
apprentice writer named Stanley Lieber. Lieber was the nephew of one of Goodman's
business managers who soon married into the Goodman family, making Stan a relative of
the publisher. Under the pen name "Stan Lee." Lieber began writing stories for Timely
publications and learning the editorial ropes from Simon and Kirby. When they left. his
appointment to the editorial position was said to be temporary but apart from a brief time
away for military service, Stan Lee (as he was soon known to all) remained in charge
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from 1941 until well into the seventies, and even held other positions with the firm after
that.
Simon and Kirby continued to work for and with other publishers. lbe entry of
the United States into the Second World War, and their military service all but ended the
team's. arrangement with DC, and after the war, they moved on to create super-hero,
adventure, crime and romance comics for among other publishers, Hillman Publications,
Crestwood, Headline Publications, and Harvey Publications.
Goodman, meanwhile, published every kind of comic book he could try,
including but not limited to westerns, romance, crime, war comics, horror stories, books
featuring "funny animal" characters and super-heroes. Some books lasted a few years.
Others were cancelled after a few issues. But until the debut of Fantastic Four in 1961,
few comics seemed to be permanent fixtures and almost none were merchandized or
adapted into other media. Goodman was known throughout the industry as a man who
imitated what was selling for other publishers and one who often flooded the stands with
knockoffs. When, for example, he learned that a company called EC Publications was
enjoying success with three comics it was publishing of horror stories, Goodman quickly
put out somewhere between sixty and seventy similar comics, most of which did not last
more than a few years.
Horror comics had a detrimental impact on the entire industry. In the fifties, a
"horror comics scare" swept across the country. There was a concern that the reading of
comic books, particularly those featuring crime and horror themes, was corrupting
America· s youth. This scare was summarized in the 1954 book by Dr. Fredric Werth am,
Seduction of' the Innocent. and it was addressed in Senate hearings and proposed
legislation to ban or censor all comic books. The banning did not occur, but distribution
was stifled and many publishers went out of business, leading to widespread
unemployment among those who wrote or drew comic books.
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One of the many casualties was Mainline Publications, a then-relatively new
company begun by Joe Simon and Jack Kirby. With that, the long and successful
partnership of Simon and Kirby began to come apart with both men scrambling for
whatever work they could pick up either individually or together. At this point, Kirby
was supporting a wife and three children, with a mortgage on a house in Long Island.
Through an intermediary, he reconnected with Stan Lee and Martin Goodman's
operation, which at this point still consisted of various small companies but which was
now commonly referred to as "Atlas Comics." Kirby sold them some freelance work
before the company largely stopped buying material for what some then feared was
forever.
Martin Goodman did not cease publication but through a series of unwise
business decisions, he wound up losing his distribution. To stay in the comic book
marketplace, he pacted with Independent News, a division of DC Comics and therefore a
competitor. Independent agreed to handle a reduced version of his line limited to
approximately eight comics per month. As Atlas had issued as many as seventy a month
not long before, that meant a drastic downsizing in sta!T and in work available to
free lancers. There was, in fact, now a huge backlog of material so most of those
freelancing for Atlas at the time were told there would be no more work. Kirby was
among those so informed. By the decade's end, Goodman's comic book division
consisted of just Stan Lee plus one or two assistants. in a very small, two-otlice space on
Madison Avenue.
Kirby had other work at the time, though not nearly enough of it. For DC, he
(with some initial participation by Simon) had created a successful new comic called
Challengers ofthe Unknown. and he was drawing and sometimes writing short mystery
and ghost comics for publication by DC. With another 'Writer, Dave Wood, he created a
syndicated newspaper strip called Sky J""fasters. Challengers was edited by a DC editor
named Jack Schill who was also involved in the sale ofS'ky Masters. The two Jacks had
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a business dispute over the latter and Kirby discovered his services were no longer
welcome at DC Comics. This created a financial crisis in the Kirby household, especially
after Sky Masters folded.
Fortunately by this time, Stan Lee had just about exhausted the supply of
inventory material and had begun buying new work from freelancers. Kirby was one of
the first he called and though Goodman's firm paid low rates, Kirby did as much work as
he could. Atlas had virtually no staff other than Lee, who was both the editor and art
director, and was still limited to a handful of titles per month. The company typically
split its output between Westerns, "teen" comics like Millie the Model, romance comics,
and hybrid science fiction/monster comics. At the time Lee and his younger brother,
Larry Lieber, were responsible for the scripts of all these comics.
Stan Lee and the freelance artists developed what became known as the "Marvel
Method" during this time, both to relieve Lee of his heavy workload and to take
advantage of the artists' skills as storytellers. Normally at an outfit like DC Comics, a
fully formed, specific, panel-to-panel script would be handed to an artist to literally "fill
in." The writer would have little (usually, no) contact with the artist. The writer would
make up the entire plot and would indicate in his script what happened in each panel and
what the artist should draw.
This was not the case at Marvel. Lee would simply talk with the artist about story
ideas. Sometimes Lee would come up with the basic story idea or plot, sometimes the
artist would, and sometimes it would be a joint effort.
Following such an infonnal meetings, the artist would return to his own studio.
usually at home, and draw out the entire comic in penciL deciding what the action should
be in each panel and working out the storyline. These were decisions that had
traditionally been made by the writer of the comic, not the artist.
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As Stan Lee himself noted on many occasions, "plotting" with Kirby could often
be accomplished in a matter of minutes, and in later years might be done via a brief
phone call with Jack telling Stan what the next issue would be about.
As Kirby worked, he would not only draw out the story and invent new characters
where necessary, he would write marginal notes to Stan, including suggested captions
and dialogue, so that when Stan wrote the dialogue, he would know what story points
Kirby felt should be made in each panel. Stan would then write dialogue based on
Kirby's notes and perhaps a brief conversation.
This new and unusual breakdown of the roles of writer and artist. with the artist
assuming much of what had traditionally been done by writers, led to much confusion
and debate within the comics community. Some attists working this way felt that they
were co-writing the comics without pay or credit, and sometimes doing more than co-
writing. To further complicate matters, the terminology became ambiguous, with the job
of"writing" the comic sometimes defined by some to denote only the composition of the
dialogue and captions, excluding inventing the storyline or deciding what occurred in
each panel. In the mid-60s, to placate some artists' complaints, Marvel altered the
standard form of its credits. Instead of saying, ''Written by Stan Lee. drawn by Jack
Kirby,'' a credit might say, ''A Lee-Kirby Production'' with no designation as to who had
done what. It should also be noted that in recent years. reprints of Marvel comics
produced in the 60s have sometimes retroactively assigned a co-plotting credit to Kirby.
Due to the precariousness of Timely/Atlas in 1958 and his own formidable
workload, it is little wonder that Lee would rely so heavily on Kirby's enormous
creativity and talent to generate comic books. There is no question that Kirby was the
creative spark for Marvel's renaissance in the early 1960s and beyond based on Kirby's
incarnations of fantastic superheroes. Kirby not only drew a staggering amount of
artwork for Marvel's titles, he also originated many of its leading and supporting
characters. A look at Fantastic Four alone is instructive. At Kirby's peak in the early
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and mid-1960s, the FanULI'fic Four comic book introduced dozens of new and
imaginative characters, such as Dr. Doom, Alicia Masters, The Watcher. The Jnhumans,
The Black Panther, Galactus, The Silver Surfer. The Frightful Four, The Skru/ls and so
many more. Many of these characters spun off into their own series; others reappeared
time and again, not only in Fantastic Four but in other Marvel comics. Tellingly, after
Kirby became disenchanted with Marvel and contemplated a move to DC, the Fantastic
Four offered no notable new characters.
Even on comic book titles handled by other artists, Kirby made important
contributions, such as creating the cover illustration for Spider-Man's debut in Amazing
Fantasy No. 15.
Given the chaotic and depressed nature of the comic book industry during the late
1950s, Atlas/Marvel and others rarely, if ever, had written contracts with freelancers, like
Kirby. To the best of my knowledge, Kirby did not have a written contract regarding the
freelance artwork he sold to Marvel commencing in 1958 through 1970, and certainly not
in the 1958-1963 period at issue in this lawsuit. This simply was not the ''custom and
practice" of the industry at the time. I have been informed by the Kirby family's counsel
that the earliest ·'agreement" between Marvel and Jack Kirby produced by Marvel is an
Assigrunent executed by Jack Kirby on May 30, 1972, which coincides with my
understanding of the historical record.
I also want to emphasize that Kirby worked on his own, and supervised himself,
and did not create under the direction or supervision of Stan Lee or anyone else at
Marvel. Kirby did not work at Marvel's otlices. He worked at his own home. first in
Long Island and, in the late 1960s, in Southern California. Kirby set his own hours and
working conditions. Kirby paid his own overhead and all expenses associated with his
creations. He purchased his own art supplies, including paper. pencils, ink. pens, brushes
and other materials with which a comic book story is created. As such, Kirby took on the
financial risk of creating his material, consistent with Marvel's desire to drastically
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reduce its overhead and financial risk commencing in the late 1950's. Kirby was not paid
a salary by Marvel. His artwork and plotting was purchased by the page on a piecework
basis-- a set amount for each page accepted by Marvel for publication. If a page or story
was rejected by Marvel, he was not compensated tor it and personally withstood the
financial loss tor it. If Marvel rejected seven pages of Kirby's work, and he redid the
seven pages which were then accepted, Kirby would not be paid for fourteen pages, but
simply for the seven pages approved for purchase.
Kirby sold his product to Marvel, not his time. The page rate was fixed and did
not depend on the amount of time that had been spent writing or illustrating the pages.
Marvel did not withhold payroll taxes or any other form of taxes from the money
it paid to Kirby, nor did Kirby receive any health benefits or insurance, nor did he receive
any other traditional employment benefits from Marvel such as sick pay or vacation pay,
no matter how much Marvel prospered from Kirby's creations. Again, Marvel sought at
all time during the period in question (1958-1963) to severely limit its financial
commitments and exposure associated with the creation of the comic books it published.
Marvel at some point in time began placing legends with legal language on the
back of its checks to freelancers, such as Kirby, where the freelancer signed the check to
cash it. It was not unheard of for a freelancer to ''cross out" the legend on the checks and
still be able to cash it.
I have been informed by the Kirbys' counsel that Marvel has only produced in
this action checks, with legends on the back. from 1974 and 1975, and from 1987 which I
have reviewed. The 1974 and 1975 checks are to the freelance artist Dick Ayers.
It is worth noting that even the language on the back of these later 1974 and 1975
Marvel freelance checks is still language of purcha~e and assignment, not language that
the work is owned at the outset as "work made for hire": "By endorsement of this check.
I. the payee. acknowledge full payment for my employment by Magazine Management
Company, Inc. and tor my assigmnent to it of any copyright, trademark and any other
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rights in or related to the materiaL and including my assignment of any rights to renewal
copyright."
'Ibis is consistent with my understanding that the legends on the back of Marvel's
checks to free lancers was language of assignment of all rights in their work up until at
least the late 1970's, when the 1976 Copyright Act went into e!Tect. I believe that with
the new copyright law's emphasis on "work for hire," that in the early 1980's Marvel
changed the language in the legends on the back of its freelance checks to a "work for
hire" acknowledgement. T11e 1987 checks produced by Marvel appear to confirm this
and unlike the assignment language of the I974 and 1975 checks contain the following
language: "By acceptance and endorsement of this check, payee acknowledges. a) full
payment for payee's employment by Marvel Entertainment Group, Inc, b) that all
payee's work has been within the scope of that employment, and c) that all payee's works
are and shall be considered as works made for hire, the property of Marvel Entertainment
Group, Inc."
Marvel had been purchased by Perfect Film and Chemical Corporation in 1968,
which changed its name to Cadence Industries in 1973. Because of Marvel's highly
informal, if not haphazard, practices during the late 1950s and early 1960s as it was
trying to survive, Cadence was concerned with first determining and then shoring up
Marvel's assets, including the status of Marvel's warehouse(s) full of original artwork,
This is why Cadence/Marvel started demanding in the 1970s that artists. such as Jack
Kirby, sign agreements such as the 1972 Agreement assigning to Marvel all previous
Kirby work published by MarveL Similarly Cadence/Marvel sought to comply with the
new Copyright Acfs explicit work-for-hire provisions, by having freelancers sign "work-
for-hire" releases as to prior work long after such had been created, Cadence was trying
to "clean up," if not revise, Marvel's past to protect what had become valuable
intellectual property.
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It is extremely doubtful that either Marvel or freelance artists, such as Jack Kirby,
particularly between 1958 and 1963, had any understanding or intent that their freelance
material created at home on their own steam and on their own dime, and later purchased
on a per page basis after it was completed and approved for publication was somehow
"work made for hire." The nuances and formalities of copyright law were just not on
anyone's mind at this time, when the entire industry was functioning "hand to mouth,"
having just barely survived the Comics Code scare in the mid-1950s.
Creation of Certain Comics
An analysis of certain of the famous works and characters Kirby created or co-
created between 1958-1963 which fueled Marvel's renaissance helps illustrate Kirby's
relationship with Marvel at this time.
Fantastic Four
In the early 1960s, Goodman informed Lee that he wanted a product to compete
with DC Comics' superhero team, Justice League (){America. Lee and Kirby then spoke,
tossing around ideas. Kirby then drew the artwork for the first issue of the Fantastic
Four plotting out the story, and Lee wrote the dialogue in the balloons.
I have great respect and personal affection for Stan Lee, but I disagree with the
accounts he has sometimes given of the creation of the Fantastic Four in which he solely
created the concept and characters and Kirby's role was limited to simply drawing up
Lee's creation. I instead believe other accounts he has given, not only of that comic's
inception but of his entire modus operandi of working with Kirby.
Much more logical is the other scenario of which he has spoken. both in
interviews with myself and others, and in published accounts such as his introductions in
books such as Origins o/lvfarvel Comics and Son of Origins of Marvel Comics. In all
these accounts, new comics were always created in joint "bull" sessions with the artist,
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usually Kirby. I have long assumed Stan was correct when he indicated that Fantastic
Four was created that way because that account matched Kirby's recollections, because it
was consistent with the known way in which they always worked and because it explains
why the basic premise of Fantastic Four contains so many elements that have
antecedents in Kirby's other work, particularly his Challengers of the Unknown for DC
Comics.
Like Fantastic Four, Challengers of the Unknown depicted the adventures ofjimr
people who form a team after surviving an air crash. The members of the Challengers
had personality traits similar to the Fantastic Four. Pilot "Ace" Morgan, like the
Fantastic Four's Reed Richards, was the decisive leader of his group. "Rocky" Ryan,
like Benjamin Grimm, aka "The Thing,'' was the group's strongman. Daredevil "Red"
Ryan was the resident firebrand, much like Johnny Storm. "Prof' Haley was, like Sue
Storm, the bland and nondescript member of the group. The Challengers team, like the
Fantastic Four, confronted science fiction enemies in a wide variety of fantastic settings.
Furthermore, in light of how important the new Fantastic Four comic was to the
firm's line. it seems implausible to me that Lee would suddenly change this working
relationship and not first consult with Kirby on this new book, especially given Kirby's
decades of experience in the superhero genre (e.g Captain America) and renowned
ability to spontaneously and quickly generate so many publishable creations.
After Fantastic Four had been published and was a success, Lee produced a
synopsis for the first story which he said was what he gave Kirby to work from. Kirby.
however, consistently asserted that he never saw any kind of typed synopsis or treatment
for the Fantastic Four. Given his other statements about putting his head together with
Kirby to devise the comics, I find it highly unlikely that Lee acted alone in conceiving
these characters.
The Hulk. Thor, the X-J.Jen. Ant-Man, the Avengers and Sgt. Fury and His
Howling Commandos all resulted from a collaborative effort between Kirby and Lee. It
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is also worth noting that Stan Lee did not create any important characters either before
Jack Kirby first worked with Lee or after Jack Kirby stopped working with Lee in 1970.
The Mightr Thor
Thor is another creation that reflects earlier Kirby work but which has no
precedence in the thousands of comic books that Stan Lee had worked on prior to its
inception in Journey into Mystery No. 83 in 1962. As early as 1942. Kirby had a
character masquerading as Thor in his story "Villain from Valhalla,'' a collaboration with
Joe Simon that appeared in DC Comics' Adventure Comics No. 75 (May 1942). Kirby
then used the real Thor, complete with a homed helmet and powerful magic hammer, in
DC's Tales of' the Unexpected No. 16 (August 1957). Kirby's lifelong interest in
mythology continued after the creation of Thor when, working for DC Comics again in
the 1970s, he created his own pantheon of mythological deities in his New God~ comic
book and his "Fourth World" saga.
Spider-Man
Kirby also played an important role in the creation of Spider-Man. In 1962. as
Marvel cast about for new super-hero ideas, Kirby and Lee devised Spider-Man, which
Kirby said was based on an idea that he has developed with Joe Simon in the mid-fifties.
It had originally been conceived as a character called The Silver Spider, then rebranded
as Spiderman. In 1959 in one of their last collaborations, Simon and Kirby had
refashioned it as a character called The Fly and sold it to John Goldwater, who was still
publishing it through his company. Archie Comics.
Like Spider-Man, The Fly was a superhero who !ought criminals, walked up walls
and on the ceiling and who possessed insect-like extra-sensory senses. There were other
similarities in the tirst few pages that Kirby drew tor Stan Lee of what was to be the tirst
installment of their Spider-Man. However, Lee rejected Kirby's initial pages and that
16
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version of the story was never completed. Lee then asked artist Steve Ditko to produce a
new Spider-Man story.
In numerous interviews, Lee has stated that the change was made because he
thought Kirby's interpretation of the character was too muscular and heroic, but I am
skeptical of this explanation for two reasons. First, Kirby's rejected pages had Spider-
Man in only a few panels, which could easily have been redrawn. Second, for the debut
of Spider-Man in Amazing Fantasy no. 15, Lee rejected a cover illustration by Ditko and
instead used a Spider-Man cover by Kirby. A more believable explanation for the change
is that someone at Marvel was afraid that the story Lee and Kirby were crafting might
come out close enough to The Fly to prompt legal action from Goldwater and/or Simon,
both of whom were known to be litigious. The character was modified but many
elements of the Lee-Kirby version would remain.
Lastly, I understand that Kirby was paid for his Spiderman cover but not for the
story pages he did that Marvel rejected. That artwork was never returned to him despite
repeated requests, and it resided in Marvel's tiles well into the late seventies or early
eighties. Later, he was told the pages had disappeared and could not be located.
Return of Original Artwork to Freelance Artists
I should next explain Marvel's decision to return original comic book artwork to
freelance artists in the 1970s which eventually included Kirby.
From the 1940s until the 1970s, Marvel and its predecessors gave little thought to
the value of the freelance artwork they had purchased for publication. Much of the
artwork was put in storage. Some was thrown out. Pages were given away to fans as
souvenirs. Much of it began turning up on the collectors' market which suggested that
someone in the oftlce was smuggling it out and selling it.
The return of artwork became an issue in the 1970s, when artists saw their work
sold for large amounts of money at conventions. Many artists complained and in
17
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response, DC Comics decided that publishers had no legal claim to the artwork, and so it
and most other companies began to return the artwork to the artists who had drawn it. In
an open letter to the public DC Comics maintained that, as was customary for periodicals,
they were only paying for the right to reproduce the artwork and that the ownership of the
actual physical artwork belonged to the artist. Marvel initially refused to return original
artwork but eventually changed its position in the mid-1970s. They did this for a number
of reasons.
One was a concern that the company might owe substantial sales taxes on the
artwork to the State of New York. As early as the 1950s. comic book companies such as
Western Publishing (aka Gold Key Comics) had paid its artists in California a state sales
tax when purchasing their artwork. The artists collected this tax and forwarded it to the
state of California, as they were required by law to do. In the early 1980s, some New
York artists inquired of their state tax otlicials as to whether, since no tax was paid or
collected on their work, there was a legal transfer of ownership of the physical pages.
The response, which was generally along the lines of"We'll have to look into that"
frightened some in management at Marvel. The fear was that Marvel might be assessed a
substantial amount of current and overdue sales taxes for years and years of original
artwork.
Also, some at Marvel also were concerned that. if the artwork was a corporate
asset as the company sometimes asserted, Marvel/Cadence had a fiduciary duty to its
shareholders to investigate the disappearance of artwork, and to perhaps prosecute any
employees who were involved in its turning up on the open market. The characterization
of the artwork as a corporate asset might also mean that the company was shirking its
fiduciary responsibility by not having it properly insured. To do that would involve an
expensive inventory and even more expensive insurance policies. An inventory could
also cast doubt on the arbitrary value that had been assigned to the artwork over the
years.
18
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Originally, in the mid-1970s Marvel only agreed to return artwork from current
issues and refused to return artwork from the past, particularly work from the 1960s,
when the most significant characters were created. Then in the mid-1980s, Marvel
implemented a policy to return past artwork to artists provided they sign legal releases
stating that Marvel owned the copyrights to the artwork and re-characterizing their
artwork created years earlier and everything depicted therein as "work-for-hire." In need
of income, artists routinely signed these releases without the benefit oflegal counsel.
Even after Marvel reversed its policy as to older artwork, it refused to return
artwork to Kirby unless Kirby signed an especially onerous release form that was sent to
him and no one else. Whereas the release for other artists was a one-page form, for
Kirby, Marvel in 1984 prepared a four-page form with far more obligations and
limitations. For example, while the release prepared tor other artists promised them the
"original physical artwork," the release for Kirby merely provided for "physical custody
of the specific portion of the original artwork.'' The tour-page release additionally
demanded that Kirby agree never to contest or dispute Marvel's copyright in the artwork,
or to help others in contesting or disputing Marvel's copyright ownership. The
agreement required Kirby to agree that he had no rights, whether the right of custody or
any other right, to other artwork in Marvel's possession. Unlike other artists, Kirby
would not be able to sell his art, or display it publicly. He could transfer physical custody
to another person. but only if the recipient signed the same four-page release.
Kirby wanted the pages so they could be sold to provide financial security tor his
family, but refused to sign the release because he did not believe that his freelance
artwork was ever "work tor hire," and he objected to Marvel holding his artwork hostage
unless he consented to this revisionist history. He also feared that Marvel officials
wanted to expunge his name from his comic books. just as DC Comics had at one time
expunged the names of Jerry Siegel and Joe Shuster from all appearances of their
creation, Supennan.
19
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Marvel relented somewhat in May of 1987, after the dispute became a full-blown
public relations disaster. The standoff became public knowledge when The Comics
Journal reported on it in a series of stories in 1985, and took up Kirby's cause in an
editorial entitled "House of No Shame" in February of 1986. In the same issue of The
Comics Journal, the open letter from DC Comics to the public mentioned above was
reproduced. This letter undermined a claim trom some at Marvel that it was an "industry
standard" that original artwork automatically belonged to its publisher.
In 1987, due to all the bad publicity, Marvel amended their "release" to a one-
page version, but this still contained Marvel's post-hoc re-characterization of all of Jack
Kirby's work !rom decades earlier as "work-made-for-hire." Marvel adamantly refused to
return any original artwork to Kirby unless he signed the "release.'' Worn out and
wanting to leave some part of his legacy to his wife and children, Kirby ultimately signed
Marvel's release. Marvel provided Kirby with approximately 1,900 pages of his original
artwork.
IV.
CONCLUSIONS
Jack Kirby's Business Relationship with Marvel
Due to the perilous financial condition of the comic book business in the late
1950s, artists such as Jack Kirby were required to work as treelancers and their work was
purchased for publication on a per-page basis. Each artist had an established page rate
and every page was paid at this rate. regardless of the time or etlort that had gone into its
creation. If an artist spent an hour creating a page, he received the page rate. If he spent
ten hours, he received the same page rate. If the work was rejected and therefore not
accepted for publication. he received nothing.
Artists like Jack Kirby took on all of the financial risk of such creation and had
little financial security. Kirby worked !rom his own facilities (at home), paid for his own
20
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art materials and set his own hours. He did not receive any health benefits or insurance,
nor did he receive any sick pay or vacation pay or any other form of employment
security. Marvel did not withhold payroll taxes or any other form of taxes from Kirby's
paychecks.
In fact, the first agreement Kirby had with Marvel which covered rights was a
1972 agreement assigning to Marvel all rights, including the copyrights, to Kirby's prior
works published by Marvel, nearly ten years after the end of the 1958-1963 period.
Decades after the success of the key Kirby characters, Marvel, under its new
corporate parents, Perfect Film/Cadence, attempted to "clean up" Marvel's ownership
claims to what had become comic book franchises by re-writing history. The explicit
"work for hire" provisions of the 1976 Copyright Act led to tremendous insecurity on the
part of Marvel/Cadence which thus attempted to re-label everything Marvel had
published decades earlier as "work made for hire," even though such purchased artwork
had theretofore never been considered as such by either Marvel or the free lancers.
This coincided in the early 1980s with tree lance artists trying to get their original
artwork returned so that they could supplement their income. Marvel/Cadence leveraged
this as a bargaining chip to get artists. like Jack Kirby. to sign self-serving releases
supplied by Marvel which attempted tore-characterize all their prior material as ''work-
made-for-hire." I believe that Marvel is engaging in the same revisionist history today in
response to the Kirby family availing themselves of their right of termination under the
Copyright Act.
Jack Kirby's Major Contributions to Marvel's Major Characters
While I respect and like Stan Lee, I have to disagree with any suggestion that the
major Marvel characters. commonly considered by most of the industry to be joint Lee-
Kirby creations. were solo Lee creations. These would include The Fantastic Four. The
Hulk. Thor, the X- Men. Ant-}Jan, the Avengers and Sgt. Fury and His Howling
21
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Commandos, and many others. It is clear that Kirby was a driving force behind the
creation of these now iconic characters, which have all the markings of his fertile creative
mind and fascination with science, science fiction, astronomy, mythology and religion.
Kirby created the iconic ·'look" of these characters, which have largely remained
unchanged to this day. and would often work on his own to both plot and draw the
original storylines of these comics. In addition to plotting, Kirby routinely also provided
extensive story notes and dialogue in the margins of his artwork, and in addition to the
main characters, also created many of the supporting characters (e.g., new villains)
appearing in such comics. Kirby even played a part in the creation of the Spider-Man
character, even though the artist Steve Ditko "took over" the comic from Kirby.
Marvel's Return of Original Artwork
Marvel has trailed other comic book publishers, particularly its chief rival DC
Comics, in returning original artwork to artists such as Jack Kirby. The reasons are
several, but boil down to two primary concerns: fear that they would owe sales tax to the
New York government and questions about the validity of the company's ownership of
this artwork. Marvel's new corporate owners, Perfect Film, which became Cadence, had
concerns about Marvel's highly informal business practices in the 1950s and 1960s and
the extent to which this e!Tected their ownership in what had become very valuable
characters. Coinciding with the new work-for-hire provisions under the 1976 Copyright
Act, Perfect Film/Cadence "rewrote" Marvel's past to protect their ownership interests.
As Jack Kirby was the major contributor to most of Marvel's most famous characters,
Jack Kirby suffered the brunt of these etTorts for years. Like many other freelancers
Kirby had requested the return of his artwork so as to provide his family with some form
of security. Whereas other artists had to sign a single-page release to get their artwork
back. Kirby was subjected to a much more aggressive four-page document. Due to the
public outcry in support of Kirby. Marvel backed down somewhat but Kirby was still
JA1113
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required to sign Marvel's selt~serving "work for hire" release before Marvel would return
any of Kirbys · artwork to him.
V.
COMPENSATION
I am not being paid for my services as an expert witness.
VI.
PRIOR CASES
I served as an expert witness in a 1997 lawsuit tiled by writer Marvin Wolfman
against Marvel Characters, Inc.
I served as an expert witness in a 2004 lawsuit tiled by Joanne Siegel and Laura
Siegel Larson against Warner Bros. Entertainment. Inc .. Time Warner, Inc. and DC
Comics.
VII.
PUBLICATIONS
I have authored the following publications:
( 'omic Book.v and Other Necessities o/Lile (TwoMorrow Publications. 2002)
Wertham Was Right.' (TwoMotTow Publications, 2003)
.\fad Art ( Watson-Guptill Publishing, 2003)
Super-Heroes In .\Iv Pants (TwoMorrow Publications, 2004)
1\irhy. 1\ing of Comics (Abmms. 2008)
Respectfully submitted.
~lark banier
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CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2010, I caused a true and correct copy of the
foregoing Defendants' Initial Designation of Expert Witness Mark Evanier to be served
by first class mail on the following counsel of record:
Randi Singer
WElL GOTSHAL & MANGES LLP
767 5th Avenue
New York, NY 10153
David Fleischer
HAYNES BOONE LLP
!221 Avenue of the Americas, 26'h Floor
New York, NY I 0020
Attorneys for Plaintiffs
Nicholas C. Williamson
JA1115
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Document 74-2 509515, Page51Page
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EXHIBIT B
JA1116
. ·· · - -·· - - ----···-- ----- --- - - - - - -

1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1292 of 9
AR..
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K 00143
JA1117
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1293 of 9
"t .... J
'
?
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1
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K 00144
JA1118
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Filed 02/25/11 of 1294 of 9
!
I
I
K 00145
JA1119
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Filed 02/25/11 of 1295 of 9
,, ........ f·~ · ·
KING OF COMICS
MARK EVANIER
INTROD UCT I ON BY NE IL GA IM AN
140.914 '
K.S8Ev
fciio
\ HR .\ \I " '4 E W Y I l R K
K 00153
JA1120
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1296 of 9
(d,lof. (h.nfu Ko<.hm.)n

£drto1 io1f ,!.ss,stanl S.Ofi• Guutfffl
Otilgn•m.: Muk l •Rivif"rt ' " d E. 'f. L~•
Produchon ~~nager : AJ1son Ge-rv.a1\
h.w ier. Mui..

K: i rby ki ns of comio I by M~rk fvan ief.
p. <rn .
IS8N 978 · o ~ 81Q9·9447 · 8 (hard<~ with ;adfl~
L ,:irby.J,ad. 1. C.artooniru-Unittd SI•IM - Bioitolphy. I. Title .
PN61n.KS7£9J 1001
141 . ~092 - dCll
181 2001016.1>1
T~xt .Jtld compilation copyrighf () 1008 M•rk holn itr

lntroduCiion topyri&ht () 200& ~ il Gaiman ,,., ..... fl•flt s.low .,., "_.ll'i lf• . ~~ ro "f"'
C»'TAIN AMEIUCA CAI"TAIN AJURKA
All .:hata<ttrs. tht ir dtst inctiw li kt-MSsts. and r! lated clements are flO . lJl no. 5
ra ond () 2008. 411 ritht.s rtserv~ . Rtprinttd with permiss ion : April1969 AUIU" 1941
DC Comics: 8 l«n1tr). 10. U(ltltl. tl(r ithtl. !J ilth l, 14. 18. 40. 54. S9-61. An: Jack: J(irbli •nd Ge-org• Tu!.k.t .lrt: la<k lirby •M Syd Shortt
6)-6~. 98. 101. 11~ . ~~ - 84. •nd 100 (ltft) . M1rwiComiu Jhrvel Comiu
)adit Estrada: 111.
David Folkman : rndpAJWrs •nd 179. Gala<tu.s STAR Sl'AIIGUD COioii(S
11... Gtrt..f •nd lht E!.utt of J•<k Kirby: 1) (right) and 188. no. 28
THOll
Gil berton Publiutions: 108. )unt 1944
no. 160
H.anna-8ar~ra Production\: 196. Art: J~d Kirby 1nd lot' Simon
The E:mtt ol)"k Kirby:}, 4. l0-)9, 41. 43. ~-45, 62. 66-68. IOJ- 05. 1o8 - 1~9. Janu.,.y 1969
Art: J•d Kirby •nd Vinet Collttta D< Com iu
153, 197- 99, 200 (right), 201, 101, 104. >o6 - IO. •nd lll. •
Sdmuer J. M•ronie: tJ5- · MaMIComics
illam!l (h.,.a<tttt, In c: 1. 1. 6, 1. 8 (ltfll. 11 (unttr and rilhl) . ll (lth •nd lOY £XPt.DRERS
etnler), 1) (ctnltr).!4. 16, 11. ~7-53. 55. 56, 109- IJ , uS - 46. 150- 51. !~ - 61 . Prt~nt•t io n art no. 1
1!5. 186. 190~93. 10f4, 212. 213. w•. 116. 110 . 121 . aftd 114 . Jolid · !98oS May 1946
Gret Preston : 5- .lrt: )ack Kirby Art: Jad Kirby and J~ Simon
Ru by - S~arsEnterprises: 194-95. Harwy Pc.~blie~tions
jostph H. Simon: 44 lltftl. 46, 1o6. and 107. Sifvtr Star
jouph H. Simon •nd jack Kirby: 8 (right) , 9. 6g-87, 88 - 9], and 100. Pre1•nt~tion art YOUN6 ROIIIANCE
•m no. 1
P tt blish~ in 2008 by .Abrams. an imprint of Harry N. Abram1. Inc . Art: Jock Kirby Stptember 1947
All rights resfrvtd . No portion of this book mliY be reprodu ced. srored in a Art: l•<k Kirby
rt'trievll system. Of transmitted in any form or by any mean~. me<ha nital, Ja<k Kirby Prilt Comiu
e-lwronir. photocopyint. retarding , or othe'rw i~f. without wrinen p,ermi:ssion
1992
from ttl:e publ isher. Photo: Greg Prtston BLACK MAGIC
no. 1
Pri nted and bound in the U.S.A.. 0<to0.r 19SO
FUTASllC FOUR
10 9 8 76 54 3 1 I An: li<k Kirby
no. Sl
Crestwood Publ ications
HNA IIIII junt 1966
Art: l•<k Kirby •nd jot Sinnort
harry n. iiibrams,lnc. MaNti Comics auusm
no. 1
Aua:ust 1954
llS WHt 18th Strfet
Endpaper ~ Art: ja<k Ki rby
New 'foB , H'1 10011
Photos: David F ol k~ n M.t inhnt Comi(S
www. hno~books . ,om
K 00154
JA1121
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CONTENTS
I :--4 T R 0 DUCT I 0 N BY :"4 E I L G A I :\I A :--4 .... . .. .. . . . ..... 1 1
PREFACE ... . .. . ......... . . . . . .. . . . .. .. . I 5
0:-.iE IN THE STREETS 19
TWO : PARTNERS ... . .. ...... .. .. . . . . . ... ...... .... .. . . 4 9
THREE: JACK WITHOUT JOE ................. . ... 99
FOUR: FACING FRONT . .... ..... ... . . [II
FIVE : WITHOUT A COUNTRY . . . . . . .. . .. .. . . . . . . . . . . t6 5
SIX: SO.V1 ETHING ELSE ............ . .. ........ . .... . .... 189
SE V EN: GODS ON EARTH .... . .. .. .. . . . . . . . . . . . . . . 2 0 7
AFTERWORD ........ ...... . .. . . . . . . . . . . . . . . . . . .. ... l l 7
A C K N 0 W L E D G 1\.l E NT S . . . . . . . . . . . . . . . . . . . . . . . .• .. . . . . . . . l l 0
INDEX . . . L L I
K 00155
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--~---·----
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K 00355
JA1123
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SEVEN
GODS ON EARTH
"t DON'T THINK IT'S ANY ACClD£NT THAT A'f THIS POINT IN THEIR HISTORY THE ENTIRE
MARVEL UNIVERSE ANI> THE ENTIRE UC UNIVERSE AltE NOW ALL PINNF.D OR ROOTED ON
KtRHY\ CONCF.PTS.~
-M!CIIA£L CHASON, mE NEW\'ORK THfES
JA c K K I RBY s P E NT the last ten years of his life being flattered. He

was semiretired, but receiving accolades was almost a tull-time job. King of
) Comics, indeed.
The positive side won out, as it always had with Kirby. He rarely thought
about what he hadn't gotten, and focused instead on what he had. Oddly enough,
the whole brouhaha over his original artwork-as painful as it had been for him
and Roz-hdped. Having the industry and fandom rally around him erased all
concerns that he would be forgotten.
"They never got my name," Jack said proudly on more than one occasion. His
decreasing ability to produce artwork seemed to coincide with a rise in trophies
and tributes. His name was everywhere, and he was even able to lease it along with
some leftover character concepts to the Topps trading card company for a new,
short-lived comic book line. They called it "The Kirbyverse." Again, there wasn't
much money, but the principle was twenty-tour karat.
r:pp<Uif~
:VI ANY o F J A c K 's T R I BuT E s came via the annual comic book wnvcn- ?rfl!')entation drawingJ for a proposed rli!'W
v~r~ion of Captain America.
tion in San Diego. The con had started in 1970 with him as one of its fir,t guests ,1f <168
An: jad< Kirby and Dryn ~..:k
honor. Apart from the year of his heart arrack, he .mended every one during his lite- ( rJI(W !Mk Kirby
time, w:Hching unsurprised ;~s the event 14rew ~ver hir:;ger J.nd more media-diverse.
Early on. it lud been the -;ubject uf one <)f those Kirby prediLtions th.tt tew CAPTAIII GlORY
10. 1. ~OVff
I
took 'eriously when he made it. He -;aid the con would grow until it took over all Apnl ,q93
uf San Diego. He said that the definition of"com!Cs" would expand heyond those
Art. Don Alar'! Zakrzewski, adaptm~ l(irby drawu"~
irom :968
I'
things pnnted lln cheap paper. It would be about comic books ,1s movies, comic fh~ Iapps (ompMty. Inc I'
I
nooks as televi«ion, comic books in torms yet to be invented. He said-and this i:; a I
quote--" It will be where ctll of Hollvwood will come every \'ear to lonk for the idea !
t(Jr next n:;n'-; movies."
1
K 00356
JA1124
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EXHIBIT C
JA1125
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ME 00959
JA1126
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0
c.o
0')
0
0
UJ
~
JA1127
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1294 of 7
JA1128
ME 00955
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1295 of 7
JA1129
ME 00956
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Filed 02/25/11 of 1296 of 7
JA1130
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Filed 02/25/11 of 1297 of 7
JA1131
ME 00958
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1291 of 3
EXHIBITD
JA1132
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 1292 of 3
J~Q;:~y -·
ME 00965
JA1133
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Filed 02/25/11 of 1293 of 3
ME 00966
JA1134
Case
Case 11-3333, Document 76-1,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75 Filed Page70Page
02/25/11 of 129
1 of 5

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



MARVEL CHARACTERS, INC. and Civil Action No. 10-141 (CM) (KF)
MVL RIGHTS, LLC,
DECLARATION OF JOHN
Plaintiffs, MORROW IN SUPPORT OF
DEFENDANTS' MOTION FOR
-against- SUMMARY JUDGMENT
LISA R. KIRBY, BARBARA J. KIRBY, [Hon. Colleen McMahon]

NEAL L. KIRBY and SUSAN M. KIRBY,
[ECF Case]
Defendants.

NEALL. KIRBY and SUSAN M. KIRBY,
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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DECLARATION OF JOHN MORROW
I, John Morrow, declare as follows:
1. I have been involved in the comic book industry for more than twenty
years as a writer, archivist and publisher. I submit this declaration in support of
defendants' Motion for Summary Judgment. I have personal knowledge ofthe facts set
forth in this Declaration and my attached expert report and, if called as a witness, could
and would testify competently to such facts under oath.
2. In 1989, my wife Pamela and I started TwoMorrows Advertising in
Raleigh, North Carolina, providing advertising and graphic design services to local and
national accounts. In early 1994, after hearing of Jack Kirby's death, I produced a
newsletter about his life and achievements entitled The Jack Kirby Collector #I. In
September 1994, I mailed it free to 125 other Kirby fans. The magazine became popular
and I have now published 55 issues of the magazine through Fall2010. At first I was
releasing issues approximately every two months. More recently, I have been putting out
approximately three issues a year, in a larger, tabloid-size format. Periodically I collate
these issues and release The Collected Jack Kirby Collector. To date we have issued
seven of these books, collecting issues up through #30 along with new material. In the
process of putting these issues together I have done extensive research into Jack Kirby's
life and amassed a wealth of archival material relating to his entire career. I have also
spoken to and formally interviewed dozens of the leading lights in the comic book
business from the 1950s onward as well as members of Jack Kirby's family. I am also a
Trustee of the non-profit (50lc3) online Jack Kirby Museum.
3. In 1998, I teamed with editor Jon Cooke to produce the Eisner Award-
winning magazine Comic Book Artist, followed by the revival in 1999 of comic book
writer Roy Thomas' 1960s fanzine Alter Ego, which focuses on the Golden and Silver
Age of comics (1940s to 1960s) and their creators. TwoMorrows also publishes comic
book illustrator Mike Manley's Draw!, the professional how-to magazine about comics,
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cartooning, and animation, and formerly published comic book writer/editor Danny
Fingeroth's Write Now!, which offers tips and lessons on writing for comics. In 2004,
TwoMorrows launched Back Issue! magazine (edited by comic book writer/editor
Michael Eury), covering the history of comics of the 1970s, 1980s, and up to today, and
in 2006, we spun the "Rough Stuff' section of Back Issue! into its own magazine, edited
by comic book illustrator Bob McLeod, which celebrates the art of creating comics.
4. Today, TwoMorrows is widely recognized as the premier publisher of
books and magazines about the history of the comic book medium. Our publications have
been nominated for and won numerous Eisner Awards, recognizing excellence in
historical and journalistic presentation, and I have been commissioned by both industry
heavyweights Marvel Comics and DC Comics to write introductions to several of their
books reprinting classic comic book series by Jack Kirby, including collections reprinting
DC's Challengers of the Unknown and Sandman, and Marvel's Fantastic Four, Thor,
Nick Fury, and Captain America.
5. Both DC Comics and Marvel Comics have contacted me for assistance in
tracking down both missing art, and alternate or unused/rejected art, for many of their
reprint projects, including art for DC's Kamandi, OMAC, Demon, Jimmy Olsen. and New
Gods series, and Marvel's Thor, Spider-Man, X-Men, and Fantastic Four series.
6. I have had the privilege of serving as a panelist or moderator at numerous
comic book industry events, including Comic-Con International in San Diego, the New
York Comicon, and others. I also appeared on camera in the documentary Jack Kirby:
Storyteller, which was one of the special features on 20 1h Century Fox's DVD release of
the 2005 Fantastic Four theatrical film. I also provided research materials and audio and
video footage of Jack Kirby to the documentary's producer at his request.
7. Attached hereto as ''Exhibit A" is a true and correct copy of my expert
report submitted to plaintiffs on November 4, 2010.
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8. In 2006, Marvel Comics requested my assistance in re-assembling an
entire unpublished Fantastic Four story by Jack Kirby. The genesis of this project was an
article I wrote about this unused story entitled Fantastic Four #108: Kirby's Way, which
appeared in my publication, The Jack Kirby Collector, in 1996. Prior to my 1996 article,
the unused Fantastic Four story was unknown to the public at large, and to the then-
current Marvel Comics editorial department. Marvel paid me to update my Jack Kirby
Collector article, which was used as both an "Afterword" in a Fantastic Four reprint
collection in 2006, and an introduction to the stand-alone Fantastic Four: The Lost
Adventure #1 comic book in 2008, wherein Marvel commissioned Stan Lee to finally add
dialogue to Kirby's plotted/penciled pages, over 35 years after Kirby drew them. In the
course of this project, Marvel paid Jack Kirby's estate $325 per page for the use of that
unused story Kirby drew in 1970, which appears in Fantastic Four: The Lost Adventure
#1.
9. Attached hereto as "Exhibit B" is a true and correct copy of the comic
book Fantastic Four: The Lost Adventure# 1 published by Marvel.
I declare under penalty of perjury that to the best of my knowledge the foregoing
is true and correct.
Dated February 25, 2011
John Morrow
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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: February 25, 2011 TOBEROFF & ASSOCIATES, P.C.

s/Marc Toberoff
By: --~--~~~~~~~~-------

Tel: 310-246-3333

4
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EXHIBIT A
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Marc Toberoff(MT 4862)

Tel: 310-246-3333


MARVEL WORLDWIDE, TNC.,

MARVEL CHARACTERS, TNC. and
MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
USA R. KJRBY, BARBARA J. KJRBY,
NEALL. KIRBY and SUSAN M. KJRBY,
Defendants.
DEFENDANTS' INITIAL DESIGNATION OF EXPERT WITNESS

JOHN MORROW
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Pursuant to Rule 26 of the Federal Rules of Civil Procedure and the Court's April
19, 2010 Order, defendants and counterclaimants Lisa R. Kirby, Barbara J. Kirby, Neal
L. Kirby and Susan M. Kirby (collectively "Defendants") hereby designate John Morrow
as an expert witness whose testimony Defendants intend to introduce at the trial of these
matters. A copy of Mr. Morrow's expert report is attached hereto as Exhibit A.
Defendants' foregoing initial designation does not include any expert whose
testimony may be offered solely for purposes of impeachment or rebuttal. Defendants
reserve the right to amend and/or modify its expert witness designation in accordance
with the Federal Rules of Civil Procedure and the Local Rules of this Court.
Dated: New York, New York TOBEROFF & ASSOCIATES, P.C.

November 4, 2010
By: /~//?;~-

Tel: 310-246-3333

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EXHIBIT A
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EXPERT REPORT OF JOHN MORROW
INTRODUCTION
I understand that Jack Kirby's ("Kirby") children, Lisa R. Kirby, Barbara J.
Kirby, Neal L Kirby and Susan M. Kirby ("the Kirby Family") exercised their rights
under the Copyright Act to recapture Jack Kirby's copyright interests in his work
by filing notices of termination. I further understand that these notices concern
Kirby works published by Marvel between 1958 and 1963. I am further informed
that Marvel filed a lawsuit against the Kirby family in the Southern District of New
York that challenges the termination notices by claiming all of Jack Kirby's work
published by Marvel during this period, and otherwise, was "work-made-for-hire."
I have been asked to give my opinions regarding these subjects as they
relate to this "work for hire" claim: (a) Marvel's history before, during and after the
1958-1963 time period; (b) the business relationship between Jack Kirby and
other freelancers with Marvel during this period and (c) Jack Kirby's creation or
co-creation of many of Marvel's most famous characters during this period.
QUALIFICATIONS
I have been involved in the comic book industry for nearly twenty years as
a writer, archivist and publisher. In 1989, my wife Pamela and I started
TwoMorrows Advertising in Raleigh, North Carolina, providing advertising and
graphic design services to local and national accounts. In early 1994, after
hearing of Jack Kirby's death, I, being a lifelong Kirby fan, dug out my Kirby
comics and, after spending that spring re-experiencing what had drawn me to
Kirby's work originally, decided to produce a newsletter about his life and
achievements. The result was The Jack Kirby Collector#1 in September 1994,
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mailed free to 125 other Kirby fans. The magazine became popular and I have
now published 55 issues of the magazine through Fall 2010. At first I was
releasing issues approximately every two months. More recently, I have been
putting out approximately three issues a year, in a larger, tabloid-size format.
Periodically I collate these issues and release The Collected Jack Kirby
Collector. To date we have issued seven of these books, collecting issues up
through #30 along with new material. In the process of putting these issues
together I have done extensive research into Jack Kirby's life and amassed a
wealth of archival material relating to his entire career. I have also spoken to and
formally interviewed dozens of the leading lights in the comic book business from
the 1950s onward as well as members of Jack Kirby's family. I am also a Trustee
of the non-profit (501 c3) online Jack Kirby Museum.
In 1998, I teamed with editor Jon Cooke to produce the Eisner Award-
winning magazine Comic Book Artist, followed by the revival in 1999 of comic
writer Roy Thomas' 1960s fanzine Alter Ego, which focuses on the Golden and
Silver Age of comics (1940s to 1960s) and their creators. TwoMorrows also
publishes comic book illustrator Mike Manley's Draw!, the professional how-to
magazine about comics, cartooning, and animation, and formerly published
comic book writer/editor Danny Fingeroth's Write Now!, which offers tips and
lessons on writing for comics. In 2004, TwoMorrows launched Back Issue!
magazine (edited by comic book writer/editor Michael Eury), covering the history
of comics of the 1970s, 1980s, up to today, and in 2006, we spun the "Rough
Stuff' section of Back Issue! into its own magazine, edited by comic book
illustrator Bob Mcleod, which celebrates the art of creating comics. In 2008,
TwoMorrows also launched BrickJournal, a magazine for LEGO® enthusiasts.
Today, TwoMorrows is widely recognized as the premier publisher of
books and magazines about the history of the comic book medium. Our
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publications have been nominated for and won numerous Eisner Awards,
recognizing excellence in historical and journalistic presentation, and I have been
commissioned by both industry heavyweights Marvel and DC Comics to write
introductions to several of their books reprinting classic comic book series by
Jack Kirby, including collections reprinting DC's Challengers of the Unknown and
Sandman, and Marvel's Fantastic Four, Thor, Nick Fury, and Captain America.
In addition, both DC Comics and Marvel Comics have contacted me for
assistance in tracking down both missing art, and alternate or unused/rejected
art, for many of their reprint projects, including art for DC's Kamandi, OMAC,
Demon, Jimmy Olsen, and New Gods series, and Marvel's Thor, Spider-Man, X-
Men, and Fantastic Four series.
In 2006, Marvel Comics requested my assistance in re-assembling an
entire unpublished Fantastic Four story by Jack Kirby. The genesis of this project
was an article I wrote about this unused story in my publication, The Jack Kirby
Collector, in 1996. Prior to my 1996 article, the unused Fantastic Four story was
unknown to the public at large, and to the then-current Marvel Comics editorial
department. The story was originally drawn and plotted by Kirby as his next-to-
last issue of Fantastic Four, but it was rejected and went unused and unpaid.
Sections of the story were eventually cut up, rearranged, and used as part of a
later issue of Fantastic Four after Kirby was no longer working with the company,
and much of the remaining art was lost over time until I was able to track it down
in private collections, for use in my 1996 article. Marvel paid me to update my
Jack Kirby Collector article, which was used as both as an Afterword in a
Fantastic Four reprint collection in 2006, and an introduction to the stand-alone
Fantastic Four: The Lost Adventure #1 comic book in 2008, wherein Marvel
commissioned Stan Lee to finally add dialogue to Kirby's plotted/penciled pages,
over 35 years after Kirby drew them. In the course of this project, Marvel paid
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Jack Kirby's estate $325 per page for the use of that unused story Kirby drew in
1970.
I have had the privilege of serving as a panelist or moderator at numerous
comic book industry events, including Comic-Con International in San Diego, the
New York Com icon, and others. I also appeared on camera in the documentary
Jack Kirby: Storyteller, which was one of the special features on 20th Century
Fox's DVD release of the 2005 Fantastic Four theatrical film. I also provided
research materials and audio and video footage of Jack Kirby to the
documentary's producer at his request
ANALYSIS
A. Historical Background of Marvel
Martin Goodman was primarily in the business of publishing men's
magazines. In 1939 he founded Marvel's predecessor, Timely Comics, to also
publish comics. Goodman would use a number of additional corporate entities to
engage in the comic book business as well. The "comic book industry" grew out
of the Great Depression and was hardly an industry at all. It originally served as
just a conduit to republish newspaper strips. When publishers such as Goodman
could not acquire enough newspaper product to reprint, they acquired new
product for publication from eager young artists at cut-rate prices. Comic books
were considered the lowliest form of publishing in both cultural and business
terms.
Goodman's relative Stanley Lieber (a.k.a. "Stan Lee") started in 1939 as
an office assistant at Timely Comics. In 1941, Goodman had Stan Lee, then 18,
run his fledgling comic book business. They published comic books in all sorts of
genres from Westerns and crime to romance books, always imitating whatever
trend was popular at a given moment
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In the mid-1940s, Timely moved to large offices on the 14th floor of the
Empire State Building. Here, Timely had an in-house "Bullpen" of staff artists,
who created comic book stories on salary for the company. In late 1949,
Goodman discovered a closet full of unused artwork, and due to a combination of
this huge, already paid-for surplus of art, along with changes in the New York
employment tax laws, decided it was financially beneficial to fire the entire
Bullpen of artists and use up the surplus art, before later using some of the
previous staff artists in a freelance capacity to create more stories. Goodman
gave the unpleasant job of firing the salaried artists to Stan Lee, and only
retained production assistants and editors as employees. Artists such as art
supervisor Syd Shores, Mike Sekowsky, Joe Maneely, Dan DeCarlo, and Carl
Burgos were now forced to fend for themselves as freelance artists, preparing
stories at their own expense, working in their own home studios.
In 1954 Fredric Wertham's book Seduction ofthe Innocent accused comic
books of poisoning the minds of America's youth. This lead to Senate hearings
on the subject, and the resulting public backlash brought the comic book
business to the brink of ruin. Most comic book companies shuttered, and those
that remained, like Timely, fired nearly all their employees and were barely afloat.
The comic book business had always been small, informal and unstructured, but
in this time of desperation, it was even more haphazard. Goodman's comic book
business was reduced to a tiny space in New York on Madison Avenue with two
small offices, Stan Lee and an assistant. Due to the bankruptcy of its newsstand
distributor, Timely was suddenly limited to releasing only 8 comics per month
with its new distributor (it was previously producing roughly 60 comics per
month). This left another surplus of completed and in-progress stories with few
places to publish them, so to stay in business, Stan Lee was forced by Goodman
to tell his artists (now all freelancers) that, once again, he would not be able to
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buy any work from them in the immediate future. John Rom ita, one of Timely's
main artists at the time, later recalled of that period, "I thought I would never be in
comics again. When Stan pulled a western book out from under me in the middle
of a story, I figured that's it. I never got paid for it ... "
Roughly six months later, once the surplus art was again used up, Timely
resumed buying the material it wanted to publish from freelancers at a per page
rate. However, it had no financial obligation to purchase such freelance material
and no ongoing financial commitment to such freelancers. The free lancers
worked out of their own homes on their own time, without any medical or other
benefits whatsoever, and invested in their own overhead and materials to create
the product Timely was free to accept and purchase for publication or reject
Accordingly, the freelancers, not Mr. Goodman, took on the financial risk of their
creations.
B. Jack Kirby and Marvel
1. Background
From 1935 to 1940, Jack Kirby worked at the Max Fleischer studio,
Universal Phoenix Syndicate, the Lincoln Features Syndicate and Fox Comics,
Inc. At Fox Comics, Kirby partnered with Joe Simon, and to earn additional
income they created on a freelance basis and sold comic book stories to other
publishers. Simon and Kirby were lured away from Fox with an offer of $5 more
per page by Martin Goodman, and there they famously created Captain America,
which was published by Marvel. Simon brokered a deal with Goodman for 25% of
the profits on Captain America for he and Kirby, and Goodman in turn hired
Simon and Kirby as employees to run Timely, while they continued to sell
material on a freelance basis to other publishers. Stan Lee was assigned as their
assistant, and his first published comics work was a single-page all-text story
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featuring Simon and Kirby's creation in Captain America Comics #3. In 1941,
Simon and Kirby's employment by Marvel ended due to a dispute with Goodman
over their share of profits from Captain America, and their resulting agreement to
supply material to Marvel's competitor, DC Comics.
Their agreement with DC ended with the United States' entry into World
War II, when Kirby joined the U.S. Army. When the war ended, Simon and Kirby
partnered again, and created adventure, romance, crime and superhero comics
which were sold to a variety of publishers including Headline, Hillman, Harvey
and Prize. They later formed their own publishing company, Mainline Comics,
which was short-lived due to the comic book witch-hunt resulting from Wertham's
book and the Senate hearings. Simon and Kirby disbanded and Simon went into
the advertising business.
Kirby then co-created a newspaper strip called Sky Masters ofthe Space
Force that was syndicated. Kirby also created the Challengers of the Unknown,
which DC Comics agreed to publish. It was a superhero team that many believe
was the predecessor of The Fantastic Four superhero team.
2. Kirby's Working Relationship with Marvel
In 1958, Timely Comics, which by then was also going by the name
Marvel Comics (and briefly Atlas Comics), published a very small number of titles
and started to seek freelance artwork from Kirby as well as other artists, but did
not employ them. Although Lee had started out plotting and dialoguing most of
the comics himself, along with his younger brother, Larry Lieber, Lee soon
developed a method for working with freelance artists that became known as "the
Marvel method." The Marvel method originally grew from expediency and the fact
that Lee had little or no support staff. Unlike DC Comics, which furnished artists
with scripts to be illustrated, at Marvel, Lee would just confer with the artists
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regarding basic stories and ideas. The artist was expected to plot the story as
well as illustrate the story in panels.
For Kirby, who was bursting with talent and ideas and drew extremely
quickly, Lee relied on the "Marvel method" even more. With Kirby, Lee would
often provide only a bare-bones concept, or just the name of a character, and
sometimes not even that. Kirby would plot and illustrate a story, usually with his
specific notes and dialogue suggestions in the margins of the pages. Lee would
then dialogue the balloons and write the captions based on Kirby's plotting,
artwork, dialogue and story notes.
Kirby worked from his home in Long Island late into the night, not at
Marvel's offices. He was extremely independent; he did not work from any written
material supplied by Marvel, nor did he create under Marvel's direction or
supervision. He simply went to Marvel's offices two or three times a month to
drop off his material. Kirby paid for all his own expenses in connection with this
material and was not reimbursed for such expenses by Marvel. He periodically
bought his own paper, pencils, pens, brushes, ink and other materials. Kirby was
only paid by the page for those pages that were purchased by Marvel after they
had been created and was not paid any sort of salary by Marvel. If pages were
rejected for publication (though uncommon due to Kirby's talent), the pages were
not purchased and Kirby was not paid for them.
Notably, if Kirby was asked to redraw pages, Kirby was not paid double
(once for the original page and once for the redraw); he was paid for only the
redrawn page once it was accepted for publication. Marvel did not provide Kirby
with any health benefits or insurance, vacation or sick pay. The transaction was a
straightforward purchase of finished material. Once Kirby's material was
completed and accepted by Marvel for publication, the material was purchased at
an agreed-upon per page rate. Kirby was paid not for his time, but for the
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material he created that Marvel wanted to purchase and publish. This is also
consistent with Goodman's desire during the 1958-1963 period to severely limit
Marvel's overhead and financial commitments. It does not appear that Kirby had
a written agreement with Marvel regarding his creation of material from 1958-
1963. The first agreement I am aware of was entered into between Marvel and
Kirby in 1972, after he was no longer producing work for Marvel.
Marvel engaged in a practice of putting a legal acknowledgement or
legend on the back of its checks, forcing freelancers to sign under the legend
when they went to cash the check. Some free lancers would routinely cross out
the legend before signing and depositing the checks. It is uncertain when Marvel
started placing such legends on its checks. Up until the 1980s, the legends
stated in effect that by signing the check the freelancer acknowledges that he
was assigning all right, title and interest in the freelancer's material. I believe the
intent of the transaction was that Marvel was purchasing the rights to the material
for publication. In the 1980s, after Marvel had been acquired by a much larger
corporation (Perfect Film and Chemical/Cadence Industries), its management felt
threatened by the "work for hire" provisions of the new Copyright Act pertaining to
independent contractors, and Marvel changed its legends for the first time to an
acknowledgement that the check was in payment for "work made for hire."
I do not believe that Goodman, Lee, Marvel or the freelance artists, like
Jack Kirby, who worked out of their own houses on their own dime, thought that
the material they created was "work made for hire," owned by Marvel from the
moment it was created on their drawing tables in their home studios. Freelancers
like Kirby were free to take unused concepts they created while working on a
Marvel project, or ones that were rejected, and reuse them for other freelance
work for other companies. In fact, Kirby amassed a sizeable stack of self-rejected
pages while working on Marvel projects at home in the 1960s; he knew he would
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not be paid for these pages, so he kept them on hand for possible future use. In
1969, an independent company licensed the rights from Marvel to produce
merchandise featuring Marvel's characters, and under the name "Marvelmania
International," paid Kirby separately for the use of several of his rejected pages
from Marvel projects, plus some personal artwork, and published it in their Jack
Kirby Portfolio for sale to comic book fans. One of those rejected drawings was
reworked later and used as the cover of Kirby's self-published GODS portfolio.
Freelancers were provided no financial security and solely bore the
financial risk of creation. They were only paid by the page for the material they
created once it was accepted for publication. Such transactions in the late 1950s
and 1960s have always appeared to be a straightforward purchase of material by
Marvel after creation.
3. Jack Kirby's Creations and Co-Creations
With all due respect to Stan Lee and his contributions to Marvel Comics,
Jack Kirby was unquestionably the dynamic creative force behind Marvel's
resurgence in the early 1960s and its most iconic superheroes to this day. Prior
to the debut of The Fantastic Four, Marvel produced derivative comics of little
note (with the exception of Captain America, created by Simon and Kirby and
published in 1941 ). The Fantastic Four, The Incredible Hulk, The Mighty Thor, X-
Men, Ant-Man, Sgt. Fury and His Howling Commandos and The Avengers were
all created by Kirby or jointly created by Kirby and Lee. Prior to 1958, Stan Lee
had no significant original creations in comics, while Kirby had a continuous
string of creative and financial successes including Captain America, Boy
Commandos, Sandman, the Newsboy Legion, and the Fly. He and Joe Simon
also pioneered the genre of Romance comics, which in the late 1940s and 1950s
were selling in the millions of copies, and sparking imitators throughout the
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comics field, including Timely. Likewise, Lee can boast no notable original
comics creations after Kirby left Marvel in 1970, while Kirby went on to create
numerous new concepts and characters which are major players at DC Comics
today, such as the New Gods, Oarkseid, Mister Miracle, Kamandi, OMAC, the
Demon, and many others.
The Fantastic Four
Martin Goodman and Marvel were well known for imitating successful
comics at other companies. In this case Goodman wanted Lee to publish a
superhero team book to compete with DC Comics' Justice League of America.
Lee and Kirby then met and bounced ideas off each other. Kirby thereafter drew
the first issue of The Fantastic Four, and Lee dialogued the story. Many view The
Fantastic Four as a descendent of Kirby's Challengers of the Unknown due to
parallels between the works, particularly in a story that first appeared in
Challengers of the Unknown #2 (Aug./Sept. 1958), several years before the
debut of the Fantastic Four in November 1961. (In this story, following a failed
space flight like the one much later in Fantastic Four #1, one of the Challengers
acquires powers that would be mimicked by the Fantastic Four: the ability to
control and shoot flames, superhuman strength, and the power to turn invisible.)
In his 1974 book Origins of Marvel Comics, Lee admits discussing The Fantastic
Four with Jack Kirby before writing anything.
The Mighty Thor
It is well known that Kirby was very keen on and drew inspiration from
mythology, particularly Norse mythology. In 1942, Kirby created a Thor-like
character in a story he did with Joe Simon-"Villain from Valhalla," published in
May 1942 in DC Comics' Adventure Comics #75. Kirby thereafter included Thor
in DC's Tales ofthe Unexpected#16, published in August 1957, where Thor
sported a horned helmet and wielded a magic hammer.
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In contrast, at no time before or after the appearance in 1962 of Marvel's
Thor in Journey into Mystery #83 (August 1962) did Lee, or his brother Larry
Lieber, the credited "writer," express any interest in Norse mythology, or in using
mythological gods as comic book characters. Kirby on the other hand was
fascinated throughout his life with mythology, and in particular, Norse mythology.
In a 1998 interview by one of my company's competitors, Stan Lee was
asked about the mythology-based "Tales of Asgard" Thor stories, and he replied,
"... most of those were dreamed up by Jack because he did a lot of research on
Norse gods ... more than I did."
I have no doubt that The Mighty Thor was a Jack Kirby creation.
Spider-Man
It is also well known that Kirby was involved in the original creation of
Spider-Man, based upon a character called The Fly that Simon and Kirby had
created in the late 1950s based on an earlier character called The Silver Spider.
Kirby originally drew the first five pages of the initial Spider-Man story, which like
The Fly was about a young orphan who with the aid of a magic ring transformed
himself into a superhero. Lee rejected Kirby's story, and then asked Steve Ditko
to draw the first Spider-Man story instead of Kirby. Interestingly, Lee did not use
Ditko's cover and went back to Kirby for the cover of the first Spider-Man story
published in Amazing Fantasy#15 (August 1962). Whereas Kirby was paid for
this cover, he was not paid for the five Spider-Man pages that Marvel rejected.
Sgt. Furv and His Howling Commandos
In an interview conducted for my magazine, Jack Kirby Co!lector#25
(August 1999), artist John Severin, who had worked with Stan Lee both at
Timely's Empire State Building location and the later Madison Avenue address,
recalled a meeting with Jack Kirby in the late 1950s. Severin related the
following, which perfectly describes the concept of Sgt. Fury:
12
JA1155
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75-1 Filed Page91
02/25/11 of 129
Page 17 of 21
"Jack wanted to know if I'd be interested in syndication [of a newspaper
comic strip]. He said we could be parlners on a script idea he had. The story
would be set in Europe during WW/1; the hero would be a tough, cigar-smoking
Sergeant with a squad of oddball G.l.s-sort of an adult Boy Commandos.
"Like so many other grand decisions I have made in comics, I peered
through the cigar smoke and told him I really wasn't interested in newspaper
strips. We finished cigars and coffee and Jack left, heading towards Marvel and
Stan Lee."
4. The Original Artwork Fiasco in the 1980s

From the 1940s through 1970s, Marvel paid little heed to freelance artists'
original artwork once their sole focus, the published comic book product, was on
the stands. Artwork was left unattended in Marvel's offices; those pieces that
were not thrown out, misplaced, given as gifts or stolen were placed in storage,
and even from storage much of this artwork mysteriously "disappeared."
As such artwork began to fetch considerable sums in the 1970s, artists
began demanding their artwork back. DC Comics capitulated, publicly stating that
it had no legal claim to the artwork. Initially Marvel refused to return artwork but
changed course in the mid-1970s and began returning then-current artwork. By
the late 1970s Marvel began returning older artwork from the 1960s provided the
recipients signed releases drafted by Marvel re-characterizing the artwork it had
purchased as "work made for hire." I believe that Marvel did this for two reasons.
First, Marvel management was concerned that if they kept the artwork, they
could wind up owing New York a tremendous amount for years of sales tax on
the purchase of this artwork. Second, Marvel's management and attorneys at the
time were obsessed with the implications of the new Copyright Act's "work for
hire" provisions.
13
JA1156
Case 1:10-cv-00141-CM-KNF 76-1, 01/26/2012, 509515,
75-1 Filed Page92
02/25/11 of 129
Page 18 of 21
They thus embarked on a campaign to retroactively force their original
purchase of rights to that older freelance material, into the new "work for hire"
mould. To do this, they agreed to return income-producing artwork to freelancers
provided that they sign "work for hire" acknowledgements or "releases" drafted by
Marvel's attorneys.
Due to Marvel's heightened insecurity with respect to their ownership of
Jack Kirby's numerous, and now famous, creations, they insisted that Kirby sign
a special four-page release, given only to him, before he could get his artwork
back. The release Marvel insisted that Kirby sign was filled with especially
onerous tenns not present in the one-page release Marvel demanded from other
freelancers. Kirby refused, and this debacle dragged on for years. Finally, in
1987, after years of negative publicity and outcry within the comic book industry,
Marvel reduced Kirby's "work for hire" release to a single page, and Kirby, who
had become increasingly concerned about providing his family with some future
financial security, succumbed and signed the paper.
CONCLUSIONS
To recap, I believe that Kirby's work for Marvel from 1958-1963 was not
"work for hire." Freelancers from that era assumed they were assigning to Marvel
the material they created after cashing their checks for the purchase of such
material, which was industry practice at the time. No freelancer in the industry
during that period, to my knowledge, felt that what they were submitting for
purchase and publication was already owned by the publisher as "work for hire"
from the moment it was created on their drawing tables in their home studios.
Nor do I believe that Marvel, itself, in this period, viewed or understood such
freelance work to be "work made for hire," since there is no evidence of Marvel
14
JA1157
Case 1:10-cv-00141-CM-KNF 76-1, 01/26/2012, 509515,
75-1 Filed Page93
02/25/11 of 129
Page 19 of 21
having documentation to support it. It stands to reason that if Marvel had, they
would have required freelancers to sign some kind of written document or
agreement at the time, or otherwise would have substantial evidence of such an
understanding.
Kirby, as a freelancer, produced work at his own expense from his home
studio, and provided his own materials and supplies. He took the sole financial
risk for the material he was producing, because he was only being paid if it was
accepted for publication. He never had a written contract from Marvel during that
time period, and he was not afforded any financial security.
I further believe that, based on the historical record, Jack Kirby deserves
credit for the creation or co-creation of characters from that time period, including
The Fantastic Four, The Incredible Hulk, The Mighty Thor, X-Men, Ant-Man, Sgt.
Fury and His Howling Commandos and The Avengers.
Finally, I believe that Marvel began returning original artwork to creators in
the 1980s because they were concerned about the sales tax implications of
purchasing all of this freelance artwork over the years, and anxious about the
new Copyright Act's "work for hire" provisions. In doing so, they set about having
artists sign releases re-characterizing all this original artwork as "work for hire,"
even though this was long after the fact, and was a not-so-subtle attempt to
rewrite history to conform with the new law. Not surprisingly, in light of Jack
Kirby's prodigious talent, the tremendous value of the work he had created, and
Marvel's heightened insecurity as to the status of that work, Jack Kirby was
singled out to sign a particularly onerous release.
COMPENSATION
I am not being paid for my services as an expert witness in this case.
I5
JA1158
Case 1:10-cv-00141-CM-KNF 76-1, 01/26/2012, 509515,
75-1 Filed Page94
02/25/11 of 129
Page 20 of 21
PRIOR CASES
I have not previously served as an expert witness in a legal matter.
PUBLICATIONS
Over the past ten years I have authored the following publications:
The Jack Kirby Collector, Issues 1-55.
The Collected Jack Kirby Collector, Vols. 1-7.
Jack Kirby Checklist
Jack Kirby Checklist, Gold Edition
Kirby Five-Oh!
Kirby Unleashed
Captain Victory: Graphite Edition
Silver Star: Graphite Edition
Streetwise
Respectfully submitted,
John Morrow
16
JA1159
Case 1:10-cv-00141-CM-KNF 76-1, 01/26/2012, 509515,
75-1 Filed Page95
02/25/11 of 129
Page 21 of 21
I hereby certify that on November 4, 2010, I caused a true and correct copy of the
foregoing Defendants' Initial Designation of Expert Witness John Morrow to be served
by first class mail on the following counsel of record:
Randi Singer
WElL GOTSHAL & MANGES LLP
767 5th Avenue
New York, NY 10153
David Fleischer
HAYNES BOONE LLP
1221 Avenue of the Americas, 26'h Floor
New York, NY I 0020
Nicholas C. Williamson
JA1160
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 129
1 of 23
EXHIBIT B
JA1161
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 129
2 of 23
JA1162
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 129
3 of 23
JA1163
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 129
4 of 23
Between 1961 and 1970, Stan Lee and Jack Kirby produced 102 consecutive issues of
FANTASTI C FOUR, as well as six Annuals. However, th ere was a 103rd issue
that they'd begun working on, but never completed.
While portions of that story saw print some months later as an extended flashback
sequence in FANTASTIC FOUR #108. the original incarnation of that tale has
never been finished--until now!
Working from Jack Kirby's penciled pages and their extensive border notes. Stan Lee
and Joe Sinnott have reunited to complete what they'd begun 38 years earlier, aided in
part by Ron Frenz and Chris Sotomayor.
This is
fAnTASTIC fOUR: THf LOST ADUfnTURf
" THE MENACE OF THE MEGA-MEN! "
A Stan Lee and Jack Kirby Production
Add itional Pencils by Ron Frenz
Embellisher- Joe Sinnott
Colorist - Chris Sotomayor
Letterer - Artmonkey's Dave Lanphear
"FANTASTIC FOUR #108: KIBBY'S WAY"

Writer - John Morrow
Designer- Rommel Alama
FANTASTIC FOUR #108: "THE MONSTROUS MYSTERY OF THE NEGA-MAN! "

Writer - Stan Lee
Pencilers - Jack Kirby, John Buscema &John Rom ita Sr.
lnker - Joe Sinnott
Letterer - Sam Rosen
Color Reconstruction - Michael Kelleher
Assistant Editor - Molly Lazer

Editor - Tom Brevoort
Editor in Ch ief - Joe Quesada
Publisher - Dan Buckley
Special Thanks to Jeff Youngquist, Mark Beazley, Lisa Kirby and the Kirby Estate
,._t ; :;i r; ~O'JA: iH £ l OST AOVUtTtJRE No. l . AF'I, 7M. P:;DP~r'led as a C~·St.r,! :•l ~~;.~V:_ ._ ;:,~aL ;S--'!~.(1 ' I( 1 -.. .:..;. c-;.·-. ~~ '·'~'/~~ ~ f~lE~";"l:-:JAE~ · ·'f(.. !:'~·Ct ·_'..f ,;.~,:aL (:t,_T ·C~ J~:'" ~:"1 ;.,.:... ; fl '•': :r ·~ ·(
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JA1164
1:10-cv-00141-CM-KNF 01/26/2012,
Document 75-2 509515, Page100
Filed 02/25/11 of 129
Page 5 of 23
LEARN THAT TWO MEADS ARE DEADt.I!R THAN ONt!
JU$T FOR A CHANwE, WE OON'T OPEN WITH REEO BENC>ING OVER

SOME FANTAStiC, SCIENTIFIC KIRBYESOUE CONTRAPTION/
BUT THAT TWO-HEAOEC> STATUE MAY PROVE

TO BE THE MOST FANTASTIC ITEM OF Al..Ll
A STAN LEE ¢ JACK KIRBY P~ODUCTJON

JOE SINNOTT • CHRIS SOTOMAYOR • ARTMONKEYS
EMBELLISHEJ< COLOJ<IST LETTEJ<EJ<
MOLLY LAZER TOM BREVOORT JOE QUESADA DAN BUCKLEY SPECIAL THANKS TC
ASSISTANT EDITOR EDITOf:Z EDITOR IN CHIEF PUBLISHER JA1165
RON FRENZ
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 6 of 23
L
!.
JA1166
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 7 of 23
•wiTHIN SECONOS, THE CITY KNEW IT

WAS NO AOVEil.TI$/Nt; $TUNT!"
JA1167
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 8 of 23
l'.j ,: .. r p. 1.-(1 " "' (, u. nur

b ~l.a•l, , • '~ an.n ~ d t.t ~.J,hJ
1. -· tl,,., ill , .. ,r..., ,,J,JI .l~o~ 1....l • , 1.... 1..
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1n
II .. tl,. ,, ,, •!tiWJirt'
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Ttxt ktyYOrd "uyta." to 49137 for tbt IIIN!r leO I fret 1110piper,
NINTENDODS~
or visit l'rofwor!J.yt®DS.COII to txplon tlri.s Jnlqu Nilltendo OS
adveat;rt fille11 with riddles. puztes llld lliddn trusa~ o%Jt.;a\'fiLm.
Standard text lllB'>Sage ra tes apply.
- • •J • • • t-. _ : • < • ., • ":\: ·;.·:~'"'-'- ~ •. • .._ ~ ,,. • -:...· -"oJ · ·~ -· •... ..... ~ • ~ , ).:: >-"" : · ~·~: 1 1'-:.- ·: ·...-o~:~ ~.~:> • , · ·:< v ·,-;..'~f'.
JA1168
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 9 of 23
NOTE: ~E!<!EADING TH!9 PAGE A FTE'~ ALL TH£9E YEA!<!9, ! S UDDE'NLY

FEEL COMPELLED T O APOLOGIZE FO~ THE LACK OF ACTION. ! GUESS
JACK AND! WE!<!E J US T KIND' A COAS TING AT THE TIME.
JA1169
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page105
02/25/11 of 129
Page 10 of 23
YOU GI<OTE9QUE, J.OCK, CORN9ALL. • • YA11.L

I<ATED CLOOl YOU'I<E £:JE JAN~ WIT'1'1ff F-AT
T AL.KING TO JANUS, IP IF YA DON'T GIT OFFA
THEME~/ /lACK.'
I·.
JA1170
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page106
02/25/11 of 129
Page 11 of 23
JA1171
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page107
02/25/11 of 129
Page 12 of 23
JA1172
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page108
02/25/11 of 129
Page 13 of 23
JA1173
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page109
02/25/11 of 129
Page 14 of 23
JA1174
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page110
02/25/11 of 129
Page 15 of 23
LATER- AS KIRBY DISPLAY$ H/9 SKILL

AT DllAWING A BUCOLIC $CENE-·
l
I
l·
i
'
JA1175
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page111
02/25/11 of 129
Page 16 of 23
JA1176
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page112
02/25/11 of 129
Page 17 of 23
KEEP PLAYING YOU!<! ROLE,

9ROTI-IE~ , AND MAYBE r'LL
USE THE MONEY I'VE
LOOT ED TO HE:LP YOU
WALK AtiAIN!
JA1177
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page113
02/25/11 of 129
Page 18 of 23
r DON' T GIT IT! A FlOW

HOUT/.9 AGO HE WUZ
CLOBBERIN' EVE~YONE
1-110$.41¥.
NOW, HE SUDDEN I..Y
LOOKS LIKE A T~EMBLI
MI$TER NICE!
~:>:::~
:I
ll.,
:!
JA1178
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page114
02/25/11 of 129
Page 19 of 23
HE CAN'T FOOL. ME. THE MIOL.E THING~ UK5 A

I'H£~ 15 :;T'Ji.. L..
A I.OT .JIGSAW PUZZLE· · ·
HE AIN'1' 'TOLP US· WITH l.OTS OF NIJ~~.,Nr..
PJI:CE::;G; :_·_._....~~~
;:
!
i
JA1179
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page115
02/25/11 of 129
Page 20 of 23
!l
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JA1180
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page116
02/25/11 of 129
Page 21 of 23
JA1181
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page117
02/25/11 of 129
Page 22 of 23
.,,,
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JA1182
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-2 Filed Page118
02/25/11 of 129
Page 23 of 23
JA1183
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 1 of 23
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JA1184
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 2 of 23
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JA1185
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 3 of 23
JA1186
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 4 of 23
JA1187
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 5 of 23
1. "Famous archeologist has dug up statue of twin god Janus--wants to verify its date with Reed Richa rds' equ1pment·· •
2. STAN LEE BORDER NOTE: ·'Art dealer--why did Alicia do that strange statue?" 3. STAN LEE BORDER NOTE:
"Reed--it represents one of our greatest cases.· 4. · one face of statue is calm--wholesome . Other face is evil--savag e."
5. "Why should statue have been unearthed at this particular time? Strange."
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__/:/./·- / ,, ..-· , ; , ·( :' ·~- ~ 0~,. -- "_. J, ., , ,-'" .. ,;_
JA1188
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 6 of 23
1. "Eve n anc1ents pondered problem that still p!aoue s man tod ay .. 2. "Th iS rad1ation te st w1!1 prove date conclusively ..
3. " The rays reac t. .. 4. " This mtensity meter places statue at 4000 B.c.· 5. "That fierce lace· ·thank goodness
we·ve progressed today." 6. I From FF #108. Page 1. Th e panel was cropped when pu blished )
/ ·/ .
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JA1189
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 7 of 23
<As published in FF 1108. pages 2-5.)
JA1190
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 8 of 23
1. "This grves mtruder temporary strength of Thmg--t1e bops Ben hard_" 2. "Then lrke beast he hammers a'llay without
mercy" 5. "Torch comes to meet Ben--rnstead trnds shambles_" 6. ·-1 don't know how you did all thrs--but rt's overr·
,_/ /'(,y ,, -- // '

_,.-1!? ---;-://! -
JA1191
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 02/25/11 of 129
Page 9 of 23
: As pulJ!iSiltHI IP FF s108 P<t(Jt 6;
JA1192
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-3 Filed Page128
02/25/11 of 129
Page 10 of 23
1. ··rorch >l hlri S m . nightmare .. (From FF ~ros. Page i. Panels 1-3 } 2. " . ... . . like bad drea m...
3. " Torch wakes up in _ . .. .. . 4. "Ben says we blew It--the guy got av1ay with a million bucks .. 5. [mtss,ng panel
1
6. ··Yeah·-ne"s n O\'! number one--on tne ten mosl wa nted felons'"
7. ·we can't slay here ! Let's gel h,rn .. " ·'Reed says cool rl- -he·s tollov1ing a lead ··
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~ ---- --- ··· ••• " '- " ' ' ' M - 0+ - -- - 0 on · ·- ' " •· - - --•• • n . ' ' ' ' " ' ' - ""
/r ..-: / j -"',.',:.-·
.·~./ :-· , ..· .. ·_ . . .'
JA1193
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
75-3 Filed Page129
02/25/11 of 129
Page 11 of 23
1 r!:)m f"F 1 108 page 15 panel4 J 2-5. IM,sstng Pa nels. probably snomng Sue ol~ntm g a Mtm-C.Hnera In Janus· llO!!~e
·-·- -- -·- - - - - --------- - - - ---·- ---- - -···- -- -
®
1 2. tMissing Panels. probably showing Sue planting a Mini-Camera In Janus· house.) 3. · Reed is amazed at mildness of Prof.
. : 's complete opposite of Ben·s description.· 5. · Meanwhile. the Prof's evil brother has been watchtng--he says Richaras must
.,. ll,lbbergasted." 6. '" Prof says--why did you have to come after all these years?"" "Because you're a perfect cover. brother--·
· ~ . 1' ·' ! ~ :j_ '

.· '~
,·. , ..
JA1194
Case 11-3333, DocumentDocument
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
12 of 23
®
1. ··I've been av1ay perfecting Mega-Power. Now--I'll gain money-power." 2. · You won't talk. The town won 't talk- -
or it's curta ins'" 3. "Stick with me. With Mega-Power-- I may even help you walk again:· 4. "Rtght now I'm gong to be busy
in lab. Richaras didn't go away without buggtng ttle house.- 5. ·rve got tnstruments to trace his bugs ana destroy them. Now
leave me.'· 6. "Yes--my plans don't stop here--1'11 empty that whole ctty or its money·· 7. (From FF Page 7. Panet 6. l nos.
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Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
13 of 23
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This page would have been split into two half pages. with ads running under them··A practice that got a
20-page story out of only 19 pages ot art. 1-2. (From FF ,f108. Page 8. Panel 2 and 3.) 3. (From FF 1108. Page 8. Panel S )
4. .. - - ----- --- - - ----- - with mini-camera (From FF 1108. Page 9, Panel1.) 5. "What Happened?" "Ben says--Reed's mini-
camera blew up in our faces--that's what! " 5. "ThaJ was no malfunction--that was Mega-Power. Listen Sue--I have a nutty idea--"
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JA1196
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
14 of 23
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1. "Let him gtve her crazy ideas--1'11 take action- -the real culprit must be 10 city ~--~ ~----~- rignt now! "
2. "We'll take Pogo Plane on upper floor. We'll scout around until we nail this bird.'' 3. "Ray shoots out I rom Johnny's belt.
'i. It strikes "up" button.· 6. "Ben says--you can't have girls tagging along all the time--Alicia's visiting - ----·-- --- ---- - - ·
7. "Boy--these controls feel great--did you kno¥w_l y.'3S a World Wa! ~ ~c~? " , '/./,
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JA1197
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
15 of 23
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1. "How's this for a takeoff--she handles great!" 2. "__ ___ friend's crummy craft! I'll take him like the Red Baron."
3. ·vou see what 1see?" 4. "Flying debris from street below. Ripped out by Mega-Power! Let's go I"
6. "He sees plane! I can't !eave without a parting shot--"
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JA1198
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
16 of 23
1·2. (From FF nos.

Page 13. Panel 1·2 . Originals were cropped.) 3. ··sen 1 The cockpi t"s frozen tight'
Ben says Flame On. kid. Get out! I can·t control it.'' 3-7. !From FF 1108. Page 14. Panei 1· 5.J
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JA1199
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
17 of 23
®
1·2. (From FF 1108, Page 14, Panel 6-7.) 3. '·Bruised people say--are we in his power? Can you stop him? "
3·5. (From FF 1108, Page 15, Panel1·3.) 6·7. (From FF 1108, Page 16, Panel3·4.)
JA1200
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
18 of 23
1-2. (from FF 1108, Page 16, PaneiS-6.)3-7. (from FF 1108, Page 17, Panel1-5.)
JA1201
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
19 of 23
1
1
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l 1. (From FF 1108, Page 17, PanelS.) 2·3. (No Margin Notes Visible.) 4. "She grabs gun before twin can reach for it." "Reed says--
use gun to cover bad twin. Sue!" 5. ''Reed says to good twin--you're a fool you know. The criminal's path is no solution."
6. {Margin notes are erased.) 7. ''Reed touches good twin's feet with trigger." (The page number "19" has been erased, but Is visible.)
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JA1202
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
02/25/11 of 190
20 of 23
1. (Margin Notes have been erased.) 2. "Who can tell what Mega-Power can do?"
3. "Don't trust him! Get him while you can! I'll handle ltle girl! " (Note the scalloped corners. indicating this was considered
for a flashtlack scene in FF #108.) 4. (Margin Notes have been erased.) 5-7. (Missing Panels.)
JA1203
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-3 Filed Page10
02/25/11 of 190
Page 21 of 23
JA1204
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-3 Filed Page11
02/25/11 of 190
Page 22 of 23
JA1205
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-3 Filed Page12
02/25/11 of 190
Page 23 of 23
"K'EACHING ~!i£1" W:Vtl., rr P!..OWEP

MER~IUS~Y TH~U AN"f'T'HING IH
m; PAT;i,H
JA1206
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
1 of 22
CRINGE, YOU 1-tAPl..E55

W£AKIJNG!i: C~I NGE
ANP TR£M6t.E,
AS YOLI F'INAL.i..Y
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ASOUT rr.
01-11.."1' M~D·UI:o .MARVEL WOJJI..O
Ft.A51{~ACK ,CENf<~ FROM A STO~ Wf 1VE
JA1207
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
2 of 22
/.001(, CORN9AL!.··YA1!.!.
9E JANU~ \VIT'1'Hf FAT
IP IF YA DON'T GIT OFFA
PACK!
JA1208
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
3 of 22
NOW, MY
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HASeEEN
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JA1209
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
4 of 22
JA1210
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
5 of 22
ONt.Y YOUR FJ.AME

C!IN PRE' veNT TH~
'5~0CK F~
fLAYING YOU
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JA1211
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
6 of 22
.t OON'T Glr IT/ A FEW

HOV/17 AGO HE WU%
CI.OIIIIGIVN' EVEI<Y-
OI'If. liE SAW.
JA1212
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
7 of 22
IT A l'l'T POSSIIILE.' NOTHING·· EXCePT A POSSISI.E THAT MUST 8£ WKAT THEN TI-IA-r'S WH Y
NOTIIIN ' TtiAT HAPPEN:; NEW ~OU~CE 01= ENEI?GY • · 11E ME.A~T · · ·WI-lEN HE ,JANU!> CAL.L.SD HIM
IN MIPVALF CAN i1U~T ~E: POWERFVt. T~AN ANY K'GFE~~ED 70 >fl$ ~J.. e·· Twli NEGA-
OUR VIZI·PHONE 'WAY ODIE!<. FOI(Cc ON NEGATIVE POWE~ MAN!
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1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
8 of 22
THE WHO~r THING~ !..IKE A

.JIG-SAW PUZZLE· · ·
WI'TH L.OTG 0~ Mi'.SS;JN,t;
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JA1214
1:10-cv-00141-CM-KNF 01/26/2012,
Document 509515,
02/25/11 of 190
9 of 22
YEAH? WUOMAOE YOV

A •'lliNC'-I<f:A:>ER AI.!.. 0~
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JA1215
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page22
02/25/11 of 190
Page 10 of 22
THINK aACK
AGAIN-· 9'ACI<
TOiHAi DAY
W145N YOU
lANPEPT!lE
POGO P t.At.lli·
ANOs..::IW·
I Wit.L. r?ICTATE THE 'n'RMS

LJ~O~~ WHICH HE WILL. ~UR
RENOER 'TNG CITY' ANO
AJ,.1. IT ~INS 'ro MFI!
JA1216
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page23
02/25/11 of 190
Page 11 of 22
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JA1217
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page24
02/25/11 of 190
Page 12 of 22
Ni!VER MlNP THEM, EJ!H,

I'M WOHOEiliNG IF JIWU$
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Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page25
02/25/11 of 190
Page 13 of 22
JA1219
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page26
02/25/11 of 190
Page 14 of 22
JA1220
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page27
02/25/11 of 190
Page 15 of 22
JA1221
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page28
02/25/11 of 190
Page 16 of 22
711AT'S WJ.4Y l-IE

B~OKf INTO 'tt.XJI?
l~8!'THAT'5 WHY
H~ 5TOI..i ~ST
YOU ··TO FAce THI!
HORRORS OF TJ.IE
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JA1222
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page29
02/25/11 of 190
Page 17 of 22
60TT'A GO At:ri!R '1 M • • DRAG !.'A BACK·· .,_.. E3t. ~-?'T :; O NINCOMPOOP/
NOW, S!OFOR!? !T'.G TOO tAT/!! !OI:!ORY 5E!CONO WE: WAIT f5
GOt-.;N A V.AI<c IT1'01./GHiiR
lA FINO 'IM/
JA1223
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page30
02/25/11 of 190
Page 18 of 22
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JA1224
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page31
02/25/11 of 190
Page 19 of 22
Dust · "She's one of the most powerfuiiiiiJtolm

i'l tile woOd. Her power is so YefSIIIIe Olld, fred:~,
ooJiy smry. We'ye seen hef peel !he sm off people
with her dust Sbe Clift get in and out of ony IMrilding.
We're just ~y she's ogood guy, er, gol."
wBasicol~, Cydops is personal~ making

this the tightest ~atoon of X-Men ever.
He's got big ~ons for these kids.w
"One hint about the Brotherhood -

this isnIt the first time these moracte f'S
have been new."
JA1225
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page32
02/25/11 of 190
Page 20 of 22
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JA1226
Case 1:10-cv-00141-CM-KNF 76-2, 01/26/2012, 509515,
75-4 Filed Page33
02/25/11 of 190
Page 21 of 22
MJIIIVft. r:ac,wat:y .-;an ~ s!?e n.s l"if1ol e Mc,r, and

81a•:~ Bo•l r:nd S•l·;e~ S"rfer ana so or
Sc;t ·11e b o~' agreed ea•·'l on :r.at U•e
ressc•"· :ne oooK has:; t soic as we•: as
MARK MILLAR: 1~ a worcf? Exc·~·ng It real-·1 re'l"l;nd5 me or the I·.Aarve.'
·l d1d •'l ·L:> '1eyca 1 :E because tr.e fam,l t
U~wersE I r1rst d·~co ·;ered when i MJS il I ttle k•d Marve 1 bOOk5
nas•• t bee•: al:o·.ved to grc~-,-~ orgf:ln:cal:y
a•ways see:Tled a '• tt!e mo-e rea: ard hgrten:ng lhaP DC !Jc;o~s
I tt"1nr. FF n:;s probSb!y had the greatest
It was'''t a I'IOr'd wnere the her oes w!?re Q L:, ~s as corrfort.able N1th
n::rr,beo ol top creators OJt of an/ book :n n•s·
one ar.olher Ever wne:1 they ~eL J..ke 1 were aruafs loghllng whereas
:or., ;;r:d ·1et r.t>e bam. has bee:·: Huck ·~ t~•e rr:1ddle
t~e DC guys ai~Jars seemed i1KE U H~l' ·tJo•·e 901~1 9 f:sl~'" 9 together
or the char: s s1r.ce rra·tbe t'le early se•1ent1e5 I cons,dered m.s a
wtlen the, were oH- du~y I hke tne sl:gr.tlr unc o~lorlable feel of the
yree:t :lea· a1d I ~e al ·y th•nk 1t s t;ecause all those b;g changes tnar
'1e.,, t·lla•·vel U111verse The 1dea ~~a t •t"S constcntl f •n 1:~x
rnarJe .: rad•ca· happer;ea 1 ~1 :.hose kst ter. ·,ears a"d 51r ce tner. •t.S
sta1ed tr,e same s•ze f:-.n>J :am,lf t~'.at nasnr_ g•owr. 1n 35 years 1s
MARI/fl ' ·: ;1'1
go•c-g to feel Olfl"llllJSheo And so we ve tneo t o :Prow as rna roy new
,:': (::·
.... ·. concepts a:1d characters O:Jt there as ·Ne ca'l Doom w:ll be used.
bu: G'll/ :n a way hf" 11asn"t beer. done befo:e
MARK MillAR: Ver-y much so Ctv1l War was all abo~t pull1ng sorr1e-
th1ng apart It was always about a i1ne be•rtg drawr dowr. the m•ddle MllRIIH: ,, , · . :J• :I;' ' , •• ., , ·,
of the Marvel Universe. But now n1~ sp1der-se'1se tel:s me tnat the
t•me IS r.ght for reconc,ilat;on Th1s 1S a:l about budd•ng th1ngs uo
MARK MILLAR: JonnP/s out there copp•ng off w1th all these toP
and makmg peoo!e feel good aga•r It"s very much a response to the
b•rds ar.d Reed's busy 'N>th h•s expeo1rnents when they aren't sav1ng
gloom1ness of C!v1/ War
the wor:d 8dt I te't l. ~e Sue real!y needed somethtng to do Shes
S'11art a:;d resourceful and IS one of the best-connected peoole 1n
MAll lift; .. , ·-·:· . >.!
tne Norld so I wanted her w get together W•tll Stark Int ernational
. . :· . .L •:t : J
and star:: a superhuman relief effort to help v•ct•ms of super-v1lla•n
_l , ·
cnrr.e Th:s can be 01g or smal' and 1t's a chaPt.y she·s sta•ted up w1th
MARK MILlAR: It's •nfluenced us enocrnously •n the sense that we •e She·Huik and Waso. Mommy's essent1aily go•ng out .:o work now
11ever refernng to the!Tl even once. Wroy? Because the lesson we've
hopefully learned from the Lee arxl Kwby run •s to do corni:::s our D"/.r.: MIIRV£1: .·:·· .. · .,:-:.·: · .. ,. .,!:., ·:. I.• ··: ··· :, ..•. : · ... ·
way YOL• have to look at t.tle h.stoncal con!:ext of tne f.rst Fantastic Four
MARK MILlAR: Yeah. sne s greet r_,r, lc 1ust alway'S s:c;;ck :11e that
ThiS was a boo~ that broKe all the rules and CO:lstafl"i' changed It
was unlike anyth1ng else around at tl1e w•1e ac,d v1e ha·te to tr 1 to
Reed ....-atlld ha·te had so'!leone 0~10r to Sue s•xe roes ten {ears order
tnan she •s Also Sue's so Mte•ent from Reed thct : felt t'le g ·ol out
do somet'11ng s•m;lar Of course . •t needs to feel like Fa11tast1c Fo.;r
tnere wo,,id be much 'llace: i1ke ne was 2 1e:nale ~ eed Q:ctla~ds of
but were Star and Jack a coup!e of u,r,y-somerh:r;gs no·A ! lee' tl' e;
so:--ts and SO'i-eune !ted h C'.JP, :1e~ 0~ :.J'"~ :versc; L=. :~J C~ .''o' Ol)d l:a ·~·e
wou o rrake 'ne book the1r own by :Jane• 3
•l Chr1s C:Jaremo"~ cree:E>c ex<OC'-'"i SL.CI' a c;·,a··acter ana her f'am~
MARI/!1 : !S A!ysse lAD! Hec 111eknar.1e •r< OL:r St tY)' ·s Mr:; Fac,ast c ar.d
10 1: q se-e ·.:!l!r; vihe·1 }OL: "eao tr,e 11rsi: ·SSue
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'Nuff Sa• . JA1227
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Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com


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

MVL RIGHTS, LLC, DEEFENDANTS’ STATEMENT OF
MATERIAL FACTS PURSUANT TO
Plaintiffs, LOCAL RULE 56.1 IN SUPPORT OF
DEFENDANTS’ MOTION FOR
-against-
SUMMARY JUDGMENT
[ECF Case]
Defendants.

Counterclaimants,
-against-

JA1229
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Pursuant to Local Civil Rule 56.1(a) of the Local Rules of the United States
District Court for the Southern District of New York, defendants Lisa R. Kirby, Barbara
J. Kirby, Neal L. Kirby and Susan M. Kirby ( “Kirbys”) submit the following Statement
of Undisputed Facts in support of their Motion for Summary Judgment:
1. On September 16, 2009, the Kirbys served Notices of Termination
(“Termination”) pursuant to 17 U.S.C. § 304(c) to recapture their father Jack Kirby’s
copyrights in his works by statutorily terminating all prior grants of copyright therein,
including a 1972 agreement between Jack Kirby and plaintiffs’ predecessor Magazine
Management Co., Inc. Declaration of Marc Toberoff (“Tob. Dec.”), ¶ 4; Ex. A; Ex. M.
2. On January 8, 2010, plaintiffs Marvel Worldwide, Inc., Marvel
Characters, Inc. and MVL Rights LLC (including predecessors, “Marvel”) sued the
Kirbys, seeking a declaratory judgment that the Termination is invalid on the purported
ground that the subject works, published from 1958-1963, were all “works made for
hire.” See Complaint at 2 (Docket No. 1).
3. In 1954 Fredric Wertham’s book Seduction of the Innocent accused comic
books of “poisoning the minds” of America’s youth. Declaration of John Morrow (“Mor.
Dec.”), Ex. A at 4; Declaration of Marc Evanier (“Ev. Dec.”), Ex. A at 7; Ex. F at 200:4-
201:20.
4. The resulting public backlash led to Senate hearings on the corrupting
influence of comics, and nearly bankrupted the struggling comic book “industry.” Ev.
Dec., Ex. A at 7; Mor. Dec., Ex. A at 5; Tob. Dec., Ex. F at 200:4-201:20.
5. In or about 1957, Marvel fired most of its staff artists and writers that it
had employed. Ev. Dec., Ex. A at 8; Mor. Dec., Ex. A at 5, 8-9; Tob. Dec., Ex. F. at
123:18-125:9; 200:4-201:20; Ex. U at 80.

6. In or around 1956, Kirby began submitting freelance material to
Marvel. Ev. Dec., Ex. A at 9; Mor. Dec., Ex. A at 7.
7. Between 1958-1963, Marvel purchased material from freelance artists.
1
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Ev. Dec. Ex. A at 9, 11-14; Mor. Dec. Ex. A at 5-6; Tob. Dec., Ex. C at 23:4-24:4; Ex. E
at 71:17-72:7; 72:22-73:8; 100:21-101:9; Ex. F at 194:11-21; 200:4-201:13; Ex. J at
396:1-4; Ex. K at 232:5-10.
8. Between 1958-1963, Kirby produced and sold artwork to Marvel on a
freelance basis only, and was not employed by Marvel. Ev. Dec., Ex. A at 9, 11-12;
Morrow Dec., Ex A at 7-10; Tob. Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7; 72:22-
73:8; Ex. F at 194:11-21; Ex. J at 256:25-257:25; 396:1-14; Ex. L at ¶¶ 1-4, 10, 11, 13.
9. Marvel did not have a written agreement with Kirby between 1958-1963.
Mor. Dec. Ex. A at 9; Ev. Dec. Ex. A 11; Tob Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-
72:7; 72:22-73:8; 73:11-74:5; 76:25-77:6; Ex. F at 194:11-21; 199:8-200:3; 204:6-19;
204:24-205:15; Ex. J at 256:25-257:25; Ex. L ¶¶ 1, 3; Ex. M.
10. The first written agreement between Marvel and Kirby was fully executed
on June 5, 1972. Tob Dec., Ex. L ¶¶1, 3; Ex. M.
11. Between 1958-1963, Kirby worked out of the basement of his own
home, set his own hours, paid his own overhead and insurance and paid all expenses
associated with his creations, including for his own paper, pens, pencils and other
materials, and such expenses were not reimbursed by Marvel. Ev. Dec. Ex. A at 11-12;
Mor. Dec. Ex. A at 8; Tob. Ex. E at 76:4-24; Ex. F at 194:11-21; 199:8-200:3; 210:3-8;
Dec., Ex. G at 90:12-91:15; 92:24-93:11; Ex. H at 9:15-10:9; Ex. CC at K860-61.
12. Between 1958-1963, Marvel did not withhold payroll taxes or any other
taxes from its payments for the artwork it bought from Kirby. Ev. Dec., Ex. A at 12;
Mor. Dec., Ex A at 8; Tob. Dec., Ex. E at 79:5-14; Ex. F at 15:24-16:24; Ex. L, at ¶ 13.
13. Between 1958-1963, Kirby did not receive any health benefits or
insurance from Marvel, nor any other employment benefits such as vacation or sick pay.
Ev. Dec., Ex. A at 12; Mor. Dec. Ex. A at 8; Tob. Dec., Ex. E at 79:18-25; Ex. F at
204:6-19; 204:24-205:15; Ex. L at ¶¶ 10-11.
14. Between 1958-1963, if artwork page(s) submitted by Kirby were rejected
2
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by Marvel, Kirby was not compensated for the pages and his time and expense in creating
the pages. Ev. Dec., Ex. A at 1-4, 12; Mor. Dec., Ex A at 3, 8-10; Ex. B; Tob Dec., Ex. B
at 50:20-51:25; 61:24-62:9; Ex. C at 140:19-141:3; Ex. D at 89:13-92:5; 138:11-139:4;
178:5-13; 180:4-182:12; Ex. E at 71:17-72:7; 73:11-74:5; 76:25-77:6; 77:20-79:4; 103:7-
105:17; Ex. F at 123:18-125:9; Ex. G at 57:19-58:21; 62:19-63:6; 234:12-235:5; 235::6-
236:1; Ex. H at 37:6-19; Ex. I at 17:17-25; Ex. N, Ex. O at 71-74; Ex. P, Ex. Q; Ex. R;
Ex. S.
15. Between 1958-1963, Kirby was not paid for submitted artwork Marvel
requested him to redraw. Ev. Dec., Ex A at 12; Mor. Dec., Ex. A at 8-9; Tob Dec., Ex. B
at 61:24-62:9; Ex C at 136:7-138:15; Ex. E at 76:25-77:6; 77:20-79:4; Ex. G at 57:18-
58:21; 62:19-63:6; 234:12-236:1; Ex. H at 37:6-19; Ex. V at 396; Ex. Z.
16. Marvel was not legally obligated to purchase any of the artwork submitted
by Kirby between 1958-1963. Ev. Dec., ¶¶ 17, 19-20; Ex A at 11-12; Ex. B; Ex. C; Mor.
Dec., Ex. A at 8-10; Tob Dec., Ex. B at 56:2-57:19; 58:10-23; Ex. C at 23:4-24:4;
105:15-17; Ex. D at 178:5-13: Ex. E at 71:17-72:7; 72:22-73:8; 73:11-74:5; 76:25-79:4;
Ex. F at 194: 11-21; 204:6-19; 204:24-205:15; 205:19-207:11; Ex. J at 256:25-257:25;
Ex. V at 396, 407, 428; Ex. L at ¶¶ 1-4, 10, 11, 13.
17. Between 1958-1963, Kirby was free to, and in fact did, pitch and sell work
to other publishers while he was selling work to Marvel, as did other freelance artists that
worked with Marvel. Ev. Dec. ¶ 18; Mor. Dec., Ex. A at 9-10; Tob. Dec., Ex. D at
177:11-15; Ex. W at 5, 6, 18, 19, 21, 25, 55, 80-81, 84-85; Ex. X at 18462-18466; Ex. Y.
18. Marvel has no copies of any checks, dated between 1958 -1963, with
legends on the back that were issued by Marvel to Kirby, or to any other freelancer, for
submitted work. Tob Dec., Ex. L ¶¶ 2, 4.

19. The earliest checks to a freelancer with a legend on the back,
produced by Marvel in this action, are from 1974, and the legend on such checks states,
in part, that the artist is being paid “for my assignment to [Marvel] of any copyright,
3
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trademark and any other rights in or related to the material, and including my assignment
of any rights to renewal copyright,” and nowhere mentions the phrase “work for hire” or
“work made for hire.” Tob. Dec., Ex. E at 100:21-101:9; Ex. J at 396:1-14; Ex. K at
232:5-10; Ex. L at ¶¶ 2, 4; Ex. AA at 14603; Ex. T.
20. The first check produced by Marvel with a legend, mentioning “work for
hire” or “work made for hire,” is from 1986, after the explicit new “work for hire”
provisions in section 101 of the Copyright Act of 1976 became effective on January 1,
1978. Tob Dec. Ex. BB.
21. Between 2006-2008, Marvel entered into a number of separate agreements
with the Kirbys to purchase at a per-page rate unpublished artwork by Jack Kirby for a
Fantastic Four story that Marvel had originally rejected, and various additional pages of
rejected unpublished artwork by Kirby for Thor, Fantastic Four and X-Men. Mor. Dec.,
Ex. A at 3-4; Ex. B; Tob. Dec., Ex. D at 91:13-92:5; 138:11-139:4; Ex. P, Ex. Q; Ex. R;
Ex. S.
Dated: February 25, 2011 Respectfully submitted,
/s/ Marc Toberoff
Attorneys for defendants
Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby
4
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the Court’s ECF system and by first class mail on those parties not registered for ECF
Dated: February 25, 2011 TOBEROFF & ASSOCIATES, P.C.

/s/ Marc Toberoff
5
JA1234
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-----------------------------------------------------------------X
MVL RIGHTS, LLC,
Plaintiffs,
-against-

NEALL. KIRBY and SUSAN N. KIRBY,
Defendants.
-----------------------------------------------------------------X Civil Action No. 10 Civ. 141 (CM) (KNF)

Counterclaimants,
-against-

MARVEL CHARACTERS, INC.,
MVL RIGHTS, LLC,
THE WALT DISNEY COMPANY,
and DOES 1 through 10,
-----------------------------------------------------------------X
SUPPLEMENTAL DECLARATION OF RANDI W. SINGER
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 ofNew 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 Marvel
Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC, (collectively, "Marvel") in this
action.
- 1-
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2. Annexed hereto as Exhibit 58 is a true and correct copy of excerpts from the
Deposition of John V. Romita conducted on October 21,2010 cited in the accompanying
Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and
Opposition to Defendants' Statement of Material Facts Pursuant to Local Rule 56.1.
Deposition of Roy Thomas conducted on October 26 and 27, 2010 cited in the accompanying
conducted on 7, 2011 cited in the accompanying
Deposition ofNeal Kirby conducted on June 30, 2010 cited in the accompanying Memorandum
of Law in Opposition to Defendants' Motion for Summary Judgment and Opposition to
Defendants' Statement of Material Facts Pursuant to Local Rule 56.1.
Deposition of Susan Kirby conducted on October 25, 2010 cited in the accompanying
Expert Deposition of John Morrow conducted on January 10, 2011 cited in the accompanying
- 2-
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I declare under penalty of perjury that the foregoing facts are true and correct. This
declaration was executed on the,:;(: th day of March, 2011 in
- 3-
JA1237
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Filed 03/25/11 of 1901 of 4
EXHIBIT 58
JA1238
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Filed 03/25/11 of 1902 of 4
Page 1
1
2 UNITED STATES DISTRICT COURT

3 SOUTHERN DISTRICT OF NEW YORK
4
5 MARVEL WORLDWIDE, INC., )

MARVEL CHARACTERS, INC. and )
6 MVL RIGHTS, LLC, )
) No. 10-141-CMKF
7 Plaintiffs, )
)
8 vs. )
)
9 LISA R. KIRBY, BARBARA J. )
KIRBY, NEAL L. KIRBY and )
10 SUSAN N. KIRBY, )
)
11 Defendants. )
-----------------------------)
12
13
14
15
16
17 CONFIDENTIAL VIDEOTAPED DEPOSITION OF

18 JOHN V. ROMITA
19 Garden City, New York
20 Thursday, October 21, 2010
21
22
23 Reported by:
24 KRISTIN KOCH, RPR, RMR, CRR, CLR
25 JOB NO. 34124
TSG Reporting - Worldwide 877-702-9580
JA1239
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/25/11 of 1903 of 4
Page 240
1 Romita - Confidential
2 THE VIDEOGRAPHER: The time is
3 4:28 p.m. and we are going off the record.
4 (Recess was taken from 4:28 to
5 4:35.)
6 THE VIDEOGRAPHER: The time is
7 4:35 p.m. and we are going back on the
8 record.
9 BY MR. TOBEROFF:
10 Q. I am going to ask you some questions
11 now just for further elaboration about some of
12 the things you testified to when Miss Singer
13 was asking you questions earlier today.
14 You were referring to the freelance
15 work you did for Marvel in the '50s. You
16 mentioned that you would turn in a voucher and
17 then you would get paid sometime after you
18 turned in the voucher, approximately every two
19 weeks or so. Is that correct?
20 A. It varied, yeah.
21 Q. And did you turn the voucher in
22 after you turned the work in?
23 A. At the time I finished the work, I
24 would put the voucher in as soon as I could.
25 Q. So after you delivered the finished
JA1240
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Page 241
2 work to Timely, we will call it, Atlas or
3 Timely, you would then when you had the time
4 fill out a voucher, you would submit the
5 voucher, and in approximately two weeks or so
6 you would get paid after you submitted a
7 voucher?
8 A. Generally.
9 Q. You also referred to -- speaking now
10 about the work in the '50s, not about your work
11 for Marvel after you started in 1965, in the
12 '50s you mentioned that Stan wrote scripts and
13 that you would draw based on the scripts.
14 Did this occur throughout the '50s
15 where you worked there or more in the earlier
16 part of the '50s; do you remember?
17 MS. SINGER: Objection.
18 A. I had a limited amount of time while
19 I was in the service. '52 and part of '53 I
20 did some Captain America stuff, very limited.
21 '54, '55 and '56 I was working on westerns and
22 war stories or westerns only, mostly westerns,
23 and I was working fairly steadily until things
24 started to slow down and they started pulling
25 their horns and cut back.
JA1241
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Filed 03/25/11 of 1901 of 7
EXHIBIT 59
JA1242
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Filed 03/25/11 of 1902 of 7
Page 1
1
IN THE UNITED STATES DISTRICT COURT

2 FOR THE SOUTHERN DISTRICT OF NEW YORK
3
4
MARVEL WORLDWIDE, INC., )

5 MARVEL CHARACTERS, INC., )
and MVL RIGHTS, LLC., )
6 )
Plaintiffs, )
7 )
vs. )
8 )
LISA R. KIRBY, BARBARA J. )
9 KIRBY, NEAL L. KIRBY and )
SUSAN N. KIRBY, )
10 )
Defendants. )
11 )
)
12
13
VOLUME I
14
VIDEOTAPED DEPOSITION OF
15
ROY THOMAS
16
17 October 26, 2010
18 10:06 a.m.
19
Holiday Inn Express

20 Orangeburg, South Carolina
21
ANNIE O'HARA, CCR-B-2340, SC Notary

22
23
24
25
JA1243
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/25/11 of 1903 of 7
Page 207
3 Case No. 10-141-CMKF
4
5 MARVEL WORLDWIDE, INC.,

6 MARVEL CHARACTERS, INC., and
7 MVL RIGHTS, LLC,
8 Plaintiffs,
9 VS.
10 LISA R. KIRBY, BARBARA J. KIRBY,
11 NEAL L. KIRBY and SUSAN N. KIRBY,
12 Defendants.
13
14
15 Volume II
16 Videotape Deposition of:
17 Roy Thomas
18 Wednesday, October 27, 2010
20
21
22
23
24
25
JA1244
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/25/11 of 1904 of 7
Page 73
1 Thomas
2 know, I hadn't had that on my teacher's checks. So
3 I -- you know, and so I was curious until I
4 understood. But I don't remember the particular
5 discussions. It's just, you know -- they would
6 explain to me what it meant, and then I just
7 accepted that.
8 Q. How long after the submission of the
9 finished writing did you typically -- you said you
10 submitted the voucher for payment when you submitted
11 the finished writing; right?
12 A. Yes.
13 Q. How long after you submitted the voucher
14 typically would it be before you received your
15 payment?
16 A. Well, it just depended on when the next
17 pay period was. If it was a bi-weekly schedule, as
18 I seem to recall, it might just be a few days after,
19 if I turned it in very near the deadline. But if I
20 had done maybe the week before and it was a bi-week
21 schedule, it might be like, you know, 10 or 12 days.
22 It was generally within a couple of weeks. But if
23 you barely missed one pay period, you might have to
24 wait another, you know, couple of weeks until the
25 freelance pay period. But, you know, it would only
JA1245
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Page 74
1 Thomas
2 have been about two weeks or so.
3 Q. You testified that there was a script that
4 you wrote, I think it was on an Ironman script that
5 Stan didn't like and revised significantly?
6 A. Yes.
7 Q. Is that right?
8 A. Yes. He rewrote about 50 percent of it.
9 Q. Were you paid for the pages that you
10 submitted for that script?
11 A. That was one of the ones that I was doing
12 as part of the staff writer thing during those first
13 few weeks, so I wasn't paid separately. It was
14 counted as part of my staff writer salary, so I was
15 paid in that sense, for that and the Dr. Strange.
16 But I think -- I think those. I know Ironman was
17 and I think Dr. Strange's were all part of the
18 staff's salary.
19 Q. Were there any materials that you
20 submitted in your freelance capacity that were
21 modified by Stan?
22 A. Yes.
23 Q. Were you still paid for the pages that you
24 submitted?
25 A. Yes.
JA1246
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Page 109
1 Thomas
2 said "8," it was a misspeaking or something.
3 Q. Was Kirby given the assignment to draw
4 that issue of Fantastic Four?
5 MR. TOBEROFF: Leading; assumes facts.
6 THE WITNESS: Yes. He was.
7 BY MS. KLEINICK:
8 Q. How was Kirby given -- who gave Kirby the
9 assignment to draw Fantastic Four No. 48?
10 A. Stan Lee did.
11 Q. Do you know who named the character Silver
12 Surfer?
13 A. My memory, which I have told people very
14 soon after it happened is that the actual name the
15 Silver Surfer, with that full name was Stan's. And
16 that the margin notes by Jack had simply referred to
17 him as the surfer, with no word silver that I ever
18 remember seeing there.
19 (Plaintiff's Exhibit 15 was marked for
20 identification.)
21 BY MS. KLEINICK:
22 Q. I would like to mark for identification as
23 Thomas Exhibit 15 a document bearing production
24 numbers Thomas 2121 to 2129.
25 Mr. Thomas, is this a document that was
JA1247
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Page 110
1 Thomas
2 maintained in your files?
3 A. I don't recognize it, so if it came from
4 my files, it was on there because there's a young
5 man who sends me a lot of Marvel-related material
6 for possible use or reference to an Alter Ego. And
7 I had it in there, but I don't always get a chance
8 to go over them until I'm about to use them.
9 Q. Mr. Thomas, in the 1960s after you got to
10 Marvel through the early '70s did Jack Kirby ever
11 come into the Marvel offices?
12 A. Yes.
13 Q. How often would he come in?
14 A. It would vary. In the early days it seems
15 as if he would come in once every week or two, quite
16 often on Friday, but not necessarily. As time went
17 on, it was less and less often. He was busy, and it
18 just didn't seem necessary for him and Stan to
19 confer anymore. And, of course, by 1970 or so he
20 moved to California.
21 Q. To your knowledge from the time that you
22 started working at Marvel in the 1960s through the
23 early '70s, was Kirby doing work only for Marvel, or
24 was he also doing work for other publishing
25 companies?
JA1248
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Filed 03/25/11 of 1901 of 3
EXHIBIT 60
JA1249
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Filed 03/25/11 of 1902 of 3
Contains Confidential Portions
Page 1
1
MARVEL CHARACTERS, INC., )
5 and MVL RIGHTS, LLC, )
)
6 Plaintiffs, )
) Case No.
7 vs. ) 10-141-CMKF
)
8 LISA R. KIRBY, BARBARA J. )
KIRBY, NEAL L. KIRBY, and )
9 SUSAN N. KIRBY, )
)
10 Defendants. )
----------------------------)
11 **REVISED**
12 PARTIALLY CONFIDENTIAL
13 PURSUANT TO PROTECTIVE ORDER
14 (Pages 66 through 70)
15 VIDEOTAPED DEPOSITION OF LAWRENCE LIEBER
16 New York, New York
17 January 7, 2011
18
19
20
21
22
23 Reported by:
24 KATHY S. KLEPFER, RMR, RPR, CRR, CLR
25 JOB NO. 35338
JA1250
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Filed 03/25/11 of 1903 of 3
Contains Confidential Portions
Page 110
1 L. Lieber
2 A. No.
3 Q. Did anyone at Marvel ever promise you
4 more work or more money or anything if you gave
5 a deposition or testified?
6 A. No.
7 Q. You spoke with Mr. Toberoff about a
8 zombie story, a plot that you gave them, and
9 there was an editor who made you redo it a
10 couple of times. Who was that editor?
11 A. Marv Wolfman.
12 Q. Do you know approximately when that
13 was?
14 A. It was -- I did the -- I'm trying -- I
15 figure in the '70s, probably, in the '70s. It
16 was after I finished The Rawhide Kid, which I --
17 I don't know when it was, and sometime after
18 that.
19 Q. Okay. Other than that, that zombie
20 story with Mr. Wolfman, did you ever -- strike
21 that. For the period 1958 to 1965, did you ever
22 submit any work to Marvel that hadn't been
23 assigned to you?
24 A. No. No.
25 MS. SINGER: I have no further
JA1251
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Filed 03/25/11 of 1901 of 4
EXHIBIT 61
JA1252
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Filed 03/25/11 of 1902 of 4
Page 1
3

MARVEL CHARACTERS, INC. and )
5 MVL RIGHTS, LLC, )
)
6 PLAINTIFFS, )
)
7 vs. ) No. 10-141-CMKF
)
8 LISA R. KIRBY, BARBARA J. KIRBY, )
NEAL L. KIRBY and SUSAN N. KIRBY, )
9 )
DEFENDANTS. )
10 ___________________________________)
11
12
13
14 VIDEOTAPED DEPOSITION OF NEAL KIRBY

15 Los Angeles, California
16 Wednesday, June 30, 2010
17
18
19
20
21
22
23 Reported by:
24 SUSAN A. SULLIVAN, CSR #3522, RPR, CRR
25 JOB NO. 31595
JA1253
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Filed 03/25/11 of 1903 of 4
Page 65
1 Q Do you recall witnessing him returning home
2 with work that he had brought to Marvel that for one
3 reason or another had to be reworked or rejected?
4 MR. TOBEROFF: Asked and answered.
5 A No, I don't recall.
6 Q Are you familiar with the course of your
7 father's career prior to 1953?
8 A I'm somewhat familiar.
9 Q As best you can would you relate what you
10 know about your father's career actually prior to
11 1958 which is the first year in which the work at
12 issue here was created.
13 MR. TOBEROFF: Objection; calls for a
14 narrative.
15 A If there's some specific publisher or a
16 story or a subject that's got a book this thick so --
17 Q Basically what I'm asking is whether you
18 are familiar with his employment or the publishers he
19 worked for prior to 1958 or the years he worked for
20 those publishers.
21 MR. TOBEROFF: Assumes facts not in
22 evidence.
23 A I'm aware of some of the publishers. As to
24 some of the specific dates as to when he worked for
25 whom, I probably could not tell you that.
JA1254
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Page 100
1 conversation arose.
2 Q Do you know if he ever drew panels other
3 than for the cover for a Spider-Man book?
4 A I don't recall.
5 Q Do you know who --
6 A Actually, if I could just interrupt you --
7 Q Sure.
8 A -- I believe, I was trying to think, going
9 back a lot of years again, I think he did do some
10 pages initially for Spider-Man and I believe he
11 either came home with them or -- because I know, I
12 seem to recall some kind of family discussion about
13 that again along those lines of, you know, doing some
14 pages and not being compensated for it. As to
15 whether it was, you know, the first book or not, I
16 don't recall, but I do recall something about the
17 pages for Spider-Man.
18 Q Is your recollection from your being aware
19 of that at the time it happened or from discussions
20 you might have had with your father or others after
21 the fact?
22 A Well, from discussions with my father, yes.
23 MR. TOBEROFF: His question was do you
24 recall --
25 Q My question was were the discussions you
JA1255
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Filed 03/25/11 of 1901 of 3
EXHIBIT 62
JA1256
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Filed 03/25/11 of 1902 of 3
Page 1
1 SUSAN MERYL KIRBY
4
5 _______________________________
)
6 MARVEL WORLDWIDE, INC., MARVEL)
CHARACTERS, INC., AND MVL, )
7 RIGHTS, LLC, )Civil Action No.:
)10 CIV. 141
8 Plaintiffs,)(CM) (KNF)
v. )
9 )
10 KIRBY, NEIL L. KIRBY, )
AND SUSAN KIRBY, )
11 )
Defendants.)
12 )
______________________________)
13
14
15 VIDEOTAPED
16 DEPOSITION OF: SUSAN MERYL KIRBY
17 DATE: October 25, 2010
18 TIME: 10:00 a.m.
19 HELD AT: Ethan Allen Hotel
21 Lake Avenue Extension
20 Danbury, Connecticut
21
By: Sarah J. Miner, LSR

22
23
24
25 TSG JOB NO. 34010
JA1257
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Page 38
1 SUSAN MERYL KIRBY
2 Q. Did you ever witness your father opening his
3 case after a trip to New York and bringing back a
4 drawing that he had shown to Marvel?
5 A. I must have, but I don't recall an instance,
6 a particular instance.
7 Q. Do you remember any character that your
8 father was working on that he corrected or redid?
9 A. No, I don't know which ones.
10 Q. Do you know the basis upon which your father
11 was paid by any publishers other than Marvel?
12 A. No, not other than Marvel, I don't know.
13 Q. Do you recall whether DC paid your father by
14 the page?
15 A. I believe he was, yes, paid by the page.
16 Q. Do you recall being aware of your father ever
17 redoing or correcting any work he had submitted to DC?
18 A. I remember, but I don't remember what
19 characters, I just remember the arguments between him
20 and my mother.
21 Q. What was the substance of the argument that
22 you recall?
23 A. That he wasn't getting paid for the work he
24 was doing. He was only getting half, and he would
25 spend all his time working, and not making any money
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EXHIBIT 63
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Page 1
1 JOHN MORROW 1
4 ------------------------------x
6 and MLV RIGHTS, LLC,
7 Plaintiffs,
8 v. Case No. 10-141-CMKF
9 LISA R. KIRBY, BARBARA J.
KIRBY, NEAL L. KIRBY and
10 SUSAN N. KIRBY,
11 Defendants.
12 ------------------------------x
13
14 Video Deposition of JOHN MORROW

15 (Taken by Plaintiffs)
16 Raleigh, North Carolina
17 January 10, 2011
18
19
20
21
22
23 Reported by: Marisa Munoz-Vourakis -

RMR, CRR and Notary Public
24
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2 A. Based on stories from various creators who
3 were involved there.
4 Q. Are you aware of any instance in which Jack
5 Kirby complained to anyone at Marvel about not being
6 paid for pages he had prepared and submitted?
7 A. Well, what immediately springs to mind is
8 those three Hulk pages from whatever, 1962, I guess,
9 that ended up in the trash can at Marvel.
10 Apparently, as I understand the story, when
11 Kirby left the offices, he was very angry and like
12 either tore them up or just threw them in the trash and
13 stormed out.
14 So, I guess, you could consider that
15 complaining that he wasn't going to get paid for those
16 pages.
17 Q. Apart from that instance, are you aware of
18 any complaint by Mr. Kirby that he wasn't paid for work
19 he had submitted?
20 A. Let me think for a moment. Yes, I do know
21 another one.
22 In issue 13 of the Jack Kirby Collector, we
23 published an article about a -- it was actually one of
24 the final stories that Kirby created at Marvel before
25 he left to go to work for DC. It was called The
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2 Monster, and I think it was an eight or ten-page
3 mystery story. Mr. Kirby drew the entire story in
4 pencil, submitted it to Marvel. They rejected it. He
5 had to go back and completely redraw it. He chopped up
6 the original pages and rearranged them, in some
7 instances had to draw new pages, had to draw a lot of
8 new art and was, by all accounts I've written very,
9 very disappointed, because he felt that the original
10 story was really superior to what he ended up having to
11 turn in and get accepted. And --
12 Q. Sorry, I didn't mean to interrupt you.
13 A. Go ahead.
14 Q. What accounts are you referring to with
15 regard to this incident?
16 A. Accounts from Marie Severin, who sent us
17 photocopies of the original versions of the story as
18 Kirby submitted it before he had to make all the
19 changes. I believe I would have to reread the article
20 to see who else we had quoted in that article, but I
21 know Marie told us that yes, Jack was very upset about
22 that.
23 Q. Upset about?
24 A. The rejection and having to redo that
25 story.
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2 Q. Do you know whether or not he was paid for
3 both the original version and the redone version?
4 A. My opinion is that no, he was not, because
5 he had to rework the physical pages. They didn't keep
6 the pages and say go back and redraw it or redo this.
7 He actually had to butcher his original art to do it.
8 Q. What about that implies that he wasn't paid
9 for both?
10 A. If they were paying for pages, they would
11 have paid for the original pages and had him just go
12 back and redraw the story generally.
13 Q. So do you know whether or not he was paid
14 for the original pages?
15 A. I do not know conclusively, but it stands
16 consistent with other instances of artists, including
17 Mr. Kirby not getting paid, and it stands to reason
18 that he did not get paid twice for that and only got
19 paid for the published version that was submitted.
20 Q. You say it stands to reason, it's your
21 conclusion --
22 A. It's my opinion, yes.
23 Q. Are you aware of any other instances in
24 which you believe Mr. Kirby was not paid for work he
25 submitted to Marvel?
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2 A. Those are the ones that come to mind
3 immediately. There may be others, but those are the
4 ones that immediately come to mind.
5 Q. And there may not be others, correct?
6 A. It's possible there's not others. If I had
7 time to think about it, I could possibly come up with
8 some more.
9 Q. Returning to the time when Jack Kirby and
10 Joe Simon were employed by Marvel in the early '40s
11 working on Captain America, is it your understanding
12 that Simon and Kirby's arrangement with Marvel, as
13 employees, left them free to submit work to other
14 publishers at that time?
15 A. As far as I am aware, there wasn't like an
16 actual statement, you know, you cannot freelance for
17 other companies. There could have been, but I'm not
18 aware of a strict rule, a regulation thereby Martin
19 Goodman telling them that they couldn't.
20 Q. You were aware of the story that
21 Mr. Goodman fired them when he found out they were
22 submitting work to DC, correct?
23 A. Yes, I've heard that story.
24 Q. Do you not credit that story?
25 A. Yes, I credit that story. I believe I
JA1264
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1 JOHN MORROW 211
2 BY MR. FLEISCHER:
3 Q. Mr. Morrow, I've placed before you a copy
4 of what's labeled Defendants' Responses and Objections
5 to Plaintiffs' First Set of Interrogatories.
6 (The document referred to was marked
7 Plaintiff's Exhibit Number 13 for
8 identification.)
9 Q. Have you ever seen this document before?
10 A. I don't believe so, no.
11 Q. Let me direct your attention to page six of
12 the document. With respect to the page from -- are you
13 aware of any page from Avengers number three for which
14 Jack Kirby submitted -- withdrawn.
15 Are you aware of whether a page from
16 Avengers number three was submitted by Mr. Kirby to
17 Marvel and rejected?
18 A. Yes, I'm aware of that page.
19 Q. What are you aware about the rejection of
20 that page?
21 A. I actually don't know anything about it.
22 I've just seen it in a publication.
23 Q. Do you know whether that was a page that
24 was actually submitted to Marvel?
25 A. Not conclusively, no, but I have no reason
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1 JOHN MORROW 212
2 to think it wasn't.
3 Q. Well, is it possible that it was a page
4 that was prepared and self-rejected, if you will, by
5 Mr. Kirby and never submitted?
6 A. Certainly possible, but, again, I can't say
7 conclusively either way.
8 Q. Same question with respect to 14 pages to
9 the Black Rider Rides Again. Are you familiar with
10 those pages?
11 A. Are these unused pages, unpublished pages?
12 Q. Yes.
13 A. No, I'm not aware of those.
14 Q. With respect to Captain America, items
15 under Section C here, the cover of Captain America
16 number 105 and the character design for Captain America
17 Comic Book, which is indicated as dated 1965, do you
18 have any information with regard to the submission of
19 those pages by Mr. Kirby?
20 A. I'm not sure. I would really need to see
21 the Captain America cover to know which one you're
22 talking about. And then as far as the one, this other
23 one, the character design for Captain America Comic
24 Book recycled as Captain Glory, if that's the piece I'm
25 thinking of, which we ran on the cover of the Kirby
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2 Collector, I've always known that to be called Captain
3 Glory. So I'm not aware -- I'm not saying it wasn't
4 meant for Captain America. I'm just not aware of that
5 information.
6 Q. Do you know whether Mr. Kirby was paid for
7 that or not paid for that?
8 A. For Captain Glory?
9 Q. Yes, for the page that's referenced here?
10 A. You know, I have no idea. I always just
11 assumed it was a piece he did on his own. I wasn't
12 aware that he submitted that to Marvel, but, you know,
13 you have here that it was a character designed for
14 Captain America Comic Book. I'm not aware of that.
15 Q. Was Captain Glory a character, Marvel
16 character?
17 A. Captain Glory was a personal character
18 Kirby created that was eventually used at Topps Comics
19 in the 1990s.
20 Like I said, he may have had his genesis as
21 being for Captain America, but I have not heard that
22 story.
23 Q. Do you know whether it was ever submitted
24 to Marvel?
25 A. I have no idea.
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Page 217
1 JOHN MORROW 217
2 objected to that, because he felt like he was doing
3 three-fourths of the finished artist's work for them.
4 At that point, all you have to do is go in and add the
5 details, and he felt he should be getting a much higher
6 percentage of page rate for those.
7 So he asked him not to be made to do
8 layouts any longer.
9 Q. Was that request accommodated, as far as
10 you know?
11 A. As far as I know, Stan Lee stopped asking
12 Jack to do layouts for other people.
13 Q. Let's go to the Fantastic Four section
14 here.
15 Do you have any information with regard to
16 the -- any of the items listed under the Fantastic Four
17 heading, which begin on page six and go over to page
18 seven?
19 A. These are all -- let's see. I'm not sure
20 what the Fantastic Four 102 and 103 covers are. Those
21 spring to mind, but the earlier ones number 20, 64 and
22 71, those I do recall. And those all -- I think we
23 were the first to publish -- well, not for 64, but we
24 were the first to publish number 20 in the Jack Kirby
25 Collector. That came from a private collection.
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Page 218
1 JOHN MORROW 218
2 I believe 71 came from a private
3 collection, which lead me to believe that if Marvel had
4 purchased those pages, they would not have ended up in
5 the private collection or not the private collections
6 they were in.
7 So they would have gotten them as a gift
8 from Jack Kirby, because he got them back and they
9 weren't paid for, or Jack Kirby sold them at a
10 convention, because he got them back and they weren't
11 paid for.
12 Q. Do you know whether they were ever
13 submitted to Marvel?
14 A. Oh, yes, I have no doubt those are
15 submitted to Marvel. Those are finished covers, and
16 then there's another version very similar but different
17 in print. So, yes, there's absolutely, I believe, they
18 were submitted to Marvel.
19 Q. Do you know whether they were or not?
20 A. Do I know? Well, I don't have the
21 originals to look and see if like there's a Marvel
22 stamp on the back. That would be the way to know for
23 sure. But yes, I have no reason to think they weren't.
24 They were finished covers, and the finished -- the
25 final printed cover was a revised version of this
JA1269
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Page 219
1 JOHN MORROW 219
2 cover.
3 Q. And do you have any information as to
4 whether or not Mr. Kirby was paid for these covers?
5 A. As I was just saying, because they were in
6 private collections, that leads me to form the opinion
7 that they rejected them, gave them back to him and he
8 sold them to private collectors or gave them to private
9 collectors.
10 Q. Did any of the work that Jack Kirby did
11 over the years for Marvel disappear from Marvel's
12 warehouse from time to time?
13 A. Yes.
14 Q. And is it conceivable that these covers are
15 among pages that were looted from the warehouse?
16 A. No, because -- no, I don't think that's
17 conceivable. The work that's missing from Marvel
18 warehouse over the years is finished, published work,
19 inked work. These three covers we're talking about are
20 all still in pencil form, so they never got accepted
21 and inked and lettered completely.
22 Q. Do you have any information with regard to
23 any of the items under section E on page seven?
24 A. The third item number 17, number 23, if
25 those are the ones I'm recalling, there may have been
JA1270
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Page 222
1 JOHN MORROW 222
2 Q. G is Ironman layout of page Tales of
3 Suspense number 70?
4 A. That one is not coming to mind.
5 Q. The five pages to Amazing Fantasy number
6 15, that's the famous pages that Jack Kirby supposedly
7 did and that Stan didn't like and reassigned the book
8 to Ditko?
9 A. Right.
10 Q. And do you know whether or not Jack was
11 paid for those pages?
12 A. We assume not, because they were rejected
13 and they have never been in print, as far as I know. I
14 don't know anyone who has ever seen them. I never
15 heard of anyone who has seen them. Obviously, Stan Lee
16 has seen them, and I believe Steve Ditko saw them,
17 because they were handed to Steve Ditko to see what
18 they weren't going to do with the news strip.
19 Q. Do you know if Jack was paid for those
20 pages?
21 A. I don't believe he was, because they were
22 rejected, and the standard at the time was not to pay
23 for rejected pages.
24 Q. Weren't they in Marvel's possession in
25 order for them to get to Ditko?
JA1271
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Page 223
1 JOHN MORROW 223
2 A. They were. They would have had to have
3 been, of course.
4 Q. And can we infer anything from the fact
5 that Marvel had the pages to give to Ditko about
6 payment or nonpayment?
7 A. You can hypothesize, but that's not
8 anything conclusive, certainly.
9 Q. It's not conclusive, but it's a piece of
10 evidence that suggests that he was in fact paid for it,
11 yes or no?
12 A. Not necessarily, no.
13 Q. All things being equal, is it more likely
14 if Marvel had the pages in its possession, that they
15 were paid for than not?
16 A. Based on historic record, I think it's more
17 likely if they were rejected pages, they were not paid.
18 That's more consistent with history.
19 Q. But in any event, you have no direct
20 personal knowledge as to whether or not Jack was paid
21 for that?
22 A. Do not. Probably, I mean, I don't know who
23 would. Stan Lee wouldn't, because he said he didn't
24 deal with the bookkeeping and the accounting and the
25 payrolls and stuff. So I don't know how you could
JA1272
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Page 224
1 JOHN MORROW 224
2 conclusively say that.
3 Q. If Stan Lee testified at his deposition in
4 this case that he did pay Jack for those pages, would
5 that change your assessment of the situation?
6 A. No, it wouldn't, because Stan has
7 repeatedly said over the years that he wasn't involved
8 in the accounting, the bookkeeping, going to bat for
9 people to get them raises.
10 So no, I don't know that Stan would know
11 short of what company policy was. If company policy
12 was yes, we always pay for rejected pages, then, yes,
13 Stan knew that was company policy, then I would expect
14 that. But that doesn't sound like that was the case,
15 because so many people were not paid for their rejected
16 pages.
17 Q. Again, that's all based on hearsay on
18 your --
19 A. Well, when John Romita tells me personally
20 he wasn't paid for a job, that's not hearsay, that's
21 first person, isn't it?
22 Q. No, unless you were there, it's hearsay.
23 A. Oh, okay.
24 Q. In other words, it's something John Romita
25 told you. It's not something that anyone was present
JA1273
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1 JOHN MORROW 225
2 at the time the pages were submitted and rejected and
3 not paid for you witnessed. That's the distinction I'm
4 drawing.
5 A. Okay. Then that would be hearsay, yes,
6 sir.
7 Q. The next one is two pages from Strange
8 Tales number 151?
9 MR. TOBEROFF: I should point out
10 there are hearsay exceptions to
11 admissibility. We are getting into legal --
12 MR. FLEISCHER: I'm not talking about
13 admissibility. I'm just talking about what
14 hearsay is.
15 A. Two pages from Strange Tales number 151.
16 Those are not ringing a bell with me. So I'm sorry, I
17 can't really comment on those.
18 Q. Do you have any information about any of
19 the pages listed under J, the Thor?
20 A. Well, a lot of these are -- fall under that
21 same area of Kirby retained possession of these
22 rejected covers and pages in his collection, and in
23 some instances used these for that -- I think I
24 mentioned the Marvel Mania portfolio that that company
25 licensed the rights for Marvel to publish.
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1 JOHN MORROW 226
2 So a lot of these were unpublished pages
3 that appeared in there.
4 So he had possession of those, Marvel
5 didn't, which leads me to believe he was not paid for
6 them or Marvel would have kept possession of them.
7 Q. So there is some relevance about who
8 retains the pages?
9 A. I think so, but, again, there's, you know,
10 a certain amount of fluidity to the working
11 relationship there, particularly in the early days of
12 Marvel, when everybody is trying to please everybody
13 else.
14 Q. Would I be correct again in saying that you
15 have no firsthand knowledge as to whether or not Jack
16 Kirby was paid for these pages?
17 A. No, I do not.
18 Q. The next one, the last one I'll ask you
19 about is the X-Men. Do you have any information about
20 this?
21 A. The X-Men one is interesting, because it
22 was actually inked by Chick Stone. So that leads me to
23 believe that that one may have been paid for, because
24 it got to the inking stage. It was actually inked and
25 lettered and had a logo put on it, and apparently at
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1 JOHN MORROW 227
2 the last minute, I assume Stan decided to change it.
3 So that would lead me to believe that the
4 unused cover of X-Men 10 was paid for, and certainly
5 they probably would have paid the inker for it as well,
6 Chick Stone.
7 Number 17, that's probably one of those I
8 mentioned before that was on the back of a published
9 page. That could have been one of the ones where Stan
10 was actually asking Jack to regularly do layouts for,
11 I'm not sure.
12 Q. So you don't know whether or not it was
13 actually --
14 A. No, I don't.
15 Q. In the early 1960s, was Jack Kirby the only
16 significant, creative force at Marvel?
17 A. He was the most significant, but he was not
18 the only significant.
19 Q. Who were the other significant, creative
20 forces in terms of artists?
21 A. Well, I would say up to about 1964 or '65,
22 Jack Kirby was the significant creative influence. The
23 company was really Kirby and people trying to do Kirby
24 in their own styles.
25 You had artists like Don Heck, who had been
JA1276
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Page 1 of 18

------------------------------------------------------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)
:
LISA R. KIRBY, BARBARA J. KIRBY, :
NEAL L. KIRBY and SUSAN N. KIRBY, :
:
Counterclaimants, :
:
- against- :
:
MARVEL ENTERTAINMENT, INC., :
MARVEL WORLDWIDE, INC., :
MARVEL CHARACTERS, INC., :
MVL RIGHTS, LLC, :
THE WALT DISNEY COMPANY, :
and DOES 1 through 10, :
:
Counterclaim-Defendants. :
------------------------------------------------------x
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ STATEMENT OF MATERIAL

FACTS PURSUANT TO LOCAL RULE 56.1 IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 56.1(b) of the Local Rules of the United States District Court for
the Southern District of New York, Marvel Worldwide, Inc. (“MWI”), Marvel Characters, Inc.
(“MCI”) and MVL Rights, LLC (“MVL”) (collectively, “Plaintiffs,” and with their predecessors-
in-interest, “Marvel”), respectfully submit the following Opposition To Defendants’ Statement
JA1277
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Of Material Facts Pursuant To Local Rule 56.1 In Support Of Defendants’ Motion For Summary
Judgment:
1. On September 16, 2009, the Kirbys served Notices of Termination

(“Termination”) pursuant to 17 U.S.C. § 304(c) to recapture their father Jack Kirby’s copyrights
in his works by statutorily terminating all prior grants of copyright therein, including a 1972
agreement between Jack Kirby and plaintiffs’ predecessor Magazine Management Co., Inc.
Declaration of Marc Toberoff (“Tob. Dec.”), ¶ 4; Ex. A; Ex. M.
RESPONSE: Plaintiffs do not dispute that the Notices of Termination (“Termination
Notices”) were served in or around mid-September 2009 or that the Termination Notices purport
to exercise a right under 17 U.S.C. § 304(c) to recapture certain copyrights to various
publications and characters (the “Works”) that Defendants allege Jack Kirby granted to
Magazine Management Co, Inc. However, the 1972 Agreement between Jack Kirby and
Magazine Management Co., Inc. did not constitute a “grant of copyright” from Jack Kirby to
Magazine Management Co. Inc. See Declaration of Randi W. Singer dated February 18, 2011
(“Singer Decl.”) Exhibit (“Ex.”) 17 at ¶ 5 (“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).
2. On January 8, 2010, plaintiffs Marvel Worldwide, Inc., Marvel Characters, Inc.

and MVL Rights LLC (including predecessors, “Marvel”) sued the Kirbys, seeking a declaratory
judgment that the Termination is invalid on the purported ground that the subject works,
published from 1958-1963, were all “works made for hire.” See Complaint at 2 (Docket No. 1).
RESPONSE: Undisputed.
3. In 1954 Fredric Wertham’s book Seduction of the Innocent accused comic books
of “poisoning the minds” of America’s youth. Declaration of John Morrow (“Mor. Dec.”), Ex. A
at 4; Declaration of Marc Evanier (“Ev. Dec.”), Ex. A at 7; Ex. F at 200:4-201:20.
RESPONSE: Plaintiffs do not dispute that Fredric Wertham’s book, Seduction of the
Innocent, was published in 1954 and critiqued the effect of comic books on children. However,
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these facts are not material to the motion for summary judgment because they will not “affect the
outcome of the suit under the governing law.” Kinsella v. Rumsfeld, 320 F.3d 309, 311 (2d Cir.
2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Further, Plaintiffs
object to the statements in Paragraph 3 to the extent they rely on testimony from Mark Evanier
and John Morrow, as their testimony is inadmissible. See Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010) (all evidence in support of a summary judgment motion must be admissible); see
also Plaintiffs’ And Counterclaim-Defendants’ Motion To Exclude The Expert Report And
Testimony Of Mark Evanier [Docket No. 67]; Motion By Plaintiffs And Counterclaim-
Defendants To Exclude The Expert Report And Testimony Of John Morrow [Docket No. 70].
The facts stated in Paragraph 3 are also irrelevant because, among other things, they refer to
events outside the 1958-1963 time period at issue in this case (“the Time Period”). Fed. R. Evid.
402.
4. The resulting public backlash led to Senate hearings on the corrupting influence
of comics, and nearly bankrupted the struggling comic book “industry.” Ev. Dec., Ex. A at 7;
Mor. Dec., Ex. A at 5; Tob. Dec., Ex. F at 200:4-201:20.
RESPONSE: Plaintiffs do not dispute that public backlash in the 1950s, among other
things, led to the topic of comic books being included in congressional hearings being held
by the Senate Subcommittee on Juvenile Delinquency, which contributed to financial difficulties
for the comic book industry. However, these facts are not relevant and are not material to the
motion for summary judgment because they will not “affect the outcome of the suit under the
governing law.” Kinsella, 320 F.3d at 311; see also Fed. R. Evid. 402. Further, Plaintiffs object
to these statements to the extent they rely on the inadmissible testimony of Evanier and Morrow.
See Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
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5. In or about 1957, Marvel fired most of its staff artists and writers that it had
employed. Ev. Dec., Ex. A at 8; Mor. Dec., Ex. A at 5, 8-9; Tob. Dec., Ex. F. at 123:18-125:9;
200:4-201:20; Ex. U at 80.
RESPONSE: Plaintiffs do not dispute that Marvel reduced its staff size in the late
1950s. However, this fact is not relevant and is not material to the motion for summary
judgment because it will not “affect the outcome of the suit under the governing law.” Kinsella,
320 F.3d at 311; see also Fed. R. Evid. 402. Further, Plaintiffs object to the statement in
Paragraph 5 to the extent it relies on the inadmissible testimony of Evanier and Morrow as well
as inadmissible hearsay in Ex. U to the Declaration of Marc Toberoff (“Toberoff Decl.”).
Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
6. In or around 1956, Kirby began submitting freelance material to Marvel. Ev.

Dec., Ex. A at 9; Mor. Dec., Ex. A at 7.
RESPONSE: Plaintiffs do not dispute that Jack Kirby’s contributions to Marvel’s comic
books were done on a freelance basis during the late 1950s and 1960s; however, Defendants’
citations do not support the stated fact in Paragraph 6. Further, Plaintiffs object to this statement
to the extent it relies on the inadmissible testimony of Evanier and Morrow. Spiegel, 604 F.3d at
81; see also Docket Nos. 67, 70.
7. Between 1958-1963, Marvel purchased material from freelance artists. Ev. Dec.
Ex. A at 9, 11-14; Mor. Dec. Ex. A at 5-6; Tob. Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7;
72:22-73:8; 100:21-101:9; Ex. F at 194:11-21; 200:4-201:13; Ex. J at 396:1-4; Ex. K at 232:5-
10.
RESPONSE: Disputed. Although Plaintiffs do not dispute that Marvel hired freelance
artists and writers during the Time Period, Marvel did not “purchase” material from freelance
artists or writers. Rather, Marvel engaged freelance artists and writers to contribute to Marvel’s
comic books pursuant to assignments from Stan Lee, who directed their creation, and Marvel
compensated the artists and writers for their work on an agreed per-page basis for all completed
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assignments that were submitted. See Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19,
17:17-25, 18:6-16, 20:11-21:25, 22:11-16, 30:11-14, 41:20-42:9, 52:3-5, 73:17-23, 111:2-17,
396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id. Ex. 11, Tracks 3, 6; id. Ex. 26 at
MARVEL0017350; see also id. Ex. 2 at 16:13-21, 18:15-19:2, 39:7-13, 61:4-6, 61:12-19; id. Ex.
3 at 28:5-15, 28:19-29:5, 48:10-49:8, 50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 112:25-
113:23; id. Ex. 5 at 81:8-13. Moreover, Marvel bore the entire financial risk associated with the
Works since Marvel hired all contributors to the Works, such as inkers, letterers and colorists,
and paid them on an agreed per-page basis. Singer Decl. Ex. 1 at 15:9-20, 30:11-23, 58:13-21;
id. Ex. 5 at 81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230; see also id. Ex. 1 at 31:20-
33:7; id. Ex. 3 at 28:5-15, 50:5-53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic
books were paid at or near the time their completed assignments were submitted, well in advance
of publication, and regardless of whether the completed assignment was changed, published, or
successful. Singer Decl. Ex. 1 at 18:6-16, 30:19-31:5, 42:21-43:2, 376:3-22; id. Ex. 4 at 30:10-
12; see also id. Ex. 2 at 16:13-21; 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; Supplemental
Declaration of Randi W. Singer dated March 25, 2011 (“Supp. Singer Decl.”) Ex. 58 at 240:10-
241:8; id. Ex. 59 at 73:8-74:2. Further, Marvel scheduled the printer time well in advance, so if
Marvel’s comic books were not ready to be printed at the designated time, Marvel bore the entire
loss. Singer Decl. Ex. 1 at 42:10-20, 384:22-385:11; see also id. Ex. 3 at 59:22-60:9; id. Ex. 4 at
14:9-15:4. If a comic book was not successful, Marvel lost money; thus, as publisher and owner
of Marvel, Martin Goodman had the final authority to decide whether to publish or cancel a
comic book if it were not profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-44:2, 97:8-20; see also
id. Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4. Additionally, Defendants’ citations
to Toberoff Decl. Exhibits C, F, and J do not support the stated fact in Paragraph 7. Further,
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Plaintiffs object to the statement in Paragraph 7 to the extent it relies on the inadmissible
testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
8. Between 1958-1963, Kirby produced and sold artwork to Marvel on a freelance

basis only, and was not employed by Marvel. Ev. Dec., Ex. A at 9, 11-12; Morrow Dec., Ex A at
7-10; Tob. Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7; 72:22-73:8; Ex. F at 194:11-21; Ex. J
at 256:25-257:25; 396:1-14; Ex. L at ¶¶ 1-4, 10, 11, 13.
RESPONSE: Disputed. Plaintiffs do not dispute that Jack Kirby submitted artwork to
Marvel on a freelance basis; however, Jack Kirby’s artwork was not “sold” to Marvel, as Jack
Kirby contributed to Marvel’s comic books pursuant to assignments from Stan Lee, who directed
the creation of the works, and was then compensated by Marvel for his work on an agreed per-
page basis for all completed assignments that were submitted. Singer Decl. Ex. 1 at 22:11-23:19,
30:11-31:5, 47:15-48:4, 58:13-21, 111:2-17, 383:18-21, 384:18-21; id. Ex. 11, Track 3; id. Ex.
41 at MARVEL0017230; see also id. Ex. 2 at 76:8-78:17, 80:19-25; id. Ex. 3 at 111:12-14,
112:8-114:11; id. Ex. 5 at 91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at
109:3-10. Moreover, Marvel bore the entire financial risk associated with the Works since
Marvel hired all contributors to the Works, such as inkers, letterers and colorists, and paid them
on an agreed per-page basis. Singer Decl. Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5 at
81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230; see also id. Ex. 1 at 31:20-33:7; id. Ex. 3
at 28:5-15, 50:5-53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic books were paid
at or near the time their completed assignments were submitted, well in advance of publication,
and regardless of whether the completed assignment was changed, published, or successful.
Singer Decl. Ex. 1 at 18:6-16, 30:19-31:5, 42:21-43:2, 376:3-22; id. Ex. 4 at 30:10-12; see also
id. Ex. 2 at 16:13-21; 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; Supp. Singer Decl. Ex. 58 at
240:10-241:8; id. Ex. 59 at 73:8-74:2. Further, Marvel scheduled the printer time well in
advance, so if Marvel’s comic books were not ready to be printed at the designated time, Marvel
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bore the entire loss. Singer Decl. Ex. 1 at 42:10-20, 384:22-385:11; see also id. Ex. 3 at 59:22-
60:9; id. Ex. 4 at 14:9-15:4. If a comic book was not successful, Marvel lost money; thus, as
publisher and owner of Marvel, Martin Goodman had the final authority to decide whether to
publish or cancel a comic book if it were not profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-
44:2, 97:8-20; see also id. Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4. Further,
Plaintiffs object to the statement in Paragraph 8 to the extent it relies on the inadmissible
testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
9. Marvel did not have a written agreement with Kirby between 1958-1963. Mor.
Dec. Ex. A at 9; Ev. Dec. Ex. A 11; Tob Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7; 72:22-
73:8; 73:11-74:5; 76:25-77:6; Ex. F at 194:11-21; 199:8-200:3; 204:6-19; 204:24-205:15; Ex. J
at 256:25-257:25; Ex. L ¶¶ 1, 3; Ex. M.
RESPONSE: Undisputed. However, Plaintiffs object to this statement to the extent it
relies on the inadmissible testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also
Docket Nos. 67, 70.
10. The first written agreement between Marvel and Kirby was fully executed on June
5, 1972. Tob Dec., Ex. L ¶¶1, 3; Ex. M.
11. Between 1958-1963, Kirby worked out of the basement of his own home, set his
own hours, paid his own overhead and insurance and paid all expenses associated with his
creations, including for his own paper, pens, pencils and other materials, and such expenses were
not reimbursed by Marvel. Ev. Dec. Ex. A at 11-12; Mor. Dec. Ex. A at 8; Tob. Ex. E at 76:4-
24; Ex. F at 194:11-21; 199:8-200:3; 210:3-8; Dec., Ex. G at 90:12-91:15; 92:24-93:11; Ex. H at
9:15-10:9; Ex. CC at K860-61.
RESPONSE: Disputed. Although Plaintiffs do not dispute that Kirby generally worked
from his home, set his own hours and paid for art supplies such as paper and pencils, and that it
was not Marvel’s practice during the Time Period to reimburse freelance artists for such
expenses, Kirby did not pay “all expenses associated with his creations” as Kirby was paid an
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agreed per-page rate by Marvel and Marvel bore all costs associated with publishing the comic
books, including hiring other staff to complete the work that Kirby submitted. Singer Decl. Ex. 1
at 15:9-20, 43:3-44:2, 58:13-21; id. Ex. 5 at 81:8-13, 91:22-92:6; id. Ex. 41 at
MARVEL0017230. Plaintiffs also state that Kirby often performed work while in Marvel’s
offices. Singer Decl. Ex. 5 at 55:18-56:12; see also id. Ex. 2 at 74:23-75:9; Supp. Singer Decl.
Ex. 59 at 110:9-20. Defendants fail to identify any admissible evidence in the record for its
claim that Jack Kirby paid his own “overhead and insurance.” Further, the facts in Paragraph 11
are not material to the motion for summary judgment because they will not “affect the outcome
of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs also object to the
statements in Paragraph 11 to the extent they rely on the inadmissible testimony of Evanier and
Morrow as well as inadmissible hearsay in Ex. CC to the Toberoff Decl. Spiegel, 604 F.3d at 81;
see also Docket Nos. 67, 70.
12. Between 1958-1963, Marvel did not withhold payroll taxes or any other taxes
from its payments for the artwork it bought from Kirby. Ev. Dec., Ex. A at 12; Mor. Dec., Ex A
at 8; Tob. Dec., Ex. E at 79:5-14; Ex. F at 15:24-16:24; Ex. L, at ¶ 13.
RESPONSE: Disputed. Plaintiffs do not dispute that Marvel did not withhold any
payroll or income taxes from the checks issued to Jack Kirby between 1958-1963. However,
Marvel did not “buy” artwork from Jack Kirby. Freelance artists and writers, such as Jack
Kirby, contributed to Marvel’s comic books pursuant to assignments from Stan Lee, who
directed their creation, and the artists and writers were then compensated by Marvel for their
work on an agreed per-page basis for all completed assignments that were submitted. Singer
Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-16, 20:11-21:25, 22:11-23:19,
30:11-31:5, 41:20-42:9, 47:15-48:4, 52:3-5, 58:13-21, 73:17-23, 111:2-17, 383:18-21, 384:18-
21, 396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id. Ex. 11, Tracks 3, 6; id. Ex. 26 at
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MARVEL0017350; id. Ex. 41 at MARVEL0017230; see also id. Ex. 2 at 16:13-21, 18:15-19:2,
39:7-13, 61:4-6, 61:12-19, 76:8-78:17, 80:19-25; id. Ex. 3 at 28:5-15, 28:19-29:5, 48:10-49:8,
50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 111:12-14, 112:8-114:11; id. Ex. 5 at 81:8-13,
91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10. Moreover,
Marvel bore the entire financial risk associated with the Works since Marvel hired all
contributors to the Works, such as inkers, letterers and colorists, and paid them on an agreed per-
page basis. Singer Decl. Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5 at 81:8-13, 91:22-92:6;
id. Ex. 41 at MARVEL0017230; see also id. Ex. 1 at 31:20-33:7; id. Ex. 3 at 28:5-15, 50:5-
53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic books were paid at or near the
time their completed assignments were submitted, well in advance of publication, and regardless
of whether the completed assignment was changed, published, or successful. Singer Decl. Ex. 1
at 18:6-16, 30:19-31:5, 42:21-43:2, 376:3-22; id. Ex. 4 at 30:10-12; see also id. Ex. 2 at 16:13-
21; 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; Supp. Singer Decl. Ex. 58 at 240:10-241:8; id. Ex.
59 at 73:8-74:2. Further, Marvel scheduled the printer time well in advance, so if Marvel’s
comic books were not ready to be printed at the designated time, Marvel bore the entire loss.
Singer Decl. Ex. 1 at 42:10-20, 384:22-385:11; see also id. Ex. 3 at 59:22-60:9; id. Ex. 4 at 14:9-
15:4. If a comic book was not successful, Marvel lost money; thus, as publisher and owner of
Marvel, Martin Goodman had the final authority to decide whether to publish or cancel a comic
book if it were not profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-44:2, 97:8-20; see also id.
Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4. Additionally, facts relating to Marvel’s
withholding of taxes are not material to the motion for summary judgment because they will not
“affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs
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also object to the statement in Paragraph 12 to the extent it relies on the inadmissible testimony
of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
13. Between 1958-1963, Kirby did not receive any health benefits or insurance from
Marvel, nor any other employment benefits such as vacation or sick pay. Ev. Dec., Ex. A at 12;
Mor. Dec. Ex. A at 8; Tob. Dec., Ex. E at 79:18-25; Ex. F at 204:6-19; 204:24-205:15; Ex. L at
¶¶ 10-11.
RESPONSE: Plaintiffs do not dispute that Jack Kirby did not receive health benefits or
health insurance from Marvel between 1958-1963. However, this fact is not material to the
motion for summary judgment because it will not “affect the outcome of the suit under the
governing law.” Kinsella, 320 F.3d at 311. Plaintiffs also object to the statement in Paragraph
13 to the extent it relies on the inadmissible testimony of Evanier and Morrow. Spiegel, 604
F.3d at 81; see also Docket Nos. 67, 70.
14. Between 1958-1963, if artwork page(s) submitted by Kirby were rejected by

Marvel, Kirby was not compensated for the pages and his time and expense in creating the pages.
Ev. Dec., Ex. A at 1-4, 12; Mor. Dec., Ex A at 3, 8-10; Ex. B; Tob Dec., Ex. B at 50:20-51:25;
61:24-62:9; Ex. C at 140:19-141:3; Ex. D at 89:13-92:5; 138:11-139:4; 178:5-13; 180:4-182:12;
Ex. E at 71:17-72:7; 73:11-74:5; 76:25-77:6; 77:20-79:4; 103:7-105:17; Ex. F at 123:18-125:9;
Ex. G at 57:19-58:21; 62:19-63:6; 234:12-235:5; 235:6-236:1; Ex. H at 37:6-19; Ex. I at 17:17-
25; Ex. N, Ex. O at 71-74; Ex. P, Ex. Q; Ex. R; Ex. S.
RESPONSE: Disputed. As was Marvel’s policy, Jack Kirby was paid his agreed per-
page rate for all the completed assignments that he submitted to Marvel between 1958-1963,
even if the pages were not used for publication. Singer Decl. Ex. 1 at 18:6-16, 30:11-31:5,
376:3-22; id. Ex. 4 at 30:10-12; see also id. Ex. 2 at 32:2-5. Further, the citations to Toberoff
Decl. Exhibits E-F and P-R refer to artwork produced outside of the Time Period and/or as to
which no information has been provided regarding the timing of their creation or whether they
were even submitted to Marvel for publication, and are therefore irrelevant. Fed. R. Evid. 402.
Additionally, Defendants’ citations to Exhibits E, F, I, and N-S do not support the stated facts
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and the record actually shows the opposite to be true. Compare Toberoff Decl. Ex. E at 76:25-
77:6 with Singer Decl. Ex. 4 at 30:10-12 (“Q. Did you get paid for all the work you did for
Marvel? A. Yes. Yes.”) and Toberoff Decl. Ex. E at 77:20-79:4 (“Finally, you know, he did like
it and I was allowed to write the script and I got paid for the script.”); Supp. Singer Decl. Ex. 60
at 110:7-18 (stating that the work previously discussed was completed outside of the Time
Period); compare Toberoff Decl. Ex. F at 123:18-125:9 with Singer Decl. Ex. 2 at 32:2-5.
Plaintiffs also object to the statement in Paragraph 14 to the extent it relies on the inadmissible
testimony of Evanier and Morrow, as both Evanier and Morrow testified that they have no
firsthand knowledge as to Marvel’s payments to Jack Kirby for his work and rely only on
hearsay for their statements in that regard, as well as inadmissible hearsay in Exhibits N-O and S
to the Toberoff Decl. Spiegel, 604 F.3d at 81; Toberoff Decl. Ex. B at 57:20-58:4; id. Ex. C at
136:7-17, 140:19-141:8; id. Ex. D at 89:13-92:25; Singer Decl. Ex. 8 at 59:5-21; Supp. Singer
Decl. Ex. 63 at 180:4-183:8, 211:3-213:25, 217:13-219:9, 222:5-224:2, 225:7-8, 225:15-227:14;
see also Docket Nos. 67, 70. Defendants also object to the statements in Paragraph 14 to the
extent they rely on the testimony of Neal Kirby and Susan Kirby, neither of whom has personal
knowledge of whether Jack Kirby was paid for pages he submitted to Marvel during the Time
Period. Toberoff Decl. Ex. G at 58:4-7, 62:12-63:1; id. Ex. H at 37:6-16; Supp. Singer Decl. Ex.
61 at 65:1-5, 100:2-22 (knowledge of Marvel’s purported failure to pay Kirby for certain
sketches based on “family discussion”); id. Ex. 62 at 38:2-9.
15. Between 1958-1963, Kirby was not paid for submitted artwork Marvel requested
him to redraw. Ev. Dec., Ex A at 12; Mor. Dec., Ex. A at 8-9; Tob Dec., Ex. B at 61:24-62:9; Ex
C at 136:7-138:15; Ex. E at 76:25-77:6; 77:20-79:4; Ex. G at 57:18-58:21; 62:19-63:6; 234:12-
236:1; Ex. H at 37:6-19; Ex. V at 396; Ex. Z.
RESPONSE: Disputed. As was Marvel’s policy, Jack Kirby was paid his agreed per-
page rate for all the completed assignments that he submitted to Marvel between 1958-1963,
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even if he had to redraw or make changes to the pages. Singer Decl. Ex. 1 at 376:3-22; see also
id. Ex. 2 at 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; id. Ex. 4 at 30:10-12. Moreover,
Defendants’ citations to Toberoff Decl. Exhibits E, V, and Z do not support these stated facts and
in fact, the record shows the opposite to be true. Compare Toberoff Decl. Ex. E at 76:25-77:6
with Singer Decl. Ex. 4 at 30:10-12 and Toberoff Decl. Ex. E at 77:20-79:4. Plaintiffs object to
the statements in Paragraph 15 to the extent they rely on the inadmissible testimony of Evanier
and Morrow, as both Evanier and Morrow testified that they have no firsthand knowledge as to
Marvel’s payments to Jack Kirby for his work and rely only on hearsay for their statements in
that regard, as well as inadmissible hearsay in Exhibits V and Z to the Toberoff Decl. Spiegel,
604 F.3d at 81; Toberoff Decl. Ex. B at 57:20-25; id. Ex. C at 136:7-17, 140:19-141:8; id. Ex. D
at 89:13-92:25; Singer Decl. Ex. 8 at 59:5-21; Supp. Singer Decl. Ex. 63 at 180:4-183:8, 211:3-
213:25, 217:13-219:9, 222:5-224:2, 225:7-8, 225:15-227:14; see also Docket Nos. 67, 70.
Defendants also object to the statements in Paragraph 15 to the extent they rely on the testimony
of Neal Kirby and Susan Kirby, neither of whom has personal knowledge of whether Jack Kirby
was paid for pages he submitted to Marvel during the Time Period. Toberoff Decl. Ex. G at
58:4-7, 62:12-63:1; id. Ex. H at 37:6-16; Supp. Singer Decl. Ex. 61 at 65:1-5, 100:2-22; id. Ex.
62 at 38:2-9.
16. Marvel was not legally obligated to purchase any of the artwork submitted by
Kirby between 1958-1963. Ev. Dec., ¶¶ 17, 19-20; Ex A at 11-12; Ex. B; Ex. C; Mor. Dec., Ex.
A at 8-10; Tob Dec., Ex. B at 56:2-57:19; 58:10-23; Ex. C at 23:4-24:4; 105:15-17; Ex. D at
178:5-13: Ex. E at 71:17-72:7; 72:22-73:8; 73:11-74:5; 76:25-79:4; Ex. F at 194:11-21; 204:6-
19; 204:24-205:15; 205:19-207:11; Ex. J at 256:25-257:25; Ex. V at 396, 407, 428; Ex. L at ¶¶
1-4, 10, 11, 13.
RESPONSE: Plaintiffs object to the statement in Paragraph 16 to the extent it states a
legal conclusion and not a statement of undisputed fact. Further, this statement is not material to
the motion for summary judgment because it will not “affect the outcome of the suit under the
12
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governing law.” Kinsella, 320 F.3d at 311. Plaintiffs object to this statement to the extent it
relies on the inadmissible testimony of Evanier and Morrow and inadmissible hearsay in Ex. V to
the Toberoff Decl. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70. Freelance artists and
writers, such as Jack Kirby, contributed to Marvel’s comic books pursuant to assignments from
Stan Lee, who directed their creation, and the artists and writers were then compensated by
Marvel for their work on an agreed per-page basis for all completed assignments that were
submitted. Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-16, 20:11-
21:25, 22:11-23:19, 30:11-31:5, 41:20-42:9, 47:15-48:4, 52:3-5, 58:13-21, 73:17-23, 111:2-17,
383:18-21, 384:18-21, 396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id. Ex. 11, Tracks 3, 6; id.
Ex. 26 at MARVEL0017350; id. Ex. 41 at MARVEL0017230; see also id. Ex. 2 at 16:13-21,
18:15-19:2, 39:7-13, 61:4-6, 61:12-19, 76:8-78:17, 80:19-25; id. Ex. 3 at 28:5-15, 28:19-29:5,
48:10-49:8, 50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 111:12-14, 112:8-114:11; id. Ex. 5
at 81:8-13, 91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10.
Moreover, Marvel bore the entire financial risk associated with the Works since Marvel hired all
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Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4.
17. Between 1958-1963, Kirby was free to, and in fact did, pitch and sell work to
other publishers while he was selling work to Marvel, as did other freelance artists that worked
with Marvel. Ev. Dec. ¶ 18; Mor. Dec., Ex. A at 9-10; Tob. Dec., Ex. D at 177:11-15; Ex. W at
5, 6, 18, 19, 21, 25, 55, 80-81, 84-85; Ex. X at 18462-18466; Ex. Y.
RESPONSE: Jack Kirby did not “sell work” to Marvel as Kirby contributed to Marvel’s
comic books pursuant to assignments from Stan Lee, who directed the creation of the works, and
was then compensated by Marvel for his work on an agreed per-page basis for all completed
assignments that were submitted. Singer Decl. Ex. 1 at 22:11-23:19, 30:11-31:5, 47:15-48:4,
58:13-21, 111:2-17, 383:18-21, 384:18-21; id. Ex. 11, Track 3; id. Ex. 41 at MARVEL0017230;
see also id. Ex. 2 at 76:8-78:17, 80:19-25; id. Ex. 3 at 111:12-14, 112:8-114:11; id. Ex. 5 at
91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10. Moreover,
Marvel bore the entire financial risk associated with the Works since Marvel hired all
14
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Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4. Moreover, this fact is not material to
the motion for summary judgment because it will not “affect the outcome of the suit under the
governing law,” Kinsella, 320 F.3d at 311, and Defendants have cited no admissible evidence to
support the statement that Kirby was free to “sell” artwork to other publishers. Further,
Defendants’ citations do not support the statement that other freelance artists were free to “sell”
artwork to other publishers. Plaintiffs also object to this statement to the extent it relies on the
inadmissible testimony of Evanier and Morrow as well as inadmissible hearsay in Exhibits W, X,
and Y to the Toberoff Decl. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70. Finally,
Plaintiffs object to Defendants’ citation to Exhibit Y to the Toberoff Decl., as the cited document
was not produced in discovery in this action and thus may not be considered on summary
judgment. See Melie v. EVCI/TCI Coll. Admin., No. 08 Civ. 5226(HB), 2009 WL 1404325, at
*1 n.4 (S.D.N.Y., May 20, 2009), aff’d, 374 F. App’x 150 (2d Cir. 2010).
18. Marvel has no copies of any checks, dated between 1958-1963, with legends on
the back that were issued by Marvel to Kirby, or to any other freelancer, for submitted work.
Tob Dec., Ex. L ¶¶ 2, 4.
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19. The earliest checks to a freelancer with a legend on the back, produced by Marvel
in this action, are from 1974, and the legend on such checks states, in part, that the artist is being
paid “for my assignment to [Marvel] of any copyright, trademark and any other rights in or
related to the material, and including my assignment of any rights to renewal copyright,” and
nowhere mentions the phrase “work for hire” or “work made for hire.” Tob. Dec., Ex. E at
100:21-101:9; Ex. J at 396:1-14; Ex. K at 232:5-10; Ex. L at ¶¶ 2, 4; Ex. AA at 14603; Ex. T.
RESPONSE: Plaintiffs do not dispute that the earliest checks produced by Marvel in
this action are from 1974 and include the language quoted in Paragraph 19. However, the full
legend on the back of such checks states: “By endorsement of this check: I, the payee,
acknowledge full payment for my employment by Magazine Management, Co., and for my
assignment to it of any copyright, trademark, and any other rights in or related to the material,
and, including my assignment of any rights to renewal copyright.” Toberoff Decl. Ex. AA at
MARVEL0014603. In any event, this fact is not relevant and is not material to the motion for
summary judgment because the cited checks are outside the Time Period and because it will not
“affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see also
Fed. R. Evid. 402. While no paychecks from the Time Period have survived, all of Marvel’s
witnesses, each of whom was a freelance artist or writer in the 1950s and 1960s, testified that
during that time, Marvel’s payroll checks bore a legend stating that the freelance artists and
writers retained no rights in the work for which they were being paid. Singer Decl. Ex. 1 at
28:20-29:11; id. Ex. 2 at 64:14-65:19, 65:24-66:4, 66:24-67:14, 67:17-20, 273:24-274:11; id. Ex.
3 at 71:17-72:19, 229:4-25; id. Ex. 4 at 31:17-21, 32:4-33:8.
20. The first check produced by Marvel with a legend, mentioning “work for hire” or
“work made for hire,” is from 1986, after the explicit new “work for hire” provisions in section
101 of the Copyright Act of 1976 became effective on January 1, 1978. Tob. Dec. Ex. BB.
RESPONSE: Plaintiffs do not dispute that the first check produced by Marvel in this
action containing a legend that explicitly states “work for hire” or “work made for hire” was
issued in 1986. However, this fact is not relevant and is not material to the motion for summary
16
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judgment because the cited check is from outside the Time Period and because it will not “affect
the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see also Fed. R.
Evid. 402. Further, Plaintiffs object to the use of the phrase “explicit new work for hire
provisions” to the extent that that such terminology states a legal conclusion regarding the
Copyright Act of 1976 and not a statement of undisputed fact. While no paychecks from the
Time Period have survived, all of Marvel’s witnesses, each of whom was a freelance artist or
writer in the 1950s and 1960s, testified that during that time, Marvel’s payroll checks bore a
legend stating that the freelance artists and writers retained no rights in the work for which they
were being paid. Singer Decl. Ex. 1 at 28:20-29:11; id. Ex. 2 at 64:14-65:19, 65:24-66:4, 66:24-
67:14, 67:17-20, 273:24-274:11; id. Ex. 3 at 71:17-72:19, 229:4-25; id. Ex. 4 at 31:17-21, 32:4-
33:8.
21. Between 2006-2008, Marvel entered into a number of separate agreements with
the Kirbys to purchase at a per-page rate unpublished artwork by Jack Kirby for a Fantastic Four
story that Marvel had originally rejected, and various additional pages of rejected unpublished
artwork by Kirby for Thor, Fantastic Four and X-Men. Mor. Dec., Ex. A at 3-4; Ex. B; Tob.
Dec., Ex. D at 91:13-92:5; 138:11-139:4; Ex. P, Ex. Q; Ex. R; Ex. S.
RESPONSE: Plaintiffs do not dispute that, between 2006-2008, Marvel entered into
agreements with Lisa Kirby as Administrator of the Estate of Jack Kirby regarding certain pieces
of Kirby artwork that were created outside of the Time Period and/or as to which no information
has been provided regarding the timing of their creation or whether they were even submitted to
Marvel for publication by Kirby. Defendants’ citations do not support the statement that these
pieces of artwork were “originally rejected” by Marvel. Further, Plaintiffs object to the
statements in Paragraph 21 to the extent Defendants’ citations are to the testimony and report of
John Morrow, who has no personal knowledge of whether the pieces of artwork were “originally
rejected” by Marvel, see Toberoff Decl. Ex. D at 89:13-92:5, and to a document that was not
17
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produced in discovery in this action. See Morrow Declaration Ex. B. This document may not be
considered on summary judgment. Melie, 2009 WL 1404325, at *1 n. 4. Moreover, this fact is
not relevant and is not material to the motion for summary judgment because the artwork was
drawn outside the Time Period and because it will not “affect the outcome of the suit under the
governing law.” Kinsella, 320 F.3d at 311; see also Fed. R. Evid. 402. Finally, Plaintiffs object
to this statement to the extent it relies on the inadmissible testimony of Morrow as well as
inadmissible hearsay in Ex. S to the Toberoff Decl. Spiegel, 604 F.3d at 81; see also Docket
Nos. 67, 70.
Dated: March 25, 2011 By: /s/ James W. Quinn

New York, New York
WEIL, GOTSHAL & MANGES LLP
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
HAYNES AND BOONE, LLP

David Fleischer
30 Rockefeller Plaza, 26th floor
New York, NY 10112
Tel. (212) 659-7300
Fax. (212) 884-7691
18
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Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com



MVL RIGHTS, LLC, DECLARATION OF MARC
TOBEROFF IN OPPOSITION TO
Plaintiffs, PLAINTIFFS’ MOTION TO
EXCLUDE THE EXPERT REPORT
-against- AND TESTIMONY OF JOHN
MORROW
NEAL L. KIRBY and SUSAN M. KIRBY, [Hon. Colleen McMahon]
Defendants. [ECF Case]

Counterclaimants,
-against-

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DECLARATION OF MARC TOBEROFF
I, Marc Toberoff, declare as follows:
1. I am familiar with the facts set forth below and make this declaration in
support of defendants’ memorandum of law in opposition to plaintiffs’ motion to exclude
the expert report and testimony of John Morrow. The facts set forth herein are known to
me of my own personal firsthand knowledge and, if called as a witness, I could and
would testify competently thereto under oath.
2. I am an attorney and the founding partner of Toberoff & Associates, P.C.,
located at 2049 Century Park East, Suite 3630, Los Angeles, CA 90067.
3. My firm represents Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and
Susan M. Kirby (the “Kirbys”), the children of legendary comic book artist and writer
Jack Kirby.
4. On September 16, 2009, the Kirbys availed themselves of their right under
the Copyright Act to recapture their father’s copyright interests by serving 45 notices of
termination (“Termination Notices”) by first class mail on plaintiffs and all of their
known predecessors and successors-in-interest pursuant to 17 U.S.C. § 304(c).
5. Attached hereto as “Exhibit A” is a true and correct copy of Defendants’
Initial Designation of Expert Witness John Morrow, with the attached Expert Report of
John Morrow, served on Plaintiffs’ counsel on November 4, 2010.
6. Attached hereto as “Exhibit B” are true and correct copies of excerpts
from the transcript of the May 13, 2010 deposition of Stan Lee, which I attended.
7. Attached hereto as “Exhibit C” are true and correct copies of excerpts
from the transcript of the January 10, 2011 deposition of John Morrow, which I attended.
1
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8. Attached hereto as “Exhibit D” is a true and correct copy of Defendants’
Initial Designation of Expert Witness Mark Evanier, with the attached Expert Report of
Mark Evanier, served on Plaintiffs’ counsel on November 4, 2010.
9. Attached hereto as “Exhibit E” is a true and correct copy of “Battling the
Kirby Bug” by John Morrow from The Collected Jack Kirby Collector Vol. 1, Bates No.
K 00580, produced to Plaintiffs’ counsel on May 10, 2010.
10. Attached hereto as “Exhibit F” is a true and correct copy of the cover of
Challengers of the Unknown, No. 1, retrieved from the website “comics.org,” and located
at http://www.comics.org/series/1293/covers/.
Dated: March 25, 2011 /s/ Marc Toberoff

Marc Toberoff
2
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Dated: March 25, 2011 TOBEROFF & ASSOCIATES, P.C.

/s/ Marc Toberoff
By: __________________________________

Tel: 310-246-3333

3
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EXHIBIT C
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Page 1
I JOHN MORROW 1
4 ------------------------------x
s MARVEL WORLDWIDE, INC.,
6 and MLV RIGHTS, LLC,
7 Plaintiffs,
8 v. Case No. 10-141-CMKF
10 SUSAN N. KIRBY,
11 Defendants.
12 ------------------------------x
13
14 Video Deposition of JOHN MORROW

15 (Taken by Plaintiffs)
16 Raleigh, North Carolina
17 January 10, 2011
18
19
20
21
22
23 Reported by: Marisa Munoz-Vourakis -

RMR, CRR and Notary Public
24
TSG Reporting- Worldwide 877-702-9580
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Page 2
l JOHN MORROW 2
2 APPEARANCE OF COUNSEL:
3 For the Plaintiffs:
4 DAVID FLEISCHER, ESQ.
5 Haynes and Boone, LLP
6 1221 Avenue of the Americas
7 New York, NY 10020
8
10
11 Also Present: ELI BARD,

VP - Deputy General Counsel, Marvel
12
13
14 For the Defendants:

15 MARC TOBEROFF, ESQ.
16 Toberoff & Associates
17 2049 Century Park East
18 Los Angeles, CA 90067
19
20
2J
22 Also Present: DeANDRAE M. SHIVERS, Videographer

23
24
TSG Reporting- Worldwide S77-702-9580
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Page 3
l JOHN MORROW 3
2
3 Video Deposition of JOHN MORROW, taken by
4 the Plaintiffs, at Smith Anderson, 2500 Wachovia

5 Capital Center, 150 Fayetteville Street, Raleigh, North
6 Carolina, on the lOth day of January, 2011 at 8:43
7 a.m., before Marisa Munoz-Vourakis, Registered Merit
8 Reporter, Certified Realtime Reporter
9 and Notary Public.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 JOHN MORROW 53
2 Q. And I know we covered this a little bit
3 generally, but I'd like to cover it more specifically,
4 what you were asked to cover specifically in your
5 report?
6 A. Well, the history of Timely and Marvel and
7 kind of the history work practices at the time. Jack
8 Kirby's history with the company dating all the way
9 back to what his first work for them with Joe Simon in,
10 what was it, 1939, 1940.
11 His Jack Kirby's career, how he left
12 Marvel, went to work for DC in the '40s, his work in

13 the '50s, how he ended up back at Marvel in the late
14 '50s and then the working relationship between he and
15 Stan Lee, as I understood it, in the '60s.

16 But, you know, a lot of the history of the
l7 company and, you know, what I knew about Jack Kirby's
18 personal work habits, you know, where he worked, how he
19 worked, I guess that's pretty much--
20 Q. Now, what you know about Jack Kirby and his
21 work habits was not derived from personal observation
22 of Jack Kirby working, is that correct?
23 A. Correct. Well, I've seen his studio in
24 California, but that was after he had been deceased,
25 and that's not where he was working when he was doing
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2 the work in general.
3 Q. And so your knowledge of Jack Kirby's
4 working habits and how he worked during the period from
5 '58 to '63, which is the period relevant to this case,
6 is based on what you've read about Mr. Kirby?
7 MR. TOBEROFF: Misstates testimony.
8 A. A lot of it is based on what I've read
9 throughout the years. A lot of it is, I believe, I'm
10 sure I talked to Roz Kirby about that, about what it
11 was like living in New York and working in New York.
12 I know I've read -- Mark Evanier has
13 written several times about visiting Jack's studio and
14 what that was like.
15 I believe in the Neal Kirby interview, we
16 talked about that they called their dad's work space
17 the dungeon, I believe, because it was in the basement
18 of their New York home.
19 I do recall he painted a very graphic
20 picture of what it was like down there. I got a very
21 good sense of what it looked like. It was this room
22 with this one little basement window for light, which
23 is why they called it the dungeon.
24 But also I read a lot over the years about
25 how Kirby worked when he was working with Joe Simon as
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1 JOHN MORROW 55
2 well. How they had shared their across-the-street
3 attic studios right after the war. They got, you know,
4 veteran housing and built houses and worked across the
5 street from each other, to the point Joe Simon even
6 told me they lived in different cities, because the
7 state was the dividing line, or different counties, I
8 guess, between the two houses. Just picked up a lot
9 over the years from various things I've read and
10 talking to different people.
11 Q. Did you ever talk to Joe Simon about Jack
12 Kirby and his work?
13 A. Yes, we have. I actually interviewed Joe
14 Simon for the Jack Kirby Collector.
15 Q. And did Mr. Simon describe the nature of
16 the working relationship between Jack Kirby and Marvel
17 during the 1958 to '63 period?
18 A. I don't believe so, because I don't believe
19 Simon and Kirby were particularly close at that point.
20 Their company had dissolved shortly before that, which
21 was the big reason Kirby ended up back in Marvel, and
22 that seems to be kind of a dead area in the
23 relationship. There's not been much written or said
24 about it.
25 Q. Did Neal Kirby ever tell you that he had
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1 JOHN MORROW 57
2 that Jack was going to be working on rn the future?
3 A. I'm not sure. You would need to check with
4 Mark. I just recall Mark said he was there when Stan
5 and Jack were hashing out a story over the phone. So I
6 know recall whether it was I think it was either for
7 Fantastic Four or Thor, which were the two main books
8 he was doing at the time, but I don't recall which one.
9 And I recall the specifics of, you know, was it one
10 that Jack had already halfway drawn and they were
ll making changes to or it was one that Jack was about to
12 begin, I'm not sure. That's why Mark would be able to
13 answer.
14 Q. Do you have an understanding as to whether
15 or not Stan Lee and Jack Kirby communicated with one
16 another about the work that Jack was engaged in once he
l7 began this story and was somewhere between the
18 beginning and the end?
19 A. Well, actually I can't say that I do, no.
20 I've not heard any instances that I can recall right
21 now of, for instance, Stan calling in the middle while
22 Jack was drawing a story and changing anything. There
are instances of the Marvel offices, for instance, if a

24 book wasn't doing well, quite often, Stan would ask
25 Jack Kirby to take it over. In doing so, Marvel
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JOHN MORROW 58
2 offices would send Jack these little photostats of say
3 like the previous issue, so he could see where he's
4 kind of jumping off from. I have access to a lot of
5 those from the family. They kept those for years and
6 years and have loaned them to me for the magazine.
7 Those are interesting historically, because
8 you can kind of see well, first of all, why would --
9 for instance, why would Jack have a Steve Ditko set of
10 Hulk stats with a Steve Ditco Hulk story? You look and
11 see oh, the issue after that is one where Jack took it
12 over. Okay, that's why it's in Jack's files.
13 There's a lot of instances of that where
14 you would see some totally unrelated artist's work in
1.5 Jack's files. They were sending material to Jack so he
16 could see where he was taking over from.
17 But as far as -- back to the question as
18 far as knowledge of instances of Stan, for instance,
19 getting involved while Jack was doing something? I
20 don't really recall those. Everything I've seen, it's
2l a pretty straightforward thing. There would be some
22 kind of story conference, whatever that would entail,
23 and then Jack would go, do his work, he was drawing the
24 pages, plot them, write margins in the notes, in a lot
25 of instances, when he was done, bring them back in.
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I JOHN MORROW 59
2 Q. Is it your understanding that between '58
3 and '63, 1958 and 1963, all of the work that Jack Kirby
4 did that was published by Marvel was done utilizing the
s so-called Marvel method?
6 A. Is it my understanding that all of it was?
7 Yes.
Q.
8 A. No, that's not my understanding. My
9 understanding was that some was. There's, as far as
10 which ones were and which ones weren't, you know, my
II understanding is that Larry Lieber has said that he
12 provided scripts on some stories to Jack, and Jack was
13 working from full script, but that has some pitfalls to
14 it too. Because if you go back to when Simon and Kirby
15 were working for DC in the '40s, they had writers that
16 would come in and work for them and provide scripts,
17 and there's famous stories of writers would bring in
18 their scripts to Joe Simon or Jack Kirby studio, and as
19 they were leaving, they would see pages floating out
20 the window where they would just look at them and go
21 well, we will just do it ourselves. They would
22 completely write their own scripts, even though they
23 commissioned somebody to do one.
24 So Kirby's history bears out that. It's
25 just he was a very creative person, and anything he
TSG Reporting· Worldwide R77-702-9580
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1 JOHN MORROW 60
2 worked on he put his stamp on, and most publishers were
3 wise enough to let him do it, because he was so
4 creative and would come up with such interesting work.
s Q. Is it correct that on some occasions during
6 this period, from '58 to '63, you understand that Jack
'I was given conventional scripts for work?
8 A. I have heard Larry Lieber say that he
9 provided full scripts for some material. I've not seen
10 those scripts. I've not seen any scripts from Stan
11 from then, and I've not -- of all the interviews I've
12 read with Stan, I've not heard Stan say that they
13 weren't working Marvel method. Stan has always been
14 very proud about touting the Marvel method, because he
15 felt that was something they pioneered. I've not seen
16 him go on the record and say no, I wasn't giving Jack
17 scripts on all this stuff.
18 Q. Let's make sure our lexicon is the same.
19 Would you describe what you understand the
20 Marvel method to be?
21 A. Oh, sure. Marvel method, as I understand
22 it, is the, well, we'll use the term writer and artist,
23 even though some can be used different term. The
24 writer or scripter and the artist get together, discuss
25 an idea, then the artist will go back to his studio,
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1 JOHN MORROW 63
2 There's a lot of sort of anecdotal evidence
3 that it was. Kirby had a tendency to break his stories
4 down in these chapters, and he used this certain kind
5 of like chapter heading and say chapter one, and there
6 would be a big circle, and he would instead of just
7 doing a traditional story, like pretty much everybody
8 else did, where you'd start on page one and end on page
9 20 or however long it was, he would, after about five
10 or six pages, you'd get another big splash page and it
11 would say chapter two.
12 Those were the only artists that I'm aware
13 of that did that, particularly during like the 1950,
14 1958 era, that kind of thing. That's something he was
15 doing before with like Challengers of the Unknown. He
16 was still working at DC before he went to Marvel, and
17 he carried that on over there, which leads me to
18 believe that he had the same ability to pace things the
19 way he wanted, that he's always had, because those
20 chapter breaks are different from what anybody else was
21 doing.
22 To me, if he were getting full scripts at
23 that point, the writer would be designating, okay,
24 we're going to just do a straight story straight
25 through. You know, it's anecdotal evidence, but it
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1 JOHN MORROW 71
2 A. Oh, I probably spent seven, eight hours,
3 something like that, probably total.
4 Q. And do you recall approximately when you
5 began to actually write the report?
6 A. I don't recall the date. I think it was
')
about -- Mr. Toberoff told me we needed to have
8 something done in a couple of weeks, and so I didn't do
9 like, you know, eight hours altogether. There were a
10 couple of revisions on it, so, but, I mean, I think I
11 started about two weeks before we submitted it,
12 something like that.
13 Q. And did you input a draft on your own
14 computer?
15 A. No, the initial draft actually came from
16 Mr. Toberoff's office. We spoke over the phone. The
17 problem is I've not done one of these before, so I had
18 no idea like the format. I've never even seen one
i 9 before. So I asked for their assistance with that. We
20 kind of just sort of did an informal interview over the
2l phone. They'd ask me questions about things, and I
22 would give them my sense, and then they send over
23 they typed up kind of an initial draft of it and sent
24 it over to me with the understanding that, you know,
25 this is just our run through on it, make any changes
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1 JOHN MORROW 72
2 you want.
3 Once I had the basic, you know, format
4 there rn a Word document, it was very easy to go in and
5 alter things, and I changed a considerable amount of
6 what they sent over.
7 Q. Do you recall over how long a period of
8 time it was between your receipt of that initial draft,
9 to the completion of the final report?
10 A. No, I remember I was very busy at the time,
ll and I think -- I'm going by memory here, but it seems
12 like it was about a two-week process. It may have been
13 a little more, a little less than that. But once I got
l4 the draft, I think it was -- I spent about two days or
15 three days before I sent it back to them as my like
16 final version.
17 At that point, they looked it over, found a
18 couple of typos, things like that. Somebody from his
19 office called me up and said I think we got, you know,
20 couple of typos. You might want to consider fixing.
21 They told me I would go in, and they were, I'd change
22 them and send them back, you know, the final, final
23 draft.
24 Q. And how long prior to the delivery of that
25 initial draft that was prepared by Mr. Toberoff's
TSG Reporting~ Worldwide 877~ 702~9580
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Page 88 :
1 JOHN MORROW 88
2 e-mail, just to make sure he knew it had been sent to
3 his assistant.
4 Q. Did Mr. Toberoff respond to this e-mail?
5 A. I don't believe so. Again, it's possible
6 there was an e-mail saying thanks, I got it or
7 whatever. But I don't believe I got a response back
8 from him.
9 Q. Do you recall any discussion about any
10 substantive changes to the report, other than the
11 correction of typos?
12 A. I don't recall right now, no.
13 Q. Let me direct your attention to page four
14 of the draft, that's part of Exhibit 5, which is your
15 signed version, and specifically the first sentence,
16 full sentence at the top of page four that begins:
17 Marvel required me to sign a work-for-hire agreement
18 for the various work I produced for them, and in the
19 course of this project, Marvel finally paid Jack
20 Kirby's estate $325 for the use of that unused Kirby
2l story Kirby drew in 1970. Actually, it doesn't just
22 begin, that's the whole sentence.
23 Did you have any discussion with someone
24 from Mr. Toberoff's office about that sentence?
25 A. You know, I took that out of the final one,
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1 JOHN MORROW 89
2 because I thought it kind of wasn't pertinent, and then
3 you guys would think I'm some kind of expert on
4 work-for-hire, which I'm not. So that's why I took
s that out.
6 Q. Did something prompt you to take it out?
7 A. No, just rereading back over it.
s Q. So in a subsequent draft, this sentence was
9 modified or deleted?
10 A. I believe so. I don't have the -- I
11 thought this was the final version, but I guess it's

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

22 wasn't paid for, and that redrawn work wasn't like, you
23 know, paid again for.
24 Q. And what historical data are you referring
25 to to support that statement?
TSG Reporting· Worldwide 877-702-9580
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Page 1 of 4

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



MVL RIGHTS, LLC, DECLARATION OF MARC
TOBEROFF IN OPPOSITION TO
Plaintiffs, PLAINTIFFS’ MOTION TO
-against- AND TESTIMONY OF MARK
EVANIER
NEAL L. KIRBY and SUSAN M. KIRBY, [Hon. Colleen McMahon]
Defendants. [ECF Case]

Counterclaimants,
-against-

JA1319
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DECLARATION OF MARC TOBEROFF
I, Marc Toberoff, declare as follows:
support of defendants’ memorandum of law in opposition to plaintiffs’ motion to exclude
the expert report and testimony of Mark Evanier. The facts set forth herein are known to
me of my own personal firsthand knowledge and, if called as a witness, I could and
would testify competently thereto under oath.
2. I am an attorney and the founding partner of Toberoff & Associates, P.C.,
located at 2049 Century Park East, Suite 3630, Los Angeles, CA 90067.
3. My firm represents Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and
Susan M. Kirby (the “Kirbys”), the children of legendary comic book artist and writer
Jack Kirby.
4. On September 16, 2009, the Kirbys availed themselves of their right under
the Copyright Act to recapture their father’s copyright interests by serving 45 notices of
termination (“Termination Notices”) by first class mail on plaintiffs and all of their
known predecessors and successors-in-interest pursuant to 17 U.S.C. § 304(c).
5. Attached hereto as “Exhibit A” is a true and correct copy of Defendants’
Initial Designation of Expert Witness Mark Evanier, with the attached Expert Report of
Mark Evanier, served on Plaintiffs’ counsel on November 4, 2010.
6. Attached hereto as “Exhibit B” is a true and correct copy of Defendants’
Initial Designation of Expert Witness John Morrow, served on Plaintiffs’ counsel on
November 4, 2010.
1
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7. Attached hereto as “Exhibit C” is a true and correct copy of page 159 of
the book Kirby: King of Comics by Mark Evanier, which defendants produced in this
action.
8. Attached hereto as “Exhibit D” is a true and correct copy of excerpts from
the order dated July 8, 2009 in Siegel v. Warner Bros. Ent. Inc., Case No. 04-CV-08400,
Docket No. 554, in the U.S. District Court for the Central District of California.
9. Attached hereto as “Exhibit E” are true and correct copies of excerpts
from transcript of the December 6, 2010 deposition of Mark Evanier, which I attended.
10. Attached hereto as “Exhibit F” are true and correct copies of excerpts from
the transcript of the October 21, 2010 deposition of John Romita, which I attended.
11. Attached hereto as “Exhibit G” are true and correct copies of excerpts
from the transcript of the October 26–27, 2010 deposition of Roy Thomas, which I
attended.
12. Attached hereto as “Exhibit H” are true and correct copies of excerpts of
the transcript of the May 13, 2010 deposition of Stan Lee, which I attended.
13. Attached hereto as “Exhibit I” is a true and correct copy of the Declaration
of Mark Evanier in Support of Defendants’ Motion for Summary Judgment, as well as
the attached Exhibit C, filed on February 25, 2011 in this action.
Dated: March 25, 2011 /s/ Marc Toberoff

Marc Toberoff
2
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/s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

3
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EXHIBIT C
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THE I CREDIBLE HULK POSTER

There were many incidents that caused Kirby
to quit Marvel in 1970, llut they all came under
two headings: One was the firm's refusal to
make anv sort of long-term financial wmmit-
ment to him. It wasn't so much that the money
wasn't good as that it wasn't guaranteed and
could end abruptly if his health failed or one
of the new owners just plain wanted him
gone. The other category, which was not unre-
lated. was that Jack felt he'd done a lot more
than having just drawn up Stan lee's ideas-
they were his ideas, too, and sometimes more
his than Stan's. tad: wanted that acknowl-
edged. Over and over though he was refused,
and there were just too many slights; some
pemaps misperceived but some that were
unmistakable.
One of several "last straws" came when a
mail-order firm that was doing business with
Marvel engaged Kirby to draw some posters
of the Marvel heroes. tack drew eight superb
drawings which. in a rare move, he inked him-
self. Then someone at Marvel decided that the
proposed line had too much Kirby in it and
ordered that four of tack's posters be replaced
by the work of other artists. So right there,
Kirby was insulted and-since he was never J
compensated for the four unused posters-fi- Jt
nancially harmed.
But it got worse. Someone at Marvel liked
the design of tack's Hulk poster. They just felt
it should be illustrated by,Herb Trimpe, who
was then the artist on the Hulk comic. Trimpe
was told to trace Kirby's drawing. which he did,
effectively just re-inking it and altering the
ilead as per his version of the character-a
character, of course, that tack had co-created
and designed in the first place.
Jack was never the least bit mad at Trimpe,
The Hulk
who'd just done as his employer had ordered. Poster for M.u velmanid lnternation<~"l
But the published poster {right) became a 1969
Art: Herb Tri mJM
gnawing symbol to Kirby of just what his rela· Marv~l Comic s
tionship with Marvel was aU about He'd created

o,.,a,if*
something that was potentially profitable for The Hulk
him ... but he hadn't received a cent and some- Unu>ed porter for Marvel man ia Intern ational
!969
one el5e' s name was signed to work that was Arr: la<k Kirby
essentially his. It wasn't the specific slight that
drove him off but when the dust cleared. he had
about half of one foot out the door.
K 00304
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EXHIBIT E
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Page 1
2 CENTRAL DISTRICT OF NEW YORK
3
5 MARVEL WORLDWIDE, INC., MARVEL

6 CHARACTERS, INC., and MVL RIGHTS,
7 LLC,
8
9 PLAINTIFFS,
10
11 vs. ) NO. 10 CV 141 (CM) (KNF)

12
13 LISA A. KIRBY, BARBARA J. KIRBY,

15
16 DEFENDANTS.
17
18
19 VIDEOTAPED DEPOSITION OF MARK EVANIER

20 LOS ANGELES, CALIFORNIA
21 DECEMBER 6, 2010
22
23
24 REPORTED BY: CHRISTY A. CANNARIATO, CSR #7954, RPR, CRR
25 JOB NO.: 34168
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Page 2
1
7 December 6, 2010
8 9:35 a.m.
9
10
11
12
13 Deposition of Mark Evanier, taken on behalf of

14 Plaintiffs, held at the offices of Paul Hastings,
15 515 S. Flower Street, 25th Floor, Los Angeles,
16 California, before Christy A. Cannariato,
17 CSR #7954, RPR, CRR.
18
19
20
21
22
23
24
25
JA1327
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~
Page 3 '
1 A P P E A R A N C E S
2
3 REPRESENTING THE PLAINTIFFS:

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

16 TOBEROFF & ASSOCIATES
17 BY: MARC TOBEROFF, ESQ.
18 2049 CENTURY PARK EAST, SUITE 2720
19 LOS ANGELES, CA 90067
20
21 ALSO PRESENT:
22 ELI BARD, DEPUTY GENERAL COUNSEL MARVEL ENTERTAINMENT
23 CHRIS JORDAN, VIDEOGRAPHER
24
25
JA1328
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Page 14 ~
1 and comic book characters published by Marvel between '58
2 and '63 as well as his relationship with Marvel during

3 this key period?
4 A. Yes, I was.
5 Q. Okay. That's the opinion I'm referring to.
6 Got it?
7 A. No, no. Let me -- the opinion is not on that
8 page you're citing. The opinion is throughout the report.
9 Are you asking me to how do I how did I arrive at the
10 opinion stated throughout the document that are summarized
11 on this page?
12 Q. Yes.
13 A. All right. Okay.
14 Q. Yeah. Not a trick question.
15 A. No. I'm just trying to answer -- I was trying
16 to figure out why you were calling my attention to that

17 one sentence.
18 Q. Because it summarized your opinion. !l
19 MR. TOBEROFF: Objection. Mischaracterizes
20 the report. It doesn't summarize his opinion.
21 A. The opinions in this report were formulated by

22 my calling upon years and years of studying Marvel Comics,
23 reading Marvel Comics, interviewing and talking to people
24 who made Marvel Comics, visiting the Marvel offices,
25 discussing Marvel history with other people who have done
JA1329
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Page 15 [,;
1 similar investigations and interviews, reading articles
2 about Marvel. It's -- the opinions are based on 40 years
3 of -- more than 40 years of following Marvel Comics,
4 probably 50 years.
5 Q. And specifically you referred to reviewing
6 or -- let me go back.
7 Could you tell me with some level of
8 specificity the people interviews -- take it back. Strike
9 the question.
10 In connection with preparing the report
11 itself, did you conduct any interviews in order to prepare
12 the report?
13 A. Did I conduct any interviews specifically for
14 towards this report?
15 Q. Yes.
16 A. No, I did not.
17 Q. And specifically with regard to the
18 preparation of the report, did you review any documents or
19 reference works in connection with preparing the report?
20 A. I got some dates out of my own book on Jack,
21 and I think I looked some up on the Internet to just
22 verify my recollection of dates and spellings.
23 Q. So other than checking on some dates and
24 spellings from your book on Jack Kirby and other
25 information available on the Internet, you didn't review
JA1330
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Page 60
1 A. Jack's original pages of Spider-Man were not
2 used. Then Steve Ditko did it. However, Jack maintained
3 that he created Spider-Man.
4 Q. And so this would be a circumstance, for
5 example, where --maybe I've got this wrong.
6 But put aside what he maintained. What did
7 you conclude as to the creation of Spider-Man? Did you
8 find Mr. Kirby's version more credible than Mr. Lee's,
9 which is in clear conflict?

10 A. I don't find them completely in conflict. I
11 find certain areas that overlap. And in this particular

12 -- this is -- you're kind of asking me for what could be a
13 very long answer here, if you want to go through the whole
14 thing.
15 Q. I don't know. That's a good question.
16 A. Because I've spent hours discussing this with
17 people. My version that I reported on, written about, of
18 the creation of Spider-Man allows for certain he said/he

19 said variations. There are, however, certain parallels in
20 the stories and the accounts that I find indisputable.
21 Q. So you're taking an amalgam of different facts
22 and versions and choosing to try to make them consistent
23 in such a way that you reach a conclusion?
24 A. Well, when I report on this, I try to separate
25 what is conjecture from what is, I believe, indisputable.
JA1331
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1 And I leave it -- well, when I have written about this, I
2 generally leave it to the reader to make certain decisions
3 about the process.
4 I think that there are things you can say
5 about it that are obvious. I think there are things you
6 can say that are simply common sense, because I don't
7 think that either Stan's or Jack's accounts exactly match
8 the physical evidence of the printed comic that resulted.
9 But I think it is possible to come to a
10 scenario of how Spider-Man came to be that allows for the
11 fact that at various stages there's the Stan Lee version,
12 and the Jack Kirby version, and they could in some cases
13 both be true based on interpretation of certain words,
14 certain verbs.
15 It's something when I have written about it
16 I'm very careful to try and not take -- not to say either
17 Stan's version was completely correct or Jack's version
18 was completely correct, because I don't think either one
19 of those tells the entire story. But they are not -- it
20 is wrong to say that they are in complete conflict.
21 Q. Some areas we can agree on. I think we did
22 agree on one, which was that Stan, in fact, didn't use the
23 original drawings by Jack with regard to Spider-Man;
24 correct?
25 A. That is correct.
JA1332
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Page 111
1 MR. TOBEROFF: Compound.
2 A. Well, Mr. Kirby believed -- said that he took
3 some of the ideas that became the Marvel heroes in. He

4 brought them in, did sketches first, took them in and
5 showed them to Stan.
6 So to the extent that that answers your

7 question, that answers your question.
8 Q. Well, I'm asking for your understanding as to,
9 first of all, what did Mr. Kirby tell you about that,
10 which characters, when did he do that, and whether or not
11 this was one of the versions you chose to believe.

12 A. Okay. Mr. Kirby told me that he brought 1n
13 sketches for knew characters, including rough sketches of
14 The Fantastic Four that he did on his own. Brought them

15 in.
16 His version of the creation of Fantastic Four
17 was that when Mr. Goodman asked for a superhero book to
18 parallel DC Comics' Justice League of America, Stan's
19 initial idea was to revive the characters from the 1940s
20 The Human Torch, The Submariner, Captain America, and
21 certain others.
22 And Mr. Kirby then went out and said, no, we
23 need new characters. And he came up with some sketches.
24 And he took them in, and The Fantastic Four was born out
25 of those discussions.
JA1333
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1 So I believe that is an answer to your
2 question.
3 Q. Well, let me parse that for a second.
4 A. All right.
5 Q. I'm asking for your understanding. And I want
6 to know whether or not you understand, do you not, that
7 those versions, the Kirby version and the Stan Lee
8 version, are inconsistent?
9 A. Yes.
10 Q. Are they not?

11 A. Yes. Those are inconsistent.
12 Q. And so I'm asking for your understanding,
13 based on the fact that you're the one sitting there in
14 that chair, as to how the actual creation, other than the
15 fact that Goodman wanted to have them created, how it came
16 about. Are you picking the Kirby version, the Lee
17 version, or somewhere in between?

18 A. Well, I have not written that version for
19 print anywhere.
20 Q. That being the Kirby version?

21 A. The version that I just described to you.
22 Q. The Kirby version.
23 A. Yes. I have not written that because -- and
24 if and when I do, it will be written as a here's Jack's

25 version, here's Stan's version. And I would add in Sol
JA1334
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1 Brodsky, who was the right-hand man who was present for a
2 lot of this, he more or less endorsed the Kirby version to
3 me.
4 Q. Sol Brodsky is dead; right?
5 A. Yes, he is. But I haven't published this.
6 This is an area where when I write about this, I say that,
7 and I think I say in my book, in effect, Jack and Stan got
8 together and came up with the characters. I don't remove
9 from that period, which as you keep reminding me I was not
10 present for
11 Q. I haven't reminded you the whole day.
12 A. I think you did someplace in there, but
13 anyway.
14 You know, there's a limit to how much we can
15 know about what two men did behind closed doors years ago.
16 There's also a limit to how much each of them could even
17 remember about that at the time.
18 And I was sometimes when I have written about
19 this I also from my own experience talk about the fact
20 that collaborators can honestly disagree five minutes
21 after a meeting of whose idea was which because one person
22 threw out an idea and another person expanded on it and
23 such.
24 So I have not uncovered anything which would
25 convince me that Jack didn't bring in some sketches. And
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1 I don't know how much those sketches resembled the
2 finished product. But Jack said he brought in ideas. I
3 know that Jack was a fountain of ideas; that he had a

4 lifetime history of batting out ideas for new characters
5 and sketches. And every single human being who ever
6 worked with Jack will tell you that, including Stan Lee.
7 So I choose to believe that because of Jack's
8 modus operandi, and the way he always worked, that he
9 brought in something, and Stan brought in something, and
10 collectively The Fantastic Four emerged from those
11 discussions. And I specifically avoid trying to say that
12 I know exactly what happened behind those closed doors,
13 because it was apparent to me that there was some level of
14 collaboration there.
15 I find in my own experience, and in my own
16 observation, and talking to the people who knew Jack well,
17 Jack was a creating character machine. He was also
18 creating characters. He created characters when he was
19 asked to. He created characters when he wasn't asked to.

20 He was a very fertile person. And Stan has said that many
21 times.
22 Q. Do you know-- I'm sorry. Please finish.
23 A. So I hope I'm answering your question. But
24 the mere fact that somebody says, you know, that a
25 publisher says I would really like to do a western, and
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:;
1 somebody goes home and comes back with the Lone Ranger,
2 doesn't mean the publisher created the Lone Ranger.
3 Q. Do you have any knowledge as to whether or not
4 these sketches that Kirby told you about were given to
5 Stan before or after Stan assigned Kirby to draw the first
6 book?
7 A. My understanding is they were done before.
8 Q. That's based on what Kirby told you?
9 A. It's based on what Stan told me as well.
10 Q. But you haven't actually bothered to read
11 Stan's sworn testimony in this case to find out what he
12 testified to under oath?

13 A. I haven't gotten around to it. No.
14 MR. TOBEROFF: Is there any other type of
15 testimony beyond sworn testimony?
16 Q. It just sounds better.
17 You noted in the sentence that was describing
18 your understanding of "work for hire," that the terms
19 "employee for hire" and "putative employer" are both in
20 quotes. Was there some reason why you put them in quotes?
21 A. Where are we here? I'm sorry.
22 Q. Back on page 8 --
23 A. Page 8 of which
24 Q. -- of the
25 A. Superman or the
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Page 230 ~
It
1 THE WITNESS: You're objecting to me now?
2 MR. TOBEROFF: No. When you said comic
3 relief.
4 A. No, I thought he meant comic relief for real.
5 There was a lighter character. There was a
6 professorial type character.
7 Q. You say at the bottom of page 15 that you find
8 it highly unlikely that Lee acted alone in conceiving
9 these characters. Is it your testimony that Lee is just
10 misremembering or lying? Or how have you concluded that
11 his version is false?

12 A. Well, I am addressing one of his versions.
13 When I have talked to Stan, he talks about -- he has in
14 the past frequently talked about Jack coming up with ideas
15 left and right for everything they did.
16 And so when you've got this person like Jack
17 Kirby who was famous for coming up with ideas for new
18 characters, and when you look at the way these men always
19 worked, the way they had worked on unimportant nonseries
20 romance stories before then, when Jack was involved in
21 plotting the things, I don't understand the logic behind
22 leaving -- omitting Jack from the process of creating what
23 was going to be a very important new comic for them. I
24 don't see the reason to leave him out of that process. If
25 you were an editor or writer, you would beg to have a guy
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Page 15 of 17
t
Page 231 fi
1 like that in the room helping flesh out whatever ideas you
2 had, change them, and bring in his input.
3 I'm not saying Stan is lying. I'm saying he's
4 choosing his words carefully, remembering a version. I
5 disagree with Stan about some aspects of Marvel history.

6 We've had friendly arguments about certain issues and
7 certain comics and how things came about and how they were
8 published. And sometimes I get him to agree with me. I
9 show him evidence.

10 Q. Well, one thing we've established, during this
11 period from '58 to '63, Stan was there, and you weren't.
12 A. Yes.
13 Q. You say in your expert report at page 15
14 carrying over to 16 that "It is also worth noting that
15 Stan Lee did not create any important characters either

16 before Jack Kirby first worked with Lee or after Jack
17 Kirby stopped working with Lee in 1970."

18 Do you see that bottom of 15 over to 16 in
19 your report?
20 A. Hold on here. Yes, I see that.
21 Q. After he stopped working for Lee in 1970, what
22 successful characters did Kirby create?

23 A. Well, he created a series for DC called The
24 New Gods. Featured a villain called Dark Side, one of the
25 most important villains in Allied DC Comics. Did a book
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Page 232
1 called Commandee for DC that ran for quite awhile. He
2 went back to Marvel and created a book called Machine Man,
3 and a book called The Eternals, which they keep reviving

4 both of those. And it had a best-selling series of
5 reprints of those.
6 He created a book -- well, if you want to go
7 through the list, for DC he created The New Gods, The

8 Forever People, Mr. Miracle. Some of these were ideas
9 that he had while he was still at Marvel but they were

10 published first by DC. The Demon, Commandee. He did
11 and each one of these comics had many, many spin off
12 characters who are now toys and games and even go out to
13 the toy store and buy model figures of an awful lot of

t.'
14 these characters that he created for DC in the early 70s. !'
15 Then he went to work for Marvel, back to
16 Marvel for a while. And he did The Eternals. And I
17 mentioned he did Machine Man. He did -- he went back to

18 Captain America and the Black Panther. And he introduced
19 a lot of supporting characters in those books which have
20 since been used over and over.
!.
21 He then went to work for Pacific Comics, and
22 he did Captain Victory and Silver Star.
23 Q. Anything else?
24 A. There's a lot of other lesser characters.
25 Q. And what's your definition of successful in
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1 this context? New Gods was essentially a flop, wasn't it?
2 A. No. They keep reprinting it, and it sells
3 very well.
4 Q. Did Kirby create any characters after he left
5 Marvel in 1970 that ultimately had the kind of success
6 that many of the characters that were created in the '58

7 through '63 period at Marvel?
8 A. He created --
9 Q. Or he was involved with Lee and Kirby
10 together?
11 A. He created some characters that were less
12 successful. He also some of the '58 to '63 characters
13 didn't catch on either.

14 Q. That's part of the business; right? Some of
15 them catch on; some of them don't.

16 A. Yeah. Sometimes they don't go.
17 Q. And that's what the publisher has to worry
18 about; correct?
19 A. Publisher worries about how his books are
20 selling. Yes.
21 (Evanier Expert 14 marked for identification.)
22 Q. Would you take a look at -- where's the Kirby
23 Collector? I would like to mark as Evanier 14 a document
24 Jack Kirby Collector Thirty-Eight, priced at 9.95.
25 A. It's an old picture of me. And that's a real
JA1341
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EXHIBIT F
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i'
Page 1 fi

4

6 MVL RIGHTS, LLC,
No. 10-141-CMKF
7 Plaintiffs,
8 vs.

10 SUSAN N. KIRBY,
11 Defendants. )
-----------------------------)
12
13
14
15
16
17 CONFIDENTIAL VIDEOTAPED DEPOSITION OF

18 JOHN V. ROMITA
19 Garden City, New York
20 Thursday, October 21, 2010
21
22
23 Reported by:
24 KRISTIN KOCH, RPR, RMR, CRR, CLR
25 JOB NO. 34124
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~
Page 2
1
4 October 21, 2010

5 9:32 a.m.
6
8 Confidential Videotaped Deposition

9 of JOHN V. ROMITA, held at The Garden City
10 Hotel, 45 7th Street, Garden City,
11 New York, before Kristin Koch, a Registered
12 Professional Reporter, Registered Merit
13 Reporter, Certified Realtime Reporter,
14 Certified Livenote Reporter and Notary
15 Public of the State of New York.
16
17
18
19
20
21
22
23
24
25
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Page 3
1
2 A P P E A RAN C E S:
3
5 WEIL, GOTSHAL & MANGES, LLP

6 Attorneys for Plaintiffs
7 767 Fifth Avenue
8 New York, New York 10153
9 BY: RANDI W. SINGER, ESQ.
10 SABRINA A. PERELMAN, ESQ.
11
12
13 TOBEROFF & ASSOCIATES, P.C.

14 Attorneys for Defendants
16 Los Angeles, California 90067
17 BY: MARC TOBEROFF, ESQ.
18
19
20 ALSO PRESENT:
21
22 ELI BARD, Marvel Entertainment, LLC

23 HENRY MARTE, legal Video Specialist
24 VIRGINIA ROMITA
25
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Page 219 ~
1
[;
Romita - Confidential ~
2 '58 when things started to wind down at Marvel,

3 then you went to DC in 1958. Between 1958 and
4 1963
5 A. '64. '65.
6 Q. Between 1958 and the time in mid '65
7
when you went back to Marvel, did you do any
8 work for Marvel?
9 A. No. I wouldn't even answer the
10 phone for the first couple of years.
11 Q. What does that mean?
12 A. Well, at first I didn't want to talk
13 to him. I was mad at him. Secondly, when I
14 did answer the phone, I would ask him how
15 much are you -- I was getting $44 a page to do
16 love stories and I asked Stan -- he would call
17 up and say "come back to Marvel," and I would
18 say, "how much are you paying a page? He said,
19 "$25 a page." I said, "Stan, I have got a kid
20 to raise. I'm not gonna do it," and that was
21 it. I had two kids at the time.
22 Q. So during that period you didn't do
23 any work with Marvel?
24 A. No, absolutely.
25 Q. Just to be clear, when you said
JA1346
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Page 220 R
2 "absolutely," "absolutely I did not"?
3 A. Not during that period.
4 Q. Did you work with Jack Kirby between
5 1958 and 1963?
6 A. No.
7 Q. And, again, when was the first time
8 you met Jack Kirby?
9 A. In '65. Sometime between July and
10 January he was in the office and I was
11 introduced to him.
12 Q. That was the story you recounted --
13 A. Where he was correcting someone's
14 art.
15 Q. Do you know what Jack Kirby was paid
16 per page during the years between 1958 and
17 1963?
18 A. I wouldn't have the slightest clue.
19 Q. Did you ever ask Jack Kirby what his
20 business relationship was with Marvel during
21 those years?
22 A. No. We never asked questions like
23 that of each other.
24 Q. I'd like you to turn to --back to
25 Exhibit 6, which is the big one.
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EXHIBIT G
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Page 1
1
IN THE UNITED STATES DISTRICT COURT

2 FOR THE SOUTHERN DISTRICT OF NEW YORK
3
4
MARVEL WORLDWIDE, INC., )

5 MARVEL CHARACTERS, INC., )
and MVL RIGHTS, LLC., )
6 )
Plaintiffs, )
7 )
vs. )
8 )
9 KIRBY, NEAL L. KIRBY and )
SUSAN N. KIRBY, )
10 )
Defendants. )
11 )
)
12
13
VOLUME I
14
VIDEOTAPED DEPOSITION OF
15
ROY THOMAS
16
17 October 26, 2010
18 10:06 a.m.
19
Holiday Inn Express

21
ANNIE O'HARA, CCR-B-2340, SC Notary

22
23
24
25
JA1349
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Page 2
1 APPEARANCES OF COUNSEL
2
On behalf of the Plaintiffs:

3
JODI AILEEN KLEINICK, Esq.

4 Paul Hastings Janofsky & Walker
75 East 55th Street
5 New York, New York 10022
6
7 ELI BARD, Esq.
Marvel Entertainment, Inc.
8 417 Fifth Avenue
New York, New York 10016
9
10
On behalf of the Defendants:

11
MARC TOBEROFF, Esq.

12 Toberoff & Associates
2049 Century Park East
13 Suite 2720
Los Angeles, California 90067
14
15
16 1:
Videographer: ...
17
Michael Arrison
18
19
20
21
22
23
24
25
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Page 23
1 Thomas
2 A. Uh-huh.
3 Q. All of the questions that I'm going to be
4 asking you, unless I specify a different time
5 period, are from -- are dealing with the period from
6 when you first started in July of 1965 to let's say
7 the end of 1972.
8 A. All right.
9 Q. Okay.
10 How did you begin working at Marvel the
11 first time?
12 A. I had wanted to meet Stan Lee because I
13 had been working on this -- the early version of
14 this fan magazine Alter Ego in the early '60s, and I
15 was a big fan of the material that Stan was writing
16 and the artists were drawing. And I had exchanged
17 one or two letters with him. And when so I came to
18 New York to work for DC, I still wanted to meet Stan
19 Lee. And I invited perhaps we could get together
20 for a drink. He knew vaguely who I was and that was
21 about it.
22 And I got back to my hotel room and was
23 told that: Well, he wasn't interested in having
24 you know, he didn't really socialize that much
25 because he lived out on Long Island. But he'd like
JA1351
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5 of 8
Page 207
3 Case No. 10-141-CMKF
4

6 MARVEL CHARACTERS, INC., and
7 MVL RIGHTS, LLC,
8 Plaintiffs,
9 vs.
12 Defendants.
13
14
15 Volume II
16 Videotape Deposition of:
17 Roy Thomas
18
Wednesday, October 27, 2010
19
Orangeburg, South Carolina
20
21
22
23
24
25
JA1352
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6 of 8
Page 208
1 APPEARANCES:
2 FOR THE PLAINTIFFS:
3 MARVEL WORLDWIDE, INC., MARVEL CHARACTERS,
4 IN.C, and MVL RIGHTS, LLC
5 BY: JODI AILEEN KLEINICK
6 PAUL HASTINGS JANOFSKY & WALKER
7 75 East 55 Street
9
10 -AND-
11
12
13 ELI BARD
14 VICE PRESIDENT, DEPUTY GENERAL COUNSEL
15 MARVEL ENTERTAINMENT, INC.
16 417 Fifth Avenue
18
19
20
21
22
23
24
25 (Appearances continued:)
JA1353
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Page 209
1 FOR THE DEFENDANTS:
3 NEAL L. KIRBY and SUSAN N. KIRBY
4 BY: MARC TOBEROFF
5 TOBEROFF & ASSOCIATES
7 Suite 2720
8 Los Angeles, CA 90067
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
11'-'tJ>' X"A-':;;;~.' -·~'>" ,-,t•#, •'=".;.;::<"'"' «,'
JA1354
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8 of 8
Page 214
1 Thomas
2 MS. KLEINICK: Objection.
3 A. It was an advance.
4 It was done for, you know, a certain
5 number of pages, or whatever, and figured on a
6 page rate.
7 Q. Oh. But, and it was --
8 A. Pardon me.
9 Q. Strike that.
10 A. Oh. I'm sorry.
11 Q. So prior to the -- you began working
12 at Marvel in July, 1965, correct?
13 A. Yes.
14 Q. And prior to that -- starting at
15 Marvel and the short time you were at DC,
16 prior to that -- you had no experience in the
17 comic book industry?
18 A. No. I had also written -- sometime
19 in the turn of 1965, or -- I'm not sure exactly
20 the date -- how that relates to the Jimmy Olsen
21 story that was also done in that pre-New York
22 period, I wrote two scripts for a smaller
23 company called Charlton Company, that was based
24 in Derby, Connecticut.
25 And I had also submitted one or two
JA1355
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Filed 03/25/11 of 190
Page 1 of 3

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



DECLARATION OF MARK
MVL RIGHTS, LLC,
EVANIER IN SUPPORT OF
Plaintiffs, DEFENDANTS’ MEMORANDUM
OF LAW IN OPPOSITION TO
-against- PLAINTIFFS’ MOTION TO
LISA R. KIRBY, BARBARA J. KIRBY, AND TESTIMONY OF MARK
NEAL L. KIRBY and SUSAN M. KIRBY, EVANIER
Defendants. [Hon. Colleen McMahon]
[ECF Case]

Counterclaimants,
-against-

JA1356
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Filed 03/25/11 of 190
Page 2 of 3
DECLARATION OF MARK EVANIER
I, Mark Evanier, declare as follows:
support of defendants' Memorandum of Law in opposition to Plaintiffs' Motion to
Exclude the Expert Report and Testimony of Mark Evanier. 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 have been called upon to write numerous forewords and introductory
material for books about comics, including many reprint volumes published by DC
Comics and Marvel. These include commentary for Marvel' s Maximum Fantastic Four,
an analysis of the first issue ofthe Fantastic Four comic book, Marvel Masterworks:
Rawhide Kid Volume 2 (2006), Fantastic Four Omnibus Vol. 2 (2007), Marvel
Masterworks: The Mighty Thor No.6 (2007) and, most recently, Marvel Masterworks:
The Inhumans Volume 1 (2009). For DC, I have written introductions and/or forewords
for many oftheir books including the Justice League of America Archives, Vol. 6 (2000),
The Blackhawk Archives Vol. 1 (2001), Jack Kirby' s Fourth World Omnibus Vol. 1
(2007), Vol. 2 Vol. 2 (2007), Vol. 3 (2007) and Vol. 4 (2008).
Dated March 25, 2011
1
JA1357
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Page 3 of 3

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

2
JA1358
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Filed 03/25/11 of 190
Page 1 of 5

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



MVL RIGHTS, LLC, DECLARATION OF JOHN
MORROW IN SUPPORT OF
Plaintiffs, DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR
-against-
SUMMARY JUDGMENT
[ECF Case]
Defendants.

Counterclaimants,
-against-

JA1359
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Filed 03/25/11 of 190
Page 2 of 5
DECLARATION OF JOHN MORROW
I, John Morrow, declare as follows:
1. I have been involved in the comic book industry for more than twenty
years as a writer, archivist and publisher. I submit this declaration in support of
defendants’ opposition to plaintiffs’ Motion for Summary Judgment. I have personal
knowledge of the facts set forth in this Declaration and my attached expert report and, if
called as a witness, could and would testify competently to such facts under oath.
2. In 1989, my wife Pamela and I started TwoMorrows Advertising in

Raleigh, North Carolina, providing advertising and graphic design services to local and
national accounts. In early 1994, after hearing of Jack Kirby’s death, I produced a
newsletter about his life and achievements entitled The Jack Kirby Collector #1. In
September 1994, I mailed free to 125 other Kirby fans. The magazine became popular
and I have now published 55 issues of the magazine through Fall 2010. At first I was
releasing issues approximately every two months. More recently, I have been putting out
approximately three issues a year, in a larger, tabloid-size format. Periodically I collate
these issues and release The Collected Jack Kirby Collector. To date we have issued
seven of these books, collecting issues up through #30 along with new material. In the
process of putting these issues together I have done extensive research into Jack Kirby’s
life and amassed a wealth of archival material relating to his entire career. I have also
spoken to and formally interviewed dozens of the leading lights in the comic book
business from the 1950s onward as well as members of Jack Kirby’s family. I am also a
Trustee of the non-profit (501c3) online Jack Kirby Museum.
3. In 1998, I teamed with editor Jon Cooke to produce the Eisner Award-
winning magazine Comic Book Artist, followed by the revival in 1999 of comic writer
Roy Thomas’ 1960s fanzine Alter Ego, which focuses on the Golden and Silver Age of
comics (1940s to 1960s) and their creators. TwoMorrows also publishes comic book
illustrator Mike Manley’s Draw!, the professional how-to magazine about comics,
1
JA1360
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Page 3 of 5
cartooning, and animation, and formerly published comic book writer/editor Danny
Fingeroth’s Write Now!, which offers tips and lessons on writing for comics. In 2004,
TwoMorrows launched Back Issue! magazine (edited by comic book writer/editor
Michael Eury), covering the history of comics of the 1970s, 1980s, up to today, and in
2006, we spun the “Rough Stuff” section of Back Issue! into its own magazine, edited by
comic book illustrator Bob McLeod, which celebrates the art of creating comics.
4. Today, TwoMorrows is widely recognized as the premier publisher of
books and magazines about the history of the comic book medium. Our publications have
been nominated for and won numerous Eisner Awards, recognizing excellence in
historical and journalistic presentation, and I have been commissioned by both industry
heavyweights Marvel and DC Comics to write introductions to several of their books
reprinting classic comic book series by Jack Kirby, including collections reprinting DC’s
Challengers of the Unknown and Sandman, and Marvel’s Fantastic Four, Thor, Nick
Fury, and Captain America.
5. Both DC Comics and Marvel Comics have contacted me for assistance in
tracking down both missing art, and alternate or unused/rejected art, for many of their
reprint projects, including art for DC’s Kamandi, OMAC, Demon, Jimmy Olsen, and New
Gods series, and Marvel’s Thor, Spider-Man, X-Men, and Fantastic Four series.
6. I have had the privilege of serving as a panelist or moderator at numerous
comic book industry events, including Comic-Con International in San Diego, the New
York Comicon, and others. I also appeared on camera in the documentary Jack Kirby:
Storyteller, which was one of the special features on 20th Century Fox’s DVD release of
the 2005 Fantastic Four theatrical film. I also provided research materials and audio and
video footage of Jack Kirby to the documentary’s producer at his request.

7. Attached hereto as “Exhibit A” is a true and correct copy of my expert
2
JA1361
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Page 4 of 5
8. In 2006, Marvel Comics requested my assistance in re-assembling an
entire unpublished Fantastic Four story by Jack Kirby. The genesis of this project was an
article I wrote about this unused story entitled Fantastic Four #108: Kirby’s Way, which
appeared in my publication, The Jack Kirby Collector, in 1996. Prior to my 1996 article,
the unused Fantastic Four story was unknown to the public at large, and to the then-
current Marvel Comics editorial department. Marvel paid me to update my Jack Kirby
Collector article, which was used as both as an “Afterword” in a Fantastic Four reprint
collection in 2006, and an introduction to the stand-alone Fantastic Four: The Lost
Adventure #1 comic book in 2008, wherein Marvel commissioned Stan Lee to finally add
dialogue to Kirby’s plotted/penciled pages, over 35 years after Kirby drew them. In the
course of this project, Marvel paid Jack Kirby’s estate $325 per page for the use of that
unused story Kirby drew in 1970, which appears in Fantastic Four: The Lost Adventure
#1.
9. Attached hereto as “Exhibit B” is a true and correct copy of the comic
book Fantastic Four: The Lost Adventure # 1 published by Marvel.
Dated: March 25, 2011
John Morrow
3
JA1362
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Page 5 of 5

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

4
JA1363
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Filed 03/25/11 of 190
Page 1 of 8

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



MVL RIGHTS, LLC, DECLARATION OF MARK
EVANIER IN SUPPORT OF
Plaintiffs, DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR
-against-
SUMMARY JUDGMENT
[ECF Case]
Defendants.

Counterclaimants,
-against-

JA1364
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Filed 03/25/11 of 190
Page 2 of 8
DECLARATION OF MARK EVANIER
I, Mark Evanier, declare as follows:
1. I have been involved in the comic book industry for more than thirty years
as a comic book writer, columnist and historian. I submit this declaration in support of
defendants’ opposition to plaintiffs’ Motion for Summary Judgment. I have personal
knowledge of the facts set forth in this Declaration and my attached expert report and, if
called as a witness, could and would testify competently to such facts under oath.
2. I have been involved in the comic book industry for over forty years as a
writer, columnist and historian. My first sale as a professional writer came in 1969, when
I was 17 years old, and soon after I was hired by a Los Angeles-based firm that was
operating a licensed fan club for the Marvel properties, called Marvelmania, which
advertised in Marvel comics. The “club” was a means of merchandising items such as
posters and decals of the Marvel characters, and I was hired as the local firm’s in-house
expert and as the editor of a fan magazine that Marvel authorized. Not long before I left
that position, Jack Kirby hired me as an assistant to help him on some new comic book
projects he was producing for DC Comics. I assisted him with storylines, handled
research and co-authored the letter pages in his comic books and did a limited amount of
art production work.
3. While apprenticing under Kirby, I began working as a comic book writer
for The Walt Disney Company and also for Western Publishing (“Western”), which was
issuing comic books published under the Gold Key imprint (Bugs Bunny, Daffy Duck,
Porky, etc.). Shortly after that, I was hired as the editor and head writer for the Edgar
Rice Burroughs estate (Tarzan).
4. In 1974, I began writing for television. My comedy writing experience

includes working on The Nancy Walker Show, Cheers, That's Incredible, Love Boat,
Superboy, Pryor’s Place, Bob (starring Bob Newhart as a comic book artist) and
Welcome Back, Kotter, where I worked as story editor. After leaving Welcome Back,
1
JA1365
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Page 3 of 8
Kotter, I worked for and eventually ran the comic book division of Hanna-Barbera
Studios, as editor and head writer.
5. My animated series writing experience includes television shows such as
Scooby Doo, Plastic Man, Thundarr the Barbarian, The ABC Weekend Special, CBS
Storybreak, Richie Rich, The Wuzzles, Superman: The Animated Series, Dungeons &
Dragons and Garfield and Friends.
6. While I continue to work in film and television, I have also worked on a

number of comic books, including writing Superman Adventures, The New Gods and
Blackhawk for DC Comics. I was both the writer and the editor for Blackhawk. Since
1983, I have collaborated with artist Sergio Aragonés on the long-running comic book
series, Groo the Wanderer, which has been published in the past by Pacific Comics,
Eclipse Comics, Marvel Comics and Image Comics, and which is currently published by
Dark Horse Comics. I have also written, co-created and sometimes edited several other
comic books series including The DNAgents (with Will Meugniot) and Crossfire (with
Dan Spiegle), both of which were published by Eclipse; Hollywood Superstars (with
Spiegle), which was published by Marvel; and Magnor (with Aragonés), which was
published by Malibu Comics.
7. I have been nominated for three Emmy Awards for my work on Garfield
and Friends (two) and Pryor’s Place (one). In 2003, I was awarded the Lifetime
Achievement Award in Animation Writing by the Animation Writers Caucus of the
Writers Guild of America, West (WGAw).
8. I have been a panelist or moderator at numerous comic book industry
events, including the Comic-Con International in San Diego, WonderCon in San
Francisco, the Big Apple Comic Convention in New York City, and the Mid-Ohio Con in
Columbus, Ohio. The Comic-Con International is the largest event of its kind in the
world, and each year I spend much of the convention in panels and events during which I
interview the comic book “greats” about their work. For my efforts in recording and
2
JA1366
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Page 4 of 8
preserving the history of the comic book art form, the convention awarded me the
prestigious Bob Clampett Humanitarian Award in 2001.
9. In addition, the convention administers the industry's top award, the Will
Eisner Award, which is given for excellence in the creation of comic books, and I have
been awarded four “Eisners” and have been nominated seven times. The other major
award in the comic book field is called the “Harvey” and I have been nominated three
times for this award and have won twice.

10. Furthermore, I am active as an author writing about comic books, having
published five books on the subject, including the recent Kirby: King of Comics, a
biography of Jack Kirby which won both the Eisner and Harvey awards, and Mad Art, a
history of Mad Magazine, tracing its evolution from a comic book into a magazine and
other media.
11. I have been called upon to write numerous forewords and introductory
material for books about comics, including many reprint volumes published by DC
Comics and Marvel, and to appear on television programs and supplemental DVD
materials dealing with animation and comics. These include commentary for Marvel’s
Maximum Fantastic Four, an analysis of the first issue of the Fantastic Four comic book,
and the foreword for the recent Marvel Masterworks: The Mighty Thor Vol. 6 (reprinting
past issues of The Mighty Thor) and Marvel Masterworks: The Inhumans.
12. At Marvel “Chairman Emeritus” Stan Lee’s request, I appeared on the
episode of the TV series, Biography (broadcast on the A&E Network and released on
home video) detailing his life and career. I was interviewed as well for the feature-length
documentary “With Great Power – The Stan Lee Story” and I have recently been asked
by its producer-director to review this documentary for factual accuracy and to help
correct factual errors. I also worked for Mr. Lee as the Vice-President of Creative Affairs
at Stan Lee Media, a firm he presided over for a time.
3
JA1367
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Page 5 of 8
13. I have also acted as an informal advisor and historian for most of the
major comic book publishers, including DC, Marvel and Dark Horse. All these
publishers have called on me from time to time to help them establish facts about their
past publications and contributors. For example, I have been asked by staffers at Marvel
to identify who “inked” particular Marvel comic book issues, and to determine the
identity of pseudonymous contributors to various materials they have published in the
past.
14. Defendants retained me in this litigation to render an expert opinion about
issues in this case, including the manner in which Jack Kirby created or co-created
comics and comic book characters published by Marvel between1958-1963, as well as
Kirby’s relationship with Marvel during this key period. I also rendered an opinion
concerning Marvel’s policies and conduct with respect to the return of original artwork to
artists, including Jack Kirby.
15. Attached hereto as “Exhibit A” is a true and correct copy of my expert
16. Attached hereto as “Exhibit B” are true and correct copies of excerpts
from my book Kirby: King of Comics.
17. Attached hereto as “Exhibit C” is a true and correct copy of the “Jack
Kirby’s Gods” portfolio that I helped Jack Kirby produce and distribute for sale both on a
mail-order basis and at comic conventions starting in 1972. The portfolio contained color
drawings of characters Kirby originally pitched to Marvel in the late 1960s for a re-
imagined Thor comic book, which Marvel rejected. This is the second portfolio that we
produced. These portfolios were distributed by a company called Communicators
Unlimited that was founded by Kirby, his son Neal, Steve Sherman and myself. The
company also produced and published in 1971 a book entitled Kirby Unleashed.
4
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Page 6 of 8
18. During the period 1958-1963, Kirby submitted and/or sold artwork to
many publishers, including DC Comics, Gilbertson, Western, Harvey, Archie and Prize
Comics. Kirby’s work appeared in such publications as Adventure Comics (1958-1959),
Adventures of the Fly (1959); Alarming Tales (1958), The Double Life of Private Strong
(1959), Challengers of the Unknown (1958-1959), Young Romance (1958-1959), My
Greatest Adventure (1958-1960); Cracked (1960); Classics Illustrated (1961) and The
World Around Us (1961). Other freelance artists in the 1960s did this as well. Steve
Ditko drew Spider-Man for Marvel while also submitting and selling work to Charlton
Press. Vince Colleta simultaneously submitted work to Marvel, Charlton Press and Dell
Comics. Joe Sinnott did work for Marvel, Archie and Treasure Chest. Robert Bernstein,
who scripted issues of Iron Man, also submitted and sold work to DC Comics and
Archie.
19. Kirby also pitched artwork elsewhere that he had submitted for a Marvel
comic, but Marvel chose not to purchase. For instance, Kirby submitted to Marvel
artwork for a new version of Captain America in 1968 which Marvel did not purchase.
Kirby later used his artwork of the re-imagined Captain America as the template for a
character called Captain Glory, first published in Captain Glory, No. 1 by the Topps
Company in April, 1993. The artwork Kirby had submitted to Marvel was used as the
cover of this first issue, without objection from Marvel.
20. While submitting artwork for the “Tales of Asgrad” feature in Marvel’s
Thor comic book in 1968-69, Kirby developed a concept he he initially dubbed the
“Young Gods.” Soon after, Kirby drew presentation pieces of these characters to flesh
out that concept and he presented this material to Marvel, which did not purchase it. That
concept and several of these characters were later used by Kirby in comics published by
DC in 1971, without objection from Marvel: Orion, Metron and Lightray appeared in
DC’s New Gods No. 1 (February, 1971).The Black Racer appeared in New Gods No. 3
(July 1971). Darkseid appeared in DC’s Superman’s Pal, Jimmy Olsen No. 134. Mr.
5
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Page 7 of 8
Miracle appeared in Mr. Miracle No. 1. True and corre t copies of some of these
presentation pieces are attached hereto as "Exhibit D."
I declare under penalty of perjury that to the bes of my knowledge the foregoing
Dated March 25, 2011

Mark Evanier
6
JA1370
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Page 8 of 8

s/Marc Toberoff
By: __________________________________

Tel: 310-246-3333

7
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Filed 03/25/11 of 190
Page 1 of 6
M:ar 25 11 09~18a 9142328-404 p.3
Marc Tobcroft' (MT 4862)

TOBBROFF & ASSt>CIATES, P.C.
Tel: 310-246-3333

Kirby. NealL. Kirby and Susan N. Kirby

MARVEL WORLDWIDE. INC.,

MVL RIGHTS, LLC.
Plaintiffs.
[lion. Colleen McMahon]
-against-
fECF Case)
NEALL. KIRBY and SUSAN N. KIRBY.
Defendants.
llECLARATION OF RICHARD AYERS IN SUPPORT OF

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND IN OPPOSJTION
TO PLAINTilFS• MOTION. FOR SUMMARY JUDGMENT
Received Mar-25-11 04:51a• Froa-9142328404 To- Pue 003 JA1372

Mar 25 11 Case
Case
09:18a 11-3333, Document 76-2,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 91 509515,
Filed Page179
03/25/11
9142328404 of 190
Page 2 of 6 p.2
I, Richard Ayers, hereby declare as follows:
1. I am familiar with the facts set forth below known to me of my own

personal firsthand knowledge and make this declaration in support of defendants' motion
for summary judgment and defendants' opposition to plaintiffs' motion for summary
judgment.
2. I am a comic book artist and have worked in the comic book industry
since the 1940s. For my professional accomplishments, I was inducted into the Will
Eisner Comic Book Hall of Fame in 2007.
3. I first began working in comics in the late 1940s. While I was studying
under Burne Hogarth at Hogarth's Cartoonists and Dlustrators School, I was spotted by
Joe Shuster, co-creator of Superman, and Shuster subsequently asked me to draw some of
his Funnyman stories. I subsequently worked as a artist, penciling (i.B., drawing) and
inking A-1 Comics and Trail Coli comic books and the Jimmy DuranJe humor strip, all at
Magazine Enterprises, and on Pri?.e Comics' Prize Comics Western. I. also co-created the
Western character Ghost Rider for the Tim Holt comic book, published by Magazine
Enterprises.
4. In 1952, while selling freelance work to Magazine Enterprises, I began
selling freelance work to Marvel Comics, then named Atlas Comics. Marvel began
publishing my work commencing with Spellbound No. 1 (March 1952), Adventures into
Terror No. 9 (April 1952), Adventures inio Weird Worlds No. 5 (April 1952), and
Journey into Unknown Worids No. 10 (April 1952), and continuing in numerous other
comic books. I drew the revived character ofthe pre-Fantastic Four Human Torch in
such issues as Young Men No. 24 (February 1954), The Human Torch Nos_ 36 (April
1954). 37 (June 1954). and 38 (August 1954), and Sub-Mariner Comics Nos. 33 (April
1954), 34 (June 1954), and 35 (August 1954).
Received Mar-25-11 04:51am From-9142328404 To- Pace 002

JA1373
Mar 25 11 Case
Case
09:18a 11-3333, Document 76-2,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 91 509515,
Filed Page180
03/25/11
9142328404 of 190
Page 3 of 6 p.4
5. f also inked Jack Kirby's newspaper strip Sky M09ters of the Space Force.
syndicated George Matthew Adams Agency from September of 1959 to January of 1960
for the Sunday strips and from September of 1959 to December of 1961 for the daily
newspaper strips. Marvel was not involved in this strip.
6. During the 1950s and 1960s~ I drew on a freelance basis and sold to
Marvel artwork for such titles as Astonishing (June 1952-March 1957), Balile (Janwrry
1953--April 1959), Comhat Kelly (March 1954), Cowboy Action (July 1955-January
1956), Gunsmoke Western (December 1956-May 1963 ), Journey into Mystery (Febntary
1954-0ctober 1956, August-October 1965). Kid Colt Outlaw (August 1955-November
1967), Marvel Tales (June 1953-April 1956, May 1967-July 1970), Men's Adventures
(April 1953-July 1954), Mystery Tales (May 1952-April 1957), Mystic (May 1952-May
1956), The Outlaw Kid (July 1956-May 1957), Rawhide Kid (January 1956-September
1957, October 1961-December 1967), Spellbound (March 1952-February 1956), Strange
Tales (July 1954-July 1956, July I 962-Februa.ry 1965), Two Gun Kid (April 1954-June
I 959, January 1964-May 1967), Uncanny Tales (June 1952-June 1956), Western
Outlaws (February 1955-May 1957), Wild Western (April 1954-March 1957), and Wyatt
Earp (January 1957-June 1960}.
7. After Jack Kirby reinvigorated the superhero genre in 1961 with The
Fantastic Four, I drew and sold my own superhero stories to Marvel, including the
Human Torch solo stories in Strange Tales Nos. I 07 (April 1963), 110 (July 1963)
through 113 (October 1963}, 115 (December 1963) through 119 (April 1964), 121 (June
1964), 122 (July 1964), and 124 (September 1964) through 129 (Febntary 1965), and
Giant-Man and WasJ? stories in Tales to Astonish Nos. 52 (Febnmry 1964), 53 (March
1964), and 55 (May 1964) through 60 (October 1964). I also drew most ofthe artwork
published in Sgt. Fury and His Howling Commandos, commencing with issue No. 8 (July
1964}, and continuing through issue No. 120 (July 1974), with only a few issues
containing artwork by other artists.
Received Mar-25-11 04:51am From-9142328404 To- Pai'e 004

JA1374
Mar 25 11 Case
Case
09:18a 11-3333, Document 76-2,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 91 509515,
Filed Page181
03/25/11
9142328404 of 190
Page 4 of 6 p.S
8. In total, I sold freelance artwork to Marvel from 1959 to 1975.

9. During this period I sold artwork on a freelance basis to several other
companies including Magazine Enterprises,. Charlton, St. John, Fago Magazines, Prize,
Harvey, Alan Class, Tower, Eerie Publications, and Skywald.
10. As a freelancer, I worked out of my home, set my own hours, 1-eceived no
medical benefits or insurance, vacation time or sick pay, and paid for all my own
expenses, including for my own pens, inks, paper, pencils and other materials. I was not
reimbunred for these expenses by Marvel or by the other companies I sold artwork to.
11. I was paid by the page; and, as one might imagine, I was simply paid for
the work that Marvel or the other comic book publishers accepted. I was not paid for
rejected ma:terial, nor was I paid for the additional worlc and time of redoing any artwork
at Marvel's request as a condition to their purchase ofthe material. I was paid solely for
the finished artwork, accepted and bought by Marvel.
12. From 1959 to 1975, I never had a written contract with Marvel. We had a
loose, open-ended relat.ionNhip. My understanding was that Marvel was not obligated to
buy material from me or to pay me tbr material they did not like; and I was not obligated
to Marvel to create or work on any material.
13. I did not view my artwork that Marvel published as "work for hire," and
received no indication :from Marvel at the time that they considered my artwork as "work
for hire." The freelancers and the comic book publishers did not view their relationship .
that way in the 1960's. In fact, I do not believe I ever even heard the tenn ..work for
hire.. mentioned in the comic .book business until the very late 1970's or early 1980,s.
The reality was that M~el and other comic book publishers bought our freelance
artwork once it had been submitted and accepted by the publisher. I believed that Marvel
owned all rights to the artwork because they bought it from me.
14. This was reflected in how we were paid after delivery and acceptance of
freelance material. Marvel's checks to me would include stamped writing on the back,
Received Mar-25-11 04:51am Frrua-9142328404 To- Paa-e 005

JA1375
Mal"" 25 11 Case
Case
09:18a 11-3333, Document 76-2,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 91 509515,
Filed Page182
03/25/11
9142328404 of 190
Page 5 of 6 p.1
where 1 was supposed to endorse the check, which stated that by signing the check I was
transferring to the comic book publisher all of my rights in the material it bad pw-chased.
15. Years later, Marvel returned some of my original artwork to me. For
example, in the Spring, 1998, Marvel notified me that they had some of my original
artwork for the Rawhick Kid which they would like to return to me. I was enthusiastic
about these returns because there is a collector's market far such material, and I could usc
the income. MarveJ sent me a one page artwork: release form to sign, and informed me
that unless I signed and returned the fonn "as is," they would not return my original
artwork. I signed the release, because I was in no position to bar~ and I would
otherwise not get my artwork back. I did not have an attorney review the legal language
in the release because, frankly, I could not afford one.
I declare m1dcr penalty ofpeJ.jury that to the best of my knowledge the
foregoing is true and correct.
Dated: March:.1$. 2011

Richard Ayers
Received Mar-25-11 04:51am From-9142328404 To- Pace 001

JA1376
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Filed 03/25/11 of 190
Page 6 of 6
Dated: March 25, 2011 Respectfully submitted,

/s/ Marc Toberoff

Marc Toberoff
Tel. (310) 246-3333
Facsimile: (310) 246-3101
E-mail: mtoberoff@ipwla.com

5
JA1377
Case
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 03/25/11 of 190
Page 1 of 6

Tel: 310-246-3333

Kirby, Neal L. Kirby and Susan N. Kirby


MVL RIGHTS, LLC,
Plaintiffs,
-against-
[ECF Case]
Defendants.
DECLARATION OF JOE SINNOTT IN SUPPORT OF

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS'
OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
JA1378
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Filed 03/25/11 of 190
Page 2 of 6
I, Joe Sinnott, hereby declare as follows:
1. I am familiar with the facts set forth below and make this declaration of
my own personal firsthand knowledge in support of defendants' motion for summary
judgment and defendants' opposition to plaintiffs' motion for summary judgment.
2. I first began working as a comic book artist soon after I began my studies
in 1949 at the Cartoonists and Illustrators School, which later became the School of
Visual Arts, in New York City, on the G.I. Bill. Tom Gill, an instructor at the school,
asked me to act as his assistant on his freelance comics work. I drew backgrounds and
incidentals on Gill's Western comic books published by Dell Comics.
3. I then branched out on my own. For my first professional solo art job, I
drew the feature Trudi for issue No. 12 of the humor comic "Mopsy" (September 1950).
I made contact with Stan Lee at Timely Comics (a.k.a. Atlas Comics), which is what the
company generally was called before it became Marvel Comics, and I began drawing and
selling freelance artwork to Timely. During the 1950s and 1960s, I created artwork for
hundreds of stories and comic book covers published by Marvel, including for
"Adventures into Terror" (February 1952 to February 1954), "Strange Tales" (June 1952
to October 1959, March 1962 and December 1965), "Arrowhead" (April1954 to
November 1954), "Battle" (March 1954 to March 1955, February 1958, April1958, and
February 1959 to October 1959), "Wild Western" (June 1954 to December 1954 and May
1957 to July 1957), ''Navy Combat" (June 1955 to October 1956), "Journey into
Mystery" (July 1955 to January 1960 and March 1962, April 1962, and March 1963 to
September 1963), "World of Fantasy" (February 1959 to August 1959), "Tales of
Suspense" (March 1959 to November 1959), "Tales to Astonish" (March 1959 to
November 1959, March 1963 and April 1963), "Strange Tales Annual #2" (1963),
"Journey into Mystery Annual #1" (1965), "Fantasy Masterpieces" (February 1966 and
JA1379
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Filed 03/25/11 of 190
Page 3 of 6
August 1966), '"Thor Annual #2" (1966), and "Marvel Tales" (July 1967 to November
1967).
4. While selling freelance artwork to Marvel, I also sold comic book artwork
to Standard Comics in 1952, to DC Comics in 1957, to Harwyn Publishing for the
Harwyn Picture Encyclopedia for children in 1958, to Charlton Comics from 1959 to
1963, to Dell Comics from 1963 to 1969, and to George A. Pflaum (publisher of
Treasure Chest) from 1962 to 1963, and from 1970 to 1971.
5. I was also a freelance inker. For instance, in 1962 I inked "Fantastic
Four" no. 5 in which Jack Kirby introduced "Dr. Doom," and I inked the now famous 56-
issue run of Kirby's artwork on "Fantastic Four" from issue no. 44 in November 1965 to
issue no. 102 in September 1970. I also inked many issues ofKirby's "The Mighty
Thor," and "The Avengers." In the process I got to know Jack Kirby's work and
remarkable creativity quite well and witnessed his characters and stories as they evolved.
6. There is no question in my mind that Jack Kirby was the driving creative
force behind most of Marvel's top characters today including "The Fantastic Four," "The
Mighty Thor," "The Incredible Hulk," "X-Men" and "The Avengers." The prolific Kirby
was literally bursting with ideas and these characters and stories have all the markings of
his fertile and eclectic imagination.
7. I was awarded the Alley Award in 1967 and 1968 by comic book fans. I
also was honored with the Inkpot Award at the 1995 Comic-Con International convention
in San Diego. In 2008, when the Inkwell Awards were created, the Joe Sinnott Hall of
Fame Award was named after me. I received my own Joe Sinnott Hall of Fame Award in
2008.
8. I semi-retired in the early 1990's. However, I still ink "The Amazing
Spider-Man" Sunday strip for Stan Lee.
9. In the 1950's and 1960's I was not on staff at Marvel, but instead worked
on a piecemeal freelance basis. I did not work in Marvel's offices; I worked out of my
JA1380
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Filed 03/25/11 of 190
Page 4 of 6
home. I furnished and paid for all of my own art supplies and overhead. I was not
reimbursed by Marvel for these or any other expenses. I also did not receive health or
other benefits from Marvel in this period.
10. I had no contract with Marvel when working as a freelancer in the 1950's
and 1960's. In those days the business was very small, hectic and disorganized. You
worked hand-to-mouth to feed your family with no fmancial security at all. In about
1957 Marvel decided to fire nearly all its staff, and even stopped buying any freelance
material from freelancers like me for six or seven months, because it apparently had a
surplus of material.
11. Although I had a good relationship with Marvel, it was my understanding
that they were under no legal obligation to buy any work from me, and that payment for
my material was always subject to their acceptance and approval of the fmished product.
It was only after I submitted completed material, and Marvel approved it, that I was paid
at a page rate multiplied by the number of pages Marvel bought.
12. In the mid-1970's, I went under contract with Marvel, and Marvel
provided me with health insurance, vacation pay and other benefits.
13. I recall that the checks that I received from Marvel in the 1960's as a
freelancer had pre-printed language on the back. It said that by endorsing the check, I
was acknowledging payment for my assignment of the copyright and all other rights in
my work. I was not being paid for my time or services. I remember a particular instance
when I was asked to change the splash page of a story I had drawn; I was only paid for
the final story not for redrawing the first one. From all of this, I understood in the 1950's
and 1960's that Marvel was buying my material once they approved and accepted it.
14. Years later, beginning I believe in around 1978 or 1979, Marvel suddenly
changed the printed statement on the back of its checks to say that by endorsing the check
the artist was acknowledging that Marvel owned all rights in the artist's work as "work
for hire." 1bis may well be the first time I even heard the term "work for hire."
JA1381
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Filed 03/25/11 of 190
Page 5 of 6
15. In the 1950's through the 1960's, I certainly did not consider my freelance
artwork to be "work for hire." Nor did the other freelance artists I knew. No one was
thinking along those lines as we worked out of our houses at all hours trying to make a
living by creating and selling artwork. Neither Stan Lee nor anyone else at Marvel ever
told me at the time that they considered my freelance work to be "work for hire." I
honestly do not believe that freelance artists or Marvel in those days understood or
intended that the freelance material Marvel bought was "work for hire."
I declare under penalty of peijury that to the best of my knowledge the foregoing
Dated: Marc~/, 2011
JA1382
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Filed 03/25/11 of 190
Page 6 of 6
Dated: March 25, 2011 Respectfully submitted,

/s/ Marc Toberoff

Marc Toberoff
Tel. (310) 246-3333
Facsimile: (310) 246-3101
E-mail: mtoberoff@ipwla.com

5
JA1383
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


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Case 11-3333, Document 76-1, 01/26/2012, 509515, Page1 of 129

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME V OF X

TOBEROFF & ASSOCIATES, P.C.

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME V OF X

TOBEROFF & ASSOCIATES, P.C.

JA Docket Date Description Pages

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SA Docket Date Description Pages

Marc Toberoff (MT 4862)

Attorneys for Defendants Lisa R. Kirby, Barbara J.

UNITED STATES DISTRICT COURT

MARVEL WORLDWIDE, INC.,

DEFENDANTS' INITIAL DESIGNATION OF EXPERT WITNESS

matters. A copy of Mr. Evanier's expert report is attached hereto as Exhibit A.

testimony may be offered solely for purposes of impeachment or rebuttal. Defendants

Dated: New York, New York TOBEROFF & ASSOCIATES, P.C.

2049 Century Park East, Suite 2720

Attorneys for defendants Lisa R. Kirby, Barbara J.

EXPERT REPORT OF MARK EVANIER

comic book characters published by Marvel betweenl958-1963, as well as Kirby's

relationship with Marvel during this key period.

original artwork to artists, including Jack Kirby.

In 1974, I began writing for television. My comedy writing experience includes

My animated series writing experience includes television shows such as Scooby

Garfield and Friends.

Achievement Award in Animation Writing by the Animation Writers Caucus of the

Writers Guild of America, West (WGAw).

I have been a panelist or moderator at numerous comic book industry events,

Clampett Humanitarian Award in 2001.

this award and have won twice.

Furthermore, I am active as an author writing about comic books, having

Mighty Thor) and Marvel Masterwork\': The Inhumans.

At Stan Lee's request, I appeared on the episode of the TV series, Biography

over for a time.

pseudonymous contributors to various materials they have published in the past.

Jack Kirby's Relationship with Marvel

Timely Comics. Goodman had a background in magazine distribution, and with

super-hero comic books- he decided to give that a try.

Jack Kirby's career is emblematic of the haphazard, un-businesslike nature of the

lvfarvel Adventures to be published by a rival firm, Fawcett.