Tuesday, March 08, 2011

Marvel Worldwide, Inc. et al v. Kirby et al - Roy Thomas Speaks

Welcome to Part IV of the transcripts from the Marvel vs Jack Kirby's estate court case.  You can find Part I, Stan Lee's testimony, here, Part II, John Romita, here and Part III, Larry Lieber, here.  Roy Thomas is the last of the ‘big four’ witnesses for both Marvel and the Kirby estate. After this remaining depositions were given by the Kirby family, along with John Morrow and Mark Evanier (and more on the latter two later). What makes this interesting, for me at least, is an objection well down in the transcript. Marc Toberoff, acting for the Kirby estate, makes and objection to Roy Thomas being asked about Marvel pre-1960. The objection is noted, but Toberoff then goes on to state, “I understand, but I don't want the record to look like he's talking about the early 1960s when he wasn't there.” Oddly enough neither of Toberoff’s two expert witnesses, Morrow and Evanier, worked at Marvel in the 1960s either. Indeed Toberoff asked Evanier to provide an ‘expert report’ on the working relationship between Kirby and Marvel, despite a lack of first hand knowledge.

That isn’t to denigrate Mark Evanier at all. He does have some incredible knowledge, even if he does get some facts wrong at times (just read his many obituaries) and in any such court case each side will stack the deck in their own favour. Evanier was asked to provide statements to back the Kirby case and that’s exactly what he attempted to do. Roy Thomas was deposed by the Marvel side and it appears that his deposition backs them up better than Stan Lees. As with the Stan lee deposition, Toberoff would use very little from Roy Thomas’s deposition – in this case, a mere few lines about the wording of the statement on the back of the paychecks. However Roy went further than that, his deposition pretty much backs up what Larry Lieber, John Romita and Stan Lee all said before him, that artists didn’t submit already drawn stories, Stan Lee handed out the assignments, Stan Lee did the dialogue, or the writer assigned, and margin notes weren’t always considered. Roy also makes the point that he knew that any character he created at Marvel during the time he was there would fully belong to Marvel. This is damning for the Kirby case as they want the court to believe that Kirby had no idea that what he was creating belonged the Marvel.

Now what happened to Kirby was wrong – so don’t think for one second that I’m a Marvel apologist. However I’ve always found it difficult to believe that Kirby, who had broken into comic books back at the start, who had worked for several companies and had indeed co-ran his own company with Joe Simon, was naive enough when he ended up at Marvel’s doors, after over twenty years in the industry, to believe that what characters he would either create, or co-create, would eventually belong to him. I’m also finding it hard to believe that the Kirby estate are going after profits from the recent Wolverine movie and claiming it as a Kirby film. As we know, Wolverine was designed to be a Hulk villain, and was created in the 1970s, well after Kirby had left Marvel and was working for DC. Add to that the fact that the Kirby estate want a cut of the first seven Spider-Man books, written by Stan Lee and drawn by Steve Ditko with zero input from Kirby (unless some explosive evidence turns up) leads me to believe that the Kirby’s are going after everything in the hopes of getting at least something. I wish them luck, they’ll clearly need it.

Oh, and just to be clear - each side side has posted their own extracts from the depositions, what I've done is taken all of the comments and pieced them together as best that I can.  When Marc Toberoff is objecting it is the Marvel lawyer, Jodi Kleinick, who is asking the questions, and vice versa.  This applies for all of the transcripts that I've posted thus far.

Deposition of ROY THOMAS; October 26, 2010
(Acting for Marvel was Jodi Aileen Kleinick, and Marc Toberoff was acting for the Kirby’s, the same as the previous depositions)

(transcript starts in mid sentence)
Q:  ...editorial-type responsibilities that you -- you were doing during this time you were paid a salary?
ROY THOMAS: Yes.
Q: And then you were paid on top of that a per-page rate for freelance writing work that you did?
ROY THOMAS: Yes. Yes. That actually began at the very beginning, because the day I met Stan on a Friday he gave me a story to dialogue, as we call it, over the weekend. And that was counted as freelance. So I received money -- or earned money a week or so later as a freelance writer before I freelanced, before I actually went on staff the next morning.
Q: Okay.
ROY THOMAS: So they sort of -- they overlapped from the very beginning.
Q: Who did you report to when you were a staff writer?
ROY THOMAS: The only real person I reported to officially would have been Stan Lee, but as a matter of practical fact, Stan gave out many of his directives or communications through the production manager, Sol Brodski. So while he wasn't exactly technically my superior, he was a person that gave me a lot of Stan's, you know, marching orders or whatever and was very, very -- informal would be the polite way to describe operations in the 1960s.
Q: Did there come a time that your title changed from staff writer to something else?
ROY THOMAS: Well, I just stopped being a staff writer at that point, a month or two in. And we never talked much about titles, but I guess I was like the assistant editor or editorial assistant. I was never told that. That's what I assumed I was. I never had an official title until I was called associate editor.
Q: When was that?
ROY THOMAS: Around the end of 1966 or beginning of '67. Stan told me and the new assistant editor, who was a friend of mine. He said: Well, we have got to have some titles around here, he told me one day. He said: I'm the editor, so I guess that makes you the associate editor; and Gary, my friend, was the assistant editor. From that time on, about a year and a half or so after I worked there, I was the associate editor until what? Middle or late 1972, when I became editor-in-chief.

(break in transcript)
Q: Mr. Thomas, can you describe for us when you arrived in Marvel in the 1960s what the first step was in the process of creating a comic book issue?
ROY THOMAS: The first step was for the designated writer to come up with a plot idea.
Q: How did the designated writer become designated?
ROY THOMAS: That was Stan Lee's decision. Of course, it was often him designating himself, but then it became me or someone else.

Q: What happens after the designated writer comes up with a plot idea?
ROY THOMAS: The writer would either write out the plot or synopsis. We used those terms interchangeably or he might -- in some cases, but usually it was written -- might verbally -- one way or the other we would give it to the -- the pencil artist. We would often call the person the artist, but it was really the pencil artist, who might or might not be the inker.
Q: How did the pencil artist become designated to do the particular issue?
MR. TOBEROFF:: Leading; lacks foundation.
Q: You can answer.
ROY THOMAS: He -- that was Stan Lee's decision.
Q: When in the process was the writer and the artist for a particular issue elected? When in the process?
ROY THOMAS: Well, I guess I would say more at the beginning. I mean, right away -- when in the process -- I mean, the writer -- either one of them might have been put on first, because the artist might be continuing, while it might be a new writer or visa versa. I'm not sure if I understood the question exactly.
Q: What would happen after the writer provides either a plot or synopsis to the artist?
ROY THOMAS: The artist would go and draw or pencil the story.
Q: And what would the artist do after the artist drew or penciled the story?
ROY THOMAS: It would then be mailed or brought physically into the -- the office so Stan Lee could review it. Of course, he was the writer. He would also be writing them.
Q: And after Stan Lee reviewed the artwork, what would happen next?
ROY THOMAS: Well, if there were no corrections, it would then be written by the writer, which would either be Stan Lee or perhaps someone else. Usually, Stan at that stage, when I first arrived.
Q: And when you say "written," what do you mean?
ROY THOMAS: Well, yes, what I really meant there is the term that -- what we later came to use the verb "dialogue for," which means to write the dialogue, which includes, actually, the dialogue and the so-called captions. And while doing that to indicate those -- where those captions and balloons come on the page, generally writing it on the original artwork -- not the copy, but indicating the shape of the balloons and the captions and writing a separate script.
Q: And after the writer wrote the dialogue and captions, what would happen next?
ROY THOMAS: Well, if it was Stan or his brother Larry Lieber at that stage, it would be sent to the inking the inker, we call it, the artist who applied the ink, who usually was not the same artist who penciled it; although, it was -- it could be but it usually was not. If it was a new writer like me, Stan would go over the -- the scripts first for the first few months before it would be sent out.
Q: And where would it go after Stan would review the scripts?
ROY THOMAS: It then goes to a letterer. It would be sent out -- I'm sorry. I said the inking art. I'm sorry, it has to go to the letterer first. I'm sorry. My mistake.
Q: What does the letterer do?
ROY THOMAS: The letterer was the person who would letter the actual dialogue and captions as well as their shapes onto the page in ink.
Q: What is the difference between a letterer and the inker?
ROY THOMAS: The inker was the person who would apply the ink to the drawing portion of the page, go over to and amend and add to what the penciller had -- had drawn.
Q: So it goes from the letterer to the inker?
ROY THOMAS: Yes. Sometimes, it would come back through the office to be rerouted, but often it was just sent -- Stan, generally, did not review things between the stages of lettering and inking, so quite often the letterer was asked to just mail it directly on to the -- to the inker. Or, you know, the inker might even some days come by and pick it up. There were many, many different little ways it could work.
Q: What happens after the inker goes over the pencils?
ROY THOMAS: After the book is inked, the inker would either mail or bring it into the office, either turning it directly to Stan or to the production manager, depending on whether Stan wanted to see him or not.
Q: What would happen to it when it got to either Stan or the production manager?
ROY THOMAS: Stan would go over the story and proofread it, asking for any changes he wanted on either the copy or even at that stage, even still on the art if he saw something that didn't quite work out.
Q: At what point does the issue get colored?
ROY THOMAS: Well, at the time that the -- generally --pretty much as soon as the inking would come into the office or very soon thereafter, it would be Photostatted and reduced to a smaller size, about the size of a comic page or so. And those Photostats would be given to what we call the colorist who is the person who actually applied water colors to that to indicate what the colors should be and also would write in notations to clarify so that the colors would be matched in the final book by the people who actually did the physical coloring that got reproduced. These were actually called color guides, what the colorist did.
Q: Were the letterer, inker, and the colorist all paid?
ROY THOMAS: Yes.
Q: How were they paid, do you know?
ROY THOMAS: By the page, according to whatever rate, you know, varying rates they -- they had.
Q: At what point in the process does the cover page -- did the cover page for the issue get put together?
ROY THOMAS: Well, it could be at any time. Usually, it was after the story had been at least penciled.
(break in transcript)
ROY THOMAS: …from time to time new villains or new supporting characters.
Q: Did artists ever come up with ideas for new characters?
ROY THOMAS: Yes.
Q: Was it your understanding that part of the writer's assignment was to introduce new characters into a comic book series?
ROY THOMAS: Yes.
Q: Was it your understanding that part of the artist's assignment was to introduce new characters into a comic book series?
ROY THOMAS: Yes, anything that would be -- would further the plot.
Q: How -- how did the artists know what to draw?
MR. TOBEROFF:: Leading; vague.
ROY THOMAS:: The artists were given a story line, which might be anything from a few sentences to in quite a few cases two or three pages or so of a -- a sort of a --a general plot line. It wasn't the exact dialogue, you know, in movie script form. It was more a short story synopsis of the scene. And that would tell the artist what the story was. Then it was his job to turn that into pictures.
MS. KLEINICK: Q: When you arrived at Marvel in , did you ever see Stan interacting with other writers or artists?
ROY THOMAS: Yes.
Q: Did you ever see Stan give a plot or describe a plot to an artist?
ROY THOMAS: Yes.
Q: To your knowledge did artists start working on pages before discussing the plot or synopsis with Stan or the writer?
ROY THOMAS: No.
Q: Who decided which writer and artist would work on a particular comic book or issue?
ROY THOMAS: Stan.
Q: Were the assignments to writers given orally or in writing?
ROY THOMAS: Generally, orally.
Q: Are you aware of how assignments were given to artists?
ROY THOMAS: Well, orally. Sometimes Stan would be talking to the person directly. Just as often or more often Sol Brodski as the production manager would later report -- would call that person up and tell them. But, of course, they were always understood to be speaking for Stan, and they were.
Q: And just so we're clear, I just want you understand, when I'm saying "assignment," I mean the assignment to do a particular issue.
ROY THOMAS: Uh-huh.
Q: Is that how you understood my question?
ROY THOMAS: Yes.
Q: Are you aware of any instance where a writer began to work on a new series or title or comic book without first being assigned to it by Stan?
ROY THOMAS: People might come up with an idea for a new series at some stage. Not -- not in the -- this -- this wouldn't have happened before at least about, you know, the early 70's or so. Once or twice -- generally speaking, the ideas were generated, you know, by someone in the office, by Stan or sometimes later by me; but we were open to somebody else coming in, but it wasn't anything we were going around looking for or asking for.
Q: In the 1960s -- from 1965 to 1970, are you aware of any instance where a writer came in and actually started working on a new series before Stan said: Go ahead and write the series?
ROY THOMAS: No.
Q: Are you aware of any instances where an artist began work on a comic book issue before getting the assignment to do the issue from Stan?
ROY THOMAS: No.
Q: Did writers or artists have any authority to assign themselves to do an issue without prior approval from Stan or Sol?
ROY THOMAS: No. No.
Q: Are you aware of any instances where an artist submitted artwork for an issue that he hadn't been assigned to, like on spec?
ROY THOMAS: Only new artists who were turning in samples, not an established artist, not one that was already -- was already doing work for Marvel.
Q: To your knowledge during this time period, 1965 to 1972, did Marvel ever buy any work created on spec by freelance artists?
ROY THOMAS: No. No.
Q: Were writers or artists ever during this time period taken off a comic book issue for an ongoing series?
ROY THOMAS: Yes.
Q: Whose decision was that?
ROY THOMAS: Stan.
Q: And who had the final say on which comic book stories each artist would be assigned to?
ROY THOMAS: Stan Lee. He could have been technically overruled by publisher Martin Goodman, if Martin Goodman found there was some artist or someone he really didn't like or he did like or something. But as a practical matter, Goodman did not concern himself with anything like that, except at sometimes there were certain artists whose covers he didn't think were clear enough. He didn't like if Stan assigned that person to do a cover. Occasionally, they had a little problem about that. And, of course, Goodman's word was final. But as a matter of practical fact, 90-plus percent of the time it was Stan's decision.
Q: Was there a set production schedule for the Marvel comic titles back in the 1960s to early 70's?
ROY THOMAS: Yes.
Q: When the writers were given an assignment, were they also given a deadline to submit the -- let's start with the artist. When the artists were given an assignment, were they given a deadline by which they had to submit the finished pencils?
ROY THOMAS: Yes. Either the exact date or as fast as you could do it. But, yes. They were doing a deadline.
Q: And then when the artwork went to the writers, were the writers also given deadlines by which they had to submit the scripts?
ROY THOMAS: Yes.
Q: The dialogue?
ROY THOMAS: Yes.
Q: Who set those deadlines?
ROY THOMAS: They were worked out by the production manager.
Q: That was Sol Brodski?
ROY THOMAS: Yes. Through ‘70 or so when he quit. After that by John Verpoorten.
Q: And who ultimately decided which books were published and which books weren't published?
ROY THOMAS: Well, during that period and through about sometime in about '72, it was generally Martin Goodman. For a short period of time in the early 70's it was his son Chip Goodman who had -- who was -- had become publisher.
Q: Was the assignment process the same for freelancers as it was for staff writers and artists?
MR. TOBEROFF:: Vague.
ROY THOMAS:: I was going ask, just to -- if you could clarify that, just I make sure - I'm sure I understand it.
MS. KLEINICK:
Q: Did staff artists get their assignments the same way, from Stan or from Sol Brodski?
ROY THOMAS: Oh, yes.
MR. TOBEROFF:: Compound.
MS. KLEINICK:
Q: How did staff artists get their assignments?
ROY THOMAS: They were told either directly by Stan or quite often by Sol Brodski in his capacity to do them. Of course, if Sol assigned an artist, it was because Stan wanted that artist assigned to it. They would confer on it and say: Is this artist available. Things of this sort. Sol was the practical one who had to tell Stan that, you know, this artist can't do it or can do it, or it will cause problems if this artist was taken off something else to do this and that. They worked very closely on that.
Q: So after the artist submitted pencil drawings, you testified that Stan would review the artist's work; correct?
ROY THOMAS: Yes.
Q: Was that the case for all of the Marvel artists, that Stan reviewed their work?
ROY THOMAS: Yes. He paid a little less attention, perhaps, to some of the, you know, lesser books -- he probably went -- you know, like the westerns and so forth that were kind of dying out. But he reviewed everything.
Q: Were artists ever asked to make changes to the materials they submitted for publication?
ROY THOMAS: Yes.
Q: Who did those requests come from?
ROY THOMAS: They either came directly from Stan or, again, were delivered by Sol Brodski on Stan's behalf, or even I might eventually be asked to tell someone. But, again, it was always on behalf of Stan. In the early days I wouldn't have made any independent judgments of that sort.
Q: Did Stan or any of the other Marvel editors, including yourself, ever revise the work that had been submitted by an artist?
ROY THOMAS: Yes.
Q: What kind of direction or feedback did artists typically get from either Stan or another editor in the 1960s to early '70s?
MR. TOBEROFF:: Lacks foundation; leading.
ROY THOMAS:: He would give them an impression of whether he generally liked the work or not and things he particularly liked and perhaps things he didn't like or that they should watch it and perhaps do it a little differently in the future. That's something he might let go this time, but he would like them to get more excitement or do this or do that.
Q: Did you hear Stan communicating this to artists?
ROY THOMAS: Yes.
Q: Were changes ever made by Stan or any of the other Marvel editors or production people without first consulting the artist?
ROY THOMAS: Yes.
Q: And you testified that when the writer brought in the completed assignment, the dialogue, that if it was a writer other than Stan, that Stan would review that work product; is that correct?
ROY THOMAS: Yes.
Q: Were writers ever asked to make changes to their work?
ROY THOMAS: Yes. Sometimes the writer was asked to make the changes, or sometimes Stan would just make it himself, make the change himself.
Q: And when Stan made the changes himself, did he consult with the writer?
ROY THOMAS: No. He might tell us what he was going to do or what he had already done, but it was a case of telling us, not consulting and asking for our extra input or anything like that. He would let us know and he would try to tell us why he did it.
Q: When you were either assistant editor or associate editor or editor-in-chief -- in any of those editorial capacities -- did you have authority to make changes to materials that were submitted for publication if you believed that changes were appropriate?
ROY THOMAS: Yes. In the, you know, very earliest days I wouldn't have done that; but gradually Stan let me know as time went on that, you know, that I should -- that I could take, you know, some of this, you know, burden off. And so it was a practical fact if I was sure that it was something that Stan would want or at least I thought that Stan would want -- but I would tend for much of that time, most of that time, until I was at least editor-in-chief to try to check it with him if I could.
Q: Did -- did Stan ever -- if Stan decided. Was it your understanding that Marvel had the ability to use characters that were introduced into its story lines by a writer and artist into a different comic book story line being drawn and written by a different artist and writer?
MR. TOBEROFF:: Objection; compound; leading; vague.
Q: You can answer.
MR. TOBEROFF:: Assumes facts.
ROY THOMAS:: If by the ability you mean the right to do it, and the -- yes.
(break in transcript)
Q: Was that done -- was that done in the 60's after you got there, where characters that had been introduced into one comic book line title were used in other comic book lines or titles?
MR. TOBEROFF:: Same objections.
ROY THOMAS:: Yes.
Q: You testified that the writer was responsible for writing the dialogue in the comic books; is that right?
ROY THOMAS: Yes.
Q: Did artists ever suggest or submit dialogue with their drawings?
ROY THOMAS: Yes, the artists wrote what we call margin notes in pencil that was supposed to sort of tell Stan what they were thinking when they did the story, since they were working on his story. And in some of those notes, besides saying: This blows up or something, sometimes the artist wrote either what we call direct or indirect, you know, quotations. Either suggested exact dialogue or approximate dialogue.
Q: Who had the final say on what the dialogue would be for the story?
ROY THOMAS: Well, the writer, subject to Stan.
Q: If a character that one -- that a writer and artist first introduced into a Marvel story line was going to be used in a different story line that was being written by a different writer and artist, did anyone have to go back and consult with the original writer and artist to use that character?
MR. TOBEROFF:: Incomplete hypothetical.
ROY THOMAS:: The person who made all those decisions was Stan. You didn't have to consult with the other person. As a matter of, you know, courtesy or information, you might do it; but it was not required.
Q: Who decided which artist would do a cover for a particular issue?
ROY THOMAS: Stan.
Q: Were the covers reviewed by anyone before they were published?
ROY THOMAS: Well, they were reviewed by Stan, because after they were drawn he wrote the cover copy and then looked it over again after -- after the cover was inked, either by the same artist or a different one. Then it was -- then they were reviewed -- they were all reviewed eventually by Martin Goodman as publisher, and very briefly as I said by Chip Goodman, and, of course, from '72 to '74 by Stan himself as publisher.
Q: From the time you arrived at Marvel from '65 to '72 were changes ever made to the covers that had been submitted by artists?
ROY THOMAS: Yes.
Q: Who would make those changes?
ROY THOMAS: That depended upon circumstances. If the original artist was there or if there was time to either have him come in or to mail it or send it to him, he might be asked to make the changes. Sometimes, either if it was a minor change or if the deadline needs were great or for any other reason, Stan -- especially in consulting with the production manager who had the responsibility with the schedule -- would decide, you know, that it should be done by a staff artist or perhaps a visiting freelance artist who just came in. It really depended on what the change was and what the time was.
Q: And if an artist's work -- if an artist's work required that changes be made, would the artist have been paid for the original work that they submitted?
MR. TOBEROFF:: Incomplete hypothetical.
ROY THOMAS:: Yes, the artist would have been paid.
MS. KLEINICK:
Q: Between '65 and at least '72 you were paid both a salary and for your editorial work and a page rate for your the freelance writing that you did?
ROY THOMAS: Right.
Q: How often were you paid?
ROY THOMAS: That's something I am a little vague about. I know that the salary checks were more frequent than the freelance checks, but I'm -- they both came on Fridays but not always at the same time. I'm just not certain if we were paid -- I -- I feel we were probably paid salary checks every week, and maybe the freelance was every other week; but I'm not percent sure of that. It all kind of fades together after a while.
Q: Who decided what the page rates for freelance writers and artists would be?
ROY THOMAS: Well, Stan had the individual responsibility; but, of course, it was subject to…
(break in transcript)
Q: Do you recall whether or not there was any legend or stamp on the checks that were issued by Marvel to you for your freelance work at the time you first started working for Marvel in the 1960s?
MR. TOBEROFF:: Leading; assumes facts.
ROY THOMAS:: Yes, there were stamped legends or paragraphs on the back of the checks. I cannot remember offhand if they were on both the freelance and the staff checks. I know they were on the freelance checks, but I don't recall whether they were on the others. Because I never -- you know, after a while you just stop paying attention to those. You just sign the check and that was it.
Q: Do you recall whether the first freelance checks you received from Marvel had a legend or stamp on the check?
ROY THOMAS: I know that all the ones I remember did. And I remember back pretty early, but, you know, I couldn't swear the very first one did; but it, you know -- you know, it seemed like it was an ongoing policy.
Q: Do you recall what the legend said?
ROY THOMAS: Only in a general sense. I, of course, read it; but, basically, it was saying that the company had -- owned all the -- the copyrights and all of the rights to the material for which I was being -- material or work for which I was being paid.
Q: And was that the same type of language that you recall seeing on all of the checks that had the legends on them?
ROY THOMAS: Whenever I read it -- the exact wording may have changed slightly from time, but it was always, you know, words to that effect.
Q: Do you know whether the checks that were given to other writers or freelance artists also had a legend or a stamp on them?
ROY THOMAS: I know that they did. I didn't see everyone's checks, of course; but -- and it was my understanding that they did.
Q: Did you ever discuss the check legends with any of the other freelance writers or artists?
ROY THOMAS: I don't recall specific, you know, conversations in detail. But I know that from time to time we would discuss them, because at first I was a little puzzled seeing all this on here. You
(break in transcript)
ROY THOMAS: …have been about two weeks or so.
Q: You testified that there was a script that you wrote, I think it was on an Ironman script that Stan didn't like and revised significantly?
ROY THOMAS: Yes.
Q: Is that right?
ROY THOMAS: Yes. He rewrote about 50 percent of it.
Q: Were you paid for the pages that you submitted for that script?
ROY THOMAS: That was one of the ones that I was doing as part of the staff writer thing during those first few weeks, so I wasn't paid separately. It was counted as part of my staff writer salary, so I was paid in that sense, for that and the Dr. Strange. But I think -- I think those. I know Ironman was and I think Dr. Strange's were all part of the staff's salary.
Q: Were there any materials that you submitted in your freelance capacity that were modified by Stan?
ROY THOMAS: Yes.
Q: Were you still paid for the pages that you submitted?
ROY THOMAS: Yes.
(break in transcript)
MR. TOBEROFF:: Leading.
ROY THOMAS:: I don't really know anything about that, because I wasn't involved with it.
Q: Mr. Thomas, when you first joined Marvel in the 1960s, was it your understanding that the copyrights to the materials you submitted for publication would be owned by Marvel?
MR. TOBEROFF:: Leading; assumes facts.
ROY THOMAS:: Yes, I assumed Marvel owned the copyrights to whatever I wrote for them.
Q: Was it your understanding throughout the 1960s and 1970s that the -- that Marvel would own the copyright to the materials that you submitted for publication?
MR. TOBEROFF:: Same objection.
ROY THOMAS:: Yes, it was.
Q: And is that true of the freelance materials that you submitted for publication and the materials that you submitted while in your editorial capacity?
ROY THOMAS: Yes.
Q: Did Marvel have a policy to your knowledge in the 1960s and early '70s that it owned the rights to all of the materials that were submitted for publication by either employees or freelancers?
MR. TOBEROFF:: Vague.
ROY THOMAS:: Yes, I understood it and considered that -- considered it's always owning the copyrights, yes.
Q: Was that policy generally understood in the comics industry in the 1960s and early '70s?
MR. TOBEROFF:: Calls for speculation.
ROY THOMAS:: To the best of my knowledge, based on people I talked to over the years, it was generally known.
Q: When you say "based on people I talked to over the years," my question was: Was the policy generally understood in the '60s and early '70s?
MR. TOBEROFF:: Calls for speculation; vague.
Q: To your knowledge?
ROY THOMAS: The artists and writers in the field -- those were the people I was talking about that I -- when I spoke to -- they knew that that is what the -- what the company considered -- that it was considered that -- and it was generally accepted with some -- you know, some unhappiness about -- about the facts, perhaps; but it was accepted that that was the conditions under which they were working.
Q: Are you aware that there were certain creator-owned comic lines established in the early 1970s?
ROY THOMAS: Well, I'm aware of the fact that the underground comics, for example, the -- which were done by the youth counterculture and so forth, that
(break in transcript)

ROY THOMAS: I was not aware of any work he was doing for any other publisher or whatever, except that from time to time someone who was doing an article -- a magazine or someone -- something that was doing an article on Marvel might commission him to do a drawing, like Esquire magazine did at one stage, and perhaps some newspaper might have asked him to do it separately, but using Marvel characters. I'm not aware of anything he was doing that wasn't at least Marvel related.
Q: In the 1960s to early '70s who decided which books or series Kirby would work on?
ROY THOMAS: Stan Lee.
MR. TOBEROFF:: Objection to 1960s again. We have a standing objection. 1960s means --
MS. KLEINICK: It's a standing objection.
MR. TOBEROFF:: -- after July 1965; is that correct?
ROY THOMAS:: I always meant it to be.
MS. KLEINICK: You made the standing objection.
MR. TOBEROFF:: I understand, but I don't want the record to look like he's talking about the early 1960s when he wasn't there.
MS. KLEINICK: You made your objection.
ROY THOMAS:: I understand it as being from '64 on, because I wouldn't know anything about an earlier period. I wouldn't have been paying as much attention.
Q: Did Kirby receive assignments for particular issues or titles?
ROY THOMAS: Yes.
Q: Who did he get those assignments from?
MR. TOBEROFF:: Asked and answered.
ROY THOMAS:: He got the assignment from Stan. It might come through Sol Brodski or someone, but it was always from Stan. It was an ongoing, you know, kind of thing. But it had to be renewed every month.
Q: Are you aware of any instance where Jack Kirby submitted artwork for an issue for a series that Stan or Sol had not already assigned him to?
MR. TOBEROFF:: Leading.
ROY THOMAS:: No.
Q: And I think you testified that artists were -- artists submitted their finished pencils to either Stan or to Sol for approval; is that right?
MR. TOBEROFF:: Misstates testimony.
ROY THOMAS:: Yes. He turned it in directly to Stan or Sol Brodski, with the idea
that Sol would show them to Stan.
Q: Did -- did artwork that was submitted by freelance artists from the time that you got there in through the early 's need to be approved by Stan or Sol before it got published?
ROY THOMAS: Yes, it had to be approved by Stan. Sol didn't really have the authority to approve anything unless he felt that Stan -- he was always acting on Stan's authority, but he wouldn't have approved anything on his own authority.
Q: Was Jack Kirby required during this time period to submit his artwork to Stan for approval?
MR. TOBEROFF:: Leading.
ROY THOMAS:: Yes. It was turned in to Stan for -- for him as editor, to look at, to do
whatever he wanted to do.
Q: Did Stan or any other editor ever make changes to the artwork that Kirby submitted for publication?
ROY THOMAS: Yes.
Q: Did Stan or any other editor ever ask Kirby to redo anything that he had submitted to your knowledge?
MR. TOBEROFF:: Leading.
ROY THOMAS:: Yes. They did. It was not a usual occurrence, but from time to time
something had to be redone.
Q: In the instances where changes -- where Stan determined that changes should be made to the artwork that Kirby had submitted for publication by Marvel, would Stan typically have Kirby make the changes or --
ROY THOMAS: Are you finished with the question?
Q: Would Stan typically have Kirby make the changes?
MR. TOBEROFF:: Assumes facts; leading; compound.
ROY THOMAS:: He would -- he might have Jack make the change, if Jack were there and available or if there was plenty of time. He might also -- especially, if it was a fairly simple change or something that he felt could easily be handled. At the office he might have one of the staff artists or production people make it -- whether it be Sol Brodski, the production manager, John Romita, who was an artist on staff, or one of the other staff artists.
Q: Do you recall specific instances where artwork that had been submitted by -- withdrawn. Do you recall specific instances where Stan determined that artwork that Jack had submitted for publication should be changed?
ROY THOMAS: I don't recall early instances. I'd have to go over -- looking over covers and maybe something would occur to me. I do know that in the late 1969 or '70 period there were a couple of instances where Jack's artwork for one Thor issue and one Fantastic Four issue that was turned in just as he left the company were altered considerably.
Q: Are you aware of any instances where Stan either made changes or directed that changes be made to any of the covers that Kirby submitted for publications?
ROY THOMAS: I know changes were made from time to time. I would have to go over a lot of covers to begin to remember specific instances. I know that changes would be made. It might just be a hand or a background detail, something like that. Or it might be a little more substantial. I know they were done but I don't recall the specific instances.

But that was done as a standard on any artist's work, if Stan decided there was a change to be made, he just had it made.
Q: Mr. Thomas, when you started working for Marvel in 1965 through 1972, did you see the -- any of the finished artwork -- finished pencils that Jack Kirby submitted on any of the stories that he was working on?
ROY THOMAS: On many of them.
Q: Do you ever recall seeing any notes or suggested dialogue that Mr. Kirby included on the artwork pages he turned in?
ROY THOMAS: Yes. Pretty invariably, some sort of notes -- whether some of it suggested dialogue, some of it was other comments or plot things.
Q: And do you know on the issues where Stan was the writer whether he -- what he would do with the notes and dialogue that Kirby put in the margins?
ROY THOMAS: He would utilize them to make sure that he understood fully what -- what was going on based on Jack's expansion of the plot. And then he would -- as far as the dialogue, he would utilize little snippets of it, or he would make up his own, as far as I could tell when I was examining it and when I was proofreading and marks were often still there. He used very little of the exact wording.
Q: I would like to mark as Thomas Exhibit -- I guess we are up to -- a document bearing production number Marvel 15988 through 16125.
(break in transcript)
ROY THOMAS: …the beginning; whether that was verbal -- or as it was in so many cases -- written. That kind of was part of the writing, and it's part of the payment.
Q: What is the -- have you ever heard of the term Marvel Method?
ROY THOMAS: Yes.
Q: What is -- when you came to Marvel in July of 1965, was the Marvel Method in use at that time?
MS. KLEINICK: Objection.
ROY THOMAS: Yes.
Q: What is the Marvel Method?
ROY THOMAS: The Marvel Method -- sometimes also called the Stan Lee Method -- but it didn't totally originated with him, but mostly arose in the -- I'm not really quite sure -- but it was in place by the time I got there. Because Stan became too busy to write full scripts; and Larry Lieber, who had been writing the scripts from his plots, you know, was either too busy or was doing his westerns and things and somewhat withdrawing from doing the superheros.

Stan was -- became -- would come up with the idea for the plots, I guess, adapting from the way he had originally done plots that Larry would turn in the scripts. And he simply would give those plots to the artists, who would then draw the story, break them down into pictures, expanding them, whatever needed to be done to break them down into pictures. They would then turn them in, and he would then add the -- he would dialogue it, which means the dialogue and captions -- he would add it later -- instead of writing what we call script in advance, which is the more usual method of writing comic books beforehand.
Q: Are you aware that Stan Lee has been interviewed numerous times in which he has described the Marvel Method?
ROY THOMAS: I'm sure he has, yes. I'm aware of that.
Q: Are you aware that Stan Lee, in interviews, has stated that in 1960s, under the
Marvel Method, that artists were expected to plot stories?
MS. KLEINICK: Objection; states facts not in evidence.
ROY THOMAS: I haven't any knowledge of that. It would have, you know, surprised me; but if he did, he probably misspoke.
Q: Is it your understanding that at Marvel, artists were -- part of their duties were to plot the stories through the -- through their artwork and through notes in the margins and suggested dialogue?
MS. KLEINICK: Objection.
ROY THOMAS: We didn't use that, you know, think about that much or use that term then.
But as I look back on it, and over the years and analyze it, I realize they were -- I would say co-plotting the stories. I would not say plotting. When you are given a story idea, even if it is a few sentences, quite often, and certainly if it was more, as it was in many cases, you're certainly not plotting the story, you were co-plotting.
Q: Starting at the time you started -- well, whether or not they were co-plotting or plotting -- is it correct that artists were, at the time you got to Marvel in , artists were expected to plot stories?
MS. KLEINICK: Objection.
ROY THOMAS: They were expected to co-plot the stories.
Q: Okay.
ROY THOMAS: As they -- to do whatever is necessary to tell the story; that involved adding elements for the plot. So, I call it co-plotting.
Q: And in your testimony yesterday, you spoke about artists being supplied with a story either in a synopsis or verbally. Which was more common during the time you were working at Marvel?
ROY THOMAS: Do you mean what I know of Stan Lee? Or what I know of, say, myself and
other writers who came along?
Q: I'm talking about Marvel as a whole.
MS. KLEINICK: Objection.
ROY THOMAS: Well, it would depend on the time. And Marvel, as a whole, when I came to
(break in transcript)
Q: …work at Marvel; is that correct?
ROY THOMAS: Yes.
Q: Do you know for certain, whether in -- mid-, when you started work at Marvel, that there was legend on the back of your checks?
ROY THOMAS: I, you know, I don't have a picture in my mind of the very first check, but I do know that -- from probably the beginning, and certainly about the beginning; so, therefore, I can only, you know, figure it must have been on all of them that the legend was there. I just probably, you know, I don't remember this first check as such; but every check I remember in those day, had that legend.
Q: But do you have a recollection of checks in having that legend?
MS. KLEINICK: Objection.
ROY THOMAS: Yes.I'm sorry.  Yes.
Q: You have a specific recollection of that?
ROY THOMAS: Yes.
(break in transcript)
ROY THOMAS: …same thing. So I don't pay any attention or didn't take any great recollection of it.
Q: Was it your understanding that by signing the checks, you were acknowledging that you were signing to Marvel all right, title and interest in your work?
MS. KLEINICK: Objection.
ROY THOMAS: Yes, I did.
Q: Were they putting legends on your freelance checks when you became editor-in chief in ?
ROY THOMAS: I have no recollection at all. That language was written in the contract. So I wouldn't have paid any attention to remember whether it was or not.
Q: When you began work with Marvel in 1965, which comic book titles did you write for?
ROY THOMAS: The first thing I did over the weekend, after Stan hired me, was a -- to do the dialogue for an already drawn and plotted comic called: Modeling With Millie, which was...(transcript ends)

TOMORROW: Mark Evanier...you'll want to read this one.

4 comments:

Justin said...

Thanks very much for postingthese, regardless of the side you come down on, it's interesting.

Anonymous said...

All of the people deposed should have mentioned that there is evidence for someone creating villains and plots without direction from Stan Lee. Steve Ditko was doing exactly that. And he was actually credited.

Bruce Simon said...

Thanks for publishing these transcript, Dan. I was going blind trying to read the typed pages on the Justia site. You blog is always one i read with interest. Best, Bruce Simon

Hagop said...

Thanks for posting this, but I think you're misunderstanding the grounds upon which the suit is being brought.
I don't believe that anyone is claiming that Kirby "believe[d] that what characters he would either create, or co-create, would eventually belong to him."
What they are alleging is that he was a freelancer, and not an employee of Marvel. Therefore, under the change in intellectual property laws in the 1970s, the rights to his creations should be reverted back to his estate 50 years after their debut.
I'm not an expert, but that's how I understand it. Nobody is saying that Jack, in the 1960s, thought he owned the characters.
I think you are right that staking claim to things like Spider-Man is a bargaining position. However, they aren't claiming ownership of Wolverine. They are claiming rights to the "X-Men" which Jack did co-create and which "X-Men Origins: Wolverine" is part of the film franchise at 20th C. Fox.