Monday, April 11, 2011

Marvel Worldwide, Inc. et al v. Kirby et al - Susan Kirby Speaks

More information from the Marvel vs Jack Kirby's estate court case.  There’s a great moment on the Lost Lennon Tapes where Sean Lennon begins to sing the Beatles song, With A Little Help From My Friends.  Sean, at a very young age, naturally mutilates the lyrics and says that it’s his favourite song, as he calls it, I Need Somebody To Love.  The following exchange was then captured on the tape.
SEAN LENNON: “Who sang I need somebody to love?  You?”
JOHN LENNON: “No, Ringo, but Paul and I are singing it with him.”
Somehow you feel that the Kirby’s never asked Jack Kirby about any of his comic book and asked who did what, only to have Jack say, “Well, Dick Ayers I inked it, but Stan and I wrote it, and I drew it.”  And if Jack Kirby ever did say that, then his children either don’t recall it, or they’ve purposely shut it out.  Such a shame.

This is the second deposition from one of Kirby’s children, his oldest daughter, Susan.  Susan was old enough to have observed what Kirby was doing at the time in question (1958 to 1963) but, other than a beautiful moment where Susan recalls her father telling her that he named Sue Storm after her, and showed her the first drawings of the Fantastic Four, there’s precious little that she could recall that would help either side in this case.  Susan can’t recall Marvel paying her mother a pension after Jack Kirby passed away, and there’s other gaps in her memory, or, simply put, she just doesn’t know the answers.  Still, after reading this deposition, one is left with the impression that whatever feelings that Susan has for Stan Lee, she’s careful enough to keep them to herself, for the most part.  As such she doesn’t engage in a tearing down session with the vehemence that her brother, Neal, did.

Deposition of Susan Kirby, October 25, 2010

A. She was in California. I don't remember her residence address. She had an apartment there in, I don't remember what town, somewhere near Ventura.
Q. Do you know how long she had been in California before moving back?
A. Several years, because she had lived with my parents before she got her own place.
Q. Would you tell me when your birth date was?
A. 12/6/45.
Q. You are the daughter or one of the daughters of Jack Kirby, right?
A. Yes, the eldest.
Q. Do you have any memory of being present while your father worked on projects involving Marvel characters?
A. Yes.
Q. Do you have any recollection of discussing with your father the work he was doing for Marvel?
A. Yes. I was in his office a lot, because he had a vast library of books, because he was into everything. And I used to go down there and read, so I used to read his books, and stuff, and one day I was upstairs, and mom told me to go downstairs because Dad was creating some new super heroes. So I went downstairs, and he said, "I want you to see this." He said, I named the female super hero after you, her name is Sue," Sue Storm he was talking about, it was the Fantastic Four.
Q. Do you remember what year that was?
A. Oh, gosh, I was a teenager, that is all I remember, maybe 15 or 16, so 1961, '62.
Q. And when you went downstairs did you discuss with your father what he was doing?
A. Yes.
Q. What did you say to him? What did he say to you?
A. I said it looked great. There were three characters on the board, three of the four. And I asked about who they are, and he told me who each one was. And I said, "It looks great, they look great".
Q. Do you recall anything else being said between the two of you at that time?
A. Not at that particular conversation, no.
Q. How long would you say you had that conversation with your father?
A. Oh, about an hour or so.
Q. And do you know what conversations, if any, occurred between your father, and anyone at Marvel prior to his working on that?
A. No, I wasn't present.
Q. Did your father ever tell you what conversations, if any, had occurred before this conversation you had with him?
A. No, he did not.
Q. Did your mother say anything to you about the work your father was doing, other than that he was --
A. Just that she was upset because he never slept. He was always working. Even when he wasn't selling something to Marvel, he was always creating murals, and all kinds of things, his conception of God. His mind was always going.
Q. Did you ever have a discussion with any of your siblings concerning your father's work?
A. We always talked about Dad's work. That was the main thing in the family.
Q. Would you summarize your educational background for me, beginning in the year you graduated        from high school?
A. That was '63. And I went to college for a year. So from '64 to '65 I was in college.
Q. Okay.

[break in transcript]
A. Because I have seen him do it.
Q. Do you know if prior to you witnessing your father writing, he had had any discussions with anyone at Marvel?
A. Not that I am aware of.
Q. Do you know that he -- do you know one way or the other whether such discussions occurred?
A. No, I don't.
MR. TOBEROFF: Vague as to discussions.
MR. FLEISCHER: You said, "I think," that you saw your father writing.
A. Yes.
Q. What form has that writing taken place?
A. As he draws he fills in the bubbles. He kind of invented all his "Pow, Slam" stuff, that they use today. That is how he wrote. He wrote sentences, conversations between the characters, just off the top of his head.
Q. Is it your testimony that you witnessed your father drawing the dialogue bubbles, and story narrative in the panels he was drawing?
A. Yes, I have witnessed it.
Q. Do you know whether the works that were published by Marvel contained the words that your father had put in those bubbles, and narrative boxes?
A. To my knowledge, they were.
Q. Did you read comic books as a kid?
A. Yes, all kinds.
Q. Did you have a specific recollection of seeing a comic book containing the dialogue that you saw your father write?
A. Fantastic Four, Volume I.
Q. Do you know if your father had been given any direction by Marvel prior to the time he began working on Fantastic Four?
A. Not that I am aware of.
Q. Did anyone ever tell you that a synopsis of Fantastic Four had been given to your father?
A. No, I had never seen him with one.
Q. Are you acquainted with Stan Lee?
A. I met him once when I was a child.
Q. What were the circumstances under which you met him?
A. He came over the house for a drink with Mom and Dad, him and his wife.
Q. Did you ever go to the office of Marvel as a child?

[break in transcript]
Q. …siblings about acquiring the rights to any works your father contributed to, published by someone other than Marvel?
A. No, I have never had that conversation.
Q. Did you have an understanding when you were living in East Williston about the economic terms of your father's relationship with any publisher?
A. Well, I knew that Marvel paid him by the page, and that he and mom used to argue about it, because he would be up all night doing pages, and Marvel would say, "Well, we don't want to buy this."  Then they would go ahead and make him do the whole thing over again, and he would just get paid for the artwork that he did over again. So he was doing things twice, and getting half the money.
Q. When do you recall hearing a conversation to that effect?
A. Early '60's, late '50's.
Q. Do you know what character or characters were involved in those discussions?
A. No.
Q. Was there any mention of who it was that was asking your father to redo pages or correct pages?
A. From what I recall, Stan Lee.

[break in transcript]
A. No, sir.
Q. Are you aware of any particular comic book or comic book character that your father worked on before receiving an assignment from Marvel?
MR. TOBEROFF: Misstates testimony.
THE WITNESS: No, sir.
MR. TOBEROFF: Lacks foundation.
MR. FLEISCHER: Did you ever have occasion to discuss any assignment your father had received from Marvel?
MR. TOBEROFF: Asked and answered. You can answer.
THE WITNESS: No.
MR. FLEISCHER:  Did you ever discuss with your father any of his contributions to any of the characters that were published by Marvel?
A. I just saw him create. That is all I saw.
Q. Did you ever discuss what he was drawing with him?
A. No, there was no discussion that I recall, just telling me what was going on in the scripts, and strips, I don't know what you call them.
Q. Do you have any knowledge about the circumstances of the creation of the Spiderman comic book character?
A. That is not Dad's. I think he did the costume. I think he originated the costume, but not the character itself.
Q. How did you come to that understanding?
A. I believe someone told me, maybe my mother, I recall.
Q. What were the circumstances under which she told you that?
A. We were discussing the character, because my brother liked Spiderman. He was a little kid at the time. We were just talking about it. It came up in the conversation.
Q. Do you recall your brother asking about whether your father had created Spiderman?
A. Yes, he did ask.
Q. What did your father say?
A. I don't think my father was there. It was just my mother. She said he created Spiderman's costume.
Q. Did your mother ever discuss with you any other characters that were published by Marvel that your father created or didn't create?
A. Well, the Incredible Hulk. I was there when he was creating him. He called me over, and said, "I want you to see a new super hero." He said, "This is the Incredible Hulk. What do you think of him?" I said, "He is incredible."
Q. Do you remember what color he was?
A. Green, yes.
Q. Was he green on your father's drawing board?
A. No, he was black and white, but I remember the color he was in the books.
Q. Was he -- when you saw it on the drawing board, was it inked?
A. No, it was pencil.
Q. Was there any dialogue written on the drawing?
A. No, it was just a drawing of the Hulk. He had just started working on it.
Q. Do you know whether he had had any conversations with anyone at Marvel before that about the Hulk character?
A. I have no idea.
Q. Have you ever discussed the characters that your father worked on for Marvel with anyone other than Mr. Toberoff and your siblings?
A. Everyone knows my Dad. I have talked to a lot of people about him. They would come up, and say, "We know your Dad's work, he is really fantastic." And I would say, "Thank you, I appreciate that."
Q. Did your father ever discuss with you the contributions of any other people to the characters that he worked on for Marvel?
A. Absolutely not.
Q. Did your mother ever discuss with you, or in your presence, the contribution of anyone else to characters your father worked on while at Marvel?
A. No.
Q. Have you ever become aware of any gifts made by Marvel to your mother?
A. No, I am not aware of any.
Q. Are you aware of any money paid to your mother after your father's death?
A. No, I am not aware of it.
Q. Money paid by Marvel?
A. I don't believe so, no.
Q. Did you ever hear your father complain that he didn't own anything that he had worked on published by Marvel?
A. Just the stuff that Marvel bought from him that they obtained the rights to it. And he was upset about that.
Q. What did he say about that?
A. Just that, you know, he didn't have the rights to his work, and he was upset in case something happened in the future. I know they were having trouble with the checks Marvel sent them, because they had a lot of writing on the back that they said -- where they said they owned -- that they bought and owned Dad's work, and Mom didn't understand it. So she went around the block, one of my friend's father was a lawyer. And I went to see him. So she called his father and said, "Can I talk to you?" And she went and showed him the checks. And he said, "Well, this just says that they own the rights of the characters they bought from Dad." That is all I remember about that.
Q. Did you ever see any of the writing on the back of the checks?
A. No, I don't remember. Mom never discussed finances with me. She just showed me the checks, because she said they were confusing.
Q. Well, did you look at the writing on the back of the check?
A. I looked at it. It was confusing to me, too.  I said you better talk to Bernie Flegal about that.
Q. Approximately what year was this?
A. I can't remember that. I was a teenager, maybe 1960.
Q. Do you remember becoming aware of any action taken with respect to the writing on the back of the checks by your father?
A. No, I don't.
Q. Are you aware of any complaint that your father made to Marvel with regard to the writing on the back of the checks?
A. I am not aware. I am just aware of the fact that the lawyer told, Mr. Flegal told my mother, that it was an unusual thing to do.
Q. How did you come to know that?
A. Mom told me.
Q. Are you aware of any advice your mother gave your father with regard to the checks?
A. No. I know he had to sign them, because he had to feed his family. That is the only way to do it.
Q. Were you aware of any written agreements, other than what may have been on the checks…

[break in transcript]
A. I don't know.
Q. Do you know whether your father was ever working on a publication deadline?
A. He was always on a deadline. He used to work 20 hours a night sometimes.
Q. Do you know who give him that deadline or deadlines?
A. Stan Lee.
Q. How do you know that?
A. I just remember Dad was always saying, I have to make a deadline. I have to get this done. I have to get that done.
Q. Are you aware of -- strike that. Were you aware of your father leaving Marvel's -- withdrawn.   Were you aware of your father ceasing to submit work to Marvel sometime in the 1970's?
A. I don't recall. I wasn't home then.
Q. Were you aware of your father beginning to work exclusively for DC Comics?
A. No.
Q. Are you aware of whether your father owned any rights to the work he submitted to DC Comics?
A. I don't know. I guess he did.

[break in transcript]
Q. Do you recall whether it was in pencil when you saw it or ink?
A. It was in pencil.
Q. Were there any dialogue balloons?
A. There were balloons, but there was nothing in them yet.
Q. Did your father ever discuss the work he was doing on the X-Men comic book?
A. No.
Q. Did your father ever indicate whether or not he was working with a writer on X-Men?
A. No.
Q. Did your father ever indicate where the idea for the X-Men story came from?
A. No.
Q. Do you have a recollection of the names of any of the X-Men characters?
A. No.
Q. Did you ever see one of the X-Men movies?
A. Is that the one with Wolverine in it?
Q. Yes.
A. Yes, I saw one.
Q. Let's focus for a second on Ant Man?
A. I don't even know who that is.
Q. Do you know whether your father had any association with Ant Man?
A. I have never heard of it before.  (Plaintiff's Exhibit 1 marked for identification.)
MR. FLEISCHER:  Ms. Kirby, have you ever seen what we have marked for identification as Susan Kirby Number 1, and take your time to look through it.
A. I see my name on it as a plaintiff.
Q. I am sorry. You mean on the sticker that the reporter just put on?
A. Yes.
Q. Apart from that?
A. I don't see anything.
Q. Do you know who wrote what is on this page?
A. Yes, Dad.
Q. And did your father have a typewriter?
A. A typewriter, no. He may have had one of those old typewriters, not an electric one.
Q. Did he, with respect to Fantastic Four, write out a synopsis or a script for Fantastic Four?
A. No.
Q. What is the basis for your statement that

[break in transcript]
Q.  …character, my intention is to ask you whether that was the first iteration of the character, the invention of the character?
A. Yes.
Q. With respect to Rawhide Kid, do you have any information about who invented Rawhide Kid?
A. That would be my Dad.
Q. How do you know that?
A. I believe I was told.
Q. By whom?
A. My father.
Q. What did he say in that regard?
A. I don't really recall the exact words. It was one of his comic books in the library, and I was reading it. I asked, you know, is this one of yours, and he said, yes. That is all I remember.
Q. Did you ever see him at work on a Rawhide Kid comic book?
A. No.
Q. Would I be correct, then, that you would not have any information as to whether or not he had been assigned the project of working on a comic book called Rawhide Kid?
A. You would be correct.

[break in transcript]
A. I don't recall.
Q. Do you disagree with the substance of the statement made in that paragraph?
MR. TOBEROFF: Objection, calls for legal conclusion. It is a legal document. She is not a lawyer. Uses terms of art.
BY MR. FLEISCHER: Q. He hasn't directed you not to answer the question.
A. I don't know.
Q. Do you have any information as to whether the work that your father did, published by Marvel, was done as a result of an assignment your father received from Marvel?
A. Not that I know of.
Q. What information do you have that would lead you to conclude that it was not done as a result of an assignment?
A. I can't conclusively say so. I don't have any knowledge.
Q. You don't know one way or another?
A. Yes.

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