Sunday, April 10, 2011

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

More information from the Marvel vs Jack Kirby's estate court case. Reading this deposition you get the feeling that Stan Lee isn't on the Kirby families Christmas Card list, and I doubt that he ever will be.  Neal Kirby, the only son of Jack Kirby, shared his thoughts about Stan Lee in his deposition, and it almost reads like he was pleased to finally be able to get his impressions down on the record.  There's a lot of anger in the Kirby family and the bulk of it is directly squarely towards Stan Lee, moreso than Marvel itself.  The Kirby's clearly believe that Stan Lee is the reason why their father never got the credit he was due, or got the money that he was due.  Reading this deposition, I doubt anything anyone could say would change Neal Kirby's mind on that front.

Clearly this wasn't the most pleasant of depositions.  Towards the end of the taping the two main lawyers, Marc Toberoff, acting for the Kirbys, and David Fleischer, acting for Marvel, actually get into a minor verbal stoush which makes for great reading.  During the contentious moment, Fleischer states that, "This is the last deposition, Marc, that you will get away with this at."  Toberoff's answer is a cutting one, "Ask a proper question."  By this stage tempers were clearly frayed, so it might have served everyone well that it ended when it did.

Neal Kirby's memory must surely be called into question.  He claims to recall Jack Kirby drawing the first issue of Thor with clarity, but can't remember who published Ant-Man.  You can imagine someone thinking, "They're the ones suing you Neal," but nope...that went through to the keeper (as we say here).  Anyway, have a read, and see for yourself.

Deposition of Neal Kirby, Wednesday, June 30, 2010. Representing Marvel were David Fleischer and representing the Kirby’s was Marc Toberoff.

A         That's correct.
Q         Would you state their full names and birth dates for me if you can.
A         My oldest sister is Susan. Her birth date is December 6, 1945. My sister who is slightly younger than me is Barbara. Her birthday is I believe November 26th and I think that -- I think she was born in '53. And my youngest sister is Lisa and I believe her birthday, I'm going with September 6th on this one.
Q         September 6th?
A         If I recall right. Well, let's see. She is about 13 years younger than I am so that would be -- she was probably born in '61, I guess.
Q         Somewhere I had a note that Barbara was born in '52. Is that possible?
A         It is possible, yes.
Q         And what is your birth date?
A         My birthday is May 25th, '48.
Q         Do you have any children?
A         Yes, I do.
Q         How many?
A         I have two children by my first marriage and one with my current wife.
Q         And would you just give me the names of

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A         I couldn't recall. Since we have grown up so --
Q         Do you recall when the last time you discussed that topic with any of your sisters?
A         I probably discussed it with Lisa within the past year, I would think.
Q         What do you recall saying to Lisa and what do you recall her saying to you during the course of that discussion?
A         I believe I was just relating a certain story, you know, we were just talking on the phone and something jogged my memory about a certain story and we just kind of discussed that for a few minutes.
Q         What story were you talking about?
A         I believe it was when he was creating Thor.
Q         And what do you recall telling Lisa at that time about Thor, its creation?
A         Well, my father was always very interested, he loved mythology, he loved studying religion and history, just knew all about it, his bookshelves were just loaded with that kind of stuff, so as a kid I was always at that time more into history than I was science but we would have long discussions about it.
But I kind of got into it, I guess you might say, on a more practical basis and I remember kind of standing by his drawing board as he was kind of doing the Thor character and he had the big, if I remember right, either Thor or one of the other characters that had big horns coming out of the helmet and I said a real Viking wouldn't have big horns coming out of his helmet and we were laughing and that was about it. I think my father kind of laughed and made some statement that well, this isn't, you know, Viking reality, it is a visual impact, so he gave me a little art lesson there.
Q         Do you know whether the drawing that your father was working on that you witnessed was the first iteration of the Thor character or some iteration of the character after it was first published?
MR. TOBEROFF: Compound.
A         I believe it was the first.
Q         And how did you, what is the basis for your belief that it was the first?
A         I recall his -- we were -- we were talking about the -- about Thor's costume and he was doing it for the first time and, again, there were other things. I think I had made some comment about the big circles on the front of the character and, you know, again my father was, you know, jokingly, jokingly referring to visual impact other than possible reality of what a true Viking might have worn.
Q         What led you to believe it was the first drawing your father was doing concerning the Thor?
MR. TOBEROFF: Asked and answered.
A         Again, the same thing. The basic creation of the costume.
Q         Did your father tell you that this was the first drawing he was making of Thor?
A         He did refer to doing a new character, yes.
Q         And was it the Thor character or some other character that became part of the Thor comic book?
A         No, it was the Thor character.
Q         And your recollection is that part of the costume that he was creating had a helmet with horns?
A         I believe so, yes.
Q         Do you know whether or not your father had had discussions with anyone at Marvel before undertaking the Thor project?
A         No, I have no knowledge of that.
Q         Did you have an understanding at the time that you were witnessing your father drawing Thor for the first time that was being drawn for Marvel as opposed to some other publisher?
MR. FLEISCHER  Mr. Kirby, have you ever discussed the termination notices which are the subject of this lawsuit with Mr. Evanier?
A         No, not with Mr. Evanier.
Q         Have you ever discussed the termination notices with anyone other than Mr. Toberoff or a member of his law firm?
A         Not that I can recall, no.
Q         Did you ever attend any meetings between Mr. -- you are Mr. Kirby -- between Jack Kirby and anyone at Marvel at the time Mr. Kirby was working for Marvel?
A         No, I was not -- if I went into the office, I wasn't party to any meeting.
Q         I'm sorry, you said you went with him to the office but you didn't attend any meetings?
A         Yes, as a child, as a kid occasionally my parents were nice enough to let me play hooky once in awhile and I would go sit in with my father if he had to go and bring in artwork and go up to Marvel's office and just kind of sit and wait for him; a little bit later go to the zoo or something.
Q         Did you have an understanding at that time about who your father was meeting with when he went to the offices of Marvel?
A         I would just assume he would be meeting with Stan Lee or some other person in charge, I guess.
Q         Do you have any recollection of discussing with your father any of the meetings he had had with Stan Lee?
A         No, I don't.
Q         Was it your father's practice to talk with you about the subject of those meetings or not?
A         No, not really. I don't recall right now.
Q         Did you have an understanding of the purpose of the meetings your father was having with Mr. Lee or anyone else who might have been behind that closed door?
A         Well, I suppose you might say as a kid it was my understanding he was bringing his artwork to New York, gave it to them; they looked at it, they bought it or didn't and on he went.
Q         Did you have any understanding at the time that part of the function of the meetings was to discuss future assignments or work?
MR. TOBEROFF: Assumes facts.
A         No, I didn't.
Q         Am I correct then that you have no knowledge whatsoever of any discussions between your father and Stan Lee concerning your father's work for Marvel?
A         I was never a party to any discussion.
Q         Did your father ever tell you anything Mr. Lee had said to him?
A         He never -- I don't recall. I don't recall anything specific where my father said something like Stan said this or anything, no.
Q         Do you have any recollection of your father bringing in artwork that Marvel did not pay for?
A         Yes, I do because, I know from time to time it was kind of a topic of discussion at the dinner table where my father would be upset, he might have brought in some pages and whatever might have been something that they didn't like with the pages and they had to redo them and I would know he and my mother would discuss he would get upset because, from what I understand, he didn't get paid for those pages.
Q         And how did you come to the understanding that he wasn't paid for those pages?
A         I believe he mentioned it and I believe my mother mentioned it as well.
Q         Do you have any specific recollection with regard to any particular pages that you recall your father saying he had not been paid for?
A         Well, I do recall, I know it was one page in particular but I don't know specifically the page, it was a Thor cover. I could not tell you what issue or anything. But I believe they said it was too detailed for the inker and they sent it back to him.
I know about that one particular page because several years later in the early seventies he gave it to a very good friend for a Chanukah present.
Q         And that was a drawing in pencil for a Thor cover?
A         Yes, in pencil.
Q         Do you have a recollection of who the friend was who received the drawing?
A         Yes, I do.
Q         Who?

[break in transcript]
A         …year. Just not that often because of the business.
Q         How does he spell his last name?
A         F-o-l-k-m-a-n.
Q         And he lives in Thousand Oaks?
A         Yes.
Q         Do you know whether your father ever attempted to sell the Thor drawing that we're talking about, the one that was too detailed for the inkers?
A         Prior to giving it to Mr. Folkman?
Q         Yes.
A         Not to my recollection.
Q         Do you recall any other occasion in which your father was not paid for work that he brought in for Marvel?
A         Other than like I mentioned previously, having, him having a discussion with my mother, something to that topic, on a couple of occasions and that one page specifically, no.
Q         Can you be more specific about what you recall being said between your mother and father on this topic of not being paid?
A         I don't recall specifically, I just recall, you know, my father and my mother being upset about some, from time, very, very -- it was rare, but just being upset about doing some pages that he had to -- he didn't accept and he wasn't getting paid for it.
Q         Do you remember when those discussions occurred?
A         We are talking timeframe of years?
Q         Yes, years.
A         I am guessing early sixties.
MR. TOBEROFF: I just want to make it clear that you are entitled to estimate and sometimes people when they're estimating say they're guessing but I don't want you to guess.
A         Okay.
MR. TOBEROFF: If you have a basis; for example, sitting in this room you can estimate the length of this table but if you never came into the room you would be guessing.
Q         Is it your best recollection that this discussion between your mother and father that you were privy to occurred in the early 1960s?
A         In the early 1960s, yes.
Q         And you would have been somewhere between 12 and 15 at the time?
A         Yes, about that.
Q         Were any of the other members of the family present at those discussions or that discussion?
A         At that particular discussion I really, I don't recollect specifically, only that it was at dinner so I would assume that Susan and Barbara might have been there.
Q         Are there any documents or drawings or articles that you could refer to to refresh your recollection of which you are aware about the specifics of the discussions that you were privy to between your mother and father?
A         I'm not aware of any, no.
Q         Did you have an understanding one way or another as to whether the work your father presented to Marvel was being done as a result of a request by Marvel that your father do the work?
A         I don't recall as a child, you know, knowing that, knowing the circumstances under which he did the work, only that he did do the work and occasionally brought into New York City. Like I said, it was my understanding at the time, he would bring it in, they would look at it, they would buy it or they didn't.
Q         Apart from this one Thor drawing, can you recall any instance that you witnessed that your father brought in work that he did not -- that he returned home with?
A         Not when I was with him, no.

[break in transcript]
Q         …co-created for other publishers.
A         I believe characters such as Fighting American, there were some horror comics that he did, Black Magic and Young Romance during the late forties, early fifties, some -- honestly I don't know if it was the Marvel or pre-Marvel entity in terms of the characters but Challengers of the Unknown, The Fly which he did with Joe Simon. Oh, I'm sorry, am I not -- I'm moving out of the way there. He did, let's see, Ant-Man.
Q         Ant-Man, did you say?
A         I believe it was called Ant-Man, yes.
Q         A-n-t?
A         A-n-t, yes.
Q         Do you know whether Ant-Man was published by Marvel?
A         No, I don't. I don't know who the publisher is.
Q         Okay. Any others come to mind?
A         Not that I -- I'm sure that there are many more. I can't recall any at this particular moment.
Q         Do you have any firsthand knowledge of your father working on any character or story which is the subject of one of the termination notices here before being asked by Stan Lee or someone else at Marvel to

[break in transcript]
Q         But my question is do you know whether any of those characters was created -- do you have knowledge one way or the other as to whether those characters were created pursuant to specific assignments or commissions by Marvel?
A         No, I don't.
Q         Forgive me if I've asked this before, it is not my intention to repeat questions, but did your father ever discuss with you or in your presence any assignments he had received from Marvel or Stan Lee?
MR. TOBEROFF: Assumes facts not in evidence.
A         Not that I can recollect right now.
Q         Do you know how your father was paid for the work he did and was published by Marvel?
A         Well, like I said previously, he would bring the work when I was there, anyway, he would bring the work to New York, bring in the pages, and I believe he got paid by check in the mail.
Q         Do you know the basis for the payments that he received for the work?
A         He got paid by the page that they bought.
Q         And was that something that you knew at the time or something that you have learned since?
A         No, I knew that at the time.
Q         Did you have an understanding at the time that that was consistent with the way other comic book artists were paid?
A         Yes, I did.
Q         And how did you come by that understanding?
A         In just by kind of, you know, discussion. I could not tell you the specific time or instance but I know from time to time, you know, he said that's how he got paid, by the page.
Q         Did you have an understanding at the time how much he was being paid by the page?
A         No, I didn't.
Q         Did he ever discuss financial matters in your presence?
A         No.
MR. TOBEROFF: Excuse me. Give me time to object to the question before you answer.
THE WITNESS: Sorry.
MR. TOBEROFF: Vague and ambiguous as to "financial matters."
A         If you are referring to how much he got paid, no.
Q         Did he ever discuss how much he got paid in relation to other comic book artists?
A         No.
Q         Did you have an understanding of whether he was one of the most highly paid artists or in the middle of the pack or in the bottom of the pack?
MR. TOBEROFF: Compound.
Q         In the 1958-1963 timeframe.
MR. TOBEROFF: Compound.
A         At that time, no, I would have no idea of that.
Q         Did you ever discuss with your father specific contributions he made to characters or stories that were published by Marvel?
MR. TOBEROFF: Assumes facts.
A         We would have discussions or at least if I was watching him work where he would be saying "I'm doing a new character" or something to that effect, ye s .
Q         Did he ever tell you what was triggering his work on a new character?
MR. TOBEROFF: Vague.
A         A specific character?
Q         Yes .
A         Well, I could -- in one instance I think Sergeant Fury, I think it was called the Howling Commandos if I remember correctly, that was based on a comic he had done I believe in either late fifties, I believe, called, I think it was called Combat, and, of course, on his personal war experiences.
Q         And how did that relate to the creation of a new character for Howling Commandos?
A         How did his previous experience relate to that?
Q         Yes.
A         Just the fact that my father had been in combat in World War II and the fact that he had done a combat comic previously which I guess he enjoyed, you know. I don't want to say expounding on combat, but I think he wanted to express to people what soldiers were going through.
MR. FLEISCHER:
Q         Mr. Kirby, do you know whether your father had been asked by anyone at Marvel in connection with the work that he was doing on the Nick Fury and the
Howling Commandos book to populate the story with new characters?

[break in transcript]
A         …in front of me, if that's what you are referring to.
Q         You indicated that you weren't privy to the conversations that occurred between your father and Stan Lee or others at Marvel even when you were at the offices.
A         That's correct.
Q         But when he came home or when he left the Marvel office and you were together did he ever indicate that he had been asked to make changes in pages?
A         I don't recall him like at any particular time when I was watching him draw, I don't recall him at any particular time going, "Oh, I need to make this change because they asked me to," no.
Q         Is it possible that your father had delivered work to Marvel and was asked to make changes and, in fact, took the work home and did make changes and resubmitted it?
MR. TOBEROFF: Calls for speculation.
A         I would have no way of knowing that.
MR. FLEISCHER: Marc, your objections are speaking objections and I have not taken issue with it but the objection that you are supposed to make is objection to form. You are not supposed to say assumes facts, you are not

[break in transcript]

A         Yes. Because he had either created or co-created most of their characters, if not all of their characters during that timeframe. If it wasn't for him the company might have and probably would have gone down the tubes. And he put all of his heart and work and effort, even 16, hours a day, I remember that, doing all this work and got paid by the page and Marvel and other people at Marvel got very wealthy.
Q         Was she referring to anyone in particular when she said Marvel and other people at Marvel got wealthy?
A         Well, in particular Stan Lee and, you know, Marvel as a corporate entity, yes. And I should say, I would like to say it wasn't so much the matter of the wealth, that was probably a poor choice of words on my part. I think the genuine really cause for her upset is that he never really got due credit for what he did.
Q         Did she ever indicate to you that he had been treated differently than other talented comic book creators during the time that he was working for Marvel and other publishers?
A         Treated differently in what respect?
Q         Either in terms of payment or credit or any other aspect of the work.
MR. TOBEROFF: Compound.
A         I don't recall ever discussing with my mother how much my father was paid by the page in relation to any other artist, no.
Q         Did you have an understanding that your father -- withdrawn.  Did you have an understanding that other comic book artists were paid by the page during the time that your father worked in the industry?
A         Yes. I guess it was you might say common knowledge that that's how comic book artists were paid.
Q         And was it your understanding that the writers of comic books were also paid by the page?
A         That I had no knowledge of.
Q         Do you recall ever having a discussion with your father with respect to the contribution, if any, that Stan Lee or other writers at Marvel had to the stories that he was working on?
A         I know my father was -- there were times when he was visibly upset if Stan Lee, say, would take credit for something my father was done or didn't get due credit for something that my father had done.

[break in transcript]
A         …or something like that.
Q         Have you seen that interview or article anytime within the past several years?
A         No, I haven't.
Q         Can you recall any other instances in -- withdrawn.
Do you recall any other instances in which your father relayed discussions he had had with Stan Lee about the work your father was doing at Marvel?
A         Again, specific, you know, dates and times I can't give you but I know in that period in the early to mid-sixties before I went off to college on a couple of occasions, I know we discussed more so as I got a little bit older as a teenager, more so he would just discuss his frustration with not getting the credit he believed he should be getting, either through some interview that Stan Lee gave or whether -- again, whether it was on air or print I couldn't be specific, but we did discuss that on a few occasions.
Q         Apart from the specific instance that you recall with respect to Fantastic Four, can you recall the specifics of any of those instances where your father relayed to you statements made to him or others by Stan Lee that were the subject of concern to your father?
A         I can remember one instance, again I do not recall if it was a print interview or, you know, on-the-air interview or what it might have been, but I do recall one instance involving the creation of Thor and I guess Stan had taken -- he had created
that and my father was very upset about that. He said Thor was his idea, his creation.
Honestly, given my father's interest in mythology and Norse mythology and, again, biblical history and all kind of history, that kind of thing just flowed out of his mind. I mean, to me just from my knowledge of comic history, and I'm not a comic historian by any means, but my knowledge of it and my personal history, the thought of Stan Lee, honestly, coming up with concepts of, you know, Thor, Loki and Ragnarok, The Rainbow Bridge and every other part of Norse mythology coming out of Stan Lee's mind is relatively inconceivable.
Q         Do you know for a fact that the original concept that became Thor was not devised by Stan or someone else at Marvel?
A         Well, it was devised by my father, the creation of Thor. I have no reason to believe that my father would lie to me about something like that.

[break in transcript]
Q         Do you recall ever being aware that your father was compensated other than on a page rate basis by DC Comics?
A         Not that I'm aware of. I know that on many occasions I would go with my mother or my father or both to the art supply store to buy his supplies and my mother would write a check for whatever they purchased. Neither she nor my father ever mentioned to my recollection about ever getting reimbursed for that.
Q         Did they ever say they weren't being reimbursed for that?
A         I know on occasion I believe my mother said something to the effect of, you know, how expensive the paper was, you know; something to the – you know, effect that they had to pay for it. In other words, I do not recall my mother saying -- well, I
probably should say I don't recall but --
Q         I don't want you to guess. Your counsel cautioned you about that.
A         Right.
Q         But if you have a recollection, whether it is vague or specific, we specifically want it.
A         I know that, I do recall, you know, my  

[break in transcript]
A         …specific area.
Q         Are you aware of whether Stan Lee has ever asserted ownership rights with respect to any of the work that he did for Marvel over the years?
A         I am not aware. I really don't know one way or the other.
Q         Did your father ever discuss with you any agreement or understanding that he had with any comic book publisher as to who would own the rights to the work that he did for that publisher?
A         Not that I can recall.
Q         You testified that while living in East Williston you recalled witnessing your father at work in his studio.
A         Uh-huh.
Q         Which I think I've seen referred to as the dungeon.
A         The dungeon, correct.
Q         And you have described or mentioned the character Thor that you saw him working on.
A         Uh-huh.
Q         Do you recall any other specific characters that your father was working on in his studio that you watched him draw?
A         Probably every one of them. I mean, from the course of, I don't know from, maybe when I was eight years old onward, maybe even younger, up until I left for college it was kind of my daily habit. I would come home from school, go downstairs, you know, say hi to my father, see what he was working on, you know. He would kind of tell me what he was drawing, what he was doing. I would go upstairs, get a snack, get my books and I would go back down in the basement to do my homework because I kind of liked being in proximity. And I was doing homework, go into the studio and watch, go back out and do homework. And eventually we would get my homework done and we would watch T.V. together. At least I watched T.V. while he worked.
Q         Now did your father ever discuss with you any deadlines he had in connection with the work that he was doing for Marvel?
A         He would occasionally say that, you know, that he had to get a certain story in by a certain day or something to that effect.
Q         And I think you said that at certain points in time your father often worked into the – worked 16- to 18-hour days.
A         Yes.
Q         If I recall your testimony earlier.
A         Uh-huh.
Q         Do you know why he worked those long hours?
A         He worked those long hours because he was getting paid by the page. The more pages he could do, the more money he earned.
Q         Do you recall whether those hours had anything to do with his effort to meet specific deadlines?
A         Specifically, I couldn't say. Those long hours were consistent over the years. It wasn't like a deadline coming up, I'm going to work long hours.  Those were his consistent hours.
Q         Would you say those were his consistent hours between 1958 and 1963?
A         I would say at least in the period of my good memory, if you wanted to do that, at least in the -- through, say, early sixties through when I went off to college, yes.
Q         Just to set the context for how old you were at the time, in 1958 you would have been 10, correct?
A         10, yes.
Q         And when would you put the point at which your recollection is its best with regard to the events concerning your father's work?
A         Probably from that point to when I went, left for college in September of '66, and my recollection during those years was that he always kept very long work hours. He would start working around lunchtime usually and would work until usually 3:00 or 4:00 in the morning. Sometimes – sometimes he had to start earlier and sometimes he would go later. But always put in a lot of hours, usually six, seven days a week. There wasn't any weekend he didn't work.
Q         Did you have any sense at the time, at any point between the time that you were 10 and you went off to college as to where in the spectrum of comic book artists' compensation your father stood?
A         At that time, no.
Q         Did you later come to have an understanding about where he stood in the spectrum from low to high of compensation during those years?
A         I never had an understanding or I never knew where he stood let's say in relation to a specific artist and I never knew exactly how much he got paid for, you know, per page. I mean, however, obviously I -- they had a house and we all ate every
day so I assume he made enough money.

[break in transcript]

Q         …your father confided work-related issues in the fifties or sixties at any time?
A         No, I'm not aware of any. There might have been but not that I can recall.
Q         You were never present at a conversation where you heard your father discussing work issues with another non-family member; is that correct?
A         Correct. That would be correct.
Q         I want to go through a few specifics with regard to some of the characters that are the subject of the termination notices at issue in this and let me start with Spider-Man.  Do you have any information with regard to the circumstances under which the Spider-Man character was created?
A         I'm not -- I'm not aware of any specific information as to the creation of Spider-Man.
Q         Do you know if your father created the Spider-Man character or co-created the Spider-Man character?
A         I'm aware that he had a hand in the beginnings of the character and in the design of the character. You know, again, as to meetings that might have taken place, I wouldn't have been privy to that.
 Q        When you say you are aware he had a hand in the beginning of the character or the design of the character, what do you mean?
A         In terms of -- well, that would involve creating the character, I would suppose, if you are creating the design of the character.
Q         Do you know whether your father did the illustrations for the first published book in which the Spider-Man character appeared?
A         I believe he did the first cover. I don't recall if he did the first book or part of the first book. But I do know that he did at least the first cover, possibly more.
Q         Did you ever hear your, either of your parents indicate in your presence that your father did not create or co-create Spider-Man?
A         Hear from my parents that he did not.
Q         Yes .
A         Not in my presence.
Q         Did you ever hear your mother correcting people if they suggested that he had co-created or created Spider-Man?
A         Again, I don't recall an instance of that happening.
Q         Have you ever discussed the issue of how Spider-Man was created with your sister Lisa?
A         No, I haven't, that I can recall.
Q         How about with Barbara or Susan?
A         No, I don't recall discussing that with them.
Q         Do you have any specific information with regard to your father's contribution, if any, to the actual creation of the character other than pencilling the cover for the first issue?
A         That's -- he may have done more. I don't have, that I can recall, any other specific information.
Q         Were you ever told by your father that he had been assigned to draw the first Spider-Man and that his style of drawing was ultimately determined by Stan Lee to be too heroic for the character?
MR. TOBEROFF: Compound.
A         If I recall at the time Spider-Man was being created and the script started, I know he did mention that because of all the other strips that he was doing, FF and Thor and so on, that he was too busy to do Spider-Man.
Q         And did he tell you that at the time?
A         I believe it did come up. Again, I couldn't recall a specific date or time or how the

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A         …what I believe in just trying to come up with new characters as he always did, you know, that I might question as to being inaccurate. As to the style of drawing, whether he didn't think my father suited the character and Nick did, that I couldn't attest to. I could just attest to what my father, you know, said at the time which was that he was too busy to do the script based on his other work.
Q         Did your father tell you that the idea for Spider-Man was his?
A         I believe he did say that, and I can't recall his exact words from that time ago, but, you know, I do recall him saying that, you know, they had discussed a new character with the powers of a spider and so on. I remember him because if I remember, I do remember there was a discussion, he was telling me, you know, how he was going to get his powers, might have a radioactive spider or something like that, so I do remember that discussion.
Q         Do you know whether those concepts that you have just described were precipitated by Stan Lee or your father or some other way?
A         At the moment, you know, I don't recall, you know, as to whether, you know, exactly how my father worded that. I know in the future sometimes he would get upset when Spider-Man was brought up, so to speak, you know, that, again, he and others involved basically didn't get any credit.
Q         Of your own firsthand knowledge do you know whether the concept for the Spider-Man character and the basic powers of a Spider-Man character were conceptualized initially by Stan Lee or someone else?
A         Well, I would say my firsthand knowledge, my first guess would be my father just because of his -- just his knowledge of science, his use of science fiction in stories, just in his if you want to call it pattern, for lack of a better word, of how do you get a human to have super powers, you know, without direct intervention from God. Well, the best way to do it was somehow altering DNA which was the big thing at the time with the Cold War going on and so on.
Q         Now is it true that what you just described is your own speculation and, in fact, is not based on your knowledge of how the idea was first floated?
A         Well, I'd say it is based on my knowledge of how my father worked and his knowledge and in my personal discussions with him at the time I certainly felt that way.
Q         Well, leaving aside how you felt, can you testify as a matter of fact that Stan Lee didn't come to your father initially with the idea of the Spider-Man character?
A         Well, I can't -- I can't say what might or might not have been discussed between my father and Stan Lee or Stan Lee and anybody else given that I was a teenager and not privy to those discussions.
MR. FLEISCHER: Would you mark this as Kirby 2.
MR. TOBEROFF: Thank you.
(Neal Kirby Exhibit 2, a document, marked for identification, as of this date.)
Q         Mr. Kirby, I place before you an article marked for identification as Neal Kirby Exhibit 2.
A         Uh-huh.
Q         Have you ever seen the story reflected in this exhibit?
A         I will let you know as soon as I read it.
MR. TOBEROFF: It is hard to tell looking at the exhibit what it is. Can you tell me what this is? Or I should say this looks like a blog entry.
MR. FLEISCHER: Apart from what it appears to be on the face of it, I can't offer you any information about it.

[break in transcript]

Q         Have you ever seen the interview your father appears to have given to The Spirit creator Will Eisner concerning the Spider-Man character?
MR. TOBEROFF: Assumes facts not in evidence.
A         No, I haven't seen that interview.
Q         What information, if any, Mr. Kirby, do you have concerning the circumstances of the creation of the Iron Man character?
A         I'm trying to recall. At this time I don't have any recollection of Iron Man specifically, how that came about.
Q         Do you know what contribution, if any, your father made to the Iron Man character?
A         Again, I believe at the very least, I believe he designed the costume. As to the initial idea and creation of the character, I'm sure at the very least he probably contributed to that.
Q         Is that just shear speculation on your part?
A         Well, I wouldn't call it speculation, I would call it based on -- based on the knowledge of that he pretty much had a hand in everything Marvel did and based on my knowledge of his creativity.
Q         Well, was he the artist assigned to draw the initial issue of Iron Man?
A         That I do not know.
Q         Do you have any basis to contradict Mr. Lee's testimony that the concept for the Iron Man character was his?
A         Do I have any basis for that? I have the basis that I know my father's creativity versus Mr. Lee's creativity and Mr. Lee was an excellent marketer, he was an excellent manager, excellent self-promoter. I honestly don't believe he had any creative ability.
Q         You've never met Mr. Lee, have you?
A         When I was younger, yes, I met him several times.
Q         And is it on the basis of your assessment of him as a teenager that you make that statement that he wasn't creative?
A         It is on that basis. It is on the basis of, you know, having seen and read some of his interviews and so on.
Q         Am I correct that you have no firsthand knowledge about whose idea the Iron Man character was; is that correct?
A         I cannot recall at this moment.
Q         Do you recall being aware that Don Heck  was the artist who drew the first issue of Iron Man?
A         He may have been. You know, I'm not aware of who drew the first issue.
Q         Do you know whether the cover for the Iron Man book that your father did was created before or after the panels for the first publication were created?
A         I don't have any recollection of that.
Q         Are you saying -- when you say you don't have any recollection, do you believe at one point you knew and have forgotten or are you saying that you never knew?
A         No, I'm saying that I don't remember. I may have at one point in the past. Right at this moment I don't recall.
Q         Is there anything of which you are aware that would refresh your recollection about that subject?
A         Well, I don't know. I suppose we can get a Psychology 101 book and get out all the standard memory refreshers. But it is possible something could pop up in the future that might refresh my memory, I don't know.
Q         You are not aware of any document or drawing or anything that currently exists of which you are aware that could refresh your recollection; is that correct?
A         I have not seen anything recently that I would say would, can refresh my memory.
MR. TOBEROFF: Before you go on to a new character, there was a name you mentioned in connection with Exhibit 2 and I just wanted to -- rather than having her go back to the record can you tell me that name.
MR. FLEISCHER: Will Eisner?
MR. TOBEROFF: No, the person who --
MR. FLEISCHER: Al Nickerson?
MR. TOBEROFF: Yeah.
MR. FLEISCHER: It is in the article itself.
THE VIDEOGRAPHER: We have to change tapes in about five minutes.
MR. TOBEROFF: I'm sorry, I didn't see it.
Q         Mr. Kirby, a minute ago you said something to the effect that your father had a hand in everything that Marvel did. During what period of time were you referring?
A         Referring to the time late fifties to early sixties.
Q         And how do you know for a fact that that was the case?
A         Just my, again, my understanding of the way -- the way my father operated and contributed ideas and came up with and created ideas.
Q         Anything else on which you make that statement?
A         And, again, based on the fact I don't know what other creative forces at Marvel existed other than my father at that period of time.
Q         Well, not being aware of what other creative forces existed, how can you make that statement?
MR. TOBEROFF: Argumentative.
A         Again, just my -- just my knowledge and basis of, you know, having been around my father and at the time that the things were, at Marvel things were happening. I don't know another way of wording it .
Q         Well, you are suggesting that there was no other creative force at Marvel other than your father. Do you have a basis for that understanding?
A         Well, in terms of -- I think if you look at Marvel after my father left I'm not sure, and, again, I'm not sure that anything new came out of Marvel after he left the company so you could look at it in that aspect.
Q         Does that as a scientist speak to what happened while your father was there?
MR. TOBEROFF: Argumentative.
A         Well, as a scientist I'm not sure how we apply scientific method to this but, no, it just goes on the basis of what I have known and just my discussions with my father.
Q         Did your father ever tell you that he was the sole creative force at Marvel during his tenure there?
A         I don't recall him using -- again, my father would have been too humble a person to even word anything like that but I know in discussions it just, to me, he certainly seemed that way.
Q         It seemed that way because you were aware of what else was going on at Marvel other than what you saw your father do?
A         Well, yes. We got all the comic books and pretty much knew what was going on at Marvel at the time as children.
Q         And was it your view at the time that Mr. Heck who was a Marvel artist at the time was not a significant creative force at Marvel?
A         I couldn't say one way or the other. I never met Mr. Heck.
Q         Are you aware of the work of Bill Everett?
A         I know his name.
Q         Is it your view that Mr. Everett was not a creative force at Marvel in the fifties and sixties?
A         Again, I never met Mr. Everett and I'm not totally familiar with his work so I wouldn't conjecture on that one way or the other.
Q         So my question is how can you say that your father was effectively the sole creative force at Marvel during the fifties or sixties.
A         Again, that's come just from my discussions with my father and my perception of the situation at the time.
Q         Do you know who the editor and chief at Marvel was during the fifties and sixties?
A         I would guess that would have been Stan Lee.
Q         Do you know if it was part of the work that your father did on Marvel's behalf to review and direct Marvel publications other than the ones that he was working on as an artist?
A         Are you staying it was Stan Lee's job?
Q         No, your father's job.
A         To edit other artists' work? I'm not quite

[break in transcript]

A         He never mentioned to me that he worked off a synopsis and usually he was penciling stories in the margins of the comics. He usually, if I could jump in there, he usually started, he always started in the middle of a story and then he went back to the beginning and then he would finish up and do the end, that was just the way he worked. I would think if you are working off a story or a synopsis that you don't need to do that but --
Q         As you have indicated, though, you don't know what conversations may have occurred between Stan and your father before you saw him working on a drawing, correct?
A         I wouldn't have been privy to those conversations.
Q         Right. And you don't know whether or not your father had been given a synopsis or a script before he began working on a particular story; is that correct?
MR. TOBEROFF: Asked and answered.
A         Yes. I never saw a script or synopsis by his drawing board.
Q         What information, if any, do you have concerning the creation of The Fantastic Four?
A         In discussions with my father The Fantastic Four basically was a derivative of the, from what he told me, basically he came up with the idea just as a derivative from the Challengers of the Unknown that he had done several years earlier.
Q         So your father told you that The Fantastic Four was his idea?
A         Yes.
Q         Did your father ever tell you about any discussions that he had with Stan Lee concerning The Fantastic Four?
A         Any specific discussions, not that I can recall.
Q         Did your father ever discuss with you any synopsis that Stan Lee had given to your father?
A         No, he never discussed that with me and as I said previously, I never saw him work on a synopsis.
(Neal Kirby Exhibit 3, a document, Bates Nos. MARVEL0014587 to MARVEL0014588, marked for identification, as of this date.)
MR. FLEISCHER: Would you mark that as three, please.
MR. TOBEROFF: I just want to clarify, any document that you produce in this action will have Bates stamps and if it is a document like

[break in transcript]

Q         …work on The Fantastic Four?
A         Again, I can only say what I said before. I had never seen him work from a synopsis, he never had a synopsis or a story on his drawing table or anywhere near his drawing table that I could see when he was working, and in none of our discussions did he ever mention to me working off of any kind of synopsis by Stan Lee.
Q         Apart from those observations you made as a young man or teenager, do you have any reason to doubt the veracity of Stan Lee's testimony to the
effect that this is a synopsis he created and gave to your father for the purposes of assisting his work as the artist on The Fantastic Four?
A         Do I have reason to disbelieve him?
Q         Yes.
A         Yes, I do have reason to disbelieve him.
Q         And what is the basis for your disbelief?
A         The basis for my disbelieve is that I believe Stan Lee, and I'm trying not to be
mean-spirited here at all or anything like that, who was brought up to be respected by my elders and at my age it is nice to call someone else an elder, but I believe Stan Lee is -- he is basically a self promoter so I believe, you know, I believe he is narcissistic and I believe he is a self-promoter and I believe he will do whatever needs to be done to carry on the myth that he was the creator of everything at Marvel.
Q         Did your father ever tell you that he created the names of The Fantastic Four characters?
A         They came up in discussion, yes, that my father was joining them, this is so is so, this is so and so.
Q         Do you know if those were the names he gave to the characters or the names that Stan Lee had given to the characters or someone else had given to the characters?
MR. TOBEROFF: Compound.
A         It was my understanding from our discussion that he had given the names to the characters.
Q         He had told you that he had given the names to The Fantastic Four characters?
A         I believe so, yes.
Q         Did he tell you that when the initial issue of Fantastic Four was on the drawing board or some other time?
A         If I recall, it was -- it was -- I don't recall honestly if it was while he was still drawing it or if it was before the actual published book

[break in transcript]

MR. TOBEROFF: He is not finished.
Q         Did I interrupt you?
A         That would be fine, yes.
Q         What specific characters did your father tell you that he had named?
A         Specifically I could say The Fantastic Four, I suppose you could say all the characters in Thor although obviously they had been previously created about a thousand years ago, Sergeant Fury.  That's what I could think of right now. There may have been more but that's what my memory is coming up with at the moment.
Q         I think you indicated that Sergeant Fury was a book that your father had worked on prior to the resurrection of the title in the sixties; is that correct?
A         Well, he had done a comic book in the 1950s which, if I remember correctly, was called Combat.  Whether the characters' names in that comic book were the same as the characters in Sergeant Fury, I don't recall that at the moment.
Q         What specific names did your father tell you that he had given to the various characters of Combat or the later version which I think you said was called Sergeant or Nick Fury and the Howling Commandos?
A         Right. Well --
MR. TOBEROFF: I don't think he said Nick Fury, Sergeant Fury.
MR. FLEISCHER: The witness is perfectly capable of --
MR. TOBEROFF: You are misstating his testimony.
MR. FLEISCHER: It is not your role --
MR. TOBEROFF: I disagree.
MR. FLEISCHER: -- to interject what you think is a misstatement of the testimony.
MR. TOBEROFF: I disagree.
A         Well, I know that he did a Nick Fury. I don't recall the names of the other characters in that little ensemble group at the moment. The Combat comic book was not a specific group, it was basically war stories.
Q         So what was the relationship, if any, between the Combat series and the Sergeant Fury series other than the fact that they both involve war stories?
A         I think it was just a progression going back to the 1940s where he did Boy Commandos and that was an ensemble group if you want to use that word.
And then the next opportunity for a war book being the Combat book which was just really a compilation of stories.
Q         Now do you -- and the basis for your statement that your father created the name Sergeant Fury or Nick Fury, whichever is appropriate –
A         Sergeant Nick Fury.
Q         Sergeant Nick Fury is what?
A         That he told me.
Q         Any other information concerning the name of that character that you have?
A         Not that I can recall.
Q         And am I correct that you have no knowledge with regard to conversations that occurred between your father and Stan Lee concerning Sergeant Nick Fury prior to the introduction of that character? Is that correct?
A         It is correct in saying that my father didn't -- in my discussions with my father that did not come up.
Q         And you weren't present at any conversations as you have indicated between your father and Stan Lee.
A         That would be correct.
Q         Do you recall who was the assigned writer to the Thor comic book at the time of its first issue?
A         No, I don't recall that.
Q         Do you know what contribution the assigned writer of Thor made to that character?
A         I don't recall right now. No, I don't recall what that might have been.
Q         Do you recall what discussions took place between Stan Lee and your father prior to your father beginning work on the Thor comic book?
A         I have no knowledge of what their discussions might have been. Same thing. My discussions with my father were about basically creating, you know, a book around Norse mythology.
Q         Do you know if Stan Lee asked your father to create a book based on Norse mythology?
A         I have no recollection or knowledge of that.
Q         Was it your understanding your father would begin working on a book without any discussion with Stan before doing so?
A         I would say it was my understanding if my father had an idea for a book or a character to create he could bring it up and get a yea or nay.
Q         Was it your understanding that he would begin working; that is, drawing panels prior to getting a go ahead from Marvel or Stan Lee?
A         I don't believe -- that is not my understanding. My father didn't do work on spec, he was getting paid by the page.
Q         Let's talk about Ant-Man for a minute.
A         If I could just interject here, if he was to do something on spec like that and do a whole 20-page story which would take him hours and hours and hours to do and bring that into New York and oh, sorry, you know, idea but not now let's wait a couple of years, he doesn't get paid for it so that wouldn't have been the way my father would operate.
Q         Okay. What information, if any, do you have about the circumstances surrounding the creation of Ant-Man?
A         I really don't recall that. Ant-Man would have been when I was really young.
Q         You read, as you said, Mr. Lee's deposition testimony, correct?
A         Uh-huh.
Q         And he described the circumstances of his idea about Ant-Man to your father. Do you remember reading that testimony?
A         Actually, no, I don't. I did read through it over the weekend I promise but, no, I don't recall that part of the deposition.
Q         Do you have any information to suggest that the idea and concept of Ant-Man was something other than an idea of Stan's assigned by your father to work on?
A         Again, I would have no information to that and I would have no recollection of it.
Q         What information, if any, do you have concerning the circumstances of the creation of the X-Men comic book and character?
A         I believe the X-Men my father came up with and in doing something a little bit different rather than the bitten by the atomic bug kind of thing, actually having mutants born in that way and what their kind of -- I think he wanted to tell a story
there that you had people that were different and subjected to persecution. That was always – that was always my take on it.
Q         Apart from your take which I take it is inferential, what firsthand knowledge do you have about the circumstances of the creation of X-Men?
A         Well, my firsthand knowledge again comes from standing around the drawing board and watching him draw the X-Man and basically asking him what's going on and him explaining the characters. Usually he would say something to the effect of this is a new story I've come up with, what do you think of this and here is where I'm going with this. That's how our discussions would go.
Q         Specifically with regard to the X-Men did your father say the concept and basic story of the X-Men universe was solely his creation?
A         I do recall him saying again along those same lines this is the new characters and story, you know, I've come up with.
Q         You read Mr. Lee's testimony concerning the creation of X-Men, correct?
A         Yes, I did.
Q         And Mr. Lee testified under oath that the concept was his and that he assigned the book to your father, correct?
A         Uh-huh.
Q         Do you have any reason to believe that that testimony was not correct?
A         Again, as I stated before, my reasons for not believing Mr. Lee is that, you know, I have no reason not to disbelieve my father and pretty much every reason to disbelieve Mr. Lee. I just don't believe in his deposition he was telling the truth or maybe he just didn't recall the truth properly. I will try to be somewhat respectful.
Q         Are there -- apart from your own recollections of what your father told you that you have testified about with respect to X-Men, are you aware of any evidence to corroborate your belief that the X-Men story was a creation solely of your
father's?
A         I am not aware if you are referring to like some kind of written evidence or -- I'm not quite sure exactly what you are referring to.
Q         Any -- any evidence, whether it is written or something you observed.
A         Well, I observed him drawing X-Men, Number 1, and talking -- and talking to the -- talking about the story with me so, again, that's where it is coming from. I have no knowledge; I cannot recall anything about there being any other type of written evidence that might exist.
Q         Well, if your father had been assigned the story by Mr. Lee who had suggest an outline for the story or a synopsis, whether verbally or in writing, you would have still observed your father drawing the first issue of X-Men, correct?
MR. TOBEROFF: Argumentative.

[break in transcript]

A         ...Galactus, he is going to be a planet eater, planet destroyer, went into the concept of the Silver Surfer of being his scout or herald, as he called it.
Q         Did he indicate in front of anyone else that he had created the names Galactus and the Silver Surfer?
A         He might have.
Q         Do you have a recollection of him having done so?
A         I don't recall him saying that in front of me and someone else.
Q         Are you aware of your father ever giving an interview in which he claimed credit for naming the Silver Surfer?
A         He may have. Again, I have no recollection of one in specific.
Q         Are you familiar with a character called Rawhide Kid?
A         Yes, I am.
Q         And do you have any information concerning the circumstances under which that character was created?
A         Rawhide Kid I don't. I don't recall. I believe the Rawhide Kid was one of the first things that he did when he went -- at that time with Marvel.

[break in transcript]

MR. TOBEROFF: You can answer that as long as your answer does not implicate the substance of conversations with me.
A         My role would have been in helping to identify the characters that I was aware of.
Q         Rawhide Kid is a character that is the subject of the notice, correct?
A         I believe recall all 45 them off the top of my head.
Q         What information did you have about the creation of Rawhide Kid that was pertinent to the notices?
A         I don't recall at this time.
Q         The notices pertain to characters that appeared in publications that were made between 1958 and 1963, correct?
A         I believe so.
Q         And can you tell me what characters which are the subject of those notices you and your sisters contend were created solely by your father as opposed to co-creations?
A         As opposed to co-creations.
MR. TOBEROFF: Calls for a legal conclusion.
A         You know, again, I could only go on the basis of my discussions with my father. If you are asking me to make determinations of copyright law as to who owns what creation, I certainly don't have the game stance for that kind of question.
Q         No, my question is very specific. My question is what specific characters which are the subject of those notices do you and your sisters contend were created solely by your father.
A         Well, I cannot speak for my sisters. I can speak to myself from my knowledge of discussion with my father and this would be The Fantastic Four and, of course, Galactus and, of course, Silver Surfer, Nick Fury, Thor. That's what I can recall right now.
Q         Do you contend that Spider-Man was the sole creation of your father?
A         I would contend that my father had a hand in the creation.
Q         So the answer to my question is you don't contend that Spider-Man was the sole creation of your father?
A         Well, I don't have -- it would be my recollection at the moment that he had at the very least a very large part in the creation.
Q         And do you have any information as to who had other parts in the creation?
A         No, I don't.
Q         Do you have any information concerning the circumstances of the creation of The Incredible Hulk?
A         That honestly I don't recall. I recall my father again working on the first issue and obviously subsequent issues and going over the storyline with me about how he becomes the Hulk and so on, Bruce Banner and all that. I cannot recall right now discussions about creation, creation of that character.
Q         Are you aware of any documents that would assist you in refreshing your recollection?
A         No, I'm not aware of anything that I can think of.
Q         Do you contend that The Incredible Hulk was the sole creation of your father?
A         Again, my personal knowledge is after it had been released he had a major part in the creation of it.
Q         Would it be correct to say you don't know one way or the other as to whether there were others who made a significant contribution to The Incredible Hulk?
A         I would say my personal knowledge is there may have been. I don't know how significant it might have been.
Q         Did you review Stan Lee's testimony concerning the concept for The Incredible Hulk character?
A         I did read it. I don't recall all of it.
Q         Do you have any reason to believe that the idea for the character was not a creation of Stan Lee's?
A         I could only say, as I said before, according to Stan Lee's deposition he created everything solely. Again, trying to be somewhat respectful, you know, but to say that would seem highly unlikely. You know, honestly I just think Mr. Lee is again propping up his own ego with whatever he sees fit at this point. What's the expression; he has the benefit of being the last man standing, so to speak.
Q         Do you feel that Mr. Lee's testimony in some way diminished the contribution that your father made to the various characters that he worked on at Marvel?
A         Diminished I think is -- I think diminished is the least of it. I think Stan Lee is kind of rewriting history but --
Q         You know, with respect to the creation of a denying that allegation.
A         The factual basis is like we've discussed over the past several hours; that it is our family's contention that my father's contribution was much more than just here is an idea, go draw it.
Q         And I understand what you are contending.   I'm asking what the factual basis for that is given the testimony that you have already given that you don't know what preceded your father's work on the drawings that he did for Marvel.
MR. TOBEROFF: Argumentative, misstates prior testimony, asked and answered as to "factual basis."
MR. FLEISCHER: This is the last deposition, Marc, that you will get away with this at.
MR. TOBEROFF: Ask a proper question.
A         My factual basis is like I have stated several times previously and going on the basis of what my father told me during our discussions.
Q         You have indicated very clearly that your father never did work for Marvel on spec, correct?
A         In terms of -- maybe I need to qualify that, okay? In terms of would my father have pitched an idea, if you don't mind my using the word "pitch," you know, met with somebody else saying gee, I have this good idea for a character, you know, would you like to go for it, that he would have done it, you know. Definitely I would consider that coming up with an idea and speculation. There's no -- there's no guarantee if you are going to come up with an idea that they're going to say yea, nay or otherwise. I'm sorry.
MR. TOBEROFF: Feel free to finish your answer.
A         In terms of would he, maybe this was a little confusing before, what I was trying to get at.  In terms of would he sit down and spend three days, four days, however long, actually doing -- I don't recall how long comic books were at the time, I think they were 22 pages, something like that, would he sit down and do a 22-page comic book and then bring that in to -- bring that in to Stan Lee or anyone else and go, "Would you like to buy this," probably not. Because if they said no he is out five days worth of work and all those pages. So in regards to just to clarify my statement as to, you know, as to on spec.
Q         So if I understand what you are saying, you believe that he never sat down to draw a story until being given an okay by someone on the editorial staff at Marvel?
A         I'm saying that he wouldn't draw, I don't believe that he would draw a brand new out-of-his  head idea story, actual set it pencil to paper, without knowing in advance that it would be purchased.
Q         And do you have any information one way or the other as to whether any of the stories that he worked on as an artist for Marvel were the result of the collaboration on the story idea between your father and Stan Lee?
A         I'm sorry, could you just repeat the question, please?
Q         Sure.
(Record read)
A         I would have no information that I can think of right now for that.
Q         Do you believe that Marvel had the right to exercise creative control with respect to the contributions your father submitted to Marvel?
MR. TOBEROFF: Calls for a legal conclusion.
A         It was my understanding that they were purchasing their artwork. As to what legal rights that entitled them to, I don't have the knowledge to answer that question.
Q         Well, you have indicated that you think that there were pages that your father had brought to Marvel that were rejected.
A         Correct.
Q         And I think your testimony was that you don't recall whether there were instances in which your father brought artwork to Marvel and corrections were requested but would you agree that that could have happened?
A         That corrections --
MR. TOBEROFF: Calls for speculation.
Q         That your father brought in work and then Marvel may have asked that corrections be made or changes be made.
A         The only thing that I can say, I don't know what Marvel may or may not do or what they may or may not have requested my father to do. I do know that he never mentioned to me in any of our discussions look, I'm making a change on a page because so and so asked me to do so.
Q         Given your knowledge of the industry as you've suggested you have earlier, isn't it commonplace for art directors and editors to make changes or request changes by artists and writers in connection with the stories?
A         My limited knowledge of the industry is, you know, that might take place.
Might I add something that -- oh, I'm sorry.
Q         There's no pending question. In Paragraph 10, I will read the first
sentence.  "Any contributions made by Kirby to the Works were done at the expense of the Marvel Entities."  And that allegation, as well as the second sentence that is part of Paragraph 10, is denied.
A         Uh-huh.
Q         What is the factual basis for the denial that the contributions made by your father to the comic books he worked on for Marvel were made at Marvel's expense?
MR. TOBEROFF: Calls for a legal conclusion.
A         To the best of my knowledge, as we discussed previously, my parents paid for all their own supplies, obviously his studio was in the house, that was at their expense, and to the best of my knowledge they were not reimbursed for those expenses.
Q         I thought you testified earlier that you had no knowledge one way or the other as to whether or not they were reimbursed.
A         I can't recall exactly what I said but, however, there would be -- if my mother or if my parents were getting reimbursed for their expenses there would have been no reason for them to complain about them or to even bring that up since it would be
a net wash.
Q         Do you have an understanding of the earliest date on which any of the 45 termination notices becomes effective?
A         If I recall right, it is somewhere around 2014, I believe, somewhere in that area. I don't recall specifically.
Q         I think you are correct.
A         I don't recall which character.
Q         And in respect to the characters which are the subject of the termination notices, are you aware of any limitations on Marvel's rights to exploit the copyrights associated with those characters prior to the effective date of the termination notices?
A         I can't say that -- you know, I can't say

[break in transcript]

Q         …difference between a trademark and a copyright?
A         I really don't understand the difference between the two. It is only conjecture.
Q         Are you aware of any attempts by you or your siblings to exploit any intellectual property rights with respect to any of the characters or stories your father created for Marvel?
A         I am not aware of any.
Q         Have you or your sisters ever attempted to exploit any intellectual property rights with respect to characters or stories your father created for other publishers?
A         I can only speak for myself. I haven't. I have no idea about my sisters.
Q         Are you aware of any attempts by Lisa or any of your other sisters to exploit intellectual property rights with respect to characters or stories created by your father for publishers other than Marvel?
A         I don't -- I'm not aware of anything for other publishers, no.
Q         Are you aware of any attempts on their part to exploit rights with respect to characters or stories published by Marvel?
A         No, I'm not aware of anything along those

[break in transcript]

A         …to be worded, that's not my area of expertise.
Q         You were willing to suggest that the credit that was given to your father on the Hulk film was inappropriate in some fashion.
A         Yes. Because I would have preferred the word "created" in it as I mentioned before.
Q         Are you aware that Wolverine's first appearance was in 1974 well after your father had stopped work on X-Men?
MR. TOBEROFF: Assumes facts not in evidence.
A         No, I was not aware of that. No. I don't recall that.
Q         Did you do any research to determine whether any of the characters that were the subject of your notices were in fact created by your father or co-created by him?
A         I did some.
Q         What research did you do?
A         Oh, just some with books that I have or a little talking with my sister and so on.
Q         Which sister?
A         Lisa.
Q         And what books?
A         Oh, just the coffee table history of comic kind of books.
Q         Can you be more specific? Are these books that you have in your home?
A         Yes, they are.
Q         And do you still have them in your home?
A         I do, yes.
Q         And do you recall specifically what titles and what authors?
A         No, I can't at the moment. There's one book by Mark Evanier which I guess is the newest book. I think it is just titled "Jack Kirby, King of Comics," I believe.
Q         Did you ever inquire of Mr. Evanier as to whether he had any direct knowledge of the circumstances of the creation of the characters that your father drew for Marvel?
A         No, I haven't had any conversations with Mark Evanier.
Q         Do you know if Mark Evanier was privy to any of the meetings or discussions at Marvel between your father and Stan Lee?
A         Mark Evanier, as far as I know, would not have been around at that time.
Q         Do you know what the basis for Mr. Evanier's statements in the book that you relied on

[break in transcript]
Q         …litigation was commenced?
A         No.  I'm mean, I'm sorry, yes, you are correct in that.
Q         Are you aware of any significance these pages have to the issue of the circumstances of the creation of any of the characters depicted in these pages?
A         That I honestly cannot say that I'm aware of that.
Q         Now a lot of the pages have either captions or other handwritten notations other than the ones that appear to be actually printed. Do you see that?
A         Yes, I do.
Q         Let's take an example, K 10. Can you identify the handwriting at the foot of the pages saying "Hunters say"?
A         That would appear to be my father's.
Q         And do you know what that notation was intended to represent or be?
A         My father used to add comments in the margins. If sometimes he did not write dialogue directly, from what I understand, he would add those comments to guide the person adding the dialogue in the balloons.
Q         And do you know if the comments that your father would make in the margins were ever used verbatim in the final version of the story?
A         That I would really -- I don't know, I couldn't tell you.
Q         Was it your understanding that those marginal notations that your father put on the drawings were subject to the inclusion or not inclusion at the discretion of the editor or art director?
A         I couldn't say at the time if I had any knowledge of that, if that was going it happen or not. I do know that, you know, that my father was adding to guide the story and sometimes he would do the work because I know he mentioned the letterer will go over these at a later date, something to that effect.
Q         The notations that you are talking about were not notations that were intended to be going over by the letterer, were they?
A         Not the ones in the margins, no.
Q         Was it your father's custom, do you know, to actually put in captions or balloons on the drawings themselves?
A         I can't say if he did it every time. I

[break in transcript]

Q         …second page of the exhibit as that of your father's?
A         It does appear to be his signature.
MR. FLEISCHER: I have no further questions.
MR. TOBEROFF: A couple questions.
EXAMINATION BY MR. TOBEROFF:
Q         Just look at the camera.
A         I'm sorry. I forgot about the camera.
MR. FLEISCHER: Do you want to switch places?
A         No, he is in my good ear so that's fine.
MR. TOBEROFF: Do you mind?
Q         You had testified, and I'm not purporting to quote you exactly, but you testified to the effect that when -- on the issue of your father working on spec that your father, you characterize your father coming up with an idea on his own and then pitching it to Marvel as being on spec. Once Marvel -- in the instances where Marvel said that it liked the idea and proceeded to do work, did you consider that work to be on spec or not on spec?
MR. FLEISCHER: Objection.
A         Well, in the report, in respect to even if they liked the idea and you would go back and let's say pencil, come up with either character concepts or full pages, I believe he had the understanding that they still might not purchase that work, he would still be out the time.
Q         And you had given an example of I believe of a Thor cover that was given to a friend of yours as a Chanukah present as an example of an instance where he had done the work and they did not pay him for the work.
A         Correct.
Q         Can you think of any other examples?
A         Yes, I can. I don't know if I mentioned earlier, I did recall it, there was one instance, I do remember coming home from school and there being some, I believe there were a couple of Thor pages on the kitchen table. That's normally where family
things happened, on the kitchen table. I just remember my father being upset that -- he was getting ready to go back downstairs into the dungeon but that he had gone into the city that day and Marvel didn't like those pages so he was upset that he would have to again redo them at his time and expense. I don't know if he use those words exactly, but that was the gist of that.
Q         Was it your understanding that he was paid for those drawings on the kitchen table or not paid?
A         It was my understanding that he wasn't paid. If they didn't like the work they wouldn't pay him.
Q         Are there any other examples that you recall where he had done work and was not paid for his work?
A         Yes. I recall another time after we went into, one time I went into the city with him and afterwards we went to -- I believe we went to, we were going to go to the Central Park Zoo and he sat down on a bench and I could tell, obviously a kid can tell when their parent is upset and he just – he always carried this big black leather portfolio, that's what he used to take work into the city, and, you know, just kind of looking through that, looking at the pages, and it was kind of the same thing. He
just said that he was upset. He had some pages. I think they were Fantastic Four. I don't know how many pages or what issue or any of the details but it was kind of the same situation that he had those pages that he had brought in but he needed to redo new pages. So, again, same thing. That he was upset that he would have to take the time to do it and so on and not be paid for it.
MR. TOBEROFF: I have no further questions.
FURTHER EXAMINATION BY MR. FLEISCHER:
Q         Did something happen between --
MR. TOBEROFF: Just a second. I would like a time count on the time.
THE VIDEOGRAPHER: Right now we're at six hours and 51 minutes.
MR. TOBEROFF: You've got nine minutes not counting my time.
Q         Did anything happen to refresh your recollection about the zoo incident and the Thor incident that you just described between the time you testified earlier today about those questions and your testimony a minute ago?
A         I wouldn't say anything in particular happened but I just happened to think of them.
Q         Did Mr. Toberoff do anything to refresh your recollection with regard to those issues?
A         No, on the contrary. I told Mr. Toberoff that I had thought of a couple more instances.
Q         And with respect to the Thor pages, do you know if your father made any changes on those pages

3 comments:

Anonymous said...

What we are seeing is a man who was raised with hearing criticism for Stan Lee on a constant basis, an he has never had the need or urge to do further research. Why would he, I suppose.. he has accepted what his parents and his enviroment told him. I believe Jack Kirby was very stressed, very underappreciated, but very pressured by Roz and his family. I am not saying Mrs. Kirby was wrong- but Stan became the focal point of their attack. Daniel you should read Jim Shooter's blog- he had a recent post about 1986 or 1987 and Kirby saying one thing to him then being instigated by Gary Groth and then in front of Roz to say other things. It's a sad story- and I am not pro Stan or something- but Kirby's son is WRONG WRONG WRONG. He has a vauge idea of everything and its surprising how little he knows. What about Ditko, Ayers, Sinnott, Romita Sr.? They're "still standing".

borky said...

Daniel, Kirby's son's almost certainly correct about Thor being Kirby's invention, because if you look at Kirby's work when he was given a free hand at DC everything about it is saturated in mythology, particularly the Gotterdammerung/Ragnarok world view of the Norsemen.

That's why I'm intrigued about the dispute in the trial transcripts over Kirby being somehow involved in the creation of Spiderman.

Being more familiar with the dispute over Lee and Ditko's roles, my first reaction was this was tosh - until the idea of an orphan being adopted by an elderly couple only to then gain insect-like superpowers brought to mind The Fly, drawn, of course, by Jack Kirby.

That set off in my mind all these little quotes were Stan Lee explained how Spiderman came to him as a result of watching - Robert the Bruce-style - a spider climbing on the wall, how Lee'd given Kirby first shot at Spiderman but'd felt his style was wrong for the character, so'd given it to Ditko.

Then of course there was the story how Lee'd dreamed up Thor as an antidote to his readership's overfamiliarity with Greek mythology, but'd given script writing duties to his brother.

And the thing that'd always bugged me about those stories was they always reversed what I'd understood as the Marvel Way, i.e., artists draw the stories, writers add the words.

The thing is, all you have to look at is the direction Ditko's work subsequently went, his concern with the indistinguishability of genius from insanity, good from evil, his obsession with political, philosophical, & psychological ideas generally, ditto Kirby's DC work, to realise how important Stan Lee's contribution to the likes of Spiderman and Thor was.

Whereas Ditko and Kirby dedicated themselves to raising their readership towards lofty ideas they personally found stimulating, (receiving poor sales as a result), Stan's genius was to bring those same concerns down to the human level.

The point of arrogant Spiderman is nerdy momma's boy Peter Parker; magnificent Thor: timid cripple Don Blake; the mindless Hulk: visionary scientist Bruce Banner; humble, world saving Doctor Strange: selfish playboy super surgeon turned disabled alcoholic, Stephen Strange.

And all derived in their own way from literary eclectic Lee's seemingly favourite influence, Dr Jekyll & Mr Hyde.

Stan's neglectfulness of his artists' contributions to his own work doesn't detract from his literary genius, but does make it ironic the man so many felt stiffed them was supremely stiffed by Marvel himself.

Daniel Best said...

@Anon - I've read Shooter's blog and it does make for...well...interesting reading indeed.

As for the comments by Neal Kirby - he's fully entitled to his views and opinions, and I doubt highly if anyone could change his mind on how he sees Stan Lee and Marvel. I doubt he'd agree with Shooter either. And you have to remember also that Shooter is writing history as he saw it, which is vastly different to how Neal Kirby saw things.