Thursday, June 09, 2011

Joanne Siegel And Laura Siegel Larson, Plaintiffs, v. Warner Bros. Entertainment Inc.; Time Warner Inc.; & DC Comics: Mark Evanier's Testimony

The following text, which explains the following testimony, is taken from the order in the Joanne Siegel And Laura Siegel Larson, Plaintiffs, v. Warner Bros. Entertainment Inc.; Time Warner Inc.; & DC Comics case: "In March, 2008, this Court held that plaintiffs, the widow, and the daughter of Jerome Siegel, the co-creator of the iconic comic book superhero Superman, had successfully terminated the 1938 grant Jerome Siegel and his creative partner Joseph Shuster had conveyed to DC Comics’ predecessor-in-interest, Detective Comics, to the copyright in the Superman material published in the comic book Action Comics No.1. Left unanswered for trial was, inter alia, the question of “whether the license fees paid” by Warner Bros Entertainment Inc. (“Warner Bros”) to its corporate sibling, DC Comics, for the audiovisual rights to the Superman copyright pursuant to various licensing agreements entered into during the 1999 to 2002 period “represents the fair market value therefor, or whether the license for the works between the related entities was a ‘sweetheart deal.’

"To answer that question, the Court conducted a ten-day bench trial."

This ten day trial wasn't a successful one for the Siegels and Marc Toberoff as the judge found in favour in Warner bros, deciding that, "...the Court finds for the remaining defendants because there is insufficient evidence that the Superman film agreement between DC Comics and Warner Bros., whether judged by its direct economic terms or its indirect ones, was consummated at below its fair market value."  The news didn't get any better for the Siegels/Toberoff as the court also ruled that, "...the non-exclusive rights conveyed by DC Comics to Warner Bros. in the Smallville television agreement was not for below fair market value and, therefore, finds for the remaining defendants on this point as well."  All of that means that DC sold the rights to Superman for movies and television for a fair market price.

As part of the ten day trial several witnesses were called, including Paul Levitz and Mark Evanier.  What follows is fairly long, but it is the complete testimony of Mark Evanier, including his cross-examination, on the stand.  It is interesting, to say the least, especially as Mark is sure that he knows why people stopped buying Superman comics in the '60s and '70s.  What is also fascinating when you think about it is the sheer amount of Superman related motion pictures and television shows that have been seen since the 1940s. Frankly it's fairly impressive, and it'd be hard to argue against Superman being the most filmed superhero - which makes Marc Toberoff's, who moonlights as a movie producer, aggressive stance towards Warner Bros clear - he wants the rights to produce the next Superman movie, and beyond.  There's gold in them thar tights!

And just to be clear, what the Siegels, the Shusters and Toberoff own is the following: they are now co-owners with DC Comics/Warner Bros of the original Superman copyrights in Action Comics, No. 1, as well as Action Comics, No. 4, Superman, No. 1 (pages 3-6), and the first two weeks of the Superman newspaper strips.  However in October 2013, unless something very radical happens, the Siegels, the Shusters and Marc Toberoff will own the entire copyright to the character of Superman, with Toberoff owning the majority share.  Make of that what you will.

Now it's over to Mark Evanier, who said his bit on April 28, 2009.  In the next few days I'll post what Paul Levitz had to say.

THE CLERK: Do you solemnly swear that the testimony you are about to give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
THE CLERK: Please state your full name and spell your last name for the record.
THE WITNESS: My name is Mark Evanier. Evanier is spelled E-v-a-n-i-e-r.
MR. PERKINS: Your Honor, the defendants interpose an objection to Mr. Evanier. As Your Honor will recall, we moved to exclude Mr. Evanier because the description of his testimony that was given was not within the parameters of his actual expert report. Your Honor ruled that he would take that up at the trial.
THE COURT: Why don't we do this. Why don't we go ahead and begin with laying the foundation. I'll give you an opportunity to voir dire, and I'll take up the objection after I've had a chance to hear this play out.
That's kind of what I meant by that ruling, was let's -- let me hear some of the testimony. I'll give you both a chance to conduct voir dire, and we'll see where we're at.
MR. PERKINS: If he makes statements that are not within the parameters of his --
THE COURT: Don't worry, Counsel. We don't have a jury. I appreciate that.
MR. PERKINS: Okay.
MR. TOBEROFF: And Your Honor, just to note, we have a pocket brief on this subject, anticipating defendants' objection.
THE COURT: Let's go ahead and start with some examination on both sides, and we'll go from there.
DIRECT EXAMINATION
BY MR. TOBEROFF:
Q: Mr. Evanier, could you please tell us what you do for a living.
A: I'm a writer. I also sometimes produce TV shows. I also voice direct cartoon shows.
Q: And how long have you been involved in the comic book industry?
A: Since 1969.
Q: Have you worked for any notable comic book creators?
A: For creators? In 1969, I was hired by a man named Jack Kirby, who is considered one of the preeminent comic book creators of all time. I was his assistant for awhile.
Q: What comics, if any, did Mr. Kirby help create?
A: Mr. Kirby was the creator or co-creator of Captain America, The Fantastic Four, The Hulk, Ironman, The Avengers, Thor, Challengers of the Unknown, The New Gods, Kamandi; it's quite a long list.
Q: Have you worked for any companies in the comic book industry?
A: I've worked for most companies in the comic book industry. I've worked for DC Comics; I've worked for Marvel Comics; I've worked for Dark Horse Comics; Pacific Comics; Western Publishing; Ed Rice Burroughs Company; Hanna-Barbera; Archie; Eclipse. There's probably others. Image.
Q: That's fine.
When did you first work for DC Comics?
A: 1970.
Q: What work did you do for DC Comics?
A: I was assisting Mr. Kirby. He was doing a series of books with them; Jimmy Olson, The New Gods, The Forever People, Mister Miracle.
THE COURT: Excuse me. Will you slow down. She is trying to write down everything.
THE WITNESS: I'm sorry. Jimmy Olson, The New Gods, The Forever People, Mister Miracle.
BY MR. TOBEROFF :
Q: And how long did you work for DC?
A: Well, I had worked for DC intermittently since that time. I still do work for them occasionally.
Q: What was your position at Hanna-Barbera?
A: I started as a writer there; Then I was made the editor of the comic book department.
Q: Any other comic book experience that you can think of?
A: Lots of it. Actually, the same time I was working for Mr. Kirby -- in 1969, I began working for Marvel running part of their fan operation, editing their official fan magazine. Subsequently, I worked for just about every company off and on. I don't know what else to tell you.
Q: Did you work for the Edgar Rice Burroughs estate?
A: I was the editor of the Edgar Rice Burroughs' comic book department in the 1970s.
Q: Have you ever worked in animation?
A: I've worked extensively in animation, yes.
Q: What animated shows have you worked on?
A: Well, I was the producer and writer of the show, Garfield and Friends for eight years on CBS. I'm currently producing and writing a new Garfield series. For Hanna-Barbera, I wrote Scooby-Doo. I wrote Richie Rich. I wrote Yogi Bear. I wrote a lot of the ABC Weekend Specials. I wrote Plastic Man, Thundarr the Barbarian, that was first called Ruby-Spears. I did the show Dungeons & Dragons for Marvel Productions. I did the show, The Wuzzles for Disney. I did a show called Mother Goose and Grimm for CBS.
Q: Have you ever worked on any animated shows for DC Comics?
A: Well, Plastic Man was based on a DC property. And then I also wrote Superman: The Animated Series for Warner Animation.
Q: Did you participate in writing the pilot for any animated shows?
A: I wrote the pilot for Dungeons & Dragons; I wrote the pilot for The Wuzzles; I wrote the pilot for The Littles on ABC; I wrote the pilot for Garfield on CBS; I wrote the pilot for Mother Goose and Grimm. I've written a few pilots. Those are all shows that have sold. I've written a dozen pilots that haven't sold.
Q: Have you ever worked in live-action television?
A: Yes, I have.
Q: In what capacity?
A: Writer, story editor, head writer. I was the -- I wrote for Welcome Back, Kotter; I wrote Love Boat; I wrote That's Incredible!; I wrote one episode of Cheers; I wrote a lot of variety specials. I wrote one of the unsuccessful Bob Newhart Show, the one where he played a comic book artist. I wrote an episode of the Superboy show, the one they did in 1988.
Q: Have you ever been nominated for any awards for your work in television?
A: I've been nominated three times for Emmy awards, yes.
Q: For which shows?
A: Two for Garfield and Friends, and one for Pryor's Place, which was a -- and that was another live-action show; that was a show starting Richard Pryor on Saturday morning.
Q: Have you ever received any awards for your work in animation?
A: Yes. The Writers Guild of America Animation Writers Caucus gave me the Lifetime Achievement Award a few years ago.
Q: Do you teach any courses based on your experience?
A: I teach comedy writing at USC from time to time, yes.
Q: Do you participate in any conventions related to the comic book industry?
A: Many of them. I've been attending the comic convention in San Diego for 40 years now. Actually, this year will be the 40th year. It will be the 40th convention and the 40th that I've attended. I appear at other conventions. I was a frequent guest of honor at WonderCon in San Francisco. Other conventions -- I just, last weekend, was a guest of honor at a convention in Calgary.
Q: What was the name of the first comic convention you mentioned?
A: Well, the San Diego convention is now called the Comic-Con International.
Q: Please describe to me what goes on at Comic-Con.
A: Well, the Comic-Con in San Diego is an annual event in a convention center that holds 125,000 people, so it contains -- it's filled to capacity. In fact, they're almost sold out for this year's convention, which is in July. There are -- it's a giant hall full of comic books and exhibit books for sale, animation, video games, science fiction, promotion of current motion pictures. There are panel discussions; there are award shows; there are previews of forthcoming motion pictures.
Q: And what do you do at Comic-Con?
A: Mostly I moderate panels that are there.
Q: How many panels do you moderate?
A: It's crept up on me. I think I'm up to an average of 14 a year now. I'll probably do -- I did 14 last year.
Q: And what do you at these panels? You say "you moderate them." What do the panels concern?
A: Well, in some cases, the panels are one-on-one interviews with me interviewing one or two people who are notable in the field of comics; usually, for historical purposes, people who have had great experience in comics. There are other panels. We do an annual thing called the Golden Age Panel where we get six-or-so veteran comic book writers or artists, and I interview them and then take questions from the audience. Sometimes I do one-on-one interviews; sometimes we do -- I also do -- some of these panels are about animation, also.
Q: What year did you first begin hosting panels at Comic-Con?
A: I hosted one, I think, in 1972, and I hosted two in 1973, and it kind of crept up on me to doing all of these.
Q: And since 1973, have you been hosting panels at Comic-Con on an annual basis?
A: I probably missed a few years in there, but for the last 10 or 15 years, I haven't. I haven't missed in the last 10 or 15 years.
Q: Have you ever moderated any events at comic book conventions at the request of DC Comics?
A: Well, a lot of the panels we do are about DC Comics. One year they asked me to moderate a panel on Mad Magazine, the history of Mad Magazine, which is a DC publication.
Q: Have you ever received any awards for your work at Comic-Con?
A: Well, I've received awards -- for my work at Comic-Con, one year, they gave me what's called the Bob Clampett Humanitarian Award, which is an award for service to the industry. And then they also have -- the convention gives an award called the Inkpot Award, which is for being a -- it's kind of a lifetime achievement award. I received that. They have an award called Friend of Fandom Award, which I think they've now discontinued, I received that. Then they have a thing called the Eisner Awards, which are a comic book equivalent of the Oscars or Emmy's, and I received several of those.
Q: Are you involved in choosing the recipient of any awards at Comic-Con?
A: Yes. There's an award that's presented each year called the Bill Finger Award, which is named in honor of a man named Bill Finger, who was instrumental in the creation of Batman. It is a lifetime achievement award for writing, and I am presently the administrator. I put together a blue ribbon committee each year to select the recipient of that award.
Q: Have you ever written any books on comic books?
A: Yes. My most recent was a book called Kirby: King of Comics, which was an illustrated biography of Jack Kirby, the man I mentioned earlier. I did a book called Mad Art on the history of Mad Magazine, which was done at the behest of DC Comics. And then I've done several books -- we've done several collections publishing -- collecting columns and articles I've written over the years about comic books.
Q: Have you ever written any introductions or prologues for books on comic books?
A: Dozens of them, yes.
Q: Have you ever written any such introductions for DC Comics -- or DC Comics' publications?
A: Yes. Quite a few, yes.
Q: Have you appeared on television to discuss comics ever?
A: Yes. I was on the TV show, Biography when they did a portrait of Stan Lee, the head of Marvel Comics; I was interviewed on that.
Q: Have you ever appeared on DVD's to discuss comic books?
A: Yes. I'm on about a dozen DVD's. Do you want me to go into the list?
Q: You can mention a few.
A: I'm on The Flinstones' DVD, discussing the history of The Flinstones. I'm on a lot of Yogi Bear DVD's. I'm on a Huckleberry Hound DVD. I'm on one of the seasons of the Superman TV show. I'm on a couple of the Looney Tunes, Bugs Bunny DVD's. I'm on the DVD for Turok: Son of Stone discussing the history of the Turok comic book. I'm on a couple of Scooby-Doo DVD's.
Q: Were any of these Warner Bros.' DVD's?
A: All of the ones I just mentioned, except for Turok, were Warner Bros., Warner Home Video. I'm on the Dungeons & Dragons DVD, but that's not Warners.
Q: Have you ever provided consulting services to museums regarding comic books or pop culture?
A: Yes. There's an exhibit currently at the Skirball Cultural Center in Los Angeles on the history of superheroes and comics. And I was employed as a consultant to that exhibit.
Q: Are you currently working on any projects for DC Comics?
A: I just finished a run on a comic book for DC. I'm not working on anything right this minute for them.
MR. TOBEROFF: Your Honor, Mr. Evanier's report has been marked for identification as Exhibit 215.
THE COURT: Could I see that?
MR. TOBEROFF: It contains an even more-detailed list of his qualifications. Rather than take up more valuable time going through all of Mr. Evanier's qualifications, I would like to offer Exhibit 215 into evidence at this time.
THE COURT: Any objection?
MR. PERKINS: Yes, Your Honor.
THE COURT: State your objection, Counsel.
MR. PERKINS: It's irrelevant. Mr. Evanier is not -- none of the areas in his testimony on his report have anything to do with the issues in this phase of the trial. There is no discussion of fair market value.
THE COURT: Well, Counsel, are you seeking to introduce the qualifications or the conclusions of the report?
MR. TOBEROFF: The qualifications, Your Honor.
THE COURT: It's qualifications, Counsel.
MR. PERKINS: Well, it's not clear to me what the qualifications have to do with --
THE COURT: We're getting ahead of ourselves. Do you have any objections -- is there any question that these are or are not his qualifications?
MR. PERKINS: I have no objection to the qualification.
THE COURT: Very well. The qualifications come in, Counsel. Move along.
MR. TOBEROFF: Your Honor, we tender Mr. Evanier at this time as an expert in the field of comic books and their history.
THE COURT: Comic books and what?
MR. TOBEROFF: Their history as it bears on the history of Superman in this case, which is relevant to valuing Superman, which is relevant to determining whether agreements were for fair market value.
THE COURT: Very well.
Is there any objection to this witness's qualifications as an expert on comic books and their history?
MR. PERKINS: If he's admitted for that, no objection, Your Honor.
THE COURT: Very well.
You may proceed, Counsel.
DIRECT EXAMINATION (continued)
BY MR. TOBEROFF:
Q: Mr. Evanier, could you please tell the Court how much you have charged plaintiffs to provide your expert opinion in this matter.
A: Nothing.
Q: Were you offered a fee for your services in this case?
A: I was told one could be arranged; I declined.
Q: Why did you refuse to be paid for your expert opinion?
A: I felt uncomfortable about taking money directly or indirectly from the Siegel family.
THE COURT: That is a first in my courtroom.
Carry on.
BY MR. TOBEROFF:
Q: Why is that?
A: Because of how much Jerry Siegel gave to the industry and how little he received from it. I've built my life around this industry, and I think most people in this industry owe him an enormous debt of gratitude.
Q: Let's talk about the comic book character Superman.
Who created Superman?
A: Jerome Siegel and Joseph Shuster.
Q: When was the character first published?
A: It was first published in Action Comics No. 1, which was published on April 18, 1938, I believe.
Q: In what form was it published?
A: I'm not sure I follow the question.
Q: The first story was ...
A: Superman was on the cover, and he was the lead story in Action Comics No. 1.
Q: Thank you.
Who published Action Comics No. 1?
A: The company which we now refer to as DC Comics. At the time, it was called Detective Comics, Incorporated; and also there were a couple of other shell companies or other corporate names. The publisher was a man named Harry Donenfeld.
Q: When Action Comics No. 1 hit the stand, was it well received?
A: It was phenomenally well received. It is still the greatest success story in the history of comics.
Q: Did this become apparent to DC immediately or later on?
A: Well, some people at DC claim that they knew it from the start. It is said that Mr. Donenfeld, the publisher, was the last one to pick up on this. When he saw the first cover, he thought it was outrageous and that the book wouldn't sell. He had ordered subsequent issues to not feature Superman so prominently; so Superman was on the cover of Action Comics No. 1, but he was not on the cover of Action No. 2 or 3 or 4 or or I think 6. There's a lead time in doing comics. By the time No. 1 hits the stands -- actually, by the time you get some distributor or retailer reaction to a comic, you've already got the next three or four issues well under way or off to the printer.
Q: How popular did Superman comics become?
A: Superman was the best selling comic book of its time, of the earlier 1940s. Superman immediately was featured in other media. They immediately spun off a solo comic book called Superman, completely comprised of his adventures. He was the first character really honored that way.
Q: When was that?
A: That was 1939.
MR. PERKINS: Your Honor, I need to interpose an objection. This is well beyond what was in his report. We did not have an opportunity to depose him with respect to his expertise in comics. He was not presented as an expert in the history of comics. It's simply not within the four corners of his report.
THE COURT: Counsel, a few minutes ago, you told me you didn't object to him being designated as an expert in the history of comics.
MR. PERKINS: I was discouraged because -- he is an expert in comics, but he --
THE COURT: No, no. The specific question was, 'Do you object to him being designated as an expert in comic books and their history'; and you said, 'No objection.'
MR. PERKINS: I have no objection, but, Your Honor, I have an objection to the testimony. He is undoubtedly an expert, but at the prior hearing, when we talked about these motions, Your Honor made it clear that if it's not in their report, they will not be permitted to testify.
THE COURT: Counsel, is this in the report?
MR. TOBEROFF: Your Honor, Yes, it is.
I'd like to read you a quote from defendants' reply in support of their motion in limine number two.
THE COURT: Not the reply, the report.
Where in the report is it?
MR. TOBEROFF: I'll get that in a moment, but if I can -- defendants have acknowledged that it cannot be disputed that Mr. Evanier's report deals largely with the "history of the Superman character," quote, end quote. They have acknowledged this to the Court. Page 8 of his report --
THE COURT: I'm looking at the report.
Here, Counsel, he does seem to go in great detail into the history in the report.
MR. PERKINS: Well, he goes into detail about how the comics were created. There's nothing in his report other than some general comments about popularity, but he gives no opinion with respect to where Mr. Toberoff is going, for example, which is that it was at its nadir in 1974. There's no analysis; they're not permitted to examine him about that. His report outlines on the first page the three areas of analysis or opinion that he was going to give, and those three areas are, the manner in which the earlier Superman comics were created by Jerry Siegel --
THE COURT: That's what we're hearing about right now.
MR. PERKINS: The last answers that he gave talked about how popular Superman was when it was released, that it was phenomenally popular, that there was a new title that was created as a result, that there were people within DC who thought that it would and it wouldn't be. None of that is in this report. The report was very focused, Your Honor. It was focused on work-for-hire issues, and it was focused on the Smallville issues that were in the case when there was a copyright infringement claim. The first page outlines the three areas of testimony that he was to give.
THE COURT: Counsel?
MR. TOBEROFF: Your Honor, his testimony is clearly within the scope of the report. It's been admitted by defendants in their earlier statements, and, as I mentioned, in the reply. I could quote you paragraphs of the report that goes to the value, the effect of Superman's history and popularity on the value. Mr. Evanier says on Page 9 of his report, quote, "Any new entertainment venture, a movie, a TV series, a video game, based on Superman is instantly considered a major hot endeavor in the same way that the excitement and potential success of a new motion picture is enhanced by the signing of an established star with proven box-office success."
THE COURT: Let's move along.
The objection is overruled.
BY MR. TOBEROFF:
Q: Did Superman remain popular in the 1940s?
A: Very popular, yes.
Q: Throughout what period did he remain very popular?
A: Superman was popular in the 1940s. He was popular in the 1950s. He was popular throughout the '60s. There was a decline in the late '60s and so on.
Q: How many comic books was Superman selling per month by the late 1950s?
A: By the late 1950s, Superman was in comics each month, totalling sales of approximately 4 million copies.
Q: That's 4 million copies per month?
A: 4 million copies per month.
Q: Is Superman still published today?
A: Yes, it is.
Q: How many different comic book lines is Superman published in?
A: I don't know if I can even keep track. There's a Superman comic. There's an Action Comics. There's a book called All Star Superman. There's a book called Superman & Batman. There are many miniseries. They have an ongoing series of reprinting old Superman comics. They keep the old ones in print, which is unprecedented. That was not done in the old days.
Q: What did Detective do once they realized what they had in Superman?
A: They began exploiting him in other fields.
Q: What other fields?
A: Within the first couple of years of Superman's existence, he was quickly spun off into a syndicated newspaper strip; a very popular radio program; and a series of theatrical cartoons, distributed by Paramount Pictures.
Q: In what other media, other than what you've just mentioned, has Superman been exploited?
A: Well, the radio show went on for a long time. When the cartoon -- around the time -- the next notable appearance of Superman in other media would be in 1949. Columbia Pictures produced the first of two motion picture serials. It was so popular -- Superman was so popular as a serial, they did another one the following year.
Q: And these are animated shows featuring Superman?
A: The two Columbia serials were live action.
Q: And prior to that, there were animated shows?
A: Yes. As I mentioned, Paramount purchased a license to turn Superman into an animated character; and they produced 17, I believe, theatrical shorts, one of which was nominated for an Oscar. They were very popular. They're still very popular.
They just came out on DVD again.
Q: Has Superman continued to be exploited in animation throughout the years?
A: Yes. There have been a half dozen different Superman cartoon shows over the years. If you'd like, I can go through them individually.
Q: You can go through some of them briefly.
A: There was a Superman-animated series done in 1966, I believe, or '67, produced by Filmation; that was on for a couple of years. Then, in 1973, Hanna-Barbera produced a show called Super Friends, which featured Superman, Batman,
Wonder Woman, and a core of other DC characters; but Superman was the lead character in that.
Then the next Superman-animated appearance -- Super Friends went off and on for a number of years. The next animated Superman show would have been 1988. That was a show produced by a studio called Ruby-Spears. Then there would have been the show that I worked on, Superman: The Animated Series, which was done in the '90s. And that was followed by a series that Warner Animation also produced, the Justice League of America, with Superman prominent in that. I think that's all of them, but I may have missed one.
Q: Has Superman appeared in any live-action television shows?
A: Well, in 1951 -- the Columbia serials were done in 1949 and 1950. In 1951, DC Comics themselves produced a theatrical film that was also intended as a pilot for a television series. The theatrical film was called Superman and the Mole Men; that was used a vehicle to set up a Superman live-action TV show. Sorry. I'm giving this lady so much trouble. I apologize.
Superman and the Mole Men was produced in 1951. That was a pilot for a TV series. And then they started in '51 the Superman series that starred George Reeves as Superman. And that was done for 104 episodes throughout the 1950s, ending in 1957. It would have gone on longer except for the untimely death of Mr. Reeves.
Q: Any other live-action Superman television series or Superman-derived television series?
A: The next time Superman was in live action on television, apart from little cameos and guest appearances would have been 1975. On ABC, there was a special, based on an earlier-failed Broadway musical of Superman; that was in '75. It was run late night once, in the middle of the night. Almost no one saw it. And then I don't think there was another Superman, a live action -- the next time Superman was in live action, if you counted it, it would be the Superboy 1988 series.
Q: And after that?
A: After that, the next one would be Lois & Clark, which was in '93, I believe, which was on ABC.
Q: And after Lois & Clark?
A: After Lois & Clark, I think the next one would be the Smallville show in 2001.
Q: Has Superman appeared in -- I think you interspersed in your testimony, you mentioned, I believe, theatrical short films. I'd like you to take us through Superman's history in live-action theatrical films.
A: Live-action theatrical films -- well, there were the two serials. There was the Superman and the Mole Men pilot. And then the next time Superman was done theatrical in live action would have been in the 1978 movie starring Christopher Reeve.
Q: That was just called Superman?
A: That was just called Superman. It was followed by three sequels.
Q: What were the sequels called, and when were they released?
A: Superman II was released in 1980; Superman III was 1984, I believe; and Superman IV was released in 1986.
Q: You mention Superman's exploitation early on in merchandising. Has that merchandising continued to this day?
A: Definitely.
Q: For 70 years, he's been continuously exploited in merchandising?
A: Yes.
Q: Was Superman ever adapted for the stage?
A: Yes. As I mentioned a moment ago, there was a musical comedy version of Superman, called It's a Bird, It's a Plane, It's Superman, which was done in -- it opened in March of 1966. I believe most of the history books say '65, but it was '66. And it was not a success.
Q: You testified earlier that in the 1940s and 1950s, Superman was extremely popular. Did that popularity remain, or did it wane?
A: There have been periods when the sales on Superman were down, when the merchandising was down, and Superman was not quite the superstar that we generally think of him as.
Q: When did Superman's popularity decline?
A: There was a diminution on the sales of the comic and a drop in the merchandising in the late '60s, which continued through the early '70s; and didn't, by my reckoning, really reverse itself until the Christopher Reeve movie in '78.
MR. PERKINS: Move to strike, Your Honor. That's not in his report at all. Those conclusions are not in his report.
THE COURT: Counsel?
MR. TOBEROFF: Your Honor --
THE COURT: Where in the report?
MR. TOBEROFF: Every single thing that he says on the stand is not going to be in his report, but the scope – the idea of having these matters in the report is to give the other side fair notice.
THE COURT: Yes, Counsel. But a particular question, like a "why," goes to the heart of an opinion; that is the type of thing that needs to be disclosed. You're absolutely right; a report does not have to include every single thing that is being said on the stand. But a question -- you're asking why, now; you're asking for his opinion.
Has that opinion been disclosed? Has he disclosed the answer that he's about to give?
MR. TOBEROFF: He hasn't disclosed specifically the --
THE COURT: If he hasn't, then it's not coming out now.
MR. TOBEROFF: I don't know the precise answer.
THE COURT: You answered the question.
I sustain the objection.
Opinions need to be disclosed. The filler, I certainly will give you leeway on that, and your notice is correct; but an actual 'why' question, or 'do you have an opinion as to why' or 'how' or 'who' or 'what,' those types of things need to be disclosed.
BY MR. TOBEROFF:
Q: How was Superman viewed in the late 1960s?
MR. PERKINS: Again, objection. That opinion was not elicited in this report.
THE COURT: This is more of that historical. I'll allow you to continue.
Overruled.
THE WITNESS: Could I have the question again.
BY MR. TOBEROFF:
Q: The question was, how was Superman viewed in the late 1960s?
A: In the late 1960s, Superman was kind of out of sync with his times. The readership did not really like the comic book that DC was producing. The long-time editor of it was terminated. He was allowed to quit, but it was clear that he was ousted.
The character got the first of many makeovers, to try and bring it back into favor. The character was kind of stodgy; he had become kind of a self-parody, I think. And the late '60s was a time when authority figures had a little trouble in this country, and Superman had gone too far in the wrong direction. He had become kind of pompous and lecturing. I felt the character was not speaking to the audience at the time. His sales were significantly eclipsed by Marvel Comics of the day, which did reach out to the audience, reached them on a more basic level.
BY MR. TOBEROFF:
Q: Any other reasons for the sharp decline in Superman's popularity in the 1970s?
A: I think that there was a consensus that the comic book was not very good. They were demeaning the character a lot, for gimmicks. They were trying very hard to find something that would sell, and I think they went in the wrong direction. They kept doing covers to show him weak and frail and humiliated; and people don't want to see a weak, frail, humiliated Superman.
Q: How else was Superman portrayed in this time period?
A: Well, there were things that I thought were wrong in the fundamental way they were approaching the comics. There was a period in the early '70s when they took Clark Kent out of being a news reporter. He was no longer a mild-mannered reporter. They essentially turned him into Walter Cronkite. He was a star anchorman on TV. And it was illogical. Readers didn't like it. It didn't make sense to them for Superman -- Clark Kent is supposed to be -- in every appearance that's been successful, the template has been that Clark Kent is this shy, bumbling person, who -- first of all, it makes sense for Superman to hide himself that way. He doesn't have to be heroic in both of his identities. Otherwise, he doesn't need a super identity if he's heroic in both. And it didn't make sense for him to be so visible.
If you look at the Christopher Reeve movie, for example, the first time in 1978 -- the first time you see Clark Kent, he's bumbling, he's bumping into doors, he's inept. That's the way Clark Kent has traditionally been. DC, for some reason in the early '70s, thought, 'Let's turn him into a TV superstar reporter'; and I think that contributed to the decline of the comics.
What role, if any, did DC's management have in this decline in the late '60s, early '70s?
A: DC's management was calling the shots on this. They were the ones making the decisions, that I happen to think were bad ones. And I think the company ultimately felt that. They got rid of that management; they fired them.
Q: When was that?
A: '75.
Q: Given this decline you just testified to, what was the lowest point in Superman's popularity historically?
MR. PERKINS: I object to the question. That opinion is not rendered in the report.
THE COURT: Overruled. I think all of this -- I mean, clearly this witness is qualified to describe the history, and he indicated that he would be covering the history. This is not opinion as much as it is --- I'll overrule the objection.
You may answer.
THE WITNESS: Could I have the question, please, one more time.
BY MR. TOBEROFF:
Q: Historically, what was the lowest point in Superman's popularity?
A: The early '70s, '73 through '75, in there.
THE COURT: What is that based on?
THE WITNESS: Sales. Books weren't selling very well. The character was kind of -- comic fans get very possessive about the characters they love. Readers were starting to protest the way Superman was being depicted. They were not getting a Superman that they felt good about. There was one issue that had a cover of Superman bowing down and kissing the foot of an Amazon alien invader; and everybody protested it. They said, 'You guys don't understand Superman; you're ruining this character.' Superman is not subservient. Superman is -- hey, I can do that. I don't need Superman to be humiliated. And sales were down. I was working on and off for DC Comics at the time. We had meetings. We had to reinvent Superman. They didn't know what to do with it.
The man I mentioned earlier, Jack Kirby, who was a superstar of -- probably the most successful comic creator who ever lived, they brought him into meetings, and I went with him as his assistant; and the publisher of the company sat there and said, 'Help us figure out what to do with Superman; we don't know.' Some of their other books were thriving. The company was not completely incompetent at the time. They had some very good comics. They were actually doing a good job with Batman. And Batman was becoming more popular than Superman.
THE COURT: Again, based on sales?
THE WITNESS: Yes, based on sales. And on industry reaction, awards. I mean, Superman never stopped selling.
THE COURT: When you say "industry reaction," that's what you observed when you attended these conventions?
THE WITNESS: Yeah. Conventions and awards. And there were all of these magazines, people who do reviews. I was writing for a lot of them at the time.
I'm giving you a consensus of what I perceived as the readership from the only measures we have, which is the buzz, the panel discussions, what we know of sales. You can also track the popularity of these characters frequently with what the company does. When they start putting Superman on the cover of lots of comics, it's because they perceive that he is a saleable commodity; that his presence on the cover helps the comics sell. When they start hiding him, then you say, well -- cutting back the comics, featuring him less often.
In the 1960s --
THE COURT: Let me stop you there.
Your next question.
BY MR. TOBEROFF:
Q: Does DC agree with this conclusion that Superman was at the lowest point in his popularity in the early '70s?
MR. PERKINS: Objection. Hearsay. And, also, it's well beyond the --
THE COURT: Sustained.
BY MR. TOBEROFF:
Q: Did Superman appear in any live-action films or television shows during the early '70s?
A: Live-action films in the early '70s? No. The first one I know of would have been the 1975 adaptation of the Broadway show I mentioned.
Q: The 1975 late-night special on ABC?
A: Correct.
Q: Could you tell me about that late-night special again, please.
A: ABC was at that time doing a series called ABC's Wide World of Entertainment, which was on opposite Johnny Carson; and it was a series of different shows in different forms. And they took the Superman Broadway show from '66, and they did a very cheap, shoddy adaptation of it, very campy, low budget. It was a horrifying show. It is generally mocked by those -- not that many people saw it, but those who did still jest about how bad it was.
Q: After Superman's popularity hit rock bottom in the early 1970s, did his popularity ever rebound?
MR. PERKINS: Objection, Your Honor.
Mischaracterizes Mr. --
THE COURT: As to the form of the question, sustained.
BY MR. TOBEROFF:
Q: Did Superman's popularity rebound after it had declined in the early 1970s?
A: Yes, it did.
Q: Can you describe to me how it rebounded.
A: Well, in 1978, there was a Superman movie starring Christopher Reeve which was phenomenally successful. It reinvigorated the character. It certainly reinvigorated the merchandising. There were hundreds and hundreds of Superman toys and games and T-shirts. There was Superman -- I started eating Superman peanut butter about the time they started bringing it out. The character suddenly had a new life at that point, because that movie was so successful.
Q: Did that movie influence other forms of Superman programming?
A: Yes. Well, there were the sequels, as I mentioned. The Super Friends animated show, which had kind of been on its last leg, was reborn. It ended up changing formats a few times, but it began featuring Superman more prominently; and it stuck around for quite a few years after that. I think it ended in '86, or thereabouts, which is a very long run. It's a very long run for a show that was cancelled when it was originally put on the air, to come back like that and be successful. I don't think there were any other adaptations in motion pictures or television until after the fourth – the Superman features with Christopher Reeve.
Q: Were the sequels, Superman II and Superman III, you mentioned released in 1980, and the other was 1983 -- I believe you said --
A: I said '84.
Q: Superman II and Superman III, were they successful as well?
A: Two was a little less successful than one, and three was a little less successful than two.
Q: And how would you describe the last sequel, Superman IV?
A: I think it was viewed by about as many people who are in this courtroom at the moment. It was not successful at all.
Q: Did that have any effect on the popularity of Superman?
MR. PERKINS: Objection, Your Honor. That is an opinion that's not provided in his report.
THE COURT: Now we're getting into causality again, Counsel. I'm permitting the witness to testify as to his understanding of what was happening as opposed to why it was happening.
BY MR. TOBEROFF:
Q: In terms of Superman's historic popularity, did Superman IV have any effect on his historic popularity?
MR. PERKINS: Same objection, Your Honor.
THE COURT: Sustained. That's the same question in a different form.
BY MR. TOBEROFF:
Q: Did Superman IV have any historic effect on Superman's popularity?
THE COURT: Counsel, every time you're using the word "effect," you're asking for him to assess causality; and unless that's set forth in the expert report, I'm going to keep sustaining the objection.
MR. TOBEROFF: I have it.
BY MR. TOBEROFF:
Q: How popular was Superman after Superman IV?
A: I think Superman was still very popular. I just think people didn't like that movie.
Q: Are you saying they blamed the movie rather than Superman?
A: No.
MR. PERKINS: Objection, Your Honor.
THE COURT: Sustained.
BY MR. TOBEROFF:
Q: Returning to Superman, how was Superman exploited in the late 1980s through the 1990s?
A: Exploited in other media besides comics, you mean?
Q: Exploited in any media.
A: The comic books were very successful at the time. DC added new titles. They did a couple of reboots in there, where they reinvented the character, cleaned out some of the dead wood; and the comic book sales went up considerably. It became a much more prominent, successful comic than it had been at certain times in the past.
In '88, you had both the new Saturday morning show and the Superboy show going on the air.
Next thing after that, I don't know -- did I answer your question?
Q: Yes. Can you tell me about Superman No. 75.
A: Well, Superman No. 75 -- in 1993, DC did a story arc called The Death of Superman, which stunned everyone by how much attention it got. It was a phenomenon in the industry. It was unprecedented. And it was not just a matter of --
Superman No. 75, which was the issue in which Superman actually died in the story line, sold 3 million copies. This is at a time when a good-selling comic book might be selling 30,000. So 3 million was astronomical. It was not just that one issue; it was all of the issues leading up to it. And the death of Superman story line was interwoven in all of the DC comics for several months; so readers were picking up all of the different DC titles in record numbers. And then when the issue 75 came out with the actual death of Superman, it hit the mainstream press like some beloved real person had died. It was covered on the evening news; it was covered in headline stories. And then the subsequent issues, which featured Superman's funeral, and then later, his return, were also selling well, well above any expectations of the time.
Q: Thank you.
Can you describe to me the differences in comic book sales in different periods and how that was viewed by the comic industry as either being successful or unsuccessful.
Do you understand my question?
A: I think so.
THE COURT: I'm not sure if I do, Counsel.
Why don't you rephrase it.
MR. PERKINS: To the extent I understand it, I object.
THE COURT: He's rephrasing it, Counsel.
MR. PERKINS: Thank you.
BY MR. TOBEROFF:
Q: You mentioned, when you were talking of the death of Superman, that that sales figure was phenomenal for that particular time period.
Did the amount of comics an issue had to sell to be considered successful differ from one period to another in the comic book industry, and why?
A: I think I've got that.
Yes. Yes. The answer is, the standards changed over the years. Prior to about 1980, comic books were distributed by a term that is frequently called the "independent distribution method." This is the way most magazines were and most still are distributed, which is that they are sold on a returnable basis to wholesalers and then on to retailers throughout the country.
Around 1980, that method of distribution atrophied, for reasons that will probably get us 23 objections here; so I won't go into them. But the business changed over to a
direct -- a thing where the comics were sold direct, primarily to comic book shops which bought them for higher prices on a nonreturnable basis.
Prior to about 1980, this cutoff point I'm mentioning, if a comic book sold under 150,000, it was considered a failure. I did comics at that time that were sold under -- when you fell under 150,000, you were probably going to get cancelled. A good sale would be 200,000 and up. A great sale would be 300,000 to 500,000. There were occasional exceptions selling into the millions.
Since 1980, it is profitable now to do a comic that sells 30,000 copies. Last month, there was no comic book published in America that sold over 100,000. The number one selling comic last month sold 97,000 copies.
THE COURT: How did the distribution change?
THE WITNESS: Well, what happened was, you used to go to your corner newsstand, buy a comic book for a dime, 15 cents. The newsstand would get 25 copies. If they sold ten, the other 15 would go back to be pulped, the copies would be destroyed, or they would be returned; so the publisher would rebate the distributor. So to sell ten copies when you're destroying 15 is not profitable. To sell 25 when you're destroying five could be profitable. It was a measure of copies sold versus copies returned.
In the current method, we have comic book shops all over the country. They're the primary means of distribution. Your local comic shop orders 100 copies of the new issue of Superman. They pay for them in full. They're $2.95 to $3.95. They get them for a reduced price, but once they buy them, they're not returnable; so there's no spoilage. And they're sold; so you can make money selling a comic book that sells 20,000 copies these days.
BY MR. TOBEROFF:
Q: Mr. Evanier, you testified earlier that in the late 1950's, Superman was selling 4 million copies per month. Was that one Superman magazine or all Superman comics combined?
A: That was the amalgam of all the comics Superman was featured in at the time. He was in action comics. He was in adventure comics. He was in Superboy, the Lois Lane comic book. There was the Jimmie Olson -- I'm not quite sure which ones they were counting, but collectively, that's the number.
When you hear them say 4 million, they are referring to the group of all the titles that featured the character.
Q: Now, in the early 1970's, what was the status of these collective Superman comics in terms of sales?
A: I don't know the exact number. They were selling substantially less. There were fewer of them at the time. Quite a few of those books had been discontinued or
substantially altered. When I was assisting the editor of Jimmie Olson in 1970 or '71 that had become a very low selling title for DC. A few years later it was canceled. The Lois Lane comic, which at one point had been DC's best selling in the 50's or 60's, it had been canceled.
THE COURT: That was a separate?
THE WITNESS: Yes, it was called Superman Lois Lane, with a character like Superman, and this is true of something like Archie, the character is in a group of comics. They are timed to come out every week. One week Action Comics comes out featuring Superman. So that every week the kids can go to the rack and buy one or two comics that feature Superman. Superman was always prominent on the cover of Jimmie Olson and prominent on the cover of Lois Lane. It's the same with the Archie line of comics. It's Archie and the Betty and Veronica and the Jughead and the Reggie comics. There are all these ancillary titles. Archie's friends and Archie's enemies and Archie's toothbrush and such. So when --
THE COURT: Very well.
THE WITNESS: So when they talk about Archie sales, they mean all the Archie titles.
Q: BY MR. TOBEROFF: What was the reason why these Superman comic books were being canceled?
A: The only reason that you have for canceling comics is that people aren't buying them.
Q: And how did the Superman comic itself, the comic called Superman, how did that fare in the early 1970's?
A: It had declined in sales from the 60's, if that's what you're asking.
Q: That's just looking at the Superman comic itself?
A: Yes, that's right.
Q: In the comic industry, when you are judging the success of a comic, you just look at the Superman comic itself?
A: No. That would be misleading about the strength of the property. You would -- it would not tell you, you know, is this character capable of -- you're looking at the franchise.
The value of the Superman, the value of an Archie is that you can do a lot of comics of them. You're not limited to one every month. The Bugs Bunny comic book, and the Yosemite Sam and Porky Pig comic books, we find different ways to put out a comic book that had Bugs Bunny's face on the cover.
Q: You mentioned that DC Comics financed the 1951 feature film Superman Versus the Moleman. Did DC also finance the TV series starring George Reeves?
A: Yes, they did.
Q: Did DC finance the Superman film starring Christopher Reeves that appeared in 1978?
A: No, they did not.
Q: Did they participate financially in any way in that?
A: I assume they received some fee for that.
Q: But did they invest in the film in any way?
A: To the best of my knowledge, they did not.
Q: Did DC finance Super Friends that appeared in the 70's as you testified or any other TV or film derivatives in the 70's?
A: I know of no project in the 70's that DC put their own money into.
Q: Now, you previously mentioned that there was continuous merchandising in the 1980's through the 1990's. Focusing now on the 1990's, was Superman exploited in other media in addition to publishing and merchandising?
A: In the 1990's?
Q: In addition to merchandising in the 1990's, merchandising and publishing, how was Superman exploited?
A: Well, the biggest would have been the Lois and Clark television show on ABC, which was on, I believe, in '93 through '97 or thereabouts. That was very successful, a prime time show.
There was the Superman animated series that was done during that time period. I'm blanking on something else. There was another one.
Q: I believe earlier you testified to Superboy. Was that in this period?
A: The Superboy show went on in 1988, and it was on into the 90's. Yes, that was successful for a while.
Q: Now, in the 1990's --
A: I forgot the show I worked on. I'm sorry.
Q: In the 1990's, was a new Superman theatrical film being developed?
A: We heard there was. That was the word around conventions. There were articles in the fan press and various magazines that a Superman movie was coming.
Q: And what did you hear?
A: I heard a lot of different things. We heard various stars. At one point Nicholas Cage was allegedly going to star in a Superman movie. At one point Tim Burton, who had very successfully directed the Batman franchise. He was going to direct it. There were outlines and scripts bootlegged around the convention market, and people were alternately horrified or encouraged. There were fans very worried. They assumed a Superman film was coming and they were worried that the character would not do him justice.
Q: What was the reaction at Comicon to this anticipated film starting in the mid-1990's?
A: Well, the entirety of the Comicon, the character of Comicon shifted in the 1990's. Previously it had been basically a convention about comic books and publishing. In the 1990's, the Comicon evolved into a place where the major stars would appear to promote their films. One of those panels that I got kicked out of the room one time was around Schwarzenegger wanted to promote another Terminator movie. He was going to make a sudden appearance.
So there were all these panels suddenly showing clips of previews of upcoming films or panels discussing -- studios would fly in their directors and their executives and their stars to promote. There was an awful lot of merchandise handed out at the convention. When you got to the convention, you got your badge and a goodie bag full of merchandise and promotional items. And sometimes you'd get T-shirts and fliers and pins saying, you know, these movies are coming. So -- the Superman -- the Superman movie was one of the main ones that people were excited about. Because it was Superman.
Q: And this started in the mid 90's and continued until what time?
A: It's continuing today. The fervor about the upcoming movies. There's a convention in July, the Comicon for this year. A lot of that convention is going to be about what movies are coming out. What movies are in development now. What movies had just come out. What movies are coming on DVD now. It's -- there are people who actually complain that the convention is too much about the next big superhero movie that's coming out.
Q: So Hollywood's participation in Comicon, would you say, commenced in the mid-1990's?
A: Again, it was a slow process. It -- I can find isolated incidents before then, but it was an avalanche in the 90's of all of a sudden these big stars are there.
Q: And what was the status of superhero films starting in the late 90's?
A: Superhero films, there were some very successful ones. I can't think of the first one right off. Men in Black came out in, I think, '97. Blade in '98. Those are both very successful films about relatively minor properties, characters that had very little track record and weren't known characters.
Then you suddenly started seeing movies like -- there was a big explosion of excitement in 2000 when the first X Men movie came out. That was huge. And they started talking about the sequel and the upcoming Spiderman movie, which I think came out in 2002.
Q: The Spiderman movie that I came out in 2002, when at Comicon did you start hearing about that movie?
A: Well, we'd been hearing about Spiderman movies for some time before that. There were scripts circulated. There were talks of different directors and stars attached to it.
Q: But specifically, the movie that came around --
A: Excuse me. The specific movie that came out, I think we started hearing about it around 1999. It's like a two- or three-year lag on all these things before they come out. One year you hear the movie is in heavy development and names are being attached to it. The next year you hear that it's got a start date, when they start promoting it, putting out kind of generic advertising, key art that they are showing you.
Possible poster, a possible logo type. They try to get some advance merchandise out, and then you have, you know, the next year the movie is out. Or it is about to come out, and they come and show the trailer, and people cheer it or shrink away in disgust, whichever is applicable. Then usually a year or so later, they are promoting the DVD's coming out.
Q: And how did this focus on comic books and superheroes in particular in the movies occur?
A: I'm sorry?
Q: I'm sorry. I phrased that poorly.
What was the cause of this sudden focus on comic books and superheroes part starting in the mid-1990's?
MR. PERKINS: Objection, your Honor. It goes beyond the --
THE COURT: Sustained. Rephrase, Counsel.
Q: BY MR. TOBEROFF: What connection do you see between comic books and films?
THE COURT: Overruled.
THE WITNESS: Well, they are merging together as forms, if that's what you're asking me. The comic books are increasingly becoming a template for movies, not only in terms of content but in terms of trying to replicate the excitement that was established in the comic book to replicate it on the screen. It's a kick start for a movie. You have a successful comic book.
People love the comic book, and now that generates heat for the project before it turns into a multimillion dollar movie. And at the moment, practically every comic book is a potential movie. There are people creating comic books, hoping they will become movies.
Q: Is there anything about comic books in particular that lends itself to exploitation in the film?
THE COURT: Counsel, now we're getting into an area where -- is this covered in the disclosure?
MR. TOBEROFF: The cover.
THE COURT: Now you're going beyond that. Again, I -- I have no doubt that this witness is more than qualified to answer these questions. It is all about the disclosure that was given to the other side.
MR. TOBEROFF: I understand.
THE COURT: So don't take this -- you are consummately qualified on this. It's beyond the scope of the expert disclosure. So I'll sustain the objection.
Q: BY MR. TOBEROFF: In the comic book industry, what are the -- what are DC's core comic book properties?
A: Superman and Batman are the top tier.
Q: And where in your opinion does Superman rank in the hierarchy of comic book superheroes in terms of sustained popularity?
A: I think Superman is number one.
MR. PERKINS: Objection. That opinion was not in his disclosure.
MR. TOBEROFF: Actually, I think he goes on and on about the attributes, the key attributes and popularity of Superman. On page 9 he speaks about Superman being an established star with a proven box office success. For a studio to establish the same kind of fame and recognition of a newly created character would require an investment of countless millions of dollars with, of course, no guarantee of success.
MR. PERKINS: The objection was to the specific question, which was how does it rank, and the answer being it's number one, which was not opined upon, and I didn't have a chance to --
THE COURT: It's a closer call, but I'll overrule the objection. You have answered.
Next question, Counsel.
Q: BY MR. TOBEROFF: Now, switching gears. Mr. Bergman in his opening mentioned a character by the name of the Lone Ranger.
Are you familiar with the character?
A: Yes, I am.
Q: Did this character appear in comic books?
A: It has appeared in comic books intermittently.
Q: When?
A: I'm not prepared to tell you the exact dates. A company called Western published the Lone Ranger comic under the Dell imprint from around 1942. I'm guessing at this, but it was throughout much of the 40's, much of the 50's and became more spotty. They were canceling it in the 60's. And I think it was published briefly in the 70's, and there have been a few intermittent. It has not been a continuously published comic.
Q: How popular was the Lone Ranger in comic books compared to Superman?
A: It was much less popular.
Q: What other media did that -- did the Lone Ranger appear?
A: The Lone Ranger was a radio show, very popular radio show in the 30's and 40's. There were a series of monthly serials made in the 40's. There was a television show in the 50's. There have been a couple of movies that have not done well. There was a -- a chain of Lone Ranger restaurants. There was one near my house in the 70's. It hasn't been around a lot.
Q: Has the Lone Ranger remained popular?
A: I don't see it being published as a successful comic book or -- it was an animated show very briefly at one point. I have not seen any sustained indicator or popularity of the character.
Q: Does the Lone Ranger have the sustained success of Superman since the 1930's?
A: Not even close.
Q: Another character I believe was mentioned was the Green Case Hornet. In what media format did this character first appear?
A: It was a radio show.
Q: Do you know when it first appeared?
A: In the mid-30's.
Q: Was the Green Hornet popular?
A: The radio show was popular for an extended time, yes.
Q: And in the 1930's and 40's?
A: 30's and 40's, yes.
Q: After that?
A: It lost popularity. There was a brief revival in the 60's on a TV show that I think only lasted a short time.
Q: Did the Green Hornet appear in comic books?
A: Western Publishing published, I think, three issues before it was canceled.
Q: Has the Green Hornet remained popular?
A: No, I don't think so.
Q: Has the Green Hornet had the sustained success of Superman since the 1930's?
A: Even less than Lone Ranger.
MR. PERKINS: Your Honor, I'm going to object to this line of questioning. There was nothing in his report regarding any character other than Superman. There was no discussion of Green Hornet, Lone Ranger.
THE COURT: Is there, Counsel?
MR. TOBEROFF: Not specifically, your Honor. I'm responding to characters mentioned by Mr. Bergman in his opening statement.
THE COURT: Well, I know what you're doing. The question is whether or not there was any grounds for the disclosure of this.
MR. TOBEROFF: To a certain extent, this is also anticipatory rebuttal.
THE COURT: And as rebuttal, it would probably be proper. Counsel, is there any -- quite frankly, some of this, as interesting as it is, is not exactly earth-shaking. I mean, I -- the Lone Ranger, it's been a while since we've seen the Lone Ranger.
MR. PERKINS: Your Honor, as long as it's going on Mr. Toberoff's clock, I think I shouldn't complain.
THE COURT: I think out of judicial efficiency, some of the stuff could be addressed now. Let's move along.
MR. TOBEROFF: It would be so he didn't have to come back in rebuttal. All the characters that I'm mentioning are the subject of contracts that have been produced and will be used by defense at trial, I believe.
THE COURT: Very well.
MR. TOBEROFF: That's the relevance.
THE COURT: I understand the relevance. Again, the issue is not relevance. It's disclosure. But I view it as essentially rebuttal, given the statements that were made by counsel in his opening. Let's just do this now.
Q: BY MR. TOBEROFF: Tell me about the character Flash Gordon.
A: Flash Gordon was a syndicated newspaper strip, very popular syndicated newspaper strip. There were a series of serials starring a character called Buster Crabbe. There was a radio show for a time that was very popular, mostly in the 1940's.
Q: And when did the comic strip first appear?
A: The comic strip first appeared in the late 30's.
Q: And over what period was the comic strip exploited?
A: Well, the comic strip is still going today. It's in about four newspapers. It used to be in about 600.
Q: Has Flash Gordon been exploited outside of comic strips?
A: I mentioned the radio show. There was a Flash Gordon serial. There was a Flash Gordon TV show briefly in the 50's. There have been some -- there was a Flash Gordon animated series done by Filmation in the 8 -- in the mid-70's, I would say.
Q: So has the exploitation --
A: There was a feature film in the 70's.
Q: Would you characterize the exploitation as intermittent or continuous?
A: It's certainly tapered off the last 20 years. I would say it's intermittent.
Q: Is Flash Gordon popular?
A: It's a known character. I wouldn't say it's very popular these days.
Q: Has Flash Gordon had the sustained success of Superman since the 1930's?
A: Not at all.
Q: Tell me about the character Ghost Rider?
A: Ghost Rider, if you're referring -- there have been a number of characters named Ghost Rider. If you're referring to the one that was a motion picture that was a Marvel comic that was introduced in the early 70's. The comic book has been published intermittently. It had a successful run for a few years. They stopped it and brought it back. There was a successful motion picture a few years ago.
Q: Was Ghost Rider popular?
A: Briefly here and there at times.
Q: Has Ghost Rider been exploited -- excuse me. Has Ghost Rider had the sustained success of Superman since the 1930's?
A: Not even close.
Q: Are you familiar with the character Ironman?
A: Yes, I am.
Q: Tell me about Ironman's exploitation.
A: The exploitation -- well, Ironman was first in comics in 1963. He was in a comic, Tall Tales of Suspense. He was a minor Marvel hero in the 60's. There was a bad, low budgeted cartoon show, and they stuck Ironman in that. His comic book did not do very well for a time. He was cancelled a couple of times and brought back, I believe. More recently, there was an Ironman animated series and a very successful Ironman motion picture a few years ago.
Q: You're referring to the Ironman film that came out in 2008?
A: Yes, I am.
Q: Prior to the release of the Ironman film, would you describe Ironman as successful?
A: No. I would describe it as a lower tier Marvel character.
Q: Has Ironman had the sustained success of Superman?
A: No.
Q: Have you heard of the graphic novel entitled 300?
A: Yes, I have.
Q: Could you describe for me what this consists of?
A: It was a series of comic books done -- published by Dark Horse around '98. I'm not sure of the year. And then they collected it into a graphic novel, published it as a collected work. And the motion picture was made out of it that I'm told was very successful.
Q: Was it what they call a miniseries?
A: Yes, that's right.
Q: Do you know how many issues were released by Dark Horse in the 1990's?
A: It's either four or six. I'm sorry. I don't know the exact number.
Q: And outside of those four or six issues and then being bound together in a graphic novel, has 300 been exploited outside of publicly?
A: Just that movie.
Q: What you say that movie, you're referring to the 2007 movie entitled 300?
A: Yes.
Q: Other than the publishing you mentioned on 300 and the movie released in 2007, are there any other exploitations?
A: Not that I know of.
Q: Has Ironman had anywhere near the sustained success of Superman?
A: Are you asking me about Ironman or --
Q: Excuse me. 300?
A: No, not at all.
Q: Are you familiar with the character Swamp Thing?
A: Yes, I am.
Q: In what media did it first appear?
A: It first appeared in House of Secrets No. 92 in 1971.
Q: And after that?
A: Shortly after that, it got its own comic. And it was very successful for a short time period, and then they cancelled the book.
Q: Has Swamp Thing had the sustained success of Superman?
A: No, it hasn't.
Q: Have you heard of the character Human Target?
A: Yes, I have.
Q: When did this character first appear?
A: I think 1971 as a backup feature in Action Comics.
Q: And after that?
A: I think DC brought it back intermittently here and there.
It was only in Action Comics for a short period of time. It was not considered a successful character. And then at some point, I'm sorry, I can't tell you the year. There was a short-lived television series. I think it lasted like seven episodes.
Q: Has the Human Target appeared in any other medium?
A: I don't know of any.
Q: Has the Human Target in any way, shape, or form – strike that.
Has the Human Target -- is it comparable to Superman?
A: I can't think of too many characters less known these days than the Human Target.
Q: Are you familiar with a character Doc Savage?
A: Yes, I am.
Q: When did he first appear?
A: I think 1933, I believe, as a pulp character.
Q: And from its first appearance in 1933, when did it appear thereafter?
A: There was a radio show. I don't think there was ever -- there was a very short-lived newspaper strip. I think it lasted less than a year. There was a -- boy, I can't tell you too many appearances. There was a motion picture made in 1975 of Doc Savage that was not very successful.
Q: And the radio show?
A: And there was a comic book -- there was a comic book in the 40's briefly, and then there was a comic book in '75 to tie in with the motion picture, and there have been – been occasional comic book appearance.
Q: When did the radio show --
A: The radio show was in the 40's sometime.
Q: Has Doc Savage had anywhere near the sustained success of Superman?
A: Not at all.
Q: Are you familiar with G.I. Joe?
A: Yes, I am.
Q: When did G.I. Joe first appear?
A: G.I. Joe was a -- debuted as a toy from the Hasbro company in the early 60's. It was produced for a while as strictly a toy. In the early 80's, Hasbro resurrected the toy and also promoted an animated series and a comic book to expand the franchise to add ancillary characters and promote the name of G.I. Joe.
Q: When did the animated series G.I. show appear?
A: Mid-80's. I can't tell you the exact year.
Q: And this was like a Saturday morning cartoon?
A: It was a syndicated series. Hasbro, the toy company themselves, produced it. They financed it, promoted it. They were the advertiser. It was on many stations in the syndicated marketplace.
Q: Has G.I. Joe ever been exploited as a theatrical film to date?
A: I don't think so.
Q: Has G.I. Joe had the sustained success of Superman?
A: No.
Q: Have you heard of the comic book Watchmen?
A: Yes, I have.
Q: When was it first released?
A: Oh, I think '86. There was a 12 issue -- they call it a maxi series if they go over 4 or 6 issues. It was 12 issues. It was a comic book published by DC, and then they collected those 12 issues into a trade paperback and a hard cover and a trade paperback and -- and other formats.
Q: Other than the printing and reprinting of these 12 issues in different formats, was it -- were there other issues that were published?
A: Other issues of Watchmen? I don't believe so. There were some distant spin-offs, I believe.
Q: Did Watchmen appear in any other media?
A: There was a motion picture released recently. A very big budget movie after the graphic novel.
Q: Other than the motion picture you just mentioned, has Watchmen been exploited in any other media?
A: There's been a few merchandise items promoted in conjunction with the motion picture.
Q: Was the film successful, the recent Watchmen film?
A: The word is not successful.
Q: Has Watchmen had the sustained success of Superman?
A: Not at all.
THE COURT: What do you mean by "sustained success"?
THE WITNESS: Well, Superman --
THE COURT: No, what do you mean by the phrase?
THE WITNESS: There's no track record. When they say sustained success, more than a couple of months in the spotlight. More than six months of heat. Sustained success means more than one success.
THE COURT: Very good.
Q: BY MR. TOBEROFF: You are familiar with Tarzan?
A: Yes, I am.
Q: When did Tarzan first appear?
A: Tarzan first appeared in 1912 in pulp magazines.
Q: Was this pulp magazine publication a serialized magazine of the Edgar Rice Burroughs books?
A: Yes.
Q: How many books did Edgar Rice Burroughs write?
A: I'm sorry. I don't know the answer to that.
Q: Do you have an approximation?
A: I think 30 or something like that. I don't know. I used to work for the company, and I don't know the answer to that. I'm sorry.
Q: Do you know -- I finally found a question you didn't know the answer to.
Do you know how many Tarzan stories were published prior to January 1, 1922?
A: Around 20, I believe.
Q: Has Tarzan been consistently exploited since its publication in serialized form in 1912?
A: Relatively consistently. It always seems to be around in some form.
Q: Are you familiar with Tarzan's exploitation in film?
A: Reasonably so, yes.
Q: How many films were produced based on Tarzan?
A: I'm sorry. I can't give you the -- about 20 or 25.
Q: How would you characterize those films in terms of their success?
A: Well, they were low budget films. They were successful as low budget films. You know, shooting stuff in the jungle is real cheap.
Q: During what period?
A: Mostly in the 50's, early 60's. They did – the franchise declined in the 60's.
Q: And in publishing, how did -- how would Tarzan compare to Superman?
A: Superman -- Tarzan was very popular -- you're talking about in publishing comic books. Tarzan was very popular in -- let me start over.
In terms of publishing, if you're talking about publishing anything, the Tarzan novels were very popular for many years. If you're talking about the comic book, the comic book was very successful throughout the 50's and 60's, and it declined rapidly in the 70's.
Q: How would you compare the success of Tarzan in publishing to that of Superman?
A: In terms of comic books or in terms of all publishing?
Q: All publishing.
A: I -- I don't know what the sales of the Tarzan books have been like for the last couple years. I'm so doing a Tarzan comic book project right now, and they are warning me it's not going to sell very well. But I don't -- I don't have any information on the current sales of the books.
Q: How do you believe Tarzan stacks up against Superman in terms of a sustained commercial track record?
A: I don't think he's as popular as Superman. I don't think he has the same track record as Superman.
Q: Are you aware of the character Conan the Barbarian?
A: Yes. I'm doing a Conan project for the same publisher.
Q: When did Conan first appear?
A: In the 30's in a comic called -- in a magazine called Weird Tales, and it was serializing pulp novels written by a man named Robert E. Howard.
Q: Has Conan had the sustained success of Superman?
A: No.
Q: Are you familiar with Marvel comics?
A: Yes, I am.
Q: How would you compare Marvel comics to DC Comics in terms of their -- the success of their characters in the comic book industry?
MR. PERKINS: Objection. Relevance, and again, not in the report.
THE COURT: Where are you going with this in comparison to Marvel and DC Comics, Counsel?
MR. TOBEROFF: I don't want to testify for the witness, but we believe that Superman at DC had two core characters. Superman and Batman, and that Marvel, which really dominated the comic book industry for quite some time, and Marvel had an assortment of characters, some of which were popular, but essentially DC for a very long time dominated the industry with Superman and Batman.
This is relevant to valuing Superman as the basis for film and television --
THE COURT: Okay. Overruled.
THE WITNESS: May I have the question again?
(Record read.)
THE WITNESS: Both characters have had some tremendous successes. Marvel seems to have its successes over a greater range of characters. DC has very valuable properties in Superman and Batman. And then they have another tier of characters that are not quite as successful. There have been times when each company dominated the industry. I'm not sure what else to say.
Q: BY MR. TOBEROFF: Can you tell me about Marvel's business going back to the 1970's up to the present?
A: How successful the company was?
Q: Yes.
A: Well, Marvel throughout the 60's, 1960's in comics was kind of a case of how long will it take Marvel to overtake DC. DC was the number one company in the 60's, and at one point by a very wide margin, and over the years, Marvel chipped away at their success to the point where -- it's arguable at what point they actually passed them because there's different measures, but certainly by the early 70's, Marvel had eclipsed DC and was the dominant company in the marketplace.
Q: Did Marvel go bankrupt at one period of time?
A: Marvel at one point had a bankruptcy, yes.
Q: When was that?
A: Late 80's, early 90's. I'm not sure.
Q: What is the stature of Marvel in the industry – the entertainment industry today?
A: It's a very healthy company as far as I can determine.
Very successful. They are dominating a lot of the publishing. They are dominating much of the media. They are producing their own motion pictures, and they have quite a few of them coming out based on their properties. Seems to be a very successful company now.
MR. PERKINS: Objection, your Honor. Foundation.
MR. TOBEROFF: I have no further questions.
THE COURT: Very well.
Counsel, cross-examination. And I will sustain your objection on foundation on the health of the company.
MR. PERKINS: Thank you.
CROSS-EXAMINATION
BY MR. PERKINS:
Q: Good afternoon, Mr. Evanier. This morning when you went through the list of your credits and the characters that you worked on, you omitted a character, didn't you?
A: I omitted lots of characters.
Q: You omitted the character Groo, G-R-O-O, the Wanderer; is that correct?
A: Yes.
Q: And that's a character that you co-created; isn't that right?
A: No, I did not.
Q: You did some writing on that character?
A: I write on -- I contribute to the character, yes.
Q: And as a result of your involvement with Groo the Wanderer, you also have a business relationship with Mr. Toberoff and his film company; isn't that correct?
A: Not with -- I don't think Mr. Toberoff has a film company.
Q: Do you have a relationship, a business relationship with the company called IPW?
A: I don't think so. I don't think you'd call it a business relationship.
Q: Mr. Evanier, you recall having your deposition taken on March 30, 2007?
A: Yes, I did.
Q: When you were having your deposition taken, did you testify under oath?
A: Yes, I did.
Q: And when you were testifying, did you testify truthfully?
A: I believe I did.
Q: At page 37, beginning at line 3 of your deposition, do you recall making the following statement and then answering the following questions?
THE COURT: Wait. You said page 37 --
MR. PERKINS: Line 4:
"And then, as you know, Mr. Toberoff and I had a relationship relating to the comic book character Groo the Wanderer that I'm involved with.
"QUESTION: What was that relationship?
"ANSWER: Well, at the moment we are developing a screenplay with a company that Mr. Toberoff is affiliated with."
Do you recall that testimony?
A: I believe I do, yes.
Q: Was it truthful?
A: Yes.
Q: There is in fact an agreement between a company affiliated with Mr. Toberoff and the rights relating to Groo the Wanderer for exploitation of motion pictures; isn't that correct?
A: Yes, there is.
Q: And you stand to benefit financially if the motion picture is exploited; isn't that correct?
A: If the motion picture is made, yes.
Q: And you know the financial terms under which the Groo the Wanderer comic book character is to be exploited; isn't that correct?
A: I actually don't remember the exact terms.
Q: Well, is there an option payment?
A: Yes.
Q: What is it?
A: I don't know. I don't remember.
Q: Is there a purchase payment in the event a motion picture goes forward?
A: I don't know.
Q: In the event a motion picture is made, is there a gross first dollar participation in that agreement?
A: I don't know the answer to that.
Q: Now, Mr. Evanier, you consider yourself an advocate for comic creators' rights; isn't that correct?
A: I would say so, yes.
Q: And on occasion, you've taken it upon yourself to right perceived wrongs that have taken place in the comic book community; is that right?
MR. WILLIAMSON: I'm going to object, your Honor. Vague and ambiguous.
THE COURT: Do you understand the question?
THE WITNESS: I'm not a hundred percent sure I do.
THE COURT: Why don't you rephrase, Counsel.
Q: BY MR. PERKINS: Mr. Evanier, do you recall at page 70 of your deposition being asked the following question and giving the following answer? Page 70, line 5:
"QUESTION: Have you in the past taken it upon yourself to right wrongs that you perceive to have taken place in the comic book community?
"ANSWER: Occasionally, yes."
Do you recall that testimony?
A: Yes, and phrased that way, the answer to the question is yes.
Q: Were you testifying truthfully?
A: Yes.
Q: You've given some testimony today, Mr. Evanier, concerning what I think you termed the decline of popularity of the Superman character in the 1970's.
Do you recall that testimony?
A: Yes.
Q: And your testimony with respect to the popularity of Superman has been limited to his popularity in comic book sales; isn't that correct?
A: Yes. Well, no. I take that back. I mentioned the – I talked about the decline of the motion pictures. Are you talking about a specific time period?
Q: I'm talking about the 1970's.
A: Well, okay. In the 70's, I did talk about the additional failure of the Super Friends cartoon show. And I talked about the bad reception for the 1975 Superman television special.
Q: Now, in 1972, do you know how many Superman titles were being published by DC Comics?
A: I can figure it out if you give me a minute. They were publishing Superman. They were publishing Action Comics. They were publishing ad -- '72. Superman -- Supergirl was in adventure comics in '72. Jimmie Olson was still being published. Lois Lane was still being published. There was a -- World's Finest comics was being published, and that was featuring Superman every month.
I can't -- I can't swear that's a complete list.
Q: What about Superboy?
A: Superboy was being published in '72, yes.
Q: How about Justice League?
A: Justice League was being published in '72, yes, I believe.
Q: Do you know, as you sit here today, what the average monthly sales combined of these Superman titles were in 1972?
A: I can't give you a number.
Q: How about 1971?
A: I can't give you a specific number, no.
Q: How about 1973?
A: No. I don't have a specific number.
Q: 1970?
A: No.
Q: You are aware, aren't you, that notwithstanding your testimony of decline, in 1972, the Superman titles were still outselling the Batman titles; is that right?
A: There were a lot fewer Batman titles.
Q: Were the Superman titles outselling the Batman titles?
A: The seven or eight Superman titles were outselling the three or so Batman titles, yes.
Q: Right. So the market was able to sustain seven or eight Superman titles; correct?
A: In '73, they were still publishing, yes.
Q: And in 1972, the Superman titles were outselling the X Men titles; isn't that correct?
A: In '72, yes. Well, X Men was in one comic, but yes.
Q: And it was also outselling Ironman; is that correct?
A: Could I have the whole question?
Q: The Superman titles were outselling the Ironman titles?
A: The Ironman was in one comic, and Superman was in multiple comics.
Q: What comic titles were outselling Superman in 1972?
A: I believe the Richey Rich line was outselling --
THE COURT: I'm sorry. What?
THE WITNESS: Richey Rich. I believe the Archie line was outselling Superman in 1972. Casper the Friendly Ghost may have been also.
Q: BY MR. PERKINS: Caspar the Friendly Ghost -- was that a popular comic book character?
A: For many years it was, yes.
Q: And Mr. Toberoff didn't ask you about that. Well, let me ask you.
Do you compare that favorably in terms of sustained success to Superman?
A: I don't think it's anywhere in Superman's league. It's had its moments of success. It hasn't been published as a comic book in a long time.
Q: Now, are you familiar with the expression or the phrase Q rating?
A: Yes.
Q: Can you explain to the Court what that is?
A: Well, I know it mostly in conjunction with television networks. They will do surveys to determine the popularity of characters, how familiar people are. They also do this with celebrities. There are Q stores for various actors, franchises, shows, products. They -- it's a survey that attempts to determine two things. It determines how well-known something is and how favorably disposed the general public is towards it.
Q: Now, in opining on the declining popularity of Superman in 1972 -- in the early 1970's, did you take into consideration Superman's Q rating?
A: I consider Q ratings to be bogus, snake oil.
Q: Is that a "no"?
A: I did not take it into account, no.
Q: Regardless of what you think of Q ratings, media exploiters, companies that exploit characters in television and motion pictures look at Q ratings, do they not?
A: I guess some do. I think most of them do not these days.
Q: How about in 1972?
A: I wasn't in the industry -- in the television industry in '72. So I'd have no experience for that.
Q: In 1973, are you familiar with how many weekly viewers were tuning in to the Super Friends animated series?
A: I can't give you a number. I know that ABC was very unhappy with the show.
Q: What's the basis for that statement?
A: People at ABC telling me that years later.
Q: But as you sit here today, you don't know what the percentage share of televisions tuning in on Saturday morning when Super Friends was showing, was being -- was tuned in to Super Friends?
A: No. I'm assuming it was low because they canceled the show.
Q: When did they cancel the show?
A: Well, they canceled it almost -- well, they canceled it almost immediately. They ran the entirety of the first 12 that were made. Or there may have been 18 at the time. They ran it for one season, and they stopped production on it.
Q: So in 1973, do you know how many homes were tuning in?
A: No, I don't know the number.
Q: Mr. Toberoff took you through a list of comic book characters or comic book properties that he asked you to compare to Superman. And I wanted to ask you a couple questions about a couple of them.
You testified, I believe, that Men in Black was not a very popular comic book title; is that correct?
A: I believe I testified that it was not well-known at that time. It was a relatively new property at the time.
Q: And are you familiar with whether or not it was a successful motion picture?
A: I believe it was a successful motion picture.
Q: And you testified that Ironman in your opinion was not well-known when the Ironman motion picture came out recently; is that correct?
A: Could I have that one more time, please?
Q: Is it your opinion that the Ironman property was not well-known when the most recent motion picture came out?
A: It was not that well-known compared to the other properties -- some of the other properties we've been talking about like Superman and Batman.
Q: Are you familiar with how Ironman did at the box office?
A: I can't give you the numbers, but I heard it did very well.
Q: With respect to Lois and Clark, do you know how many episodes of Lois and Clark were produced?
A: There were four seasons, I believe. So you're talking about roughly 20 episodes per season.
Q: Do you have any knowledge based on your experience as to how in 1997 television producers gauged the success of their programs?
A: Yes.
Q: And how did they gauge its success?
A: They look at ratings and the demographics of the audience and the ratings. They look at the profitability of the show.
Q: Do you know what the Lois and Clark ratings were in the first season?
A: No, but it was renewed. So they can't have been too bad.
Q: How about the second season?
A: I don't know the specific ratings.
Q: Do you know the ratings in any season of Lois and Clark?
A: No, I don't.
Q: So your assessment that Lois and Clark was successful was based upon information that does not include the ratings; correct?
A: It's based on the assumption that the ratings had to be good enough to get it renewed year after year.
Q: Now, you have not, in connection with formulating opinions in this case, performed any formal audience surveys to determine what creates interest in a Superman motion picture; correct?
A: None.
Q: And your opinion in this regard is based solely on your anecdotal interactions with people in the comic book community; isn't that right?
A: Could I have the whole question again? Let me have the first part and the second part which referenced the first part.
(Record read.)
THE WITNESS: The answer to your question is I formulate my opinions based on observation of the industry, what they are publishing, what they publish more of. Yes, there is anecdotal information involved, but it's also reading articles about the success of things. I don't have to -- I don't have to conduct a survey to know that a very successful movie was very successful.
Q: BY MR. PERKINS: When you are referring to the industry, you mean the comic book industry; correct?
A: Not necessarily. I'm talking about the -- depends on the question. In some questions I'm talking about the entertainment industry. When I'm talking about the success of a motion picture, I'm not talking about the comic book industry exclusively.
Q: Well, what about with respect to your opinion as to the recognition amongst the public of Superman's popularity?
A: That's observation from appearances. That's seeing how the character appears in various media. That's anecdotal as well. I think it's kind of well-known that people know who Superman is.
Q: Now, in your experience has popularity of a given title or character in the comic book industry automatically translated into popularity outside of the comic book community?
MR. WILLIAMSON: I'm going to object, your Honor. Vague and ambiguous, time and place.
THE COURT: Overruled.
THE WITNESS: Could I have the question again, then. (Record read.)
THE WITNESS: Automatically, no.
Q: BY MR. PERKINS: Sometimes it does, and sometimes it doesn't; is that right?
A: Yeah, it's like, you know, you could have, say, a big movie star. People love him. They want to see his movie. That doesn't mean they will see every single movie he's in.
Q: Now, you have not reviewed the terms, the financial terms of any Superman motion picture agreement that's at issue in this case; correct?
A: That's correct.
Q: So with respect to, for example, the 1974 motion picture agreement between DC Comics and the Salkind folks, you have no idea how much value DC comic was able to obtain for its license of Superman motion pictures; correct?
A: That's correct.
Q: And similarly, you have no idea how much the DC Comics was able to obtain in value from Warner Brothers in connection with the more recent motion picture agreement?
A: I have not seen those contracts, correct.
Q: And your opinion, therefore, as to the alleged declining value of Superman in the early 1970's does not purport to opine as to whether that decline in value in any way affected the financial terms in the 1974 motion picture agreement; correct?
A: I don't believe I said anything to that effect.
Q: This morning, before the lunch break, I believe you testified that in your view, one of the reasons for the alleged decline of the Superman franchise in comic books in the early 1970's was that some of the actual issues were not very good; isn't that correct?
A: That's my opinion, yes.
Q: And isn't it fair to say that if a bad motion picture starring Superman were produced, that that also would have a deleterious affect on the value of Superman?
A: No, I don't think that follows logically at all.
Q: Now, do you know what the grosses were --
A: Excuse me. May I amend something I just said a minute ago? Is that all right? Am I allowed to go back? I said that I felt that the comic books were not very good. I also said that I think -- I emphasize I felt that the comic books were missing the point of the character for a time there. They were -- they were not being true to the soul and core of the character. And they were demeaning the character in many ways.
THE COURT: You've testified that there have been comic books that have not done well in terms of popularity that have translated well to the screen as movies.
THE WITNESS: Yes, there's no automatic formula here.
THE COURT: And now you've just testified that a use of a bad movie, but a poorly received movie does not necessarily affect the followship of the comic strip? Am I understanding you correctly?
THE WITNESS: I'm sorry. If you could ask that one more time?
THE COURT: I guess what I'm gathering from your testimony is that you are suggesting that there is not necessarily a correlation between the success or popularity of the comic strip and the success and popularity of the movie and vice versa.
THE WITNESS: No, I'm not testifying to that. I believe that if you base a movie on a very popular comic book, you'll have a greater chance of success. That doesn't mean it's guaranteed to be a success. You can take a best-selling novel and turn it into an unsuccessful movie. But to start with a best-selling novel gives the motion picture a better chance of success.
THE COURT: And is there any formula or calculus that you are aware of using empirical data that can measure this, or is this kind of anyone's guess?
THE WITNESS: If I could figure out a formula, I'd be running a studio right now.
THE COURT: Fair enough. You and me both.
So I guess the bottom line is there is no such formula.
THE WITNESS: One of the interesting things about -- well, comic books and movies, is that there's a certain amount of crap shoot involved in this. You're putting out your best efforts. You put in the best elements and get the best script you can. You get the best stars you can, and you get the best underlying property, and you hope to succeed with it. And if you do a bad job, people don't go see it. I've done shows that people didn't watch because we didn't do as good as possible a job on it. And I've done shows that people have liked and enjoyed because somehow we locked into the right elements, or somebody was skillful.
THE COURT: Or you got lucky.
THE WITNESS: Yeah, we got lucky.
THE COURT: All right.
Q: BY MR. PERKINS: Mr. Evanier, going back to your comment about some of the comic book titles in the early 70's having missed the point of the character, is it your opinion that Superman 4 missed the point of the character?
A: I think Superman 4 was just a bad movie. And I have to honestly tell you that when it first came out, everybody told me not to go see it. I didn't watch it until a year or two later. I saw it at a screening at a convention a few years later, and it's kind of let's all go laugh at that movie. They all thought it was corny. And it probably missed the point of the character in the sense of being preachy and making Superman kind of an unpleasant character.
So I guess yes, in that context it did miss the point of the character.
MR. PERKINS: I have nothing further, your Honor.
THE COURT: Very well.
Redirect.
BY MR. TOBEROFF:
Q: You mentioned that having a famous comic book character in a movie did not necessarily guarantee success in the movie. Does it, in your opinion, dramatically improve your chances of success?
A: Certainly.
MR. TOBEROFF: I have no further questions on redirect.
MR. PERKINS: I have just one cross on that, your honor.
BY MR. PERKINS:
Q: Mr. Evanier, in your years as a comic book expert, have you ever done any formal study of what comic book characters have and have not been successful in a motion picture?
A: A formal study? I don't know what that means. Can you ask a more specific question? Can you -- I don't know what that means exactly. A formal study? I don't know if there have been any formal studies.
MR. PERKINS: I have nothing further.
THE COURT: Very well. You are excused.

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