Monday, September 10, 2012

"The companies owned all the characters and all rights to the material submitted by the creators..." - Jim Shooter Under Oath

Following on from John Byrne's testimony in the Marv Wolfman Blade case, here we have Jim Shooter, former Marvel Editor-In-Chief. 

People generally have two ways of looking at Shooter - he's either the prime example of everything that has ever been wrong in the comic book industry since the dawn of time, or he's a visionary who was, at best, misunderstood by the very same people he tried so hard to help.  Oddly enough there's very few people who sit in the middle of that fence, but such is the impact of Jim Shooter that even today, decades after he left Marvel, his name still brings strong reactions from people.  it doesn't matter if people talk about Shooter as a writer, an editor or an artist - his very name polarises people.

As Shooter was the EIC at Marvel from 1978 through to 1987 it was no surprise that they'd approach him to testify on their behalf.  What follows is Shooter's own words about what happened at Marvel in the late '70s and the early '80s and when reading this, it's worth bearing an expression in mind - as many people will say, if Shooter believes something then it's the truth, in Shooters eyes.  It matters not how many people can prove him wrong, or what evidence they may have, if he firmly believes it then it happened, as far as he's concerned.  Now, have at you!



DIRECT EXAMINATION OF JAMES SHOOTER

James C. Shooter, having been duly sworn as a witness, was examined and testified as follows
 MR. FLEISCHER:  Your Honor, in an effort to move things along, I am going to try to get through Mr. Shooter's qualifications by leading.
THE COURT: All right.
MR. FLEISCHER: Mr. Shooter, you began your career in the comics industry by submitting your first story to DC Comics in 1965. You were 13 years old at the time?
JIM SHOOTER: Yes, I was.
MR. FLEISCHER: You received your first assignment from DC in February of 1966, is that correct?
SHOOTER: Yes, it is.
MR. FLEISCHER: And that assignment was to write a Supergirl story?
SHOOTER: Yes, it was.
MR. FLEISCHER: After you completed that issue, you received regular freelance assignments from DC over the next four years?
SHOOTER: As much as I could do.
MR. FLEISCHER: And that would have been until approximately 1969?
SHOOTER: End of '69, beginning of 1970.
MR. FLEISCHER: And you wrote for tides that included what books at DC at the time?
SHOOTER: Adventure Comics, featuring Superboy and the Legion of Superheroes, Superman, Action Comics, Captain Action, World's Finest, Superman's Pal Jimmy Olsen, Superboy. That may be all of them.
MR. FLEISCHER: You began working at Marvel in late '69 or early '70; is that correct?
SHOOTER: That's true.
MR. FLEISCHER: And at that time, you were employed as a staff writer on a fulltime basis for Marvel?
SHOOTER: Yes, I was.
MR. FLEISCHER: Your responsibilities as a staff writer for Marvel included editorial work, writing plots and scripts?
SHOOTER: Well, nominally, my responsibilities were to write comic books. But I found myself sort of helping out wherever needed. So going to the hottest fire. So I did editorial work. I did paste-ups. Whatever they needed.
MR. FLEISCHER: You left that job very shortly after it began; what was your reason for leaving?
SHOOTER: Well, I got the job when I was 18 years old. It required that I move to New York from Pittsburgh, which was my hometown. And I didn't have a lot of money. I just couldn't make ends meet, and after several weeks couldn't find an apartment. Finally, I just had to reluctantly give it up.
MR. FLEISCHER: What did you do after giving up the job in New York?
SHOOTER: I looked for work in Pittsburgh that would use my skill set. I got some work doing comic book format advertising mostly for an agency called Sando Bishopric on the U.S. Steel account, and U.S. Steel Building Materials, several other large accounts. There was a supermarket chain. And that was great work. But it wasn't steady. So in between, I would do what I called survival jobs.
MR. FLEISCHER: You returned to the comic book industry in 19731974?
SHOOTER: Yes. I don't know exactly when.
MR. FLEISCHER: And how did it come about that you returned to the comic book industry?
SHOOTER: Well, I hadn't really considered the comic book industry, because I had sort of left Marvel on short notice and I left DC to go to Marvel, and I didn't know if I would be welcome in either place, and I gathered they sort of lost track of how to get in touch with me. I got a phone call. Somehow somebody found me, and I got a phone call from a gentleman named Duffy Vohland, who worked at Marvel and said he was an editor there. He said they were very interested in having me write for Marvel Comics, and would I come to New York and meet with people there, so I arranged a time and I flew to New York and I met with people at Marvel Comics Later that same day, on the advice of some of the people I talked to, I also went over to DC Comics, I was enthusiastically received there. I was ushered into the publisher's office and offered work at DC as well.
MR. FLEISCHER: At the end of the day, you had two job offers, one from Marvel and one from DC. Which one did you accept?
SHOOTER: I took the DC job.
MR. FLEISCHER: Why did you take that job?
SHOOTER: Marvel offered me a character I had never heard of. And it would have required a lot of research to get up to speed in order to write that character. DC Comics offered me the same characters I had been writing before, Superman and Superboy. And just from looking at what they showed me in the office that day, I could see I could go right home and start writing a story. So I took the path of least resistance.
MR. FLEISCHER: You began to freelance at that time and work for DC on that basis for how long?
SHOOTER: Around two years. I don't know exactly.
MR. FLEISCHER: And during the time you were freelancing at DC, did you do any freelance work for anyone else?
SHOOTER: Yes I think toward the end of the time that I was freelancing for DC I did finally get a few assignments from Marvel, two or three.
MR. FLEISCHER: And while you were freelancing for Marvel, do you recall the names of the tides you worked on?
SHOOTER: I wrote an issue of Super Villain Team Up I think I wrote an issue of Iron Man. And there might have been one other one. But I don't know.
MR. FLEISCHER: Did there come a time when you began to work for Marvel on staff on a fulltime basis?
SHOOTER: Yes. January 1976.
MR. FLEISCHER: What position did you hold?
SHOOTER: I was associate editor.
MR. FLEISCHER: What responsibilities did you have as associate editor?
SHOOTER: I was supervising the creation of about 45 color comic books every month. I worked with the writers on the plots and scripts and with the artists on the pencils and inks. Also sort of was the staff sergeant. I oversaw several assistant editors who did other editorial work on the books. And I was sort of the second in command of the editor in chief.
MR. FLEISCHER: Who interviewed you for that position?
SHOOTER: I wouldn't call it an interview. Marv Wolfman was the editor in chief and I discussed the job with him.
MR. FLEISCHER: How long after you started as associate editor was it that Mr. Wolfman remained as Marvel's editor in chief?
SHOOTER: About four months.
MR. FLEISCHER: Were you aware of the circumstances under which Mr. Wolfman ceased to be the editor in chief at that time?
SHOOTER: Yes. He was asked to leave.
MR. FLEISCHER: To whom did you report after Mr. Wolfman left the position of editor in chief?
SHOOTER: Marv was succeeded by a man by the name of Gerry Conway. He didn't stay there very long. Gerry was succeeded by a man named Archie Goodwin, and he was there for 18 or 19 months, I suppose. And I worked in the same job during that time.
MR. FLEISCHER: During the time that you were associate editor, did you write your own scripts for publication by Marvel?
SHOOTER: Yes, I did.
MR. FLEISCHER: Was that writing work that you did for Marvel within the scope of your editing work at Marvel?
SHOOTER: No. If you had a staff job and you did creative work, you were paid separately, with what they called a freelance check. It was 1099 income as opposed to your W2 income that you got for your staff job.
MR. FLEISCHER: Now, would you tell the court what tides you worked on as a freelancer for Marvel during your associate editorship?
SHOOTER: I wrote some issues of Daredevil, Ghost Rider and The Avengers. And I might have done a fill-in or two, I don't know, on another title.
MR. FLEISCHER: What was the next position that you held at Marvel?
SHOOTER: I was editor in chief as of January 1978.
MR. FLEISCHER: How long did you hold that position?
SHOOTER: Nine years and four months.
MR. FLEISCHER: Has anyone ever held a position of editor in chief at Marvel for that long?
SHOOTER: Certainly not before me. I don't know about since then
MR. FLEISCHER: Would you describe your responsibilities as the editor in chief at Marvel?
SHOOTER: I was the creative head of Marvel Comics. The job changed somewhat while I was in it. It sort of grew. I was promoted to vice president shortly after I took office. My job was to oversee all the publications of Marvel Comics, and work to make them successful and oversee the content, work with the writers and artists, to try to make Marvel Comics' publishing successful. I also during that time, because I became more a part of Marvel management than my predecessors had, I became Marvel's, the company's representative to the creators, as well as, in my opinion, the creators' representative to the upstairs management of Marvel, since I was privy to goings-on there.
MR. FLEISCHER: You left Marvel in 1987?
SHOOTER: Yes.
MR. FLEISCHER: Would you briefly describe what you have done since leaving Marvel?
SHOOTER: I did some freelance writing. I wrote some comics, wrote a live action arena show for a Marvel licensee. I spent a year trying to buy Marvel Comics. I put together a group called the Marvel Acquisition Partners. And with Chase North America as our financial advisor, we made several attempts, ultimately ended up participating in an auction, made a bid, were outbid by Ronald Perelman. That basically took up 1988. I made several other attempts, I looked into buying other companies and ultimately didn't bid on any of them. Harvey, Archie. I worked for Disney as a consultant for eight months on the formation of their Comics Publishing Division and the inception of Disney Adventure magazine. I raised money and I started a company called Voyager Communications, Incorporated, the publishers of Valiant Comics. I had two start-up companies after that. I worked in partnership with Lorne Michaels on a comic book related venture. The idea was to develop characters which ultimately could be used in film and television. That was sold to Golden Books Family Entertainment, which has fallen on financial hard times. After that I have been a freelance writer. I have a contract to write a book for John Wiley & Sons on the business of the comic book industry. I am writing a screenplay for a producer. I have a young adult novel series that I am late on because I am here. And I am writing a comic book series for Acclaim Entertainment.
MR. FLEISCHER: Have you ever given any interviews on comic related subjects?
SHOOTER: Hundreds of them.
MR. FLEISCHER: Could you describe the range of subject matters on which those interviews have been given?
SHOOTER: I think all subjects related to comics. Everything from what is going on in a specific issue of a comic book, what's new at Marvel. Things about the business Things about the stories. About the creators. About creators' rights. About - I have even given lectures and seminars on creating comics all over the country. Any subject you can imagine, I have had some participation in one of those events. So that covered it.
MR. FLEISCHER: Have you attended any seminars or conventions that are particularly significant in the industry?
SHOOTER: I have gone to hundreds of conventions. In, I guess, the early 1970s, the most important convention was the July 4th Convention in New York. I would say in the last couple of decades the most important convention is the San Diego ComicCon, and I am a frequent attendant.
MR. FLEISCHER: Have you ever done any panel discussions at any of those discussions?
SHOOTER: Virtually every time that I go to a convention I am on one or more panels.
MR. FLEISCHER: Have you received any awards for contributions you have made in the comic book industry?
SHOOTER: I have received a number of awards. The most significant to me is, I received several Diamond Gem Awards, they call them the Gemmys Diamond is the, it used to be the largest comic book distributor to the direct market. Now it is the only comic book distributor to the direct market. The Diamond Gem awards are voted on by the trade by several thousand retailers. So I feel like it's the industry's trade award. I received a lifetime achievement award at the same ceremony that Stan Lee received his lifetime achievement award. And a couple of other ones.
MR. FLEISCHER: Mr. Shooter, are you familiar with the customs and practices that prevailed in the comic book industry from 1965 until at least 1979 pertaining to the ownership of materials published in comics?
SHOOTER: Yes, I am.
MR. FLEISCHER: Mr. Shooter, do you have an opinion with respect to whether or not there existed a standard practice within the mainstream comic book industry between 1972 and at least 1979 with respect to who would own the rights to stories and characters that appeared in those stories contributed by artists and writers to comic book publishers?
SHOOTER: Yes, I do.
MR. FLEISCHER: What was the practice during that period of time?
SHOOTER: The companies owned all the characters and all rights to the material submitted by the creators who worked for them.
MR. FLEISCHER: Was that practice applied equally to salaried employees and freelancers?
SHOOTER: Yes, it was.
MR. FLEISCHER: Do you have an opinion with respect to whether or not it was the practice and expectation in the 1970s for comic book writers to populate the stories they were writing with characters to interact with pre-existing characters?
SHOOTER: It was part of the job. It was expected by the editors who represented the companies, and it was understood by the creators that that was part of the job.
MR. FLEISCHER: What is the basis for your opinion that it was the standard practice in the industry between '72 and '79 that publishers would own all rights in the materials that writers and artists were hired to create for publication, including any new characters introduced into those stories?
SHOOTER: Well, a number of bases for that. First of all, my experience on the other side of the desk, as a freelancer, I was aware that was the custom and practice. When I took my first staff job at Marvel Comics and I was constantly among the creators and office people and management and so forth, I was aware, it was a constant topic of discussion then. You couldn't help but be aware of it.
MR. DILIBERTO: Objection Is to discussions. That is hearsay.
THE COURT: It is overruled.
SHOOTER: And then, when I became editor in chief, as I said, I was sort of the company's representative to the creative people. And it was very much an issue among the creative people that Marvel owned everything, including the characters, that they had submitted in the course or doing their jobs. I was constantly involved not only dealing with the creative people, and discussing the situation with Marvel management, but I also had extensive discussions with Stuart Singer and Charles Brainard -
MR. DILIBERTO: Objection. Hearsay as to discussions this witness may have had with other individuals not identified in this courtroom.
THE COURT: Overruled.
SHOOTER: These were the attorneys from Kenyon & Kenyon, Riley Carr & Chapin, who were Marvel's intellectual property lawyers. As editor in chief, it was essential for me to understand not only what the situation was now and to be part of dealing with the situation, but also to understand historically what had happened, and, you know, going forward to plan what we were going to do.
MR. FLEISCHER: Did you have any conversations with writers and artists other than those that were employed by Marvel in coming to your conclusion?
SHOOTER: Yes. 
MR. DILIBERTO: Objection. Calls for hearsay.
THE COURT: Overruled.
SHOOTER: First of all, the comics community is fairly small, and so you encounter people from other companies all the time. I was occasionally Marvel's representative to meetings of the Comic Magazine Association, and met regularly with the Harveys, with Michael Silberkleit from Archie and John Goldwater from Archie, with representatives from DC later, that would be Paul Levitz - it might have been Joe Orlando earlier on - and representatives from other companies, where these things were commonly discussed. And of course I, in the course of my employment as editor in chief of Marvel Comics, I hired a number of editorial people who assisted in the process of supervising the work that was being done and protecting the franchise, as it were, in editing and supervising the comics, publications, that were made. Among those people I hired were the former editor, the head editor, I don't think they called him editor in chief, of Archie Comics, two former editors from, head editors, of Warren Publications, and editors from DC, and eventually an editor from Harvey, a man who had been an editor at Harvey for 35 years. As I dealt with these people, I became more aware of the entire industry.
MR. FLEISCHER: In coming to your conclusion, did you have reference to any articles or interviews given at conventions and in the comic book industry press?
SHOOTER: Well, as I said, it was a constant subject of discussion. There were often articles in the press about it. And, yes, I saw many of them.
MR. FLEISCHER: What is the basis for your opinion that it was the usual practice and expectation for a comic book writer to populate the stories he was writing with characters to interact with pre-existing characters?
SHOOTER: Well, as I said, I had been on the other side of the desk, too, as a freelancer. When I prepared my first submission, I looked at the kind of comics that were published by the publisher I was going to submit the story to DC Comics, and I noticed that frequently new characters and new concepts were introduced. So I tailored my submission to meet that standard. I discovered, working as a freelancer, that that was well received. That was part of what made you a good writer in the eyes of the company, and that I was told often by my editor Mort Weisinger in my early career that it was part of helping a book sell well. It kept it exciting. It kept it fresh.

Once I reached the other side or the desk and had the sales figures at my fingertips myself, that wisdom was true. I found that, generally speaking, the best writers were the ones who often created new characters and brought new ideas into the existing world that we were continuing at Marvel Comics and that it was part of being a good writer. On both sides of the table I saw the process and realized that that was to the benefit of all, because the books were more exciting and the books sold and the writers would get more work and be paid more and the companies would survive and thrive.
MR. FLEISCHER: With respect to your opinion concerning the practices in the industry in terms of the ownership of rights, was there a change in the business landscape of the comic book industry from a newsstand business to an independent outlet that had an impact upon the ownership of rights?
SHOOTER: Before I was editor in chief, comics had been in a period of decline. It was a strictly newsstand business. All of the, virtually all the companies who published comics, with some exceptions, like underground publishers, who were basically small self publishers, mainstream comic book publishers were newsstand publishers. It was a newsstand business. During the '70s, another market started to evolve for comic books. It's commonly called the direct market. It is called that because publishers sell directly to a distributor as opposed to going through an intervening national wholesaler distributor. Those comics are sold on a firm sale basis. 

Once this network was in place, once this had grown from kind of a little cottage industry into a business that was selling a substantial number of comics, what it did was opened the door for small publishers, because it takes a fairly large publisher to achieve the economies of scale necessary to be a newsstand business. But a small publisher, if he knows he is selling, his company's firm can survive on what we would consider minuscule sales; 5,000, 10,000 copies. So it opened the door for a lot of small publishers to enter the comic book arena. That's when you had companies like Star*Reach coming in and Eclipse and others. As the direct market started to become significant, which would be the very end of the '70s and early 1980s, these little companies were able to enter the field and compete with us.
MR. FLEISCHER: And did the independent companies that experienced - these opportunities as a result of the changing landscape in the industry have different policies than the mainstream publishers with respect to the ownership of rights?
SHOOTER: Often. It was one of the ways that a very small company could compete with a giant like Marvel. Star*Reach was one of the first, for instance, that offered creators the right to own the material and the properties, the characters and so forth that they created. And Star*Reach would only buy certain print rights, as opposed to Marvel, and all of the mainstream companies, which for virtually all of their publications bought all rights of all kinds, including characters. The company owned the work that was done.
MR. DILIBERTO: Objection, Your Honor. There is no foundation for this entire testimony. Move to strike.
THE COURT: Overruled. You can cross him on it.
SHOOTER: So Star*Reach and Eclipse and other small publishers used that as a way to compete. I, of course, kept up with what was going on in the industry, and was very much aware of what these other companies were doing. I thought it was great. I thought that, well, not only should they do it, we should do it, too. So it really affected, it influenced companies like Marvel, and I think later DC, to start doing things like lines of creator owned comics. Ours was called the Epic Comics line.
MR. FLEISCHER: When did Epic come in?
SHOOTER: The first we published a magazine called Epic Illustrated. I think that was about 1980. In that magazine, the individual stories, we generally bought some package of rights from the creator as opposed to the work for hire that was done in all the regular Marvel comics. The outgrowth of Epic Illustrated magazine was the Epic Comics line, where we actually published individual comic books that were creator owned. I think that happened a couple years later, '82 '83 .
MR. FLEISCHER: Just focusing on the 1970s, were there any exceptions of which you were aware to the general policy that Marvel would own all rights to work as work for hire?
SHOOTER: I can think of a couple. There was a book called the Comix Book, which was Marvel's experimental entry into the market for undergrounds. And it was done, I think a deal was made with Denis Kitchen, who published undergrounds. And material was supplied. A lot of it was reprinted, it had been previously published. Creators had owned it and it was their material and it was being reprinted in comic books. So Marvel acquired only the right to print that material.
MR. FLEISCHER: What became of the Comix Book?
SHOOTER: The Comix Book lasted only two or three issues. It did not sell well. And that was the end of it. Probably this happened before my time. But after I became editor in chief, because this was an issue, it was discussed, I was made aware of this and learned about it.
MR. FLEISCHER: How were freelance writers and artists who submitted material to Marvel paid for the work they did?
SHOOTER: They were paid by check.
MR. FLEISCHER: On what basis was the payment calculated?
SHOOTER: Well, usually, it was a page rate, based on the printed page in the comic book. In other words, it didn't matter how many manuscript pages it took to make one page of comic book. But you got a per page rate for your work that appeared as it appeared.
MR. FLEISCHER: And between 1969 and 1978, were you aware of any legend that was affixed to the endorsement side of checks issued to freelancers by Marvel?
SHOOTER: Every check I got from DC Comics was stamped with a legend on the back. And every check I got from Marvel Comics as a freelance check was stamped with a legend on the back.
MR. FLEISCHER: When did you get your first freelance check from Marvel?
SHOOTER: I think it would have been late '69 or early '70.
MR. FLEISCHER: You left Marvel for a period of time and then you came back, I think, sometime in the mid1970s.
SHOOTER: Well, '73, '74. I don't know. Something around there.
MR. FLEISCHER: Did the legends continue to be on checks issued to freelancers at Marvel throughout the 1970s?
SHOOTER: Throughout the 1970s.
MR. FLEISCHER: Do you recall what, in substance, the legend said?
SHOOTER: It said that the company was the owner of the characters and the company owned everything. The company owned the material submitted by the creator.
MR. FLEISCHER: Are you aware of any writer or artist who was singled out or excluded from having these legends affixed to their freelance checks?
SHOOTER: No.
MR. DILIBERTO: Objection. No foundation.
THE COURT: Overruled.
MR. FLEISCHER: Did there come a time when Marvel adopted a policy of returning to a collection of the creators' original artwork, used in the production of their comic books?
SHOOTER: Yes. I wasn't there. But I understand it started in 1974.
MR. FLEISCHER: And what kind of documentation was involved in connection with the return of that artwork in the mid1970s, as you observed it?
MR. DILIBERTO: Objection. No foundation. He just testified he wasn't even there.
SHOOTER: When I observed it in the mid1970s, before you could receive your share of the artwork back, you had to sign a release form. That was a confirmation of the circumstances under which the artwork and the story were created.
MR. FLEISCHER: Mr. Shooter, would you open the exhibit binder before you to 54? Is this the form of artwork release that you recall seeing in the mid1970s in connection with the return of artwork?
SHOOTER: It was substantially the same. I don't know if it was exactly the same in every particular.
MR. FLEISCHER: You heard Mark Evanier's testimony on direct that Marvel's artwork release program or artwork release forms did not exist prior to 1978?
SHOOTER: Yes.
MR. FLEISCHER: And that all a creator needed to do in order to retrieve original artwork that had been allocated to that creator was to sign a log book?
SHOOTER: I heard him say that.
MR. FLEISCHER: Was that testimony accurate?
SHOOTER: No, at that time.
MR. FLEISCHER: Who at Marvel had the authority to approve the launch of a new comic book tide?
SHOOTER: The president of the company.
MR. FLEISCHER: Did writer or editors have the authority to commission a new series for publication by Marvel?
SHOOTER: No.
MR. FLEISCHER: While you were the editor in chief of Marvel, did you alone have the authority to publish anew series?
SHOOTER: No. I sort of codified the procedure. But it was essentially the same procedure.
MR. FLEISCHER: Was there any attempt by Marvel to maintain continuity of writers and artists on particular books?
SHOOTER: We made every possible effort to keep writer and artist teams together, including an incentive, which I installed, which paid them for staying continuously on a book.
MR. FLEISCHER: Was there any review process covering the materials being submitted for publication by creators during the 1970s?
SHOOTER: Yes, there was: There were a number of assistant editors, and an editor in chief, and while it was a little disorganized and chaotic, generally speaking, at the very least, if a book came in a fairly finished state, it would be reviewed by one or more assistant editors, possibly people in the production department.

And either they would fix whatever errors they found, probably if they were small, or if it was an important creator or a big change, they might go to the editor in chief or even to Stan Lee to get approval for the change.
MR. FLEISCHER: I would like to place before you some original artwork, copies of which have been marked for identification as part of Exhibit 55C. Can you identify what the pages comprising Exhibit 55C are?
SHOOTER: They are the original art for, it looks like, two different Marvel comics.
MR. FLEISCHER: And that art reflects the stage of the work after the inker has done his work; is that correct?
SHOOTER: Yes. This is what we would call a finished page.
MR. FLEISCHER: First let me direct your attention to the reverse side of the pages. There is a legend on each page of the artwork. Do you recognize that?
SHOOTER: Yes.
MR. FLEISCHER: The legend is a copyright notice?
SHOOTER: Yes. "Copyright, 1975, Marvel Comics Group, a Division of Cadence Industries Corporation, All Rights Reserved." Then it has the volume and issue number.
MR. FLEISCHER: Do you recognize that as a legend that was used throughout the 1970s on artwork that was being returned to creators by Marvel?
SHOOTER: It was, at one time it had been the parent of Marvel.
MR. FLEISCHER: Now, I notice that on some of the pages before you there are blue pencil marks. Can you describe what those are?
SHOOTER: These are marks made by the editor or assistant editor who reviewed these pages as they came across, mistakes or things that for some reason needed to be changed. Like here are a couple of lines that indicate that this character's costume lines are in the wrong place. So an art correction was made to put the costume lines where they belong.
MR. FLEISCHER: Are there any text corrections made on those pages?
SHOOTER: There are a number of text corrections, including some that were so extensive that new copy had to be actually placed over the old copy.
MR. FLEISCHER: Is it part of a normal editorial process to be making corrections at this stage of the production of a comic book?
SHOOTER: Well, you would rather not. You would rather - see, a normal editing process starts with meetings and discussions between the editor and creator person and a plan and work being submitted and checked along the way. The fact some of this work hadn't gone through such a process and kind of was first reviewed when it was in this state made doing some of these corrections more difficult, more time consuming, more expensive, you know, and also often made books late.
MR. FLEISCHER: What is the term "writer/editor" referring to at Marvel?
SHOOTER: It actually started when Roy Thomas left staff as editor in chief and became a writer, and having been editor in chief, I didn't want to have just any old assistant editor making changes on his work and wanted to continue him to be considered an editor. And so his contract said he was a writer/editor and that he would report to Stan Lee or whomever Stan would designate. So the main thing I guess was a difference in who the person reported to, what creative person had authority over them.
MR. FLEISCHER: Was there any difference in the authority of writer/editors as compared to just writers in terms of the editorial process?
SHOOTER: Well, from time to time, a writer/editor might have more input than a writer. But basically, it just meant, really, that he reported to someone who was higher up in the organization.
MR. FLEISCHER: During the time that you were associate editor at Marvel, and during the period that Mr. Wolfman was the editor in chief, did he ever instruct you to make editorial changes to stories that other writers had submitted for publication?
SHOOTER: Well, I remember two that were - that kind of stood out. And a couple besides that. The first one that comes to mind was a comic book called Ghost Rider. It was written by a man named Tony Isabella. Tony had introduced some religious references into the story that I thought were inappropriate. He had Jesus Christ appearing as a character. I didn't think that was a good idea. So, as was my usual custom, I called Tony and I tried to work it out with him. You know, it's always better if you can get the writer to make his own corrections. He was adamant. He just absolutely refused to be cooperative about making any changes. And so it was a big enough deal that I went to Marv and I asked him, you know, what he thought should be done. And he asked me, was I, did I have time and could I make the changes? And I said, yes, I could. So I laid out with sort of my, you know, rough drawings of what should be drawn. I had four or five new pages drawn to replace pages that had been already drawn. And I rewrote, I would say, about half of the book. And I changed the course of the story so that it no longer had the religious references. The reason that was significant is because I think Tony Isabella quit over that, actually.

There was another time where a writer named Steve Englehart, on a book called Super Villain Team Up, which had appearances of a character called The Shroud, he was doing an issue which was going to show the origin of The Shroud. So that book came in, it actually came in in a fairly finished state because the artist, Herb Trimpe, was living in England when he did it, he just did the whole thing, rather than send it back and forth to be checked.

When I read the origin for The Shroud, it was literally the origin of Batman, word for word and picture for picture. Having worked at DC for a while and having used that origin several times, I knew it well.
MR. FLEISCHER: Batman was a DC Comics character?
SHOOTER: Yes. It was plagiarism. And I thought that was a very bad idea. Steve Englehart was a very important writer. So I called him, and I said, "Steve, you seem to be doing the origin of Batman here." And he said, "Yes, I am." And I said, "You can't do that." And he said, "Yes, I can." That conversation was getting nowhere. I thought, let me talk to Marv about this. I went to Marv and I showed it to him. And he asked me to change it as little as possible because we wanted to not offend Steve any more than absolutely necessary but to make it so it wasn't plagiarism. So I did the best I could to alter it to, you know, to meet that standard. And the book went out. I believe Steve survived it. I think it got by.
MR. FLEISCHER: During your tenure at Marvel, in your various capacities during the 1970s, were you aware of any arrangement between Mr. Wolfman and Marvel that prevented other writers from using characters that Mr. Wolfman had introduced into the books that he had written for Marvel?
SHOOTER: There was no arrangement between Mr. Wolfman and Marvel. It was basically office politics. Basically, since Marvel is a universe and since all of these characters presumably exist in the same world, you didn't want to have a situation where a character, where Doctor Octopus was appearing in two books in the same month, and in one he had the flu and another one he didn't. So there was a coordination problem. A lot of people were very, you know, fussy and possessive about the characters they were working with. 

Writers tried to coordinate among themselves. Often it was just more trouble than it was worth to get somebody to agree to, you know, cooperate with you, so that the characters could appear - that routinely appeared in your book could go appear in theirs for a little while. When I say "your book," I mean the book you happen to be writing at that time. Because the writer typically wrote the series continually. The other situation that is particular to Marv in that regard is that Marv did a couple of books, especially Tomb of Dracula, which were not really mainstream superhero books. The characters from Tomb of Dracula were not a very natural fit in many of the mainstream superhero character books. So, you know, it didn't come up as often on some of his characters.
 MR. FLEISCHER: With respect to the characters that Mr. Wolfman was working with and had introduced for the first time into the superhero books that he wrote, were those characters used by other Marvel writers?
SHOOTER: I would say with a good deal more frequency, and especially after I became editor in chief.
MR. FLEISCHER: Mr. Shooter, are you aware that there came a time that a significant change in the United States copyright laws took effect?
SHOOTER: Yes.
MR. FLEISCHER: Do you remember what date that happened?
SHOOTER: It was Jan. 1, 1978.
MR. FLEISCHER: And when that happened, did Marvel take any action to respond to the changes in the law with respect to work for hire?
SHOOTER: Yes. We created a suppliers' agreement, which freelancers signed, that covered work for Marvel unless otherwise stated in writing.
MR. FLEISCHER: And that agreement, when it was first promulgated, and its subsequent iterations, was the source of some controversy?
SHOOTER: It was a source of a great deal of controversy; there was controversy even before that, you know, before Jan. 1, 1978. It just made it worse.
MR. FLEISCHER: I have placed before you what we have marked for identification as exhibit 74, which is a photocopy of an issue of The Comics Journal. And I would like to direct your attention to page 16 of the article, a couple of pages in.
MR. DILIBERTO: Objection, Your Honor. Hearsay.
THE COURT: Overruled.
MR. FLEISCHER: There is a document on page 18 with some handwriting on it that says something to the effect of, "Don't sign this, you are signing your life away?"
SHOOTER: Yes. That's the Marvel work-for-hire suppliers' agreement.
MR. FLEISCHER: And how was that work-for-hire suppliers' agreement used after the new copyright law became effective in 1978?
SHOOTER: We asked anyone who was a freelancer for Marvel Comics to sign this document.
MR. FLEISCHER: Was Mr. Wolfman at the time a freelancer for Marvel?
SHOOTER: He was a writer under contract and had an employment agreement. But I did ask him to sign one of these, and he did.
MR. FLEISCHER: And in that agreement, did Mr. Wolfman acknowledge that all work he did under that agreement was work for hire?
SHOOTER: Yes, he did.
MR. FLEISCHER: Did you ever have a discussion with Mr. Wolfman concerning Marvel's Howard The Duck character?
SHOOTER: Yes, I did. Steve Gerber was either threatening or had begun the process of suing Marvel over ownership of Howard the Duck. And at that time Field Syndicate was running a Howard The Duck newspaper strip, which was created by Marvel Comics, and had been written by Steve at first, and then I think after he started his legal action against us, they took him off of that, and Stan Lee chose Marv as one of our leading writers to take over the Howard The Duck strip. And Marv informed me that he was taking on this new assignment, which I think was proper, because he had, you know, an obligation to do comics work as well, and I think he assured me that that was no burden, it was going to be fine. And we had a brief conversation about the situation. The gist of it was that Howard The Duck was a Marvel character and it was perfectly fine for Marvel to write Howard The Duck. It was a Marvel character. I certainly agreed.
MR. FLEISCHER: Did there come a time when you became aware that Marvel had granted a license to a Japanese company to do an animated film in Japan based on the Tomb of Dracula stories' that Mr. Wolfman had written?
SHOOTER: Yes.
MR. FLEISCHER: How did that come about?
SHOOTER: Marv told me about it and asked me if indeed, it were true. I went upstairs to the - there were several people who handled licensing at Marvel. One handled domestic licensing. One handled international licensing. I think I spoke to both of them and I asked if anybody knew anything about this. No one did. So I reported that back to Marvel, that as far as we knew it didn't exist.

I think some days after that, Marv got a hold of a videotape of the movie and either showed me the tape - I have never seen the movie - but he either showed me the tape or told me he had it. I wouldn't have any reason to doubt it.

And so I went back upstairs to see what I could find out about it. And what I found out was that the international licensing person that I had spoken to probably should have known this, but we had an agent in Japan named Gene Pelc, who worked, I guess, pretty autonomously from the woman who ran the licensing effort for the rest of the world. And my belief is that they just hadn't heard about this yet. So I found out what I could about it, and then reported it back to Marv.
MR. FLEISCHER: What was the complaint, if any, that Mr. Wolfman was making about the Japanese film
SHOOTER: Well, I think that this is all part of the sensitivity to creators' rights that was going on at that time. It was to find out that something you had a great deal to do with creatively was being made into a movie and to find that out from friends, or to find a copy of it in the video shop is somehow demeaning, a lack of respect, a lack of courtesy.

I also, trying to hold the ship together, while all this - there was a guild forming, and there was a lot of hostility and animosity about the situation. I had told people I was working as hard as I could to see to it that creators were compensated by some kind of incentive program, and to the extent that that wasn't in place yet, that if there were any kind of extraordinary event like this, that maybe I could get them a bonus, sort of on an ad hoc basis. I think his interest was, he was understandably upset that he hadn't been properly informed and hadn't been treated respectfully on the subject. And I think he was interested to see if there was any money in it for him, which I was told there wasn't.
MR. FLEISCHER: At any point during your discussions with Mr. Wolfman concerning this Japanese film, did Mr. Wolfman assert that the film violated some legal right he had or thought he had?
SHOOTER: No.
MR. FLEISCHER: Did Mr. Wolfman indicate to you that he intended to pursue any legal remedy with respect to this matter?
SHOOTER: No.
MR. FLEISCHER: Did Mr. Wolfman ever tell you he owned the rights to the Tomb of Dracula stories in question?
SHOOTER: No.
MR. FLEISCHER: Did there come a time when you became aware that in 1978 Don McGregor had written a creator owned comic book to be published by Eclipse Comics featuring a character by the name of Sabre?
SHOOTER: Yes I think Don came up to the office and showed it around. He was very happy when it came out.
MR. FLEISCHER: At that time were you the editor in chief at Marvel?
SHOOTER: I believe so.
MR. FLEISCHER: Were you aware at that time that Mr. McGregor had previously introduced a character by the name of Sabre into the Marvel War of the Worlds series in 1973?
SHOOTER: No.
MR. FLEISCHER: When did you become aware that a character named Sabre had been introduced by Mr. McGregor into Marvel's War of the Worlds series?
SHOOTER: The War of the Worlds series was canceled shortly after I arrived at Marvel and I became aware that there was a Sabre supporting character in War of the Worlds at one point during this proceeding.
MR. FLEISCHER: Mr. Shooter, in one of the books before you, there should be a Tab #48. Can you identify this document?
SHOOTER: This is an announcement letter that announced the incentive compensation program for people who did creative work, for freelancers who did creative work for Marvel Comics, the work-for-hire creators.
MR. DILIBERTO: Objection. Hearsay.
THE COURT: Overruled.
MR. FLEISCHER: Who was responsible for the implementation of this incentive plan?
SHOOTER: Well, I was a factor in it. I went to the board of directors of Cadence Industries, and I pitched the idea, and I wrote this letter, even though it's signed by Michael Hobson, I wrote the incentive plan myself. I had it all approved by all the lawyers and financial people and so forth. Sp I was instrumental in it.
MR. FLEISCHER: And was a copy of Exhibit 48 distributed to the freelancers who were working for Marvel and who came to work for Marvel thereafter?
SHOOTER: Yes, it was.
MR. FLEISCHER: Would you identify what Exhibit 49 is?
SHOOTER: This is a memo that I wrote to Mike Hobson, who at that point was the publisher, proposing that we should consider a line of comics that would run creator run material as opposed to the regular Marvel line, which was all work-for-hire material.
MR. FLEISCHER: Is this the Epic comic and magazine that you referred to earlier?
SHOOTER: Well, this in particular is about the comic books. The Epic Illustrated magazine already existed.
MR. FLEISCHER: When Marvel announced its incentive compensation plan in the industry, did the comic industry press take note?
SHOOTER: Yes, they did.
MR. FLEISCHER: Let me show you what we have marked for identification as Marvel Exhibit 70. Is that an issue, or a partial issue of The Comics Journal describing the announcement of Marvel's plan?
SHOOTER: Yes. It's issue #54 of The Comics Journal. Under their Newswatch banner, it talks about the headline says "Marvel Plans to Augment Creators' Benefits." And there is an article about our, the plan whereby creators would maintain certain rights to their creations.
MR. FLEISCHER: I would like to call your attention to the second column of that article. And the paragraph that begins at the bottom of that column, I will just read that sentence: "Currently, Marvel owns totally any characters created and published in one of its comics, with the exception of those expressly licensed from other companies, such as Micronauts, Star Trek, Rom and Battlestar Galactica."
MR. DILIBERTO: We object to this exhibit as hearsay.
THE COURT: Overruled.
MR. FLEISCHER: Was that an accurate statement at the time?
SHOOTER: Yes, that's accurate.
MR. FLEISCHER: Again, the last column in the article on the right-hand column reads: "Currently, the only Marvel book where the creators retain any rights to the story or artwork is Epic Illustrated." Was that an accurate statement at the time?
SHOOTER: Yes.
MR. FLEISCHER: No further questions, Your Honor. Thank you, Mr. Shooter.
SHOOTER: Thank you.

CROSS-EXAMINATION OF JAMES SHOOTER

MR. DILIBERTO: Good afternoon. I would like to start with your background. You are a high school graduate?
SHOOTER: Yes.
MR. DILIBERTO: No post high school training or education?
SHOOTER: Sort of a 10year apprenticeship in the comic book business.
MR. DILIBERTO: But no formal education after high school?
SHOOTER: No.
MR. DILIBERTO: You started in the business working at DC Comics?
SHOOTER: Yes.
MR. DILIBERTO: And when you started working at DC, Mort Weisinger explained to you that the work you submitted would be owned by DC Comics from the very beginning; is that right?
SHOOTER: In one of our first conversations.
MR. DILIBERTO: And that was around what, 1965?
SHOOTER: The conversation would have taken place in early 1966.
MR. DILIBERTO: And at that time you don't recall hearing the term "work for hire"; isn't that right?
SHOOTER: I am not sure when I started hearing that term.
MR. DILIBERTO: And then you went to Marvel for a position as a staff writer in 1969?
SHOOTER: Either '69 or early '70.
MR. DILIBERTO: You were only there three weeks. Right?
SHOOTER: Something like that.
MR. DILIBERTO: And you did not meet Marv Wolfman until sometime after, was it 1976?
SHOOTER: I suppose I met him in 1976. I might have seen him from a distance or something before.
MR. DILIBERTO: So you have no knowledge about Mr. Wolfman's creation of the Blade or Deacon Frost characters?
SHOOTER: Only what I read and heard.
MR. DILIBERTO: From your attorneys?
SHOOTER: No. Mostly from Marv.
MR. DILIBERTO: You have heard from Marv about the creation of Blade?
SHOOTER: Well, I mean, he has talked a lot about it here. It was probably discussed around the office back in the 1970s. I don't know.
MR. DILIBERTO: His ownership was discussed in the 1970s at Marvel?
SHOOTER: Not his ownership. The creation of the character Blade. It may have been mentioned. I don't know.
MR. DILIBERTO: Was it mentioned to you?
SHOOTER: Possibly. I have heard a lot about it recently.
MR. DILIBERTO: So you knew nothing then, your knowledge of the creation of Blade is limited to what you have learned from your attorneys in this trial?
SHOOTER: No. My knowledge of the creation of Blade has to do with what I have heard Marv say about it. I have known Marv for a long time. There have been a lot of discussions.
MR. DILIBERTO: Did Marv tell you directly about the creation of Blade?
SHOOTER: Possibly.
MR. DILIBERTO: Do you know when?
SHOOTER: No.
MR. DILIBERTO: You really don't know. Right?
SHOOTER: Know what?
MR. DILIBERTO: When Blade was created or how it was created?
SHOOTER: I know what I have read, and I know what I have heard, as I said.
MR. DILIBERTO: How many owners of Marvel have there been? About six?
SHOOTER: I guess that depends on how you count them. I would call it six, yes.
MR. DILIBERTO: At your deposition, I think you listed Martin Goodman as the first owner?
SHOOTER: Martin Goodman or a company in which he was a principal, yes.
MR. DILIBERTO: And he published under Marvel, Atlas and Timely Comics?
SHOOTER: My understanding is that his parent company was called Magazine Management Company. Then he used various imprints, Marvel, Timely, Atlas, at various times. I don't know the exact status of each of those, was it a separate company, I don't know.
MR. DILIBERTO: It was hard to keep track of who really owned the company at that time?
SHOOTER: Not at all. Martin Goodman, through his companies.
MR. DILIBERTO: In 1968 the company was sold to Cadence Company?
SHOOTER: It was sold to a company called Perfect Chemical something, Perfect Chemical Supply or something like that. And that company almost immediately changed its name to Cadence Industries, Incorporated. But again, same company.
MR. DILIBERTO: And then after Perfect Chemical or Cadence Industries, New World Pictures purchased the company -
SHOOTER: Yes, I think, Yes. That would have been in '86, or the first days of January '87.
MR. DILIBERTO: Actually, was it Cadence or Perfect Chemical that changed their name to New World Entertainment?
SHOOTER: No, no. Perfect changed its name to Cadence. Cadence was a publicly traded company. It became owned by Cadence Management, Incorporated, which was essentially the board of directors which had taken the company private. They were the ones who actually sold it to New World Pictures, which then changed its name to New World Entertainment.
MR. DILIBERTO: After that we had the Andrews Group?
SHOOTER: The Andrews Group was the party that participated in the auction and purchased Marvel Comics. Again, whether - that was a Perelman company - he has a lot of companies, holding companies and so forth. How Marvel is positioned among his many companies, I don't know.
MR. DILIBERTO: Next was the Carl Icahn group?
SHOOTER: When Marvel declared bankruptcy my understanding is that the bondholders led by Carl Icahn asserted control, and I would take that as another owner of Marvel Comics.
MR. DILIBERTO: And then we have what is now the reorganized Toy Biz, Inc., after this bankruptcy?
SHOOTER: Yes.
MR. DILIBERTO: You mentioned you were out of comics for a five-year period?
SHOOTER: I never said a .five-year period.
MR. DILIBERTO: Between 1969 to either '73 or 1974?
SHOOTER: I said from either the very end of 1969 or the very beginning of 1970 to sometime possibly in late '73, maybe early '74. That's not five years.
MR. DILIBERTO: And you were doing different odd jobs in between that period outside of the comic book industry?
SHOOTER: Some of them were comic book related in that they were comic book format advertising jobs. But there were a lot of less glamorous jobs, too.
MR. DILIBERTO: Advertising, for example, you said you were doing advertisements for grocery stores and steel companies?
SHOOTER: For a grocery store chain, for U.S. Steel, for U.S. Steel Building Supplies. I think I even did some ads for a political campaign, for the Mayor of Pittsburgh.
MR. DILIBERTO: Then you actually went pretty far afield, managing a Kentucky Fried Chicken at one point?
SHOOTER: I worked at Kentucky Fried Chicken for about eight months. That was a bad move.
MR. DILIBERTO: And you worked in used cars at one time?
SHOOTER: No. I was a car reconditioner.
MR. DILIBERTO: So then you go back to Marvel in 1976, when you were hired by Marv Wolfman?
SHOOTER: Well, I had worked at Marvel a little bit before that as a free lance writer. I had done some jobs for Marvel, I believe, in 1975.
MR. DILIBERTO: I believe at your deposition you said that after that absence you worked at DC for a little over two years, then you went to Marvel?
SHOOTER: No. What I said was I took a job at DC and I wrote regularly for them for two years. Toward the end of that period I did a couple of assignments for Marvel as well.
MR. DILIBERTO: And then you were hired by Marv Wolfman, who was then editor in chief in 1976, and you wanted to be a line editor, but he hired you as an associate to him?
SHOOTER: That's not true. We discussed the job. The job that he described to me, I said, was, well, you are hiring an editor. He actually, his word for the job was pre-proof reader. And his justification for that term was, see, there was proofreading. And this was reading of the script that happened before then, so it must be pre-proof reading. Which told me he wasn't really very much familiar with the editorial process. I said, what you are describing to me is an editor. He didn't like me having the title editor, because he thought that might create some confusion. I believe he suggested associate editor, and I was fine with that.
MR. DILIBERTO: He was looking for an assistant to help him as editor in chief?
SHOOTER: He was looking for an associate, yes.
MR. DILIBERTO: But you wanted more power at that time, you didn't want to be an associate?
SHOOTER: That wasn't true. I was starting out, I think I was fairly well established as a comic book writer, I thought I could be a good editor. I was being given an opportunity.
MR. DILIBERTO: Your quest for power, didn't that ultimately lead you to being fired by Marvel?
SHOOTER: No, it didn't.
MR. DILIBERTO: You weren't fired because you went over your boss' head?
SHOOTER: I did that, but it had nothing to do with why I was being fired.
MR. DILIBERTO: But that was because of your quest for power. Right?
SHOOTER: No, not at all.
MR. DILIBERTO: During the 1970s there were six editors in chief; is that right?
SHOOTER: Yes. There was Roy Thomas, Len Wein, Marv Wolfman, Gerry Conway, Archie Goodwin and me.
MR. DILIBERTO: That is the period during 19721978?
SHOOTER: 1972 I think Roy started, and five of those - Roy and four others lasted until the beginning of 1978 and then I came in.
MR. DILIBERTO: After leaving Marvel in 1969 and returning in '75 or '76, I believe you said there was a lack of organization at Marvel at that time?
SHOOTER: There was.
MR. DILIBERTO: And there was no editing at all?
SHOOTER: Editing is a process which is organized and begins with discussions and a plan and goes through stages and reaches a conclusion, in a logical and orderly fashion. No, there was not.
MR. DILIBERTO: At your deposition you said it was just chaos?
SHOOTER: It certainly was.
MR. DILIBERTO: You also said everyone would just send in stuff and it was published more or less the way it was?
SHOOTER: Yes. Well, you are quoting from an interview. And in the context of what was said, that is not an unfair statement. Sometimes things were published the way they were.
MR. DILIBERTO: Are you saying that a statement you might make that is published in an article might have inaccuracies in it?
SHOOTER: I didn't say that. That's an accurate statement, especially if you read it in the context it was said.
MR. DILIBERTO: Have you been inaccurately quoted in interviews you have given?
SHOOTER: Yes, I have. Once in a while. I have given a lot of interviews.
MR. DILIBERTO: You have also stated that a writer/editor is responsible for their own books?
SHOOTER: Again, in the context I said that, that's a fair statement.
MR. DILIBERTO: The people who are writer/editors know what they are doing, they are writer/editors for a reason?
SHOOTER: That it is absolutely a fair statement. The people were capable people.
MR. DILIBERTO: In the 1970s, wasn't Marv Wolfman one of four elite writer/editors that had control over of their own materials without being overseen by anybody at Marvel?
SHOOTER: That is not true.
MR. DILIBERTO: This was that Comics Journal article that you - the one you said you were accurately quoted, where you said that they are writer/editors for a reason. We have got four people now, Gerber, Thomas, Archie Goodwin and Marv Wolfman, it was a question of four people who don't have to be overseen at all?
SHOOTER: If you read the rest of the paragraph, it goes on to explain how they were overseen. What I was explaining is they were very good, they didn't make a lot of mistakes.
MR. DILIBERTO: That's why there were four editors at Marvel at that time?
SHOOTER: They earned their status. That doesn't mean they weren't overseen. I have written, a lot of stories that have gone out exactly how they were sent in, because I don't need to be overseen either. But I have always had an editor who had at least the authority to change things if it was necessary to change them.
MR. DILIBERTO: But in Marv's case he edited his own material?
SHOOTER: Marv had the title writer/editor and yet was responsible to people at Marvel, Stan Lee or whomever he would designate. So there was backstop.
MR. DILIBERTO: There was no control of Marv Wolfman at that time; isn't that correct?
SHOOTER: I can guarantee you that from 1976 on, during the time I was there, that there was no time in which Marv didn't have someone overseeing his work.
MR. DILIBERTO: Well, in 1976 he was an editor in chief, presumably he would be supervising you, in fact, he hired you?
SHOOTER: In 1976, he was editor in chief and he still reported to Stan Lee and Jim Galton.
MR. DILIBERTO: Stan Lee was the founder, but would it surprise you if Mr. Evanier testified that Stan Lee said he doesn't even have time to read anything that is published?
SHOOTER: If Stan Lee chooses not to exercise his authority, that is his choice. But Stan Lee certainly had the authority.
MR. DILIBERTO: Wasn't Stan Lee in California at that time?
SHOOTER: To my knowledge, Stan worked on the ninth floor and was in New York.
MR. DILIBERTO: So if I told you he was actually in California when Marv was editor in chief, would I be mistaken? Or are you not sure?
SHOOTER: I couldn't tell where he was every minute of the time. I know that he was in the office frequently.
MR. DILIBERTO: Which office, California or New York?
SHOOTER: New York.
MR. DILIBERTO: At your deposition we asked you about legend language that might appear on the back of checks that Marvel paid at different times. And you stated that you weren't sure what legend language was actually used on checks at Marvel?
SHOOTER: I said I couldn't quote it. I know the substance of the legend.
MR. DILIBERTO: At your deposition I asked if the language in the second paragraph looked. familiar to you as far as legend language and you said it looked similar to what was used?
SHOOTER: Yes.
MR. DILIBERTO: You testified about Marv complaining about the Japanese Dracula video. Do you recall what year that was?
SHOOTER: No.
MR. DILIBERTO: Was it 1981?
SHOOTER: I don't know.
MR. DILIBERTO: Well, you seem to go into great detail about what you discussed. You can't remember when that took place?
SHOOTER: I don't remember exactly when it took place. I remember talking to Marv about it.
MR. DILIBERTO: When Marv told you he was concerned about the use of his characters by Marvel in a Japanese video, did you tell him that he had no rights because it was simply work for hire?
SHOOTER: Marv didn't tell me he was concerned about the use in the way you are suggesting.
MR. DILIBERTO: I am just asking what you told me. I am not asking what he told you.
SHOOTER: As I said, Marv asked me if such a thing had happened. And I went and checked and was told no. I reported that back to Marv. Later he found out that in fact it happened. I checked, found out he was right. And he was understandably upset, as any creator would be in such circumstances.
MR. DILIBERTO: But you told him he couldn't get any money because Marvel wasn't making money on the film Right?
SHOOTER: If that's what I was told by the people upstairs, I would have told him there was no money to be had.
MR. DILIBERTO: We don't fault you for that. My question is, when he complained about the video, did you tell him he had no rights because Marv didn't own anything?
SHOOTER: The subject didn't come up.
MR. DILIBERTO: Not by you?
SHOOTER: By me, by him, it wasn't discussed.
MR. DILIBERTO: You didn't tell him Marvel owned the rights?
SHOOTER: No.
MR. DILIBERTO: You didn't tell him what he had was Marvel work for hire?
SHOOTER: He knew that.
 MR. DILIBERTO: So you didn't tell him that?
SHOOTER: Didn't have to.
MR. DILIBERTO: You didn't tell him he wouldn't make money because Marvel had not made money?
SHOOTER: No. I told him - as I said, I am trying to keep people on board until I could get my incentive programs in place, I told him I would make every effort that if Marvel had made significant money and some use of the properties, to get the creative people involved, a bonus or at least the respect and dignity of being told and given free samples or whatever. And I was told that there was no money to be had for that purpose. And I am sure I reported that back to Marv, pretty much as I was told.
MR. DILIBERTO: If that were true, where is Mr. Wolfman's incentive money for the Blade movie?
SHOOTER: As I recall, that incentive plan began well after Marv left.
MR. DILIBERTO: When did Marvel begin returning artwork to artists?
SHOOTER: 1974.
MR. DILIBERTO: Were you there then?
SHOOTER: No, I was not.
MR. DILIBERTO: So you don't know when they began returning work to artists?
SHOOTER: I know it from hearing about it.
MR. DILIBERTO: But you have no personal knowledge about that, do you?
SHOOTER: I wasn't there when it happened, no.
MR. DILIBERTO: I know you have been sitting here through trial. Both Mark Evanier and Marv Wolfman have testified that there is a log you could simply sign to get artwork. Do you disagree with that?
SHOOTER: To my knowledge, and my first experience of this would have probably been in 1975, there was a form that you had to sign in order to receive pages back. I was given to understand that that had always been the case. But as you point out, I was not there at the very inception of the plan, so I did not see, with my own eyes, this taking place.
MR. DILIBERTO: So Mr. Evanier and Mr. Wolfman could have signed a log and you just wouldn't know about it, to get back their artwork. Right?
SHOOTER: That contradicts what I have been told. That could have happened. I wasn't there.
MR. DILIBERTO: Now, when you were fired, was that the middle of April 1987?
SHOOTER: Yes.
MR. DILIBERTO: And Jim Galton, the president, fired you?
SHOOTER: Yes.
MR. DILIBERTO: You mentioned that there was a change in the copyright law in 1978?
SHOOTER: Yes.
MR. DILIBERTO: And you learned about that at that time?
SHOOTER: Yes.
MR. DILIBERTO: In fact, I think you have been quoted as saying that 1978 was a pretty crazy year, you were sitting at your desk, "And the phone rang, 'It's the corporate counsel,' she says 'What have you done about the copyright law of 1976?' I said, 'The what?' "
SHOOTER: Exactly. I think my next line was, "Lady, I have been editor in chief for 15 minutes."
MR. DILIBERTO: I don't see that here.
SHOOTER: Well, I just told you.
MR. DILIBERTO: If you say so. It's not in your statement here. So I guess it kind of took you by surprise, the change in the copyright law. Did you have any knowledge of copyright law before 1978?
SHOOTER: I had the knowledge of what was the general practice in the industry, which was that the company, if you worked for the company -
MR. DILIBERTO: But you didn't know anything about the copyright law prior to 1978; isn't that correct?
SHOOTER: I had a layman's understanding of what copyright was.
MR. DILIBERTO: You have had no copyright training. Correct?
SHOOTER: I had a three-day legal seminar in 1978.
MR. DILIBERTO: When the new law changed?
SHOOTER: Well, yes.
MR. DILIBERTO: So after you were fired by Marvel, you have kind of been bouncing around at different occupations it sounds like, as a writer trying to get work?
SHOOTER: I have done a number of things. I have had some - I have done different types of work, yes.
MR. DILIBERTO: One of those was working with Valiant Comics?
SHOOTER: Yes.
MR. DILIBERTO: And you were fired from Valiant?
SHOOTER: Yes, I was.
MR. DILIBERTO: Then you went to Defiant Comics. And you were there less than a year?
SHOOTER: No.
MR. DILIBERTO: I think you testified you began there in February 1993 and left in September of '94. A little over a year?
SHOOTER: A little over a year.
MR. DILIBERTO: Then you worked at another place, Broadway Video, for several months, towards the end of 1994?
SHOOTER: Yes.
MR. DILIBERTO: You have referred to the Marvel people as "the bad guys," do you remember that?
SHOOTER: Yes. I was speaking in particular of a certain group of them.
MR. DILIBERTO: At your deposition, do you recall testifying about advising Marvel to pass on acquiring rights in T.H.U.N.D.E.R. Agents for Marvel?
SHOOTER: Yes, I do.
MR. DILIBERTO: T.H.U.N.D.E.R. Agents was a comic book?
SHOOTER: Tower Comics published a book called T.H.U.N.D.ER. Agents and several other titles that existed in the same universe. They are sort of collectively known as the T.H.U.N.D.E.R. Agents, even though there were several different titles.
MR. DILIBERTO: The reason you advised Marvel not to acquire those rights in T.H.U.N.D.E.R. Agents was because they could not show that the company that acquired rights were the creators; is that right?
SHOOTER: No. The only person I was concerned about was Wally Wood, because I knew that Wally Wood -
MR. DILIBERTO: He was the principal in creating those characters. That's what you testified? I also asked you whether you recalled Marvel ever instructing a creator what characters to create. And you could recall only one situation with a film company. Do you remember that?
SHOOTER: Well, first of all, instructing a creator what character to create, it doesn't make any sense.
MR. DILIBERTO: That is, because it doesn't happen?
SHOOTER: No. It's because it doesn't make sense. It's not a logical question.
MR. DILIBERTO: That is why Marv had control -
SHOOTER: He had no control.
MR. DILIBERTO: But it is correct that you only gave one example of Marvel in its history ever telling, at least to your knowledge, telling a creator what character to create; isn't that right?
SHOOTER: I don't have any examples that fit that particular phrase you are using, because it doesn't make any sense. There have been occasions where a character was created for a particular purpose, and therefore, there were parameters known, and you created a character to fill those parameters. Every comic book creator in the normal course of doing their job will create.
MR. DILIBERTO: I am asking if you are aware of Marvel instructing a creator what characters to create. Is that yes or no?
SHOOTER: That doesn't make any sense.
MR. DILIBERTO: Yes or no, are you aware of it or not?
SHOOTER: I am aware that it doesn't make any sense, what you are saying.
MR. DILIBERTO: Does it happen or not, yes or no?
SHOOTER: How can I say something happens if what you are saying -
MR. DILIBERTO: If it doesn't - that is why I am asking, does it happen or not?
SHOOTER: There is no meaning to your statement. So how can I say if something happens? The statement has no meaning.
MR. DILIBERTO: I understand your answer, so I am going to move on.
SHOOTER: I don't think you understand it at all.
MR. DILIBERTO: I asked you about the concept of work for hire at your deposition, and you said that it would require supervision for work for hire to take place. Do you recall saying that?
SHOOTER: At what point in time are we talking?
MR. DILIBERTO: Well, in the early 1970s was the period of time that I was talking about at the deposition.
SHOOTER: I think that supervision is an element of work for hire. I am not a lawyer.
MR. DILIBERTO: You also stated that the understanding of the individuals is really what is relevant in determining whether work is work for hire. Do you recall saying that?
SHOOTER: I think that is a relevant factor. Again, I am not a lawyer. When I was at Marvel I had lots of lawyers to refer to.
MR. DILIBERTO: You also said if the creator creates the work before entering into an arrangement with Marvel to publish the work, the terms of the understanding between the parties involved would be determined as work for hire; isn't that correct?
MR. FLEISCHER: Your Honor, I think we are getting beyond the scope.
THE COURT: I think you will find you are getting very close to your time limit.
MR. DILIBERTO: Do you recall saying that at your deposition?
SHOOTER: I think I am going to use a phrase that I learned from Petrich. That is an incomplete hypothetical.
MR. DILIBERTO: Are you aware that Marvel's own attorneys recently offered Steve Gerber an offer to buy out rights in his character Howard The Duck?
SHOOTER: I read that letter. It says nothing about buying out rights. It seems to me that what they are probably buying out is incentive.
MR. DILIBERTO: Well, why are they asking his consent to license Howard The Duck for video unless he owns the character?
SHOOTER: I don't think they were asking his consent to license it. I think that they realized that under the incentive plans that exist, for Steve Gerber, and as far as I know for anyone else, that for something as lucrative as a video game the payment to the creator would be very substantial.
MR. DILIBERTO: The letter offers a buyout, is responding to a buyout -
SHOOTER: A buyout of his incentive, probably. I also told you I had never seen that letter and didn't know much about it.
MR. DILIBERTO: And you were involved in negotiations with Steve Gerber's attorneys regarding the settlement of his case, weren't you?
SHOOTER: I was in the management group. I was occasionally apprised of the situation. But, no, I was not negotiating.
MR. DILIBERTO: When did the incentive plan begin at Marvel?
SHOOTER: I don't remember exactly.
MR. DILIBERTO: Didn't you say you started it?
SHOOTER: Yes I did.
MR. DILIBERTO: You don't know when you started the incentive plan that you claim was a revelation to the comic book industry?
SHOOTER: 1982, '83, I don't know.
MR. DILIBERTO: Do you know when Howard The Duck was created?
SHOOTER: In the 1970s.
MR. DILIBERTO: How could it possibly be created for the incentive plan a decade earlier, before the incentive plan even began?  Do you remember when we looked at the Conan The Barbarian issue #1, published in 1970?
SHOOTER: Yes.
MR. DILIBERTO: You told me the Robert E. Howard Estate owns that character, at least they did in 1970?
SHOOTER: To my knowledge, yes.
MR. DILIBERTO: Do you remember saying that that is an example, that the publication of the first Conan issue with Conan the Barbarian is an example of a work in which Marvel does not own all the characters appearing in that work?
SHOOTER: Yes.
MR. DILIBERTO: You never worked for Warren Publishing Company. But you are testifying for Jim Warren as an expert in his litigation in the Southern District of New York. Right?
SHOOTER: On certain subjects.
MR. DILIBERTO: And you are charging $100 an hour?
SHOOTER: Yes, I am.
MR. DILIBERTO: But you are billing Marvel $300 an hour in this case. Right?
SHOOTER: Yes.
MR. DILIBERTO: Is Jim Warren a friend of yours?
SHOOTER: No.
MR. DILIBERTO: But you are giving him one third of the rate to be an expert in his case than you are to be an expert in this case?
SHOOTER: I have never been an expert witness before. When Jim Warren called me and offered me $100, that sounded fair.
MR. DILIBERTO: But you have offered to be an expert before Jim Warren?
SHOOTER: One time, about 15 years ago.
MR. DILIBERTO: Did you conduct any kind Of survey to determine if there is any custom in the industry that would give comic book companies rights in materials that they published in the early 1970s?
SHOOTER: I did not conduct a survey, but it was impossible to be unaware of it.
MR. DILIBERTO: Are you familiar at all with what is referred to as the generally accepted principle of survey research?
SHOOTER: No.
MR. DILIBERTO: Would you know who the proper universe would be to determine there was any custom in the industry regarding ownership of materials published by comic book companies?
SHOOTER: I knew it from the fact that it was a common topic of discussion.
MR. DILIBERTO: Did you attempt to determine what would constitute the proper universe for you to render an opinion in this case about custom in the industry?
SHOOTER: There were only a very few companies. I knew their policies. That was the universe.
MR. DILIBERTO: What would be a representative sample of the proper universe to determine whether a comic book company - whether there was a custom and practice in the comic book industry between 1970 and 1979 that would give comic book companies ownership of materials they published?
SHOOTER: I was perfectly aware of the policies -
MR. DILIBERTO: What would be an example from the proper universe, do you know?
SHOOTER: I am not able to give you -
MR. DILIBERTO: So you don't know?
SHOOTER: I know perfectly well.
MR. DILIBERTO: Did you give one in your report?
SHOOTER: Give what?
MR. DILIBERTO: A sample of the proper universe to render an opinion in this case? Yes or no. Did you?
SHOOTER: I did not express an opinion -
MR. DILIBERTO: So the answer is no?
SHOOTER: - In your statistical terms. I am not nonetheless aware - 
MR. DILIBERTO: Is there one in your report?
SHOOTER: What?
MR. DILIBERTO: A sample of the proper universe?
MR. FLEISCHER: It is hard to understand with both people talking. If you would let the witness finish, that would be nice.
MR. DILIBERTO: Are you saying your expert report has a sample of the relevant universe for you to render an opinion?
SHOOTER: I never did.
MR. DILIBERTO: So you don't have a sample universe in your opinion, do you?
SHOOTER: No, I don't.
MR. DILIBERTO: I think at your deposition you also said if Marvel made you an offer you would work with them again?
SHOOTER: You asked me if I were trying to seek employment with Marvel, and I said, I wasn't really interested right now, I would listen to an offer if they made me one.
MR. DILIBERTO: Thank you. No further questions, Your Honor.

REDIRECT EXAMINATION OF JAMES SHOOTER

MR. FLEISCHER: With respect to Mr. Diliberto's statistical questions, as far as you are concerned, Mr. Shooter, as someone who has been in the industry, what was the relevant universe of companies to consider with respect to the practice concerning ownership of copyrights in the comic book industry during the 1970s?
SHOOTER: Well, especially in the early 1970s, there weren't that many companies. There was Marvel, there was DC, there was Archie, there was Harvey, there was Charlton, there was Western Publishing that published under the imprint Dell. I may have gotten them all. Seaboard/Atlas was there, but only for a while. You could count Warren. So it was a fairly small group of companies, and it's a fairly small industry. And it was very difficult to be in the industry and not be constantly among people and dealing with people and knowing what was the state of the business at that time.
MR. FLEISCHER: Thank you. No further questions.

No comments: