"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!
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.
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.
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