Marvel Worldwide, Inc. et al v. Kirby et al - John Morrow Speaks

Welcome to Part VI of the transcripts from the Marvel vs Jack Kirby's estate court case.  You can find Part I, Stan Lee's testimony, here, Part II, John Romita, here and Part III, Larry Lieber, here, Part IV, Roy Thomas and Part V, Mark Evanier, is here.

A few things before we check out what John Morrow said about Kirby. Two people have pointed out, one publicly here, the other via a gently worded email, that I was unfair to Mark Evanier. I’ll wear that criticism, because yes, I was unfair. I always stand by what I write, unless there’s a factual error in there that I can change, so I’ll not go back and revise things, but there was at least one fact that I was unaware of about Mark and the way he does things that was explained to me in private, which put a few things into perspective. If I had my time again I’d write things a bit differently, but the crux of what I wrote I’m happy to stand by – Mark hasn’t written everything of note that exists about Marvel, let alone Jack Kirby, and for him to claim as much in a deposition is to undervalue the efforts of many a fine scholar since comic books began. I doubt Mark could give a hoot as to what I might think of him, or what I write, but there you have it – it’s not a complete apology, but it is a partial one. If Mark were to email me then I’d be happy to explain where I stand, but I won’t hold my breath there.

Also while I love comments on the blog, I would ask that people just put a name to them – even if it’s made up. All the ‘Anonymous’ credits are slightly disconcerting to me and it gets a bit difficult to work out who’s said what. I generally post any comment that comes in, unless it’s spam, highly offensive or doesn’t add any value to the discussions, so keep them coming. I know that a fair few people have found this blog via the cut and paste job that Bleeding Cool did (it’d have been nice if they’d told me, or asked, first, but that’s how they work), so feel free to poke about and engage, either via comments or email. I’m not the world’s best correspondent, but I do reply, eventually.

John Morrow, publisher and owner of TwoMorrows Publishing (which publishes the Jack Kirby Collector) is the second ‘expert’ witness for the Kirby family, and surprisingly he comes away better than Mark Evanier. John admits his shortcomings in this case, that he’s commenting on things from a viewpoint of opinion, and that a lot of his knowledge was gained second-hand via articles or interviews. Thus, like Mark Evanier, John’s testimony about how Kirby worked with Marvel is largely hearsay. He also admits that a fair chunk of his submitted document in support of the Kirby’s was written by Marc Toberoff’s office, and that Toberoff explained to him the various work-for-hire and copyright laws, hence the explanations towards the end. Sadly, from John’s testimony, it appears that the JKC is failing somewhat, with a print run of less than 800 copies now. It’s a shame as it’s a good read, if only to see the images of rare Kirby art. I do expect that TwoMorrows will be publishing these depositions at some stage, along with interviews (indeed Morrow hints as much) and hopefully when they do they’ll have access to the complete depositions, and not just the edits that have been released to the public.

Deposition of JOHN MORROW, 10th of January, 2011
(acting for Marvel were David Fleischer and Eli Bard, acting for the Kirby family was Marc Toberoff)

MORROW: …the case for the magazine. So I called him and asked him if he would be interested in doing an interview. He said, you know, possibly somewhere down the line, you know, we could do something like that. That was our first contact.

And then I guess I assume he called me -- you might remember better than I do -- but like about a year ago, and asked if I would do the report.
Q: And what did you understand the subject matter of the report or the content of the report was going to be?
MORROW: Oh, well, see, there were a few things that were going to be covered. A lot of the history of Marvel Comics going back to like the 1940s. Jack Kirby's history working for the company, and gosh, sort of, you know, that it should contain, you know, my personal observations from my years of doing, you know, comic scholarship work, about, you know, industry practices and things like that.
Q: Was any engagement letter signed between Mr. Toberoff's office and yourself?
MORROW: What is an engagement letter?
Q: A letter setting out the terms and
(break in transcript)
Q: And that continues today?
MORROW: It does. I think we actually told them we would be dropping it to just about 800 an issue now because of the economy and all sales have kind of declined.
Q: Do you have any understanding with Mr. Toberoff with regard to any arrangement to publish anything about this case in consideration of your providing a report?
MORROW: No. No. I hope after it's all said and done that I can interview various parties involved, if they're allowed to talk about it. But, no, we don't have an arrangement or anything like that.
Q: Have you ever had any business dealings with Mr. Toberoff prior to being contacted in connection with this case?
MORROW: No, other than my initial request to get an interview from him, which never resulted in anything.
Q: How old are you?
MORROW: About 48.
Q: And would you summarize your educational background, beginning with high school?
MORROW: Sure. Twelve years of high school diploma, four-year college degree with a bachelor in fine arts.

(break in transcript)
MORROW: …programs. A wide range of things. A lot of commercial real estate work, things like that.
Q: Do you have any legal training?
MORROW: No. No.
Q: Do you have any training in the art or science of determining whether people are telling the truth or lying?
MORROW: No, no professional training. I guess just intuition, such as it is.
Q: What, if anything, did you do to prepare for today's deposition?
MORROW: I pulled out a few issues of our publications and a few other publications, just to reread some things. What else? I read back my report, met with Mr. Toberoff yesterday for an hour or two, and having never done this before, he kind of talked me through what the, you know, the whole experience was going to be like, and he told me not to get nervous and kind of went over my report page by page and just talked about specifics of what I put in there. Other than that, pretty much nothing.
Q: Where did the meeting between yourself and Mr. Toberoff take place?
MORROW: Oh, over at the, what is it, the Sheraton Hotel, where he's staying.
Q: And was anyone other than the two of you present at that meeting?
MORROW: No.
Q: And during the course of that meeting, did you look at any documents other than your expert report?
MORROW: No.
Q: Have you ever seen any other expert report issued in connection with this case?
MORROW: No.
Q: Have you ever been told what the contents of any other expert report issued in this case are?
MORROW: No.
Q: Have you reviewed any deposition testimony given in this case?
MORROW: No.
Q: So you've never reviewed the deposition testimony of Mark Evanier, for example?
MORROW: No. I work with Roy Thomas, and Roy in a phone conversation mentioned to me that he had been deposed, and it took like, he said it took like three days or something like that, but we didn't actually talk about specifics of what he said or anything that went on.
Q: And I'm correct based on your answer; I assume that you have not seen any testimony of Stan Lee or any of the Kirbys?
MORROW: No.
Q: Or John Romita?
MORROW: No.
Q: Were you told of any testimony given by Larry Lieber in the case?
MORROW: No.
Q: On this one, I've -- check your acquaintanceship, if any, with some people, first of whom is Martin Goodman. Did you ever meet Martin Goodman?
MORROW: Oh, no, that was well before my time.
Q: Did you ever meet Sol Brodsky?
MORROW: No.
Q: Did you ever meet Stan Lee?
MORROW: I met him on a few occasions. I'm not sure that he would recall them. The first time would have been 1978, just standing in line at a comic convention to get his autograph.
(break in transcript)
Q: …Lisa or Neal told you was pertinent to the opinions that you've set forth in your expert report?
MORROW: Well, I can't really recall specifics right now. Of course, I've done a lot of interviews over the years and read probably ten times as many as I've actually conducted, and they all kind of, you know, go in there and help form the opinions on things. So I'm sure if I had the interviews in front of me, I could read through them and say oh, yeah, that probably helped form my opinions on my report as well, so.
Q: Did you refer to any Neal or Lisa Kirby interviews?
MORROW: I didn't specifically refer to those interviews, no, not when I was doing the report.
Q: Have you ever interviewed Susan Kirby?
MORROW: No, I've not.
Q: Or Barbara Kirby?
MORROW: No, have not.
Q: Did you ever attend a meeting at Marvel attended by Jack Kirby?
MORROW: No, I've never been in the Marvel offices.
Q: Have you ever been told about any story or plotting conferences at Marvel?
(break in transcript)
Q: …later on.
MORROW: Okay.
Q: According to your report, I think you became involved in the comic book industry in 1989?
MORROW: No, 1994.
Q: Did you have any connection to the comic book industry prior to 1994?
MORROW: Well, my only connection was that I was a comics fan, a comics collector, devoured fan magazines and the Comics Journal, publications like that, really enjoyed learning about comics history and reading about it, that dates back all the way to probably 1969, 1970 when I got my first comic book. So, but no, I didn't have any professional connection to comics at all before 1994.
Q: And would it be fair to say that you have been a lifelong fan of Jack Kirby?
MORROW: Lifelong?
Q: Well, at least once you started reading comics?
MORROW: Well, no, not since I started. I actually hated his work when I started reading comics. I was about age 14 where I first developed an appreciation of his work. Before that, I couldn't stand his art style.
(break in transcript)
Q: And I know we covered this a little bit generally, but I'd like to cover it more specifically, what you were asked to cover specifically in your report?
MORROW: Well, the history of Timely and Marvel and kind of the history work practices at the time. Jack Kirby's history with the company dating all the way back to what his first work for them with Joe Simon in, what was it, 1939, 1940.

His -- Jack Kirby's career, how he left Marvel, went to work for DC in the '40s, his work in the '50s, how he ended up back at Marvel in the late '50s and then the working relationship between he and Stan Lee, as I understood it, in the '60s.

But, you know, a lot of the history of the company and, you know, what I knew about Jack Kirby's personal work habits, you know, where he worked, how he worked, I guess that's pretty much –
Q: Now, what you know about Jack Kirby and his work habits was not derived from personal observation of Jack Kirby working, is that correct?
MORROW: Correct. Well, I've seen his studio in California, but that was after he had been deceased, and that's not where he was working when he was doing the work in general.
Q: And so your knowledge of Jack Kirby's working habits and how he worked during the period from '58 to '63, which is the period relevant to this case, is based on what you've read about Mr. Kirby?
TOBEROFF:: Misstates testimony.
MORROW: A lot of it is based on what I've read throughout the years. A lot of it is, I believe, I'm sure I talked to Roz Kirby about that, about what it was like living in New York and working in New York. I know I've read -- Mark Evanier has written several times about visiting Jack's studio and what that was like. I believe in the Neal Kirby interview, we talked about that they called their dad's work space the dungeon, I believe, because it was in the basement of their New York home.

I do recall he painted a very graphic picture of what it was like down there. I got a very good sense of what it looked like. It was this room with this one little basement window for light, which is why they called it the dungeon.

But also I read a lot over the years about how Kirby worked when he was working with Joe Simon as well. How they had shared their across-the-street attic studios right after the war. They got, you know, veteran housing and built houses and worked across the street from each other, to the point Joe Simon even told me they lived in different cities, because the state was the dividing line, or different counties, I guess, between the two houses. Just picked up a lot over the years from various things I've read and talking to different people.
Q: Did you ever talk to Joe Simon about Jack Kirby and his work?
MORROW: Yes, we have. I actually interviewed Joe Simon for the Jack Kirby Collector.
Q: And did Mr. Simon describe the nature of the working relationship between Jack Kirby and Marvel during the 1958 to '63 period?
MORROW: I don't believe so, because I don't believe Simon and Kirby were particularly close at that point. Their company had dissolved shortly before that, which was the big reason Kirby ended up back in Marvel, and that seems to be kind of a dead area in the relationship. There's not been much written or said about it.
Q: Did Neal Kirby ever tell you that he had
(break in transcript)
Page 57
Q: …that Jack was going to be working on in the future?
MORROW: I'm not sure. You would need to check with Mark. I just recall Mark said he was there when Stan and Jack were hashing out a story over the phone. So I know recall whether it was I think it was either for Fantastic Four or Thor, which were the two main books he was doing at the time, but I don't recall which one.

And I recall the specifics of, you know, was it one that Jack had already halfway drawn and they were making changes to or it was one that Jack was about to begin, I'm not sure. That's why Mark would be able to answer.
Q: Do you have an understanding as to whether or not Stan Lee and Jack Kirby communicated with one another about the work that Jack was engaged in once he
began this story and was somewhere between the beginning and the end?
MORROW: Well, actually I can't say that I do, no. I've not heard any instances that I can recall right now of, for instance, Stan calling in the middle while Jack was drawing a story and changing anything. There are instances of the Marvel offices, for instance, if a book wasn't doing well, quite often, Stan would ask Jack Kirby to take it over. In doing so, Marvel offices would send Jack these little photostats of say like the previous issue, so he could see where he's kind of jumping off from. I have access to a lot of those from the family. They kept those for years and years and have loaned them to me for the magazine. Those are interesting historically, because you can kind of see well, first of all, why would -- for instance, why would Jack have a Steve Ditko set of Hulk stats with a Steve Ditko Hulk story? You look and see oh, the issue after that is one where Jack took it over. Okay, that's why it's in Jack's files.

There's a lot of instances of that where you would see some totally unrelated artist's work in Jack's files. They were sending material to Jack so he could see where he was taking over from.

But as far as -- back to the question as far as knowledge of instances of Stan, for instance, getting involved while Jack was doing something? I don't really recall those. Everything I've seen, it's a pretty straightforward thing. There would be some kind of story conference, whatever that would entail, and then Jack would go, do his work, he was drawing the pages, plot them, write margins in the notes, in a lot of instances, when he was done, bring them back in.
Q: Is it your understanding that between '58 and '63, 1958 and 1963, all of the work that Jack Kirby did that was published by Marvel was done utilizing the so-called Marvel method?
MORROW: Is it my understanding that all of it was?
Q: Yes.
MORROW: No, that's not my understanding. My understanding was that some was. There's, as far as which ones were and which ones weren't, you know, my understanding is that Larry Lieber has said that he provided scripts on some stories to Jack, and Jack was
working from full script, but that has some pitfalls to it too. Because if you go back to when Simon and Kirby were working for DC in the '40s, they had writers that would come in and work for them and provide scripts, and there's famous stories of writers would bring in their scripts to Joe Simon or Jack Kirby studio, and as they were leaving, they would see pages floating out the window where they would just look at them and go well, we will just do it ourselves. They would completely write their own scripts, even though they commissioned somebody to do one. So Kirby's history bears out that. It's just he was a very creative person, and anything he worked on he put his stamp on, and most publishers were wise enough to let him do it, because he was so creative and would come up with such interesting work.
Q: Is it correct that on some occasions during this period, from '58 to '63, you understand that Jack was given conventional scripts for work?
MORROW: I have heard Larry Lieber say that he provided full scripts for some material. I've not seen those scripts. I've not seen any scripts from Stan from then, and I've not -- of all the interviews I've read with Stan, I've not heard Stan say that they weren't working Marvel method. Stan has always been very proud about touting the Marvel method, because he felt that was something they pioneered. I've not seen him go on the record and say no, I wasn't giving Jack scripts on all this stuff.
Q: Let's make sure our lexicon is the same. Would you describe what you understand the Marvel method to be?
MORROW: Oh, sure. Marvel method, as I understand it, is the, well, we'll use the term writer and artist, even though some can be used different term. The writer or scripter and the artist get together, discuss an idea, then the artist will go back to his studio, wherever it is he does his work, and then based on that initial story conference, break the story down into panels, page by page, pace it the way the artist feels it should be, add a lot of characterization and possibly some new characters, things like that, and then bring the finished story, finished pages back in to submit for publication.

At that point, the writer would take the pencil pages, in some cases they might actually type a script for the letterer to go by. In some cases, they might actually go and pencil things in margins or write actual balloons on there. At that point, the art is passed on to the letterer. They ink the lettering on there and the balloons. It's passed on to the inker, so it goes to the artist's pencil drawings, so that they'll reproduce in blank ink, and, you know, I mean, that's generally the Marvel method. They get together for story conference. The artist goes and does his work and then turns the work back in.
Q: Would you distinguish that from what I'll call the conventional method, or the method that was used prior to the introduction of the Marvel method?
MORROW: Very different. The method that DC comics had always used up through that period, the writer
(break in transcript)
MORROW: …does kind of show that Kirby was doing things differently from everybody else.
Q: Have you ever heard that Fantastic Four number one was the first issue that employed the more Marvel method?
MORROW: I've not heard that that was the first issue, no.
Q: Am I correct though, you cannot testify with any degree of certainty as to whether or not Mr. Kirby was working from scripts at any time between '58 and '63?
TOBEROFF:: Asked and answered. It's okay, you can answer it.
MORROW: I can't say definitively, but there's anecdotal evidence that he was working Marvel method during that period.
Q: Exclusively?
MORROW: Exclusively? I had never heard him say that he was working from Larry Lieber's scripts, but Mr. Lieber says he was providing scripts, so I guess it's possible Mr. Lieber provided scripts and Mr. Kirby just went on and did what he wanted anyway.
Q: Apart from that being possible, do you have any direct knowledge to suggest that it didn't happen
(break in transcript)
MORROW: Oh, I probably spent seven, eight hours, something like that, probably total.
Q: And do you recall approximately when you began to actually write the report?
MORROW: I don't recall the date. I think it was about -- Mr. Toberoff told me we needed to have something done in a couple of weeks, and so I didn't do like, you know, eight hours altogether. There were a couple of revisions on it, so, but, I mean, I think I
started about two weeks before we submitted it, something like that.
Q: And did you input a draft on your own computer?
MORROW: No, the initial draft actually came from Mr. Toberoff's office. We spoke over the phone. The problem is I've not done one of these before, so I had no idea like the format. I've never even seen one before. So I asked for their assistance with that. We kind of just sort of did an informal interview over the phone. They'd ask me questions about things, and I would give them my sense, and then they send over -- they typed up kind of an initial draft of it and sent it over to me with the understanding that, you know, this is just our run through on it, make any changes you want.

Once I had the basic, you know, format there in a Word document, it was very easy to go in and alter things, and I changed a considerable amount of what they sent over.
Q: Do you recall over how long a period of time it was between your receipt of that initial draft, to the completion of the final report?
MORROW: No, I remember I was very busy at the time, and I think -- I'm going by memory here, but it seems like it was about a two-week process. It may have been a little more, a little less than that. But once I got the draft, I think it was -- I spent about two days or three days before I sent it back to them as my like final version.

At that point, they looked it over, found a couple of typos, things like that. Somebody from his office called me up and said I think we got, you know, couple of typos. You might want to consider fixing.

They told me I would go in, and they were, I'd change them and send them back, you know, the final, final draft.
Q: And how long prior to the delivery of that initial draft that was prepared by Mr. Toberoff's...
(break in transcript)
Q: …was covered by Mark Evanier's report?
MORROW: No, they didn't. I have absolutely -- I've not seen Mark's report. I have had no knowledge of it whatsoever. I did know that he and I were listed as the two expert witnesses or expert reports or whatever, but that's the extent of my knowledge of it.
Q: Did you use any reference materials in preparing your report?
MORROW: I did. I mean, I pulled out some books and looked things up to try and get dates correct and things like that.
Q: Do you recall what books you pulled out and used?
MORROW: I think several issues of Alter Ego Magazine, issues of the Jack Kirby Collector,
particularly issue 41. We actually published a couple of Mr. Kirby's contracts with Marvel and so I referred back to those.

I know there was an article in Alter Ego number 49 that Tom Lammers wrote about the history of Timely and Atlas Comics and their whole problems with their distributor.

Books, I believe I pulled out, Stan Lee's Excelsior, his biography, and I referred to some of the materials that we've gotten from Stan Lee's archives for a book we're doing on Stan.
Q: The we being TwoMorrows?
MORROW: Yes.
Q: Your company?
MORROW: Yes, Roy Thomas and Danny Fingeroth, who did Write Now Magazine for us. They are coauthoring that book.
Q: But you will be publishing?
MORROW: Right, yes.
Q: You are not writing the book?
MORROW: No, I'm not writing.
Q: And do you recall what materials from those archives you looked at?
MORROW: There were some interviews, transcripts of radio interviews that Stan did in the '60s, some newspaper clippings. One in particular I remember, Stan was talking about the different way he works with different artists, and he talked about he has a story conference with Gene Colan over the phone. He would put the phone up to his reel-to-reel tape recorder and just let Stan talk. And then Gene would have the recording of that to refer to after the fact.

So they didn't actually have a lot of give and take. When they worked, it was just Stan talking. Whereas, he said, with Jack Kirby, it was an entirely different thing. It might be by phone, it might be in person, it might just be let's use Dr. Doom in the next issue Jack, okay, and that might be the whole story conference.

So let's see what else was in that batch? I sent -- you should have a list of all the
research materials and stuff we have. I think there's a pretty good list of material we got together for that Stan Lee book.
Q: Right. But I'm trying to focus on what materials you referred to in connection with the preparation of the expert report from that list. I assume you didn't look at all of it?
MORROW: No. I looked at main issues of the Jack Kirby Collector, if I got my facts straight, Alter Ego, and then that Stan Lee interview. That was probably most of it.
Q: Did you listen to the radio interview in connection with the preparation of your report?
MORROW: I don't actually have a copy of the audio of that. All I've got is the written transcripts. Mr. Fingeroth has copies of the audio.
(break in transcript)
Q: I've placed before you what we've marked for identification as Exhibit 4. It bears production numbers JM131 through 144?
Q: Is the first page of the exhibit the e-mail forwarding to you the first written draft of the report that you are aware of and the other pages of the exhibit, the attachment to that e-mail?
MORROW: This looks like it, yes.
Q: Did you provide the substance of everything set forth in this draft, which is part of Exhibit 4?
MORROW: Everything?
Q: Yes.
MORROW: No, did not. After our initial discussions, they prepared this and sent this to me. I
was quite impressed actually with how well they did with it. Then at that point, I took this and modified it.
Q: Is there anything in this draft that you did not provide to them in verbal terms prior to receiving the draft?
MORROW: Well, we -- let's see, obviously the bio, that was sent by e-mail. The introduction, let's see, the introduction was just their summation of what they told me this would be about. The qualifications are based on the bio that I sent in.

The historical background, A, historical background, most of that was provided by them. We had some brief discussions on that. Let's see, Jack Kirby and Marvel -- again, most of that was provided by them. We had some brief discussion on that, but most of that is from them.
Q: You are talking about the material on page 135?
MORROW: Well, yeah, page four.
Q: Page four of the draft?
MORROW: Yeah, the Jack Kirby Marvel background.
Q: Okay. And on page five, there's another numbered section headed Kirby's working relationship with Marvel. How much of that did you provide and how much was there?
MORROW: Well, we had a pretty good conversation about this. You know, I'm not sure how much of it they took verbatim from me, but, again, this is the draft they sent me. So it was based on our conversation. I feel a lot more of this is what we talked about on the phone, because most of the early historical stuff is just a matter of record. This seems to have more of my opinions in it at this stage.

So that section two would be, I'd say, largely from our phone conversations, and section three, right, they asked about if I knew anything on the Hulk, and I didn't really have too much information on that. So not much came forth on that.
Q: Is the material -- let's just take it paragraph by paragraph, if you don't mind.
MORROW: Okay.
Q: Under the heading Jack Kirby's creations and co-creations, how much of that paragraph was provided -- was based on information you provided and how much was provided in their initial draft to you?
MORROW: Well, the first sentence sounds like it was probably taken verbatim from something I said; as is the second. Actually, it all sounds like it could have been taken verbatim from me.

The second one under Fantastic Four, if that's not all taken verbatim from me, it's
definitely -- that goes (sic) exactly my thoughts. So it may well have all been taken from me.

The incredible Hulk, they were just asking for that. Thor should have been basically from me. Spider-man should be from me. Sgt. Fury, I added quite a bit on that
after they sent this. Number four --
Q: I think we can skip over four, because that's part of the -- when they sent you the report, did they indicate to you what they expected to be added under the conclusion heading?
MORROW: No, they just, as it says there, just to recap everything.
Q: What did you understand your function to be in completing the conclusion section here or recap?
MORROW: Just to recap the main points, you know, as far as just recap the main points of the history and Kirby's working relationship, you know, what I understood of work-for-hire. That's pretty much it, or what I understood work-for-hire, how I felt it related
to this.
Q: And after receiving Exhibit 4, what did you do with respect to the report then by way of completing it?
(break in transcript)
MORROW: …e-mail, just to make sure he knew it had been sent to his assistant.
Q: Did Mr. Toberoff respond to this e-mail?
MORROW: I don't believe so. Again, it's possible there was an e-mail saying thanks, I got it or
whatever. But I don't believe I got a response back from him.
Q: Do you recall any discussion about any substantive changes to the report, other than the correction of typos?
MORROW: I don't recall right now, no.
Q: Let me direct your attention to page four of the draft, that's part of Exhibit 5, which is your signed version, and specifically the first sentence, full sentence at the top of page four that begins: Marvel required me to sign a work-for-hire agreement
for the various work I produced for them, and in the course of this project, Marvel finally paid Jack Kirby's estate $325 for the use of that unused Kirby story Kirby drew in 1970. Actually, it doesn't just begin, that's the whole sentence.

Did you have any discussion with someone from Mr. Toberoff's office about that sentence?
MORROW: You know, I took that out of the final one, because I thought it kind of wasn't pertinent, and then you guys would think I'm some kind of expert on work-for-hire, which I'm not. So that's why I took that out.
Q: Did something prompt you to take it out?
MORROW: No, just rereading back over it.
Q: So in a subsequent draft, this sentence was modified or deleted?
MORROW: I believe so. I don't have the – I thought this was the final version, but I guess it's
not.
Q: The last phrase of that sentence that I just read, where it says Marvel finally paid Jack Kirby's estate $325, what did you mean by finally there?
MORROW: Because he had not been paid for it when it was originally drawn.
Q: And you know that how?
MORROW: Because rejected work, all the historical data shows rejected and redrawn work or rejected work wasn't paid for, and that redrawn work wasn't like, you know, paid again for.
Q: And what historical data are you referring to to support that statement?
MORROW: A lot of, I guess, you might call it anecdotal evidence. But there's -- I think I get into that elsewhere in the report. But there's a lot of rejected pages over the years that Kirby had in his collection. If they were -- you know, if they were paid for, Marvel would have kept the physical pages there at the office to use for, you know, inking sample, inking tryouts and things like that.

In addition to that, there was a lot of instances where Kirby had rejected pages that he might have repurposed for a different project, for a different company even, and, of course, if Marvel had paid for that, that doesn't seem like that would have happened.
I know there's -- we published some Hulk, some very early Hulk pages that actually, I think Larry Lieber provided through an art dealer that were rejected from one of the very early Hulk stories, which was a great find. We couldn't believe when that art dealer turned up those pages, he said Larry had them in his closet all these years and that Marvel had rejected them and Jack threw them in the trash and he rescued them from the trash, I think, something like that. And that would say to me that if they were rejected and Marvel paid for them, Jack wouldn't have had the opportunity to throw them in the garbage. Marvel would have done something with them.
Q: Am I correct that you don't have any firsthand knowledge about whether or not Jack was paid for the pages you're referring to in this sentence?
MORROW: Well, by firsthand knowledge, was I there, for instance? No, of course not. I was much too young to be there. You know, I'm not privy to Marvel's books, so, no, I can't say definitively that it was on the books that he was paid.

I know when we did -- Marvel wanted to do a book called Fantastic Four Lost, which was – I assembled an unused Fantastic Four story from various collector's collections. They had scattered pieces of this story that Marvel -- Jack had drawn in, I guess, 1969 but Marvel never published.

Marvel read my article in the Kirby Collector and said oh, we should get that together and finish it and publish it. So when they contacted me about doing all of that, I told them that, you know, unless there's some reason to believe that they paid for that originally that, you know, no, they're not going to get the article for free. They are going to have to pay the Kirbys for that and finally pay for the page use, which they did, and that's what this was. They finally paid the $325 per page to use that unpublished story.
Q: Are you aware of testimony given by Stan Lee in this case to the effect that whether pages were rejected or not, if he had asked Jack to draw a story, he would pay for it? Do you have any reason to contradict a statement to that effect by Stan Lee?
TOBEROFF:: Asked and answered.
MORROW: Yeah, I do, I mean, there's a lot of historical references to artists saying when their work got rejected, they didn't pay for it. I think I included one in here from John Romita talking about when Stan canceled a story on him, he didn't get paid for those.
But there's a lot of other instances throughout all the stuff I've read and published over the years, where people say things got rejected, we didn't get paid for it, or, you know, Stan was always asking me to make changes on things, and I didn't get paid for it.
So, yeah, I've got a major reason to dispute that.
(break in transcript)
MORROW: …copyright to terminate because Marvel was -- its work product Marvel was the author. Kirby is not the author. Stan Lee is not the author. So, and that seemed to be key to the case.
Q: Did you ever have discussion about the issues in the case with anyone from Mr. Toberoff's office?
MORROW: I think I talked to Mr. Toberoff about the intricacies of work-for-hire. I think he kind of sort of explained those to me. I don't remember when that discussion was. It was over the course of between our first correspondence and this, but I couldn't tell you exactly when.
Q: And prior to that discussion, did you ever have an independent understanding of the legalities associated with work-for-hire under the copyright laws?
MORROW: In my layman's understanding, yeah. I remember in the late '70s, it suddenly became a big issue. I remember, you know, who Neal Adams is. There was an issue about are the companies going to return our original art to us or not. And our issue at the time is well, if they don't return it, then they own it, so they have to pay sales tax on it, and Neal Adams was trumpeting that as a major reason why the companies
(break in transcript)

MORROW: …contracts to kind of protect yourself in cases like that. So, yeah, I had at least a rudimentary knowledge of what work-for-hire was about. I don't think I know every detail by any means, but I got the basics.
Q: What is your understanding of what work-for-hire is, as you sit here today?
MORROW: Well, in terms of just in general, or in terms of this case?
Q: I mean, well, in general.
MORROW: In general. Well, for it to be work-for-hire, my understanding is that, like the people you're dealing with, they have to have an obligation to pay you, first of all, for the work you're doing. It's not like -- I'm like -- I mean, there has to be like a guarantee of payment for the work you are going to do for them. It has to be kind of agreed in advance. I know in a lot of instances, there actually has to be a written document before work begins saying this is work-for-hire agreement, both parties understand that.

You know, for instance, I know work-for-hire is a whole lot more clear and easy to
(break in transcript)

Q: …were asked to provide are set forth in the second paragraph of the introduction, preceded by the letters A, B and C?
MORROW: Yes.
Q: Were those the specific opinions that you had in mind when you were talking with Mr. Williamson and making the revisions to the draft report?
MORROW: Yes.
Q: And with respect to your opinions concerning Marvel's history before, during and after the 1958 through 1963 time period, apart from what you've described as reading interviews and materials over the years and perhaps conducting some interviews, is there any other basis that you had for offering opinions concerning that history?
MORROW: Well, what you mention encompasses a lot.

Just the sheer number of pages we published on comics history since we started in 1994 is pretty extensive. So I don't want to discount the value of that, in my opinion for him. And just the number of books I've read in that time period as well. And before, I mean, the four-page list of research materials I sent you is not all of the books I've ever read on comics history. There's any number that I, you know, also sold or traded or donated or whatever.

So, I mean, this has, you know, comics history has been kind of in my life since I was 12-years old, so, I mean, I think that's sufficient to form opinions, frankly.
Q: And with respect to your opinions concerning the B element described here, which is the business relationship between Jack Kirby and other freelancers with Marvel during this period, is there anything, other than what you just described and described earlier, that you used as a basis for forming opinions with regard to that relationship?
MORROW: All my research materials, you know, conversations I've had, convention panels I've attended, where these creators were actually speaking firsthand about it, but, yeah, I mean, I think we've outlined where my research comes from.
Q: And with respect to the last of the three described opinions, which is Jack Kirby's creation or co-creation of many of Marvel's most famous characters during the period, did you do anything other than, again, what you've described previously?
MORROW: I think that's pretty much the same. A lot of firsthand accounts by creators, a lot of interviews.
Q: Any firsthand accounts by creators concerning people who were at story conferences between Jack and Stan Lee?
MORROW: Certainly. I think, wow, let's see, I believe Flo Steinberg is mentioned, of course, she wasn't actually in the conference, she was outside, as the secretary, but could overhear things.

I believe Marie Severin has commented on story conferences. John Romita, of course, I think I elaborated earlier the example where Stan was driving him home, that's a good example.

Who else? Of course Mark Evanier hearing the phone, one side of the phone conference from Mr. Kirby's studio. I'm sure there's more. Those were the ones that immediately come to mind.
Q: What information did you get from Flo Steinberg about this subject?
MORROW: Oh, I just recall, I can't give you a specific right off the top of my head, but I remember her speak or read of her speaking about -- you know, Stan Lee was infamous for very enthsiastic story conferences in his office. He would stand on the desk
(break in transcript)
BY FLEISCHER::
Q: Am I correct in looking at your report that the report contains both statements of fact and statements of opinion?
MORROW: To my knowledge, yes.
Q: And is there a way that I can distinguish or the reader can distinguish what you are stating as a matter of fact, from what you are stating as a matter of opinion?
MORROW: I'm not sure how to answer that. I'm stating the facts, as I understand them. And I – I mean, it's, I understand my job with this report is to give my opinions. But my opinions are based on the facts, as I understand them. So I don't know that the two are so intertwined. I'm not quite sure how you would like a formula for saying okay, this is fact, this is opinion. I don't really understand.
Q: In some places in your report, you say it is my opinion that, or words to that effect, I assume?
MORROW: Oh, right, if I say I believe that, that would obviously be an opinion.
Q: I can assume -- let me just finish the question.
MORROW: Oh, I'm sorry.
Q: Am I safe in assuming that when you say it is my opinion that, or words to that effect, that that is an opinion, not a fact?
MORROW: Yes, my opinion based on the facts that I understand.
Q: And if you don't preface a conclusionary statement with it is my opinion that, or words to that effect, is there any way to know whether you are stating something you believe is a matter of opinion or is a matter of fact?
MORROW: Well, I guess we'd have to take it line by line, and you could say is that a fact or is that an opinion? And if it's a fact, I can tell you what it's based on. That we could do. But in terms of just something so the casual reader can go oh, that's a fact or that's an opinion, I don't know that there's some kind of system in place for someone to do that.
Q: So the reader, other than with respect to statements prefaced by it is my opinion that, or similar words, would have to ask you -- follow up and ask you whether it's a statement of fact or opinion?
MORROW: As with any document, certainly, yes.
Q: And am I correct that the statements that appear in the report that purport to relate facts are facts that you have derived from research as opposed to personal observation, something you saw, something you heard directly or something like that?
TOBEROFF:: Asked and answered.
MORROW: Yes. I mean, my report is based on research and the opinions I've formed based on the research.
Q: Is there any method by which the reader of your report could test reliability of the conclusions in your report?
MORROW: I guess they could read the same research materials I've read, and if they've read our – the publications we've put out over the last 17 years, I think they could do a pretty decent job of going through and seeing where I got my information and giving it validity, yes.
Q: So the only way you could test validity is by reviewing, theoretically, everything you've reviewed, and in your view, the reader of that material would always come to the same conclusion that you came to?
MORROW: Well, I can't say always, because I can't speak for other people and how their thought processes work. I was asked to do an expert report based on my knowledge that I gained over the years, so that's what I did.
Q: Just in terms of methodology, if I wanted to test reliability of a statement in your report, the only way I could do that is by immersing myself in all of the material you reviewed over the years and making judgment?
TOBEROFF:: Misstates testimony.
MORROW: You asked a way that you could validate what I put in my report. That is one way. There are probably other ways. Probably other people who have read other research materials and read other interviews could probably evaluate what I said as well. There may be other ways. I don't really know how to answer that question.
Q: What I'm getting to is this, if you had written a scientific paper, where you set forth, take a wild example, the proof of Fermat's last theorem.
MORROW: Whatever that is.
Q: Which is A to the end, plus B to the end equals C to the end, has no whole number solution greater than two, and you published that paper, the scientific mathematical community would be in a position to test that by looking at your calculations.

And I'm trying to get to is there any way the reader of your report could apply some methodology to testing the reliability of your conclusions?
MORROW: A methodology to test reliability? By, I assume, by reading the rest of the testimony in this case, other people's depositions, that could, you know, support or reject some of the things I say in my opinions. But, again, I'm not -- I don't really know how to answer that question.
Q: Let me direct your attention to page three of your report, not the final report, that's the one -- Exhibit 9, and specifically to the sentence appears to be the third sentence in the second full paragraph, which I'll read for the record, "Prior to my 1996 article, the unused Fantastic Four story was unknown to the public at large and to the then current Marvel Comics editorial department."

What is the factual basis -- well, first of all, let me ask you, is it intended by you to be a statement of fact that the then current Marvel editorial board was unaware of the unused story?
MORROW: Yes.
Q: And that's a statement of fact?
MORROW: Yes.
Q: And how -- what is the basis for that statement of fact?
MORROW: The main basis for that is Tom Brevoort, who is an editor, or still is an editor up at Marvel, when he contacted me about reassembling that story, the sense I got from our discussion was that prior to my doing an article in 1996, they didn't even know about that story.

As far as the public at large, same thing, all of these letters of comment that we got to our publication, after we published that article or actually after I published that article, we said wow, we had no idea there was an unused Fantastic Four story out there. The fact that Marvel billed this publication as this lost Fantastic Four story further leads me to conclude that no one knew about this thing. So, yes, I intend that as a statement of fact.
Q: Now, apart from Tom Brevoort, do you know who the other members of Marvel Comics were part of the editorial department at the time?
MORROW: I'm sure I was familiar with a few of them, but Tom was one of the key people there and certainly if they knew what was going on, Tom would have known.
Q: That's a presumption on your part?
MORROW: You could say that, sure.
Q: You don't know whether or not -
MORROW: I did not speak to every member of Marvel's editorial department and get a sense from them whether they knew about this story. But Tom is the editor up there who has the most thorough knowledge of, you know, Marvel's history and comics history and what they published in the past, and I don't think it's any stretch to think that if Tom wasn't aware of this, that anyone else up there, who is much younger and less knowledgeable about it, would have.
TOBEROFF:: How do you spell his name?
MORROW:: Brevoort,
(break in transcript)
MORROW: …Vassallo has done a lot. What are some of the other authors? I'm not coming up with the names off the top of my head, but Roy deals with a lot of different contributors.
Q: So when you include this statement in your report, you're basically reflecting information you derived from research done by Roy Thomas and the other individuals that you mentioned?
MORROW: Yes, and stuff we published, stuff that has been published in various other history books as well. It's my overall sense of what I've absorbed over the years from my research.
Q: How would you determine whether Martin Goodman had a -- or confirmed the reliability of that statement that -- I assume what you mean by primarily is at least 51 percent of his business was publishing mens' magazines?
MORROW: Um-hum.
Q: Do you know what other businesses he had?
MORROW: Other than comics? He published paperback books as well. Let's see, what else did he do? I'm sorry, it's just not coming to me at this point, but.
Q: Okay. And a little ways down in that paragraph you say the comic book industry grew out of the great depression. What do you mean by that?
MORROW: Well, people were looking for cheap, inexpensive entertainment. They had very little money to spend and along came comics at a dime apiece, in some cases a nickel apiece. You would get a very healthy dose of entertainment from those. They were done in very exciting and sometimes lurid ways. They appealed to the mass public pretty well. So they grew out of the hard times. People could afford them and also the creators working on them could turn out a lot of work and for very little money, so the publishers could afford to do them.
Q: And you go on in that same sentence to say and was hardly an industry at all, referring to the comic book industry. What do you mean by that?
MORROW: That it was done on a shoestring. It started out initially it wasn't even original stories. The first comic books were collections of newspaper comic strips that they would cut up and paste up on pages and print in booklets. That was just sort of an afterthought. Hey, I wonder if they would sell, because newspaper strips were very popular at that time. It was a very hodgepodge group of publishers. It wasn't like today. You would have Time, Incorporated that owns Warner Brothers that publishes an arm of comic books. Companies were springing up literally overnight. You would see them stick around sometimes for just a few months and then fade away. It was just not an organized industry in any way, particularly early on.
Q: Now, this section of the report, was this one of the sections of the report that you drafted primarily, or was this a section of the report that was drafted primarily by someone in Mr. Toberoff's office?
MORROW: This was drafted primarily by them.
Q: And in the last sentence of that paragraph, you say: Comic books were considered the lowliest form of publishing in both cultural and business terms. Considered by whom?
MORROW: Oh, by pretty much anybody; the publishers themselves, because they used the absolutely cheapest stock they could get to print these books on and the general public. Even to today, comics still have sort of a negative connotation for more affluent people, for more educated people. They think comics are for the lowly educated to read.
Q: When you say in both cultural and business terms, when you use the term business there, are you referring to profitability?
MORROW: Yes. In general, you are talking a low ticket item, and one that was returnable as well. So, you know, bang it out, don't worry about doing too much terribly original creative work and get onto the next month's release so you could make some more money.
Q: Were you intending to say it was the lowliest form of publishing in the sense that it wasn't as profitable as other publishing?
MORROW: In many instances.
Q: In all instances?
MORROW: No, of course not. When you have a big hit, then you'd make a lot of money. But the big hits were few and far between really until Superman came along.
Q: Now, the next sentence in the second paragraph of this section says, Goodman's relative Stanley Lieber, a/k/a Stan Lee, started in 1939 as an office assistant at Timely Comics, is that a statement of fact?
MORROW: Oh, absolutely, yes.
Q: What is the basis for that specific fact?
MORROW: Any number of historical documents. Stan's own words. He started working for Martin Goodman as an
(break in transcript)
MORROW: …that point after Joe Simon and Jack Kirby left the company.
Q: And what role, if any, did Mr. Goodman play in the company at that time?
MORROW: Oh, well, he was the publisher. I'm assuming he handled all the money and also helped -- made publishing decisions about the company like any publisher would.
Q: Did he direct Stan Lee in the type of stories to publish?
MORROW: Based on Stan's accounts of working with Martin Goodman in the '60s, I would say, I would assume definitely yes, because he was certainly involved, to some extent, in the '60s.
So I -- there's no reason to think he wouldn't have been involved with Stan in the '40s when Stan was just starting out.
Q: When you say run, you're reflecting Stan's position as an editor or as the editor?
MORROW: Editor-in-chief, yes.
Q: Did he have that title in 1941?
MORROW: I'm not sure he had the official title editor-in-chief. I believe he had the title of editor.
Q: Turning to page five, the first sentence of
(break in transcript)
MORROW: …for DC at the same time and summarily told them to leave, and they went to work for DC comics. Then they went to war.

Then Simon and Kirby worked for Harvey Comics, Enterprise Comics and a lot of other companies but not for Marvel.
Q: What was the relationship between Timely and Kirby and Simon at the time Captain America was being published?
MORROW: I believe I put that in here. I don't know where that is. Kirby was working for, I believe, Fox Features at the time when he met Joe Simon. Simon took an editor's job at Timely and worked on agreement with Martin Goodman for Timely publishing Captain America, and Simon and Kirby, I believe, would get 20 percent of the profits, Simon would get 15 percent and Kirby would get ten percent. Simon got the extra percentage because he brokered the deal with Goodman. They produced ten issues of Captain America there at Timely before difficulties arose and they parted ways.
Q: Did Timely pay Jack Kirby for work he did on Captain America, or did Joe Simon pay Jack Kirby, or did someone else pay Jack Kirby?
MORROW: I wasn't there and can't say for certainty.
(break in transcript)
MORROW: …was just accumulating.
Q: Was that an assumption on your part or based on specific information?
MORROW: It's based on reading research in that time period.
Q: Yet you use the phrase a closet full of unused artwork. Doesn't that refer to just pencils?
MORROW: Not in this case. I believe in this case, it would refer to stories that were not published.
Q: To be more accurate, your report should have said a closet full of finished stories?
MORROW: Certainly, yes, that's fine.
Q: And you indicate in your report that Mr. Goodman gave Stan Lee the job of firing the employees, the staff of the company at that time?
MORROW: Yes.
Q: What is the basis for that?
MORROW: Mr. Lee's own biography, various historical articles written, interviews in Alter Ego. I remember Alan Bellman particularly talking about that, that they had like a little PA system, and you would be called into the office and you would go oh, he's getting laid off, he's getting laid off, and one day he heard his name over the PA system and realized it was his turn.
Q: So all this occurred in 1949?
MORROW: Yes.
Q: And the next paragraph of your report jumps to 1954. What happened between '49 and '54 with regard to Timely or Mr. Goodman's publications?
MORROW: Between '49 and '54, they started using up the surplus art that was in that closet. A lot of comic scholars have gone through and tried to compare the little job numbers that are printed in the art on the issues that it was published, to see which ones were done as "new" stories for this publication during that time period, and which ones were surplus stories that were just finally getting published. So after some period of time, and we're not sure of the exact amount, the surplus art was used up and they resumed getting work from a lot of the same employees but on a freelance basis.
Q: Now, in this paragraph that begins in 1954, it looks like the third sentence says, most comic book' companies shuttered, and those that remained, like Timely, fired nearly all of their employees and was barely afloat. What employees are you talking there?
MORROW: They were firing other employees, a lot of
(Break in transcript)
MORROW: Well, you could say that it's possible any number of their early successes were on spec. If Joe Simon brought in Captain America and said let's make a deal with this, does that follow your definition of on spec.?
Q: Is it your understanding that Joe Simon brought Captain America to Martin Goodman or that he was working at the request of Martin Goodman on a superhero character?
MORROW: My understanding is that Joe Simon brought it to Martin Goodman.
Q: How did you get that understanding?
MORROW: From Joe Simon's biography and from Jack Kirby confirming that in interviews.
Q: So let's put Captain America aside. Any other instance in which you can think
of, any work published by Marvel up to 1963 was created on spec.?
MORROW: I'd have to do further research. Bill Everett created the Submariner. I'm not, off the top of my head, sure of the instances of how that ended up at Timely. That was around the same time period as Captain America. The Human Torch, Carl Burgos is another
(break in transcript)
MORROW: …would call them when it was time for an assignment and try to round them back up. I think Dick Ayers, for instance, had taken a job working at the post office and got a call from Stan Lee saying hey, we're taking new assignments now.
Q: Were Ayers and the other freelancers you're referring to here exclusive to Marvel at that time?
MORROW: Well, no, at this point, they weren't with Marvel at all. I mean, they were out of work.
Q: But when they got an assignment, did that imply that they couldn't take assignments from other publishers?
MORROW: No, I don't think so. I'm certain not. They were probably working where they could.
Q: And then in the next sentence you say, however, it had no financial obligation to purchase such freelance material and no ongoing financial commitment to such freelancers. With respect to your statement that it had no financial obligation to purchase such freelance material, is that a statement of fact or opinion?
MORROW: Well, I mean, my entire report is opinion based on fact. So, I mean, we're kind of getting back to what I was saying earlier before the break. I mean, fact and opinion are intertwined here. I've read facts over the years, and I formed my opinions based on those. So that's my opinion based on fact.
Q: When you talk in terms of financial obligation, you are talking a legal financial obligation, correct?
MORROW: Right. They weren't obligated to buy that work from freelancers when they hired them back to do news stories in the same way in the paragraph above in the report John Romita says he was in the middle of the story when Stan pulled the plug on it and he didn't get paid for it.
Q: My question is, your conclusion that there was no financial obligation to purchase is a legal conclusion, isn't it?
MORROW: I guess you could consider that a legal conclusion, that's my opinion.
Q: But you are not qualified to give legal opinions, are you?
MORROW: No, I'm not a lawyer. I'm not qualified to give legal advice. But I think just in layman's terms, Marvel at that point, they can say hey Dick Ayers, come back in and do a story, but they were not at that point committed to pay Dick Ayers to do that story until he
(break in transcript)
MORROW: Based on stories from various creators who were involved there.
Q: Are you aware of any instance in which Jack Kirby complained to anyone at Marvel about not being paid for pages he had prepared and submitted?
MORROW: Well, what immediately springs to mind is those three Hulk pages from whatever, 1962, I guess, that ended up in the trash can at Marvel. Apparently, as I understand the story, when Kirby left the offices, he was very angry and like either tore them up or just threw them in the trash and stormed out. So, I guess, you could consider that complaining that he wasn't going to get paid for those pages.
Q: Apart from that instance, are you aware of any complaint by Mr. Kirby that he wasn't paid for work he had submitted?
MORROW: Let me think for a moment. Yes, I do know another one. In issue 13 of the Jack Kirby Collector, we published an article about a -- it was actually one of the final stories that Kirby created at Marvel before he left to go to work for DC. It was called The Monster, and I think it was an eight or ten-page mystery story. Mr. Kirby drew the entire story in pencil, submitted it to Marvel. They rejected it. He had to go back and completely redraw it. He chopped up the original pages and rearranged them, in some instances had to draw new pages, had to draw a lot of new art and was, by all accounts I've written very, very disappointed, because he felt that the original story was really superior to what he ended up having to turn in and get accepted. And -
Q: Sorry, I didn't mean to interrupt you.
MORROW: Go ahead.
Q: What accounts are you referring to with regard to this incident?
MORROW: Accounts from Marie Severin, who sent us photocopies of the original versions of the story as Kirby submitted it before he had to make all the changes. I believe I would have to reread the article to see who else we had quoted in that article, but I know Marie told us that yes, Jack was very upset about that.
Q: Upset about?
MORROW: The rejection and having to redo that story.
Q: Do you know whether or not he was paid for both the original version and the redone version?
MORROW: My opinion is that no, he was not, because he had to rework the physical pages. They didn't keep the pages and say go back and redraw it or redo this. He actually had to butcher his original art to do it.
Q: What about that implies that he wasn't paid for both?
MORROW: If they were paying for pages, they would have paid for the original pages and had him just go back and redraw the story generally.
Q: So do you know whether or not he was paid for the original pages?
MORROW: I do not know conclusively, but it stands consistent with other instances of artists, including Mr. Kirby not getting paid, and it stands to reason that he did not get paid twice for that and only got paid for the published version that was submitted.
Q: You say it stands to reason, it's your conclusion -
MORROW: It's my opinion, yes.
Q: Are you aware of any other instances in which you believe Mr. Kirby was not paid for work he submitted to Marvel?
(break in transcript)
MORROW: …drew some sample pages, brought them in and Stan said no. He rejected probably because it was too close to Archie Comics' Fly, and that's when Stan had Steve Ditko come in.
Q: Are you saying that Jack brought the pages without being given an assignment by Stan with respect to Spider-Man?
MORROW: No, I think Jack brought in the concept, the idea to Stan as one that they had kind of kicked around at Mainline for doing, and Stan said sure, let's give it a try, and I don't know what level of input Stan gave Jack at that point.
Q: Do you have an opinion with regard to whether or not Jack Kirby was the sole creator of Sgt. Fury and the Howling Commandos?
MORROW: Well, I put in my report -- a quote that really caught my attention when we interviewed John Severin for the Jack Kirby Collector. On page 12 and 13 of my report, he talked about met over coffee with Jack Kirby, and Jack at that point was trying to get syndicated newspaper strips purchased to syndicates and he had this idea that he pitched to John Severin to get John to draw it, because John was very good at drawing war comics, and -- well, the quote is in the report. You can read it. But that one was very interesting to me. That's not an interview I actually conducted. Jim Amash conducted that actually.
Q: So returning to my question, do you have an opinion as to whether or not Jack Kirby was the sole creator of Sgt. Fury and the Howling Commandos?
MORROW: Well, you have to define sole creator. Do I think Jack Kirby initiated the concept? Yes. That right there makes me think that Jack Kirby initiated the concept. Did Stan Lee have input into the concept? I would think as editor, certainly. It could have been as simple as this is hypothetical. It could have been as simple as Stan saying Jack, we need a war book, and Jack said oh, I got this great idea I was kicking around, and then he presented it, and maybe Stan added some stuff, something like that. It could have been that Jack walked in and said Stan, here's an idea. If you want to use it, we can do it. I, of course, wasn't there, so I don't know. But this leads me to believe that Jack initiated the concept outside of Marvel and through whatever process it was brought in. I'm sure Stan had some input into it. The question is how much?
Q: Do you have any information to the effect that Stan -- that Jack Kirby began drawing Sgt. Fury and the Howling Commandos before getting an assignment from Stan to do so?
MORROW: No, not that he began drawing it, no.
Q: Had Stan Lee ever done war comics for Marvel before Nick Fury?
MORROW: Yes, he had.
Q: Was there something unique about Sgt. Fury and this Howling Commandos and the war of comic genre?
MORROW: Yes, there was.
Q: What was unique about it?
MORROW: Sgt. Fury was, for me, the first war comic I actually could read. I never enjoyed war comics. There was something about the feel and the tone of it and the level of action in it that I really enjoyed. At that point, I had never discovered Kirby's earlier war comics. But when I first saw Sgt. Fury, it was like, okay, this is almost like superhero comics, which I like, but done as a war comic. It had a lot of the same trademarks that the superhero comics had.
Q: It was unique in the sense that you liked it?
MORROW: It was unique in the sense that it was
(break in transcript)
MORROW: …lessen that Stan didn't add to it, but it's -- Jack –
Q: When you say it's a Jack Kirby creation --
TOBEROFF:: He was still talking, he said but Jack.
BY FLEISCHER:: Q: I thought you had finished your answer.
MORROW: Well, just that it just screams that was a Jack Kirby creation.
Q: Screams that to you?
MORROW: To me, yes.
Q: That is your opinion?
MORROW: That is my opinion, yes.
Q: Now, do you know whether Jack Kirby put pencil to paper before discussing the Thor character or the concept of a Thor book with Stan Lee?
MORROW: No, do not.
Q: So when you say it's your conclusion that it's the sole creation of Jack Kirby, you are saying it was his idea?
MORROW: That is my opinion, yes. The idea to take Thor and use him as an ongoing superhero and cloak him into Norse mythology would have been Jack's idea.
Q: But he wouldn't have drawn anything until getting the go ahead of from Stan and having a story conference of some kind with Stan, is that correct?
TOBEROFF:: Assumes facts, lacks foundation.
MORROW: Again, I wasn't there in 1961 and '62 when these books were being produced. I can give you my opinion, if that's what you'd like. My opinion is that Jack came to Stan Lee and said hey, I got this idea for a superhero based on Thor. And Stan would say something along the lines of okay, we've got a dead magazine and a mystery with nothing going on. Our superheros are starting to take off. Let's do it. At that point, they would kick around details of it. That's my opinion.
Q: Do you have an opinion with regard to who is the creator of Ant Man?
MORROW: He is such a lesser known character, I don't think I actually included anything about Ant Man in there. I have not heard or read much historical data on Ant Man. What I do know about Ant Man is that --
Q: Just try to restrict yourself to my questions.
MORROW: I'll say no, I have no opinion.
Q: I don't mean to cut you off, but we are going to be here longer than we need to be if you are answering questions I haven't asked you. With respect to the X-Men, are you aware of any X-Men characters that were the sole creation of Jack Kirby?
MORROW: The sole creation of Jack Kirby? No, not sole creation.
Q: Do you have any information with regard to the -- Kirby's contribution to any of the X-Men characters?
MORROW: No specific information I can add, no.
Q: Are you aware of whether Marvel ever made changes in artwork that Jack Kirby submitted and was paid for after submission?
MORROW: That they made changes after Kirby was paid for the accepted artwork?
Q: Yes.
MORROW: Yes, there were many instances.
Q: And is it true that the inker would typically be selected by the editor at Marvel, and in most cases during the period we're talking about, '58 to ' 63, Stan Lee?
MORROW: Yes.
Q: And some inkers would do more modification to pencils than others?
MORROW: Yes, stylistically speaking, their styles were a little heavier, so more changes would be made.
Q: Apart from instances that you've already described, are you aware of any instances in which Stan asked Kirby to make corrections in work that he submitted that Kirby did make and received payment for?
MORROW: Any instances where he made changes and was paid for making the changes?
Q: Was submitted. Let's just take an easy example. Submitted a story and Stan asked him to make changes on certain panels in the story right on the spot in the office?
MORROW: Yes, there were some instances of that. There's no indication that he was paid additionally for making those changes.
Q: Are you aware of any instance in which Jack Kirby refused to make changes in accordance with directions he received from Stan or any other editor at Marvel?
MORROW: I cannot think of one. Jack was a very dedicated employee and had a good work ethic and generally did what the editor told him. He may not have always been happy about them, but.
Q: I think you indicated earlier, I just want to make sure I'm clear for the record, is it your understanding that Marvel had the right to make changes in the work submitted by Kirby?
MORROW: Well, that's generally the job of an editor in any publishing house. The editor accepts the work and they edit it.
Q: So the answer would be --
MORROW: Would be yes. Yes.
Q: Do you know whether Jack Kirby ever received any vacation pay from Marvel?
MORROW: No, none that I'm aware of.
Q: Well, are you aware that he didn't receive vacation pay?
MORROW: My understanding is that he did not, and that's why he produced so many pages at such a faster rate than most of the other artists, so that he could keep up with his family finances and be able to take a little time off once in a while.
Q: Am I correct that you cannot testify from firsthand knowledge that throughout Mr. Kirby's career with Marvel, he never received any form of vacation pay?
MORROW: From firsthand knowledge, no, I cannot.
(break in transcript)
MORROW: So a lot of these were unpublished pages that appeared in there. So he had possession of those, Marvel didn't, which leads me to believe he was not paid for them or Marvel would have kept possession of them.
Q: So there is some relevance about who retains the pages?
MORROW: I think so, but, again, there's, you know, a certain amount of fluidity to the working relationship there, particularly in the early days of Marvel, when everybody is trying to please everybody else.
Q: Would I be correct again in saying that you have no firsthand knowledge as to whether or not Jack Kirby was paid for these pages?
MORROW: No, I do not.
Q: The next one, the last one I'll ask you about is the X-Men. Do you have any information about this?
MORROW: The X-Men one is interesting, because it was actually inked by Chick Stone. So that leads me to believe that that one may have been paid for, because it got to the inking stage. It was actually inked and lettered and had a logo put on it, and apparently at
(transcript break)
MORROW: …with the company for a while, who to this day is not regarded as a particularly compelling artist. Well, I correct that, Steve Ditko also would be a very influential creator there, except that his influence was largely on one or two strips. Whereas Jack Kirby's influence was across the board. But certainly Ditko, you can't discount his work on Spider-Man, and to some extent, on Doctor Strange.
Q: What about John Romita?
MORROW: Well, Romita didn't come in until Ditko left Spider-Man, so we're talking what year was that? Probably around '64, somewhere in there. He became influential, but not at first. At first, actually, the fans tended to really dislike him, because he wasn't Ditko. It took him a while to get the feel for the Marvel style, which is why Stan had Jack do layouts for him.
Q: In your report on page 11, under the heading of Fantastic Four, you describe some history, as you understand it with regard to the publication by Marvel of Fantastic Four number one, correct?
MORROW: Correct.
Q: There's nothing here that talks about the actual circumstances, as you understand them, of the creation of Fantastic Four, is there? That is to say, the interaction between Stan Lee and Jack Kirby?
MORROW: Well, that in Origins of Marvel Comics, Lee admits that he discussed Fantastic Four with Jack Kirby before writing anything. I think that goes to that.
Q: Do you have any other information with regard to the circumstances of the interaction between Stan Lee and Jack Kirby, other than what was in Stan's Marvel comic book?
MORROW: Again, I'm sure there is more. This is off the top of my head. I don't have anything now. You know, if I put more time and think about it, particularly into researching old interviews, I could probably find something.
Q: Can you tell me what --
TOBEROFF:: What is this?
FLEISCHER:: Let me identify it for the record. I've placed before you as Exhibit 14 a two-page document. It has production numbers Marvel 14587 and 88.
(break in transcript)
MORROW: …ring that gave him spider powers; whereas The Fly was an orphan boy that had a magic ring that gave him fly powers. That seemed too similar. But that's, again, just my assumption.
Q: Is there any other similarities, in your view, between The Fly and Spider-Man?
MORROW: None that I can think of. When you say Spider-Man as he is today or Spider-Man as Jack Kirby would have presented it?
Q: Spider-Man as he was depicted in Amazing Fantasy number 15?
MORROW: He was depicted by Steve Ditko in Amazing Fantasy 15. Oh, well, no, there's really not much similarity between the published version of Spider-Man, Amazing Fantasy 15 and The Fly.
Q: I've placed before you Exhibit 16, which is a copy of a document I pulled off the web site indicated on the bottom of the page a week or so ago. And on the third page of this document, there are some penciled drawings. Are these the Ditko drawings that you referred to a minute ago, comparing Kirby's Spider-Man with Ditko's Spider-Man?
MORROW: Yes.
Q: And do you agree that Kirby's Spider-Man looks like the Simon Kirby Captain America character?
MORROW: There are similarities certainly, but there are similarities among most superhero costumes. It's kind of that's just the way superheros are drawn. I think the finished Spider-Man is obviously very different from either of the other two.
Q: And in this document, there is a depiction of The Fly, particularly on the second page on a couple of covers, do you see those?
MORROW: Yes.
Q: And would you agree that the look of The Fly is substantially different than the look of Spider-Man?
MORROW: Yes, I would.
Q: I'd like to direct your attention again to your report in Exhibit 9, the final version, and the first sentence of your conclusion says, and I'm going to quote it: "To recap, I believe that Kirby's work for Marvel from 1958 to 1963 was not 'work for hire'".
I had understood you earlier to have eliminated a conclusion with regard to work-for-hire because you didn't feel you were competent to opine with respect to work-for-hire. Is there a reason --
MORROW: Not in a legal. Not in a legal.
TOBEROFF:: Let him finish the question and give me room to object.
BY FLEISCHER:: Q: Is there a reason that you feel competent to make the statement in the first sentence here?
TOBEROFF:: Objection, misstates his prior testimony. You can answer.
MORROW: Yes, from what my understanding, my layman's understanding of work-for-hire, I feel confident to make that statement.
Q: Is that an expert opinion?
MORROW: Yes, that's my expert opinion.
Q: A minute ago you said it was a layman's opinion.
MORROW: My expert layman's opinion. Not my expert legal opinion, but my expert layman's opinion. I, of course, am not an attorney.
Q: Do you know whether there were any changes in the concept of work-for-hire that occurred in the mid-'70s applicable to works created after 1978?
MORROW: I've got a basic understanding of how the copyright law changed, yes.
Q: And what's your understanding of how the concept of work-for-hire under the copyright law changed as a result of statutes that became effective on January 1 of 1978?
TOBEROFF:: Objection, lacks foundation, misstates the law. Go ahead.
MORROW: Well, my understanding of the copyright law change, I guess it was written in 1976 and enacted in 1978, defined work-for-hire is you have to have a preexisting agreement between the person commissioning the work, the person doing the work, usually in writing. That you had to -- it's not work-for-hire if you are doing it at your own expense. That there's not some financial guarantee of payment, it's not work-for-hire. You have to believe that -- both parties have to believe that from the second of inception of that work, that the employer owns that work, which I don't believe was the case with this. And I'm sorry, I'm blanking out on the others. But that's -- that in
a lot of cases freelance work is not work-for-hire, but there are cases where it is.
Q: I think the question was, what changed as a result of the '78 -- the statute that became effective on January 1, '78? I'm a little confused about your answer. Were you describing the elements of work-for-hire in your answer, as you understood them that changed in 1978, or were you talking more generally?
MORROW: I was talking more generally in terms of why I made this statement, so.
Q: Well, do you know what changes occurred as a result of the Copyright Act of 1976 that became effective in 1978?
MORROW: Right. I believe that you had to have an actual signed contract for it to be considered a work-for-hire. I'm sorry, I'm blanking out on that one, so.
Q: Do you know what the elements of a work-for-hire were under the preceding statute, which was the Copyright Act of 1909 as amended?
MORROW: No, I do not.
Q: Do you know which statute would have applied to work created between 1958 and 1963?
MORROW: I would assume the one that was enacted prior to the 1976 change.
Q: Do you know one way or the other?
MORROW: Well, it makes sense, but, well, yes, it would have to be the one that was before the 1976 change.
TOBEROFF:: Just word of caution with regard to the word assume. Since you
are not supposed to speculate when you say assume, I don't believe you are speculating, but I would be careful with that word.
MORROW:: Okay.
BY FLEISCHER:: Q: Is it your understanding that the concept of work-for-hire is a legal concept?
MORROW: Yes.
Q: And you, I think agree, you are not qualified to offer a legal opinion, is that correct?
MORROW: A legal opinion, correct.
Q: And in your conclusion on page 14 at the bottom, you continue: Nor do I believe that Marvel itself in this period viewed or understood such freelance work to be made-for-hire, since there is no evidence of Marvel having documentation to support it. (break in transcript)
MORROW: …work-for-hire. I don't think they had ever even heard the term. If they had heard it, I don't think they would have known what it meant.
Q: Did you ever see a copyright application signed by Jack Kirby for Marvel for work published by Marvel?
MORROW: I don't believe so. Why would Kirby have filed a copyright application if Marvel was filing the copyright applications?
Q: Do you know if the copyright applications, for example, for Captain America were filed by someone in the legal department of Marvel or just some editorial employee or other employee of Marvel at the time?
MORROW: Are you talking in 1939?
Q: 1940 or whenever Captain America was started.
MORROW: I have no idea. I've never seen those papers.
Q: Do you think it would have been prudent for you to review some copyright applications before rendering the opinion you've offered here in your report?
MORROW: In retrospect, yeah, certainly. I didn't have access to those. But if I had, I certainly would have reviewed them.
Q: Couldn't you have gotten copies of copyright registrations from the copyright office?
MORROW: I guess I could have gone through and gotten copyright applications on every character Marvel ever produced for this report, but that didn't seem to be really in the scope of it.
Q: And in fact, you didn't attempt to obtain any copyright applications?
MORROW: No, I did not.
Q: For any character or publication, right?
MORROW: No, I did not.
Q: In your understanding of the concept of work-for-hire, can a work made-for-hire be a work created by a freelancer?
MORROW: Yes, there are instances where a freelancer can work under work-for-hire, yes.
Q: Mr. Morrow, I placed before you what we've marked for identification as Exhibit 17. It bears production numbers JM225 through 227.
(break in transcript)
Q: …called in to work on the initial issues before handing it off to others to continue.
Did you have in mind the other new series that you were referring to there?
MORROW: Ironman. For instance, Daredevil, Kirby was brought in in some capacity for his covers by him. There are some character concept drawings by Kirby. The character called the Plunderer, and I forget the other one that are in early Daredevil stories that are all -- it's Kirby giving a sketch of what it should look like and writing notes off to the side of the character's, you know, personality and his powers and things like that, that were submitted to the artist who was drawing that issue to go by.
Q: Do you know who wrote the first issue of Ironman?
MORROW: I believe Larry Lieber scripted that, didn't he?
Q: Yes.
MORROW: I believe so.
Q: I'm telling you. I'm asking you. Is it your understanding that Larry Lieber did it?
MORROW: I would say yes.
Q: I don't want to testify. And who drew that issue?
MORROW: That's Don Heck, I believe.
Q: And is it your recollection that Jack Kirby was asked to do the cover?
MORROW: Yes.
Q: Now, what was the -- this Exhibit 24 an introduction to?
MORROW: Well, based on what I'm reading here, I'm assuming this was the one I did for the S.H.I.E.L.D. series, but let's see, since I'm talking about Shield here, it must have been for the Agent of Shield collection.
Q: Now, in the fifth paragraph, you say in the first sentence: While Stan scripted most of the issues presented here; Kirby was undoubtedly the guiding creative force.
What did you mean by Stan scripted most of the issues?
MORROW: Scripted meaning dialogue put the words in the balloons.
Q: You don't mean creating the scripts?
MORROW: No, not working from the script, no. Scripting and dialoguing are kind of used
(break in transcript)
MORROW: Yes. Well, with help from Shane Foley and
Q: And it begins with the sentence: It wasn't all that unusual for Jack Kirby to occasionally end up with some unused pencil pages from his stories. Were those pages -- were you referring to pages that would not have been submitted by Jack to
Marvel?
MORROW: Generally, yes.
Q: Do you recall Stan Lee ever altering any concept for a story illustrated by Jack Kirby?
MORROW: Altering it in what way?
Q: Changing character motivations, plot?
MORROW: Yes.
Q: That was part of the normal editorial process?
MORROW: Yes.
TOBEROFF:: Calls for speculation.
BY FLEISCHER:: Q: I've placed before you a document entitled Apokolips, spelled A-P-O-K-O-L-I-P-S, Now, A Major Production. Can you tell me what this is?
MORROW: Yes, this is an article I wrote on Mr. Kirby's original version of a 1984 story that he
(break in transcript)
Q: After you had described something to that effect, you were then asked, which I believe you were intending to describe the 1909 Act, you were asked, do you know the test of the 1909 Act? And I believe your answer was no?
MORROW: Yeah. What I just described would have been the test under the 1909 Act. So the 1976 Act added some requirements, like getting a contract signed before work begins, like if somebody wants to do a -- somebody is hired to do a screenplay ahead of time, we'll pay you $10,000 for this, we'll pay you 5,000 when you sign and 5,000 when you deliver it. Even though he is a freelancer under the 1978 version, that would be work-for-hire. So that's a good instance of where a freelancer could be work-for-hire under the '78 law. So, yeah, I got confused with the questioning on do I know the difference between the '78 and 1909? I think I have a decent understanding of the difference.
TOBEROFF:: Okay.
(Further examination by counsel for plaintiffs by Mr. Fleischer)
Q: Just some follow-up questions. Did Mr. Toberoff help you in -- at a break in triggering the testimony that you just gave?
MORROW: During the break, he pointed out to me that you got that wrong, and I knew I did, because he had helped me understand the differences in copyright law way back before I did my report over the phone, because I had a lot of questions about what was work-for-hire and what was not.
Q: So is your understanding of the content of the copyright law and in particular the elements of work-for-hire under that law, derived from your discussions with Mr. Toberoff?
MORROW: Well, partially, yeah, but also, I mean, we had had freelance illustrators and designers that worked for our ad agency sign work-for-hire contracts for us, long before I was ever doing the Jack Kirby Collector. Before that I had a grasp of work-for-hire. You know, Mr. Toberoff helped me understand really the distinction with the new law versus the old.
Q: And did you ever read the work-for-hire provisions of the new law and whatever provisions of the old law --
MORROW: Yeah, I actually went on line to the