Marvel Worldwide, Inc. et al v. Kirby et al - Declaration of Dick Ayers
I, Richard Ayers, hereby declare as follows:
I am familiar with the facts set forth below known to me of my own personal firsthand knowledge and make this declaration in support of defendants' motion for summary judgment and defendants' opposition to plaintiffs' motion for summary judgment.
I am a comic book artist and have worked in the comic book industry since the 1940s. For my professional accomplishments, I was inducted into the Will Eisner Comic Book Hall of Fame in 2007.
I first began working in comics in the late 1940s. While I was studying under Burne Hogarth at Hogarth's Cartoonists and Illustrators School, I was spotted by Joe Shuster, co-creator of Superman, and Shuster subsequently asked me to draw some of his Funnyman stories. I subsequently worked as an artist, penciling (i.e., drawing) and inking A-I Comics and Trail Colt comic books and the Jimmy Durante humor strip, all at Magazine Enterprises, and on Prize Comics' Prize Comics Western. I. also co-created the Western character Ghost Rider for the Tim Holt comic book, published by Magazine Enterprises.
In 1952, while selling freelance work to Magazine Enterprises, I began selling freelance work to Marvel Comics, then named Atlas Comics. Marvel began publishing my work commencing with Spellbound No. 1 (March 1952), Adventures into Terror No. 9 (April 1952), Adventures into Weird Worlds No. 5 (April 1952), and Journey into Unknown Worlds No. 10 (April 1952), and continuing in numerous other comic books. I drew the revived character of the pre-Fantastic Four Human Torch in such issues as Young Men No. 24 (February 1954), The Human Torch Nos 36 (April 1954), 37 (June 1954), and 38 (August 1954), and Sub-Mariner Comics Nos. 33 (April 1954), 34 (June 1954), and 35 (August 1954).
I also inked Jack Kirby's newspaper strip Sky Masters of the Space Force, syndicated George Matthew Adams Agency from September of 1959 to January of 1960 for the Sunday strips and from September of 1959 to December of 1961 for the daily newspaper strips. Marvel was not involved in this strip.
After Jack Kirby reinvigorated the superhero genre in 1961 with The Fantastic Four, I drew and sold my own superhero stories to Marvel, including the Human Torch solo stories in Strange Tales Nos. 107 (April 1963), 110 (July 1963) through 113 (October 1963), 115 (December 1963) through 119 (April 1964), 121 (June 1964), 122 (July 1964), and 124 (September 1964) through 129 (February 1965), and Giant-Man and Wasp stories in Tales to Astonish Nos. 52 (February 1964), 53 (March 1964), and 55 (May 1964) through 60 (October 1964). I also drew most of the artwork published in Sgt. Fury and His Howling Commandos, commencing with issue No. 8 (July 1964), and continuing through issue No. 120 (July 1974), with only a few issues containing artwork by other artists.
In total, I sold freelance artwork to Marvel from 1959 to 1975.
During this period I sold artwork on a freelance basis to several other companies including Magazine Enterprises, Charlton, St. John, Fago Magazines, Prize, Harvey, Alan Class, Tower, Eerie Publications, and Skywald.
As a freelancer, I worked out of my home, set my own hours, received no medical benefits or insurance, vacation time or sick pay, and paid for all my own expenses, including for my own pens, inks, paper, pencils and other materials. I was not reimbursed for these expenses by Marvel or by the other companies I sold artwork to.
I was paid by the page; and, as one might imagine, I was simply paid for the work that Marvel or the other comic book publishers accepted. I was not paid for rejected material, nor was I paid for the additional work and time of redoing any artwork at Marvel's request as a condition to their purchase of the material. I was paid solely for the finished artwork, accepted and bought by Marvel.
I did not view my artwork that Marvel published as "work for hire," and received no indication from Marvel at the time that they considered my artwork as "work for hire." The freelancers and the comic book publishers did not view their relationship that way in the 1960's. In fact, I do not believe I ever even heard the term "work for hire" mentioned in the comic book business until the very late 1970's or early 1980's. The reality was that Marvel and other comic book publishers bought our freelance artwork once it had been submitted and accepted by the publisher. I believed that Marvel owned all rights to the artwork because they bought it from me.
This was reflected in how we were paid after delivery and acceptance of freelance material. Marvel's checks to me would include stamped writing on the back, where I was supposed to endorse the check, which stated that by signing the check I was transferring to the comic book publisher all of my rights in the material it had purchased.
Years later, Marvel returned some of my original artwork to me. For example, in the Spring 1998, Marvel notified me that they had some of my original artwork for the Rawhide Kid which they would like to return to me. I was enthusiastic about these returns because there is a collector's market for such material, and I could use the income. Marvel sent me a one page artwork release form to sign, and informed me that unless I signed and returned the form "as is," they would not return my original artwork. I signed the release, because I was in no position to bargain, and I would otherwise not get my artwork back. I did not have an attorney review the legal language in the release because, frankly, I could not afford one.
I declare under penalty of perjury that to the best of my knowledge the foregoing is true and correct.