Marvel vs Kirby: Appellants' Opening Brief

This is the latest round in the Marvel Comics vs Jack Kirby's Estate court case - the official Opening Brief.  As we now know, Marvel won the case proper, but no sooner was the ink dry on the order than the Kirby estate appealed the decision.  As you'd expect, the appeal is based around the judge ignoring the evidence that the Kirby estate introduced, notably the testimony of Mark Evanier and John Morrow.  Marc Toberoff, the lawyer acting for the Kirby estate, wants the court to believe that Stan Lee is a totally unreliable witness, lacks credibility and his testimony should be stricken from the books.  The court is also to believe that Evanier and Morrow know more about the workings of Marvel during Jack Kirbys time than those who were actually there, such as Larry Lieber, John Romita and Roy Thomas - something that the court has already stated it can't do.  Even more disturbing is an allegation that Stan Lee threatened the livelihood of his brother, Larry Lieber, by insinuating that Lieber might lose his job penciling the daily Spider-Man strip if he (Lieber) didn't provide favourable testimony for Marvel.  Not good.  There's a lot more that Toberoff wants the court to believe, 'facts' such as the financial risk for creating wasn't on the publisher, but rather Jack Kirby, and that Marvel had no legal right to publish Kirbys work.  It's a long shot, as all appeals are, but time will see what comes of it.

You can read the appeal brief below, but, be warned, it's lengthy as all such briefs are.  I expect that Toberoff and the Kirby estate have been watching the recent Gary Friedrich case both with great interest and a bit of trepidation.  If they decide to keep fighting and lose again, there'll be nothing to stop Marvel from counter-suing and asking for costs and damages, but with the extremely negative publicity that Marvel now have via that law-suits outcome, it remains to be seen if they can take the massive hit that would come from demanding money from the family of it's greatest creator.


James said…
Your summary at the top seems unnecessarily doubtful of the validity of the Kirbys' case. Actually, it should be clear to anyone who has been following the questionable ethics of Marvel for decades that there is a great rift between what Stan Lee wrote and said over the years and what he stated in his testimony in this case. I think the way Toberoff has prested this appeal is basically sound, although I would place greater emphasis on the valid and pertinent testimony of the artists who WERE there at the time, were and engaged in a creative process similar to that of Kirby, like Ayers, Colan, Steranko, Adams, all of whom were ignored by a judge who seems biased in favor of Lee and Marvel/Disney's case, than on the well-informed but somewhat removed testimony of Morrow and Evanier.
Given the persistent nature of Marvel's bullying and its ability to overwhelm its adversaries with phalanxes of lawyers though, I suppose we can't expect a fairer outcome this time, either.
Barry Pearl said…
Dear Danny,

I read the Kirby appeal, thanks for posting it. You also hit the nail on the head, although there are some sites that will now be mad that you are not “super pro Kirby.”

First, the only bad thing for Stan, really, is the threat to Larry, which, after I spoke to Larry this weekend, I just don’t believe. If the statement exists at all (just because the Kirby’s lawyer says it does, it doesn’t mean it does) is so out of context. They lawyer deliberately doesn’t say when before and after it.

AND A BIG DEAL: Kirby is suing for Spider-Man, if Kirby wins then Larry’s job may be in trouble! But the lawyer makes it sound like a threat.

Not only were Evanier and Morrow not there in 1958, the judge said that Mark was trying to make decisions only a jury could decide. Theirs is hearsay evidence, there is nothing that can stick.

The Kirby’s acknowledge that Marvel paid them $350 a page for that recent Fantastic Four story. In the long run that hurts them. As I have mentioned to Nick and Mike, every concession Marvel has made to Kirby is turned around as “evidence” against them./ Do you think Marvel will now make any offers to the Kirby family?
Toberoff claims Kirby worked on “assignment” not “pay for hire.” Is there a difference? And Kirby almost always worked, and so did everyone else, with just a phone call from Stan not a contract. Again, if Sinnott and Ayers were not in the room with Kirby and Lee their testimony doesn’t matter. And Steranko wasn’t there until 1970.

One more IMPORTANT thing: The actual Constitution of the United States says that all copyrights laws MUST be on the Federal level. This supersedes any NY law involving production. This is the only legal aspect that the constitution does that with. So NY law is not quite what matter here. The lawsuit was originally filed in the NY Federal court, not state, “The Congress shall have Power …To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Basically this means that Congress not the state has all the authority regarding copyrights and patents.

Your right about Marvel fighting back, but there is one more issue involved, a serious one, that no one has mentioned. I’ll right about that later, when I have the time.
James said…
It MAY be that only surviving person who was "in the room" is Lee. Does that automatically make what he said in court the truth?? Apparently not. At any rate, by Lee's own earlier written and spoken accounts, Ayers and the other artists called did work by the "Marvel Method", virtually writing the stories, concieving complete narratives for Lee to overwrite dialogue and captions derived from the artist's border notations and so the artists are qualified to inform the case.---And, Pearl is wrong, Steranko began working for Marvel in 1966.
Daniel Best said…
James, you're assuming that Stan Lee is lying and that Evanier and Morrow are telling the truth. I assume that everyone is saying what they need to, and what they believe, in order to ensure that their side wins the case. Yes, the onus in each side to demonise the other side.

The judge didn't ignore all of the evidence from the Kirbys, the order saw the testimony of Morrow and Evanier stricken, the others were admitted. That included John Romita and Roy Thomas. That the judge believed Stan Lee, who, as is pointed out WAS there, over two people who weren't there, was just logic. And yes, Toberoff did his best, during the trial and during Lee's own deposition, to point out the many inconsistencies in his accounts, as the Marvel lawyers did with Jack Kirby's own memories.

This is a no-win situation for all.
Daniel Best said…
And I don't doubt the validity of the Kirby case any more than I doubt the validity of the Marvel case. Somehow I suspect that the real truth lies somewhere in the middle. But, if you're for Kirby then you'll read the entry as being negative. If you're for Marvel then you'll read the entry as being negative. Such is life. I'm not here to pander to either side.
Barry Pearl said…
Yes, I made a mistake about when Steranko got there! How could I forget. My point though is Steranko was not there from 1958-61.

However, I must disagree with James on a few points and I did talk to Dick Ayers about this. First, the Kirby estate would have to prove that the arrangements made with Ayers or Sinnott was identical to the terms they had for Kirby. We don’t know if that is true.

Second, at this point, Marvel has not really presented their case and don’t have to. For the case to have continued the Kirby Estate had to present evidence that they should get the copyright. They didn’t, so it never got to trial and so Marvel did not have to prove anything at this point. And they would NOT give away any of their “defense” unless the case went further. In other words, the Kirbys shot their load, Marvel did not. Also, in an appeal NEW evidence is not considered. The only issues are whether or not there was something legally wrong or mis- handled.

James wrote, That artists “virtually writing the stories, conceiving complete narratives for Lee…Well, I spoke to Dick Ayers about this and this is totally not accurate. In every case, except for Sgt. Fury # 23, Stan gave Dick the plot, sometimes in writing, mostly not, and Dick would draw the story and Stan would completely dialogue it. Ayers LOVED the Marvel Method and disliked getting full scripts or long detailed plots. This way he told the story at his own pace. James’ implication is that the artists were plotting the scripts and doing most of the dialogue. In my discussion with Gene Colan this was not the case.
The Seditionist said…
A few points:

The Friedrich case in my opinion has nothing to do with this one for a few reasons. As I've noted here and there, I think the decision is awful legally -- just a wrong decision. (Whether Friedrich could win remains a question.) This case, OTOH, had no witness who could say that Kirby created anything on spec that he brought to Marvel, which is required.

As for the threats against Lieber: Ugly, ugly if true. However, he has terrific reputation for honesty and has never, to my knowledge, ever said anything about Kirby doing work on spec. And I believe Lieber didn't work in the office. So apparently threat or no threat, he simply doesn't know anything helpful to Kirby nor could he. And raising that issue on appeal is a very cheap shot which also has nothing to do with nothing. (My obsession with work on spec is because it's the lynchpin -- pending appeal -- in the Siegel case.)

As for Stan Lee (sans threats): For better or worse, he was one of the very few witnesses who'd have first hand knowledge. And Neal Kirby who said unambiguously that Jack Kirby never did work on spec. (Which happens to be wrong, at least at a later time.)

My respect for Toberoff as a litigator is also on record :)

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