Marvel vs Kirby: Brief For Appellees (Marvel)

As promised, here’s Marvel’s brief in the Kirby v Marvel/Disney appeal, hot off the presses. As expected Marvel/Disney are heading down the road of ‘work-for-hire’, and as such the appeal is packed with comments like “instance and expense,” and claims that Marvel were the “author” of any work that Jack Kirby did for the company during the period from 1958 through to 1963 (which is the time-frame of the case). Marvel/Disney are still insisting that the Kirby heirs only decided to file this action because Disney bought Marvel, the inference being that they’re chasing money. Marvel/Disney also make reference to the original summary, that being that Kirby, “indisputably “didn’t work on spec” and never began to draw until after he spoke with Marvel’s editor”. In response to the claims that the Kirby side have made about Stan Lee, both during the case and also in their Appeal Brief, stating that while the Kirby heirs, “vociferously impugn the credibility of former Marvel editor Stan Lee, they fail to point to any evidence that could create a disputed issue of material fact concerning whether Marvel has met the instance-and-expense test – especially given the consistency of Lee’s testimony here with statements he has made over some fifty years, as well as with the testimony of the remaining individuals with actual knowledge of the facts”, which makes the denigration of Lee appear to be a smokescreen.

The key Kirby witnesses, Marc Evanier and John Morrow, aren’t let off the hook lightly either with Marvel/Disney pointing to the summary judgement claim that the pair offered nothing in the way of facts but simply acted as, “conduit[s] for introducing hearsay”, that, “both of them concededly lacked any firsthand knowledge to support their testimony, which was based on their review of secondary sources and interviews”, pointing to Evanier’s opinions as opposed to fact, such as, “I have great respect and personal affection for Stan Lee, but I disagree with the accounts he has sometimes given of the creation of certain of the Works,” “I do not believe that Goodman, Lee, Marvel or the freelance artists . . . thought that the material they created was ‘work made for hire,” and “It is extremely doubtful that either Marvel or freelance artists, such as Jack Kirby, . . . had any understanding or intent that their freelance material . . . was somehow ‘work made for hire’”. That Morrow and Evanier offered up hearsay is, in theory, exactly what they did, especially when you consider that Marvel/Disney had testimony from people who were there at the time period in question, notably Stan Lee himself and his brother, Larry Lieber. Also dismissed is the claim that Kirby authored the Amazing Spider-Man, Marvel/Disney stating that, “it is undisputed that Lee assigned another artist to draw the initial Spider-Man story after finding Kirby’s sketches unacceptable and that Steve Ditko drew the Spider-Man character who appeared in Amazing Fantasy #15.” As such the claim that the Kirby heirs are making for the character is invalid. In what might be the most interest part of the entire brief, Marvel/Disney devote nearly two pages solely to respond to the claims against Stan Lee by the Kirby Heirs and their lawyer, Marc Toberoff summarising that Lee’s story about the creation and authoring of the classic work has not changed in over fifty years. This is more than slightly disingenuous as Stan’s version of events has changed somewhat in the fifty years since the work was done, but then again, Jack Kirby’s own version of events also changed radically, depending on how angry he was at the time and who he was speaking to.

There’s more, but you can read it all yourself, in all it's glory.  All that's missing is the table of authorities, but as they're merely court cases and judgements, you're not missing anything.  Although this is another salvo in this current battle, the war between Marvel Comics and the Kirby Heirs, which has been running since Jack Kirby split from Marvel in the early 1970s, might never be resolved to the satisfaction of all concerned.  Such is the pity, as the Jack Kirby name should rightfully be placed alongside Stan Lee's on Marvel Comics ("Stan Lee & Jack Kirby Presents" would be a more accurate header for the Fantastic Four, Avengers and X-Men, along with a few others), but his name might not only be remembered as one of a visionary, but also that of a man who was at constant battle over his co-creations.


Mark Luebker said…
Heh. Images are harder to cut and paste to others' blogs, aren't they?

You do an AMAZING service to those of us who follow this stuff, Daniel. Big kudos to you.
Daniel Best said…
Images are harder to cut and paste, but it won't stop a certain person from doing so. After all, he firmly believes that international copyright law doesn't apply to him stealing from this blog as he's associated with a certain museum...

I guess it saves them from buying these documents, so in a way, I'm donating to them.

And, to you and everyone else who has an interest in this stuff as strong as mine, you're very welcome!

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