Marvel vs Kirby: Kirby's Reply Brief

The latest brief has been filed in the Marvel vs Kirby case, and, keeping to form, the brief is full of accusations and claims.  There’s the usual argument that Stan Lee is a liar who can’t be trusted, and that the court was totally wrong in it’s finding by ignoring all of the Kirby evidence, which I expect also includes contradictory evidence in the form of archival Kirby interviews (such as the famous Comic Journal interview where Kirby claimed to have created everything from Superman on down).  The brief focuses on the usual authorship and work-for-hire debates – debates that may never be resolved to anyone’s satisfaction. 

What does stand out is Toberoff’s claims that the District Court has erred by accepting Marvel’s evidence as truth, while denying the Kirby evidence – in particular that presented by Mark Evanier and John Morrow – as hearsay.  However the points of interest in this brief are the first reference to a Thor character that Kirby drew in 1942 (although the brief does ignore the fact that Steve Ditko also drew a Thor character, complete with hammer, pre-Marvel Thor), and a rebuttal of Neal Kirby’s own claims that his father did not pitch work on spec to Marvel.  Also of interest is Toberoff reference to what must surely be the Gary Friedrich case when pointing out Stan Lee’s failings, along with the claim that Lee stated, during his depositions that he took, “…sole credit for creating the characters at issue,” and that his testimony is tainted due to his, “…deep financial ties to Marvel “  The brief also seeks to have the stricken testimony of Evanier and Morrow re-instated, by using an argument that they are both experts on comic book history and Jack Kirby, and that their, “…extensive knowledge was based on in-depth review of primary sources and countless interviews with contemporaneous witnesses.”  That Evanier worked for Kirby should also be considered.

This does make people wonder why the Kirby camp have not deposed others who worked for Jack Kirby, such as Steve Sherman, who worked for Kirby at the same time as Evanier, and Greg Theakston, who also worked with and had a long standing personal relationship with Jack Kirby spanning many years, and who also recorded interviews with Kirby.  By insisting that the court look at two people, when there are many others who could also bolster their case, is narrow sighted at best.  Putting your eggs into the one basket is never a good idea.

One thing that surely should raise interest is Stan Lee’s recent comments in relation to Jack Kirby and the just released Avengers movie.  It might be about time that Lee stops speaking to the media in general; certainly an unprepared Stan Lee is not the best thing for Marvel Comics, or Stan Lee, when it comes to helping their own defence.  For those who aren’t aware, Lee was being interviewed for a documentary, and to also promote the Avengers by Moviefone when he was asked about Jack Kirby.  The exchange went as follows:
Fans of Jack Kirby are concerned that his name appears nowhere on the credits of "The Avengers." What's your take on their concern?
I don't know how to answer that because in what way would his name appear?
His name isn't mentioned anywhere in the film production as a co-creator.
Well it's mentioned in every comic book; it says "By Stan Lee and Jack Kirby."
But it doesn't appear for the film itself; and his fans feel he should get that recognition, with the movie exposing his work to a whole new audience.
I know, but you're talking to the wrong guy because I have nothing to do with the credits on the movies. I'm credited as one of the executive producers because that's in my contract. But Jack was not an executive producer. So I don't know what he'd be credited as. Again I know nothing about that; I have nothing to do with the movie's credits. You'd have to talk to whoever is the producer of the movie. Is there anything you want to ask me about the documentary because I thought that's what I was supposed to be talking about?

To place his comments in context, Stan Lee’s function on the Marvel movies is limited to name value alone, along with being the public face of Marvel Comics, a role that has earned him a credit as Executive Producer and a decent amount of change from the movie itself.  An Executive Producer generally has no control over the film, so in this regard Lee is correct; however you’d expect that he could wield some influence over the credits.  Moviefone might have jumped the gun somewhat though as Jack Kirby’s name does appear in the end credits, but on the other side of the coin Jack Kirby's name does not appear in the Avengers comic books - and it should.  Interestingly when the interview proper was published, Lee had this to say, “Jack Kirby, the great thing about him was, every panel was dramatic. He wasn’t the greatest artist in the world — I mean, he wasn’t da Vinci — but he could make panels look so interesting that you couldn’t wait to turn the page and see the next one. That’s what you try to do in comics, in movies, in life — be interesting.”  These are hardly the comments of a person trying to bolster another’s contributions and it does bring the question, just who does Stan Lee think the ‘greatest artist in the world’ was, comic book wise?.

There will be more to come with this case as both sides have agreed to an oral argument before the court, which should be interesting, but, in the meantime, here's the Reply Brief in full.


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