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.


Kid said…
Well, I know what Stan means when he says that Jack wasn't the best artist in the world - he wasn't. From the point of view of often drawing people with two left hands or feet, shadows being nothing like the shapes casting them, consistency of sizes between characters, realistic anatomy, etc. So, in that sense, Jack wasn't the best artist in the world, and I believe that's what Stan is referring to - I don't think this is really an instance of him trying to put Jack down as such.
Barry Pearl said…

You did a great an important job as usual. Again, I am not a lawyer but a few things need to be pointed out. Toberoff at this point cannot introduce new testimony, like you suggested from Theakston. He had his chance. He probably thought though that Evanier and Morrow waere his best shots. Again, he may have wanted to hold things back until trial and not show his own hand.

You wrote that Toberoff says “that the District Court has erred by accepting Marvel’s evidence as truth,” This is public relations. The undeniable fact is that Marvel owns the copyright, the plaintiff, Toberoff, must show evidence that this is wrong. As I mentioned earlier, Marvel needs to prove nothing, the burden of proof is all on the Kirby‘s. Of course, Toberoff would like to turn that around, at least in the court of public opinion. (copo)

Lee’s talking to the press, no matter what he says is irrelevant and is not important as is not a burden for Marvel to bear at all. Again, Toberoff may wing in the copo, but it is only Stan’s testimony under oath that means anything. And, at nearly 90, the court will not hold him to a strict memory test. And lee said “Well it's mentioned in every comic book; it says "By Stan Lee and Jack Kirby."” But he clearly meant and this is how I took it, “Well it's mentioned in every comic book (that Kirby drew); it says "By Stan Lee and Jack Kirby."

Some points:
Marvel NOT paying for rejected pages is Toberoff proof that this was not work for hire. You can’t go back 50 years and argue this. Kirby got an assignment and was paid for the pages he used. That’s enough. And that is the procedures that they all worked under then. There was no written contract.

Thor is NOT an original character, Kirby did not own it. The new Thor was very different from his 1941, which he, himself, never copyrighted either.

Toberoff doesn’t point out, however, when he mentions the testimony of Lieber or Ayers that they NEVER claimed ownership of their properties, and in their testimony neither does Steranko and Adams. Of course the last two, here, out of context, claim that they could have taken rejected works to another publisher. Yeah, you try selling a Nick Fury or X-men story to DC. They would have had to have done an “unassigned” story with new characters, something no one did. The alleged Kirby rejected pages had copyrighted characters in them.

Of course, Kirby never said that he owned these characters.
Daniel Best said…
I know Toberoff can't introduce new evidence, my point was more that I found it odd that he relied on two people, when there's others out there, such as Steve and Greg, who had close relationships, both working and personal, with Jack Kirby. Call me odd, but I'd have called those two over any of the artists that they eventually did call. I can understand the use of Ayers and the like - to get a feel for how Marvel operated, but the focus was did Kirby BRING anything to Marvel. There are those who'd have their own opinions on that, or had first hand discussions with the man. Evanier is a professional witness now, and Morrow failed by virtue of not being born at the time period in question.

If you called me to a court of law to discuss say Ross Andru I'd decline as I wasn't there, or I'd make the disclaimer that my knowledge is based upon discussions with others and research. I never spoke to Ross.

Stan Lee - look, I like the guy. He's a legend, but he needs someone around him to tell him to shush every so often. The last thing he needs is for quotes like that to appear as they'll always be taken out of context, as they were done. I've tried to place some context for what he said.

As for the claims that Kirby pitched to other publishers between 1959 and 1963 - yes he could have, but once Marvel became a force I don't think he did. He'd not have made the same money from say Harvey or Archie as he did at Marvel, or had the same freedom. It's like someone saying that you could have run for President in 1988 - yep, you could have, but why didn't you?

Sadly I don't see this appeal getting over the line. Toberoff casting aspersions upon the court is a massive long-shot.
mr ed said…
The Kirby heirs are the defendants in the case, not the plaintiffs.
Marvel/Disney and Lee claim all artists were paid for rejected pages in every case, no exceptions.
Daniel Best said…
I don't think I said they weren't the defendants. If I did then let me know where and I'll make the correction.

And yes, Marvel have claimed that all rejected pages were paid for, and we know that's not entirely the truth.
mr ed said…
Dan it wasn't you it was the fellow commenting which has who sued who confused. Marvel/Disney sued because they didn't want the termination notices hanging over them until 2014, which would have been when the heir's attempt to secure copyrights would have gone forward. Another factor was Disney/Marvel effectively got to pick the court of their choice.
A major component of Toberoff's Appellants Brief was the argument Disney/Marvel bore the burden of proof since they brought suit, the judge is required to view all evidence in the light most favorable to the defendants.

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