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.
Comments
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.
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.
Marvel/Disney and Lee claim all artists were paid for rejected pages in every case, no exceptions.
And yes, Marvel have claimed that all rejected pages were paid for, and we know that's not entirely the truth.
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.