“When I am working for Marvel, I am loyal to Marvel.” – John Byrne Under Oath

In the coming weeks we’ll be looking at some older, classic (if you’ll excuse the term) court cases involving comic book creators and their creations.  First off the rack will be the Marv Wolfman vs Marvel Enterprises case of the late 1990s/early 2000s.  In short Marv brought suit against Marvel, Toy Biz, Time Warner, New Line Cinema and Teevee Tunes claiming ownership of the characters Blade, Deacon Frost, Nova and the supporting casts of each.  As part of the suit Wolfman was claiming at least $35,000,000 in damages to his reputation and loss of business opportunities, although he would ultimately ask for at least three times that amount in total compensation.  There is more to this suit and all will be revealed as we go along.  In his corner was the fact that Wolfman had previously published a variation of Nova before he arrived at Marvel, in Marvel’s corner was the defense that everyone who worked at Marvel in the 1970s knew full well that their work was done under the umbrella of ‘work-for-hire’, thus anything Marv brought to Marvel was owned by them.  Nova was a minor character at best, but Wesley Snipes had just released the first in a trilogy of Blade movies so the potential pay off was, at the time, sizable.  At the resulting three day trial, Marvel produced the first of their ‘star’ witnesses – John Byrne.

John Byrne interviews are always entertaining, enlightening and often scurrilous.  Byrne broke into comic books in the mid 1970s and became the first real ‘superstar’ artist of the 1980s, with stellar runs on The Uncanny X-Men, the Avengers, Marvel Team-Up and Iron Fist.  Indeed as DC Comics have done with Alan Moore and Watchmen, Marvel Comics have almost established a cottage industry based upon the Claremont/Byrne/Austin X-Men.  Possibly Byrne’s most famous work was done on The Fantastic Four, a title that he is most identified with as a writer/artist.  It was with this book that Byrne was able to straddle both worlds, that of a writer and an artist.  He could write for others to illustrate and he could just as easily draw any script given to him, but he seemed most at home when he was working on his own stories.  Often paired with inker Terry Austin, Byrne’s move from Marvel to DC Comics in 1987 to revamp Superman was as big a story in the comic book world as anything that had come before.  While other creators had moved companies since the dawn of the industry, and from the late 1970s through to the mid 1980s Marvel mainstays began to leave the company for various reason, ranging from wanting better opportunities through to conflicts with then EIC Jim Shooter or just wanting a change.  Writers such as Roy Thomas, Steve Englehart, Jim Starlin, Marv Wolfman and Len Wein, along with artists such as Dick Ayers, Ross Andru, Gene Colan, George Perez, Keith Pollard, Don Heck, Dave Cockrum, Jim Mooney, Rich Buckler, Gil Kane, Klaus Janson and Frank Miller all made the move from Marvel to DC during this period (and some went back and forth), but none had the same shock value as Byrne in the 1980s, although Miller came a close second, and his defection almost eclipsed that of Jack Kirby over a decade earlier. 

Byrne is a lot of things to a lot of people, but one thing he isn’t is a shrinking violet when it comes to his own opinions.  He will often state what he believes, leaves it up to others to debate and damned be the consequences.  No matter how forthright Byrne can be in an interview, getting him on the stand in a court of law, under oath and without the ability or opportunity to review his replies and do an edit, was always going make for far more interesting reading than anything published in a magazine and, in this regard, Byrne didn’t let anyone down.

Byrne took a pounding in the Marv Wolfman vs Marvel court case, and not all of it was unjustified.  Byrne, along with Jim Shooter and Jeff Rovin, were Marvel’s main witnesses against Wolfman and his testimony was damning, as you’ll soon see.  This should not have come as any great surprise as Byrne had often rallied against creators when it came to artists and writers claiming characters retroactively, both in interviews and also in guest columns, the most notorious of the latter being a column published in issue 2 of the now defunct Comics Scene.

In that column, amongst other statements, Byrne said,

When a comic pro creates a new character, or any other such merchandisable commodity, it belongs wholly and solely to the company. This is true of every extant character from Superman on down (or was until recently; DC has started paying creators real money for their creations). Most of us remember the Siegel and Shuster suit of a few years back, in which the creators of Superman sued for the ownership of their brainchild, or at least a share of the vast monies DC was annually raking in from the character. The suit never actually made it beyond the saber-rattling stage, since DC quickly accepted the role of evil and villainous multinational conglomerate, confessed their sins against man and God, and granted life-time pensions to the co-fathers of their cornerstone character.

For myself I don't think canonization would be too extreme a reward for the men who created Superman, however little of their creation may actually remain in the current incarnation of the Man of Steel, but that abortive suit raised for me a number of questions, questions which have only been rekindled by recent events vis-a-vis creator's rights.

On a purely human level, were Siegel and Shuster entitled to their pensions? The answer is yes, of course. But on any other level? Sorry, but the answer is a fat "no." They may have been two little dumb hicks from the midwest, unfamiliar with the machinations of the publishing industry of the late 1930's. They also were creators of the single character on whom the rest of us have created an entire industry. But the fact remains that the character had been generally rejected (the Bell Syndicate said it had "no lasting appeal") when the infant DC took a risk and bought the idea from Siegel and Shuster. And don't be fooled by the paltry sum they were paid, generally reported at something under $200. That was a lot of money in 1938.

He went on to further state;

I know I have, of late, taken on the mantle of a "company man," and in many ways I am deserving of the title. Even proud. I am a cog in the machine which is Marvel Comics, and I rejoice in that. When I speak of Marvel down the years I often say "we", as in "We put out thus and such a book ...,” even if I was a 12-year-old fan when "we" did so. I like working for Marvel. I love being involved in the production of comics, and I am pleased enough with the money I make doing it. If Marvel offered me twice as much tomorrow, I'd certainly take it. In the words of Dudley Moore's "Arthur," "I'm not stupid." But if Marvel were to show me just reason for halving my salary tomorrow, I would also accept that. It's a business, and realistically, if we don't like being involved in the negative aspects of that business, we should get out.

Even today, thirty years after the event, that column makes for fascinating reading and gives a good insight into the inner workings of a man who was then making a lot of money from writing and drawing other people’s creations, in particular characters created by Jack Kirby and Stan Lee.  Roughly five years later Byrne would move to DC where he’d make more money in a few years off Jerry Siegel and Joe Shuster’s Superman than Jerry and Joe likely saw in their entire lifetimes from the same character.

Not everyone agreed with Byrne at the time.  Frank Miller felt strongly enough to write to Comics Scene to assure people that, “…John Byrne's remarks ‘On Creator's Rights’ do not represent the beliefs of every member of the comics profession. We are not all such happy ‘cogs.’”  Mike Barr commented that, “John Byrne is one of the most talented pencillers to enter the field in recent years, and I would very much like to work with him one day. But after reading his column, ‘On Creator's Right,’ I hope John doesn't mind if I negotiate my own contract.”  The backlash against Byrne and his comment that he was a proud company man would come back to haunt him for years to come, and gave Steve Gerber and Jack Kirby inspiration for their character, Booster Cogburn, in Destroyer Duck (a company man who couldn’t be killed) and Joe Staton also parodied Byrne in the pages of E-man.  Thus when Marvel approached Byrne to testify against Wolfman they knew exactly what they were getting – an employee who would testify for them without any complications, and that’s precisely what they got.

Byrne was called to give evidence on day two of the Wolfman trial.  He had been present on day one and had allegedly caused something of a fuss, resulting in Wolfman’s lawyer, Michael Dilberto, making the following request of the court, “If I may, I just want to comment, during the day yesterday the expert witness for New Line and the employee of Marvel were making faces and gestures at the witness all day. I would ask they be excluded from the courtroom until they testify or at least admonished not to make faces at the witness.”  The presiding magistrate refused the request, but the intent was clear – Wolfman wanted it in the record that Byrne was making the faces.  We know this because, during the closing arguments, Dilberto again made the reference as such;

MR. DILBERTO:  I did want to highlight some of the deposition testimony you will hear from John Byrne. John Byrne is a current employee of Marvel. He is the gentleman seated back there with the beard who was making faces at Mr. Wolfman during the first day of trial. Mr. Byrne stated in his deposition -

MR. FLEISCHER:  Your Honor, is it really necessary for this juvenile reference, which is not accurate?

MR. DILIBERTO:  In fact, the faces he was making at Mr. Wolfman were juvenile, I agree with Mr. Fleischer's characterization of that.

So what did Byrne do during the trial that caused such a fuss?  According to Wolfman, Byrne popped his head up and down, got in his eye sight and pulled faces at Wolfman at critical times.  The end result of this behavior unsettled and flustered Wolfman and left an extremely bad taste in his mouth,  as Wolfman subsequently admitted in a follow-up interview with The Comic Journal in issue #239 (2001);

He (Byrne) was making faces whenever I'd look in his direction. Because the comments I had to make referred to him, he would start to make faces. He would move up and down. There was a wall in front of him, a couple feet high where the witnesses are behind. He would like lower himself so I couldn't see him then raise himself up. He would start shaking his head no as if I was making a mistake, and he flustered me, because I'm trying to remember specific events. He was acting very much like a two-and-a-half-year-old child who has not had any Ritalin.

We've never really gotten along well ever since Superman, but I was unaware that it was anything more than difference of opinion on work. I never had any problems with John personally, but obviously he had one with me. It could be because Luthor, which was my creation, turned out to be more important and lasting than most of the things that he had added to the mythos. I would hope to think that that's not the reason. I'd almost prefer thinking that I had done something without knowing it, because that would be really childish if it were just based on things of that sort. I have no idea why. You'd have to ask him.

It was very hurtful. All I can say is that I was terribly hurt and terribly bothered by it, and I'm sure that people could understand that when all attention is paid to you on a court, on the witness stand, and you're trying very hard to say your piece and answer questions that are very difficult to answer, that decorum and civilization sort of demands that the people in the room at least have a modicum of respect and let the process be done. I was incredibly hurt, more than you can imagine. You would have to have been there to know the effect of what John did, and I'm sure he probably doesn't care because he did it. But it was the most hurtful thing that has ever happened to me. And I've had people scream at me. But it's always over something that I may have done or he may have done or whatever. This was just hurtful beyond belief.

Conversely Wolfman couldn’t fault Jim Shooter, who also testified for Marvel.  “Jim Shooter, who I don't get along with in any way, shape or form was also absolutely professional, and sat there sphinx-like without trying to distract me or anything,” said Wolfman in the same interview.  “When it was his turn on the bench, he said what he believed. I believe that most of it was incorrect, but -- you know -- that's not the point. It's difference of opinion. John seemed to go out of his way to create problems.”  In preparing this entry I couldn’t locate any documentation from Byrne either admitting or denying Wolfman’s claim; if there is any such statement(s) rest assured that I’d be more than happy to put his response across. 

At the time of the trial, November 1999, Byrne had returned to Marvel after working at DC for a number of years.  Byrne was working on the retrospective series, Spider-Man:  Chapter One, a series that wasn’t that well received, and in which Byrne re-told (or trashed, depending on who you listen to) the early Stan Lee/Steve Ditko Spider-Man stories, bringing them into the modern Marvel Universe.  He was also producing another ill-fated series, X-Men:  The Hidden Years, which saw Byrne writing and drawing the original Lee/Kirby X-Men.  In addition Byrne had relaunched another Lee/Kirby creation, The Incredible Hulk, and was the regular penciller on the (also) relaunched Amazing Spider-Man series.  Unfortunately not all of his work was critically well received and less than a year after the Wolfman trial Byrne had left Marvel again in acrimonious circumstances, this time seemingly for good, after the contentious cancellation of The Hidden Years.  Returning to DC, Byrne worked on another short lived series, Lab Rats, before lending his skills to titles such as the Jack Kirby concepts The Demon, New Gods and, again, Superman.  Despite his continued dislike for Marvel Byrne still produces commission work featuring Marvel characters.

Wolfman went back to work for DC Comics, where he remains, along with doing the odd piece of work for other companies when the opportunity arises.  No opportunity is open for him at Marvel though.  As he recounted in his Comic Journal interview with Michael Dean, his card at Marvel was marked.  “I brought a project to them this summer with an artist attached,” Wolfman claimed, “which the editors loved and so did the editor in chief. I was then told that the upstairs people wouldn't let them hire me. I went, ‘OK. Can't we talk about it?’ And they said, ‘I wish we could. We tried. We really would like to do this, but I don't think it's going to happen.’ So I moved on.”  Blade eventually became both a trilogy of major motion pictures starring Wesley Snipes and a television series, all of which made a decent profit for Marvel Entertainment, but not for Marv Wolfman.

(In the coming weeks I’ll be placing more testimony from this court case on this blog – watch this space)

Note: David Fleischer was acting for Marvel, Michael Dilberto was acting for Marv Wolfman.

DIRECT EXAMINATION OF JOHN BYRNE BY MR. DAVID FLEISCHER

Q:  Your Honor, the first witness we are calling is John Byrne. Before Mr. Byrne is called to the stand, I would like to identify him Mr. Byrne was a freelance writer and artist for Marvel between 1974 and 1980, and has since done work for DC, Marvel, Dark Horse and Charlton. He is currently a fulltime employee of Marvel under an exclusive contract.

Mr. Byrne will testify with respect to the legends that were affixed to all checks that he received for freelance work he did over the years, including in the mid'70s. He will also testify with respect to a number of conversations that he had with Marvin Wolfman concerning Mr. Wolfman's understanding with regard to the ownership of rights in the work that Mr. Wolfman did for Marvel.

Mr. Byrne, you are currently employed by Marvel?

JOHN BYRNE:  Yes, I am.

Q:  During the course of your career, have you created any characters?

A:  Yes, many.

Q:  Can you give us an idea, in order of magnitude?

A:  Ranging up from support cast members, I would say between 150 and 175.

Q:  Prior to the time that you received your first freelance assignment from Marvel, did there come a time when you wanted to work on Marvel's Fantastic Four series?

A:  There was a period in the mid1970s, up through 1974; Marvel was producing a series under the heading of Giant-Size, so it was - fill in the title -Giant-Size Fantastic Four, Giant-Size Hulk. Those were quarterlies. They were not the actual monthly series. I prepared on spec, I think it was a 38page Fantastic Four story to show to Marvel in the hopes that I would see that published as one of the Giant-Size.

Q:  After having created that Giant-Size spec piece, what did you do with it?

A:  I attended a convention in the summer of 1974. I had just been given a six page assignment for a short horror story from Marvel. On the basis of that, I was able to get into a pros only cocktail party that Marvel threw. And I took that story with me to that party and showed it to anybody who would care to look at it.

Q:  What ultimately happened with regard to that Giant-Size spec piece you did?

A:  They didn't use it.

Q:  Do you have an understanding of who was responsible for the decision not to use it?

A:  Well, the story I have been told from several different sources is that earlier in that same day I had been introduced to Rick Buckler, who was the artist on the Fantastic Four. And in my usual endearing way, I had introduced myself to him by saying, "Hi, I am John Byrne, I want your job." The fact that I was walking around with a fully finished issue of the Fantastic Four under my arm probably gave him some indication that I was serious. And I am told he went to either Roy Thomas or John Romita and said, "If this guy gets work, I quit." So the decision was obviously based upon the guy they had versus the untried guy who was trying to get work.

Q:  At your deposition, you testified -

MR. DILIBERTO:  Objection. Move to strike as hearsay, Your Honor. He was recounting a statement that someone allegedly told him at a cocktail party.

MR. FLEISCHER:  Your Honor, it wasn't really being offered for the truth of what was asserted there, but with respect to the witness' state of mind at the time.

THE COURT:  I will allow it.

MR. FLEISCHER:  Do you recall testifying at your deposition that at the time of this convention yeti were uncertain as to whether Mr. Wolfman was the editor in chief or not?

A:  I was probably not uncertain at the time of the convention. But I was uncertain at the time of the deposition.

Q:  Has your recollection been refreshed to any extent as to whether or not Mr. Wolfman was the editor at the time of the convention?

A:  Yes. I was actually sort of blindsided by that question at the deposition, because it had in my opinion nothing to do with this case. So I rather foolishly allowed Mr. Wolfman's counsel to present facts, quote unquote, which I did not question, suggesting that Mr. Wolfman was the editor in chief and if he was indeed the editor in chief it would have been his job to reject the story. Now, looking back, I realize of course that since it took place in 1974, Mr. Wolfman could not have been the editor in chief and in fact it would have been Roy Thomas.

Q:  Did you ever believe that Mr. Wolfman was responsible for the rejection of that spec piece?

A:  No.

Q:  Did you ever harbor any resentment toward Mr. Wolfman as a result of not having that spec piece purchased by Marvel?

A:  No. Even when I thought he had rejected it.

Q:  At that convention, were you successful in getting any other work?

A:  Yes. I received work from Charlton Comics, regular work, which led to two series at Charlton Comics. And that generated sufficient interest that by early 1975 I was working fulltime at Marvel.

Q:  When did you receive your first freelance assignment from Marvel, apart from the brief one?

A:  Apart from the eight pager. The actual assignment was probably late1974, because I know I started work on it in January of 1975. It was to be the regular penciler on a series called Iron Fist.

Q:  Have you ever heard the phrase "work for hire" used in the comic book industry?

A:  Yes, many times.

Q:  When do you first recall hearing the term?

A:  I cannot actually say. I can't remember when I didn't hear it. I can remember hearing it before I got into the business I mean we were always being cautioned about it.

Q:  How was the term used when you recall hearing it at the outset of your comic career -

A:  It was always presented to me as anything you do for the company the company owns.

MR. DILIBERTO:  Objection, Your Honor. Move to strike as hearsay.

THE COURT:  Overruled.

MR. FLEISCHER:  Mr. Byrne, were you paid by check for the materials that you created for Marvel Comics as a freelancer?

A:  Yes, I was.

Q:  Would you describe the check - that you received for the first assignment that you had for Marvel in, I think it was 1974 - '75?

MR. DILIBERTO:  Objection. No foundation and lack of competence.

THE COURT:  Overruled.

A:  It was what I assumed to be a standard bank issue check. It had, "Pay to this guy," and an amount of money on it. There was a stamp down in the corner of the signature; I think it was Stan Lee. I don't think it was decorated with a picture of Spider-Man in those days. Of course, on the back was the stamped -the legend that we all had to sign.

Q:  Do you recall what color the legend was?

A:  I think it was red.

Q:  Do you recall what the substance of the legend said?

A:  Pretty much it said what I expected it to say. It confirmed what I had heard. It said everything you do for the company the company owns.

Q:  Do you recall whether or not you ever received a check from Marvel for freelance work done for publication by Marvel that was not stamped with that legend?

A:  No. That would have stood out. I would have noticed.

Q:  Did there come a time when the practice of legending the checks at Marvel was discontinued?

A:  I think they discontinued it when they started putting essentially the same legend on the back of the voucher. So by signing the voucher, you were signing the agreement.

Q:  Would it be correct for me to say that you are well known in the comics industry for your work with iconic tides?

A:  Infamous, I think would be a good choice.

Q:  Would you give the court an example of some of the tides „that you have worked on at Marvel and at DC, indicating at which?

A:  At Marvel, I have worked on the Fantastic Four, The Hulk, Spider-Man, The Avengers, Iron Man, She-Hulk, West Coast Avengers. It's quite a long list. At DC I have done Superman, Batman, Wonder Woman.

Q:  Have you ever introduced into any of those tides that you wrote for Marvel any characters that you created?

A:  Yes, many.

Q:  Did any of those characters go on to be featured as title characters in their own series or become principal or major characters in the series in which they were introduced?

A:  Yea. There was a character called Sabretooth that I co-created with Chris Claremont. He first appeared in Iron Fist, and he has gone on to become very significant in the X-Men. I believe he has had one miniseries, possibly more. While I was doing the X-Men, I created a Canadian superhero group called Alpha Flight, which is more than one character. That subsequently went on top of their own book.

Q:  How long did the Alpha Flight title run?

A:  I think the original series ran something like 50 or 60 issues. I did it for 28.

Q:  Do you have any financial interest in the success of any of the characters that you have created for Marvel over the years?

A:  To the extent that Marvel pays an incentive, I suppose I could be said to have a financial interest.

Q:  When do you recall Marvel instituting an incentive payment policy for creators?

A:  I think it was around 1983.

Q:  And could you just generally describe your understanding of the nature of the incentive program?

A:  The general incentive is a percentage of the cover price after a specific number of sales, when it was originally introduced. I believe it was four percent, which was divided amongst the writer, the penciler, and the inker. In the case of Alpha Flight, I received an additional one percent creator's royalty.

Q:  Do you have any ownership or proprietary interest in any of the characters or stories that you have written for Marvel?

A:  I don't believe I do, no.

Q:  When did you first become acquainted with Mr. Wolfman, other than the brief meeting you described?

A:  It was - well, I would have met him in 1974. And subsequently, on trips to New York and to the office, he would have been one of the people in the various groups that I would hang, out with.

Q:  Have you and Mr. Wolfman worked together on any comic book issues for publication by Marvel?

A:  Yes. We did the Fantastic Four together for a while. He was the writer and I was the penciler. I also did a Teen Titans, I think it was an annual or possibly some kind of special that he asked me to write - to draw, rather. And he was in the second seat when I was doing the reboot of Superman.

Q:  I am placing before you Marvel Exhibit 41. Did you work on this issue? Are there any characters that appeared for the first time in this Fantastic Four issue # 211 that you drew?

A:  Yes. The character of Terrax, who appears on the cover, though I didn't draw the cover.

Q:  And what input, if any, did you get from Mr. Wolfman, as the writer of this issue, with respect to that character?

A:  What Mr. Wolfman told me at the time was that, I believe in discussion with, I think he told me in discussion with Len Wein, he had realized that the heralds of Galactus, Galactus being a major villain of the Fantastic Four, the heralds of Galactus had developed quite unconsciously a theme of being based on the four elements. So we had the Silver Surfer, who was based on water, we had a character called the Air Walker, who was based on air, and a character called Fire Lord, who was based on fire. And Mr. Wolfman said he wanted to do a new Herald of Galactus who would be based on the fourth element, earth. The idea being it would be a character who could manipulate the earth, cause the earth to do whatever he wanted to by the force of his will.

Q:  Did Mr. Wolfman give you any physical description of the character that would have this power?

A:  He said "A big guy with an ax."

Q:  Did he tell you anything else about the way the character would look?

A:  No.

Q:  Who created the look of the Terrax character in this issue?

A:  I did.

Q:  Do you have an understanding as to whether as a result of your creation of the look of Terrax you have an ownership interest in this character?

A:  Oh, no, I don't.

Q:  Do you recall having any conversations with Mr. Wolfman concerning who owned the rights to materials that freelance writers and artists submitted to Marvel for publication in the 1970s?

MR. DILIBERTO:  Objection. Calls for hearsay.

THE COURT:  Overruled

A:  I can remember several instances where I was in groups of people which included Mr. Wolfman that we are talking about, various things, and the idea of creator ownership and the discussions of same came up. And I remember three instances, and most particular, in roughly chronological order, the first one would have been in 1975. I was in New York over the Thanksgiving weekend. Roger Stern, who is a writer and a friend of mine, had been invited to Thanksgiving dinner at Mr. Wolfman's house. And he brought me along as his date, quote unquote. And I was very new in the business. And I was just absolutely overawed to be sitting there having dinner with Mr. Wolfman and Len Wein and various other people. I asked a lot of questions about how the industry worked. And I was given the caution to be careful because the companies own everything you do, so be careful what you create.

The second one would have been when, I believe it was when Mr. Wolfman and I were doing the Fantastic Four, he contacted me. He phoned me, said he had a science fiction series he was contemplating doing, possibly for submission to Star*Reach, which was a small independent company. It was an apocalyptic - sort of, barbarians living in the shadowy streets of New York - would I be interested in drawing it. He expressed to me this was sort of a partnership, that we would co-own this. It was very different from working at Marvel, because at Marvel, of course, you didn't own anything.

The third, there is a little back story to this, if you don't mind. I was at a convention in New York. We were all sitting around at a table at the convention, talking about various things. It approached noon. The question of what to do about lunch came up. People said "We can get pizza, we can go to Brew Burger, we can get McDonald's." Somebody said, "There is a little deli across the street. We can just go get a bagel." And I said, "I never had a bagel." Mr. Wolfman and Mr. Wein were utterly astonished that I had never had a bagel. They practically physically transported me across the street to this deli and bought me my first bagel, which was an onion bagel with cream cheese.

And it was one of these very chichi, very modern delis with the tall, skinny tables and stools. And the three of us sat at one of these tall, skinny tables, and we talked about all kinds of stuff. One of the things that came up was Steve Gerber was engaged in at that point what I come to think of as early sabre-rattling of whether he owned Howard The Duck. Len and Marv together expressed they were very interested about what Gerber was going to do about that, especially if he took it to trial, because how could he have a case, since we all know the companies own everything.

Q:  Did there come a time when you were hired by DC Comics to revamp the Superman character?

A:  Yes.

Q:  How did you come to be hired by DC to do that?

A:  Subsequent to the release of the Superman movie with Christopher Reeve in 1978, I had been very vocal - I don't keep my opinions to myself- I had been very vocal about how I thought DC was mishandling Superman. And in 1985, for no particular reason, I decided to go off contract at Marvel. And Dick Giordano, who was the editor in chief, seemed to pick up that almost telepathically. It seemed almost at the moment I made the decision, he was on the phone calling me, saying, "OK, we are going to revamp Superman."

Q:  Mr. Giordano at the time was editor in chief of - ?

A:  DC. He said, OK, put your money where your mouth is. So I submitted what I called my list of unreasonable demands, which was about 20 things I wanted to do with Superman. Other people such as Steve Gerber, Frank Miller, I believe Elliott Maggin, had submitted their proposals. Mine was the one DC picked. They said that one of my demands was in fact unreasonable, but the rest of them they liked and they said, "OK, here's the contract"

Q:  Was Mr. Wolfman involved to any extent in the revamping of the Superman character or the Superman hook?

A:  Not at first What happened was, DC wanted to do three Superman monthly tides. Superman, Action Comics, and a team up book that was at that point untitled, a teacup where Superman would team up with a different superhero every month. I immediately realized that doing three monthly Superman titles would cause me to burn out, no pun intended, to burn out in about a week and a half. So it was agreed that someone else would obviously have to do one of the three books. And it was originally put forth that they would do Action Comics, the non team up book. Some time after that, Andy Helfer, who was the editor, called me up and said he was thinking of offering the job to Mr. Wolfman, did I have any objections. And I said, "No, I had worked with Marv in the past and he had always been very friendly." That seemed fine. Shortly after that, Marv got in touch with me and we agreed that he would take the second seat.

Q:  Did Mr. Wolfman make any suggestions to you with regard to the treatment of the Lex Luthor character?

A:  Yes. He had a, what would be a good way to describe it - a springboard idea for Luthor. He called me. He said that he had been offered the second seat. He asked me if I had had any thoughts on Luthor. At that point I hadn't started any physical work on the book at all. I said, "No, I was still kicking stuff around in my head with Krypton and Smallville and Metropolis, and all that other stuff" 

He said he had got what he called a fix of Luthor that he had in mind for a couple of years that he sort of just developed on his own, and he wanted to tell it to me, on two conditions. The first condition was that if indeed I liked his idea, we would use the entire idea precisely as he presented it to me, or he wouldn't take the second seat. And if he didn't take the second seat, I had to promise that I would not use any part of his fix for Luthor. That seemed perfectly reasonable to me. So I agreed to that. And he presented to me with sort of a little story. I remember exactly what he said. He said, quote, "Outside Metropolis, there is a mountain. On the top of this mountain in his fabulous Xanadulike estate lives Lex Luthor, the world's richest man, and his mistress, Lois Lane. You see, she is drawn to power," close quote. And I immediately said, "No, that's not what I want to do with Lois, that is much more of a fix of Lois than it is of Luthor. I guess we won't be working together." And Marv said, "No, you don't have to use that part," which of course surprised me. And I said "OK." And I said the part of Luther as the world's richest man; let me see what I can do with that. Wolfman agreed to take the second seat and do the second title.

Q:  No further questions. Thank you.

CROSS EXAMINATION OF JOHN BYRNE BY MR.  MICHAEL DILBERTO

Q:  Just to pick up where you left off about the Superman character, wasn't Marv already writing Superman when you came on board at DC?

A:  He had written Superman prior to the reboot.

Q:  Wasn't Marv Wolfman's version of the reboot bought out by DC?

A:  According to your associates, I was informed that Marv's version of Luthor was bought out by DC. I have no other evidence of that.

Q:  Weren't you forced to use the version that Marv Wolfman had created at DC?

A:  Forced? No. It was my choice.

Q:  You say that the incentives came into effect at Marvel, did you say in 1983?

A:  I believe it was '83.

Q:  Yet you created Alpha Flight in, what was that, 1979?

A:  1977, '78, '79, somewhere in that range.

Q:  Didn't you specifically create that character on royalty incentives?

A:  No. It is not a character. It was group of characters.

Q:  Did you create that group to earn incentives?

A:  No. Incentives didn't exist when I created the group.

Q:  Just about your background:  Did you graduate from high school?

A:  I have a high school leaving diploma, which is something they give you up in Canada when they want to get rid of you.

Q:  But you didn't graduate from high school; is that right?

A:  It qualifies as a graduation. Technically, it isn't.

Q:  When Mr. Fleischer asked you about what characters, the iconic characters you worked on at Marvel, or other places, you had mentioned Superman, Fantastic Four, Spider-Man?

A:  Yes.

Q:  So it's fair to say that you are generally known as somebody who revamps the major iconic characters that have already been created by other creators?

A:  Some I revamp. Some I have merely worked on. I like playing with the old toys.

Q:  In fact, in your opinion a character is not a real character unless someone like Jack Kirby creates that character?

A:  No, that's not true. That's not I what I said. I said that Alpha Flight were not real in my mind because they weren't created by Stan Lee and Jack Kirby. That was specific to Alpha Flight.

Q:  But your preference is to work on pre-existing major iconic characters created by other persons other than yourself?

A:  It would depend on the circumstance.

Q:  Would you rather work on Alpha Flight or the Jack Kirby character?

A:  Of those two, I would rather work on a Jack Kirby.

Q:  It's fair to say that Jack Kirby characters are pre-existing iconic characters?

A:  Yes, indeed. But if you said Devil Dinosaur or a character I created myself, I would say a character created myself. Devil Dinosaur is a character created by Jack Kirby.

Q:  You have earned over ten million dollars at Marvel?

A:  That's probably fair.

Q:  If you had a chance that you would have to create your own character that wouldn't earn any money and a pre-existing iconic character for which you could earn ten million dollars over 20 years, would it be fair to say you would rather work on a character of someone other than yourself?

A:  If we are doing it on money, the largest royalty I have ever received was for Alpha Flight.

Q:  During your career, you earned $20 million from others than Alpha Flight?

A:  Right. I should point out I did not earn ten million specifically from Marvel. I would say ten million probably in the course of my entire career. I have made four or five million doing the Next Men, which I created to own at Dark Horse.

Q:  You worked also at DC on other existing, pre-existing iconic characters?

A:  I like working on the iconic characters, if that is what you are going for. Yes.

Q:  We don't dispute that. Between Marvel and DC where you were working, $20 million is a fair assessment?

A:  You said ten.

Q:  Ten million over 20 years?

A:  Ten million over 20 years is probably fair.

Q:  How much of that ten million is Marvel? Five or six or seven million?

A:  Yes. Well, again, it would be hard to break it down. I made a lot of money doing Superman. That wasn't for Marvel. I probably made a couple million dollars doing Superman.

Q:  Let's look at Marvel. Five or six or seven million?

A:  Five maybe, over the full 25 years of my career, I probably made five.

Q:  As Mr. Fleischer asked you, you are still working at Marvel right now?

A:  I am currently working at Marvel, yes.

Q:  In fact, you have a new book you are working on right now, isn't that right, at Marvel?

A:  Yes.

Q:  So you have projects in development right now at Marvel?

A:  It's beyond development. I have done two issues.

Q:  Do you remember, at your deposition that Mr. Askarieh conducted there was discussion about the character Alpha Flight?

A:  Characters Alpha Flight. It's a group.

Q:  You were asked if you owned the character Alpha Flight. You didn't see the distinction at your deposition. But the question was, "Do you own that character Alpha Flight?"

A:  I don't recall your associate referring to Alpha Flight as a character. If I heard him saying character, I would have corrected him. It's at least eight characters.

Q:  I will read from your deposition then. The question was:

Do you have any ownership interest in the Alpha Flight?

Answer:  No.

 Then you referred to an interview that you gave -

A:  May I point out he did not say character. He merely said the title.

Q:  There was a reference to the Comics Interview, #25, and the question was:  "You created Alpha Flight and the X-Men but if you were to create new characters would you want to own them?" And your answer:  "Well, I partially own Alpha Flight."

A:  Yes. That was my understanding at the time I gave that interview.

Q:  When was that?

A:  I believe that was 1985.

Q:  During your deposition in 1999 you said you weren't sure if you owned rights to the Alpha Flight?

A:  Yes. We have an unfortunate tendency in the comic book industry to bandy around terms that we don't really use correctly. "Creator" is one of them. In that case, I was using "ownership" incorrectly. I was interpreting the one percent creator's incentive that I was being paid as representing some kind of ownership. Subsequently, I have come to realize that that was not the case. In 1985 I was confused.

Q:  Let me ask you this, a yes or no answer:  In 1985, you were unsure if you owned rights to Alpha Flight. But after being asked to be a witness in this proceeding, in 1999, now you know you don't own rights in Alpha Flight. Is that a fair statement?

A:  No.

Q:  Why not?

A:  Because I did not come to that conclusion as a result of being asked to testify in this hearing, which is the way you phrased the question. I came to that conclusion quite a long time ago.

Q:  At your deposition, it was asked, "Is it your understanding that if you were going to create a new character, would you be entitled to receive money for merchandising, such as toys?" Page 23, Line 5:  "At that time when that interview was given the explosion of comic characters released for toys was just starting out. We had no real sense of where it was going to go or what form it was going to take."

A:  That was my understanding.

Q:  Was the concept of comic characters being released for toys a new concept?

A:  No. But it was beginning to be exploited more than for a few years, especially for toys.

Q:  What period of time was that exploitation beginning?

A:  I would say what we think of now as action figures were really just starting to appear around 1985, 1984, somewhere in that range. I wasn't paying that much attention to the toy market in those days.

Q:  What about use of characters for, say, motion pictures or television?

A:  There hadn't been very much of that at all. The Superman movies, a couple of Marvel movies on TV that have not been very successful.

Q:  What was the first use of characters for film, to your knowledge?

A:  My goodness, I wonder. That would probably go back to the serials of the 1930s, '30s and '40s, possibly.

Q:  So as early as the 1930s comic book companies have been utilizing comic book characters for film?

A:  Yes.

Q:  To the present day. Is that a fair statement?

A:  Off and on, yes. There were huge droughts where nothing happened.

Q:  Were comic book companies using characters for television in the 1930s or after?

A:  Not in the 1930s, no. The first time I saw a comic book character on television would have been Superman, which would have been, for me, in 1956.

Q:  Now, I know most people are passionate about this industry. I take it as a kid you were a big fan of the Fantastic Four?

A:  Absolutely.

Q:  You bought your first issue of Fantastic Four in 1962?

A:  Yes,

Q:  That was the first Marvel comic you ever bought. Right?

A:  Yes. Not the first one I read, but the first one I bought.

Q:  Mr. Fleischer asked you about that spec you wrote about Fantastic Four. The purpose was to obtain regular employment at Marvel in the Fantastic Four series?

A:  To obtain regular employment at Marvel, but not on the Fantastic Four. The Fantastic Four was Marvel's flagship title. I did not expect to walk in as a neophyte, a new person in the industry, and be handed the flagship book.

Q:  In your deposition, you stated that you thought Mr. Wolfman was the editor in chief at the time of the submission at Marvel?

A:  As I said earlier, I allowed your associate to lead me on that. If I had taken a moment to think, I would have realized that since it took place in 1984. Wolfman could not possibly have been editor in chief.

Q:  1974?

A:  1974, excuse me. I am trying not to be as old as I am.

Q:  And then after the question of, when you answered yes to, did Mr. Wolfman turn down your submission, the next question was, at the same page:  "Did you like that?" Is that an accurate statement?

A:  One doesn't.

Q:  We don't dispute that. Now, I believe you testified at trial just now that there were three occasions when Mr. Wolfman told you that Marvel owns everything?

A:  Three that I remember, that were addressed more or less directly to me.

Q:  But at your deposition you said you could only recall one clearly?

A:  At that point I could only recall one. Obviously, I haven't spent a great deal of time prior to the deposition reviewing the effects or the events. I had no idea what I was going to be asked at the deposition.

Q:  Have they discussed your testimony for today?

A:  We have discussed testimony.

Q:  Did that discussion refresh your memory that there were three occasions?

A:  No. Actually, it was not discussion with the lawyers that refreshed my memory. It was fellow professionals. Specifically, Roger Stern.

Q:  Are any of those professionals sitting in the courtroom as witnesses for Marvel as well?

A:  No.

Q:  Since your deposition, you have changed your testimony on that issue. Now, when these alleged statements were made by Mr. Wolfman that Marvel owns everything, you weren't working with Mr. Wolfman at that time; isn't that right?

A:  No, I wasn't working with Marv.

Q:  So this statement would not have occurred in the context of him being a Marvel representative or any working relationship that you might have had with Mr. Wolfman at that time; isn't that right?

A:  No, no. It was not a working relationship, no. It was merely, you know, people talking to people.

Q:  And you never saw a check that Mr. Wolfman signed with any legend on the back of it allegedly giving rights to Marvel; isn't that right?

A:  I have never seen a check that Marv has signed, no. He has probably never seen a check I signed.

Q:  Today as you sit here, do you have any ownership interest in Alpha Flight?

A:  No. Not in the way the term is being used here.

Q:  Well, how is the term being used here?

A:  In the sense that I could take those characters somewhere else if I wanted to.

Q:  What ownership do you have aside from that aspect of ownership interest in Alpha Flight?

A:  Only in the sense that I would be paid a creator's percentage if the book was to be published again and exceed a certain sales number, which really probably does not qualify as ownership.

Q:  So you have an ownership interest in royalties then; is that right?

A:  You are really talking in legal terms that I don't understand. The best I can say is, if Marvel was to do an Alpha Flight series that sold in excess of 100,000 copies, I would say a one percent creator's royalty on those sales.

Q:  Well, then, following that train of thought, if the Alpha Flight were used for motion pictures, you would receive a royalty; isn't that correct?

A:  Yes.

Q:  Now, you stated that you remember seeing legends on backs of checks that you received at Marvel. And your quote, when Mr. Fleischer asked you what that legend was, you said, "everything I do for the company the company owns?"

A:  Yes.

Q:  Was that the actual legend?

A:  Of course not. He asked me what my understanding of it was. He didn't ask me to quote it. I couldn't quote the legend.

Q:  You were shown Marvel Exhibit 1; the vouchers. When did you first see these vouchers?

A:  Let's see. The voucher has changed a couple of times. So I couldn't swear to exactly when I saw that particular form.

Q:  So you have no knowledge as to when Marvel used this particular voucher?

A:  Well, I notice that one is dated 1991. That sounds about right.

Q:  This particular voucher would not have been in existence prior to 1991. Is that right?

A:  It may have been in existence in 1971, for all I know. I don't remember the exact form.

Q:  You don't know when this Exhibit 1 was used at Marvel?

A:  I don't know when that particular form of the voucher began to be used, if you are referring to the front. No, to be honest, I would have to say I cannot give a specific date, of when that started.

Q:  Then I believe you testified earlier that even this form has changed over the years at Marvel?

A:  Yes. The vouchers did not used to have a legend on the back because the legend was on the checks.

Q:  So there was a time when there was no legend on a voucher?

A:  On the voucher, because it was on the checks.

Q:  You have referred to yourself as "a cog in the machine at Marvel"?

A:  I have indeed.

Q:  And you would probably call yourself a company man?

A:  Yes. I have no problem with that. I believe corporate loyalty is a good thing. You are loyal to the company that you work for.

Q:  And you are loyal to Marvel, of course; isn't that right?

A:  When I am working for Marvel, I am loyal to Marvel, I suppose, yes.

Q:  And you are working for Marvel right now, aren't you?

A:  I am indeed.

MR. DILIBERTO:  No further questions, Your Honor.

JOHN BYRNE'S REDIRECT EXAMINATION

MR. FLEISCHER:  Would your notion of loyalty, Mr. Byrne, cause you to testify falsely?

A:  No. There is a difference between loyalty and ethics.

Q:  The arrangement you had for incentive payments on Alpha Flight arise pursuant to what kind of an arrangement?

A:  If I am understanding the question, when Alpha Flight got its own book, when they became their own tide after having appeared in the X-Men, Jim Shooter, who was editor in chief at Marvel at the time, suggested that I create a few new characters. And I created two new members of Alpha Flight and two secondary teams, Beta and Gamma Flights, so that I could be assured creator ownership under the new deal.

Q:  So when you originally created the Alpha Flight characters that were part of that team, if you will, the incentive policy at Marvel didn't exist; is that right?

A:  No.

Q:  Then when the policy came into effect, you created new characters in Alpha Flight?

A:  Yes.

Q:  And the policy, therefore, applied to those characters?

A:  Yes.

Q:  No further questions, Your Honor.