Marvel Litigation: Mark Evanier's (partial) Deposition
3 March 2023, Marvel Characters, Inc., et al., versus Lawrence Lieber, et al
The best part about all the various cases that have sprung up over the years is that it’s given the world some great depositions and testimony. From Neil Gaiman poking fun at Todd McFarlane’s writing, to Stan Lee getting confused, to Jean Peavy (the sister of Joe Shuster) recounting what happened when Jerry Siegel came into the Shuster house with the idea for Superman, to Larry Lieber talking like he just wants to get it all over with, it’s all there. Lawyers get angry, those being deposed get puzzled and a lot of what is said is just useless.
But, every so often, gems pop up.
This latest deposition is from Mark Evanier. He gave it during the recent Marvel v Larry Lieber and the estates of Gene Colan, Don Heck and Don Rico case.
To set this up, there’s not a lot that Mark doesn’t know about the comic book industry, but even he can get some things wrong. He is an expert on the industry, having been involved with it since the early 1970s. He’s become the go-to person when someone wants such a person who knows their stuff and can talk on the stand. Mark has given testimony and/or depositions for the major cases over the years - the Siegel v DC suits, Marv Wolfman v Marvel and Marvel v the Kirby family case. Generally what he says is accurate, but, every so often, some of what he says doesn’t match up with other people’s memories.
To that end, I’ve decided to add a couple of footnotes to this one - factual ones mainly. In doing so, I’ve had to include a big one - where a story that Mark has been telling for years, about why Steve Ditko left Marvel, does not match up with what Ditko himself said.
History. It’s not just for the winners. It’s for all of us. It’s incumbent upon us all to get to the bottom of things, from the large to the minute.
A Note On Depositions. Rarely are they released complete, mainly because the bulk of the proceedings are taken up with legal talk, objections and the like. What is released is the information that is relevant to the court case at hand. I have noted what pages are missing here and if more pages pop up, I’ll be sure to include them.
Los Angeles, California, Friday, March 3, 2023 9:37 a.m.
Today's date is March 3rd, 2023. The current time on the monitor is 9:37 a.m. We're on record. This deposition is taking place at 1999 Avenue of the Stars, number 800, Los Angeles, California 90065. This is the video deposition of Mark Evanier in the lead matter Marvel Characters, Inc., et al., versus Lawrence Lieber, et al., lead case number 1:21-cv-7955-LAK.
Would counsel please introduce themselves for the record.
Mr Petrocelli: Daniel Petrocelli for Marvel.
Mr Toberoff: Marc Toberoff for the defendants.
MARK EVANIER, having been first duly sworn, was examined and testified as follows:
Mr Petrocelli: Good morning, Mr. Evanier.
A: Hello.
Q: I'd like to first wish you a belated happy birthday.
A: Oh, you've been doing research.
Q: The last deposition I took in this case was Larry Lieber's, and it was also the day after his -- after his birthday.
A: You have a trend going here.
Q: So, you know you're here as an expert witness for the -- the defendants in this -- in these litigations?
A: That's what I understand, yes.
(Exhibit 151, Exhibit 152 and Exhibit 153 were marked for identification and are attached hereto.)
Mr Petrocelli: Okay. And you've prepared three reports which I've marked as Exhibit 150, which is your initial report; 151, a supplemental report; and 152, a rebuttal report; is that correct?
A: That seems to be the case, yes.
Q: Okay. Did you prepare the reports yourself?
A: Yes, I did.
Q: Did anybody else participate in the drafting or revising or editing of the reports?
A: I got advice on how to prepare a report from Mr. Toberoff, but I wrote the report.
Q: And once you wrote your first draft or any draft for that matter, did anybody, such as Mr. Toberoff or others, review the reports and make any comments?
A: I don't think so.
Q: Suggest any revisions?
A: Yeah. I -- I think I've caught spelling -- they caught spelling mistakes, or I got the wrong number on a -- like -- what -- what are they called? Bates numbers?
Q: Yes.
A: Okay. I got the Bates number wrong on something.
Q: And other than --
A: I don't know why they're called Bates numbers.
Q: Nor do I.
A: All right.
Q: But were there any, you know, more substantive revisions or suggestions made?
A: No, I don't think so.
Q: I'm not going to go through the reports right -- right this moment. But what do you understand you're here to testify about as an expert?
A: That's a -- that's the toughest question you can -- I understand that I am here because I have a wealth of knowledge about the history of the comic book industry and with a special emphasis on Marvel Comics in the '60s and '70s and with the procedures for how the comic books were created, how the work was done.
I have a history of interviewing almost everyone who worked for Marvel in a -- or – or contributed to their comics, wrote stories that they published or drew stories that they published, almost everyone who was alive when I was becoming active in the business or at comic conventions.
And I've written extensively and done quite a few interviews and -- cases where I've been interviewed and cases where I have interviewed those people.
And so, I understand that I am here to talk about how the comic books were -- were produced, the circumstances around them, not just Marvel, but also other companies as well. I worked for a lot of other companies as well. And -- Does that answer your question?
Mr Petrocelli: You do understand that this case involves whether a number of works by Larry Lieber, Steve Ditko, Don Heck, Don Rico and Gene Colan are or are not works made for hire? Do you understand that?
A: I understand that, yes.
Q: Okay. And are you here to express an opinion as to whether the works that are the subject of this litigation are works made for hire or are not works made for hire?
Mr Toberoff: Calls for legal conclusions.
Evanier: Well, I'm under the impression that the whole matter -- this whole matter is to determine that by judges or juries or people way above my -- my legal expertise. So, I don't think
I'm here to make the conclusion the judge is supposed to make.
Mr Petrocelli: Okay. So, you're not here, then, to render an expert opinion that the works at issue here are or are not works made for hire?
Mr Toberoff: Calls for legal conclusions.
Evanier: I believe I'm here to discuss the circumstances and situations under which the work was generated and created. And -- If you can rephrase the question. I -- I don't know that I --
Mr Petrocelli: You can repeat the question.
Evanier: No, actually, rephrase. I don't understand it the way you put it.
Mr Petrocelli: What don't you understand about it?
A: I don't understand if you're asking me if I'm here to -- to do the -- the job of a judge or – or even an attorney. I'm sorry. I'm not, obviously, either of those things.
Mr Petrocelli: No. I appreciate your pointing out that decisions in this case would be made by people other than yourself or -- or me or Mr. Toberoff.
A: Yeah. All right.
Q: Okay. But I'm asking you, since you have been retained as an expert witness, whether you're rendering an opinion in this litigation that the works that are the subject of this litigation are works made for hire or are not works made for hire.
Evanier: Yeah, I -- I feel like I've answered the question to the best of my ability. If -- maybe if you phrased it differently, I could --
Mr Petrocelli: No. Respectfully, I'd like you to try to answer that question.
Mr Toberoff: Okay. Asked and answered, calls for a legal conclusion. You can -- you can answer again, but then that's it.
Evanier: I feel that I am here to lend the expertise I have to an understanding of the working situation, how the comics were created, how the people were employed or not employed to do them. You -- you -- you're -- you're aware that I am not an attorney or a judge or anyone whose -- whose opinion matters. I think I've answered your question, sir.
Mr Petrocelli: So, to be clear, then, you're not going to render an opinion in this case that the works that are involved in -- in this litigation are not works made for hire?
Mr Toberoff: Asked and answered, calls for a legal conclusion. You -- you can answer that.
Mr Petrocelli: Sir, let me -- let me see if I can be helpful, because I'm really not trying to do something tricky here. I'm just trying to find out whether you're here to render the ultimate question and opinion on the ultimate question that you've indicated is for the judge or the jury to decide. So, you've explained that you're here to discuss certain information and certain circumstances regarding how works were created in the comic book industry. I understand that.
A: Then you understand my answer.
Q: Hold on. The issue in this case is whether or not, as Marvel contends, all of the works involved in this case are works for hire or, as the defendants contend, none of the works here are works for hire. That's the ultimate issue in these cases.
Mr Toberoff: Asked and -- hold on. Asked and answered, calls for multiple legal conclusions. You -- you can answer –
Evanier: I -- I am --
Mr Toberoff: You can just answer the question.
Evanier: -- not here -- I am not here to do multiple legal conclusions.
Mr Petrocelli: I didn't ask -- you know, your lawyer is entitled to make objections. It's really not your job to parrot his objections in your answer. This is just a very simple question. If you're not here to give an opinion to the Court that the works are made for hire or not made for hire, then just say so. I'm not hearing --
Mr Toberoff: He already did.
Mr Petrocelli: -- that opinion.
A: I -- I think I did.
Mr Toberoff: You can answer again.
Mr Petrocelli: So, what -- what is your opinion? Are they works for hire, or are they not works for hire?
Mr Toberoff: That's -- that's another -- that's a different question. You asked him what –
Mr Petrocelli: Answer that question.
A: My opinion is that I have heard so many different definitions of works for hire over the years, from different people, that I don't know which one to follow.
Q: So, you don't know the answer to that question?
A: No. I don't -- my -- my answer -- if you would like to give me a definition of work for hire that you think stands up to all of this, I could tell you how I think my understanding of the business relates to that definition. But I see things called work for hire that I do not believe fit my layman's understanding of work for hire.
Q: And is that -- sticking with that, okay, your layman's understanding of -- of work for hire, is it your opinion that the -- that none of the works involved in this litigation fit your layman's view of work for hire?
Mr Toberoff: Overbroad, lacks foundation.
Evanier: Do I have to --
Mr Toberoff: Calls for legal conclusions.
Evanier: May I answer?
Mr Petrocelli: Yes, unless he instructs you not to answer.
A: Okay. All right.
Mr Toberoff: Wait a second. So, when I object -- I'll make objections. Unless I instruct you not to answer, you can always answer.
Evanier: All right.
Mr Toberoff: Just make sure you're answering the question asked.
Evanier: It is my -- in the -- in the -- all right. Let me see if I can answer it this way. Maybe we can get past this. I have heard the term "work for hire" bandied about for years, ever since about 1978.[1] I never heard it before then, in the entire industry. And I have heard people tell me definitions, including definitions from lawyers and people who were in positions of responsibility at the companies, that I knew were false definitions.
I think I have been lied to about that at various times. Or maybe "lie" is too strong a word. Misled or told definitions by people who I don't think had any basis for their position. I'm sure you're aware that not everything people in this world tell you about legal things is true. I'm not talking about anything in this room.
I'm talking about when publishers or representatives of comic book companies are dealing with writers and artists and creative people who have not been to law school or maybe are not well informed about legal situations, they say a lot of the nonsense. I had a guy who was a head of a comic book company once told me that a private individual could never own a copyright. It had to be in the name of a corporation. I knew that was not true.
So, I -- I will -- you know, if -- if you're asking me do I think things are work for hire, I think -- I think "works" in this -- I think it is -- it is a very open question based on some of the definitions of work for hire I've heard. I -- and I have seen the relationship between the publishers, the -- the management, in this case, of comic book companies misrepresented. I've seen people being told me that their work is work for hire when I thought there was no basis for that.
But -- and I've seen -- I've seen the work -- term "work for hire" tossed around very casually, applied retroactively to work that was done before anybody had heard the term "work for hire" in the industry. So, I -- I -- this is, to me, kind of a – a cesspool to wade into. I don't understand some of the -- I think I can't answer your question in the general. I might be able to answer in the specific, in some cases.
But I -- I would be fascinated if apart -- apart from this case, someone could show me an absolute definition of work for hire that was inarguable and allowed someone to look at it and say, well, this is work for hire and this isn't. I've seen the definitions shift so much at the convenience of whoever was trying to claim ownership of something that I don't know what standard to apply to these cases, necessarily, unless you can give me a definition.
I'm sorry if I'm not answering your question with a yes or no, but I don't understand.
Mr Toberoff: Mark?
Evanier: Yeah.
Mr Toberoff: I -- I think you -- you don't have to -- you keep talking.
Evanier: Okay.
Mr Toberoff: I think you should try and focus on the question. Just answer the question.
Evanier: Okay.
Mr Toberoff: And -- and --
Evanier: And I'm sorry. I apologize.
Mr Toberoff: And -- and -- no, you don't have to apologize. This isn't a popularity contest. Just -- I would just try and focus and limit it to the question.
Evanier: Okay. I -- I am going to shut up now. Thank you.
Mr Petrocelli: So, in view of what you have explained, is it accurate to say, then, that with respect to the works specifically involved in this case, you don't know one way or the other whether they are works made for hire?
A: No, that is not what I said.
Q: Okay. Well, do you know whether they were works made for hire?
Mr Toberoff: Calls for legal conclusions.
Evanier: I don't -- I don't --
Mr Toberoff: That's not why he's here.
Evanier: I -- I have --
Mr Petrocelli: Can -- can you answer that yes or no?
A: No, I can't answer that yes or no.
Q: You can't answer the question whether you know whether these works are made for hire?
A: I --
Q: I'll follow up, whatever your answer is. I'm not going to stop there, but I'm trying to do this in an orderly fashion.
Mr Toberoff: Objection; calls for legal conclusions from a layperson.
Evanier: I --
Mr Petrocelli: Well, you presented --
A: I am not here to -- I am not here as an attorney.
Q: So, you're not here --
A: I have not been an attorney. I don't have a tie on.
Q: So, you're not here to render an opinion whether the works are made for hire, correct?
Mr Toberoff: Asked and answered. He already said that.
Mr Petrocelli: Excuse me. Let me rephrase the question. You're not here, then, as an expert witness, to render opinions on whether the works involved in these cases are works for hire or are not works for hire.
Pages 22 – 25 missing
Mr Petrocelli: Could you take a look at Exhibit 151, just to -- just to clarify this. And just take a look at the first paragraph of your --
A: Which--
Q: -- supplemented expert --
A: Which one are we -- which on are we talking about?
Q: Excuse me. We need to do a really good job of not talking over each other, because our reporter is going to get very upset with us, okay?
A: I don't want to -- I'm only really here to please them. I mean, I would like this to be -- for them to be very proud. I would like to think I'm going to get an Emmy for this.
Q: Look at Exhibit 151.
A: Exhibit 151. Yes. Okay. Thank you. All right.
Q: And look at the first paragraph.
A: All right.
Q: And --
A: That is the period that I believe these particular works were created in, '62 to '75.
Q: Okay.
A: You asked me if this is about a period – the larger period of -- the larger period of when –
Q: I didn't ask that, but that's okay.
A: Okay. Okay.
Q: We're --
A: I understood the question to be about the period of where the copyright laws were altered, and -- and so -- and I -- and -- and --
Mr Toberoff: Could we -- could we –
Mr Petrocelli: That was a prior question.
Evanier: Okay.
Mr Petrocelli: We're --
Mr Toberoff: Dan, could we just take a short break?
Mr Petrocelli: Yeah.
Mr Toberoff: I think I just --
Evanier: I'm sorry. I'm getting a little -- a little disoriented here.
Mr Toberoff: Before we get into -- I'm not trying to cut you in, in the middle of questioning, but I'm just trying -- I'd like to take a break.
Mr Petrocelli: Okay.
Mr Toberoff: Just to talk to my client briefly.
Mr Petrocelli: He's not your client
Mr Toberoff: Well, for purpose -- for -that's correct.
Mr Petrocelli: Or maybe he is your client. I --
Mr Toberoff: That's correct.
Mr Petrocelli: I -- I don't know.
Evanier: He's not -- he -- he -
Mr Petrocelli: I'd like to follow up on something you said in one of your prior answers in which you mentioned having heard lies and misrepresentations about work for hire issues. Do you recall that?
A: Yes.
Q: Okay. Did you hear any such lies or misrepresentations told to you by creators?
A: I heard bafflement. I heard --
Q: Well, my question was lies and misrepresentation.
A: Well, a misrepresentation is -- I've heard people who were just confused and didn't know what they -- when -- when -- they weren't lies because the people just simply didn't know.
Q: Okay. My question to you is, in all of your experience, with respect to that answer that you gave about lies and misrepresentations, did you ever believe that a creator was lying to you about work for hire?
A: A creator was lying to me about --
Q: Yes.
Mr Toberoff: Vague, lacks foundation.
Evanier: There are creators who also were management, and in that case, yes.
Mr Petrocelli: What about creators who were not management. Have you ever experienced any such person lying to you about --
A: Lying --
Q: -- work for hire?
A: -- or -- if -- if the answer -- the question is lying or misrepresentation, I can't think of one at the moment. I'm not saying it never happened.
Q: When you were giving that testimony, you -- you had in mind not creative folks, but management or publishing people?
A: I had in mind people who were in positions where they felt it was part of their duty to explain contracts or to explain why the company was changing the way they did business, representing the company. Those people were also, in some cases, also creators because, as you probably know, people who write and draw comics sometimes wind up editing them or publishing them.
Q: Okay. With respect to your reports, you referred to various sources of information in your reports. And I'm talking about all three of your reports --
A: Yes.
Q: -- Exhibits 150, 151 and 152. Are all of the sources and bases for the three reports identified in the three reports?
A: Probably --
Mr Toberoff: Objection; vague, overbroad.
Mr. Petrocelli You can answer.
A: I don't know. Do you want to point to a specific one?
Q: I'm trying to -- you did not provide a list of your -- what we call reliance materials, which is a -- a list of the materials on which you relied in rendering your reports. And I'm trying to find out whether the materials on which you did rely are, nonetheless, all identified in your reports.
Mr Toberoff: Objection; lacks foundation, assumes facts, misstates the exhibits.
Mr. Petrocelli: You can answer.
A: Okay. I don't think I listed every place that was a source of knowledge to me about the business.
Q: Did you --
A: A lot of those are personal observations and personal interviews that were not recorded or published.
Q: Did you rely on any statements or information from Mr. Toberoff or his -- or other counsel in rendering the reports?
Mr Toberoff: Objection; compound.
Evanier: All right. Compound. What's the first part again?
Mr. Petrocelli: Really, these objections are for the judge.
A: I -- I understand that. I understand that.
Q: You're just supposed to answer my question --
A: Okay.
Q: -- unless he tells you not to.
A: All right.
Mr Toberoff: Wait – wait a second. So, I'm --As you understand, I object - can object as to the form of the question, make other objections. But you can answer the question unless I instruct you, but I would not state my objections. That's for me.
Evanier: Okay. Thank you. I'm sorry.
Mr Toberoff: That's okay.
Evanier: Could I have the question again.
Mr Petrocelli: Please. (Record read as follows: "Q: Did you rely on any statements or information from Mr. Toberoff or his -- or other counsel in rendering the reports?")
Mr Toberoff: Objection; compound.
Evanier: All right. Did I rely on any statements from Mr. Toberoff? No. I relied – the answer is no.
Mr Petrocelli: Did you receive any documents from Mr. Toberoff on which you relied in writing the reports?
A: Yes, I did.
Q: What documents?
A: He sent me a list – quite a -- there's a list of them. I wish I -- if I had my computer in front of me, it would be easier to do -- in front of me, it would be easier. He gave me declarations from past lawsuits, for example, a declaration by Gene Colan, a declaration by Don Heck, I believe, and such.
He gave me some interviews that were done with various people. Roy Thomas, interview with Roy Thomas -- a couple of interviews with Roy Thomas. He gave me a -- an Avengers plot that Roy Thomas produced -- or I don't where -- I don't know who produced it. He gave me -- let me see. It was quite a pile of things, some of which I already had, some interviews, some interviews in the Alter Ego magazine.
He gave me Paul Levitz's expert report and, I…
Pages 34 – 45 missing
A: company called DePatie–Freleng, and Marvel Productions -- Marvel's animation company was kind of formed out of the wreckage of that company.
Q: What was the name of the company?
A: The company was called DePatie-Freleng, D-e-P-a-t-i-e, hyphen, F-r-e-l-e-n-g.
Mr Petrocelli: Have you testified in any other proceedings than the ones that you have identified, either as an expert witness or a fact witness?
A: Are you counting depositions?
Q: Yes.
A: I testified -- I gave a deposition in a lease -- lawsuit around 1976 or '77 for the Edgar Rice Burroughs estate. It was a lawsuit where they had fired or dismissed the president of the company, and he was suing them for wrongful termination.
Q: Okay. All right. Any others?
A: I'm going to answer I don't think so.
Q: Now, you indicated that insofar as the Siegel, Wolfman, Kirby, in this case, all those four cases, that you are uncomfortable or were uncomfortable seeking compensation. Why is that?
A: Well, all of those cases involve creators who I either knew or had great respect for and who, in some cases, I felt had been wronged and -- Are you looking for a short answer for this or -- or --
Q: Well, I --
A: -- or a long one or --
Q: I don't want you to go on needlessly long because we have, you know, a certain amount of time today --
A: That's why I'm asking.
Q: -- but I would like you to try to be responsive, within reason --
A: Okay.
Q: -- in terms of length of your answer.
A: Okay. I'll do my best.
Mr Petrocelli: Where -- where did he leave off? Can you read what he said so far? So, you can pick it up from there. (Record read.)
Evanier: I guess asking that means we're not going to get a short answer. All right.
Mr Petrocelli: So, let me just, okay, follow up briefly on that, and then I'll let you continue your answer.
A: Sure.
Q: Did you believe -- is one of the reasons you're not seeking compensation in this case because you believe Larry Lieber was wronged?
Mr Toberoff: Objection as to form, lacks foundation.
Evanier: I would say yes.
Mr Petrocelli: Same question for Steve Ditko.
A: Probably.
Q: Don Heck?
A: Yes.
Q: Don Rico?
A: Probably, yes.
Q: And Gene Colan?
A: Yes.
Q: And in what way do you believe that those five folks were wronged?
A: I believe those five folks contributed to -- mightily, essentially, to the creation of properties that are worth billions of dollars now and that the compensation that they received was a shame. It was -- it was -- it makes me uncomfortable that someone could lend themselves to something, in the circumstances under which that work was created where it was not anticipated to be of the value -- or even the head of the company thought the stuff was worthless, and that they ultimately received so little compensation and, in some cases, a great lack of respect.
And -- let me -- since you wanted me to answer this question, I will.
I grew up on these comic books. They have a lot to do with me being a professional writer for the last 52 years, and I have a -- a certain debt to them, and I feel also a certain debt to history. I think that I have been fortunate enough to meet most of these people, to talk with them, to have access, sometimes, to information that – that satisfied – satiated a curiosity I had about it, and I feel that I have a duty to share the record and set things straight sometimes when people get it wrong. There's a spectacular amount of disinformation on the Internet, as I'm sure you know. And I've spent a lot of time doing panels and -- and writing articles and things trying to correct the record. And -- yeah, so that's my answer to you.
Q: Would you agree that you are an advocate for the rights of comic creators?
Mr Toberoff: Objection; vague.
Evanier: I think I'm an advocate for truth here. I know that sounds corny, but, yeah, I -- for -- yes, I have -- I have felt that these people --
Mr Petrocelli: You can answer the question, yes or no.
A: Yeah, the -- the -- I'm -- I'm a little fuzzy on your definition of advocate here, but -- but I do take their sides at times.
Q: No. My question is, do you consider yourself an advocate for comic creators' rights?
Mr Toberoff: Objection as to form, vague.
Evanier: My answer is yes, at times.
Mr Petrocelli: Okay. And do you -- and do you remain an advocate today?
A: Nothing has changed.
Q: Okay. Now, in your prior answer, you said, "The head of the company thought the stuff was worthless."
A: Yes.
Q: Which company?
A: Well, the company that we now know as Marvel Comics.
Q: Okay. And which head?
A: Martin Goodman.
Q: Okay. What -- what stuff?
A: The properties that are controlled now -- well, the -- the properties that were created in the 1960s and in the '70s and probably other ones after that that are now part of the Marvel universe that are exploited in motion pictures and merchandising and -- and, you know, many places. The -- the characters, obviously, have an enormous value.
Q: Did he personally tell you that?
A: Did Martin Goodman tell me that personally? No.
Q: Okay. In fact, you only met him once in passing?
A: I met him briefly.
Mr Toberoff: Object- -- excuse me. Objection as to form.
Evanier: Yes. I met Mr. Goodman once in passing. I also knew his son.
Mr Petrocelli: Chip Goodman, right?
A: Charles. I -- I knew him as Charles.
Q: Charles? Okay.
A: I have trouble calling a grown man Chip.
Q: Who -- did anybody tell you that Martin Goodman said the contributions of these five contributors involved in this case were worthless?
A: Okay. I'm exaggerating with the word "worthless." Obviously, they were worth to him, at the time, to publish those comics, which he profited from. It is a virtual unanimous opinion of people I've dealt with who worked for Marvel briefly in the '60s that Mr. Goodman did not appreciate the value of the material, that he thought it was going to -- you know, the -- the history of Marvel Comics – and I know you aren't interested in certain amounts of this, but --
Q: Yeah.
A: -- I have --
Q: We have to keep --
A: -- I have to say it to -- just to – to answer your question, was that they published war comics for a while, and then when those went out of fad, they published love comics for a while. When those went out, they published westerns, and – they just kept jumping on trends.
And every single person I think I ever talked to who talked about working -- or selling stuff to Marvel in the '60s said Martin's always thought it was just another fad that would just last for a short period of time. And when he finally got an offer to sell Marvel, he sold it for way, way below what he thought it was -- what -- what anybody would reasonably now say it was worth.[2]
Q: Did you have direct conversations with any of -- Lieber, Ditko, Heck, Rico or Colan on that subject?
A: Probably.
Q: And they told you what you just explained to me?
A: If you want to go specifically one by one, Larry Lieber certainly said that to me.
Q: And said that Mr. Goodman did not appreciate his work?
A: Yes.
Q: Okay.
A: Well, no, no, that's not what -- you're -- you're -- I said he did not value the work sufficiently.
Q: You mean he didn't pay him enough?
A: Well, I think he didn't pay him enough.
Q: Well --
A: I think all these guys -- I think all these people were not paid enough.
Q: We're -- we're talking about the payment at the time they rendered the -- the service.
Mr Toberoff: Objection as to form.
Mr Petrocelli: I'm trying to understand what you're saying.
A: I'm -- I'm --
Q: Let me --
A: All right. All right.
Q: Let me try to set this up –
A: All right.
Q: -- a little bit. Are you saying that at the time that they rendered the service, created these contributions and were paid on a per-page rate?
A: Yes.
Q: Are you saying that that rate was too low at that time?
Mr Toberoff: Objection as to form.
Q: Okay. Are -- you do understand they agreed to accept that rate at that time, right?
Mr Toberoff: Objection as to form.
Evanier: I understand that, yes.
Mr Petrocelli: Okay. Besides having a view that their rates were too low at that time, do you have some other view as to they're being undercompensated?
Mr Toberoff: Objection as to form.
Evanier: Yes. I --
Mr Petrocelli:
Q: What -- what is that view?
A: All right. I believe that Marvel reprinted that work over and over without paying them additional money. I believe in the case of Mr. Colan, Mr. Heck, Mr. Lieb- -- well, actually probably all of them. I'm not sure about Mr. Rico -- well, yes, and even Mr. Rico, the work was adapted into television scripts and cartoons without compensation or, in some cases, credit to them.
I believe that their artwork -- that the artwork of those who drew was reprinted on toys and merchandise without them being compensated. I believe that the -- and that they were, at the time, paid less than even the industry norm.
Q: And -- and explain to me what you just said. Did you understand that they had agreements or contracts requiring such additional compensation?
Mr Toberoff: Objection as to form.
Evanier: Would you repeat the question
Mr Petrocelli: You just indicated a number of – of instances or ways in which these contributors were not paid, okay? Did you understand that they were not paid even though they had agreements to be so paid?
Mr Toberoff: Objection as to form.
Evanier: I do not believe they had agreements to be paid --
Mr Petrocelli: Okay.
Evanier: -- that way.
Mr Petrocelli: But it's your view that even though they didn't have specific agreements for such uses, they should have been paid anyway?
A: I believe that they should have been paid anyway, because the agreements that they signed may not have -- let me -- let me say this right. Give me a second, please.
I believe that there were verbal promises made to some of them that they would be paid, that those verbal promises were not honored. And I believe that they believed that they were only doing comic books. And in some cases, I believe they – they were doing it for one-time publication. And then regardless of anything that might have been signed, which I have never seen anything that gave -- that -- that said, you know, well, you understand we may use these on television? I think they were undercompensated.
Q: Did anybody ever -- of these five folks, did any one of them tell -- tell you that there had been verbal promises made to them to pay them that had been broken?
A: Yes.
Q: Who -- who told you that?
A: Steve Ditko.
Q: And what was the promise that he said was made that was broken?
A: That if the material had another life outside of the comic books, he would be compensated, that something would be negotiated.
Q: And when did he tell you that?
A: He told me this in June of 1970.
Q: Okay. And have you written about that promise in some of your writings or talks?
A: I'm not sure if I wrote about that.
Q: Why do you -- how do you happen to remember that specific date?
A: Well, in July -- in -- in 1970, my then-partner and I went to New York, and I visited the offices of DC Comics and Marvel Comics and a few other companies for a few days. And I -- on that trip, I spent two days with -- with Steve Ditko.
Q: And he -- and who did he say made the promise to him?
A: Martin Goodman -- well, excuse me, Martin Goodman through intermediaries.
Q: Did he say who the intermediaries were?
A: Stan Lee and others.
Q: And did he say what specific promise was broken?
A: The specific promise was that if the materials had a life outside of being published in comic books the way they were being published, that Martin would -- I think the term he used was take care of him. There would be additional money paid.
Q: So, at that time, Mr. Ditko was aware that the promises had already been broken?
A: He said that was the reason he had stopped working -- doing work with Marvel.[3]
Q: Okay. Do you know -- did you ever discuss with him why he didn't bring a lawsuit?
A: I don't think there were any comic book creators at that time who dared bring a lawsuit or could afford to bring a lawsuit.[4]
Q: No. My question was, did he tell you?
A: No, he didn't tell me that.
Q: Okay. Besides Ditko telling you about that promise that he claimed was broken, as early as June of 1970, are you -- did you have any other conversations with either him or -- or Lieber, Heck, Rico and Colan about broken promises?
A: Let me think. Not with -- I don't think with them. With other people, but not with them. Let me think for a second. Not with Larry. Don Heck told me that he was promised that Marvel would always buy work from -- for him -- from him and that -- that, at times, that was not honored.[5]
Q: In what year did he tell you that?
A: I spoke with him -- the first time I spoke with him was on the phone in late '69 or early 1970. And then I spoke with him in person in July of 1970. And then we talked on the phone sporadically after that, maybe once a year or twice a year. And then I talked with him at length at one convention many years later. He was -- he was -- Okay. I've answered my -- that's my answer.
Q: Okay. And can you be more specific as to what he said the broken promise was, that he was going to provide works to Marvel and then Marvel refused to deal with him?
A: He was told me that Marvel -- he was told Marvel would always be open to giving him work, that -- that when he wanted to do work for – draw comics for them, they would, you know, make it possible for him to submit work and to have, you know -- and then there was a gap where they – he just wasn't getting it.
Q: Did he tell you why?
A: He did not know why. Well, he -- no, he didn't -- he didn't --
Q: Okay.
A: He did not understand why.
Q: So, you mentioned conversation --
A: And actually -- okay. It's not responsive to your question. I am sorry.
Q: You mentioned a conversation with Ditko and then with Heck now, not with Lieber, you said. By the way, have you read Larry Lieber's deposition in this case?
A: Yes.
Q: Okay. And in the Kirby case?
Mr Toberoff: He asked --
Evanier: Yeah.
Mr Toberoff: -- you if you read Larry Lieber's deposition transcript in this case.
Evanier: Oh, no, I haven't. No.
Mr Petrocelli: You said yes.
A: No. I -- I read a statement he made. I – I read a --
Q: What statement?
A: Are we talking about -- I'm a little confused here. I'm sorry.
Q: Well, you answered yes to my question, and then Mr. Toberoff --
A: I'm not -- I'm not --
Q: -- asked you the same question again, I guess suggesting that maybe you didn't read it. Did you or did you not read Larry Lieber's deposition taken in this case?
Mr Toberoff: You mean the transcript of his deposition?
Mr Petrocelli: Well, of course I mean that.
Mr Toberoff: Yes, but to a layman, it's not clear.
Evanier: I read a transcript of a deposition of Larry Lieber.
Mr Petrocelli: Okay. Was it the one that –
A: I believe it was.
Q: In this case?
A: I -- I -- I'm -- I'm getting a little confused here. I -- I --
Q: He also gave a deposition in the Kirby case.
A: That's why I'm confused, if -- if I'm remembering -- which one I'm remembering.
Q: Whichever one it was, you read one?
A: I read a -- a deposition by -- a -- I read a transcript of a -- of a deposition with Larry Lieber.
Q: And did you read that recently in connection with the preparation of your reports?
A: I read it a few weeks ago.
Q: Okay. And was there anything in there that you read that you thought was -- was incorrect that comes to mind?
Mr Toberoff: Objection as to form.
Evanier: I don't remember.
Mr Petrocelli:
Q: Okay. So, did you have any conversations with Don Rico about broken promises?
A: Yes.
Q: When did that happen?
A: I met Don first in around 1974, I'm going to guess, somewhere in there. I knew him until he died. I had so many conversations with him that I can't tell you specifically when each one -- when he said specific things.
Q: What was the broken promise that he described to you?
A: Well, he had a very long battle with Martin Goodman's company over some things he had written for the non-comic magazines. And in the case of his work in the comic books then, he believed that he had been promised -- I was going to say work, but he wasn't hired by them. He just was -- was -- they just, you know, read his submissions, and -- and he felt it wasn't given consideration, that they didn't want him around anymore because they thought he was a troublemaker.
Q: This is for publications other than the comic books, you said?
A: Yes, yes.
Q: Okay. And then what about Gene Colan? Did you discuss with him broken promises by Marvel?
A: Well, the promises that Gene Colan felt were broken were broken after the period of time we're talking about here.
Q: Promises that occurred in later years?
A: Yes. Well, promises that were made at the time but were broken much later.
Q: What was the nature of the promise that Gene Colan described to you that was later broken?
A: Continued able to sell pages to the company.[6]
Q: And did they stop working with him?
A: Yes.
Q: Okay. You said earlier that you believe you have a duty to set the record straight.
A: Yes, I said that, I believe.
Q: As one of the reasons why you're not seeking compensation?
A: True.
Q: How do you want to set the record straight?
A: I want to put what I know, what I learned, what I've heard, what I was told into the public record and let -- you know, in some cases, speak for people who are not here to speak for themselves.
Q: And you've done that a couple times already, right? At least three times, right? Siegel, Wolfman and Kirby.
A: I wasn't talking about -- when I said that I wasn't talking specifically about being an expert witness. I'm talking about writing articles, books, correcting people on the Internet. I do a lot of correcting people on the Internet.
Q: When you said you have a duty to set the record straight and it's for that reason that you're not comfortable seeking compensation for serving as an expert, do you feel that you need to set the record straight as part of your expert work in this case?
Mr Toberoff: Objection as to form.
Evanier: Could I have that again, please.
Mr Petrocelli: Please. "That" reason. "And it's for that reason."
Mr Toberoff: Objection as to form.
Evanier: All right. I think that slightly misstates my testimony. The duty to set the record straight was not the whole reason that I do not seek compensation. Another reason is that I feel a certain said I feel a certain debt sometimes to these people, and some of them are people that I knew and felt were wronged in some way, and -- and, you know...
Mr Petrocelli: How do you feel that you are repaying that debt by serving as an expert in this case?
A: Well --
Mr Toberoff: Objection as to form.
Evanier: -- I feel that I -- I feel that I'm -- I feel that I am helping repay a debt to them. Sometimes you do things in this world just because you think -- you like somebody and you want to speak on their behalf if you feel you have the truth. You know, you -- all of those people I know, the -- the people that I've mentioned -- well, no, let me take -- let me amend that. Some of the people that I've mentioned -- Let me have the question one more time. I'm sorry.
(Record read as follows: "Q: How do you feel that you are repaying that debt by serving as an expert in this case?")
Mr Toberoff: Objection as to form.
Evanier: If I know -- if somebody publish- -- publishes a statement I believe to be untrue, that misrepresents the history of comics and does not give proper credit to someone, where I feel I have information that would correct the record, I feel I have a duty to offer it, whether I knew the person or not. I feel I have a duty to correct the record. I don't think that the cause of understanding the history of the industry is served by dissemination of false information, and if my offering of what I know, what I've heard, what I believe -- what I have observed in some cases can help out, that is reason enough for me to offer it, in any venue.
Mr Petrocelli: Are you aware of Marvel offering any false information or taking false positions in this litigation?
Mr Toberoff: Objection as to form.
Evanier: I don't know -- I don't know the answer to that question.
Mr Toberoff: You don't have to keep – you can -- you've answered the question.
Evanier: I've -- I just answered my question. That's my answer.
Mr Toberoff: You don't have to fill the silence.
Mr Petrocelli: You understand that the -- the heirs of these five gentlemen are seeking to terminate alleged grants of copyrights and to recapture interest in those copyrights?
You understand that that's the subject of their termination notices?
Mr Toberoff: Objection as to form.
Evanier: I understand that.
Mr Petrocelli: And do you understand whether or not your work as an expert in this case and your reports and your testimony will aid the heirs in securing those rights?
Mr Toberoff: Objection as to form.
Evanier: If I am correcting the record, yes.
Mr Petrocelli: Did you --
A: Let me amend that answer. If I am correcting the record, it might.
Q: You helped found the Comic Art Professional Society?
A: Correct.
Q: And what was the -- just very generally, what was the nature of that organization?
A: It was, basically, the social group for
Pages 70-72 missing
A: All right. I worked for all those companies before '78. And I'm trying to think. There's a couple of jobs I did for Harvey, but I think that was after '78.
Q: Harvey is another publishing company?
A: Harvey is another publisher.
Q: Okay. Comic book --
A: No. I -- I take that back. I worked in it for Archie Comics.
Q: Archie?
A: Because it was the editor who had been at Harvey and was now working for Archie. I believe that's a complete list.
Q: Okay. The ones for Marvel, which ones were those?
A: I wrote some -- well, the first thing I wrote for Marvel -- I wrote some articles for their black-and-white horror magazines, and I – I submitted some stuff to them a couple of times. I was -- I was asked to submit stuff, and they ended up not publishing it or buying it from me.
Q: When you said they asked you to submit stuff that they ended up not buying from you, are you talking for their comic book publications?
A: Yes.
Q: Do you recall what it was they asked you to submit on?
A: The first thing I was asked to submit was they were doing a magazine -- they had a comic book character named Iron Fist. It was a kung fu superhero, and they were spinning him off into a black-and-white magazine, comic book magazine. They published both color and black-and-white comics during this period.
And they wanted a backup feature of -- one of the editors sent me a sketch of two teenaged brother and sister twin kung fu teenagers, and they had the name the Dragons Two. They wanted a strip about -- that would run in every issue of the Iron Fist black-and-white magazine of the Iron -- of the Dragons Two.
And I was to create everything else about them, besides the name and the -- the look of these sketches, and I wrote an outline and a couple of story ideas and submitted them.
And then they informed me they changed their mind. They weren't publishing the magazine at all, and my material was never read -- excuse me, I don't think it was ever read.
Q: Did you ever submit anything to Marvel that…
Pages 75 -89 missing
Q: Okay. Are you sure of that?
A: I said, "I believe."
Q: And you said you --
A: That -- that would be when I met him in the hallways.
Q: You were introduced to him, right?
A: I was introduced to him, yes.
Q: No conversation of substance, right?
A: Nothing that would be germane to this case.
Q: Okay. You didn't call him out for breaching Steve Ditko's promise, right?
Mr Toberoff: Objection as to form.
Evanier: I don't think I had met with Mr. Ditko before, at the time.
Mr Petrocelli: Okay. And other than visiting the offices, you never worked at Marvel's offices, right?
A: Not officially.
Q: Well, you lived in L.A., right?
A: Yes.
Q: Okay. And Marvel's offices were in New York?
A: Yes.
Q: And you were never on staff at Marvel, right?
A: No.
Q: Correct?
A: I was never hired on staff at Marvel. I did some work up there in the offices, but I just never -- it's -- I -- no, I was never on staff there, no.
Q: Would you characterize your experience with comic books, especially prior to 1978, being more on the creative than business side?
Mr Toberoff: Objection as to form.
Evanier: My involvement was creative.
Mr Petrocelli: Now, in your report, you offer opinions about the custom and practice in the comics industry, right?
A: Correct.
Q: So, you agree that there were customs and practices in the comic book industry with -- with respect to the creation and publication of comics?
Mr Toberoff: Objection as to form.
Evanier: Some, not -- not to the extent that Mr. Levitz indicated in his report.
Mr Petrocelli: Have you ever testified that there were no customs and practices in the comic books industry?
Mr Toberoff: Objection as to form.
Evanier: Well, there is -- there are customs and practices in every industry, but some of them are pretty vague and -- I -- I don't know -- I guess I don't understand the question.
Mr Petrocelli: What don't you --
A: What -- what customs and practices are we talking about?
Q: Well, what customs and practices are you talking about in your report?
A: In the -- in the customs and practices I'm talking about in the report, I'm talking --
Mr Toberoff: Wait a second. I -- I would like to object to the form of the question, overbroad. You -- you --
Evanier: I can answer? Okay.
Mr Toberoff: Dan, do you want to restate your original question?
Mr Petrocelli: Yeah. What -- what -- is it your opinion that there are customs -- that there -- there was a custom and practice in the comic book industry for dealing with talent?
A: I do not believe there was a universal custom and practice for dealing with talent.
Q: Okay. You -- and that's still your opinion today, right?
A: Yes.
Q: Okay. And was there a custom and practice with -- with respect to some other aspect of the comic book industry?
Mr Toberoff: Objection as to form, overbroad.
Evanier: Well, you know, they all printed on cheap newsprint. That would be a – a custom. They all used ink. That would be a custom. They all paid as little as they could get away with paying. That would be a custom. I have objected in many articles, to the notion that they're all written the same way, they're all drawn the same way. I did a seminar once, at a convention, about showing different ways comic books can be -- have been and can be written.
Mr Petrocelli: Is it your opinion that there was, during these years, '62 to '75, a custom and practice in the comic book industry with respect to the creation of comic books?
Pages 94-105 missing
Evanier: I believe the ultimate responsibility was Stan Lee, but he delegated some of it to Roy Thomas or Sol Brodsky or other people there.
Mr Petrocelli: Have you read Roy Thomas's deposition in this case?
A: Yes, I believe I have. Yes, yes.
Q: Relatively recently?
A: Yes. Yes.
Q: Is there anything that comes to mind that you read in that transcript of Thomas's deposition that you thought was wrong?
A: Yes, but I can't recall at this moment what it was.
Mr Toberoff: Dan? We -- we have not -- we have not yet received that transcript, so that's an --
Evanier: Oh, okay.
Mr Toberoff: -- that's an -- I'm just –
Evanier: I -- I read --
Mr Toberoff: I'll represent –
Evanier: I read articles --
Mr Toberoff: I'll represent that -- that that's --
Mr Petrocelli: Well, you imagined it?
A: No, no, no.
Q: You imagined the transcript and the error, right?
A: I was -- I was given --
Mr Toberoff: I think he's conflating the interviews and --
Evanier: Yeah.
Mr Toberoff: -- things with --
Evanier: No. I read interviews with Mr. Thomas.
Mr Petrocelli: Okay. Okay.
A: May -- May I add something here? I have never read an interview with Roy Thomas I didn't disagree with something in, so...
Q: But you didn't read his deposition?
A: No, no, not this one, no. No, not this.
Q: And for that matter, you didn't read Larry Lieber's deposition in this case, either, right?
A: I -- I guess --
Q: Apparently, you don't have --
A: I -- I guess I read his other deposition.
Q: Okay. Now, from time to time, in your answers, you use the word "purchase" in – in respect of the transaction, right, between the artist and Marvel; is that right?
A: I believe I do, yes.
Q: Is there some significance in your mind to the use of the word "purchase" or "sell"?
Mr Toberoff: Objection as to form.
Mr Petrocelli: In terms of your expert opinion and testimony you're giving in this case, is there some particular significance to the use of "purchase" and "sell" in your testimony?
Mr Toberoff: Objection as to form.
Evanier: Yes.
Mr Petrocelli: What is it?
A: Because I believe that there has been an attempt to portray people who were selling piecework, freelancers who were selling piecework, to portray them as staff people.
Q: What does "staff people" mean?
A: People who are hired to come in and paid by the week and are working in the office.
Q: Is it your understanding that Marvel is claiming that these five contributors in this case were staff employees?
Mr Toberoff: Objection as to form.
Evanier: I'm not saying that they are saying it in this particular case, but they have frequently -- when I was a kid, reading Marvel comics and the Bullpen page, I came to the conclusion, as any reasonable person would, that all of these people who wrote under the comics were sitting in the office all day writing and drawing the stuff in what they call the bullpen. And when I talk about -- you know, I mentioned earlier that I frequently correct errors on the Internet about this, this is one of the errors I often correct.
Mr Petrocelli: Well, if you would assume, for purpose of my question, that none of these five people was a staff employee, for the purpose of my question here, is -- is there any other reason why you would be using the word "purchase" or "sell" other than to distinguish an artist from a staff employee?
Mr Toberoff: Objection as to form.
Mr Petrocelli: Let me rephrase it.
Pages 110 – 113 missing
Q: When you say, "work with," I don't know -- you're changing my -- my words a little bit, so I -- I just don't want us to be miscommunicating here. Would -- Larry Lieber was a writer, correct?
Mr Toberoff: Objection as to form.
Evanier: Larry Lieber was a writer and an artist.
Mr Petrocelli: Okay. And is it your understanding that Stan Lee would give scripts or plots to Larry Lee -- Lieber, his brother, to then go and write?
Mr Toberoff: Objection as to form, lacks foundation.
Evanier: At times he would do that.
Mr Petrocelli: Okay. Did he do it generally, or you're saying rarely?
A: During some periods generally and some periods rarely.
Q: Now, we're talking about -- we're not –
A: I'm talking about --
Q: -- talking about Rawhide Cowboy[7] [sic], right? We're talking about these Marvel superheroes, right?
A: I'm talking everything Marvel published.
Q: Well, I'm talking about specifically Ant-Man, Iron Man and Thor.
A: Okay. You haven't speci- --
Q: Would that change your --
A: You haven't specified those before.
Q: Okay. Would that change your answer?
And again, the question I'm asking is whether Lieber generally would get plot lines or story lines or -- or some kind of input from Stan before he launched off writing a script for Ant-Man, Iron Man or Thor.
Mr Toberoff: Objection as to form.
Evanier: He would get a plot idea from his brother. In most of those cases, I don't believe the ideas came from Stan, but he would -- he would -- he would be given something.
Mr Petrocelli: Is it your view that who comes up with the idea bears on the question of work for hire?
Mr Toberoff: Objection as to form. Again, calls for a legal conclusion.
Evanier: Can I have the question one more time, please.
(Record read as follows: Q: Is it your view that who comes up with the idea bears on the question of work for hire?)
Mr Toberoff: Objection as to form, calls for legal conclusions from a lay witness.
Evanier: I have no legal opinion on that. "Work for hire" is a legal term.
Mr Petrocelli: Well, I didn't ask for a legal opinion, so let me try again, okay?
A: All right.
Q: And I'm -- look, the judge is going to decide this case --
A: Okay.
Q: -- not you or me, okay? You're being put up as an expert witness to assist the Court, if the Court needs such assistance --
A: Okay.
Q: -- okay? Do you believe, in rendering your opinions in this case, that who comes up with the idea, with respect to these five contributors, somehow bears on the work-for-hire question that's the subject of this case?
Mr Toberoff: Objection as to form, calls for multiple legal conclusions --
Evanier: I believe I am not --
Mr Toberoff: -- and asked and answered. Go ahead.
Evanier: I believe I am not a -- not a lawyer who is conversant with the -- I do not have an opinion in regard to your question as to that situation.
Mr Petrocelli: And would you give me the same answer with respect to the question of ownership?
So let me rephrase it to you. In rendering your opinions in this case, do you believe that who comes up with the idea for something that's going to be published is pertinent to the issue of who owns that work?
Mr Toberoff: Objection as to form --
Evanier: Is it pertinent?
Mr Toberoff: -- and, again, calls for a legal conclusion. But you can answer.
Evanier: I, again, do not have an opinion on that.
Mr Petrocelli: Okay. Is it true that Stan Lee would generally sit down and discuss plots and discuss story lines with artists like Jack Kirby, for example?
A: I think --
Mr Toberoff: Objection as to form.
Evanier: I believe he very rarely sat down and discussed with Jack Kirby.
Mr Petrocelli: Well, I -- I don't -- "sit down" could be literally sit down, or it could mean figuratively sit down. I just want to be clear. Would he -- would he typically discuss plots and discuss story lines with Kirby who would then go off and -- and draw them?
Mr Toberoff: Asked and answered.
Evanier: I believe they did meet on things and talk at times. I listened in on -- Jack's end of one phone conversation with Stan on a story once.
Mr Petrocelli: So, is the answer to my question that they did typically do that?
Evanier: I would not say typically.
Mr Petrocelli: Take a look at your deposition in the Kirby case on this point. I'll -- I'll show you a couple of pages.
A: All right.
Q: Did you read your Kirby deposition in preparing for your testimony today?
A: No.
Q: What did you do to prepare? Anything?
A: I read over documents Mr. Toberoff had supplied to me. I read over my expert reports and Mr. Levitz's expert reports. And -- and I looked up some dates and things on matters that I thought might be relevant.
Q: What dates were those?
A: Just -- I'm just trying to guess areas that we might be talking about, and I wanted to make sure that something was within the scope of the dates. I didn't want to tell you an example that was – find out later it was 1980.
Q: When you gave me some of those broken promise dates --
A: Yeah.
Q: -- were those some of the dates you looked up?
A: Well, no. The conversation with Steve Ditko I didn't have to look up, because I knew that it was -- the -- the one time I -- I sat in a room with Mr. Ditko and talked -- I -- I was with him for two days. And that was on a trip that I made in 1970 to New York with my then-partner. We were going -- we attended my very first comic convention, which was the July 4th comic convention of 1970 at the Statler Hilton Hotel and -- so we went back -- we flew back there on the Sunday before and went to DC Comics on Monday. We went to Marvel Comics on Tuesday. We went to Steve Ditko's office on Wednesday. We went back to Marvel on Thursday. I remember that week -- that week very vividly, because I was meeting all these people for the first time, all these -- and I met dozens and dozens of people who over the years have written or drawn my favorite comic books. It was a very memorable week for me --
Q: Who --
A: -- and that was the only time I ever could have talked to Steve Ditko.
Q: Who was your partner?
A: My partner, then, was a gentleman named Steve Sherman.
Q: Is he still living?
A: No.
Q: Between 19- -- that was your first time in Marvel, 1970, right?
A: Correct.
Q: In the offices of Marvel --
A: Yes.
Q: -- right? And from 1970 to 1975, were there any other occasions that you were in the offices of Marvel --
A: I was --
Q: -- in New York?
A: -- in the offices of Marvel in 1973, '75, '76.
Q: In '73 and '75, on -- for how long were you there?
A: '73, I was there for two or -- I visited for two or three days, not the entirety of the day, but I went by and hung out, talked to people, chatted with people.
Q: At Marvel's office?
A: At Marvels's [sic] office -- Marvel's office.
Q: You spent two or three days in their offices?
A: Yes.
Q: Okay.
A: And then --
Q: And then in '75?
A: In '75, I spent two weeks in New York, and I kind of spent half of it at DC and half of it at Marvel, sometimes parts of the same day in both places.
Q: And what was the reason why in '73 and '75 you were spending some time in the offices of Marvel?
A: I had a lot of friends there. I was interested in things. I had -- in '75, they asked me to do some -- I don't know what the term would be -- help them out with some historical problems they had.
Q: Okay.
A: And Sol Brodsky, who was the head of production at that time -- I think he had a loftier title than that -- asked me to come up and -- and he wanted to quiz me on things.
Mr Petrocelli: Let me show you your deposition in Kirby now, which I'll mark as Exhibit 153.
(Exhibit 153 was marked for identification and is attached hereto.)
Evanier: Boy, I talked a lot.
Mr Petrocelli: And I'll direct your attention to page 92 and -- and 93. Want to take a look at that?
A: 92.
Q: And you recall giving a deposition in the Kirby case in 2010?
A: Correct.
Q: You see, like, starting at line 13 --
Mr Toberoff: Before we ask the questions, I would just ask that even though you're directed to a particular page; to understand the context of the question, you may have to read before that page. So, I just want to make sure you're not just looking at something out of context.
Mr Petrocelli: If you want, you can go back to page 91, because it turns out that this line of question starts after a recess.
Mr Toberoff: Where it says (as read): "Videographer: This is the beginning of disc" --
Evanier: Yes. I see that, yes.
Mr Toberoff: Okay.
Evanier: I'm -- I'm there. Okay. How far should I go on this?
Mr Petrocelli: End of 92, beginning of 93.
A: All right. I think I'm ready.
Q: Okay. So, this was about Fantastic Four?
A: This is about Fantastic Four #1.
Q: Right.
A: Mostly.
Q: And -- and you agreed with the questioner that Jack Kirby and Stan Lee sat down to discuss the plot and the story line before Kirby actually began to draw the characters, right?
A: Correct.
Mr Toberoff: Objection as to form.
Mr Petrocelli: And you further agreed -- well, I'll – do you see line 22, page 92 (as read): "Question: And was it your understanding, with regard to these other characters -- and we can go through all of them, or we can – or just we can get a general understanding -- that this was typically what was done, that Lee and Kirby would sit down together, discuss the plot, discuss the storyline, and then Kirby would go and draw whatever he was going to draw?
"Answer: Correct."
And that was truthful testimony you gave?
A: Yes.
Q: Okay. You can put that aside. I'll represent to you that Larry Lieber testified in this case that he wrote the scripts for Iron Man, Thor and Ant-Man all from Stan Lee's plots. Do you have any reason to dispute that?
A: Yes. Whenever I've talked to Larry about that, he has always been very specific to say there were plots that Stan gave to him and he did not understand the point of origin. He said they may have been from plots that Jack Kirby gave to Stan.
Q: Can you take a look at pages 88, 89 and 90 of Larry Lieber's deposition transcript, which I'll share with you.
A: If someone will hand it to me. (Exhibit 154 was marked and withdrawn.)
Mr Toberoff: Thank you.
Mr Petrocelli: You know, I -- I represented to you what Larry Lieber has testified, which I can show you. I want to make sure I understand your answer. You mentioned something about Larry told you that Stan wasn't the point of origin. Is that what you were saying?
A: He said he wasn't sure.
Q: Okay.
A: He did not know the point -- he –
Q: What do you mean by --
A: Let me -- let me answer.
Q: I want you --
A: Larry said he --
Q: -- to explain what you mean by "point of origin."
A: Larry said that he was given plot ideas -- these -- what we're talking about here is mainly -- the story is that -- that appeared in the beginning, the front part, the cover story, for four comic books or five comic books, Tales to Astonish, Strange Tales, Tales of Suspense, Journey Into Mystery and sometimes Amazing Adventures.
These are stories that were illustrated by Jack Kirby, working from scripts that were sent to him by Larry Lieber. Jack maintained that the plots usually came from him, he'd give the plots to Stan, Stan would give the plots to Larry. I asked Larry, the first time I met him, which was in that office visit in 1970, "Is that true?"
And he said, "I don't know where the plots came from. They may have come from Jack."[8]
Q: To be clear, though, Lieber got the information from Stan Lee for the plots and the story line?
A: Correct.
Q: Okay. And the same would be true for Iron Man, Thor and Ant-Man stories, right?
A: I would --
Mr Toberoff: Objection as to form.
Evanier: I would presume so.
Mr Petrocelli: Okay.
Mr Toberoff: Don't presume.
Evanier: Okay.
Mr Toberoff: Don't speculate.
Evanier: However, in the case of some of these -- if you want a complete answer here – the stories were based on covers. Sometimes the cover was done first. And the covers were done by Jack Kirby. So, the point of origin of the story line, particularly if it involved a new character who was first seen on that cover, may have started with Jack.
Mr Petrocelli: Is there some significance why you keep pointing out to me that Stan Lee might not have been the original thinker of some idea?
A: It's part of the historical record.
Q: Okay.
A: It's -- it's --
Q: Do you see any importance to that piece of the historical record to the question of who owns these works?
Mr Toberoff: Objection; calls for a legal conclusion.
Evanier: I am talking as a historian, not as a lawyer here.
Mr Petrocelli: Okay. So, in rendering -- rendering opinions in this case, you're not assigning any significance, then, to who came up with a particular idea, in terms of who owns the results at issue here – the works at issue here? Excuse me.
Mr Toberoff: Objection as to form, misstates testimony.
Mr Petrocelli: Can you repeat my question?
Evanier: I am not assigning any significance to who came up with the ideas as it relates to -- you know, I assume that that's a separate issue. The -- the ownership of it has to do with contracts and checks, payments and money and things like that, not with -- Jack Kirby came up with the idea for lots of comic books he never claimed ownership of, in other places.
Mr Petrocelli: You agree that people at Marvel, like Stan Lee or Roy Thomas or others who might be involved in editing a comic book, had the ability to take a work created by one of these contributors and make changes to it, correct?
Pages 130 – 153 missing
Evanier: Can I have the question one more time, please.
(Record read as follows: "Q: Is it true that it was an inconsistent policy, that some checks had occasionally things stamped on them and others, people crossed them out, and that there was no particular firm policy?")
Mr Toberoff: Same objection as to form, calls for speculation.
Evanier: I believe that is true.
Mr Petrocelli: With respect to your -- your report, you state that (as read): "Comic book publishers did not see any lasting value in their product beyond monthly sales figures." What's the basis of that statement?
A: Talking to people throughout the -- the comic book industry for much of my life, hearing people say this stuff is going to be worthless someday. I mean, it's -- if you want me to give you -- do you want me to give you specific examples?
Q: Well, to be clear, Marvin [sic] Goodman never told you this, right?
A: No. Martin Goodman.
Q: Excuse me, Martin Goodman, correct.
A: No.
Q: Okay.
A: No.
Q: Nobody at Marvel ever told you this, right?
A: Stan Lee told me that.
Q: He told you this, "Comic book publishers did not see any lasting value in their product beyond monthly sales figures"?
A: Not -- no, not beyond monthly sale figures. He just, at times, told me that he thought that the business was going to crumble one of these days soon and -- and none of this stuff would be remembered.
Q: Is that written down in some of your publications?
A: I don't recall.
Q: You also said there were no -- (as read): "There was no expectation that it would ever be reprinted and little thought that the characters would be merchandised or exploited in other media."
And, again, you're talking about the relevant time period here, right, '62 to '75, in making these statements in your report, right?
A: I believe I'm talking, in that particular thing, about early in the -- early in the period. Because by the time -- the -- the Batman TV show went on in 1966. That changed the industry a lot, because people woke up and suddenly decided that characters could be on TV, and they could be on T-shirts and such.[9]
Q: And that was 1966, you said?
A: '66, I believe, yes.
Q: Did anybody at Marvel tell you that there was no expectation that it would ever be reprinted and little thought that the characters would be merchandised or exploited in the media?
A: In -- in the mid-'70s, Sol Brodsky told me that that was the attitude when the Marvel superhero books first started in '62 -- '61, actually.
Q: And is that written down someplace?
A: I don't know.
Q: You say in your report that freelance – that the Marvel method was used by freelance artists to plot and draw comic book stories to reduce costs.
Mr Toberoff: What's the question?
Mr Petrocelli: Who told you that?
A: Jack --
Mr Toberoff: Object- --
Evanier: I'm sorry.
Mr Toberoff: Objection as to form.
Mr Petrocelli: Jack Kirby?
A: Jack Kirby, Steve Ditko, Don -- I mean, it was kind of an assumption.
Q: Well, I'm not asking you about an assumption.
A: No, but, I mean, the Marvel method saddled the artist with doing many things, many – many parts of the process, which at DC Comics would – a writer would be paid for.
Q: I'm just asking whether someone, a person at Marvel, actually told you that the purpose of the Marvel method was to reduce costs. I'm not asking for your interpretation of it.
Mr Toberoff: Objection as to form.
Mr Petrocelli: Did you understand my question?
A: Yeah. I think I -- I think I understand your question.
Q: And did someone say, oh, we're doing the Marvel method in order to reduce costs?
Mr Toberoff: Objection as to form.
Page 158-159 missing
A: I -- I would tell -- yeah.
Q: Okay.
A: There might -- there might have been others.
Q: You don't recall, though?
A: I don't recall right this minute --
Q: Okay.
A: -- others.
Q: In your report, you state that (as read): "Cadence/Marvel strained to retroactively fit within the new Copyright Act's explicit work-for- hire provisions, by having freelancers sign 'work-for-hire' releases in and around mid-1978 — just after the Copyright Act of 1976 had taken effect — as to prior work long after the work had been created."
How do you know they strained in the way that you wrote in your report?
Mr Toberoff: Objection as to form.
Evanier: Because there was such a tumult in the business about that, because there were meetings at comic conventions discussing the fact that they were hauling out all these forms, asking them to -- saying -- that said, in effect, we --Marvel owns this, we want you to say that we owned it, and -- and change -- and retroactively altering the understanding or the -- the arrangements.
Mr Petrocelli: So, this is just your interpretation of Marvel's state of mind?
Mr Toberoff: Objection as to form.
Evanier: This is my recollection of a topic that was discussed quite a bit in the industry at the time about comic book publishers, not just Marvel, coming to terms with the new copyright regulations and changing some of the terms, asking people, when they sign new paperwork, to also affirm that old work was done under a certain arrangement.
Mr Petrocelli: I'm focused more on your statements about why Marvel did it and its state of mind. To that end, you also write, in the very next sentence, (as read): "Cadence thereby tried to revise and transform prior freelance material purchased by Marvel by the page into works made for hire, obviously, to hold on to what had become valuable intellectual property." Did anybody at Marvel tell you any of these things that I just read to you from your report?
A "Anybody at Marvel," are you talking about executives or freelancers or -- or who are you talking -- who is anyone at Marvel in that question?
Q: Anyone at Marvel, did they tell you that Marvel was straining to retroactively fit within the new copyright provisions? Did they tell you that they were trying to transform prior freelance material?
A: Quite --
Mr Toberoff: Objection as to form.
Evanier: Quite a few writers and artists who had done work for Marvel told me that.
Mr Petrocelli: Did any of the Marvel management tell you that?
A: No, I don't think so.
Q: And did any of these five contributors tell you that?
Mr Toberoff: Objection as to form.
Evanier: No.
Mr Petrocelli: Okay. You write in -- in your report that (as read):
Page 163 – 195 missing
Q And did they state that they were shell companies?
A: I don't know -- remember if the term "shell company" was used. That's a term I -- that might be the way that I described them based on what I read.
Q: And what does that --
A I actually had heard the term "shell companies" applied to those companies long before I ever met Mr. Toberoff or any of this.
Q: Why --
A: That's the term Sol Brodsky used to describe them.
Q: Why did you -- what did you understand this has to do, if at all, with works made for hire?
Mr Toberoff: Asked and answered, calls for a legal conclusion.
Evanier: I didn't understand that it was necessarily related to work for hire. I understood that it was -- it was related to this proceeding.
Mr Petrocelli: Why did you include the statement in here about works made for hire?
A: Let me read -- let me read it. Because that's what I understood to be the case. I wasn't saying -- because I understood that
[1] Jack Kirby’s June 1972 Copyright Assignment form clearly states that Kirby acknowledged all his work was done as ‘an employee for hire of the Goodmans’. The term ‘work for hire’ picked up speed in 1978 when Marvel had it’s creative and permanent staff sign Agreements (beginning 3 May 1978). Kirby never signed the 1978 Agreement, or a variation of.
[2] Goodman sold Marvel in 1968 for $7,000,000 cash and $2,000,000 in stock (you can see the contracts here). In 2025, that amount would be $65,000,000+.
[3] Evanier’s account goes against that of Steve Ditko.
In September 2015 Steve Ditko wrote an essay titled Why I Quit S-M, Marvel for The Four-Page Series #9 (Robin Snyder). I’ve quoted, and emphasized, the most relevant parts:
There have been many claimed knowers of Why Quit S-M and Marvel: Stan and I were arguing over, disputing Who is, or should be, the Green Goblin, over "not getting promised royalties", and other known, floating, arbitrary "truths", the "real" stories, reasons, fantasies, by CBFs and fan publications, "historians".
All such claimers lack first hand knowledge. All are guessing, creating, their own reasons, fictions and fantasies.
Facts, truths, don't stop THE "knowers".
I wrote some mini-history articles for Robin Snyder's The Comics! They covered, exposed, some false, foolish, circulating "truths", creation fantasies, of what "really happened".
Most CBFs weren't interested, still aren't interested, in facts, truth, but their own fictions, fantasies, "truths" creations.
I don't keep records so I can't provide all or even the most relevant details and most CBFs are not interested in facts, truth.
CBFs are interested in their own gratifying, emotional "truths" as outsiders with special inside knowing, knowledge, TRUTH.
I did previously write that I took a penciled job to the Marvel office as I normally did.
Sol Brodsky, Stan's assistant, did something he never did before.
I had usually gone into Stan's closed-off office if he wasn't with anyone.
But this time, Sol took the penciled pages from me.
I thought he just wanted to look at them.
But he took the pages into Stan!
I stood there, looking at Flo Steinberg, Stan's secretary.
No reaction!?
Sol came out, saying nothing to me!?
I left.
The burden was NOT on me.
At some point, I got a call to pick up the Stan-scripted and lettered pages I had taken in.
I always picked up pages from Stan, he'd tell me about anything to change, add, etc.
I went to the Marvel office. Silent Sol handed me the pages to ink.
NO comment about anything.
I left with the pages.
I inked the pages, took them in, Sol again took the pages from me and into Stan's office - came out
saying nothing - and I left.
I don't remember if there were any Dr. Strange pages to also be edited, scripted, lettered, etc.
So, back at my office, I decided on my own to do the next, follow-up S-M with some new villain.
When done and there was still no word from Stan or Sol about the next S-M issue, I took my S-M story/issue and went through the same Sol/Stan routine.
When doing S-M, DS, I always wrote down any ideas that came to me about the supporting characters, any possible, useable story idea.
At some point after they had been dialogued and lettered, I got my original, penciled pages back and inked them.
That became our working system on S-M and DS.
As I was a freelancer, Stan could, at any time, just have Sol tell me I was OFF S-M, OUT of Marvel.
--
So why did I actually decide to quit?
One day I got a call from Sol. The next S-M annual is coming up. Okay.
Later, thinking about what I could do for the annual, I asked myself, "Why should I do it?"
Why should I continue to do all these monthly issues, original story ideas, material, for a man who is too scared, too angry over something, to even see, talk to me?
At some point, I decided to quit Marvel, S-M, DS.
My next visit to Marvel, I told Sol I was quitting Marvel. Sol told Stan.
The only person who had the right to know why I was quitting refused to come out of his office or to call
me in. Stan refused to know why.
[4] As I have noted elsewhere, Joe Simon filed suit against Marvel in the 1960s. The most famous of all comic book lawsuits was Jerry Siegel-Joe Shuster against DC Comics. The cost of such a suit, against a company, was more than just financial as the company would be reluctant to hire to the creator again.
[5] Marvel began to stop assigning Heck work in 1969, after which he began to freelance for DC and Skywald.
[6] Gene Colan left Marvel Comics in 1981 after repeated disputes with then EIC Jim Shooter.
[7] Rawhide Kid
[8] In Leiber’s own deposition, in this case, Larry stated, “Stan would give me a one-page plot outline for a story, I would write the script, return it to Stan, who then would have it sent to an artist who, after drawing it, would send it to a letterer and then, it was inked and colored, while I was home working on the next script."
[9] Superman was heavily merchandised in the 1940s, with playsuits, watches, shirts, toys and more. Merchandising superheroes wasn’t anything new in 1966. It just increased, a lot.
Re fn 3: If that’s really the reason for Ditko quitting Marvel… no words. It’s borderline albeit low level insane — a personal slight that he did nothing to inquire about? Seriously?