The Mark Evanier Deposition For The Kirby Family Vs Marvel Lawsuit

The Mark Evanier Deposition For The Kirby Family Vs Marvel LawsuitUPDATE: The files below are from the submitted documents by Marvel to the judge in the continuing lawsuit, and are intended to reflect Marvel's case.

Mark Evanier is a comic book and TV writer, best known for his work on the Garfield cartoon and on Groo The Wanderer. He was a production  assistant to Jack Kirby in the seventies and a close friend.

Last year, he and several others were called to give depositions in the Kirby family v Marvel case which involves the Kirby family's quest to terminate Marvel's copyrights on 45 characters Kirby helped create.

There's an incredible amount of material here so what I'm going to do is break down and excerpt stuff that jumps out at me.

If you're not familiar with this case, here is BC's overview on the matter and here is another recent development.

Thanks to Daniel Best for posting these public transcripts online. Please see his blog for a far more complete version. As he notes, this material is sure to be dissected at the atomic level for years to come.

Now, onto the deposition of Mark Evanier;

THE COURT: I don't think you can use an expert a vehicle to testify about specific examples of other disputes between Marvel and other parties. He could testify about industry practice or whatever else it is that you have put the other side on notice he is going to testify to but, for example, don't think he is in a position to testify about what third parties told him for the purpose of me taking it as being the truth, taken for the truth of the matter asserted except to the extent that it goes to hearsay that he would rely on to testify about industry practices and procedures.
MR. DILIBERTO: That is what he —
THE COURT: I hope you understand the distinction I'm trying to draw, because I think an expert is entitled to rely on hearsay, but I don't think you are entitled to put an expert on to establish facts, particular facts in dispute or particular facts the other side does dispute except to the extent you would otherwise look on them on matters under Rule 703 as an expert.


THE COURT: No, I don't. What I'm trying to say that it's typical an expert gets on the stand and under Rule 703 can rely on hearsay for the purpose of bolstering opinions the expert offers, but it's not too typical. An expert gets on the stand and you use the expert, lawyers may attribute that as not too typical, it gets into evidence. The expert establishes what happens in a particular case with particular individuals for the purpose of establishing that as being true for me to take it as true.

If you look at it from my perspective, I don't think that I can rely on this witness for the purpose of finding as a matter of fact that the events he testified to in fact happened, in part because the other side has no real ability to cross-examine the principal actors in the incident. And, so I don't think it's consistent with the Rule 11 as to allow him or try to use him to establish certain facts I would end up finding. If you would look at the opinion, I wonder if I could cite this witness for those facts as being true. I don't think I could. I don't think it's consistent with the Rules of Evidence.

So what you want to do, what I was suggesting is you want to back up, you want to establish through this witness the general concepts of industry practice that you think that he wants to establish, and then he might set examples from his experience and from his knowledge of the community of what he relies on to show that general industry practice if that is the direction you are headed.
Later the following exchange took place.
Q. And based on the facts you just stated, what opinion does that render regarding comic book companies using their economic powers to induce creators to assign rights to comic book companies?
MR. FLEISCHER: Objection, competence.
MR. PETRICH: I'm going to add hearsay, your Honor, and move to strike. This is all based on what Jack Kirby said happened.
THE COURT: Again, I don't think I'm going to be able to, if I have to make findings of fact, I don't think I would be able to cite this witness's testimony for the purpose of making this finding. That is, it doesn't have, it's just not consistent with the Rules of Evidence that I can rely on what he is saying what happened in particular instances for the purpose of determining that it in fact did happen.


What this boils down to is that the court may well look at Evanier's deposition as mere hearsay as he wasn't there at the time and is basing his findings on what Kirby, and others, have told him.  I await the full copy of his deposition, in the meantime, sit back, get a drink in and have a good, long read…

Deposition of MARK EVANIER Los Angeles, California, November 9, 2010

(Acting for Marvel – James W. Quinn and Randi W. Singer, acting for the Kirby's, as usual, Marc Toberoff)

QUINN::I will put it this way: Any of the plaintiffs or related Marvel companies, do you have any personal knowledge —
MARK EVANIER: Any personal knowledge? No, I do not.
Q: Now just go through some data points. What was — what is your date of birth?
MARK EVANIER: March 2nd, 1952.
Q: So that would make you about 58 years old?
MARK EVANIER: I would think so, yes.
Q: And am I correct that between the years 1958 and 1963 you were between six and 11 years old?
MARK EVANIER: That would follow, yes.
Q: Yes, and you lived in California?
Q: And I assume that between that period of time you had no involvement with anyone at Marvel?
MARK EVANIER: Between '53 and '62 —
Q: '58 and '63.
MARK EVANIER: '58 and '63? No involvement with anyone at Marvel.
Q: You understand that in connection with this lawsuit those years are the years that are most relevant to the works that are at dispute —
MARK EVANIER: I understand that —
(break in testimony)
MARK EVANIER:. And that would have been about a week after I got out of high school. So it would have been June of 1969.
Q: Okay. And that really was when you began as a freelance writer?
Q:. Did there come a time that you met Jack Kirby?
Q: And how did that come about?
MARK EVANIER: You want the long version or the short version?
Q: Whatever the most complete version you can give me without boring us to death.
MARK EVANIER:. Well, you better leave now. In — at that time — the time being July of '69 — I was the president of a local comic book club called the Los Angeles Comic Book Club.

Jack and his wife Rosalyn attended a science fiction convention on the July 4th weekend of that year that was held at the Miramar Hotel in Santa Monica. And at that convention they met some of the officers of our club. I was not present for the convention, but they met some officers of the club, and they invited them, they said, "Why don't you bring your Board of Directors down to our house for a visit."

So the following Tuesday I think it was, three of the other officers of the club and I drove down to Irvine, California where the Kirbys were living. None of us could drive at that time, so one of the officer's mothers drove us down, and that was the day I met Jack and Roz.
Q: And how old were you?
MARK EVANIER: This was June of '69, so I was 17 years old.
Q: And —
MARK EVANIER: Excuse me, this was July of '69.
Q: Okay. Fair enough. And did you subsequently go to work for Mr. Kirby as an assistant or an apprentice?
Q: And how did that come about?
MARK EVANIER: Well, after — the day after I met Jack I met the people at a company, local firm called Marvelmania International, which was a licensee of Marvel that was producing fan club material. They were selling posters and little plastic pillows and decals. And I got hired by them to be their in-house Marvel expert and to edit the club fan magazine.

And I met Jack — I had a lot of dealings with Jack for several months, the balance of '69, as he was — as we were doing merchandise based on his artwork

(break in testimony)
Q: Now you mentioned that you saw him a lot during that period, let's say from 1972 until his death in — I believe it was 1994, was it?
MARK EVANIER: I should know this. '94 I believe, yes.
Q: During that period of time I take it you remained in close contact with Mr. Kirby?
Q: Is that a fair statement?
MARK EVANIER: That is a fair statement, yes.
Q: And you would have dinners with the family, among other things?
MARK EVANIER: From time to time, yes.
Q: And, in fact, Mr. Kirby became a very close friend of yours; isn't that right?
MARK EVANIER: I would like to think so.
Q: And you stated publicly that he treated you like family; isn't that right?
MARK EVANIER: I may have said that at times, yes. I actually —
Q: And, indeed, he even introduced as his son Mike from time to time?
MARK EVANIER: He made that slip once, yes.
Q: And it's fair to say that over that period of time you came to idolize Jack Kirby, didn't you?
MARK EVANIER: I would never — I would not use the word "idolize." I certainly respected the man greatly.
Q: You had great affection for him too, didn't you?
Q: Now have you done work for Marvel over the years?
MARK EVANIER: Yes, I have.
Q: Could you describe that for us.
MARK EVANIER: Let's see, I wrote — well, this gets complicated because there were a number of — I did quite a number of projects where I wrote materials that I was paid by another firm but Marvel published them. I was paid by someone else, and then Marvel published the books —
Q: Uh-huh .
MARK EVANIER: — but my paycheck came from someone else.
Q: From somebody else?
Q: Right.
MARK EVANIER: In that category I did — I was the editor of the — I was the writer and then subsequently the editor of a line of comics for Hanna Barbera, which Marvel published. I was hired by the Edgar Rice Burroughs Company to write a series of Tarzan comics, and Marvel published one or two of those.
(break in transcript)

Q: Okay. I'm going to rephrase. It's correct, is it not, that over the years you have earned a significant amount of money writing about Jack Kirby, haven't you?
TOBEROFF:: Lacks foundation.
QUINN::You have earned money writing about Jack Kirby; correct?
Q: "Significant" is a relative term; right?
MARK EVANIER: Um, in the sense that "significant" implies a lot of money, that would not be correct.
Q: You have earned, over the course of a number of years, money writing about Jack Kirby; right?
MARK EVANIER: I have earned — I have been paid to write about Jack, yes.
Q: And did you search for documents that would show the amount of compensation you earned in connection with writing about Jack Kirby?
MARK EVANIER: No, I did not.
QUINN: We would request that, since it is part of the Subpoena. I direct that to you, Mr. Toberoff.  id you search for documents that related or might relate to the dispute that you described with regard to the artwork?
MARK EVANIER: The current dispute over artwork?
Q: Yes.
MARK EVANIER: I did not have — no, I did not have any.
Q: Your testimony is that you did not have any documents relating — that might relate to the artwork dispute in your files?
MARK EVANIER: My testimony is that I knew I did not have any.
Q: Okay. We'll come back to that. Fair to say — you mentioned that you had visited the Marvel offices sometime in the '70s; is that right?
MARK EVANIER: I visited several times during the '70s.
Q: You hadn't visited between 1958 and 1963; right?
MARK EVANIER: That's correct.
Q: So you personally have no knowledge about the activities going on in connection with the creation of comic books between the years 1958 and 1963 at Marvel; correct?
MARK EVANIER: I do not agree with that statement.
Q: Other than what you have been told by somebody else, you personally have no knowledge about what occurred between 1958 and 1963 in the creation of comic books at Marvel in New York City, do you?
TOBEROFF:: Asked and answered. He already answered that question.
QUINN:: Answer it again.
MARK EVANIER: I do not agree with that statement.
Q: I'm going to ask it one more time.
TOBEROFF:: No, you can't ask the same question three times.
QUINN:: I tell you what, you're right. Tell me why you don't agree with that statement, Mr. Evanier.
MARK EVANIER: Because I believe I know an awful lot about what happened at Marvel Comics during that period of time.
Q: Perhaps you weren't listening to my question.
MARK EVANIER: All right.
Q: I'll try it one more time in that context. I am not asking you what you believe you know. I'm asking you whether — isn't it a fact that since you weren't there you have no personal firsthand knowledge about what happened in the creation of comic books between 1958 and 1963? That's a fact, sir, isn't it?
TOBEROFF:: Asked and answered.
TOBEROFF:: You can answer one more time.
MARK EVANIER:: I don't agree with that statement — well, you added the word "personal" this time. If your question is did I watch them creating the comics, no, I was not there when they created the comics.
QUINN:: That's the question.
MARK EVANIER: All right. You could have asked it that way and saved us a lot of time.
Q: So you didn't see any story conferences that went on; correct?
MARK EVANIER: I was not present for story conferences that went on. In — (Speaking simultaneously.)
QUINN:: And you didn't see any —
MARK EVANIER: Excuse me, let me —
Q: I'm sorry —
MARK EVANIER: — let me answer the question.
Q: — go ahead, please.
MARK EVANIER: I was not present for story conferences that went on between 1958 and 1963.

(break in transcript)
Q: …foundation.
MARK EVANIER:: Um, as I said before, I was not present in the offices between '58 and '63. Does that answer your question?
QUINN::As long as you say yes my question is correct.
MARK EVANIER: I don't understand your question.
TOBEROFF:: You don't have to agree with his question. Just answer his question, and if you feel like you can't answer the question, don't . . .
MARK EVANIER:: I do not understand the question well enough to answer it, to give you a yes or no answer to it.
QUINN:: Since you weren't present as you just testified –
Q: — you could not have observed the manner in which Stan Lee gave plot outlines, gave scripts, gave direction to the artists, such as Jack Kirby, during that period of time 1958 to '63; true?
TOBEROFF:: Again, the question is assuming all sorts of facts that haven't been established, and lacks foundation.
QUINN: Read it back.
(The record was read as follows:
"Q: Since you weren't present as you just testified —
"Q: — you could not have observed the manner in which Stan Lee gave plot outlines, gave scripts, gave direction to the artists, such as Jack Kirby, during that period of time 1958 to '63; true?")
TOBEROFF:: Same objections.
MARK EVANIER:: Um, I don't understand — I don't understand the use of the phrase "during that time." If you are asking me did I observe it during that time, no, I did not observe it during that time.
QUINN::That's what I was asking you.
MARK EVANIER: I was not watching them do it — between 1958 and 1963 I was not there watching them do it.
Q: Right. Okay. And did you ever personally see any paychecks that Mr. Kirby received from work that he performed at Marvel that covered the period 1958 to 1963?
MARK EVANIER: No, I did not.
(break in transcript)

Q: Okay.
MARK EVANIER: When I first met Jack, the very first day I met Jack, he showed me things that he had submitted to Marvel which they had not purchased from him, either because they didn't want them or because they would not meet his terms for them.

He had ideas for new characters that he said Marvel could have if they gave him a better deal than he was currently getting, and they apparently did not do that. He also had pages he had prepared for issues of comics that he was working on with them, things he was selling to them, that they had rejected and not paid him for.

In fact, I asked him if I could have some of those pages, and he declined because he was still hoping that he could sell them to them again later.
QUINN:: Now you said that — first of all, remembering back to when you were 17 years old, would you tell the record precisely what the materials were that you claim were submitted and rejected.
MARK EVANIER: Well, there were several categories of these. Jack had drawn up a number of ideas for new characters. He had done these beautiful little presentation pieces, and he had shown them to Marvel and not received the kind of offer that he felt was appropriate for them. He had also prepared sketches of a revamp of the character Thor, which he was working on, he was doing stories of Thor for them at the time, a lot for Thor.

And he had an idea for revamping the Thor strip with a whole new approach, and he had prepared sketches to show what that would look like, and he had sent them to Marvel, and Marvel had said, "Well, we want to do this approach, but we want to just pay you the same rate we're paying you all along."

He said, "No, if you want to revamp Thor by my new idea, I want a better deal for that," and they had declined to pay him for that.

He also had pages for comic books that he had recently drawn that Marvel had purchased from him where they had rejected certain pages and sent them back to him, and they had not paid him for them, he said. And he had a pile of approximately a hundred of those pages, which I thought were, you know, beautiful, wonderful work, and I asked him, "Oh, could I have one of those?" And then I asked him — and he said, "Well, no, I might find a way to sell them to him later."

(break in transcript)
Q:. "Evanier," I'm sorry, Mr. Evanier. s you sit here today, can you recall the names of any of the characters that Kirby had sketched for Marvel that they didn't accept?
TOBEROFF:: Misstates his testimony.
MARK EVANIER:: Yeah, my testimony was that Jack had — well, we're compounding some things here. Jack had a pile of pages that had been rejected for Thor comics or Captain America comics or Fantastic Four comics, other stories, materials that he was — books in which his work was regularly appearing at the time.

He had that pile of pages. So that would be pages with Captain America and Thor and the Fantastic Four as such on them. He had another pile of pages of present presentations of material — new characters. Some of those characters later, when he used those concepts in other comics at DC, for example, one of the characters was known as Darkseid, D-a-r-k-s-e-i-d; one of them was known as Mr. Miracle; one of them was known as Orion, 0-r-i-o-n; one of them was known as Metron, M-e-t-r-o-n.

And he had submitted some of those to Marvel. I don't know specifically which ones, but he said that he had shown these to Marvel, people at Marvel, and they had said, "Oh, we want to publish those," and he said, "Well, you're not getting these for the same crummy page rate you pay me. I must have a better deal for these," and they said, "No, were not going to give you anything above what we pay you now per page."

He also had to the pile of presentations for a new version of Thor, and he wanted — and he also had a presentation for a new version of Captain America. And, again, he submitted those to Marvel, or showed them to the people there, and they said, "We want to use this material, we just don't want to pay you any more for it."

So the use of — my reticence to use the word "reject" here is because some of that material was desired by Marvel, they just couldn't make a deal or were unwilling to make a deal. Some of the material was rejected. So I think I'm answering your question.
Q: Fine. And you know what, I'm going to separate out the two categories. One category is the sketches and other ideas which Marvel you said – and this is all based on what Mr. Kirby told you; correct?
MARK EVANIER: What he told me and what he showed me. And I later discussed some of this with people at Marvel also.
Q: Who did you discuss this with, people at Marvel?
MARK EVANIER: With Stan Lee, and I talked to Stan a lot about Jack over the years and even when I first met him.
Q: And did you specifically discuss with Stan Lee these particular characters or sketches that you just identified?
MARK EVANIER: No, I did not discuss those specifically with Stan.
Q: And other than what you just testified, can you remember the names of any other characters that fall into the category of having been discussed with Marvel, and they indicated they weren't willing to pay anything additional for them?
MARK EVANIER: There was a character called The Black Sphinx. Sphinx as in "Sphinx." There was a character called Lightray, all one word. L-i-g-h-t-r-a-y. There were some unidentified characters that didn't have names. They were designs that he wanted to incorporate — or he hadn't named them yet.
There was a great robot character that -¬really impressive design of a robot that I don't think he named.
Q: And none of these were ever published by Marvel; correct?
MARK EVANIER: No, they were not.
Q: And I take it that some of them eventually ended up at DC; is that right?
MARK EVANIER: At DC and other places, yes, other companies.
Q: Now focusing on the "other" category, the category that you say Mr. Kirby told you about, the rejected pages, what did Mr. Kirby tell you about those?
MARK EVANIER: He showed me pages that — well, he showed me pages that were from old — that I recognized, and which he confirmed were recent issues of Thor or Fantastic Four — there might been some Captain Americas in there — pages that Marvel had sent back to him because they wanted something different, they wanted the pages changed. In some cases he had erased pages and sent them back, but in some cases it was easier for him or necessary for him because the requests for revision were so extensive that he drew on fresh paper.

He also — and he showed me — not on my first visit with him, but on a subsequent visit — he showed me a story in progress that he had to do extensive revisions on in order to get Marvel to accept.
Q: Now you indicated that he had to do extensive revisions. Did he tell you when he submitted these who he submitted them to at Marvel?
MARK EVANIER:. Um, I believe — I don't know that he told me specifically. I just assumed they were submitted to Stan Lee.
Q: To the editor?
Q: And was it your understanding that from time to time the editor, whether it was Stan Lee or later, whoever replaced Stan Lee, that they would ask for changes in the work done by Mr. Kirby?
MARK EVANIER: Well, first of all, if we're talking about the material he showed me in 1969 —
(Speaking simultaneously.)
QUINN:: Yes, let's focus on that material.
MARK EVANIER: — then there would not be subsequent editors —
Q: Fair enough —
MARK EVANIER: — because Stan was the editor –
Q: Fair enough.
MARK EVANIER: Let's see — now can I have the question again?
Q: Sure.
MARK EVANIER: All right.
Q: Based on what Kirby told you, was it your understanding that from time to time Stan Lee, the editor, would ask Mr. Kirby to make changes in some of the artwork he submitted?
MARK EVANIER: Yes. He would also just reject, say, "I don't like the end of this story. Do something different with it."
Q: And, in fact, Mr. Kirby would then go back and make a change or come up with a new ending; is that fair?
MARK EVANIER: Yes, that is correct. I might also add that Jack also complained to me that pages were being rejected, but not returned to him; that the art was — he was not getting the pages back that he felt he was owed.
Q: When did he tell you this?
MARK EVANIER: 1969, when I first met him.
Q: All this time when you were 17 years old?
Q: Okay.
MARK EVANIER: And he subsequently talked about it in later years.
Q: And it's correct, is it not, that after the changes were made they would be resubmitted for approval by Mr. Lee?
MARK EVANIER: Jack would redo the material and send it back.
Q: And when he redid the material and sent it back, he would get his page rate; correct?
MARK EVANIER: For the — yeah, for the — yes.
Q: For the redone material.
MARK EVANIER: Well, he got the page rate for the story. I mean, Jack's complaint was that when he — if he had to draw 26 pages for a 20-page story, he was only paid for 20 pages.
Q: And that's a complaint he made to you?
MARK EVANIER: Yes. And his wife complained about that a lot also.
Q: Let me see if I have this right. He submits a story, and Lee says to him, "You got to change four pages" –
MARK EVANIER: Yes. Excuse me, let me amend that. I don't know that Stan would specifically say, "Change four pages –"
Q: Okay.
MARK EVANIER: — he might just say –
Q: "I don't like this"?
MARK EVANIER: — "I don't like the ending of the story. I want something else."
Q: Fine. And Kirby would go back, redo the ending of the story, resubmit it and then get paid for the story?
Q: Okay. Now when did you meet Stan Lee for
(break in transcript
MARK EVANIER: …and that that is how the comic was created.
Q: Do you agree with Mr. Lee's statement — it is also his testimony, but let's put it aside — you're familiar with the statement that the Fantastic Four came about, at least in part, because of a discussion that he had with Martin Goodman — by the way, do you know who Martin Goodman is?
Q: Did you ever meet him?
MARK EVANIER: I shook hands with him in a hallway very briefly.
Q: Many, many years ago?
MARK EVANIER: 1970, the same meeting.
Q: Same meeting?
MARK EVANIER: It was not the same day actually. It was a day or two afterwards.
Q: Other than shaking hands with Mr. Goodman, you have never had a substantive conversation with him; correct?
MARK EVANIER: That is correct.
Q: Go back. Do you agree with Mr. Lee's statements that the Fantastic Four, at least in part, came about as a result of discussions that Mr. Lee had with Mr. Goodman in connection with the idea of coming up with a group of superheroes?
MARK EVANIER: My understanding is that Mr. Goodman said to Mr. Lee, "I see DC Comics has some very decent sales on what is called the Justice League of America. We should try a comic like that."

Mr. Lee, in many interviews, said as I related, that Mr. Goodman had played golf with Jack Leibowitz, who was the head of DC Comics at the time, and that Leibowitz had bragged about the sales of Justice League, and that that prompted Mr. Goodman to come back from the golf game and say, "We should – we should create a comic like that."

Mr. Lee has told this story on many occasions. Mr. Leibowitz, when he was interviewed, said he never played golf with Goodman in his entire life. So based on that, I tend to disbelieve at least that part of Mr. Lee's story.
Q: So you think Lee is just lying about it?
MARK EVANIER: No, I think he just is being casual about the record.
Q: Have you seen the document that is — I guess was it a plot outline — a document that I guess it has come to have the term "synopsis" with regard to the first issue of the Fantastic Four?
MARK EVANIER: Yes, I have.
Q: And are you — when did you first see that
(break in transcript)
QUINN:: Mr. Evanier, just to close this particular loop, so it was your understanding, with regard to the Fantastic Four, that Mr. Kirby and Mr. Lee sat down beforehand and discussed the plot and the storyline, before it was published, before — let me rephrase that.
MARK EVANIER: All right.
Q: Was it your understanding that Kirby and Lee sat down to discuss the plot and the storyline before Mr. Kirby actually began to draw the characters?
MARK EVANIER: Yes, that is correct.
Q: Okay.
MARK EVANIER: I actually didn't —
Q: I'm sorry —
MARK EVANIER: I didn't finish my answer before the break there.
Q: Go ahead.
MARK EVANIER: You were asking me why I thought that the synopsis had followed a meeting with Jack's giving his input.

Another reason is that the storyline of Fantastic Four is very similar in a number of ways to a comic Jack had done previously called the Challengers of the Unknown, very similar structure to the characters.

It feels an awful lot more like Jack's earlier work than anything that Stan had done to that date. So I find it very difficult to believe that Jack did not have input into the creation of the characters prior to the — that synopsis, whenever it was composed.

And, also, I have the fact that I talked to Stan many times, and he told me — and he said it in print in a few places — that he and Jack had sat down one day and figured out what the Fantastic Four would be.
Q: And they discussed the plot before they actually — the drawings were done?
MARK EVANIER: They discussed the plot before the alleged synopsis was done also.
Q: And was it your understanding, with regard to these other characters — and we can go through all of them, 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?
Q: Now — and at least in part, that understanding is based on what Mr. Kirby told you?
MARK EVANIER: Mr. Kirby's accounts to me are part of my understanding.
Q: Right. And some of Mr. Lee's statements to you are part of your understanding?
MARK EVANIER: That has also contributed to my understanding —
Q: What you read is part of your understanding?
QUINN: Let me show you a document we will mark this as Kirby — Evanier 2. And this was a document that I believe was produced from your files — and the reason I say that is, as you will see, it has your initials, production initials on it.
TOBEROFF:: He's referring to the "ME" at the bottom.
MARK EVANIER:: Good, I get to be a code number.
(break in transcript)
MARK EVANIER: …sequence that was a story — roughly concurrent, they were all from about the same period of time, which would have been '66 or so. '66 or '67.
Q: So it's fair to assume that at least with regard to some issues, in fact, Stan Lee did prepare plot outlines?
MARK EVANIER: These were all plot outlines that were notes for meetings where Jack had input, that they said in them, "As we discussed in this," and such. And I also do not know for sure that these were Stan Lee prepared. They were filling the role that Stan allegedly performed, but they may have been typed up — written by an editorial assistant who sat in the meetings for all I know.
Q: But you did refer to them here as "Stan Lee plot outlines"?
MARK EVANIER: Yes, yes, I was being casual. They were Stan Lee plot outlines, even if they were ghosted by somebody else or typed up by somebody else, but they were not necessarily all Stan's work.
Q: And it's your understanding that Lee and Kirby would have discussions, and then Stan Lee, or one of his editorial assistants, would then create a plot outline for Kirby to use in connection with his artwork?
TOBEROFF:: Objection. Overbroad. Which
(break in transcript)
Q: …attention to that kind of thing." Was that your understanding of how Jack operated?
TOBEROFF:: Where is that?
QUINN: Last sentence of the first paragraph.
MARK EVANIER:: Jack paid very little attention to who inked his work, yes, that's correct.
QUINN: And two pages later there's a question, "Did Jack really have a bad memory?" And you write: "By common definition yes … but I think it was more a matter of his mind wandering in 19 directions at once. Every so often, he would surprise me with some (apparently) crystal-clear recollection of 30 years before."

And that was your understanding with regard to Mr. Kirby's memory?
MARK EVANIER: Well, this is — first of all, this is something I wrote about 10 years ago. And I probably would phrase it differently today. But Jack did – you know, he made mistakes, like a lot of people do.
Q: When you're writing these answers to Frequently Asked Questions, you do try to be accurate, don't you?
MARK EVANIER: Yes. Yes, I try to be accurate. I am not speaking in lawyer language.
Q: No, you're speaking in people language. I understand that.
MARK EVANIER: I'm speaking in language that I think will be understood by the kind of people who would come to the website looking for information on Jack. Are we done with 11?
Q: We're done with 11, and we're going to skip 12.
Q: Could you go to 13: And specifically there is a question, "Did Jack design Spider-Man's costume?" Do you see that?
Q: And you answered, "No, Steve Ditko designed the distinctive costume we all know and love." And that's your understanding; right?
Q: And then in the next paragraph you make reference to (Reading): "But for all the things Jack did well, he was not great at being interviewed. He occasionally got carried away or confused. There– there was one interview where, without realizing what he was saying, he said he created Superman. Needless to say he never really believed that, but somehow that is what came out of his mouth." You wrote that, didn't you?
MARK EVANIER: Yeah. Actually, when I originally wrote it there was another paragraph after this — which I guess I deleted, because it is not in here — talking about how Stan Lee used to occasionally refer to Superman.

I was trying to point out that both guys referred to Superman erroneously in print.
Q: This is what you wrote?
MARK EVANIER: I wrote — yes, I'm just saying there was another paragraph here that I guess I deleted it.
Q: You deleted that other paragraph —
MARK EVANIER: At some point, yes.
Q: Then you go on later to say: "In at least one such conversation" — this is a couple lines down — "he" referring to Jack — "misspoke and claimed he designed the costume for the final version of Spider-Man." Do you see that?
Q: And he was mistaken about that, wasn't he?
Q: And then at the last sentence you say: "In this case, however, the cover was drawn after Stan had rejected one drawn wholly by Ditko"; right?
Q: And originally it is your understanding that with regard to Spider-Man, Lee had initially assigned it to Jack Kirby, and then he switched it to Ditko; correct?
MARK EVANIER: Originally Jack drew Spider-Man, and then they stopped Jack, and Ditko took over.
Q: And that was at Stan Lee's request, wasn't it?
MARK EVANIER: I would assume so.
Q: And on the next page you wrote — actually, in the bottom of the next page — or bottom of this page under, "What did Jack do on the first stories of Iron Man and Daredevil," you wrote, "The first Iron Man story was wholly drawn by Don Heck"; correct?
(break in transcript)
MARK EVANIER: I think there were a couple of other reasons, yes.
Q: What were the other reasons that you think that they did that?
MARK EVANIER: I think they liked the idea that you were dependent on them, that you worked — that a freelancer was at their financial mercy.

And if you worked out in Los Angeles there seemed to be always this possibility you might get — sell work to other people or get other sources of income and would not then be so dependent on the company's page rates.
Q: Looking at what is page 66 in this article, in the middle column —
Q: — you say, referring to how it was until recently (Reading): "This was the way it was in comics until very recently." This was in 1984, so —
Q: (Continuing): "If you had a great — if you had the greatest idea for a comic book, the new Spider-Man, there was no American comic book publisher to whom you could take the damn thing and share in its success. No one. They wouldn't guarantee you creative control of it, they wouldn't guarantee you a continuing credit on it, they wouldn't guarantee not to fire you and bring in someone else." That was your understanding; correct?
Q: Jones, the questioner, says: "Wasn't this negotiable?" And you say, "No, they had a policy." Correct?
MARK EVANIER: Yes, I said that.
Q: That was your understanding?
Q: In the next paragraph — the next column, I'm sorry, there is a reference to — you say: "I was there for some of this. DC's publisher was sitting in a very expensive suite at the Beverly Hills Hotel telling Jack that DC could not pay royalties, they could not and would not ever give anyone a profit participation." Do you see that?
Q: And then you go on to say: "I heard executives at Marvel essentially saying the same thing," and that was your understanding at the time; right?
Q: They wouldn't pay royalties, they wouldn't give a profit participation, would they?
Q: Bottom of page 69, first column, very bottom, you talking (Reading): "He's tough for me to talk about" — referring to Jack — "because we're practically family. In fact, you know, Jack has a bad memory at times. I have known him over 15 years, and he always introduces me to people as Mike, and he sometimes introduces me as his son." So actually he did it more than once, didn't he?
MARK EVANIER: No, I think he only did it once.
(break in transcript)
QUINN:: Bottom of page 78, the third column —
Q: — you state: "I can say with some authority — and with quotes from both Stan and Jack to back me up and much existing paperwork — that most of the Lee and Kirby comics were done as follows. Stan and Jack sometimes get together and talk out the direction of the story, and then Stan would sometimes type up a plot outline incorporating both their ideas. That's sometimes, not always. At some point, Jack would go to the drawing board and pencil out 20 pages or whatever, writing notes in the margin as to what was going on. If you come across Kirby original art of the period, you can see his notes in the margins explaining to Stan what was going on. Now, in some cases Jack would have a discussion with Stan. In some cases, he'd have a short plot outline. In some cases, he'd have absolutely nothing at all; he'd just pencil the issue out, and when he handed it in, Stan would find out that the story was about. Stan would then take the pages home and write the copy and that would go — that would go in the balloons. In some cases he would take Jack's marginal notes and turn them into presentable speech and use them. In other cases, he would deviate from what Jack intended, as much as anyone can deviate when the page is already drawn, and the poses and attitudes of characters are set."

Now was that your effort to describe what came to be known as the "Marvel method"?
MARK EVANIER: That was my attempt to describe the way Lee and Kirby worked at the time.
Q: And did that particular description come to be known in comic book circles as the "Marvel method"?
MARK EVANIER: Loosely, yes.
(transcript ends)

Deposition of MARK EVANIER Los Angeles, California, December 6, 2010

(Acting for Marvel – James W. Quinn, David Fleischer and Randi W. Singer, acting for the Kirby's, as usual, Marc Toberoff)

Q: …and Mr. Williamson?
MARK EVANIER: Maybe an hour.
Q: And in preparation for your deposition today, did you review any documents apart from your report itself?
MARK EVANIER: I reviewed the subpoena of I don't know if — I don't know if it counts for appearance today, but I reviewed the subpoena of materials to be produced.
Q: Any other documents?
Q: Did you, in preparation for your deposition today, review any deposition transcripts in this case?
Q: Now, I know we touched on this briefly in your initial deposition, but could you tell us again how you came to be retained as an expert in this matter?
TOBEROFF:: Asked and answered.
MARK EVANIER: Mr. Toberoff asked me to be an expert witness in this matter.
Q: And when approximately did that occur?
MARK EVANIER: I don't remember.
Q: Was it — give me your best estimate. Was it a year ago?
MARK EVANIER: I don't remember.
Q: Do you recall whether it was before or after
(break in transcript)
Q: …and comic book characters published by Marvel between '58 and '63 as well as his relationship with Marvel during this key period?
Q: Okay. That's the opinion I'm referring to. Got it?
MARK EVANIER: No, no. Let me — the opinion is not on that page you're citing. The opinion is throughout the report. Are you asking me to how do I — how did I arrive at the opinion stated throughout the document that are summarized on this page?
Q: Yes.
MARK EVANIER: All right. Okay.
Q: Yeah. Not a trick question.
MARK EVANIER: No. I'm just trying to answer — I was trying to figure out why you were calling my attention to that one sentence.
Q: Because it summarized your opinion.
TOBEROFF:: Objection. Mischaracterizes the report. It doesn't summarize his opinion.
MARK EVANIER: The opinions in this report were formulated by my calling upon years and years of studying Marvel Comics, reading Marvel Comics, interviewing and talking to people who made Marvel Comics, visiting the Marvel offices, discussing Marvel history with other people who have done similar investigations and interviews, reading articles about Marvel. It's — the opinions are based on 40 years of — more than 40 years of following Marvel Comics, probably 50 years.
Q: And specifically you referred to reviewing or — let me go back. Could you tell me with some level of specificity the people interviews — take it back. Strike the question. In connection with preparing the report itself, did you conduct any interviews in order to prepare the report?
MARK EVANIER: Did I conduct any interviews specifically for towards this report?
Q: Yes.
MARK EVANIER: No, I did not.
Q: And specifically with regard to the preparation of the report, did you review any documents or reference works in connection with preparing the report?
MARK EVANIER: I got some dates out of my own book on Jack, and I think I looked some up on the Internet to just verify my recollection of dates and spellings.
Q: So other than checking on some dates and spellings from your book on Jack Kirby and other information available on the Internet, you didn't review any other documents that are reference materials; correct?
MARK EVANIER: Let me think. Well, I clipped some of my qualification from a bio of myself which was easier to just paraphrase or transcribe some of that. I think I cut and pasted some of my own credits out of another bio of myself I had on my computer.
TOBEROFF:: Take your time in answering the question.
MARK EVANIER:: Okay. I — well, I had taken when Mr. Toberoff told me of the assignment here, what he needed from me. I took notes on my computer as he was telling me on the phone, and then that was the file I used. In other words, I had jotted that down, then I basically I expanded my notes on top of that. I opened the file that had — he had written. He had said – he told me a couple little facts about the case, and I had took that, and then I took that — it's not a separate document, it's — I took that, opened that file on my computer, and then I wrote the expert report in that file using, you know, material that was above and below to –
Q: What was the material?
MARK EVANIER: Well, like he told me about the dates of the some checks that were supplied that were in evidence, and he told me we have these checks from these periods. And so I had the dates of those checks in that file so I could reference them here.
Q: Have you ever seen a check from the period between 1958 and 1963?
MARK EVANIER: From '58 and '63? No.
Q: That would be the part, the period, that you say in your report is the key period; correct?
MARK EVANIER: That is my understanding of the case is that the main focus is on that period.
Q: What were the other facts — and I use that in quotes — but what was the other information that Mr. Toberoff supplied to you in connection with the preparation of your report?
MARK EVANIER: He didn't supply much of anything. I took — while he was telling me what he needed, I made some notes to myself of things that I wanted to cover that I thought I should cover that occurred to me while I was talking to him. I wrote "original art" and a couple other key words. He didn't supply — let me think if I can –what else he supplied me, if there's anything else. Well, I wrote — as reference, I looked at the expert report that I had filed in the Superman matter just for the form to cover the format of an expert report, and the headings such as the compensation in prior cases and publications.
Q: I'm not focused on, you know, the form. I'm asking whether in addition to what you've already testified about can you think of any other documents or reference materials that you utilized in the preparation of your report?
MARK EVANIER: I don't believe so. No.
Q: And you mentioned something about some visits to Marvel offices. Did you visit the Marvel offices in connection with your preparation of your report?
Q: When did you make visits to the Marvel offices?
MARK EVANIER: Oh, the first time was around the July 4th weekend of 1970. And then I probably visited the office every two or three years after that.
Q: And in the course of those visits, did you interview people in connection with what they did at Marvel?
Q: Who?
MARK EVANIER: That's a very long list. I talked to – by interview, are you meaning informal conversations or formal conversations?
Q: Either way. Did you speak to Mr. Lee, for example?
MARK EVANIER: Many times. Yes.
Q: Mr. Romita?
Q: And Roy Thomas?
Q: Any others?
MARK EVANIER: Probably 50 to 100 others.
Q: When was the last time you visited the Marvel offices?
MARK EVANIER: About five years ago.
Q: In connection with any of your visits, did you make any notes or obtain any documents relating to your visits?
MARK EVANIER: I made some notes occasionally after to remind myself — not notes at the time. I made some notes afterwards to jot down things that I was wanting to remember.

By visits to Marvel offices, are you including things like going out to lunch with people? I probably talked to these people more at lunch across the street or down the street than actually at the office.
Q: This is over a long period of time; is that right?
MARK EVANIER: Since 1970.
Q: Now, I think you mentioned having discussions
(break in transcript)
MARK EVANIER: …Colan, John Buscema, Saul Buscema, Marie Severin. Did I say Roy Thomas? Gary Friedrick, Alan Brodsky, Sol Brodsky, Janice Cohen, John Verpooten, Tony Mortellaro, Herb Trimpee, Chick Stone, Joe Sinott, Frank Giacoia, Mike Esposito, Barry Smith.

These are just people who did work for Marvel or did freelance work for Marvel. I have talked to people at other companies about Marvel history.

Getting back to people at Marvel, Len Wein, Marv Wolfman, Steve Englehart, Steve Gerber, Gerry Conway, Dan Adkins, Vince Colletta, Syd Shores. I apologize. You're going to have to look up a lot of these on the Internet to find the spellings.
George Tuska, Johnny Craig, Archie Goodwin. Did I say Jim Shooter? Tom DeFalco, Mark Gruenwald, Carol Kalish, Peter David.
Q: That's fine.
MARK EVANIER: I've got about another 300 if you want to take the time.
Q: No, we can move on. But I'm correct that in connection with the actual preparation of your report, you didn't actually discuss — have the interviews with those people; correct?
MARK EVANIER: No. And quite a few of those people are deceased.
(break in transcript)
MARK EVANIER: …briefly met Martin Goodman. But between '58 and '63, I think — well, Stan Goldberg was partly on staff during that time.
Q: How about Larry Lieber?
MARK EVANIER: Larry Lieber was freelance during that period, I believe. I don't believe he was on staff.
Q: But he was working from Marvel between '58 and '63?
MARK EVANIER: He was in the freelance category, I believe.
TOBEROFF:: You can continue with your answer because he asked for both freelance and at the office.
MARK EVANIER: In freelance, people who worked for Marvel –excuse me. People who did freelance work for Marvel during '58 and '63 would include Jack Kirby, Steve Ditko, Don Heck, Dick Ayers, Gene Colan, Vince Colletta, Russ Heath, Stan Goldberg, Al Hartley. Leaving some people out. These are people who I spoke to. John Buscema did, I think, a few jobs for them during this period. Bill Everett did a few jobs for them during this period. Joe Sinott, Larry Lieber, Don Rico. I think George Roussos. I'm missing somebody. Paul Reinman, Artie Simek, Sam Rosen.

I think Marie Severin did some freelance work for them during this period, maybe a little later than '63. There's probably another name or two –
Q: Okay. That's fine.
MARK EVANIER: — I can't think of at the moment.
Q: That's fine. Now, when you were first retained by Mr. Toberoff, what did he say to you about specifically about the opinions that he wanted you to render?
TOBEROFF:: Lacks foundation. Assumes facts.
MARK EVANIER: Well, I think the issue of me doing an expert report was first mentioned by The New York Times before Mr. Toberoff approached me. I declined to be interviewed by The Times, and in an article they said Evanier would not — some form of Evanier didn't speak to us because he'll probably be a witness in this case or an expert.

And I believe Mr. Toberoff said something like, Well, I guess The New York Times was ahead of us. Then he asked me to prepare an expert report, and he said that he wanted me to cover — he wanted me to address the relationship — the working relationship that Jack had with Marvel, how he worked for them, what his relationship to the company was.
(break in transcript)
Q: Well, did you go to any reference work or textbook or publication of any kind to check to see whether or not the conclusions you reached were, in fact, reliable?
MARK EVANIER: I don't know of any reference book or source like you're describing that would do that. I derived a lot of my knowledge about Marvel from books, as I mentioned.

There is very little written and published about a lot of this material. A lot of what has been published about it was written by me. So if the question is, did I check my opinions against published works by others, I don't think there are any published works by others that would cover this material.
Q: Okay. And my question — and that's close, but my question is: Is there any way that you can think of to test the reliability of the opinions that you reached or what you say is your understanding of what occurred back in '58 through '63? Any way to test that?
MARK EVANIER: Let me think for a minute. I don't know of any way to test this kind of thing.
Q: Take a look at your report. And I want to point you to certain things that you wrote. Let's look at page 5, for example. Starting at the bottom of page 4, and then over to page 5. And you're talking about the period, I think, in the 30s to the 60s where you say that "the comic book industry was very much a fly-by-night industry." Do you see that?
Q: And what did you mean by that?
MARK EVANIER: Comic book publishers were — well, the industry was born out of leftovers from the pulp magazine business, and the sheet music business, and a few other publications. And publishers were not very stable. They came and went. They were small operations. They did not project an air of stability to their freelancers. A lot of people who worked for comic book companies weren't sure they were ever going to get paid. A lot of checks bounced.

There was always — there was often a sense that the business was always a year from ending. During the 1950s, in particular, publishers came and went at an alarming rate. Over the years I heard many, many stories from artists and writers that they would go to an office to turn in work, and the company wouldn't be there anymore. Or they would get there and find out that the books that they were submitting for had been canceled. They started up titles and ended them at an alarming rate.

If you go through even the major publishers in that period, there are all these incidences of the company, you know, clinging to the window ledge by its fingernails, just barely holding on, threatening to close down, closing down sometimes and reopening a couple weeks later. People being paid in cash. People being paid under the table, kickbacks. It was not a mature business in the sense that the companies had stable foundations. There were companies that didn't even have physical offices. Somebody edited a line of comics out of their garage.
Q: And how did you come — I'm sorry. You can finish. I'm sorry.
MARK EVANIER: Well, just that the first generation of comic book publishers, until you had corporate takeovers in the late 60s, were small operations from — generally owned by men who had stumbled into publishing. A large number of comic book publishers were cases where someone had started a company, gone bankrupt, and the printer had acquired the assets of the company and kept it going in order to keep their presses rolling.

So that never struck me as a mature way to have a publishing firm when you're putting out product just to keep the presses operative because you've got people there, printers there to pay. And the companies were frequently pleading poverty, lowering rates. It was a very — it was a business that very few people bet would be there in the future. It's amazing that its still there. Even when I got into comic books into the early 70s, there were people, prominent people, in the industry predicting the industry had less than five years to live and predicting demise. And then you still had — would have frequent cases where you came in one day and they'd canceled half the line or laid off half the staff. And there were problems meeting payroll sometimes, problems paying people.

So when I say "fly-by-night," that's kind of a way of saying the industry was not very well grounded in –
Q How did you come to find out all these facts?
TOBEROFF:: Asked and answered.
MARK EVANIER: All right. Well, since about 1966 or -67, I've been talking to people who did comics. I was fascinated by comic books. And I have interviewed just about everybody I could meet who ever worked in comic books, including, you know, people who ran xerox machines or photostat cameras.

And whatever was written about comics, which for a long time was not much, I bought, I read. I read all the comic books. I still have one of the largest collections around. And I have been going to comic book conventions since 1970. There's this annual convention in San Diego that's now — they've had 41 of them. I've been to all 41 of them. And at most of them I've conducted panels and seminars and interviewed people extensively.

Because there has not been as much written about comics as there probably should be, the history has been mostly oral. And I've been fortunate to have interviewed a lot of people who worked in comic books in the early days, frequently the only interview they ever gave.

The convention has been very nice. If I tell them they've located an oldtimer who worked in comic books in the 40s who hasn't been around the industry for a while, he's never been to a convention; they'll send him a first class ticket and fly him to San Diego to be there. And I'm usually the person who interviews that person. I can give you examples of that, if you want. But at the convention, most of the panels that are about comic book history are conducted by me. And so it's been kind of since the late 60s it's been kind of an interest of mine. And even before I thought I might work in the comic book field, I was fascinated by it.

And just, you know, when I was in high school, I found out that one of the kids in my chemistry class had a father who had worked in comics. And I asked him, Could I meet your father? And he didn't understand why I wanted to, and his father didn't understand. But I went over one day and spent the afternoon talking to his father about working for publishers in the 1950s. His father had not drawn a comic book since, well, in at least 10 years. I just wanted to know what the business was like, how he was treated, how he did what he did, how the work was produced.

I don't know if I'm answering your question.
Q: Yeah. That's fine. Okay. You mentioned at the top of page 5 in that connection that: Comic book publishers did not see any value in the product, in their product, beyond monthly sales figures. What's the basis for that statement?
MARK EVANIER: Early on, this is something that was told to me by the artists and the editors and people I talked to. Jack Kirby talked to me greatly about that. Jack was in comics almost from the beginning. And he was by no means the only one who told me this, but he used to say that these guys had no imagination; that the publishers all they thought about was this month's sales and that they didn't realize that they were — that they had the underpinnings of a media conglomerate. Didn't use the term at that time, obviously.

But these characters that they were doing could be exploited in other fields. You know, he would point to, in fact, Walt Disney was not interested in just making Mickey Mouse cartoons. Walt Disney was interested in expanding Mickey Mouse into all different fields and doing toys and games and comic books and comic strips and eventually a theme park. Whereas someone like Martin Goodman at Marvel, who he cited frequently, was he thought was a man of limited vision, limited imagination.

And he told stories about how he would go to Martin Goodman and tell him what Marvel could be, how it could expand. This is even before it was called Marvel. And he got back very little response. It was just – he did not — he always thought that Martin Goodman grossly undervalued Marvel when he sold it in the late 60s.
Q: Now, your testimony is or your opinion is that publishers didn't see any value in the product beyond monthly sales figures, but you previously testified, I believe, and written that during this period of time the publishers also would not negotiate with artists with
(break in transcript)
Q: …period of time. You would agree with me, would you not, that under these circumstances a man like Mr. Goodman was — did have significant financial risk as a result of the nature of the industry?
MARK EVANIER: I would not necessarily agree with that depending on the definition of "significant."
Q: Well, he was at financial risk, was he not, as to whether or not a particular comic book would be successful; correct?
MARK EVANIER: He was at some financial risk, probably. Yes.
Q: You indicated here, among other things, that he borrowed funds. That would be a financial risk, wouldn't it?
Q: And if a particular line of comics failed, that would — he would incur financial risk as a result of that, wouldn't he?
MARK EVANIER: Some financial risk. Yes.
Q: And, in fact, as I believe you testified, publishers like Mr. Goodman often had comic books that were not successful and that they had to discontinue; correct?
MARK EVANIER: Yes. I would phrase it slightly differently than that, but I would say they often had books that they discontinued because they believed they were not successful or would not be successful. One of my key opinions about Mr. Goodman is that he was frequently wrong about that.
Q: But — I will come back to that.
MARK EVANIER: All right.
Q: You would agree, would you not, that if a book had to be discontinued or was discontinued, it was because the publisher concluded, rightly or wrongly, that it wasn't going to make money?
MARK EVANIER: There were occasional other reasons to discontinue a comic.
Q: Putting aside the other reasons, one of the reasons for sure was that the publisher made a determination that he couldn't make money with a particular comic book line; —
Q: — correct?
MARK EVANIER: Hold on. Putting aside the other – putting aside the other issues — I'm sorry. The question is confusing me.
Q: You testified that —
MARK EVANIER: It sounds like you're asking me: Aside from the fact that — aside from the cases that he discontinued because he wasn't making money wasn't the only reason he discontinued wasn't that he was making money.
Q: I will rephrase it.
MARK EVANIER: Let me try this. Maybe this will make it simpler. Publishers made determinations to discontinue books. Sometimes they were forced to discontinue them by the distributors for content reasons. Sometimes they were forced to discontinue them for rights reasons. Sometimes they had opinions that the book would not — did not sell or would not sell. Sometimes they were right; sometimes they were wrong. There were a myriad of reasons to cancel a comic.

But if your question is: Did they cancel books because they thought they were losing money? Then the answer is: Yes, that was a very frequently a reason.
Q: Okay. That's fine.
MARK EVANIER: All right.
Q: You mentioned that Mr. Goodman borrowed money in order to set up his company. Do you happen to know who he borrowed it from and how much?
MARK EVANIER: No. I don't know that.
Q: And you also had mentioned that you made notes after having been to Marvel offices from time to time to put down things that you wanted to remember. Did you keep those notes?
MARK EVANIER: Not to this day.
Q: Looking at your report again on page 5. Let's
(break in transcript)
Q: You never heard that before?
MARK EVANIER: I never heard that he fired them because they were working for other publications. No.
Q: What —
MARK EVANIER: No, I did not.
Q: Did you ever hear that they were working for other publications?
Q: At the same time they were working for Marvel?
Q: Go back to page 5 for a moment. The top paragraph. First full paragraph. You write, "There was no expectation that it would ever be reprinted and little that the characters would be merchandised or exploited in other media." What was the basis for that conclusion?
MARK EVANIER: The way it was described to me by people who were working there in the comics at the time.
Q: In fact, a number of publishers did reprint their books, did they not, back in this period of time?
MARK EVANIER: What period are we talking about?
Q: We're talking about up through the 50s and 60s .
MARK EVANIER: There was very little reprinting done of
(break in transcript)
MARK EVANIER: There was a lot of romance material for Crestwood. There was a book called Young Romance. There was a book called Strange Worlds of your Dreams. There was also a book called Young Love. There was a book called Young Brides. Do you want more than that?
Q: No, that's fine. With regard to going back to this issue of reprints and merchandising and so forth. Am I correct that, in fact, there were merchandise that was sold with regard to Captain America back in the 40s and 50s?
MARK EVANIER: In the 40s, very little.
Q: There was some?
MARK EVANIER: There was a Captain America fan club that they advertised in the comics and sold. You could get – you could join the Captain America Sentinels of Liberty, and you could get a pin and a badge and a certificate for a dime.
Q: What about Superman? There was – Superman was merchandised back in the 40s and 50s, wasn't it?
MARK EVANIER: Superman was merchandised. Yes.
Q: Now, in connection with the opinions in your report, is one of the bases for reaching those opinions or reaching the understandings that you had — the personal interactions you had with Mr. Kirby?
Q: And with the Kirby family, Mrs. Kirby?
Q: Now, did it — you've testified previously that, I think in the prior deposition but also in other places, that Kirby often had some poor memory about things that had occurred in the past as to things that were created or not created.
TOBEROFF:: Misstates prior testimony.
MARK EVANIER: I don't think you're characterizing my testimony correctly.
Q: Okay. What was it that — what was your understanding of — strike that. It's a fact, is it not, that from time to time Jack Kirby would make statements with regard to the creation of characters that turned out to be incorrect; isn't that right?
MARK EVANIER: No. Once in a while there was — there were a couple occasional incidents, and he corrected himself when he realized his mistake.
Q: Okay. The record will speak for itself. Did it ever occur to you, based on your interactions with Kirby and Roz, that his version of what had occurred back in 1958 through 1963 may have been incorrect?
MARK EVANIER: It occurred to me that it might have been, and
(break in transcript)
MARK EVANIER: …versions Mr. Kirby has given. Let me say that again. Mr. Kirby's version was always consistent. Mr. Lee's version has changed from time to time, and Mr. Kirby's version is in conflict with some of the accounts Mr. Lee has given.
Q: And you chose to find Mr. Kirby's version more credible than Mr. Lee's; is that correct?
MARK EVANIER: I chose to find — I chose to believe the version which I heard from both of them which coincided and to discount any versions which only served one person's purposes.
QUINN:: Let me have that answer back, please.
(The record was read.)
Q: So you chose to disbelieve certain parts of Mr. Lee's version or testimony in favor of Mr. Kirby's version; correct?
TOBEROFF:: Misstates –
TOBEROFF:: Misstates the record. He said he had never read Lee's testimony.
MARK EVANIER: First of all, I'm not talking about testimony. I'm talking about versions that — I'm talking about sitting across from Stan at lunch and hearing him tell me things and talking to him informally and talking to him one on one. I have also read interviews of him.

Mr. Lee's versions occasionally differ from one another. You can't believe all of them because occasionally they're mutually exclusive. When Mr. Lee's version and Mr. Kirby's version matched up, and they matched the printed comics, and they kind of coincide with what people around them told me, then that is the version that I take to be the most credible.
Q: And when they don't match up, you chose Mr. Kirby over Mr. Lee; isn't that true?
TOBEROFF:: Misstates testimony.
MARK EVANIER: That's — yeah, that's misstating testimony like the man says.
Q: I'm not asking for the testimony.
MARK EVANIER: No. No. What I'm saying is that in cases where I have heard multiple versions, or things which sometimes which just don't match the printed comics that I can hold in my hand, I choose to — I make a value judgment for myself, as anybody doing journalism would do, and I believe the version that seems to be the most consistent throughout more people's versions.
Q: Now, in reaching the opinions that you reached in connection — in connection with your report, is it your testimony that you did not read the sworn testimony of Stan Lee in this case?
MARK EVANIER: I glanced at it. I did not read it in full.
Q: And is it also your testimony that you did not read the sworn testimony of John Romita in this case?
MARK EVANIER: I did not see Romita's testimony.
Q: And is it your testimony that you did not read the sworn testimony of Roy Thomas in this case?
MARK EVANIER: I did not read Mr. Thomas's testimony.
Q: And so you mentioned as a journalist that you would want to get the fullest information possible to reach certain conclusions. Wouldn't it have been useful for you to have read the actual sworn testimony of people who were at Marvel at part of or all of the period from 1958 through 1963?
4TOBEROFF:: Objection. You're referring to depositions that occurred after this report.
MARK EVANIER: That's what I was going to say. Are you asking me did I read the testimony — are you asking me did I read their testimony before I prepared my report?
Q: Yes.
MARK EVANIER: The testimony didn't exist when I prepared my report.
Q: Mr. Lee testified —
TOBEROFF:: Some did; some didn't.
Q: — in May of 2010. Your testimony – your report is dated in November of 2010. So by my recollection, that's — it did exist for about six months.
MARK EVANIER: I had not — I was not aware of it.
Q: So I have it right. Mr. Toberoff did not make you aware of Mr. Lee's testimony before you issued your report. Is that your testimony?
MARK EVANIER: I did not have a copy of Mr. Lee's testimony before I issued my report.
Q: Did you ask for a copy of it before you issued your report?
MARK EVANIER: No, I did not.
Q: Were you aware there was such a deposition?
MARK EVANIER: I was not necessarily aware that it had taken place yet.
Q: So Mr. Toberoff did not inform you that Mr. Lee had been deposed in this lawsuit under oath prior to your issuing the report; is that correct? Do I have that right?
MARK EVANIER: Let me think. I don't remember that. I don't remember.
Q: It's fair to say, is it not, that essentially the methodology you used in coming to the opinions that you did in your report is that you took versions from Kirby, versions from Lee, and you decided which ones you thought were the most credible; isn't that right?
TOBEROFF:: Misstates testimony.
MARK EVANIER: No. No, that's not what I said at all. I said, first of all, I said I looked at the printed comics. I looked at whatever materials existed. I talked to other people who were around at the time who had histories of working with Stan Lee and with Jack. I talked extensively with Sol Brodsky, who was Stan's right-hand man during this period. I talked to other — I talked to Steve Ditko, who was working for Marvel during this period.
TOBEROFF:: You can keep answering.
MARK EVANIER: Yeah. All right. I'm sorry. Then I lost my train of thought here. It is not merely a matter of me weighing Stan's accounts against Jack's.
Q: In reaching the conclusions that you reached in your report, which was submitted to us in early November, I'm correct that you did not read the testimony of Stan Lee, John Romita, and Roy Thomas who testified in this case; correct?
MARK EVANIER: That is correct.
Q: Even though all of those depositions took place before you issued your report?
MARK EVANIER: I don't know that that's true.
Q: I will so represent to you that it's true.
MARK EVANIER: I did not read those depositions.
(break in testimony)
A: …self-explanatory, but —
Q: Let me focus for a second on when you say "co-created," what do you mean by "co-created"?
MARK EVANIER: Co-created would be when the creation would probably be credited to more than one person. So each of the creators would be a co-creator.
Q: Now, focusing on this period between 1958 and 1963, and the particular comic book characters that are the subject matter at issue in this case, what conclusions did you reach with regard to whether those characters were created solely by Mr. Kirby or were created or co-created, rather, by Mr. Kirby and others, focusing specifically
with regard to on Mr. Lee?
MARK EVANIER: Let me have it one more time.
QUINN:: Yeah, read it back.
(The record was read.)
MARK EVANIER: I believe that the characters — let me put it this way. I believe that the properties Fantastic Four, The Hulk, Thor, several others here, the overall properties were co-created by Stan Lee and Jack Kirby.
Q: And what opinions or conclusions did you reach as to how that co-creation process worked?
MARK EVANIER: My understanding is that the two of them would sit down. They'd bring in rough ideas they might have had apart, throw them back and forth like any collaboration. Jack would offer ideas for characters. Stan would offer ideas for characters. Some ideas would get discarded. Some ideas would get expanded upon. And then they would emerge with some idea of what Jack was going to go home and draw.

Jack would draw the story. If it was 20 pages, he would draw 20 pages of material. He would bring it back. Assuming that Stan didn't — assuming that Stan was happy with what Jack brought in, Stan would then write the copy, the dialogue, the captions on the pages. And then the work would proceed from that through lettering, and inking, and coloring, and publishing.
Q: Now, do you have any evidence or did you reach any conclusion or have an opinion as to whether Kirby had created or co-created any of these characters prior to when he returned to Marvel in 1958? And we're focusing on these particular characters.
MARK EVANIER: On which particular characters were you focusing on?
Q: The ones you mentioned.
MARK EVANIER: The ones I mentioned? I believe Jack had previously done, in some cases, antecedents that were a starting point. He came in with ideas that were then later shaped with input from Stan.
(break in transcript))
MARK EVANIER: Jack's original pages of Spider-Man were not used. Then Steve Ditko did it. However, Jack maintained that he created Spider-Man.
Q: And so this would be a circumstance, for example, where — maybe I've got this wrong. But put aside what he maintained. What did you conclude as to the creation of Spider-Man? Did you find Mr. Kirby's version more credible than Mr. Lee's, which is in clear conflict?
MARK EVANIER: I don't find them completely in conflict. I find certain areas that overlap. And in this particular — this is — you're kind of asking me for what could be a very long answer here, if you want to go through the whole thing.
Q: I don't know. That's a good question.
MARK EVANIER: Because I've spent hours discussing this with people. My version that I reported on, written about, of the creation of Spider-Man allows for certain he said/he said variations. There are, however, certain parallels in the stories and the accounts that I find indisputable.
Q: So you're taking an amalgam of different facts and versions and choosing to try to make them consistent in such a way that you reach a conclusion?
MARK EVANIER: Well, when I report on this, I try to separate what is conjecture from what is, I believe, indisputable. And I leave it — well, when I have written about this, I generally leave it to the reader to make certain decisions about the process.

I think that there are things you can say about it that are obvious. I think there are things you can say that are simply common sense, because I don't think that either Stan's or Jack's accounts exactly match the physical evidence of the printed comic that resulted.

But I think it is possible to come to a scenario of how Spider-Man came to be that allows for the fact that at various stages there's the Stan Lee version, and the Jack Kirby version, and they could in some cases both be true based on interpretation of certain words, certain verbs.

It's something when I have written about it I'm very careful to try and not take — not to say either Stan's version was completely correct or Jack's version was completely correct, because I don't think either one of those tells the entire story. But they are not – it is wrong to say that they are in complete conflict.
Q: Some areas we can agree on. I think we did agree on one, which was that Stan, in fact, didn't use the original drawings by Jack with regard to Spider-Man; correct?
MARK EVANIER: That is correct.
(break in transcript)
MARK EVANIER: All right. Where did I say that word?
Q: We'll come back to it.
MARK EVANIER: Depending on the context, that might be the correct word.
TOBEROFF:: Misstates his testimony.
Q: I think you testified previously in the prior deposition, but I want to ask you a follow up in this context. You have written extensively about Jack Kirby and his contributions to the comic book industry; correct?
MARK EVANIER: Yes, I have.
Q: And you also have given lectures and spoken extensively on that subject?
Q: And could you estimate for me or for us how much you've been paid or how many royalties you've received in connection with the books you've published on Jack Kirby, the articles that you've written on Jack Kirby, the presentations you've made on Jack Kirby going back over the last 20 or 30 years?
MARK EVANIER: Well, lectures I think I have never been paid for a lecture about Jack. I have been paid for lectures where Jack was mentioned, but he was not the primary subject of the lecture.

Articles? I have written the Forwards for — I'm going to give you an estimate. This is not a finite number. I have written the Forwards for approximately 20 to 25 reprint collections of Jack's work. And I usually get somewhere between $250 or $500 for each one, which is a standard fee for Introductions of these kind of things.
Q: Mm-hmm.
MARK EVANIER: I have written one book about Jack. I really don't remember how much I've been paid on that, but I believe we're furnishing that material to you, if I can dig out the records of what I've been paid on that. What else is there?
Q: Do you have an estimate as to how much that would be?
MARK EVANIER: Well, for the Forwards maybe —
TOBEROFF:: I think he's referring to the book.
MARK EVANIER: The book? I don't have —
Q: I was referring to the book.
MARK EVANIER: I don't have an estimate for it. They're way behind in paying me, so I don't know.
Q: You refer yourself in the report at one point as a comic book historian. Is there anybody else in the industry that you consider to be a comic book historian?
MARK EVANIER: Yes. You know, to varying degrees there are lots of people who write about comic books. Roy Thomas…
(break in transcript)
Q: BY QUINN:: Before we took a break, we were talking about the statement in your report in the Superman case on the discussion of your understanding of the nature of the work for hire relationship, and specifically the reference you made to receiving some measure of supervision as a factor in determining whether or not a particular work was a work for hire. And I was asking you what you meant by the phrase, "receiving some measure of supervision."
TOBEROFF:: Mischaracterizes the statement in his expert report. You can answer.
MARK EVANIER: What I meant was I think you have to take that sentence as a whole. Supervision, I mean, every publisher supervises work to the extent of deciding whether to publish or saying I won't publish it unless you change this word. I've had that done to me on materials where I've owned the copyright, and I've had that done to me on the materials where I did not own the copyright. In this particular case, this particular is about the Siegel and Shuster case. And the first sentence says:
(Reading:) I understand in the nature of the
(break in transcript)
Q: …the work that Mr. Kirby did in drawing these characters in his basement or wherever —
MARK EVANIER: It was in his basement often.
Q: — that that work was performed after he and Mr. Lee had sat down and discussed the general plot of what was going to go on and discussed what characters were going to be part of the comic book. And it was after that that Mr. Kirby would then begin his drawings in his basement.
TOBEROFF:: Objection. Misstates his testimony.
MARK EVANIER: That's not —
TOBEROFF:: He didn't say that.
MARK EVANIER: I didn't say that that that was always the case.
TOBEROFF:: It misstates his testimony. Period.
Q: Fine. The record is going to be whatever it is. You would agree with me, would you not, that a particular character or a particular comic book story or plot would not be published unless — and we're talking now at Marvel —
Q: — so '58 to '63 — would not be published unless it was approved either by Mr. Lee or by Mr. Goodman or both of them.
MARK EVANIER: As with any publisher, yes, the publisher and editor have the final say whether they're going to publish something or not.
Q: And you testified previously that from time to time Mr. Lee, when he received materials from Mr. Kirby, would comment on them, and he would make changes in them; correct?
MARK EVANIER: He would of course comment on them. As an editor, his job is to comment on them. To make changes in them? If he had purchased the pages from Mr. Kirby, he would make — he could do whatever he wanted with them once he bought them.
Q: Didn't he, from time to time, we'd agree, he was being paid — Kirby was being paid on a per page rate?
Q: And did Mr. Lee from time to time ask Mr. Kirby to make changes or suggest changes in material that he submitted?
MARK EVANIER: There were times when Stan would say, I need something else here. I can't take this story as it is. You've got to fix this before we can buy it. Yes.
Q: And Mr. Kirby would, in fact, make those changes and resubmit; correct?
MARK EVANIER: I think there were times he didn't make the changes and offered something else, solved the problem a different way or did something different. But, yes. I'm sorry. Go ahead. I finished my sentence.
Q: Okay. And there were also times where he did make the changes, resubmitted, and it got published.
Q: So when you're referring to supervision in this paragraph, you're talking about the fact that there was nobody, Stan Lee or someone else from Marvel, in Mr. Kirby's basement overseeing the actual drawings of the books. Is that your —
MARK EVANIER: I would make it broader than that. But certainly Jack was working at home. He was drawing the work on his own. He was plotting out the stories on his own. He was not being supervised in the creation of the work.
Q: You are aware that the — — and I believe you have testified previously and written extensively that with regard to these characters between '58 and '63 that I believe you referred to the fact that Mr. Lee and Mr. Kirby were co-plotting, was your term, co-plotting the books and characters; correct?
TOBEROFF:: Vague as to the previous testimony –
(break in transcript)
TOBEROFF:: Compound.
MARK EVANIER: Well, Mr. Kirby believed — said that he took some of the ideas that became the Marvel heroes in. He brought them in, did sketches first, took them in and showed them to Stan. So to the extent that that answers your question, that answers your question.
Q: Well, I'm asking for your understanding as to, first of all, what did Mr. Kirby tell you about that, which characters, when did he do that, and whether or not this was one of the versions you chose to believe.
MARK EVANIER: Okay. Mr. Kirby told me that he brought in sketches for knew characters, including rough sketches of The Fantastic Four that he did on his own. Brought them in. His version of the creation of Fantastic Four was that when Mr. Goodman asked for a superhero book to parallel DC Comics' Justice League of America, Stan's initial idea was to revive the characters from the 1940s The Human Torch, The Submariner, Captain America, and certain others.

And Mr. Kirby then went out and said, no, we need new characters. And he came up with some sketches. And he took them in, and The Fantastic Four was born out of those discussions.
(break in transcript)
MARK EVANIER: …Brodsky, who was the right-hand man who was present for a lot of this, he more or less endorsed the Kirby version to me.
Q: Sol Brodsky is dead; right?
MARK EVANIER: Yes, he is. But I haven't published this. This is an area where when I write about this, I say that, and I think I say in my book, in effect, Jack and Stan got together and came up with the characters. I don't remove from that period, which as you keep reminding me I was not present for —
Q: I haven't reminded you the whole day.
MARK EVANIER: I think you did someplace in there, but anyway. You know, there's a limit to how much we can know about what two men did behind closed doors years ago. There's also a limit to how much each of them could even remember about that at the time. And I was sometimes when I have written about this I also from my own experience talk about the fact that collaborators can honestly disagree five minutes after a meeting of whose idea was which because one person threw out an idea and another person expanded on it and such.

So I have not uncovered anything which would convince me that Jack didn't bring in some sketches. And I don't know how much those sketches resembled the finished product. But Jack said he brought in ideas. I know that Jack was a fountain of ideas; that he had a lifetime history of batting out ideas for new characters and sketches. And every single human being who ever worked with Jack will tell you that, including Stan Lee.

So I choose to believe that because of Jack's modus operandi, and the way he always worked, that he brought in something, and Stan brought in something, and collectively The Fantastic Four emerged from those discussions. And I specifically avoid trying to say that I know exactly what happened behind those closed doors, because it was apparent to me that there was some level of collaboration there.

I find in my own experience, and in my own observation, and talking to the people who knew Jack well, Jack was a creating character machine. He was also creating characters. He created characters when he was asked to. He created characters when he wasn't asked to. He was a very fertile person. And Stan has said that many times.
Q: Do you know — I'm sorry. Please finish.
MARK EVANIER: So I hope I'm answering your question. But the mere fact that somebody says, you know, that a publisher says I would really like to do a western, and
(break in transcript)
A: …I would want to know if, you know, The New York Times gave him the typewriter he was working on.
Q: Anything else?
MARK EVANIER: I think those right there are —
Q: Well, let's assume they're going to pay him for the article whether or not they publish it.
TOBEROFF:: Again I object. He's not a lawyer, asking for a legal conclusion as to whether something is work for hire under the 1909 Copyright Act that even lawyers have trouble answering. It's outside the scope of his expert opinion.
MARK EVANIER: I think this question is too vague to answer even as it is.
QUINN:: This is probably a good place to break for lunch.
Q: BY QUINN:: Good afternoon, Mr. Evanier.
MARK EVANIER: Good afternoon, sir.
Q: You had mentioned previously in connection with one of the answers you had given regarding conclusions you had reached relating to Jack Kirby's relationship with Marvel back in the '58 to '63 period that you'd had discussions with, among other people, Sol Brodsky. Remember that?
Q: Could you tell me when you had those discussions?
MARK EVANIER: 1975 and 1976. Met mr. Brodsky before that. We had an extended conversation in '75 and another one in '76.
Q: And do you recall — how long ago, by the way, did Mr. Brodsky pass away?
MARK EVANIER: Oh, early 80s.'83, '84, I think.
Q: You mentioned you had a conversation with him in '75 and '76. What do you recall him telling you at that time about the Kirby/Lee relationship in the '58 to
' 63 period?
MARK EVANIER: Well, mostly I told Sol the way I understand the situation, and he agreed or amplified or corrected me. I was mostly using him as, you know, Jack told me this, Stan told me this, what do you think?
Q: Do you recall the specifics of the conversation you had with Mr. Brodsky about what you were saying your understanding was and what his responses were as to what Jack told you or what Stan told you?
MARK EVANIER: He endorsed pretty much most of what Jack told me but with some corrections and different memories. Do you have a specific topic?
Q: Well —
MARK EVANIER: We talked for hours.
Q: What is it that Jack told you that you say Mr. Brodsky endorsed?
MARK EVANIER: Well, I asked him in the early days was it true that Jack would come up with the plots for things, and Jack would go home often with know — with very little input from Stan. Or that sometimes it would be done over the phone, and Stan would say, "I don't have time to talk about the next issue with you, so just do something," and Jack would go ahead and draw an issue. I remember one thing he told me was that –and this is not a quote; this is a paraphrase by me — that repeatedly there was a situation where Jack would come into the office, and he and Stan would talk about the next issue of Fantastic Four, the issue of Fantastic Four that Jack was going to go home and start working on.

And on the way out, Jack — and Stan would say to Jack: Oh, then after that we're going to do a Thor story, you know, next month. Got any ideas for that? And Jack would say — this is me making something up here — Jack would say something like: Oh, yeah, I got an idea for a story with Loki in it. And then Jack would go home and draw the Thor story that wasn't needed next instead of The Fantastic Four story that was. He would get confused as to which story he was supposed to do in what order.
5So he would do this whole issue of Thor and bring it in, and Stan would say: Well, where's the issue of Fantastic Four we were doing? And he'd say: Oh, I thought we were doing Thor first. He would get confused as to which book he was to do in which order.
Q: Is that because there were deadlines that he had to meet?
MARK EVANIER: They were pretty much ahead of deadlines. It's just that one book may be way farther ahead than another. Stan would pick out which — let's do a Thor next. Based on sometimes the deadlines had less to do when the material was needed for publication than when the artist would be inking the story would be needing work. In other words, if the inker of Fantastic Four was not busy, they might do a Fantastic Four issue next so they could feed work to that inker. Most of the stories they did were way ahead of publication deadline because Jack and Stan were both very prolific, both very fast and producing an awful lot of work. Jack occasionally would do an issue, you know, in a
(break in transcript)
MARK EVANIER: …get a distributor to give you an advance, and you can keep the costs of production of the item down, the risk in publishing comic books at times can be very minor. There is a risk certainly, but –
Q: So sometimes it's minor; sometimes it's major?
Q: You stated in your report on page 5, I believe it's page 5, in the middle of the paragraph that, "Writers and artists were only paid if their work was accepted." Do you see that?
Q: What is the basis for that statement? Who told you that?
MARK EVANIER: Everybody. That was just the way people understood it was done. That's the way when I got into the business it was done. And when I asked about that, they said that's how we do business.
Q: Would you dispute the testimony of Mr. Lee and Mr. Romita and Mr. Thomas who all testified that in this case that, in fact, writers and artists were paid for whatever page they produced, whether or not it was published?
TOBEROFF:: Objection. I'm not sure they all said that.
MARK EVANIER: Well, if the work was accepted and paid for it might not be published. So the publication — rarely, and I'm not saying this never happened, rarely did publishers keyed payment to the publication. What they keyed it to, what they based it on, was the acceptance of the work.

So if Romita, and Stan Lee, and the other gentleman Roy Thomas, said that artists — that they always got paid for their work even if it wasn't published, well, they didn't always pay for the work. They rejected scripts. They rejected artwork. They made– they told artists to redo things if they accepted it, but the fact they did not publish it did not cause them to ask the artist to give the money back.
Q: So when — is it your view that if an artist is asked to redo a page or a panel or make a change that that's a rejection?
MARK EVANIER: It's a rejection of the work as it stands unrevised.
Q: Is it fair to say that —
MARK EVANIER: If they — excuse me. I'm sorry. Go ahead.
Q: Is it fair to say — is it your view that if, in fact, they redo the work and submit it, and they're paid for it, then that work would not have been rejected? I'm trying to understand what you mean by "rejected."
MARK EVANIER: Well, I don't know if I introduced that word into this discussion. But you submit work to — let me give you an example.

I submitted scripts to DC Comics in 1968. The editors — to Charlton. And the editors there said – sometimes sent them back and said we don't want this. It was rejected. I was not paid for it. Once or twice the editor said: If you can come up with a better ending for this, I might buy it. So I did a — rewrote the ending and submitted the work
10again. Now, the first version that I submitted was rejected, rejected being the opposite of accepted here. The fact that some of the work didn't change doesn't change the fact that the first version in totality was rejected.
Q: So that's your understanding of "they were only paid if the work was accepted"?
Q: But would you agree with me that the practice was if the work was accepted, the artist or writer was paid, whether or not it was published?
MARK EVANIER: That I would agree with. Yes.
Q: Now, you mention that there were times that you brought things to DC Comics, I believe you said, and some of the work was not accepted. Was that work that…
(break in transcript)
Q: …did as well, not just Marvel?
Q: So they would be buying stories, artwork, et cetera, to possibly use in the future, or not, based on their own decision?
MARK EVANIER: They would be buying material that they expected to use, and it was — I don't think they bought anything without a very reasonable expectation that they would print it soon. But what frequently happened was that books would be canceled, and there would be stories and work left over.

There were a number of instances in the case of Marvel where a comic would be canceled, and there would be two or three issues which had not been printed yet. And Mr. Goodman would decide if they were not worth publishing, then the stories would go on the shelf. And then at some time later they might be taken off and published. He found a place to use them.
Q: Are you aware as you sit here today of any specific pages that Jack Kirby worked on back during this '58 to '63 period that were not accepted?
MARK EVANIER: The five pages or six he did of the first Spider-Man story were not accepted.
Q: And was it your testimony that he was not paid for that?
MARK EVANIER: He told me he was not paid for it. He asked repeatedly for the pages to be returned, and they never were.
Q: Other than Mr. Kirby telling you that, do you have any basis one way or the other as to whether or not he was, in fact, paid for it, those pages?
MARK EVANIER: I think Sol Brodsky told me Jack was not paid for them.
Q: And if Stan Lee testified under oath that he was paid for them, you would just choose to believe Kirby?
MARK EVANIER: Well, I would tend to believe that Stan didn't know what frequently people were being paid for.
Q: And what's the basis of that?
Q: — statement?
MARK EVANIER: Stan inoculated himself frequently from that end of the business.
Q: How do you know?
MARK EVANIER: Sol Brodsky was the guy who usually would take care of making out the checks, or making out the check request forms, and such. But you're dealing here with something quite some time ago that people at the time didn't pay much attention to.
Q: When you say "quite some time ago people didn't pay much attention to," what do you mean? What did they not pay much attention to?
MARK EVANIER: Stan would not have paid much attention to whether or not Jack was paid for the story at the time.
Q: And is that statement by you or that's an opinion? What is that based on?
MARK EVANIER: My understanding of how Marvel was set up is that Stan would try to distance himself from the actual page rates and the checks. One of the things Sol Brodsky complained to me about good naturedly and jokingly how often he got stuck with being the bad guy for Stan and telling people they weren't going to get paid for things, or their rate was being cut, or their check was going to be late. But he handled that type of thing. And Stan was — Stan was not in the office very often, was not in the office every day. Other people would handle the bookkeeping. He was not — Stan was not a bookkeeper. He was not a guy who spent a lot of time filling out the forms.

And frequently, when I asked Stan questions about the financial end of Marvel, he would just shrug and say, "That's not my job. I didn't do that."
Q: He was in the creative end?
MARK EVANIER: He was in the editorial end, creative end, yeah. He was in charge of the stories and artworks areas, not in charge of the bookkeeping department.
(break in transcript)
MARK EVANIER: …work for Marvel's books. And that coincided with the exhaustion of the inventory of material to the point where now more material was being purchased. Does that make sense what I just said? I think I said that inside out, but that's what happened.
Q: I got it. Now, during the period I think that we're talking about, and prior to that, it's fair to say that Martin Goodman was responsible essentially for anything that happened during the time he ran Marvel?
MARK EVANIER: I'm sorry. Could I have that again?
Q: Yeah. You've written, haven't you, that Mr. Goodman was responsible for anything that happened during the time you owned the company. Is that a fair statement?
MARK EVANIER: Mr. Goodman was the publisher, the primary owner of the company, so he was doing the publisher's duties which — he didn't make all the decisions there certainly, but he was in charge of the company.
Q: He had the final say so —
Q: — as to what got published and what didn't?
MARK EVANIER: Yes, I would assume he had the final say so.
Q: And that was because it was his money on the line. Fair?
MARK EVANIER: His family's money.
Q: His family?
MARK EVANIER: His family owned the company. He had a lot of relatives on the payroll.
Q: Right. And it was their money on the line with regard to the company; right?
MARK EVANIER: I don't know which relatives had money in the company or not. They used to refer to it as Martin's House of Nepotism.
Q: The Goodman family money was on the line; right?
MARK EVANIER: Somebody's money. Somebody who was named Goodman had their money on the line.
Q: Fair enough. And Martin was at the top of that list?
MARK EVANIER: I believe so. Yes.
Q: Is it fair to say that because he was the ultimate decision maker that he had the final authority on decisions about story lines or characters or what books — what new books would be begun and which ones would be canceled?
MARK EVANIER: He certainly had the final say on which books would be begun and canceled, to answer the second part of your question first. Insofar as story lines are concerned, every
(break in transcript)
Q: …his work. Do you see that?
MARK EVANIER: Yes. I may have been wrong about that.
Q: You may have been wrong, but you wrote it.
MARK EVANIER: Yes, I wrote it.
Q: Somewhere in the last two years; right?
Q: But now, because it's inconsistent with what your prior testimony, you may have been wrong. Is that your current testimony?
MARK EVANIER: No, I just don't know where I heard that he was paid.
Q: But you wrote it down anyway.
MARK EVANIER: Yeah, I wrote it, and I think I may have been wrong.
Q: By the way, it was Mr. Lee that made the assignments as to which artist would work on which particular book; right?
MARK EVANIER: During this period?
Q: Yes, this was —
MARK EVANIER: During the period of this? Yes.
Q: Yes, "this" being because this referred to 1965, I guess. During this period, you know late 50s, early 60s, it was Mr. Lee who determined which artists would work on which book; right? That was part of —
(break in transcript)
Page 174
Q: You state in the paragraph that starts "Goodman meanwhile" about a few lines down. "But until the debut of Fantastic Four in 1961, few comics seemed to be permanent fixtures." What's the basis for that statement?
MARK EVANIER: Looking at the history of publishing at Marvel, they tended to cancel books very fast. The ones that — the ones that kept going for quite some time were flukes. And, you know, I have talked to an awful lot of people about Martin Goodman, and there is unanimity of opinion about him from people who worked in that time period. And Stan Lee has said this on many occasions, and Sol Brodsky said it, and Jack said it. It's a consistent portrait of a man who was always trigger happy, ready to cancel a comic when he got one bad sales report. Sales were down, he would cancel a book. Sol Brodsky told me that frequently, very often, in fact, what would happen would be that they would get the sales figures in on, let's say, you know, Issue 22 of a comic. And Martin would go, oh-oh, it's down. Let's cancel it. Then someone would tell him, well, we've got Issues 22, 23. We've got the next three issues sitting on the shelf. And he would decide, well, it would be cheaper to publish them than to write that material off. So they'd publish those issues. And by the time they could cancel the book and not have inventory left over, they would get some encouraging sales figures, so he would uncancel the book.

And so very few comics at Marvel were ever done with the expectation, well, this comic will be done a year from now or two years from now, which was different from quite a few of the other publishers. Most of the major publishers had a few titles that were solidly ensconced. And DC Comics was never worried they would have to cancel Superman soon. Dell Comics was never worried they would have to cancel Donald Duck soon.

But Martin ran his company with the idea that, well, we may have to cancel all war comics and replace them with Westerns, or replace all our love comics and replace them with comic books about funny rabbits or something.
Q: You're familiar with Marvel's horror titles?
MARK EVANIER: The ones in the 50s?
Q: Yes.
Q: Amazing Fantasy and Journey into Mystery?
MARK EVANIER: Amazing Fantasy was in the late 50s, early 60s.Yes.
Q: Those, that group of titles, in fact, did last for a long period of time, didn't they?
2MARK EVANIER: Amazing Fantasy was canceled after No. 15.
Q: Journey into Mystery?
MARK EVANIER: Journey into Mystery changed into Thor. The comic — that comic did last for a long time. That was a book that — let me speak to a larger issue here. During the 50s, they published dozens and dozens of what they called Weird Comics. They were ghost stories, horror stories.
Q: Right.
MARK EVANIER: And they had a huge inventory of them. And they would change titles and cancel them. In those particular books, they could cancel one title and stick the material in another comic because there were no continuing characters. So the material done for Marvel Tales could be used in Uncanny Tales or could be used in Adventures of the Weird World or whatever. Those comics as a bulk went on for a long time. Then they all got canceled because of the negativism in the country about horror comics. And they brought some of them back in a different format. They used the same name during the — the content of Journey into Mystery changed. They just used that as a blanket title. Originally it was a horror comic. Later it was a science fiction comic. Later it was the comic starring Thor. Then they turned the title Journey into Mystery into the comic called Thor. The numbering of Journey into Mystery blend into the numbering of Thor.

And then later still, they brought back another comic called Journey into Mystery, which reprinted old stories from before Thor was in the comics. So it was not a consistent ongoing title. But they did have books that lasted awhile. They just did not have comics that ever looked like they would last for a while.
Q: You also say in your report that one of the many casualties, referring to one of the publishing companies that didn't make it in the 50s, was Mainline Publications, which was a relatively new company, I guess, that Simon and Kirby had put together in the mid 50s?
Q: What did Mainline Publications actually publish?
MARK EVANIER: They published four titles. And I will tell you the titles in a minute here. Police Trap, In Love, Fox Hole. And there was a war comic called Fox Hole, Police Trap, Bullseye, and In Love were the four titles. And they were about to launch two new ones at the time that —
(break in transcript)
MARK EVANIER: …most of these stories.
MARK EVANIER: I am not familiar with that deposition. I have seen him claim that on some occasions.
Q: Okay. On page 10 of your expert report at the top of the page you say.
(Reading:) As Stan Lee himself noted on many occasions, "plotting" with Kirby could often be accomplished in a matter of minutes and in later years might be done via brief phone call with Jack telling Stan what the next issue would be about.
Now, what is the basis for that statement?
MARK EVANIER: I listened in on one of Jack and Stan's plotting — on Jack's end of a phone call the first day I ever met Jack.
Q: And how did that go? What do you recall about listening in to a plotting phone call between Jack and Stan Lee?
MARK EVANIER: Three friends of mine and I visited Jack. This was in July of 1969. I think it was the second week of the month.
Q: I think you testified about that previously.
MARK EVANIER: While we were there, I was talking to Jack in this little den he had in his house in Irvine. Roz came in and said, "Stan Lee is on the phone."
And Jack said, "Tell him I will call him back."
And Roz said, "It's 5:30 in New York," whatever the time was. "He's got to leave for the day. He needs to talk to you."
And Jack said — apologized to us, and he took the call in front of us. And Jack just told — just had on his drawing board at the time he had Fantastic Four No. 98, which he had just completed and was about to send in. And he already had — he knew what he was doing on — he was going to draw an issue of Thor next. And he knew what he was going to do for that. And Stan was calling to find out when The Fantastic Four issue would be in and to discuss what Jack would do for the next issue because Stan needed to write some advertising copy that would say what the issue was about.
And Jack told him what he had in mind for the story. And Stan said, Great. And I did not hear Stan's end of the conversation.
Q: I was going to ask you that. It wasn't on a speaker phone, was it?
MARK EVANIER: No, no, but —
Q: Didn't have speaker phones back then.
MARK EVANIER: But the whole conversation was probably less than four minutes, so it was a brief phone call. And I heard Jack tell Stan what the next issue would be about, which is what I wrote here.
Q: And that's the basis for the statement?
MARK EVANIER: That's exactly the basis of the statement. And on top of that —
Q: So other than the one —
MARK EVANIER: No, no. Let me finish my sentence, please. On top of that, Stan said things like that all the time. Stan told me on many occasions that, especially on the later issues, Jack was controlling the story lines. I think there's a quote elsewhere in my book here where I quote Stan as saying, "Sometimes Jack will tell me what the next issue is about." That's from an interview that Stan gave in Castle of Frankenstein magazine about this time. So that's the basis for that. I mean, this is a very consistent portrait here, and I see no evidence to the contrary anywhere.
Q: You are aware, are you not, that at least with regard to some of the characters there were actual scripts and outlines that were prepared?
MARK EVANIER: I don't know what you mean by that.
Q: Well, we've seen before the outline for Fantastic Four we looked at it in the last deposition.
Q: And you are aware, aren't you, that, for example, Mr. Lieber, Larry Lieber, has said on many occasions that he wrote full scripts for the comics that he was doing. You're aware of that?
6MARK EVANIER: Yes, he has said that.
7Q: And that, in fact, includes a number of the comics that Jack was doing the artwork for; correct?
Q: By the way, do you have any basis for disagreeing with Mr. Lieber's statements that he would write the scripts before the panels would be drawn?
TOBEROFF:: Vague as to what we're talking about exactly.
Q: With regard to those comics that Mr. Lieber wrote the scripts for, do you have any basis for disagreeing that he wrote those scripts before the panels were drawn?
MARK EVANIER: My understanding is that Larry Lieber wrote scripts before the panels were drawn, but that that statement as you phrased it does not give a full portrait of the process.
Q: Other than the phone call that you described in 1969, do you have any other personal direct knowledge of how the comic books that Lee and Kirby worked on together were plotted?
MARK EVANIER: Talking to people who worked with them, talking to Sol Brodsky, talking to other people who worked with Stan and Jack concurrently.
Q: Who were the other people?
MARK EVANIER: Talking to Stan for that matter, Stan himself. Stan and Jack both told me stories that matched up about those meetings. You know, if Stan says, oh, yeah, sometimes I just called Jack and said do another issue of Dr. Doom, and Jack tells me the same thing, I assume that's pretty good verification.
Q: On page 10 also you wrote that, "As Kirby worked, he would not only draw out the story and invent new characters where necessary" — by the way, part of his assignment was as to invent new characters, where necessary, wasn't it?
Q: Wasn't that part of the shtick?
TOBEROFF:: Vague. No Yiddish, please.
MARK EVANIER: I understand Yiddish a little bit. As you phrased it, that's difficult to answer.
Give me a minute here. Jack was paid and credited as the artist. It has never been in the industry an assumption that the artist would make up characters when he drew the comic.
(break in transcript)
Page 193
MARK EVANIER: When he was not given enough of a story line from the putative writer to create a coherent story without them. I also say here, (Reading:) This breakdown of the rules of writer and artist, with the artist assuming much of what had traditionally been done by writer, led to much confusion and debate within the comics industry, community.
There are people in comics — there are artists in comics who have been in comics for 20 or 30 or 40 years who never invented a villain, recurring villain or hero. They just drew what the writer told them to do.
Q: Isn't it true that often Mr. Kirby would submit material and that he would be very upset when Stan would widely make changes that widely deviated from what Jack had intended?
MARK EVANIER: That did happen.
Q: In fact, you wrote about it happening, didn't you?
Q: And it happened on a fairly regular basis, didn't it?
MARK EVANIER: I don't think I said it happened on a fairly regular basis.
Q: Let's look at your book, 292. You write that, (Reading:) Sometimes Stan's would deviate wildly from what Jack had intended. Jack didn't like that either. He loved the stories he developed and would often feel that Stan's word balloons stripped some issue of its meaning or inverted a key concept. Jack especially resented it when Stan would take the first part of a story in a different direction than he intended. Not only would Jack feel his work was being harmed, but it also meant that he would have to withdraw the last half without pay, of course, to correspond. That's what you wrote here.
MARK EVANIER: Redraw, not withdraw.
Q: Oh.
Q: "To redraw the last half without pay, of course, to correspond."
MARK EVANIER: Yes. I wrote that. Yes.
Q: And you believe that to be accurate; right?
MARK EVANIER: I believe that to be accurate. Yes.
Q: Because Stan would often take what was given to him and totally change the meaning around, wouldn't he?
MARK EVANIER: I said sometimes. You're saying often.
Q: Sometimes.
MARK EVANIER: I said sometimes.
Q: Okay. We'll agree on sometimes.
MARK EVANIER: All right.
Q: Not always, but sometimes.
MARK EVANIER: Yeah. Sometimes.
Q: But he had the right to do it all the time, didn't he, —
TOBEROFF:: Objection.
Q: — as the editor?
TOBEROFF:: Calls for a legal conclusion. Outside the scope of his testimony.
MARK EVANIER: The right to do it?
Q: Yeah, as his job as editor.
TOBEROFF:: Excuse me. When I object, you've got to pause —
TOBEROFF:: — and let me object.
MARK EVANIER:: I will learn to do that some day.
TOBEROFF:: Thanks. The objection is, as to Stan Lee's rights it
calls for a legal conclusion. It's outside the scope of Mr. Evanier's expert assignment.
MARK EVANIER: Can I have the question again in full?
Q: You understood that even though Mr. Lee, as
(break in transcript)
Q: …have somebody else make the changes. Isn't that right?
TOBEROFF:: Same objection. Calls for a legal conclusion.
MARK EVANIER: He could, once he had purchased the material, he could ask someone else to make the corrections. Or he could — or he could say he could not purchase the material in its present state unless Jack made the corrections.

What he could not do was to make the changes in the material and then say, oh, we're not going to buy this story or we're not going to buy this sequence. We're going to send it back to Jack. Maybe I'm splitting hairs here, but I'm trying to answer the question you're asking me, which is –
Q: Go ahead.
MARK EVANIER: — compounded here somehow.
Q: You're aware that there are instances where there was work submitted by Jack as part of this whole process you have described in your report where he was asked to make changes. And there was also work submitted where Stan had somebody else make changes.
MARK EVANIER: That's correct.
Q: Correct?
MARK EVANIER: That is correct. Yes.
Q: And, in fact, there was situations where Stan
(break in transcript)
MARK EVANIER: …where Jack did the entire writing on his own.
Q: Other than those, can you think of any others?
MARK EVANIER: Then later, when he went back to Marvel in the '70s, there were quite a few stories.
Q: No, we're talking about in the 60s.
MARK EVANIER: In the 60s I think that's the only ones. I might have missed one.
Q: Any of the others —
MARK EVANIER: Yeah, there was a story in one of the western books, I believe, in the 60s.
Q: Do you know what time period? Between '58 and '63 or later?
MARK EVANIER: I believe that would have been later.
Q: Yeah. You also have written that Stan gave up writing full scripts around 1962. Is that your understanding?
Q: So prior to 1962 he was writing full scripts?
MARK EVANIER: No. Well, he started writing Marvel style Marvel Method scripts around 1955 or -56, but he wrote full scripts for some artists or some situations for a while there.
During the period when they were not buying a lot of material, he wrote a lot of full scripts so he could get paid for them. The scripts that were done for inventory, he couldn't work Marvel Method because there was no artist involved in those scripts. In those projects the artist would come much later.
Q: After the scripts had been produced.
Q: In your book on Kirby —
Q: — page 299. Turn to that page.
MARK EVANIER: We're using the K numbers; right?
Q: The K numbers?
MARK EVANIER: Yeah. 299. Got it. Yes.
Q: And there's a drawing, pencil drawing, and some handwritten notes. Do you see that?
Q: And could you tell me whose handwriting are the handwritten notes?
MARK EVANIER: I believe the handwriting notes are from Stan.
Q: And he's saying in one instance, "Jack, can this be the" — oh, boy.
MARK EVANIER: The Rainbow Bridge.
Q: — the Rainbow Bridge?" And in another instance he's saying, "Put Odin
here." Is he telling him to move —
MARK EVANIER: Omit Odin here. He'll cut into Masthead too much. In other words, Oden will cut into the title letter when it's placed, so we have to keep that area clean. So —
Q: Oh, that's the top one. I see.
MARK EVANIER: — let's put Odin in the bottom.
Q: So he's essentially telling him to move some of the stuff on the drawing?
Q: Is that something that he typically did after seeing some of the drawings?
MARK EVANIER: This is very rare. I think I say on the next page that they almost never even worked this way. This is a very rare artifact. It's one of the few times Jack ever
did a cover sketch like this.
Q: But this is an example of Jack actually giving some pretty specific directions — of Stan giving Jack some pretty specific directions with regard to at least this particular drawing; right?
MARK EVANIER: I don't know they're that specific. "Can this be the Rainbow Bridge?" Leaving it up to Jack to decide. "Put Odin here somehow if you can." That's leaving it up to Jack to decide. Usually a cover usually when an editor goes over a cover sketch — and Jack didn't do very many cover sketches in his career — usually the editor does a much more detailed composition. They would have something done in the office. They do an overlay and have another artist maybe move things around and show where to put them. This is very undetailed, a very undetailed set of suggestions.
Q: It's fair to say that it's an example, at least, of Mr. Lee giving at least some direction to Mr. Kirby about how he should do this drawing. Isn't that fair?
MARK EVANIER: Very little direction. I'm not sure what you're trying to get me to say here.
Q: I'm not trying to get you to say anything. I'm trying to get some testimony here. That's all. Say whatever you want.
MARK EVANIER: As we've established before, there were times when Stan sent things back to Jack and said, This has to be — you know, I can't use this in the form it's in. Let's do something different. This is an example of that, I would suppose. Are we done with this book?
Q: Yeah. Don't let it go too far away. But yeah.
MARK EVANIER: All right. Okay. Can I get a glass of water at some point here?
QUINN:: Why don't you get it now.
TOBEROFF:: I will get it.
(break in transcript)
Q: And you are aware that Mr. Kirby, in signing that, received monies as part of that deal; correct?
MARK EVANIER: I'm aware that he received part of the money he was promised.
Q: He received monies as a result of that?
MARK EVANIER: I answered your question.
Q: Well, I'm going to say it really simply, Mr. Evanier.
MARK EVANIER: All right.
Q: He received money in connection with the Captain America settlement, didn't he?
MARK EVANIER: He received some money.
Q: Right. And you say on page 14 at the top of the page you conclude that. (Reading:) It is extremely doubtful that either Marvel or freelance artists such as Jack
Kirby, particularly between 1958 and 1963, had any understanding or intent that their freelance material created at home on their own steam, on their own dime, and later purchased on a per page basis after it was completed and approved for publication, was somehow work made for hire. What is the basis of that statement as to what is
Kirby's or other freelance artists' understanding or intent was back in 1958 to 1963?
MARK EVANIER: Well, in 1978, around 1978, when both DC and Marvel began to put the words "work for hire" into their contracts and releases and paperwork, there was an outcry in the comic book business about it because no one really knew — had seen that term before.

I was on a panel at a convention called "What the Hell is Work for Hire?" Artists and writers did not – had not been confronted with that language before, did not know what it meant. There was a lot of protest. There were people circulating petitions refusing to sign those documents. DC Comics, at least, and maybe Marvel, modified their original agreements because there was so much protest from freelancers that they would not sign the contracts as they were initially worded. So the words "work for hire" suddenly came into the comic book community, and people just were baffled by them. They didn't know what it meant. And so I am concluding that when the work was done in '58 and '63, nobody thought the words "work for hire" would ever apply to their work because they didn't know those words.
Q: You do understand that the work for hire concept was in the 1909 Copyright Act? Been around
(break in transcript)
Q: …believe Stan sent Jack off to draw an important first issue without preliminary sketches and conferences." Right?
Q: Okay. And so isn't what you're saying here is that obviously Stan and Jack had conferences before he sent him off to draw.
(Plaintiffs counsel confer.)
Q: On the two pages later, referring to the first issue, it says, "The first issue was clearly cobbled up in a hurry and does show some surface attempt to comply with
Goodman's directive and replicate DC's Justice League of America." What did you mean by that?
MARK EVANIER: The cover scene on Fantastic Four No. 1 depicts a scene that appears nowhere in the story. Designed a cover that doesn't connect with the story therein, but it does kind of look a little like the composition of a DC Comic called The Brave and the Bold, issue No. 28, which first introduces the Justice League. And Jack's layouts inside the comic, his page layouts look more like a DC Comic in terms of the panel shapes. It's like somebody had shown him Justice League and said, Let's try and make the book look a little bit…
(break in transcript)
MARK EVANIER: …like that in the room helping flesh out whatever ideas you had, change them, and bring in his input. I'm not saying Stan is lying. I'm saying he's choosing his words carefully, remembering a version. I disagree with Stan about some aspects of Marvel history. We've had friendly arguments about certain issues and certain comics and how things came about and how they were published. And sometimes I get him to agree with me. I show him evidence.
Q: Well, one thing we've established, during this period from '58 to '63, Stan was there, and you weren't.
Q: You say in your expert report at page 15 carrying over to 16 that "It is also worth noting that Stan Lee did not create any important characters either before Jack Kirby first worked with Lee or after Jack Kirby stopped working with Lee in 1970." Do you see that bottom of 15 over to 16 in your report?
MARK EVANIER: Hold on here. Yes, I see that.
Q: After he stopped working for Lee in 1970, what successful characters did Kirby create?
MARK EVANIER: Well, he created a series for DC called The New Gods. Featured a villain called Dark Side, one of the most important villains in Allied DC Comics. Did a book
(break in transcript)
MARK EVANIER: …old picture of me.
TOBEROFF:: Very cherubic. What number are we up to?
Q: . Can you just identify this document for us, please.
MARK EVANIER: This is a scan or xerox of my column that appeared in Jack Kirby Collector No. Thirty-Eight
Q: And just a couple of questions on this. You were being asked, I guess, a series of This is Jack FAQs.
Q: Frequently Asked Questions. And one of them is: Jack Kirby designed Spider-Man's costume. And you answer: False. Steve Ditko designed the distinctive costume we all know and love. Jack did claim to have presented the idea to Stan of doing a hero named Spiderman, no hyphen, who walked on walls and other Spiderman themed powers, a claim which Stan formally denies.
MARK EVANIER: I think I said vociferously denies.
Q: Oh, I'm sorry. You're right. Vociferously denies. Tell me which version do you believe with regard to Jack's supposedly bringing the idea of Superman — Spider-Man to Stan Lee? Do you believe Jack's version or Stan's vociferous denial?
MARK EVANIER: As I stated earlier, I believe — well, I believe that Jack did bring in the idea of doing Spiderman to Marvel.
Q: So you believe Jack's version?
MARK EVANIER: I believe that part of Jack's version.
Q: That's the part I'm asking you about.
MARK EVANIER: Okay. I believe that Jack did come in and present that to Marvel.
Q: Okay. And that's based on your discussions with Jack?
MARK EVANIER: Based on my discussions with Jack, based on the fact that he had this piece of artwork that said Spiderman done by Joe Simon earlier.
Q: That's the one that you don't have any idea where it is today; right?
MARK EVANIER: I don't know where it is today, no, but it's —
Q: Did you ever see the piece of work?
MARK EVANIER: I held it in my hands.
Q: You did. And what happened to it? Do you have any idea?
MARK EVANIER: Jack kept it for many years, and at one point when he was talking to Joe Simon, Joe said, "Hey, I'd like that back." And he sent it back to Joe Simon. I think I answered this question earlier. And the last I saw of it
(break in transcript)
Q: And isn't that correct with regard to much of your testimony? Most of the time you're just guessing; isn't that right?
MARK EVANIER: No, I don't think so.
Q: On page 16 of your report in the middle paragraph under Mighty Thor, referring to The Mighty Thor — am I correct, by the way, Larry Lieber was the one who actually wrote the script for The Mighty Thor?
MARK EVANIER: Larry Lieber did the script for the first Thor story in Journey into Mystery No. 83.
Q: And was it your understanding that Lieber wrote the script before Kirby drew the panels?
MARK EVANIER: It's my understanding that Lieber wrote the script before Kirby drew the panels. Yes.
Q: And is it also your understanding that Larry Lieber named Thor's alter ego Don Blake?
MARK EVANIER: Larry says he did.
Q: Do you have any reason to disbelieve him?
(break in transcript)
Q: They're both lying, with a question mark.
MARK EVANIER: I would not use the term "lying." I think they both have their versions. And when I report the history, I will report both of them and let the reader decide.
Q: You are aware that Larry Lieber was — did — was assigned to write the full script; correct?
MARK EVANIER: Larry Lieber wrote a script. Yes.
Q: And he wrote the script before Heck drew the — before he drew the comic?
Q: And what role does Kirby say he played in the first issue of Iron Man?
MARK EVANIER: Jack says he came up with the concept, presented it to Stan as an idea that they would do together. They talked it out. The idea was put on hold because there was no place to do it at that moment. And then subsequently Stan did it with Don Heck or put it into Tales of Suspense and had Don Heck draw the first one. He wasn't happy with what Heck did, so Jack came in and started drawing it after that. Let me finish. Jack also —
Q: Please. By all means finish.
MARK EVANIER: And Jack also drew the cover of the first issue, and on that cover he designed the look of Iron Man and the idea of the character putting on this iron which…
(end of transcript)

About Rich Johnston

Founder of Bleeding Cool. The longest-serving digital news reporter in the world, since 1992. Author of The Flying Friar, Holed Up, The Avengefuls, Doctor Who: Room With A Deja Vu, The Many Murders Of Miss Cranbourne, Chase Variant. Lives in South-West London, works from Blacks on Dean Street, shops at Piranha Comics. Father of two. Political cartoonist.

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