Posted in: Comics, Recent Updates | Tagged: jack kirby, lawsuit, marvel, roy thomas

The Roy Thomas Deposition For The Kirby Family Vs Marvel Lawsuit

UPDATE: 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.
Roy Thomas is a comic book writer, editor, and historian who first began writing for Marvel in 1965, later became a Marvel editor as well, and ultimately served as Stan Lee's successor as Marvel's editor-in-chief. 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 Roy Thomas:

On the evolution of his duties in the late 60s / early 70s

Q: Who did you report to when you were a staff writer?

ROY THOMAS: The only real person I reported to officially would have been Stan Lee, but as a matter of practical fact, Stan gave out many of his directives or communications through the production manager, Sol Brodski. So while he wasn't exactly technically my superior, he was a person that gave me a lot of Stan's, you know, marching orders or whatever and was very, very — informal would be the polite way to describe operations in the 1960s.

Q: Did there come a time that your title changed from staff writer to something else?

ROY THOMAS: Well, I just stopped being a staff writer at that point, a month or two in. And we never talked much about titles, but I guess I was like the assistant editor or editorial assistant. I was never told that. That's what I assumed I was. I never had an official title until I was called associate editor.

Q: When was that?

ROY THOMAS: Around the end of 1966 or beginning of '67. Stan told me and the new assistant editor, who was a friend of mine. He said: Well, we have got to have some titles around here, he told me one day. He said: I'm the editor, so I guess that makes you the associate editor; and Gary, my friend, was the assistant editor. From that time on, about a year and a half or so after I worked there, I was the associate editor until what? Middle or late 1972, when I became editor-in-chief.

On the creation process:

Q: Mr. Thomas, can you describe for us when you arrived in Marvel in the 1960s what the first step was in the process of creating a comic book issue?

ROY THOMAS: The first step was for the designated writer to come up with a plot idea.

Q: How did the designated writer become designated?

ROY THOMAS: That was Stan Lee's decision. Of course, it was often him designating himself, but then it became me or someone else.

Q: What happens after the designated writer comes up with a plot idea?

ROY THOMAS: The writer would either write out the plot or synopsis. We used those terms interchangeably or he might — in some cases, but usually it was written — might verbally — one way or the other we would give it to the — the pencil artist. We would often call the person the artist, but it was really the pencil artist, who might or might not be the inker.

Q: How did the pencil artist become designated to do the particular issue?

MR. TOBEROFF:: Leading; lacks foundation.

Q: You can answer.

ROY THOMAS: He — that was Stan Lee's decision.

Q: When in the process was the writer and the artist for a particular issue elected? When in the process?

ROY THOMAS: Well, I guess I would say more at the beginning. I mean, right away — when in the process — I mean, the writer — either one of them might have been put on first, because the artist might be continuing, while it might be a new writer or visa versa. I'm not sure if I understood the question exactly.

Q: What would happen after the writer provides either a plot or synopsis to the artist?

ROY THOMAS: The artist would go and draw or pencil the story.

Q: And what would the artist do after the artist drew or penciled the story?

ROY THOMAS: It would then be mailed or brought physically into the — the office so Stan Lee could review it. Of course, he was the writer. He would also be writing them.

Q: And after Stan Lee reviewed the artwork, what would happen next?

ROY THOMAS: Well, if there were no corrections, it would then be written by the writer, which would either be Stan Lee or perhaps someone else. Usually, Stan at that stage, when I first arrived.

Q: And when you say "written," what do you mean?

ROY THOMAS: Well, yes, what I really meant there is the term that — what we later came to use the verb "dialogue for," which means to write the dialogue, which includes, actually, the dialogue and the so-called captions. And while doing that to indicate those — where those captions and balloons come on the page, generally writing it on the original artwork — not the copy, but indicating the shape of the balloons and the captions and writing a separate script.

Q: And after the writer wrote the dialogue and captions, what would happen next?

ROY THOMAS: Well, if it was Stan or his brother Larry Lieber at that stage, it would be sent to the inking the inker, we call it, the artist who applied the ink, who usually was not the same artist who penciled it; although, it was — it could be but it usually was not. If it was a new writer like me, Stan would go over the — the scripts first for the first few months before it would be sent out.

Q: And where would it go after Stan would review the scripts?

ROY THOMAS: It then goes to a letterer. It would be sent out — I'm sorry. I said the inking art. I'm sorry, it has to go to the letterer first. I'm sorry. My mistake.

Q: What does the letterer do?

ROY THOMAS: The letterer was the person who would letter the actual dialogue and captions as well as their shapes onto the page in ink.

Q: What is the difference between a letterer and the inker?

ROY THOMAS: The inker was the person who would apply the ink to the drawing portion of the page, go over to and amend and add to what the penciller had — had drawn.

Q: So it goes from the letterer to the inker?

ROY THOMAS: Yes. Sometimes, it would come back through the office to be rerouted, but often it was just sent — Stan, generally, did not review things between the stages of lettering and inking, so quite often the letterer was asked to just mail it directly on to the — to the inker. Or, you know, the inker might even some days come by and pick it up. There were many, many different little ways it could work.

Q: What happens after the inker goes over the pencils?

ROY THOMAS: After the book is inked, the inker would either mail or bring it into the office, either turning it directly to Stan or to the production manager, depending on whether Stan wanted to see him or not.

Q: What would happen to it when it got to either Stan or the production manager?

ROY THOMAS: Stan would go over the story and proofread it, asking for any changes he wanted on either the copy or even at that stage, even still on the art if he saw something that didn't quite work out.

Q: At what point does the issue get colored?

ROY THOMAS: Well, at the time that the — generally –pretty much as soon as the inking would come into the office or very soon thereafter, it would be Photostatted and reduced to a smaller size, about the size of a comic page or so. And those Photostats would be given to what we call the colorist who is the person who actually applied water colors to that to indicate what the colors should be and also would write in notations to clarify so that the colors would be matched in the final book by the people who actually did the physical coloring that got reproduced. These were actually called color guides, what the colorist did.

On initiating character creation:

Q: Did artists ever come up with ideas for new characters?

ROY THOMAS: Yes.

Q: Was it your understanding that part of the writer's assignment was to introduce new characters into a comic book series?

ROY THOMAS: Yes.

Q: Was it your understanding that part of the artist's assignment was to introduce new characters into a comic book series?

ROY THOMAS: Yes, anything that would be — would further the plot.

Q: How — how did the artists know what to draw?

MR. TOBEROFF:: Leading; vague.

ROY THOMAS:: The artists were given a story line, which might be anything from a few sentences to in quite a few cases two or three pages or so of a — a sort of a –a general plot line. It wasn't the exact dialogue, you know, in movie script form. It was more a short story synopsis of the scene. And that would tell the artist what the story was. Then it was his job to turn that into pictures.

MS. KLEINICK: Q: When you arrived at Marvel in , did you ever see Stan interacting with other writers or artists?

ROY THOMAS: Yes.

Q: Did you ever see Stan give a plot or describe a plot to an artist?

ROY THOMAS: Yes.

Q: To your knowledge did artists start working on pages before discussing the plot or synopsis with Stan or the writer?

ROY THOMAS: No.

Q: Who decided which writer and artist would work on a particular comic book or issue?

ROY THOMAS: Stan.

Q: Were the assignments to writers given orally or in writing?

ROY THOMAS: Generally, orally.

Q: Are you aware of how assignments were given to artists?

ROY THOMAS: Well, orally. Sometimes Stan would be talking to the person directly. Just as often or more often Sol Brodski as the production manager would later report — would call that person up and tell them. But, of course, they were always understood to be speaking for Stan, and they were.

Q: And just so we're clear, I just want you understand, when I'm saying "assignment," I mean the assignment to do a particular issue.

ROY THOMAS: Uh-huh.

Q: Is that how you understood my question?

ROY THOMAS: Yes.

Q: Are you aware of any instance where a writer began to work on a new series or title or comic book without first being assigned to it by Stan?

ROY THOMAS: People might come up with an idea for a new series at some stage. Not — not in the — this — this wouldn't have happened before at least about, you know, the early 70's or so. Once or twice — generally speaking, the ideas were generated, you know, by someone in the office, by Stan or sometimes later by me; but we were open to somebody else coming in, but it wasn't anything we were going around looking for or asking for.

Q: In the 1960s — from 1965 to 1970, are you aware of any instance where a writer came in and actually started working on a new series before Stan said: Go ahead and write the series?

ROY THOMAS: No.

Q: Are you aware of any instances where an artist began work on a comic book issue before getting the assignment to do the issue from Stan?

ROY THOMAS: No.

Q: Did writers or artists have any authority to assign themselves to do an issue without prior approval from Stan or Sol?

ROY THOMAS: No. No.

Q: Are you aware of any instances where an artist submitted artwork for an issue that he hadn't been assigned to, like on spec?

ROY THOMAS: Only new artists who were turning in samples, not an established artist, not one that was already — was already doing work for Marvel.

Q: To your knowledge during this time period, 1965 to 1972, did Marvel ever buy any work created on spec by freelance artists?

ROY THOMAS: No. No.

On the production process:

Q: Was there a set production schedule for the Marvel comic titles back in the 1960s to early 70's?

ROY THOMAS: Yes.

Q: When the writers were given an assignment, were they also given a deadline to submit the — let's start with the artist. When the artists were given an assignment, were they given a deadline by which they had to submit the finished pencils?

ROY THOMAS: Yes. Either the exact date or as fast as you could do it. But, yes. They were doing a deadline.

Q: And then when the artwork went to the writers, were the writers also given deadlines by which they had to submit the scripts?

ROY THOMAS: Yes.

Q: The dialogue?

ROY THOMAS: Yes.

Q: Who set those deadlines?

ROY THOMAS: They were worked out by the production manager.

Q: That was Sol Brodski?

ROY THOMAS: Yes. Through '70 or so when he quit. After that by John Verpoorten.

Q: And who ultimately decided which books were published and which books weren't published?

ROY THOMAS: Well, during that period and through about sometime in about '72, it was generally Martin Goodman. For a short period of time in the early 70's it was his son Chip Goodman who had — who was — had become publisher.

Q: Was the assignment process the same for freelancers as it was for staff writers and artists?

MR. TOBEROFF:: Vague.

ROY THOMAS:: I was going ask, just to — if you could clarify that, just I make sure – I'm sure I understand it.

MS. KLEINICK: Q: Did staff artists get their assignments the same way, from Stan or from Sol Brodski?

ROY THOMAS: Oh, yes.

MR. TOBEROFF:: Compound.

MS. KLEINICK: Q: How did staff artists get their assignments?

ROY THOMAS: They were told either directly by Stan or quite often by Sol Brodski in his capacity to do them. Of course, if Sol assigned an artist, it was because Stan wanted that artist assigned to it. They would confer on it and say: Is this artist available. Things of this sort. Sol was the practical one who had to tell Stan that, you know, this artist can't do it or can do it, or it will cause problems if this artist was taken off something else to do this and that. They worked very closely on that.

Q: So after the artist submitted pencil drawings, you testified that Stan would review the artist's work; correct?

ROY THOMAS: Yes.

Q: Was that the case for all of the Marvel artists, that Stan reviewed their work?

ROY THOMAS: Yes. He paid a little less attention, perhaps, to some of the, you know, lesser books — he probably went — you know, like the westerns and so forth that were kind of dying out. But he reviewed everything.

On crossovers and their implications for character ownership:

Q: Did — did Stan ever — if Stan decided. Was it your understanding that Marvel had the ability to use characters that were introduced into its story lines by a writer and artist into a different comic book story line being drawn and written by a different artist and writer?

MR. TOBEROFF:: Objection; compound; leading; vague.

Q: You can answer.

MR. TOBEROFF:: Assumes facts.

ROY THOMAS:: If by the ability you mean the right to do it, and the — yes.

(break in transcript)

Q: Was that done — was that done in the 60's after you got there, where characters that had been introduced into one comic book line title were used in other comic book lines or titles?

MR. TOBEROFF:: Same objections.

ROY THOMAS:: Yes.

On the work for hire statement on the backs of Marvel checks:

ROY THOMAS:: Yes, there were stamped legends or paragraphs on the back of the checks. I cannot remember offhand if they were on both the freelance and the staff checks. I know they were on the freelance checks, but I don't recall whether they were on the others. Because I never — you know, after a while you just stop paying attention to those. You just sign the check and that was it.

Q: Do you recall whether the first freelance checks you received from Marvel had a legend or stamp on the check?

ROY THOMAS: I know that all the ones I remember did. And I remember back pretty early, but, you know, I couldn't swear the very first one did; but it, you know — you know, it seemed like it was an ongoing policy.

Q: Do you recall what the legend said?

ROY THOMAS: Only in a general sense. I, of course, read it; but, basically, it was saying that the company had — owned all the — the copyrights and all of the rights to the material for which I was being — material or work for which I was being paid.

Q: And was that the same type of language that you recall seeing on all of the checks that had the legends on them?

ROY THOMAS: Whenever I read it — the exact wording may have changed slightly from time, but it was always, you know, words to that effect.

Q: Do you know whether the checks that were given to other writers or freelance artists also had a legend or a stamp on them?

ROY THOMAS: I know that they did. I didn't see everyone's checks, of course; but — and it was my understanding that they did.

Q: Did you ever discuss the check legends with any of the other freelance writers or artists?

ROY THOMAS: I don't recall specific, you know, conversations in detail. But I know that from time to time we would discuss them, because at first I was a little puzzled seeing all this on here.

On the general understanding of work for hire in the 1960s and early 1970s:

Q: Did Marvel have a policy to your knowledge in the 1960s and early '70s that it owned the rights to all of the materials that were submitted for publication by either employees or freelancers?

MR. TOBEROFF:: Vague.

ROY THOMAS:: Yes, I understood it and considered that — considered it's always owning the copyrights, yes.

Q: Was that policy generally understood in the comics industry in the 1960s and early '70s?

MR. TOBEROFF:: Calls for speculation.

ROY THOMAS:: To the best of my knowledge, based on people I talked to over the years, it was generally known.

Q: When you say "based on people I talked to over the years," my question was: Was the policy generally understood in the '60s and early '70s?

MR. TOBEROFF:: Calls for speculation; vague.

Q: To your knowledge?

ROY THOMAS: The artists and writers in the field — those were the people I was talking about that I — when I spoke to — they knew that that is what the — what the company considered — that it was considered that — and it was generally accepted with some — you know, some unhappiness about — about the facts, perhaps; but it was accepted that that was the conditions under which they were working.

On the significance of Kirby's dialog and margin notes on original artwork:

Q: Mr. Thomas, when you started working for Marvel in 1965 through 1972, did you see the — any of the finished artwork — finished pencils that Jack Kirby submitted on any of the stories that he was working on?

ROY THOMAS: On many of them.

Q: Do you ever recall seeing any notes or suggested dialogue that Mr. Kirby included on the artwork pages he turned in?

ROY THOMAS: Yes. Pretty invariably, some sort of notes — whether some of it suggested dialogue, some of it was other comments or plot things.

Q: And do you know on the issues where Stan was the writer whether he — what he would do with the notes and dialogue that Kirby put in the margins?

ROY THOMAS: He would utilize them to make sure that he understood fully what — what was going on based on Jack's expansion of the plot. And then he would — as far as the dialogue, he would utilize little snippets of it, or he would make up his own, as far as I could tell when I was examining it and when I was proofreading and marks were often still there. He used very little of the exact wording.

Q: I would like to mark as Thomas Exhibit — I guess we are up to — a document bearing production number Marvel 15988 through 16125.

(break in transcript)

ROY THOMAS: …the beginning; whether that was verbal — or as it was in so many cases — written. That kind of was part of the writing, and it's part of the payment.

On artists' contribution to plot at Marvel in the 1960s:

Q: Are you aware that Stan Lee, in interviews, has stated that in 1960s, under the
Marvel Method, that artists were expected to plot stories?

MS. KLEINICK: Objection; states facts not in evidence.

ROY THOMAS: I haven't any knowledge of that. It would have, you know, surprised me; but if he did, he probably misspoke.

Q: Is it your understanding that at Marvel, artists were — part of their duties were to plot the stories through the — through their artwork and through notes in the margins and suggested dialogue?

MS. KLEINICK: Objection.

ROY THOMAS: We didn't use that, you know, think about that much or use that term then.
But as I look back on it, and over the years and analyze it, I realize they were — I would say co-plotting the stories. I would not say plotting. When you are given a story idea, even if it is a few sentences, quite often, and certainly if it was more, as it was in many cases, you're certainly not plotting the story, you were co-plotting.

Q: Starting at the time you started — well, whether or not they were co-plotting or plotting — is it correct that artists were, at the time you got to Marvel in , artists were expected to plot stories?

MS. KLEINICK: Objection.

ROY THOMAS: They were expected to co-plot the stories.

Q: Okay.

ROY THOMAS: As they — to do whatever is necessary to tell the story; that involved adding elements for the plot. So, I call it co-plotting.

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