Kirby - Marvel Appellate Document Record Volume 9

Case 11-3333, Document 80, 01/26/2012, 509520, Page1 of 291
CASE NO. 11-3333

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

MVL Rights, LLC,
Plaintiffs-Counter-Defendants - Appellees,
Walt Disney Company, Marvel Entertainment, Incorporated,
Counter-Defendants - Appellees,
v.
Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby, Barbara J. Kirby,
Defendants-Counter-Claimants - Appellants.
APPELLANTS’ JOINT APPENDIX, VOLUME IX OF X
Appeal From The United States District Court for the Southern
District of New York,
Civil Case No. 10-141 (CM) (KF), Hon. Colleen McMahon
TOBEROFF & ASSOCIATES, P.C.

Marc Toberoff
mtoberoff@ipwla.com
22631 Pacific Coast Highway #348
Malibu, California 90265
Telephone: (310) 246-3333
Facsimile: (310) 246-3101
Attorneys for Defendants-Appellants,
Lisa R. Kirby, Neal L. Kirby, Susan M.
Kirby and Barbara J. Kirby
CASE NO. 11-3333

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

MVL Rights, LLC,
Plaintiffs-Counter-Defendants - Appellees,
Walt Disney Company, Marvel Entertainment, Incorporated,
Counter-Defendants - Appellees,
v.
Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby, Barbara J. Kirby,
Defendants-Counter-Claimants - Appellants.
APPELLANTS’ JOINT APPENDIX, VOLUME IX OF X
Appeal From The United States District Court for the Southern
District of New York,
Civil Case No. 10-141 (CM) (KF), Hon. Colleen McMahon

Marc Toberoff
mtoberoff@ipwla.com
Telephone: (310) 246-3333
Facsimile: (310) 246-3101
Lisa R. Kirby, Neal L. Kirby, Susan M.
Kirby and Barbara J. Kirby
TABLE OF CONTENTS
JA Docket Date Description Pages

Volume No.
IX 108 4/8/2011 Reply to Local Rule 56.1 Statement re: 2152
Plaintiffs’ Motion for Summary
Judgment
IX 110 4/8/2011 Reply Declaration of Sabrina Perelman 2286
re: Plaintiffs’ Motions to Exclude the
Testimony of Mark Evanier and John
Morrow
IX 110-1 4/8/2011 Exhibit 1: Excerpts from November 16, 2288
1999 trial transcript in In re Marvel
Entertainment Group
IX 114 4/8/2011 Reply Declaration of Marc Toberoff re: 2292
Defendants’ Motion for Summary
Judgment
IX 114-1 4/8/2011 Exhibit 1: Excerpts from “Five Fabulous 2296
Decades of the World’s Greatest Comics:
Marvel” by Les
Daniels
IX 114-2 4/8/2011 Exhibit 2 – Excerpts from the December 2302
8, 2010 Deposition of Stan Lee
6, 2010 Deposition of Mark Evanier
IX 114-4 4/8/2011 Exhibit 4 – Excerpts from the October 2319
21, 2010 Deposition of John Romita
IX 114-5 4/8/2011 Exhibit 5 – Excerpts from the October 26 2325
and October 27, 2010 Depositions of Roy
Thomas
Judgment
i
IX 121 7/28/2011 Order Granting Plaintiffs’ Motion for 2367

Summary Judgment and Denying
Judgment
IX 123 8/8/2011 Judgment 2417
IX 124 8/15/2011 Notice of Appeal 2419
ii
INDEX TO APPENDICES
Joint Appendix

Volume No.
I N/A 1/9/2012 Docket for Civil Case 1:10-cv-00141- 1
CM-KNF as of January 9, 2012
I 1 1/8/2010 Complaint 19
I 9 3/9/2010 Notice of Defendants’ Motion to 36
Dismiss for Lack of Personal
Jurisdiction and Failure to Join
Necessary Parties
I 10 3/9/2010 Defendants’ Memorandum of Law re: 39
Motion to Dismiss
I 11 3/9/2010 Declaration of Lisa Kirby re: Motion to 67
Dismiss
I 12 3/9/2010 Declaration of Neal Kirby re: Motion to 71
Dismiss
I 13 3/9/2010 Declaration of Marc Toberoff re: Motion 75
to Dismiss
I 18 3/26/2010 Declaration of Alan Braverman re: 78
Motion to Dismiss
I 19 3/26/2010 Declaration of Eli Bard re: Motion to 80
Dismiss
I 20 3/26/2010 Declaration of James Quinn re: Motion 84
to Dismiss
I 23 4/6/2010 Reply Declaration of Marc Toberoff re: 87
Motion to Dismiss
I 24 4/6/2010 Reply Declaration of Lisa Kirby re: 91
Motion to Dismiss
I 27 4/14/2010 Order Denying Defendants’ Motion to 95
Dismiss
I 30 4/28/2010 Answer to Complaint and Counterclaims 111
iii

Volume No.
I 43 10/14/2010 Order re: Deposition of Mark Evanier 140
I 50 12/6/2010 Answer to Counterclaims 142
I 60 2/25/2011 Notice of Plaintiffs’ Motion for 150
Summary Judgment
I 61 2/25/2011 Plaintiffs’ Rule 56.1 Statement re: 152
Judgment
I 62 2/25/2011 Plaintiffs’ Memorandum re: Plaintiffs’ 186
Motion for Summary Judgment
I 65 2/25/2011 Declaration of Randi Singer re: 214
Judgment
II 65-1 2/25/2011 Exhibit 1 – Excerpts from the May 13, 226
2010 and December 8, 2010 Depositions
of Stan Lee
II 65-2 2/25/2011 Exhibit 2 – Excerpts from the October 327
II 65-3 2/25/2011 Exhibit 3 – Excerpts from the October 378
26 and October 27, 2010 Depositions of
Roy Thomas
II 65-4 2/25/2011 Exhibit 4 – Excerpts from the January 7, 422
2011 Deposition of Lawrence Lieber
II 65-5 2/25/2011 Exhibit 5 – Excerpts from the June 30, 448
2010 Deposition of Neal Kirby
II 65-6 2/25/2011 Exhibit 6 – Excerpts from the July 1, 497
2010 Deposition of Lisa Kirby
III 65-7 2/25/2011 Exhibit 7 – Excerpts from the October 515
25, 2010 Deposition of Susan Kirby
III 65-8 2/25/2011 Exhibit 8 – Excerpts from the November 531
III 65-9 2/25/2011 Exhibit 9 – Excerpts from the December 553
iv

Volume No.
III 65-10 2/25/2011 Exhibit 10 – Excerpts from the January 581
10, 2011 Deposition of John Morrow
III 65-15 2/25/2011 Exhibit 15 – August 31, 2009 Press 599
Release from the Walt Disney Company
III 65-20 2/25/2011 Exhibit 17 – May 30, 1972 Agreement 603
between Jack Kirby and Magazine
Management Co., Inc.
III 65-21 2/25/2011 Exhibit 18 – 1981 Interview with Stan 609
Lee by Leonard Pitts, Jr.
III 65-28 2/25/2011 Exhibit 25 – November 1, 1998 629
Agreement between Stan Lee and
Marvel Enterprises, Inc.
III 65-29 2/25/2011 Exhibit 26 – August 6, 2007 Interview 640
with Lawrence Lieber by Daniel Best
III 65-30 2/25/2011 Exhibit 27 – January 9, 1963 Letter from 671
Stan Lee to Jerry Bails
III 65-31 2/25/2011 Exhibit 28 – Excerpt from Kirby: King 674
of Comics by Mark Evanier
III 65-32 2/25/2011 Exhibit 29 – “Stan Lee Made Up the Plot 677
… And I’d Write the Script” by Roy
Thomas
III 65-33 2/25/2011 Exhibit 30 – Two-page synopsis of The 692
Fantastic Four
III 66-1 2/25/2011 Exhibit 31 – Interview with Stan Lee by 695
Dan Hagen
III 66-2 2/25/2011 Exhibit 32 – Transcript of Interview with 715
Stan Lee by Eric Leguebe
III 66-3 2/25/2011 Exhibit 33 – Excerpts from Origins of 724
Marvel Comics by Stan Lee
III 66-4 2/25/2011 Exhibit 34 – June 11, 2007 Affidavit of 758
Stan Lee
v

Volume No.
III 66-5 2/25/2011 Exhibit 35 – March 7, 2006 Agreement 774
between Stan Lee and Marvel
Entertainment, Inc.
III 66-6 2/25/2011 Exhibit 36 – May 19, 1978 Agreement 777
between John Romita and Marvel
Comics Group
III 66-7 2/25/2011 Exhibit 37 – June 1, 1978 Agreement 779
between Roy Thomas and Marvel
Comics Group
III 66-8 2/25/2011 Exhibit 38 – April 28, 2008 Letter from 781
Gene Colan to Marvel Comics
Enterprises
III 66-9 2/25/2011 Exhibit 39 – Excerpt from The Art of 784
Jack Kirby by Ray Wyman, Jr.
III 66-10 2/25/2011 Exhibit 40 – January 9, 1966 Article 787
“Super-Heroes With Super Problems” by
Nat Freedland
IV 66-11 2/25/2011 Exhibit 41 – Interview with Jack Kirby 794
and 66- by Gary Groth
12
IV 66-13 2/25/2011 Exhibit 42 – Excerpt from Jack Kirby 826
Collector Fifty-Four
IV 66-14 2/25/2011 Exhibit 43 – Interview with Jack Kirby 829
by Mark Herbert
IV 66-15 2/25/2011 Exhibit 44 – July 12, 1966 Affidavit of 841
Jack Kirby
IV 66-16 2/25/2011 Exhibit 45 – Renewal Copyright 853
Registrations signed by Jack Kirby
IV 66-17 2/25/2011 Exhibit 46 – March 24, 1975 Agreement 874
between Jack Kirby and Marvel Comics
Group
vi

Volume No.
IV 66-18 2/25/2011 Exhibit 47 – June 16, 1986 883
Acknowledgement of Copyright
Ownership by Jack Kirby
IV 66-19 2/25/2011 Exhibit 48 – June 16, 1987 Agreement 886
between Jack Kirby and Marvel Comics
Group
IV 66-20 2/25/2011 Exhibit 49 – May 12, 1987 Letter from 898
Joseph Calamari to Jack Kirby
IV 66-21 2/25/2011 Exhibit 50 – October 3, 1986 Article 901
“Response: Jack Kirby replies to Marvel
Statement”
IV 66-22 2/25/2011 Exhibit 51 – November 19, 1997 Letter 904
from Stephen F. Rohde to Joseph
Calamari
IV 66-23 2/25/2011 Exhibit 52 – Interview with Stan Lee by 908
David Anthony Kraft
IV 66-24 2/25/2011 Exhibit 53 – Interview with Stan Lee by 925
Clifford Meth and Daniel Dickholtz
IV 66-26 2/25/2011 Exhibit 55 – September 22, 2009 Article 931
“Who Created Spider-Man? [Kirby
Lawsuit]” by Al Nickerson
IV 66-27 2/25/2011 Exhibit 56 – Excerpt from “The JACK 934
F.A.Q.”
IV 66-28 2/25/2011 Exhibit 57 – Excerpt from “The JACK 939
F.A.Q.”
IV 67 2/25/2011 Notice of Plaintiffs’ Motion to Exclude 945
the Testimony of Mark Evanier
IV 69 2/25/2011 Declaration of Sabrina Perelman re: 947
Plaintiffs’ Motion to Exclude the
Testimony of Mark Evanier
IV 69-2 2/25/2011 Exhibit 2 – Excerpts from the December 950
vii

Volume No.
IV 69-3 2/25/2011 Exhibit 3 – Excerpts from the November 995
IV 69-4 2/25/2011 Exhibit 4 – Excerpts from November 16, 1008
1999 trial proceedings in In re Marvel
Entertainment Group Inc., et al., Case
No. 97-638-RRM, in the U.S. District
Court for the District of Delaware
IV 69-5 2/25/2011 Exhibit 5 – Excerpts from the October 1014
12, 1999 Deposition of Mark Evanier in
In re Marvel Entertainment Group
IV 70 2/25/2011 Notice of Plaintiffs’ Motion to Exclude 1017
the Testimony of John Morrow
IV 72 2/25/2011 Declaration of David Fleischer re: 1019
Testimony of John Morrow
IV 72-2 2/25/2011 Exhibit B – Excerpts from the January 1021
IV 73 2/25/2011 Notice of Defendants’ Motion for 1077
Summary Judgment
IV 74 2/25/2011 Declaration of Mark Evanier re: 1080
Judgment
V 74-1 2/25/2011 Exhibit A – November 4, 2010 Expert 1088
Report of Mark Evanier
V 74-2 2/25/2011 Exhibit B – Excerpts from Kirby: King 1116
of Comics by Mark Evanier
V 74-3 2/25/2011 Exhibit C – 1972 “Jack Kirby’s Gods” 1125
Portfolio
V 74-4 2/25/2011 Exhibit D – 1969-1971 Presentation 1132
Pieces by Jack Kirby
V 75 2/25/2011 Declaration of John Morrow re: 1135
Judgment
viii

Volume No.
V 75-1 2/25/2011 Exhibit A – November 4, 2010 Expert 1140
Report of John Morrow
V 75-2 2/25/2011 Exhibit B – Fantastic Four: The Lost 1161
through Adventure #1
75-4
V 78 2/25/2011 Defendants’ Rule 56.1 Statement re: 1229
Judgment
V 82 3/25/2011 Supplement Declaration of Randi Singer 1235
re: Defendants’ Motion for Summary
Judgment
V 82-1 3/25/2011 Exhibit 58 – Excerpts from the October 1238
Roy Thomas
V 82-3 3/25/2011 Exhibit 60 – Excerpts from the January 1249
7, 2011 Deposition of Lawrence Lieber
V 82-4 3/25/2011 Exhibit 61 – Excerpts from the June 30, 1252
V 82-6 3/25/2011 Exhibit 63 – Excerpts from the January 1259
V 83 3/25/2011 Opposition to Local Rule 56.1 Statement 1277
re: Defendants’ Motion for Summary
Judgment
V 85 3/25/2011 Declaration of Marc Toberoff re: 1295
Testimony of John Morrow
V 85-3 3/25/2011 Exhibit C – Excerpts from the January 1299
ix

Volume No.
V 85-5 3/25/2011 Exhibit E – “Battling the Kirby Bug” by 1315
John Morrow
V 85-6 3/25/2011 Exhibit F – Cover of Challengers of the 1317
Unknown, No. 1
V 87 3/25/2011 Declaration of Marc Toberoff re: 1319
V 87-3 3/25/2011 Exhibit C – Excerpt from Kirby: King of 1323
Comics by Mark Evanier
V 87-5 3/25/2011 Exhibit E – Excerpts from the December 1325
V 87-6 3/25/2011 Exhibit F – Excerpts from the October 1342
V 87-7 3/25/2011 Exhibit G – Excerpts from the October 1348
Roy Thomas
V 88 3/25/2011 Declaration of Mark Evanier re: 1356
V 89 3/25/2011 Declaration of John Morrow re: 1359
Judgment
V 90 3/25/2011 Declaration of Mark Evanier re: 1364
Judgment
V 91 3/25/2011 Declaration of Richard Ayers re: 1372
Judgment
V 92 3/25/2011 Declaration of Joe Sinnott re: Plaintiffs’ 1378
VI 93 3/25/2011 Declaration of Neal Adams re: Plaintiffs’ 1384
x

Volume No.
VI 94 3/25/2011 Declaration of James Steranko re: 1390
Judgment
VI 95 3/25/2011 Declaration of Mark Toberoff (Part II) 1397
re: Motions for Summary Judgment
VI 95-1 3/25/2011 Exhibit A – September 16, 2009 1408
“Fantastic Four” Termination Notice
VI 95-2 3/25/2011 Exhibit B – Excerpts from the November 1424
VI 95-3 3/25/2011 Exhibit C – Excerpts from the December 1437
VI 95-4 3/25/2011 Exhibit D – Excerpts from the January 1477
VI 95-5 3/25/2011 Exhibit E – Excerpts from the January 7, 1513
VI 95-6 3/25/2011 Exhibit F – Excerpts from the October 1532
VI 95-7 3/25/2011 Exhibit G – Excerpts from the June 30, 1559
VI 95-8 3/25/2011 Exhibit H – Excerpts from the October 1602
VI 95-9 3/25/2011 Exhibit I – Excerpts from the May 13, 1611
2010 Deposition of Stan Lee
VI 95-10 3/25/2011 Exhibit J – Excerpts from the December 1621
VI 95-11 3/25/2011 Exhibit K – Excerpts from the October 1653
27, 2010 Deposition of Roy Thomas
VI 95-12 3/25/2011 Exhibit L – Plaintiffs’ December 20, 1660
2011 Response to Defendants’ First Set
of Requests for Admissions
VI 95-13 3/25/2011 Exhibit M – Attached as Exhibit 17 to 1668
the Declaration of Randi Singer
xi

Volume No.
VI 95-14 3/25/2011 Exhibit N – Jack Kirby Pencil Drawings 1675
of “Thor”
VII 95-15 3/25/2011 Exhibit O – Article “Kirby’s Gamma 1682
Rays: Alpha to Omega! – An Ultra-Rare
Find from 1962!”
VII 95-16 3/25/2011 Exhibit P – July 7, 2006 Agreement 1690
between Lisa Kirby and Marvel
Characters, Inc.
VII 95-17 3/25/2011 Exhibit Q – December 23, 2008 1692
Agreement between Lisa Kirby and
Marvel Characters, Inc.
VII 95-18 3/25/2011 Exhibit R – November 3, 2008 1704
Agreement between Lisa Kirby and
Marvel Characters, Inc.
VII 95-19 3/25/2011 Exhibit S – “Article “Fantastic Four 1713
#108: Jack’s Way”
VII 95-20 3/25/2011 Exhibit T – March 21, 1965 “Request for 1723
Payment” from Don Heck to Western
Printing and Lithographic
VII 95-21 3/25/2011 Exhibit U – Excerpts from “Five 1726
Fabulous Decades of the World’s
Greatest Comics: Marvel” by Les
Daniels
VII 95-22 3/25/2011 Exhibit V – Excerpts from “Alter Ego 1737
Presents: John Romita … and All that
Jazz!” by Roy Thomas and Jim Amash
VII 95-23 3/25/2011 Exhibit W – Excerpts from Jack Kirby 1746
Checklist Gold Edition
VII 95-24 3/25/2011 Exhibit X – Excerpts from The Art of 1763
Jack Kirby
VII 95-25 3/25/2011 Exhibit Y – Article “Kirby Gets 1776
Cracked”
xii

Volume No.
VII 95-26 3/25/2011 Exhibit Z – Article “The Monster of 1781
Moraggia”
VII 95-27 3/25/2011 Exhibit AA – 1974-1975 Checks to 1791
Richard Ayer
VII 95-28 3/25/2011 Exhibit BB – 1986 Check to Jack Kirby 1817
VII 95-29 3/25/2011 Exhibit CC – Article “Would You Like 1820
to See My Etchings?”
VII 95-30 3/25/2011 Exhibit DD – Attached as Exhibits 36 1828
and 37 to the Declaration of Randi
Singer
VII 95-31 3/25/2011 Exhibit EE – Draft Agreement between 1831
Jack Kirby and Marvel Comics Groups
VII 97-1 3/25/2011 Exhibit FF – Artwork by Jack Kirby 1842
VII 97-2 3/25/2011 Exhibit GG – Excerpts from Article “A 1850
Failure to Communicate: Part Two”
VII 97-3 3/25/2011 Exhibit HH – Excerpts from Article 1860
“Jack Kirby”
VII 97-4 3/25/2011 Exhibit II – Excerpts from Article “Hour 1863
Twenty-Five”
VII 97-5 3/25/2011 Exhibit JJ – Excerpts from Article “Jack 1865
Kirby Interview”
VII 97-6 3/25/2011 Exhibit KK – Excerpts from Article 1869
“Wow-What an Interview”
VII 97-7 3/25/2011 Exhibit LL – November 12, 1980 1872
Declaration of Donald S. Engel and
Exhibits C, D, E, attached thereto from
Gerber v. Cadence Industries
Corporation, et al., Case No. 80 3840
DVK, in the U.S. District Court for the
Central District of California
VII 97-8 3/25/2011 Exhibit MM – Excerpts from “Stan Lee: 1899
Conversations”
xiii

Volume No.
VII 97-9 3/25/2011 Exhibit NN – Excerpts from Article 1904
“Jack Kirby A Celebration”
VII 97-10 3/25/2011 Exhibit OO –Article “Jack Kirby 1907
Interview”
VII 97-11 3/25/2011 Exhibit PP – Article “Kirby and Goliath: 1909
The Fight for Jack Kirby’s Marvel
Artwork”
VII 97-12 3/25/2011 Exhibit QQ – November 19, 1985 Letter 1917
from DC Comics to The Comics Journal
VII 97-13 3/25/2011 Exhibit RR – Handwritten Notes of Jack 1919
Kirby
VII 97-14 3/25/2011 Exhibit SS – Excerpt from Article “A 1924
Talk with Artist-Writer-Editor Jack
Kirby”
VII 97-15 3/25/2011 Exhibit TT – Article “Jack Kirby 1926
Interview”
VII 97-16 3/25/2011 Exhibit UU – Excerpts from “Superhero 1929
Women” by Stan Lee
VII 97-17 3/25/2011 Exhibit VV – Excerpts from “Interview 1933
with Stan Lee” from ign.com
VII 97-18 3/25/2011 Exhibit WW – Excerpts from “Son of 1937
Origins of Marvel Comics” by Stan Lee
VII 97-19 3/25/2011 Exhibit XX – Excerpts from “The 1942
Fantastic Four” by Stan Lee
VII 97-20 3/25/2011 Exhibit YY – Excerpts from “Alter Ego, 1946
No. 74”
VII 97-21 3/25/2011 Exhibit ZZ – Excerpts from Article 1950
“Jack Kirby – The Master of Comic
Book Art”
VII 97-22 3/25/2011 Exhibit AAA – Excerpts from Article 1953
“Stan Lee Interview – WBAI Radio NY
– August 12, 1986”
xiv

Volume No.
VII 97-23 3/25/2011 Exhibit BBB – Excerpts from “The 1956
Incredible Hulk” by Stan Lee
VII 97-24 3/25/2011 Exhibit CCC – Excerpts from Article 1959
“The Goldberg Variations”
VII 97-25 3/25/2011 Exhibit DDD – Excerpts from Article 1962
“Stan Lee Interview – WBAI Radio NY
– March 3, 1967”
VII 97-26 3/25/2011 Exhibit EEE – Article “Jack Kirby: 1965
Prisoner of Gravity”
VIII 97-27 3/25/2011 Exhibit FFF – Article “Jack Kirby: A 1968
By-the-Month Chronology”
VIII 97-28 3/25/2011 Exhibit GGG – Article “The Highs and 2006
Lows of Henry Pym”
VIII 97-29 3/25/2011 Exhibit HHH – Article “They Were 2011
Aces”
VIII 97-30 3/25/2011 Exhibit III – December 24, 1980 2014
Declaration of Stephen Gerber and
Exhibit 3, attached thereto from Gerber
v. Cadence Industries Corporation, et al.
VIII 97-31 3/25/2011 Exhibit JJJ – Excerpts from “Nimmer on 2037
Copyright” (1963)
VIII 97-32 3/25/2011 Exhibit KKK – August 5, 1986 Letter 2049
from Joe Sacco to Paul Levine and
enclosure
VIII 98 3/25/2011 Opposition to Local Rule 56.1 Statement 2056
re: Plaintiffs’ Motion for Summary
Judgment
VIII 99 3/25/2011 Redacted Declaration of Gene Colan re: 2146
Judgment
Judgment
xv

Volume No.
IX 110 4/8/2011 Reply Declaration of Sabrina Perelman 2286
re: Plaintiffs’ Motions to Exclude the
Testimony of Mark Evanier and John
Morrow
IX 110-1 4/8/2011 Exhibit 1: Excerpts from November 16, 2288
1999 trial transcript in In re Marvel
Entertainment Group
IX 114 4/8/2011 Reply Declaration of Marc Toberoff re: 2292
Judgment
IX 114-1 4/8/2011 Exhibit 1: Excerpts from “Five 2296
Fabulous Decades of the World’s
Greatest Comics: Marvel” by Les
Daniels
Roy Thomas
Judgment
IX 121 7/28/2011 Order Granting Plaintiffs’ Motion for 2367
Judgment
IX 123 8/8/2011 Judgment 2417
IX 124 8/15/2011 Notice of Appeal 2419
xvi

Volume No.
X N/A Transcript for the May 13, 2010 2421
Deposition of Stan Lee (requested by the
Court and submitted by Plaintiffs on
June 6, 2011)
Confidential Appendix
CA Docket Date Description Pages

Volume No.
I 103 3/25/2011 Declaration of Gene Colan re: Plaintiffs’ 1
I 103 3/25/2011 Exhibit A: March 22, 1975 Agreement 7
between Gene Colan and Marvel Comics
Group
I 103 3/25/2011 Exhibit B: May 30, 1978 Agreement 15
Group
I 103 3/25/2011 Exhibit C: April 28, 2008 Letter from 16
Gene Colan to Joe Quesada
I 103 3/25/2011 Exhibit D: May 31, 2008 Agreement 18
between Gene Colan and Marvel
Characters, Inc.
I 103 3/25/2010 Confidential Declaration of Marc 28
Toberoff re: Plaintiffs’ Motion for
Summary Judgment
I 103 3/25/2010 Exhibit 2: July 26, 2002 Agreement 33
between Stan Lee and Marvel Enterprises,
Inc
I 103 3/25/2010 Exhibit 4: March 20, 2006 Agreement 35
between Silver Creek Pictures, Inc. and
POW! Entertainment, Inc.
I 103 3/25/2010 Exhibit 5: May 2, 2008 Agreement 39
between Silver Creek Pictures, Inc. and
POW! Entertainment, Inc.
xvii

Volume No.
I 103 3/25/2010 Exhibit 6: December 31, 2009 47
Agreement between Catalyst Investments,
LLC and POW! Entertainment, Inc.
I 103 3/25/2010 Exhibit 7: December 18, 2009 59
Agreement between Silver Creek
Pictures, Inc. and POW! Entertainment,
Inc.
I 103 3/25/2010 Exhibit 8: June 11, 2007 Agreement 72
between Marvel Entertainment, Inc. and
Stan Lee.
I 103 3/25/2010 Exhibit 9: Excerpts from the January 7, 77
I 103 3/25/2010 Exhibit 10: March 22, 1975 Agreement 82
Group
I 103 3/25/2010 Exhibit 11: September 1, 1974 91
Agreement between Roy Thomas and
Marvel Comics Group
I 103 3/25/2010 Exhibit 12: August 27, 1976 Agreement 99
between Roy Thomas and Marvel Comics
Group
I 103 3/25/2010 Exhibit 13: February 24, 1978 Letter 110
between Cadence Publishing Division
and Roy Thomas, enclosing March 7,
1977 Agreement between Roy Thomas
and Marvel Comics Group
II N/A Transcript for the October 21, 2010 115
Deposition of John Romita (requested by
the Court and submitted by Plaintiffs on
July 12, 2011)
III N/A Transcript for the October 26, 2010 395
Deposition of Roy Thomas (requested by
July 12, 2011)
xviii

Volume No.
III N/A Transcript for the October 27, 2010 601
Deposition of Roy Thomas (requested by
July 12, 2011)
IV N/A Transcript for the December 8, 2010 705
Deposition of Stan Lee (requested by the
Court and submitted by Plaintiffs on June
6, 2011)
Special Appendix
SA Docket Date Description Pages

Volume No.
I 123 8/8/2011 Judgment 1
I 121 7/28/2011 Order Granting Plaintiffs’ Motion for 3
Judgment
I 27 4/14/2010 Order Denying Defendants’ Motion to 53
Dismiss
xix
Case 11-3333, DocumentDocument
Case 1:10-cv-00141-CM-KNF 80, 01/26/2012, 509520,
108 Filed Page22Page
04/08/11 of 291
1 of 134
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x
:
MARVEL WORLDWIDE, INC., :
MARVEL CHARACTERS, INC. and :
MVL RIGHTS, LLC, :
:
Plaintiffs, : Civil Action No. 10 Civ. 141 (CM) (KNF)
:
- against- :
:
LISA R. KIRBY, BARBARA J. KIRBY, : PLAINTIFFS’ AND COUNTERCLAIM-
NEAL L. KIRBY and SUSAN N. KIRBY, : DEFENDANTS’ REPLY LOCAL RULE
: 56.1 STATEMENT OF UNDISPUTED
Defendants. : MATERIAL FACTS IN SUPPORT OF
-----------------------------------------------------------------x THEIR MOTION FOR SUMMARY
: JUDGMENT
LISA R. KIRBY, BARBARA J. KIRBY, :
NEAL L. KIRBY and SUSAN N. KIRBY, :
:
Counterclaimants, :
:
- against- :
:
MARVEL ENTERTAINMENT, INC., :
MARVEL WORLDWIDE, INC., :
MARVEL CHARACTERS, INC., :
MVL RIGHTS, LLC, :
THE WALT DISNEY COMPANY, :
and DOES 1 through 10, :
:
Counterclaim-Defendants. :
----------------------------------------------------------------x
Pursuant to Local Rule 56.1 of the Local Rules of the United States District Court for the
Southern District of New York (“Local Rules”), Plaintiffs Marvel Worldwide, Inc. (“MWI”),
Marvel Characters, Inc. (“MCI”) and MVL Rights, LLC (“MVL”) (collectively, “Plaintiffs”),
and Counterclaim-Defendants Marvel Entertainment, LLC, sued herein as Marvel Entertainment,
Inc. (“Marvel Entertainment”) and The Walt Disney Company (“Disney”), by and through their
undersigned counsel, respectfully submit the following Reply Statement Of Undisputed Material
Facts in support of their motion for summary judgment.
JA2152
Case 1:10-cv-00141-CM-KNF 80, 01/26/2012, 509520,
04/08/11 of 291
2 of 134
THE PARTIES
Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Defendants’ Reply
1. Since its inception in the 1930s as Disputed to the extent that this paragraph does Defendants’ response does not set forth any
Timely Comics, the companies now known as not list all of the Marvel Predecessors; otherwise specific facts to dispute the facts set forth
Marvel were preceded by numerous admitted in Paragraph 1 as required by Local Rule
predecessors-in-interest (collectively with MWI, 56.1(c). Therefore, Paragraph 1 is deemed
MCI, MVL and Marvel Entertainment, admitted in its entirety for the purposes of
“Marvel”), including Amazing Detective Cases this motion. Local Rule 56.1(c); see also
Corp., Americas Magman Sales Corp., Parks Real Estate Purchasing Group v. St.
Animated Timely Features, Inc., Animirth Paul Fire and Marine Ins. Co., 472 F.3d
Comics, Inc., Atlas Magazines, Inc., Atlas News 33, 41 (2d Cir. 2006) (A party opposing
Co., Inc., Bard Publishing Corp., Bilbara summary judgment “must set forth specific
Publishing Co., Inc., Brief Digest Corp., Britan facts showing that there is a genuine issue
Publishing Corp., Broadcast Features for trial”); Giannullo v. City of N.Y., 322
Publications, Inc., Canam Publishers Sales F.3d 139, 140 (2d Cir. 2003).
Corp., Chipiden Publishing Corp., Christiana
Publishing Corp., Classic Detective Stories, Inc., Additionally, Defendants’ response does
Classic Syndicate, Inc., Comedy Publications, not contain any citation to the record
Inc., Comic Combine Corp., Commonwealth evidence as required by Local Rule 56.1(d).
Publishing Corp., Complete Photo Story Corp., For this additional reason, Paragraph 1 is
Cornell Publishing Corp., Crime Bureau Stores, deemed admitted in its entirety for the
Inc., Crime Files, Inc., Current Detective purposes of this motion. See Local Rule
Stories, Inc., Daring Comics Inc., Emgee 56.1(b)-(d); see also Parks Real Estate, 472
Publications, Inc., Empire State Consolidated F.3d at 41; Giannullo, 322 F.3d at 140.
Adv. Corp., Euclid Publishing Co., Inc., Eye
Publishing Corp., Fantasy Comics, Inc., Feature
Story Corp., Foto Parade, Inc., Gem
Publications, Inc., Hercules Publishing Co., H-K
Publications, Inc., International Magazine Sales,
Interstate Publishing Co., Jaygee Publications,
Inc., Jeangood Publishing Corp., Jest Publishing
Co., Inc., Leading Comic Corp., Leading
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Defendants’ Reply
Magazine Corp., Lion Books, Inc, Magazine
Management Co., Inc., Magman Export Corp.,
Male Publishing Corp., Manvis Publications,
Inc., Margood Publishing Corp., Marjean
Magazine Corp., Marjean TV Enterprises,
Marvel Comics Group, Marvel Comics, Inc.,
Medalion Publishing Corp., Miss America
Publishing Corp., Mohawk Publishing Corp;,
Mutual Magazine Corp., Newsstand
Publications, Inc., Non Pareil Publishing Corp.,
Official Magazine Corp., Olympia Publications,
Inc., Olympus Publishing Corp., Postal
Publications, Inc., Prime Publications, Inc., Red
Circle Magazines, Inc., Revere Publishing
Corp., Select Publications Inc., Snap Publishing
Co., Inc., Sphere Publications, Inc., Sports
Action, Inc., Stag Publishing Corp., Timely
Comics, Inc., Timely Publications, Tip Top
Publications, Inc., 20th Century Comic
Magazine Corp., 20th Century Comics Corp.,
Universal Crime Stories, Inc., U.S.A. Comic
Magazine Corp., Transcontinental Publishing
Corp., Vista Publications, Inc., Walden
Publishing Co., Inc., Warwick Publications,
Inc., Western Fiction Pub. Co. Inc., Young
Allies, Inc., Zenith Books, Inc., Zenith
Publishing Corporation and Zest Publishing Co.,
Inc., Martin Goodman, Jean Goodman, Perfect
Film & and Chemical Corporation, Cadence
Industries Corporation and Marvel
Entertainment Group, Inc. (collectively, the
“Marvel Predecessors”). Declaration of Eli
2
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Bard dated February 18, 2011 (“Bard Decl.”) ¶
2; Declaration of Randi W. Singer dated
February 18, 2011 (“Singer Decl.”) Exhibit
(“Ex.”) 12 at ¶ 14.
2. Jack Kirby (“Kirby”) was a comic book Disputed to the extent that Jack Kirby also Defendants’ response does not set forth any
artist whose drawings appeared in comic books provided plotting, dialogue, and scripting for specific facts to dispute the facts set forth
published by Marvel during the period comic books published by Marvel during the in Paragraph 2 as required by Local Rule
September 1958 through September 1963, and at period September 1958 through September 1963, 56.1(c). Therefore, Paragraph 2 is deemed
various times before and after that period. and at various times before and after that period; admitted in its entirety for the purposes of
Singer Decl. Ex. 13 at ¶ 8; id. Ex. 12 at ¶¶ 18- otherwise admitted. Declaration of Marc Toberoff this motion. Local Rule 56.1(c); see also
19. (“Tob. Dec.”) Ex. MM at 151 (Stan Lee: Parks Real Estate, 472 F.3d at 41;
“Certainly 90 percent of the ‘Tales of Asgard’ Giannullo, 322 F.3d at 140.
stories were Jack’s plots, and they were great! He
certainly knew more about Norse mythology that Additionally, Defendants’ citations to the
I ever did (or at least he enjoyed making it up!)”), Declaration of Randi W. Singer dated
at 6 (Stan Lee: “Some artists, such as Jack Kirby, February 18, 2011 (“Singer Decl.”) Ex. 53
need no plot at all. I mean I’ll just say to Jack, and the Declaration of Marc Toberoff dated
‘Let’s let the next villain be Dr. Doom’ … or I March 25, 2011 (“Toberoff Decl.”) Exs. I,
may not even say that. He may tell me. And then FF, GG, and II do not support Defendants’
he goes home and does it. He’s so good at plots, response. See Local Rule 56.1(b)-(d).
I’m sure he’s a thousand times better than I. He
just about makes up the plots for these stories.”); Defendants’ citations to Exs. FF, GG, HH,
Singer Dec., Ex. 53 at 36-37 (Stan Lee: “Jack is II, JJ, KK, and OO to the Toberoff Decl.
certainly one of the most talented, if not the most are hearsay evidence which may not be
talented guy that the comic book industry has used to dispute facts. Sarno v. Douglas
ever produced. He is the most imaginative, the Elliman-Gibbons & Ives, Inc., 183 F.3d
most creative guy I have ever known in this 155, 160 (2d Cir. 1999); Hidden Brook Air,
business. His mind is an endless source of stories, Inc. v. Thabet Aviation Int’l Inc., 241 F.
concepts and ideas.”); Ex. NN (Stan Lee: “[Jack Supp. 2d 246, 270 (S.D.N.Y. 2002)
Kirby] was a virtually inexhaustible wellspring of (McMahon, J.) (“These statements are
fantastic new ideas, concepts and designs.”); Ex. I inadmissible hearsay, and therefore not
at 23:4-13; Ex. FF; Ex. GG at 193; Ex. HH at 45 competent to raise a genuine issue of
3
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(“Kirby: the artists were doing the plotting- Stan material fact.”).
was just coordinating the books, which was his
job. Stan was production coordinator. But the Defendants’ citation to Toberoff Decl. Ex.
artists were the ones that were handling both MM at 151 refers to work created outside
story and art. We had to- there was no time not the 1958-1963 time period at issue in this
to!”); Ex. II (“Jack Kirby: According to statistics, case (“the Time Period”) and is therefore
I’ve done one quarter of Marvel’s entire output. irrelevant. Fed. R. Evid. 402.
There’s a lot of hard work behind it. It’s
something that’s highly individual, highly Defendants cannot create a factual dispute
creative and above all, it sold very well.”); Ex. through their reliance on Toberoff Decl.
OO (“Q: A lot of people don’t know that you Exs. GG, JJ and OO, as these cited
actually scripted a lot of these stories-most of documents were not produced in discovery
them. Even the Marvel stuff. Kirby: I did.”); Ex. in this action and thus may not be
JJ at 45, 49 (“And I did that with the Marvel considered on summary judgment. See
books. I wrote the stories. I wrote the plots ,I did Melie v. EVCI/TCI Coll. Admin., No. 08
the drawings- I did the entire thing…”); Ex. KK Civ. 5226(HB), 2009 WL 1404325, at *1
at 122 (“Q: You have written your own stories, n.4 (S.D.N.Y., May 20, 2009), aff’d, 374 F.
text and drawings? Kirby: Yes, that’s what I App’x 150 (2d Cir. 2010).
always did and that’s what I am doing now.”)
3. Between 1958 and 1963, Kirby Disputed to the extent that between 1958-1963 Defendants’ response does not set forth any
contributed to the creation of many now iconic Jack Kirby authored or co-authored numerous specific facts to dispute the facts set forth
comic book stories and characters appearing in original comic book stories featuring a variety of in Paragraph 3 as required by Local Rule
publications of the Marvel Predecessors, characters, including “The Fantastic Four,” “X- 56.1(c). Further, Defendants’ response
including The Fantastic Four, The Incredible Men,” “Iron Man,” “Spider-Man,” “The does not contain any citation to the record
Hulk and The X-Men. Id. Ex. 12 at ¶ 19. Incredible Hulk,” “Thor,” “The Avengers,” “Nick evidence as required by Local Rule 56.1(d).
Fury” and “Ant-Man,” which were purchased by Therefore, Paragraph 3 is deemed admitted
Marvel’s Predecessors and published in their in its entirety for the purposes of this
following periodicals: Amazing Adventures, Vol. motion. See Local Rule 56.1(b)-(d); see
1, Nos. 1-6; Amazing Fantasy, Vol. 1, No. 15; also Parks Real Estate, 472 F.3d at 41;
The Amazing Spider-Man, Vol. 1, Nos. 1-7; The Giannullo, 322 F.3d at 140.
Avengers, Vol. 1, Nos. 1-2; The Fantastic Four,
Vol. 1, Nos. 1-21; The Fantastic Four Annual,
4
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Defendants’ Reply
No. 1; Journey Into Mystery, Vol. 1, Nos. 51-98;
The Incredible Hulk, Vol. 1, Nos. 1-6; The
Rawhide Kid, Vol. 1, Nos. 17-35; Sgt. Fury and
His Howling Commandoes, Vol. 1, Nos. 1-4;
Strange Tales, Vol. 1, Nos. 67-115; Tales of
Suspense, Nos. 1, 3-48; Tales to Astonish, Vol. 1,
Nos. 1, 3-50; and The X-Men, Vol. 1, Nos. 1-2;
otherwise admitted.
4. Kirby died in 1994. Id. Ex. 12 at ¶ 18; Admitted. No reply is necessary.
see also November 9, 2010 Deposition of Mark
Evanier (“Evanier Dep. (11/9/10)”) annexed as
Ex. 8 to the Singer Decl. at 27:1-4.
5. Kirby was married to Rosalind (“Roz”) Admitted. No reply is necessary.
Kirby and together they had four children:
Susan M. Kirby, Neal L. Kirby, Barbara J. Kirby
and Lisa R. Kirby (the “Defendants”). Singer
Decl. Ex. 12 at ¶ 7. Roz Kirby died on
December 22, 1997. See id. Ex. 14.
THE TERMINATION NOTICES AND CLAIMS OF COPYRIGHT OWNERSHIP

Defendants’ Reply
6. On August 31, 2009, Disney announced Admitted. No reply is necessary.
publicly that it had agreed to acquire Marvel
Entertainment, Inc. See id. Ex. 15.
7. In approximately mid-September, 2009, Disputed to the extent that Defendants’ forty- Defendants’ response does not set forth any
Defendants served forty-five (45) notices on five notices of termination (the “Termination specific facts to dispute the facts set forth
Marvel, Disney and various other entities Notices”) were served on September 16, 2009 in Paragraph 7 as required by Local Rule
purporting to terminate an alleged assignment of pursuant to 17 U.S.C. § 304(c), and gave notice 56.1(c). Therefore, Paragraph 7 is deemed
the copyrights in various works to which Kirby of the termination, on the respective effective admitted in its entirety for the purposes of
5
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had allegedly contributed (the “Termination dates listed therein, of any and all pre-January 1, this motion. Local Rule 56.1(c); see also
Notices”). See id. Ex. 16; id. Ex. 12 at ¶ 12. 1978 grants or express or implied licenses by Parks Real Estate, 472 F.3d at 41;
Jack Kirby and any other person defined in 17 Giannullo, 322 F.3d at 140.
U.S.C. § 304(c) of Kirby’s respective copyright
interest to Marvel’s predecessors, including an
“Assignment” to Marvel executed by Kirby on
May 30, 1972 (the “1972 Assignment”). See
Singer Dec., Ex. 16.
8. The Termination Notices identify the Disputed to the extent that the Termination Defendants’ response does not set forth any
following published works (including the story Notices also apply to any works which includes specific facts to dispute the facts set forth
lines, characters and other copyrightable or embodies any character, story element or in Paragraph 8 as required by Local Rule
elements contained therein), each of which was indicia reasonably associated with the listed 56.1(c). Therefore, Paragraph 8 is deemed
published with a cover date ranging from 1958 works, even if such work were omitted. See admitted in its entirety for the purposes of
to 1963, as purportedly being subject to generally Singer Decl., Ex. 16 (Amazing this motion. Local Rule 56.1(c); see also
termination: Amazing Adventures, Vol. 1, Nos. Adventures Termination) at fn. 1. Parks Real Estate, 472 F.3d at 41;
1-6; Amazing Fantasy, Vol. 1, No. 15; The Giannullo, 322 F.3d at 140.
Amazing Spider-Man, Vol. 1, Nos. 1-7; The
Rawhide Kid, Vol. 1, Nos. 17-35; Sgt. Fury and
His Howling Commandos, Vol. 1, Nos. 1-4;
Strange Tales, Vol. 1, Nos. 67-115; Tales of
Suspense, Vol. 1, Nos. 1, 3-48; Tales to
Astonish, Vol. 1, Nos. 1, 3-50; and The X-Men,
Vol. 1, Nos. 1-2 (collectively, the “Works”).
See id. Ex. 16.
9. The alleged assignment to which the Disputed to the extent that the terms of the 1972 Defendants’ response does not set forth any
Termination Notices relate, executed by Kirby Assignment are as fully set forth therein, and the specific facts to dispute the facts set forth
on May 30, 1972 (the “1972 Agreement”), Termination Notices applied as well to any and in Paragraph 9 as required by Local Rule
purports to assign from Kirby to Magazine all pre-January 1, 1978 grants or express or 56.1(c). Therefore, Paragraph 9 is deemed
6
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Defendants’ Reply
Management Co., Inc. “any and all right, title implied licenses by Jack Kirby and any other admitted in its entirety for the purposes of
and interest [Kirby] may have or control” in any person defined in 17 U.S.C. § 304(c) of Kirby’s this motion. Local Rule 56.1(c); see also
work Kirby ever created for Marvel. Id. Ex. 17 respective copyright interest to Marvel. See Parks Real Estate, 472 F.3d at 41;
at ¶ 1.A.(1). generally Singer Decl. Ex. 16 (Amazing Giannullo, 322 F.3d at 140.
Adventures Termination) at ¶ 3; fn. 3.
10. The 1972 Agreement further provides Disputed to the extent that (i) the terms of the Defendants’ response does not set forth any
that “Kirby acknowledges and agrees that all his 1972 Assignment are as fully set forth therein, specific facts to dispute the facts set forth
work on the MATERIALS, and all his work (ii) the vast majority of the 1972 Assignment is in Paragraph 10 as required by Local Rule
which created or related to the RIGHTS, was devoted to a very detailed and explicit 56.1(c). Further, Defendants’ response
done as an employee for hire of” Marvel. Id. at assignment by Kirby to a Marvel Predecessor of does not contain any citation to the record
¶ 5. specified rights in the works authored or co- evidence as required by Local Rule 56.1(d).
authored by Kirby and published by Marvel, Therefore, Paragraph 10 is deemed
which contradicts this language; and (ii) this admitted in its entirety for the purposes of
retroactive language seeking to recharacterize this motion. See Local Rule 56.1(b)-(d);
prior works as “made for hire” long after their see also Parks Real Estate, 472 F.3d at 41;
creation was specifically held to be invalid in Giannullo, 322 F.3d at 140.
Marvel Characters, Inc. v. Simon (“Marvel”),
310 F.3d 280 (2d Cir. 2002) (Marvel cannot bar Defendants’ response also states a legal
termination rights under the Copyright Act by conclusion rather than a statement of
re-characterizing works as “made for hire,” after undisputed fact and legal conclusions
the fact). cannot be used to dispute facts on summary
judgment. Schwapp v. Town of Avon, 118
F.3d 106, 111 (2d Cir. 1997).
11. According to the terms of the Admitted. No reply is necessary.
Termination Notices, and under the statutory
scheme set forth in section 304(c) of the
Copyright Act of 1976, the earliest date on
which any of the Termination Notices will
become effective is in 2014 and the latest
effective date is in 2019. See id. Ex. 16; June
30, 2010 Deposition of Neal Kirby (“N. Kirby
Dep.”) annexed as Ex. 5 to the Singer Decl. at
7
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172:12-17.
12. The initial copyright registration for each Disputed to the extent that it omits that the Defendants’ response does not set forth any
of the Works was filed with the United States original copyright registrations filed on or specific facts to dispute the facts set forth
Copyright Office in the name of the relevant around the time the Works were actually created in Paragraph 12 as required by Local Rule
Marvel Predecessor as author. Marvel also filed did not list the Works as “made for hire,” and it 56.1(c). Therefore, Paragraph 12 is
renewal copyright registrations for the following was commonplace for authors to rely on deemed admitted in its entirety for the
works in the United States Copyright Office, publishers to which they had sold their purposes of this motion. Local Rule
each of which lists one of the Marvel copyrights to register and renew such 56.1(c); see also Parks Real Estate, 472
Predecessors as the renewal claimant and copyrights. See generally, Tob. Dec., Ex. A. F.3d at 41; Giannullo, 322 F.3d at 140.
proprietor of copyright in the subject works as
works made for hire: Amazing Adventures, Vol.
1, Nos. 1-6; Amazing Fantasy, Vol. 1, No. 15;
The Amazing Spider-Man, Vol. 1, Nos. 1-7; The
Rawhide Kid, Vol. 1, Nos. 17-26, 28-35; Sgt.
Fury and His Howling Commandos, Vol. 1,
Nos. 1-4; Strange Tales, Vol. 1, Nos. 67-84, 96-
115; Tales of Suspense, Vol. 1, Nos. 3-48; Tales
to Astonish, Vol. 1, Nos. 3-50; and The X-Men,
Vol. 1, Nos. 1-2. See Bard Decl. Ex. 1. There is
no evidence in the record that Kirby ever sought
to register the copyrights in the Works in his
own name.
13. Copyright title passed from Martin and Disputed to the extent that this paragraph does Defendants’ response does not set forth any
Jean Goodman – the owners of various of the not list all of the Marvel Predecessors or specific facts to dispute the facts set forth
Marvel Predecessors – to MCI and MVL assignments therefrom; otherwise admitted. in Paragraph 13 as required by Local Rule
through a series of copyright assignments. 56.1(c). Further, Defendants’ response
Specifically, on June 28, 1968, Martin and Jean does not contain any citation to the record
Goodman (and all of their various companies), evidence as required by Local Rule 56.1(d).
8
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executed a Copyright Assignment to Cadence Therefore, Paragraph 13 is deemed
Industries Corporation (previously, before a admitted in its entirety for the purposes of
change of name, known as Perfect Film & this motion. See Local Rule 56.1(b)-(d);
Chemical Corporation) of all copyrights in the see also Parks Real Estate, 472 F.3d at 41;
publications listed on Schedule B annexed to the Giannullo, 322 F.3d at 140.
assignment, which included, among other
things, the Works. Id. Ex. 2. On January 1,
1972, Magazine Management Co., Inc. executed
a Copyright Assignment to Cadence Industries
Corporation of all copyrights relating to
Magazine Management Co.’s Marvel Comics
Group Division and its comics business. Id. Ex.
3. On December 29, 1986, Cadence Industries
Corporation executed a Copyright Assignment
to Marvel Entertainment Group, Inc. of all
copyrights relating to the Marvel Comics Group
business. Id. Ex. 4. On September 1, 1995,
Marvel Entertainment Group, Inc. executed a
Copyright Assignment to MCI of all copyrights
relating to its comics business. Id. Ex. 5. On
August 31, 2005, MCI executed a Short Form
Copyright Assignment to MVL of all copyrights
relating to the characters and works and the
registered copyrights set forth on the schedules
attached to the assignment. Id. Ex. 6. Finally,
pursuant to a Supplemental Short Form
Copyright Assignment made as of September
29, 2006, MCI assigned all copyrights relating
to the main characters, subsidiary characters and
minor characters of Hulk and Iron Man and the
registered copyrights set forth on the schedules
attached to the assignment, to MVL. Id. Ex. 7.
9
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MARVEL’S WORK-MADE-FOR-HIRE PRACTICES
Martin Goodman Had The Right And Authority To Control Marvel’s Creations And Bore The Financial Risk Relating
to Marvel’s Comic Book Business

Defendants’ Reply
14. During the years 1958 through 1963 (the Disputed to the extent that Stan Lee also Defendants’ response does not set forth any
“Time Period”), Martin Goodman was Marvel’s submitted stories to Marvel as a freelancer. Tob. specific facts to dispute the facts set forth
publisher and Stan Lee was Marvel’s editor. Dec., Ex. J at 396:1-14. in Paragraph 14 as required by Local Rule
May 13, 2010 and December 8, 2010 Deposition 56.1(c). Therefore, Paragraph 14 is
of Stan Lee (“Lee Dep.”) annexed as Ex. 1 to deemed admitted in its entirety for the
the Singer Decl. at 11:18-23, 14:2-17. purposes of this motion. Local Rule
56.1(c); see also Parks Real Estate, 472
F.3d at 41; Giannullo, 322 F.3d at 140.
15. At all times during the Time Period, as Disputed to the extent that whether or not Defendants’ response does not set forth any
publisher, Goodman had the authority to Goodman was the “ultimate boss” directing specific facts to dispute the facts set forth
supervise and direct the creation of all of Marvel what Marvel published is not relevant to in Paragraph 15 as required by Local Rule
comic books, including the creation of determining whether or not the subject works by 56.1(c). Further, Defendants’ response
characters and storylines, and had the final say Jack Kirby were owned at inception by Marvel does not contain any citation to the record
as to what comic books Marvel would publish. as “works made for hire” or purchased by evidence as required by Local Rule 56.1(d).
Lee, as editor, at all times answered to Marvel upon completion, if accepted by Marvel. Therefore, Paragraph 15 is deemed
Goodman, who was the “ultimate boss” and who See Opp. at 13-20. admitted in its entirety for the purposes of
always “had to be happy with what [Lee] was this motion. See Local Rule 56.1(b)-(d);
doing.” Lee Dep. at 16:14-19, 18:17-19:17, see also Parks Real Estate, 472 F.3d at 41;
19:24:-20:6, 25:22-26:21, 97:8-11; Singer Decl. Giannullo, 322 F.3d at 140.
Ex. 18 at MARVEL0017522 (“I was just doing
what my publisher asked me to do.”); see also Defendants’ response also states a legal
October 26 and 27, 2010 Deposition of Roy conclusion rather than a statement of
Thomas (“Thomas Dep.”) annexed as Ex. 3 to undisputed fact and legal conclusions may
the Singer Decl. at 59:6-21, 60:22-61:4; October not be used to dispute facts on summary
21, 2010 Deposition of John V. Romita judgment. Schwapp, 118 F.3d at 111.
(“Romita Dep.”) annexed as Ex. 2 to the Singer
Decl. at 242:21-243:4; December 6, 2010
Deposition of Mark Evanier (“Evanier Dep.
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(12/6/10)”) annexed as Ex. 9 to the Singer Decl.
at 100:4-21, 104:20-105:5, 148:12-23; January
10, 2011 Deposition of John Morrow (“Morrow
Dep.”) annexed as Ex. 10 to the Singer Decl. at
149:4-18.
16. No comic book was ever published by Disputed. The deposition testimony of Mark Defendants’ response does not set forth any
Marvel unless Goodman approved of it. Lee Evanier cited by Marvel states only that the specific facts to dispute the facts set forth
Dep. at 97:8-11; see also Evanier Dep. (12/6/10) publisher or editor had final approval. However, in Paragraph 16 as required by Local Rule
at 104:20-105:5. this fact is not relevant to determining whether 56.1(c). Further, Defendants’ response
or not the subject works by Jack Kirby were does not contain any citation to the record
owned at inception by Marvel as “works made evidence as required by Local Rule 56.1(d).
for hire” or purchased by Marvel upon Therefore, Paragraph 16 is deemed
completion, if accepted by Marvel. See Opp. at admitted in its entirety for the purposes of
13-20. this motion. See Local Rule 56.1(b)-(d);
see also Parks Real Estate, 472 F.3d at 41;
Giannullo, 322 F.3d at 140.
17. Martin Goodman first hired Stan Lee in Disputed. Lee testified, consistent with other Defendants’ response does not set forth any
approximately 1939 or 1940. From the outset of freelance artists, that his freelance work was specific facts to dispute the facts set forth
his career and, except for a brief period in the purchased by Marvel. Tob. Dec., Ex. J at 396:1 in Paragraph 17 as required by Local Rule
fall of 1998, Stan Lee has always been an -14; Ex. E at 100:21-101:9; Ex. F at 65:17-66:4; 56.1(c). Therefore, Paragraph 17 is
employee of Marvel and all his work, including Ex. K at 232:5-10. In Lee’s November 1, 1998 deemed admitted in its entirety for the
the work he did as a freelance writer, was done agreement with Marvel, Lee agreed to “assign, purposes of this motion. Local Rule
as works made for hire. See Singer Decl. Exs. convey and grant … all right, title and interest,” 56.1(c); see also Parks Real Estate, 472
19-25. and “any copyrights” in all of his alleged F.3d at 41; Giannullo, 322 F.3d at 140.
material published by Marvel. Singer Dec. Ex.
25 at ¶ 5(a). The agreement nowhere mentions Defendants’ response also states a legal
“work for hire,” if Marvel fails to pay the conclusion rather than a statement of
monies due in the agreement, Lee can revoke the undisputed fact and legal conclusions may
assignment. Id. Ex. 25 at ¶ 5(f), all of which is not be used to dispute facts on summary
inconsistent with Marvel’s “work for hire” judgment. Schwapp, 118 F.3d at 111.
claim.
Moreover, Defendants’ citations do not
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support Defendants’ response and so
cannot be used to dispute facts. See Local
Rule 56.1(b)-(d).
18. From time to time, Lee also performed Disputed to the extent that the statement implies Defendants’ response does not set forth any
work for Marvel as a freelance writer, for which Lee was paid as a purported “freelance writer” specific facts to dispute the facts set forth
he was separately compensated on a per-page the same per page rate “as every other freelance in Paragraph 18 as required by Local Rule
basis for scripts that he submitted, the same as writer.” 56.1(c). Further, Defendants’ response
every other freelance writer. Lee Dep. at 17:8- does not contain any citation to the record
25. evidence as required by Local Rule 56.1(d).
Therefore, Paragraph 18 is deemed
admitted in its entirety for the purposes of
this motion. See Local Rule 56.1(b)-(d);
19. If a particular comic book did not sell Disputed to the extent that this is not relevant to Defendants’ response does not set forth any
well or lost money, Martin Goodman, as determining the issue of whether or not the specific facts to dispute the facts set forth
publisher and owner of Marvel, would bear the subject works by Jack Kirby were owned at in Paragraph 19 as required by Local Rule
loss. Lee Dep. at 43:3-44:2; see also Evanier inception by Marvel as “works made for hire” or 56.1(c). Further, Defendants’ response
Dep. (12/6/10) at 40:7-41:3, 149:10-16. purchased by Marvel upon completion, if does not contain any citation to the record
accepted by Marvel. See Opp. at 13-20. evidence as required by Local Rule 56.1(d).
20. During the Time Period, Marvel artists Disputed. Like other freelancers who sold their Defendants’ response does not set forth any
and writers were paid for work they submitted work to Marvel, Kirby was not paid a fixed specific facts to dispute the facts set forth
before the book to which they contributed went salary or wage, and Marvel was not legally in Paragraph 20 as required by Local Rule
on sale, and payment to artists and writers did obligated to purchase his artwork. Ev. Dec., Ex. 56.1(c). Therefore, Paragraph 20 is
not depend on whether or not the book was A at 9, 11-12; Mor. Dec., Ex. A at 7-10; Tob. deemed admitted in its entirety for the
successful. Lee Dep. at 42:21-43:2. Dec., Ex. C at 23:4-24:4; 105:15-17; Ex. E at purposes of this motion. Local Rule
71:17-72:7; 72:22-73:8; 73:11-74:5; 76:25-79:4; 56.1(c); see also Parks Real Estate, 472
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Defendants’ Reply
Ex. F at 194:11-21; 200:4-201:13; 204:24- F.3d at 41; Giannullo, 322 F.3d at 140.
205:15; Ex. J at 256:25-257:25; 367:15-369:16;
371:3-18; 372:8-10; 396:1-14; Ex. L, ¶¶ 1, 3; Defendants’ response also states a legal
Declaration of Gene Colan (“Colan Dec.”) at ¶ conclusion rather than a statement of
8, 9, 12, 14; Declaration of Neal Adams undisputed fact and legal conclusions may
(“Adams Dec.”) at ¶¶ 6-14; Declaration of not be used to dispute facts on summary
James Steranko (“Ster. Dec.”) at ¶¶ 8-14; judgment. Schwapp, 118 F.3d at 111.
Declaration of Joe Sinnott (“Sinn. Dec.”) at ¶¶
9-15; Declaration of Richard Ayers (“Ayers Moreover, Defendants’ citations do not
Dec.”) at ¶¶ 8-14. Marvel did not have any support Defendants’ response and so
written agreement with Kirby during the 1958- cannot be used to dispute facts. See Local
1963 period. Mor. Dec., Ex. A at 9, 11-12; Ev. Rule 56.1(b)-(d).
Dec., Ex. A at 11; Tob. Dec., Ex. E at 71:17-
72:7; 72:22-73:8; 73:11- 74:5; 76:25-77:6; Ex. F Defendants’ citations to the inadmissible
at 194:11-21; 200:4-201:13; 204:6-19; 204:24- testimony and reports of Mark Evanier and
205:15; Ex. J at 256:25-257:25; Ex. L, ¶¶ 1, 3; John Morrow may not be considered on
Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ summary judgment. See Daubert v.
6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9- Merrell Dow Pharm., Inc., 509 U.S. 579
15; Ayers Dec. at ¶¶ 8-14. The first written (1993); see also Docket Nos. 67, 70.
agreement with Kirby produced by Marvel was
executed on June 5, 1972. Tob. Dec., Ex. M. Defendants’ citations to inadmissible
Kirby was paid on a per-page basis for those hearsay in Ex. V to the Toberoff Decl. also
pages of artwork ultimately accepted and may not be used to dispute facts. See
purchased by Marvel. Ev. Dec., Ex. A at 12; Sarno, 183 F.3d at 160; Hidden Brook Air,
Mor. Dec., Ex. A at 8-10; Tob. Dec., Ex. B at 241 F. Supp. 2d at 270.
61:20-62:9; Ex. C at 136:7-138:22; 140:19-
141:3; Ex. D at 89:13-92:5; 180:4-182:12; Ex. E Defendants’ citations to the testimony of
at 103:7-105:17; Ex. F at 123:18-125:9; Ex. V at Neal and Susan Kirby are also inadmissible
396; Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. as neither defendant has personal
at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ knowledge of whether Jack Kirby was paid
9-15; Ayers Dec. at ¶¶ 8-14. If a page(s) or story for pages he submitted to Marvel during the
was rejected by Marvel, Kirby was not Time Period. Id.
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compensated, and personally took the financial
loss. Id. Kirby was also not paid for work Defendants’ citations to the irrelevant
Marvel asked him to redraw. Ev. Dec., Ex. A at Declaration of Neal Adams (“Adams
12; Mor. Dec., Ex. A at 8-9; Tob. Dec., Ex. B at Decl.”) and the Declaration of James
61:20-62:9; Ex. C at 136:7-138:22; Ex. D at Steranko (“Steranko Decl.”) cannot be used
89:13-92:5; Ex. E at 77:20-79:4; Ex. G at 57:18- to dispute facts because neither declarant
58:21, 234:12-236:1; Ex. H at 37:6-19. Colan has any firsthand knowledge of Marvel’s
Dec. at ¶ 9; Adams Dec. at ¶ 10; Ster. Dec. at ¶ practices during the Time Period. Fed. R.
13; Sinn. Dec. at ¶ 13; Ayers Dec. at ¶ 11. Civ. P. 56(c)(4); Fed. R. Evid. 402; see also
Hicks v. Baines, 593 F.3d 159, 167 (2d Cir.
2010) (“On summary judgment, [a]
supporting or opposing affidavit must be
made on personal knowledge.”) (internal
citations omitted).
Finally, Defendants’ citations to the

Steranko Decl. and the Declaration of Joe
Sinnott (“Sinnott Decl.”), are inadmissible
as neither Steranko nor Sinnott was
identified as a potential witness by
Defendants. Fed. R. Civ. P. 37(c)(1) (“If a
party fails to provide information or
identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that
information or witness to supply evidence
on a motion, at a hearing, or at a trial.”);
see also Design Strategy, Inc. v. Davis, 469
F.3d 284 (2d Cir. 2006) (affirming
preclusion pursuant to Fed. R. Civ. P.
37(c)(1) of witness disclosed for first time
in proposed list of trial witnesses).
21. At times, Goodman decided to Disputed to the extent Goodman would Defendants’ response does not set forth any
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discontinue certain comic book series if they discontinue a comic book for any number of specific facts to dispute the facts set forth
were not selling well. Romita Dep. at 204:6-17; reasons, as testified to by Mr. Evanier. Tob. in Paragraph 21 as required by Local Rule
see also Lee Dep. at 56:18-22; Evanier Dep. Dec., Ex. C at 41:6-11. 56.1(c). Therefore, Paragraph 21 is
(12/6/10) at 41:6-42:13. deemed admitted in its entirety for the
purposes of this motion. Local Rule
Defendants’ citation to the inadmissible

testimony of Evanier may not be
considered on summary judgment. See
Daubert, 509 U.S. at 579; see also Docket
Nos. 67.
Stan Lee Had The Right And Authority To Control Marvel’s Comic Book Creations

Defendants’ Reply
22. One of Stan Lee’s main responsibilities Disputed. Stan Lee did not provide the “origin Defendants’ response does not set forth any
in his role as editor and creative director of stories and personalities” for many of Marvel’s specific facts to dispute the facts set forth
Marvel during the 1950s and 1960s was to most famous characters. Instead Jack Kirby in Paragraph 22 as required by Local Rule
originate the ideas for most of the stories that provided these. Ev. Dec., Ex. A at 14-17; Mor. 56.1(c). Therefore, Paragraph 22 is
Marvel published during that timeframe. Lee Dec., Ex. A at 10-13. Tob. Dec., Ex. FF; Ex. GG deemed admitted in its entirety for the
Dep. at 35:5-10, 35:23-36:6; Romita Dep. at at 193; Ex. HH at 45 (“Kirby: the artists were purposes of this motion. Local Rule
19:24-20:15; January 7, 2011 Deposition of doing the plotting- Stan was just coordinating 56.1(c); see also Parks Real Estate, 472
Lawrence Lieber (“Lieber Dep.”) annexed as the books, which was his job. Stan was F.3d at 41; Giannullo, 322 F.3d at 140;
Ex. 4 to the Singer Decl. at 12:19-13:5, 13:22- production coordinator. But the artists were the Reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
14:4. Lee provided the characters’ origin stories ones that were handling both story and art. We 95; 97; 99; 101;103; 105; 107, infra.
and personalities, and the role of the artist was had to- there was no time not to!”); Ex. II
to create the characters’ look or costume. (“According to statistics, I’ve done one quarter Defendants’ citations do not support
Romita Dep. at 85:10-86:6, 109:6-110:6. of Marvel’s entire output. There’s a lot of hard Defendants’ response and therefore do not
work behind it. It’s something that’s highly dispute the facts alleged as required by
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individual, highly creative and above all, it sold Local Rule 56.1(d). See Local Rule
very well.”); Ex. OO (“Q: A lot of people don’t 56.1(b)-(d).
know that you actually scripted a lot of these
stories-most of them. Even the Marvel stuff. Defendants’ citations to the inadmissible
Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I testimony and reports of Evanier and
did that with the Marvel books. I wrote the Morrow may not be considered on
stories. I wrote the plots ,I did the drawings- I summary judgment. See Daubert, 509 U.S.
did the entire thing…”); Ex. KK at 122 (“Q:You at 579; see also Docket Nos. 67, 70.
have written your own stories, text and
drawings? Kirby: Yes, that’s what I always did Defendants’ citations to inadmissible
and that’s what I am doing now.”); Ex. NN at hearsay in Exs. FF, GG, HH, II, JJ, KK and
K1759 (Lee: “[Jack Kirby] was a virtually OO to the Toberoff Decl. also may not be
inexhaustible wellspring of fantastic new ideas, used to dispute facts. See Sarno, 183 F.3d
concepts and designs.”); Ex. I at 23:4-13 (Q: at 160; Hidden Brook Air, 241 F. Supp. 2d
“Do you recall creating any new characters for at 270.
Marvel after 1970? Lee: There was a time in the
– maybe in the 90s when I started to create a Finally, Defendants cannot create a factual
new line of comics for Marvel…We never dispute through their reliance on Toberoff
published them…I was working with new Decl. Exs. GG, JJ and OO, as these cited
people and it just-they didn’t turn out right. But documents were not produced in discovery
aside from that, no.”); Singer Dec., Ex, 53 at 36- in this action and thus may not be
37 (“Jack is certainly one of the most talented, if considered on summary judgment. See
not the most talented guy that the comic book Melie, 2009 WL 1404325, at *1 n.4.
industry has ever produced. He is the most
imaginative, the most creative guy I have ever
known in this business. His mind is an endless
source of stories, concepts and ideas.”). See also
responses to ¶¶ 79-83; 85; 88; 90-91; 94-95; 97;
99; 101;103; 105; 107, infra.
23. As editor of Marvel, Lee oversaw all of Disputed. Kirby was not legally “required to Defendants’ response does not set forth any
the creative and editorial aspects of every comic report to Lee and to abide by his ‘marching specific facts to dispute the facts set forth
book that Marvel published during the Time orders’” as he had no contract with Marvel. in Paragraph 23 as required by Local Rule
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Period. Lee Dep. at 16:14-19. Marvel’s artists Mor. Dec., Ex. A at 8-10; Ev. Dec., Ex. A at 11- 56.1(c). Therefore, Paragraph 23 is
and writers were always required to report to 12; Tob. Dec., Ex. E at 71:17-72:7; 72:22-73:8; deemed admitted in its entirety for the
Lee and to abide by his “marching orders.” 73:11- 74:5; 76:25-77:6; Ex. F at 194:11-21; purposes of this motion. Local Rule
Thomas Dep. at 28:19-29:5. In all events, 204:6-19; 204:24-205:15; Ex. J at 256:25- 56.1(c); see also Parks Real Estate, 472
Marvel’s contributors during the 1950s and 257:25; Ex. L at ¶ 1, 3. Kirby had no legal F.3d at 41; Giannullo, 322 F.3d at 140.
1960s were bound to perform their duties in “the obligation to provide work to Marvel, finish
way Stan wanted the stuff done.” Romita Dep. artwork he had started with the intention to sell Defendants’ response also states a legal
at 39:7-13; Lieber Dep. at 15:5-15; Singer Decl. to Marvel, nor could Marvel demand unfinished conclusion rather than a statement of
Ex. 26 at MARVEL0017350 (“The only one I artwork from him. Kirby was free to reject any undisputed fact and legal conclusions may
was concerned about was Stan because I had to of Marvel’s requests or to submit material that not be used to dispute facts on summary
show it to him. I was only hoping Stan would Marvel did not request. Ev. Dec. ¶ 17, 19, 20; judgment. Schwapp, 118 F.3d at 111.
like it . . . .”); id. Ex. 11, Track 3 (Kirby stating, Ex. B at 355-56 (Captain Glory); Ex. C (Jack
“[w]ell, that’s Stan Lee’s department and he can Kirby’s Gods portfolio), D (New Gods Moreover, Defendants’ citations do not
answer that. The editor always has the last word presentation pieces). Tob. Dec., Ex. MM at 6 support Defendants’ response and so
on that.”). (“Some artists, such as Jack Kirby, need no plot cannot be used to dispute facts. See Local
at all. I mean I’ll just say to Jack, ‘Let’s let the Rule 56.1(b)-(d).
next villain be Dr. Doom’ … or I may not even
say that. He may tell me. And then he goes Defendants’ citations to the inadmissible
home and does it. He’s so good at plots, I’m testimony and reports of Evanier and
sure he’s a thousand times better than I. He just Morrow may not be considered on
about makes up the plots for these stories.”),151; summary judgment. See Daubert, 509 U.S.
Ex. GG at 193; Colan Dec. at ¶¶ 8, 9, 12, 14; at 579; see also Docket Nos. 67, 70.
Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14;
Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. See Defendants’ citations to inadmissible
Opp. at 13-20. hearsay in Exs. B, C, and D to the
Declaration of Mark Evanier dated March
25, 2011 (“Evanier Decl.”) and Ex. GG to
the Toberoff Decl. also may not be used to
dispute facts. See Sarno, 183 F.3d at 160;
Hidden Brook Air, 241 F. Supp. 2d at 270.
Defendants’ citations to the Evanier Decl.
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are also inadmissible for the additional
reason that they are outside the scope of
Evanier’s expert report, and therefore
cannot be used to dispute facts. Fed. R.
Civ. P. 37(c)(1); Fed. R. Civ. P.
26(a)(2)(B); see also Highland Capital
Mgmt., L.P. v. Schneider, 551 F. Supp. 2d
173, 182 (S.D.N.Y. 2008) (striking expert’s
declaration where the expert offered a new
opinion that was not in his expert report).
Defendants’ citations to the irrelevant

Adams Decl. and Steranko Decl. cannot be
used to dispute facts because neither
declarant has any firsthand knowledge of
Marvel’s practices during the Time Period.
Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 402;
see also Hicks, 593 F.3d at 167.
Additionally, neither Steranko nor Sinnott

was identified as a potential witness by
Defendants and therefore their testimony is
inadmissible. Fed. R. Civ. P. 37(c)(1); see
also Design Strategy, Inc., 469 F.3d at 284.
Finally, Defendants cannot create a factual

dispute through their reliance on Toberoff
Decl. Ex. GG as this document was not
produced in discovery in this action and
thus may not be considered on summary
judgment. See Melie, 2009 WL 1404325,
at *1 n.4.
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24. During the Time Period, Stan Lee was Disputed and not relevant to determining Defendants’ response does not set forth any
responsible for assigning particular writers and whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
artists to each comic book issue to be published owned at inception by Marvel as “works made in Paragraph 24 as required by Local Rule
by Marvel. Lee Dep. at 15:14-20, 15:22-16:7; for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
Lieber Dep. at 14:5-8, 23:18-21; see also completion, if accepted by Marvel. See Opp. at does not contain any citation to the record
Thomas Dep. at 48:10-14, 48:17-49:8, 56:16-18, 13-20. evidence as required by Local Rule 56.1(d).
59:6-21, 61:12-24 (Lee gave assignments to Therefore, Paragraph 24 is deemed
artist and writers during the 1960s); Romita admitted in its entirety for the purposes of
Dep. at 18:15-20, 61:4-6, 61:12-19 (same in this motion. See Local Rule 56.1(b)-(d);
1950s and 1960s); Evanier Dep. (12/6/10) at see also Parks Real Estate, 472 F.3d at 41;
155:15-20. Artists did not have the authority to Giannullo, 322 F.3d at 140.
assign themselves to work on any comic book
they chose. Thomas Dep. at 58:10-13.
25. Lee had the authority to reassign artists Disputed and not relevant to determining Defendants’ response does not set forth any
and writers onto different projects when he whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
deemed it necessary or appropriate to do so, and owned at inception by Marvel as “works made in Paragraph 25 as required by Local Rule
he exercised that authority on numerous for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 25 is
occasions during the Time Period. Singer Decl. completion, if accepted by Marvel. See Opp. at deemed admitted in its entirety for the
Ex. 11, Track 5; Lee Dep. at 113:16-115:13; see 13-20. Kirby was not legally “required to report purposes of this motion. Local Rule
also Thomas Dep. at 58:24-59:5 (Lee had the to Lee and to abide by his ‘marching orders’” as 56.1(c); see also Parks Real Estate, 472
authority to reassign artists and writers in the he had no contract with Marvel. Mor. Dec., Ex. F.3d at 41; Giannullo, 322 F.3d at 140.
1960s); Romita Dep. at 44:22-46:12, 68:22-70:3 A at 8-10; Ev. Dec., Ex. A at 11-12; Tob.
(same in 1950s and 1960s); Singer Decl. Ex. 27 Dec., Ex. E at 71:17-72:7; 72:22-73:8; 73:11- Defendants’ response also states a legal
at THOM0002629; Morrow Dep. at 57:14-58:6. 74:5; 76:25-77:6; Ex. F at 194:11-21; conclusion rather than a statement of
For example, if an artist was not able to do one 204:6-19; 204:24-205:15; Ex. J at 256:25- undisputed fact and legal conclusions may
book, Lee was in charge of assigning another 257:25; Ex. L at ¶ 1, 3. Kirby had no legal not be used to dispute facts on summary
artist that book, and then the second artist had to obligation to provide work to Marvel, finish judgment. Schwapp, 118 F.3d at 111.
be replaced on his book by yet another artist, artwork he had started with the intention to
and so on; Lee has described this process as sell to Marvel, nor could Marvel demand Moreover, Defendants’ citations do not
“falling dominos.” Lee Dep. at 115:6-13. unfinished artwork from him. Kirby was free to support Defendants’ response and so
reject any of Marvel’s requests or to submit cannot be used to dispute facts. See Local
material that Marvel did not request. Ev. Rule 56.1(b)-(d).
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Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain
Glory); Ex. C (Jack Kirby’s Gods portfolio), Defendants’ citations to the inadmissible
D (New Gods presentation pieces). Tob. Dec., testimony and reports of Evanier and
Ex. MM at 6 (“Some artists, such as Jack Kirby, Morrow may not be considered on
need no plot at all. I mean I’ll just say to Jack, summary judgment. See Daubert, 509 U.S.
‘Let’s let the next villain be Dr. Doom’ … or I at 579; see also Docket Nos. 67, 70.
may not even say that. He may tell me. And then
he goes home and does it. He’s so good at plots, Defendants’ citations to inadmissible
I’m sure he’s a thousand times better than I. He hearsay in Exs. B, C, and D to the Evanier
just about makes up the plots for these Decl. and Ex. GG to the Toberoff Decl.
stories.”),151; Ex. GG at 193; Colan Dec. at ¶¶ also may not be used to dispute facts. See
8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. Sarno, 183 F.3d at 160; Hidden Brook Air,
at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at 241 F. Supp. 2d at 270.
¶¶ 8-14.
Civ. P. 37(c)(1); Fed. R. Civ. P.
Mgmt., 551 F. Supp. 2d at 182.

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at *1 n.4.
26. During the Time Period, Stan Lee set Disputed and not relevant to determining Defendants’ response does not set forth any
deadlines for each person who contributed to a whether or not the subject works by Jack Kirby specific facts to dispute the facts set forth
finished comic book to ensure that each book were owned at inception by Marvel as “works in Paragraph 26 as required by Local Rule
would be published and distributed on schedule made for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 26 is
each month. The schedule was established by completion, if accepted by Marvel. See Opp. at deemed admitted in its entirety for the
the printer; if a comic book was not ready to be 13-20. Kirby was not legally “required to report purposes of this motion. Local Rule
printed at the time designated in the printer’s to Lee and to abide by his ‘marching orders’” as 56.1(c); see also Parks Real Estate, 472
schedule, Marvel would be responsible for the he had no contract with Marvel. Mor. Dec., Ex. F.3d at 41; Giannullo, 322 F.3d at 140.
substantial costs associated with the delay A at 8-10; Ev. Dec., Ex. A at 11-12; Tob. Dec.,
because Marvel had already scheduled the press Ex. E at 71:17-72:7; 72:22-73:8; 73:11- 74:5; Defendants’ response also states a legal
time. Deadlines were very important to 76:25-77:6; Ex. F at 194:11-21; 204:6-19; conclusion rather than a statement of
Marvel’s operation; artists always knew their 204:24-205:15; Ex. J at 256:25-257:25; Ex. L at undisputed fact and legal conclusions may
work was required to be delivered by a specified ¶ 1, 3. Kirby had no legal obligation to provide not be used to dispute facts on summary
date. Lee Dep. at 42:10-20, 384:22-385:11; see work to Marvel, finish artwork he had started judgment. Schwapp, 118 F.3d at 111.
also Thomas Dep. at 59:22-60:21. with the intention to sell to Marvel, nor could
Marvel demand unfinished artwork from him. Moreover, Defendants’ citations do not
Kirby was free to reject any of Marvel’s support Defendants’ response and so
requests or to submit material that Marvel did cannot be used to dispute facts. See Local
not request. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355- Rule 56.1(b)-(d).
56 (Captain Glory); Ex. C (Jack Kirby’s Gods
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portfolio), D (New Gods presentation pieces). Defendants’ citations to the inadmissible
Tob. Dec., Ex. MM at 6 (“Some artists, such as testimony and reports of Evanier and
Jack Kirby, need no plot at all. I mean I’ll just Morrow may not be considered on
say to Jack, ‘Let’s let the next villain be Dr. summary judgment. See Daubert, 509 U.S.
Doom’ … or I may not even say that. He may at 579; see also Docket Nos. 67, 70.
tell me. And then he goes home and does it.
He’s so good at plots, I’m sure he’s a thousand Defendants’ citations to inadmissible
times better than I. He just about makes up the hearsay in Exs. B, C, and D to the Evanier
plots for these stories.”),151; Ex. GG at 193; Decl. and Ex. GG to the Toberoff Decl.
Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ also may not be used to dispute facts. See
6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9- Sarno, 183 F.3d at 160; Hidden Brook Air,
15; Ayers Dec. at ¶¶ 8-14. 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.


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at *1 n.4.
27. Marvel – and, during the Time Period, Disputed and not relevant to determining Defendants’ response does not set forth any
Lee – supervised all aspects of the process for whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
the creation of a comic book, which involved owned at inception by Marvel as “works made in Paragraph 27 as required by Local Rule
contributions by numerous different people. for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
First, after Lee developed the initial concept for completion, if accepted by Marvel. See Opp. at does not contain any citation to the record
a story, he assigned a penciler to draw the initial 13-20. evidence as required by Local Rule 56.1(d).
pencil artwork for the comic book issue and Therefore, Paragraph 27 is deemed
provide the assigned penciler with the story he admitted in its entirety for the purposes of
was to draw, in either a detailed script or at least this motion. See Local Rule 56.1(b)-(d);
a plot outline. Once completed, the pencil see also Parks Real Estate, 472 F.3d at 41;
drawings were submitted to Lee for his review. Giannullo, 322 F.3d at 140.
If the pages met with Lee’s approval, they were
given to a writer to fill in the captions and
dialogue balloons to match the action in the
artwork; during the Time Period, Lee himself
was the designated writer for most of Marvel’s
comic books. Lee Dep. at 17:5-13, 31:23-33:7;
see also Romita Dep. at 70:4-8 (Lee was usually
the designated writer of comics in the 1950s and
1960s); Thomas Dep. at 48:4-50:22 (same in
1960s).
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28. Once the captions and dialogue balloons Admitted only to the extent that this is referring Defendants’ response does not set forth any
also were completed in pencil, the pages were generally to Marvel’s process of physically specific facts to dispute the facts set forth
provided to a letterer, who went over the assembling a comic book for publication, and in Paragraph 28 as required by Local Rule
dialogue balloons and captions in ink. The next not to any specific comic book, character(s) or 56.1(c). Further, Defendants’ response
step was to provide the drawings to the inker, creation. does not contain any citation to the record
who went over the pencil drawings in ink. evidence as required by Local Rule 56.1(d).
Singer Decl. Ex. 11, Track 4; Lee Dep. at 31:23- Therefore, Paragraph 28 is deemed
33:7; Thomas Dep. at 50:23-52:10. admitted in its entirety for the purposes of
29. After the pages were lettered and inked, Admitted only to the extent that this is referring Defendants’ response does not set forth any
they were sent to the engraver, who ran the generally to Marvel’s process of physically specific facts to dispute the facts set forth
inked drawings through a Photostat machine to assembling a comic book, and not to any in Paragraph 29 as required by Local Rule
reduce them to the proper size of a comic book specific comic book, character(s) or creation. 56.1(c). Further, Defendants’ response
page. The engraver then sent the pages to the does not contain any citation to the record
colorist, who colored the pages and sent them evidence as required by Local Rule 56.1(d).
back to the engraver and ultimately to the printer Therefore, Paragraph 29 is deemed
for publication. Lee Dep. at 31:23-33:7; admitted in its entirety for the purposes of
Thomas Dep. at 52:11-53:14. this motion. See Local Rule 56.1(b)-(d);
30. As Marvel’s editor during the Time Disputed and not relevant to determining Defendants’ response does not set forth any
Period, it was Lee’s responsibility to hire and whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
supervise all of the pencil artists, letterers, inkers owned at inception by Marvel as “works made in Paragraph 30 as required by Local Rule
and colorists who, among others, contributed to for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
the creation of the comic book. Lee Dep. at completion, if accepted by Marvel. See Opp. at does not contain any citation to the record
15:9-13. Specifically, Lee reviewed all artwork 13-20. evidence as required by Local Rule 56.1(d).
that was submitted for publication by each of Therefore, Paragraph 30 is deemed
these individuals, and had the final say on admitted in its entirety for the purposes of
whether artwork would be published. No this motion. See Local Rule 56.1(b)-(d);
artwork or story was published while Lee was see also Parks Real Estate, 472 F.3d at 41;
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editor of Marvel unless Lee himself had Giannullo, 322 F.3d at 140.
approved it. Lee Dep. at 33:25-34:7; see also
Thomas Dep. at 112:25-113:23.
31. Likewise, as editor, Lee always had the Disputed. Stan Lee did not provide the “origin Defendants’ response does not set forth any
last say on the plot and dialogue of all of stories and personalities” for many Marvel’s specific facts to dispute the facts set forth
Marvel’s comic book stories during the Time most famous characters. Instead Jack Kirby in Paragraph 31 as required by Local Rule
Period, and would explain to the artists the way provided these. Ev. Dec., Ex. A at 14-17; Mor. 56.1(c). Therefore, Paragraph 31 is
in which the story should proceed. This was so Dec., Ex. A at 10-13. Tob. Dec., Ex. HH at 45 deemed admitted in its entirety for the
even though artists might submit margin notes (“Kirby: the artists were doing the plotting - purposes of this motion. Local Rule
with suggestions as to plot or dialogue from Stan was just coordinating the books, which was 56.1(c); see also Parks Real Estate, 472
time to time. Lee took pride in creating the his job. Stan was production coordinator. But F.3d at 41; Giannullo, 322 F.3d at 140;
characters’ personalities through the dialogue the artists were the ones that were handling both Reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
and has explained that he typically would ignore story and art. We had to- there was no time not 95; 97; 99; 101;103; 105; 107, infra.
these margin notes because he was not able to to!”); Ex. II (“According to statistics, I’ve done
write in an another person’s style. Lee Dep. at one quarter of Marvel’s entire output. There’s a Defendants’ citations do not support
16:8-13, 51:17-52:5; see also Thomas Dep. at lot of hard work behind it. It’s something that’s Defendants’ response and therefore do not
66:13-67:2; Romita Dep. at 70:9-74:17. highly individual, highly creative and above all, dispute the facts alleged as required by
it sold very well.”); Ex. OO (“Q: A lot of people Local Rule 56.1(d). See Local Rule
don’t know that you actually scripted a lot of 56.1(b)-(d).
these stories-most of them. Even the Marvel
stuff. Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: Defendants’ citation to Toberoff Decl. Ex.
“And I did that with the Marvel books. I wrote MM at 151 refers to work created outside
the stories. I wrote the plots, I did the drawings- the Time Period and is therefore irrelevant.
I did the entire thing…”); Ex. KK at 122 Fed. R. Evid. 402.
(“Q:You have written your own stories, text and
drawings? Kirby: Yes, that’s what I always did Defendants’ citations to the inadmissible
and that’s what I am doing now.”); Ex. NN at testimony and reports of Evanier and
K1759 (“[Jack Kirby] was a virtually Morrow may not be considered on
inexhaustible wellspring of fantastic new ideas, summary judgment. See Daubert, 509 U.S.
concepts and designs.”); Ex. MM at 6 (“Some at 579; see also Docket Nos. 67, 70.
artists, such as Jack Kirby, need no plot at all. I
mean I’ll just say to Jack, ‘Let’s let the next Defendants’ citations to inadmissible
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villain be Dr. Doom’ … or I may not even say hearsay in Exs. FF, GG, HH, II, JJ, KK and
that. He may tell me. And then he goes home OO the Toberoff Decl. also may not be
and does it. He’s so good at plots, I’m sure he’s used to dispute facts. See Sarno, 183 F.3d
a thousand times better than I. He just about at 160; Hidden Brook Air, 241 F. Supp. 2d
makes up the plots for these stories.”), 151; Ex. at 270.
GG at 193; Ex. I at 23:4-13 (“Do you recall
creating any new characters for Marvel after Finally, Defendants cannot create a factual
1970? There was a time in the –maybe in the dispute through their reliance on Toberoff
90s when I started to create a new line of comics Decl. Exs. GG, JJ and OO as these cited
for Marvel…We never published them…I was documents were not produced in discovery
working with new people and it just-they didn’t in this action and thus may not be
turn out right. But aside from that, no.”). Singer considered on summary judgment. See
Dec., Ex, 53 at 36-37 (“Jack is certainly one of Melie, 2009 WL 1404325, at *1 n.4.
the most talented, if not the most talented guy
that the comic book industry has ever produced.
He is the most imaginative, the most creative
guy I have ever known in this business. His
mind is an endless source of stories, concepts
and ideas.”). See also responses to ¶¶ 79-83; 85;
88; 90-91; 94-95; 97; 99; 101;103; 105; 107.
Paragraph 31 is further disputed to the extent
that Lee would consult and use margins notes
provided by Kirby. Ev. Dec., Ex. A at 9-10;
Tob. Dec., Ex. D at 66:8-22; Ex. FF; Ex. GG at
192-199.
32. It was part of Lee’s job to make edits, or Disputed and not relevant to determining Defendants’ response does not set forth any
direct that edits be made by others, to any work whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
that was submitted for publication. Lee Dep. at owned at inception by Marvel as “works made in Paragraph 32 as required by Local Rule
16:20-17:4, 22:11-14, 33:9-17, 33:25-34:7; for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
Thomas Dep. at 62:6-63:6, 115:23-116:12; completion, if accepted by Marvel. See Opp. at does not contain any citation to the record
Romita Dep. at 21:12-19, 23:4-25, 59:25-60:7; 13-20. evidence as required by Local Rule 56.1(d).
Lieber Dep. at 15:16-16:8, 16:14-17:4. For Therefore, Paragraph 32 is deemed
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example, Lee requested changes if he felt that admitted in its entirety for the purposes of
the artwork on the page lacked sufficient action, this motion. See Local Rule 56.1(b)-(d);
or if he felt the panels as they were drawn were see also Parks Real Estate, 472 F.3d at 41;
confusing to the reader. Lee Dep. at 16:20-17:4. Giannullo, 322 F.3d at 140.
Lee at times required changes to the facial
features or expressions of a character in a
drawing when he did not like its appearance, or
when he thought it was “not as glamorous or not
as effective as it should be,” or would require
that a scene be changed from a nighttime setting
to the daytime. Romita Dep. at 23:4-25, 55:23-
56:25.
33. Lee often had changes made to artwork Disputed and not relevant to determining Defendants’ response does not set forth any
without first consulting the original artist. whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
Thomas Dep. at 63:23-64:19. Lee commonly owned at inception by Marvel as “works made in Paragraph 33 as required by Local Rule
exercised his authority to require changes to the for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 33 is
artwork when he deemed it necessary, but did completion, if accepted by Marvel. See Opp. at deemed admitted in its entirety for the
not do so too often, because it wasted Marvel’s 13-20. Kirby was not legally “required to report purposes of this motion. Local Rule
money and time. Lee Dep. at 33:9-17. to Lee and to abide by his ‘marching orders’” as 56.1(c); see also Parks Real Estate, 472
he had no contract with Marvel. Mor. Dec., Ex. F.3d at 41; Giannullo, 322 F.3d at 140.
A at 8-10; Ev. Dec., Ex. A at 11-12; Tob. Dec.,
Ex. E at 71:17-72:7; 72:22-73:8; 73:11- 74:5; Defendants’ response also states a legal
76:25-77:6; Ex. F at 194:11-21; 204:6-19; conclusion rather than a statement of
204:24-205:15; Ex. J at 256:25-257:25; Ex. L at undisputed fact and legal conclusions may
¶ 1, 3. Kirby had no legal obligation to provide not be used to dispute facts on summary
work to Marvel, finish artwork he had started judgment. Schwapp, 118 F.3d at 111.
with the intention to sell to Marvel, nor could
Marvel demand unfinished artwork from him. Moreover, Defendants’ citations do not
Kirby was free to reject any of Marvel’s support Defendants’ response and so
requests or to submit material that Marvel did cannot be used to dispute facts. See Local
not request. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355- Rule 56.1(b)-(d).
56 (Captain Glory); Ex. C (Jack Kirby’s Gods
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portfolio), D (New Gods presentation pieces). Defendants’ citations to the inadmissible
Tob. Dec., Ex. MM at 6 (“Some artists, such as testimony and reports of Evanier and
Jack Kirby, need no plot at all. I mean I’ll just Morrow may not be considered on
say to Jack, ‘Let’s let the next villain be Dr. summary judgment. See Daubert, 509 U.S.
Doom’ … or I may not even say that. He may at 579; see also Docket Nos. 67, 70.
tell me. And then he goes home and does it.
He’s so good at plots, I’m sure he’s a thousand Defendants’ citations to inadmissible
times better than I. He just about makes up the hearsay in Exs. B, C, and D to the Evanier
plots for these stories.”),151; Ex. GG at 193; Decl. and Ex. GG to the Toberoff Decl.
Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ also may not be used to dispute facts. See
6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9- Sarno, 183 F.3d at 160; Hidden Brook Air,
15; Ayers Dec. at ¶¶ 8-14. 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.


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at *1 n.4.
34. At all times during the Time Period, Lee Disputed and not relevant to determining Defendants’ response does not set forth any
maintained editorial control over comic book whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
covers as well as stories. Lee and Goodman owned at inception by Marvel as “works made in Paragraph 34 as required by Local Rule
agreed that covers were the most important part for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
of a comic book because they were what caught completion, if accepted by Marvel. See Opp. at does not contain any citation to the record
the readers’ eye. Lee frequently conceptualized 13-20. evidence as required by Local Rule 56.1(d).
how he wanted the covers to look and he Therefore, Paragraph 34 is deemed
decided which artist would be assigned to draw admitted in its entirety for the purposes of
the cover, sometimes assigning a different artist this motion. See Local Rule 56.1(b)-(d);
to draw the cover than the artist who was see also Parks Real Estate, 472 F.3d at 41;
assigned to draw the comic book itself. Lee Giannullo, 322 F.3d at 140.
Dep. at 36:19-37:2, 37:17-21, 38:4-20, 44:4-17;
see also Thomas Dep. at 67:16-68:6.
35. Lee had the authority to make changes or Disputed and not relevant to determining Defendants’ response does not set forth any
revisions to comic book covers and he exercised whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
that authority frequently. Lee Dep. at 38:21-22, owned at inception by Marvel as “works made in Paragraph 35 as required by Local Rule
44:21-23; Thomas Dep. at 68:7-10; see also for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 35 is
Evanier Dep. (12/6/10) at 202:6-204:18. For completion, if accepted by Marvel. See Opp. at deemed admitted in its entirety for the
example, Mark Evanier’s biography of Kirby 13-20. Evanier testified that this cover was purposes of this motion. Local Rule
includes an exemplar of a cover sketch featuring “very rare” and “one of the few times Jack ever 56.1(c); see also Parks Real Estate, 472
the character Thor, drawn by Kirby, that features did a cover sketch like this.” Tob. Dec., Ex. C at F.3d at 41; Giannullo, 322 F.3d at 140.
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Lee’s handwritten notes directing Kirby to make 203:8-204:9.
certain changes. Singer Decl. Ex. 28 at K00299; Defendants’ citation to the inadmissible
see also Evanier Dep. (12/6/10) at 202:6-204:18. testimony of Evanier may not be
No. 67.
Development of the Marvel Method

Defendants’ Reply
36. Prior to the early 1960s, Marvel’s artists Disputed. Evanier testified that Lee only wrote Defendants’ response does not set forth any
drew comic book stories based on detailed full scripts for “some artists.” Singer Decl., Ex. specific facts to dispute the facts set forth
scripts that were written either by Lee or another 9 at 201:21. in Paragraph 36 as required by Local Rule
writer who had received from Lee a plot outline 56.1(c). Therefore, Paragraph 36 is
or a synopsis (which could be either written or deemed admitted in its entirety for the
oral). These scripts were extremely detailed, purposes of this motion. Local Rule
similar to film shooting scripts, and included a 56.1(c); see also Parks Real Estate, 472
title, an allocation of pages, and a panel-by- F.3d at 41; Giannullo, 322 F.3d at 140.
panel breakdown for each page that gave the
artist explicit instructions as to the action that Defendants’ citation to the inadmissible
was to take place in each panel and the dialogue testimony of Evanier may not be
that would be inserted later. These detailed considered on summary judgment. See
scripts were written before any artwork for the Daubert, 509 U.S. at 579; see also Docket
comic book was drawn, and the artists based the No. 67.
artwork on the script. Romita Dep. at 17:13-
18:14; Lieber Dep. at 9:14-18, 11:6-13:5; Singer
Decl. Ex. 29 at MARVEL0018165; see also
Evanier Dep. (12/6/10) at 201:14-202:5.
37. During the Time Period, Lee developed a Disputed. This statement only purports to Defendants’ response does not set forth any
new system wherein he provided the artist with describe the Marvel Method in general and not specific facts to dispute the facts set forth
a short outline or synopsis – which could be as applied to Jack Kirby nor to the works at in Paragraph 37 as required by Local Rule
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written or oral – that instructed the artist as to issue in this action. Ev. Dec., Ex. A at 7-8; Mor 56.1(c). Therefore, Paragraph 37 is
what Lee wanted to happen, what he wanted the Dec., Ex. A at 8; Tob. Dec., Ex. MM at 151 deemed admitted in its entirety for the
hero to do, and how he wanted it to look. After (Stan Lee: “Certainly 90 percent of the ‘Tales of purposes of this motion. Local Rule
Lee provided the synopsis to the assigned artist, Asgard’ stories were Jack’s plots, and they were 56.1(c); see also Parks Real Estate, 472
they would then discuss it at a “plotting great! He certainly knew more about Norse F.3d at 41; Giannullo, 322 F.3d at 140;
conference.” Following the plotting conference, mythology that I ever did (or at least he enjoyed reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
the artist proceeded to draw a complete story making it up!)”), at 6 (Stan Lee: “Some artists, 95; 97; 99; 101;103; 105; 107, infra.
based on Lee’s directions. Once Lee received such as Jack Kirby, need no plot at all. I mean
the penciled drawings and had approved them – I’ll just say to Jack, ‘Let’s let the next villain be Defendants’ citations do not support
after any changes that had to be made – he Dr. Doom’ … or I may not even say that. He Defendants’ response and therefore do not
inserted dialogue and captions to develop the may tell me. And then he goes home and does it. dispute the facts alleged as required by
story the way he wanted it to progress. This He’s so good at plots, I’m sure he’s a thousand Local Rule 56.1(d). See Local Rule
process became known as the “Marvel Method.” times better than I. He just about makes up the 56.1(b)-(d).
Singer Decl. Ex. 11, Track 7, Track 2 and Track plots for these stories.”); Ex. HH at 45 (“Kirby:
6; Lee Dep. at 20:11-21:25, 35:11-22; Singer the artists were doing the plotting- Stan was just Defendants’ citation to Toberoff Decl. Ex.
Decl. Ex. 30 ; id. Ex. 27; see also Thomas Dep. coordinating the books, which was his job. Stan MM at 151 refers to work created outside
at 218:14-219:16; Romita Dep. at 39:14-42:13; was production coordinator. But the artists were the Time Period and is therefore irrelevant.
Evanier Dep. (11/9/10) at 92:22-93:4; Morrow the ones that were handling both story and art. Fed. R. Evid. 402.
Dep. at 60:18-61:20. We had to- there was no time not to!”); Ex. II
(“According to statistics, I’ve done one quarter Defendants’ citations to the inadmissible
of Marvel’s entire output. There’s a lot of hard testimony and reports of Evanier and
work behind it. It’s something that’s highly Morrow may not be considered on
individual, highly creative and above all, it sold summary judgment. See Daubert, 509 U.S.
very well.”); Ex. OO (“Q: A lot of people don’t at 579; see also Docket Nos. 67, 70.
stories-most of them. Even the Marvel stuff. Defendants’ citations to inadmissible
Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I hearsay in Exs. HH, II, JJ, KK and OO to
did that with the Marvel books. I wrote the the Toberoff Decl. also may not be used to
stories. I wrote the plots, I did the drawings- I dispute facts. See Sarno, 183 F.3d at 160;
did the entire thing…”); Ex. KK at 122 (“Q: Hidden Brook Air, 241 F. Supp. 2d at 270.
You have written your own stories, text and
drawings? Kirby: Yes, that’s what I always did Finally, Defendants cannot create a factual
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and that’s what I am doing now.”); Ex. NN at dispute through their reliance on Toberoff
K1759 (“[Jack Kirby] was a virtually Decl. Exs. JJ and OO, as these cited
inexhaustible wellspring of fantastic new ideas, documents were not produced in discovery
concepts and designs.”); Ex. I at 23:4-13 (“Do in this action and thus may not be
you recall creating any new characters for considered on summary judgment. See
Marvel after 1970? There was a time in the – Melie, 2009 WL 1404325, at *1 n.4.
maybe in the 90s when I started to create a new
line of comics for Marvel…We never published
them…I was working with new people and it
just-they didn’t turn out right. But aside from
that, no.”); Singer Dec., Ex, 53 at 36-37 (“Jack
is certainly one of the most talented, if not the
most talented guy that the comic book industry
has ever produced. He is the most imaginative,
the most creative guy I have ever known in this
business. His mind is an endless source of
stories, concepts and ideas.”). See also responses
to ¶¶ 79-83; 85; 88; 90-91; 94-95; 97; 99;
101;103; 105; 107, infra.
38. The Marvel Method was developed Admitted that freelance artists were paid by the Defendants’ response does not set forth any
because Lee had become so busy that he could page for those artwork pages that were accepted specific facts to dispute the facts set forth
not write scripts quickly enough to keep up with for publication, but otherwise disputed. See in Paragraph 38 as required by Local Rule
the artists. As Marvel’s freelance artists were Response to Plaintiff’s Statement No. 37. 56.1(c). Therefore, Paragraph 38 is
paid by the page that they submitted to Marvel deemed admitted in its entirety for the
for publication, if they were not given an purposes of this motion. Local Rule
assignment by Lee, they would not get paid by 56.1(c); see also Parks Real Estate, 472
Marvel. Lee Dep. at 20:11-21:25; Singer Decl. F.3d at 41; Giannullo, 322 F.3d at 140;
Ex. 11, Track 6; Romita Dep. at 41:13-42:13; Reply to ¶ No. 37.
see also Lieber Dep. at 14:9-15:4.
39. Artists and writers did not draw pages Disputed. See Response to Plaintiff’s Statement Defendants’ response does not set forth any
prior to obtaining an assignment and a plot or No. 37. specific facts to dispute the facts set forth
synopsis from Stan Lee. Lee Dep. at 41:20- in Paragraph 39 as required by Local Rule
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42:9; see also id. at 383:18-21, 384:18-21; 56.1(c). Therefore, Paragraph 39 is
Thomas Dep. at 56:12-15, 57:25-58:9; Evanier deemed admitted in its entirety for the
Dep. (11/9/10) at 91:15-18. purposes of this motion. Local Rule
F.3d at 41; Giannullo, 322 F.3d at 140;
Reply to ¶ No. 37.
40. Working under the Marvel Method, Disputed. See Response to Plaintiff’s Statement Defendants’ response does not set forth any
artists were afforded greater freedom to draw the No. 37. specific facts to dispute the facts set forth
stories, but at all times the artists were in Paragraph 40 as required by Local Rule
constrained to keep to the main theme and plot 56.1(c). Therefore, Paragraph 40 is
that Lee supplied and the instructions he gave. deemed admitted in its entirety for the
If the artwork strayed too far from his purposes of this motion. Local Rule
expectations for the plot of the story or had done 56.1(c); see also Parks Real Estate, 472
something wrong, Lee “fixed” some of the F.3d at 41; Giannullo, 322 F.3d at 140;
discrepancies by inserting dialogue and captions Reply to ¶ No. 37.
to ensure that it kept to the story he had
envisioned without having to spend the time to
request changes to the artwork. At Lee’s
discretion, he could fill in the plot through his
own dialogue to make the finished work a
seamless product that followed from his original
plot; Lee has often mused that this process “was
like doing a crossword puzzle.” Lee Dep. at
20:11-21:25, 55:9-13, 343:18-344:22; Singer
Decl. Ex. 31 at 83.
41. Under the Marvel Method process of Disputed. Kirby had no contract with Marvel in Defendants’ response does not set forth any
story creation during the Time Period, it was 1958-1970. Kirby had no legal obligation to specific facts to dispute the facts set forth
part of the artists’ assignment to fill in any provide work to Marvel, finish artwork he had in Paragraph 41 as required by Local Rule
necessary details or to create new characters or started with the intention to sell to Marvel, nor 56.1(c). Therefore, Paragraph 41 is
plot elements to flesh out the plot that Lee had could Marvel demand unfinished artwork from deemed admitted in its entirety for the
provided for the story. Lee Dep. at 54:16-56:9, him. He was free to create characters and to purposes of this motion. Local Rule
72:21-73:23, 377:12-19; Singer Decl. Ex. 32 at choose to insert them into a story to be sold to 56.1(c); see also Parks Real Estate, 472
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MARVEL0017515 (explaining that Marvel Marvel or to use such characters elsewhere, and F.3d at 41; Giannullo, 322 F.3d at 140.
Method involved Lee “discussing the story with Marvel did not own the characters he decided to
the artist and having the artist do the penciled art use elsewhere, or object to such use. Ev. Dec. ¶ Defendants’ response also states a legal
on his own, drawing whatever he wants so long 17, 19, 20; Ex. B at 355-56 (Captain Glory); Ex. conclusion rather than a statement of
as it tells the story we’ve discussed”); see also C (Jack Kirby’s Gods portfolio), D (New Gods undisputed fact and legal conclusions may
Thomas Dep. at 55:4-15, 55:16-56:3, 220:7- presentation pieces). See also Mor. Dec., Ex. A not be used to dispute facts on summary
221:12. at 8-10; Ev. Dec., Ex. A at 11-12; Tob. Dec., Ex. judgment. Schwapp, 118 F.3d at 111.
E at 71:17- 72:7; 72:22-73:8; 73:11- 74:5;
76:25-77:6; Ex. F at 194:11-21; 204:6-19; Moreover, Defendants’ citations do not
204:24-205:15; Ex. J at 256:25-257:25; Ex. L at support Defendants’ response and so
¶ 1, 3; Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. cannot be used to dispute facts. See Local
at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ Rule 56.1(b)-(d).
9-15; Ayers Dec. at ¶¶ 8-14. That Marvel, like
any publisher, could choose the characters it Defendants’ citations to the inadmissible
wished to buy or to publish after buying Kirby’s testimony and reports of Evanier and
work is not relevant to determining whether the Morrow may not be considered on
subject works by Jack Kirby were owned at summary judgment. See Daubert, 509 U.S.
inception by Marvel as “works made for hire.” at 579; see also Docket Nos. 67, 70.
See Opp. at 13-20.
Defendants’ citations to inadmissible
hearsay Exs. B, C, and D to the Evanier
Decl. also may not be used to dispute facts.
See Sarno, 183 F.3d at 160; Hidden Brook
Air, 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.
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Finally, neither Steranko nor Sinnott was

42. If an artist or writer introduced a new Disputed to the extent Kirby could create Defendants’ response does not set forth any
character into an existing comic book, it was the characters and choose to insert them into a story specific facts to dispute the facts set forth
responsibility of either Goodman as publisher or or not, and Marvel would not own these in Paragraph 42 as required by Local Rule
Lee as editor to decide whether the character characters if he decided to use them elsewhere. 56.1(c). Therefore, Paragraph 42 is
was interesting enough to create a new comic Kirby had no legal obligation to provide work to deemed admitted in its entirety for the
book title devoted it. Lee Dep. at 79:3-19. Marvel, finish artwork he had started with the purposes of this motion. Local Rule
intention to sell to Marvel, nor could Marvel 56.1(c); see also Parks Real Estate, 472
demand unfinished artwork from him. Ev. Dec. F.3d at 41; Giannullo, 322 F.3d at 140.
17, 19, 20; Ex. B at 355-56 (Captain Glory); Ex.
C (Jack Kirby’s Gods portfolio), D (New Gods Defendants’ response also states a legal
presentation pieces). See also Mor. Dec., Ex. A conclusion rather than a statement of
at 8-10; Ev. Dec., Ex. A at 11-12; Tob. Dec., Ex. undisputed fact and legal conclusions may
E at 71:17-72:7; 72:22-73:8; 73:11- 74:5; 76:25- not be used to dispute facts on summary
77:6; Ex. F at 194:11-21; 204:6-19; 204:24- judgment. Schwapp, 118 F.3d at 111.
205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3;
Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ Moreover, Defendants’ citations do not
6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9- support Defendants’ response and so
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15; Ayers Dec. at ¶¶ 8-14. Further disputed to cannot be used to dispute facts. See Local
the extent that whether or not Marvel could Rule 56.1(b)-(d).
choose the characters it wished to publish is not
relevant to determining whether or not the Defendants’ citations to the inadmissible
subject works by Jack Kirby were owned at testimony and reports of Evanier and
inception by Marvel as “works made for hire.” Morrow may not be considered on
See Opp. at 13-20. summary judgment. See Daubert, 509 U.S.
at 579; see also Docket Nos. 67, 70.

Air, 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.

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43. At all times during the Time Period, Lee Disputed and not relevant to determining Defendants’ response does not set forth any
maintained the ability to edit and make changes whether or not the subject works by Jack Kirby specific facts to dispute the facts set forth
to work that writers and artists had created, and, were owned at inception by Marvel as “works in Paragraph 43 as required by Local Rule
when necessary, he determined that it was not fit made for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 43 is
for publication. Lee Dep. at 22:11-16. completion, if accepted by Marvel. Kirby could deemed admitted in its entirety for the
create characters and choose to insert them into purposes of this motion. Local Rule
a story or not, and Marvel would not own these 56.1(c); see also Parks Real Estate, 472
characters if he decided to use them elsewhere. F.3d at 41; Giannullo, 322 F.3d at 140.
Kirby had no legal obligation to provide work to
Marvel, finish artwork he had started with the Defendants’ response also states a legal
intention to sell to Marvel, or to make revisions conclusion rather than a statement of
to such artwork requested by Marvel as a undisputed fact and legal conclusions may
condition to his acceptance and purchase of such not be used to dispute facts on summary
artwork. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 judgment. Schwapp, 118 F.3d at 111.
(Captain Glory); Ex. C (Jack Kirby’s Gods
portfolio), D (New Gods presentation pieces). Moreover, Defendants’ citations do not
See also Mor. Dec., Ex. A at 8-10; Ev. Dec., Ex. support Defendants’ response and so
A at 11-12; Tob. Dec., Ex. E at 71:17-72:7; cannot be used to dispute facts. See Local
72:22-73:8; 73:11- 74:5; 76:25-77:6; Ex. F at Rule 56.1(b)-(d).
194:11-21; 204:6-19; 204:24-205:15; Ex. J at
256:25-257:25; Ex. L at ¶ 1, 3; Colan Dec. at ¶¶ Defendants’ citations to the inadmissible
8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. testimony and reports of Evanier and
at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at Morrow may not be considered on
¶¶ 8-14. summary judgment. See Daubert, 509 U.S.
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Air, 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.


44. Except for certain instances in which Lee Disputed. The Marvel Method evolved in the Defendants’ response does not set forth any
continued to use detailed scripts in advance of late 1950s, early 1960s and Jack Kirby was not specific facts to dispute the facts set forth
assigning an artist to draw the pencil artwork for provided scripts by Stan Lee, Larry Lieber or in Paragraph 44 as required by Local Rule
a comic book issue, Lee used the Marvel anyone else. Ev. Dec., Ex. A at 7-8; Mor Dec., 56.1(c). Therefore, Paragraph 44 is
Method for the creation of comic books Ex. A at 8; Tob. Dec., Ex. MM at 151 (Stan Lee: deemed admitted in its entirety for the
38
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published by Marvel from the early 1960s on, “Certainly 90 percent of the ‘Tales of Asgard’ purposes of this motion. Local Rule
until he became publisher of Marvel in the early stories were Jack’s plots, and they were great! 56.1(c); see also Parks Real Estate, 472
1970s. Lee Dep. at 22:2-10; Lieber Dep. at He certainly knew more about Norse mythology F.3d at 41; Giannullo, 322 F.3d at 140;
47:20-48:21; see also Evanier Dep. (12/6/10) at that I ever did (or at least he enjoyed making it Reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
56:7-57:13; Morrow Dep. at 59:2-23, 60:5-17. up!)”), at 6 (Stan Lee: “Some artists, such as 95; 97; 99; 101;103; 105; 107, infra.
Jack Kirby, need no plot at all. I mean I’ll just
say to Jack, ‘Let’s let the next villain be Dr. Defendants’ citations do not support
Doom’ … or I may not even say that. He may Defendants’ response and therefore do not
tell me. And then he goes home and does it. dispute the facts alleged as required by
He’s so good at plots, I’m sure he’s a thousand Local Rule 56.1(d). See Local Rule
times better than I. He just about makes up the 56.1(b)-(d).
plots for these stories.”); Ex. HH at 45 (“Kirby:
the artists were doing the plotting- Stan was just Defendants’ citation to Toberoff Decl. Ex.
coordinating the books, which was his job. Stan MM at 151 refers to work created outside
was production coordinator. But the artists were the Time Period and is therefore irrelevant.
the ones that were handling both story and art. Fed. R. Evid. 402.
We had to- there was no time not to!”); Ex. II
(“According to statistics, I’ve done one quarter Defendants’ citations to the inadmissible
of Marvel’s entire output. There’s a lot of hard testimony and reports of Evanier and
work behind it. It’s something that’s highly Morrow may not be considered on
individual, highly creative and above all, it sold summary judgment. See Daubert, 509 U.S.
very well.”); Ex. OO (“Q: A lot of people don’t at 579; see also Docket Nos. 67, 70.
stories-most of them. Even the Marvel stuff. Defendants’ citations to inadmissible
Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I hearsay in Exs. HH, II, JJ, KK and OO the
did that with the Marvel books. I wrote the Toberoff Decl. also may not be used to
stories. I wrote the plots ,I did the drawings- I dispute facts. See Sarno, 183 F.3d at 160;
did the entire thing…”); Ex. KK (“Q: You have Hidden Brook Air, 241 F. Supp. 2d at 270.
written your own stories, text and drawings?
Kirby: Yes, that’s what I always did and that’s Defendants’ citations to the irrelevant
what I am doing now.”); Ex. NN at K1759 Adams Decl. and Steranko Decl. cannot be
(“[Jack Kirby] was a virtually inexhaustible used to dispute facts because neither
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wellspring of fantastic new ideas, concepts and declarant has any firsthand knowledge of
designs.”); Singer Dec., Ex, 53 at 36-37 (“Jack Marvel’s practices during the Time Period.
is certainly one of the most talented, if not the Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 402;
most talented guy that the comic book industry see also Hicks, 593 F.3d at 167.
the most creative guy I have ever known in this Neither Steranko nor Sinnott was identified
business. His mind is an endless source of as a potential witness by Defendants and
stories, concepts and ideas.”); Colan Dec. at ¶¶ therefore their testimony is inadmissible.
8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. Fed. R. Civ. P. 37(c)(1); see also Design
at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at Strategy, Inc., 469 F.3d at 284.
¶¶ 8-14. See also responses to ¶¶ 79-83; 85; 88;
90-91; 94-95; 97; 99; 101;103; 105; 107, infra. Finally, Defendants cannot create a factual
Decl. Exs. JJ and OO as these cited
documents were not produced in discovery
in this action and thus may not be
Melie, 2009 WL 1404325, at *1 n.4.
Payment of Artists and Writers

Defendants’ Reply
45. During the Time Period, Marvel’s Admitted only to the extent that freelance artists Defendants’ response does not set forth any
freelance artists and writers were paid flat rates and writers were paid by the page for those specific facts to dispute the facts set forth
for work they performed on a per-page basis. pages accepted and purchased by Marvel for in Paragraph 45 as required by Local Rule
Lee Dep. at 17:22-25, 30:11-14, 58:13-21, publication, otherwise disputed. Mor. Dec., Ex. 56.1(c). Therefore, Paragraph 45 is
396:1-10; see also Thomas Dep. at 28:5-15 A at 8-10; Ev. Dec., Ex. A at 12; Tob. Dec., Ex. deemed admitted in its entirety for the
(freelancers paid per-page rates in 1960s); C at 105:15-17; Ex. D at 89:13-92:5; 178:5-13; purposes of this motion. Local Rule
Romita Dep. at 16:13-21 (same in 1950s and 180:4-182:12; Ex. E at 29:4-8; 73:11-74:5 56.1(c); see also Parks Real Estate, 472
1960s). 100:21-101:9; see also Ex. E at 71:17-72:7, F.3d at 41; Giannullo, 322 F.3d at 140.
76:25-77:6; Ex. F at 65:17-66:4; 123:18-125:9;
Ex. I at 17:17-25; Ex. J at 367:15-369:16; 371:3- Defendants’ citations do not support
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18; 372:8-10; 396:1-14; Ex. K at 232:5-10; Ex. Defendants’ response and so cannot be
LL ¶ 6, Ex. C (Stephen Gerber Check); Ex. T; used to dispute facts. See Local Rule
Ex. AA at 14603; Ex. BB; Ex. L at ¶ 15; Colan 56.1(b)-(d).
Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14;
Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Further, Toberoff Decl. Exs. T, AA, BB,
Ayers Dec. at ¶¶ 8-14. and LL are irrelevant as they refer to
circumstances outside of the Time Period.
Fed. R. Evid. 402.
Defendants’ citations to the inadmissible

testimony of Evanier and Morrow also may
not be used to dispute facts. See Daubert,
509 U.S. at 579; see also Dockets, 67, 70.

used to dispute facts as neither declarant
has any firsthand knowledge of Marvel’s
practices during the Time Period. Fed. R.
Civ. P. 56(c)(4); Fed. R. Evid. 402; see also
Hicks, 593 F.3d at 167.

inadmissible and cannot be used to dispute
facts. Fed. R. Civ. P. 37(c)(1); see also
Design Strategy, Inc., 469 F.3d at 284.
46. Marvel did not purchase artwork from Disputed. Lee actually testified that he cannot Defendants’ response does not set forth any
artists on speculation during the Time Period. “remember” whether any works may have been specific facts to dispute the facts set forth
Lee Dep. at 41:20-42:9; see also Thomas Dep. purchased “on spec”. Singer Decl, Ex. 1 at in Paragraph 46 as required by Local Rule
at 58:14-23 (same in 1960s and 1970s). 41:25-42:2. Moreover, Thomas did not work for 56.1(c). Therefore, Paragraph 46 is
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Marvel during the Time Period. Tob. Dec., Ex. deemed admitted in its entirety for the
K at 22:22-24; Colan Dec. at ¶¶ 8, 9, 12, 14; purposes of this motion. Local Rule
Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; 56.1(c); see also Parks Real Estate, 472
Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. F.3d at 41; Giannullo, 322 F.3d at 140.

used to dispute facts as neither declarant
has any firsthand knowledge of Marvel’s
practices during the Time Period. Fed. R.
Civ. P. 56(c)(4); Fed. R. Evid. 402; see also
Hicks, 593 F.3d at 167.

inadmissible and cannot be used to dispute
facts. Fed. R. Civ. P. 37(c)(1); see also
Design Strategy, Inc., 469 F.3d at 284.
47. During the Time Period, Marvel’s artists Disputed. Marvel did not pay for rejected Defendants’ response does not set forth any
were paid for work they were assigned by artwork. Ev. Dec., Ex. A at 12; Mor. Dec., Ex. A specific facts to dispute the facts set forth
Marvel and submitted for publication, even if at 3, 8-10; Ex. B; Tob. Dec., Ex. B at 50:20- in Paragraph 47 as required by Local Rule
Marvel did not ultimately publish the artwork. 51:25; 61:24-62:9; Ex. C 105:15-17; 136:7- 56.1(c). Therefore, Paragraph 47 is
Lee Dep. at 18:6-16, 30:11-31:5, 376:16-22; see 138:22; 140:19-142:21; Ex. D at 89:13-92:5; deemed admitted in its entirety for the
also Romita Dep. at 32:2-5 (in 1950s, if an artist 138:11-139:4; 178:5-13; 179:5-13; 180:4- purposes of this motion. Local Rule
did the work, he would be paid for it). 182:12; Ex. E at 76:25-77:6; 77:20-79:4;103:7- 56.1(c); see also Parks Real Estate, 472
105:17; Ex. F at 123:18-125:9; Ex. G at 57:18- F.3d at 41; Giannullo, 322 F.3d at 140.
58:21; 62:19-63:6; 234:12-236:1; Ex. H at 37:6-
19; Ex. I at 17:17-25; Ex. J at 275:17-276:1; Defendants’ citations do not support
376:3-22; 396:1-14; Ex. N; Ex. O at 71-74; Ex. Defendants’ response and therefore do not
P; Ex. Q; Ex. R; Ex. S; Ex. V at 396; Ex. Z; dispute the facts alleged as required by
Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ Local Rule 56.1(d). See Local Rule
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6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9- 56.1(b)-(d).
15; Ayers Dec. at ¶¶ 8-14.
Defendants’ citations to Toberoff Decl.
Exs. E-F and P-R are irrelevant as they
refer to material produced outside of the
Time Period and/or as to which no
information has been provided regarding
the timing of their creation or whether they
were even submitted to Marvel for
publication. Fed. R. Evid. 402.

testimony of Evanier and Morrow may not
be considered on summary judgment. See
Daubert, 509 U.S. at 579; see also Dockets,
67, 70.

hearsay in Ex. B to the Declaration of John
Morrow, dated March 25, 2011 (“Morrow
Decl.”) and Exs. O, S, V and Z to the
Toberoff Decl. also may not be used to
Defendants’ citations to the testimony of

Neal and Susan Kirby are also inadmissible
as neither defendant has personal
knowledge of whether Jack Kirby was paid
for pages he submitted to Marvel during the
Time Period. Id.
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Neither Steranko nor Sinnott was identified

as a potential witness by Defendants and
therefore their testimony is inadmissible.
Fed. R. Civ. P. 37(c)(1); see also Design
Strategy, Inc., 469 F.3d at 284.

dispute through their reliance on Morrow
Decl. Ex. B as the cited document was not
at *1 n.4.
48. Marvel’s artists and writers also were Disputed. Marvel did not pay freelancers for Defendants’ response does not set forth any
paid their agreed per-page rate for work work it asked them to be redraw. Ev. Dec., Ex. specific facts to dispute the facts set forth
submitted for publication during the Time A at 12; Mor. Dec., Ex. A at 8-9; Tob. Dec., Ex. in Paragraph 48 as required by Local Rule
Period, even if Lee required changes to be made B at 61:24-62:9; Ex. C at 136:7-138:22; Ex. E at 56.1(c). Therefore, Paragraph 48 is
to the work after submission. Lee Dep. at 76:25-77:6; 77:20-79:4; Ex. G at 57:18-58:21; deemed admitted in its entirety for the
376:16-22; Lieber Dep. at 30:10-12; see also 62:19-63:6; 234:12-235:5; 235:6-236:1; Ex. H at purposes of this motion. Local Rule
Thomas Dep. at 68:24-69:6, 74:19-25 (during 37:6-19; Ex. Z; Ex. LL ¶ 3 ,Ex. E; Colan Dec. at 56.1(c); see also Parks Real Estate, 472
1960s and 1970s, artists were paid for work ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. F.3d at 41; Giannullo, 322 F.3d at 140.
even if changes were required). Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers
Dec. at ¶¶ 8-14. Defendants’ citations do not support
Defendants’ response and therefore do not
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dispute the facts alleged as required by
Local Rule 56.1(d). See Local Rule
56.1(b)-(d).
Defendants’ citation to Toberoff Decl. Ex.

LL refers to material produced outside of
the Time Period, and is therefore irrelevant.
Fed. R. Evid. 402.

67, 70.
Defendants’ citation to inadmissible

hearsay in Ex. Z to the Toberoff Decl. also
may not be used to dispute facts. See
Sarno, 183 F.3d at 160; Hidden Brook Air,
241 F. Supp. 2d at 270.

Time Period. Id.

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49. During the Time Period, writers and Admitted only to the extent that Kirby did not Defendants’ response does not set forth any
artists at Marvel and other major comic book receive royalties during the Time Period in specific facts to dispute the facts set forth
publishers did not receive royalties or other connection with the material that Marvel in Paragraph 49 as required by Local Rule
profit participation based on the work they purchased from Kirby, otherwise disputed. 56.1(c). Further, Defendants’ response
submitted that was published. Lee Dep. at 45:4- does not contain any citation to the record
9; Singer Decl. Ex. 33 at MARVEL0017691 evidence as required by Local Rule 56.1(d).
(noting that in comic books, “unlike most other Therefore, Paragraph 49 is deemed
forms of writing, there were no royalty admitted in its entirety for the purposes of
payments at the end of the road . . . no residuals this motion. See Local Rule 56.1(b)-(d);
. . . no copyright ownership. You wrote your see also Parks Real Estate, 472 F.3d at 41;
pages, got your check, and that was that.”); see Giannullo, 322 F.3d at 140.
also Evanier Dep. (11/9/10) at 164:18-165:18,
165:21-166:11.
Marvel’s Artists and Writers Understood and Acknowledged That Their Work Created for Marvel Was Work-Made-
For-Hire

Defendants’ Reply
50. On numerous occasions, Lee has Disputed. Lee testified, consistent with other Defendants’ response does not set forth any
expressly acknowledged and asserted that all freelance artists, that his freelance work was specific facts to dispute the facts set forth
works to which he contributed while working purchased by Marvel. Tob. Dec., Ex. J at in Paragraph 50 as required by Local Rule
for Marvel were works made for hire. Singer 367:15-369:16; 371:3-18; 372:8-10; 396:1-14; 56.1(c). Therefore, Paragraph 50 is
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Decl. Ex. 11, Track 8 (“I never owned these Ex. E at 100:21-101:9; Ex. F at 65:17-66:4; Ex. deemed admitted in its entirety for the
characters. I did them as a work for hire. So the K at 232:5-10; Colan Dec. at ¶¶ 8, 9, 12, 14; purposes of this motion. Local Rule
company owned the characters.”); Lee Dep. at Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; 56.1(c); see also Parks Real Estate, 472
26:22-28:6, 100:25-101:17, 396:11-14; Singer Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. In F.3d at 41; Giannullo, 322 F.3d at 140.
Decl. Ex. 34 at ¶¶ 4, 11; id. Ex. 23 at ¶ 4, id. Ex. Lee’s November 1, 1998 agreement with
24 at ¶ 4, id. Ex. 35 at ¶ 2. Marvel, Lee agreed to “assign, convey and grant Defendants’ response also states a legal
… all right, title and interest,” and “any conclusion rather than a statement of
copyrights” in his alleged material. Singer Dec. undisputed fact and legal conclusions may
Ex. 25 at ¶ 5(a). The agreement nowhere not be used to dispute facts on summary
mentions “work for hire,” and if Marvel fails to judgment. Schwapp, 118 F.3d at 111.
pay the monies due in the agreement, Lee can
revoke the assignment. Id. Ex. 25 at ¶ 5(f). Moreover, Defendants’ citations do not
Rule 56.1(b)-(d).


51. Marvel’s policy that it owned all works Disputed as it implies that Marvel owned the Defendants’ response does not set forth any
submitted for publication as works made for hire rights to these submissions as “work for hire,” specific facts to dispute the facts set forth
was well known among its artists and writers in when Stan Lee, Larry Lieber, Roy Thomas, Stan in Paragraph 51 as required by Local Rule
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the 1950s and 1960s. Lee Dep. at 27:21-28:11; Lee, Dick Ayers, Gene Colan, Joe Sinnott, Jim 56.1(c). Therefore, Paragraph 51 is
Thomas Dep. at 85:12-86:19. For example, Steranko and Neal Adams each testified that it deemed admitted in its entirety for the
while working both at Marvel and DC Comics, was their understanding that Marvel owned the purposes of this motion. Local Rule
artist John V. Romita understood that the rights to their pages because Marvel had 56.1(c); see also Parks Real Estate, 472
company always owned the works to which he purchased such pages from them. Tob. Dec., Ex. F.3d at 41; Giannullo, 322 F.3d at 140.
contributed that were published under the E at 100:21-101:9; Ex. F at 65:17-66:4; Ex. J at
company’s name. Romita Dep. at 68:7-10, 396:1-14; Ex. K at 232:5-10. See also Tob. Dec., Defendants’ citations do not support
86:7-8, 86:13-20; Singer Decl. Ex. 36. Ex. C at 215:14-216:23; Ex. L at ¶¶ 2, 4, 15; Ex. Defendants’ response and therefore do not
Similarly, writer Roy Thomas also understood AA at 14603; Ex. LL at Ex. C ; Ex. T; Mor. dispute the facts alleged as required by
that the copyrights to the materials he submitted Dec., Ex. A at 9; Ev. Dec., Ex. A at 12-13. Local Rule 56.1(d). See Local Rule
for publication were owned by Marvel. Thomas Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 56.1(b)-(d).
Dep. at 84:16-85:19; Singer Decl. Ex. 37; see 6-14; Ster. Dec. at ¶¶ 8- 14; Sinn. Dec. at ¶¶ 9-
also Lieber Dep. at 32:6-16 (“I didn’t think 15; Ayers Dec. at ¶¶ 8-14. Further disputed to Defendants’ citations to Toberoff Decl.
much about [Marvel’s work-for-hire policy] the extent Larry Lieber testified he had never Exs. T, AA, and LL refer to circumstances
because I felt the only reason I was doing it was heard the phrase “work for hire” until last year. outside of the Time Period and are
to get paid, you know.”); Singer Decl. Ex. 38 Tob. Dec., Ex. E at 101:10-102:8. therefore irrelevant. Fed. R. Evid. 402.
(“In the narrow field of comic art, one either
worked ‘for hire’ or didn’t work!”); id. Ex. 39 at Defendants’ citations to the inadmissible
MARVEL0018273 (Kirby stating, “[e]verybody testimony of Evanier and Morrow may not
was ‘work-for-hire’ . . . It was the traditional be considered on summary judgment. See
way that artists got jobs”). Daubert, 509 U.S. at 579; see also Dockets,
67, 70.

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52. Likewise, Marvel’s artists and writers Disputed and not relevant to determining Defendants’ response does not set forth any
understood that Marvel had the right to whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
introduce existing characters into a different owned at inception by Marvel as “works made in Paragraph 52 as required by Local Rule
comic book series being drawn and/or written by for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
a different artist and/or writer without consulting completion, if accepted by Marvel. See Opp. at does not contain any citation to the record
the original writer or artist. Thomas Dep. at 13-20. evidence as required by Local Rule 56.1(d).
65:13-17, 65:23-66:7, 67:3-14; see also Lee Therefore, Paragraph 52 is deemed
Dep. at 79:3-19. admitted in its entirety for the purposes of
53. Marvel artist John Romita, writer Larry Disputed as it implies that Marvel owned the Defendants’ response does not set forth any
Lieber and writer-turned-editor Roy Thomas all rights to these submissions as “work for hire,” specific facts to dispute the facts set forth
testified that they recall that the payroll checks when Stan Lee, Larry Lieber, Roy Thomas, Stan in Paragraph 53 as required by Local Rule
by which they were paid for their freelance work Lee, Dick Ayers, Gene Colan, Joe Sinnott, Jim 56.1(c). Therefore, Paragraph 53 is
bore a legend on the back stating that they Steranko and Neal Adams each testified that it deemed admitted in its entirety for the
retained no rights in the work for which they was their understanding that Marvel owned the purposes of this motion. Local Rule
were being paid. Thomas Dep. at 71:17-72:19, rights to their pages because Marvel had 56.1(c); see also Parks Real Estate, 472
229:4-25; Romita Dep. at 64:14-65:19, 65:24- purchased such pages from them. Tob. Dec., Ex. F.3d at 41; Giannullo, 322 F.3d at 140.
66:4, 66:24-67:14, 67:17-20, 273:24-274:11; E at 100:21-101:9; Ex. F at 65:17-66:4; Ex. J at
Lieber Dep. at 31:17-21, 32:4-33:8. Stan Lee 396:1-14; Ex. K at 232:5-10. See also Tob. Dec., Defendants’ citations do not support
recalls endorsing paychecks from Timely Ex. L at ¶¶ 2, 4, 15; Ex. AA at 14603; Ex. LL at Defendants’ response and therefore do not
Comics and its various successors for his writing Ex. C; Ex. T; Mor. Dec., Ex. A at 9; Ev. Dec., dispute the facts alleged as required by
that bore such an acknowledgement, which was Ex. A at 12-13; Colan Dec. at ¶¶ 12, 14; Adams Local Rule 56.1(d). See Local Rule
the “standard practice” for all writers and artists Dec. at ¶ 14; Ster. Dec. at ¶ 12; Sinn. Dec. at ¶¶ 56.1(b)-(d).
who worked for Marvel on a freelance basis. 13-14; Ayers Dec. at ¶ 14.
Lee testified that he never thought anything of Defendants’ citations to Toberoff Decl.
this practice because he always assumed that Exs. T, AA, and LL refer to circumstances
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Marvel owned the rights to the works he created outside of the Time Period and are
or co-created. Lee Dep. at 28:20-29:11. therefore irrelevant. Fed. R. Evid. 402.

Nos., 67, 70.


KIRBY’S WORKS WERE WORKS-MADE-FOR-HIRE
Stan Lee’s Authority To Review and Edit Kirby’s Work

Defendants’ Reply
54. During the Time Period, some Disputed. Neither Romita nor Thomas are Defendants’ response does not set forth any
assignments were given to Kirby to draw based testifying about the Time Period as they did not specific facts to dispute the facts set forth
on a detailed script, and others were given to work for Marvel during that period. Tob. Dec., in Paragraph 54 as required by Local Rule
him pursuant to the Marvel Method. Under Ex. F at 219:6-220:11; Ex. K at 22:22-24. Jack 56.1(c). Therefore, Paragraph 54 is
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either process, Kirby was assigned to draw a Kirby provided his own initial plots and deemed admitted in its entirety for the
particular comic book issue based on Stan Lee’s concepts during the Time Period. Ev. Dec., Ex. purposes of this motion. Local Rule
initial concept and plot outline. When working A at 14-17; Mor. Dec., Ex. A at 10-13. Tob. 56.1(c); see also Parks Real Estate, 472
under the Marvel Method, after Kirby was given Dec., Ex. HH at 45 (“Kirby: the artists were F.3d at 41; Giannullo, 322 F.3d at 140;
the assignment and initial concept, Lee and doing the plotting- Stan was just coordinating Reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
Kirby discussed the plot in a plotting the books, which was his job. Stan was 95; 97; 99; 101;103; 105; 107, infra.
conference, and only then did Kirby draw the production coordinator. But the artists were the
complete story based on the plot and his ones that were handling both story and art. We Defendants’ citations do not support
discussion with Lee. Lee Dep. at 39:25-41:19, had to- there was no time not to!”); Ex. II Defendants’ response and therefore do not
47:21-25, 94:24-95:12, 383:18-21; Lieber Dep. (“According to statistics, I’ve done one quarter dispute the facts alleged as required by
at 47:20-48:8; see also Evanier Dep. (11/9/10) at of Marvel’s entire output. There’s a lot of hard Local Rule 56.1(d). See Local Rule
91:9-18, 92:22-93:4, 111:4-14, 168:4-169:24; work behind it. It’s something that’s highly 56.1(b)-(d).
Thomas Dep. at 111:12-14, 112:8-17; Romita individual, highly creative and above all, it sold
Dep. at 80:19-25; Singer Decl. Ex. 40. very well.”); Ex. OO (“Q: A lot of people don’t Defendants’ citation to Toberoff Decl. Ex.
know that you actually scripted a lot of these MM at 151 refers to work created outside
stories-most of them. Even the Marvel stuff. the Time Period and is therefore irrelevant.
Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I Fed. R. Evid. 402.
did that with the Marvel books. I wrote the
stories. I wrote the plots, I did the drawings- I Defendants’ citations to the inadmissible
did the entire thing…”); Ex. KK at 122 (“Q: testimony and reports of Evanier and
You have written your own stories, text and Morrow may not be considered on
drawings? Kirby: Yes, that’s what I always did summary judgment. See Daubert, 509 U.S.
and that’s what I am doing now.”); Ex. NN at at 579, 542 F.3d at 311; see also Docket
K1759 (“[Jack Kirby] was a virtually Nos. 67, 70.
inexhaustible wellspring of fantastic new ideas,
concepts and designs.”); Ex. MM at 6 (“Some Defendants’ citations to inadmissible
artists, such as Jack Kirby, need no plot at all. I hearsay in Exs. GG, HH, II, JJ, KK and OO
mean I’ll just say to Jack, ‘Let’s let the next the Toberoff Decl. also may not be used to
villain be Dr. Doom’ … or I may not even say dispute facts. See Sarno, 183 F.3d at 160;
that. He may tell me. And then he goes home Hidden Brook Air, 241 F. Supp. 2d at 270.
and does it. He’s so good at plots, I’m sure he’s
a thousand times better than I. He just about Finally, Defendants cannot create a factual
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makes up the plots for these stories.”), 151; Ex. dispute through their reliance on Toberoff
GG at 193; Ex. I at 23:4-13 (“Do you recall Decl. Exs. GG, JJ and OO as these cited
creating any new characters for Marvel after documents were not produced in discovery
1970? There was a time in the –maybe in the in this action and thus may not be
90s when I started to create a new line of comics considered on summary judgment. See
for Marvel…We never published them…I was Melie, 2009 WL 1404325, at *1 n.4.
working with new people and it just-they didn’t
turn out right. But aside from that, no.”). Singer
Dec., Ex, 53 at 36-37 (“Jack is certainly one of
88; 90-91; 94-95; 97; 99; 101;103; 105; 107,
infra.
55. Kirby did not begin work on any artwork Disputed. Jack Kirby provided his own initial Defendants’ response does not set forth any
for a book published by Marvel during the Time plots and concepts during the Time Period. Ev. specific facts to dispute the facts set forth
Period before he had been assigned to that Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 10-13. in Paragraph 55 as required by Local Rule
project by Lee. Lee Dep. at 383:18-21, 384:18- Tob. Dec., Ex. HH at 45 (“Kirby: the artists 56.1(c). Therefore, Paragraph 55 is
21; see also Evanier Dep. (11/9/10) at 92:22- were doing the plotting- Stan was just deemed admitted in its entirety for the
93:4; Evanier Dep. (12/6/10) at 225:5-8. coordinating the books, which was his job. Stan purposes of this motion. Local Rule
was production coordinator. But the artists were 56.1(c); see also Parks Real Estate, 472
the ones that were handling both story and art. F.3d at 41; Giannullo, 322 F.3d at 140;
We had to- there was no time not to!”); Ex. II Reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
(“According to statistics, I’ve done one quarter 95; 97; 99; 101;103; 105; 107, infra.
of Marvel’s entire output. There’s a lot of hard
work behind it. It’s something that’s highly Defendants’ citations do not support
individual, highly creative and above all, it sold Defendants’ response and therefore do not
very well.”); Ex. OO (“Q: A lot of people don’t dispute the facts alleged as required by
know that you actually scripted a lot of these Local Rule 56.1(d). See Local Rule
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stories-most of them. Even the Marvel stuff. 56.1(b)-(d).
Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I
did that with the Marvel books. I wrote the Defendants’ citation to Toberoff Decl. Ex.
stories. I wrote the plots, I did the drawings- I MM at 151 refers to work created outside
did the entire thing…”); Ex. KK at 122 (“Q:You the Time Period and is therefore irrelevant.
have written your own stories, text and Fed. R. Evid. 402.
drawings? Kirby: Yes, that’s what I always did
and that’s what I am doing now.”); Ex. NN at Defendants’ citations to the inadmissible
K1759 (“[Jack Kirby] was a virtually testimony and reports of Evanier and
inexhaustible wellspring of fantastic new ideas, Morrow may not be considered on
concepts and designs.”); Ex. MM at 6 (“Some summary judgment. See Daubert, 509 U.S.
artists, such as Jack Kirby, need no plot at all. I at 579; see also Docket Nos. 67, 70.
mean I’ll just say to Jack, ‘Let’s let the next
villain be Dr. Doom’ … or I may not even say Defendants’ citations to inadmissible
that. He may tell me. And then he goes home hearsay in Exs. GG, HH, II, JJ, KK and OO
and does it. He’s so good at plots, I’m sure he’s the Toberoff Decl. also may not be used to
a thousand times better than I. He just about dispute facts. See Sarno, 183 F.3d at 160;
makes up the plots for these stories.”), 151; Ex. Hidden Brook Air, 241 F. Supp. 2d at 270.
GG at 193; Ex. I at 23:4-13 (“Do you recall
1970? There was a time in the –maybe in the dispute through their reliance on Toberoff
90s when I started to create a new line of comics Decl. Exs. GG, JJ and OO as these cited
for Marvel…We never published them…I was documents were not produced in discovery
working with new people and it just-they didn’t in this action and thus may not be
turn out right. But aside from that, no.”). Singer considered on summary judgment. See
Dec., Ex, 53 at 36-37 (“Jack is certainly one of Melie, 2009 WL 1404325, at *1 n.4.
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88; 90-91; 94-95; 97; 99; 101;103; 105; 107,
infra.
56. In plotting conferences during the Time Disputed and not relevant to determining Defendants’ response does not set forth any
Period, if Kirby and Lee ever had differing whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
views on an element of an upcoming comic owned at inception by Marvel as “works made in Paragraph 56 as required by Local Rule
book issue, Lee always had the final say as to for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
what would go into the book. Lee Dep. at 52:3- completion, if accepted by Marvel. does not contain any citation to the record
5, 73:17-23, 111:2-17; see also Romita Dep. at evidence as required by Local Rule 56.1(d).
81:18-83:21 (describing plotting conferences in Therefore, Paragraph 56 is deemed
1960s); Singer Decl. Ex. 11, Track 3. admitted in its entirety for the purposes of
57. In the course of fleshing out the outlines Disputed. Kirby could create characters while Defendants’ response does not set forth any
into complete comic book stories during the working on stories intended to be submitted to specific facts to dispute the facts set forth
Time Period, Kirby from time to time Marvel, but refuse to provide them to Marvel. in Paragraph 57 as required by Local Rule
introduced new characters into the story. This Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain 56.1(c). Therefore, Paragraph 57 is
introduction of new elements was part of his Glory); Ex. C (Jack Kirby’s Gods portfolio), D deemed admitted in its entirety for the
assignment, and was always done within the (New Gods presentation pieces). Kirby was not purposes of this motion. Local Rule
context of the work Lee had assigned him and legally “required to report to Lee and to abide by 56.1(c); see also Parks Real Estate, 472
the script or the plot that Lee provided to him. his ‘marching orders’” as he had no contract F.3d at 41; Giannullo, 322 F.3d at 140.
Lee Dep. at 54:16-56:9, 377:12-19. with Marvel. Mor. Dec., Ex. A at 8-10; Ev.
Dec., Ex. A at 11-12; Tob. Dec., Ex. E at 71:17- Defendants’ response also states a legal
72:7; 72:22-73:8; 73:11- 74:5; 76:25-77:6; Ex. F conclusion rather than a statement of
at 194:11-21; 204:6-19; 204:24-205:15; Ex. J at undisputed fact and legal conclusions may
256:25-257:25; Ex. L at ¶ 1, 3. Kirby had no not be used to dispute facts on summary
legal obligation to provide work to Marvel, judgment. Schwapp, 118 F.3d at 111.
finish artwork he had started with the intention
to sell to Marvel, nor did Marvel have the legal Moreover, Defendants’ citations do not
right to demand revisions by Kirby of his support Defendants’ response and so
artwork. Kirby was free to reject any of cannot be used to dispute facts. See Local
Marvel’s requests or to submit material that Rule 56.1(b)-(d).
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Marvel did not request. Ev. Dec. ¶ 17, 19, 20;
Ex. B at 355-56 (Captain Glory); Ex. C (Jack Defendants’ citations to the inadmissible
Kirby’s Gods portfolio), D (New Gods testimony and reports of Evanier and
presentation pieces). Tob. Dec., Ex. MM at 6 Morrow may not be considered on
(“Some artists, such as Jack Kirby, need no plot summary judgment. See Daubert, 509 U.S.
at all. I mean I’ll just say to Jack, ‘Let’s let the at 579; see also Docket Nos. 67, 70.
next villain be Dr. Doom’ … or I may not even
say that. He may tell me. And then he goes Defendants’ citations to inadmissible
home and does it. He’s so good at plots, I’m hearsay Exs. B, C, and D to the Evanier
sure he’s a thousand times better than I. He just Decl. and Ex. GG to the Toberoff Decl.
about makes up the plots for these stories.”),151; also may not be used to dispute facts. See
Ex. GG at 193; Colan Dec. at ¶¶ 8, 9, 12, 14; Sarno, 183 F.3d at 160; Hidden Brook Air,
Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8- 241 F. Supp. 2d at 270.
14; Sinn. Dec. at ¶¶ 9-15.
Civ. P. 37(c)(1); Fed. R. Civ. P.

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at *1 n.4.
58. During the Time Period, Stan Lee had Disputed and not relevant to determining Defendants’ response does not set forth any
the right to direct and supervise Kirby’s work whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
and had the ability to review all of Kirby’s owned at inception by Marvel as “works made in Paragraph 58 as required by Local Rule
artwork prior to publication. In reviewing for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 58 is
artwork that Kirby submitted for publication, completion, if accepted by Marvel. Kirby was deemed admitted in its entirety for the
Lee had the authority to determine whether the not legally “required to report to Lee and to purposes of this motion. Local Rule
artwork would be published, or to require abide by his ‘marching orders’” as he had no 56.1(c); see also Parks Real Estate, 472
changes or edits prior to approval or prior to contract with Marvel. Mor. Dec., Ex. A at 8-10; F.3d at 41; Giannullo, 322 F.3d at 140.
publication. Lee Dep. at 22:11-23:19, 47:15-25; Ev. Dec., Ex. A at 11-12; Tob. Dec., Ex. E at
see also Thomas Dep. at 113:18-114:11; Evanier 71:17-72:7; 72:22-73:8; 73:11- 74:5; 76:25- Defendants’ response also states a legal
Dep. (12/6/10) at 105:6-14, 105:18-23. 77:6; Ex. F at 194:11-21; 204:6-19; 204:24- conclusion rather than a statement of
205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3. undisputed fact and legal conclusions may
Kirby had no legal obligation to provide work to not be used to dispute facts on summary
Marvel, finish artwork he had started with the judgment. Schwapp, 118 F.3d at 111.
intention to sell to Marvel, nor did Marvel have
the legal right to demand revisions by Kirby of Moreover, Defendants’ citations do not
his artwork.. Kirby was free to reject any of support Defendants’ response and so
Marvel’s requests or to submit material that cannot be used to dispute facts. See Local
Marvel did not request. Ev. Dec. ¶ 17, 19, 20; Rule 56.1(b)-(d).
Ex. B at 355-56 (Captain Glory); Ex. C (Jack
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Kirby’s Gods portfolio), D (New Gods Defendants’ citations to the inadmissible
presentation pieces). Tob. Dec., Ex. MM at 6 testimony and reports of Evanier and
(“Some artists, such as Jack Kirby, need no plot Morrow may not be considered on
at all. I mean I’ll just say to Jack, ‘Let’s let the summary judgment. See Daubert, 509 U.S.
next villain be Dr. Doom’ … or I may not even at 579; see also Docket Nos. 67, 70.
say that. He may tell me. And then he goes
home and does it. He’s so good at plots, I’m Defendants’ citations to inadmissible
sure he’s a thousand times better than I. He just hearsay in Exs. B, C, and D to the Evanier
about makes up the plots for these stories.”),151; Decl. and Ex. GG to the Toberoff Decl.
Ex. GG at 193; Colan Dec. at ¶¶ 8, 9, 12, 14; also may not be used to dispute facts. See
Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sarno, 183 F.3d at 160; Hidden Brook Air,
Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8- 14. 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.


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at *1 n.4.
59. At Lee’s discretion, Kirby was Disputed and not relevant to determining Defendants’ response does not set forth any
sometimes instructed to make changes and whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
revisions to artwork he submitted to Marvel for owned at inception by Marvel as “works made in Paragraph 59 as required by Local Rule
publication. Lee Dep. at 22:11-19, 23:13-19; for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 59 is
Thomas Dep. at 113:25-114:11; see also Evanier completion, if accepted by Marvel. Kirby was deemed admitted in its entirety for the
Dep. (11/9/10) at 59:22-60:4, 60:23-61:8, 61:20- not legally “required to report to Lee and to purposes of this motion. Local Rule
23; Evanier Dep. (12/6/10) at 105:6-14, 105:18- abide by his ‘marching orders’” as he had no 56.1(c); see also Parks Real Estate, 472
23, 106:5-7; N. Kirby Dep. at 170:23-171:4; contract with Marvel. Mor. Dec., Ex. A at 8-10; F.3d at 41; Giannullo, 322 F.3d at 140.
October 25, 2010 Deposition of Susan Kirby Ev. Dec., Ex. A at 11-12; Tob. Dec., Ex. E at
(“S. Kirby Dep.”) annexed as Ex. 7 to the Singer 71:17-72:7; 72:22-73:8; 73:11- 74:5; 76:25- Defendants’ response also states a legal
Decl. at 37:23-25; Morrow Dep. at 205:13-19, 77:6; Ex. F at 194:11-21; 204:6-19; 204:24- conclusion rather than a statement of
206:5-207:10, 264:11-18. Lee does not recall 205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3. undisputed fact and legal conclusions may
any instance when Kirby ever refused to make Kirby had no legal obligation to provide work to not be used to dispute facts on summary
any of the edits or changes that Lee directed. Marvel, finish artwork he had started with the judgment. Schwapp, 118 F.3d at 111.
Lee Dep. at 48:10-13. intention to sell to Marvel, nor did
Marvel have the legal right to demand revisions Moreover, Defendants’ citations do not
by Kirby of his artwork.. Kirby was free to support Defendants’ response and so
reject any of Marvel’s requests or to submit cannot be used to dispute facts. See Local
material that Marvel did not request. Ev. Dec. ¶ Rule 56.1(b)-(d).
17, 19, 20; Ex. B at 355-56 (Captain Glory); Ex.
C (Jack Kirby’s Gods portfolio), D (New Gods Defendants’ citations to the inadmissible
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Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.


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at *1 n.4.
60. Lee sometimes requested that an artist Disputed and not relevant to determining Defendants’ response does not set forth any
make changes to another artist’s work. See whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
Thomas Dep. at 114:13-115:9; see also Evanier owned at inception by Marvel as “works made in Paragraph 60 as required by Local Rule
Dep. (12/6/10) at 197:17-24. For example, John for hire” or purchased by Marvel upon 56.1(c). Therefore, Paragraph 60 is
Romita recalled that when he first met Kirby, completion, if accepted by Marvel. Kirby was deemed admitted in its entirety for the
Kirby was sitting in Marvel’s bullpen making not legally “required to report to Lee and to purposes of this motion. Local Rule
changes to a cover that had been penciled abide by his ‘marching orders’” as he had no 56.1(c); see also Parks Real Estate, 472
originally by artist Steve Ditko. Romita Dep. at contract with Marvel. Mor. Dec., Ex. A at 8-10; F.3d at 41; Giannullo, 322 F.3d at 140.
74:23-76:7. Additionally, from time to time, Ev. Dec., Ex. A at 11-12; Tob. Dec., Ex. E at
Lee asked John Romita to make changes to 71:17-72:7; 72:22-73:8; 73:11- 74:5; 76:25- Defendants’ response also states a legal
artwork that Kirby had submitted for 77:6; Ex. F at 194:11-21; 204:6-19; 204:24- conclusion rather than a statement of
publication. For example, Lee asked Romita to 205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3. undisputed fact and legal conclusions may
change certain facial features on Kirby’s Kirby had no legal obligation to provide work to not be used to dispute facts on summary
characters. Romita found this difficult because Marvel, finish artwork he had started with the judgment. Schwapp, 118 F.3d at 111.
he idolized Kirby’s work, but he “did it because intention to sell to Marvel, nor did Marvel have
[he] had no choice. Stan asked [him] to do it.” the legal right to demand revisions by Kirby of Moreover, Defendants’ citations do not
Id. at 76:8-78:21. Romita recalls that Kirby his artwork.. Kirby was free to reject any of support Defendants’ response and so
rarely read any comic book in its final published Marvel’s requests or to submit material that cannot be used to dispute facts. See Local
format, and for that reason may have been Marvel did not request. Ev. Dec. ¶ 17, 19, 20; Rule 56.1(b)-(d).
unaware of the changes that were made to his Ex. B at 355-56 (Captain Glory); Ex. C (Jack
artwork after its submission. Id. at 88:16-24. Kirby’s Gods portfolio), D (New Gods Defendants’ citations to the inadmissible
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Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.


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at *1 n.4.
61. Kirby was paid for all the artwork pages Disputed. Marvel only paid for completed work Defendants’ response does not set forth any
that he submitted to Marvel during the Time by Kirby it accepted from Kirby, regardless of specific facts to dispute the facts set forth
Period, even if it was not used for publication whether or not it subsequently published the in Paragraph 61 as required by Local Rule
and even if Lee required that changes be made work, and Marvel had no legal obligation to pay 56.1(c). Therefore, Paragraph 61 is
to it prior to publication. Lee Dep. at 30:24- for work it did not accept. Ev. Dec., Ex. A at 12; deemed admitted in its entirety for the
31:5, 376:3-22 (“Any artists that drew anything Mor. Dec., Ex. A at 8-10; Tob. Dec., Ex. D at purposes of this motion. Local Rule
that I had asked him or her to draw at my behest, 89:13-92:5; 180:4-182:12; Ex. E at 103:7- 56.1(c); see also Parks Real Estate, 472
I paid them for it. If it wasn’t good, we 105:17; Ex. F at 123:18-125:9; Ex. V at 396; F.3d at 41; Giannullo, 322 F.3d at 140.
wouldn’t use it. But I asked them to draw it, so Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶
I did pay them.”); see also Evanier Dep. 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9- Defendants’ response also states a legal
(11/9/10) at 61:24-62:1, 62:10-24; Evanier Dep. 15; Ayers ¶¶11-14. If a page(s) or story was conclusion rather than a statement of
(12/6/10) at 138:19-22. Lee sometimes later rejected by Marvel, Kirby was not compensated, undisputed fact and legal conclusions may
used these inventory pages as tests for new and personally took the financial loss. Id. Kirby not be used to dispute facts on summary
inkers. Lee Dep. at 22:11-23:19. was also not paid for work Marvel asked him to judgment. Schwapp, 118 F.3d at 111.
redraw. Id., Ev. Dec., Ex. A at 12; Mor. Dec.,
Ex. A at 8-9; Tob. Dec., Ex. B at 61:20-62:9; Moreover, Defendants’ citations do not
Ex. C at 136:7-38:22; 140:19-141:3; Ex. D at support Defendants’ response and so
89:13-92:5; Ex. E at 77:20-79:4; Ex. G at 57:18- cannot be used to dispute facts. See Local
58:21, 234:12-236:1; Ex. H at 37:6-19. Marvel Rule 56.1(b)-(d).
did not have any written agreement with Kirby
during the 1958-1963 Time Period. Mor. Dec., Defendants’ citations to Toberoff Decl.
Ex. A at 9, 11-12; Ev. Dec., Ex. A at 11; Tob. Exs. E-F refer to artists/writers other than
Dec., Ex. E at 71:17-72:7; 72:22-73:8; 73:11- Kirby or refer to circumstances outside of
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74:5; 76:25-77:6; Ex. F at 194:11-21; 200:4- the Time Period and are therefore
201:13; 204:6-19; 204:24-205:15; Ex. J at irrelevant. Fed. R. Evid. 402.
256:25-257:25; Ex. L, ¶¶ 1, 3. The first written
agreement with Kirby produced by Marvel was Defendants’ citations to the inadmissible
executed on June 5, 1972 and is aptly titled: testimony of Evanier and Morrow may not
“Assignment.” Tob. Dec., Ex. M. be considered on summary judgment. See
67, 70.

hearsay in Ex. V to the Toberoff Decl. also
241 F. Supp. 2d at 270.

Time Period. Id.


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62. Like all freelance artists at Marvel Admitted, except denied that Kirby was Defendants’ response does not set forth any
during the Time Period, Kirby was paid an “Marvel’s artist,” as Marvel was not obligated to specific facts to dispute the facts set forth
agreed per-page rate for his artwork. Lee Dep. Kirby and Kirby was not obligated to Marvel in Paragraph 62 as required by Local Rule
at 58:13-21; Singer Decl. Ex. 41 at during the Time Period; Kirby could and did sell 56.1(c). Therefore, Paragraph 62 is
MARVEL0017230; N. Kirby Dep. at 72:20-22, his artwork to companies other than Marvel deemed admitted in its entirety for the
73:1-4, 81:8-13; see also Evanier Dep. during the Time Period. Ev. Dec., ¶ 18; Tob. purposes of this motion. Local Rule
(12/6/10) at 105:15-17. Kirby was paid the Dec., Ex. D at 177:11-15; Ex. W at 5-6, 18, 19, 56.1(c); see also Parks Real Estate, 472
highest per-page rate offered by Marvel because 21, 25, 55, 80-81, 84-85; Ex. X at 18462-18466; F.3d at 41; Giannullo, 322 F.3d at 140.
Lee considered him to be Marvel’s best artist. Ex. Y at 129; Colan Dec. at ¶¶ 8, 9, 12, 14;
Lee Dep. at 30:15-23. Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Defendants’ response also states a legal
Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. conclusion rather than a statement of
undisputed fact and legal conclusions may
not be used to dispute facts on summary
judgment. Schwapp, 118 F.3d at 111.
Moreover, Defendants’ citations do not

Rule 56.1(b)-(d).

testimony and reports of Evanier and
Morrow may not be considered on
summary judgment. See Daubert, 509 U.S.

hearsay in Exs. W, X and Y to the Toberoff
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Air, 241 F. Supp. 2d at 270.

Civ. P. 37(c)(1); Fed. R. Civ. P.



Decl. Ex. Y as this document was not
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at *1 n.4.
63. When Kirby submitted his artwork for Admitted on to the extent that Kirby included Defendants’ response does not set forth any
Lee’s review, he sometimes included notes in detailed “notes in the margins of [his] pages to specific facts to dispute the facts set forth
the margins of the pages to describe his ideas for describe his ideas for a plot or dialogue being in Paragraph 63 as required by Local Rule
a plot or dialogue being depicted. Lee had depicted,” but otherwise disputed as the story 56.1(c). Therefore, Paragraph 63 is
discretion as to whether to use any of those was already plotted by Kirby in his illustrated deemed admitted in its entirety for the
notes, and he almost always ignored them and panels, and in addition Lee would consult and purposes of this motion. Local Rule
inserted his own dialogue instead. Lee Dep. at use the margins notes routinely provided by 56.1(c); see also Parks Real Estate, 472
48:24-52:20; Thomas Dep. at 117:11-22; Singer Kirby. Ev. Dec., Ex. A at 9-10; Tob. Dec., Ex. D F.3d at 41; Giannullo, 322 F.3d at 140;
Decl. Ex. 42 at MARVEL0017976; see also at 66:8-22; Ex. FF; Ex. GG at 192-199. See also Reply to ¶¶ Nos. 79-83; 85; 88; 90-91; 94-
Evanier Dep. (12/6/10) at 193:13-17, 193:25- Ev. Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 95; 97; 99; 101;103; 105; 107.
195:3. 10-13; Tob. Dec., Ex. HH at 45 (“Kirby: the
artists were doing the plotting- Stan was just Defendants’ citations do not support
coordinating the books, which was his job. Stan Defendants’ response and therefore do not
was production coordinator. But the artists were dispute the facts alleged as required by
the ones that were handling both story and art. Local Rule 56.1(d). See Local Rule
We had to- there was no time not to!”); Ex. II 56.1(b)-(d).
(“According to statistics, I’ve done one quarter
of Marvel’s entire output. There’s a lot of hard Defendants’ citation to Toberoff Decl. Ex.
work behind it. It’s something that’s highly MM at 151 refers to work created outside
individual, highly creative and above all, it sold the Time Period and is therefore irrelevant.
very well.”); Ex. OO (“Q: A lot of people don’t Fed. R. Evid. 402.
stories-most of them. Even the Marvel stuff. Defendants’ citations to the inadmissible
Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I testimony and reports of Evanier and
did that with the Marvel books. I wrote the Morrow may not be considered on
stories. I wrote the plots, I did the drawings- I summary judgment. See Daubert, 509 U.S.
did the entire thing…”); Ex. KK at 122 (“Q:You at 579; see also Docket Nos. 67, 70.
have written your own stories, text and
drawings? Kirby: Yes, that’s what I always did Defendants’ citations to inadmissible
and that’s what I am doing now.”); Ex. NN at hearsay in Exs. FF, GG, HH, II, JJ, KK and
K1759 (“[Jack Kirby] was a virtually OO the Toberoff Decl. also may not be
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inexhaustible wellspring of fantastic new ideas, used to dispute facts. See Sarno, 183 F.3d
concepts and designs.”); Ex. MM at 6 (“Some at 160; Hidden Brook Air, 241 F. Supp. 2d
artists, such as Jack Kirby, need no plot at all. I at 270.
mean I’ll just say to Jack, ‘Let’s let the next
villain be Dr. Doom’ … or I may not even say Finally, Defendants cannot create a factual
that. He may tell me. And then he goes home dispute through their reliance on Toberoff
and does it. He’s so good at plots, I’m sure he’s Decl. Exs. GG, JJ and OO as these cited
a thousand times better than I. He just about documents were not produced in discovery
makes up the plots for these stories.”),151; in this action and thus may not be
Singer Dec. Ex. 53 at 36-37 (“Jack is certainly considered on summary judgment. See
one of the most talented, if not the most talented Melie, 2009 WL 1404325, at *1 n.4.
guy that the comic book industry has ever
produced. He is the most imaginative, the most
creative guy I have ever known in this business.
His mind is an endless source of stories,
concepts and ideas.”). See also responses to ¶¶
79-83; 85; 88; 90-91; 94-95; 97; 99; 101;103;
105; 107.
64. Kirby never did any artwork for Disputed. Lee actually testified that he cannot Defendants’ response does not set forth any
publication by Marvel without having been “remember” whether any works may have been specific facts to dispute the facts set forth
assigned to do so by Marvel, and Kirby never purchased “on spec”. Singer Decl, Ex. 1 at in Paragraph 64 as required by Local Rule
submitted artwork to Marvel on spec. N. Kirby 41:25-42:2; 48:2-4. Moreover, Thomas did not 56.1(c). Therefore, Paragraph 64 is
Dep. at 127:19-24 (“Q: Was it your work for Marvel during the Time Period. Tob. deemed admitted in its entirety for the
understanding that your father would begin Dec., Ex. K at 22:22-24. Neal Kirby testified purposes of this motion. Local Rule
working on a book without any discussion with that his father did pitch ideas on spec to Marvel: 56.1(c); see also Parks Real Estate, 472
Stan before doing so? A: I would say it was my “Q: You have indicated very clearly that your F.3d at 41; Giannullo, 322 F.3d at 140.
understanding if my father had an idea for a father never did work on Marvel on spec,
book or a character to create he would bring it correct? Neal Kirby: In terms of – maybe I need Moreover, Defendants’ citations do not
up and get a yea or nay.”); id. at 127:25-128:5 to qualify that, okay? In terms of would my support Defendants’ response and so
(“Q: Was it your understanding that [Kirby] father have pitched an idea , if you don’t mind cannot be used to dispute facts. See Local
would begin working; that is, drawing panels my using the word ‘pitch,’ you know, met with Rule 56.1(b)-(d).
prior to getting a go ahead from Marvel or Stan somebody else saying gee, I have this good idea
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Lee? A: I don’t believe – that is not my for a character, you know, would you like to go Defendants’ citations to the inadmissible
understanding. My father didn’t do work on for it, that he would have done it you know. testimony and report of Evanier may not be
spec, he was getting paid by the page.”); id. at Definitely I would consider that coming up with considered on summary judgment. See
168:24-169:7; Lee Dep. at 48:2-4, 56:10-16, an idea and speculation.” Tob. Dec. Ex. G at Daubert, 509 U.S. at 579; see also Docket
57:12-18; Thomas Dep. at 112:19-23. 167:21-168:5; 233:15-234:5 (“Q: …[I]n the No. 67.
instances where Marvel said it liked the idea and
[Kirby] proceeded to do work, did you consider Defendants’ citations to inadmissible
that work to be on spec or not on spec? hearsay in Exs. B, C, and D to the Evanier
Neal Kirby: Well…in respect to even if they Decl. also may not be used to dispute facts.
liked the idea and you would go back and let’s See Sarno, 183 F.3d at 160; Hidden Brook
say pencil, come up with either character Air, 241 F. Supp. 2d at 270.
concepts or full pages, I believe he had the
understanding that they still might not purchase Defendants’ citations to the Evanier Decl.
that work, he would still be out the time.”). are also inadmissible for the additional
Kirby did do drawings of re-imagined Captain reason that they are outside the scope of
America and Thor characters on “spec” that Evanier’s expert report, and therefore
were submitted to Marvel. Ev. Dec. ¶ 17, 19, 20; cannot be used to dispute facts. Fed. R.
Ex. B at 355-56 (Captain Glory); Ex. C (Jack Civ. P. 37(c)(1); Fed. R. Civ. P.
Kirby’s Gods portfolio), D (New Gods 26(a)(2)(B); see also Highland Capital
presentation pieces); Colan Dec. at ¶¶ 8, 9, 12, Mgmt., 551 F. Supp. 2d at 182.
14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-
14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. Defendants’ citations to the irrelevant

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65. Throughout their working relationship, Disputed and not relevant to determining Defendants’ response does not set forth any
Lee had (and continues to have) an extremely whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
high opinion of Kirby. Lee would have owned at inception by Marvel as “works made in Paragraph 65 as required by Local Rule
preferred to have used Kirby as the pencil artist for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
on all of Marvel’s comic books during the Time completion, if accepted by Marvel. does not contain any citation to the record
Period, but he was not able to do so because evidence as required by Local Rule 56.1(d).
Kirby was “just one guy,” and did not have the Therefore, Paragraph 65 is deemed
time. Lee Dep. at 36:19-23, 46:25-47:8; Singer admitted in its entirety for the purposes of
Decl. Ex. 27 at THOM0002629. this motion. See Local Rule 56.1(b)-(d);
Kirby Acknowledged Marvel’s Authority and Editorial Control

Defendants’ Reply
66. In an interview with Mike O’Dell on Disputed, to the extent the statements is out of Defendants’ response does not set forth any
WBAI-FM NY radio, conducted on March 3, context , not keyed to the Time Period and not specific facts to dispute the facts set forth
1967, when asked whether, “now that Captain relevant to determining whether the subject in Paragraph 66 as required by Local Rule
America is back in the fight, has there been any works by Jack Kirby were owned at inception 56.1(c). Further, Defendants’ response
talk about sending him to Vietnam?” Kirby by Marvel as “works made for hire” or does not contain any citation to the record
replied: “Well, that’s Stan Lee’s department and purchased by Marvel upon completion, if evidence as required by Local Rule 56.1(d).
he can answer that. The editor always has the accepted by Marvel. Therefore, Paragraph 66 is deemed
last word on that.” Id. Ex. 11, Track 3. admitted in its entirety for the purposes of
67. In an interview with Mark Herbert of Disputed, to the extent the statement is out of Defendants’ response does not set forth any
The Nostalgia Journal in 1969, Kirby stated: context, not keyed to the Time Period, and not specific facts to dispute the facts set forth
“My job is what the policy of the organization relevant to determining whether the subject in Paragraph 67 as required by Local Rule
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[i.e., Marvel] calls for.” Id. Ex. 43 at works by Jack Kirby were owned at inception 56.1(c). Further, Defendants’ response
MARVEL0017197. by Marvel as “works made for hire” or does not contain any citation to the record
purchased by Marvel upon completion, if evidence as required by Local Rule 56.1(d).
accepted by Marvel. Therefore, Paragraph 67 is deemed
Kirby Acknowledged the Work-For-Hire Nature of His Works for Marvel On Numerous Occasions

Defendants’ Reply
68. Kirby has been quoted as saying: Disputed, to the extent the statement is out of Defendants’ response does not set forth any
“Everybody was ‘work-for-hire’ . . . It was the context, not keyed to the Time Period, and not specific facts to dispute the facts set forth
traditional way that artists got jobs. The relevant to determining whether the subject in Paragraph 68 as required by Local Rule
publishers made certain that they owned the works by Jack Kirby were owned at inception 56.1(c). Further, Defendants’ response
rights to everything. When you came in for by Marvel as “works made for hire” or does not contain any citation to the record
work, everything you did was owned by the guy purchased by Marvel upon completion, if evidence as required by Local Rule 56.1(d).
giving you a paycheck.” Id. Ex. 39 at accepted by Marvel. Therefore, Paragraph 68 is deemed
MARVEL0018273. admitted in its entirety for the purposes of
69. In an affidavit signed on July 12, 1966, Disputed, to the extent the statement is out of Defendants’ response does not set forth any
Kirby averred that with respect to the creation of context, pertains to Captain America which was specific facts to dispute the facts set forth
the Captain America character with writer Joe created over a decade before the Time Period in Paragraph 69 as required by Local Rule
Simon, he “felt that whatever [he] did for and because it is not relevant to determining 56.1(c). Further, Defendants’ response
Timely belonged to Timely as was the practice whether the subject works by Jack Kirby were does not contain any citation to the record
in those days.” Id. Ex. 44 at MARVEL0000354. owned at inception by Marvel as “works made evidence as required by Local Rule 56.1(d).
for hire” or purchased by Marvel upon Therefore, Paragraph 69 is deemed
completion, if accepted by Marvel. admitted in its entirety for the purposes of
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70. In 1968 and 1969, Kirby signed Disputed, to the extent the statement omits the Defendants’ response does not set forth any
Applications for Registration of a Claim to circumstances under which Marvel required specific facts to dispute the facts set forth
Renewal Copyright for certain Captain America Kirby to sign this registration form drafted by in Paragraph 70 as required by Local Rule
comic books, in which Marvel Comics Group Marvel, pertains to Captain America which was 56.1(c). Further, Defendants’ response
claimed a renewal copyright as a “[p]roprietor of created over a decade before the Time Period, does not contain any citation to the record
copyright in a work made for hire.” Kirby and because it is not relevant to determining evidence as required by Local Rule 56.1(d).
certified that the statements made in the whether the subject works by Jack Kirby were Therefore, Paragraph 70 is deemed
applications were correct to the best of his owned at inception by Marvel as “works made admitted in its entirety for the purposes of
knowledge. Id. Ex. 45. for hire” or purchased by Marvel upon this motion. See Local Rule 56.1(b)-(d);
completion, if accepted by Marvel. see also Parks Real Estate, 472 F.3d at 41;
71. In an agreement signed in 1972, Kirby Disputed in that the 1972 Assignment speaks for Defendants’ response does not set forth any
“acknowledge[d] and agree[d] that all his works itself, and that this selective quote omits that the specific facts to dispute the facts set forth
on the MATERIALS, and all his work which document is entitled as “Assignment,” and that in Paragraph 71 as required by Local Rule
was created or related to the RIGHTS,” that the bulk of its terms are devoted to a detailed 56.1(c). Therefore, Paragraph 71 is
were the subject of the Agreements “was done transfer and assignment of specified rights in the deemed admitted in its entirety for the
as an employee for hire of” Marvel. Id. Ex. 17 Kirby material published by Marvel – the purposes of this motion. Local Rule
at ¶¶ 4-5. antithesis of ownership at inception as “work for 56.1(c); see also Parks Real Estate, 472
hire.” Singer Decl. Ex. 17 ¶¶ 1-4. F.3d at 41; Giannullo, 322 F.3d at 140.
72. In a Writers and Artists Agreement dated Disputed to the extent that this 1975 Defendants’ response does not set forth any
March 24, 1975, Kirby agreed that Marvel had, employment agreement is well outside the Time specific facts to dispute the facts set forth
among other things, the exclusive right to secure Period (1958-1963) in question; the agreement in Paragraph 72 as required by Local Rule
copyrights in all material delivered to Marvel speaks for itself, and the statement is, in any 56.1(c). Further, Defendants’ response
under the agreement. Id. Ex. 46 at ¶ 7. event, not relevant to whether Marvel owned does not contain any citation to the record
pre-March 24, 1975 material created by Kirby evidence as required by Local Rule 56.1(d).
on a freelance basis at inception as “work for Therefore, Paragraph 72 is deemed
hire,” or owned it pursuant to Marvel’s purchase admitted in its entirety for the purposes of
of such material upon acceptance. this motion. See Local Rule 56.1(b)-(d);
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73. In an Acknowledgement of Copyright Disputed to the extent that this Defendants’ response does not set forth any
Ownership dated June 16, 1986, Kirby Acknowledgement is well outside the Time specific facts to dispute the facts set forth
acknowledged: “I have no copyright rights and Period (1958-1963) in question, is quoted out of in Paragraph 73 as required by Local Rule
no claim to copyright, or to the renewal or context of the entire document, omits the 56.1(c). Further, Defendants’ response
extension of copyright, or any other rights circumstances under which Kirby was required does not contain any citation to the record
(except only for my ownership of the original by Marvel to sign such self-serving evidence as required by Local Rule 56.1(d).
physical artwork being returned to me by Acknowledgements drafted by Marvel as a Therefore, Paragraph 73 is deemed
Marvel) in any artwork, characters, publications condition to Marvel returning his original admitted in its entirety for the purposes of
or other material . . . created or prepared by me artwork to him, and, in any event, the statement this motion. See Local Rule 56.1(b)-(d);
for or on behalf of, or which was published by is not relevant to whether Marvel owned the see also Parks Real Estate, 472 F.3d at 41;
or under the authority of, Marvel Comics Group copyright to Kirby’s material as “work for hire” Giannullo, 322 F.3d at 140.
or any predecessor company.” Id. Ex. 47 at ¶ 1. or via the purchase and assignment (e.g., 1972
Assignment) of the copyright in such work .
74. In an Artwork Release dated June 16, Disputed to the extent that this Artwork Release Defendants’ response does not set forth any
1987, Kirby acknowledged that the artwork is well outside the Time Period (1958-1963) in specific facts to dispute the facts set forth
subject to the release “was specially question, is quoted out of context of the entire in Paragraph 74 as required by Local Rule
commissioned by and prepared for Marvel, . . . document and omits the circumstances under 56.1(c). Therefore, Paragraph 74 is
and is a work made for hire pursuant to all which Kirby and other freelance artists were deemed admitted in its entirety for the
applicable copyright laws.” The Artwork required by Marvel to sign such self-serving purposes of this motion. Local Rule
Release further provides that Kirby was “fully Releases drafted by Marvel as a condition to 56.1(c); see also Parks Real Estate, 472
compensated for all [his] work in preparation of Marvel returning their original artwork to them. F.3d at 41; Giannullo, 322 F.3d at 140.
the Artwork,” that “Marvel is the exclusive Ev. Dec., Ex. A at 17-20, 22; Mor. Dec., Ex. A
worldwide owner of all copyrights in and to the at 13, 15; Tob. Dec., Ex. K at 267:14-19; Ex. PP Defendants’ response also states a legal
Artwork,” and that the agreement “shall be at 89-95; Ex. QQ; Ex. KKK. Marvel v. Simon, conclusion rather than a statement of
binding upon the Artist, and [his] heirs.” Id. Ex. 310 F.3d 280 (2002) unequivocally held that undisputed fact and legal conclusions may
48 at MARVEL0013635, at ¶¶ 1-3, 7. Marvel cannot avoid section 304’s inalienable not be used to dispute facts on summary
termination right by re-characterizing a work as judgment. Schwapp, 118 F.3d at 111.
“for hire” years after its creation; and that such
is void under 17 U.S.C. § 304(c)(5) as an Moreover, Defendants’ citations do not
“agreement to the contrary.” 310 F.3d at 292 support Defendants’ response and so
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(“Termination of [a] grant may be effected cannot be used to dispute facts. See Local
notwithstanding any agreement to the Rule 56.1(b)-(d).
contrary….”).
QQ is irrelevant as it refers to a different
publisher. Fed. R. Evid. 402.


hearsay in Exs. PP and KKK to the
75. Kirby signed a letter from Marvel, dated Disputed to the extent that this 1987 letter is Defendants’ response does not set forth any
May 12, 1987, in which he acknowledged that well outside the Time Period (1958-1963) in specific facts to dispute the facts set forth
“notwithstanding [his] execution of the Marvel question, is quoted out of context of the entire in Paragraph 75 as required by Local Rule
Artwork Release . . . Marvel has given [Kirby] document, omits the circumstances under which 56.1(c). Therefore, Paragraph 75 is
special permission to arrange for the public Kirby was required by Marvel to sign such deemed admitted in its entirety for the
exhibition of artwork originally drawn by [him] selfserving documents drafted by Marvel as a purposes of this motion. Local Rule
for Marvel.” Id. Ex. 49. condition to Marvel returning his original 56.1(c); see also Parks Real Estate, 472
artwork to him, and, in any event, the statement F.3d at 41; Giannullo, 322 F.3d at 140.
is not relevant to whether Marvel owned the
copyright to Kirby’s material as “work for hire” Defendants’ citations do not support
or via the purchase and assignment (e.g., 1972 Defendants’ response and therefore do not
Assignment) of the copyright in such work. Ev. dispute the facts alleged as required by
Dec., Ex. A at 17-20, 22; Mor. Dec., Ex. A at Local Rule 56.1(d). See Local Rule
13, 15; Tob. Dec., Ex. K at 267:14-19; Ex. PP at 56.1(b)-(d).
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89-95; Ex. QQ; Ex. KKK.
QQ is irrelevant as it refers to a different
publisher. Fed. R. Evid. 402.


hearsay in Exs. PP and KKK to the
Kirby Was Concerned With Receiving Credit For His Work, Not With Copyright Ownership

Defendants’ Reply
76. In a statement to the Comic Buyer’s Disputed and not relevant to determining Defendants’ response does not set forth any
Guide, published on October 3, 1986, Kirby whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
stated: “I feel I’m entitled to receive proper owned at inception by Marvel as “works made in Paragraph 76 as required by Local Rule
credit for my role in the creation of The for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
Fantastic Four, Spider-Man, The Hulk, Silver completion, if accepted by Marvel. does not contain any citation to the record
Surfer, etc. . . . This has nothing to do with evidence as required by Local Rule 56.1(d).
copyright ownership.” Id. Ex. 50. Therefore, Paragraph 76 is deemed
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77. In a letter to Marvel dated November 19, Disputed and not relevant to determining Defendants’ response does not set forth any
1997, written on behalf of Roz Kirby and the whether the subject works by Jack Kirby were specific facts to dispute the facts set forth
Estate of Jack Kirby, attorney Stephen Rohde owned at inception by Marvel as “works made in Paragraph 77 as required by Local Rule
wrote: “At the outset, let me assure you that Roz for hire” or purchased by Marvel upon 56.1(c). Further, Defendants’ response
is not challenging Marvel’s rights in the various completion, if accepted by Marvel. does not contain any citation to the record
characters which Jack created. Any issues evidence as required by Local Rule 56.1(d).
regarding ownership have long since been put to Therefore, Paragraph 77 is deemed
rest.” Id. Ex. 51 at ME0170. admitted in its entirety for the purposes of
78. Defendants have acknowledged that the Disputed as the central dispute in this action is Defendants’ response does not set forth any
central dispute with respect to Kirby’s works the validity of defendants’ termination notices. specific facts to dispute the facts set forth
created for Marvel involves Marvel’s alleged See Defendants’ Counterclaims at ¶¶ 29-32. in Paragraph 78 as required by Local Rule
failure to give proper credit to Kirby for his 56.1(c). Therefore, Paragraph 78 is
work. N. Kirby Dep. at 80:10-19; July 1, 2010 deemed admitted in its entirety for the
Deposition of Lisa Kirby (“L. Kirby Dep.”) purposes of this motion. Local Rule
annexed as Ex. 6 to the Singer Decl. at 66:18- 56.1(c); see also Parks Real Estate, 472
67:5. F.3d at 41; Giannullo, 322 F.3d at 140.
CREATION OF SPECIFIC CHARACTERS AT ISSUE
Statement of Undisputed Fact Defendants’ Response Plaintiffs and Counterclaim-

Defendants’ Reply
79. Stan Lee has identified over 150 Disputed. Stan Lee testified that he solely Defendants’ response does not set forth any
characters that he has attested under oath were created the iconic characters listed. Lee Dep. at specific facts to dispute the facts set forth
created or co-created by him for Marvel and that 145, 377:-379. Kirby created or co-created most in Paragraph 79 as required by Local Rule
were created for Marvel as works made for hire. of these major Marvel’s characters. Ev. Dec., 56.1(c). Therefore, Paragraph 79 is
These characters include the main and Ex. A at 7-8; Mor Dec., Ex. A at 8; Tob. Dec., deemed admitted in its entirety for the
subsidiary characters in The Fantastic Four, The Ex. MM at 151 (Stan Lee: “Certainly 90 percent purposes of this motion. Local Rule
Mighty Thor, The Incredible Hulk, The Amazing of the ‘Tales of Asgard’ stories were Jack’s 56.1(c); see also Parks Real Estate, 472
Spider-Man, The X-Men, Iron Man, The plots, and they were great! He certainly knew F.3d at 41; Giannullo, 322 F.3d at 140;
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Avengers and Ant-Man, among others. Singer more about Norse mythology that I ever did (or Reply to ¶¶ Nos. 80-83; 85; 88; 90-91; 94-
Decl. Ex. 34; see also Lee Dep. at 145:7-21, at least he enjoyed making it up!)”), at 6 (Stan 95; 97; 99; 101;103; 105; 107, infra.
377:20-379:3. Lee: “Some artists, such as Jack Kirby, need no
plot at all. I mean I’ll just say to Jack, ‘Let’s let Defendants’ citations do not support
the next villain be Dr. Doom’… or I may not Defendants’ response and therefore do not
even say that. He may tell me. And then he goes dispute the facts alleged as required by
home and does it. He’s so good at plots, I’m Local Rule 56.1(d). See Local Rule
sure he’s a thousand times better than I. He just 56.1(b)-(d).
about makes up the plots for these stories.”); Ex.
HH at 45 (“Kirby: the artists were doing the Defendants’ citation to Toberoff Decl. Ex.
plotting- Stan was just coordinating the books, MM at 151 refers to work created outside
which was his job. Stan was production the Time Period and is therefore irrelevant.
coordinator. But the artists were the ones that Fed. R. Evid. 402.
were handling both story and art. We had to-
there was no time not to!”); Ex. II (“According Defendants’ citations to the inadmissible
to statistics, I’ve done one quarter of Marvel’s testimony and reports of Evanier and
entire output. There’s a lot of hard work behind Morrow may not be considered on
it. It’s something that’s highly individual, highly summary judgment. See Daubert, 509 U.S.
creative and above all, it sold very well.”); Ex. at 579; see also Docket Nos. 67, 70.
OO at 174 (“Q: A lot of people don’t know that
you actually scripted a lot of these stories-most Defendants’ citations to inadmissible
of them. Even the Marvel stuff. Kirby: I did.”); hearsay in Exs. HH, II, JJ, KK and OO the
Ex. JJ at 45, 49 (Kirby: “And I did that with the Toberoff Decl. also may not be used to
Marvel books. I wrote the stories. I wrote the dispute facts. See Sarno, 183 F.3d at 160;
plots ,I did the drawings- I did the entire Hidden Brook Air, 241 F. Supp. 2d at 270.
thing…”); Ex. KK at 122 (“Q: You have written
your own stories, text and drawings? Kirby: Yes, Additionally, Sinnott was not identified as
that’s what I always did and that’s what I am a potential witness by Defendants and
doing now.”); Ex. NN at K1759 (“[Jack Kirby] therefore his testimony is inadmissible.
was a virtually inexhaustible wellspring of Fed. R. Civ. P. 37(c)(1); see also Design
fantastic new ideas, concepts and designs.”). Strategy, Inc., 469 F.3d at 284.
Tob. Dec., Ex. I at 23:4-13 (“Q: Do you recall
1970? Stan Lee: There was a time in the –maybe dispute through their reliance on Toberoff
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in the 90s when I started to create a new line of Decl. Exs. JJ and OO as these cited
comics for Marvel…We never published documents were not produced in discovery
them…I was working with new people and it in this action and thus may not be
just-they didn’t turn out right. But aside from considered on summary judgment. See
that, no.”); Singer Dec., Ex. 53 at 36-37 (“Jack Melie, 2009 WL 1404325, at *1 n.4.
is certainly one of the most talented, if not the
most talented guy that the comic book industry
the most creative guy I have ever known in this
business. His mind is an endless source of
stories, concepts and ideas.”); Sinn Dec., ¶ 6
(“There is no question in my mind that Jack
Kirby was the driving creative force behind
most of Marvel’s top characters today including
‘The Fantastic Four,’ ‘The Mighty Thor,’ ‘The
Incredible Hulk,’ ‘X-Men’ and ‘The
Avengers.’”) See also responses to ¶¶ 80-83; 85;
88; 90-91; 94-95; 97; 99; 101;103; 105; 107,
infra.
Creation of Fantastic Four

Defendants’ Reply
80. In 1961, Martin Goodman instructed Disputed. Stan Lee did not solely create the Defendants’ response does not set forth any
Stan Lee to create a new team of superheroes to concept of The Fantastic Four nor was Kirby specific facts to dispute the facts set forth
compete with National Comics’s The Justice ever given a “synopsis” by Stan Lee. (¶82). Ev. in Paragraph 80 as required by Local Rule
League of America. Singer Decl. Ex. 52 at Dec. Ex. A at 14-15; Mor. Dec. Ex. A at 11; 56.1(c). Therefore, Paragraph 80 is
MARVEL0017498 (“I worked for [Goodman] Tob. Dec., Ex. D at 192:14-193:3; 230:22- deemed admitted in its entirety for the
and I had to do what he wanted, so I was willing 232:20; Ex. B at 49:23- 50:10; Ex. C at 91:24- purposes of this motion. Local Rule
to put out a team of superheroes.”); Lee Dep. at 92:21;110:21-113:3; Ex. G at 117:23-118:17; 56.1(c); see also Parks Real Estate, 472
36:7-18, 59:16-60:16; see also Evanier Dep. Ex. J at 307:7-25; 338:16-339:19; 340:20- F.3d at 41; Giannullo, 322 F.3d at 140.
(11/9/10) at 87:21-88:19. 341:1); Ex. RR; Ex. SS at 188 (“Was the
concept of the Fantastic Four your idea or Stan Defendants’ citations do not support
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Lee’s?” Kirby: “It was my idea. It was my idea Defendants’ response and therefore do not
to do it the way it was; my idea to develop it the dispute the facts alleged as required by
way it was…”) ; Ex. TT at 181 (“In many ways Local Rule 56.1(d). See Local Rule
[The Challengers of the Unknown] were the 56.1(b)-(d).
predecessors of the FF”); Sinn Dec., ¶ 6 (“There
is no question in my mind that Jack Kirby was Defendants’ citations to the inadmissible
the driving creative force behind most of testimony and reports of Evanier and
Marvel’s top characters today including ‘The Morrow may not be considered on
Fantastic Four,’ ‘The Mighty Thor,’ ‘The summary judgment. See Daubert, 509 U.S.
Incredible Hulk,’ ‘X-Men’ and ‘The at 579; see also Docket Nos. 67, 70.
Avengers.’”). Lee has admitted he co-created
the Fantastic Four with Jack Kirby. Tob. Dec. Defendants’ citations to inadmissible
Ex. UU at 57 (“Let me tell you right up front hearsay in Exs. RR, SS, TT and ZZ to the
why I’m still frankly fascinated by the concept Toberoff Decl. also may not be used to
of the stunning Ms. Storm. At the time that Jack dispute facts. See Sarno, 183 F.3d at 160;
Kirby and I put our noggins together and Hidden Brook Air, 241 F. Supp. 2d at 270.
decided to come up with a new team of super
do-gooders, there wasn’t much happening in Defendants’ citation to the deposition
those circles.”); Ex. VV at 6 (Lee: “I co-created testimony of Neal Kirby is also
The Fantastic Four and the Hulk with Kirby.”); inadmissible as his testimony is based on
Ex. J (12/8/10 Stan Lee depo) at 307:11-25; hearsay. Id.
338:16-339:19; 340:20-341:1); Ex. WW at 13
(“When such fabulous features as the Fantastic Finally, Sinnott was not identified as a
Four, the Mighty Thor, and the Incredible Hulk potential witness by Defendants and
were just a-borning, it was good ol’ Jack[] with therefore his testimony is inadmissible.
whom I huddled, harangued and hassled until Fed. R. Civ. P. 37(c)(1); see also Design
the characters were designed…”). Lee also co- Strategy, Inc., 469 F.3d at 284.
created the Fantastic Four nemesis Galactus
with Jack Kirby. Tob. Dec., Ex. WW at 205
(“Both Jack and I were wracking our brains for
some opponent who would be able to offer a still
greater challenge than any of those the FF had
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Defendants’ Reply
yet encountered…Suffice it to say that we came
up with just what we had been looking for.”) ;
Ex. XX at 39 (“After hours of head scratching,
gazing at the ceiling, stretching, yawning,
bending paper clips, staring into space, then
staring out of space, we finally got it. It
suddenly all came together. “Galactus!” we
shouted.”). Kirby also developed his own
characters, including creating the famous Silver
Surfer, without any input from Stan Lee or
anyone else at Marvel. Tob. Dec. Ex. I at 71:11-
24; Ex. YY at 30 (““Actually, we’re stuck with
the name [the Silver Surfer], because when he
first appeared, he appeared as an incidental
character in a Fantastic Four story. Jack Kirby
just threw him in – I think the name was Jack’s
– and called him the Silver Surfer. I thought it
sounded good and used him. Had I known that
we would end up doing with him what we’re
doing today, I would have taken more pains to
get a name that was more applicable. But
actually, nobody else seems to mind the name.
It’s easy to remember and it’s almost a put-on.
And I haven’t had any complaints about it.”);
Ex. ZZ at 132; Ex. AAA (“When I got the story
from Jack to write copy, he had drawn this
fellow on the surfboard, and I think he called
him the Surfer or the Silver Surfer, and the name
was certainly euphonious and we decided to
keep it.”); Ex. G at 124:4-9.
81. Lee developed the concept behind Disputed. See Response to Statement No. 80. Defendants’ response does not set forth any
Marvel’s new team of heroes, The Fantastic specific facts to dispute the facts set forth
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Defendants’ Reply
Four, including the genesis of their in Paragraph 81 as required by Local Rule
superpowers, their realistic personalities and 56.1(c). Therefore, Paragraph 81 is
their relationships with one another. Lee Dep. at deemed admitted in its entirety for the
59:16-60:16, 61:10-62:15; Singer Decl. Ex. 11, purposes of this motion. Local Rule
Track 9; id. Ex. 33 at MARVEL0017694. 56.1(c); see also Parks Real Estate, 472
While Lee conceived of the main characters Mr. F.3d at 41; Giannullo, 322 F.3d at 140;
Fantastic, Invisible Girl and The Thing, his idea Reply to ¶ No. 80.
for the Human Torch was borrowed from one of
Timely Comics’s first comic books from the
early 1940s. Lee Dep. at 61:23-62:3.
82. Lee typed up a synopsis laying out the Disputed. See Response to Statement No. 80. Defendants’ response does not set forth any
plot of the first issue of The Fantastic Four specific facts to dispute the facts set forth
comic book and then assigned Kirby to draw the in Paragraph 82 as required by Local Rule
story. Lee and Kirby discussed Lee’s ideas in a 56.1(c). Therefore, Paragraph 82 is
plotting conference, after which Kirby deemed admitted in its entirety for the
proceeded to produce the pencil drawings for the purposes of this motion. Local Rule
first issue of The Fantastic Four based on Lee’s 56.1(c); see also Parks Real Estate, 472
synopsis and their discussion. Singer Decl. Ex. F.3d at 41; Giannullo, 322 F.3d at 140;
30; Lee Dep. at 36:15-18, 60:17-61:2, 65:5-10, Reply to ¶ No. 80.
384:18-21.
83. Throughout the process of creating the Disputed. See Response to Statement No. 80. Defendants’ response does not set forth any
first issue of The Fantastic Four, and even after specific facts to dispute the facts set forth
several issues had already been published, Lee in Paragraph 83 as required by Local Rule
continued to make changes to the characters and 56.1(c). Therefore, Paragraph 83 is
story, for example to the personalities, abilities deemed admitted in its entirety for the
or appearances of the characters. Lee Dep. at purposes of this motion. Local Rule
67:6-70:2, 81:21-82:5; Singer Decl. Ex. 53 at 56.1(c); see also Parks Real Estate, 472
36. F.3d at 41; Giannullo, 322 F.3d at 140;
Reply to ¶ No. 80.
84. The Fantastic Four was originally Admitted. No reply is necessary.

published in its own comic book, The Fantastic
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Four, Vol. 1, No. 1, with a cover date of
November 1961. See Bard Decl. Ex. 1 at
MARVEL0001026.
Creation of The Incredible Hulk

Defendants’ Reply
85. In 1962, Lee conceived of the story of Disputed. Stan Lee co-created The Incredible Defendants’ response does not set forth any
The Incredible Hulk, a sympathetic monster who Hulk with Jack Kirby. Tob. Dec., Ex. C at 56:7- specific facts to dispute the facts set forth
was also a hero. Lee was inspired by the story 21; Ex. VV at 6 ( I co-created The Fantastic in Paragraph 85 as required by Local Rule
of the misunderstood monster in the Boris Four and the Hulk with Kirby.”); Ex. WW at 13 56.1(c). Therefore, Paragraph 85 is
Karloff film Frankenstein, as well as with the (“When such fabulous features as the Fantastic deemed admitted in its entirety for the
story of Dr. Jekyll and Mr. Hyde. Lee Dep. at Four, the Mighty Thor, and the Incredible Hulk purposes of this motion. Local Rule
80:10-81:19, 83:14-84:14; Singer Decl. Ex. 33 were just a-borning, it was good ol’ Jack[] with 56.1(c); see also Parks Real Estate, 472
at MARVEL0017749. Lee assigned Kirby to whom I huddled, harangued and hassled until F.3d at 41; Giannullo, 322 F.3d at 140.
draw the first issue. Lee Dep. at 83:5-13, 84:18- the characters were designed…”); Ex. RR; Ex.
23. BBB at 1; Ex. YY at 23 (“When I created Hulk Defendants’ citations do not support
with Artist Jack Kirby, we had the feeling that Defendants’ response and therefore do not
people love a guy who isn’t perfect.”); Ex. U at dispute the facts alleged as required by
88 (“For their second superhero, Lee and Kirby Local Rule 56.1(d). See Local Rule
came up with a monstrous figure…the result 56.1(b)-(d).
was The Incredible Hulk.”); Singer Dec., Ex. 41
at MARVEL17226 (“The Hulk I created when I Defendants’ citations to the inadmissible
saw a woman lift a car. Her baby was caught testimony and reports of Evanier and
under the running board of this car.”); Sinn Morrow may not be considered on
Dec., ¶ 6 (“There is no question in my mind that summary judgment. See Daubert, 509 U.S.
Jack Kirby was the driving creative force behind at 579; see also Docket Nos. 67, 70.
most of Marvel’s top characters today including
‘The Fantastic Four,’ ‘The Mighty Thor,’ ‘The Defendants’ citations to inadmissible
Incredible Hulk,’ ‘X-Men’ and ‘The hearsay in Exs. U and RR to the Toberoff
Avengers.’”); Ev. Dec. Ex. A at 15; Mor. Dec. Decl. may not be used to dispute facts. See
Ex. A at 10. Sarno, 183 F.3d at 160; Hidden Brook Air,
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241 F. Supp. 2d at 270.
For the purposes of Defendants’ response,

the cited statements in Singer Decl. Ex. 41
are inadmissible hearsay and also may not
be used to dispute facts. Id.
Finally, Sinnott was not identified as a

potential witness by Defendants and
therefore his testimony is inadmissible.
86. The first issue of The Incredible Hulk, Admitted. No reply is necessary.
Vol. 1, No. 1 was published with a cover date of
May 1962. Bard Decl. Ex. 1 at
MARVEL0001100.
87. The Hulk was originally gray-skinned, Disputed to the extent Stan Goldberg claimed he Defendants’ response does not set forth any
but after the printer had trouble printing the chose the color green for the Hulk character. specific facts to dispute the facts set forth
color consistently throughout the book, Lee Tob. Dec., Ex. UUU at 16. in Paragraph 87 as required by Local Rule
decided to change the coloration of the hero’s 56.1(c). Therefore, Paragraph 87 is
skin to green after the first issue was published. deemed admitted in its entirety for the
Lee Dep. at 81:20-83:4; Singer Decl. Ex. 33 at purposes of this motion. Local Rule
MARVEL0017750; see also id. Ex. 11, Track 56.1(c); see also Parks Real Estate, 472
12. F.3d at 41; Giannullo, 322 F.3d at 140.

UUU is presumably a clerical error and
actually refers to Toberoff Decl. Ex. CCC.

hearsay in Ex. CCC to the Toberoff Decl.
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241 F. Supp. 2d at 270.
Creation of The Mighty Thor

Defendants’ Reply
88. In 1962, Lee decided to introduce a new Disputed. The record shows that Lee and his Defendants’ response does not set forth any
comic book story centered on Thor, the Norse brother did not create Thor and then present it to specific facts to dispute the facts set forth
god of thunder. Lee gave a synopsis of the plot Kirby to draw. (¶ 88) Kirby’s well documented in Paragraph 88 as required by Local Rule
to his brother Larry Lieber, who wrote a full love of Norse mythology and drawing of an 56.1(c). Therefore, Paragraph 88 is
panel-by-panel script for the first Thor issue earlier incarnation of Thor in 1942 indicates at a deemed admitted in its entirety for the
based on Lee’s outline and made up the name of minimum that Thor was a collaboration between purposes of this motion. Local Rule
Thor’s alter ego Don Blake and his enchanted Kirby and Lee. Even Lieber admitted he had no 56.1(c); see also Parks Real Estate, 472
Uru hammer. Because Kirby had an interest in idea whether Kirby and Lee discussed Thor F.3d at 41; Giannullo, 322 F.3d at 140.
mythology, he was given the script that Lieber before he was assigned to write the first script.
had written and assigned to draw the first issue Tob. Dec., Ex. E at 80:23-81:4; 81:14-82:25; Defendants’ citations do not support
to feature Thor and the subsidiary characters of WW at 13 (“When such fabulous features as the Defendants’ response and therefore do not
the Asgaardian realm. Singer Decl. Ex. 11, Fantastic Four, the Mighty Thor, and the dispute the facts alleged as required by
Track 14; Lee Dep. at 87:11-89:8, 89:13-90:19, incredible Hulk were just a-borning, it was good Local Rule 56.1(d). See Local Rule
91:2-3; Lieber Dep. at 19:9-19, 20:8-21:17, ol’ Jack[] with whom I huddled, harangued and 56.1(b)-(d).
48:25-49:4; Singer Decl. Ex. 33 at hassled until the characters were designed…”);
MARVEL0017848 (Lee notes that he provided Ex. RR; Ex. DDD at 4; Ex. MM at 151 Defendants’ citation to Toberoff Decl. Ex.
an outline to Lieber; explaining that “[e]ven (“Certainly 90 percent of the ‘Tales of Asgard’ MM at 151 refers to work created outside
though [he] wouldn’t be writing the script, [Lee] stories were Jack’s plots, and they were great! the Time Period and is therefore irrelevant.
always tried to ensure that the basic concepts He certainly knew more about Norse mythology Fed. R. Evid. 402.
would be [his]”); see also Evanier Dep. that I ever did (or at least he enjoyed making it
(12/6/10) at 190:2-9, 190:15-22, 238:6-21. up!)”); Ex. C at 56:7-21; 57:14-58:10; Ex. EEE Defendants’ citations to the inadmissible
at 95 (“What prompted you to reinvent Thor for testimony and reports of Evanier and
the comics in 1962? Jack Kirby: Well, I knew Morrow may not be considered on
the Thor legends very well, but I wanted to summary judgment. See Daubert, 509 U.S.
modernize them.”); Ex. D at 203:18-204:14; at 579; see also Docket Nos. 67, 70.
233:13-234:9; Ex. G at 50:14-52:14; 83:21-
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84:25; Sinn Dec., ¶ 6 (“There is no question in Defendants’ citation to inadmissible
my mind that Jack Kirby was the driving hearsay in Exs. RR, DDD and EEE to the
creative force behind most of Marvel’s top Toberoff Decl. may not be used to dispute
characters today including ‘The Fantastic Four,’ facts. See Sarno, 183 F.3d at 160; Hidden
‘The Mighty Thor,’ ‘The Incredible Hulk,’ ‘X- Brook Air, 241 F. Supp. 2d at 270.
Men’ and ‘The Avengers.’”); Ev. Dec. Ex. A at
16; Mor. Dec. Ex. A at 11-12. Defendants’ citation to the deposition
testimony of Neal Kirby is also
inadmissible as his testimony is based on
hearsay. Id.

89. Thor first appeared in Journey Into Admitted. No reply is necessary.
Mystery, Vol. 1, No. 83, published with a cover
date of August 1962. Bard Decl. Ex. 1 at
MARVEL0001182.
Creation of Spider-Man

Defendants’ Reply
90. In 1962, Lee came up with the idea and Disputed. Jack Kirby was involved in the Defendants’ response does not set forth any
name for Spider-Man, a realistic and nerdy original creation of Spiderman, which was based specific facts to dispute the facts set forth
teenage hero who had the power to stick to walls upon a character called The Fly that Kirby and in Paragraph 90 as required by Local Rule
and ceilings like an insect. Initially, Lee Joe Simon had developed in the late 1950s. This 56.1(c). Therefore, Paragraph 90 is
assigned the artwork for the Spider-Man story to character was based on an earlier Kirby deemed admitted in its entirety for the
Kirby. However, when Lee saw that Kirby’s character called the Silver Spider. Ev. Dec. Ex. purposes of this motion. Local Rule
initial pencil drawings depicted an overly A at 16-17; Mor. Dec., Ex. A at 12; Tob Dec., 56.1(c); see also Parks Real Estate, 472
84
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muscular and heroic-looking character and did Ex. J at 320:4-322:1; Ex. D at 198:7-199:13; Ex. F.3d at 41; Giannullo, 322 F.3d at 140.
not capture his expectations for the appearance C at 62:8-23; 234:22-235:19. Jack Kirby drew
of the hero, Lee paid Kirby for his work, took the cover of Amazing Fantasy No. 15. Ev. Dec., Defendants’ citations do not support
him off the comic book and replaced him with Ex. B at 126-127. In the past Stan Lee Defendants’ response and therefore do not
artist Steve Ditko. Singer Decl. Ex. 11, Track repeatedly stated he was unsure of whether dispute the facts alleged as required by
11; Lee Dep. at 37:3-38:3, 74:6-75:5, 75:9-23, Ditko or Kirby came up with Spider-Man’s Local Rule 56.1(d). See Local Rule
376:3-15; see also Evanier Dep. (11/9/10) at iconic costume. Tob. Dec., Ex. J at 320:4-325:7; 56.1(b)-(d).
133:13-20; Morrow Dep. at 236:11-16, 237:5- Ex. G at 97:18-98:13; 103:9-19; 140:14-23; Ex.
19; Singer Decl. Ex. 33 at MARVEL0017803- RR; Singer Dec., Ex. 53 at 36 (“To this day, I Defendants’ citations to the inadmissible
04 (“But alas and alack, when I saw the first few don’t know who made up the Spider-Man testimony and reports of Evanier and
pages that Jack had drawn, I realized we had a costume. It might have been Kirby who did Morrow may not be considered on
problem. They were too good. Try as he might, those first few pages and Ditko might have summary judgment. See Daubert, 509 U.S.
he had been apparently unable to deglamorize copied Kirby’s costume. Or Ditko might have at 579; see also Docket Nos. 67, 70.
Spidey enough. . . I realized it might be better to just made up the costume and disregarded what
let someone else try Spider-Man . . . I asked Kirby did. I can’t remember.”). Defendants’ citation to inadmissible
Steve [Ditko] to draw Spider-Man. And he did. hearsay in Ex. B to the Evanier Decl. and
And the rest is history.”). Ex. RR to the Toberoff Decl. may not be
used to dispute facts. See Sarno, 183 F.3d
at 160; Hidden Brook Air, 241 F. Supp. 2d
at 270.
Defendants’ citation to the deposition

hearsay. Id.
91. Lee assigned Kirby to draw the cover of Disputed. See Response to Statement No. 90. Defendants’ response does not set forth any
the first appearance of Spider-Man in Amazing specific facts to dispute the facts set forth
Fantasy. Kirby drew the cover for the first in Paragraph 91 as required by Local Rule
appearance of Spider-Man after the comic book 56.1(c). Therefore, Paragraph 91 is
art was completed. Lee Dep. at 38:23-39:5. deemed admitted in its entirety for the
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Reply to ¶ No. 90.
92. The first appearance of Spider-Man was Admitted. No reply is necessary.
in Amazing Fantasy, Vol. 1, No. 15, published
with a cover date of September 1962. Bard
Decl. Ex. 1 at MARVEL0000988.
93. The Spider-Man character was so Admitted. No reply is necessary.
successful that Goodman later decided to give
the character its own comic book. See Lee Dep.
at 77:21-25. The new book, The Amazing
Spider-Man, was first published with a cover
date of March 1963. Bard Decl. Ex. 1 at
MARVEL0000992.
Creation of Iron Man

Defendants’ Reply
94. In early 1963, Lee came up with the idea Disputed. Kirby was the first to design Iron Defendants’ response does not set forth any
for the character Iron Man, who was a hero in an Man’s costume, which he did for the cover of specific facts to dispute the facts set forth
incredibly powerful suit of metal armor; he was Tales of Suspense No. 39. Tob. Dec., Ex. U at in Paragraph 94 as required by Local Rule
a millionaire playboy but was also tragically 99 (“‘[Kirby] designed the costume,’ says [Don] 56.1(c). Therefore, Paragraph 94 is
vulnerable due to an injury to his heart. After Heck, ‘because he was doing the cover. The deemed admitted in its entirety for the
conceiving of the plot and characters, Lee covers were always always done first…’”); Ex. purposes of this motion. Local Rule
assigned Larry Lieber to write a detailed panel- RR ; Ex. B at 74:15-75:1; Ex. C at 245:12-15; 56.1(c); see also Parks Real Estate, 472
by-panel script for the first comic book to 246:11-248:7; Ex. D at 259:24-260:6; 260:16- F.3d at 41; Giannullo, 322 F.3d at 140.
feature Iron Man; Larry Lieber conceived of the 261:7; 277:23-278:15; Ex. E at 88:6-89:2; 92:4-
hero’s “civilian name,” Anthony Stark. Singer 9; Ex. G at 108:13-18; Ex. TT at 181 (Jack Defendants’ citations do not support
Decl. Ex. 11, Track 13; Lee Dep. at 84:24- Kirby: “Anyway, I laid out the first Iron Man Defendants’ response and therefore do not
85:24, 86:6-87:8; Lieber Dep. at 23:22-24:7, and plotted it and Don Heck finished it up.”). dispute the facts alleged as required by
24:19-25:25, 48:25-49:4; see also Evanier Dep. Local Rule 56.1(d). See Local Rule
(12/6/10) at 190:2-9, 190:15-22, 246:5-7; 56.1(b)-(d).
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Morrow Dep. at 260:16-261:7.

hearsay in Exs. U, RR and TT to the
Toberoff Decl. may not be used to dispute
facts. See Sarno, 183 F.3d at 160; Hidden
Brook Air, 241 F. Supp. 2d at 270.

hearsay. Id.
95. Lee then assigned artist Don Heck to do Disputed. See Response to Statement No. 94. Defendants’ response does not set forth any
the artwork based on Lieber’s script. Lee Dep. specific facts to dispute the facts set forth
at 36:19-23, 85:21-86:5; Lieber Dep. at 26:2-11. in Paragraph 95 as required by Local Rule
Lee assigned Kirby to draw the cover of the first 56.1(c). Therefore, Paragraph 95 is
issue to feature the Iron Man character. Lee deemed admitted in its entirety for the
Dep. at 36:25-37:2, 85:25-86:5. purposes of this motion. Local Rule
Reply to ¶ No. 94.
96. The Iron Man character first appeared in Admitted. No reply is necessary.
Tales of Suspense, Vol. 1, No. 39, published
with a cover date of March 1963. Bard Decl.
Ex. 1 at MARVEL0001452.
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Creation of The X-Men

Defendants’ Reply
97. In 1963, Martin Goodman asked Lee to Disputed. Jack Kirby co-created the X-men with Defendants’ response does not set forth
create another team of superheroes. Lee Stan Lee. Mor. Dec., Ex. A at 10; Ev. Dec., Ex. A any specific facts to dispute the facts set
conceived of The X-Men, a team of mutants at 15; Tob. Dec. Ex. WW at 14 (“No sooner did I forth in Paragraph 97 as required by Local
who were born with their superpowers. After discuss the basic premise with Jack than we were Rule 56.1(c). Therefore, Paragraph 97 is
Goodman directed Lee to revise the original off and running. We decided to create two groups deemed admitted in its entirety for the
name he had made up – The Mutants – Lee of mutants, one evil and the other good. One purposes of this motion. Local Rule
decided on the name The X-Men, based on the would be eternally striving to subjugate mankind, 56.1(c); see also Parks Real Estate, 472
main character Professor Xavier and the fact that and the other would be ceaselessly battling to F.3d at 41; Giannullo, 322 F.3d at 140.
the heroes had “extra” powers. With the new protect the human race.”); Ex. U at 111-112
name, Goodman approved of the project. Singer (“Once again, Jack Kirby joined Lee as co- Defendants’ citations do not support
Decl. Ex. 11, Track 15; Lee Dep. at 92:25- creator of the comic book. ‘Jack was the best guy Defendants’ response and therefore do not
94:23. Lee assigned the artwork for the new to work with you could imagine,’ says Lee. ‘Any dispute the facts alleged as required by
book to Kirby. Lee Dep. at 94:24-95:4. idea I would give him, he could make it better. Local Rule 56.1(d). See Local Rule
When Jack brought in the first story, it opened 56.1(b)-(d).
with all the X-men fighting in the place they
called The Danger Room, where they were Defendants’ citations to the inadmissible
trained. That was Jack’s idea. And it was the most testimony and reports of Evanier and
brilliant opening because it started with action Morrow may not be considered on
and showed all their abilities immediately.’”); Ex. summary judgment. See Daubert, 509
J at 316:22-317:22; 317:25-319:5.; Ex. G at U.S. at 579; see also Docket Nos. 67, 70.
129:9-131:19; Sinn Dec., ¶ 6 (“There is no
question in my mind that Jack Kirby was the Defendants’ citation to inadmissible
driving creative force behind most of Marvel’s hearsay in Ex. U to the Toberoff Decl.
top characters today including ‘The Fantastic also may not be used to dispute facts. See
Four,’ ‘The Mighty Thor,’ ‘The Incredible Hulk,’ Sarno, 183 F.3d at 160; Hidden Brook
‘XMen’ and ‘The Avengers.’”). Air, 241 F. Supp. 2d at 270.

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hearsay. Id.

98. The first issue of The X-Men, Vol. 1, No. Admitted. No reply is necessary.
1 was published with a cover date of September
1963. Bard Decl. Ex. 1 at MARVEL0001654.
Creation of The Avengers

Defendants’ Reply
99. In 1963, Lee created yet another team of Disputed. Jack Kirby co-created the Avengers Defendants’ response does not set forth any
superheroes, in which existing popular with Stan Lee. Mor. Dec., Ex. A at 10; Ev. Dec., specific facts to dispute the facts set forth
superheroes on Marvel’s roster would gather Ex. A at 15; Ex. U (Five decades) at 108; Ev. in Paragraph 99 as required by Local Rule
together to become a fighting team called The Dec., Ex. B at 131; Sinn Dec., ¶ 6 (“There is no 56.1(c). Therefore, Paragraph 99 is
Avengers. After he had conceived of the initial question in my mind that Jack Kirby was the deemed admitted in its entirety for the
plot and had obtained Goodman’s approval, Lee driving creative force behind most of Marvel’s purposes of this motion. Local Rule
assigned the first issue of The Avengers to Kirby top characters today including ‘The Fantastic 56.1(c); see also Parks Real Estate, 472
to draw. Lee Dep. at 96:19-98:9. Four,’ ‘The Mighty Thor,’ ‘The Incredible F.3d at 41; Giannullo, 322 F.3d at 140.
Hulk,’ ‘X-Men’ and ‘The Avengers.’”).
Defendants’ citations do not support
56.1(b)-(d).

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hearsay in Ex. B to the Evanier Decl. and
Ex. U to the Toberoff Decl. also may not be
used to dispute facts. See Sarno, 183 F.3d
at 160; Hidden Brook Air, 241 F. Supp. 2d
at 270.

100. The first issue of The Avengers, Vol. 1, Admitted. No reply is necessary.
No. 1, was published with a cover date of
September 1963. Bard Decl. Ex. 1 at
MARVEL0001020.
Creation of Ant-Man

Defendants’ Reply
101. Lee initially conceived of the idea of Disputed. Jack Kirby co-created the Ant-Man Defendants’ response does not set forth any
Ant-Man as a miniature hero. After Goodman with Stan Lee. Ev. Dec., Ex. A at 15; Tob. Dec., specific facts to dispute the facts set forth
“okayed” the project, Lee assigned the story to Ex. E at 91:23-92:3; Ex. G at 68:23-69:14; Ex. in Paragraph 101 as required by Local Rule
Larry Lieber, who wrote a detailed panel-by- U at 97-98; Ex. GGG at 139; Ex. RR; Ev. Dec., 56.1(c). Therefore, Paragraph 101 is
panel script for the first comic book to feature Ex. B at 128 (“…Tales to Astonish got its first deemed admitted in its entirety for the
Ant-Man, and also named the hero’s alter ego, super hero feature in 1962: Ant-Man, a purposes of this motion. Local Rule
Henry Pym. After the script was completed, it shrinking super-hero…Kirby drew the first 56.1(c); see also Parks Real Estate, 472
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was assigned to Jack Kirby, who drew the pencil stories…); Sinn Dec., ¶ 6 (“There is no question F.3d at 41; Giannullo, 322 F.3d at 140.
artwork for the first issue. Lee Dep. at 98:14- in my mind that Jack Kirby was the driving
99:15, 99:21-24; Lieber Dep. at 27:11-28:9, creative force behind most of Marvel’s top Defendants’ citations do not support
28:13-23, 48:25-49:4. characters today including ‘The Fantastic Four,’ Defendants’ response and therefore do not
‘The Mighty Thor,’ ‘The Incredible Hulk,’ ‘X- dispute the facts alleged as required by
Men’ and ‘The Avengers.’” Local Rule 56.1(d). See Local Rule
56.1(b)-(d).

testimony and report of Evanier may not be
Nos. 67.

Exs. U, RR and GGG to the Toberoff Decl.
also may not be used to dispute facts. See
241 F. Supp. 2d at 270.

hearsay. Id.

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102. The first appearance of Ant-Man and his Admitted. No reply is necessary.
cast of subsidiary characters was in Tales to
Astonish, Vol. 1, No. 27, published with a cover
date of January 1962. Bard Decl. Ex. 1 at
MARVEL0001966.
Creation of Nick Fury

Defendants’ Reply
103. In 1963, Lee decided to reintroduce a Disputed. Largely based on his own combat Defendants’ response does not set forth any
popular Marvel character from a war series experience in World War II, Jack Kirby brought specific facts to dispute the facts set forth
called Sgt. Fury and His Howling Commandos, Nick Fury to Marvel. Mor Dec. Ex. A at 12-13; in Paragraph 103 as required by Local Rule
which Marvel had discontinued years earlier. Ev. Dec. Ex. A at 15; Ex. B at 127-131 (“From 56.1(c). Therefore, Paragraph 103 is
Lee assigned the artwork for the new series to 1963 to 1964, Jack drew eight of the first deemed admitted in its entirety for the
Kirby because he thought it was “right up thirteen issues, tapping into his endless cache of purposes of this motion. Local Rule
[Kirby’s] alley” and oversaw the creation of the World War II memories and fashioning the lead 56.1(c); see also Parks Real Estate, 472
comic book under the Marvel Method. Lee character, the cigar chomping Sgt. Nick Fury, on F.3d at 41; Giannullo, 322 F.3d at 140.
Dep. at 95:13-96:18; see also Morrow Dep. at himself…[Kirby] explained, “Nick Fury is how
201:2-6. I wish others saw me. [The Thing] is probably Defendants’ citations do not support
closer to the way they do see me.”); Ex. RR; Ex. Defendants’ response and therefore do not
HHH at 31; Ex. C at 58:20-59:8; Ex. D at dispute the facts alleged as required by
199:14-200:25; Ex. G at 74:17-75:13; 124:4-12; Local Rule 56.1(d). See Local Rule
126:4-9. 56.1(b)-(d).


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Exs. RR and HHH to the Toberoff Decl.
also may not be used to dispute facts. See
241 F. Supp. 2d at 270.

hearsay. Id.
104. The Nick Fury character was first Admitted. No reply is necessary.
reintroduced to Marvel’s line of comic books in
Sgt. Fury and His Howling Commandos, Vol. 1,
No. 1, published with a cover date of May 1963.
Bard Decl. Ex. 1 at MARVEL0001236.
Creation of The Rawhide Kid

Defendants’ Reply
105. Lee created The Rawhide Kid for Disputed. While Kirby did not create the Defendants’ response does not set forth any
Goodman because Goodman loved westerns. Rawhide Kid character, he substantially specific facts to dispute the facts set forth
Lee decided on the title because Goodman liked “revamped” it in 1960. Ev. Dec., Ex. B at 112. in Paragraph 105 as required by Local Rule
names that involved “the Kid.” Lee wrote the 56.1(c). Therefore, Paragraph 105 is
first issue of The Rawhide Kid, and Kirby was deemed admitted in its entirety for the
assigned to draw the pencils. After Kirby purposes of this motion. Local Rule
moved on to drawing superhero books, the 56.1(c); see also Parks Real Estate, 472
writing and artwork were reassigned to Larry F.3d at 41; Giannullo, 322 F.3d at 140.
Lieber. Lee Dep. at 99:25-100:24; Lieber Dep.
at 33:9-18. Defendants’ citations do not support
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56.1(b)-(d).

hearsay in Ex. B to the Evanier Decl. may
not be used to dispute facts. See Sarno,
183 F.3d at 160; Hidden Brook Air, 241 F.
Supp. 2d at 270.
106. The first issue of The Rawhide Kid Admitted. No reply is necessary.
named in the Termination Notices is Vol. 1, No.
17, which was published with a cover date of
August 1960. See Bard Decl. Ex. 1 at
MARVEL0001768.
Creation of The Silver Surfer

Defendants’ Reply
107. In 1966, Lee conceived of a new super- Disputed. See Response to Statement No. 80 Defendants’ response does not set forth any
villain called Galactus to be featured The specific facts to dispute the facts set forth
Fantastic Four. Lee told Kirby his idea and in Paragraph 107 as required by Local Rule
assigned him to draw the issue. In the course of 56.1(c). Therefore, Paragraph 107 is
the assignment and fleshing out Lee’s ideas, deemed admitted in its entirety for the
Kirby inserted a new character, a silver-toned purposes of this motion. Local Rule
figure on a flying surfboard, who would serve as 56.1(c); see also Parks Real Estate, 472
Galactus’s herald in space. Lee approved the F.3d at 41; Giannullo, 322 F.3d at 140;
addition and included the character, which he Reply to ¶ No. 80.
named The Silver Surfer, in the new issue of The
Fantastic Four. Singer Decl. Ex. 11, Track 10;
Lee Dep. at 70:23-73:23, 79:20-80:9, 331:2-18.
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108. The Silver Surfer did not appear until Admitted. See also Response to Statement No. No reply is necessary.
Fantastic Four, Issue No. 48 in 1966, so the 80
character is not subject to the Termination
Notices. See Singer Decl. Ex. 16.
DEFENDANTS LACK KNOWLEDGE AND INFORMATION SUFFICIENT TO RAISE A GENUINE ISSUE OF

MATERIAL FACT
Defendants Lack Knowledge of Marvel’s Work-For-Hire Practices

Defendants’ Reply
109. Susan Kirby was born on December 6, Admitted. No reply is necessary.
1945 and was between the ages of
approximately thirteen and eighteen during the
years 1958 to 1963. S. Kirby Dep. at 9:10-11.
110. Neal Kirby was born on May 25, 1948 Admitted. No reply is necessary.
and was between the ages of approximately ten
and fifteen during the years 1958 to 1963. N.
Kirby Dep. at 7:18-19.
111. Barbara Kirby was born on November Admitted. No reply is necessary.
26, 1952 and was between the ages of
approximately six and eleven during the years
1958 to 1963. Id. at 7:5-8, 7:15-17. Defendants
have represented that Barbara Kirby is not
competent to testify in this action and that she
has no personal knowledge or admissible
evidence regarding this action. Singer Decl. Ex.
54.
112. Lisa Kirby was born on September 7, Admitted. No reply is necessary.
1960 and was approximately three years old in
1963. L. Kirby Dep. at 6:2-3.
113. None of the Defendants was present Admitted that neither Lisa Kirby nor Neal Kirby Defendants’ response does not set forth any
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during any meeting between Kirby and Lee, and personally attended a meeting between Stan Lee specific facts to dispute the facts set forth
none of the Defendants has any personal and Jack Kirby, otherwise disputed to the extent in Paragraph 113 as required by Local Rule
knowledge regarding the substance of any that this is not relevant to nor dispositive of 56.1(c). Further, Defendants’ response
meetings or discussions that Kirby had with Lee whether or not the subject works by Jack Kirby does not contain any citation to the record
or any other non-family member about the were owned at inception by Marvel as “works evidence as required by Local Rule 56.1(d).
Works or any of the work he did for Marvel. N. made for hire” or purchased by Marvel upon Therefore, Paragraph 113 is deemed
Kirby Dep. at 55:18-56:19, 57:8-17, 77:2-6, completion, if accepted by Marvel. admitted in its entirety for the purposes of
97:5-8, 117:10-15; L. Kirby Dep. at 96:14-18; S. this motion. See Local Rule 56.1(b)-(d);
Kirby Dep. at 10:25-11:8. see also Parks Real Estate, 472 F.3d at 41;
114. Defendants have no personal knowledge Disputed to the extent that both Susan Kirby and Defendants’ response does not set forth any
as to whether any of the characters to which Neal Kirby testified to witnessing their father specific facts to dispute the facts set forth
Kirby contributed were created pursuant to create characters in the basement of their home. in Paragraph 114 as required by Local Rule
specific assignments or commissions from Tob. Dec., Ex. G at 50:14-52:14; 83:21-84:25; 56.1(c). Therefore, Paragraph 114 is
Marvel, or whether any of the stories to which Ex. H at 9:15-10:18. Further disputed to the deemed admitted in its entirety for the
Kirby contributed were the result of a extent that this is not relevant to nor dispositive purposes of this motion. Local Rule
collaboration between Kirby and Lee. N. Kirby of whether or not the subject works by Jack 56.1(c); see also Parks Real Estate, 472
Dep. at 72:1-6, 169:8-18; S. Kirby Dep. at 27:3- Kirby were owned at inception by Marvel as F.3d at 41; Giannullo, 322 F.3d at 140.
9, 76:17-23. “works made for hire” or purchased by Marvel
upon completion, if accepted by Marvel.
115. Neal Kirby has no way of knowing Disputed. Neal Kirby testified he “never saw a Defendants’ response does not set forth any
whether Kirby ever worked from a script or script or synopsis by his [father’s] drawing specific facts to dispute the facts set forth
synopsis. Defendants did, however, board.” Tob. Dec., Ex. G at 117:21; 118:13-17. in Paragraph 115 as required by Local Rule
acknowledge that Kirby worked on deadlines Neal Kirby testified that his father did pitch 56.1(c). Therefore, Paragraph 115 is
and often would work 16-18 hours per day to ideas on spec to Marvel: “Q: You have indicated deemed admitted in its entirety for the
meet those deadlines, and that he never worked very clearly that your father never did work on purposes of this motion. Local Rule
on spec. N. Kirby Dep. at 91:16-25, 117:16-22, Marvel on spec, correct? Neal Kirby: In terms of 56.1(c); see also Parks Real Estate, 472
127:25-128:5 (“My father didn’t do work on – maybe I need to qualify that, okay? In terms of F.3d at 41; Giannullo, 322 F.3d at 140.
spec, he was getting paid by the page.”); S. would my father have pitched an idea , if you
Kirby Dep. at 52:4-14. don’t mind my using the word ‘pitch,’ you Defendants’ response also states a legal
know, met with somebody else saying gee, I conclusion rather than a statement of
have this good idea for a character, you know, undisputed fact and legal conclusions may
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would you like to go for it, that he would have not be used to dispute facts on summary
done it you know. Definitely I would consider judgment. Schwapp, 118 F.3d at 111.
that coming up with an idea and speculation.”
Tob. Dec. Ex. G at 167:21-168:5; 233:15-234:5 Moreover, Defendants’ citations do not
(“Q: …[I]n the instances where Marvel said it support Defendants’ response and so
liked the idea and [Kirby] proceeded to do work, cannot be used to dispute facts. See Local
did you consider that work to be on spec or not Rule 56.1(b)-(d).
on spec? Neal Kirby: Well…in respect to even if
they liked the idea and you would go back and
let’s say pencil, come up with either character
concepts or full pages, I believe he had the
understanding that they still might not purchase
that work, he would still be out the time.”).
Whether Jack Kirby “worked on deadlines” is
not relevant to nor dispositive of whether the
subject works by Jack Kirby were owned at
inception by Marvel as “works made for hire” or
purchased by Marvel upon completion, if
accepted by Marvel. See Opp. at 13-20
116. Neal Kirby has no information to dispute Disputed. Neal Kirby testified that his father Defendants’ response does not set forth any
the fact that Lee had discretion to, and routinely provided margin notes “to guide the person specific facts to dispute the facts set forth
did, ignore the notes that Kirby would adding the dialogue in the balloons.” Tob. Dec., in Paragraph 116 as required by Local Rule
sometimes make in the margin of his pencil Ex. G at 218:19-25. Lee would consult and use 56.1(c). Therefore, Paragraph 116 is
drawings. N. Kirby Dep. at 218:15-219:5. margins notes provided by Kirby in published deemed admitted in its entirety for the
Marvel comic books, both of which were purposes of this motion. Local Rule
available to Neal Kirby. Ev. Dec., Ex. A at 9-10; 56.1(c); see also Parks Real Estate, 472
Tob. Dec., Ex. D at 66:8-22; Ex. FF; Ex. GG at F.3d at 41; Giannullo, 322 F.3d at 140.
192-199.
Defendants’ citations do not support
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56.1(b)-(d).


hearsay in Exs. FF and GG to the Toberoff
Air, 241 F. Supp. 2d at 270.

hearsay. Id.

Decl. Ex. GG as this cited document was
not produced in discovery in this action and
at *1 n.4.
117. Neal Kirby acknowledged that Stan Lee Disputed. This statement is not relevant to nor Defendants’ response does not set forth any
was “in charge” of Kirby’s submission of dispositive of whether or not the subject works specific facts to dispute the facts set forth
artwork for publication. N. Kirby Dep. at 56:10- by Jack Kirby were owned at inception by in Paragraph 117 as required by Local Rule
12. Marvel as “works made for hire” or purchased 56.1(c). Therefore, Paragraph 117 is
by Marvel upon completion, if accepted by deemed admitted in its entirety for the
Marvel. Further disputed to the extent Kirby was purposes of this motion. Local Rule
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not legally “required to report to Lee and to 56.1(c); see also Parks Real Estate, 472
abide by his ‘marching orders’” as he had no F.3d at 41; Giannullo, 322 F.3d at 140.
contract with Marvel. Mor. Dec., Ex. A at 8-10;
Ev. Dec., Ex. A at 11-12; Tob. Dec., Ex. E at Defendants’ response also states a legal
71:17-72:7; 72:22-73:8; 73:11- 74:5; 76:25- conclusion rather than a statement of
77:6; Ex. F at 194:11-21; 204:6-19; 204:24- undisputed fact and legal conclusions may
205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3. not be used to dispute facts on summary
Kirby had no legal obligation to provide work to judgment. Schwapp, 118 F.3d at 111.
Marvel, finish artwork he had started with the
intention to sell to Marvel, nor to revise material Moreover, Defendants’ citations do not
requested by Marvel.. Kirby was free to reject support Defendants’ response and so
any of Marvel’s requests or to submit material cannot be used to dispute facts. See Local
that Marvel did not request. See Opp. at 13-20. Rule 56.1(b)-(d).
Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain
Glory); Ex. C (Jack Kirby’s Gods portfolio), D Defendants’ citations to the inadmissible
(New Gods presentation pieces). Tob. Dec., Ex. testimony and reports of Evanier and
MM at 6 (“Some artists, such as Jack Kirby, Morrow may not be considered on
need no plot at all. I mean I’ll just say to Jack, summary judgment. See Daubert, 509 U.S.
‘Let’s let the next villain be Dr. Doom’ … or I at 579; see also Docket Nos. 67, 70.
may not even say that. He may tell me. And then
he goes home and does it. He’s so good at plots, Defendants’ citations to inadmissible
I’m sure he’s a thousand times better than I. He hearsay in Exs. B, C, and D to the Evanier
just about makes up the plots for these Decl. and Ex. GG to the Toberoff Decl.
stories.”),151; Ex. GG at 193; Colan Dec. at ¶¶ also may not be used to dispute facts. See
8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. Sarno, 183 F.3d at 160; Hidden Brook Air,
at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at 241 F. Supp. 2d at 270.
¶¶ 8-14.
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Civ. P. 37(c)(1); Fed. R. Civ. P.



at *1 n.4.
Defendants Have No Knowledge Regarding The Creation Of Specific Works Subject To The Termination Notices

Defendants’ Reply
118. In their depositions, Defendants were Disputed. Both Neal Kirby and Susan Kirby Defendants’ response does not set forth any
unable to identify any specific facts regarding testified about the creation of works by their specific facts to dispute the facts set forth
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the circumstances under which any of the Works father, Jack Kirby. Tob. Dec., Ex. G at 50:14- in Paragraph 118 as required by Local Rule
were created. N. Kirby Dep. at 64:10-20, 69:15- 52:14; 74:9-75:13; 83:21-84:25; 97:18-98:13; 56.1(c). Therefore, Paragraph 118 is
18, 97:13-17, 99:6-22, 104:4-17, 104:25-105:7, 103:9-19; 124:4-12; 126:4-9; 129:9-131:19; deemed admitted in its entirety for the
108:7-12, 108:25-109:2, 109:3-11, 109:21-24, 140:14-23; Ex. H at 9:15-10:18. purposes of this motion. Local Rule
111:19-112:18, 113:9-114:14, 117:23-118:7, 56.1(c); see also Parks Real Estate, 472
120:9-121:19, 126:13-127:18, 128:14-18, F.3d at 41; Giannullo, 322 F.3d at 140.
130:12-131:2, 137:17-23, 139:10-13, 141:20-
142:1, 142:6-17, 194:14-195:1; L. Kirby Dep. at Moreover, any testimony by Neal or Susan
34:6-11, 92:15-94:3, 94:18-95:3, 95:8-17, Kirby with regard to the creation of the
99:22-23, 103:24-104:5, 107:20-108:23, 109:5- Works at issue is based on hearsay and is
8, 113:3-6, 113:17-24; S. Kirby Dep. at 28:11- therefore inadmissible. See Sarno, 183
17, 43:19-22, 59:24-60:4, 64:21-25. F.3d at 160; Hidden Brook Air, 241 F.
Supp. 2d at 270.
119. Neal Kirby did no research prior to Disputed. Neal Kirby testified that he did Defendants correctly cite the quotation
serving the Termination Notices regarding research on this subject in the very testimony from the deposition of Neal Kirby.
whether any of the Works were in fact created or cited by Marvel: “Q: Did you do any research to
co-created by Kirby. N. Kirby Dep. at 194:14- determine whether any of the characters that However, this alleged fact is not material as
195:1. were the subject of your notices were in fact it will not “affect the outcome of the suit
created by your father or co-created by him? under the governing law.” Kinsella v.
Neal: I did some. Q: What research did you do? Rumsfeld, 320 F.3d 309, 311 (2d Cir. 2003)
Neal: Oh, just some with books that I have or a (citing Anderson v. Liberty Lobby, Inc., 477
little talking with my sister and so on.” Tob. U.S. 242, 248 (1986)).
Dec., Ex. G at 194:14-195:12.
120. Lisa Kirby has no personal knowledge Disputed to the extent this statement is not Defendants’ response does not set forth any
regarding the circumstances of the creation of relevant to nor dispositive of whether or not the specific facts to dispute the facts set forth
any characters to which Kirby contributed while subject works by Jack Kirby were owned at in Paragraph 120 as required by Local Rule
working for Marvel, and she was too young at inception by Marvel as “works made for hire” or 56.1(c). Further, Defendants’ response
the time to have any personal knowledge of the purchased by Marvel upon completion, if does not contain any citation to the record
relevant facts. L. Kirby Dep. at 34:6-11, 92:15- accepted by Marvel. evidence as required by Local Rule 56.1(d).
94:3, 94:18-95:3, 95:8-17, 99:22-23. Therefore, Paragraph 120 is deemed
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121. Neal Kirby has no personal knowledge Disputed. Neal Kirby testified about the Defendants’ response does not set forth any
or recollection of the circumstances under Kirby creation of works by his father. Tob. Dec., Ex. G specific facts to dispute the facts set forth
created any of the Works. N. Kirby Dep. at at 50:14-52:14; 74:9-75:13; 83:21-84:25; 97:18- in Paragraph 121 as required by Local Rule
64:10-20. Neal Kirby’s best recollection of the 98:13; 103:9-19; 124:4-12; 126:4-9; 129:9- 56.1(c). Therefore, Paragraph 121 is
events concerning Kirby’s work are outside the 131:19; 140:14-23. deemed admitted in its entirety for the
Time Period. Id. at 92:24-93:3. purposes of this motion. Local Rule
122. Defendants can point to no evidence to Disputed. Neal Kirby testified that his father Defendants’ response does not set forth any
dispute Lee’s testimony that he, and not Kirby, created the Fantastic Four in the very testimony specific facts to dispute the facts set forth
conceived of The Fantastic Four. N. Kirby cited by Marvel: “Q: What information, if any, in Paragraph 122 as required by Local Rule
Dep. at 117:23-118:7, 120:9-121:19; S. Kirby do you have concerning the creation of the 56.1(c). Therefore, Paragraph 122 is
Dep. at 28:11-17. Fantastic Four? Neal: In discussions with my deemed admitted in its entirety for the
father The Fantastic Four basically was purposes of this motion. Local Rule
derivative of the, from what he told me, 56.1(c); see also Parks Real Estate, 472
basically he came up with the idea just as a F.3d at 41; Giannullo, 322 F.3d at 140;
derivative from the Challengers of the Unknown Reply to ¶ No. 80.
that he had done several years earlier. Q: So
your father told you that The Fantastic Four was Defendants’ citation to the deposition
his idea? Neal: Yes.” Tob. Dec., Ex. G at testimony of Neal Kirby is also
117:23-118:7. See also Response to Statement inadmissible as his testimony is based on
No. 80. hearsay. See Sarno, 183 F.3d at 160;
123. Neal Kirby has no specific firsthand Disputed. Neal Kirby testified about his father’s Defendants’ response does not set forth any
knowledge regarding the circumstances creation of Iron Man’s costume. Tob. Dec., Ex. specific facts to dispute the facts set forth
surrounding the creation of Iron Man and his G at 108:13-18. See also Response to Statement in Paragraph 123 as required by Local Rule
only basis to dispute Stan Lee’s statements in No. 94. 56.1(c). Therefore, Paragraph 123 is
this regard is speculation. N. Kirby Dep. at deemed admitted in its entirety for the
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108:7-12, 108:25-109:2, 109:21-24, 109:3-11, purposes of this motion. Local Rule
111:19-112:4. Neal Kirby knows nothing about 56.1(c); see also Parks Real Estate, 472
what other creative forces might have existed at F.3d at 41; Giannullo, 322 F.3d at 140;
Marvel during the Time Period and Kirby never Reply to ¶ No. 94.
told Neal that he (Kirby) was the sole creative
force at Marvel. Id. at 111:25-112:18, 113:9- Defendants’ citation to the deposition
114:14. testimony of Neal Kirby is also
hearsay. See Sarno, 183 F.3d at 160;
124. None of the Defendants has any specific Disputed to the extent this statement is not Defendants’ response does not set forth any
information on the circumstances surrounding relevant to nor dispositive of whether the subject specific facts to dispute the facts set forth
the creation of The Incredible Hulk. L. Kirby works by Jack Kirby were owned at inception in Paragraph 124 as required by Local Rule
Dep. at 107:20-108:2; N. Kirby Dep. at 141:20- by Marvel as “works made for hire” or 56.1(c). Therefore, Paragraph 124 is
142:1, 142:6-17; S. Kirby Dep. at 43:19-22. purchased by Marvel upon completion, if deemed admitted in its entirety for the
accepted by Marvel. See also Response to purposes of this motion. See Local Rule
Statement No. 85. 56.1(c); see also Parks Real Estate, 472
Reply to ¶ No. 85.
Defendants’ response also states a legal

conclusion rather than a statement of
undisputed fact and legal conclusions may
125. Neither Neal nor Lisa Kirby has any Disputed. Neal Kirby testified his father drew Defendants’ response does not set forth any
specific information on the circumstances the cover to Amazing Fantasy No. 15, the first specific facts to dispute the facts set forth
surrounding the creation of Spider-Man, appearance of Spider-Man. Tob. Dec., Ex. G at in Paragraph 125 as required by Local Rule
although Neal Kirby has acknowledged that 98:1-13. Further disputed to the extent these 56.1(c). Therefore, Paragraph 125 is
Kirby did not contribute artwork to the statements are not relevant to nor dispositive of deemed admitted in its entirety for the
published first issue of Spider-Man. L. Kirby whether or not the subject works by Jack Kirby purposes of this motion. See Local Rule
Dep. at 103:24-104:5; N. Kirby Dep. at 97:13- were owned at inception by Marvel as “works 56.1(c); see also Parks Real Estate, 472
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17, 99:6-22. Neal Kirby can only “guess” that made for hire” or purchased by Marvel upon F.3d at 41; Giannullo, 322 F.3d at 140;
Kirby conceived of Spider-Man because he was completion, if accepted by Marvel. See also Reply to ¶ No. 90.
not privy to what might have been discussed Response to Statement No. 90.
between Lee and Kirby with respect to Spider- Defendants’ response also states a legal
Man or any other character. N. Kirby Dep. at conclusion rather than a statement of
104:4-17, 104:25-105:7. undisputed fact and legal conclusions may

126. Lisa Kirby has admitted that Spider-Man Disputed to the extent this statement is not Defendants’ response does not set forth any
was not drawn by Kirby, and has noted that she relevant to nor dispositive of whether the subject specific facts to dispute the facts set forth
has “heard [her] mother correcting people if they works by Jack Kirby were owned at inception in Paragraph 126 as required by Local Rule
alluded to that fact.” Singer Decl. Ex. 55 at by Marvel as “works made for hire” or 56.1(c). Further, Defendants’ response
MARVEL0017407. Defendant Susan Kirby purchased by Marvel upon completion, if does not contain any citation to the record
also acknowledged that the Spider-Man accepted by Marvel, nor relevant to whether evidence as required by Local Rule 56.1(d).
character “is not [Kirby’s].” S. Kirby Dep. at Jack Kirby is the author or co-author of material Therefore, Paragraph 126 is deemed
41:25-42:6. on which Spider-Man is derived and the author admitted in its entirety for the purposes of
of the first Spider-Man cover to the first this motion. See Local Rule 56.1(b)-(d);
published comic book, published by Marvel, see also Parks Real Estate, 472 F.3d at 41;
featuring Spider-Man . Giannullo, 322 F.3d at 140.
127. Mark Evanier, proffered as both a fact Admitted. No reply is necessary.
witness and an “expert,” has noted that Jack
once misspoke when he said that he designed
the costume for the final published version of
Spider-Man. Evanier Dep. (11/9/10) at 132:22-
133:7; Singer Decl. Ex. 56 at
MARVEL0017065.
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128. Evanier also has commented that Kirby Disputed. Evanier did not say that Kirby had a Defendants correctly quote a portion of
had a notoriously poor memory. Evanier Dep. “notoriously poor memory” but instead that his Singer Decl. Ex. 57. The full quotation is
(11/9/10) at 130:9-131:4; Singer Decl. Ex. 57 at mind “wander[ed] in nineteen directions at “[Q:] Did Jack really have a bad memory?
MARVEL0017057. once” and that Jack actually had “crystal clear” [A:] By common definition, yes...but I think
recollections from thirty years before. Singer it was more a matter of his mind wandering
Decl., Ex. 57 at MARVEL17057. Evanier in nineteen directions at once. Every so
further noted that “Stan Lee’s memory is also, often, he would surprise me with some
by his own admission, poor.” Id. (apparently) crystal-clear recollection of
thirty years before.” (emphasis added)
However, this alleged fact is not material as

it will not “affect the outcome of the suit
under the governing law.” Kinsella, 320
F.3d at 311.
129. Neither Neal nor Lisa Kirby has any Disputed. Neal Kirby testified about his father’s Defendants’ response does not set forth any
knowledge regarding the circumstances of the involvement in the creation of the Thor specific facts to dispute the facts set forth
creation of the Thor character. N. Kirby Dep. at character. Ex. G at 50:14-52:14; 83:21-84:25. in Paragraph 129 as required by Local Rule
126:25-127:18; L. Kirby Dep. at 108:3-23. See also Response to Statement No. 88. 56.1(c). Therefore, Paragraph 129 is
deemed admitted in its entirety for the
Reply to ¶ No. 88.
130. Lisa Kirby has no specific information Disputed. Neal Kirby testified that he witnessed Defendants’ response does not set forth any
on the circumstances surrounding the creation of his father drawing X-Men No. 1 as well as specific facts to dispute the facts set forth
The X-Men. L. Kirby Dep. at 109:5-8. Neal talked to jim about it. Tob. Dec., Ex. G at 129:9- in Paragraph 130 as required by Local Rule
Kirby’s only basis to dispute Stan Lee’s 131:19. See also Response to Statement No. 97. 56.1(c). Therefore, Paragraph 130 is
testimony regarding the creation of The X-Men deemed admitted in its entirety for the
is that he has no reason to disbelieve his father. purposes of this motion. Local Rule
N. Kirby Dep. at 130:12-131:2. 56.1(c); see also Parks Real Estate, 472
Reply to ¶ No. 97.
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131. Neither Lisa nor Neal Kirby has any Disputed. Neal Kirby testified about his father’s Defendants’ response does not set forth any
specific information on the circumstances creation of Nick Fury. Tob. Dec., Ex. G at 74:9- specific facts to dispute the facts set forth
surrounding the creation of Nick Fury. L. Kirby 75:13; 124:4-12; 126:4-9. See also Response to in Paragraph 131 as required by Local Rule
Dep. at 113:3-6; N. Kirby Dep. at 126:13-24. Statement No. 103. 56.1(c). Therefore, Paragraph 131 is
deemed admitted in its entirety for the
Reply to ¶ No. 103.

information on the circumstances surrounding relevant to nor dispositive of whether or not the specific facts to dispute the facts set forth
the creation of The Rawhide Kid. L. Kirby Dep. subject works by Jack Kirby were owned at in Paragraph 132 as required by Local Rule
at 113:17-24; N. Kirby Dep. at 137:17-23; inception by Marvel as “works made for hire” or 56.1(c). Further, Defendants’ response
139:10-13; S. Kirby Dep. at 64:21-25. purchased by Marvel upon completion, if does not contain any citation to the record
accepted by Marvel. evidence as required by Local Rule 56.1(d).
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information regarding the timing or relevant to nor dispositive of whether or not the specific facts to dispute the facts set forth
circumstances under which Ant-Man was subject works by Jack Kirby were owned at in Paragraph 133 as required by Local Rule
created, and neither Neal nor Susan Kirby even inception by Marvel as “works made for hire” or 56.1(c). Therefore, Paragraph 133 is
knows that Ant-Man was a character published purchased by Marvel upon completion, if deemed admitted in its entirety for the
by Marvel. N. Kirby Dep. at 69:15-18, 128:14- accepted by Marvel. See also Response to purposes of this motion. Local Rule
18; L. Kirby Dep. at 108:24-109:4; S. Kirby Statement No. 10. 56.1(c); see also Parks Real Estate, 472
Dep. at 59:24-60:4. F.3d at 41; Giannullo, 322 F.3d at 140;
Reply to ¶ No. 10.
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PLAINTIFFS’ AND COUNTERCLAIM DEFENDANTS’ RESPONSE TO

DEFENDANTS’ ADDITIONAL MATERIAL FACTS
134. From its beginnings to the 1960s, the comic book business was “a fly-by-night
industry” with little to no attention paid to copyright ownership by the publishers or artists. Ev.
Dec., Ex. A at 4-5; Mor. Dec., Ex. A at 4, 9-10; Tob. Dec., Ex. C at 31:1-33:17; 35:16-36:20 Ex.
D at 143:24-145:7; 145:24-146:7; Adams Dec. at ¶ 13.
RESPONSE: This Paragraph is irrelevant to, and has no bearing on, the motion for summary
judgment and should not be considered by the Court in connection therewith. Fed. R. Evid. 402.
These alleged facts are not material as they will not “affect the outcome of the suit under the
governing law.” Kinsella, 320 F.3d at 311. Further, Plaintiffs and Counterclaim-Defendants
object to the statement alleged in Paragraph 134 to the extent it relies on the inadmissible
testimony of Evanier and Morrow. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (all
evidence in support of a summary judgment motion must be admissible); see also Docket Nos.
67, 70. Plaintiffs and Counterclaim-Defendants further object to the statement in Paragraph 134
to the extent it relies on the irrelevant testimony in the Adams Decl. as the declarant does not
have any firsthand knowledge of Marvel’s practices during the Time Period. Fed. R. Civ. P.
56(c)(4); Fed. R. Evid. 402; see also Hicks, 593 F.3d at 167.
135. In the 1930s-40s, some artists worked as employees to write and draw stories,
under “sweat shop” conditions, while others worked as freelancers out of their homes, setting
their own hours, and paying for their own supplies. Ev. Dec., Ex. A at 5, 11; Mor. Dec., Ex. A at
8; Tob. Dec., Ex. E at 72:22-73:8; 76:4-24; Ex. F at 194:11-21; 199:8-200:2; 204:6-207:11;
210:3-8; Ex. V at 407. Such freelancers were not paid for rejected work or for revising their
work as a condition to its acceptance. Ev. Dec., Ex. A at 12; Mor. Dec., Ex. A at 8-9; Tob. Dec.,
Ex. B at 61:20-62:9; Ex. C at 136:7-137:18; Ex. D at 89:13-92:5; Ex. E at 71:17-72:7; 76:25-
79:4; Ex. F at 123:18-125:9; Ex. G at 57:18-58:21; 62:19-63:6; 234:12-236:1; Ex. H at 37:6-19;
Ex. V at 396; Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn.
Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
Additionally, the facts in Paragraph 135 are not material to the motion for summary judgment
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because they will not “affect the outcome of the suit under the governing law.” Kinsella, 320
F.3d at 311. Defendants’ citations fail to support their alleged fact as required by Local Rule
56.1(d). Defendants’ have not provided any evidence for their proposition that freelancers were
not paid for rejected work or for revisions to their work during the 1930s-40s time period as
Defendants’ citations do not refer to that time period. Further, Plaintiffs and Counterclaim-
Defendants object to the statements in Paragraph 135 to the extent they rely on the inadmissible
testimony of Evanier and Morrow as well as inadmissible hearsay in Ex. V to the Toberoff Decl.
See Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-
Defendants also object to the statement in Paragraph 135 to the extent it relies on the irrelevant
testimony in the Adams Decl. and Steranko Decl. as neither declarant has any firsthand
knowledge of Marvel’s practices during the Time Period. Fed. R. Civ. P. 56(c)(4); Fed. R. Evid.
402; see also Hicks, 593 F.3d at 167. Finally, Plaintiffs and Counterclaim-Defendants object to
the statement in Paragraph 135 to the extent it relies on testimony from Steranko and Sinnott, as
neither was identified as a potential witness by Defendants and therefore their testimony is
inadmissible. Fed. R. Civ. P. 37(c)(1). Plaintiffs and Counterclaim-Defendants further state that
during the Time Period, freelance artists and writers were paid an agreed per-page rate for all
completed assignments submitted to Marvel, even if the pages were not used for publication or if
the freelancer had to make changes to the pages. See Plaintiffs and Counterclaim-Defendants
Local Rule 56.1 Statement (“56.1 Stmt.”) ¶¶ 45, 47-48, 61-62; Singer Decl. Ex. 1 at 18:6-16,
30:11-31:5, 376:3-22; id. Ex. 4 at 30:10-12; see also id. Ex. 2 at 32:2-5; id. Ex. 3 at 68:24-69:6,
74:19-25; id. Ex. 4 at 30:10-12.
136. In 1939, Martin Goodman founded Marvel’s predecessor, Timely Comics. Mor.
Dec., Ex. A at 4, Ev. Dec., Ex. A at 5. In the mid-1940s, Timely had a “bullpen” of salaried staff
artists and writers. Mor. Dec., Ex. A at 5. However, in 1949, Goodman discovered surplus
artwork, and decided it was financially beneficial to fire its employees until the art was used up.
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Mor. Dec., Ex. A at 4; Tob. Dec., Ex. D at 169:4-18; Tob. Dec. Ex. J at 368:2-369:16; 371:3-18;
372:8-10.
Moreover, this fact is not material to the motion for summary judgment because it will not
“affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs
and Counterclaim-Defendants do not dispute that Martin Goodman founded Marvel’s
predecessor, Timely Comics in or about 1939 or that in the 1950s’ Goodman reduced Timely’s
staff size; however, Defendants’ citations do not support the stated fact in Paragraph 136.
Further, Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 136 to the
extent it relies on the inadmissible testimony of Evanier and Morrow. See Spiegel, 604 F.3d at
81; see also Docket Nos. 67, 70.
137. In 1954 Fredric Wertham’s book Seduction of the Innocent accused comic books
of “poisoning the minds” of America’s youth. Mor. Dec., Ex. A at 4; Ev. Dec., Ex. A at 7; Ex. F
at 200:4-201:20.
This fact is not material to the motion for summary judgment because it will not “affect the
outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Further, Plaintiffs and
Counterclaim-Defendants object to this statement to the extent it relies on the inadmissible
testimony of Evanier and Morrow. See Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
138. The resulting public backlash led to Senate hearings on the corrupting influence
of comics, and nearly bankrupted the struggling comic book “industry.” Ev. Dec., Ex. A at 7;
Mor. Dec., Ex. A at 5; Tob. Dec., Ex. F at 200:4-201:20.
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outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs and
Counterclaim-Defendants do not dispute that public backlash in the 1950s, among other things,
led to the topic of comic books being included in congressional hearings being held by the
Senate Subcommittee on Juvenile Delinquency, which contributed to financial difficulties for the
comic book industry. However, Plaintiffs and Counterclaim-Defendants object to these
statements to the extent they rely on the inadmissible testimony of Evanier and Morrow. See
Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
139. In or about 1957, Marvel fired most of its staff artists and writers that it had
employed, except Goodman’s relative, Stan Lee, and his assistant, and was reduced to two small
offices. Ev. Dec., Ex. A at 8; Mor. Dec., Ex. A at 5, 8-9; Tob. Dec., Ex. J at 372:16-373:13; Ex.
F. at 123:18-125:9; 200:4-201:20; Ex. U at 80.
outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs and
Counterclaim-Defendants do not dispute that Marvel reduced its staff size in the late 1950s.
However, Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 139 to the
extent it relies on the inadmissible testimony of Evanier and Morrow as well as inadmissible
hearsay in Ex. U to the Toberoff Decl. See Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
140. In the late 1950s, Timely slowly resumed buying freelance material on a per-page
basis. Mor. Dec., Ex. A at 6-8; Ev. Dec., Ex. A at 8-10; Tob. Dec., Ex. C at 105:15-17; Ex. E at
29:4-8; Ex. F at 15:20-16:24; Ex. I at 17:22-25.
RESPONSE: Although Plaintiffs and Counterclaim-Defendants do not dispute that Marvel
hired freelance artists and writers during the Time Period, Marvel did not “buy” material from
freelance artists or writers. Rather, Marvel engaged freelance artists and writers to contribute to
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Marvel’s comic books pursuant to assignments from Stan Lee, who directed their creation, and
Marvel compensated the artists and writers for their work on an agreed per-page basis for all
completed assignments that were submitted. See 56.1 Stmt. ¶¶ 20, 22-27, 30-27, 39-43, 45, 47-
48, 54-64, 66; Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-16, 20:11-
21:25, 22:11-16, 30:11-14, 41:20-42:9, 52:3-5, 73:17-23, 111:2-17, 396:1-10; id. Ex. 4 at 14:5-
15:15, 23:18-21; id. Ex. 11, Tracks 3, 6; id. Ex. 26 at MARVEL0017350; see also id. Ex. 2 at
16:13-21, 18:15-19:2, 39:7-13, 61:4-6, 61:12-19; id. Ex. 3 at 28:5-15, 28:19-29:5, 48:10-49:8,
50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 112:25-113:23; id. Ex. 5 at 81:8-13. Further,
Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 140 to the extent it
relies on the inadmissible testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also
Docket Nos. 67, 70.
141. Timely had no written contracts with freelancers, and no obligation to buy their
material. Mor. Dec., Ex. A at 8-10; Ev. Dec., Ex. A at 9, 11-12; Tob. Dec., Ex. C at 23:4-24:4;
Ex. E at 71:17-72:7; 72:22-73:8; 73:11-74:5; 76:25-77:6; Ex. F at 194:11-21; 199:8-200:3;
204:6-19; 204:24-205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3; Ex. M; Colan Dec. at ¶¶ 5, 8,
9, 12, 14; Sinn. Dec. at ¶¶ 3, 4, 10; Ayers Dec. at ¶¶ 8-12.
Further, this statement is not material to the motion for summary judgment because it will not
and Counterclaim-Defendants do not dispute that Marvel did not have written contracts with
freelancers during the Time Period. However, Plaintiffs and Counterclaim-Defendants object to
the statement in Paragraph 141 to the extent it states a legal conclusion and not a statement of
undisputed fact. Schwapp, 118 F.3d at 111. Plaintiffs and Counterclaim-Defendants also object
to this statement to the extent it relies on the inadmissible testimony of Evanier and Morrow. See
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Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70. Finally, Plaintiffs and Counterclaim-
Defendants object to the statement in Paragraph 141 to the extent it relies on testimony from
Sinnott as he was not identified as a potential witness by Defendants and therefore his testimony
is inadmissible. Fed. R. Civ. P. 37(c)(1).
142. Between 1958-1963, Marvel purchased material from freelance artists. Ev. Dec.
Ex. A at 9, 11-14; Mor. Dec. Ex. A at 5-10; Tob. Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7;
72:22-74:5; 100:21-101:9; Ex. F at 65:17-66:4; 194:11-21; 200:4-201:13; Ex. J at 367:15-
369:16; 371:3-18; 372:8-10; 396:1-14; Ex. K at 232:5-10. Colan Dec. at ¶¶ 8, 9, 12, 14; Sinn.
Dec. at ¶¶ 9-13; Ayers Dec. at ¶¶ 8-14.
RESPONSE: Although Plaintiffs and Counterclaim-Defendants do not dispute that Marvel
hired freelance artists and writers during the Time Period, Marvel did not “purchase” material
from freelance artists or writers. Rather, Marvel engaged freelance artists and writers to
contribute to Marvel’s comic books pursuant to assignments from Stan Lee, who directed their
creation, and Marvel compensated the artists and writers for their work on an agreed per-page
basis for all completed assignments that were submitted. See 56.1 Stmt. ¶¶ 20, 22-27, 30-27, 39-
43, 45, 47-48, 54-64, 66; Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-
16, 20:11-21:25, 22:11-23:19, 30:11-31:5, 41:20-42:9, 47:15-48:4, 52:3-5, 58:13-21, 73:17-23,
111:2-17, 383:18-21, 384:18-21, 396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id. Ex. 11, Tracks
3, 6; id. Ex. 26 at MARVEL0017350; id. Ex. 41 at MARVEL0017230; see also id. Ex. 2 at
16:13-21, 18:15-19:2, 39:7-13, 61:4-6, 61:12-19, 76:8-78:17, 80:19-25; id. Ex. 3 at 28:5-15,
28:19-29:5, 48:10-49:8, 50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 111:12-14, 112:8-
114:11; id. Ex. 5 at 81:8-13, 91:22-92:6, 127:19-128:5, 170:23-171:4; Supplemental Declaration
of Randi W. Singer dated March 25, 2011 (“Supp. Singer Decl.”) Ex. 59 at 109:3-10. Plaintiffs
and Counterclaim-Defendants also object to this statement to the extent it relies on the
inadmissible testimony of Evanier and Morrow. See Spiegel, 604 F.3d at 81; see also Docket
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Nos. 67, 70. Finally, Plaintiffs and Counterclaim-Defendants object to the statement in
Paragraph 142 to the extent it relies on testimony from Sinnott, as he was not identified as a
potential witness by Defendants and therefore his testimony is inadmissible. Fed. R. Civ. P.
37(c)(1).
143. During the 1930’s through the 1950’s, Jack Kirby worked as both a staff artist and
freelancer, and formed a famous partnership with Joe Simon that sold work to many different
publishers, including Timely, until it disbanded in 1955. Mor. Dec., Ex. A at 6-7; Ev. Dec., Ex.
A at 6-8.
and Counterclaim-Defendants object to this statement to the extent it relies on the inadmissible
testimony of Evanier and Morrow. See Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
144. In 1956, Kirby began to submit freelance work to Timely/Marvel. Ev. Dec., Ex.
A at 9; Mor. Dec., Ex. A at 7.
RESPONSE: Plaintiffs and Counterclaim-Defendants do not dispute that Jack Kirby’s
contributions to Marvel’s comic books were done on a freelance basis during the late 1950s and
1960s; however, Defendants’ citations do not support the stated fact in Paragraph 144. Further,
Plaintiffs and Counterclaim-Defendants object to this statement to the extent it relies on the
inadmissible testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos.
67, 70.
145. Between 1958-1963, Kirby produced and sold artwork to Marvel on a freelance
basis only, and was not employed by Marvel. Kirby sold his pages on a per-page basis. Ev.
Dec., Ex. A at 8-12; Morrow Dec., Ex A at 6-10; Tob. Dec., Ex. C at 23:4-24:4; 105:15-17; Ex.
E at 29:4-8; 71:17-72:7; 72:22-73:8; Ex. F at 15:20-16:24; Ex. I at 17:22-25; 194:11-21; Ex. J at
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256:25-257:25; 396:1-14; Ex. L at ¶¶ 1-4, 10, 11, 13; Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec.
at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
RESPONSE: Plaintiffs and Counterclaim-Defendants do not dispute that Jack Kirby submitted
artwork to Marvel on a freelance basis; however, Jack Kirby’s artwork was not “sold” to Marvel,
as Jack Kirby contributed to Marvel’s comic books pursuant to assignments from Stan Lee, who
directed the creation of the works, and was then compensated by Marvel for his work on an
agreed per-page basis for all completed assignments that were submitted. See 56.1 Stmt. ¶¶ 20,
22-27, 30-27, 39-43, 45, 47-48, 54-64, 66; Singer Decl. Ex. 1 at 22:11-23:19, 30:11-31:5, 47:15-
48:4, 58:13-21, 111:2-17, 383:18-21, 384:18-21; id. Ex. 11, Track 3; id. Ex. 41 at
MARVEL0017230; see also id. Ex. 2 at 76:8-78:17, 80:19-25; id. Ex. 3 at 111:12-14, 112:8-
114:11; id. Ex. 5 at 91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-
10. Further, Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 145 to
the extent it relies on the inadmissible testimony of Evanier and Morrow. See Spiegel, 604 F.3d
at 81; see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants object to
Defendants’ citations to the irrelevant Adams Decl. and Steranko Decl. as neither declarant has
any firsthand knowledge of Marvel’s practices during the Time Period. Fed. R. Civ. P. 56(c)(4);
Fed. R. Evid. 402; see also Hicks, 593 F.3d at 167. Finally, Plaintiffs and Counterclaim-
Steranko and Sinnott, as neither was identified as a potential witness by Defendants and
therefore their testimony is inadmissible. Fed. R. Civ. P. 37(c)(1).
146. Marvel did not have a written agreement with Kirby between 1958-1963. Mor.
Dec. Ex. A at 9; Ev. Dec. Ex. A 11; Tob Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7; 72:22-
73:8; 73:11-74:5; 76:25-77:6; Ex. F at 194:11-21; 199:8-200:3; 204:6-19; 204:24-205:15; Ex. J
at 256:25-257:25; Ex. L ¶¶ 1, 3; Ex. M; Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14;
Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
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RESPONSE: Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 146
to the extent it relies on the inadmissible testimony of Evanier and Morrow. See Spiegel, 604
F.3d at 81; see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants object to
147. The first written agreement between Marvel and Kirby was fully executed on June
5, 1972. Tob Dec., Ex. L ¶¶ 1, 3; Ex. M.
RESPONSE: Undisputed.
148. Kirby would conceive, draw and plot the stories, and use margin notes to explain
the story and suggest dialogue. Tob. Dec., Ex. FF; Ex. GG at 193; Ex. HH at 45 (“Kirby: the
artists were doing the plotting- Stan was just coordinating the books, which was his job. Stan
was production coordinator. But the artists were the ones that were handling both story and art.
We had to- there was no time not to!”); Ex. II; Ex. OO at 174; Ex. JJ at 45, 49; Ex. KK at 122.
“affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Moreover,
Defendants’ citations do not support the statements alleged in Paragraph 148. Plaintiffs and
Counterclaim-Defendants object to the statements in Paragraph 148 to the extent they rely on
inadmissible hearsay in Exs. FF, GG, HH, II, JJ, KK and OO to the Toberoff Decl. See Spiegel,
604 F.3d at 81. Plaintiffs and Counterclaim-Defendants also object to Defendants’ citation to
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Exs. GG, JJ and OO as the cited documents were not produced in discovery in this action and
thus may not be considered on summary judgment. See Melie, 2009 WL 1404325, at *1 n.4.
149. Between 1958-1963, Kirby, like other freelancers worked out of the basement of
his own home, set his own hours, paid his own overhead and insurance and paid all expenses
associated with his creations, including for his own paper, pens, pencils and other materials, and
such expenses were not reimbursed by Marvel. Ev. Dec. Ex. A at 11-12; Mor. Dec. Ex. A at 8;
Tob. Ex. E at 76:4-24; Ex. F at 194:11-21; 199:8-200:3; 210:3-8; Dec., Ex. G at 90:12-91:15; Ex.
H at 9:15-10:9; Ex. CC at K860-61; Colan Dec. at ¶ 8; Adams Dec. at ¶ 7; Ster. Dec. at ¶ 10;
Sinn. Dec. at ¶ 9; Ayers Dec. at ¶ 10.
Further, the facts in Paragraph 149 are not material to the motion for summary judgment because
they will not “affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311.
Although Plaintiffs and Counterclaim-Defendants do not dispute that Kirby generally worked
from his home, set his own hours and paid for art supplies such as paper and pencils, and that it
was not Marvel’s practice during the Time Period to reimburse freelance artists for such
expenses, Kirby did not pay “all expenses associated with his creations” as Kirby was paid an
agreed per-page rate by Marvel and Marvel bore all costs associated with publishing the comic
books, including hiring other staff to complete the work that Kirby submitted. See 56.1 Stmt. ¶¶
19-21, 26, 30, 45, 47-48, 61-62; Singer Decl. Ex. 1 at 15:9-20, 43:3-44:2, 58:13-21; id. Ex. 5 at
81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230. Plaintiffs and Counterclaim-Defendants
also state that Kirby often performed work while in Marvel’s offices. Singer Decl. Ex. 5 at
55:18-56:12; see also id. Ex. 2 at 74:23-75:9; Supp. Singer Decl. Ex. 59 at 110:9-20. Defendants
also fail to identify any admissible evidence in the record for its claim that Jack Kirby paid his
own “overhead and insurance.” Plaintiffs and Counterclaim-Defendants also object to the
statements in Paragraph 149 to the extent they rely on the inadmissible testimony of Evanier and
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Morrow as well as inadmissible hearsay in Ex. CC to the Toberoff Decl. Spiegel, 604 F.3d at 81;
see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants object to Defendants’
citations to the irrelevant Adams Decl. and Steranko Decl. as neither declarant has any firsthand
inadmissible. Fed. R. Civ. P. 37(c)(1).
150. Between 1958-1963, Marvel did not withhold payroll taxes or any other taxes
from its payments for the artwork it bought from Kirby. Ev. Dec., Ex. A at 12; Mor. Dec., Ex A
at 8; Tob. Dec., Ex. E at 79:5-14; Ex. F at 15:24-16:24; Ex. L, at ¶ 13; Ster. Dec., ¶ 10.
Plaintiffs do not dispute that Marvel did not withhold any payroll or income taxes from the
checks issued to Jack Kirby between 1958-1963. However, Marvel did not “buy” artwork from
Jack Kirby. Freelance artists and writers, such as Jack Kirby, contributed to Marvel’s comic
books pursuant to assignments from Stan Lee, who directed their creation, and the artists and
writers were then compensated by Marvel for their work on an agreed per-page basis for all
completed assignments that were submitted. See 56.1 Stmt. ¶¶ 20, 22-27, 30-27, 39-43, 45, 47-
48, 54-64, 66; Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-16, 20:11-
21:25, 22:11-23:19, 30:11-31:5, 41:20-42:9, 47:15-48:4, 52:3-5, 58:13-21, 73:17-23, 111:2-17,
383:18-21, 384:18-21, 396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id. Ex. 11, Tracks 3, 6; id.
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Ex. 26 at MARVEL0017350; id. Ex. 41 at MARVEL0017230; see also id. Ex. 2 at 16:13-21,
18:15-19:2, 39:7-13, 61:4-6, 61:12-19, 76:8-78:17, 80:19-25; id. Ex. 3 at 28:5-15, 28:19-29:5,
48:10-49:8, 50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 111:12-14, 112:8-114:11; id. Ex. 5
at 81:8-13, 91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10.
relies on the inadmissible testimony of Evanier and Morrow. See Spiegel, 604 F.3d at 81; see
also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants object to the statement in
Paragraph 150 to the extent it relies on the testimony of Steranko as the declarant has no personal
knowledge of the time period. Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 402; see also Hicks, 593
F.3d at 167. Plaintiffs and Counterclaim-Defendants also object to the statement in Paragraph
150 to the extent it relies on testimony from Steranko as he was not identified as a potential
witness by Defendants and therefore his testimony is inadmissible. Fed. R. Civ. P. 37(c)(1).
151. Between 1958-1963, Kirby did not receive any health benefits or insurance from
Marvel, nor any other employment benefits such as vacation or sick pay. Ev. Dec., Ex. A at 12;
Mor. Dec. Ex. A at 8; Tob. Dec., Ex. E at 79:18-25; Ex. F at 204:6-19; 204:24-205:15; Ex. L at
¶¶ 10-11; Ex. V at 42 8; Colan Dec. at ¶ 8; Adams Dec. at ¶ 10; Ster. Dec. at ¶ 10; Sinn. Dec. at
¶ 9; Ayers Dec. at ¶ 10.
Plaintiffs do not dispute that Jack Kirby did not receive health benefits or health insurance from
Marvel between 1958-1963. However, Plaintiffs and Counterclaim-Defendants object to the
statement in Paragraph 151 to the extent it relies on the inadmissible testimony of Evanier and
Morrow and inadmissible hearsay to Ex. V to the Toberoff Decl. See Spiegel, 604 F.3d at 81;
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see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants also object to Defendants’
152. Between 1958-1963, if artwork page(s) submitted by Kirby were rejected by

Marvel, Kirby was not compensated for the pages and his time and expense in creating the pages.
Ev. Dec., Ex. A at 1-4, 12; Mor. Dec., Ex A at 3, 8-10; Ex. B; Tob Dec., Ex. B at 50:20-51:25;
61:24-62:9; Ex. C at 136:7-138:22; 140:19-141:3; Ex. D at 89:13-92:5; 138:11-139:4; 178:5-13;
180:4-182:12; Ex. E at 71:17-72:7; 73:11-74:5; 76:25-77:6; 77:20-79:4; 103:7-105:17; Ex. F at
123:18-125:9; Ex. G at 57:19-58:21; 62:19-63:6; 234:12-235:5; 235:6-236:1; Ex. H at 37:6-19;
Ex. I at 17:17-25; Ex. J at 367:15-369:16; 371:3-18; 372:8-10; 396:1-14; Ex. N, Ex. O at 71-74;
Ex. P, Ex. Q; Ex. R; Ex. S; Ex. V at 396; Colan Dec. ¶¶ at 8, 9; Adams Dec. at ¶¶ 8-12; Ster.
Dec. at ¶¶ 8-14; Sinn. Dec. at ¶ 11; Ayers Dec. at ¶ 11.
RESPONSE: As was Marvel’s policy, Jack Kirby was paid his agreed per-page rate for all the
completed assignments that he submitted to Marvel between 1958-1963, even if the pages were
not used for publication. See 56.1 Stmt. ¶¶ 45, 47, 61-62; Singer Decl. Ex. 1 at 18:6-16, 30:11-
31:5, 376:3-22; id. Ex. 4 at 30:10-12; see also id. Ex. 2 at 32:2-5. Further, the citations to
Toberoff Decl. Exhibits E-F and P-R refer to artwork produced outside of the Time Period and/or
as to which no information has been provided regarding the timing of their creation or whether
they were even submitted to Marvel for publication, and are therefore irrelevant. Fed. R. Evid.
402. Additionally, Defendants’ citations to Exhibits E, F, I, and N-S do not support the stated
facts. Plaintiffs and Counterclaim-Defendants also object to the statement in Paragraph 152 to
the extent it relies on the inadmissible testimony of Evanier and Morrow, as both Evanier and
Morrow testified that they have no firsthand knowledge as to Marvel’s payments to Jack Kirby
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for his work and rely only on hearsay for their statements in that regard, as well as inadmissible
hearsay in Exhibits N-O, S and V to the Toberoff Decl. See Spiegel, 604 F.3d at 81; Toberoff
Decl. Ex. B at 57:20-58:4; id. Ex. C at 136:7-17, 140:19-141:8; id. Ex. D at 89:13-92:25; Singer
Decl. Ex. 8 at 59:5-21; Supp. Singer Decl. Ex. 63 at 180:4-183:8, 211:3-213:25, 217:13-219:9,
222:5-224:2, 225:7-8, 225:15-227:14; see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-
Defendants also object to the statements in Paragraph 152 to the extent they rely on the
testimony of Neal Kirby and Susan Kirby, neither of whom has personal knowledge of whether
Jack Kirby was paid for pages he submitted to Marvel during the Time Period. Toberoff Decl.
Ex. G at 58:4-7, 62:12-63:1; id. Ex. H at 37:6-16; Supp. Singer Decl. Ex. 61 at 65:1-5, 100:2-22
(knowledge of Marvel’s purported failure to pay Kirby for certain sketches based on “family
discussion”); id. Ex. 62 at 38:2-9. Plaintiffs and Counterclaim-Defendants further object to
153. Between 1958-1963, Kirby was not paid for submitted artwork Marvel requested
him to redraw. Ev. Dec., Ex A at 12; Mor. Dec., Ex. A at 8-9; Tob Dec., Ex. B at 61:24-62:9; Ex
C at 136:7-138:22; Ex. E at 76:25-77:6; 77:20-79:4; Ex. G at 57:18-58:21; 62:19-63:6; 234:12-
236:1; Ex. H at 37:6-19; Ex. V at 396; Ex. Z; Sin. Dec., ¶ 13; Colan Dec. at ¶ 9; Ster. Dec. at
¶ 14; Adams Dec. at ¶¶ 11-12; Ayers Dec. at ¶ 11.
RESPONSE: As was Marvel’s policy, Jack Kirby was paid his agreed per-page rate for all the
completed assignments that he submitted to Marvel between 1958-1963, even if he had to redraw
or make changes to the pages. See 56.1 Stmt. ¶¶ 45, 48, 61-62; Singer Decl. Ex. 1 at 376:3-22;
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see also id. Ex. 2 at 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; id. Ex. 4 at 30:10-12. Moreover,
Defendants’ citations to Toberoff Decl. Exhibits E, V, and Z do not support these stated facts.
Plaintiffs and Counterclaim-Defendants object to the statements in Paragraph 153 to the extent
they rely on the inadmissible testimony of Evanier and Morrow, as both Evanier and Morrow
testified that they have no firsthand knowledge as to Marvel’s payments to Jack Kirby for his
work and rely only on hearsay for their statements in that regard, as well as inadmissible hearsay
in Exhibits V and Z to the Toberoff Decl. See Spiegel, 604 F.3d at 81; Toberoff Decl. Ex. B at
57:20-25; id. Ex. C at 136:7-17, 140:19-141:8; id. Ex. D at 89:13-92:25; Singer Decl. Ex. 8 at
59:5-21; Supp. Singer Decl. Ex. 63 at 180:4-183:8, 211:3-213:25, 217:13-219:9, 222:5-224:2,
225:7-8, 225:15-227:14; see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants
also object to the statements in Paragraph 153 to the extent they rely on the testimony of Neal
Kirby and Susan Kirby, neither of whom has personal knowledge of whether Jack Kirby was
paid for pages he submitted to Marvel during the Time Period. Toberoff Decl. Ex. G at 58:4-7,
62:12-63:1; id. Ex. H at 37:6-16; Supp. Singer Decl. Ex. 61 at 65:1-5, 100:2-22; id. Ex. 62 at
38:2-9. Plaintiffs and Counterclaim-Defendants further object to Defendants’ citations to the
irrelevant Adams Decl. and Steranko Decl. as neither declarant has any firsthand knowledge of
Marvel’s practices during the Time Period. Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 402; see also
Hicks, 593 F.3d at 167. Finally, Plaintiffs and Counterclaim-Defendants object to the statement
in Paragraph 153 to the extent it relies on testimony from Steranko and Sinnott, as neither was
identified as a potential witness by Defendants and therefore their testimony is inadmissible.
Fed. R. Civ. P. 37(c)(1).
154. Marvel was not legally obligated to purchase any of the artwork submitted by
Kirby between 1958-1963. Ev. Dec., ¶¶ 17, 19-20; Ex A at 11-12; Ex. B; Ex. C; Mor. Dec., Ex.
A at 8-10; Tob Dec., Ex. B at 56:2-57:19; 58:10-23; 61:24-62:9; Ex. C at 23:4-24:4; 105:15-17;
136:7-138:22; 140:19-141:3 Ex. D at 178:5-13: Ex. E at 71:17-72:7; 72:22-73:8; 73:11-74:5;
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76:25-79:4; Ex. F at 194:11-21; 204:6-19; 204:24-205:15; 205:19-207:11; Ex. J at 256:25-

257:25; 367:15-369:16; 371:3-18; 372:8-10; 396:1-14; Ex. V at 396, 407, 428; Ex. L at ¶¶ 1-4,
10, 11, 13; Colan Dec. at ¶¶ 8-14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at
¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
states a legal conclusion and not a statement of undisputed fact. Schwapp, 118 F.3d at 111.
Plaintiffs and Counterclaim-Defendants also object to this statement to the extent it relies on the
inadmissible testimony of Evanier and Morrow and inadmissible hearsay in Ex. V to the
Toberoff Decl and Exs. B and C to the Evanier Decl. See Spiegel, 604 F.3d at 81; see also
Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants further object to the citations to the
Evanier Decl. for the additional reason that they are outside the scope of Evanier’s expert report
and are therefore inadmissible and cannot be used to dispute facts. Fed. R. Civ. P. 37(c)(1); Fed.
R. Civ. P. 26(a)(2)(B); see also Highland Capital Mgmt., 551 F. Supp. 2d at 182. Plaintiffs and
Counterclaim-Defendants further object to Defendants’ citations to the irrelevant Adams Decl.
and Steranko Decl. as neither declarant has any firsthand knowledge of Marvel’s practices during
the Time Period. Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 402; see also Hicks, 593 F.3d at 167.
Finally, Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 154 to the
extent it relies on testimony from Steranko and Sinnott, as neither was identified as a potential
witness by Defendants and therefore their testimony is inadmissible. Fed. R. Civ. P. 37(c)(1).
Plaintiffs and Counterclaim-Defendants further state that freelance artists and writers, such as
Jack Kirby, contributed to Marvel’s comic books pursuant to assignments from Stan Lee, who
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directed their creation, and the artists and writers were then compensated by Marvel for their
work on an agreed per-page basis for all completed assignments that were submitted. See 56.1
Stmt. ¶¶ 20, 22-27, 30-27, 39-43, 45, 47-48, 54-64, 66; Singer Decl. Ex. 1 at 15:9-20, 15:22-
16:10, 16:14-19, 17:17-25, 18:6-16, 20:11-21:25, 22:11-23:19, 30:11-31:5, 41:20-42:9, 47:15-
48:4, 52:3-5, 58:13-21, 73:17-23, 111:2-17, 383:18-21, 384:18-21, 396:1-10; id. Ex. 4 at 14:5-
15:15, 23:18-21; id. Ex. 11, Tracks 3, 6; id. Ex. 26 at MARVEL0017350; id. Ex. 41 at
MARVEL0017230; see also id. Ex. 2 at 16:13-21, 18:15-19:2, 39:7-13, 61:4-6, 61:12-19, 76:8-
78:17, 80:19-25; id. Ex. 3 at 28:5-15, 28:19-29:5, 48:10-49:8, 50:5-53:20, 56:12-57:24, 58:6-
59:21, 61:17-62:5, 111:12-14, 112:8-114:11; id. Ex. 5 at 81:8-13, 91:22-92:6, 127:19-128:5,
170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10.
155. Between 1958-1963, Kirby was free to, and in fact did, pitch and sell work to
other publishers while he was selling work to Marvel, as did other freelance artists that worked
with Marvel. Ev. Dec. ¶ 18; Mor. Dec., Ex. A at 9-10; Tob. Dec., Ex. D at 177:11-15; Ex. W at
5, 6, 18, 19, 21, 25, 55, 80-81, 84-85; Ex. X at 18462-18466; Ex. Y at 129; Colan Dec. at ¶¶ 8-
14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
Moreover, the facts in Paragraph 155 are not material to the motion for summary judgment
F.3d at 311. Defendants have cited no admissible evidence to support the statement that Kirby
was free to “sell” artwork to other publishers and Defendants’ citations do not support the
statement that other freelance artists were free to “sell” artwork to other publishers. Plaintiffs
and Counterclaim-Defendants further object to this statement to the extent it relies on the
inadmissible testimony of Evanier and Morrow as well as inadmissible hearsay in Exhibits W, X,
and Y to the Toberoff Decl. See Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70. Plaintiffs
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and Counterclaim-Defendants also object to the citations to the Evanier Decl. for the additional
reason that they are outside the scope of Evanier’s expert report and are therefore inadmissible
and cannot be used to dispute facts. Fed. R. Civ. P. 37(c)(1); Fed. R. Civ. P. 26(a)(2)(B); see
also Highland Capital Mgmt., 551 F. Supp. 2d at 182. Plaintiffs and Counterclaim-Defendants
also object to Defendants’ citation to Exhibit Y to the Toberoff Decl., as the cited document was
not produced in discovery in this action and thus may not be considered on summary judgment.
See Melie, 2009 WL 1404325, at *1 n.4. Plaintiffs and Counterclaim-Defendants further object
to Defendants’ citations to the irrelevant Adams Decl. and Steranko Decl. as neither declarant
has any firsthand knowledge of Marvel’s practices during the Time Period. Fed. R. Civ. P.
56(c)(4); Fed. R. Evid. 402; see also Hicks, 593 F.3d at 167. Finally, Plaintiffs and
Counterclaim-Defendants object to the statement in Paragraph 155 as neither Steranko nor
Sinnott was identified as a potential witness by Defendants and therefore their testimony is
Jack Kirby did not “sell work” to Marvel as Kirby contributed to Marvel’s comic books pursuant
to assignments from Stan Lee, who directed the creation of the works, and was then compensated
by Marvel for his work on an agreed per-page basis for all completed assignments that were
submitted. See 56.1 Stmt. ¶¶ 20, 22-27, 30-27, 39-43, 45, 47-48, 54-64, 66; Singer Decl. Ex. 1 at
22:11-23:19, 30:11-31:5, 47:15-48:4, 58:13-21, 111:2-17, 383:18-21, 384:18-21; id. Ex. 11,
Track 3; id. Ex. 41 at MARVEL0017230; see also id. Ex. 2 at 76:8-78:17, 80:19-25; id. Ex. 3 at
111:12-14, 112:8-114:11; id. Ex. 5 at 91:22-92:6, 127:19-128:5, 170:23-171:4; Supp. Singer
Decl. Ex. 59 at 109:3-10.
156. Marvel has no copies of any checks, dated between 1958-1963, with legends on
the back that were issued by Marvel to Kirby, or to any other freelancer, for submitted work.
Tob Dec., Ex. L ¶¶ 2, 4.
125
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RESPONSE: Undisputed.
157. The earliest checks to a freelancer with a legend on the back discovered by the
Kirbys, is from 1973 and was issued to freelancer Stephen Gerber. The legend states, in part,
that the artist is being paid “for my assignment to [Marvel] of any copyright, trademark and any
other rights in or related to the material, and including my assignment of any rights to renewal
copyright,” and nowhere mentions the phrase “work for hire” or “work made for hire.” Tob.
Dec., Ex. LL at Ex. C; Colan Dec. at ¶ 12; Adams Dec. at ¶¶ 14; Ster. Dec. at ¶ 12; Sinn. Dec. at
¶¶ 13-14; Ayers Dec. at ¶ 14. See Tob. Conf. Dec., Exs. 10-13.
RESPONSE: The facts in Paragraph 157 are not relevant and are not material to the motion for
summary judgment because the cited check is from outside the Time Period and because it will
not “affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see also
Fed. R. Evid. 402. Plaintiffs and Counterclaim-Defendants further object to Defendants’
402; see also Hicks, 593 F.3d at 167. Plaintiffs and Counterclaim-Defendants also object to the
statement in Paragraph 157 to the extent it relies on testimony from Steranko and Sinnott, as
while no paychecks from the Time Period have survived, all of Marvel’s witnesses, each of
whom was a freelance artist or writer in the 1950s and 1960s, testified that during that time,
Marvel’s payroll checks bore a legend stating that the freelance artists and writers retained no
rights in the work for which they were being paid. See 56.1 Stmt. ¶ 53; Singer Decl. Ex. 1 at
28:20-29:11; id. Ex. 2 at 64:14-65:19, 65:24-66:4, 66:24-67:14, 67:17-20, 273:24-274:11; id. Ex.
3 at 71:17-72:19, 229:4-25; id. Ex. 4 at 31:17-21, 32:4-33:8.
158. The earliest checks to a freelancer with a legend on the back, produced by Marvel
in this action, are from 1974. These checks have the same legend as the Gerber check and
nowhere mention the phrase “work for hire” or “work made for hire.” Tob. Dec., Ex. E at
126
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100:21-101:9; Ex. F at 65:17-66:4; Ex. J at 396:1-14; Ex. K at 232:5-10; Ex. L at ¶¶ 2, 4; Ex. AA

at 14603; Ex. T; Colan Dec. at ¶ 12; Adams Dec. at ¶ 14; Ster. Dec. at ¶ 12; Sinn. Dec. at ¶¶ 13-
14; Ayers Dec. at ¶ 14.
summary judgment because the cited checks are from outside the Time Period and because it
will not “affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see
also Fed. R. Evid. 402. Plaintiffs and Counterclaim-Defendants do not dispute that the earliest
checks produced by Marvel in this action are from 1974 and include the language quoted in
Paragraph 158. However, the full legend on the back of such checks states: “By endorsement of
this check: I, the payee, acknowledge full payment for my employment by Magazine
Management, Co., and for my assignment to it of any copyright, trademark, and any other rights
in or related to the material, and, including my assignment of any rights to renewal copyright.”
Toberoff Decl. Ex. AA at MARVEL0014603. Plaintiffs and Counterclaim-Defendants object to
Fed. R. Evid. 402; see also Hicks, 593 F.3d at 167. Plaintiffs and Counterclaim-Defendants also
object to the statement in Paragraph 158 to the extent it relies on testimony from Steranko and
Sinnott, as neither was identified as a potential witness by Defendants and therefore their
testimony is inadmissible. Fed. R. Civ. P. 37(c)(1). Plaintiffs and Counterclaim-Defendants
further state that while no paychecks from the Time Period have survived, all of Marvel’s
witnesses, each of whom was a freelance artist or writer in the 1950s and 1960s, testified that
during that time, Marvel’s payroll checks bore a legend stating that the freelance artists and
writers retained no rights in the work for which they were being paid. See 56.1 Stmt. ¶ 53;
Singer Decl. Ex. 1 at 28:20-29:11; id. Ex. 2 at 64:14-65:19, 65:24-66:4, 66:24-67:14, 67:17-20,
273:24-274:11; id. Ex. 3 at 71:17-72:19, 229:4-25; id. Ex. 4 at 31:17-21, 32:4-33:8.
127
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159. The first check produced by Marvel with a legend, mentioning “work for hire” or
“work made for hire,” is from 1986, after the explicit new “work for hire” provisions in section
101 of the Copyright Act of 1976 became effective on January 1, 1978; and this check appears to
be for traditional employment. Tob Dec. Ex. BB; Colan Dec. at ¶ 12; Adams Dec. at ¶ 14; Ster.
Dec. at ¶ 12; Sinn. Dec. at ¶¶ 13-14; Ayers Dec. at ¶ 14.
summary judgment because the cited check is from outside the Time Period and because it will
not “affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see also
Fed. R. Evid. 402. Plaintiffs do not dispute that the first check produced by Marvel in this action
containing a legend that explicitly states “work for hire” or “work made for hire” was issued in
1986. However, this fact is not relevant and is not material to the motion for summary judgment
because the cited check is from outside the Time Period and because it will not “affect the
outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see also Fed. R. Evid.
402. Further, Plaintiffs object to the use of the phrases “explicit new work for hire provisions”
and “appears to be for traditional employment” to the extent that such terminology states a legal
conclusion and not statements of undisputed fact. Schwapp, 118 F.3d at 111. Plaintiffs and
Counterclaim-Defendants object to Defendants’ citations to the irrelevant Adams Decl. and
Steranko Decl. as neither declarant has any firsthand knowledge of Marvel’s practices during the
Time Period. Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 402; see also Hicks, 593 F.3d at 167.
Finally, Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 154 to the
extent it relies on testimony from Steranko and Sinnott, as neither was identified as a potential
witness by Defendants and therefore their testimony is inadmissible. Fed. R. Civ. P. 37(c)(1).
Plaintiffs and Counterclaim-Defendants further state that while no paychecks from the Time
Period have survived, all of Marvel’s witnesses, each of whom was a freelance artist or writer in
the 1950s and 1960s, testified that during that time, Marvel’s payroll checks bore a legend
stating that the freelance artists and writers retained no rights in the work for which they were
128
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being paid. See 56.1 Stmt. ¶ 53; Singer Decl. Ex. 1 at 28:20-29:11; id. Ex. 2 at 64:14-65:19,
65:24-66:4, 66:24-67:14, 67:17-20, 273:24-274:11; id. Ex. 3 at 71:17-72:19, 229:4-25; id. Ex. 4
at 31:17-21, 32:4-33:8.
160. Between 2006-2008, Marvel entered into a number of separate agreements with
the Kirby estate to purchase at a per-page rate unpublished artwork by Jack Kirby for a Fantastic
Four story that Marvel had originally rejected, and various additional pages of rejected
unpublished artwork by Kirby for Thor, Fantastic Four and X-Men. Mor. Dec., Ex. A at 3-4; Ex.
B; Tob. Dec., Ex. D at 91:13-92:5; 138:11-139:4; Ex. P, Ex. Q; Ex. R; Ex. S.
F.3d at 311. Plaintiffs do not dispute that, between 2006-2008, Marvel entered into agreements
with Lisa Kirby as Administrator of the Estate of Jack Kirby regarding certain pieces of Kirby
artwork that were created outside of the Time Period and/or as to which no information has been
provided regarding the timing of their creation or whether they were even submitted to Marvel
for publication by Kirby. Defendants’ citations do not support the statement that these pieces of
artwork were “originally rejected” by Marvel. Further, Plaintiffs object to the statements in
Paragraph 160 to the extent Defendants’ citations are to the testimony and report of Morrow,
who has no personal knowledge of whether the pieces of artwork were “originally rejected” by
Marvel, see Toberoff Decl. Ex. D at 89:13-92:5, and to a document that was not produced in
discovery in this action. See Morrow Decl. Ex. B. This document may not be considered on
summary judgment. Melie, 2009 WL 1404325, at *1 n. 4. Finally, Plaintiffs object to this
statement to the extent it relies on the inadmissible testimony of Morrow as well as inadmissible
hearsay in Ex. S to the Toberoff Decl. Spiegel, 604 F.3d at 81; see also Docket No. 70.
129
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161. In 1968 Marvel was acquired by Perfect Film that later became Cadence
Industries. Due to Marvel’s loose practices, and the increasing value of comic book characters,
Cadence sought to shore up Marvel’s assets. “Work for hire” became a sudden focus of
insecurity, when the 1976 Copyright Act, effective on January 1, 1978, articulated a detailed
“work for hire” regime. 17 U.S.C. § 101. Cadence/Marvel embarked on a campaign to revise
history by forcing the artists and writers who had supplied it with material to sign statements re-
characterizing all their prior work as “for hire,” decades after its creation. Ev. Dec., Ex. A at 13;
Tob. Dec., Ex. J at 256:25- 257:25; Ex. III, Ex. 3 (“SUPPLIER acknowledges, agrees and
confirms that any and all work…which have been or are in the future created…is expressly
agreed to be considered a work made for hire.”): Singer Dec., Exs. 36 (Romita
Agreement)(same); 37 (Roy Thomas Agreement) (same); Colan Dec. at ¶¶ 13-15; Adams Dec. at
¶¶ 15-16; Ster. Dec. at ¶¶ 15-16; Sinn. Dec. at ¶¶ 13-14; Ayers Dec. at ¶¶ 13-15.
F.3d at 311. Further, Defendants’ citations do not support the statements alleged in Paragraph
161. Plaintiffs and Counterclaim-Defendants object to the statement in Paragraph 161 to the
extent it states a legal conclusion and not a statement of undisputed fact. Schwapp, 118 F.3d at
111. Further, Plaintiffs and Counterclaim-Defendants object to the statements in Paragraph 161
to the extent they rely on the inadmissible testimony of Evanier. See Spiegel, 604 F.3d at 81; see
also Docket No. 67. Plaintiffs and Counterclaim-Defendants also object to Defendants’ citations
to the irrelevant Adams Decl. and Steranko Decl. as neither declarant has any firsthand
130
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162. In mid-1978, Marvel began requiring its artists and writers, if they hoped to
continue working, to sign agreements “that any and all work…which have been or are in the
future created” by them is “to be considered a work made for hire.” Ev. Dec., Ex. A at 13; Tob.
Dec., Ex. J at 256:25-257:25; Ex. III, Ex. 3 (“SUPPLIER acknowledges, agrees and confirms
that any and all work…which have been or are in the future created…is expressly agreed to be
considered a work made for hire.”): Singer Dec., Exs. 36 (Romita Agreement)(same); 37 (Roy
Thomas Agreement) (same); Colan Dec. at ¶¶ 13-15; Adams Dec. at ¶¶ 15-16; Ster. Dec. at
¶¶ 15-16; Sinn. Dec. at ¶¶ 13-14. Ayers Dec. at ¶¶ 13-15.
F.3d at 311. Further, Defendants’ citations do not support the statements alleged in Paragraph
to the extent they rely on the inadmissible testimony of Evanier. See Spiegel, 604 F.3d at 81; see
also Docket No. 67. Plaintiffs and Counterclaim-Defendants also object to Defendants’ citations
to the irrelevant Adams Decl. and Steranko Decl. as neither declarant has any firsthand
163. At or shortly after this time, many of the older freelancers, including Kirby,
sought their original artwork so as to supplement their meager incomes. Marvel used this as
leverage to force them to sign as a condition to the return of their artwork “artwork releases” that
purported to retroactively re-characterize all their material, published by Marvel, as “work for
hire,” decades after its creation. Ev. Dec., Ex. A at 13-14; Mor. Dec., Ex. A at 13-14. Tob. Dec.,
131
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Ex. C at 215:14-216:23; Exs. DD-EE; Colan Dec. at ¶¶ 13-15; Adams Dec. at ¶¶ 15-16; Ster.
Dec. at ¶¶ 15-16; Sinn. Dec. at ¶¶ 13-14; Ayers Dec. at ¶ 15.
F.3d at 311. Moreover, Defendants’ citations do not support the statements alleged in Paragraph
to the extent they rely on the inadmissible testimony of Evanier and Morrow. See Spiegel, 604
F.3d at 81; see also Docket Nos. 67, 70. Plaintiffs and Counterclaim-Defendants also object to
Dated: April 8, 2011 By: /s/ James W. Quinn

New York, New York
WEIL, GOTSHAL & MANGES LLP
James W. Quinn
R. Bruce Rich
Randi W. Singer
Sabrina A. Perelman
767 Fifth Avenue
New York, NY 10153
Tel: (212) 310-8000
Fax: (212) 310-8007
132
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PAUL, HASTINGS, JANOFSKY & WALKER LLP

Jodi A. Kleinick
75 East 55th Street
New York, NY 10022
Tel. (212) 318-6000
Fax: (212) 230-7691
HAYNES AND BOONE, LLP

David Fleischer
30 Rockefeller Plaza, 26th floor
New York, NY 10112
Tel. (212) 659-7300
Fax. (212) 884-7691
Attorneys for Plaintiffs/Counterclaim-Defendants
133
JA2285
CaseCase 11-3333, Document 80,
1:10-cv-00141-CM-KNF 01/26/2012,
Document 110 509520, Page156Page
Filed 04/08/11 of 2911 of 2

------------------------------------------------------X
MARVEL WORLDWIDE, INC.,

MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC,
Plaintiffs, Civil Action No. 10 Civ. 141 (CM) (KNF)
-against-
LISA R. KIRBY, BARBARA J. KIRBY,

NEALL. KIRBY and SUSAN N. KIRBY,
Defendants.
------------------------------------------------------X

NEALL. KIRBY and SUSAN N. KIRBY,
Counterclaim ants,
-against-
MARVEL ENTERTAINMENT, INC.,

MARVEL CHARACTERS, INC.,
MVL RIGHTS, LLC,
THE WALT DISNEY COMPANY,
and DOES I through 10,
Counterclaim-Defendants.
------------------------------------------------------X
REPLY DECLARATION OF SABRINA A. PERELMAN IN FURTHER

SUPPORT OF PLAINTIFFS' AND COUNTERCLAIM-DEFENDANTS'
MOTIONS TO EXCLUDE THE EXPERT REPORTS AND TESTIMONY
OF MARK EVANIER AND JOHN MORROW
I, Sabrina A. Perelman, declare under penalty of perjury as follows:
1. I am an associate at Weil, Gotshal & Manges LLP and am duly admitted to
practice in the State ofNew York and before this Court. Together with the law firms Paul,
Hastings, Janofsky & Walker LLP and Haynes and Boone, LLP, I am counsel to Plaintiffs and
- 1-
JA2286
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 04/08/11 of 2912 of 2
Counterclaim-Defendants Marvel Worldwide, Inc., Marvel Characters, Inc., MVL Rights, LLC,
Marvel Entertainment, LLC (sued herein as Marvel Entertainment, Inc.) and The Walt Disney
Company in this action.
2. Annexed hereto as Exhibit 1 is a true and correct copy of excerpts from the trial
proceedings in In re Marvel Entertainment Group, Inc., No. 97-638-RMM (D. Del.), held on
November 16, 1999, that are cited in the accompanying Reply Memorandum ofLaw in Further
Support of Plaintiffs' and Counterclaim-Defendants' Motions to Exclude the Expert Reports and
Testimony of Mark Evanier and John Morrow, and produced by Marvel as part of discovery in
this proceeding and identified by the bates numbers MARVEL0016713-815.
I declare under penalty of perjury that the foregoing facts are true and correct. This
declaration was executed on the 8th day of April, 2011 in New York, New York.
- 2-
JA2287
Case Case 11-3333, Document Document
1:10-cv-00141-CM-KNF 80, 01/26/2012,
110-1509520, Page158 of
Filed 04/08/11 2911 of 4
Page
EXHIBIT 1
JA2288
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Filed 04/08/11 2912 of 4
Page
B-1
1 - VOLUME B -
2 IN THE UNITED STATES DISTRICT COURT
3 IN AND FOR THE DISTRICT OF DELAWARE
5 IN RE: Chapter 11 Case
6 MARVEL ENTERTAINMENT GROUP INC. , THE

ASHER CANDY COMPANY, FLEER CORP.,
7 FRANKL. FLEER CORP., HEROES WORLD Case No. 97-638-RRM
DISTRIBUTION INC., MALIBU COMICS
B ENTERTAINMENT INC., MARVEL CHARACTERS:
INC., MARVEL DIRECT MARKETING INC.,
9 and SKYBOX INTERNATIONAL INC.
0 Debtors.
11
12 Wilmington, Delaware
Tuesday, November 16, 1999
13 At 10:05 a.m.
14
15 BEFORE: HONORABLE RODERICK R. McKELVIE, U.S.D.C.J.
16
17 APPEARANCES:
18
PEPPER HAMILTON LLP
19 BY: DAVID B. STRATTON, ESQ.
20 -and-
21 BATTLE FOWLER LLP

BY: DAVID FLEISCHER, ESQ. and
22 JODI KLEINICK, ESQ.
(New York, New York}
23
Counsel for Marvel Enterprises, Inc.
24
25 Brian P. Gaffigan
Official Court Reporter
CONFIDENTIAL MARVEL0016713
JA2289
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Page
B-214
Evanier - direct
1 community of what he relies on to show that general industry
2 practice, if that is the direction you are headed.
3 BY MR. DILIBERTO:
4 Q. Okay. Mr. Evanier, in the late 1960s through December
5 31, 1977, are you aware of any custom or practice in the
6 comic book industry that gave comic book companies ownership
7 of materials they published?
8 A. on only a company-by-company basis, what specific

9 companies may have issued.
10 MR. FLEISCHER: Your Honor, I'll object to this
11 because it's beyond the scope of the report. Mr. Evanier,
12 in his report, gave opinions on that subject matter but was

13 unspecific as to time. And in his deposition, he indicated
14 that his report was not time specific. And, therefore, any
15 testimony that he gives with respect to these time specific
16 questions would be beyond the scope of his report.
17 THE COURT: Overruled.
18 MR. DILIBERTO: Thank you, your Honor.
19 BY MR. DILIBERTO:
20 Q. You were saying?

21 A. Where was I? I'm lost.
22 Q. Okay. Yes. The question was, are you aware of any
23 comic book industry custom or practice between the late 1960s
24 to December 31 of 1977 that would have given comic book
25 companies ownership of any characters and stories that they
CONFIDENTIAL MARVELOO 16739
JA2290
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Page
B-215
Evanier - direct
1 published?
2 A. Not an industry-wide practice, no.
3 Q. Did the issue of ownership of characters and stories

4 vary by different companies?
5 A. Yes, it did.
6 Q. In what way?
7 A. Different companies had different forms, different

B documents. Some had none whatsoever. Different policies.
9 Q. so when you see, for example, Joe Simon's. complaint,

10 is that something you rely upon in forming your opinion as to
11 whether creators had gi~en a price to characters?
12 A. I had that opinion before I saw the Joe Simon
13 complaint but, yes, in this particular case, this, the Joe
14 Simon situation here as evidenced in this document presents
15 a complete new situation -- let me take that back. There
16 were other examples of it, but there were quite a few --

17 there were quite a few cases where business was done very
18 different. There were no lawsuits of this kind of other
19 characters. It was specific to the Captain America.
20 Q. so is it your opinion then that creators believed that
21 they own rights to characters unless they transferred rights
22 of those characters?
23 A. I believe so, yes.
24 Q. Can you give other examples of creators who were
25 attempting to enforce rights on their characters, say, in the
CONFIDENTIAL MARVEL0016740
JA2291
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 04/08/11 of 2911 of 4

2049 Century Park East, Suite 3630
Los Angeles, CA 90067
Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com
Attorneys for Defendants Lisa R. Kirby, Barbara J.

Kirby, Neal L. Kirby and Susan M. Kirby


MARVEL CHARACTERS, INC. and Civil Action No. 10-141 (CM) (KF)
MVL RIGHTS, LLC,
REPLY DECLARATION OF MARC
Plaintiffs, TOBEROFF IN SUPPORT OF
DEFENDANTS’ MOTION FOR
-against- SUMMARY JUDGMENT
LISA R. KIRBY, BARBARA J. KIRBY, [Hon. Colleen McMahon]

NEAL L. KIRBY and SUSAN M. KIRBY,
[ECF Case]
Defendants.

Counterclaimants,
-against-

MARVEL CHARACTERS, INC., MVL
RIGHTS, LLC, THE WALT DISNEY
COMPANY and DOES 1 through 10,
JA2292
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 04/08/11 of 2912 of 4
I, Marc Toberoff, hereby declare as follows:
1. I am familiar with the facts set forth below and make this declaration in
further support of defendants’ Motion for Summary Judgment. The facts set forth herein
are known to me of my own personal firsthand knowledge and, if called as a witness, I
could and would testify competently thereto under oath.
2. I am an attorney and the founding partner of Toberoff & Associates, P.C.,
located at 2049 Century Park East, Suite 3630, Los Angeles, California, 90067.
3. My firm represents Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and
Susan M. Kirby (the “Kirbys”), the children of legendary comic book artist and writer
Jack Kirby.
4. Attached hereto as “Exhibit 1” are true and correct copies of excerpts from
the book “Five Fabulous Decades of the World’s Greatest Comics: Marvel” by Les
Daniels, which was marked as Exhibit 38 at the December 8, 2010 deposition of Stan
Lee, which I attended.
the December 8, 2010 deposition of Stan Lee, which I attended.
the December 6, 2010 deposition of Mark Evanier, which I attended.
the October 21, 2010 deposition of John V. Romita, Sr., which I attended.
the October 26-27, 2010 deposition of Roy Thomas, which I attended.
9. Attached hereto as “Exhibit 6” is a true and correct copy of the Notice of
1
JA2293
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 04/08/11 of 2913 of 4
Motion, Memorandum of Points and Authorities, the Declaration of Donald S. Engle and
exhibits “C,” “D,” and “E” attached thereto submitted on November 12, 1980 in the
action Stephen Gerber v. Cadence Industries Corporation, et al., Case No. 80-3840, U.S.
District Court, Central District of California.
I declare under the penalty of perjury that to the best of knowledge the foregoing
is true and correct.

/s/ Marc Toberoff
Dated: April 8, 2011 ___________________________
Marc Toberoff
2
JA2294
1:10-cv-00141-CM-KNF 01/26/2012,
Filed 04/08/11 of 2914 of 4
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing was served electronically by
the Court’s ECF system and by first class mail on those parties not registered for ECF
pursuant to the rules of this court.
Dated: April 8, 2011 TOBEROFF & ASSOCIATES, P.C.

/s/Marc Toberoff
By: __________________________________
Marc Toberoff (MT 4862)

Tel: 310-246-3333
Attorneys for defendants Lisa R. Kirby, Barbara J.

3
JA2295
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Page
EXHIBIT 1
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Page
7'f!)t:) ~
lt£V$~Arl~./
FANTilf~TIC !iUPEA
NERO l¥/t:IFILE$.'
IIEHINP-THE-~ENH
~PYENrl/IIE$.1
JA2297
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Page
JA2298
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Page
Art Direction: David Kaestle, Inc.

Designer: David Vogler
Assistant designer/Production artist: David Wilson
Editor : Judy Fireman
Cover art and chapter dividers: John Romlta
Title lettering: Alex Jay
Comic lettering: Ken Lopez
Super hero profile coloring: Gregory Wright
Endpapers: Tom Morehouse
Archival photography: Eliot R. Brown
Location photography: Michael Melford and Jim McCrary
Merchandise photography: David Arky
Ubrary of Congress Cataloging-in-Publication Data
Daniels, Les. 1943-

Marvel: Five fabulous decades of the world's greatest comics
Les Daniels: introduction by Stan Lee.
288p. em
ISBN 0-8109-3821-9 (cloth)
I. Marvel comics group. 2. Comic books, strips, etc.-United
States-History and criticism. I . TiUe.
PN6725.DJ95 1991
741. 5' 0973-dc20 91-8783
ISBN 0-8109-2566-4 (pbk.)
Copyright ©1991 Marvel Entertainment Group, Inc.

All Rights Reserved under International and Pan-American copyright conventions.
All Marvel characters, all character names and character likenesses

are trademarks of Marvel Entertainment Group, Inc.
Every effort has been made to trace the ownership of all illustrated copyrighted
material for the purpose of giving proper credit. In the event of any question arising
as to the use of any material, we regret any inadvertent error and will be pleased to
make the appropriate acknowledgments in future printings.
Batman, Superman and related indicia are trademarks of DC Comics Inc.

All rights reserved. Used by permission.
Paperback edition published in 1993 by Harry N. Abrams, Incorporated, New York.

A Times Mirror Company. All rights reserved . No part of the contents of this book
may be reproduced without the written permission of the publisher.
Clothbound edition published in 1991 by Harry N. Abrams, Inc.
Printed and bound in Japan
JA2299
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Page
78 COMICS IN CKISIS/ MARVEL
and -white magazine exempt from Code censorship.

Atlas hung on bv a thread.
•
Atlas Shrugged
For a while. Atlas was able to stave off the worst
POKER
ACEt
effects of the general di saster. Becau se Goodman
I
was hi s own di stributor. he wa s independent of the
nervous bu sinessmen who kept some other comic
book companies from getting their book s to the
't' Artist Don Heck's early newsstands. As a result, many of the industry's
work at Marvel Included top talents drifted over to Atla s, but most of them
this series of we ll-crafted
maritime adventures.
didn't stay long . Declining sales meant fewer
From Navy Combat Ill books and lower rates for free-lancers. ''Every time
I'
(June 1955). I took another job I took another cut in pay," says
~~·=~%~e!
»-t \NOQI..C WAR It, THE •SARIU.C:UOA'"'
ANO ns GAU..ANT CREW CH"uc:eo uP
A GR'fA.T RECOQ'D, AND WWEN 'lHE
SUB 'S ilN FISH 6TiiUJCK HOME, YOU
COULD Be SUI2E: "iORPEDO" 1AYl.CQ
WAS ON THE .JOe Ai iHE- f'I"IQJNG
COOlliZOL..~ !
"- Science fiction and fantasy art by Jack Kirh~· (atw_ve)

and Steve Ditko (below) we re Marvel mainsta~·s dunng
the late 1950s. -
JA2300
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80 COMICS IN CRISIS/ MARVEL
John Romita.
Many artists were forced out of the field by eco-
THE VILLAIN TO BEAT: nomic pressures. Bill Everett took a job with a
THE YELLOW CLAW greeting card company. John Buscema, and then
To capitalize on the specter of a Com- Gene Colan, drifted into advertising. "It was a very
munist conspiracy haunting American bad time ," says Colan. "I had the full catastrophe.
minds during the 1950s, Stan Lee I had a house and a family and l just had to do
decided to go all the way and create a whatever else I could." Romita held on as long as
comic book named after a Commie: The possible and then moved over to DC, where long -
Yellow Claw. "We fashioned him after standing conservative fiscal and artistic policies
Fu Manchu," admits Stan Lee, referring
had kept the company in comparatively good
to the famous villain created in 1913 by
British author Sax Rohmer. (In fact, shape. He stayed at DC "doing really dreadful ,
Rohmer also wrote a novel called Yellow mindless romance comics for about eight years."
Claw. but Fu Manchu wasn't in iL) Like By 1955 it looked like Atlas might be nearing the
his literary predecessor, the comic book end of the line.
Yellow Claw was a brilliant scientist; he Oddly enough, it was a group of recent arrivals
also dabbled in the occu lt and had cre- at Atlas who eventually turned things around.
ated an elixir that extended his life Artist Don Heck had arrived in 1954 and was soon
abnormally. enhancing the war books with his vigorous work
After the Korean war, the Red Chinese on characters like "Torpedo'' Taylor. In 1956, artist
were disliked perhaps even more than Steve Ditko brought his unusual drawing style to
the Russians, but The Yellow Claw
the toned-down horror books and turned out a
avoided blatant racism by making its
hero Chinese too. This evenhandedness series of atmospheric fantasies. Most important of
may have been one reason why the all, in 1956 Jack Kirby came back.
comic book lasted only four issues, but Recently separated from his longtime partner
then again, very few bad guys ever got Joe Simon, Kirby was one of the most creative
their own comic books in the first place. forces in the business and he needed the outlet
Revived in the 1960s, the Claw aban- that Atlas could provide. "When I got back they
doned Marxi sm and set out to rule the were practically taking the furniture out of the
world himself. If he hasn't succeeded place," he says, "and I had to stop them. I had to
yet, credit must go to Marvel heroes like have a place to work."
Nick Fury, Captain America and Iron But before things got better, they got worse.
Man, who in recent years have struggled
Atlas, Goodman's distribution arm, was gradually
to thwart hi s nefarious schemes.
becoming a liability. By 1957, because there
weren't many comics to distribute and expenses
were high, Goodman closed down Atlas and
arranged for a deal with the American News
Company, one of the country's largest magazine
distributors. To Goodman it seemed like a good
idea at the time. He didn't realize how far Dr.
Wertham's poison had spread, and he never sus-
pected that American News was itself on the verge
of collapse until suddenly it fell . Catastrophe
turned to cataclysm, and suddenly there seemed to
be no way at all for Goodman to get the comic
books to the customers.
Stan Lee was left alone in a small office with a
backlog of finished art. There was no work for any-
one, not even on a free-lance basis. ''It was very
tough ," says Lee. "These were all people that I'd
worked with. I knew their families. And I was
asked to let everybody go. I don't know why Good-
man kept me on. I guess he just felt that if there
was any chance at all he wouldn't give up the
comics completely."
The Thing that Lived

Top two covers by John Severin; Somehow the company survived , even though it
bottom cover by Bill Everett. was now nameless since the Atlas trademark was
Clutching Claw by Joe Maneely. gone for good. Ingeniously, Goodman made a deal
with rival publisher DC to get his few remaining
JA2301
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Filed 04/08/11 of 2911 of 11
EXHIBIT 2
JA2302
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Filed 04/08/11 of 2912 of 11
Confidential Pursuant to Protective Order
Page 150
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3
4 MARVEL WORLDWIDE, INC.,

5 and MVL RIGHTS, LLC,
6 Plaintiffs,
7 vs. )Case No. 10-141-CMKF

)
8 LISA R. KIRBY, BARBARA J.
KIRBY, NEAL L. KIRBY and
9 SUSAN N. KIRBY,
10 Defendants.
11
12
13
14
15 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER

16 VOLUME II
17 DEPOSITION OF STAN LEE
18 LOS ANGELES, CALIFORNIA
19 WEDNESDAY, DECEMBER 8, 2010
20
21
22
23
REPORTED BY:
24 Alejandria E. Kate
CSR NO. 11897, HI 448, RPR, CLR
25 JOB NO.: 35197
TSG Reporting- Worldwide 877-702-9580
JA2303
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Page 151
1
5 DECEMBER 8, 2010
6 9:11 A.M.
7
9 Deposition of STAN LEE, held at the offices

10 of VENABLE LLP, 2049 Century Park East, Suite
11 2100, Los Angeles, California, pursuant to
12 agreement before Alejandria E. Kate, a
13 Registered Professional Reporter and
14 Certified Shorthand Reporter of the State of
15 California.
16
17
18
19
20
21
22
23
24
25
JA2304
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114-2 509520, Page175 Page
Filed 04/08/11 of 2914 of 11
Page 152
1 A P P E A RAN C E S:
2
3 ATTORNEY FOR THE PLAINTIFFS:
4 WEIL, GOTSHAL & MANGES
BY: JAMES W. QUINN, ESQ.
5 RANDI W. SINGER, ESQ.
767 Fifth Avenue
6 New York, New York 10153
7 -AND-
8 HAYNES AND BOONE
BY: DAVID FLEISCHER, ESQ.
9 1221 Avenue of the Americas
26th Floor
11
12 ATTORNEY FOR THE DEFENDANTS:

13 TOBEROFF & ASSOCIATES
BY: MARC TOBEROFF, ESQ. I'
f;
14 NICHOLAS C. WILLIAMSON, ESQ.
JEFFREY R. RHOADS, ESQ. (Page 200)
15 2049 Century Park East
Suite 2720
16 Los Angeles, California 90067
17
18 FOR THE WITNESS:
19 GANFER & SHORE
BY: ARTHUR LIEBERMAN, ESQ.
20 (APPEARANCE VIA VIDEO CONFERENCE)
360 Lexington Avenue
21 14th Floor
New York, NY 10017
22
23 ALSO PRESENT:
24 ELI BARD, Marvel Entertainment
25
JA2305
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Page 367
1 Martin was in a pretty gloomy mood that day, and he
2 said to me, 'You know, what they don't realize, they
3 don't realize the risk that I'm taking. Because if the
4 books don't sell, it costs. I lose a lot of money, and
5 I have no guarantee the books will sell. And we have
6 periods for months after month after month where I'm
7 losing money, where the books don't sell. But I don't
8 cut their rate. I don't fire them. I try to keep
9 going as much as possible.' And he gave me this whole
10 thing from the publisher's point of view."
11 This is you speaking.
12 Do you remember saying that at your
13 deposition?
14 A. Yes. Now, I do, yes.
15 Q. I'd like to read you an excerpt from the book
16 "Excelsior: The Amazing Life of Stan Lee," by Stan Lee
17 and George Mair. M-A-I-R.
18 A. Mair, I think.
19 Q. This book was published in 2002.
20 MR. TOBEROFF: And please mark it as
21 Exhibit 48.
22 (Whereupon, Defendants' Exhibit Number
23 LEE 48 was marked for identification.)
24 THE WITNESS: We're only up to 48? It feels
25 like we've done a thousand.
TSG Reporting - Worldwide 877-702-9580
JA2306
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Filed 04/08/11 of 2916 of 11
Page 368
1 BY MR. TOBEROFF:
2 Q. Did you write this book, Mr. Lee?
3 A. I wrote the part that wasn't in italics.
4 Q. And the part in italics was written by
5 George Mair?
6 A. Yeah. George Mair wrote the italics part.
7 Q. Okay. So if you could turn to Page 80, I'd
8 just like to read from the last full paragraph on
9 Page 80.
10 A. Okay.
11 Q. I'll read.
12 "So when a slump would hit, I kept paying our
13 best people to continue doing strips that we really
14 didn't need at the time, knowing we'd eventually have
15 use for them. I simply stored the strips in a large
16 office closet after they were done. To me it was an
17 investment both in people and in inventory.
18 "When Martin one day learned of all the
19 material I had been accumulating for later use, he took
20 an extremely dim view of what I had done. In fact, a
21 dim view is putting it mildly. For starters, he told
22 me that he was running a business and not a charitable
23 institution. Then as he kept warming to the subject, a
24 light suddenly went on inside his head. Martin
25 realized that he had an expensive bullpen being paid
JA2307
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Filed 04/08/11 of 2917 of 11
Page 369
1 every week and a closet full of complete unpublished
2 strips.
3 "He instantly decided he didn't need both. I
4 suppose from a business point of view, it was a
5 rational decision. But I hated it. The bullpen was
6 immediately disbanded. Most of the salaried creative
7 people were let go, while I was ordered to use up all
8 the inventory material.
9 "Martin decided that we would only work with
10 artists and writers on a freelance basis from that day
11 forward, not assigning any strips unless they were
12 definitely scheduled to be used."
13 Do you recall writing that?
14 A. Oh, yes.
15 Q. Is that accurate?
16 A. Yes.
17 Q. And previously you mentioned that in some
18 publicity you would refer to the Marvel bullpen when
19 there wasn't a bullpen.
20 The time when there was not a bullpen refers
21 to the time shortly after all of these Marvel employees
22 were let go; is that right?
23 A. Say that again.
24 Q. Previously, you said that in publicity --
25 A. Yes.
JA2308
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Page 370
1 Q. -- you issued, you would refer to the Marvel
2 bullpen.
3 A. Oh, yeah.
4 Q. And you said at that time there wasn't a
5 bullpen.
6 A. Right.
7 Q. Does that refer to the period when people were
8 working on freelance?
9 A. It referred to all the period. We never had a
10 big bullpen. The kind of bullpen people thought we
11 had.
12 Q. But before all these people were let go --
13 A. Right.
14 Q. -- that you refer to in the passage I just
15 quoted, you did have more employees; correct?
16 A. We had a lot of artists, freelance, that we
17 were keeping busy. And we had -- we had a production
18 person on staff. We had a colorist or so. We had a
19 few people, yeah.
20 Q. But I'm referring to the passage I just read.
21 A. To the what?
22 MR. QUINN: The passage.
23 BY MR. TOBEROFF:
24 Q. This particular passage that I just read.
25 A. Right.
JA2309
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Filed 04/08/11 of 2919 of 11
Page 371
1 Q. I'm not just speaking in general.
2 A. Right.
3 Q. In the passage I just read, you speak about
4 how, because you had stockpiled an inventory of
5 material, Mr. Goodman felt, Why do we have to keep
6 people on salary, and they were fired -- and I'm
7 paraphrasing -- and he said, From now on we're going to
8 work freelance; correct?
9 A. Well, we had very few artists on salary. I
10 think what it might have meant was he had given some
11 artists guarantees. They would get so much work to do
12 each month. Whether we could -- we always used it, but
13 whether we could use it or not.
14 And I think what he meant when he said to me
15 we're just going to go freelance, we would only buy
16 what we needed, and it wouldn't -- I would never have
17 an opportunity to build up an inventory of unused stuff
18 again.
19 Q. And -- but you did have certain artists and
20 writers who were on staff at Marvel before you
21 converted to a complete freelance model; correct?
22 A. Maybe John Romita was on staff, and
23 Marie Severin was on -- I think as a colorist then, or
24 maybe an artist. But that's about all as far as
25 artists go.
JA2310
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Page 372
1 Q. And then they were let go --
2 A. Yes.
3 Q. -- after this edict?
4 A. Yeah. Well, they were no longer -- well, see,
5 again, I don't remember. Romita might have been kept
6 on as art director because we needed somebody to do
7 covers and to do whatever had to be done.
8 But we didn't any longer have guarantees to
9 anybody. And I wasn't just buying things that maybe
10 we'd use and maybe we didn't use.
11 He was just -- he just got very strict with me
12 because I -- I had built up that inventory, which there
13 were strips I liked and I thought we would use them,
14 not realizing the business would be bad and we couldn't
15 publish as many books as we wanted to.
16 Q. I'd like to go to another, Page 94, which is
17 part of this Exhibit 48.
18 A. Got it.
19 Q. You write, "Naturally, as a result of
20 Wertham's War, the market for comic books
21 disintegrated, with artists and writers being fired by
22 the baleful. I was amazed that Martin kept me on, but
23 then he had to have somebody to fire all those other
24 people for him.
25 "Again, it was indescribably difficult for me.
JA2311
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Page 373
1 For a second time I was forced to lay off talented,
2 hardworking people who were more than just fellow
3 employees to me. I remember the dark day when Martin
4 told me, 'Stan, we have to let the whole staff go. I
5 want you to fire everybody.'
6 "I said, 'I can't do that.'
7 "He replied, 'You have to. I'm going to
8 Florida on vacation, and someone's got to do it.' And
9 that was that."
10 Do you remember writing that?
11 A. Yes.
12 Q. Is that accurate?
13 A. Yes.
14 MR. TOBEROFF: All right. I have no further
15 questions, but I reserve the right to ask questions
16 following your redirect, if you have any.
17 MR. LIEBERMAN: Let us take up a conversation
18 because there's something you wanted that I want to
19 talk to Jim about. So it's a good time for a break.
20 Let me talk to Jim, see if we can accommodate you
21 during the break, during a five-minute break.
22 MR. QUINN: Just let me talk to Arthur.
23 MR. LIEBERMAN: Off the record, Counsel?
24 THE WITNESS: Should I sit here?
25 MR. QUINN: You can.
JA2312
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Filed 04/08/11 2911 of 6
Page
EXHIBIT 3
JA2313
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114-3509520, Page184 of
Filed 04/08/11 2912 of 6
Page
Page 1
2 CENTRAL DISTRICT OF NEW YORK
3
5 MARVEL WORLDWIDE, INC., MARVEL

6 CHARACTERS, INC., and MVL RIGHTS,
7 LLC,
8
9 PLAINTIFFS,
10
11 VS. )NO. 10 CV 141 (CM) (KNF)

12
13 LISA A. KIRBY, BARBARA J. KIRBY,

14 NEAL L. KIRBY and SUSAN N. KIRBY,
15
16 DEFENDANTS.
17
18
19 VIDEOTAPED DEPOSITION OF MARK EVANIER

20 LOS ANGELES, CALIFORNIA
21 DECEMBER 6, 2010
22
23
24 REPORTED BY: CHRISTY A. CANNARIATO, CSR #7954, RPR, CRR
25 JOB NO.: 34168
JA2314
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Filed 04/08/11 2913 of 6
Page
Page 2 11
1 fi
fi
2 ~
[1
3
7 December 6, 2010
8 9:35 a.m.
9
10
11
12
13 Deposition of Mark Evanier, taken on behalf of

14 Plaintiffs, held at the offices of Paul Hastings,
15 515 S. Flower Street, 25th Floor, Los Angeles,
16 California, before Christy A. Cannariato,
17 CSR #7954, RPR, CRR.
18
19
20
21
22
23
24
25
JA2315
1:10-cv-00141-CM-KNF 80, 01/26/2012,
114-3509520, Page186 of
Filed 04/08/11 2914 of 6
Page
Page 3 :,
1 A P P E A R A N C E S
2
3 REPRESENTING THE PLAINTIFFS:

4 WEIL, GOTSHAL & MANGES
5 BY: JAMES W. QUINN, ESQ.
6 BY: RAND I W. SINGER, ESQ.
7
767 FIFTH AVENUE
8 NEW YORK, NY 10153
9 -AND-
10 HAYNES AND BOONE
11 BY: DAVID FLEISCHER, ESQ.
12 1221 AVENUE OF THE AMERICAS, 26TH FLOOR
13 NEW YORK, NY 10020
14
15 REPRESENTING THE DEFENDANTS:

17 BY: MARC TOBEROFF, ESQ.
18 2049 CENTURY PARK EAST, SUITE 2720
19 LOS ANGELES, CA 90067
20
21 ALSO PRESENT:
22 ELI BARD, DEPUTY GENERAL COUNSEL MARVEL ENTERTAINMENT
23 CHRIS JORDAN, VIDEOGRAPHER
24
25
JA2316
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Page
Page 231
1 like that in the room helping flesh out whatever ideas you
2 had, change them, and bring in his input.
3 I'm not saying Stan is lying. I'm saying he's
4 choosing his words carefully, remembering a version. I
5 disagree with Stan about some aspects of Marvel history.
6 We've had friendly arguments about certain issues and
7 certain comics and how things came about and how they were
8 published. And sometimes I get him to agree with me. I
9 show him evidence.
10 Q. Well, one thing we've established, during this
11 period from '58 to '63, Stan was there, and you weren't.
12 A. Yes.
13 Q. You say in your expert report at page 15
14 carrying over to 16 that "It is also worth noting that
15 Stan Lee did not create any important characters either
16 before Jack Kirby first worked with Lee or after Jack
17 Kirby stopped working with Lee in 1970."
18 Do you see that bottom of 15 over to 16 in
19 your report?
20 A. Hold on here. Yes, I see that.
21 Q. After he stopped working for Lee in 1970, what
22 successful characters did Kirby create?
23 A. Well, he created a series for DC called The
24 New Gods. Featured a villain called Dark Side, one of the
25 most important villains in Allied DC Comics. Did a book
JA2317
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Page
Page 232
1 called Commandee for DC that ran for quite awhile. He
2 went back to Marvel and created a book called Machine Man,
3 and a book called The Eternals, which they keep reviving
4 both of those. And it had a best-selling series of
5 reprints of those.
6 He created a book -- well, if you want to go
7 through the list, for DC he created The New Gods, The
8 Forever People, Mr. Miracle. Some of these were ideas
9 that he had while he was still at Marvel but they were
10 published first by DC. The Demon, Commandee. He did --
11 and each one of these comics had many, many spin off
12 characters who are now toys and games and even go out to
13 the toy store and buy model figures of an awful lot of
14 these characters that he created for DC in the early 70s.
15 Then he went to work for Marvel, back to
16 Marvel for a while. And he did The Eternals. And I
17 mentioned he did Machine Man. He did -- he went back to
18 Captain America and the Black Panther. And he introduced
19 a lot of supporting characters in those books which have
20 since been used over and over.
21 He then went to work for Pacific Comics, and
22 he did Captain Victory and Silver Star.
23 Q. Anything else?
24 A. There's a lot of other lesser characters.
25 Q. And what's your definition of successful in
JA2318
1:10-cv-00141-CM-KNF 80, 01/26/2012,
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Filed 04/08/11 2911 of 6
Page
EXHIBIT4
JA2319
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114-4509520, Page190 of
Filed 04/08/11 2912 of 6
Page
Page 1
1

4

6 MVL RIGHTS, LLC,
No. 10-141-CMKF
7 Plaintiffs,
8 vs.
9 LISA R. KIRBY, BARBARA J.

KIRBY, NEAL L. KIRBY and
10 SUSAN N. KIRBY,
11 Defendants.
-----------------------------)
12
13
14
15
16
17 CONFIDENTIAL VIDEOTAPED DEPOSITION OF

18 JOHN V. ROMITA
19 Garden City, New York
20 Thursday, October 21, 2010
2l
22
23 Reported by:
24 KRISTIN KOCH, RPR, RMR, CRR, CLR
25 JOB NO. 34124
JA2320
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Filed 04/08/11 2913 of 6
Page
Page 2
1
3
I
4 October 21, 2010 I'
5 9:32 a.m.
6
8 Confidential Videotaped Deposition

9 of JOHN V. ROMITA, held at The Garden City
10 Hotel, 45 7th Street, Garden City,
11 New York, before Kristin Koch, a Registered
12 Professional Reporter, Registered Merit
13 Reporter, Certified Realtime Reporter,
14 Certified Livenote Reporter and Notary
15 Public of the State of New York.
16
17
18
19
20
21
22
23
24
25
JA2321
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Page
Page 3
1
2 A P P E A RAN C E S:
3
5 WEIL, GOTSHAL & MANGES, LLP

6 Attorneys for Plaintiffs
7
767 Fifth Avenue
9 BY: RANDI W. SINGER, ESQ.
10 SABRINA A. PERELMAN, ESQ.
11
12
13 TOBEROFF & ASSOCIATES, P.C.

14 Attorneys for Defendants
16 Los Angeles, California 90067
17 BY: MARC TOBEROFF, ESQ.
18
19
20 ALSO PRESENT:
21
22 ELI BARD, Marvel Entertainment, LLC

23 HENRY MARTE, legal Video Specialist
24 VIRGINIA ROMITA
25
JA2322
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Page
Page 219
1 Romita - Confidential
2 '58 when things started to wind down at Marvel,
3 then you went to DC in 1958. Between 1958 and
4 1963 --
5 A. '64. '65.
6 Q. Between 1958 and the time in mid '65
7 when you went back to Marvel, did you do any
8 work for Marvel?
9 A. No. I wouldn't even answer the
10 phone for the first couple of years.
11 Q. What does that mean?
12 A. Well, at first I didn't want to talk
13 to him. I was mad at him. Secondly, when I
14 did answer the phone, I would ask him how
15 much are you -- I was getting $44 a page to do
16 love stories and I asked Stan -- he would call
17 up and say "come back to Marvel," and I would
18 say, "how much are you paying a page? He said,
19 "$25 a page." I said, "Stan, I have got a kid
20 to raise. I'm not gonna do it," and that was
21 it. I had two kids at the time.
22 Q. So during that period you didn't do
23 any work with Marvel?
24 A. No, absolutely.
25 Q. Just to be clear, when you said
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1 Romita - Confidential
2 "absolutely," "absolutely I did not"?
3 A. Not during that period.
4 Q. Did you work with Jack Kirby between
5 1958 and 1963?
6 A. No.
7 Q. And, again, when was the first time
8 you met Jack Kirby?
9 A. In '65. Sometime between July and
10 January he was in the office and I was
11 introduced to him.
12 Q. That was the story you recounted --
13 A. Where he was correcting someone's
14 art.
15 Q. Do you know what Jack Kirby was paid
16 per page during the years between 1958 and
17 1963?
18 A. I wouldn't have the slightest clue.
19 Q. Did you ever ask Jack Kirby what his
20 business relationship was with Marvel during
21 those years?
22 A. No. We never asked questions like
23 that of each other.
24 Q. I'd like you to turn to -- back to
25 Exhibit 6, which is the big one.
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EXHIBIT 5
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Page 1
1
IN THE UNITED STATES DISTRICT COURT

2 FOR THE SOUTHERN DISTRICT OF NEW YORK
Civil Action No. 10-141 (CM) (KF)
3
4
MARVEL WORLDWIDE, INC., )

5 MARVEL CHARACTERS, INC., )
and MVL RIGHTS, LLC., )
6 )
Plaintiffs, )
7 )
vs. )
8 )
LISA R. KIRBY, BARBARA J. )
9 KIRBY, NEAL L. KIRBY and )
SUSAN N. KIRBY, )
10 )
Defendants. )
11 )
)
12
13
VOLUME I
14
VIDEOTAPED DEPOSITION OF
15
ROY THOMAS
16
17 October 26, 2010
18 10:06 a.m.
19
Holiday Inn Express

20 Orangeburg, South Carolina
21
ANNIE O'HARA, CCR-B-2340, SC Notary

22
23
24
25
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Page 207
3 Case No. 10-141-CMKF
4

6 MARVEL CHARACTERS, INC., and
7 MVL RIGHTS, LLC,
8 Plaintiffs,
9 VS.
10 LISA R. KIRBY, BARBARA J. KIRBY,
11 NEAL L. KIRBY and SUSAN N. KIRBY,
12 Defendants.
13
14
15 Volume II
16 Videotape Deposition of:
17 Roy Thomas
18 Wednesday, October 27, 2010
19 Orangeburg, South Carolina
20
21
22
23
24
25
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1 APPEARANCES:
2 FOR THE PLAINTIFFS:
3 MARVEL WORLDWIDE, INC., MARVEL CHARACTERS,
4 IN.C, and MVL RIGHTS, LLC
5 BY: JODI AILEEN KLEINICK
6 PAUL HASTINGS JANOFSKY & WALKER
7 75 East 55 Street
8 New York, NY 10022
9
1:
10 -AND-
11
12
13 ELI BARD
14 VICE PRESIDENT, DEPUTY GENERAL COUNSEL
15 MARVEL ENTERTAINMENT, INC.
16 417 Fifth Avenue
17 New York, NY 10016
18
19
20
21
22
23
24
25 (Appearances continued:)
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1 FOR THE DEFENDANTS:
2 LISA R. KIRBY, BARBARA J. KIRBY,
3 NEAL L. KIRBY and SUSAN N. KIRBY
4 BY: MARC TOBEROFF
7 Suite 2720
8 Los Angeles, CA 90067
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 Thomas
2 MS. KLEINICK: You made your objection.
3 THE WITNESS: I understand it as being
4 from '65 on, because I wouldn't know anything
5 about an earlier period. I wouldn't have been
6 paying as much attention.
7 BY MS. KLEINICK:
8 Q. Did Kirby receive assignments for
9 particular issues or titles?
10 A. Yes.
11 Q. Who did he get those assignments from?
12 MR. TOBEROFF: Asked and answered.
13 THE WITNESS: He got the assignment from
14 Stan. It might come through Sol Brodski or
15 someone, but it was always from Stan. It was an
16 ongoing, you know, kind of thing. But it had to
17 be renewed every month.
18 BY MS. KLEINICK:
19 Q. Are you aware of any instance where Jack
20 Kirby submitted artwork for an issue for a series
21 that Stan or Sol had not already assigned him to?
22 MR. TOBEROFF: Leading.
23 THE WITNESS: No.
24 BY MS. KLEINICK:
25 Q. And I think you testified that artists
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1 Thomas
2 MS. KLEINICK: Objection.
3 A. It was an advance.
4 It was done for, you know, a certain
5 number of pages, or whatever, and figured on a
6 page rate.
7 Q. Oh. But, and it was --
8 A. Pardon me.
9 Q. Strike that.
10 A. Oh. I'm sorry.
11 Q. So prior to the -- you began working
12 at Marvel in July, 1965, correct?
13 A. Yes.
14 Q. And prior to that -- starting at
15 Marvel -- and the short time you were at DC,
16 prior to that -- you had no experience in the
17 comic book industry?
18 A. No. I had also written -- sometime
19 in the turn of 1965, or -- I'm not sure exactly
20 the date -- how that relates to the Jimmy Olsen
21 story that was also done in that pre-New York
22 period, I wrote two scripts for a smaller
23 company called Charlton Company, that was based
24 in Derby, Connecticut.
25 And I had also submitted one or two
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Tel: 310-246-3333
Fax: 310-246-3101
MToberoff@ipwla.com
Attorneys for Defendants Lisa R. Kirby, Barbara J.


MARVEL WORLDWIDE, INC., Civil Action No. 10-141 (CM) (KF)

MVL RIGHTS, LLC, DEFENDANTS’ REPLY
STATEMENT OF MATERIAL
Plaintiffs, FACTS PURSUANT TO LOCAL
RULE 56.1 IN SUPPORT OF
-against- DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
NEAL L. KIRBY and SUSAN M. KIRBY, [Hon. Colleen McMahon]
Defendants. [ECF Case]

Counterclaimants,
-against-

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Pursuant to Local Civil Rule 56.1 of the Local Rules of the United States District
Court for the Southern District of New York, defendants Lisa R. Kirby, Barbara J. Kirby,
Neal L. Kirby and Susan M. Kirby (“Kirbys”) submit the following Reply Statement of
Undisputed Facts in support of their Motion for Summary Judgment:
1. On September 16, 2009, the Kirbys served Notices of Termination
(“Termination”) pursuant to 17 U.S.C. § 304(c) to recapture their father Jack Kirby’s
copyrights in his works by statutorily terminating all prior grants of copyright therein,
including a 1972 agreement between Jack Kirby and plaintiffs’ predecessor Magazine
Management Co., Inc. Declaration of Marc Toberoff (“Tob. Dec.”), ¶ 4; Ex. A; Ex. M.
Response: Plaintiffs do not dispute that the Notices of Termination
(“Termination Notices”) were served in or around mid-September 2009 or that the
Termination Notices purport to exercise a right under 17 U.S.C. § 304(c) to recapture
certain copyrights to various publications and characters (the “Works”) that Defendants
allege Jack Kirby granted to Magazine Management Co, Inc. However, the 1972
Agreement between Jack Kirby and Magazine Management Co., Inc. did not constitute a
“grant of copyright” from Jack Kirby to Magazine Management Co. Inc. See Declaration
of Randi W. Singer dated February 18, 2011(“Singer Decl.”) Exhibit (“Ex.”) 17 at ¶ 5
(“Kirby acknowledges and agrees that all his work on the MATERIALS, and all his work
which created or related to the RIGHTS, was done as an employee for hire of” Marvel)
Defendants’ Counter-Response: The 1972 agreement drafted by Marvel
and entitled an “Assignment” speaks for itself. In several detailed paragraphs, this 1972
Assignment is primarily devoted to the assignment by Kirby of the copyrights in all the
material he authored, that had been previously published by Marvel. Marvel admitted
1
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that this is the first written agreement it had with Kirby. See Plaintiffs Reply 56.1
Statement (Docket No. 108) at ¶ 147. The one-line belt and suspenders
“acknowledgement” as to “work for hire” is of little significance under Marvel v. Simon,
310 F.3d 280, 292 (2002), where the Second Circuit unequivocally held that Marvel
cannot avoid section 304’s inalienable termination right by re-characterizing a work as
“for hire” years after its creation.
2. On January 8, 2010, plaintiffs Marvel Worldwide, Inc., Marvel
Characters, Inc. and MVL Rights LLC (including predecessors, “Marvel”) sued the
Kirbys, seeking a declaratory judgment that the Termination is invalid on the purported
ground that the subject works, published from 1958-1963, were all “works made for
hire.” See Complaint at 2 (Docket No. 1).
Response: Undisputed.
Defendants’ Counter-Response: No response necessary.
3. In 1954 Fredric Wertham’s book Seduction of the Innocent accused comic
books of “poisoning the minds” of America’s youth. Declaration of John Morrow (“Mor.
Dec.”), Ex. A at 4; Declaration of Mark Evanier (“Ev. Dec.”), Ex. A at 7; Ex. F at 200:4-
201:20.
Response: Plaintiffs do not dispute that Fredric Wertham’s book,
Seduction of the Innocent, was published in 1954 and critiqued the effect of comic books
on children. However, these facts are not material to the motion for summary judgment
because they will not “affect the outcome of the suit under the governing law.” Kinsella
v. Rumsfeld, 320 F.3d 309, 311 (2d Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Further, Plaintiffs object to the statements in Paragraph 3 to the
2
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extent they rely on testimony from Mark Evanier and John Morrow, as their testimony is
inadmissible. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) (all evidence in
support of a summary judgment motion must be admissible); see also Plaintiffs’ And
Counterclaim-Defendants’ Motion To Exclude The Expert Report And Testimony Of
Mark Evanier [Docket No. 67]; Motion By Plaintiffs And Counterclaim- Defendants To
Exclude The Expert Report And Testimony Of John Morrow [Docket No. 70]. The facts
stated in Paragraph 3 are also irrelevant because, among other things, they refer to events
outside the 1958-1963 time period at issue in this case (“the Time Period”). Fed. R.
Evid.402.
Defendants’ Counter-Response: Marvel admits the essential facts set
forth in paragraph 3. Marvel erroneously attempts to limit the court’s review solely to
determinative facts that “‘affect the outcome of the suit under government law.’” While
an issue of fact must be material to the outcome to bar summary judgment, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), that does not mean that on summary
judgment a Court is limited to only considering dispositive facts or evidence. As “work
for hire” turns on the “mutual intent of the parties,” Playboy Enterprises, Inc. v. Dumas,
53 F.3d 549, 556-57 (2d Cir. 1995), this fact is probative of why Marvel in 1957, right
before the Time Period, fired its staff writers and artists, and decided to simply buy
material from freelancers, without any contractual obligations, to limit its financial risk
and to keep its options open. Ev. Dec., Ex A at 7-8; Mor. Dec., Ex. A at 5-6; Tob. Dec.,
Ex. F at 200:4-201:20; Reply Declaration of Marc Toberoff (“Tob. Rep. Dec.”), Ex. 1 at
78-80; Ex. 2 at 367:15-373:13; Declaration of Richard Ayers (“Ayers Dec.”) ¶¶ 6-13;
Declaration of Gene Colan (“Colan Dec.”) ¶¶ 8-9; Declaration of Joe Sinnott (“Sinn.
3
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Dec.”) ¶¶ 9-11; Declaration of Neal Adams (“Adams Dec.”) ¶¶ 7-12; Declaration of
James Steranko (“Ster. Dec.”) ¶¶ 8-14. Moreover, the testimony of Evanier and Morrow
is clearly admissible. See Docket Nos. 84-88. That this paragraph refers to events outside
the Time Period does not mean it has no probative value. Marvel itself relies on
testimony from the individuals John Romita and Roy Thomas, who did not work with
Marvel during the Time Period. Tob. Dec., Ex. 4 at 219:6-220:11; Ex. 5 at 112:3-6;
214:11-13.
4. The resulting public backlash led to Senate hearings on the corrupting
influence of comics, and nearly bankrupted the struggling comic book “industry.” Ev.
Dec., Ex. A at 7; Mor. Dec., Ex. A at 5; Tob. Dec., Ex. F at 200:4-201:20.
Response: Plaintiffs do not dispute that public backlash in the 1950s,
among other things, led to the topic of comic books being included in congressional
hearings being held by the Senate Subcommittee on Juvenile Delinquency, which
contributed to financial difficulties for the comic book industry. However, these facts are
not relevant and are not material to the motion for summary judgment because they will
not “affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311;
see also Fed. R. Evid. 402. Further, Plaintiffs object to these statements to the extent they
rely on the inadmissible testimony of Evanier and Morrow. See Spiegel, 604 F.3d at 81;
see also Docket Nos. 67, 70.
4
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for hire” turns on the “mutual intent of the parties,” Playboy, 53 F.3d at 556-57, this fact
is probative of why Marvel in 1957, right before the Time Period, fired its staff writers
and artists, and decided to simply buy material from freelancers, without any contractual
obligations, to limit its financial risk and to keep its options open. Ev. Dec., Ex A at 7-8;
Mor. Dec., Ex. A at 5-6; Tob. Dec., Ex. F at 200:4-201:20; Tob. Rep. Dec., Ex. 1 at 78-
80; Ex. 2 at 367:15-373:13; Ayers Dec. ¶¶ 6-13; Colan Dec. ¶¶ 8-9; Sinn. Dec. ¶¶ 9-11;
Adams Dec. ¶¶ 9-13; Ster. Dec. ¶¶ 8-14. Moreover, the testimony of Evanier and
Morrow is admissible. See Docket Nos. 84-88. That this paragraph refers to events
outside the Time Period does not mean it has no probative value. Marvel itself relies on
214:11-13.
5. In or about 1957, Marvel fired most of its staff artists and writers that it
had employed. Ev. Dec., Ex. A at 8; Mor. Dec., Ex. A at 5, 8-9; Tob. Dec., Ex. F. at
123:18-125:9; 200:4-201:20; Ex. U at 80.
Response: Plaintiffs do not dispute that Marvel reduced its staff size in the
late 1950s. However, this fact is not relevant and is not material to the motion for
summary judgment because it will not “affect the outcome of the suit under the governing
law.” Kinsella, 320 F.3d at 311; see also Fed. R. Evid. 402. Further, Plaintiffs object to
the statement in Paragraph 5 to the extent it relies on the inadmissible testimony of
5
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Evanier and Morrow as well as inadmissible hearsay in Ex. U to the Declaration of Marc
Toberoff (“Toberoff Decl.”). Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
for hire” turns on the “mutual intent of the parties” Playboy, 53 F.3d at 556-57, this fact
is probative of why Marvel in 1957, right before the Time Period, fired its staff writers
and artists, and decided to simply buy material from freelancers, without any contractual
obligations, to limit its financial risk and to keep its options open. Ev. Dec., Ex A at 7-8;
Mor. Dec., Ex. A at 5-6; Tob. Dec., Ex. F at 200:4-201:20; Tob. Rep. Dec., Ex. 1 at 78-
80; Ex. 2 at 367:15-373:13; Ayers Dec. ¶¶ 6-13; Colan Dec. ¶¶ 8-9; Sinn. Dec. ¶¶ 9-11;
Adams Dec. ¶¶ 9-13; Ster. Dec. ¶¶ 8-14. Moreover, the testimony of Evanier and
Morrow is admissible. See Docket Nos. 84-88. That this paragraph refers to events
outside the Time Period does not mean it has no probative value. Marvel itself relies on
214:11-13.
6. In or around 1956, Kirby began submitting freelance material to
Marvel. Ev. Dec., Ex. A at 9; Mor. Dec., Ex. A at 7.
6
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Response: Plaintiffs do not dispute that Jack Kirby’s contributions to
Marvel’s comic books were done on a freelance basis during the late 1950s and 1960s;
however, Defendants’ citations do not support the stated fact in Paragraph 6. Further,
Plaintiffs object to this statement to the extent it relies on the inadmissible testimony of
Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
forth in paragraph 6. Moreover, the testimony of Evanier and Morrow is admissible. See
Docket Nos. 84-88.
7. Between 1958-1963, Marvel purchased material from freelance artists.
Ev. Dec., Ex. A at 9, 11-14; Mor. Dec., Ex. A at 5-6; Tob. Dec., Ex. C at 23:4-24:4; Ex. E
at 71:17-72:7; 72:22-73:8; 100:21-101:9; Ex. F at 194:11-21; 200:4-201:13; Ex. J at
396:1-4; Ex. K at 232:5-10.
Response: Disputed. Although Plaintiffs do not dispute that Marvel hired
freelance artists and writers during the Time Period, Marvel did not “purchase” material
from freelance artists or writers. Rather, Marvel engaged freelance artists and writers to
contribute to Marvel’s comic books pursuant to assignments from Stan Lee, who directed
their creation, and Marvel compensated the artists and writers for their work on an agreed
per-page basis for all completed assignments that were submitted. See Singer Decl. Ex. 1
at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-16, 20:11-21:25, 22:11-16, 30:11-14,
41:20-42:9, 52:3-5, 73:17-23, 111:2-17, 396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id.
Ex. 11, Tracks 3, 6; id. Ex. 26 at MARVEL0017350; see also id. Ex. 2 at 16:13-21,
18:15-19:2, 39:7-13, 61:4-6, 61:12-19; id. Ex.3 at 28:5-15, 28:19-29:5, 48:10-49:8, 50:5-
53:20, 56:12-57:24, 58:6-59:21, 61:17-62:5, 112:25-113:23; id. Ex. 5 at 81:8-13.
7
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Moreover, Marvel bore the entire financial risk associated with the Works since Marvel
hired all contributors to the Works, such as inkers, letterers and colorists, and paid them
on an agreed per-page basis. Singer Decl. Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5
at 81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230; see also id. Ex. 1 at 31:20-33:7;
id. Ex. 3 at 28:5-15, 50:5-53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic
books were paid at or near the time their completed assignments were submitted, well in
advance of publication, and regardless of whether the completed assignment was
changed, published, or successful. Singer Decl. Ex. 1 at 18:6-16, 30:19-31:5, 42:21-43:2,
376:3-22; id. Ex. 4 at 30:10-12; see also id. Ex. 2 at 16:13-21; 32:2-5; id. Ex. 3 at 68:24-
69:6, 74:19-25; Supplemental Declaration of Randi W. Singer dated March 25, 2011
(“Supp. Singer Decl.”) Ex. 58 at 240:10-241:8; id. Ex. 59 at 73:8-74:2. Further, Marvel
scheduled the printer time well in advance, so if Marvel’s comic books were not ready to
be printed at the designated time, Marvel bore the entire loss. Singer Decl. Ex. 1 at 42:10-
20, 384:22-385:11; see also id. Ex. 3 at 59:22-60:9; id. Ex. 4 at 14:9-15:4. If a comic
book was not successful, Marvel lost money; thus, as publisher and owner of Marvel,
Martin Goodman had the final authority to decide whether to publish or cancel a comic
book if it were not profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-44:2, 97:8-20; see also
id. Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4. Additionally, Defendants’
citations to Toberoff Decl. Exhibits C, F, and J do not support the stated fact in Paragraph
7. Further, Plaintiffs object to the statement in Paragraph 7 to the extent it relies on the
inadmissible testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket
Nos. 67, 70.
8
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forth in paragraph 7, but then proceeds to reargue its entire cross-motion for summary
judgment. Whether Marvel had financial risk in connection with the assembly, printing
and publication of comic books after it decided to purchase material from Kirby in its
sole discretion is irrelevant to the issue of whether Kirby bore the financial risk of his
creations. See Twentieth Century Fox Film Corp. v. Entertainment Distrib., 429 F.3d
869, 881 (9th Cir. 2005) (“expense” test met if that party takes on “all the financial risk”
of the work’s creation) (cited by Marvel); Estate of Hogarth v. Edgar Rice Burroughs,
Inc., 2002 U.S. Dist. LEXIS 4219, at *57 (S.D.N.Y. Mar. 15, 2002); 1 M. Nimmer & D.
Nimmer, Nimmer on Copyright (“Nimmer”) § 5.03[B][2][d] at 5-56.9 n.171c (“Plainly, it
is the expense of creation, rather than publication, that is relevant” to the expense test.).
Marvel admitted that the crux of the “expense” prong is who “b[ears] the entire financial
risk associated with the creation of the Works.” Plaintiffs’ Motion for Summary
Judgment (Docket No. 62) at 17. It is axiomatic that, as Marvel had no pre-existing legal
obligation to pay Kirby for the creation of his material, Kirby, who invested his own
time, overhead and materials in the creation of his work with no financial guarantee from
Marvel, shouldered the financial risk of creating his material. See Undisputed Fact Nos.
11-16, infra. See Reply Memorandum (“Reply”) at 5-9. See also Ayers Dec. ¶¶ 6-13;
Colan Dec. ¶¶ 8-9; Sinn. Dec. ¶¶ 9-11. The Kirbys’ exhibits C, F, and J do support the
statement in paragraph 7, and the testimony of Evanier and Morrow is clearly admissible.
See Docket Nos. 84-88.
8. Between 1958-1963, Kirby produced and sold artwork to Marvel on a
9
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freelance basis only, and was not employed by Marvel. Ev. Dec., Ex. A at 9, 11-12;
Morrow Dec., Ex A at 7-10; Tob. Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-72:7; 72:22-
73:8; Ex. F at 194:11-21; Ex. J at 256:25-257:25; 396:1-14; Ex. L at ¶¶ 1-4, 10, 11, 13.
Response: Disputed. Plaintiffs do not dispute that Jack Kirby submitted
artwork to Marvel on a freelance basis; however, Jack Kirby’s artwork was not “sold” to
Marvel, as Jack Kirby contributed to Marvel’s comic books pursuant to assignments from
Stan Lee, who directed the creation of the works, and was then compensated by Marvel
for his work on an agreed per page basis for all completed assignments that were
submitted. Singer Decl. Ex. 1 at 22:11-23:19,30:11-31:5, 47:15-48:4, 58:13-21, 111:2-17,
383:18-21, 384:18-21; id. Ex. 11, Track 3; id. Ex. 41 at MARVEL0017230; see also id.
Ex. 2 at 76:8-78:17, 80:19-25; id. Ex. 3 at 111:12-14,112:8-114:11; id. Ex. 5 at 91:22-
92:6, 127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10. Moreover,
Marvel bore the entire financial risk associated with the Works since Marvel hired all
contributors to the Works, such as inkers, letterers and colorists, and paid them
on an agreed per-page basis. Singer Decl. Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5
at 81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230; see also id. Ex. 1 at 31:20-33:7;
id. Ex. 3 at 28:5-15, 50:5-53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic
69:6, 74:19-25; Supp. Singer Decl. Ex. 58 at 240:10-241:8; id. Ex. 59 at 73:8-74:2.
Further, Marvel scheduled the printer time well in advance, so if Marvel’s comic books
10
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were not ready to be printed at the designated time, Marvel bore the entire loss. Singer
Decl. Ex. 1 at 42:10-20, 384:22-385:11; see also id. Ex. 3 at 59:22- 60:9; id. Ex. 4 at
14:9-15:4. If a comic book was not successful, Marvel lost money; thus, as publisher and
owner of Marvel, Martin Goodman had the final authority to decide whether to
publish or cancel a comic book if it were not profitable. Singer Decl. Ex. 1 at 19:15-17,
43:3-44:2, 97:8-20; see also id. Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4.
Further, Plaintiffs object to the statement in Paragraph 8 to the extent it relies on the
inadmissible testimony of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket
Nos. 67, 70.
forth in paragraph 8, but then proceeds to reargue its entire cross-motion for summary
creations. See Twentieth Century, 429 F.3d at 881; Estate of Hogarth v. Edgar Rice
Burroughs, Inc., 2002 U.S. Dist. LEXIS 4219, at *57; 1 Nimmer § 5.03[B][2][d] at 5-
56.9 n.171c. Marvel admitted that the crux of the “expense” prong is who “b[ears] the
entire financial risk associated with the creation of the Works.” Plaintiffs’ Motion for
Summary Judgment (Docket No. 62) at 17. It is axiomatic that, as Marvel had no pre-
existing legal obligation to pay Kirby for the creation of his material, Kirby, who invested
his own time, overhead and materials in the creation of his work with no financial
guarantee from Marvel, shouldered the financial risk of creating his material. See
Undisputed Fact Nos. 11-16, infra. See Reply at 5-9. See also Ayers Dec. ¶¶ 6-13; Colan
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Dec. ¶¶ 8-9; Sinn. Dec. ¶¶ 9-11. The testimony of Evanier and Morrow is clearly
admissible. See Docket Nos. 84-88.
9. Marvel did not have a written agreement with Kirby between 1958-1963.
Mor. Dec., Ex. A at 9; Ev. Dec., Ex. A 11; Tob Dec., Ex. C at 23:4-24:4; Ex. E at 71:17-
72:7; 72:22-73:8; 73:11-74:5; 76:25-77:6; Ex. F at 194:11-21; 199:8-200:3; 204:6-19;
204:24-205:15; Ex. J at 256:25-257:25; Ex. L ¶¶ 1, 3; Ex. M.
Response: Undisputed. However, Plaintiffs object to this statement to the
extent it relies on inadmissible testimony of Evanier and Morrow.
Defendants’ Counter-Response: Plaintiffs admit the essential facts set
forth in paragraph 9. The testimony of Evanier and Morrow is admissible. See Docket
Nos. 84-88.
10. The first written agreement between Marvel and Kirby was fully executed
on June 5, 1972. Tob Dec., Ex. L ¶¶1, 3; Ex. M.
11. Between 1958-1963, Kirby worked out of the basement of his own
home, set his own hours, paid his own overhead and insurance and paid all expenses
associated with his creations, including for his own paper, pens, pencils and other
materials, and such expenses were not reimbursed by Marvel. Ev. Dec., Ex. A at 11-12;
Mor. Dec., Ex. A at 8; Tob. Ex. E at 76:4-24; Ex. F at 194:11-21; 199:8-200:3; 210:3-8;
Dec., Ex. G at 90:12-91:15; 92:24-93:11; Ex. H at 9:15-10:9; Ex. CC at K860-61.
Response: Disputed. Although Plaintiffs do not dispute that Kirby
generally worked from his home, set his own hours and paid for art supplies such as
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paper and pencils, and that it was not Marvel’s practice during the Time Period to
reimburse freelance artists for such expenses, Kirby did not pay “all expenses associated
with his creations” as Kirby was paid an agreed per-page rate by Marvel and Marvel bore
all costs associated with publishing the comic books, including hiring other staff to
complete the work that Kirby submitted. Singer Decl. Ex. 1 at 15:9-20, 43:3-44:2, 58:13-
21; id. Ex. 5 at 81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230. Plaintiffs also state
that Kirby often performed work while in Marvel’s offices. Singer Decl. Ex. 5 at 55:18-
56:12; see also id. Ex. 2 at 74:23-75:9; Supp. Singer Decl. Ex. 59 at 110:9-20.
Defendants fail to identify any admissible evidence in the record for its claim that Jack
Kirby paid his own “overhead and insurance.” Further, the facts in Paragraph 11 are not
material to the motion for summary judgment because they will not “affect the outcome
of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs also object to
the statements in Paragraph 11 to the extent they rely on the inadmissible testimony of
Evanier and Morrow as well as inadmissible hearsay in Ex. CC to the Toberoff Decl.
Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
forth in paragraph 11, but then proceeds to reargue its cross-motion for summary
judgment. The facts in paragraph 11 are relevant to the “expense” prong of the “work for
hire” analysis as they show that Kirby, not Marvel, bore the financial risk of creation.
See also Colan Dec. at ¶ 8-9; Adams Dec. at ¶ 7; Ster. Dec. at ¶ 10; Sinn. Dec. at ¶ 9-11;
Ayers Dec. at ¶ 6-13. Marvel erroneously attempts to limit the court’s review solely to
an issue of fact must be material to the outcome to bar summary judgment, Liberty
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Lobby, Inc., 477 U.S. at 248, that does not mean that on summary judgment a Court is
limited to only considering dispositive facts or evidence. Plaintiffs’ proposition that
“Kirby often performed work while in Marvel’s offices” is not supported by the evidence
they cite, and contradicts the record evidence. Tob. Dec., Ex. G at 90:12-15, 92:24-
93:11; Ex. H at 9:15-10:9; Ex. CC at K860-61. Moreover, Plaintiffs have admitted that
they did not provide any insurance to Kirby during the Time Period. Tob. Dec., Ex. L at
¶¶ 10-11. The testimony of Evanier and Morrow is admissible. See Docket Nos. 84-88.
12. Between 1958-1963, Marvel did not withhold payroll taxes or any other
taxes from its payments for the artwork it bought from Kirby. Ev. Dec., Ex. A at 12;
Mor. Dec., Ex A at 8; Tob. Dec., Ex. E at 79:5-14; Ex. F at 15:24-16:24; Ex. L, at ¶ 13.
Response: Disputed. Plaintiffs do not dispute that Marvel did not
withhold any payroll or income taxes from the checks issued to Jack Kirby between
1958-1963. However, Marvel did not “buy” artwork from Jack Kirby. Freelance artists
and writers, such as Jack Kirby, contributed to Marvel’s comic books pursuant to
assignments from Stan Lee, who directed their creation, and the artists and writers were
then compensated by Marvel for their work on an agreed per-page basis for all completed
assignments that were submitted. Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19,
17:17-25, 18:6-16, 20:11-21:25, 22:11-23:19,30:11-31:5, 41:20-42:9, 47:15-48:4, 52:3-5,
58:13-21, 73:17-23, 111:2-17, 383:18-21, 384:18-21, 396:1-10; id. Ex. 4 at 14:5-15:15,
23:18-21; id. Ex. 11, Tracks 3, 6; id. Ex. 26 at MARVEL0017350; id. Ex. 41 at
MARVEL0017230; see also id. Ex. 2 at 16:13-21, 18:15-19:2, 39:7-13, 61:4-6, 61:12-19,
76:8-78:17, 80:19-25; id. Ex. 3 at 28:5-15, 28:19-29:5, 48:10-49:8, 50:5-53:20, 56:12-
57:24, 58:6-59:21, 61:17-62:5, 111:12-14, 112:8-114:11; id. Ex. 5 at 81:8-13, 91:22-92:6,
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127:19-128:5, 170:23-171:4; Supp. Singer Decl. Ex. 59 at 109:3-10. Moreover, Marvel
bore the entire financial risk associated with the Works since Marvel hired all
contributors to the Works, such as inkers, letterers and colorists, and paid them on an
agreed per page basis. Singer Decl. Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5 at
81:8-13, 91:22-92:6; id. Ex. 41 at MARVEL0017230; see also id. Ex. 1 at 31:20-33:7; id.
Ex. 3 at 28:5-15, 50:5-53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic
69:6, 74:19-25; Supp. Singer Decl. Ex. 58 at 240:10-241:8; id. Ex. 59 at 73:8-74:2.
Further, Marvel scheduled the printer time well in advance, so if Marvel’s comic books
were not ready to be printed at the designated time, Marvel bore the entire loss. Singer
Decl. Ex. 1 at 42:10-20, 384:22-385:11; see also id. Ex. 3 at 59:22-60:9; id. Ex. 4 at 14:9-
15:4. If a comic book was not successful, Marvel lost money; thus, as publisher and
owner of Marvel, Martin Goodman had the final authority to decide whether to publish or
cancel a comic book if it were not profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-44:2,
97:8-20; see also id. Ex. 2 at 204:6-19, 242:14-243:8; id. Ex. 3 at 60:22-61:4.
Additionally, facts relating to Marvel’s withholding of taxes are not material to the
motion for summary judgment because they will not “affect the outcome of the suit under
the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs also object to the statement in
Paragraph 12 to the extent it relies on the inadmissible testimony
of Evanier and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
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forth in paragraph 12, but then proceeds to reargues its entire cross-motion for summary
Undisputed Fact Nos. 11-16; Reply at 5-9. See also Ayers Dec. ¶¶ 6-12; Colan Dec. ¶¶
8-9; Sinn. Dec. ¶ 9-11. The testimony of Evanier and Morrow is clearly admissible. See
Docket Nos. 84-88.
13. Between 1958-1963, Kirby did not receive any health benefits or
insurance from Marvel, nor any other employment benefits such as vacation or sick pay.
Ev. Dec., Ex. A at 12; Mor. Dec., Ex. A at 8; Tob. Dec., Ex. E at 79:18-25; Ex. F at
204:6-19; 204:24-205:15; Ex. L at ¶¶ 10-11.
Response: Plaintiffs do not dispute that Jack Kirby did not receive health
benefits or health insurance from Marvel between 1958-1963. However, this fact is not
material to the motion for summary judgment because it will not “affect the outcome of
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the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs also object to the
statement in Paragraph 13 to the extent it relies on the inadmissible testimony of Evanier
and Morrow. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
forth in paragraph 13, but then proceeds to reargues its cross-motion for summary
judgment. The facts in paragraph 13 are relevant to the “expense” prong of the “work for
hire” analysis as they show that Kirby, not Marvel, bore the financial risk of creation. See
also Colan Dec. at ¶ 8; Adams Dec. at ¶ 10; Ster. Dec. at ¶ 10; Sinn. Dec. at ¶ 9; Ayers
Dec. at ¶ 10. Moreover, Plaintiffs have admitted that they did not provide any insurance
or health benefits to Kirby during the Time Period. Tob. Dec., Ex. L at ¶¶ 10-11. The
testimony of Evanier and Morrow is admissible. See Docket Nos. 84-88.
14. Between 1958-1963, if artwork page(s) submitted by Kirby were rejected
by Marvel, Kirby was not compensated for the pages and his time and expense in creating
the pages. Ev. Dec., Ex. A at 1-4, 12; Mor. Dec., Ex A at 3, 8-10; Ex. B; Tob Dec., Ex. B
at 50:20-51:25; 61:24-62:9; Ex. C at 140:19-141:3; Ex. D at 89:13-92:5; 138:11-139:4;
178:5-13; 180:4-182:12; Ex. E at 71:17-72:7; 73:11-74:5; 76:25-77:6; 77:20-79:4; 103:7-
105:17; Ex. F at 123:18-125:9; Ex. G at 57:19-58:21; 62:19-63:6; 234:12-235:5; 235::6-
236:1; Ex. H at 37:6-19; Ex. I at 17:17-25; Ex. N, Ex. O at 71-74; Ex. P, Ex. Q; Ex. R;
Ex. S.
Response: Disputed. As was Marvel’s policy, Jack Kirby was paid his
agreed per page rate for all the completed assignments that he submitted to Marvel
between 1958-1963, even if the pages were not used for publication. Singer Decl. Ex. 1 at
18:6-16, 30:11-31:5, 376:3-22; id. Ex. 4 at 30:10-12; see also id. Ex. 2 at 32:2-5. Further,
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the citations to Toberoff Decl. Exhibits E-F and P-R refer to artwork produced outside of
the Time Period and/or as to which no information has been provided regarding the
timing of their creation or whether they were even submitted to Marvel for publication,
and are therefore irrelevant. Fed. R. Evid. 402. Additionally, Defendants’ citations to
Exhibits E, F, I, and N-S do not support the stated facts and the record actually shows the
opposite to be true. Compare Toberoff Decl. Ex. E at 76:25-77:6 with Singer Decl. Ex. 4
at 30:10-12 (“Q. Did you get paid for all the work you did for Marvel? A. Yes. Yes.”)
and Toberoff Decl. Ex. E at 77:20-79:4 (“Finally, you know, he did like it and I was
allowed to write the script and I got paid for the script.”); Supp. Singer Decl. Ex. 60 at
110:7-18 (stating that the work previously discussed was completed outside of the Time
Period); compare Toberoff Decl. Ex. F at 123:18-125:9 with Singer Decl. Ex. 2 at 32:2-5.
Plaintiffs also object to the statement in Paragraph 14 to the extent it relies on the
inadmissible testimony of Evanier and Morrow, as both Evanier and Morrow testified
that they have no firsthand knowledge as to Marvel’s payments to Jack Kirby for his
work and rely only on hearsay for their statements in that regard, as well as inadmissible
hearsay in Exhibits N-O and S to the Toberoff Decl. Spiegel, 604 F.3d at 81; Toberoff
Decl. Ex. B at 57:20-58:4; id. Ex. C at 136:7-17, 140:19-141:8; id. Ex. D at 89:13-92:25;
Singer Decl. Ex. 8 at 59:5-21; Supp. Singer Decl. Ex. 63 at 180:4-183:8, 211:3-213:25,
217:13-219:9, 222:5-224:2, 225:7-8, 225:15-227:14; see also Docket Nos. 67, 70.
Defendants also object to the statements in Paragraph 14 to the extent they rely on the
testimony of Neal Kirby and Susan Kirby, neither of whom has personal knowledge of
whether Jack Kirby was paid for pages he submitted to Marvel during the Time Period.
Toberoff Decl. Ex. G at 58:4-7, 62:12-63:1; id. Ex. H at 37:6-16; Supp. Singer Decl. Ex.
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61 at 65:1-5, 100:2-22 (knowledge of Marvel’s purported failure to pay Kirby for certain
sketches based on “family discussion”); id. Ex. 62 at 38:2-9.
Defendants’ Counter-Response: Marvel’s statement that it paid for
Kirby artwork it decided to purchase, even if it ultimately did not publish some of the
material for one reason or another, is a red herring. Marvel consistently skirts the
relevant issue of whether it was legally obligated to pay for Kirbys’ submissions in the
first place. The record evidence is overwhelming that Marvel did not pay for freelance
material it did not like and similarly it did not pay for material it wanted Kirby or other
freelancers to redraw. See Ev. Dec., Ex A at 12; Mor. Dec., Ex. A at 8-9; Tob Dec., Ex.
B at 61:24-62:9; Ex C at 136:7-138:15; Ex. E at 76:25-77:6; 77:20-79:4; Ex. G at 57:18-
58:21; 62:19-63:6; 234:12-236:1; Ex. H at 37:6-19; Ex. V at 396; Ex. Z; Colan Dec. at ¶
9; Adams Dec. at ¶ 11-12; Ster. Dec. at ¶ 14; Sinn. Dec. at ¶ 13; Ayers Dec. at ¶ 11.
Marvel’s statement that the Kirbys’ evidence of rejected artwork is from outside the Time
Period is not supported by its citations. For instance, the Kirbys cited to rejected
Incredible Hulk drawings created by Kirby during the Time Period. Tob. Dec. Exs. D at
89:13-91:4; N, O. Additional Kirby artwork that was rejected close to the Time Period is
probative of Marvel’s practices in the Time Period, a fact Marvel has acknowledged by
citing to the testimony of its witnesses, Roy Thomas and John Romita, who did not work
with Marvel during the Time Period. Tob. Dec., Ex. 4 at 219:6-220:11; Ex. 5 at 112:3-6;
214:11-13. See also Colan Dec. at ¶¶ 8, 9; Adams Dec. at ¶¶ 8-12; Ster. Dec. at ¶¶ 8-14;
Sinn. Dec. at ¶ 11; Ayers Dec. at ¶ 11. The testimony of Evanier and Morrow is
admissible. See Docket Nos. 84-88. Both Susan and Neal Kirby have personal
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knowledge about works by their father that were rejected by Marvel. Tob. Dec., Ex. G at
57:18-58:21; 62:19-63:6; 234:12-235:5; 235::6-236:1; Ex. H at 37:6-19.
15. Between 1958-1963, Kirby was not paid for submitted artwork Marvel
requested him to redraw. Ev. Dec., Ex A at 12; Mor. Dec., Ex. A at 8-9; Tob Dec., Ex. B
at 61:24-62:9; Ex C at 136:7-138:15; Ex. E at 76:25-77:6; 77:20-79:4; Ex. G at 57:18-
58:21; 62:19-63:6; 234:12-236:1; Ex. H at 37:6-19; Ex. V at 396; Ex. Z.
Response: Disputed. As was Marvel’s policy, Jack Kirby was paid his
agreed per page rate for all the completed assignments that he submitted to Marvel
between 1958-1963, even if he had to redraw or make changes to the pages. Singer Decl.
Ex. 1 at 376:3-22; see also id. Ex. 2 at 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; id. Ex. 4
at 30:10-12. Moreover, Defendants’ citations to Toberoff Decl. Exhibits E, V, and Z do
not support these stated facts and in fact, the record shows the opposite to be true.
Compare Toberoff Decl. Ex. E at 76:25-77:6 with Singer Decl. Ex. 4 at 30:10-12 and
Toberoff Decl. Ex. E at 77:20-79:4. Plaintiffs object to the statements in Paragraph 15 to
the extent they rely on the inadmissible testimony of Evanier and Morrow, as both
Evanier and Morrow testified that they have no firsthand knowledge as to Marvel’s
payments to Jack Kirby for his work and rely only on hearsay for their statements in that
regard, as well as inadmissible hearsay in Exhibits V and Z to the Toberoff Decl. Spiegel,
604 F.3d at 81; Toberoff Decl. Ex. B at 57:20-25; id. Ex. C at 136:7-17, 140:19-141:8; id.
Ex. D at 89:13-92:25; Singer Decl. Ex. 8 at 59:5-21; Supp. Singer Decl. Ex. 63 at 180:4-
183:8, 211:3-213:25, 217:13-219:9, 222:5-224:2, 225:7-8, 225:15-227:14; see also
Docket Nos. 67, 70. Defendants also object to the statements in Paragraph 15 to the
extent they rely on the testimony of Neal Kirby and Susan Kirby, neither of whom has
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personal knowledge of whether Jack Kirby was paid for pages he submitted to Marvel
during the Time Period. Toberoff Decl. Ex. G at 58:4-7, 62:12-63:1; id. Ex. H at 37:6-16;
Supp. Singer Decl. Ex. 61 at 65:1-5, 100:2-22; id. Ex. 62 at 38:2-9.
Defendants’ Counter-Response: Marvel once again skirts the relevant
issue. The issue is not whether Marvel paid for material once it was redrawn to its liking,
the issue is whether Marvel paid for the material it wanted redrawn, i.e., rejected. The
record evidence is clear that it did not. See Tob. Dec., Ex. E at 76:25-77:6, 77:20-79:4;
Sinn. Dec., ¶ 13; Colan Dec. at ¶ 9; Ster. Dec. at ¶ 14; Adams Dec. at ¶¶ 11-12; Ayers
Dec. at ¶ 11; Singer Dec, Ex. 46 at ¶ 3. Marvel’s erroneous interpretation of the
“expense” prong as the mere payment for material leads to absurd results. Under
Marvel’s “instance and expense” test, the “work for hire” status of material purportedly
owned by Marvel upon creation as its “author” would be undetermined until Marvel
decided to buy the material and Marvel would not own as its “author” those Kirby pages
it did not pay for, but asked Kirby to redraw. Whether or not Defendants’ experts
Morrow and Evanier have percipient knowledge of “Marvel’s payments to Kirby” is
irrelevant. See Docket Nos. 84-88. Both Susan and Neal Kirby have personal knowledge
about works by their father that were rejected by Marvel. Tob. Dec., Ex. G at 57:18-
58:21; 62:19-63:6; 234:12-235:5; 235::6-236:1; Ex. H at 37:6-19.
16. Marvel was not legally obligated to purchase any of the artwork submitted
by Kirby between 1958-1963. Ev. Dec., ¶¶ 17, 19-20; Ex A at 11-12; Ex. B; Ex. C; Mor.
Dec., Ex. A at 8-10; Tob Dec., Ex. B at 56:2-57:19; 58:10-23; Ex. C at 23:4-24:4;
105:15-17; Ex. D at 178:5-13: Ex. E at 71:17-72:7; 72:22-73:8; 73:11-74:5; 76:25-79:4;
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Ex. F at 194: 11-21; 204:6-19; 204:24-205:15; 205:19-207:11; Ex. J at 256:25-257:25;
Ex. V at 396, 407, 428; Ex. L at ¶¶ 1-4, 10, 11, 13.
Response: Plaintiffs object to the statement in Paragraph 16 to the extent
it states a legal conclusion and not a statement of undisputed fact. Further, this statement
is not material to the motion for summary judgment because it will not “affect the
outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311. Plaintiffs object
to this statement to the extent it relies on the inadmissible testimony of Evanier and
Morrow and inadmissible hearsay in Ex. V to the Toberoff Decl. Spiegel, 604 F.3d at 81;
see also Docket Nos. 67, 70. Freelance artists and writers, such as Jack Kirby,
contributed to Marvel’s comic books pursuant to assignments from Stan Lee, who
directed their creation, and the artists and writers were then compensated by Marvel for
their work on an agreed per-page basis for all completed assignments that were
submitted. Singer Decl. Ex. 1 at 15:9-20, 15:22-16:10, 16:14-19, 17:17-25, 18:6-16,
20:11- 21:25, 22:11-23:19, 30:11-31:5, 41:20-42:9, 47:15-48:4, 52:3-5, 58:13-21, 73:17-
23, 111:2-17, 383:18-21, 384:18-21, 396:1-10; id. Ex. 4 at 14:5-15:15, 23:18-21; id. Ex.
11, Tracks 3, 6; id. Ex. 26 at MARVEL0017350; id. Ex. 41 at MARVEL0017230; see
also id. Ex. 2 at 16:13-21, 18:15-19:2, 39:7-13, 61:4-6, 61:12-19, 76:8-78:17, 80:19-25;
id. Ex. 3 at 28:5-15, 28:19-29:5, 48:10-49:8, 50:5-53:20, 56:12-57:24, 58:6-59:21, 61:17-
62:5, 111:12-14, 112:8-114:11; id. Ex. 5at 81:8-13, 91:22-92:6, 127:19-128:5, 170:23-
171:4; Supp. Singer Decl. Ex. 59 at 109:3-10. Moreover, Marvel bore the entire financial
risk associated with the Works since Marvel hired all contributors to the Works, such as
inkers, letterers and colorists, and paid them on an agreed per page basis. Singer Decl.
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Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5 at 81:8-13, 91:22-92:6; id. Ex. 41 at
MARVEL0017230; see also id. Ex. 1 at 31:20-33:7; id. Ex. 3 at 28:5-15, 50:5-
53:20; id. Ex. 11, Track 4. All contributors to Marvel’s comic books were paid at or near
the time their completed assignments were submitted, well in advance of publication, and
regardless of whether the completed assignment was changed, published, or successful.
Singer Decl. Ex. 1 at 18:6-16, 30:19-31:5, 42:21-43:2, 376:3-22; id. Ex. 4 at 30:10-12;
see also id. Ex. 2 at 16:13-21; 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; Supp. Singer
Decl. Ex. 58 at 240:10-241:8; id. Ex. 59 at 73:8-74:2. Further, Marvel scheduled the
printer time well in advance, so if Marvel’s comic books were not ready to be printed at
the designated time, Marvel bore the entire loss. Singer Decl. Ex. 1 at 42:10-20, 384:22-
385:11; see also id. Ex. 3 at 59:22-60:9; id. Ex. 4 at 14:9-15:4. If a comic book was not
successful, Marvel lost money; thus, as publisher and owner of Marvel, Martin Goodman
had the final authority to decide whether to publish or cancel a comic book if it were not
profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-44:2, 97:8-20; see also id. Ex. 2 at 204:6-
19, 242:14-243:8; id. Ex. 3 at 60:22-61:4.17. Between 1958-1963, Kirby was free to, and
in fact did, pitch and sell work to other publishers while he was selling work to Marvel,
as did other freelance artists that worked with Marvel. Ev. Dec. ¶ 18; Mor. Dec., Ex. A at
9-10; Tob. Dec., Ex. D at 177:11-15; Ex. W at 5, 6, 18, 19, 21, 25, 55, 80-81, 84-85; Ex.
X at 18462-18466; Ex. Y.
Defendants’ Counter-Response: Whether Marvel was legally obligated
to pay for freelance submissions is plainly relevant to the “expense prong” of the “work
for hire” analysis. But whether Marvel had financial risk in connection with the
assembly, printing and publication of comic books after it decided to purchase material
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from Kirby in its sole discretion is irrelevant to the issue of whether Kirby bore the
financial risk of his creations. See Twentieth Century, 429 F.3d at 881; Estate of Hogarth
v. Edgar Rice Burroughs, Inc., 2002 U.S. Dist. LEXIS 4219, at *57; 1 Nimmer §
5.03[B][2][d] at 5-56.9 n.171c. Marvel admitted that the crux of the “expense” prong is
who “b[ears] the entire financial risk associated with the creation of the Works.”
Plaintiffs’ Motion for Summary Judgment (Docket No. 62) at 17. It is axiomatic that, as
Marvel had no pre-existing legal obligation to pay Kirby for the creation of his material,
Kirby, who invested his own time, overhead and materials in the creation of his work
with no financial guarantee from Marvel, shouldered the financial risk of creating his
material. See Undisputed Fact Nos. 11-16; Reply at 5-9; Colan Dec. at ¶¶ 8-14; Adams
Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. The
testimony of Evanier and Morrow is admissible. See Docket Nos. 84-88.
17. Between 1958-1963, Kirby was free to, and in fact did, pitch and sell work
to other publishers while he was selling work to Marvel, as did other freelance artists that
worked with Marvel. Ev. Dec. ¶ 18; Mor. Dec., Ex. A at 9-10; Tob. Dec., Ex. D at
177:11-15; Ex. W at 5, 6, 18, 19, 21, 25, 55, 80-81, 84-85; Ex. X at 18462-18466; Ex. Y.
Response: Jack Kirby did not “sell work” to Marvel as Kirby contributed
to Marvel’s comic books pursuant to assignments from Stan Lee, who directed the
creation of the works, and was then compensated by Marvel for his work on an agreed
per-page basis for all completed assignments that were submitted. Singer Decl. Ex. 1 at
22:11-23:19, 30:11-31:5, 47:15-48:4, 58:13-21, 111:2-17, 383:18-21, 384:18-21; id. Ex.
11, Track 3; id. Ex. 41 at MARVEL0017230; see also id. Ex. 2 at 76:8-78:17, 80:19-25;
id. Ex. 3 at 111:12-14, 112:8-114:11; id. Ex. 5 at 91:22-92:6, 127:19-128:5, 170:23-
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171:4; Supp. Singer Decl. Ex. 59 at 109:3-10. Moreover, Marvel bore the entire financial
risk associated with the Works since Marvel hired all contributors to the Works, such as
inkers, letterers and colorists, and paid them on an agreed per page basis. Singer Decl.
Ex. 1 at 15:9-20, 30:11-23, 58:13-21; id. Ex. 5 at 81:8-13, 91:22-92:6; id. Ex. 41 at
MARVEL0017230; see also id. Ex. 1 at 31:20-33:7; id. Ex. 3 at 28:5-15, 50:5-53:20; id.
Ex. 11, Track 4. All contributors to Marvel’s comic books were paid at or near the time
their completed assignments were submitted, well in advance of publication, and
regardless of whether the completed assignment was changed, published, or successful.
Singer Decl. Ex. 1 at 18:6-16, 30:19-31:5, 42:21-43:2, 376:3-22; id. Ex. 4 at 30:10-12;
see also id. Ex. 2 at 16:13-21; 32:2-5; id. Ex. 3 at 68:24-69:6, 74:19-25; Supp. Singer
Decl. Ex. 58 at 240:10-241:8; id. Ex. 59 at 73:8-74:2. Further, Marvel scheduled the
printer time well in advance, so if Marvel’s comic books were not ready to be printed at
the designated time, Marvel bore the entire loss. Singer Decl. Ex. 1 at 42:10-20, 384:22-
385:11; see also id. Ex. 3 at 59:22-60:9; id. Ex. 4 at 14:9- 15:4. If a comic book was not
successful, Marvel lost money; thus, as publisher and owner of Marvel, Martin Goodman
had the final authority to decide whether to publish or cancel a comic book if it were not
profitable. Singer Decl. Ex. 1 at 19:15-17, 43:3-44:2, 97:8-20; see also id. Ex. 2 at 204:6-
19, 242:14-243:8; id. Ex. 3 at 60:22-61:4. Moreover, this fact is not material to the
motion for summary judgment because it will not “affect the outcome of the suit under
the governing law,” Kinsella, 320 F.3d at 311, and Defendants have cited no admissible
evidence to support the statement that Kirby was free to “sell” artwork to other
publishers. Further, Defendants’ citations do not support the statement that other
freelance artists were free to “sell” artwork to other publishers. Plaintiffs also object to
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this statement to the extent it relies on the inadmissible testimony of Evanier and Morrow
as well as inadmissible hearsay in Exhibits W, X, and Y to the Toberoff Decl. Spiegel,
604 F.3d at 81; see also Docket Nos. 67, 70. Finally, Plaintiffs object to Defendants’
citation to Exhibit Y to the Toberoff Decl., as the cited document was not produced in
discovery in this action and thus may not be considered on summary judgment. See Melie
v. EVCI/TCI Coll. Admin., No. 08 Civ. 5226(HB), 2009 WL 1404325, at*1 n.4
(S.D.N.Y., May 20, 2009), aff’d, 374 F. App’x 150 (2d Cir. 2010). 18. Marvel has no
copies of any checks, dated between 1958-1963, with legends on the back that were
issued by Marvel to Kirby, or to any other freelancer, for submitted work. Tob Dec., Ex.
L ¶¶ 2, 4.
Defendants’ Counter-Response: Marvel admits that Kirby was free to
sell work to other publishers during the Time Period, which is probative of his legal
relationship with Marvel, and weighs against “work for hire.” See Donaldson Publishing
Co. v. Bregman, Vocco, & Conn, Inc., 375 F.2d 639, 643 (2nd Cir. 1967); Colan Dec. at
¶¶ 8-14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec.
at ¶¶ 8-14. Whether Marvel had financial risk in connection with the assembly, printing
26
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Undisputed Fact Nos. 11-16; Reply at 5-9; Colan Dec. at ¶¶ 8-14; Adams Dec. at ¶¶ 6-
14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. The testimony of
Evanier and Morrow is admissible. See Docket Nos. 84-88. Marvel’s hearsay objections
to Exhibits W, X, and Y are baseless.
18. Marvel has no copies of any checks, dated between 1958 -1963, with
legends on the back that were issued by Marvel to Kirby, or to any other freelancer, for
submitted work. Tob Dec., Ex. L ¶¶ 2, 4.
19. The earliest checks to a freelancer with a legend on the back,
produced by Marvel in this action, are from 1974, and the legend on such checks states,
in part, that the artist is being paid “for my assignment to [Marvel] of any copyright,
trademark and any other rights in or related to the material, and including my assignment
of any rights to renewal copyright,” and nowhere mentions the phrase “work for hire” or
“work made for hire.” Tob. Dec., Ex. E at 100:21-101:9; Ex. J at 396:1-14; Ex. K at
232:5-10; Ex. L at ¶¶ 2, 4; Ex. AA at 14603; Ex. T.
Response: Plaintiffs do not dispute that the earliest checks produced by
Marvel in this action are from 1974 and include the language quoted in Paragraph 19.
However, the full legend on the back of such checks states: “By endorsement of this
check: I, the payee, acknowledge full payment for my employment by Magazine
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Management, Co., and for my assignment to it of any copyright, trademark, and any other
rights in or related to the material, and, including my assignment of any rights to renewal
copyright.” Toberoff Decl. Ex. AA at MARVEL0014603. In any event, this fact is not
relevant and is not material to the motion for summary judgment because the cited checks
are outside the Time Period and because it will not “affect the outcome of the suit under
the governing law.” Kinsella, 320 F.3d at 311; see also Fed. R. Evid. 402. While no
paychecks from the Time Period have survived, all of Marvel’s witnesses, each of whom
was a freelance artist or writer in the 1950s and 1960s, testified that during that time,
Marvel’s payroll checks bore a legend stating that the freelance artists and writers
retained no rights in the work for which they were being paid. Singer Decl. Ex. 1 at
28:20-29:11; id. Ex. 2 at 64:14-65:19, 65:24-66:4, 66:24-67:14, 67:17-20, 273:24-274:11;
id. Ex.3 at 71:17-72:19, 229:4-25; id. Ex. 4 at 31:17-21, 32:4-33:8.
forth in paragraph 19. See also Colan Dec. at ¶ 12; Adams Dec. at ¶ 14; Ster. Dec. at ¶
12; Sinn. Dec. at ¶¶ 13-14; Ayers Dec. at ¶ 14. See Confidential Declaration of Marc
Toberoff (“Tob. Conf. Dec.”), Ex. 10 at ¶ 7, Ex. 11 at ¶ 7, Ex. 12 at ¶ 7; Singer Dec., Ex.
46 at 7. Events close to the Time Period are obviously probative of Marvel’s practices
and intent within the Time Period. Plaintiffs themselves have relied on testimony from
their witnesses, John Romita and Roy Thomas, who did not work with Marvel during the
Time Period. Tob. Dec., Ex. 4 at 219:6-220:11; Ex. 5 at 112:3-6; 214:11-13. Marvel
bears the burden of proof on its “work for hire” defense, and it has provided no evidence
that its practices or intent changed between the early 1960’s and the mid-to-late 1960’s or
even 1970’s. The only reasonable inference is that if Marvel freelance checks/contracts
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in the mid-1970’s, when it was far more prosperous and organized, still had express
language of purchase and assignment, with no mention whatsoever of “work for hire,”
that Marvel, in the far more haphazard Time Period (1958-1963), did not intend or
implement a “work for hire” relationship with freelancers such as Kirby. Moreover,
contrary to Marvel’s claims, its own witnesses, Stan Lee, Roy Thomas and Larry Lieber,
all admitted that Marvel simply purchased their freelance work. Tob. Dec., Ex. E at
100:21-101:9; Ex. J at 396:1-14; Ex. K at 232:5-10. This concurs with the testimony of
numerous other witnesses who worked with Marvel both in and close to the Time Period.
See Ayers Dec. ¶¶ 11-14 (“The reality was that Marvel and other comic book publishers
bought our freelance artwork once it had been submitted and accepted by the publisher. I
believed that Marvel owned all rights to the artwork because they bought it from me.”);
Colan Dec. ¶ 9, 12 (“I understood that Marvel would own the artwork I submitted once
they accepted it because I was selling it to Marvel.”); Ster. Dec. ¶¶ 8-14; Sinn. Dec. ¶¶
10-11; Adams Dec. ¶¶ 7-15.
20. The first check produced by Marvel with a legend, mentioning “work for
hire” or “work made for hire,” is from 1986, after the explicit new “work for hire”
provisions in section 101 of the Copyright Act of 1976 became effective on January 1,
1978. Tob Dec., Ex. BB.
Response: Plaintiffs do not dispute that the first check produced by
Marvel in this action containing a legend that explicitly states “work for hire” or “work
made for hire” was issued in 1986. However, this fact is not relevant and is not material
to the motion for summary judgment because the cited check is from outside the Time
Period and because it will not “affect the outcome of the suit under the governing law.”
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Kinsella, 320 F.3d at 311; see also Fed. R. Evid. 402. Further, Plaintiffs object to the use
of the phrase “explicit new work for hire provisions” to the extent that that such
terminology states a legal conclusion regarding the Copyright Act of 1976 and not a
statement of undisputed fact. While no paychecks from the Time Period have survived,
all of Marvel’s witnesses, each of whom was a freelance artist or writer in the 1950s and
1960s, testified that during that time, Marvel’s payroll checks bore a legend stating that
the freelance artists and writers retained no rights in the work for which they were being
paid. Singer Decl. Ex. 1 at 28:20-29:11; id. Ex. 2 at 64:14-65:19, 65:24-66:4, 66:24-
67:14, 67:17-20, 273:24-274:11; id. Ex. 3 at 71:17-72:19, 229:4-25; id. Ex. 4 at 31:17-21,
32:4-33:8.
forth in paragraph 20. However, Marvel again tries to sidestep the issue with its carefully
worded statement that Marvel’s witnesses testified that the legends on the back of their
checks bore a legend they “retained no rights in the work for which they were being
paid.” This is thoroughly consistent with the fact that Marvel’s checks in the Time
Period had a legend stating that Marvel was purchasing and the freelancer was assigning
all rights in their material as testified to by numerous witnesses both from and shortly
after the Time Period, as further supported by the 1970’s checks Marvel produced, which
still contained such “purchase and assignment” legends. See Colan Dec. at ¶ 12; Adams
Dec. at ¶ 14; Ster. Dec. at ¶ 12; Sinn. Dec. at ¶¶ 13-14; Ayers Dec. at ¶ 14; Tob. Dec.,
Ex. AA. See also Tob. Conf. Dec., Ex. 10 at ¶ 7, Ex. 11 at ¶ 7, Ex. 12 at ¶ 7; Singer Dec.,
Ex. 46 at 7. Moreover, contrary to Marvel’s claims, Stan Lee, Roy Thomas and Larry
Lieber all agreed that Marvel simply purchased their freelance work, as did the Kirbys’
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numerous witnesses. Tob. Dec., Ex. E at 100:21-101:9; Ex. J at 396:1-14; Ex. K at 232:5-
10. See Ayers Dec. ¶¶ 11-14; Colan Dec. ¶ 9, 12; Ster. Dec. ¶¶ 8-14; Sinn. Dec. ¶¶ 10-
11; Adams Dec. ¶¶ 7-15. Evidence close to the Time Period is obviously probative of
Marvel’s practices and intent within the Time Period. In its response, Marvel, itself,
relies on testimony from their witnesses, John Romita and Roy Thomas, who did not
work with Marvel during the Time Period. Tob. Dec., Ex. 4 at 219:6-220:11; Ex. 5 at
112:3-6; 214:11-13. The fact that the legend on the back of Marvel checks issued to
freelancers changed, after the 1976 Copyright Act, which became effective on January 1,
1978, to include “work for hire” provisions explicitly applicable to independent
contractors is probative indeed of how Marvel viewed its relationship with freelancers at
the time and in contrast to the Time Period.
21. Between 2006-2008, Marvel entered into a number of separate agreements
with the Kirbys to purchase at a per-page rate unpublished artwork by Jack Kirby for a
Fantastic Four story that Marvel had originally rejected, and various additional pages of
rejected unpublished artwork by Kirby for Thor, Fantastic Four and X-Men. Mor. Dec.,
Ex. A at 3-4; Ex. B; Tob. Dec., Ex. D at 91:13-92:5; 138:11-139:4; Ex. P, Ex. Q; Ex. R;
Ex. S.
Response: Plaintiffs do not dispute that, between 2006-2008, Marvel
entered into agreements with Lisa Kirby as Administrator of the Estate of Jack Kirby
regarding certain pieces of Kirby artwork that were created outside of the Time Period
and/or as to which no information has been provided regarding the timing of their
creation or whether they were even submitted to Marvel for publication by Kirby.
Defendants’ citations do not support the statement that these pieces of artwork were
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“originally rejected” by Marvel. Further, Plaintiffs object to the statements in Paragraph
21 to the extent Defendants’ citations are to the testimony and report of John Morrow,
who has no personal knowledge of whether the pieces of artwork were “originally
rejected” by Marvel, see Toberoff Decl. Ex. D at 89:13-92:5, and to a document that was
not produced in discovery in this action. See Morrow Declaration Ex. B. This document
may not be considered on summary judgment. Melie, 2009 WL 1404325, at *1 n. 4.
Moreover, this fact is not relevant and is not material to the motion for summary
judgment because the artwork was drawn outside the Time Period and because it will not
“affect the outcome of the suit under the governing law.” Kinsella, 320 F.3d at 311; see
also Fed. R. Evid. 402. Finally, Plaintiffs object to this statement to the extent it relies on
the inadmissible testimony of Morrow as well as inadmissible hearsay in Ex. S to the
Toberoff Decl. Spiegel, 604 F.3d at 81; see also Docket Nos. 67, 70.
forth in paragraph 21 and does not dispute that if Marvel had owned these rejected Kirby
works at inception as “works made for hire,” it would have had no reason to license the
works in 2008 from Kirby’s estate and pay it for the right to publish such works.
Marvel’s objection to the Fantastic Four: The Lost Adventure comic book is unfounded
as Morrow discussed it in his expert report and deposition, and Marvel licensed and sold
it in 2008. Mor. Dec., Ex. A at 3-4; Ex. B; Tob. Dec., Ex. D at 91:13-92:5; 138:11-139:4;
Ex. S. Such events, even though outside the Time Period, have important probative value
as to Marvel’s relationship with Kirby in the Time Period. Marvel itself has relied on
testimony from its witnesses John Romita and Roy Thomas, who did not work with
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214:11-13.
Dated: April 8, 2011 Respectfully submitted,

/s/ Marc Toberoff

Marc Toberoff
Los Angeles, California 90067
Tel. (310) 246-3333
Facsimile: (310) 246-3101
E-mail: mtoberoff@ipwla.com
Attorneys for defendants

Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby
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The undersigned hereby certifies that the foregoing was served electronically by
the Court’s ECF system and by first class mail on those parties not registered for ECF
pursuant to the rules of this court.
Dated: April 8, 2011 Respectfully submitted,

/s/ Marc Toberoff

Marc Toberoff
Los Angeles, California 90067
Tel. (310) 246-3333
Facsimile: (310) 246-3101
E-mail: mtoberoff@ipwla.com

34
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_____________________________________________x
______________________________________________x
_________________________X

Case 1:10-cv-00141-CM-KNF Document 121 Filed 07/28/11 Page 1 of 50
USDS SDNY
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
DOC #:
DATE FILED:
MVL RIGHTS, LLC,
10 Civ. 141 (CM)(KNF)
Plaintiffs,
- against-

Defendants.

Counterclaim-Plaintiffs,
- against-

MVL RIGHTS, LLC,
MARVEL ENTERTAiNMENT, Inc.,
THE WALT DISNEY COMPANY, and
DOES 1 through 10,
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT AND DENYING DEFENDANTS’ CROSS
MOTION FOR SUMMARY JUDGMENT
McMahon, J.
Jack Kirby is a legend in the comic book industry. During his long association with
Marvel Comics, Kirby, working as a freelance artist, played a key role in the creation of a
JA2367
number of iconic characters, including “The Fantastic Four,” “The Incredible Hulk,” and “The
X-Men.”
Kirby died in 1994, survived by his wife, Rosalind, and their four children—Defendants
Susan M. Kirby, Neal L. Kirby, Barbara J. Kirby, and Lisa R. Kirby (the “Kirby Heirs”). (Pis.’
Rule 56.1 Statement of Undisputed Material Facts (“PIs.’ 56.1”) ¶ 5).
In June 1972, Marvel had Kirby execute an assignment to Marvel Management Company
of any and all right, title and interest (including specifically any copyrights, whether statutory
and at common law) that Kirby “may have or control” in any of the works Kirby created for
Marvel. (2/18/il Declaration of Randi W. Singer (“Singer Decl.”) Ex. 17 at 1.A.(l).) The
assignment did not state that Kirby actually owned any copyright in the works; on the contrary,
the assignment contained an acknowledgement that Kirby had created the works “as an
employee for hire” of the owners of Marvel, the Goodmans. (Singer Deci. Ex. 17 at 5.)
On September 16, 2009, the Kirby Heirs served Plaintiffs with 45 notices purporting to
terminate Kirby’s assignment of his federally-protected copyrights in a number of Marvel
editions that were published between 1958 and 1963: Amazing Adventures, Vol. 1, Nos. 1-6;
Amazing Fantasy, Vol. 1, No. 15; The Amazing Spider-Man, Vol. 1, Nos. 1-7; The Avengers,
Vol. 1, Nos. 1-2; The Fantastic Four, Vol. 1, Nos. 1-21; The Fantastic Four Annual, No. 1;
Journey Into Mystery, Vol. 1, Nos. 51-98; The Incredible Hulk, Vol. 1, Nos. 1-6; The Rawhide
Kid, Vol. 1, Nos. 17-35; Sgt. Fury and His Howling Commandos, Vol. 1, Nos. 1-41 Strange
Tales, Vol. 1, Nos. 67-115; Tales of Suspense, Vol. 1, Nos. 1, 3-48; Tales to Astonish, Vol. 1, 8
(collectively, the “Kirby Works”). (PIs.’ 56.1 ¶ 7; see also Defs.’ Rule 56.1 Statement of
Disputed Material Facts (“Defs.’ 56.1”) ¶ 7.) The Termination Notices relied for their force on
17 U.S.C. § 304(c), which provides that
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In the case of any copyright subsisting in either its first or renewal term on
January 1, 1978, other than a copyright in a work made for hire, the exclusive or
nonexciusive grant of a transfer or license of the renewal copyright or any right
under it, executed before January 1, 1978,. is subject to termination under the
. .
following conditions In the case of a grant executed by one or more of the

authors of the work, termination of the grant may be effected, to the extent of a
particular author’s share in the ownership of the renewal copyright, by the author
who executed it or, if such author is dead, by the person or persons who, under
clause (2) of this subsection, own and are entitled to exercise a total of more than
one-half of that author’s termination interest.
Sc 17 U.S.C. § 304(c)( 1) (emphasis added). After fruitless negotiations, Plaintiffs Marvel

Worldwide, Inc., Marvel Characters, Inc. and MVL Rights, LLC commenced this action, seeking
a declaration that the Termination Notices were a nullity, since Marvel, not Kirby (or his heirs),
owned the copyrights in the works that were the subject of the Notices. The Kirby Heirs
counterclaimed for a declaration that the Termination Notices were effective and that they now
controlled the copyrights in these iconic works.
Presently before the Court are the parties’ cross motions for summary judgment.
Plaintiffs argue that there are no disputed issues of material fact and that the undisputed material
facts establish that the Kirby Works were “works made for hire” within the meaning of the
Copyright Act of 1909, which law conferred all federal copyright in a “work made for hire” in
the employer. Defendants counter that there are disputed issues of material fact that bar
summary judgment in Marvel’s favor, but none that would prevent the court from concluding, as
a matter of law, that the Kirby Works are not “works made for hire.”
At the outset, it is important to state what this motion is not about. Contrary to recent
press accounts and editorials, see, e.g., Brent Staples, Marvel Superheroes and the Fathers of
Invention, N.Y. Times, June 26, 2011, at SR 11; Earl Wells, Letter to the Editor, Giving Credit
for Comics, N.Y. Times, July 3, 2011, at Al 8, this case is not about whether Jack Kirby or Stan
Lee is the real “creator” of Marvel characters, or whether Kirby (and other freelance artists who
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Case 1:1 0-cv-001 41 -CM-KNF Document 121 Filed 07/28/11 Page 4 of 50
created culturally iconic comic book characters for Marvel and other publishers) were treated
“fairly” by companies that grew rich off the fruit of their labor. It is about whether Kirby’s work
qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts, notably
the United States Court of Appeals for the Second Circuit. If it does, then Marvel owns the
copyright in the Kirby Works, whether that is “fair” or not. If it does not, then the Kirby Heirs
have a statutory right to take back those copyrights, no matter the impact on a recent corporate
acquisition or on earnings from blockbuster movies made and yet to be made.
I conclude that there are no genuine issues of material fact, and that the Kirby Works
were indeed works for hire within the meaning of the Copyright Act of 1909. Therefore, the
Section 304(c) Termination Notices did not operate to convey any federally-protected copyrights
in the Kirby Works to the Kirby Heirs. Marvel’s motion for summary judgment is granted; the
Kirby Heirs’ cross motion is denied.
THE MOTIONS TO STRIKE
Before the court can recite the facts, I must consider exactly what should and should not
be part of the record on the parties’ cross motions for summary judgment. Marvel has made
three procedural motions, in an effort to strike certain material from the motion record: to strike
the “expert” testimony of Mark Evanier and John Morrow, to strike the declarations of Joe
Sinnott and James F. Steranko, and to strike certain documents attached as exhibits to the
Declarations of Marc Toberoff and John Morrow. All of these documents were filed in support
of the Kirby Heirs’ opposition to Marvel’s motion for summary judgment.
Marvel’s side of the story is told by the most percipient of witnesses: Stan Lee Marvel’s
editor during the period 1958-1963—when the Kirby Works were created—and a legendary
figure in his own right. Although 87 years old, Lee gave a two-day deposition in this matter:
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Marvel’s motion stands or falls on his testimony, although Marvel supplemented Lee’s testimony
with testimony from Roy Thomas, Lawrence Lieber, and John Romita.
Thomas began as a staff writer at Marvel in July 1965 and continued to work at Marvel
until 1980. (10/26/10 Deposition of Roy Thomas (“Thomas Dep.”) 8:9-14.)
Lieber was a writer for Marvel beginning in June 1958. (Deposition of Lawrence Lieber
(“Lieber Dep.”) 9:14-20.)
Romita first worked for Timely Comics in 1949 as a “ghost penciller”—that is, Romita
completed pencil artwork for comic book stories Stan Lee assigned to another artist, Lester
Zakarin. (Deposition of John Romita (“Romita Dep.”) 7:16-8:21.) Following his one-year stint
as a ghost penciller, Romita spent two years in the army. In 1951, while still in the army, Romita
was hired by Lee to work as a freelance artist for Timely Comics. (Romita Dep. 10:6-12:4.) In
1953, after leaving the army, Romita continued working for Timely Comics as a freelance artist
until 1958. (Id. 12:5-13.) In 1965, Romita returned to Marvel, first as a freelance artist and in
1966, as a staff artist. (Romita Dep. 14:5-11.) Romita remained at Marvel until 1996. ()
To counter Lee’s first-hand testimony, the Kirby Heirs offer the testimony from three
comic book artists who also worked as freelancers for Marvel between the 1 950s and 1 970s.
James F. Steranko is a comic book artist and historian who worked for Marvel as a freelance
artist between 1966 and 1973. (Declaration of James F. Steranko (“Steranko DecI.”) ¶1 2, 5.)
Joe Sinnott is a comic book artist who worked for Marvel as a freelance artist in the 1950s and
1960s. (Declaration of Joe Sinnott (“Sinnott DecI.”) ¶ 3.) Sinnott also worked as a “freelance
inker” and inked many issues of Kirby’s “The Mighty Thor” and “The Avengers.” (Sinnott
DecI. ¶ 5.) Richard Ayers is a comic book artist who worked on a freelance basis for Marvel
from 1959 until 1975. (Declaration of Richard Ayers (“Ayers Decl.”) ¶J 2, 6-8.) Richard Ayers
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also inked various newspaper comic strips drawn by Kirby (but not for Marvel) between 1959
and 1961. (Ayers Deci. ¶ 5.)
The Kirby Heirs also offer their own reminiscences about their father and his work, but as
they were children during the relevant time period, they do not claim to have first-hand
knowledge about their father’s business dealings with Marvel.
Finally, in an attempt to cast doubt on Lee’s testimony, the Kirby Heirs offer the “expert”
testimony of Mark Evanier and John Morrow.
Marvel asks the Court to disregard most of the evidence the Kirby Heirs offer.
The Steranko & Sinnott Declarations: Marvel asks the court to strike the declarations of
Steranko and Sinnott because the Kirby Heirs did not disclose, pursuant to Federal Rule of Civil
Procedure 26, their intent to rely on either witness’s testimony until two months after discovery
was completed and shortly before the parties filed their motions for summary judgment. (
ECF Dkt. No. Ill,) Marvel’s motion to strike Steranko’s and Sinnott’s declarations is denied.
Federal Rule of Civil Procedure 26 requires a party to supplement or correct a disclosure
made in an interrogatory, production request, or request for admission, “in a timely manner if the
party learns that in some material respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(l)(A). “If a party fails
to provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence. . . at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(l).
The Kirby Heirs did not have a duty to supplement their Rule 26 initial disclosures to add
Steranko and Sinnott as potential witnesses, because the existence of both witnesses became
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known to Marvel during discovery. In his deposition, Mark Evanier told Marvel’s counsel that
Sinnott was a freelance artist who worked for Marvel during the relevant time period and that he
had spoken with Sinnott about “Marvel history.” (4/22/11 Declaration of Marc Toberoff
(“4/22/11 ToberoffDecl.”) Ex. C.) Steranko was disclosed to Marvel during John Morrow’s
deposition, when Morrow was questioned about an article he wrote that discussed Steranko.
(4/22/11 Toberoff Deel. Ex. A.) Marvel’s counsel questioned Morrow about Kirby’s role in
creating a comic book for which Steranko was originally asked to complete the artwork. ()
The duty to supplement a Rule 26 disclosure is “only necessary when the omitted or
after-acquired information ‘has not otherwise been made known to the other parties during the
discovery process.” See 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2049.1 (3d ed. 2010). The purpose of Rule 37(c) “is to prevent the practice of
‘sandbagging’ an opposing party with new evidence.” Ebewo v. Martinez, 309 F. Supp. 2d 600,
606-07 (S.D.N.Y. 2004). Because Marvel became aware of Steranko and Sinnott at Morrow’s
and Evanier’s depositions, the Kirby Heirs did not have a duty to supplement their Rule 26 initial
disclosures. See. e.g., Sealy v. Gruntal & Co., 1998 WL 698257, at *2 (S.D.N.Y. 1998).
Documentary Exhibits: Marvel also moves to strike certain documents attached to
declarations filed by the Kirby Heirs in support of their opposition to Marvel’s motion for
summary judgment. ($ç ECF Dkt. No. Ill.) Specifically, Marvel seeks to strike eight
documents they argue were not disclosed by the Kirby Heirs during discovery: (1) the
Declaration of Joe Sinnott; (2) the Declaration of James Steranko, and (3) Exhibits Y, GG, JJ,
00, FFF, JJJ, and LLL to the Declaration of Marc Toberoff. That motion is denied as well.
Exhibits Y, GG, JJ, and 00 to the Toberoff Declaration are excerpts from “The Collected
Jack Kirby Collector” Volumes 5 and 6—a book that was edited and published by Morrow.
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Marvel’s motion to strike these exhibits is denied, as the book was disclosed to Marvel in
December 2010. (See 4/22/11 Toberoff Deel. Ex. J.)
Exhibit LLL—a comic book drawn by Kirby entitled “Challengers of the Unknown, No.
1 “—was disclosed in the expert reports of Morrow and Evanier, and both were questioned about
the comic book during their depositions. (4/22/11 ToberoffDecl. Ex. A at 184:14-186:2, Ex. C
at 228:16-231:9.) The Kirby Heirs did not have a duty to supplement their Rule 26 disclosures
because the information became known to Marvel during discovery.
Exhibit JJJ is a true and correct copy of excerpts from the 1963 treatise “Nimmer on
Copyright.” The Kirby Heirs cite to the treatise in their brief. There is no requirement that legal
authority be disclosed in a Rule 26 disclosure. Marvel’s motion to strike Exhibit JJJ is denied. It
is not, however, evidence of anything, and cannot be relied on to raise any genuine issue of fact.
Exhibit FFF is an article entitled “Jack Kirby: A By-the-Month Chronology” for the
periods 1950-1959 and 1960-1964. The article simply lists the comic books that Kirby worked
on during those years. Even if the article were not disclosed to Marvel, Marvel’s motion to
strike Exhibit FFF is denied, because Marvel is not prejudiced if the Kirby Heirs are allowed to
rely on that chronology now.
The “Expert” Declarations: Marvel also filed two motions, seeking to exclude the expert
testimony and reports of John Morrow and Mark Evanier. ($ ECF Dkt. No. 67 & 70.) Marvel
also filed a motion to strike Exhibit B to John Morrow’s Declaration—a comic book entitled
“The Fantastic Four: The Lost Adventure.” (ECF Dkt. No. 111.) The motions are granted.
John Morrow is a writer, archivist, and publisher in the comic book industry. Morrow
states that Kirby’s death in 1994 prompted him to produce a newsletter about Kirby’s life and
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achievements. (Deci. of John Morrow (“Morrow Decl.”) ¶ 2.) He still publishes that newsletter
today.
Morrow’s “expert” report for the Kirby Heirs relates to three issues: (1) Marvel’s history
before, during, and after the 1958-1963 time period, (2) the business relationship between Kirby
and Marvel during that period, and (3) Kirby’s creation or co-creation of certain comic book
characters. (Morrow Decl. at Ex. A (Morrow’s Expert Report).)
Mark Evanier is a comic book writer, columnist, and historian. (Declaration of Mark
Evanier (“Evanier Deci.”) ¶J 1-2.) In 1969, Kirby hired Evanier as an assistant, to conduct
research, co-author “letter pages” in Kirby comic books, and to assist Kirby with creating
storylines. (Evanier Decl. ¶ 2.) Evanier helped Kirby with new comic book projects that Kirby
was producing for DC Comics in 1969—six years after the relevant period. (Id.) Like Morrow,
Evanier was asked to render an “expert opinion” about the manner in which Kirby created or co
created comic book characters published by Marvel from 1958-1963, and about Kirby’s
relationship with Marvel during that time period. (j ¶ 14.) Evanier’s report purports to trace
the background of the comic book industry, Marvel’s origin, and Marvel’s relationship with
Kirby. ($ Evanier Decl. Ex A. at 4-9.)

The reason for Evanier and Morrow evidence is clear: to try to rebut Lee’s testimony and
create issues of fact about the creation of the Kirby Works between 1958 and 1963.
Unfortunately for Defendants, Evanier and Morrow lack Lee’s “I was there” experience.
Evanier admits that he was only six years old in 1958, when the relevant time period began; he
did not meet Kirby until over a decade later, when Evanier was 17. (11/9/10 Deposition of Mark
Evanier (“11/9/10 Evanier Dep.”) 17:11-13, 19:7-20:10.) Evanier also concedes that, “There’s a
limit to how much [he] can know about what two men [i.e., Lee and Kirby] did behind closed
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doors years ago.” (12/6/10 Deposition of Mark Evanier (“12/6/10 Evanier Dep.”) 113:14-15.)
Similarly, Morrow has no firsthand knowledge about Marvel’s practices during the relevant time
period, or about the actual creation of the Kirby Works. Morrow testified that his accounts of
Marvel’s history, its working relationship with Kirby, and the creation of certain characters were
based on “what [he has] read throughout the years” and what others have told him. (See, e.g.,
Declaration of David Fleischer (“Fleischer Deci.”) Ex. B. at 53:20-55:10, 74:8-76:20, 91:5-12,
129:10-131:2.) Morrow admits that he learned everything he put in his report from interviews
and other secondary sources, in other words, hearsay. (See, e.g., Fleischer Decl. Ex. B. 37:2 1-
23, 53:20-55:10, 64:9-17, 91:5-12.) Morrow also admits that his only “connection” to the comic
book industry prior to 1994 was as a “comics fan.” ( Fleischer DecI. Ex. B. at 40:7-16.)
A district court can admit expert testimony from a person “qualified as an expert by
knowledge, skill, experience, training, or education,” assuming that “scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702. Under Daubert v. Merrell Dow Pharm.. Inc., 509
U.S. 579 (1993), and Rule 702 of the Federal Rules of Evidence, the Court’s role is to determine
whether the “expert” is qualified to testify as an expert. The Court conducts a two-part inquiry:
(1) whether the expert used a reliable methodology; and (2) whether the testimony will assist the
trier of fact to understand the evidence or to determine a fact in issue. Daubert, 509 U.S. at 592-
93. The district court should not admit testimony that is “directed solely to lay matters which a
jury is capable of understanding and deciding without the expert’s help.” United States v.
Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991).
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The Kirby Heirs must establish by a preponderance of the evidence that Evariier’s and
Morrow’s expert testimony is admissible. See, e.g., Bourjaily v. United States, 483 U.S. 171,
175 (1987).
The “expert” reports will be stricken for multiple reasons, any one of which is sufficient.
First, Evanier’s and Morrow’s purported “expert” reports are merely factual narratives
based on their review of secondary sources and interviews that attempt to reconstruct events
about which neither has first-hand knowledge. Although Rule 703 of the Federal Rules of
Evidence permits an expert to rely on hearsay in reaching his own opinion, “a party cannot call
an expert simply as a conduit for introducing hearsay under the guise that the testifying expert
used the hearsay as the basis of his testimony.” Louis Vuitton Malletier v. Dooney & Bourke.
Inc., 525 F. Supp. 2d 576, 666 (S.D.N.Y. 2007).
Second, “Expert testimony must be helpful to the [trier of fact] in comprehending and
deciding issues beyond the understanding of a layperson.” DiBella v. Hopkins, 403 F.3d 102,
121 (2d Cir. 2005). Nothing either Evanier or Morrow says concerns technical or scientific
matters that lay jurors need help to understand. Their proffered testimony therefore is
inadmissible, because Evanier’s and Morrow’s reports address “lay matters which [the trier of
fact] is capable of understanding and deciding without the expert’s help.” Andrews v. Metro N.
Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 1989).
Third, Morrow and Evanier also offer their “opinions” about the intent or motivations of
Marvel and individuals that worked at Marvel. For example, Morrow opines that he “do[esj not
believe that Goodman, Lee, Marvel or the freelance artists, like Jack Kirby. . . thought that the
material they created was ‘work made for hire.” (Morrow Deci. Ex. A at 9.) Evanier also
opined that “it is extremely doubtful that either Marvel or freelance artists, such as Jack Kirby,.
11
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had any understanding or intent that their freelance material.. was somehow work made for
.
hire.” (Evanier Deci. Ex. A at 14.) “Inferences about the intent or motive of parties or others Lie
outside the bounds of expert testimony.” In re Rezulin Prods. Liab. Litig., 379 F. Supp. 2d 531,
547 (S.D.N.Y. 2004); see also Highland Capital Mgmt. L.P. v. Schneider, 551 F. Supp. 2d 173,
182-83 (S.D.N.Y. 2008).
Evanier also opines on the credibility of Lee’s testimony and concludes that it is more
logical to believe that certain comic book characters were conceived by Kirby rather than by Lee.
Evanier states, “I have great respect and personal affection for Stan Lee, but I disagree with the
accounts he has sometimes given of the creation of [T]he Fantastic Four in which he solely
created the concept and characters and Kirby’s role was limited to simply drawing up Lee’s
creation.” (Evanier Deci. Ex. A at 14.) Evanier developed this “opinion” even though he was
not present during discussions or plotting conferences between Kirby and Lee and has no first
hand knowledge of how the Kirby Works were created, (12/6/10 Evanier Dep. at 231:10-12;
11/9/lOEvanierDep. at 17:11-13, 19:7-20:10,39:11-17,40:21-25,41:6-8,41:24-25,45:18-21,
46:15-20; Evanier Decl. Ex. A. at 11, 12.) “An expert’s opinions that are without factual basis
and are based on speculation or conjecture are.. inappropriate material for consideration on a
.
motion for sununary judgment.” See Major League Baseball Props., Inc. v. Salvino, Inc., 542
F.3d 290, 311 (2d Cir. 2008).
Finally, by purporting to opine on the credibility of Lee’s testimony, Evanier has
improperly usurped the role of the jury. Nimely v. City of New York, 414 F.3d 381, 397-98 (2d
Cir. 2005). Testimony that directs the trier of fact to believe one account of events over another
“does not ‘assist the trier of fact,’ Fed. R. Evid. 702, but rather ‘undertakes to tell the jury what
result to reach,’ and ‘attempts to substitute the expert’s judgment for the jury’s.” at 398
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(quoting United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)). Evanier’s “opinion” about
Lee’s credibility is inadmissible because “it would serve only to usurp the jury in its fact finding
role.” See Member Servs., Inc. v. Sec. Mut. Life Ins. Co. of N.Y., 2010 WL 3907489, at *26
(N.D.N.Y. Sept. 30, 2010).
Marvel’s motion to exclude the “expert” report of Evanier and Morrow is granted. It’s
motion to strike Exhibit B to Morrow’s declaration—a comic book entitled “The Fantastic Four:
The Lost Adventure”—is also granted.
STATEMENT OF UNDISPUTED FACTS
In opposing a motion for summary judgment, the non-movant may not rely on
inadmissible evidence, such as hearsay, to create a disputed issue of fact. S Burlington Coat
Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985); see also Hidden
Brook Air, Inc. v. Thabet Aviation Int’l Inc., 241 F. Supp. 2d 246, 270 (S.D.N.Y. 2002). The
non-movant must “cite admissible evidence in support of [its] contention that there is admissible
evidence creating a genuine issue for trial.” Archie Comic Publ’n, Inc. v. DeCarlo, 258 F. Supp.
2d 315, 317-18 (S.D.N.Y. 2003). The Court bears this principle in mind as it considers whether
particular assertions of fact are undisputed.
Based on the admissible evidence, the following facts are undisputed:
A. Marvel Comics and the Key Players
The following facts are undisputed.
In 1939 or 1940, Joe Simon and Jack Kirby were producing comics for a man named
Martin Goodman at a company called Timely Comics. (Deposition of Stan Lee (“Lee Dep.”)
11:3-21, 11:7-21, 14:9-10; see also Pls.’ 56.1 ¶ 11.) Lee was hired as an “assistant,” tasked with
sharpening pencils, erasing pages, and fetching lunch. (Lee Dep. 11:11-17.)
13
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At some point in the 1940s, Kirby and Simon left the employ of Timely Comics.
Goodman asked Lee to “function as the editor and art director and writer until [Goodman] hired
someone, a grown up.” (Id. at 14:9-17.) As the whole world knows, Goodman never replaced
Lee, who remained the editor at Marvel until the early 1970s. (PIs.’ 56.1 ¶ 44.) Lee was thus the
Marvel editor between 1958 and 1963, when the Kirby Works were created.
As art director and editor, Lee was responsible for the “creative editorial aspects” of the
comic books published by Timely Comics—which eventually became Marvel (the name I will
use from this point on). (Lee Dep. at 16:14:19; see also Pls.’ 56.1 ¶ 23.) As editor, Lee
developed the ideas and stories for all of Marvel’s comic books. (Pis.’ 56.1 ¶ 22; see also Lieber
Dep. 12:19-25, 13:22-14:4.) All of Marvel’s artists and writers reported to Lee. (PIs.’ 56.1 ¶j
23-24.) Lee assigned artists to work on comic books, edited or changed their work, set deadlines
for the submission of work, and even gave artists direction and guidance about the stories they
were assigned to draw. (Lee Dep. 16:5-17:4; see also Thomas Dep. 59:6-21; Lieber Dep. 14:5-8;
Pls.’ 56.1 ¶j25-26.)
During the period 1958-1963, when the Kirby Works were created, Lee supervised the
creation and publication of Marvel’s comic books from beginning to end. (PIs.’ 56.1 ¶J 27-29.)
Nothing was published without his approval. (i ¶J 30, 32.) Lee reviewed every artist’s work
before publication. (Lee Dep. 16:20-17:4.) If artwork was “confusing,” if more “action” was
needed, or if a script had too much or too little dialogue, Lee was responsible for “mak[ing] the
stories as good as [they] could [be].” (Id.; see also Lieber Dep. 15:16-25.) It was not uncommon
for Lee to make changes to artwork or a script without first consulting the artist or writer. (Scc
Thomas Dep. 63:23-64:19; see also Lieber Dep. 15:16-25.)
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Lee reported to Goodman. (Lee Dep. 16:17-19.) As the publisher and owner, Goodman
“was the ultimate boss,” and had the final say over what comics Marvel published. (
10/21/10 Deposition of John v. Romita (“Romita Dep.”) 243:2-4; see also Lee Dep. 19:13-17.)
If Goodman did not approve a comic book, it was not published. (Lee Dep. 97:10-11.)
Occasionally, Goodman would request changes to artwork or a story (j4 at 18:17-19:17); Lee
was responsible for ensuring that the artist executed Goodman’s changes. (ii)
B. The Marvel Method
During Lee’s early years as art director/editor, either he or another writer prepared
detailed “scripts” for new issues of comic books. (PIs.’ 56.1 ¶ 36; see also Lieber Dep. 12:19-23,
13:2-5.) These scripts consisted of a panel-by-panel breakdown of the story for each page and
explicit instructions about what action should be drawn for each panel and what dialogue would
be inserted to accompany the art. Only after a script was prepared was an artist asked to start
work on the comic. (Pls.’ 56.1 ¶ 36.) During this period, the freelance artists who drew for
Marvel had to wait for Lee to write a story before they could draw it. (Lee Dep. 20:7-21:24; see
also Pls.’ 56.1 ¶ 38.)

Predictably, Lee could not write enough stories to keep up with the artists, who wanted
new stories to draw as soon as they finished an assignment. (Lee Dep. 20:7-2 1:24; see also Pis.’
56.1 ¶ 38.) So to ensure that his artists always had an assignment, Lee invented what became
known as the “Marvel Method.” (Lee Dep. 20:7-2 1:24.) He could not place the invention of the
Marvel Method at any particular moment in time, other than to say that it evolved during the
1950s. (Lee Dep. 22:2-10.)
Under the Marvel Method, Lee would not write a detailed script for a story before
assigning an artist to draw it. Instead, at a “plotting conference,” or in a “plot outline,” Lee gave
15
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Case 1 :10-cv-00141-CM-KNF Document 121 Filed 07/28/11 Page 16 of 50
the artist the general contours of the story he had in mind: an outline of the plot, a description of
the hero, and suggestions for how the story should look. (I at 2 1:5-22; see also PIs.’ 56.1 ¶ 37;
Lieber Dep. 19:11-14, 28:3-9, 47:20-48:8.) The artist would draw the story along the lines of
Lee’s “main theme.” (Lee Dep. at 21:5-22.) After an artist completed the pencil drawings, Lee
edited his work and added dialogue and captions. (Ii) Use of the Marvel Method allowed Lee
to keep multiple artists working on assignments simultaneously. ( at 21:23-24; see also Pls.’
56.1 ¶ 37.)
Obviously, the Marvel Method gave an artist greater opportunity for input into the
process of creating the characters and the stories. However, even under the Marvel Method,
artists did not work “on spec;” they only began to draw “pages” when they received an
assignment and plot synopsis from Lee. (Pis.’ 56.1 ¶ 39; see also Thomas Dep. 56:12-15, 57:25-
58:9; see also N. Kirby Dep. at 127:25-128:5; see, e.g, Lieber Dep. 14:5-8, 23:18-21.)
Furthermore, the artists were always constrained by Lee’s plot outlines (PIs,’ 56,1 ¶j 40-41), and
Lee retained the right to edit or alter their work, or to reject the pages altogether and not publish
them if he did not like them. (Id. ¶ 43.)

Lee used the Marvel Method from the time he created it until he became Marvel’s
publisher in the early I 970s. (Id. ¶ 44.)

C. How Marvel Paid its Freelance Artists
Between 1958 and 1963, all of Marvel’s freelance artists and writers, including Kirby,
were paid flat per-page rates for artwork and scripts they produced. (PIs.’ 56.1 ¶J 45, 6 1-62;
also Sinnott Deci. ¶ 11 (“1 was paid at a page rate multiplied by the number of pages Marvel
bought.”); Steranko Deci. ¶ 13 (“I was paid by Marvel. . . on a per-page basis for the pages
Marvel purchased.”.).) Kirby never received royalties for his work.
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D. The Kirby Works
Between 1958 and 1963, Kirby worked on numerous comic book stories for Marvel.
(Pis.’ 56.1 ¶ 54.) Kirby received his assignments from Lee. (j ¶ 54). Kirby did not draw art
for Marvel without first receiving an assignment from Lee. (Id. ¶ 55; see also N. Kirby Dep. at
127:25-128:5).
Like other artists who worked for Marvel at the time, Kirby created his artwork based on
plot outlines or scripts provided by Lee. (PIs.’ 56.1 ¶ 54.) At plotting conferences, Lee had the
final say as to what was included in the comic book. ( ¶ 56.) Lee also had to approve Kirby’s
artwork before publication, and had the authority to require changes or edits to his work. (j4 ¶
58.) Occasionally, Lee asked Kirby to make changes to his work. (Ij ¶ 59.) According to Lee,
Kirby always complied with those requests. ()

Kirby participated in the creation of the following comic book stories that are the subject
of Defendants’ Termination Notices:
1. The Fantastic Four
In 1961, Goodman told Lee to create a new team of superheroes to compete with “The
Justice League of America,” which was published by National Comics. (Pls.’ 56.1 ¶ 80.) Lee
and Kirby co-created “The Fantastic Four.” (Lee Dep. 340:25-341:1.) At their first plotting
conference, Lee and Kirby discussed ideas for the first issue. Kirby then produced the pencil
drawings for that issue. (PIs.’ 56.1 ¶ 82.) “The Fantastic Four” was originally published in
November 1961. (Pls.’ 56.1 ¶ 84; Defs.’ 56.1 ¶ 84.)
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Case 1:10-cv-00141-CM-KNF Document 121 Filed 07/28/11 Page 18of50
2. The Incredible Hulk
“The Incredible Hulk,” a sympathetic hero-monster, was co-created by Lee and Kirby in
1962. (Pis.’ 56.1 ¶ 85; Defs.’ 56.1 ¶ 85, Lee Dep. 340:25-341:1.) Kirby drewthe first issue of
“The Incredible Hulk,” which was published in May 1962. (I ¶11 85-86.)
In that first issue, The Hulk had gray skin. However, the printer could not produce a
consistent shade of gray throughout the book. (PIs.’ 56.1 ¶ 87.) By the second issue The Hulk
had acquired his now-recognizable green skin. (Lee Dep. 81:20-83:4.) Lee picked the color
green because there was no other green hero at the time. ()

3. The Mighty Thor
“The Mighty Thor” was first published in August 1962. The hero was based on the
Norse god of thunder. (PIs.’ 56.1 ¶ 88-89.) Lawrence Lieber wrote the script for the first issue,
based on a synopsis for the plot created by Lee. (j) Kirby drew the art for the series’ first
issue. (Id.)
4. Spider-Man
In 1962, Lee developed the idea for a “nerdy” teenage hero with the power to stick to
walls and ceilings like an insect. ( ¶ 90.) Lee assigned Kirby to create the artwork for the
first Spider-Man story. (j) Lee did not like Kirby’s initial pencil renderings of Spider-Man—
the character was too muscular and heroic-looking—so he reassigned the comic book to artist
Steve Ditko. () After Ditko completed his work on the book, Kirby drew the cover. (j4 ¶
91.)
Spider Man first appeared in “Amazing Fantasy” in September 1962. (4 ¶ 92.) Spider-
Man was so popular that Goodman gave the character its own comic book. (4. ¶ 93.) “The
Amazing Spider-Man” was first published in March 1963. (Ii)
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5. Iron Man
Iron Man first appeared in “Tales of Suspense” in March 1963. (PIs.’ 56.1 ¶ 96.) The
first Iron Man comic book was written by Lawrence Lieber, based on a plot from Lee; Don Heck
drew the artwork. (Id. ¶J 94-95.) As with Spider Man, Kirby drew the cover for the comic
book’s first issue. (Id.)
6. TheX-Men
In 1963, due to the popularity of “The Fantastic Four,” Goodman asked Lee to create a
new team of superheroes. (PIs.’ 56.1 ¶ 97.) Lee conceived of The X-Men as a team of mutants
who were born with superpowers, or “extra powers;” he also created the character of Professor
Xavier, who opened a “School for Gifted Youngsters” where young mutants could enroll and
develop their mutant powers. (Lee Dep. 93:3-94:23.) Lee originally named his heroes “The
Mutants,” but Goodman did not like the name, so the superheroes acquired their familiar
moniker. (Id. at 94:12-20.)
The first issue of “The X-Men” was published in September 1963. (Pls.’ 56.1 ¶ 98.)
Kirby drew the artwork for that issue. ( ¶ 97.)
Z The Avengers
Also in 1962, Lee and Kirby developed a new team of superheroes, “The Avengers.”
(Pls.’ 56.1 ¶ 99.) “The Avengers” consisted of several existing Marvel superheroes fighting
together as a unit rather than separately. () Lee conceived the initial plot for “The Avengers,”
and Kirby drew the first issue, which was published in September 1963. (Id. ¶J 99-100.)
19
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8. Ant-Man
“Ant-Man” was first published in January 1962. Lee had the idea of a miniature hero.
(Id. ¶j 101-02.) Kirby drew the pencil artwork for the first issue of “Ant-Man,” and the panel-
by-panel script for the issue was written by Lieber. (j4 ¶ 101.)
9. Nick Fury
“Nick Fury” was based on a discontinued series from the World War II era entitled “Sgt.
Fury and His Howling Commandos.” (Id. ¶ 103.) Lee brought fury back to life and oversaw the
creation of the comic book using the “Marvel Method.” (j4.) Kirby was assigned to draw the
artwork for the new series. (4.) “Nick Fury” was first published in May 1963. (4. ¶ 104.)
10. The Rawhide Kid
Lee developed “The Rawhide Kid” because Goodman loved westerns and liked titles that
included the word “kid.” (Id. ¶ 105.) Lee also wrote the comic book’s first issue. (j4.) Kirby
drew the pencil artwork. Q4.) Eventually, the writing and artwork for “The Rawhide Kid” was
reassigned to Lieber. (14.) The first issue of the comic book was published in August 1960. (14.
¶ 106.)
E. The 1972 Assignment
There is no evidence of any contemporaneous written contract between Marvel and Kirby
relating to any of the Kirby Works. From Lee’s testimony, it appears that Kirby was a freelancer
who was retained to create comic book artwork at Lee’s instance and was paid an agreed-upon
fee for doing so.
In the spring of 1972—well after the creation of the Kirby Works—Marvel and Kirby
executed a written agreement. (Defs.’ 56.1 ¶ 147.) The agreement, which Kirby signed on May
30, 1972, assigns to Magazine Management Company (a Marvel predecessor) “any and all right,
20
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title and interest [Kirby] may have or control” in all the work that Kirby created for Marvel.
(Singer Deci. Ex. 17 at 1.A.(l) (emphasis added).) Specifically, Kirby assigned to Magazine
Management Company:
(1) Any and all MATERIALS, including any and all ideas, names, characters, symbols,
designs, likenesses, visual representations, stories, episodes, literary property, etc.,
which have been in whole or in part acquired, published, merchandised, advertised
and/or licensed in any form, field, or media by the Goodmans, their affiliates, and/or
their predecessors or successors in interest.
(2) Any and all RIGHTS, including any all copyrights, trademarks, statutory rights,
common law rights, goodwill, and any other rights whatsoever relating to the
Materials in any and all media and/or fields including any and all rights to renewal or
extension of copyright, to recover for past infringement and to make application or
institute suit therefor, and including by way of example and without limitation
Kirby’s claim to renewal copyright in Volume 2, Nos. 1-10 of the work entitled
“Captain America Comics,” these being evidenced by Registration Nos. R429502,
R446534, R446535, R446536, R446537, R446538, R446539, R446540, R446541,
and R448324 in the United States Copyright Office.
(Id.at l.A.(l) and l.A.(2).)’
As noted, Kirby assigned whatever right, title, and interest (including copyrights) he
“may” have, but the agreement contained no representation that Kirby in fact had any right, title
or interest to convey. To the contrary: the agreement contained explicit language that was
obviously intended to negate any suggestion that Kirby actually owned any federally-protected
copyright in his artwork:
Kirby acknowledges and agrees that all his work on the MATERIALS, and all his
work which created or related to the RIGHTS, was done as an employee for hire
of the Goodmans.
(Id. at 5.)
The agreement states that the term “Materials” is defined in “Schedules 1, 2, and 3,” which are
“attached” to the agreement. (Singer Decl. Ex. 17 at l.A.) However, Schedules 1, 2, and 3 were
not included in the declarations submitted to the Court by either party; the parties submitted only
a copy of the agreement without any attachments.
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Case 1:10-cv-00141-CM-KNF Document 121 Filed 07/28/11 Page22of5O
It is the assignment of any federal statutory copyright conveyed by this document that the
Notices purport to terminate.
F. Procedural Posture
On September 16, 2009, the Kirby Heirs served Marvel with Termination Notices under
17 U.S.C. § 304(c). The Termination Notices purport to terminate any and all pre-January 1,
1978 grants of copyrights made by Kirby in the Kirby Works, as well as any implied grant of
renewal rights under Federal Copyright law. (Defs.’ Answer ¶ 25.)
On January 8, 2010, Marvel commenced this action. The Kirby Heirs answered and
asserted five counterclaims against the Marvel Plaintiffs. The Court granted Marvel’s motion to
dismiss all counterclaims except the counterclaim seeking a declaration that the Termination
Notices were valid on November 22, 2010. Marvel Worldwide. Inc. v. Kirby, 756 F. Supp. 2d
461 (S.D.N,Y. 2010).
On February 25, 201 1, following discovery, the parties filed the motions that are the
subject of this opinion.
DISCUSSION
A. Standard on A Motion for Summary Judgment
Summary judgment is appropriate only “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986). In addressing a motion for summary judgment, the court must view the
evidence in the light most favorable to the party against whom summary judgment is sought and
must draw all reasonable inferences in its favor. L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81,
22
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Case 1:10-cv-00141-CM-KNF Document 121 Fi’ed 07/28/11 Page 23 of 50
87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.s. 574,
587 (1986)).
Whether a disputed issue of fact exists is for the court to determine. Balderman v. United
States Veterans Admin., 870 F.2d 57, 60 (2d Cir. 1989). The moving party has the initial burden
of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S.
317, 323 (1986). Once such a showing has been made, the non-moving party must present
“specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The party
opposing summary judgment “may not rely merely on allegations or denials in its own pleading;
rather, its response must. . . set out specific facts showing a genuine issue for trial.” Fed. R. Civ.
P. 56(e).
Not every disputed factual issue is material. A fact is “material” within the meaning of
Rule 56 when its resolution “might affect the outcome of the suit under the governing law.”
Anderson, 477 U.S. at 248. An issue is “genuine” when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. In determining whether an issue is
genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory
answers, and depositions must be viewed in the light most favorable to the party opposing the
motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); Ramseur v. Chase Manhattan Bank, 865
F.2d 460, 465 (2d Cir. 1989)). Therefore, although a court “should review the record as a whole,
it must disregard all evidence favorable to the moving party that the jury is not required to
believe.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151 (2000). To withstand a
summary judgment motion, sufficient evidence must exist upon which a reasonable jury could
return a verdict for the nonmoving party.
23
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As discussed above, the court can consider only evidence that would be admissible at
trial in support of a motion for summary judgment
Finally, “Broad, conclusory attacks on the credibility of a witness will not, by
themselves, present questions of material fact.” Island Software & Computer Serv., Inc. v.
Microsoft Corp., 413 F.3d 257, 261-62 (2d Cir. 2005) (citing Crawford-El v. Britton, 523 U.S.
574, 600 (1998)). Defendants challenge the credibility of Stan Lee, who (not surprisingly, given
his significant role at Marvel during the relevant time period) is Marvel’s main witness.
However, general attacks on Lee’s honesty or credibility, without more, are insufficient to raise a
genuine issue of fact, see, e.g., Crawford-El v. Britton, 523 U.S. at 600; McCullough v.
Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir. 1 999>—especially since many
matters about which Lee testified are corroborated by testimony from other freelance artists and
writers.
B. The Cross-Motions for Summary Judgment
The Copyright Act of 1976, effective January 1, 1978 (the “1976 Act”), gives an author
or his heirs a nonwaivable right to terminate a prior assignment of copyright at any time during
(1) a five-year period that begins on January 1, 1978, or (2) fifty-six years after the date the
statutory copyright was originally secured, whichever is later. See 17 U.S.C. § 304(c). It is this
right that the Kirby Heirs have purported to exercise by serving the Termination Notices
applicable to the Kirby Works. The Kirby Heirs take the position that Marvel acquired the
federal copyright in the Kirby Works via Kirby’s 1972 assignment. However, the fact of the
assignment is not conclusive—especially where, as here, it is couched in language assigning
whatever rights (including copyrights) Kirby “may” have, without making any definitive
statement about what rights he actually “did” have. As noted above, the assignment also
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Case 1:10-cv-00141-CM-KNF Document 121 Fed 07/28/11 Page 25 of 50
describes all of Kirby’s work for Marvel (which includes the Kirby Works) as work done by
Kirby as “an employee for hire of the Goodmans,” the owners of Timely/Marvel—which, if that
be true, means that Marvel, not Kirby, owned the federal copyright all along. In other words, the
assignment speaks out of both sides of its mouth.
The question raised by the cross motions is whether, applying legal tests that have been
settled in this Circuit for half a century, the Kirby Works were in fact “works made for hire.” If
they were, then the Termination Notices were ineffective. The reason is simple: works made for
hire are statutorily exempt from Section 304(c) termination, because the holder of the copyright
(the “employer”) is the statutory “author” of the work. $ 17 U.S.C. § 304(c); Penguin Grp.
(USA) Inc. v. Steinbeck, 537 F.3d 193, 203 (2d Cir. 2008).
The applicable rules of proof provide that the burden of raising the presumption that the
Kirby Works were in fact “works made for hire” rests on Marvel. If Marvel raises the
presumption, it will be deemed the author unless the Kirby Heirs rebut the presumption. They
can only do so if they prove, by a preponderance of the evidence, that Kirby and Marvel had a
“contrary agreement, either written or oral.” Playboy Enters.. Inc. v. Dumas, 53 F.3d 549, 554-
55 (2d Cir. 1995) (citing Roth v. Pritikin, 710 F.2d 934, 937 n.3 (2d Cir. 1983)). Should they fail
to raise a genuine issue of material fact on this score, Marvel is entitled to summary judgment.
C. Works for Hire under the 1909 Copyright Act
The Kirby Works were published between 1958 and 1963. The Copyright Act of 1909
applies to all works published prior to January 1, 1978, Playboy, 53 F.3d at 553, and so
constitutes the controlling law for our purposes.

2
2
This is important, because the 1976 Act, which is far more artist-friendly than the 1909 Act as
interpreted by the courts, substantially narrows the scope of works for hire when the work is
commissioned from a person who is not an “employee” of the commissioning party. ç 17
25
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The key word in that statute, for our purposes, is “author.” Under the 1909 Act, the term
“author” includes “an employer in the case of works made for hire.” 17 U.S.C. § 26 (1909)
(repealed); Playboy, 53 F.3d at 554. “Under this definition, an ‘employer’ who hires another to
create a copyrightable work is the ‘author’ of the work for purposes of the statute, absent an
agreement to the contrary.”
The terms “employer” and “works made for hire” are not defined in the 1909 Act—that
task was left to the courts.
By 1955 (which is when Congress began the two-decades-long process of overhauling
the 1909 Act), “the rule that [had] developed was to accord copyright protection to employers for
works made by their employees in the regular course of business.” S I Melville B. Nimmer &
David Nimmer, Nimmer on Copyright § 5.03(B)(1 )(a)(i). “As for commissioned works, the
courts generally presumed that the commissioned party had impliedly agreed to convey the
copyright, along with the work itself, to the hiring party.” ç Ciffly. for Creative Non-Violence
v. Reid, 490 U.S. 730, 744 (1989). The Ninth Circuit, in Lin-Brook Builders Hardwarev.
Gertler, 352 F.2d 298, 300 (9th Cir. 1965), was the first court explicitly to extend the work-for-
hire doctrine under the 1909 Act to works commissioned from independent contractors, rather
than created by employees. At about the same time, courts expanded “the definition of
‘employer’ to include a hiring party who had the right to control or supervise the artist’s work.”
Nimmer on Copyright § 5.03(B)(1)(a)(i).

In Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567-68 (2d Cir.
1966), the Second Circuit first adopted the “instance and expense” test for deciding whether a
work commissioned from an independent contractor qualified as a work-for-hire under the 1909
U.S.C. § 101 (enumerating the types of commissioned work that qualify as “work made for
hire”).
26
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Act. That test remains in use today for answering the question posed by the cross motions for
summary judgment.
D. Were the Works Made for Hire: The “Instance and Expense” Test
In this Circuit, courts apply a two-pronged test to determine if a “work is made for hire”
under the 1909 Act. The test is referred to as the “instance and expense” test.
“The copyright belongs to the person at whose ‘instance and expense’ the work was
created.” Martha Graham Sch. and Dance Found.. Inc. v. Martha Graham Ctr. of Contemporary
Dance. Inc., 380 F.3d 624, 634-35 (2d Cir. 2004). An independent contractor is treated as an
employee under the statute if the work is made at the hiring party’s “instance and expense.”
Playboy, 53 F.3d at 554; see also Estate of Burne Hogarth v. Edgar Rice Burroughs. Inc., 342
F.3d 149, 159-60 (2d Cir. 2003).
“A work is made at the hiring party’s ‘instance and expense’ when the employer induces
the creation of the work and has the right to direct and supervise the manner in which the work is
carried out.” Martha Graham, 380 F.3d at 635; see also Playboy, 53 F.3d at 554. “The right to
direct and supervise the manner in which work is created need never be exercised.” Martha
Graham, 380 F.3d at 635; see also Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d
Cir. 1972). “[T]he hallmark of ‘an employment for hire’ is whether the employer could have
exercised the requisite power to control or supervise the creator’s work.” Playboy, 53 F.3d at
554 (emphasis added).
The Second Circuit’s jurisprudence concerning the status of commissioned works under
the 1909 Act creates “an almost irrebuttable presumption that any person who paid another to
create a copyrightable work was the statutory ‘author’ under the ‘work for hire’ doctrine.” Estate
of Burne Hogarth, 342 F.3d at 158 (citation omitted).
27
JA2393
On the undisputed facts, the Kirby Works were created at the instance and expense of
Marvel. Therefore, Marvel is presumed to be their “author,” and the holder of the statutory
copyright as a matter of law.
1. Instance
“When the ‘motivating factor in producing the work was the employer who induced the
creation,” then the work is made at the hiring party’s “instance.” Playboy, 53 F.3d at 554
(quoting Siegel v. Nat’l Periodical Publ’np Inc., 508 F.2d 909, 914 (2d Cir. 1974)). “That the
commissioning party be the motivating factor is not a ‘but for’ test—that is, but for the artist’s
employment the work would not have been created—but instead is a more narrow inquiry
focused on the nature and scope of the parties’ business relationship.” Siegel v. Warner Bros.
Entm’t Inc., 658 F. Supp. 2d 1036, 1059 (C.D. Cal. 2009).
In analyzing that relationship, courts focus on the degree to which the hiring party had the
right to control or supervise the artist’s work, since “an essential element of the employer-
employee relationship, is the right of the employer to direct and supervise the manner in which
the [artist] performs his work.” Estate of Burne Hogarth v. Edgar Rice Burroughs, Inc., 2002
WL 398696, at *18 (S.D.N.Y. 2002); see also Siegel, 658 F. Supp. 2d at 1059-60. Whether the
hiring party had the power to accept, reject, modify, or otherwise control the creation of the work
is relevant to whether the work was created at the “instance” of the hiring party. Picture
Music, 457 F.2d at 1217; see also Playboy, 53 F.3d at 554. Complete control over the creator’s
work is not necessary. See. e.g, Picture Music, 457 F.2d at 1217; see also Martha Graham Sch.,
380 F.3d at 635. Instead, “the greater the degree of supervisory power and control a
commissioning party has over an independent contractor, the more likely it is that the work was
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Case 1 :10-cv-00141-CM-KNF Document 121 FDed 07/28/11 Page 29 of 50
created at the commissioning party’s instance.” Twentieth Century Fox Film Corp v.
Entertainment Distributing, 429 F.3d 869, 880 (9th Cir. 2005).
The record on the cross motions admits of but one conclusion: Kirby did not create the
artwork that is the subject of the Termination Notices until Lee assigned him to do so. ( P Is.’
56.1 ¶ 55, 64.) Lee so testified, of course, but he was not the only one. Kirby’s son Neal, a
Plaintiff in this case, testified that his father “didn’t do work on spec[ulation], he was getting
paid by the page.” ( N. Kirby Dep. at 127:19-128:5.) Although Neal Kirby testified that
there were instances where “his father did pitch ideas on spec to Marvel,” he also admitted that
his father did not draw a comic book story until he had received approval for that story or was
assigned to that story by Lee or Goodman. (N. Kirby Dep. 167:21-168:23.)
Kirby’s refusal to work “on spec,” as it was called, was consistent with how other Marvel
freelance artists operated at the time. (Sç PIs.’ 56.1 ¶ 39.) Goodman and Lee were responsible
for hiring artists to create work that Marvel could publish. (Thomas Dep. 56:16-18; Romita Dep.
18:15-19; Lieber Dep. 14:5-8.) Thomas testified that artists did not work on comic book “pages”
before discussing the plot with Lee—meaning, before receiving an assignment. (Thomas Dep.
56:12-15.) Lieber also testified that assignments to write scripts came from Lee, and that Lee
was responsible for deciding which writer was assigned to a particular script for a comic book.
(Lieber Dep. 14:5-8, 23:18-21.) Lee also testified that Marvel did not purchase work from artists
that was not part of an assignment from him—that is, it did not purchase work that was created
“on spec.” (Lee Dep. 41:20-42:3; see also Thomas Dep. 58:14-23.)
The Kirby Heirs submitted declarations from three other freelance artists who were
contemporaries of Kirby—James Steranko, Richard Ayers, and Joe Sinnott. But Sinnott’s and
Steranko’s declarations do not create an issue of fact on the question of instance because all three
29
JA2395
stated that payment for their work was contingent on approval of the work by Marvel’s editor,
(Steranko Dccl. ¶ 14; Sinnott Decl. ¶ 11; Ayers Dccl. ¶ 11), and neither artist stated that he
worked on “spec.” Additionally, although all three artists state that they were paid for work that
Marvel accepted, none discusses whether their work was revised after submission but prior to
publication. As such, their declarations do not create an issue of fact on the question of
3
instance.
In the work-for-hire context, “an essential element of the employer-employee
relationship[J is the right of the employer to direct and supervise the manner in which the [artist]
performs his work.” Id. at 554 (quoting Picture Music, Inc. v. Boume, Inc., 457 F.2d 1213, 1217
(2d Cir. 1972)). If the hiring party “took the initiative in engaging [the artist]” and had “the
power to accept, reject, or modify her work,” then the work is a work for hire. Picture Music,
457 F.2d at 1217. It is undisputed that at all times between 1958 and 1963 Lee had complete
editorial and stylistic control over all work that Marvel published.
In the 1950s and 1960s, Lee supervised the creation of Marvel’s comic books from
conception to publication. (PIs.’ 56.1 ¶J 23-27.) Lee assigned writers and artist to work on
comic books and reviewed all work before it was published. (j ¶J 24, 30.) Lee also had the
authority to ask artists to revise or edit their work before publication and frequently exercised
that authority. (Ed. ¶j 32, 33, 35.) Freelance artist John Romita, for instance, testified that in the
Even if the Court were to consider the “expert” testimony of Evanier and Morrow, the result
would remain the same: neither Evanier’s nor Morrow’s testimony creates an issue of fact as to
whether the Kirby Works were created at Marvel’s instance and expense. As discussed, the fact
that Marvel paid Kirby a fixed per-page rate for those works is by itself sufficient to satisfy the
expense prong. Moreover, the testimony of witnesses with first-hand knowledge, such as the
testimony of Lee and Lieber, establishes that the Marvel works were created at Marvel’s
instance. Evanier’s and Morrow’s testimony, based on hearsay and lacking in personal
knowledge, is insufficient to create an issue of fact on the “instance” prong. Because neither
“expert” points to “an agreement to the contrary,” their testimony is also insufficient to rebut the
presumption that the Kirby Works were works made for hire.
30
JA2396
1950s, when he submitted artwork to Lee, Lee would note any corrections that needed to be
made, and Romita made those corrections. (Romita Dep. 21:12-19, 23:4-13.) If, for instance,
Lee wanted a character’s frown changed to a smile to suit the story’s dialogue, the artist made
the change. (Id.) Lee did not always consult with the artist before making a change to their
work. (Pls.’ 56.1 ¶ 33; see also Thomas Dep. 63:23-64:2.)

If Lee did not approve of the artist’s work, it was not published. (Pis.’ 56.1 ¶ 30; see also
Steranko Dccl. ¶¶ 11, 13; Sinnott Deci. ¶ 11.) Kirby was no exception. Lee edited Kirby’s
work and reviewed and approved all of his work prior to publication. (PIs.’ 56.1 ¶J 58-59.)
Lee’s testimony is consistent with the recollection of Kirby’s daughter, Susan Kirby, who
testified that Lee asked her father to “redo pages.” (10/25/10 Deposition of Susan Kirby (“S.
Kirby Dep.”) 37:23-25.) Neal Kirby testified about one instance where Lee rejected a “cover”
created by Kirby. (N. Kirby Dep. 58:8-18.)
Additionally, it was Lee who generated the plot or synopsis from which an artist created
the pencil drawing for each assignment. (PIs.’ 56.1 ¶ 31; see also Lieber Dep. 13:2-5, 13:22-24.)
Lee testified that he assigned an artist to draw a comic book after he had either described the
premise in a plot outline or plotting conference, or provided the artist with a detailed script.
(PIs.’ 56.1 ¶J 36-37, 39, 54, 82, 85, 88, 94-95, 97, 99, 101.) Lee, who created the plot and
dialogue for the characters after the pencil drawing was completed, often times ignored any
“margin notes” submitted by the artist with suggestions as to the plot or dialogue in the story.
(Romita Dep. 72:21-74:13.)
Lee’s testimony is corroborated by both documentary evidence and testimony from other
artists and writers who worked for Marvel during the 1950s and 1960s. (See Singer Deci. Ex. 30
(example of Marvel plot outline); see also Pis.’ 56.1 ¶ 37, 39, 54, 88, 94-95, 101.) For instance,
31
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Thomas testified that Lee “would come up with the idea for the plots” and Lee would then give
the plots to the artists to draw. (Thomas Dep. 218:14-219:10.) Romita also testified that he and
Lee would “get together in a room” to discuss the plot, and then he “would have to do the nuts
and bolts” in the pencil drawing. (Romita Dep. 39:18-40:18.) Further, Lieber similarly testified
that it was Lee who “came up with the ideas for the characters that would be in the story” and it
was Lee who developed the “plot” or “idea” for the comic book. (Lieber Dep. 12:19-23, 13:22-
24.) Marvel also produced a plot outline for the first issue of “The Fantastic Four” comic book.
(Singer Deci. Ex. 30 (plot outline).) The plot outline gave the artist a detailed narrative of the
story to be drawn, including the number of pages the artwork should consume. Kirby produced
the pencil drawing for that issue.

4
Defendants argue that Kirby did not have a contractual relationship with Marvel (by
which they mean there was no written contract setting forth the terms of their arrangement), so
therefore Marvel lacked the legal right to control Kirby’s work. This argument is entirely
unpersuasive.
First, the fact that there was no written contract does not, as a matter of law, mean there
was no contractual relationship. “We agree that, if you draw a picture, I will pay you” creates a
contract, whether the agreement is reduced to writing or not. The issue, however, is of no
moment, since no written contract is needed to satisf’ the “instance” prong of the instance and
expense test.
Second, in deciding whether the “instance” prong is satisfied, courts focus on the “actual
relationship between the parties,” see. e.g., Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d
“
The “expert” declarations of Morrow and Evanier stricken by the Court were submitted to try to
raise an issue of fact about “instance.” If they were still in the record, they would not raise such
an issue, because neither “expert” was at Marvel between 1958 and 1963, and therefore neither
has first-hand knowledge of how the Kirby Works were created.
32
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548, 552-53 (2d Cir. 1984), and whether the hiring party could have controlled or supervised the
creator’s work, Playboy, 53 F.3d at 554; see also Martha Graham, 380 F.3d at 635. A hiring
party’s ability to supervise and edit an artist’s work does not need to be based on terms set out in
a written contract. As the undisputed facts here illustrate, Marvel, through Lee, gave artists
assignments, reviewed their work, and made changes when necessary. Marvel did control and
supervise all work that it published between 1958 and 1963.
Accordingly, there is no disputed issue of material fact: the undisputed evidence
illustrates that the Kirby Works were created at Marvel’s “instance.”
2. Expense
To qualify as a work for hire under the 1909 Act, the Kirby Works must also have been
created at the expense of the hiring party—in this case, Marvel. Martha Graham, 380 F.3d at
634.
The parties do not dispute that Kirby provided his own tools, worked his own hours, paid
his own taxes and benefits, and used his own art supplies. (Defs.’ 56.1 ¶f 149-51.) Indeed, the
reason the Kirby Heirs submitted the Sinnott, Steranko, and Ayers declarations—in which all
three artists state that as freelance artists they worked from home and paid for their own supplies
(Sinnott Deci. ¶ 9; Steranko Decl. ¶ 10; Ayers Decl. ¶ 10)—was to try to raise an issue of fact
about whether the Kirby Works were created at Marvel’s “expense.” But these factors “have no
bearing on whether the work was made at the hiring party’s expense;” they are relevant only to
the issue of whether an artist worked as an employee and not an independent contractor.
Playboy, 53 F.3d at 555; see also Siegel, 658 F. Supp. 2d at 1058.
In this Circuit, the “expense” requirement is satisfied “where a hiring party simply pays
an independent contractor a sum certain for his or her work.” Playboy, 53 F.3d at 555 (citing
33
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Second Circuit precedent). In Playboy, the Second Circuit determined that “the simple fact that
Playboy paid [the artist] a fixed sum for each of the works published in Playboy magazine is
sufficient to meet the requirement that the works be made at Playboy’s expense.” j (italics in
original). “In contrast, where the creator of a work receives royalties as payment, that method of
payment generally weighs against finding a work-for-hire relationship.” j “[T]he focus is on
who bore the risk of the work’s profitability.” Siegel, 658 F. Supp. 2d at 1058 (emphasis added).
It is undisputed that Kirby was paid a fixed per-page fee for all work that Marvel
published—including the Kirby Works. (Pis.’ 56.1 ¶j 61-62; Defs.’ 56.1 ¶f 61-62.) Therefore,
there is no genuine issue of material fact: the works were created at Marvel’s expense.
The Kirby Heirs argue that Kirby bore the risk of his work’s profitability because Marvel
was not legally obligated to purchase all the work that Kirby submitted, and on occasion rejected
Kirby’s work, or asked him to revise it. They also assert that Kirby was not paid any “turn down
fee” or any extra amount if he was required to revise a drawing, and contend that this, too, shows
that he bore the risk that his work would not be acceptable to Marvel.
Plaintiffs retort that the relevant question is which party bore the risk of the profitability
of entire project—that is, the risk that the published comic book would not sell. According to
Plaintiffs, Marvel bore that risk, because it hired the team of artists who were tasked with
creating the comic book (i.e., the writers, pencillers, inkers, letterers, colorists, etc.), bore the cost
of printing the comic book, and paid the artists a flat fee, before publication and irrespective of
whether the comic book made a profit.
The Kirby Heirs’ argument has been made before, and it has been roundly rejected in
favor of the position taken here by Marvel.
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In Playboy, for instance, Playboy paid Patrick Nagel, the artist, “a fixed sum for each of
the works published in Playboy magazine,” —exactly the same arrangement that Kirby had with
Marvel. Id., 53 F.3d at 555. For the Second Circuit this alone was “sufficient to meet the
requirement that the works be made at Playboy’s expense.”
The Kirby Heirs note that, on remand from this decision, the district court focused on
Nagels’ receipt of a turn-down fee in making the final determination that his paintings were
works for hire. They argue that Marvel’s failure to pay Kirby a similar fee for unpublished work
means that he bore the risk, and so created the work at his own expense. Unfortunately, their
argument rests on a misreading of the context in which the district court discussed the turn down
fee. On remand, the district court considered the turn-down fee in the context of addressing the
instance prong of the instance and expense test—not the expense prong. The Court accepted
Playboy’s argument that it “at least implicitly requested Nagel to submit at least one painting a
month and that it [the turn-down fee] therefore was the motivating factor in the creation of those
paintings.” Playboy Enterprises. Inc. v. Dumas, 960 F. Supp. 710, 713 (S.D.N.Y. 1997). In this
case, the evidence that the works were created at Marvel’s instance is so overwhelming that its
failure to pay Kirby a turn-down fee is effectively irrelevant.
In Estate of Burne Hogarth v. Edgar Rice Burroughs, Inc., 2002 WL 398696 (S.D.N.Y.
Mar. 15, 2002), aff’d, 342 F.3d 149 (2d Cir. 2003), the estate of artist Bume Hogarth claimed
ownership of the copyrights in two illustrated Tarzan books. The fictional character, Tarzan,
was created by Edgar Rice Burroughs, and the Defendant, Edgar Rice Burroughs, Inc. (“ERB”),
was the corporate entity that owned the copyrights in Burroughs’ work. The court concluded
that the two illustrated Tarzan books created by Hogarth were done at ERB’s instance and
expense. Discussing the expense prong of the test, the court explained that “ERB’s non
35
JA2401
Case 1 :10-cv-00141-CM-KNF Document 121 Filed 07/28/11 Page 36 of 50
refundable advance against royalties to Hogarth of $5,000, the $5,000 cap on its deduction from
royalties for its expenses in addition to the Hogarth advance, the salaried work of its executive.
• , its obligation to procure domestic and foreign publishers and negotiate the terms of the
publishing contracts (contracts executed by ERB and not Hogarth), and its full assumption of the
risk of loss on the project” was evidence that the books were created at ERB’s expense. Id. at
*20 (emphasis added). Even though Hogarth was eligible to receive royalties if the works sold
well, the court nonetheless concluded that the books were made at ERB’s expense because,
“Where, as here, the creator receives both a fixed sum and royalties, the fact that the creator
received a fixed sum is sufficient to meet the requirement that the works be made at the
employer’s expense.” j. at *20.
In this case, Kirby received only a fixed sum; he was not eligible to collect royalties. His
heirs’ argument that he bore the risk of the project is, therefore, even less persuasive than was
Hogarth’s losing argument in Burroughs.
Finally, in Twentieth Century Fox Film Corp v. Entertainment Distributing, 429 F.3d 869
(9th Cir. 2005), the issue was whether “Crusade in Europe,” General Dwight D. Eisenhower’s
account of World War II, was a work for hire. The Ninth Circuit concluded that the book was
created at the instance and expense of the publisher (Doubleday), and so was a work for hire.
Focusing on the issue of expense, the court explained that Doubleday, by agreeing to pay
General Eisenhower a “lump sum for writing the book, instead of negotiating a royalty deal” and
by “shoulder[ing] the expense for the entire staff who assisted General Eisenhower in drafting
the manuscript,” had taken “on all the financial risk of the book’s success.” Id.
Like Eisenhower, Kirby took on none of the risks of the success of the many comic books
he helped produce. His contribution to the enterprise was plainly critical, but Marvel, not he,
36
JA2402
Case 1:10-cv-.00141-CM-KNF Document 121 Filed 07/28/11 Page 37 of 50
bore the risk of its failure. Therefore, the expense factor favors Marvel’s work-for-hire claim as
well.
E. The Kirby Heirs Fail to Rebut The Work-For-Hire Presumption.
Because the Kirby Works were created at Marvel’s instance and expense, there arises a
presumption that the Kirby Works were works for hire within the meaning of the 1909 Act. This
means that Marvel is presumed to be the “author” of the Kirby Works and the original owner of
the copyright in those works. S Playboy, 53 F.3c1 at 554.

“That presumption can be overcome, however, by evidence of a contrary agreement,
either written or oral.” Id. The Kirby Heirs bear the burden “to demonstrate by a preponderance
of the evidence that such a contrary agreement was reached.” at 554-55, 556. Put otherwise,
Marvel, having successfully raised the presumption, is entitled to summary judgment unless the
Kirby Heirs adduce admissible evidence justifying a finding—or at least raising a genuine issue
of fact—that Kirby and Marvel agreed that the Kirby Works would not be “works made for
hire.”
The Kirby Heirs claim that three documents constitute “evidence to the contrary”
sufficient to justify the conclusion that Kirby and Marvel did not intend a work-for-hire
relationship: (I) the 1972 assignment agreement between Kirby and Marvel, (2) checks issued
between 1973 and 1974 by Marvel to freelance artists other than Kirby, and (3) a 1975
employment agreement between Kirby and Marvel. The Kirby Heirs argue that these documents
demonstrate an understanding that Kirby, not Marvel, originally owned the federal statutory
copyright in the Kirby Works, and that Marvel acquired those copyrights via the (now revocable)
assignment from Kirby.
37
JA2403
In fact, the first of those documents—the 1972 assignment—is the antithesis of evidence
showing the existence of an agreement that contradicts the work-for-hire presumption. The plain
language of the 1972 assignment makes it clear that all of Kirby’s work for the publications
owned by the Goodmans (Timely and Marvel) was work for hire. Other statements made by
Kirby himself—including a 1986 affidavit in which Kirby admitted that the practice at the time
the Kirby Works were created vested ownership of those works in the commissioning party—
corroborate the plain language of the 1972 assignment. (Singer Deci. Ex. 47 at ¶ 1.) So not only
are the documents on which the Kirby Heirs rely not “evidence to the contrary” of the
presumption; they prove conclusively that the Kirby Works were works for hire.
1. The 1972 Agreement
It is undisputed that there was no written contract governing the relationship between
Marvel and Kirby during the years 1958-1963, when the Kirby Works were created. (Pls.’ 56.1 ¶
141; Defs.’ 56.1 ¶f 141, 146.) The first written agreement between Marvel and Kirby was
executed on June 5, 1972—nine years after the last artwork at issue was created. (Pls.’ 56.1 ¶
147; Defs.’ 56.1 ¶ 147.) This is the agreement discussed above, which contains the language
assigning to Magazine Management Company (a predecessor of plaintiffs) “any and all right,
title and interest [Kirby] may have or control” in all the work Kirby created for Marvel. (Singer
Deci. Ex. 17 at 1.A.(1).) It is also the document in which Kirby agreed that he had created the
works as an “employee for hire” of the Goodmans, who owned Marvel. (Ij at 5.)
The Kirby Heirs assert that the 1972 assignment necessarily shows that Marvel knew
Kirby owned the copyrights in his works; prior to the document’s execution, otherwise, they
argue, it would be superfluous. Again, defendants make an argument that has been repeatedly
rejected. The fact that the 1972 agreement assigns to Marvel whatever right, title and interest
38
JA2404
Case 1:1 0-cv-001 41 -CM-KNF Document 121 FHed 07/28/11 Page 39 of 50
Kirby had at that time in the copyrights to the Kirby Works does not mean that the works were
not created as “works for hire” within the meaning of the 1909 Act.
In Twentieth Century Fox Film, the defendant argued that General Eisenhower’s memoir
was not a work for hire, because Eisenhower and the publisher, Doubleday, signed an agreement
assigning all of Eisenhower’s rights in the book to Doubleday. 429 F.3d at 881. The defendant
argued that if Doubleday held the copyright in the book under the work-for-hire doctrine, the
assignment was unnecessary. i4

The Ninth Circuit disagreed. It explained that the 1948 contract was “insufficient to
rebut the presumption” that the book was a work for hire, because it was not “evidence that the
parties did not intend to create a work-for-hire”—the only type of evidence that can rebut the
presumption. Ed. Relying on Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298 (9th Cir.
1965), the court explained that the assignment contract alone did not rebut the work-for-hire
presumption, because the contract did not provide “evidence as to the circumstances or
intendment of its execution.” Twentieth Century Fox Film, 429 F.3d at 881 (italics in original).
Similarly, there is no evidence as to the circumstances under which the 1972 assignment by
Kirby was executed.
This Court in Hogarth also rejected that an agreement conveying rights in the two books
Hogarth created, signed after the work was created, meant that the independent contractor had
originally reserved the copyright in his work, and so rebutted the presumption of work for hire
by the instance and expense test. 2002 WL 398696, at *23. The works were published in 1972
and 1976. In 1970, Hogarth and ERB signed an agreement that conveyed to ERB “whatever
rights we need to obtain the copyright in our name and to extend and renew that copyright
wherever and whenever we can.” Id. The court in Flogarth concluded that the provision in
39
JA2405
Case 1:10-cv-00141-CM-KNF Document 121 FUed 07/28/11 Page 40 of 50
paragraph eight of the agreement neither ‘“proves [n]or disproves that the parties intended
something other than a work-for-hire relationship.” j (quoting Playboy, 53 F.3d at 557).
Citing Playboy, the Court noted that “the 1909 Act only governed works after they were
published, and left their protection before publication to common law copyright” and therefore
the assignment contract could have meant to “protect[ I the rights of the hiring party before
publication.” i4 at *23. Moreover, paragraph eight also provided that ERB “shall be the
exclusive proprietor[ ]“ of the copyrights in the Books. I The Court relied on this language to
conclude that the “precise import of paragraph 8 to the 1970 Agreement remains unclear, and an
explanation for its language consistent with a work for hire arrangement is ‘at least plausible.”
j (quoting Playboy, 53 F.3d at 557). Further, the language of the agreement conveyed to ERB
“whatever rights we need;” it did not constitute an acknowledgement that any rights actually
needed to be conveyed.
In this case, as I have already noted, the language of the 1972 Agreement does not
support the Kirby Heirs’ claim. The agreement only purports to assign whatever right, title and
interest Kirby “may have” in the Kirby Works; it does not contain language acknowledging that
Kirby actually had retained any federally protected copyright in those works at the time he
created them. What the 1972 agreement does contain is Kirby’s admission that he created the
works as an employee for hire of Marvel’s owners—definitive language that completely
eviscerates the Kirby Heirs’ claim that the agreement constitutes evidence of an understanding
that the Kirby Works were not works for hire.
The fact that the assignment was executed when it was—in I 972—actually suggests that
the parties intended to memorialize an understanding that the Kirby Works were works for hire,
rather than the contrary. 1972 was shortly before the 1909 Act was superseded by the 1976 Act.
40
JA2406
Drafts of the new copyright law (the first produced in 1963) threatened to alter the court-created
presumption that works commissioned from independent contractors were likely works for hire.
See generally Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 744-45 (1989)
(discussing history of enactment of the 1976 Copyright Act). The 1965 draft of the statute
limited “works for hire” to “a work prepared by an employee within the scope of his
employment” and four categories of works commissioned from non-employees “if the parties
expressly so agreed in writing: works for use ‘as a contribution to a collective work, as a part of a
motion picture, as a translation, or as a supplementary work.” Eci4, 490 U.S. at 746. In 1966,
the House Judiciary Committee added four additional categories of commissioned works to the
four mentioned in the 1965 draft: compilations, instructional texts, tests, and atlases. With one
further addition (answer material for a test), that is the definition of works for hire in the 1976
statute. Id. at 747. With a definition of work for hire on the horizon that would severely restrict
the ability of a party in Marvel’s position to claim copyright in works created by independent
contractors, it is easy to see why the company and Kirby entered into the 1972 Agreement—even
though the 1976 Act did not apply to works created before January 1, 1978.
The fact that the assignment addressed “all right, title, and interest” evinces a second
purpose for the agreement. Prior to passage of the 1976 Act, common law copyrights existed in
unpublished works. See e.g., Playboy, 53 F.3d at 557; Hogarth, 2002 WL 398696, at *23. To
the extent that Kirby had common law copyrights in any unpublished work covered by the
assignment (such as work rejected by Lee), he conveyed those rights to Marvel in 1972. The
Termination Notices, which address only statutory copyright, have no effect on any such
assignment.
41
JA2407
The Hogarth Court’s conclusion that an assignment of rights was not evidence of an
agreement contrary to the presumption was bolstered by the “profusion of evidence that Hogarth
always considered ERB the sole and exclusive owner of all copyright interest in the Books,
including in his original art published in the Books. . . .“ 2002 WL 398696, at *23. In this case,
as in Hogarth, there is ample additional evidence to corroborate Marvel’s contention that Kirby’s
understanding was no different. For example, on July 12, 1966, Kirby signed an affidavit in
which he averred that another character he helped create, Captain America (which is not one of
the Kirby Works for which Termination Notices were sent), belonged to the company for which
he created it; Kirby “felt that whatever [he] did for Timely belonged to Timely as was the
practice in those days.” (Singer Decl. Ex. 44 at Marvel0000354.) Kirby also signed a copyright
registration application for Captain America in which he acknowledged that Marvel was the
“proprietor of a copyright in a work made for hire.” (PIs.’ 56.1 ¶ 70.)

Finally, in an “Acknowledgement of Copyright Ownership” dated June 16, 1986, Kirby
himself stated:
I have no copyright rights and no claim to copyright, or to the renewal or

extension of copyright, or any other rights (except only for my ownership of the
original physical artwork being returned to me by Marvel) in any artwork,
characters, publications or other material.. created or prepared by me for or on
.
behalf of, or which was published by or under the authority of, Marvel Comics
Group or any predecessor company.
(Singer DecI. Ex. 47 at ¶ 1.) None of these statements suggests that the 1972 agreement
conveyed any federal copyright from Kirby to Marvel; all of them support Marvel’s contention
that no agreement exists that contradicts the work-for-hire presumption.
Thus, the 1972 assignment agreement is the antithesis of evidence of”an agreement to
the contrary” and does not rebut the presumption that the Kirby Works are works made for hire.
42
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Case 1:1 0-cv-00141 -CM-KNF Document 121 Filed 07/28/11 Page 43 of 50
2. The 1975 Employment Agreement
The first written employment agreement between Kirby and Marvel is dated March 24,
1975. ( Singer Deci. Ex. 46.) That agreement, which ran for a term of three years
commencing on May 1, 1975, provides the following:
“Writer/Artist grants to Marvel the sole and exclusive right to all Material
delivered to Marvel hereunder including, but not limited to, (a) the exclusive right
to secure copyright(s) in the Material in the United States, Canada, and
throughout the world, (b) the magazine rights therein of every kind, (c) all film
and dramatic rights of every kind, (d) all anthology, advertising and promotion
rights therein, and (e) all reprint rights.
(Id. at ¶ 7.) Based on this language, the Kirby Heirs argue that, as late as 1975, Marvel believed
its relationship with its freelance artists was premised on the purchase of work and the
assignment of copyright, and not on the work-for-hire doctrine. (Defs.’ Br. In Opp. To Pls.’
Mot. For Summ. J. at 18-19.)
Again, the argument is unpersuasive. The employment agreement—signed literally on
the eve of passage of the new copyright law, under which Kirby’s future work would not have
qualified as work for hire in the absence of such an agreement -- is not evidence that Kirby and
Marvel intended for Kirby to retain any federal copyright in his work at the time he created it.
Furthermore, the 1975 Agreement cannot be an agreement “to the contrary” for our purposes
because it relates to work that was going to be produced between May 1975 and May 1978—not
to the Kirby Works, which were created between 1958 and 1963. It is only the 1972 Agreement
that might have created an agreement “to the contrary” of the work-for-hire presumption—and as
we have seen, it does not.
3. The 1973 and 1974 Checks
There is really no need to consider the other evidence presented by the Kirby Heirs,
because the language of the 1972 “assignment” and Kirby’s own statements doom their position.
43
JA2409
However, the other documents on which the Kirby Heirs rely add nothing of substance to their
contention.
Neither Plaintiffs nor Defendants have copies of any checks that Marvel issued to Kirby
during the relevant period—nor does Marvel still have copies of checks used to pay other
freelance artists who submitted work during those years. (PIs.’ 56.1 ¶ 156; Defs.’ 56.1 ¶ 156.)
The earliest check uncovered by the Kirby Heirs is from 1973. It was issued by Marvel to
Stephen Gerber, a freelance artist. (Defs.’ 56.1 ¶ 157.) The check bears the following “legend:”
By endorsement of this check: 1, the payee, acknowledge full payment for my

employment by Magazine Management, Co., and for my assignment to it of any
copyright, trademark, and any other rights in or related to the material, and,
including my assignment of any rights to renewal copyright.
(Pls.’ 56.1 ¶ 158.) Marvel located a second old check, issued in 1974 to Dick Ayers, another
Marvel freelance artist; it bears the same legend. (Defs.’ 56.1 ¶ 158.)
The first check produced by Marvel bearing a legend that explicitly mentions “work for
hire” is from 1986—long after passage of the 1976 Act, which, as noted above, substantially
narrowed the scope of work for hire from independent contractors from that which pertained
under the 1909 Act. (Defs.’ 56.1 ¶ 159.) The legend on this check (which was made payable to
Kirby) states:
By acceptance and endorsement of this check, payee acknowledges, (a) full

payment for payee’s employment by Marvel Entertainment Group, Inc., (b) that
all payee’s work has been within the scope of that employment, and (c) that all
payee’s works are and shall be considered as works made for hire, the property of
Marvel Comics Group, Inc.
(2/25/11 ToberoffDecl. Ex. BB.)
The Kirby Heirs argue that checks issued to Kirby between 1958 and 1963 must have
borne a legend similar to the legend that appeared on the 1973 and 1974 checks. They also argue
that placement of the legend suggests that Marvel believed that its artists owned the copyright in
44
JA2410
their works, and that Marvel required an assignment from the artists in order to acquire the
copyright.
Of course, there is absolutely no evidence that checks issued to Jack Kirby between 1958
and 1963 bore a legend identical or similar to the one that appears on the checks from a decade
later; one cannot infer what might have been written on a check issued in 1958 from what was
written on an analogous check fifteen years later. For that reason alone, the 1973 and 1974
checks do not raise any genuine issue of fact that tends to contradict the work-for-hire
presumption. The legend that appears on the 1986 check can be explained by the radical change
in the law on work for hire that was worked by the 1976 Act (see discussion above), and so is
evidence of nothing at all.
Further, the language in the legend, which assigns to Marvel the copyright in the work, is
not dispositive of whether a work-for-hire relationship exists under the 1909 Act. In Fifty-Six
Hope Road Music Ltd. v. UMG Recordings, Inc., 2010 WL 3564258, at *11 (S.D.N.Y. Sept. 10,
2010), the plaintiff argued that Jamaican reggae artist Bob Marley and Island Records
(defendant’s predecessor-in-interest) could not have intended that Marley’ s songs were works for
hire because the recording agreements between Marley and Island Records contained language
“that either ‘assigns’ or ‘licenses’ rights from Marley to Island for the distribution of’ Marley’s
songs, and did not use “the exact phrase ‘work made for hire. “ The Court was not
persuaded, explaining that “the use of the phrase ‘work made for hire’ in an agreement is not
necessary in order to find the existence of a work-for-hire relationship under the 1909 Act.” Ii
(citing Martha Graham, 380 F.3d at 639-41; Hogarth, 342 F.3d at 15 1-53, 163).
In Playboy, the checks Playboy issued to Nagel bore a legend similar to the one found on
the 1973 and 1974 checks: “By endorsement of this check, payee acknowledges payment in full
45
JA2411
for the assignment to Playboy Enterprises, Inc. of all right, title, and interest in and to the
following items. . . .“ 53 F.3d at 552. The district court originally concluded that the check
legend confirmed that the parties did not intend a work-for-hire relationship. I4 at 556-57. The
Second Circuit reversed, stating that it was “impossible to discern the intent of the parties from
the language” in the legend. Id. at 557. The Court explained that Playboy’s explanation—that
the legend is not inconsistent with a work-for-hire agreement because the assignment discussed
in the legend governed only common law rights in the work prior to publication—was plausible,
so the legend neither “proves or disproves that the parties intended something other than a work-
for-hire relationship.”
Of course, the language on Marvel’s checks (unlike the legend on Nagel’s checks) does
explicitly state that the assignment is for the copyright in the work. But, as discussed, the checks
were not issued to Kirby and are not from the relevant time period, so they are not admissible
evidence of anything. The 1972 Assignment (which runs from Kirby to Marvel and relates to,
inter alia, the Kirby Works) explicitly assigns whatever copyright Kirby has in the Kirby Works,
but, I have already discussed why that does not negate the work-for-hire presumption—
especially in view of the other language, in the same document, which states that Kirby’s works
were “works made for hire.” If the 1972 Assignment does not rebut the presumption, or at least
raise a genuine issue of fact, then checks issued to some other artist over a decade after the Kirby
Works were created certainly does not do so.
One of my colleagues concluded, in a similar case, that legends on checks written during
the wrong time period did not raise any issue of fact that would tend to rebut the presumption
that a pre-1978 commissioned work was a work hire. In Archie Comic Publication. Inc. v.
DeCarlo, 258 F. Supp. 2d 315, 330-31 (S.D.N.Y. 2003), 88 F. App’x 468 (2d Cir. 2004),
46
JA2412
comic book artist Daniel DeCarlo claimed ownership of the copyright in “Sabrina the Teenage
Witch,” a well-known story published by Archie Comic Publications, Inc. (“ACP”). After
concluding that the instance and expense test was satisfied, the court presumed that all pre-1978
“Sabrina the Teenage Witch” stories were “works made for hire,” in which ACP, not DeCarlo,
owned the copyright. As evidence of an agreement to the contrary, DeCarlo relied on a
handwritten copy of an endorsement on a check ACP issued to him in 1970. The endorsement
stated that “ACP’s ‘check is accepted as full payment for all the undersigned’s right, title and
interest in and to the strip, copy, art, continuity, characters, story or manuscript entitled or used
in’ the story identified on the check.” 4 at 331. DeCarlo also submitted declarations from other
freelance artists, who had been required by ACP to sign similar check endorsements as early as
1954. Id. at 323-24. DeCarlo himself testified that the handwritten copy of the check
endorsement was “the contract on the back of the old checks” he received, and that the
endorsement was used in 1970. Id. at 324. DeCarlo could not, however, say precisely what
wording appeared on checks issued to him at other times during his relationship with ACP.
The Court concluded that the evidence DeCarlo had submitted, if credited, would not
permit a “trier of fact reasonably to conclude” that DeCarlo owned the copyrights in his pre-1978
contributions to “Sabrina the Teenage Witch,” in light of the “‘almost irrebuttable’ presumption
that these were works for hire.” Id. at 330. There “is considerable uncertainty as to the language
of the.. check endorsements that were used in the 1960’s when Sabrina was created and at any
.
other time prior to the effective date of the 1976 Act.” at 330 (italics in original). “[A]ny
determination by a trier of fact as to what the text was during the relevant period. . . would be
speculation.” .. at 331.
47
JA2413
Case 1:10-cv-00141CM-KNF Document 121 FIed 07/28/11 Page 48 of 50
If DeCarlo’s evidence was insufficient to rebut the presumption, the two checks on which
the Kirby Heirs rely are certainly insufficient to do so. “The presumption may be rebutted only
by evidence that the parties did not intend to create a work-for-hire.” Twentieth Century Fox
Eiirn 429 F.3d at 881. Checks that were not issued to Kirby, and that postdate the creation of the
Kirby Works by a decade and more, prove nothing about what Kirby and Marvel intended; even
coupled with testimony from other freelance artists, who claim that their checks bore a similar
legend, the trier of fact would have to speculate about what (if anything) appeared on checks
issued to pay Kirby for the Kirby Works. See, e.g., Archie Comic, 258 F. Supp. 2d at 330-31.
Finally, even if the legend on the 1973 and 1974 checks had some probative value (which
it does not), the language of the legend does not admit of an inference that Marvel and Kirby
agreed that Kirby would retain the copyright in the Kirby Works. See. e.g., Archie Comic, 258
F. Supp. 2d at 331. In Archie Comic, the endorsement on DeCarlo’s check stated that “ACP’s
‘check is accepted as full payment for all the undersigned’s right, title and interest in and to the
strip, copy, art, continuity, characters, story or manuscript entitled or used in’ the story identified
on the check.” IcL The Court held that “the endorsement, far from suggesting that DeCarlo
retained copyright in the contribution for which the endorsed check was issued, supports the
view that ACP was the sole owner of all rights.” j4. Similarly, the 1973 and 1974 legend
assigning to Marvel all rights, including the copyright, in the work for which other artists were
paid can be read as supporting the view that Marvel did not intend its independent-contractor
artists to reserve the copyright in their work.
Thus, none of the evidence submitted by Defendants makes so much as a dent in the
“almost irrebutable” presumption that the Kirby Works were works for hire. The Kirby Heirs are
not entitled to summary judgment in their favor, and they have not raised any genuine issue of
48
JA2414
fact necessitating a trial. The Termination Notices were of no force and effect, because Marvel
acquired the federal statutory copyright in the Kirby Works by virtue of its status as their
“author” under the work-for-hire doctrine. Plaintiffs are entitled to a declaration to that effect.
49
JA2415
CONCLUSION
For the reasons discussed, the Plaintiffs’ motion for summary judgment is granted. The
Defendants’ cross motion for summary judgment is denied.
The Docket Clerk is instructed to remove docket entries 60 and 73 from the Court’s list
of pending motions.
Further, the Plaintiffs’ motions to strike the expert reports of Mark Evanier and John
Morrow are granted. The Docket Clerk is instructed to remove docket entries 67 and 70 from the
Court’s list of pending motions.
Plaintiffs’ motion to strike the declarations of Sinnott and Steranko is denied. The
Docket Clerk is instructed to remove docket entry 111 from the Court’s list of pending motions.
The court will enter judgment in favor of Plaintiffs and close the case.
Dated: Ju1y28,2011
U.S.D.J.
BY EFC TO ALL COUNSEL
50
JA2416
USOCSDNY
,DOCtJMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
------------------------------------------------------------)(
DOCI:
DATE FILED:
~ ~'
ilLf/,
MARVEL WORLDWIDE, INC., MARVEL
CHARACTERS, INC. and MVL RIGHTS, LLC,
Plaintiffs, 10 CIVIL 141 (CM)(KNF)
-against- JUDGMENT
Defendants.
------------------------------------------------------------)(
NEALL. KIRBY and SUSAN M. KIRBY,
Counterclaim Plaintiffs,
-against-
MARVEL WORLDWIDE, INC., MARVEL

CHARACTERS, INC., MVL RIGHTS, LLC,
MARVEL ENTERTAINMENT, INC., THE WALT
DISNEY COMPANY, and DOES 1 through 10,
Counterclaim Defendants.
------------------------------------------------------------)(
Plaintiffs having moved for summary judgment; defendants having cross-moved for
summary judgment, and the matter having come before the Honorable Colleen McMahon, United
States District Judge, and the Court, on July 28, 2011, having rendered its Memorandum Opinion
and Order granting plaintiffs' motion for summary judgment; denying defendants' cross-motion for
summary judgment; granting plaintiffs' motions to strike the expert reports of Mark Evanier and
John Morrow, denying plaintiffs' motion to strike the declarations of Sinnott and Steranko and
closing the case, it is,
ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the
Court's Memorandum Opinion and Order dated July 28, 2011, Plaintiffs' motion for summary
judgment is granted; defendants' cross-motion for summary judgment is denied; plaintiffs' motion
JA2417
to strike the expert reports of Mark Evanier and John Morrow are granted; plaintiffs' motion to
strike the declarations of Sinnitt and Steranko are denied, and judgment is entered is favor of
plaintiffs'; accordingly, the case is closed.
Dated: New York, New York

August 8, 2011
RUBY J. KRAJICK
21 ~-1
Dep
THIS DOCUMENT WAS ENTERED

ONTHEDOCKETON----~~
JA2418


MVL RIGHTS, LLC,
Civil Action No. 10-141 (CM) (KF)
Plaintiffs, NOTICE OF APPEAL
[ECF Case]
Defendants.

Counterclaimants,,

JA2419
Notice is hereby given that Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and
Susan M. Kirby, defendants and counterclaimants in the above named case, hereby
appeal to the United States Court of Appeals for the Second Circuit from the Judgment
granting plaintiffs' motion for summary judgment, denying defendants' cross-motion for
summary judgment, and granting plaintiffs' motion to strike the expert reports of Mark
-
Evanier and John Morrow, entered in this action on the 8th day of August, 201 1.
Dated: August 15,201 1 TOBEROFF & ASSOCIATES, P.C.
,/3.7?
,
-
/
Marc Toberoff (MT 4862)
Tel: 3 10-246-3333
Fax: 3 10-246-3101
MToberoff@ipwla.com
JA2420
The undersigned hereby certifies that the foregoing Special Appendix/ Joint
Appendix were served electronically by the Court’s ECF system and by priority
mail on those parties not registered for ECF pursuant to the rules of this court.
Pursuant to Local Rules 25.3 and 30.1, six paper copies of the Joint Appendix and
Special Appendix have been mailed to the Court on the date this brief was
electronically filed.
Dated: January 13, 2011 /s/ Marc Toberoff

Malibu, California Marc Toberoff (MT 4862)

Telephone: (310) 246-3333
Facsimile: (310) 246-3101
mtoberoff@ipwla.com


Kirby - Marvel Appellate Document Record Volume 9

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Case 11-3333, Document 80, 01/26/2012, 509520, Page1 of 291

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME IX OF X

TOBEROFF & ASSOCIATES, P.C.

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME IX OF X

TOBEROFF & ASSOCIATES, P.C.

JA Docket Date Description Pages

IX 121 7/28/2011 Order Granting Plaintiffs’ Motion for 2367

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UNITED STATES DISTRICT COURT

and Counterclaim-Defendants Marvel Entertainment, LLC, sued herein as Marvel Entertainment,

Facts in support of their motion for summary judgment.

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

THE TERMINATION NOTICES AND CLAIMS OF COPYRIGHT OWNERSHIP

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

MARVEL’S WORK-MADE-FOR-HIRE PRACTICES

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Finally, Defendants’ citations to the

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Defendants’ citation to the inadmissible

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Defendants’ citations to the Evanier Decl.

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Defendants’ citations to the irrelevant

Additionally, neither Steranko nor Sinnott

Finally, Defendants cannot create a factual

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-

Statement of Undisputed Fact Defendants’ Response Plaintiffs’ and Counterclaim-