Kirby - Marvel Appellate Document Record Volume 8

Case 11-3333, Document 79, 01/26/2012, 509519, Page1 of 205
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 VIII 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 VIII 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.
VIII 97-27 3/25/2011 Exhibit FFF – Article “Jack Kirby: A By- 1968
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
Plaintiffs’ Motion for Summary
Judgment
i
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
ii

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
21, 2010 Deposition of John Romita
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
9, 2010 Deposition of Mark Evanier
III 65-9 2/25/2011 Exhibit 9 – Excerpts from the December 553
iii

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
iv

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
v

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
vi

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
Defendants’ Motion for Summary
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
vii

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
viii

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
ix

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
8, 2010 Deposition of Stan Lee
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
x

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”
xi

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”
xii

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”
xiii

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
IX 108 4/8/2011 Reply to Local Rule 56.1 Statement re: 2152
Judgment
xiv

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
IX 114-2 4/8/2011 Exhibit 2 – Excerpts from the December 2302
8, 2010 Deposition of Stan Lee
IX 114-3 4/8/2011 Exhibit 3 – Excerpts from the December 2313
IX 114-4 4/8/2011 Exhibit 4 – Excerpts from the October 2319
IX 114-5 4/8/2011 Exhibit 5 – Excerpts from the October 2325
Roy Thomas
IX 116 4/8/2011 Reply to Local Rule 56.1 Statement re: 2332
Judgment
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
xv

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.
xvi

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)
xvii

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
Summary Judgment and Denying
Judgment
I 27 4/14/2010 Order Denying Defendants’ Motion to 53
Dismiss
xviii
Case 11-3333, DocumentDocument
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
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EXHIBIT FFF
JA1968
The Jack Kirby Chronology: 1950-1959 http://www.marvelmasterworks.com/resources/kirby_chronology1.html
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
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> MarvelMasterworks.com Home
JACK KIRBY: A BY-THE-MONTH CHRONOLOGY
Link to: 1938-1949 • 1950-1959 • 1960-1964 • 1965-1969 • 1970-1979 •

1980-1995
This chronology covers the sequential timeline of the original publication of

Jack Kirby's comic book work.This list does not include any comics or
collections that might have reprinted Jack's works. The number in
parentheses following the listed work is the page count of Jack's original
work for that issue. The number in parentheses following the month is that
month's total page output from Jack.
This list is compiled by Ray Owens, with the aid of the Jack Kirby Checklist,
a publication available from Twomorrows Publications for only $7 postpaid.
RayOwens is actually a contributor to this checklist, and it comes highly
recommended as an invaluable reference for any Jack Kirby fan's bookshelf.
Each era of Jack's work is chronicled on seperate pages. Following is the

decade of the 50s.
1950-1959
Jan 1950 (15)

Young Romance # 17 : Prize - "The Girl who tempted Me" (15)
Feb 1950 (29)

Young Love # 7 : Prize - "Give me your Kisses" (9)
Young Love # 7 : Prize - "Love him or leave Him" (6)
Young Romance # 18 : Prize - "Just No Good" (14)
Mar 1950 (27)

Western Love # 5 : Prize - "Dead Ringer" (9)
Western Love # 5 : Prize - "Two can play the Game" (5)
Young Romance # 19 : Prize - "That kind of Girl" (13)
Apr 1950 (23)

Young Love # 8 : Prize - "Danger, Soft Shoulders" (8)
Young Love # 8 : Prize - "Which is your Dream Man" (1)
Young Romance # 20 : Prize - "Hands off Lucy" (14)
May 1950 (29)

Young Love # 9 : Prize - "A Man in her Room" (8)
Young Love # 9 : Prize - "Second Hand Sweetheart" (7)
Young Romance # 21 : Prize - "I want your Man" (14)
June 1950 (18)

Young Love # 10 : Prize - "Picked from Phone Directory" (4)
Young Romance # 22 : Prize - "The Savage in Me" (14)
JA1969
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July 1950 (18)

Young Love # 11 : Prize - ad - unpub. Black Magic # 1 cover (1)
Young Romance # 23 : Prize - "Gang Sweetheart" (15)
Young Romance # 23 : Prize - "Problem Clinic" (2)
Aug 1950 (25+)

Justice Traps the Guilty # 17 : Prize - ad - unpub. Black Magic # 1 cover (1)
Prize Comics Western # 83 : Prize - cover (1)
Young Love # 12 : Prize - cover (1)
Young Love # 12 : Prize - "Smooth Operator" (8)
Young Love # 12 : Prize - "Problem Clinic" (?)
Young Romance # 24 : Prize - "Buy me that Man" (14)
Sep 1950 (43)

Justice Traps the Guilty # 18 : Prize - cover (1)
Justice Traps the Guilty # 18 : Prize - "Pirates of the Poor" (10)
Young Love # 13 : Prize - "Everybody wants my Girl" (9)
Young Love # 13 : Prize - "Recipe for Love" (7)
Young Romance # 25 : Prize - "Man who could thrill Me" (12)
Young Romance # 25 : Prize - "Will you help Me" (3)
Oct 1950 (72)

Black Magic V.1 # 1 : Crestwood - cover (1)
Black Magic V.1 # 1 : Crestwood - "Last Second of Life" (10)
Boys' Ranch # 1 : Harvey - cover (1)
Boys' Ranch # 1 : Harvey - "Intro" (1)
Boys' Ranch # 1 : Harvey - "The Man who Hated Boys" (17)
Boys' Ranch # 1 : Harvey - "Centerfold" (2)
Boys' Ranch # 1 : Harvey - "Oldest Boy at Boys' Ranch" (5)
Boys' Ranch # 1 : Harvey - "A very Dangerous Dude" (9)
Justice Traps the Guilty # 19 : Prize - "Alibi Guy" (10)
Young Love # 14 : Prize - "Problem Clinic" (1)
Young Romance # 26 : Prize - cover (1)
Young Romance # 26 : Prize - "Your Money or your Love" (12)
Nov 1950 (19)

Young Love # 15 : Prize - "Will you help Me?" (2)
Young Romance # 27 : Prize - "No Man would have Me" (12)
Dec 1950 (77)

Black Magic V.1 # 2 : Crestw'd - cover (1)
Black Magic V.1 # 2 : Crestw'd - "Scorn of the faceless People" (10)
Black Magic V.1 # 2 : Crestw'd - "The Cloak" (7)
Boys' Ranch # 2 : Harvey - "Lead will fly at Sunset" (15)
Boys' Ranch # 2 : Harvey - "Apache Justice" (7)
Boys' Ranch # 2 : Harvey - "Clay Duncan" (8)
Real West Romances # 5 : Cressw'd - "Mail Order Romance" (9)
Young Love # 16 : Prize - "The Reformer" (8)
Young Romance # 28 : Prize - "Hot Rod Crowd" (1)
JA1970
2 of 18 3/25/2011 1:14 PM
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97-27 509519, Page24 of
Filed 03/25/11 2054 of 38
Page
Young Romance # 28 : Prize - "Will you help M?e" (2)
Jan 1951 (25)

Young Love # 17 : Prize - "The Quiet One" (5)
Young Love # 17 : Prize - " Will you help Me?" (3)
Young Romance # 29 : Prize - "You're not the First" (10)
Young Romance # 29 : Prize - "Will you help Me?" (3)
Feb 1951 (70)

Black Magic V.1 # 3 : Crestw'd - "Silver Bullet for your Heart" (11)
Boys' Ranch # 3 : Harvey - "Mother Delilah" (20)
Boys' Ranch # 3 : Harvey - "Social Night in Town" (2)
Boys' Ranch # 3 : Harvey - "Legend of Alby Fleezer" (7)
Boys' Ranch # 3 : Harvey - "I'll Fight you for Lucy" (6)
Young Love # 18 : Prize - " Problem Clinic" (2)
Young Romance # 30 : Prize - "Different" (14)
Mar 1951 (16)

Young Romance # 31 : Prize - "One way to hold Him" (12)
Apr 1951 (46)

Black Magic V.1 # 4 : Crestw'd - "Voodoo on Tenth Avenue" (9)
Boys' Ranch # 4 : Harvey - "Bugle Blows at Bloody Knife" (12)
Boys' Ranch # 4 : Harvey - "Clay Duncan's Rifle" (2)
Boys' Ranch # 4 : Harvey - "Fight to the Finish" (1)
Young Romance # 32 : Prize - "Soldier's Girl" (12)
Young Romance # 32 : Prize - " Will you help Me?" (3)
May 1951 (23)

Young Love # 21 : Prize - " All work and no Love" (11)
Young Romance # 33 : Prize - "What's in it for Me?" (10)
June 1951 (27)

Black Magic V.1 # 5 : Crestw'd - "The World of Spirits" (2)
Boys' Ranch # 5 : Harvey - "Last Mail to Red Fork" (1)
Boys' Ranch # 5 : Harvey - "Riders of the Pony Express" (2)
Boys' Ranch # 5 : Harvey - "Bandits, Bullets & wild Women" (1)
Boys' Ranch # 5 : Harvey - "The Man of Iron" (1)
JA1971
3 of 18 3/25/2011 1:14 PM
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97-27 509519, Page25 of
Filed 03/25/11 2055 of 38
Page
Young Romance # 34 : Prize - " Old Fashioned Girl" (12)
July 1951 (14)

Young Romance # 35 : Prize - "Temptations of a Car Hop" (12)
Aug 1951 (15.5)

Black Magic V.1 # 6 : Crestw'd - "Union with the Dead" (3)
Boys' Ranch # 6 : Harvey - "Teeth for the Iron Horse" (3)
Boys' Ranch # 6 : Harvey - "Happy Boy carries the ball" (1)
Boys' Ranch # 6 : Harvey - "Indian Attack" (0.25)
Boys' Ranch # 6 : Harvey - "Six-Gun Justice" (0.25)
Young Romance # 36 : Prize - "Love at Stake" (3)
Sep 1951 (31)

Young Love # 25 : Prize - "Off Limits to Love" (10)
Young Love # 25 : Prize - "My Old Flame" (5.5)
Young Romance # 37 : Prize - "I'll never set you Free" (10)
Young Romance # 37 : Prize - "Untitled" (5.5)
Oct 1951 (19)

Black Magic V.2 # 1 : Crestw'd - "The Thing in the Fog" (8)
Young Romance # 38 : Prize - "Family Trouble" (10)
Nov 1951 (10.5)

Headline Comics # 44 : Prize - cover only (1)
Young Romance # 39 : Prize - "Too Sweet to be True" (9.5)
Dec 1951 (11)

Black Magic V.2 # 2 : Crestw'd - cover only (1)
Young Romance # 40 : Prize - "Nobody Owns Me" (10)
Jan 1952 (12.5)

Headline Comics # 45 : Prize - cover only (1)
Young Romance # 41 : Prize - "Dangerous Companion" (11.5)
Feb 1952 (13)

Young Love # 30 : Prize - "Problem Clinic" (2.5)
Young Romance # 42 : Prize - "Miracle for Nancy" (9.5)
Mar 1952 (25.5)

Black Magic V.2 # 4 : Crestw'd - "Dead Man's Lode" (8)
Black Magic V.2 # 4 : Crestw'd - "Seven Years Bad Luck" (1)
Young Love # 31 : Prize - "Be My Valentine" (6)
Young Romance # 43 : Prize - "Fool in Love" (9.5)
Apr 1952 (15)

Black Magic V.2 # 5 : Crestw'd - "Girl who walked on Water" (6)
Young Romance # 44 : Prize - "Forget Me Not" (8)
May 1952 (10.5)

Young Romance # 45 : Prize - "Things I didn't know about him" (9.5)
JA1972
4 of 18 3/25/2011 1:14 PM
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97-27 509519, Page26 of
Filed 03/25/11 2056 of 38
Page
June 1952 (16)

Black Magic V.2 # 7 : Crestw'd - "Up There" (6)
Black Magic V.2 # 7 : Crestw'd - "Visions of Nostradamus" (1)
Young Romance # 46 : Prize - "We only have Today" (8)
July 1952 (15)

Young Romance # 47 : Prize - "A Man for my Birthday" (8)
Young Romance # 47 : Prize - "Drop the Handkerchief" (6)
Aug 1952 (26.5)

Black Magic V.2 # 9 : Crestw'd - "The Angel of Death" (7)
Strange World of Your Dreams # 1 : Prize- cover (1)
Strange World of Your Dreams # 1 : Prize- "Talked with my Dead Wife" (7)
Strange World of Your Dreams # 1 : Prize- "Send us your Dreams" (2.5)
Young Love # 36 : Prize - "Two-Faced Woman" (8)
Sep 1952 (27)

Strange World of Your Dreams # 2 : Prize- "Girl in the Grave" (5)
Strange World of Your Dreams # 2 : Prize- "You sent us this Dream" (2)
Strange World of Your Dreams # 2 : Prize- "Send us your Dreams" (2)
Young Brides # 1 : Prize - "Surprise, Surprise" (7)
Young Love # 37 : Prize - "Mr. Know-it-all falls in Love" (8)
Oct 1952 (1)

Nov 1952 (31.5)

Black Magic V.2 # 12 : Crestw'd - "Nasty Little Man" (8)
Black Magic V.2 # 12 : Crestw'd - "Come claim my Corpse" (2)
Black Magic V.2 # 12 : Crestw'd - "Detour lorelei Highway" (0.5)
Strange World of Your Dreams # 3 : Prize- "Women in the Tower" (4)
Strange World of Your Dreams # 3 : Prize- "You sent us this Dream" (2)
Young Brides # 2 : Prize - "Lights Out, Love's In" (3)
Young Love # 39 : Prize - "My Fear of Men" (7)
Dec 1952 (26)

Black Magic V.3 # 1 : Crestw'd - "Sammy's Wonderful Glass" (8)
Young Love # 40 : Prize - "Fallen Idol" (9)
Young Romance # 52 : Prize - "Soldier on the Train" (8)
Jan 1953 (32)

Black Magic V.3 # 2 : Crestw'd - "Birth after Death" (3)
Strange World of Your Dreams # 4 : Prize- cover only (1)
Young Brides # 3 : Prize - "Dear John: I Love someone else" (7)
Young Love # 41 : Prize - "Forget Me, Fraulein" (8)
Young Romance # 53 : Prize - "The Girl in my Corner" (10)
Feb 1953 (24.5)

Black Magic V.3 # 3 : Crestw'd - "The Feathered Serpent" (7)
JA1973
5 of 18 3/25/2011 1:14 PM
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97-27 509519, Page27 of
Filed 03/25/11 2057 of 38
Page
Young Love # 42 : Prize - "The Outsider" (7.5)
Young Romance # 54 : Prize - "Double Wedding" (9)
Mar 1953 (27.5)

Black Magic V.3 # 4 : Crestw'd - "Monsters on the Lake" (9)
Young Brides # 4 : Prize - "Man about Women" (1.5)
Young Love # 43 : Prize - "Teen-Aged Widow" (12)
Young Romance # 55 : Prize - "Problem Clinic" (1.5)
Apr 1953 (32)

Black Magic V.3 # 5 : Crestw'd - "Those who are about to Die" (5)
Young Love # 44 : Prize - "Unspoken For" (9)
Young Love # 44 : Prize - "Once a Champion" (8)
Young Romance # 56 : Prize - "On your Honor" (9)
May 1953 (30.5)

Black Magic V.3 # 6 : Crestw'd - "After I'm Gone" (3.5)
Young Love # 45 : Prize - "Mean Little Cupid" (2.5)
Young Love # 45 : Prize - "Stab in the Back" (8)
Young Romance # 57 : Prize - "The Underdog" (8)
Young Romance # 57 : Prize - "Problem Clinic" (1.5)
Young Romance # 57 : Prize - "Peeping Tom" (6)
June 1953 (34.5)

Black Magic V.4 # 1 : Crestw'd - "Strange Old Bird" (1)
Black Magic V.4 # 1 : Crestw'd - "The Human Cork" (3)
Black Magic V.4 # 1 : Crestw'd - "A Beast is in the Streets" (7)
Young Love # 46 : Prize - "Ashamed to Face Him" (6)
Young Love # 46 : Prize - "Out of the Blue" (5)
Young Romance # 58 : Prize - "Too Inocent to Love" (11.5)
July 1953 (46)

Young Brides # 6 : Prize - "My Secret, My Baby" (6)
Young Brides # 6 : Prize - "Bored with my Husband" (4.5)
Young Brides # 6 : Prize - "Imperfect Marriage" (7)
Young Love # 47 : Prize - "Too late to tell Him" (6)
Young Love # 47 : Prize - "Farewell Note" (4)
Young Love # 47 : Prize - "Out all Hours" (7)
Young Romance # 59 : Prize - "Borrow a Boy Friend" (2.5)
Young Romance # 59 : Prize - "A Family Affair" (9)
Aug 1953 (19.5)

Young Love # 48 : Prize - "Don't wait for Me" (5.5)
Young Love # 48 : Prize - "The Marrying Kind" (3.5)
Young Love # 48 : Prize - "Cold Shoulder for Two" (3)
Young Romance # 60 : Prize - "So Charming, So False" (6)
Sep 1953 (55.5)

Black Magic V.4 # 2 : Crestw'd - "Fool's Paradise" (6)
Black Magic V.4 # 2 : Crestw'd - "The Sting of Scorpio" (4)
Black Magic V.4 # 2 : Crestw'd - "Antics of the Mystic Mirror" (3)
Black Magic V.4 # 2 : Crestw'd - "Demon Wind (6)
Young Brides # 7 : Prize - "A Husband for Tracy" (7.5)
Young Brides # 7 : Prize - "Man about Women" (2)
Young Brides # 7 : Prize - "The Man who Shamed Me" (6)
JA1974
6 of 18 3/25/2011 1:14 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
97-27 509519, Page28 of
Filed 03/25/11 2058 of 38
Page
Young Love # 49 : Prize - "Riff-Raff" (8)
Young Romance # 61 : Prize - "Let Sleeping Love Lie" (8)
Young Romance # 61 : Prize - "A Very Important Love" (4)
Oct 1953 (22)

Young Brides # 8 : Prize - "Once a Mother" (6)
Young Love # 50 : Prize - "Wedding Present" (6)
Young Love # 50 : Prize - "Norma, Queen of the Hot Dogs" (4)
Young Romance # 62 : Prize - "Mystery Blonde of Lover's Lane" (6)
Nov 1953 (44)

Black Magic V.4 # 3 : Crestw'd - "The Cat People" (6)
Black Magic V.4 # 3 : Crestw'd - "Merry Ghosts of Campbell Castle" (5)
Young Brides # 9 : Prize - "Home-Wrecker" (6)
Young Brides # 9 : Prize - "Find me a Bride" (6)
Young Brides # 9 : Prize - "Share & Share Alike" (6)
Young Love # 51 : Prize - "To Marry for Money" (6)
Young Romance # 63 : Prize - "A Matter of Pride" (8)
Dec 1953 (49)

Captain 3-D # 1 : Harvey - cover (1)
Captain 3-D # 1 : Harvey - "The Man from the World of D" (11)
Captain 3-D # 1 : Harvey - "The Menace of the Living Dolls" (10)
Captain 3-D # 1 : Harvey - "Iron Hat McGinty & Destruction Gang" (9)
Young Brides # 10 : Prize - "Working Wife" (6)
Young Romance # 64 : Prize - "Beautiful Friendship" (6)
Young Romance # 64 : Prize - "The Heartbreaker" (6)
Jan 1954 (25)

Adventures in 3D # 2 : Harvey - advert (unpublished Captain 3D cover) (1)
Black Magic V.4 # 4 : Crestw'd - "An Eye for an Eye" (5)
Black Magic V.4 # 4 : Crestw'd - "Alive after 5000 years" (5)
Young Brides # 11 : Prize - "Practically Married" (6)
Young Romance # 65 : Prize - "The Wrong Mr.Right" (7)
Feb 1954 (12)

Young Brides # 12 : Prize - "Big Baby" (6)
Young Romance # 66 : Prize - "Those we Love" (6)
Mar 1954 (19)

Black Magic V.4 # 5 : Crestw'd - "Story of a Beautiful Freak" (5)
Young Love # 55 : Prize - "The Baby Dolls" (7)
Young Romance # 67 : Prize - "Cute Trick" (6)
Apr 1954 (24)

Fighting American # 1 : Headline - cover (1)
Fighting American # 1 : Headline - "Break the Spy-Ring" (10)
Fighting American # 1 : Headline - "Baby Buzz Bombs" (6)
Fighting American # 1 : Headline - "Break the Spy-Ring" (7)
May 1954 (9)

Black Magic V.4 # 6 : Crestw'd - "The Head of the Family" (8)
June 1954 (24)

Fighting American # 2 : Headline - "League of Handsome Devils" (9)
Fighting American # 2 : Headline - "Meet Doubleheader" (7)
Fighting American # 2 : Headline - "City of Ghouls" (7)
JA1975
7 of 18 3/25/2011 1:14 PM
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97-27 509519, Page29 of
Filed 03/25/11 2059 of 38
Page
July 1954 (31)

Black Magic V.5 # 1 : Crestw'd - "Gargoyle" (6)
Black Magic V.5 # 1 : Crestw'd - "Slaughter-House" (6)
Black Magic V.5 # 1 : Crestw'd - "The Half-Men" (6)
Black Magic V.5 # 1 : Crestw'd - "Hungry as a Wolf" (1)
Bulls-Eye # 1 : Mainline - cover (1)
Bulls-Eye # 1 : Mainline - "Bulls-Eye, the Boy" (9)
Bulls-Eye # 1 : Mainline - "Bulls-Eye, the Youth" (1)
Aug 1954 (45)

Fighting American # 3 : Headline - "Man who sold out Liberty" (6)
Fighting American # 3 : Headline - "Stranger from Paradise" (2)
Fighting American # 3 : Headline - "Poison Ivan" (8)
Fighting American # 3 : Headline - "Z-Food" (7)
In Love # 1 : Mainline - cover - main figures only (1)
In Love # 1 : Mainline - "Bride of the Star" (20)
Sep 1954 (18+)

Black Magic V.5 # 2 : Crestw'd - "Maniac" (8)
Bulls-Eye # 2 : Mainline - "Union Jack" (1)
Bulls-Eye # 2 : Mainline - "Grand Prize" (6)
Police Trap # 1 : Mainline - cover (1)
Police Trap # 1 : Mainline - "The Capture" (?)
Oct 1954 (27)

Fighting American # 4 : Headline - "Tokyo Runaround" (8)
Fighting American # 4 : Headline - "Homecoming: Year 3000" (9)
Fighting American # 4 : Headline - "Operation Wolf" (5)
Foxhole # 1 : Mainline - cover only (1)
In Love # 2 : Mainline - "Marilyn's Men: Chapter 3" (3)
Nov 1954 (28.5)

Black Magic V.5 # 3 : Crestw'd - "Lone Shark" (7)
Black Magic V.5 # 3 : Crestw'd - "The Strangest facts" (1)
Bulls-Eye # 3 : Mainline - "Devil Bird" (8)
Bulls-Eye # 3 : Mainline - "On Target" (2)
Bulls-Eye # 3 : Mainline - "The Ghosts of Dead Center" (7)
Police Trap # 2 : Mainline - cover (1)
Police Trap # 2 : Mainline - "The The Alibi Twins" (0.5)
Police Trap # 2 : Mainline - "Desk Sergeant" (1)
Dec 1954 (27)

Fighting American # 5 : Headline - "Jiseppi, The Jungle Boy" (8)
Fighting American # 5 : Headline - "The Year Bender" (8)
Fighting American # 5 : Headline - "Invisible Irving" (6)
Foxhole # 2 : Mainline - cover (1)
Foxhole # 2 : Headline - "Booby Trap" (6)
Foxhole # 2 : Headline - "Hot Box" (2)
In Love # 3 : Mainline - cover (1)
In Love # 3 : Mainline - "Artist Loves Model" (18)
Police Trap # 3 : Mainline - cover only (1)
Jan 1955 (17)
JA1976
8 of 18 3/25/2011 1:14 PM
Case 11-3333, Document
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Document 97-27 509519, Page30 Page
Filed 03/25/11 of 20510 of 38
Bulls-Eye # 4 : Mainline - "The Pinto People" (8)
Bulls-Eye # 4 : Mainline - "Doom Town" (8)
Feb 1955 (39)

Fighting American # 6 : Headline - "Deadly Doolittle" (8)
Fighting American # 6 : Headline - "Super Khakalovitch" (10)
Foxhole # 3 : Mainline - cover (1)
Foxhole # 3 : Headline - "The Face" (6)
Police Trap # 4 : Mainline - cover only (1)
Win a Prize # 1 : Charlton - cover (1)
Win a Prize # 1 : Charlton - "Intro" (1)
Win a Prize # 1 : Charlton - "The Emissary" (6)
Win a Prize # 1 : Charlton - "Pin-up" (1)
Win a Prize # 1 : Charlton - "That Giveaway Guy" (3)
Mar 1955 (18)

Bulls-Eye # 5 : Mainline - "Headhunter" (8)
Bulls-Eye # 5 : Mainline - "Grandma Tomahawk" (8)
Young Brides # 21 : Prize - cover only (1)
Apr 1955 (18)

Fighting American # 7 : Headline - "Sneak of Araby" (4)
Fighting American # 7 : Headline - "Three Coins in the Pushcart" (1)
Fighting American # 7 : Headline - "Spy-Face" (5)
Foxhole # 4 : Mainline - cover only (1)
Win a Prize # 2 : Charlton - cover (1)
Win a Prize # 2 : Charlton - "Intro" (1)
Win a Prize # 2 : Charlton - "Sir Cashby of Moneyvault" (4)
May 1955 (22)

Bulls-Eye # 6 : Charlton - cover (1)
Bulls-Eye # 6 : Charlton - "Tomahawks for Two" (8)
Bulls-Eye # 6 : Charlton - "The Killer Horse" (4)
Bulls-Eye # 6 : Charlton - "The Coming of the Sioux" (6)
Bulls-Eye # 6 : Charlton - "The Man who Lived Twice" (2)
In Love # 5 : Charlton - cover only (1)
June 1955 (1)

Charlie Chan # 6 : Charlton - cover (1)
July 1955 (13)

Foxhole # 5 : Charlton - cover (1)
Foxhole # 5 : Charlton - "Lucky Stiff" (6)
Police Trap # 5 : Charlton - cover only (1)
Police Trap # 5 : Charlton - "Alibi?" (5)
Aug 1955 (44)

Bulls-Eye # 7 : Charlton - cover (1)
Bulls-Eye # 7 : Charlton - "Duel in the Sky" (8)
Bulls-Eye # 7 : Charlton - "The Flaming Arrow" (4)
Bulls-Eye # 7 : Charlton - "The Stolen Rain God" (8)
From Here to Insanity # 11 : Charlton - cover (1)
From Here to Insanity # 11 : Charlton - "Expressions" (1)
From Here to Insanity # 11 : Charlton - "Line 'em Up" (2)
From Here to Insanity # 11 : Charlton - "Psycho News" (2)
From Here to Insanity # 11 : Charlton - "Rex Mortgage, M.D." (3)
From Here to Insanity # 11 : Charlton - "200,000 Lugs under Sea" (6)
From Here to Insanity # 11 : Charlton - "Build it Yourself" (4)
JA1977
9 of 18 3/25/2011 1:14 PM
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Filed 03/25/11 of 20511 of 38
From Here to Insanity # 11 : Charlton - "Coming Attraction" (1)
From Here to Insanity # 11 : Charlton - "Foreign Intrigues" (1)
From Here to Insanity # 11 : Charlton - "Advertisement" (1)
From Here to Insanity # 11 : Charlton - "Successful 90lb Weakling" (1)
Sep 1955 (36)

Foxhole # 6 : Charlton - cover (1)
Foxhole # 6 : Charlton - "Even Steven" (4)
Foxhole # 6 : Charlton - "Listen to the Boidie" (4)
I Love You # 7 : Charlton - cover only (1)
Police Trap # 6 : Charlton - cover only (1)
Police Trap # 6 : Charlton - "The Amateur" (6)
Police Trap # 6 : Charlton - "The Debt" (5)
Police Trap # 6 : Charlton - "The $64 Question" (3)
Police Trap # 6 : Charlton - "Only the Guilty Run" (6)
Police Trap # 6 : Charlton - "Third Degree" (5)
Oct 1955 (15)

Western Tales # 31 : Harvey - cover (1)
Western Tales # 31 : Harvey - "Intro" (Davy Crockett) (1)
Western Tales # 31 : Harvey - "Devil Rapids" (Davy Crockett) (8)
Western Tales # 31 : Harvey - "Missing Bullet Hole" (Davy Crockett) (4)
Western Tales # 31 : Harvey - "Waitin' Duel" (Davy Crockett) (1)
Nov 1955 (20)

Young Brides # 25 : Prize - cover (1)
Young Brides # 25 : Prize - "Caf‚ Society Lover" (8)
Young Brides # 25 : Prize - "A Little Understanding" (6)
Young Brides # 25 : Prize - "Her Beautiful Visitor" (5)
Dec 1955 (26)

Young Romance # 80 : Prize - "Personal Message to Ruth" (6)
Young Romance # 80 : Prize - "The Gingerbread House" (6)
Young Romance # 80 : Prize - "Old Enough to Marry" (5)
Young Romance # 80 : Prize - "Lovesick" (8)
Jan 1956 (27)

Warfront # 28 : Harvey - cover only (1)
Young Brides # 26 : Prize - "Lydia's Boy" (7)
Young Brides # 26 : Prize - "Since you got Glamour" (6)
Young Brides # 26 : Prize - "Love & Lamb Chops" (5)
Young Brides # 26 : Prize - "Dream Man" (7)
Feb 1956 (40)

Young Love # 69 : Prize - "How's the family" (7)
Young Love # 69 : Prize - "The Lady in the Jaguar" (6)
Young Love # 69 : Prize - "Secrets of the Girl Mext door" (6)
Young Romance # 81 : Prize - "Lady & the Truck Driver" (7)
Young Romance # 81 : Prize - "A Match for Linda" (5)
Young Romance # 81 : Prize - "Bring the Kids" (7)
Mar 1956 (42)

Love Problems & Advice # 38 : Harvey - cover only (1)
Western Tales # 32 : Harvey - "Intro" (Davy Crockett) (1)
Western Tales # 32 : Harvey - "Running Fight" (Davy Crockett) (9)
Western Tales # 32 : Harvey - "King Ram" (Davy Crockett) (4)
Western Tales # 32 : Harvey - "Advert" (Jim Bowie) (1)
JA1978
10 of 18 3/25/2011 1:14 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20512 of 38
Young Brides # 27 : Prize - "Good Marriage" (7)
Young Brides # 27 : Prize - "Second Choice" (6)
Young Brides # 27 : Prize - "Sad Wedding" (5)
Young Brides # 27 : Prize - "Unattached Male" (7)
Apr 1956 (55.5)

Black Cat Mystery # 57 : Harvey - cover only (1)
Cockeyed # 4 : Whitestone - "Guys & Dolls" (2)
True Bride-to-Be Romances # 17 : Harvey - cover only (1)
Young Love # 70 : Prize - "Too Late for Love" (6)
Young Love # 70 : Prize - "Big Disappointment" (8)
Young Love # 70 : Prize - "A Week in Frisco" (5)
Young Love # 70 : Prize - "Lovely Little Copycat" (6)
Young Romance # 82 : Prize - "Lost Little Lamb" (6)
Young Romance # 82 : Prize - "Bundle from Heaven" (6)
Young Romance # 82 : Prize - "Wild Flower" (6)
Young Romance # 82 : Prize - "Repeat Performance" (6.5)
May 1956 (25.5)

Young Brides # 28 : Prize - "If you could only Cook" (4.5)
Young Brides # 28 : Prize - "Under New Management" (7)
Young Brides # 28 : Prize - "Aide to Marriage" (6)
Young Brides # 28 : Prize - "New Boy in Town" (7)
June 1956 (38)

Crazy Man, Crazy V.2 # 2 : Charlton - "Bloodshot Alley" (5)
Young Love # 71 : Prize - "Easy Way Out" (6)
Young Romance # 83 : Prize - "Only You" (7)
Young Romance # 83 : Prize - "The Serious Type" (6)
Young Romance # 83 : Prize - "The Lonely Heart" (5)
Young Romance # 83 : Prize - "Dancing Doll" (8)
July 1956 (41)

Western Tales # 33 : Harvey - cover (1)
Western Tales # 33 : Harvey - "Intro" (Jim Bowie) (1)
Western Tales # 33 : Harvey - "Makes a Magic Knife" (Jim Bowie) (7)
Western Tales # 33 : Harvey - "Wins an Indian Fight" (Jim Bowie) (5)
Young Brides # 29 : Prize - "The Sound of Wedding Bells" (6)
Young Brides # 29 : Prize - "Shadow-Wife" (6)
Young Brides # 29 : Prize - "Nancy's Sanctuary" (6)
Young Brides # 29 : Prize - "Romance on the Run" (7)
Aug 1956 (4)

First Love # 67 : Harvey - cover only (1)
First Romance # 41 : Harvey - cover only (1)
Hi-School Romance # 54 : Harvey - cover only (1)
Sep 1956 (26)

Black Cat Mystic # 58 : Harvey - cover (1)
Black Cat Mystic # 58 : Harvey - "Intro" (1)
Black Cat Mystic # 58 : Harvey - "Read to us, Mr. Zimmer" (5)
Black Cat Mystic # 58 : Harvey - "Mystery Vision" (5)
Black Cat Mystic # 58 : Harvey - "Gizmo" (5)
Black Cat Mystic # 58 : Harvey - "Help" (5)
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Love Problems & Advice # 41 : Harvey - cover (1)
Love Problems & Advice # 41 : Harvey - "Contents" (1)
Oct 1956 (55)

First Romance # 42 : Harvey - cover only (1)
Young Love # 72 : Prize - "My Heart came Tumbling Down" (7)
Young Love # 72 : Prize - "Love & War" (6)
Young Love # 72 : Prize - "Cinderella Story" (6)
Young Love # 72 : Prize - "I Dream of Jeannie" (6)
Young Romance # 84 : Prize - "Much Ado about Love" (7)
Young Romance # 84 : Prize - "Poison Ivy" (6)
Young Romance # 84 : Prize - "Swept off my Feet" (6)
Young Romance # 84 : Prize - "Romeo & Judy Ann" (6)
Nov 1956 (34)

Battleground # 14 : Atlas - "Mine Field" (5)
Love Problems & Advice # 42 : Harvey - cover (1)
Young Brides # 30 : Prize - "In Love with a Tomboy" (6)
Young Brides # 30 : Prize - "Here comes the Bride" (6)
Young Brides # 30 : Prize - "Family Jinx" (6)
Young Brides # 30 : Prize - "The Way they Met" (1)
Young Brides # 30 : Prize - "The Unhappy Housewife" (6)
Dec 1956 (69)

Astonishing # 56 : Atlas - "Afraid to Dream" (4)
First Romance # 43 : Harvey - cover (1)
First Romance # 43 : Harvey - "Crisis" (1)
Strange Tales of the Unusual # 7 : Atlas - "Pokerface" (4)
Yellow Claw # 2 : Atlas - "Concentrate on Chaos" (5)
Yellow Claw # 2 : Atlas - "The Mystery of Cabin 361" (5)
Yellow Claw # 2 : Atlas - "The Yellow Claw" (4)
Yellow Claw # 2 : Atlas - "Temu-jai, The Golden Goliath" (5)
Young Love # 73 : Prize - "Torch Song" (7)
Young Love # 73 : Prize - "Bust-up" (6)
Young Romance # 85 : Prize - "Lizzie's back in Town" (7)
Young Romance # 85 : Prize - "Lady's Choice" (6)
Young Romance # 85 : Prize - "Resort Romeo" (6)
Young Romance # 85 : Prize - "My Cousin from Milwaukee" (6)
Feb 1957 (53.5)

Quick Trigger Western # 16 : Atlas - "Vengeance of Growling Bear" (5)
Hi-School Romance # 60 : Harvey - Contents (1)
Showcase # 6 : National - cover (1)
Showcase # 6 : National - "Secrets of the Sorcerer's Box" (Chall) (24)
Yellow Claw # 3 : Atlas - "The Microscope Army" (5)
Yellow Claw # 3 : Atlas - "UFO, The Lightning Man" (5)
Yellow Claw # 3 : Atlas - "The Yellow Claw Captured" (4)
Yellow Claw # 3 : Atlas - "Sleeping City" (5)
Young Romance # 86 : Prize - "Reject" (3.5)
Mar 1957 (7)

House of Secrets # 3 : National - cover (1)
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House of Secrets # 3 : National - "The Three Prophecies" (6)
Apr 1957 (75)

House of Mystery # 61 : National - "The Thing in the Box" (6)
Showcase # 7 : National - "Ultivac is Loose" (Chall) (24)
Tales of the Unexpected # 12 : National - "The All-Seeing Eye" (6)
Yellow Claw # 4 : Atlas - "The Living Shadows" (5)
Yellow Claw # 4 : Atlas - "The Screemies" (5)
Yellow Claw # 4 : Atlas - "Five Million Sleepwalkers" (5)
Yellow Claw # 4 : Atlas - "The Thought Master" (5)
Young Romance # 87 : Prize - "Girl with Possibilities" (7)
Young Romance # 87 : Prize - "Rock 'n' Roll Sweetheart" (5)
Young Romance # 87 : Prize - "Made me Beautifult" (6)
May 1957 (21)

House of Secrets # 4 : National - "Master of the Unknown" (6)
My Greatest Adventure # 15 : National - "City under the Sea" (8)
Tales of the Unexpected # 13 : National - cover (1)
Tales of the Unexpected # 13 : National - "Face behind the Mask" (6)
June 1957 (7)

House of Mystery # 63 : National - "Riddle of the Red Roc" (6)
Young Romance # 88 : Prize - "They're only Men" (1)
July 1957 (14)

My Greatest Adventure # 16 : National - "I Died a 1000 times" (8)
Tales of the Unexpected # 15 : National - "3 wishes to Doom" (6)
Aug 1957 (13)

House of Mystery # 65 : National - cover (1)
House of Mystery # 65 : National - "The Human Dragon" (6)
Tales of the Unexpected # 16 : National - "Magic Hammer" (6)
Sep 1957 (99)

Alarming Tales # 1 : Harvey - cover (1)
Alarming Tales # 1 : Harvey - "Contents" (1)
Alarming Tales # 1 : Harvey - "The Cadmus Seed" (5)
Alarming Tales # 1 : Harvey - "Logan's next Life" (2)
Alarming Tales # 1 : Harvey - "The Fourth Dimension" (5)
Alarming Tales # 1 : Harvey - "The Last Enemy" (6)
Alarming Tales # 1 : Harvey - "Donnegan's Daffy Chair" (4)
Black Cat Mystic # 59 : Harvey - "Intro" (1)
Black Cat Mystic # 59 : Harvey - "Today I am A?" (5)
Black Cat Mystic # 59 : Harvey - "Weemer is the best of all" (6)
Black Cat Mystic # 59 : Harvey - "The Great Stone Face" (5)
Black Cat Mystic # 59 : Harvey - "Take off, Mr. Zimmer" (5)
Black Cat Mystic # 59 : Harvey - "Untitled" (1)
Black Rider Rides Again # 1 : Atlas - "Legend of the Black Rider" (7)
Black Rider Rides Again # 1 : Atlas - "Duel at Dawn" (6)
Black Rider Rides Again # 1 : Atlas - "Treachery at Hangman's Br." (6)
House of Mystery # 66 : National - "The Thief of Thoughts" (6)
My Greatest Adventure # 17 : National - "I Doomed the world" (8)
Tales of the Unexpected # 17 : National - "Who is Mr. Ashtar?" (6)
Two-Gun Western # 12 : Atlasl - "No Man can Outdraw Him" (5)
Young Romance # 90 : Prize - "Girl in the Middle" (5)
Oct 1957 (6)

Tales of the Unexpected # 18 : National - "Collected Planets" (6)
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Nov 1957 (43)

Alarming Tales # 2 : Harvey - "Hole in the Wall" (6)
Alarming Tales # 2 : Harvey - "The Big Hunt" (4)
Alarming Tales # 2 : Harvey - "The Fireballs" (5)
Alarming Tales # 2 : Harvey - "I want to be a Man" (5)
Black Cat Mystic # 60 : Harvey - "Snap of the Fingers" (5)
Black Cat Mystic # 60 : Harvey - "Woman who discovered America" (2)
Black Cat Mystic # 60 : Harvey - "Town full of Babies" (5)
Black Cat Mystic # 60 : Harvey - "The Ant Extract" (5)
Black Cat Mystic # 60 : Harvey - "Shadow Brother" (5)
Dec 1957 (43)

My Greatest Adventure # 18 : National - cover (1)
My Greatest Adventure # 18 : National - "Nuclear Creature" (8)
Showcase # 11 : National - "Day the Earth blow up" (Chall) (24)
Young Romance # 91 : Prize - "The Waiting Game" (4)
Young Romance # 91 : Prize - "The Way they Met" (1)
Jan 1958 (49)

Alarming Tales # 3 : Harvey - cover (1)
Alarming Tales # 3 : Harvey - "This World is Ours" (5)
House of Mystery # 70 : National - "Creatures from Nowhere" (6)
House of Secrets # 8 : National - "Cat who knew too much" (6)
Showcase # 12 : National - "Menace of the Ancient Vials" (Chall) (24)
Tales of the Unexpected # 21 : National - "Mysterious Mr. Vince" (6)
Feb 1958 (22)

All-Star Western # 99 : National - "Ambush at Smoke Canyon" (6)
Tales of the Unexpected # 22 : National - "The Volcano Men" (6)
Young Romance # 92 : Prize - "Running Mates" (5)
Young Romance # 92 : Prize - "The Happy Bachelor" (5)
Mar 1958 (19.5)

Alarming Tales # 4 : Harvey - "Forbidden Journey" (5)
Hi-School Romances # 73 : Harvey - cover only (1)
House of Mystery # 72 : National - "Man who betrayed Earth" (6)
Race for the Moon # 1 : Harvey - cover (1)
Race for the Moon # 1 : Harvey - "Intro" (0.5)
Tales of the Unexpected # 23 : National - "Giants from Outer Space" (6)
Apr 1958 (50)

Challengers of the Unknown # 1 : National - cover (1)
Challengers of the Unknown # 1 : National - "Intro" (1)
Challengers of the Unknown # 1 : National - "Tampered with Infinity" (14)
Challengers of the Unknown # 1 : National - "Human Pets" (10)
My Greatest Adventure # 20 : National - "Big Game on Neptune" (8)
Tales of the Unexpected # 24 : National - "Two-Dimensional Man" (6)
Young Romance # 94 : Prize - "Jealousy" (5)
Young Romance # 94 : Prize - "Afraid of Love" (5)
May 1958 (8)

My Greatest Adventure # 21 : National - "Metal-Eating Monster" (8)
July 1958 (42)

Adventure Comics # 250 : National - "Green Arrows of the World" (GA) (6)
Challengers of the Unknown # 2 : National - "Traitorous Challenger" (10)
Challengers of the Unknown # 2 : National - "Monster Maker" (14)
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Gunsmoke Western # 47 : Atlas - "Trouble in Leadville" (BR) (4)
House of Mystery # 76 : National - "Artifical Twin" (6)
Aug 1958 (38)

Adventure Comics # 251 : National - "The Super Arrows" (GA) (6)
Challengers of the Unknown # 3 : National - "Sorceror's Mirror" (12)
Challengers of the Unknown # 3 : National - "Invincible Challenger" (12)
House of Secrets # 11 : National - cover only (1)
Young Romance # 95 : Prize - "Listening to Love" (5)
Sep 1958 (43)

Adventure Comics # 252 : National - "The Giant Arrows" (GA) (6)
House of Mystery # 78 : National - cover only (1)
House of Secrets # 12 : National - cover (1)
House of Secrets # 12 : National - "Hole in the Sky" (6)
Race for the Moon # 2 : Harvey - "Intro" (1)
Race for the Moon # 2 : Harvey - "Thing on Sputnik" (5)
Race for the Moon # 2 : Harvey - "Lunar Trap" (5)
Race for the Moon # 2 : Harvey - "Island in the Sky" (5)
Race for the Moon # 2 : Harvey - "Face on Mars" (5)
World's Finest # 96 : National - "Five Clues to Danger" (GA) (6)
Oct 1958 (38.5)

Adventure Comics # 253 : National - "Prisoners of Dimension 0" (GA) (6)
Challengers of the Unknown # 4 : National - "Wizard of Time" (25)
House of Mystery # 79 : National - cover only (1)
World's Finest # 97 : National - "Mechanical Octopus" (GA) (5.5)
Nov 1958 (28)

Adventure Comics # 254 : National - "Last Stand" (GA) (6)
Race for the Moon # 3 : Harvey - "Intro" (1)
Race for the Moon # 3 : Harvey - "Long, Long Years" (5)
Race for the Moon # 3 : Harvey - "Saucer Men" (5)
Race for the Moon # 3 : Harvey - "Space Garbage" (5)
Race for the Moon # 3 : Harvey - "Garden of Eden" (5)
Dec 1958 (57)

Adventure Comics # 255 : National - "War that never ended" (GA) (5.5)
Challengers of the Unknown # 5 : National - "The Star-Stone" (25)
Strange Worlds # 1 : Atlas - cover (1)
Strange Worlds # 1 : Atlas - "The Flying Saucers" (7)
World of Fantasy # 15 : Atlas - cover only (1)
World's Finest # 98 : National - "Unmasked Archers" (GA) (5.5)
Young Romance # 97 : Prize - "Hearts & Flowers" (5)
Young Romance # 97 : Prize - "Uninvited Guest" (5)
Jan 1959 (15)

Adventure Comics # 256 : National - "First case" (GA) (7)
Tales to Astonish # 1 : Atlas - cover (1)
Tales to Astonish # 1 : Atlas - "Ninth Wonder of the World" (7)
Feb 1959 (61.5)

JA1983
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Challengers of the Unknown # 6 : National - "The Space Circus" (15)
Challengers of the Unknown # 6 : National - "Sorceress of Forbidden
Valley" (10)
My Greatest Adventure # 28 : National - "Microscope Menace" (8)
Strange Tales # 67 : Atlas - "I was the Invisible Man" (7)
World of Fantasy # 16 : Atlas - "Prison 2000 AD" (5)
World's Finest # 99 : National - "Crimes under Glass" (GA) (5.5)
Young Romance # 98 : Prize - "Secret in my Heart" (5)
Young Romance # 98 : Prize - "A Husband for my Sister" (5)
Mar 1959 (29)

Gunsmoke Western # 51 : Atlas - cover (1)
Gunsmoke Western # 51 : Atlas - "The Raiders Strike" (BR) (5)
House of Mystery # 84 : National - "The Negative Man" (8)
Journey into Mystery # 51 : Atlas - "Creatures in the Volcano" (5)
Journey into Mystery # 51 : Atlas - "Alien on Earth" (4)
Kid Colt Outlaw # 83 : Atlas - cover only (1)
Tales of Suspense # 2 : Atlas - "Invasion from Outer Space" (5)
Apr 1959 (61)

Challengers of the Unknown # 7 : National - "Beasts from Planet Nine" (13)
Challengers of the Unknown # 7 : National - "Isle of no Return" (12)
House of Mystery # 85 : National - "Stone Sentinels of Giant Island" (8)
Strange Tales # 68 : Atlas - cover (1)
Strange Tales # 68 : Atlas - "Test Pilot" (4)
Strange Worlds # 3 : Atlas - cover (1)
Strange Worlds # 3 : Atlas - "The Creature from Planet X" (4)
Strange Worlds # 3 : Atlas - "I Fly to the Stars" (4)
Wyatt Earp # 22 : Atlas - cover only (1)
Young Romance # 99 : Prize - "Man Wanted" (5)
Young Romance # 99 : Prize - "The Love I Lost" (5)
May 1959 (13)

Gunsmoke Western # 52 : Atlas - cover only (1)
Journey into Mystery # 52 : Atlas - cover (1)
Journey into Mystery # 52 : Atlas - "Menace from Mars" (5)
Tales of Suspense # 3 : Atlas - "Terrible Time Machine" (5)
Tales to Astonish # 3 : Atlas - cover only (1)
June 1959 (72)

Battle # 64 : Atlas - cover (1)
Battle # 64 : Atlas - "Action on Quemoy" (5)
Challengers of the Unknown # 8 : National - "Man who stole the Future"
(12)
Challengers of the Unknown # 8 : National - "Prisoners of Robot Planet" (13)
Double Life of Pvt. Strong # 1 : Archie - cover (1)
Double Life of Pvt. Strong # 1 : Archie - "Intro" (1)
Double Life of Pvt. Strong # 1 : Archie - "Doulbe Life of Pvt. Strong" (4)
Double Life of Pvt. Strong # 1 : Archie - "Spawn of the X World" (6)
Double Life of Pvt. Strong # 1 : Archie - "The Hide-Out" (2)
Double Life of Pvt. Strong # 1 : Archie - "The Vanished Wreckage" (6)
Double Life of Pvt. Strong # 1 : Archie - "The Micro-Men" (8)
Strange Tales # 69 : Atlas - "The World that was Lost" (4)
Strange Worlds # 4 : Atlas - cover only (1)
Two-Gun Kid # 48 : Atlas - cover only (1)
World of Fantasy # 18 : Atlas - cover (1)
World of Fantasy # 18 : Atlas - "To Build a Robot" (4)
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July 1959 (11)

Journey into Mystery # 53 : Atlas - cover only (1)
Strange Worlds # 5 : Atlas - cover only (1)
Tales of Suspense # 4 : Atlas - cover (1)
Tales of Suspense # 4 : Atlas - "One of our Space Men is Missing" (5)
Tales to Astonish # 4 : Atlas - cover only (1)
Aug 1959 (53)

Adventures of the Fly # 1 : Archie - cover (1)
Adventures of the Fly # 1 : Archie - "Strange new World of the Fly" (6)
Adventures of the Fly # 1 : Archie - "The Fly Strikes" (2)
Adventures of the Fly # 1 : Archie - "The Fly discovers his Buzz Gun" (5)
Adventures of the Fly # 1 : Archie - "Come into my Parlor" (7)
Adventures of the Fly # 1 : Archie - "Sign of the Triangle" (1)
All For Love Vol.3 # 2 : Prize - "Love for a Lifetime" (5)
Battle # 65 : Atlas - "Find 'em, Chase 'em, Blast 'em" (5)
Battle # 65 : Atlas - "Ring of Steel" (5)
Double Life of Pvt. Strong # 2 : Archie - cover (1)
Double Life of Pvt. Strong # 2 : Archie - "Ultra-Sonic Spies" (6)
Strange Tales # 70 : Atlas - "A Giant Walks the Earth" (5)
Sep 1959 (37+)

Adventures of the Fly # 2 : Archie - cover (1)
Adventures of the Fly # 2 : Archie - "Tim O'Casey's Wrecking Crew" (?)
Adventures of the Fly # 2 : Archie - "Sneak Attack" (2)
Adventures of the Fly # 2 : Archie - "Marco's Eyes" (8)
Adventures of the Fly # 2 : Archie - "Master of Junk-ri-la" (6)
Journey into Mystery # 54 : Atlas - "Menace from the Purple Planet" (5)
Kid Colt Outlaw # 86 : Atlas - "Meeting at Midnight" (BR) (5)
Love Romances # 83 : Atlas - cover only (1)
My Own Romance # 71 : Atlas - cover only (1)
Tales of Suspense # 5 : Atlas - cover only (1)
Tales to Astonish # 5 : Atlas - "The Things on Easter Island" (5)
Oct 1959 (12)

Battle # 66 : Atlas - "Submarine" (5)
Young Romance # 102 : Prize - "The Wounded Party" (5)
Nov 1959 (25)

Journey into Mystery # 55 : Atlas - "The Giant in the Sky" (7)
Journey into Mystery # 55 : Atlas - "My Neighbors Secret" (4)
Tales of Suspense # 6 : Atlas - "Luna Lizards had me Trapped" (5)
Tales to Astonish # 6 : Atlas - "The Great God Pan" (4)
Dec 1959 (24)

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Battle # 67 : Atlas - "The Invincible Enemy" (5)
Strange Tales # 72 : Atlas - "I Fought the Colossus" (5)
Young Romance # 103 : Prize - "The Man for Me" (5)
Young Romance # 103 : Prize - "Liars in Love" (5)
Link to: 1938-1949 • 1950-1959 • 1960-1964 • 1965-1969 • 1970-1979 •

1980-1995
JA1986
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> MarvelMasterworks.com Home
JACK KIRBY: A BY-THE-MONTH CHRONOLOGY
Link to: 1938-1949 • 1950-1959 • 1960-1964 • 1965-1969 • 1970-1979 •

1980-1995
This chronology covers the sequential timeline of the original publication of

Jack Kirby's comic book work.This list does not include any comics or
collections that might have reprinted Jack's works. The number in
parentheses following the listed work is the page count of Jack's original
work for that issue. The number in parentheses following the month is that
month's total page output from Jack.
This list is compiled by Ray Owens, with the aid of the Jack Kirby Checklist,
a publication available from Twomorrows Publications for only $7 postpaid.
RayOwens is actually a contributor to this checklist, and it comes highly
recommended as an invaluable reference for any Jack Kirby fan's bookshelf.
Each era of Jack's work is chronicled on seperate pages. Following is the era
of the early to mid-60s.
1960-1964
Jan 1960 (35)

Aventures of the Fly # 4 : Archie - cover (1)
Aventures of the Fly # 4 : Archie - "Muggsy's Masterpiece" (7)
Journey into Mystery # 56 : Atlas - "I planted the Seeds of Doom" (6)
Love Romances # 85 : Atlas - cover (1)
Love Romances # 85 : Atlas - "I Learned about Love from Larry" (5)
Tales of Suspence # 7 : Atlas - "I fought the Molten Man-Thing" (5)
Tales to Astonish # 7 : Atlas - "We Met in the Swamp" (5)
Feb 1960 (16)

Battle # 68 : Atlas - "Sitting Duck" (4)
Battle # 68 : Atlas - "Guard Duty" (4)
Strange Tales # 73 : Atlas - "Grottu, King of the Insects" (6)
Mar 1960 (29)

Journey into Mystery # 57 : Atlas - "Orogo, Nightmare from Outer Space"
(1)
Journey into Mystery # 57 : Atlas - "The Martian who stole my Body" (6)
JA1987
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My Own Romance # 74 : Atlas - "He was Perfect, but I lost Him" (5)
Tales of Suspense # 8 : Atlas - "Monstro, Menace from the Murky Depths"
(6)
Tales to Astonish # 8 : Atlas - "I am the Genie" (6)
Apr 1960 (16)

Battle # 69 : Atlas - "Doom under the Deep" (6)
Strange Tales # 74 : Atlas - "Gorgolla, The Living Gargoyle" (7)
May 1960 (32)

Journey into Mystery # 58 : Atlas - "Return of the Martian" (6)
Journey into Mystery # 58 : Atlas - "I Found Rro" (1)
Journey into Mystery # 58 : Atlas - "They called me a Witch" (5)
Tales of Suspense # 9 : Atlas - "I saw Diablo, Demon from the 5th
Dimension" (7)
Tales to Astonish # 9 : Atlas - "Return of the Genie" (6)
June 1960 (29)

Battle # 70 : Atlas - "A Tank knows no Mercy" (5)
Battle # 70 : Atlas - "The Thick of the battle" (4)
Cracked # 14 : Major - "Old Ideas for New Panel Shows" (5)
Strange Tales # 75 : Atlas - "Taboo, Thing from the Murky Swamp" (7)
Two-Gun Kid # 54 : Atlas - cover (1)
Two-Gun Kid # 54 : Atlas - "Dance or Draw, Tenderfoot" (4)
July 1960 (40)

Gunsmoke Western # 59 : Atlas - "The Stallion's Revenge" (3)
Gunsmoke Western # 59 : Atlas - "Only One may Live" (4)
Journey into Mystery # 59 : Atlas - "I Unleashed Shagg upon the World" (7)
Tales of Suspense # 10 : Atlas - "I Brought the Mighty Cyclops back to Life"
(7)
Tales to Astonish # 10 : Atlas - "I was Trapped by Titano" (7)
Tales to Astonish # 10 : Atlas - "Strange Power of Simon Drudd" (5)
Aug 1960 (33)

Rawhide Kid # 17 : Atlas - cover (1)
Rawhide Kid # 17 : Atlas - "Beware, the Rawhide Kid" (7)
Rawhide Kid # 17 : Atlas - "Stagecoach to Shotgun Gap" (6)
Rawhide Kid # 17 : Atlas - "When the Rawhide Kid turned Outlaw" (5)
JA1988
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Strange Tales # 76 : Atlas - "I am Dragoom, The Flaming Invader" (7)
Two-Gun Kid # 55 : Atlas - "The Outlaw" (5)
Sep 1960 (36)

Journey into Mystery # 60 : Atlas - "I Learned the Monsterous Secret of
Bombu" (7)
Journey into Mystery # 60 : Atlas - "I Found the Things from Nowhere" (5)
Tales of Suspense # 11 : Atlas - "I Created Sporr, The Thing that could not
Die" (7)
Tales to Astonish # 11 : Atlas - "I Found Monstrom" (7)
Tales to Astonish # 11 : Atlas - "I Dared to Look into the Beyond" (5)
Oct 1960 (50)

Journey into Mystery # 61 : Atlas - "I Defied Gomdulla, The Living Pharaoh"
(7)
Kid Colt Outlaw # 93 : Atlas - cover (1)
Kid Colt Outlaw # 93 : Atlas - "The Man who wouldn't Fight" (5)
Rawhide Kid # 18 : Atlas - "At the Mercy of Wolf Waco" (13)
Rawhide Kid # 18 : Atlas - "A Legend is Born" (5)
Strange Tales # 77 : Atlas - "The Return of Taboo" (7)
Tales to Astonish # 12 : Atlas - "I Discovered Gorgilla" (7)
Nov 1960 (46)

Journey into Mystery # 62 : Atlas - "I was a Slave of the Living Hulk" (13)
Strange Tales # 78 : Atlas - "A Martian walks among Us" (7)
Tales of Suspense # 12 : Atlas - "The Dreaded Secret of Gor-Kill, The Living
Demon" (7)
Tales to Astonish # 13 : Atlas - "I Challenged Groot" (7)
Tales to Astonish # 13 : Atlas - "I found the Abominable Snowman" (6)
Dec 1960 (66)

Journey into Mystery # 63 : Atlas - "Goliath" (7)
Journey into Mystery # 63 : Atlas - "The Dangerous Doll" (5)
Kid Colt Outlaw # 95 : Atlas - "A Man and his Gun" (5)
Rawhide Kid # 19 : Atlas - "Gun Duel in Trigger Gap" (13)
Rawhide Kid # 19 : Atlas - "Fight or Crawl, Kid" (5)
Strange Tales # 79 : Atlas - "The Living Shadow" (7)
Tales to Astonish # 14 : Atlas - "I Created Krang" (13)
JA1989
3 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20523 of 38
Two-Gun Kid # 57 : Atlas - "He Wore a Tin Star" (5)
Jan 1961 (55.5)

Classics Illustrated # 160 : Gilberton - advert (0.25)
Classics Illustrated Junior# 570 : Gilberton - advert (0.25)
Gunsmoke Western # 62 : Atlas - "Six-Gun Showdown" (6)
Gunsmoke Western # 62 : Atlas - "The Perfect Crime" (5)
Gunsmoke Western # 62 : Atlas - "The Gunman" (5)
Journey into Mystery # 64 : Atlas - "I Dared to Battle Rorgg, King of the
Spider-Man" (7)
Kid Colt Outlaw # 96 : Atlas - "Return of the Bad Man" (5)
Strange Tales # 80 : Atlas - "What? What? What was Gargantus" (7)
Tales of Suspense # 13 : Atlas - "Elektro" (7)
Tales to Astonish # 15 : Atlas - "The Blip" (7)
Feb 1961 (93)

Journey into Mystery # 65 : Atlas - "I am the Brute that Walks" (12)
Rawhide Kid # 20 : Atlas - "Shoot-Out with Blackjack Borden" (13)
Rawhide Kid # 20 : Atlas - "The Defeat of the rawhide Kid" (5)
Strange Tales # 81 : Atlas - "The Scarecrow Walks" (7)
Tales of Suspense # 14 : Atlas - "I Created the Colossus" (18)
Tales to Astonish # 16 : Atlas - "Here comes Thorr, the Unbelievable" (7)
Two-Gun Kid # 58 : Atlas - "The Monster of Hidden Valley" (13)
Two-Gun Kid # 58 : Atlas - "The Legend of the Two-Gun Kid" (5)
The World Around Us # 30 : Gilberton - "Undersea Adventure" (1)
The World Around Us # 30 : Gilberton - "Blue Skies" (1)
The World Around Us # 30 : Gilberton - "The Duel" (5)
Mar 1961 (121)

Classics Illustrated # 35 : Gilberton - "The Last days of Pompeii" (45)
Gunsmoke Western # 63 : Atlas - "The Hands of the Hulk" (6)
Journey into Mystery # 66 : Atlas - "Return of the Hulk" (13)
Strange Tales # 82 : Atlas - "The Thing called It" (13)
Tales of Suspense # 15 : Atlas - "Goom, The Thing from Planet X" (13)
Tales to Astonish # 17 : Atlas - "Vandoom, The Man who made a Creature"
(13)
The World Around Us # 31 : Gilberton - "Hunting" (1)
The World Around Us # 31 : Gilberton - "Early Hunters" (6)
The World Around Us # 31 : Gilberton - "An End to Slaughter" (5)
Apr 1961 (105)

Journey into Mystery # 67 : Atlas - "Gruto, the Creature from Nowhere"
(13)
JA1990
4 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20524 of 38
Rawhide Kid # 21 : Atlas - "The Gunmen fron Sundown City" (18)
Strange Tales # 83 : Atlas - "From out of the Black Pit came Grogg" (13)
Tales of Suspense # 16 : Atlas - "The Thing called Metallo" (13)
Tales to Astonish # 18 : Atlas - "Gorgilla strikes Again" (13)
Two-Gun Kid # 59 : Atlas - "At the Mercy of Wolf Waco" (13)
Two-Gun Kid # 59 : Atlas - "Guns Blaze on the Tombstone Trail" (5)
The World Around Us # 32 : Gilberton - "The Mayas" (2)
The World Around Us # 32 : Gilberton - "Omens of Evil" (5)
The World Around Us # 32 : Gilberton - "Desert Treasure: Part 2" (4)
The World Around Us # 32 : Gilberton - "A Balancing Act" (1)
May 1961 (63)

Gunsmoke Western # 64 : Atlas - "He Wore a Tin Star" (5)
Journey into Mystery # 68 : Atlas - "Spragg, Conqueror of the Human Race"
(13)
Strange Tales # 84 : Atlas - "Magneto" (13)
Tales of Suspense # 17 : Atlas - "Googam, Son of Goom" (13)
Tales to Astonish # 19 : Atlas - "Rommbu" (13)
1961 (10)
World Illustrated # 528 : Thorpe & Porter (UK) - "The Lone Voyage" (7)
World Illustrated # 528 : Thorpe & Porter (UK) - "Pathways of the Sea" (3)
June 1961 (127)

Amazing Adventures # 1 : Atlas - cover (1)
Amazing Adventures # 1 : Atlas - "Torr" (13)
Amazing Adventures # 1 : Atlas - "I am the Fantastic Doctor Droom" (6)
Classics Illustrated # 162a : Gilberton - "War between the States" (1)
Classics Illustrated # 162a : Gilberton - "April, 1861: Fort Sumter" (6)
Classics Illustrated # 162a : Gilberton - "April-July, 1862: The Peninsula"
(6)
Classics Illustrated # 162a : Gilberton - "April-July, 1863: Vicksburg" (5)
Classics Illustrated # 162a : Gilberton - "November, 1864: New York City"
(8)
Journey into Mystery # 69 : Atlas - "I was captured by Korilla" (13)
Rawhide Kid # 22 : Atlas - "Beware, the Terrible Totem" (19)
Strange Tales # 85 : Atlas - "The Return of Gargantus" (13)
Tales of Suspense # 18 : Atlas - "Kraa, The Unhuman" (13)
Tales to Astonish # 20 : Atlas - "What was X, The Thing that Lived" (18)
July 1961 (88)

Amazing Adventures # 2 : Marvel - cover (1)
Amazing Adventures # 2 : Marvel - "I Led the Search for the Manoo" (13)
Amazing Adventures # 2 : Marvel - "The World Below" (Doctor Droom) (5)
Gunsmoke Western # 65 : Marvel - cover (1)
Gunsmoke Western # 65 : Marvel - "The Vengeance of Sam Turner" (6)
JA1991
5 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20525 of 38
Journey into Mystery # 70 : Marvel - cover (1)
Journey into Mystery # 70 : Marvel - "The Sandman Cometh" (13)
Kid Colt Outlaw # 99 : Marvel - cover only (1)
Strange Tales # 86 : Marvel - cover (1)
Strange Tales # 86 : Marvel - "I Created Mechano" (13)
Strange Tales # 86 : Marvel - "Beware of Meeks bringing Gifts" (5)
Tales of Suspense # 19 : Marvel - cover (1)
Tales of Suspense # 19 : Marvel - "The Green Thing" (13)
Tales to Astonish # 21 : Marvel - cover (1)
Tales to Astonish # 21 : Marvel - "Trull, the Inhuman" (13)
Aug 1961 (98)

Amazing Adventures # 3 : Marvel - "We were Trapped in the Twilight
World" (13)
Amazing Adventures # 3 : Marvel - "Doctor Droom meets Zemu" (5)
Journey into Mystery # 71 : Marvel - "I Brought the Roc to Life" (13)
Rawhide Kid # 23 : Marvel - cover (1)
Rawhide Kid # 23 : Marvel - "The Origin of the Rawhide Kid" (7)
Rawhide Kid # 23 : Marvel - "No Place to Hide" (11)
Strange Tales # 87 : Marvel - "The Return of Grogg" (13)
Tales of Suspense # 20 : Marvel - "Colossus Lives Again" (13)
Tales to Astonish # 22 : Marvel - "I Dared to Battle the Crawling Creature"
(13)
The World Around Us # 35 : Gilberton - "Sky Spies" (2)
The World Around Us # 35 : Gilberton - "The Business of Spying" (1)
The World Around Us # 35 : Gilberton - "Tricks of the Trade" (2)
Sep 1961 (86)

Amazing Adventures # 4 : Marvel - "I am Robot X" (13)
Amazing Adventures # 4 : Marvel - "What Lurks Within?" (5)
Gunsmoke Western # 66 : Marvel - "The Enemies" (6)
Journey into Mystery # 72 : Marvel - "The Glob" (12)
Strange Tales # 88 : Marvel - "Zzutak, the Thing that shouldn't Exist" (13)
Tales of Suspense # 21 : Marvel - "This is Klagg" (13)
Tales of Suspense # 21 : Marvel - "The Man from Tomorrow" (5)
Tales to Astonish # 23 : Marvel - "The Unbelievable Menace of Moomba"
(13)
Oct 1961 (102)

Amazing Adventures # 5 : Marvel - "The Escape of Monsteroso" (13)
Journey into Mystery # 73 : Marvel - "When the Spider Strikes" (7)
Journey into Mystery # 73 : Marvel - "What Lurks on Channel X?" (6)
Rawhide Kid # 24 : Marvel - "Showdown in Silver City" (13)
Rawhide Kid # 24 : Marvel - "Gunman's Gamble" (5)
Strange Tales # 89 : Marvel - "Fin Fang Foom" (13)
Tales of Suspense # 22 : Marvel - "Beware of Bruttu" (13)
JA1992
6 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20526 of 38
Tales to Astonish # 24 : Marvel - "I Found the Abominable Snowman" (13)
The World Around Us # 36 : Gilberton - "Quacks and Quackery" (3)
The World Around Us # 36 : Gilberton - "The Branched of Medicine" (2)
The World Around Us # 36 : Gilberton - "The Pure Substance" (3)
The World Around Us # 36 : Gilberton - "The War on Insects" (3)
The World Around Us # 36 : Gilberton - "The Challenge of Space" (2)
Nov 1961 (119)

Amazing Adventures # 6 : Marvel - "Sserpo, the Creature who Crushed the
Earth" (13)
Fantastic Four # 1 : Marvel - cover (1)
Fantastic Four # 1 : Marvel - "The Fantastic Four" (13)
Fantastic Four # 1 : Marvel - "The Fantastic Four meet the Moleman" (12)
Gunsmoke Western # 67 : Marvel - "Montana Brown" (7)
Journey into Mystery # 74 : Marvel - "The Thing in the Black Box" (7)
Journey into Mystery # 74 : Marvel - "Midnight in the Wax Museum" (6)
Love Romances # 96 : Marvel - cover (1)
Love Romances # 96 : Marvel - "When you Search for Love" (7)
Strange Tales # 90 : Marvel - "Orrgo, the Unconquerable" (7)
Tales of Suspense # 23 : Marvel - "I Entered the Dimension of Doom" (7)
Tales of Suspense # 23 : Marvel - "The Changeling" (5)
Tales to Astonish # 25 : Marvel - "I was Captured by the Creature from
Krogarr" (7)
Tales to Astonish # 25 : Marvel - "Behold Him, He is the Martian" (6)
Teen-Age Romance # 84 : Marvel - cover (1)
Teen-Age Romance # 84 : Marvel - "The Summer must End" (7)
Teen-Age Romance # 84 : Marvel - "The Outsider" (5)
Dec 1961 (72)

Classics Illustrated # 165a : Gilberton - "A Simple Telescope" (1)
Classics Illustrated # 165a : Gilberton - "Lines and Signals" (1)
Classics Illustrated # 165a : Gilberton - "Viewing the Spectrum" (1)
Journey into Mystery # 75 : Marvel - "Lo-Karr, Bringer of Doom" (6)
Journey into Mystery # 75 : Marvel - "Mr. Gregory and the Ghost" (7)
Rawhide Kid # 25 : Marvel - "The Bat Strikes" (7)
Rawhide Kid # 25 : Marvel - "The Twister" (6)
Rawhide Kid # 25 : Marvel - "Those who Live by the Gun" (5)
Strange Tales # 91 : Marvel - "The Sacrifice" (7)
Tales of Suspense # 24 : Marvel - "The Insect Man" (7)
Tales of Suspense # 24 : Marvel - "Beware, the Ticking Clocks" (6)
Tales to Astonish # 26 : Marvel - "Look out, Here comes the Four-Armed
Men" (7)
Tales to Astonish # 26 : Marvel - "He Walks Through Walls" (6)
Jan 1962 (121)

Fantastic Four # 2 : Marvel - "FF Meet the Skrulls From Outer Space" (24)
Fantastic Four # 2 : Marvel - Thing Pin-up (1)
Gunsmoke Western # 68 : Marvel - cover only (1)
JA1993
7 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20527 of 38
Journey into Mystery # 76 : Marvel - "The Genie with the Light Brown Hair"
(6)
Journey into Mystery # 76 : Marvel - "Follow the Leader" (7)
Love Romances # 97 : Marvel - "My Life is Yours" (4)
Love Romances # 97 : Marvel - "Little Girl" (7)
Love Romances # 97 : Marvel - "And so we Meet" (7)
Love Romances # 97 : Marvel - "The Kiss" (5)
Strange Tales # 92 : Marvel - "The Thing Hunts for Me" (7)
Strange Tales # 92 : Marvel - "The Man who Shrunk the World" (6)
Tales of Suspense # 25 : Marvel - "The Death of Monstrollo" (7)
Tales of Suspense # 25 : Marvel - "The Unseen" (6)
Tales to Astonish # 27 : Marvel - "The Man in the Ant Hill" (Ant-Man) (7)
Teen-Age Romance # 85 : Marvel - "She Who Laughs Last" (6)
Teen-Age Romance # 85 : Marvel - "My Boy Friend" (7)
Teen-Age Romance # 85 : Marvel - "Too Shy am I" (5)
Feb 1962 (69)

Journey into Mystery # 77 : Marvel - "Beware, He isn't Human" (7)
Journey into Mystery # 77 : Marvel - "I don't believe in Ghosts" (6)
Rawhide Kid # 26 : Marvel - "Trapped by the Bounty Hunter" (7)
Rawhide Kid # 26 : Marvel - "Shoot-Out at Scragg's Salon" (6)
Rawhide Kid # 26 : Marvel - "The Bullet-Proof Man" (5)
Strange Tales # 93 : Marvel - "When the Thing runs Amok" (7)
Strange Tales # 93 : Marvel - "Earth will be Lost Tonight" (6)
Tales of Suspense # 26 : Marvel - "It Crawls by Night" (7)
Tales to Astonish # 28 : Marvel - "I am the Gorilla-Man" (7)
Tales to Astonish # 28 : Marvel - "Midnight on Haunted Hill" (6)
Mar 1962 (131)

Fantastic Four # 3 : Marvel - "The Menace of the Miracle Man" (23)
Fantastic Four # 3 : Marvel - Human Torch Pin-up (1)
Gunsmoke Western # 69 : Marvel - "The Betrayer" (6)
Journey into Mystery # 78 : Marvel - "Kraggoom, the Creature Who Caught
an Astronaut" (7)
Journey into Mystery # 78 : Marvel - "The Sorcerer" (6)
Love Romances # 98 : Marvel - "I'm Lost Without You" (7)
Love Romances # 98 : Marvel - "Second Best" (5)
Love Romances # 98 : Marvel - "My Kind of Man" (5)
Love Romances # 98 : Marvel - "Lover's Quarrel" (5)
Strange Tales # 94 : Marvel - "I was a Decoy for Pildorr" (7)
Strange Tales # 94 : Marvel - "Save me from the Weed" (6)
Tales of Suspense # 27 : Marvel - "Oog Lives Again" (7)
Tales of Suspense # 27 : Marvel - "On the Trail of the Witch" (6)
JA1994
8 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20528 of 38
Tales to Astonish # 29 : Marvel - "When the Space Beasts Attack" (7)
Tales to Astonish # 29 : Marvel - "The Man who Blew Up the Earth" (6)
Teen-Age Romance # 86 : Marvel - "A Teen-Ager can also Hate" (7)
Teen-Age Romance # 86 : Marvel - "For Love of Ricky Wilson" (6)
Teen-Age Romance # 86 : Marvel - "He never even Noticed" (5)
Apr 1962 (69.5)

Journey into Mystery # 79 : Marvel - "The Midnight Monster" (7)
Rawhide Kid # 27 : Marvel - "When Six-Guns Roar" (7)
Rawhide Kid # 27 : Marvel - "The Girl, The Gunmen, and the Apaches" (6)
Rawhide Kid # 27 : Marvel - "The Man who Caught the Kid" (5)
Strange Tales # 95 : Marvel - "The Two-Headed Thing" (7)
Strange Tales # 95 : Marvel - "The Monster Escapes" (6)
Strange Tales # 95 : Marvel - advert for Fantastic Four (0.5)
Tales of Suspense # 28 : Marvel - "Titan, the Amphibian from Atlantis" (7)
Tales of Suspense # 28 : Marvel - "Back from the Dead" (6)
Tales to Astonish # 30 : Marvel - "The Return of the Gorilla-Man" (7)
Tales to Astonish # 30 : Marvel - "The Thing from the Hidden Swamp" (6)
May 1962 (138)

Fantastic Four # 4 : Marvel - "The Coming of the Sub-Mariner" (23)
Fantastic Four # 4 : Marvel - Mr. Fantastic Pin-up (1)
Gunsmoke Western # 70 : Marvel - "The Return of Darrow, the Gunfighter"
(6)
Incredible Hulk # 1 : Marvel - cover (1)
Incredible Hulk # 1 : Marvel - "The Coming of the Hulk" (24)
Journey into Mystery # 80 : Marvel - "Won't you Step into my Parlor" (7)
Journey into Mystery # 80 : Marvel - "Propoganda" (6)
Love Romances # 99 : Marvel - "Teenager and the Truck Driver" (7)
Love Romances # 99 : Marvel - "In my Sister's Shadow" (6)
Love Romances # 99 : Marvel - "Fungirl" (5)
Love Romances # 99 : Marvel - "Don't Break my Heart" (5)
Strange Tales # 96 : Marvel - "I Dream of Doom" (7)
Strange Tales # 96 : Marvel - "The Impossible Tunnel" (6)
Tales of Suspense # 29 : Marvel - "The Martian who Stole a City" (7)
Tales of Suspense # 29 : Marvel - "Nothing can Save Us" (6)
Tales to Astonish # 31 : Marvel - "When the Mummy Walks" (7)
Tales to Astonish # 31 : Marvel - "It Fell from a Flying Saucer" (6)
Summer 1962 (1)

Strange Tales Annual # 1 : Marvel - cover only (1)
June 1962 (74)

Journey into Mystery # 81 : Marvel - "The Ruler of Earth" (7)
Journey into Mystery # 81 : Marvel - "The Dwells a Dragon" (6)
JA1995
9 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20529 of 38
Rawhide Kid # 28 : Marvel - "Doom in the Desert" (7)
Rawhide Kid # 28 : Marvel - "The Guns of Jasker Jelko" (6)
Rawhide Kid # 28 : Marvel - "When A Gunslinger Gets Mad" (5)
Strange Tales # 97 : Marvel - "When A Planet Dies" (7)
Strange Tales # 97 : Marvel - "The Madness" (6)
Tales of Suspense # 30 : Marvel - "The Ghost Rode a Roller Coaster" (6)
Tales of Suspense # 30 : Marvel - "The Creature from Krangro" (6)
Tales to Astonish # 32 : Marvel - "Quicksand" (7)
Tales to Astonish # 32 : Marvel - "The Bully Boy" (6)
July 1962 (125)

Fantastic Four # 5 : Marvel - "Prisoners of Doctor Doom" (23)
Gunsmoke Western # 71 : Marvel - "The Life and Death of Ape Cantrell" (6)
Incredible Hulk # 2 : Marvel - "The Terror of the Toad Men" (24)
Journey into Mystery # 82 : Marvel - "The Scorpion Strikes" (7)
Love Romances # 100 : Marvel - "My Life, My Love" (7)
Love Romances # 100 : Marvel - "The Dream of Doris Drake" (6)
Love Romances # 100 : Marvel - "I Dare not Love You" (5)
Love Romances # 100 : Marvel - "Two Loves had Helen" (5)
Strange Tales # 98 : Marvel - "No Human can Beat Me" (7)
Tales of Suspense # 31 : Marvel - "The Monster in the Iron Mask" (7)
Tales of Suspense # 31 : Marvel - "The Man who found Shangri-La" (6)
Tales to Astonish # 33 : Marvel - "What Happened to Dead Storage" (7)
Tales to Astonish # 33 : Marvel - "The Frightened Man" (6)
Aug 1962 (95)

Amazing Fantasy # 15 : Marvel - cover only (Spider-Man) (1)
Journey into Mystery # 83 : Marvel - "Thor the Mighty & the Stone Men
From Saturn" (13)
Love Romances # 101 : Marvel - "I Love You too Much" (7)
Love Romances # 101 : Marvel - "A Regular Gal" (6)
Love Romances # 101 : Marvel - "His Lips on Mine" (5)
Rawhide Kid # 29 : Marvel - "The Trail of Apache Joe" (7)
Rawhide Kid # 29 : Marvel - "The Little Man laughs Last" (6)
Rawhide Kid # 29 : Marvel - "The Fallen Hero" (5)
Strange Tales # 99 : Marvel - "Mister Morgan's Monster" (7)
Strange Tales # 99 : Marvel - "The Day before Doomsday" (6)
Tales of Suspense # 32 : Marvel - "The Man in the Beehive" (7)
Tales of Suspense # 32 : Marvel - "Sazzik, the Sorcerer" (6)
Tales to Astonish # 34 : Marvel - "A Monster at my Window" (7)
Tales to Astonish # 34 : Marvel - "The Strange Fate of the Statue Maker"
(6)
Sep 1962 (108)
JA1996
10 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20530 of 38
Fantastic Four # 6 : Marvel - "Captives of the Deadly Duo" (24)
Incredible Hulk # 3 : Marvel - "Banished to Outer Space" (11)
Incredible Hulk # 3 : Marvel - "The Origin of the Hulk" (3)
Incredible Hulk # 3 : Marvel - "The Ringmaster" (10)
Journey into Mystery # 84 : Marvel - "The Mighty Thor vs The Executioner"
(Thor) 13)
Strange Tales # 100 : Marvel - "The Man in the Crazy Maze" (7)
Strange Tales # 100 : Marvel - "The Imitation Man" (6)
Tales of Suspense # 33 : Marvel - "I was Trapped in the Chamber of Fear"
(7)
Tales of Suspense # 33 : Marvel - "The Mystery of the Tax Collector from
Space" (6)
Tales to Astonish # 35 : Marvel - "Return of the Ant-Man" (Ant-Man) (13)
Oct 1962 (99)

Fantastic Four # 7 : Marvel - "Prisoners of Kurrgo, Master of Planet X" (24)
Journey into Mystery # 85 : Marvel - "Trapped by Loki, the God of Mischief"
(Thor) (13)
Rawhide Kid # 30 : Marvel - "When the Kid went Wild" (7)
Rawhide Kid # 30 : Marvel - "Showdown with the Crow Magnum Gang" (6)
Rawhide Kid # 30 : Marvel - "Riot in Railtown" (5)
Strange Tales # 101 : Marvel - "The Human Torch" (Human Torch) (13)
Tales of Suspense # 34 : Marvel - "I Found the Girl in the Blue Glass Bottle"
(7)
Tales of Suspense # 34 : Marvel - "The Forbidden World" (6)
Tales to Astonish # 36 : Marvel - "The Challenge of Comrade X" (Ant-Man)
(13)
Nov 1962 (135)

Fantastic Four # 8 : Marvel - "Prisoners of the Puppet Master" (23)
Fantastic Four # 8 : Marvel - Human Torch Feature page (1)
Gunsmoke Western # 73 : Marvel - "Redbeard's Raiders" (6)
Incredible Hulk # 4 : Marvel - "The Monster and the Machine" (14)
Incredible Hulk # 4 : Marvel - "The Gladiator from Outer Space" (10)
Journey into Mystery # 86 : Marvel - "On the Trail of the Tomorrow Man"
(Thor) (13)
Love Romances # 102 : Marvel - "By Love Betrayed" (7)
Love Romances # 102 : Marvel - "Give back my Heart" (6)
Strange Tales # 102 : Marvel - "Prisoner of the Wizard" (Human Torch) (7)
Tales of Suspense # 35 : Marvel - "I Accepted the Deadly Challenge of
JA1997
11 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20531 of 38
Zarkorr" (7)
Tales to Astonish # 37 : Marvel - "Trapped by the Protector" (Ant-Man) (13)
Two-Gun Kid # 60 : Marvel- cover (1)
Two-Gun Kid # 60 : Marvel - "The Beginning of the Two-Gun Kid" (13)
Two-Gun Kid # 60 : Marvel - "I Hate the Two-Gun Kid" (5)
Dec 1962 (81)

Fantastic Four # 9 : Marvel - "The End of the Fantastic Four" (23)
Fantastic Four # 9 : Marvel - Human Torch Feature page (1)
Journey into Mystery # 87 : Marvel - "Prisoner of the Reds" (Thor) (10)
Rawhide Kid # 31 : Marvel - "Shoot-Out with Rock Rorick" (7)
Rawhide Kid # 31 : Marvel - "Trapped by Dead-Eye Dawson" (6)
Rawhide Kid # 31 : Marvel - "No Law in Lost Mesa" (5)
Strange Tales # 103 : Marvel - "Prisoner of the 5th Dimension" (Human
Torch) (13)
Tales of Suspense # 36 : Marvel - cover only (1)
Tales to Astonish # 38 : Marvel - "Betrayed by the Ants" (Ant-Man) (10)
Jan 1963 (124)

Fantastic Four # 10 : Marvel - "The Return of Doctor Doom" (23)
Fantastic Four # 10 : Marvel - Invisible Girl Pin-up (1)
Incredible Hulk # 5 : Marvel - "Beauty and the Beast" (11)
Incredible Hulk # 5 : Marvel - "The Hordes of general Fang" (13)
Journey into Mystery # 88 : Marvel - "The Vengeance of Loki" (Thor) (13)
Love Romances # 103 : Marvel - "The Dream World of Doris Wilson" (7)
Love Romances # 103 : Marvel - "If your Heart I Break" (5)
Strange Tales # 104 : Marvel - "The Human Torch meets Paste-Pot Pete"
(Human Torch) (13)
Tales to Astonish # 39 : Marvel - "The Vengeance of the Scarlet Beetle"
(Ant-Man) (10)
Two-Gun Kid # 61 : Marvel - cover (1)
Two-Gun Kid # 61 : Marvel - "The Killer and the Kid" (10)
Two-Gun Kid # 61 : Marvel - "How Matt Hawk becomes the Two-Gun Kid"
(1)
Two-Gun Kid # 61 : Marvel - "Two Lives has He" (2)
Two-Gun Kid # 61 : Marvel - "When the Apaches Strike" (5)
Feb 1963 (84)

Fantastic Four # 11 : Marvel - "A Visit with the Fantastic Four" (11)
Fantastic Four # 11 : Marvel - "The Impossible Man" (11)
Fantastic Four # 11 : Marvel - Sub-Mariner Pin-up (1)
Journey into Mystery # 89 : Marvel - "The Thunder-God and the Thug"
(Thor) (13)
Rawhide Kid # 32 : Marvel - "Beware of the Barker Brothers" (13)
JA1998
12 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20532 of 38
Rawhide Kid # 32 : Marvel - "No Guns for a Gunman" (5)
Strange Tales # 105 : Marvel - "The Return of the Wizard" (Human Torch)
(13)
Tales to Astonish # 40 : Marvel - "The Day the Ant-Man Failed" (Ant-Man)
(11)
Mar 1963 (72)

Amazing Spider-Man # 1 : Marvel - cover (1)
Amazing Spider-Man # 1 : Marvel - A Personal Message from Spider-Man (1)
Fantastic Four # 12 : Marvel - "The Incredible Hulk" (23)
Journey into Mystery # 90 : Marvel - cover only (1)
Love Romances # 104 : Marvel - "To me, He was like a God" (7)
Strange Tales # 106 : Marvel - cover only (1)
Tales of Suspense # 39 : Marvel - "Iron Man is Born" (Iron Man) (13)
Tales to Astonish # 41 : Marvel - cover only (1)
Two-Gun Kid # 62 : Marvel - cover (1)
Two-Gun Kid # 62 : Marvel - "Moose Morgan, Gunman At Large" (13)
Two-Gun Kid # 62 : Marvel - "The Man who Changed" (5)
Apr 1963 (41)

Fantastic Four # 13 : Marvel - "The Fantastic Four versus the Red Ghost
and his Indescribable Super-Apes " (22)
Rawhide Kid # 33 : Marvel - cover only (1)
Tales of Suspense # 40 : Marvel - "Iron Man Versus Gargantus" (Iron Man)
(13)
May 1963 (101)

Fantastic Four # 14 : Marvel - "The Merciless Puppet Master" (22)
Fantastic Four # 14 : Marvel - advert (1)
Love Romances # 105 : Marvel - "The Beauty of Beverly Carter" (7)
Love Romances # 105 : Marvel - "I Dare not tell Him" (6)
Sgt. Fury # 1 : Marvel - cover (1)
Sgt. Fury # 1 : Marvel - "Sgt. Fury and his Howling Commandos" (21)
Sgt. Fury # 1 : Marvel - "Meet the Howling Commandos" (2)
Strange Tales # 108 : Marvel - "The Painter of a Thousand Perils" (Human
Torch) (13)
Tales of Suspense # 41 : Marvel - "The Stronghold of Dr. Strange" (Iron Man)
(13)
Two-Gun Kid # 63 : Marvel - cover only (1)
Summer 1963 (77)
JA1999
13 of 19 3/25/2011 1:15 PM
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Fantastic Four Annual # 1 : Marvel - cover (1)
Fantastic Four Annual # 1: Marvel - "Sub-Mariner versus the Human race"
(37)
Fantastic Four Annual # 1: Marvel - Mole Man Pin-up (1)
Fantastic Four Annual # 1: Marvel - Skrulls Pin-up (1)
Fantastic Four Annual # 1: Marvel - Miracle Man Pin-up (1)
Fantastic Four Annual # 1: Marvel - Sub-Mariner Pin-up (1)
Fantastic Four Annual # 1: Marvel - Questions & Answers about the
Fantastic Four (2)
Fantastic Four Annual # 1: Marvel - Inside the baxter Building (1)
Fantastic Four Annual # 1: Marvel - Doctor Doom Pin-up (1)
Fantastic Four Annual # 1: Marvel - Kurrgo Pin-up (1)
Fantastic Four Annual # 1: Marvel - Puppet Master Pin-up (1)
Fantastic Four Annual # 1: Marvel - "The Fabulous Fantastic Four meet
Spider-man" (6)
Fantastic Four Annual # 1: Marvel - Impossible Man Pin-up (1)
Fantastic Four Annual # 1: Marvel - Hulk Pin-up (1)
Fantastic Four Annual # 1: Marvel - Red Ghost Pin-up (1)
Fantastic Four Annual # 1: Marvel - Mad Thinker Pin-up (1)
Strange Tales Annual # 2 : Marvel - cover (1)
Strange Tales Annual # 2: Marvel - "On the trail of the Amazing
Spider-Man" (Human Torch) (18)
June 1963 (76)

Fantastic Four # 15 : Marvel - "The Mad Thinker and his Awesome Android
" (20)
Fantastic Four # 15 : Marvel - Fantastic Four Pin-up (1)
Journey into Mystery # 93 : Marvel - "The Mysterious Radio-Active man"
(Thor) (13)
Rawhide Kid # 34 : Marvel - "Man of the West" (5)
Strange Tales # 109 : Marvel - "The Sorcerer and Pandora's Box" (Human
Torch) (13)
Tales to Astonish # 44 : Marvel - "The Creature from Kosmos" (Ant-Man)
(18)
July 1963 (74)

Fantastic Four # 16 : Marvel - "The Micro-World of Doctor Doom" (22)
Fantastic Four # 16 : Marvel - Mr. Fantastic Pin-up (1)
Gunsmoke Western # 77 : Marvel - "They call him Dude" (5)
Love Romances # 106 : Marvel - cover only (1)
Sgt. Fury # 2 : Marvel - "Seven Doomed Men" (23)
Tales of Suspense # 43 : Marvel - "Iron Man versus Kala, Queen of the
Netherworld" (Iron Man) (13)
Aug 1963 (28)

Fantastic Four # 17 : Marvel - "Defeated by Doctor Doom" (22)
JA2000
14 of 19 3/25/2011 1:15 PM
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20534 of 38
Sep 1963 (99)

Avengers # 1 : Marvel - cover (1)
Avengers # 1 : Marvel - "The Coming of the Avengers" (22)
Fantastic Four # 18 : Marvel - "A Skrull Walks Among Us" (21)
Sgt. Fury # 3 : Marvel - "Midnight on Massacre Mountain" (22)
Sgt. Fury # 3 : Marvel - Shopping List (1)
X-Men # 1 : Marvel - cover (1)
X-Men # 1 : Marvel - "X-Men" (23)
Oct 1963 (46)

Fantastic Four # 19 : Marvel - "Prisoners of the Pharaoh" (22)
Journey into Mystery # 97 : Marvel - "The Mighty Thor Battles the Lava
Men" (Thor) (13)
Journey into Mystery # 97 : Marvel - "Tales of Asgard" (ToA) (5)
Nov 1963 (139)

Avengers # 2 : Marvel - "The Avengers Battle the Space Phantom" (22)
Avengers # 2 : Marvel - advert (1)
Fantastic Four # 20 : Marvel - "The Mysterious Molecule Man" (22)
Journey into Mystery # 98 : Marvel - "Odin Battles Ymir, King of the Ice
Giants" (ToA) (5)
Sgt. Fury # 4 : Marvel - "Lord Ha-Ha's Last laugh" (22)
Sgt. Fury # 4 : Marvel - Weapons of War (1)
Strange Tales # 114 : Marvel - "The Human Torch Meets Captain America"
(Human Torch) (18)
Tales to Astonish # 49 : Marvel - "The Birth of Giant-Man" (Giant-Man) (18)
X-Men # 2 : Marvel - "No One can Stop the Vanisher" (22)
Dec 1963 (46)

Fantastic Four # 21 : Marvel - "The Hate-Monger" (22)
Journey into Mystery # 99 : Marvel - "Surtur, the Fire Demon" (ToA) (5)
JA2001
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Tales to Astonish # 50 : Marvel - "The Human Top" (Giant-Man) (13)
Jan 1964 (129)

Amazing Spider-Man # 8 : Marvel - "Spider-Man Tackles the Torch" (6)
Avengers # 3 : Marvel - "The Avengers meet Sub-Mariner" (25)
Fantastic Four # 22 : Marvel - "The Return of the Mole Man" (22)
Journey into Mystery # 100 : Marvel - "The Storm Giants" (ToA) (5)
Sgt. Fury # 5 : Marvel - "At the Mercy of Baron Strucker" (23)
Sgt. Fury # 5 : Marvel - Weapons of War (1)
Tales to Astonish # 51 : Marvel - "Showdown with the Human Top"
(Giant-Man) (13)
X-Men # 3 : Marvel - "Beware, the Blob" (24)
Feb 1964 (47)

Fantastic Four # 23 : Marvel - "The Masterplan of Doctor Doom" (23)
Journey into Mystery # 101 : Marvel - "The Return of Zarrko, the
Tomorrow Man" (Thor) (13)
Journey into Mystery # 101 : Marvel - "The Invasion of Asgard" (ToA) (5)
Mar 1964 (120)

Amazing Spider-Man # 10 : cover (Spider-Man figure only) (1)
Avengers # 4 : Marvel - "Captain America joins the Avengers" (23)
Fantastic Four # 24 : Marvel - "The Infant Terrible" (23)
Journey into Mystery # 102 : Marvel - "Slave of Zarrko, the Tomorrow Man"
(Thor) (13)
Journey into Mystery # 102 : Marvel - "Death comes to Thor" (ToA) (5)
Sgt. Fury # 6 : Marvel - "The Fangs of the Desert Fox" (23)
X-Men # 4 : Marvel - "The Brotherhood of Evil Mutants" (23)
Apr 1964 (48)

Daredevil # 1 : Marvel - cover (1)
Daredevil # 1: Marvel - "The Origin of Daredevil" (splash page) (1)
Fantastic Four # 25 : Marvel - "The Hulk Vs. the Thing" (22)
JA2002
16 of 19 3/25/2011 1:15 PM
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Filed 03/25/11 of 20536 of 38
Journey into Mystery # 103 : Marvel - "The Enchantress and the
Executioner" (Thor) (13)
Journey into Mystery # 103 : Marvel - "Thor's Mission to Mirmir" (ToA) (5)
May 1964 (134)

Avengers # 5 : Marvel - "The Invasion of the Lava Men" (23)
Fantastic Four # 26 : Marvel - "The Avengers take Over" (23)
Journey into Mystery # 104 : Marvel - "Giants walk the Earth" (Thor) (13)
Journey into Mystery # 104 : Marvel - "Heimdall, Guardian of the Mystic
Rainbow Bridge" (ToA) (5)
Sgt. Fury # 7 : Marvel - "The Court-Martial of Sgt. Fury" (22)
Strange Tales # 120 : Marvel - "The Torch Meets the Iceman" (Human
Torch) (14)
X-Men # 5 : Marvel - "Trapped: One X-Man" (24)
Summer 1964 (49)

Fantastic Four Annual # 2 : Marvel - cover (1)
Fantastic Four Annual # 2 : Marvel - "The Origin of Doctor Doom" (12)
Fantastic Four Annual # 2 : Marvel - Super Skrull Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Rama Tut Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Molecule Man Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Hate Monger Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Infant Terrible Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Diablo Pin-up (1)
Fantastic Four Annual # 2 : Marvel - "The Final Victory of Doctor Doom"
(25)
Fantastic Four Annual # 2 : Marvel - Human Torch Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Invisible Girl Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Thing Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Alicia Pin-up (1)
Fantastic Four Annual # 2 : Marvel - Mister Fantastic Pin-up (1)
Marvel Tales Annual # 1 : Marvel - cover only (1)
June 1964 (48)

Daredevil # 2 : Marvel - cover only (1)
Fantastic Four # 27 : Marvel - "The Search for the Sub-Mariner" (23)
Journey into Mystery # 105 : Marvel - "The Cobra and Mr. Hyde" (Thor) (18)
Journey into Mystery # 105 : Marvel - "When Heimdall Failed" (ToA) (5)
July 1964 (101)
JA2003
17 of 19 3/25/2011 1:15 PM
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Avengers # 6 : Marvel - "Masters of Evil" (23)
Fantastic Four # 28 : Marvel - "We have to Fight the X-Men" (22)
Journey into Mystery # 106 : Marvel - "The Thunder God strikes back"
(Thor) (18)
Journey into Mystery # 106 : Marvel - "Balder, the Brave" (ToA) (5)
Sgt. Fury # 8 : Marvel - cover only (1)
X-Men # 6 : Marvel - "Sub-Mariner joins the Evil Mutants" (22)
X-Men # 6 : Marvel - Cyclops Pin-up (1)
Aug 1964 (75)

Avengers # 7 : Marvel - "Their Darkest Hour" (22)
Fantastic Four # 29 : Marvel - "It Started on Yancy Street" (22)
Journey into Mystery # 107 : Marvel - "When the Grey Gargoyle Strikes"
(Thor) (18)
Journey into Mystery # 107 : Marvel - "Balder must Die" (ToA) (5)
Sep 1964 (95)

Avengers # 8 : Marvel - "Kang, the Conqueror" (21)
Fantastic Four # 30 : Marvel - "The Dreaded Diablo" (22)
Journey into Mystery # 108 : Marvel - "At the Mercy of Loki, Prince of Evil"
(Thor) (18)
Journey into Mystery # 108 : Marvel - "Trapped by the Trolls" (ToA) (5)
X-Men # 7 : Marvel - "The Return of the Blob" (22)
Oct 1964 (52)

Avengers # 9 : Marvel - cover only (1)
Fantastic Four # 31 : Marvel - "The Mad Menace of the Macabre Mole Man"
(21)
Journey into Mystery # 109 : Marvel - "When Magneto Strikes" (Thor )(18)
Journey into Mystery # 109 : Marvel - "Banished from Asgard" (ToA) (5)
JA2004
18 of 19 3/25/2011 1:15 PM
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Filed 03/25/11 of 20538 of 38
Nov 1964 (90)

Avengers # 10 : Marvel - Captain America Pin-up (1)
Fantastic Four # 32 : Marvel - "Death of a Hero" (21)
Journey into Mystery # 110 : Marvel - "Every Hand Against Him" (Thor) (16)
Journey into Mystery # 110 : Marvel - Thor Pin-up (1)
Journey into Mystery # 110 : Marvel - "The Defeat of Odin" (ToA) (5)
Kid Colt Outlaw # 119 : Marvel - cover (1)
Kid Colt Outlaw # 119 : Marvel - "Unarmed" (5)
Tales of Suspense # 59 : Marvel - "Captain America" (Captain America) (10)
X-Men # 8 : Marvel - "Unus, the Untouchable" (20)
X-Men # 8 : Marvel - Beast Pin-up (1)
Dec 1964 (93)

Avengers # 11 : Marvel - cover only (1)
Daredevil # 5 : Marvel - cover (1)
Daredevil # 5 : Marvel - Daredevil Pin-up (1)
Fantastic Four # 33 : Marvel - "Side-by-Side with Sub-Mariner" (20)
Fantastic Four # 33 : Marvel - Sub-Mariner Pin-up (1)
Journey into Mystery # 111 : Marvel - "The Power of the Thunder God"
(Thor) (16)
Journey into Mystery # 111 : Marvel - Loki Pin-up (1)
Journey into Mystery # 111 : Marvel - "The Secret of Sigurd" (ToA) (5)
Rawhide Kid # 43 : Marvel - Rawhide Kid Pin-up (1)
Rawhide Kid # 43 : Marvel - "Brass Buttons" (4)
Sgt. Fury # 13 : Marvel - "Captain America and Bucky" (23)
Strange Tales # 127 : Marvel - Thing Pin-up (1)
Tales of Suspense # 60 : Marvel - "The Army of Assassins Strikes" (Captain
America) (10)
Tales to Astonish # 60 : Marvel - Hulk Pin-up (1)
Link to: 1938-1949 • 1950-1959 • 1960-1964 • 1965-1969 • 1970-1979 •

1980-1995
JA2005
19 of 19 3/25/2011 1:15 PM
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97-28 509519, Page59 ofPage
Filed 03/25/11 205 1 of 5
EXHIBIT GOG
JA2006
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
97-28 509519, Page60 ofPage
Filed 03/25/11 205 2 of 5
t
ir \V ,)<; .h:t' hll.lll
t THE HIGHS AND ""'iJtlll'... l•> lht

.lltlhtll \l•'ry.
ol£ thl' h!lr h..!l
LOWS Of HENRY PY.~

.!rrr.ng this
lctflt' l t e (ur
~.• ,hy) -..,h in
.r - ~ •rg"lunJ
t
.
y~ [_,,,,~:_ ''' l<irf1l>1. lflf· .~f<lt7/Cii<Ml·.\f,m lrv ,\ ltL.- 1;·,ur!,l!ld
hrn l~<.a~ ,hk~J tu ·..-!ill' J O Jntdt vn \nt· '.bn. l realilt"<ll
nc>t>r r~.111y ~lVt- fiiU~h thor1!!ht w rhc rh~r:.t t t r - wJ tlt•t! he r.
,.fm• l<l<il th~
" '~ }1~ "The
.\!an in tht
I 11 lppe:trs, ,JiJ J ny•111e ..-1\t'. fhtrt'in liu tho? ha"c !lit.,. l'l t !!t' ll~h iv~·
:n S!,;.p<?fll t
,t,lry
(h.o~r:u tn <)f tht \ nt· Man: F:m., wtriO' nllt rf.•;t<'<L . hue nut v~ry.
Hnt tJf ill, why rn.)k.e a >Uper · lwnJ •lUI •A J , h~r.l< trr !h~ ;j,e . ,f ~~~
..,'.!
.tnd th(
iMc(!/ I'm ,;urt dOJOOt fam1fi4r ~ilh ,\nC·.\Ioio .ilr~.1dy knuws ch:ll he J..brrt of
~p i.!er-.\-lJn
>tiltfe.i o_ut JS ~do>ntist Il~nry l') m, wh•1 ' hrank him~lf ,j,),..n. and got
tnpptd tn ~ntl e'\C·apeJ tTom :m .tnthitl in • then rhrowl\o<ay f.'lnta~y Jpprownately
•lnt mnnth
>tury '111~ \f3n in the Ant fllll. • publd'u~d in T.JkJ to .t.Q,msh II'J.I. }an.
tl62 (appm~ imardy tlt~ ·;;am~ timt FF t2 Jp~omJ). 1..-'f' ~lott~d rhe b,.fc,re the
\tof}' JuJ rhe .lrt "'~~by Kirby/A}~~- !Dirk :\yen mn~mber; ~nding .\nt-,\.fan introduction). or tht' f.Kt that DC h3d succ-t:~rlU!ly re-intr~
S/;ill J note l.n,·k wtlh t ht~ story. t~: lling him he f,,und rhe nm.:ept uf ~ J u.:e.J rh~ At•Jm, a ~ix-indt iUper·hero. in Showru.sr. Si.oce the :~nwork ·
11!.m lll l world ofin.se<'ts intriguing.) But the 'i{ripting(Jialugu~ Jnd is l llbmil!~:d :~ppro:cimatefy lbut not alwaY") si.t month.~ bd'ore tht
(apt tons) W:!S ny 'ltlill'~ bruther Larry l.id>.-r. <) Dt fJ{ the unsung hefO('$ •'rwer datP./ month, the! .-'o.l!t·Man story wtm!J havt bten dr;~wn -shortly
of early \lan·d . Lieber lt ripred many..,{ rhe rarly r\01·.\lan ,, (<)ri~. -llhr \'h""'nlu IH6 - · the ~nJ d tht ,\tom·~ debut run- and ~
.Shortly -~ fter this ~tory wlS publbhed, l <'t m-gan rhe r~k of con· may have ~nrt>t.l a tiny ~up«-h(ro in hi., gr<Jwing st:~ ble of sun.
vening his "rnllll~ter mrnks· inro ~ujXr·hero mJgaztne;<;. Perhaps it In Jnr ev~ot. the Ant· Man debuted in Tald to .J.Jibrti.th135 (Sept.
'62}. on rhto r.l<k with FF~. lfu/1. ·0. and
l••t1I11ry into ,\.fysJrry #84 among uthen. Tht Ant-
\hn co\tt ~ wa~ clurty a Kirby cceation, lDd it
nev~ lo.lktd ;u goo.J :u it did .dttr ~first ~plash
page. f'he rh~ emblem was~ to rest'l llble
a huge ant. complete ~~oith had. thoro:. :wd ll'gS.
'flle hdJnEt w;u bl>autifully mJlini.sant "f.vt :wt\
ht3d ~~oith anrennJt anJ m:lllclibld. The boots
,.i wen~ also uni•fUt inasmuch as they .ippt'<lreJ to

I~ designed f<)r treading unduground, and Wt."re
i never ••'it'd a~ in after the first issut. 'iadly, •Wer

time (and ~~oith the frt.netic p:are Kirhy wa~
wMking under), thtt Cll~tume btt::un~ a ·JiluteJ
r v~ r~it>n tJi the original, with thf h•NJU r~m·
i bling the ~rwe~. the hdmer .,.JmetimP., without
t antennae. anJ the lnt ~mhlem be.:orni..llf! sim ply
a l ~ r)(e hi ark hal! on the h(rll·~ chest.
·\nordinK to u~ber, Stan named the rh.u-
.~.-rer .\nt·Man. hut Llrry came up with Henry
rym - j u ~r -1> ht- CWle "P with Pon Bfak~.
Tony 'lrark, .1nd ofhtr , h:uacters whom I ~,.w
up with, n~ ~·er rPaJiJin)l; rhe <re ~tive 'nput lifthis
•l U I~! Jlqll . : .'lfTY Ut'b,:r was r)l~ prin,jp;tl
~.:n ;•rer n•,I ·"LIY in -\ nt -\LUJ ·~ •ntr•·'<fcrnwn. but
,:..s,., m !l~1r',_ fnm ~-1~11-._ '"d <Itt fbnr:llt hFh',
a: S lr-,tr;:t f J:,-: \~~~~ lol.!v" l.JJrt rhe ,, r t ~ ·fiOlr!
'h.,,t', ·n :hi" '•l·-n 'ltt f <u ' Jl(, ' thi r l."'oh..t t nt: · ~·l·r-·,
1 1
<• ' il\h.--c. . '•• •( ' , l 'lk fH l .tfl thr Hl.jl)~ \H ''I[t"fP1~.
1..r r: ·11a e. •n<l t~nr a.w \( rol l(·~ f)r ":s ~ 'K'!lf!lt n ,< H
r h~ >-!Il l~ ll t ~P . ! t _; n ~thH I;l, :hi~ ·horu.J :r..lkt' hom
j•1~ l -'' ·tt•>""' UllIf~ h un, hmg lh<· <;;> c·h Jr:ll kfl
.\5 'SIJll .lO•I IJ.: k ,_,.r.. : r~ no.- o1 !'><-f -.-h~n \' ''' ~"
P•.-r rh,-~ ·. h"'' ·-t•·r·~~- :h;· '""' t~ l• •·r~ hv
I ;rlwr.
''"r iJ.-l p~ :he :~ . r"m \ Ill · \1 .mlud t•r·· h !~" "
r!n~fir, i! JO .a 1:dtt< t~rtl h:'l ._ , ~w , \ ~I' : ~ :\ ... , ~ J lt'f hrrn
:h• d!f- · •f Hl I ~ '.""' ( ~ \ t 'i ! l ~tl :~·.'. 1'1~. : ' •H '1·\ t
·· t., umd - it' • h·;·it~l· ) 'lll f "H ' 1t' -- .~:lv \fl~~ \{ul
~ t . : nr·' · -. r f ... J ~~.... ·,J rt•.ld .11! d !\: :- n ~ · , \ ..;n Jl,
... .' It' • P t(•r{ Hi:: ftt:!' tt !l,id f· • i•t~ I • ~ 1d~ r · _;~ ~tJ
: :·J
JA2007
K 01295
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
97-28 509519, Page61 ofPage
Filed 03/25/11 205 3 of 5
.-fft< (1\t' U~l' •JI J rf.

Kirby ,Jrn... th• first"~ I~SU <?\ ( I l'i-~JI h)~~( u ~,.
, t•~r·Rt~r ~ ' .11 1 t'< l : t'f rhr.; run. thO:' ~t'\1 ~1·111' 1.1 tnc 1\o~ S
· ~ ~tl<' w.!~. - rht' Snrlrt Btt-tl..-· - A :!dilliti' I hrOI''hJ~ k ' I I
:hF prt-ht-r•l \ tulf. hut a tun r\\ ist ha1·inl;( rh mwcr
;,urniltHIU .md Vl<'t ·,eKJ. \\'i rh 141. Don !I{'< k t ·~· k
· oV('( tht ,l[f 'hort'~ .tn<J (tltno::dmtJJI)' \v~~ < irJ~> IO?l irnn
\ho'> fir '> t ~ ppt'~rJ na in .,u>pO!It f ·l~ ~~ 1he '>.lmt' tin•<' .
~oll.:..·k ·-.J<; IUrtin!( hh ~upt>r· h~r" r>.tn !Uillptnjl: in 1~irh
hoth t~t' f . l .1~be r m tHinutJ h i "><:ript IIJ.I to I ·SJ ; !Jy lhE:n
~i rhtr ir was dt't(rminrd that ::..~lt>s werl'n't g,)l)d en<.·ngh
·•r Lee wan ted Jn uther frrnalt htro at Marwl (fJr Pfflplt'
Wt'H")!!ettir•g tin><! <}{ h~ving .!,nt·Man cl)flv~r~~ o~n~ ·,it.kJ I~
wirh a t..unch llf :wr~). So by his t~ urh ie">Sllt'. it waq do:<:iJ .. d
to ,pw Hm a partner.
With #44 . Kirhy "'as h~tk anJ thr Wa'p wa ~ ..,irh him.
Ht-Ck bJck..J Kirby on inks. llu1 tht> saipting was dont hv
oue H.E.. llunrl}·. a p<.t>udonpn r. )r Emit! Han. wlw >vas
an ~dit<Jf unuf:'r Stan fmm tht> 1\tla~ day~. Let' IV;}S <;till
gdring c-rrdil as pluttt-r, ~nJ this i~ tviJent b~· 1us.t thi~
~torv lt:!s Corn mi~ · >illain dero ~ n ts in it. We find out rhat
Py~ n<~d 1 wilt. Maria, -..ho came fwm and ili~d behind
the Iron Curtain. Janet \'ln Oyne. whom l)m transform~
i111o the W:~~p (\'Ia Kirby). ~lso lo s~ her f:Hher in Ihi~
stl>ry. 'c.J the two are united to avenge hi.'i death. Ant· Man
rnd~ up with a partntr, Pym ends up with a !ove intere~' .
a.nd L""' ~ nds up with anotht>r 1\irby-de~ ignNl dmactfr.
l 'p until this rime. Ant-Man I;Jught mo~tly w mmon .:rim-
iJub. ~ies. \abote~m and the like: it wasn't until~ (hi~
14th i ~sue) that he was givrn a <osturn.:d supt-r-villaift.
P~rha ps the Introduction of suptr·villai.ta or laggiJ:lg ~a les
(probably sales) prompted~ tn re· nmp the char:Kttr.
Kirhy returned In AJtvnirh '*49 (once ~ain backed
11p by Ht'l·k) to tttrn Ant-Man inw Giant-Man. The name
may h;~vr !>fen pickl"d becJus.e ufthe play"" l.~i-Ant -"!an.
hffau.st the ,i,nc-Man an!(le was no1 to lx- JbandoneJ.
This iswe ai.S<l introduced a one-time m~oace Colllf'<J "The
livitl!l EraSt-r" whom Lrs D:tnitls in his book .\Jarvrl. Fil'l'
f,;bulous Oaadt! gOO:'s out •)fhis w~y to \ftowcasc as one
.,f those uniqut' let cn:ations. Yes. the ch<U<l\:ltr i~ uuiqu ..
~nd imagin3tivt.l>ot that's my point o.>f contention: Kirby
\¥;1~ I lfl fhe fxvlkf llne miJUI.j notice that Wht'lk'Vt'f Te~ i.~iOII.~
•Jr additions wo>re rna de to th~ Anr· Mao ch4rartt>r. it wa~
1\irby who Wf)rked on that srory. anJ it wa.~ in a deriJt'Jh
)I'Jys lik~ Kirhy..\:w~. and H ~ k bt-o:au~~ d1r ,kiJifillu o;e of pcr~pe1 tive
d i.tkrt'nt •fin than "~ ' l~g don~ whm !\irby Wl.'in't invo lve1l
"~'key w1th rh i<> t)'J* , f ~· h ar.1ctn t ul-:c:: t•> r~m:k •Jf Udl<-r·> t .ttlv .\m·
'-hn ,(t•ri~s J' ~·t .~>m'-U,ltJ
- no!tr~. ~ J< l ~e rht"l .•It had"
.., , , >l l'T'l ,, ,lvf'J ·.-.1 th an
: · rnu•~ m~ .11 ~'11' ~nd.' 1(
·,,,,,.,.. ~ h·r~ ;. - r f ·hi'
··!c·. ic;ble .11111 < ""'mw -.t<•ne'
· I <~ p Pfl (Jt'rl d hi~ r .wm ·; '' :r h
:!l r' o,turf dru m)( 1~1 \ !!I ll~ !
'' rl i k~ K~ n~\ ''~·l i7., ! \ l•>m,
-... her<· ro·f'• l 4nd ; •il:tu: \ >• ( ?
-h•.1v~ f"'rf<'t·ll> phvwAlly
p<>pn rfl ll ll ~ d ~: irh; ·, \'1 1·
'. 1.1n ,. ... l, ~ d ilk~ i·e !t·,'(·c! '~' :u >
h,. ..,, ·... r.t=tl , .,,•,(: ·. •I:.>in~
·· ·;·1td P \t· r h::n l 1 ~.r rt h ·.;n -
• i l rtl f\HOI \ tppr•>·f< h >'<1~
;;.. (h ' lll~ t l'·lfl! (.) > ·,<o:.;l j ·" ' "
, ;/ · ~t ! ~J - .t : ~~~- ~q :·r ~ JLrt ~ ~ ~ "1.:
. , •• J ' .1\\. r fq: u.~ ~ rr jlln rn.· ~~r
r··t tl' t· · ·l 111

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I ''J<dv, '; , ~ r ll · \ bn w;<~ lo" nll h 1~. f li' -.t nN~ '.('tflltll In~ ;I.JppinJo: t>.tc k
llrm
1<.1 r~e .\nr·.\hn r•m of r he· n~ ill \llb.in ~ rL.-t wJs •ro•Jitt"cl , ~ w r it~ r hy
Jfr, A ·~
: flj~ fiO\f' ). fll l-'>.~U~ 465. H ilt b1t l h J il< l' \y~S l f!~f wtrh " 11\e ;-i(' W
'
tdJ/
;inr ~lr'l ( ; ,,, llt -.\.l~ n ." I le 1ns ginn J ,h~t :-tdr~~. l llo:" c\·N mt'!ic ts~lrn.-t
I
. !\ f T r.: he ol tjtirul •.v.ts Ji.<.cardN ... hcn ht- w('nl from .\nl· to <.;l.lnt·.\1:.m ).
md lht- n~ w .tbrlity to c,•nrrnl •he Sll<' ,,(othe r~. "''' h ;ome ~~ry nite
',H ,I~{f ih>b "'' "' ~u Jttwu rt thr•l"-O in t•)l): hur ir .,...IS IO<> lw!t . turJ latt .
. 'lull,/ I] H.t\lll:l nt \'H' r~a lly kno"''ll 1vhar ro •Jo wirh the \'hJI"'- tt-r. l.t:e rhrtw
!J(IIJ/1/ul, ' II :b.. t•JWI"!. n~e htrOJ l:'\·jdtJ IO "rrrir!', • m<Jfhtf llfli<JUe apprO:II h
v·ilrdu J
! .h'*: tl
r!1r ~ >• t p.:r · h~ro md t lir'>i tiJ r .'vbr>t'l, ~o bv L\~tlt' .fi O. f ht -;,,1:>-
'<Urm~r drbuted i.n pi:.,. e •,f t ;i<lllt· \bn_ .
l
i'!U S~,.'/rtt:
·•f rrrt;-,·, 'ir.tn, rttusin~ (O "IY ·. tie, O!'tJ•rgln t>a•k l'ym and Van Dyne t(Jr
/itll'Sl
wori Thi~
I' • .i ltlt"<>~ in f h(' 'iulr.\1annt'f ~tory in .~ :>t.•nuh 1(17 JnJ t?ii. In 1t. fhe
Wasp d.:.:·t,ft5 to !:.~ tl :-lJ.mor. .,.hi<h 1.-a.h to h~r h.>ing <d pt11 r~J hy
rund ,j .\!llun3 in .·hvngt'n • 16. whkh io <nm brings ,_;i..ot-.\bn t:>ack to the
,,,, A~(' ogen in J":!8 with } tl JOIJther ni'W (osrume and namto: Ct•li:Hh.
l ,\..~ronilh
IU. j lTrut> \1 ar;.dit~ r~mt>rnh.>r ~n i· Man w:1s ~ ti11U1dtr ct The ,._vengers,
Jppt'ared ~s ( ;iant \tan ..... irh ISSUe 111• .md !...ft the group in t 16.
t;ofi<lth ,. ~,u ''"to ~ome ont' of rhe ·ang.st·rilluen • l.et htf'tX's,
t·
f
~i rby stay~d on fo r ~0 w t.l i;Sl l nd helpt'd L1unch The l!urnan
l i)p. who 1~.1s bt>ing groome,J t o ~ Gi:mr-.\1 ~ n ·.~ :1rrh· lllllilin. To my
luwwledge th~ i~u" h<m' 'lever 1-oeen r~printt'd 1v. hich hol.U tnte lOr
I d.-w },·,ping siu ,·hang:ing-inJ uad IW;rhoSt'!. <~.n d tin illy marrying
fhe W.l:ip in A1vn~NJ #.>0 a\ ,Vd JntJther tnC'3m ation. Y!•llowjackrt.)
Ani ·Man!Gi.\flt·,\1an ha~ .1 lwa}· ~ gott~n a bad r.tp fro m f.mdom
m an~· ot rhe . ~nt· Man/Giant·Man ~loritl) and that'' r~aJJy ~ )haml'. rn l:"""r~l . In comio-ro:-lated tnth• >l, ,gi~~ he'~ ~it her li~tro al Jn ·l)K•
fo r thl'y have 'orne very imJginative Kirby fi.l;ht ~n!l<"' . It"'"' also J ll chJracter. ''""" who ·,l(.,.er ><-t"rned to <'lit it: or ~imply lS J. ·joke."
..arlv two-parter, but evc'n m<1re intertsting i.1 rhat rhe tlr1t p~rt ,,f the lroniraUy. he wJs hdd up ro natiiJnal ridicule. and pr.actkaUy no •>Oe
wry ;, ill ked by Steve lJitko, .1od 1~ pairing of theo;e rwo on ;uper· knew >~<h•J h!! was whffi it was bt>ing dont'. f' m rtft rring to the da~c
h..ro \ toriu WlS rare indeed. The ~ood p ;lrt <*51) W3S inktd by Dick S11turduy .'Mt Lu·e >k.:tch with the ; u(J(r·h(ro p~rty. where l ~arrett
Ay~ rs. probably to hdp iotr<>ofuce hlm to the character, for he WJS to '.-ltJITis a5 .\nt·.\1an gets razz.:J by .1 John Belushi Hulk and a Dan
become tht> pri mliJ Ciam-\ho a11iM. k\ue IIS7 guesHtJired Spider· .o\.krnyu Flash. He b.>carnt' the Rodney lhngemdd nf .1..1ar>el mptr·
\·1itn (publi,hed arLIWld the time ofSpiJer.Afu!fiH•U. Jnd issue -'59 herots: frankly, he J t><iervt'd .1 lillie bemr. f.J me at lelst, Henry Pym,
1\Jd r ho:- Hulk, J)Cf.Jbahly to introduc-e I~ dtaracter to OI!W readers ~in C\! l'he A.s[<)nishin!l >\ nt-:\.lan was. JJI in l ll, ;~ ,Jt.cent hero for hi' time. k
hf' bf>tame <_;ian t-M:tr~'s new "roornm:lte" in the n ~ xt i~rut.
HPJ(inning wirh A:;li:miJh ~. rh ~ hnr>k wa ~ ~pli t between Giant·
MJJl .lJlJ The I lull<. -JOt! while meHulk Wa11ooking for JO ~ud ifOl'e,
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.r•.lf.Jt;f1 . 11· d !pCfP.\ '.l''OI1, r. r i ~J<lin f( ,,1J'r ·~ d•,;!r·iJ.o .,,., : .-.f'I'IC r>t'). :k S17 EACH US POSTPAID
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~
.' II
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THIY Rl ACIS!
John Severin inttrvirwtd-by mail-by jim A11UISh
THE JACK KIRBY COLLECTOR: When did you first becornt' aware of Simon & Kirby's comic
book work? Did they influence you in any wa'fl
JOHN SEVERIN: One of the first, or in this case two of the first comk artist~ I heard of when I
got into the business were Sbnon & Kirby. I was a late bloomer in comic~t wasn't till
late '47 that I entered the field and there seemed to be a hundred aces who l was encouraged
to emulate, to swipe from or at the very least admire for their work. Simon & Kirby were two of
the more outstanding a<:es of that group.
TjKC: How did you get work at Crestwood and Prize?
JOHN: There were quite a number of publishers in New York at that time, albeit their production was
small. In those days the prospective artist lugged his portfolio of samples from company to company
looking for work. One of the publishers I encountered during this routine was Crestwood-and there I met
the two stars of comics, Simon & Kirby.
7JKC· Was Will Elder working with you from
the begiruting or did he come aboard later?
Who was the editor and what was your first
work there?
JOHN: We-Bill Flder and I were partners at
that time-were lucky enough to be given a
script for one of the crime comics.. The story
was about two children'""'--{! young girl and her
brother who murdered their mean stepfather.
Soon we were doing westerns fur Cre;t-
wood's sister company. Prize Western-"The
Black Bult and "The Lazo Kidw were two of the
series wt' did befor:r the editor, Nevin Fidler,
spoke to me about a new character they were
creating called "Arneric.;m Eagle.~ I agreed to
take it on and that ended our work with Simon
& Kirby. They had been very helpful with their
constructive criticism to two novices in the
business.
TJKC: Who do you recall being at Prize at the
time?
JOHN: M.R Reese was the Head Hc.mcho-J~
and Jack took care of the crime and romance
books. After Nevin Fidler left, Joe Genalo took
aver; and of course Ben Oda was th!!re, lettering
away to beat the band Marv Stein was there
mostly doing work under Jack and Joe's wing.
T]KC: Did you ever socialize with Joe & Jack?
JOHN: Even though I no longer worked directly
with Simon & Kirby. our relationship was
always friendly.
TJKC: Who wrote the American Eagle stories?
JOHN: They started out with Jay Alexander,
but when I began packaging the Eagle, I got
CoHn Dawkins to come in with me. We would
work out the storyline together and at times
collaborated on the final script
T]KC Did you do much work on the romaru:e
books?
JOHN: As to the romance stories for S&K, my
mind is a blank. I don't remember whether or
not I ever did any for Crestwood.
T]KC' Why did you quit working for Prize and/
(thtst patp) ~~~ inb avu Kirby pencil$, from Yellow Claw #4.
or Simon & Kirby?
JOHN: The walk I was receiving from EJJOrSO'b 221
30
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me to give the secondary Eagle stnries to Joe Gevanter.

There wl!re times when (had to enlist the help of Al
Will.iam.son. We might even stay up aU night in
order to meet my deadline. Eventually I had to
tum the whole magazine over to Gevanter and
leave Crestwood.
7]KC: How did you get the job inking Kirby on
The Ydlow Claw for Stan Lee? Was that the first
time you inked Kirby?
jOHN: I believe T1u YelLJw Claw was tbe first
time Jinked jack Kirby's pencil3.1 never asked
Stan Lee bow I came by that particular assign·
ment and I didn't really care; it was such a
pleasure.
TjKC: In tile 1960s, you went back to work
for Stan doing finishes on Kirby's "Agent of
S.H.I.E.L.D.. • What led you back. to Marvel?
JOHN: Again in the '60s I was working for
MarveL Kirby's "Nick Fury, Agent ofS.H.I.E.L.D.H
came my way (good ol' Stan). Jack's pencils
were always complete, so again I was enjoy-
ing the inking on the ace.
T]KC: Did you talk to Kirby much
during this period?
jOHN: Though Jack and I rarely saw
on~ another whilst ·s.H.I.E.LD."
was being produced, I do recall a
bit earlier when he and I were at a
bu.si.Mss conference near Columbus
Circle. When it was concluded,
we-Jack and l-adjourned to a
coffee house, nearby where
Anastasia was shot down.
Jack wanted to know if I'd be
interested in syndication. He said
we could be partners on a script
idea he had. The story would be
set in Europe during WWll; the
hero would be a tough, cigar-smoking
Sergeant with a squad ofoddball
G.I.s--sort of an adult Boy
Commandos.
Like so many other grand
decisions I have made in comics. I
peered through the cigar smoke and I
told him I really wasn't interested '\_ \\~
fohn graciOJJS}y agreed tb ink that peru:ib from the Kirby Unleashed porifolio for this imle'J back CIJ'Itr. Thanks, John/
in newspaper strips. We f.inished cigars and coffee and Jack left, heading towards Marvel aod Stan Lee.
Oddly enough, later on at Marvell ended up working on Sgt. Fury and then wNick Fury, Agent of
S.H.I.E.LO.."
T]KC: Was there any difference between working for Stan Lee ln the 1960s as compared to the 1950s?
JOHN: Working for Marvel was always amusing (I don't mean "funny"'). Stan Lee seemed to make every
project exciting and colorfuL He never changed from the time I first worked for him at the Empire State
Building to the last on Madison Avenue.
TJKC: When did you quit working for Marvel during this time and why?
JOHN: During the '70s, other commitments such as Warren and Cracked Magazine consumed most of
my time. Consequently it left me only working off and on for Marvel.
TJKC: How do you view Simon & Kirby's role in comic book history?
JOHN: ft would be very difficult for me to give you my view of Simon & Kirby's role in comic book
history. So much has already been said and much of it by tho~ more qualified than I. All that I can say
is, again, 'They were aces!" * JM 00222
31
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EXHIBIT III
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1 OECL/\R!\TION OF STEPHEN GERBER
3 Stephen Gerb0r declares and states:
4
~) l. I am the Plaintiff in this action. This declara-
G tion is made for the purpose of opposing Defendants' Motion to
7 Dismiss the Complaint.

8
9 2. I have read the declaration of DonaldS. Engel,
10 counsel for Dcfcildants. In doin<J so, I discovered a number of
11 inaccurac1es. I also found that the description of events a11d
12 meaning of documents are inaccttrate and taken out of context. I
13 hereby col:rect those inilccuracit:s '"hich migl1t be relevant to the

14 pendi11g motion.
15
1G 3. l\s allc9cd in my verified complD.int, I created a
17 comic book character knor.-Jn as 11

Ho\vard the Duck 11 (
11
IIoward"). I
18 created Howard while a free lance writer and independent contract-
19 or. Comic magazine stories featuring Howard were published and
20 sold by the Marvel Comics Group, a division of Defendant Cadence

21 Industries Corporation (''Marvel Comics'') The first issue of the
22 "Jlowa.rd the Duck" comic llldqazine series (herein "Ho\,h1rd ~:;tories"),
2:1 is the January, 1976, issue.

24
2G Attac!1ed hereto and 1nade a part hereof as Exhibit ''1,••
is the cover ~nd first p~gc of thilt isstie.
27 I I I
2il I I I
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Page
4.
-
Tile intrn~uctory
-
announcement in the left top
-2 corner of the cover page, identifies the first issue:
BECAUSE YOU DEMANDED IT -- THE FABULOUS

;, FIRST ISSUE OF MARVEL'S MOST SENSATIONAL
(.1 NEl-l SUPER-SThR~
-I
I
'I
5• As noted on page 1 at the bottom, (in the copyright
g recital), Marvel Comics correctly identifies itself as only the
10 publisher of the Howard story. There is no mention by Marvel
11 Comics in the copyright recital, or anywhere else in the maga-
12 zine, that one of its employees \vas the creator of Howard or that
J:l it had rights to exploit Howard or the Howard stories other than
14 through publication of the comic magazine.
11) 6. ll:lrvcl Comicc> clczn·ly admits on page l of the
17 first issue (at thrc top) that I \·JilS thrc creator of the character
1k Howard and the Howard stories. There in bold type it states:
1!J
20 CREATED AND WRITTEN RY STEVE GERBER
21
22 6.!\. Marvel Comics also publicly admitted in other
2:l comic magazines, that I \vas the author and creator of Howard.
')..j
_ For examp l e, I I1ave attache d as Exh1bit
. "2" a true copy of the
')'"
. . . ,) cover page of the October, 1977, issue nf a comic magazine en-
26 titled 'IOmega, th~ llnknown'' which contains a blurh in the right
27 bottom corner stating:
~k i
Ill
I I
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I
"ANOTHER KIND OP llERO PROM STEVE
GERBER, 1\UTIIOR OF 110\'11\HD TilE DUCK"
.j A. I Was Not Marvel Comics' Employee.
7. !It the time I created Howard, I was not cml'loyed
7 by Marvel Comics or any of its predecessors. I was a free lance
X writer. I submitted comic magazine stories, as an independent
!I contractor and free lance writer, to another publisher of comic
10 magazines besides Marvel Comics. I was not under written con-
11 tract to any publisher. The inference Mr. Engel tries to create
12 is erroneous.
.,
1••
8. I was not provided nor did I use in my work any
lf1 facilities 0\vned or leased by Marvel. I wrote and worked at my
11i own residence. I used my own materials and had no set work
17 schedule. I workeci wt1en and as I alone wished.
IK
1!I 9. I t1ad 110 set j_ncome. I was not paid a salary at

'}.() that time by any f'Ublisher, includirrg Marvel Comics. If a
''1
"- .
publisher decided to accept and publish my comic magazine stor1es,
->'_J, I
1
"'"S ·
paid on the b0s1s of il certain dollar rC~te . I1e d
per publ1s
I believe that Marvel Comics initially paid me about
2·l $1S. 00 per page for the l!O\vard stories. Marvel Comics and the
2;-J other publishers, to \vhom I submitted my comic stories, were free
:W to accept or r:e j ect them. If my comic stories were rejected, I
27 ~Vas not pJ.id. I v;us ulso free to submit my comic stories, if

I
rejected, to olher publishers. I
I
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...
10. Marvel Comics and tlte otltcr publishers paid me on
:! a per publ ishr~d p;u:re bnsif; for my comic stories t if accepted,
J in an aggregate sum and without deduction of federal income tax
4 withholclinq or other tilxes. That (act is corroborated by the
c check whicl1 Defendants have attached as Exhibit ''C" to Mr.

"'I
G Engel's declaratior1.
11. It t.vas under those circumstances \vhich I created
<) Ho~vard and wrote the Howard stories.
1;) I
11 B. Howard's Creation.
12
13 12. Mr. Engel's assertions, in paragraph 3 a11d 4 of
14 his declaration, that Howard first appeared in the December 9,

1~ 1973, issue of ~comic Inagazine CJltitlcd ''Advc11ture into Fear''
]() (cover and nine pages attached in Exhibit "11" to ~lr. Engel's
17 declaration) 1s inaccurate. l\ cluck is depicted at pages 18 and
1K 2G, and I did write the story, but that cluck is unnamed. That
]~) duck \vas a minor "walk on'' charncter at best.
:w
21 lJ. Tl1is duck Jid appc:ar in ~110ther story wt1ich I
22 wrote on ~ fr0e lilllCC b~sis ~nd at tl1e sl~n~nrd compensation rate
I also creatccl this duck and gave him the
This duck was a minor character
2~ and a_mere proto-type of what 11ltimately became Howard. He was
:u; killed off in my story, at the request of Harvel Comics, and for
27 all purposes ended as a minor cho.racter in that sr2-ries.
'_>",
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-
]! 14. I Jo not believe that tl1e $285.00 check, uttached
2 as Exhibit ''C" to Mr. Engel's declaration, was payment for any

:J comic story depicting a cluck. According to my recollection, I
4 \vould have written thr~ story for the December, 1973, issue of
G Consequently I could not have been paid the per published page
-~1 t
rae un t"l
1 I
a f' ter t1e s t ory was wr1tten
. an d accep t e d .
xl
15. During 1975 I proposed to Harvel Comics and Narvel
10 Comics expressed interest in acrjuirin<J from me and publishing a

] J comic magazine story series featuring an expanded and more
12 developed version of the earlier pioto-type due~, the mlnor walk
]3 on character who was killed off two years earlier. I already was
11 aware of the favorable public reaction to the earlier character
and pointed out to Marvel Comics that I already had been consider-
J() ing creating it11ct wri.Li119 storic~; ~bout QJ1 expanded and n1t1ch more
sophisticated duck character. 1-larvcl Comics requested ttwt I
offer to it, should I undertake such a creation, that development
]~) of thQ proto-tyt_)e cho.rCJ.ctcr <lnd sctipt mLitcrial for a series
20 f~at_ul:-ing him as the major character.
:21
16. Letter in 1975, in rny own horne and at my own
:2:1 schedule, I developed and L~>:panded the proto-type and cre.J.ted the
:24 much more sophisticated character Howard. I ulso wrote story
:2:'/lmaterial for a series featurin'] Howard ilS the major character.
2G\ TI1ese stories l1ad 3 for1nat, setting, characters, tl1emes and plots
27 tlnigue to my new ctt~racter, Howard, a11d entirely different than
2H 't!1at depicted in ''Adventtire into Pear."
ME00713
JA2019
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
97-30 509519, Page73 of
Filed 03/25/11 2057 of 23
Page
- ....
1 C. Marvel Vias Granted O_r~~
2 Limited License to Publis~, Nothing More.
1 17. I first offered to Marvel Comics, under the
~ cir~umstances previously explained, only the right to publish

Gl Howard stories in carnic magazine form. Marvel Comics accepted and
I published my Howat-d stories 1 under such circumstances, first as
K separate stories and then in a comic magazine series, the first
!) issue of which app.~ancd in .January, 197G (cover and first page
10 attached as Exhibit "1"). I soleJ:.Y_and only agreed to all01v
11 r.tarvel Comics the limited right to publish the Howard stories
12 in comic magazine form. I was paid by Marvel Comics for the
1:l right to publish the llmvard stories, as previously explained, on
14 a per page basis (approximately $15.00). To the best of my
]~ knowledge, the total sum paid by Marvel Comics for such right to
](j publish over 31 Howard stories written by me over a two year
17 period did not exceed $14,000.
1!) 18. I was not asked to nor did I sign a written
20 contract. Harvel Comics did not ask me, nor did I agree, to
21 assign or transfer ri<Jilts to use or depict Jlov1ard or the Howard
:22 stories in .J.ny oU1er medium, means, ot- manner. All of such
I
2~~~ rights were reserved by me. To be Stirc, I did not receive from
2·1[/narvel Comics additional compensation for further rights. I only
2;) received the sLJndard industry pet· page rCJ.tes paid for publj-
2G c<1tion of comic storiE>s.
'27 I I I
'2X I I I
ME00714
~ (, ~ JA2020
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
97-30 509519, Page74 of
Filed 03/25/11 2058 of 23
Page
1 19. I was not told, orally or 1n writing, that Marvel
2 Comics contended or claimed riqhts to use or depict Boward in any
:l other media, means or manner.
·1 ,-'
D. The Legal Copyright, Said Marvel Comics,
(i Was Obtained for My Protection.
20. To the contrary, I was told in substance on a
!I number of occasions by Defendant Stan Lee, an executive employee
10 of Marvel Comics, and James Galton, president of Marvel Comics,
11 that my rights e1nd interests in Howard and the Howard stories
12 were being protected by Marvel Comics and that no further use

13 would be made of either by anyone without my knowledge and consent
14 an~ participation.
1() 21. For example, Defendant Lee often stated to me in
17 essence, when I would ask for assurances, that Boward and the
1S Howard stories were being protected by copyright. Mr. Lee pro-

I
1!1i mised that ~larvel Comics would protect the legal copyriqht and
20 would not sell OJ' use llo'dilrd or the stories in any other Hay
21 without my knowledqe and participation and "without taking care

I
2~ of me." As at1ot!1cr exatnplc 1 I asked Mr. ~~~lton on one occasion,
2:1 out of co11cern over whether my character llocJard and the Howard
24 stories were being adequately protected, to transfer tl1e copy-
2[, right to my lL_lmc. Mr. Galton stated, 1n substance, that there
2() \. ras no need to do tho.t because Howard and the Boward stories were
_,
'>~ being protected for me by Marvel Comics and I would have to
Ill
ME0071
-7-
JA2021
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
97-30 509519, Page75 of
Filed 03/25/11 2059 of 23
Page
1 consent to and be paid additional compensation for any other
2 usage or exploitQtion by anyone.
22 . The fact that Marvel Comics did not even belleve
.') thnt it hCLd ri']hts to iiowc11-:-d or t.hc ITOHan.1 :-:;toJ·ics, other thJ.n
()I publication of comic tnugazines, <;Jithout my consent and additional
t compensation is clearly demonstrated by its oHn Exhibit 11

0'' to
()
~r. a written agreement between Harvel
'o Engel's declaration:
!) Comics and myself dated f.larch 18, 1977 1 over cl year after Howard's
10 creation.
11
12 E. Murvel Comics Sought Mt Consent and Agreement
To Depict lloward in a Newsraper Cornie Strip.
1-J
2 3. By virtue of Exhibit ''0'', Marvel Comics ~ought out
]() and obtuined my consent to utilize Howard and my Howard stories
17 in a daily and Sunday syndicated newspaper comic strip. I t \vas
1~ C~greed by both parties thClt my !loward stories (including any
1!1 further Howard stories which I desired to "rite) <JOuld be ildapted,
·-2() Hith some minor moclifications 1 for the format of a newspaper

')- 1 comic strip. ~lnrvel Comics a01:eed to p2y, Js cot1sideration for
~~')
--· such other use of my Ho\..Jurcl stoL·iJ~::;, one-third o[ its shJLe of
2:) income dcr i ved from the newspaper syndica. Lion. In tl1e event thilt
'),j
- r-1a.rvel Comics desired to license or us(=: Howard or the Howard
·r
_;) stories in oth._:.r W<1J.rs, the llqrc;cmcnt required t.hnt i'-1nrvel Comics
2G ray 1ne one-tl1irJ of 'Ll1e net receipts'' derived therefrom.

1
')~
~I
Ill
1/ I
ME00716
JA2022
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20510 of 23
-
2' c L:Ht:;cs p~rrl:iculllrly pe:1:-t i nc~nt" from the Zl(]rccmcnt (En<Jel,
I
: ; II declaration, paragraph 7) omits the most important provisions and
4l obscures the true context tl1ercof.
() Tile acrre<Cment, therefore, further provides in pertinent
1 part:
''In the event that Marvel sells or licenses
10 the t•lil ter ia 1 for uses othPr than the daily
11 and Sunday comic strip, then Marvel shall
12 pay to you 011e third of the net receipts
1:1 (less any applicable commissions or expenses)
14 it receives from sucl1 sale and/or license."
(Balance of paragraph 7 omitted
J() by ~1r. Encrel.)
17
l:'l 25. 1b confirm my i11dependent contractor relationship
10 with Marvel Comics (as with other publishers), the March, 1977
-'l(J ~gt~come11t provided:
21
22 "·1. It is understood tltat you V.'ill supply
2:1 said M~teriJl to Marvel at your own cost and
2-1 expense utilizing your own tools, furnishing
2",) I your own place of work and utilizinq your
2G C)\Vn ZlSSistancc. 11
_,
•p
Ill
~X /I/
ME00717
JA2023
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20511 of 23
1 2 6. Marvel Comics never did license or sell Howard or
2 my Howard stori_cs to otl1cr matkcts 01~ for other uses, during the
J term of the March, 1977 agreement, nor was I paid any compensation
1 therefor.
,,
G 2 7. As reflected in paragraph 10 of the March, 1977
7 agreement, the agreement w~s terminable at will by either party
X by written notice.
10 2 f3 • It is undisputed, as reflected in Exhibits "G",
11 11
i! 11 and ui•' to Hr. Engel's declaration, that the Harch, 1977
12 agreement was terminated by both parties by written notice. As a
1~ result of that termination, i t is undisputed that whatever limited
H license of rights to market Howard and my I!oward stories in other
lf> 1-1:1ys which may have been qr.1ntecl thereby 1-1as terminated and all
1() of such rights reverted to me.
29. That such occurred upon termination is clear from
l!l the language of tl1e termination notices. For example, the t-'larch
2(1
- 21, .
1978, telegram from my then attorney to 1·1arvel Com1cs
')- 1 (Exh. "G 11
) exprt:ssly st21tcs:
22
2;} [U]pon the effect1vc date of any such
2·1 tcrinination, all of your ri.gl1ts in ~nd to
2[) tl1e characters cotltJincd in said comic
21) strips shall terlllin~tc, except for a11y
27 rights tJndc,- the contract to continue to
'2il I/. 'I

ME00718
JA2024
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20512 of 23
CXlJlOit the script material provided to
2 you durin0 the term of the ·l•j[ecmc'ont."
As a further example, I wrote to Mr. Galton (president
~I of MarvQl Comics) on April 5, 1978:
()
I ''Please be advised that under the terms
0 of our said March 18, 1977 agreement, as

!) of April 27, 1978, Marvel Comics .
10 rights to the characters contained in tl1e
11 comic strip ''Howard the Duck'' shall terminate
12 and Marvel shall 1>2lve no further r.i.ghts
J:) therein or with respect thereto."
lr> Any usc Zlfter ,\pril 21, 1978 by

J() Marvel or undc~ its authority of any of
17 su.id rights Hit.hout my \.Jritten consent
1~ first had and obtained shall constitute
1!l an i11tentional infri11gemcnt of my ~ights
20 Ll1crein ~nd thereto."
21
22 30. Mr. Galton himself, presidc11t of Marvel Carnics,
2.,,0 attempted to tc1:minatc the Marcl1 18, 1977 newspaper syndication
C) .j
4 agreement on March 27, 1978, ~nd IJcforc I terminated. Defendant
·r
. . . ~> Stan Lee also had attempted to terminate that a9reement l_)y tele-
2l) phone on un ca.rlic1- daLe.
'27 I I I
•)<>,'
_,, //I
-ll- ME0071~
JA2025
'
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20513 of 23
-
1i 31. Shortly ~fter the termination of the newspaper
-~) .
syndication .
agreement, Marvel Comics discontinued marketing
3 tloward and the Howard stories in syndicated newspaper strips.
1 Marvel Comics did not attempt, to my knowledge, to license or
;, sell or utilize I!Owurd ,,nd the l!ov1ard stot~ies in any other way
() under that agreement. Marvel Comics did not respond to my letter
t of April 5 (Exh. ''H" to Mr. Engel's declaration).
!J F. The Other Supposed Agr<eements Attached to the
10 Moving Papers are Irrelevant and Taken Out of Context.

11
12 32. The other two agreements attached by Mr. Engel to
I ·.•' his declaratio11, as Exl1ibits ''E'' and ''F'', could not have anything
14 whatsoever to do with any supposed transfer of rights to Howard
lG or to the Howard stories. The agreements relate to entirely
IIi different matters.
I/
18 33. The October 7, 1977, agr•ecment, (Exh. "E") could
1() be interpreted as an employment agreement. That agreement,

20 !1owever, was executed over two years afte1 I expanded and
21 created lfoHard etnd wrote the initial HowJrc1 stories. That agree-
I
'22 ment, however, pertnincJ only to \·thatevcr nc\v creations whicll I
2 ·.•>/would
I write during the term. The agreement did. not relate to
24 characters and stories which I had ulre.1dy created prioc to the
effective date (October 7, 1977).

21)
'27 The initial term of that a·Jre~ment, as set forth
in parilgraph 2 thereof, was for one year ''commenci.ng November l,

I
ME0072~
-17- JA2026
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20514 of 23
....
1977 and ending October 31, 1978." Marvel Comi.cs moreover admits,
2 as reflected 1n Exhibit ··r~· tu r·lr. Engel's rlcclaration, tl1at it
J unilaterally terminated tho agr~ement before expiration on May 2,
4 1978.
;,
35. The selected quotations from that agreement,
1 recited in paragraph 8 of Mr. Engel's declaration (pp. 23-25),
H refer exclusively to any new characters or series which I would
!I write or create during my cnvloyment period and not to Howard or
1() the Ho•<"Iard stories, \vith the exception of pilragraph 4 (c) \·Jhich
11 Mr. Engel only quotes in part.
12
3 6. Paragraph 4 (c) thereof docs not purport to convey
H or confer any ri9hts to f!owe~rd or the llowarcl stories. To the
15 contrary, it is clear that paragraph 4(c) merely gave me the
IG choice as to wl1ether I would continue to write or edit stories
17 featuring Howard and required that I be consulted in the choice
1"o,• of other writers or editors in the event that I did not wish to
1~ continue.
20
21 37. The segment of paragraph 4(c) which refers to the
2')
-r licensing of llowu rcl fo1.· "film, television or motion picture
2:1 acL:1pta Lion," quoted 1n part hy Mr. EnrJr; 1, lS mere~ ly an exception
2·1 to my exclusive employment ~.<}ith t'L1rvcl Comics. That segment, the

')C
-J interlineations to wl1ich are in my own h~nd, simply allowed me to
2G work di1~cctly fat~ td1d acccvL pclyment from a producer of a pro-
_,
')~
duction bused on Hov;ard in a visual medium; and requires !>larvel
Comics to reconm1end that such a producer employ rne E.:::.2.~_!dless 1

ME0072r
JA2027
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20515 of 23
- ~.
1 of rny then exc 1 us i vc ernploy_rncn t relationship '"i th Marve 1 Carnics
2 described in paragraph 4(a) anc!_i~l_.
4 37.A. The intent and purport of that segment, expressed
5 by its own language, is that Marvel Carnics desired to preserve
G ''the integrity of tl1e licensed character'' to protect against
7 damage of its limited license to publish Howard stories in comic
K magazine forrn; and rny desire to write and consult in connection
() with any production based on Howard in a visual rneduirn to protect
10 ''the integrity of the'' character Howard which I licensed on a

11 limited basis to Marvel Carnics.
12
]:J That segment is quoted hereafter in its entirety, with
14 the'handwritten portion underlined:

15
1() ''In the event of a license for a film,
17 television or motion picture adaptation
11'\ of HOWARD THE DUCK, Marvel agrees to
1~) recommend to such producer that employee
20 and employee only be used by such

') 1 prodt1cer as script a11d/or story con-
~21 sultant to preserve the integrity of

2:! the licensed character. Employee mil_Y
21 ac~ept payment for such scrvices_ _!~om
l):'l
.... , } I prodttcer."
21i Ill
27 Ill
:!H Ill
ME007 2
I
JA2028
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20516 of 23
38. The express Lerms of that agreement, itself,
2 confirm that it could in no way constitute a grant or conveyance
3 of any rights to Howard or the Howard stories, created and
4 written by me over two years earlier. Paragraph 17 of the
~ employment agreement expressly states that it does not "alters
G [sic.] supercecles [sic.], or: nullifies [sic.] any . . previous
1 agreement between Marvel'' and me.
39. The purported IIO\varcl button "licensing" agreement
10 bctwr?en me and Marvel Comics of ~larch 12 of 1976, attached as
11 Exhibit ''F'' to Mr. Engel's declaration, is irrelevant and was not
12 a grant by me to Harvel Comics of any riqht to Howard or the
J:l Howard stories. The transactiO!\ 11acl nothing to do with that.
40. Admissible evidence will show that the purported
lG licensing agreemc:nt ~Vas executed in connection with mail order
17 sales by me of "Howard the Duck for President" buttons ~Vith the
JR endorsement and promotion of Marvel Comics. I desired to sell
]!) buttons clepictinq llo~-Jard as a candidate for president and to use
20 the name of Marvel Comics as an endorsement of the button. I
21 also wanted to use the button design as a thematic and artistic
q•) clement of other liovJanJ sloL-ics. I felt that lending Marvel
2:} Comics' name to the button, usirHJ the button dcsi(Jn as an element
2~ of comic book stories, and obtaining free national advertising

•r
_;) from Narvel Comics in its comic maqazines would enhance sales of
2G Ill
27 Ill
Ill
JA2029
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20517 of 23
....
1 the button. I therefore went and approached t1arvel Comics. I
2 was informed thett I would h,1vc• to ~-;iqn an a<;rcement and pay
3 Marvel Comics a modest royalty (5% of gross sales) for use of its
,j name in connection with tile button, for advertising a11d pro~otion
;, of the button in its comic mu()dzines, and for permission to make
G artistic use of tile button design as a literary and thematic
7 clement in other Howard stories. I was told also by Marvel
K Comics, in connection witl1 that transaction, that the agreement
!J and use of Marvel Comics' name on the button would avoid legal
10 problems with the copyright and would ensure continued protection
11 of my character under the copyright. The agreement, for the most
12 part, was represented by Marvel Comics also as legal protection
13 for me and my character.
14
41. In connection witl1 that transaction, I was per-
Jfi mitted to use the button design as an artistic and literary
17 ele1ncnt on the interior front and back covers ar1d the exterior
JR back cover of the ''Marvel Treasury Edition Featuring Howard the
]!I Duck" comic magazine, d<1tecl 1976.
4 2. I was not asked nor did I agree to transfer any
22 ri.ghts to Howard or the Howard stories to Marvel comics in
connection vti th that transaction. Nowhere is this subJeCt
24 mentioned in the documents attached to Mr. Engel's declaration.
25 I also refused to pay any advance monies to Marvel Comics in
2G Ill
27 ///
I
ME007~4
2:'\ II I
JA2030
i
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20518 of 23
--
connection with that transaction. I also refused to pay any of
2 the standard advance monies to Marvel Comics, as advance aqainst
3 royalty or as a minimum royalty or otherwise, which is demon-
4 strated by the deletion of the boilerplate form paragraph 2(b) of
~ Exhibit ''F'' to Mr. Engel's declaration.
Ii
7 43. I merely agreed to pay a modest royalty IS% of
K gross sales) to Marvel Comics, and agreed to the royalty for the
!l aforementioned substantive promotional benefits and to ensure
]() continued copyright protection for Howard and my Howard stories.
]] I was not financially able to obtain legal counsel at that time
12 and was motivated to pay a small royalty partially out of concern
]J over Marvel Comics starting a dispute over use of its corporate
11 na~e in connection with the button.
]I) 44. The one agrcemc,nt \vh.ich M<nvel Comics prcp<1red
]/ which might constitute an attemet to try and convince me to
lK trcmsfer othc1· rights to llo•,;,;rcl and the Ilowarcl stories, I n<::>Ver
l!l siqn~cl. Attached hereto ilnd made a pilrt hereof as Exhibit "3" is
20 a copy of that proposed ~grcement.
21
21 4 5. ~lr. Engel states in paragraph five of his declara-
2fi tion that Howard and certain of the Howard stories appeared in
2l) other comic magazines published by Harvel Comics and attaches
27 Ill
!
2K Ill
I
ME0072,
-l --,-- JA2031
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20519 of 23
--------~----------.,..----..,....,-----
1 representative copyright ccrtj_ficntcs as Exhibit ''B''. I am aware
2 that Howard and thci Howard stories did appear in comic magazines
3 published by Marvel Comics but I am not aware of any use or
4 publication of Howard and the Howard stories by Marvel Comics
fi (except for those unlawful uses which are the basis for my claim
G against Marvel Comics and the other Defendants for copyright
1 infringement), which violate the limited license granted to
X Marvel Comics to publish Howard and my f!oward stories 1n comic
~) rn.Jgazine form. If 1-t-n·vcl Comics publi.shccl Howard and the Howard
]() stories unlawfully and in violation of its limited license, it
11 was done without my knowledge or consent. I have never seen or
12 heard of the copyright certificates attached as Exhibit ''B''. I
13 do not know what ''special publications" Mr. Engel is referring
14 to ir1 paragraph 5.
JG 4 6. When I first learned that Marvel Comics may be
17 attempting to license or sell Howard and the Howard stories
18 without my consent, for productions based on Howard and the
I!l HOI-Jard stories in visual and aural media, I contacted and told
20 Marvel Comics it hacl no right to do so. I attempted in <JOOd
21 faith to open negotiations with Marvel Comics to try and license
22 Ill
2:l Ill
2·1 Ill
•)C
-·' I Ill
213 Ill
_, Ill
')~
i
2S Ill
ME0072
-1 R- JA2032
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20520 of 23
1 to
- -
it my rights to l!owcu-d and th(• llowz\I:d stories. Marvel Comics
2 flatly refused to negotiate or agree to anything. As a result I
3 then engaged my attorneys, who wrote a cease and desist letter on
1 June JO, 1980, which is attached as Exhibit "J'' to Mr. Engel's
I"> d.eclaration.
(;
47. I have since learned that Marvel Comics has
8 already infringed my equitable copyright in and to the character
0 Howard and the Howard stories and has violated the terms of its
10 limited license to publish Jloward and the !lO\vard stories ln comic
11 magazine form. Attached hereto, as Exhibi_t "4", is a tape
12 recording which I obtained of excerpts of radio programs based on
1:1 Howard and the Howard stories produced by Defendants Selluloid

1~ Prdductions, Inc., and its principals.
]f)
]() 4 8. I have also learned that Defendant Marvel Pro-
17 ductions, Inc., has already had written materials and artistic
lR drawings prepared by various artists for the purpose of unlaw-
l!l III
20 Ill
21 III
22
11 Ill
2:1 I II
2·1 III
2!> III
2G III
27 /I I
2:1 III
ME0072
-19- JA2033
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20521 of 23
·.;,_.
1 fully producing and selling an animated t<'levision episodic
2 series based on Iloward in outright violation of my <'quitable
3 copyright. The latter is the subject of deposition testimony
4 given in this action by writer Gary Greenfield and of various
5 written materials, which are referred to in the Declaration of
G Henry W. Holmes, ,Jr., filed together with my Declaration in
7 opposition to the pending motion.
\) 49. I look to this Court for relief.
10
11 I DECLARE UNDER PENALTY OF PEf<JlJRY TIIAT TilE
12 FOREGOING IS TRUE AND CORRECT AND THAT
THIS DECLARATION HAS EXECUTED AT LOS ANGELES,
CALIFORNIA, ON DECEHDER 2vf, 1980.
15
JG
17
1R
1~)
20
21
22
2!
2G
27
ME0072
JA2034
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20522 of 23
MARVEl .MICS GROUP

•
J~ .. Shooler
Editor-In-Chief
:·lay l0,l97fl
Dear employees,
Recently the copyright lai·JS "'ere changed to provide more

protection for artists and writers who arc the sole creators
of a 1mrlo. T!1e new law makes a very clear distinction betwr,en
artists who create and produce a piece of art or writing on
their ol·m, and those who do work under supervision, as part
of a collective \..Jork or series, or as one of many contrit-:utors
to a work. Creative people lvho fall in thP. li't tter category
are considered employees-for-hire. All creative people at
Marvel arc employed on that basis.
In order to insure our continued ownership of the material

we produce and publis!1, and to clearly define our position under
the ne1; law, He have dra1m up a work-order agreement (enclosed)
i
Pl~2.s~ Hrite in the date, 2-·our name and adGress at the top
in the appropriate blanks, sign at the bottom uncer "supplier",
and return as soon as possible.
This agreement does not change any of Marvel's policies

toward freelance creative people. It is only intended to restate
the relat'ionship that has always existed bet1veen ••arvel and its
freelance creative staff. Our policies of returning artwork,
paying reprint money, and providing insurance are exactly t~e
same as before.
Please feel free to consult a lawyer, and/or call ne to

discuss this.
Sincerely,
-
Jim Shooter
ME00753
Marvel Comics Group
c,7o::; ~~•rii•rf' ,\,,,,.,,.,
CADENCE JA2035
Case 1:10-cv-00141-CM-KNF 79, 01/26/2012,
Filed 03/25/11 of 20523 of 23
AGREEMENT made this day of 1 19 1 by

and between
residing at
(herein "Supplier") and the Marvel Comics Group, a division of Cadence
Industries Corporation, 575 Madison Avenue, New York, New York 10022
(herein "Marvel'')
HARVEL is in the business of publishing comic and other

magazines ~nown as the Marvel Comics Group, and SUPPLIER wishes Lo
have MARVEL order or conunission either written material or art work
as a contribution to the collective work known as the Marvel Comics
G..:o•Jp. ~~~.RVEL has informed SUPPLIE!( that WIPVEL only orders or
commissions such written material or art •.-;ork on an employee-for-hire
basis.
THEREFORE, the parties agree as follows:
In consideration of Ml\P.VEL's commissioning and ordering

from SUPPLIER written material or art work and paying therefor,
SUPPLIER acknowledges, agrees and confirms that any and all work,
writing, art work material or services (the "Work'') which have been
or are in the future created, prepared or performed by SUPPLIER
for the Marvel Comics Group have been and will be specially ordered
or commissioned for usc as a contribution to a collective work ancl
that as such Work was and is expressly agreed to be considered a
work made for hire.
SUPPLIER expressly grants to MARVEL forever all rights

of any kind and nature in and to the Work, the right to use SUP-
PLIER's name in connection thereHith and agrees that MARVEL is
the sole and exclusive copyright proprietor thereof having all rights
of ownership therein. SUPPLIER agrees not to contest t1ARVEL's ex-
clusive, complete and unrestricted ownership in and to the Work.
lfhis Agreement shall be binding upon and inure to the ben-

fit of the parties hereto and their respective heirs, successors,
administrators and assigns.
IN IH'l'NESS W!IEREOf, the parties hereto hilVe executed

this Agreement as of the date first above written.
SUPPLI Ef( HARVEL CO~liCE; GHOUP, a division

of Cildence Industries Corporation
by __________________________ by _____________________________
•
ME00754
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EXHIBIT JJJ
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NIMMER
ON
COPYRIGHT
"A Treatise on the Law of Literary, Musical and Artistic
Property, and the Protection of Ideas."
by
MELVILLE B. NIMMER
Professor of Law
University of California, Los Angeles
,- I
*
1963
:1-!ATTHEW BENDER & Co., INc.
255 ORANGE ST. l60So. VANC'IESsAvE. 205 EAST 42ND ST.

ALBANY 1, N.Y. SAN FRANCISCO 3, CALIF. NEW YORK 17, N.Y.
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..
§ 62 THE LAW OP OOPYRIGll'l' 238
compilation of licensed material then the compiler for pur-

poses of the Copyright Act is an "author" and therefore
need not claim either as a proprietor or as an assignee. It
might also be urged that one who claims copyright as an
employer for hire is a copyright proprietor although he is not
an assignee in the sense that no assignment was ever executed.
The answer to this proposition lies in Sec. 26 of the Copyright
Act which defines "author" to "include an employer in the
case of works made for hire." Thus here too the copyright
claimant as an author need not fall under either the proprietor
or assignee designations. It may, then be concluded that pro-
prietor and assignee are interchangeable terms for the pur-
poses of obtaining statutory copyright under Sec. 9. 40
§ 62. Works Made for Hire

[62.11--:-A Presumptil!n of Copyright in the Employer
Section 26 of the Copyright Act provides that "the word
'author' shall include an employer in the case of works made
for hire.'' The constitutional status of this clause is discussed
in another section. 43 The reasons there set forth, as well as
the requirements of a reasonable construction militate against
a completely literal interpretation of this provision. The
clause if accepted literally would mean that in an employment
for hire relationship the parties would be precluded as a mat-
ter of law from agreeing that the copyright in the resulting
work shall vest in the employee. Yet in practice there is no
question but that an employer and employee may and often
do agree that the copyright shall remain in the employee
(without any requirement of an assignment by employer to
employee) subject to a right of the employer to be exclusively
licensed to use the work in particular media. ••• The fore-
going provision of Sec. 26 must be read as creating a presump-
tion of copyright in the employer which may be rebutted only
by a preponderance of evidence of a contrary agreement as
between the parties. 44
•• But see § 114 infra with refer- 43 See § 6.3 supra.
ence to the meaning of 11proprietor''
43• See Welles v. Columbia Broad-
for purpotres of obtaining renewal
copyright, and § 65.4 i"fra with ref-
casting System Ino. 308 F 2d 810
(lltb Cir. 1962).
erence to foreign proprietors of post..
humous works. 44 As to the efteet for purposee of
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239 PERSONS ENTITLED TO COPYRIGHT § 62.31

[62.2}-What Constitutes a.n Employment for Hire
Subject to the qualification set forth in § 62.1 supra, it is an
accepted principle of both statutory •• and common law ••
copyright that the employer is deemed to be the author of
works made for hire. 47 The question then arises as to what
constitutes an employment for hire. The nature of the com-
pensation paid to the alleged employee is not necessarily de-
terminative. Thus one may be an employee regardless of
whether he is paid on the basis of a conventional periodic
salary,• 8 on a piece work basis,•aa on a fee or royalty basis,••
or even if the writing is done as an accommodation with no
compensation at •.11.' 0 The crucial question in determining
an employment relationship is whether the alleged employer
has the right to direct and supervise the manner in which the
writer performs his work. 11 This is, of course, merely a par-
ticular application of the general agency doctrine relating to
master and servant.
[62.3}-Which Works Belong to a.n Employer for Hire
[62.31}-In the absence of agreement. The following dis-
cussion assumes the absence of an express agreement between
renewal copyright of an agreement Co. v. Nof'ri8, 211 Fed. 951(4th Cir.
b-een employer and employee tbat 1921).
copyright .hall be reserved to tbe 48 Tobani v. Carl Fi.s(JMr Inc., 98
employee, see § 114.4 infra. F2d 57(2d Cir. 1938).
4tl Da,. Kasol Inc. v. Palmer 48a Tobat» v. Oarl FisMe,. I no., 36
Jewelry Mfg. Oo. 171 F.Supp 603, USPQ 91(8DNY 1937) modified on
(SDNY 1969); In re Journal-NOW!! other gronnda 98 F2d 57 (2d Cir.
Corp.104 F.Supp. 843(8DNY 1951); 1938).
See King Feature~ Syndioot~ v.
48 Br01.0n v. S~le,r Theatres Corp.,
FINcher 299 Fed. 533(2d Cir 1924).
56 F.Supp. 438(D.C. Maas. 1944);
44J Zahler v. Columbia Pictures Fr8d Fisher Music Co. v. Leo F~t
Corp., 160 CaL App. 2d 582, 4 Cal. Inc. 55 F.Supp. 359(S.D.N.Y. 1944)
Rptr. 612 (1960). (advanee p&yment against royalties).
ISO l...a-wrence v. Dana, 15 Fed. Cas.
47However, even if an employer is
deemed to be an uanthor'' by reason 26, No. 8136 (C.C. M .... 1369).
of See. 26, it is not improper in a IS I French v. Glander~ 146 Ohio
eopyright registration eertifiea.te to 225, 65 N.E. 2d 61 ( 1946) ; Sea
designate the employee as the author Toban6 v. Cad Fisclt~r lone., 36
and the employer as the copyright U.S.P.Q, 97(8DNY 1937) modified
claimant. See No·Leak·O Piston Ring 98 F2d 57 (2d Cir 1938).
Colnri&hl 196~. Cl..t.Jtx BoABD:WAN COW:PANY, LTD., Nimme2:
MATTHBW BBND!m & COMPANY, INC.
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§ 62.31 THE LAW OP OOPYBIGR'l' 240
an employer and employee as to which of the works produced

by the employee shall be deemed to belong to the employer
as the "author" thereof. As indicated in § 62.1 supra,
the parties may expressly 11.gree that the employee shall be
deemed to own the copyright in all works produced in the
employment rel11.tionship.••• Likewise, the parties may ex-
pressly agree that !1.11 works produced by the employee during
the period of the employment relationship shall belong en-
tirely to the employer. •~ Ordinarily, however, the parties to
11.n employment relationship assume ownership in the em-
ployer, but do not attempt to define with exact precision the
nature of the works which shall be reg11.rded as em!l.nating
from the employment relationship. '
As one conrl h!I.S s!l.id: "no one sells or mortgages all the
products of his br!l.in to his employer by the mere fact of
employment.'' •• Therefore the literary efforts of 11.n employee
if not rendered !1.8 a part of his duties to his employer remain
the property of the employee. 84 This is trne even if the sub-
ject ID!I.tter of the work thus cre11.ted by the employee bears
upon or 11.rises out of the employee's activities for his em-
ployer, as long !I.S the work W!I.S not produced pursuant to his
duties !1.8 11.n employee. •• Thus if 11. teacher elects to reduce
his lectures to writing, the teacher and not the institution
employing him owns the copyright in such lectures. •• More-
over, if 11. work would not otherwise be reg~~.rded as falling
within the employment relationship, the fact th!l.t a portion
of the work W!I.S done during working hours, and that the
Msistance of the employer's facilities and personnel was
s 111 See Welles v. Columbia Broad- 54 See United States v. First Trust
casting System Ine., 308 F"...d 810 Oo. of 8ai1lt Paul, 251 F2d 686 (8th
(!llh Cir 1962). Cir. 1958).
sa Public Af/ain Associate" Ino. v.
sa But ne to the enforeement of
sueh a sweeping oontra.etual clause Rickov•r, 284 F2d 262 (D.C.Cir.
1960) vaooted for insufficient record
see § 62.32 mfra.
369 U.S. ll1 (1962); See O'N8ill v.
O:enMal Film Co., 171 App.Div.854
83 Publlc A!latrs A~sociaies Inc. v.
(1916); Cf. Brown v. JfoU. Oo, 20
Rie!wv~r, 177 F. Supp. 601, 604
F. Supp. 135(SDNY 1937).
(D.D.C. 1959) refr'd on other grounds
284 F2d 262 (D.C.Cir. 1960) vacated so 0. 0. 8h8rrill v. L. 0. Gri..u
for insufficient retard 369 U.S. 111 57 W ash.L.Rep. 286, 20 C.O.Bull rr75
(1962). (1929).
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241 PEII.SONB ENTITLED '1'0 OOPYRIGR'l' § 62.32
obtained in some degree in preparing the work will not neces-
sarily render the work the property of the employer. 87
[62.32}-The l!::ffect of Agreement; as to Scope of Works.
The courts will generally recognize and enforce express con-
tractual provisions whereby the employer is said to be the
owner of all of the results and proceeds of an employee's
work. Thus in one decision •• it was held that the employer
was owner of a play written by the employee pursuant to a
contract whereby the employer was designated the owner
of "the entire product and income of his [employee's) intel-
lectual and physical labor and skill." 08 However, notwith-
standing broad contract language the courts will often .strive,
if the language at all permite, to limit its effect so as to pre-
clude an employer claiming ownership in works which would
be considered outside the scope of the employment agree-
ment. 80 Thns a contractual provision which required the
employee to ''devote his entire time to the services of his
employer" was construed not to permit an employer to claim
rights in work created by the employee during leisure hours.••
Similarly, in a noncopyright case an employee's undertaking
to devote all of his time to the services of the employer bank
was construed as follows: "We do not think ... it was under-
stood that if the defendant in spare momenta wrote a book
or taught a night school or sang in a church choir the fruits
of his extra toil on his own behalf should be swept into the
tills of the bank. " ••
Does a contractual provision which purports to make the
employer the owner of all material created by the employee
include material admittedly written pursuant to the em-
ployee's duties, but never used by the employer (and possibly
S7 Public AJ!aWs Associates In.c. v. Kaye 86 Fed. 122(S.D.N.Y. 1898'"
Ric/cover 284 F2d 262 (D.C.Cir. oo See § 62.31 supra.
1960) vacated for insufficient record
369 u.s. 111 (1962). 81 Sheppard P1~blishing Oo. v.
Harlci,.. 9 Ontario L.R. 504 (1905).
na MacKay~ v. MaUory 12 Fed
82 Hillsboro 'S ational Bank: v.
328(S.D.N.Y. 188'J).
Hyde 7 N.D. 400, 403, 75 N.W. 781
so The wording of the contract i? (1898); See also Herman v. Litt!.-
issue is set forth in .MaU&ry v. Jfi'J" fi<ld 109 Cal. 430 42 Pae. 443 (1895).
Nimm.u
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§ 62.4 THE LAW OF OOI'Yl!.IGHT 242
· never even submitted by the employee) because the work as

finally created took on an entirely different form f This situa-
tion may arise where the employer finds the employee's work
unsuitable or where the employee works on several "false
starts" before finally striking upon the form and substance
which is ultimately accepted by the employer. It seems proba-
ble that such unused material belongs to the employer, at
least if the contract of employment contains language pur-
portedly covering "all" material. n
Although there is an agreement between employer and em-
ployee that the employer shall own certain material to be
created by the employee, if in the creation of such material
the employee is to work as an independent contractor (even
if for other duties he is an employee)," then the employer
must claim such ownership by virtue of an assignment and
not merely by virtue of his status as an employer. •• More-
over, as an assignee rather than an employer for hire his
rights for purposes of renewal copyright will be substantially
different.••
[62.4}-0n whether the Employer Acquires Rights
In All Media
An express contractual provision reserving to the employee
rights in certain media, while conveying to the employer
righte in other media is not uncommon, 87 and is, of course,
enforcible. In the absence of such an express reservation, the
employer as "author" 88 acquires exclusive rights in all
•• Thompson v. Clark 109 N.Y. of Ameriea; Arl. 35, Produeer-
Supp. 700(Sup.Ct. 1004) but cf. Write.s Guild Theatrieal Basio Agree-
Ipswich Mills v. Dillon 260 M .... ment of 1960.
453, 157 N.E. 604 (1927) (dealing
with independent oontra.ctors). ••11 U.B.C.Sec. 26.
04 See § 62.2 supra.
eo But if the employer regarded
sa 81tapiro7 Bet"n8t~in and Oo. v. the product of the employees Mr'Vieea
,Jerry Vog~l Mtt.tic Co. 221 F2d 569 as o:geful only in a given medium or
(2d Cit. 1955); See Root v. Borst for a singl~ purpose-, the oont:ract of
H2 N.Y. 62, 36 N.E. 814 (1894); employment may be construed aa re-
See § 63 infra. serving to the employee rights in
0ther media or for other uoncompeti-
ee See § 114.4 infra.
tive purposes. See Uproar Co. v.
87 E.g., Art. XX, 1960 Television NationaL Broadcasting Co., 81 F.2d
Film Basic Agreement, Writers Guild 373 (1st Cir. 1936).
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243 PE:&SONS ENTITLED TO OOPYRIGRT § 62.5

medi&.88 ThUB, the "shop rights" doctrine of patent law is
not applicable to copyright."""
(62.11}-The E1fect of a Ma.teri&l Breach by the Employer
Who may claim copyright in & work clearly written in and
pursuant to an employment for hire where the employer
wrongfully refuses to pay the employee for his services or
otherwise materially breaches the contract of employment 7
It may be argued that the employee's only remedy is a
. contractual right to wages or other compensation payable
nuder the contract, and that the copyright nevertheless re-
mains in the employer since such copyright was vested in
him not by the contractual agreement of the employee but
rather by reason of the employer's "status" as an author
nuder Sec. 26 of the Copyright Act. He is nonetheless an
employer and hence nonetheless an "author" by reason of
the fact that he has failed in honoring certain contractual
obligations arising out of the employment relationship.
However, if the observations made in §§ 6.3 and 62.1
supra are correct, then the above argument mUBt be regarded
as fallacious. Such prior sections suggest that an employer
may claim to be the author and hence the copyright proprietor
not simply by reason of his statUB as an employer, but rather
by reason of a presumed agreement (in the absence of a
contrary expression of the parties) that the employer shall
acquire the rights of the author. If, then, the employer's
claim of copyright is based upon the agreement (albeit im-
plied) of the employee, then surely a material breach by the
employer mUBt nuder traditional principles of contract law 70
entitle the employee to rescind the employment agreement
and hence claim back the copyright which he had agreed to
convey!' .Although no modern cases appear to have ruled
upon this precise issue,' 2 the result here suggested is sup-
dhBut see Boucicatdt v. Fox, 3 7 I As to ench right of rescission in
~'ed.
Cas. 977, No. 1691 (SDNY a.n expre& a&'iignment ratller than an
1362); De Witt v. Brooks, 7 Fed. Cas. employment relationship, see § 130
575 No, 385L in{f"a.
70 Restatement of Contrn.cte, See. 72 The dearth of cases raising this

397; See Unifonn Sal"" Act Seo. 61. issue suggests a. general assumption
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§63 THE LAW OF OOPYRIGK'l 244
ported by several early English decisions.'' Of course, even

if such a rescission may be affected, this in no case would
entitle the employee to claim ownership of the tangible copies
which embody the copyrighted work. Such tangible copies
would in any event remain the property of the employer since
the ownership in them was never in any sense conveyed by
the employee. They were from the first instance the property
of the employer.' 4 However, the right to make additional
copies of the work or to exercise any of the other rights
granted exclusively to the copyright owner 78 may no longer
be claimed by the employer following such a rescission.
§ 63. Commissioned Works

This section deals with the copyright ownership of works
which are specially created upon the order or request of a
person other than the creator, but where the creator is an
independent contractor rather than an employee of such other
person. 78 Whether copyright resides in the person thus
commissioning the work or in the independent contractor
creating the work will always turn on the intention of the
parties where that intention can be ascertained. 77 A problem
arises where, as is often the case, the parties do not expressly
agree as to such an intention. Under such circumstances
should it be presumed. as in the case of an employment for
hire,' 8 that copyright resides in the person commissioning
the work, or should the contrary presumption of copyright in
the independent contractor-creator prevail T Some decisions
among both employees and employers stroyed nnder the provisions of 17
that a rescission whereby the copy- U.S.C. 101(d). It might well be held
right is reclaimed by the employee is that such copies were not liable for
not p<)SSible. Such a long standing sneh destruction since at the time they
assumption might in ibself prove in- were cl"ellted no rescission had as yet
fluential with courts in any future been a.ffected and henee tM copies
detennination of this issue. were not ainf'ringing copies" within
the meaning of Seo. lOl(d).
73 Brown v. CookaJ 16 L.J.Rep.N,S.
Ca 140 (lll46); See RichMdao" v. 75 See Chapter 8 infra.
Gilbert, 1 Sim (N.S.) 336, 61 Eng. 75
Rep. 130 (1851). See § 62.2 tupm.
7 7 HartfUld v, H~Jr!1feld, 60 F .2d
74 Query, however, whether fol-
599 (SDNY 1932).
lowing rescission the employee could
claim that the {!Opies must be de- 78 See § 62.1 sup-ra.
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PERSONS llNTITLED TO COPYRIGHT § 63
have suggested a presumption in favor of the independent
contractor,'" but most decisions indicate a contrary presump-
tion. 80 Thus in the absence of persuasive evidence of an
agreement to the contrary it is generally held that if an
artist, writer, photographer, architect or other "author" is
commissioned to create a work, the copyright in such work
will vest in the person commissioning the work. ••
However, the foregoing generally prevailing rule is subject
to certain qualiiications. In the first place the presumption
) of copyright in the person commissioning the work is valid
only with respect to the initial term of copyright, not as to
the renewal term. 81 This is to be contrasted with an employ-
ment for hire •• which not only divests the employee of the
original term of copyright but also divests him and his
successors of the renewal term.,.
The issue may be raised as to whether in fact the work was
created pursuant to a commission. This is determined by an
evaluation of the surrounding circumstances. In the ordinary
case where a photographer is retained by a client to take a
photograph, copyright will vest in such client. •• The subject
of a personal portrait taken by a commercial photographer
70 W. H. Anderson- Co. v. Baldtoitt 186 NYS 2d 94(Sup.Ct.1959); See
Law Pub. Co., 27 F.2d 82 (6th Cir. DougU.. v. Stoke• 149 Ky. 506, 149
1928); See Uprocw Co. v. National 8.W. 849(1912); Holmes v. Umkr-
Broadoasting Co., 81 F.2d 373 (1st wood tl Undef'Wood Ino. 225 App.
Cir. 1936); HMifteld v. Her.fe!d, 80 Div. 360{1929); ~lman v. White,
F.2d 599 (SDNY 1932). 102 Fed. 892 (CCD MallS. 1900).
80 This notwithstanding the faet 82 Shapiro1 BernstMtl aM Co. v.
that 17 U.S.C. Soo. 26 expressly JeNy Vogel Mu.io Co. 221 F2d 569
renders an employer for hire an uau- (2d Cir.1955); See Yardley v. Houglo-
thor'' but makes no comparable pro- ton Mifflin Co. 108 F2d 28(2d Cir.
vision with respect to commissioned 1939).
works.
91 Yardley v. Houghton Mifflin Co. 83 See § 62.1 supra.
108 F2d 28(2d Cir. 1939); Otten v.
84 See§ 114.4 infra.
Curtis Pub. Co. 91 U.S.P.Q. 222
(N.Y.Snp.Ct. 1951); Grim+ v. Rut- a!l Lumier~ v. Roberls01t-Colt~ Di~tr.
,qe'r$ Presbyteriafl Church 194 Mise. Corp. 280 Fed ..550(2d Cir.l922);
570, 89 NYS2d 813(Sup.Ct. 1949); ,ivedon v. Exstem 141 F.Supp.278
Morton v, Raphael 334 Ill.App.399, (SDNY 1956); LawrenC8 v. Y!la 184
79 NE2d 522(1948); Tu""'y v. LittZ. Mise. 807, 55 NYS2d 343(1945).
NilllmU
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§63 TRE LAW OF COPYRIGR'l' 246
is generally a commissioning client, and therefore entitled

to claim copyright in the resulting photograph. 88 The sur-
rounding circumstances, however, may indicate that this is
not the case. Thus copyright in a photograph will belong to
the photographer and not the subject and the work will not
be regarded as commissioned if the photograph was taken at
the request of and for the benefit of the photographer 87 or
where the photographer took the picture on his own initiative
and at his own expense. 88 (However, indiscriminate use by
the photographer of a photograph in which he has the copy-
right, but which is distinctively identified with the subject
of the photograph may give rise to an action for unfair
competition, 80 invasion of privacy,"" or infringement of the
right of publicity.) 01
Finally it should be noted that even where the relationship
is truly one of a commissioning client retaining an indepen-
dent contractor, the parties may agree to vary the general
rule of law, so that the copyright will vest in the independent
contractor. It has been held that mere evidence of a custom
and usage in a given industry will not be admissible to estab-
lish such anagreement. 02 However, evidence of such an agree-
ment between the parties is admissible, •• and the evidence
ae A commissioning client will be ao See Hoagm-Spragut~ Corp. v.
entitled to copyright in tho resulting Frank C. Meyer Oo. In<!. 31 F2d 583
photograph regardl- of whether it (EDNY 1929).
is a. personal portrait or impersonal
commfrrcial work. Avedon v. Exstein oo See Gill v. Hervrst Pub. Co. 40
141 F.Supp.278(SDNY 1956); soo Cal.2d 224, 258 P2d 441(1953); Gill
Cory v. Physical OuZtu.rt1 Hotel Inc. v. Curtis Pub. Co. 38 Cal.2d 273, 239
14 F.Supp. 977 (WDNY 1936). P2d 630(1952).
87 Press Pub. Co. v. Falk 59 Fed.
91 See Nimmer, The Right of Pub-
324(CCSNY 1894); Young v. J. M. licity, 19 Law & Contempora.ry Prob-
Hick~f'son Inc. 5 Mise.2d 140, 159
lems 203 (1954).
NYS2d 612(1957, reo'd on other
grou.W. 9 Miso.2d 932, 170 NYS2d 92 Atredtm v. Eutein 141 F.Supp.
168 (1957); See Yardley v. Hough- 278(SDNY 1956); of. Otten v. Curtis
ton Mifflin Co. Ine. 108 F2d 28(2d Pub. Co. 91 U.S.P.Q. 222(N.Y.Snp.
Cir. 1939). Ct. 1951).
sa Cory v. Physical Cultur~ Hotel
Inc. 14 F. Supp.977(WDNY 1936), g3 Lumier~ v. Pathe Ex.change I'M.
aff'd 88 F2d 411 (2d Cir.1937) ; 275 Fed.428 (2d Cir.l921) ; Dielman
AU-man v. New Hat1en Union Co. 254 v. Whit• 192 Fed. 892 (D Mass.
Fed. 113(D.C.Coun.1918). 1900).
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may establish such an implied agreement even though the
express agreement between the parties does not so provide.•• i
Still, the mere act by the commissioned creator of placing a I
copyright notice on the work in his own name has been held !I
insufficient to establish an implied agreement to vary the
presumption of copyright in the person commissioning the I
work unless it is further shown that the latter in accepting
the work was aware of such notice and had authority to vary ~
i
the usual presumption as to ownership. •• l
l
§ 64. Letters
Letters are no less a form of literary property than any
!
other writings. They raise certain peculiar problems, how-
ever, in that (1) like commissioned works,90 they are usually
created for some specified recipient (2) the function for
which they are intended necessarily requires a transfer of
possession of the tangible expression of the work, and (3)
'
their content is often regarded as confidential by either the
sender or the recipient. In view of these considerations some-
what specialized rules have evolved in determining copyright
ownership of letters as between the sender and the recipient.
It is clear that letters are regarded as a form of literary
property regardless of their intrinsic merit, and regardless
of whether they are intended for publication.•• Subject to
the recognized exceptions enumerated below, and to any con-
trary agreement of the parties, the general rule is that the
author of a letter retains the ownership of the copyright or
literary property contained therein while the recipient of the
letter acquires ownership of the tangible physical property
of the letter itself. •• This creates a somewhat strange
94 R. R. Donnt~lly £t Sons Co. v. 97 Bake,. v. lAbbM 210 M!188. 599,
Haber 4.3 F.Supp. 466(EDNY 1942). 97 N.E. 109(1912); Woolsey v .•Judd
4 Dner 379(N.Y. 1855); F'oZ.om v.
95 YarriUJy v. Houghtott J.lif!Un Marsh 9 Fed.Cas.342, No. 4901(C.C.
Oo. 108 F2d 28(2d Cir.l939); See Mass. 1841).
Lumior8 v. Pathe Exehang~ 275 Fed.
428 ( 2d Cir.l921). gal?olsom v. Jfar~rh 9 .:F'ed.CM. 342,
No. ·!901 ( C.C_'dass.1841); Baker v.
98 See § 63 supra. Libbie 210 Mass.5W, 97 N.E. 109
' .
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EXHIBIT KKK
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CO•••ie~
••
Journal
4359 Cornell Road, Agoura, CA 91301
(818) 706-7606 !;
Aug. 5, 1986
Paul Levine
1880 Century Park East, Suite 411
Los Angeles, CA 90067
Dear Mr. Levine:
Pursuant to our conversation today, I'm sending
you a copy of the transcript of my conversation with Arthur
Proper, tax technician at the Instructions and Interpretations
Bureau of the Sales Tax Department, New York State.
I hope the information can be useful to you.
Sincerely yours,
crc~:s~
Joe J. Sacco
News writer
K 01572
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f,rthur Proper, tax r-chnician of Sales Tax Depy-y New York State.
( 518) 457-6949
SaccoP The question here involves Marvel Comics and some artwork
being withheld from an artist. He won't sign an agreement to get
back his artwork over a creatorship dispute. He acknowledges that
Marvel owns the copyright to the work but he wants the physical
work itself -- the physical artwork. Marvel is on record as saying
they own the physical artwork itself. And a couple of years ago
someone at the Comics Journal called up a Howard Glaser, he was
assistant director of public relations for the New York State
Tax Department, are you familiar with him?
Proper: No, not really.
s: He said, this is a quote, "If it's clear they own the art, they
owe sales tax." Now, if they're claiming ownership of the art, what
I'm wondering is, wouldn't they had to have paid sales tax on it
when they bought it?
P: First of all, what are they doing with the artwork, and whereabouts
is the artwork being delivered?
S: What are they doing with the artwork? They're just holding it.
They had been returning the artwork to artists after the artists
had signed a retroactive work for hire agreement. But for this
specific individual, they're withholding the artwork.
r
P: Well, I don't know what kind of agreement they entered into, but
let's give you background about artwork itself. Artwork that's being
usedto produce a publication that is for sale has been identified by
the Taxing Authority as production equipment. What this means, let's
say we're going to u'se the artwork to produce the comic magazine
which was going to be sold. Under New York State statutes that
provide for 1115 a 12 (?), they provide exemption for machinery and
equipment used directly and predominantly in the production of tangible
personal property for a sale by manufacturing processing, etc., etc.
If the agreement is such that the person is buying artwork for use
to produce a publication that is for sale, he may buy that as production
equipment by furnishing his supplyer with a properly completed
Exempt Use Certificate, of form ST 121. Once the supplier has received
that Exempt Use Certificate, if he's in New York City the artwork would
be subjectfia to the 4 percent tax. Outside New York City it would
be zero percent tax. It all depends on what type of agreement they have,
you know, is the person buying artwork or is he buying reproduction
rights ....
S: As far as I know --
P: Assuming the normal train of events, the normal activities that

the publisher is buying artwork which he is going to produce something
for sale. In that case, it's probably going to be identified as
production equipment. Go one step further, the vendor of the
artwork, or the person who has the artwork, if the vendor doesn't
receive a properly completed Exempt Use Certificate he has no alternativ<
but to collect the sales tax on the full rate tax and effect where the
artwork is being delivered. For instance, if I as a publisher didn't
provide you as a vendor of the artwork with a Exempt Use Certificate
and you were delivering it to me in Albany New York, it would be 7
percent. If you delivered it in New York City it would be Band quarter
percent. Likewise, if I provided you with the Exempt Use Certificate
K 01573
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("-' 79, 01/26/2012,
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then you wouldn't havi :o collect any sales tax f-"Jn me here in
New York-- in Albany, New York, because its exempc from the statewide
tax, the upstate tax, but if ! ... took possession of it in New York
City you'd have to charge me a sales tax of 4 percent.
S; I see, but in either case there would be a sales tax?
P: No. Not if you deliver it outside of New York City and I give
you the proper Exempt Use Certificate. Then it would be zero percent.
If I don't give you anything, then you have to assume that it's not
being purchased for production purposes and that it's subject to a
tax, and you collect the tax based on the point of delivery.
S: You have to understand that I'm a lay person, so it's hard for
me to follow some of the things you're saying.
P: We could do it again if you want.

S: Let me set up the scenario. A fellow sent in his artwork to
Marvel Comics. Apparantly there was no real contracts involved ...
he did sign copyright releases, in other words, Marvel owns the
copyright to the work he did. However, he never signed anything
that said that Marvel actually owned the artwork itself.
P: Let's go back to the definition of a sale. A sale is considered

--one sale, tangible part of the sale, property (?)--like if I
give something to you, you give me the money. That's a sale. The
license to use is a sale. In other words, I have something that I
own and I allow you to use it. That's a sale. Or barter, exchange,
etc., etc., they're all sales. So like i said before not having
the agreement, not knowing the ticklers of the agreement, I couldn't
make any decision on the agreement. I can only tell you the state's
position with relation to the artwork itself, under a certain
assumption. Assuming that there was some kind of agreement that
created a sale, under a definition of a sale. Which means license
to use, barter exchange, and so forth and so on, for compensation.
Once I give it to you and give you the license to use it for a
period of time or copyright or whatever it is depending on that
type of agreement, then we still have a sale type thing.
S: In which case, Marvel would had to have paid sales tax
P: Let's say you did the artwork, and I'm Marvel. Let's say that
the transaction we entered into constituted a sale. Now you send
me over the artwork. I have this artwork in my possession. You
charge me X amount of dollars for the use of that artwork. And I
say to you, okay, here's money, but i didn't pay you the sales tax.
And I didn't give you any Exemption Certificate. At this point there,
you would still have to come back to me to try to get the sales tax.
Because the sales tax is due because I didn't give you any Exemption
Certificate. A second scenario: You send over the artwork, I send
back the priceof the artwork plus I send you an Exempt Use Certificate.
Now if I'm outside of New York City there wouldn't be any sales tax
to do. You would keep the Exempt Use Certificate on file as a basis
for not collecting a tax. If I'm inside New York City, then you're
delivereing to me in New York City and then you'd have to collect the
sales tax of 4 percent.
S: Because it's New York City.
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.-~
)
P: Because it's New •Jrk City, right. Or, some~~mes some Publishers
have what they call Direct Pay Permits, then I could give you
a Direct Pay Permit, and not collect a tax, but in any event in both
cases I have to give you some kind of exemption certificate.
S: In order to not pay a certain amount.
P· But there again, this is under the assumption that the agreement
constituted a sale. And I don't know what kind of agreement they had.
S. It's sort of unclear. They do have copyright ownership, but as

far as owning the physical artwork itself -- actually owning the
cartoons he drew-- that's--
P: I can give you a license to use, and say you can use this to the
year 1999, but I want my original artwork back. So we have a license
to use. That's under the definition of a sale. It doesn't sound
like he's selling it outright, it sound like he's ... (?) ... the
license owner. But then again, I couldn't comment on that because
I don't know what the agreements say.
S. What Marvel's trying to do is argue that they bought time and

not artwork --
P: No. They bought artwork. If I sent something over there, that

pyhsically represented artwork, that's what we bought. It wouldn't
matter if for instance I came over to their place and they put a
blank piece of paper in front of me and I drew pictures on that paper,
and I'm charging for my labor. At this point here, what I've done
is serviced their tangible personal property. And it would be subject
to tax unless it meets the criteria that we talked about before.
S: That's what they're claiming. That they sent him the utensils,
they sent him paper --
P: It doesn't matter. Then I'm servicing their tangible personal

property.
S: So it still counts that they purchased artwork?
P; Right. If I sent you over a blank piece of paper and said, here's
my blank piece of paper, here's the pencils, here's some artists'
materials, whatever it is, you draw me a picture and send it back over
to me. You wouldn then tkake my blank piece of paper, and you
service that piece of paper. I may not have bought tangible personal
property, but I bought services that were subject to the tax. Unless
I could give you some kind of exemption certificate.
S: So what it comes down to is, if they bought artwork, and if they

didn't provide any exemption forms for it, they would have to pay a
tax.
P: They have a taxable situation, yes, sir.
S: And if they bought this art in 1966, for instance, or 1967, if

they bought it 30 yea~s ago
P: If they bought it 1965, before 1965, the sales tax did not
come into existance until Aug. 1, 1965, so prior to that wouldn't
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count.
S: I see, but anything after that would count.
P: It could have a sales tax liability. Again, I couldn't comment

on it because I don't know what the agreement reads and all the
other activities involved with it. I'm talking in generalities .
. .. (?)the sale of artwork, is the sale of tangible personal
property ... (?)properly completed exemption certificate.
S: So the certificates do come into it very importantly.
P: What the tax law tells us is that the vendor is required to

collect the tax unless he is provided with a properly completed
exemption certificate as described by the tax commission. And
that's found in Section 1133 under Article 28 in Sales Tax Law.
S: Can I get some of this information from you? Is it possible
to get some Xerxox's of some of these laws?
P. Well, that would take quite a while. (Laughter.)

S: Do you have an enforcement department. If it seems Marvel
didn't provide any exemption forms and didn't pay sales tax, and
now they claim ownership of the art, I'm wondering --
P: A lot of the circumstances depend. If it's prevelant, then

your time period is expired if Marvel, say, is a registered vendor
and has filed sales tas ... (?), unless there's something to do
with fraud or something like that. If we audited them, and they'd
never reported it, the time element may have expired for any type
of action the governemnt could do. Yes, we do have auditors that
go out and audit tax returns, but they don't study enforcemnt type
things; it's a normal, everyday activity.
S: Just in general terms, if a comic book publisher buys services

that rendered artwork, but gives back the artwork·, never claims to
own the artwork, in.New York City, would he still owe --
P: ... (?) license to use, rental, barter, exchange, would fall in
the ia definition of a sale. In other words, you rent something to
me to use that I can use for a period of time is tangible personal
personal property --we're going to give that back to you. That's
under the definition of sale. If I give you a license to use, and
I can use it for a certain number of times ... there again, that's
under the definition of a sale, even though I'm going to return it
to you .... (?) here's the licen~e to usethis for a year of publications
for the next five publications, and after that you have to return it
to me, you know, something like that.
S: So sale tax still applies.

P: That would apply. Like I said I can't comment on the specific
agreement, I can only tell you what the general position is. Not
on anything specific.
S: Right. So ownership of the physical artwork itself has nothing

to do withthe tax?
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P: You can own the artwork, say to me you can use it a number of
times, now you have a sale, something to tax unless I provide you
with some kind of exemption certificate.
S: Now who goes ahead, say between the individual and Marvel Comics,
who pays the sales tax. Who arranges all that?
P: The vendor is the person required to pay the tax.
S: And that would be the artist.
P: That would be the artist. He is required to collect the tax.

In the tax law, what they did, is creat a Catch 22 situation.
here again, that's Section 1132, 1133, ... what they said is that
the vendor, when he's collecting the price of the article, whatever
he's selling, also should collect the sales tax at that point there.
And be's liable for the tax. And even if he didn't collect the tax he
still would be liable for that tax. And he would take any action
for the collection of that tax just as if the person had paid
him for the article itself (?). This guy owes me $200 and he
didn't pay the tax, and (I say) I'm sorry that the guy didn't pay
the tax so I can't remit it, therefore that relieve's me of my
liability-- no, that's not true. That $14 that's due became
part of the $200, it's still $214, it's all intermingled, became
Part of the purchase price. Now he has to go back after the vendor
to take any action just as if the vendor hadn't paid him the $200.
That's from the vendor's liability. From the purchaser's liability,
what it says there, if the vendor fails to collect the tax it
doesn't relieve the purchaser of the responsibility for remitting the
tax. So what they have to do on their sales tax returen is remit
a use tax in that case, if it is a taxable situation. If you
look at it from both sides of the fence, what they did is say,
vendor, you're liable, we can go to you and H& get it. Purchaser,
you're liable we can go to you to get it. They don't k care
which one they get it 1axm from, as long as the tax has been paid.
So they'll go to both parties, they could very well assess both
parties for outstanding tax.
S: I ~ee. So ~x both parties could be liable for that tax that
wasn't paid.
P: ... (?) Like I said, it.' s a :txx Catch 22 situation. Whereas the
vendor cant say the purchaser never paid it, therefore I don't have
to remit it. And the purchase can't say, well the vendor never billed
us so I don't have to pay it.
S: Who would the Tax Dept. go after in those situations?
P: They'd go after both of them. Primarily, they catch them most

times on the vendor's audit, but if they're auditing the vendor they'll
assess the vendor for it, if they're auditing the purchaser they'll
assess the purchaser for it.
K 01577
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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
UNITED STATES DISTRICT COURT

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

MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC, DEEFENDANTS’ COUNTER-
STATEMENT OF MATERIAL
Plaintiffs, FACTS PURSUANT TO LOCAL
RULE 56.1 IN OPPOSITION TO
-against- PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT
LISA R. KIRBY, BARBARA J. KIRBY,
NEAL L. KIRBY and SUSAN M. KIRBY, [Hon. Colleen McMahon]
Defendants. [ECF Case]

NEAL L. KIRBY and SUSAN M. 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.
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Pursuant to Local Civil Rule 56.1(b) 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”) respond as follows to plaintiffs’
Local Rule 56.1 Statement of Material Facts as to Which There is No Genuine Issue to be
Tried in connection withplaintiffs’ motion for summary judgment:
1. Plaintiffs’ Statement: Since its inception in the 1930s as Timely Comics,
the companies now known as Marvel were preceded by numerous predecessors-in-
interest (collectively with MWI, MCI, MVL and Marvel Entertainment, “Marvel”),
including Amazing Detective Cases Corp., Americas Magman Sales Corp., Animated
Timely Features, Inc., Animirth Comics, Inc., Atlas Magazines, Inc., Atlas News Co.,
Inc., Bard Publishing Corp., Bilbara Publishing Co., Inc., Brief Digest Corp., Britan
Publishing Corp., Broadcast Features Publications, Inc., Canam Publishers Sales Corp.,
Chipiden Publishing Corp., Christiana Publishing Corp., Classic Detective Stories, Inc.,
Classic Syndicate, Inc., Comedy Publications, Inc., Comic Combine Corp.,
Commonwealth Publishing Corp., Complete Photo Story Corp., Cornell Publishing
Corp., Crime Bureau Stores, Inc., Crime Files, Inc., Current Detective Stories, Inc.,
Daring Comics Inc., Emgee Publications, Inc., Empire State Consolidated 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 Magazine Corp., Lion Books, Inc, Magazine Management Co., Inc.,
Magman Export Corp., Male Publishing Corp., Manvis Publications, Inc., Margood
1
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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 Bard dated February 18,
2011 (“Bard Decl.”) ¶ 2; Declaration of Randi W. Singer dated February 18, 2011
(“Singer Decl.”) Exhibit (“Ex.”) 12 at ¶ 14.
Response: Disputed to the extent that this paragraph does not list all of the
Marvel Predecessors; otherwise admitted.
2. Plaintiffs’ Statement: Jack Kirby (“Kirby”) was a comic book artist
whose drawings appeared in comic books published by Marvel during the period
September 1958 through September 1963, and at various times before and after that
period. Singer Decl. Ex. 13 at ¶ 8; id. Ex. 12 at ¶¶ 18-19.
2
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Response: Disputed to the extent that Jack Kirby also provided plotting,
dialogue, and scripting for comic books published by Marvel during the period
September 1958 through September 1963, and at various times before and after that
period; otherwise admitted. Declaration of Marc Toberoff (“Tob. Dec.”) Ex. MM at 151
(Stan Lee: “Certainly 90 percent of the ‘Tales of Asgard’ stories were Jack’s plots, and
they were great! He certainly knew more about Norse mythology that I ever did (or at
least he enjoyed making it up!)”), at 6 (Stan Lee:“Some artists, such as Jack Kirby, need
no plot at all. I mean I’ll just say to Jack, ‘Let’s let the next villain be Dr. Doom’ … or I
may not even say that. He may tell me. And then he goes home and does it. He’s so
good at plots, I’m sure he’s a thousand times better than I. He just about makes up the
plots for these stories.”); Singer Dec., Ex. 53 at 36-37 (Stan Lee: “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.”); Ex. NN (Stan
Lee: “[Jack Kirby] was a virtually inexhaustible wellspring of fantastic new ideas,
concepts and designs.”); Ex. I at 23:4-13; 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 (“Jack Kirby: According
to statistics, I’ve done one quarter of Marvel’s entire output. There’s a lot of hard work
behind it. It’s something that’s highly individual, highly creative and above all, it sold
very well.”); Ex. OO (“Q: A lot of people don’t know that you actually scripted a lot of
these stories-most of them. Even the Marvel stuff. Kirby: I did.”); Ex. JJ at 45, 49 (“And I
3
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did that with the Marvel books. I wrote the stories. I wrote the plots ,I did the drawings- I
did the entire thing…”); Ex. KK at 122 (“Q:You have written your own stories, text and
drawings? Kirby: Yes, that’s what I always did and that’s what I am doing now.”).
3. Plaintiffs’ Statement: Between 1958 and 1963, Kirby contributed to the
creation of many now iconic comic book stories and characters appearing in publications
of the Marvel Predecessors, including The Fantastic Four, The Incredible Hulk and The
X-Men. Id. Ex. 12 at ¶ 19.
Response: Disputed to the extent that between 1958-1963 Jack Kirby authored or
co-authored numerous original comic book stories featuring a variety of characters,
including “The Fantastic Four,” “X-Men,” “Iron Man,” “Spider-Man,” “The Incredible
Hulk,” “Thor,” “The Avengers,” “Nick Fury” and “Ant-Man,” which were purchased by
Marvel’s Predecessors and published in their following periodicals: 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 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. Plaintiffs’ Statement: Kirby died in 1994. Id. Ex. 12 at ¶ 18; 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.
Response: Admitted.
4
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5. Plaintiffs’ Statement: Kirby was married to Rosalind (“Roz”) 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.
Response: Admitted.
THE TERMINATION NOTICES AND CLAIMS OF COPYRIGHT OWNERSHIP
6. Plaintiffs’ Statement: On August 31, 2009, Disney announced publicly
that it had agreed to acquire Marvel Entertainment, Inc. See id. Ex. 15.
Response: Admitted.
7. Plaintiffs’ Statement: In approximately mid-September, 2009,
Defendants served forty-five (45) notices on Marvel, Disney and various other entities
purporting to terminate an alleged assignment of the copyrights in various works to
which Kirby had allegedly contributed (the “Termination Notices”). See id. Ex.16; id. Ex.
12 at ¶ 12.
Response: Disputed to the extent that Defendants’ forty-five notices of
termination (the “Termination Notices”) were served on September 16, 2009 pursuant to
17 U.S.C. § 304(c), and gave notice of the termination, on the respective effective dates
listed therein, of any and all pre-January 1, 1978 grants or express or implied licenses by
Jack Kirby and any other person defined in 17 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. Plaintiffs’ Statement: The Termination Notices identify the following
published works (including the story lines, characters and other copyrightable elements
5
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contained therein), each of which was published with a cover date ranging from 1958 to
1963, as purportedly being subject to termination: 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. 1-4; 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.
Response: Disputed to the extent that the Termination Notices also apply
to any works which includes or embodies any character, story element or indicia
reasonably associated with the listed works, even if such work were omitted. See
generally Singer Decl., Ex. 16 (Amazing Adventures Termination) at fn. 1.
9. Plaintiffs’ Statement: The alleged assignment to which the Termination
Notices relate, executed by Kirby on May 30, 1972 (the “1972 Agreement”), purports to
assign from Kirby to Magazine Management Co., Inc. “any and all right, title and interest
[Kirby] may have or control” in any work Kirby ever created for Marvel. Id. Ex. 17 at ¶
1.A.(1).
Response: Disputed to the extent that the terms of the 1972 Assignment
are as fully set forth therein, and the Termination Notices applied as well to any and all
pre-January 1, 1978 grants or express or implied licenses by Jack Kirby and any other
person defined in 17 U.S.C. § 304(c) of Kirby’s respective copyright interest to Marvel.
See generally Singer Decl. Ex. 16 (Amazing Adventures Termination) at ¶ 3; fn. 3.
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10. Plaintiffs’ Statement: The 1972 Agreement further provides that “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. Id. at ¶
5.
Response: Disputed to the extent that (i) the terms of the 1972
Assignment are as fully set forth therein, (ii) the vast majority of the 1972 Assignment is
devoted to a very detailed and explicit assignment by Kirby to a Marvel Predecessor of
specified rights in the works authored or co-authored by Kirby and published by Marvel,
which contradicts this language; and (ii) this retroactive language seeking to re-
characterize prior works as “made for hire” long after their creation was specifically held
to be invalid in Marvel Characters, Inc. v. Simon (“Marvel”), 310 F.3d 280 (2d Cir.
2002) (Marvel cannot bar termination rights under the Copyright Act by re-characterizing
works as “made for hire,” after the fact).
11. Plaintiffs’ Statement: According to the terms of the 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 172:12-17.
Response: Admitted.
12. Plaintiffs’ Statement: The initial copyright registration for each of the
Works was filed with the United States Copyright Office in the name of the relevant
Marvel Predecessor as author. Marvel also filed renewal copyright registrations for the
following works in the United States Copyright Office, each of which lists one of the
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Marvel Predecessors as the renewal claimant and 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 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. 17-26, 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.
Response: Disputed to the extent that it omits that the original copyright
registrations filed on or around the time the Works were actually created did not list the
Works as “made for hire,” and it was commonplace for authors to rely on publishers to
which they had sold their copyrights to register and renew such copyrights. See generally,
Tob. Dec., Ex. A.
13. Plaintiffs’ Statement: Copyright title passed from Martin and Jean
Goodman – the owners of various of the Marvel Predecessors – to MCI and MVL
through a series of copyright assignments. Specifically, on June 28, 1968, Martin and
Jean Goodman (and all of their various companies), executed a Copyright Assignment to
Cadence Industries Corporation (previously, before a change of name, known as Perfect
Film & Chemical Corporation) of all copyrights in the 6 publications listed on Schedule
B annexed to the assignment, which included, among other things, the Works. Id. Ex. 2.
On January 1, 1972, Magazine Management Co., Inc. executed a Copyright Assignment
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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.
Response: Disputed to the extent that this paragraph does not list all of the
Marvel Predecessors or assignments therefrom; otherwise admitted.
14. Plaintiffs’ Statement: During the years 1958 through 1963 (the “Time
Period”), Martin Goodman was Marvel’s publisher and Stan Lee was Marvel’s editor.
May 13, 2010 and December 8, 2010 Deposition of Stan Lee (“Lee Dep.”) annexed as
Ex. 1 to the Singer Decl. at 11:18-23, 14:2-17.
Response: Disputed to the extent that Stan Lee also submitted stories to
Marvel as a freelancer. Tob. Dec., Ex. J at 396:1-14.
15. Plaintiffs’ Statement: At all times during the Time Period, as publisher,
Goodman had the authority to supervise and direct the creation of all of Marvel comic
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books, including the creation of characters and storylines, and had the final say as to what
comic books Marvel would publish. Lee, as editor, at all times answered to Goodman,
who was the “ultimate boss” and who always “had to be happy with what [Lee] was
doing.” Lee Dep. at 16:14-19, 18:17-19:17, 19:24:-20:6, 25:22-26:21, 97:8-11; Singer
Decl. Ex. 18 at MARVEL0017522 (“I was just doing what my publisher asked me to
do.”); see also October 26 and 27, 2010 Deposition of Roy Thomas (“Thomas Dep.”)
annexed as Ex. 3 to the Singer Decl. at 59:6-21, 60:22-61:4; October 21, 2010 Deposition
of John V. Romita (“Romita Dep.”) annexed as Ex. 2 to the Singer Decl. at 242:21-
243:4; December 6, 2010 Deposition of Mark Evanier (“Evanier Dep. (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.
Response: Disputed to the extent that whether or not Goodman was the
“ultimate boss” directing what Marvel published is not relevant to determining whether
or not 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.
16. Plaintiffs’ Statement: No comic book was ever published by Marvel
unless Goodman approved of it. Lee Dep. at 97:8-11; see also Evanier Dep. (12/6/10) at
104:20-105:5.
Response: Disputed. The deposition testimony of Mark Evanier cited by
Marvel states only that the publisher or editor had final approval. However, this fact is
not relevant to determining whether or not the subject works by Jack Kirby were owned
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at inception by Marvel as “works made for hire” or purchased by Marvel upon
completion, if accepted by Marvel. See Opp. at 13-20.
17. Plaintiffs’ Statement: Martin Goodman first hired Stan Lee in
approximately 1939 or 1940. From the outset of his career and, except for a brief period
in the fall of 1998, Stan Lee has always been an employee of Marvel and all his work,
including the work he did as a freelance writer, was done as works made for hire. See
Singer Decl. Exs. 19-25.
Response: Disputed. Lee testified, consistent with other freelance artists,
that his freelance work was purchased by Marvel. Tob. Dec., Ex. J at 396:1 -14; Ex. E at
100:21-101:9; Ex. F at 65:17-66:4; Ex. K at 232:5-10. In Lee’s November 1, 1998
agreement with Marvel, Lee agreed to “assign, convey and grant … all right, title and
interest,” and “any copyrights” in all of his alleged material published by Marvel. Singer
Dec. Ex. 25 at ¶ 5(a). The agreement nowhere mentions “work for hire,” if Marvel fails
to pay the monies due in the agreement, Lee can revoke the assignment. Id. Ex. 25 at ¶
5(f), all of which is inconsistent with Marvel’s “work for hire” claim.
18. Plaintiffs’ Statement: From time to time, Lee also performed work for
Marvel as a freelance writer, for which he was separately compensated on a per-page
basis for scripts that he submitted, the same as every other freelance writer. Lee Dep. at
17:8-25.
Response: Disputed to the extent that the statement implies Lee was paid
as a purported “freelance writer” the same per page rate “as every other freelance writer.”
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19. Plaintiffs’ Statement: If a particular comic book did not sell well or lost
money, Martin Goodman, as publisher and owner of Marvel, would bear the loss. Lee
Dep. at 43:3-44:2; see also Evanier Dep. (12/6/10) at 40:7-41:3, 149:10-16.
Response: Disputed to the extent that this is not relevant to determining
the issue of whether or not 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.
20. Plaintiffs’ Statement: During the Time Period, Marvel artists and writers
were paid for work they submitted before the book to which they contributed went on
sale, and payment to artists and writers did not depend on whether or not the book was
successful. Lee Dep. at 42:21-43:2.
Response: Disputed. Like other freelancers who sold their work to
Marvel, Kirby was not paid a fixed salary or wage, and Marvel was not legally obligated
to purchase his artwork. Ev. Dec., Ex. A at 9, 11-12; Mor. Dec., Ex. A at 7-10; Tob.
Dec., Ex. C at 23:4-24:4; 105:15-17; Ex. E at 71:17-72:7; 72:22-73:8; 73:11-74:5;
76:25-79:4; Ex. F at 194:11-21; 200:4-201:13; 204:24-205:15; Ex. J at 256:25-257:25;
367:15-369:16; 371:3-18; 372:8-10; 396:1-14; Ex. L, ¶¶ 1, 3; Declaration of Gene Colan
(“Colan Dec.”) at ¶ 8, 9, 12, 14; Declaration of Neal Adams (“Adams Dec.”) at ¶¶ 6-14;
Declaration of James Steranko (“Ster. Dec.”) at ¶¶ 8-14; Declaration of Joe Sinnott
(“Sinn. Dec.”) at ¶¶ 9-15; Declaration of Richard Ayers (“Ayers Dec.”) at ¶¶ 8-14.
Marvel did not have any written agreement with Kirby during the 1958-1963 period.
Mor. Dec., Ex. A at 9, 11-12; Ev. 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 at 194:11-21; 200:4-201:13; 204:6-19;
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204:24-205:15; Ex. J at 256:25-257:25; Ex. L, ¶¶ 1, 3; 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. The first written agreement with Kirby produced by Marvel was executed on June 5,
1972. Tob. Dec., Ex. M. Kirby was paid on a per-page basis for those pages of artwork
ultimately accepted and purchased by Marvel. Ev. Dec., Ex. A at 12; Mor. Dec., Ex. A at
8-10; Tob. Dec., Ex. B at 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 at 103:7-105:17; Ex. F at 123:18-125:9; 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. If a page(s) or story was rejected by Marvel, Kirby was
not compensated, and personally took the financial loss. Id. Kirby was also not paid for
work Marvel asked him to redraw. 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 136:7-138:22; Ex. D at 89:13-92:5; Ex. E at 77:20-
79:4; Ex. G at 57:18-58:21, 234:12-236:1; Ex. H at 37:6-19. Colan Dec. at ¶ 9; Adams
Dec. at ¶ 10; Ster. Dec. at ¶ 13; Sinn. Dec. at ¶ 13; Ayers Dec. at ¶ 11.
21. Plaintiffs’ Statement: At times, Goodman decided to discontinue certain
comic book series if they were not selling well. Romita Dep. at 204:6-17; see also Lee
Dep. at 56:18-22; Evanier Dep. (12/6/10) at 41:6-42:13.
Response: Disputed to the extent Goodman would discontinue a comic
book for any number of reasons, as testified to by Mr. Evanier. Tob. Dec., Ex. C at 41:6-
11.
22. Plaintiffs’ Statement: One of Stan Lee’s main responsibilities in his role
as editor and creative director of Marvel during the 1950s and 1960s was to originate the
ideas for most of the stories that Marvel published during that timeframe. Lee Dep. at
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35:5-10, 35:23-36:6; Romita Dep. at 19:24-20:15; January 7, 2011 Deposition of
Lawrence Lieber (“Lieber Dep.”) annexed as Ex. 4 to the Singer Decl. at 12:19-13:5,
13:22-14:4. Lee provided the characters’ origin stories and personalities, and the role of
the artist was to create the characters’ look or costume. Romita Dep. at 85:10-86:6,
109:6-110:6.
Response: Disputed. Stan Lee did not provide the “origin stories and
personalities” for many of Marvel’s most famous characters. Instead Jack Kirby provided
these. Ev. Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 10-13. Tob. Dec., Ex. FF; Ex. GG at
193; Ex. H 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
(“According to statistics, I’ve done one quarter of Marvel’s entire output. There’s a lot of
hard work behind it. It’s something that’s highly individual, highly creative and above all,
it sold very well.”); Ex. OO (“Q: A lot of people don’t know that you actually scripted a
lot of these stories-most of them. Even the Marvel stuff. Kirby: I did.”); Ex. JJ at 45, 49
(Kirby: “And I did that with the Marvel books. I wrote the stories. I wrote the plots ,I did
the drawings- I did the entire thing…”); Ex. KK at 122 (“Q:You have written your own
stories, text and drawings? Kirby: Yes, that’s what I always did and that’s what I am
doing now.”); Ex. NN at K1759 (Lee: “[Jack Kirby] was a virtually inexhaustible
wellspring of fantastic new ideas, concepts and designs.”); Ex. I at 23:4-13 (Q:“Do you
recall creating any new characters for Marvel after 1970? Lee: There was a time in the –
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
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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. Plaintiffs’ Statement: As editor of Marvel, Lee oversaw all of the
creative and editorial aspects of every comic book that Marvel published during the Time
Period. Lee Dep. at 16:14-19. Marvel’s artists and writers were always required to report
to Lee and to abide by his “marching orders.” Thomas Dep. at 28:19-29:5. In all events,
Marvel’s contributors during the 1950s and 1960s were bound to perform their duties in
“the way Stan wanted the stuff done.” Romita Dep. At 39:7-13; Lieber Dep. at 15:5-15;
Singer Decl. Ex. 26 at MARVEL0017350 (“The only one I was concerned about was
Stan because I had to show it to him. I was only hoping Stan would like it .. . .”); id. Ex.
11, Track 3 (Kirby stating, “[w]ell, that’s Stan Lee’s department and he can answer that.
The editor always has the last word on that.”).
Response: Disputed. Kirby was not legally “required to report to Lee and
to abide by his ‘marching orders’” as he had no contract with Marvel. Mor. Dec., Ex. 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;
76:25-77:6; Ex. F at 194:11-21; 204:6-19; 204:24-205:15; Ex. J at 256:25-257:25; Ex. L
at ¶ 1, 3. Kirby had no legal obligation to provide work to Marvel, finish artwork he had
started with the intention to sell to Marvel, nor could Marvel demand unfinished artwork
from him. Kirby was free to reject any of Marvel’s requests or to submit material that
Marvel did not request. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain Glory); Ex. C
(Jack Kirby’s Gods portfolio), D (New Gods presentation pieces). Tob. Dec., Ex. MM at
6 (“Some artists, such as Jack Kirby, need no plot at all. I mean I’ll just say to Jack,
‘Let’s let the next villain be Dr. Doom’ … or I may not even say that. He may tell me.
And then he goes home and does it. He’s so good at plots, I’m sure he’s a thousand times
better than I. He just about makes up the plots for these stories.”),151; Ex. GG at 193;
¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. See Opp. at 13-20.
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24. Plaintiffs’ Statement: During the Time Period, Stan Lee was responsible
for assigning particular writers and artists to each comic book issue to be published by
Marvel. Lee Dep. at 15:14-20, 15:22-16:7; Lieber Dep. at 14:5-8, 23:18-21; see also
Thomas Dep. at 48:10-14, 48:17-49:8, 56:16-18, 59:6-21, 61:12-24 (Lee gave
assignments to artist and writers during the 1960s); Romita Dep. at 18:15-20, 61:4-6,
61:12-19 (same in 1950s and 1960s); Evanier Dep. (12/6/10) at 155:15-20. Artists did not
have the authority to assign themselves to work on any comic book they chose. Thomas
Dep. at 58:10-13.
Response: Disputed and not relevant to determining 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.
25. Plaintiffs’ Statement: Lee had the authority to reassign artists and writers
onto different projects when he deemed it necessary or appropriate to do so, and he
exercised that authority on numerous occasions during the Time Period. Singer Decl. Ex.
11, Track 5; Lee Dep. at 113:16-115:13; see also Thomas Dep. at 58:24-59:5 (Lee had
the authority to reassign artists and writers in the1960s); Romita Dep. at 44:22-46:12,
68:22-70:3 (same in 1950s and 1960s); Singer Decl. Ex. 27 at THOM0002629; Morrow
Dep. at 57:14-58:6. For example, if an artist was not able to do one book, Lee was in
charge of assigning another artist that book, and then the second artist had to be replaced
on his book by yet another artist, and so on; Lee has described this process as “falling
dominos.” Lee Dep. at 115:6 13.
purchased by Marvel upon completion, if accepted by Marvel. See Opp. at 13-20. Kirby
was not legally “required to report to Lee and to abide by his ‘marching orders’” as he
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had no contract with Marvel. Mor. Dec., Ex. 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; 76:25-77:6; Ex. F at 194:11-21;
204:6-19; 204:24-205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3. Kirby had no legal
obligation to provide work to Marvel, finish artwork he had started with the intention to
sell to Marvel, nor could Marvel demand unfinished artwork from him. Kirby was free to
reject any of Marvel’s requests or to submit material that Marvel did not request. Ev.
Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain Glory); Ex. C (Jack Kirby’s Gods portfolio),
D (New Gods presentation pieces). Tob. Dec., Ex. MM at 6 (“Some artists, such as Jack
Kirby, need no plot at all. I mean I’ll just say to Jack, ‘Let’s let the next villain be Dr.
Doom’ … or I may not even say that. He may tell me. And then he goes home and does
it. He’s so good at plots, I’m sure he’s a thousand times better than I. He just about
makes up the plots for these stories.”),151; Ex. GG at 193; Colan Dec. at ¶¶ 8, 9, 12, 14;
14.
26. Plaintiffs’ Statement: During the Time Period, Stan Lee set deadlines for
each person who contributed to a finished comic book to ensure that each book would be
published and distributed on schedule each month. The schedule was established by the
printer; if a comic book was not ready to be printed at the time designated in the printer’s
schedule, Marvel would be responsible for the substantial costs associated with the delay
because Marvel had already scheduled the press time. Deadlines were very important to
Marvel’s operation; artists always knew their work was required to be delivered by a
specified date. Lee Dep. at 42:10-20, 384:22-385:11; see also Thomas Dep. at 59:22-
60:21.
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Response: Disputed and not relevant to determining whether or not 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.
Kirby was not legally “required to report to Lee and to abide by his ‘marching orders’” as
he had no contract with Marvel. Mor. Dec., Ex. 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; 76:25-77:6; Ex. F at 194:11-21;
14.
27. Plaintiffs’ Statement: Marvel – and, during the Time Period, Lee –
supervised all aspects of the process for the creation of a comic book, which involved
contributions by numerous different people. First, after Lee developed the initial concept
for a story, he assigned a penciler to draw the initial pencil artwork for the comic book
issue and provide the assigned penciler with the story he was to draw, in either a detailed
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script or at least a plot outline. Once completed, the pencil drawings were submitted to
Lee for his review. 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).
28. Plaintiffs’ Statement: Once the captions and dialogue balloons also were
completed in pencil, the pages were provided to a letterer, who went over the dialogue
balloons and captions in ink. The next step was to provide the drawings to the inker, who
went over the pencil drawings in ink. Singer Decl. Ex. 11, Track 4; Lee Dep. at 31:23-
33:7; Thomas Dep. at 50:23-52:10.
Response: Admitted only to the extent that this is referring generally to
Marvel’s process of physically assemblinga comic book for publication, and not to any
specific comic book, character(s) or creation.
29. Plaintiffs’ Statement: After the pages were lettered and inked, they were
sent to the engraver, who ran the inked drawings through a Photostat machine to reduce
them to the proper size of a comic book page. The engraver then sent the pages to the
colorist, who colored the pages and sent them back to the engraver and ultimately to the
printer for publication. Lee Dep. at 31:23-33:7; Thomas Dep. at 52:11-53:14.
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Response: Admitted only to the extent that this is referring generally to
Marvel’s process of physically assembling a comic book, and not to any specific comic
book, character(s) or creation.
30. Plaintiffs’ Statement: As Marvel’s editor during the Time Period, it was
Lee’s responsibility to hire and supervise all of the pencil artists, letterers, inkers and
colorists who, among others, contributed to the creation of the comic book. Lee Dep. at
15:9-13. Specifically, Lee reviewed all artwork that was submitted for publication by
each of these individuals, and had the final say on whether artwork would be published.
No artwork or story was published while Lee was editor of Marvel unless Lee himself
had approved it. Lee Dep. at 33:25-34:7; see also Thomas Dep. at 112:25-113:23.
31. Plaintiffs’ Statement: Likewise, as editor, Lee always had the last say on
the plot and dialogue of all of Marvel’s comic book stories during the Time Period, and
would explain to the artists the way in which the story should proceed. This was so even
though artists might submit margin notes with suggestions as to plot or dialogue from
time to time. Lee took pride in creating the characters’ personalities through the dialogue
and has explained that he typically would ignore these margin notes because he was not
able to write in an another person’s style. Lee Dep. at 16:8-13, 51:17-52:5; see also
Thomas Dep. at 66:13-67:2; Romita Dep. at 70:9-74:17.
Response: Disputed. Stan Lee did not provide the “origin stories and
personalities” for many Marvel’s most famous characters. Instead Jack Kirby provided
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these. Ev. Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 10-13. Tob. Dec., 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 (“According to
statistics, I’ve done one quarter of Marvel’s entire output. There’s a lot of hard work
these stories-most of them. Even the Marvel stuff. Kirby: I did.”); Ex. JJ at 45, 49 (Kirby:
“And I did that with the Marvel books. I wrote the stories. I wrote the plots, I did the
drawings- I did the entire thing…”); Ex. KK at 122 (“Q:You have written your own
doing now.”); Ex. NN at K1759 (“[Jack Kirby] was a virtually inexhaustible wellspring
of fantastic new ideas, concepts and designs.”); Ex. MM at 6 (“Some artists, such as Jack
makes up the plots for these stories.”), 151; Ex. GG at 193; Ex. I at 23:4-13 (“Do you
recall creating any new characters for Marvel after 1970? There was a time in the –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
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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. Plaintiffs’ Statement: It was part of Lee’s job to make edits, or direct that
edits be made by others, to any work that was submitted for publication. Lee Dep. at
16:20-17:4, 22:11-14, 33:9-17, 33:25-34:7; Thomas Dep. at 62:6-63:6, 115:23-116:12;
Romita Dep. at 21:12-19, 23:4-25, 59:25-60:7; Lieber Dep. at 15:16-16:8, 16:14-17:4.
For example, Lee requested changes if he felt that the artwork on the page lacked
sufficient action, or if he felt the panels as they were drawn were confusing to the reader.
Lee Dep. at 16:20-17:4. 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. Plaintiffs’ Statement: Lee often had changes made to artwork without
first consulting the original artist. Thomas Dep. at 63:23-64:19. Lee commonly exercised
his authority to require changes to the artwork when he deemed it necessary, but did not
do so too often, because it wasted Marvel’s money and time. Lee Dep. at 33:9-17.
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purchased by Marvel upon completion, if accepted by Marvel. See Opp. at 13-20. Kirby
was not legally “required to report to Lee and to abide by his ‘marching orders’” as he
had no contract with Marvel. Mor. Dec., Ex. 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; 76:25-77:6; Ex. F at 194:11-21;
14.
34. Plaintiffs’ Statement: At all times during the Time Period, Lee
maintained editorial control over comic book covers as well as stories. Lee and Goodman
agreed that covers were the most important part of a comic book because they were what
caught the readers’ eye. Lee frequently conceptualized how he wanted the covers to look
and he decided which artist would be assigned to draw the cover, sometimes assigning a
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different artist to draw the cover than the artist who was assigned to draw the comic book
itself. Lee 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. Plaintiffs’ Statement: Lee had the authority to make changes or revisions
to comic book covers and he exercised that authority frequently. Lee Dep. at 38:21-22,
44:21-23; Thomas Dep. at 68:7-10; see also Evanier Dep. (12/6/10) at 202:6-204:18. For
example, Mark Evanier’s biography of Kirby includes an exemplar of a cover sketch
featuring the character Thor, drawn by Kirby, that features Lee’s handwritten notes
directing Kirby to make certain changes. Singer Decl. Ex. 28 at K00299; see also Evanier
Dep. (12/6/10) at 202:6-204:18.
purchased by Marvel upon completion, if accepted by Marvel. See Opp. at 13-20. Evanier
testified that this cover was “very rare” and “one of the few times Jack ever did a cover
sketch like this.” Tob. Dec., Ex. C at 203:8-204:9.
36. Plaintiffs’ Statement: Prior to the early 1960s, Marvel’s artists drew
comic book stories based on detailed scripts that were written either by Lee or another
writer who had received from Lee a plot outline or a synopsis (which could be either
written or oral). These scripts were extremely detailed, similar to film shooting scripts,
and included a title, an allocation of pages, and a panel-by-panel breakdown for each
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page that gave the artist explicit instructions as to the action that was to take place in each
panel and the dialogue that would be inserted later. These detailed scripts were written
before any artwork for the comic book was drawn, and the artists based the 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.
Response: Disputed. Evanier testified that Lee only wrote full scripts for
“some artists.” Singer Decl., Ex.9 at 201:21.
37. Plaintiffs’ Statement: During the Time Period, Lee developed a new
system wherein he provided the artist with a short outline or synopsis – which could be
written or oral – that instructed the artist as to what Lee wanted to happen, what he
wanted the hero to do, and how he wanted it to look. After Lee provided the synopsis to
the assigned artist, they would then discuss it at a “plotting conference.” Following the
plotting conference, the artist proceeded to draw a complete story based on Lee’s
directions. Once Lee received the penciled drawings and had approved them – after any
changes that had to be made – he inserted dialogue and captions to develop the story the
way he wanted it to progress. This process became known as the “Marvel Method.”
Singer Decl. Ex. 11, Track 7, Track 2 and Track 6; Lee Dep. at 20:11-21:25, 35:11-22;
Singer Decl. Ex. 30 ; id. Ex. 27; see also Thomas Dep. at 218:14-219:16; Romita Dep. at
39:14-42:13; Evanier Dep. (11/9/10) at 92:22-93:4; Morrow Dep. at 60:18-61:20.
Response: Disputed. This statement only purports to describe the Marvel
Method in general and not as applied to Jack Kirby nor to the works at issue in this
action. Ev.Dec., Ex. A at 7-8; Mor Dec., Ex. A at 8; Tob. Dec., Ex. MM at 151 (Stan
Lee: “Certainly 90 percent of the ‘Tales of Asgard’ stories were Jack’s plots, and they
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were great! He certainly knew more about Norse mythology that I ever did (or at least he
enjoyed making it up!)”), at 6 (Stan Lee:“Some artists, such as Jack Kirby, need no plot
at all. I mean I’ll just say to Jack, ‘Let’s let the next villain be Dr. Doom’ … or I may not
even say that. He may tell me. And then he goes home and does it. He’s so good at
plots, I’m sure he’s a thousand times better than I. He just about makes up the plots for
these stories.”); 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 (“According to statistics, I’ve done one quarter of Marvel’s entire output.
There’s a lot of hard work behind it. It’s something that’s highly individual, highly
creative and above all, it sold very well.”); Ex. OO (“Q: A lot of people don’t know that
you actually scripted a lot of these stories-most of them. Even the Marvel stuff. Kirby: I
did.”); Ex. JJ at 45, 49 (Kirby: “And I did that with the Marvel books. I wrote the stories.
I wrote the plots, I did the drawings- I did the entire thing…”); Ex. KK at 122 (“Q: You
have written your own stories, text and drawings? Kirby: Yes, that’s what I always did
and that’s what I am doing now.”); Ex. NN at K1759 (“[Jack Kirby] was a virtually
inexhaustible wellspring of fantastic new ideas, concepts and designs.”); Ex. I at 23:4-13
(“Do you recall creating any new characters for Marvel after 1970? There was a time in
the –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
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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. Plaintiffs’ Statement: The Marvel Method was developed because Lee
had become so busy that he could not write scripts quickly enough to keep up with the
artists. As Marvel’s freelance artists were paid by the page that they submitted to Marvel
for publication, if they were not given an assignment by Lee, they would not get paid by
Marvel. Lee Dep. at 20:11-21:25; Singer Decl. Ex. 11, Track 6; Romita Dep. at 41:13-
42:13; see also Lieber Dep. at 14:9-15:4.
Response: Admitted that freelance artists were paid by the page for those
artwork pages that were accepted for publication, but otherwise disputed. See Response
to Plaintiff’s Statement No. 37.
39. Plaintiffs’ Statement: Artists and writers did not draw pages prior to
obtaining an assignment and a plot or synopsis from Stan Lee. Lee Dep. at 41:20-42:9;
see also id. at 383:18-21, 384:18-21; Thomas Dep. at 56:12-15, 57:25-58:9; Evanier Dep.
(11/9/10) at 91:15-18.
Response: Disputed. See Response to Plaintiff’s Statement No. 37.
40. Plaintiffs’ Statement: Working under the Marvel Method, artists were
afforded greater freedom to draw the stories, but at all times the artists were constrained
to keep to the main theme and plot that Lee supplied and the instructions he gave. If the
artwork strayed too far from his expectations for the plot of the story or had done
something wrong, Lee “fixed” some of the discrepancies by inserting dialogue and
captions to ensure that it kept to the story he had envisioned without having to spend the
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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.
Response: Disputed. See Response to Plaintiff’s Statement No. 37.
41. Plaintiffs’ Statement: Under the Marvel Method process of story creation
during the Time Period, it was part of the artists’ assignment to fill in any necessary
details or to create new characters or plot elements to flesh out the plot that Lee had
provided for the story. Lee Dep. at 54:16-56:9, 72:21-73:23, 377:12-19; Singer Decl. Ex.
32 at MARVEL0017515 (explaining that Marvel Method involved Lee “discussing the
story with the artist and having the artist do the penciled art on his own, drawing
whatever he wants so long as it tells the story we’ve discussed”); see also Thomas Dep.
at 55:4-15, 55:16-56:3, 220:7-221:12.
Response: Disputed. Kirby had no contract with Marvel in 1958-1970.
Kirby had no legal obligation to provide work to Marvel, finish artwork he had started
with the intention to sell to Marvel, nor could Marvel demand unfinished artwork from
him. He was free to create characters and to choose to insert them into a story to be sold
to Marvel or to use such characters elsewhere, and Marvel did not own the characters he
decided to use elsewhere, or object to such use. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56
(Captain Glory); Ex. C (Jack Kirby’s Gods portfolio), D (New Gods presentation pieces).
See also Mor. Dec., Ex. 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; 76:25-77:6; Ex. F at 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 ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶
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6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. That Marvel,
lika any publisher, could choose the characters it wished to buy or to publish after buying
Kirby’s work is not relevant to determining whether the subject works by Jack Kirby
were owned at inception by Marvel as “works made for hire.” See Opp. at 13-20.
42. Plaintiffs’ Statement: If an artist or writer introduced a new character
into an existing comic book, it was the responsibility of either Goodman as publisher or
Lee as editor to decide whether the character was interesting enough to create a new
comic book title devoted it. Lee Dep. at 79:3-19.
Response: Disputed to the extent Kirby could create characters and
choose to insert them into a story or not, and Marvel would not own these characters if he
decided to use them elsewhere. Kirby had no legal obligation to provide work to Marvel,
finish artwork he had started with the intention to sell to Marvel, nor could Marvel
demand unfinished artwork from him. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain
Glory); Ex. C (Jack Kirby’s Gods portfolio), D (New Gods presentation pieces). See also
Mor. Dec., Ex. 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; 76:25-77:6; Ex. F at 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 ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14;
Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. Further disputed to
the extent that whether or not Marvel could choose the characters it wished to publish is
not relevant to determining whether or not the subject works by Jack Kirby were owned
at inception by Marvel as “works made for hire.” See Opp. at 13-20.
43. Plaintiffs’ Statement: At all times during the Time Period, Lee
maintained the ability to edit and make changes to work that writers and artists had
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created, and, when necessary, he determined that it was not fit for publication. Lee Dep.
at 22:11-16.
Response: Disputed and not relevant to determining whether or not 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. Kirby could
create characters and choose to insert them into a story or not, and Marvel would not own
these characters if he decided to use them elsewhere. Kirby had no legal obligation to
provide work to Marvel, finish artwork he had started with the intention to sell to Marvel,
or to make revisions to such artwork requested by Marvel as a condition to his acceptance
and purchase of such artwork. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain Glory);
Ex. C (Jack Kirby’s Gods portfolio), D (New Gods presentation pieces). See also Mor.
Dec., Ex. 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; 76:25-77:6; Ex. F at 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 ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14;
Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
44. Plaintiffs’ Statement: Except for certain instances in which Lee
continued to use detailed scripts in advance of assigning an artist to draw the pencil
artwork for a comic book issue, Lee used the Marvel Method for the creation of comic
books published by Marvel from the early 1960s on, until he became publisher of Marvel
in the early 1970s. Lee Dep. at 22:2-10; Lieber Dep. at 47:20-48:21; see also Evanier
Dep. (12/6/10) at 56:7-57:13; Morrow Dep. at 59:2-23, 60:5-17.
Response: Disputed. The Marvel Method evolved in the late 1950s, early
1960s and Jack Kirby was not provided scripts by Stan Lee, Larry Lieber or anyone else.
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Ev.Dec., Ex. A at 7-8; Mor Dec., Ex. A at 8; Tob. Dec., Ex. MM at 151 (Stan Lee:
“Certainly 90 percent of the ‘Tales of Asgard’ stories were Jack’s plots, and they were
great! He certainly knew more about Norse mythology that I ever did (or at least he
enjoyed making it up!)”), at 6 (Stan Lee:“Some artists, such as Jack Kirby, need no plot
at all. I mean I’ll just say to Jack, ‘Let’s let the next villain be Dr. Doom’ … or I may not
even say that. He may tell me. And then he goes home and does it. He’s so good at
plots, I’m sure he’s a thousand times better than I. He just about makes up the plots for
these stories.”); Ex. HH at 45 (“Kirby: the artists were doing the plotting- Stan was just
I wrote the plots ,I did the drawings- I did the entire thing…”); Ex. KK (“Q: You have
written your own stories, text and drawings? Kirby: Yes, that’s what I always did and
that’s what I am doing now.”); Ex. NN at K1759 (“[Jack Kirby] was a virtually
inexhaustible wellspring of fantastic new ideas, concepts and designs.”); 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.”); Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14;
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Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. See also responses to ¶¶ 79-83; 85; 88; 90-
91; 94-95; 97; 99; 101;103; 105; 107, infra.
45. Plaintiffs’ Statement: During the Time Period, Marvel’s freelance artists
and writers were paid flat rates for work they performed on a per-page basis. Lee Dep. at
17:22-25, 30:11-14, 58:13-21, 396:1-10; see also Thomas Dep. at 28:5-15 (freelancers
paid per-page rates in 1960s); Romita Dep. at 16:13-21 (same in 1950s and 1960s).
Response: Admitted only to the extent that freelance artists and writers were paid
by the page for those pages accepted and purchased by Marvel for publication, otherwise
disputed. Mor. Dec., Ex. A at 8-10; Ev. Dec., Ex. A at 12; Tob. Dec., Ex. C at 105:15-17;
Ex. D at 89:13-92:5; 178:5-13; 180:4-182:12; Ex. E at 29:4-8; 73:11-74:5 100:21-101:9;
see also Ex. E at 71:17-72:7, 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; 371:3-18; 372:8-10; 396:1-14; Ex. K at 232:5-10; Ex.
LL ¶ 6, Ex. C (Stephen Gerber Check); Ex. T; Ex. AA at 14603; Ex. BB; Ex. L at ¶ 15;
¶¶ 9-15; Ayers Dec. at ¶¶ 8-14.
46. Plaintiffs’ Statement: Marvel did not purchase artwork from artists on
speculation during the Time Period. Lee Dep. at 41:20-42:9; see also Thomas Dep. at
58:14-23 (same in 1960s and 1970s).
Response: Disputed. Lee actually testified that he cannot “remember”
whether any works may have been purchased “on spec”. Singer Decl, Ex. 1 at 41:25-
42:2. Moreover, Thomas did not work for Marvel during the Time Period. Tob. Dec., Ex.
K at 22:22-24; 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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47. Plaintiffs’ Statement: During the Time Period, Marvel’s artists were paid
for work they were assigned by Marvel and submitted for publication, even if Marvel did
not ultimately publish the artwork. Lee Dep. at 18:6-16, 30:11-31:5, 376:16-22; see also
Romita Dep. at 32:2-5 (in 1950s, if an artist did the work, he would be paid for it).
Response: Disputed. Marvel did not pay for rejected artwork. Ev. Dec.,
Ex. A at 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 105:15-17; 136:7-138:22; 140:19-142:21; Ex. D at 89:13-92:5; 138:11-139:4;
178:5-13; 179:5-13; 180:4-182:12; Ex. E at 76:25-77:6; 77:20-79:4;103:7-105:17; 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.
I at 17:17-25; Ex. J at 275:17-276:1; 376:3-22; 396:1-14; Ex. N; Ex. O at 71-74; Ex. P;
Ex. Q; Ex. R; Ex. S; Ex. V at 396; Ex. Z; 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.
48. Plaintiffs’ Statement: Marvel’s artists and writers also were paid their
agreed per-page rate for work submitted for publication during the Time Period, even if
Lee required changes to be made to the work after submission. Lee Dep. at 376:16-22;
Lieber Dep. at 30:10-12; see also Thomas Dep. at 68:24-69:6, 74:19-25 (during 1960s
and 1970s, artists were paid for work even if changes were required).
Response: Disputed. Marvel did not pay freelancers for work it asked
them to be 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; 234:12-235:5; 235:6-236:1; Ex. H at 37:6-19; Ex. Z; Ex. LL ¶ 3 ,Ex.
E; 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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49. Plaintiffs’ Statement: During the Time Period, writers and artists at
Marvel and other major comic book publishers did not receive royalties or other profit
participation based on the work they submitted that was published. Lee Dep. at 45:4-9;
Singer Decl. Ex. 33 at MARVEL0017691 (noting that in comic books, “unlike most other
forms of writing, there were no royalty payments at the end of the road . . . no residuals . .
. no copyright ownership. You wrote your pages, got your check, and that was that.”); see
also Evanier Dep. (11/9/10) at 164:18-165:18, 165:21-166:11.
Response: Admitted only to the extent that Kirby did not receive royalties
during the Time Period in connection with the material that Marvel purchased from
Kirby, otherwise disputed.
50. Plaintiffs’ Statement: On numerous occasions, Lee has expressly
acknowledged and asserted that all works to which he contributed while working for
Marvel were works made for hire. Singer Decl. Ex. 11, Track 8 (“I never owned these
characters. I did them as a work for hire. So the company owned the characters.”); Lee
Dep. at 26:22-28:6, 100:25-101:17, 396:11-14; Singer Decl. Ex. 34 at ¶¶ 4, 11; id. Ex. 23
at ¶ 4, id. Ex. 24 at ¶ 4, id. Ex. 35 at ¶ 2.
Response: Disputed. Lee testified, consistent with other freelance artists,
that his freelance work was purchased by Marvel. Tob. Dec., Ex. J at 367:15-369:16;
371:3-18; 372:8-10; 396:1-14; Ex. E at 100:21-101:9; Ex. F at 65:17-66:4; Ex. K at
232:5-10; 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. In Lee’s November 1, 1998 agreement with
Marvel, Lee agreed to “assign, convey and grant … all right, title and interest,” and “any
copyrights” in his alleged material. Singer Dec. Ex. 25 at ¶ 5(a). The agreement
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nowhere mentions “work for hire,” and if Marvel fails to pay the monies due in the
agreement, Lee can revoke the assignment. Id. Ex. 25 at ¶ 5(f).
51. Plaintiffs’ Statement: Marvel’s policy that it owned all works submitted
for publication as works made for hire was well known among its artists and writers in
the 1950s and 1960s. Lee Dep. at 27:21-28:11; Thomas Dep. at 85:12-86:19. For
example, while working both at Marvel and DC Comics, artist John V. Romita
understood that the company always owned the works to which he contributed that were
published under the company’s name. Romita Dep. at 68:7-10, 86:7-8, 86:13-20; Singer
Decl. Ex. 36. Similarly, writer Roy Thomas also understood that the copyrights to the
materials he submitted for publication were owned by Marvel. Thomas Dep. at 84:16-
85:19; Singer Decl. Ex. 37; see also Lieber Dep. at 32:6-16 (“I didn’t think much about
[Marvel’s work-for-hire policy] because I felt the only reason I was doing it was to get
paid, you know.”); Singer Decl. Ex. 38 (“In the narrow field of comic art, one either
worked ‘for hire’ or didn’t work!”); id. Ex. 39 at MARVEL0018273 (Kirby stating,
“[e]verybody was ‘work-for-hire’. . . It was the traditional way that artists got jobs”).
Response: Disputed as it implies that Marvel owned the rights to these
submissions as “work for hire,” when Stan Lee, Larry Lieber, Roy Thomas,Stan Lee,
Dick Ayers, Gene Colan, Joe Sinnott, Jim Steranko and Neal Adams each testified that it
was their understanding that Marvel owned the rights to their pages because Marvel had
purchased such pages from them. Tob. Dec., Ex. E at 100:21-101:9; Ex. F at 65:17-66:4;
Ex. J at 396:1-14; Ex. K at 232:5-10. See also Tob. Dec., Ex. C at 215:14-216:23; Ex. L
at ¶¶ 2, 4, 15; Ex. AA at 14603; Ex. LL at Ex. C ; Ex. T; Mor. Dec., Ex. A at 9; Ev. Dec.,
Ex. A at 12-13. Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-
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14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶ 8-14. Further disputed to the extent Larry
Lieber testified he had never heard the phrase “work for hire” until last year. Tob. Dec.,
Ex. E at 101:10-102:8.
52. Plaintiffs’ Statement: Likewise, Marvel’s artists and writers understood
that Marvel had the right to introduce existing characters into a different comic book
series being drawn and/or written by a different artist and/or writer without consulting the
original writer or artist. Thomas Dep. at 65:13-17, 65:23-66:7, 67:3-14; see also Lee Dep.
at 79:3-19.
53. Plaintiffs’ Statement: Marvel artist John Romita, writer Larry Lieber and
writer-turned-editor Roy Thomas all testified that they recall that the payroll checks by
which they were paid for their freelance work bore a legend on the back stating that they
retained no rights in the work for which they were being paid. Thomas Dep. at 71:17-
72:19, 229:4-25; Romita Dep. at 64:14- 65:19, 65:24-66:4, 66:24-67:14, 67:17-20,
273:24-274:11; Lieber Dep. at 31:17-21, 32:4-33:8. Stan Lee recalls endorsing paychecks
from Timely Comics and its various successors for his writing that bore such an
acknowledgement, which was the “standard practice” for all writers and artists who
worked for Marvel on a freelance basis. Lee testified that he never thought anything of
this practice because he always assumed that Marvel owned the rights to the works he
created or co-created. Lee Dep. at 28:20-29:11.
Response: Disputed as it implies that Marvel owned the rights to these
submissions as “work for hire,” when Stan Lee, Larry Lieber, Roy Thomas,Stan Lee,
Dick Ayers, Gene Colan, Joe Sinnott, Jim Steranko and Neal Adams each testified that it
was their understanding that Marvel owned the rights to their pages because Marvel had
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purchased such pages from them. Tob. Dec., Ex. E at 100:21-101:9; Ex. F at 65:17-66:4;
Ex. J at 396:1-14; Ex. K at 232:5-10. See also Tob. Dec., Ex. L at ¶¶ 2, 4, 15; Ex. AA at
14603; Ex. LL at Ex. C; Ex. T; Mor. Dec., Ex. A at 9; Ev. Dec., Ex. A at 12-13; Colan
Dec. at ¶¶ 12, 14; Adams Dec. at ¶ 14; Ster. Dec. at ¶ 12; Sinn. Dec. at ¶¶ 13-14; Ayers
Dec. at ¶ 14.
54. Plaintiffs’ Statement: During the Time Period, some assignments were
given to Kirby to draw based on a detailed script, and others were given to him pursuant
to the Marvel Method. Under either process, Kirby was assigned to draw a particular
comic book issue based on Stan Lee’s initial concept and plot outline. When working
under the Marvel Method, after Kirby was given the assignment and initial concept, Lee
and Kirby discussed the plot in a plotting conference, and only then did Kirby draw the
complete story based on the plot and his discussion with Lee. Lee Dep. at 39:25-41:19,
47:21-25, 94:24-95:12, 383:18-21; Lieber Dep. at 47:20-48:8; see also Evanier Dep.
(11/9/10) at 91:9-18, 92:22-93:4, 111:4-14, 168:4-169:24; Thomas Dep. at 111:12- 14,
112:8-17; Romita Dep. at 80:19-25; Singer Decl. Ex. 40.
Response: Disputed. Neither Romita nor Thomas are testifying about the
Time Period as they did not work for Marvel during that period. Tob. Dec., Ex. F at
219:6-220:11; Ex. K at 22:22-24. Jack Kirby provided his own initial plots and concepts
during the Time Period. Ev. Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 10-13. Tob. Dec.,
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
(“According to statistics, I’ve done one quarter of Marvel’s entire output. There’s a lot of
hard work behind it. It’s something that’s highly individual, highly creative and above all,
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it sold very well.”); Ex. OO (“Q: A lot of people don’t know that you actually scripted a
lot of these stories-most of them. Even the Marvel stuff. Kirby: I did.”); Ex. JJ at 45, 49
(Kirby: “And I did that with the Marvel books. I wrote the stories. I wrote the plots, I did
the drawings- I did the entire thing…”); Ex. KK at 122 (“Q: You have written your own
makes up the plots for these stories.”), 151; Ex. GG at 193; Ex. I at 23:4-13 (“Do you
recall creating any new characters for Marvel after 1970? There was a time in the –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.
55. Plaintiffs’ Statement: Kirby did not begin work on any artwork for a
book published by Marvel during the Time Period before he had been assigned to that
project by Lee. Lee Dep. at 383:18-21, 384:18-21; see also Evanier Dep. (11/9/10) at
92:22-93:4; Evanier Dep. (12/6/10) at 225:5-8.
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Response: Disputed.Jack Kirby provided his own initial plots and
concepts during the Time Period. Ev. Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 10-13.
Tob. Dec., Ex. HH at 45 (“Kirby: the artists were doing the plotting- Stan was just
I wrote the plots, I did the drawings- I did the entire thing…”); Ex. KK at 122 (“Q:You
have written your own stories, text and drawings? Kirby: Yes, that’s what I always did
and that’s what I am doing now.”); Ex. NN at K1759 (“[Jack Kirby] was a virtually
inexhaustible wellspring of fantastic new ideas, concepts and designs.”); Ex. MM at 6
(“Some artists, such as Jack Kirby, need no plot at all. I mean I’ll just say to Jack, ‘Let’s
let the next villain be Dr. Doom’ … or I may not even say that. He may tell me. And
then he goes home and does it. He’s so good at plots, I’m sure he’s a thousand times
better than I. He just about makes up the plots for these stories.”), 151; Ex. GG at 193;
Ex. I at 23:4-13 (“Do you recall creating any new characters for Marvel after 1970?
There was a time in the –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
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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.
56. Plaintiffs’ Statement: In plotting conferences during the Time Period, if
Kirby and Lee ever had differing views on an element of an upcoming comic book issue,
Lee always had the final say as to what would go into the book. Lee Dep. at 52:3-5,
73:17-23, 111:2-17; see also Romita Dep. at 81:18-83:21 (describing plotting
conferences in 1960s); Singer Decl. Ex. 11, Track 3.
purchased by Marvel upon completion, if accepted by Marvel.
57. Plaintiffs’ Statement: In the course of fleshing out the outlines into
complete comic book stories during the Time Period, Kirby from time to time introduced
new characters into the story. This introduction of new elements was part of his
assignment, and was always done within the context of the work Lee had assigned him
and the script or the plot that Lee provided to him. Lee Dep. at 54:16-56:9, 377:12-19.
Response: Disputed. Kirby could create characters while working on
stories intended to be submitted to Marvel, but refuse to provide them to Marvel. Ev.
D (New Gods presentation pieces). Kirby was not legally “required to report to Lee and
to abide by his ‘marching orders’” as he had no contract with Marvel. Mor. Dec., Ex. A at
76:25-77:6; Ex. F at 194:11-21; 204:6-19; 204:24-205:15; Ex. J at 256:25-257:25; Ex. L
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started with the intention to sell to Marvel, nor did Marvel have the legal right to demand
revisions by Kirby of his artwork. Kirby was free to reject any of Marvel’s requests or to
submit material that Marvel did not request. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56
(Captain Glory); Ex. C (Jack Kirby’s Gods portfolio), D (New Gods presentation pieces).
Tob. Dec., Ex. MM at 6 (“Some artists, such as Jack Kirby, need no plot at all. I mean
I’ll just say to Jack, ‘Let’s let the next villain be Dr. Doom’ … or I may not even say that.
He may tell me. And then he goes home and does it. He’s so good at plots, I’m sure he’s
a thousand times better than I. He just about makes up the plots for these stories.”),151;
Ex. GG at 193; Colan Dec. at ¶¶ 8, 9, 12, 14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-
14; Sinn. Dec. at ¶¶ 9-15.
58. Plaintiffs’ Statement: During the Time Period, Stan Lee had the right to
direct and supervise Kirby’s work and had the ability to review all of Kirby’s artwork
prior to publication. In reviewing artwork that Kirby submitted for publication, Lee had
the authority to determine whether the artwork would be published, or to require changes
or edits prior to approval or prior to publication. Lee Dep. at 22:11-23:19, 47:15-25; see
also Thomas Dep. at 113:18-114:11; Evanier Dep. (12/6/10) at 105:6-14, 105:18-23.
purchased by Marvel upon completion, if accepted by Marvel. Kirby was not legally
“required to report to Lee and to abide by his ‘marching orders’” as he had no contract
with Marvel. Mor. Dec., Ex. 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; 76:25-77:6; Ex. F at 194:11-21; 204:6-19; 204:24-
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205:15; Ex. J at 256:25-257:25; Ex. L at ¶ 1, 3. Kirby had no legal obligation to provide
work to Marvel, finish artwork he had started with the intention to sell to Marvel, nor did
Marvel have the legal right to demand revisions by Kirby of his artwork.. Kirby was free
to reject any of Marvel’s requests or to submit material that Marvel did not request. Ev.
14.
59. Plaintiffs’ Statement: At Lee’s discretion, Kirby was sometimes
instructed to make changes and revisions to artwork he submitted to Marvel for
publication. Lee Dep. at 22:11-19, 23:13-19; Thomas Dep. at 113:25-114:11; see also
Evanier Dep. (11/9/10) at 59:22-60:4, 60:23-61:8, 61:20-23; Evanier Dep. (12/6/10) at
105:6-14, 105:18-23, 106:5-7; N. Kirby Dep. at 170:23-171:4; October 25, 2010
Deposition of Susan Kirby (“S. Kirby Dep.”) annexed as Ex. 7 to the Singer Decl. at
37:23-25; Morrow Dep. at 205:13-19, 206:5-207:10, 264:11-18. Lee does not recall any
instance when Kirby ever refused to make any of the edits or changes that Lee directed.
Lee Dep. at 48:10-13.
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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; 204:24-
14.
60. Plaintiffs’ Statement: Lee sometimes requested that an artist make
changes to another artist’s work. See Thomas Dep. at 114:13-115:9; see also Evanier
Dep. (12/6/10) at 197:17-24. For example, John Romita recalled that when he first met
Kirby, Kirby was sitting in Marvel’s bullpen making changes to a cover that had been
penciled originally by artist Steve Ditko. Romita Dep. at 74:23-76:7. Additionally, from
time to time, Lee asked John Romita to make changes to artwork that Kirby had
submitted for publication. For example, Lee asked Romita to change certain facial
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features on Kirby’s characters. Romita found this difficult because he idolized Kirby’s
work, but he “did it because [he] had no choice. Stan asked [him] to do it.” Id. at 76:8-
78:21. Romita recalls that Kirby rarely read any comic book in its final published format,
and for that reason may have been unaware of the changes that were made to his artwork
after its submission. Id. at 88:16-24.
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; 204:24-
14.
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61. Plaintiffs’ Statement: Kirby was paid for all the artwork pages that he
submitted to Marvel during the Time Period, even if it was not used for publication and
even if Lee required that changes be made to it prior to publication. Lee Dep. at 30:24-
31:5, 376:3-22 (“Any artists that drew anything that I had asked him or her to draw at my
behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw
it, so I did pay them.”); see also Evanier Dep.(11/9/10) at 61:24-62:1, 62:10-24; Evanier
Dep. (12/6/10) at 138:19-22. Lee sometimes later used these inventory pages as tests for
new inkers. Lee Dep. at 22:11-23:19.
Response: Disputed. Marvel only paid for completed work by Kirby it
accepted from Kirby, regardless of whether or not it subsequently published the work,
and Marvel had no legal obligation to pay for work it did not accept. Ev. Dec., Ex. A at
12; Mor. Dec., Ex. A at 8-10; Tob. Dec., Ex. D at 89:13-92:5; 180:4-182:12; Ex. E at
103:7-105:17; Ex. F at 123:18-125:9; 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 ¶¶11-14. If a page(s)
or story was rejected by Marvel, Kirby was not compensated, and personally took the
financial loss. Id. Kirby was also not paid for work Marvel asked him to redraw. Id.,
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
136:7-38:22; 140:19-141:3; Ex. D at 89:13-92:5; Ex. E at 77:20-79:4; Ex. G at 57:18-
58:21, 234:12-236:1; Ex. H at 37:6-19. Marvel did not have any written agreement with
Kirby during the 1958-1963 Time Period. Mor. Dec., Ex. A at 9, 11-12; Ev. 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 at
194:11-21; 200:4-201:13; 204:6-19; 204:24-205:15; Ex. J at 256:25-257:25; Ex. L, ¶¶ 1,
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3. The first written agreement with Kirby produced by Marvel was executed on June 5,
1972 and is aptly titled: “Assignment.” Tob. Dec., Ex. M.
62. Plaintiffs’ Statement: Like all freelance artists at Marvel during the
Time Period, Kirby was paid an agreed per-page rate for his artwork. Lee Dep. at 58:13-
21; Singer Decl. Ex. 41 at 20 MARVEL0017230; N. Kirby Dep. at 72:20-22, 73:1-4,
81:8-13; see also Evanier Dep. (12/6/10) at 105:15-17. Kirby was paid the highest per-
page rate offered by Marvel because Lee considered him to be Marvel’s best artist. Lee
Dep. at 30:15-23.
Response: Admitted, except denied that Kirby was “Marvel’s artist,” as
Marvel was not obligated to Kirby and Kirby was not obligated to Marvel during the
Time Period; Kirby could and did sell his artwork to companies other than Marvel during
the Time Period. Ev. Dec., ¶ 18; 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, 9, 12, 14;
14.
63. Plaintiffs’ Statement: When Kirby submitted his artwork for Lee’s
review, he sometimes included notes in the margins of the pages to describe his ideas for
a plot or dialogue being depicted. Lee had discretion as to whether to use any of those
notes, and he almost always ignored them and inserted his own dialogue instead. Lee
Dep. at 48:24-52:20; Thomas Dep. at 117:11-22; Singer Decl. Ex. 42 at
MARVEL0017976; see also Evanier Dep. (12/6/10) at 193:13-17, 193:25-195:3.
Response: Admitted on to the extent that Kirby included detailed “notes
in the margins of [his] pages to describe his ideas for a plot or dialogue being depicted,”
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but otherwise disputed as the story was already plotted by Kirby in his illustrated panels,
and in addition Lee would consult and use the margins notes routinely provided by Kirby.
Ev. Dec., Ex. A at 9-10; Tob. Dec., Ex. D at 66:8-22; Ex. FF; Ex. GGat 192-199. See
also Ev. Dec., Ex. A at 14-17; Mor. Dec., Ex. A at 10-13; Tob. Dec., Ex. HH at 45
(“Kirby: the artists were doing the plotting- Stan was just coordinating the books, which
handling both story and art. We had to- there was no time not to!”); Ex. II (“According to
statistics, I’ve done one quarter of Marvel’s entire output. There’s a lot of hard work
these stories-most of them. Even the Marvel stuff. Kirby: I did.”); Ex. JJ at 45, 49 (Kirby:
“And I did that with the Marvel books. I wrote the stories. I wrote the plots, I did the
drawings- I did the entire thing…”); Ex. KK at 122 (“Q:You have written your own
makes up the plots for these stories.”),151; 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
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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. Plaintiffs’ Statement: Kirby never did any artwork for publication by
Marvel without having been assigned to do so by Marvel, and Kirby never submitted
artwork to Marvel on spec. N. Kirby Dep. at 127:19-24 (“Q: Was it your understanding
that your father would begin working on a book without any discussion with Stan before
doing so? A: I would say it was my understanding if my father had an idea for a book or a
character to create he would bring it up and get a yea or nay.”); id. at 127:25-128:5 (“Q:
Was it your understanding that [Kirby] would begin working; that is, drawing panels
prior to getting a go ahead from Marvel or Stan Lee? A: I don’t believe – that is not my
understanding. My father didn’t do work on spec, he was getting paid by the page.”); id.
at 168:24-169:7; Lee Dep. at 48:2-4, 56:10-16, 57:12-18; Thomas Dep. at 112:19-23.
Response: Disputed. Lee actually testified that he cannot “remember”
whether any works may have been purchased “on spec”. Singer Decl, Ex. 1 at 41:25-
42:2; 48:2-4. Moreover, Thomas did not work for Marvel during the Time Period. Tob.
Dec., Ex. K at 22:22-24. Neal Kirby testified that his father did pitch ideas on spec to
Marvel: “Q: You have indicated very clearly that your father never did work on Marvel
on spec, correct? Neal Kirby: In terms of – maybe I need to qualify that, okay? In terms
of would my father have pitched an idea , if you don’t mind my using the word ‘pitch,’
you know, met with somebody else saying gee, I have this good idea for a character, you
know, would you like to go for it, that he would have done it you know. Definitely I
would consider that coming up with an idea and speculation.” Tob. Dec. Ex. G at 167:21-
168:5; 233:15-234:5 (“Q: …[I]n the instances where Marvel said it liked the idea and
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[Kirby] proceeded to do work, did you consider that work to be on spec or not 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.”). Kirby did do drawings of re-imagined Captain America and Thor characters on
“spec” that were submitted to Marvel. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain
Glory); Ex. C (Jack Kirby’s Gods portfolio), D (New Gods presentation pieces); 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.
65. Plaintiffs’ Statement: Throughout their working relationship, Lee had
(and continues to have) an extremely high opinion of Kirby. Lee would have preferred to
have used Kirby as the pencil artist on all of Marvel’s comic books during the Time
Period, but he was not able to do so because Kirby was “just one guy,” and did not have
the time. Lee Dep. at 36:19-23, 46:25-47:8; Singer Decl. Ex. 27 at THOM0002629.
66. Plaintiffs’ Statement: In an interview with Mike O’Dell on WBAI-FM
NY radio, conducted on March 3, 1967, when asked whether, “now that Captain America
is back in the fight, has there been any talk about sending him to Vietnam?” Kirby
replied: “Well, that’s Stan Lee’s department and he can answer that. The editor always
has the last word on that.” Id. Ex. 11, Track 3.
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Response: Disputed, to the extent the statements is out of context , not
keyed to the Time Period and not relevant to determining 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.
67. Plaintiffs’ Statement: In an interview with Mark Herbert of The
Nostalgia Journal in 1969, Kirby stated: “My job is what the policy of the organization
[i.e., Marvel] calls for.” Id. Ex. 43 at MARVEL0017197.
Response: Disputed, to the extent the statement is out of context, not
keyed to the Time Period, and not relevant to determining whether the subject works by
68. Plaintiffs’ Statement: Kirby has been quoted as saying: “Everybody was
‘work-for-hire’ . . . It was the traditional way that artists got jobs. The publishers made
certain that they owned the rights to everything. When you came in for work, everything
you did was owned by the guy giving you a paycheck.” Id. Ex. 39 at MARVEL0018273.
Response: Disputed, to the extent the statement is out of context, not
keyed to the Time Period, and not relevant to determining whether the subject works by
69. Plaintiffs’ Statement: In an affidavit signed on July 12, 1966, Kirby
averred that with respect to the creation of the Captain America character with writer Joe
Simon, he “felt that whatever [he] did for Timely belonged to Timely as was the practice
in those days.” Id. Ex. 44 at MARVEL0000354.
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Response: Disputed, to the extent the statement is out of context, pertains
to Captain America which was created over a decade before the Time Period and because
it is not relevant to determining 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.
70. Plaintiffs’ Statement: In 1968 and 1969, Kirby signed Applications for
Registration of a Claim to Renewal Copyright for certain Captain America comic books,
in which Marvel Comics Group claimed a renewal copyright as a “[p]roprietor of
copyright in a work made for hire.” Kirby certified that the statements made in the
applications were correct to the best of his knowledge. Id. Ex. 45.
Response: Disputed, to the extent the statement omits the circumstances
under which Marvel required Kirby to sign this registration form drafted by Marvel,
pertains to Captain America which was created over a decade before the Time Period,
and because it is not relevant to determining 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.
71. Plaintiffs’ Statement: In an agreement signed in 1972, Kirby
“acknowledge[d] and agree[d] that all his works on the MATERIALS, and all his work
which was created or related to the RIGHTS,” that were the subject of the Agreements
“was done as an employee for hire of” Marvel. Id. Ex. 17 at ¶¶ 4-5.
Response: Disputed in that the 1972 Assignment speaks for itself, and that
this selective quote omits that the document is entitled as “Assignment,” and that the bulk
of its terms are devoted to a detailed transfer and assignment of specified rights in the
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Kirby material published by Marvel – the antithesisof ownership at inception as “work
for hire.” Singer Decl. Ex. 17 ¶¶ 1-4.
72. Plaintiffs’ Statement: In a Writers and Artists Agreement dated March
24, 1975, Kirby agreed that Marvel had, among other things, the exclusive right to secure
copyrights in all material delivered to Marvel under the agreement. Id. Ex. 46 at ¶ 7.
Response: Disputed to the extent that this 1975 employment agreement is
well outside the Time Period (1958-1963) in question; the agreement speaks for itself,
and the statement is, in any event, not relevant to whether Marvel owned pre-March 24,
1975 material created by Kirby on a freelance basis at inception as “work for hire,” or
owned it pursuant to Marvel’s purchase of such material upon acceptance.
73. Plaintiffs’ Statement: In an Acknowledgement of Copyright Ownership
dated June 16, 1986, Kirby acknowledged: “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.” Id. Ex. 47 at ¶ 1.
Response: Disputed to the extent that this Acknowledgement is well
outside the Time Period (1958-1963) in question, is quoted out of context of the entire
document, omits the circumstances under which Kirby was required by Marvel to sign
such self-serving Acknowledgements drafted by Marvel as a condition to Marvel
returning his original artwork to him, and, in any event, the statement is not relevant to
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whether Marvel owned the copyright to Kirby’s material as “work for hire” or via the
purchase and assignment (e.g., 1972 Assignment) of the copyright in such work .
74. Plaintiffs’ Statement: In an Artwork Release dated June 16, 1987, Kirby
acknowledged that the artwork subject to the release “was specially commissioned by and
prepared for Marvel, . . and is a work made for hire pursuant to all applicable copyright
laws.” The Artwork Release further provides that Kirby was “fully compensated for all
[his] work in preparation of the Artwork,” that “Marvel is the exclusive worldwide owner
of all copyrights in and to the Artwork,” and that the agreement “shall be binding upon
the Artist, and [his] heirs.” Id. Ex. 48 at MARVEL0013635, at ¶¶ 1-3, 7.
Response: Disputed to the extent that this Artwork Release is well outside
the Time Period (1958-1963) in question, is quoted out of context of the entire document
and omits the circumstances under which Kirby and other freelance artists were required
by Marvel to sign such self-serving Releases drafted by Marvel as a condition to Marvel
returning their original artwork to them. Ev. Dec., Ex. A at 17-20, 22; Mor. Dec., Ex. A
at 13, 15; Tob. Dec., Ex. K at 267:14-19; Ex. PP at 89-95; Ex. QQ; Ex. KKK. Marvel v.
Simon, 310 F.3d 280 (2002) unequivocally held that Marvel cannot avoid section 304’s
inalienable termination right by re-characterizing a work as “for hire” years after its
creation; and that such is void under 17 U.S.C. § 304(c)(5) as an “agreement to the
contrary.” 310 F.3d at 292 (“Termination of [a] grant may be effected notwithstanding
any agreement to the contrary….”).
75. Plaintiffs’ Statement: Kirby signed a letter from Marvel, dated May 12,
1987, in which he acknowledged that “notwithstanding [his] execution of the Marvel
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Artwork Release . . . Marvel has given [Kirby] special permission to arrange for the
public exhibition of artwork originally drawn by [him] for Marvel.” Id. Ex. 49.
Response: Disputed to the extent that this 1987 letter is well outside the
Time Period (1958-1963) in question, is quoted out of context of the entire document,
omits the circumstances under which Kirby was required by Marvel to sign such self-
serving documents drafted by Marvel as a condition to Marvel returning his original
artwork to him, and, in any event, the statement is not relevant to whether Marvel owned
the copyright to Kirby’s material as “work for hire” or via the purchase and assignment
(e.g., 1972 Assignment) of the copyright in such work. Ev. Dec., Ex. A at 17-20, 22;
Mor. Dec., Ex. A at 13, 15; Tob. Dec., Ex. K at 267:14-19; Ex. PP at 89-95; Ex. QQ; Ex.
KKK.
76. Plaintiffs’ Statement: In a statement to the Comic Buyer’s Guide,
published on October 3, 1986, Kirby stated: “I feel I’m entitled to receive proper credit
for my role in the creation of The Fantastic Four, Spider-Man, The Hulk, Silver Surfer,
etc. . . . This has nothing to do with copyright ownership.” Id. Ex. 50.
77. Plaintiffs’ Statement: In a letter to Marvel dated November 19, 1997,
written on behalf of Roz Kirby and the Estate of Jack Kirby, attorney Stephen Rohde
wrote: “At the outset, let me assure you that Roz is not challenging Marvel’s rights in the
various characters which Jack created. Any issues regarding ownership have long since
been put to rest.” Id. Ex. 51 at ME0170.
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78. Plaintiffs’ Statement: Defendants have acknowledged that the central
dispute with respect to Kirby’s works created for Marvel involves Marvel’s alleged
failure to give proper credit to Kirby for his work. N. Kirby Dep. at 80:10-19; July 1,
2010 Deposition of Lisa Kirby (“L. Kirby Dep.”) annexed as Ex. 6 to the Singer Decl. at
66:18-67:5.
Response: Disputed as the central dispute in this action is the validity of
defendants’ termination notices. See Defendants’ Counterclaims at ¶¶ 29-32.
79. Plaintiffs’ Statement: Stan Lee has identified over 150 characters that he
has attested under oath were created or co-created by him for Marvel and that were
created for Marvel as works made for hire. These characters include the main and
subsidiary characters in The Fantastic Four, The Mighty Thor, The Incredible Hulk, The
Amazing Spider-Man, The X-Men, Iron Man, The Avengers and Ant-Man, among others.
Singer Decl. Ex. 34; see also Lee Dep. at 145:7-21, 377:20-379:3.
Response: Disputed. Stan Lee testified that he solely created the iconic
characters listed. Lee Dep. at 145, 377:-379. Kirby created or co-created most of these
major Marvel’s characters. Ev.Dec., Ex. A at 7-8; Mor Dec., Ex. A at 8; Tob. Dec., Ex.
MM at 151 (Stan Lee: “Certainly 90 percent of the ‘Tales of Asgard’ stories were Jack’s
plots, and they were great! He certainly knew more about Norse mythology that I ever
did (or at least he enjoyed making it up!)”), at 6 (Stan Lee:“Some artists, such as Jack
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makes up the plots for these stories.”); 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 (“According to statistics, I’ve done one quarter of
Marvel’s entire output. There’s a lot of hard work behind it. It’s something that’s highly
individual, highly creative and above all, it sold very well.”); Ex. OO at 174 (“Q: A lot of
people don’t know that you actually scripted a lot of these stories-most of them. Even the
Marvel stuff. Kirby: I did.”); Ex. JJ at 45, 49 (Kirby: “And I did that with the Marvel
books. I wrote the stories. I wrote the plots ,I did the drawings- I did the entire thing…”);
Ex. KK at 122 (“Q:You have written your own stories, text and drawings? Kirby: Yes,
that’s what I always did and that’s what I am doing now.”); Ex. NN at K1759 (“[Jack
Kirby] was a virtually inexhaustible wellspring of fantastic new ideas, concepts and
designs.”). Tob. Dec., Ex. I at 23:4-13 (“Q:Do you recall creating any new characters for
Marvel after 1970? Stan Lee: There was a time in the –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.”); 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
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‘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.
80. Plaintiffs’ Statement: In 1961, Martin Goodman instructed Stan Lee to
create a new team of superheroes to compete with National Comics’s The Justice League
of America. Singer Decl. Ex. 52 at MARVEL0017498 (“I worked for [Goodman] and I
had to do what he wanted, so I was willing to put out a team of superheroes.”); Lee Dep.
at 36:7-18, 59:16-60:16; see also Evanier Dep. (11/9/10) at 87:21-88:19.
Response: Disputed. Stan Lee did not solely create the concept of The
Fanatstic Four nor was Kirby ever given a “synopsis” by Stan Lee. (¶82). Ev. Dec. Ex. A
at 14-15; Mor. Dec. Ex. A at 11; Tob. Dec., Ex. D at 192:14-193:3; 230:22-232:20;
Ex._B at 49:23- 50:10; Ex. C at 91:24-92:21;110:21-113:3; Ex. G at 117:23-118:17;
Ex._J at 307:7-25; 338:16-339:19; 340:20-341:1); Ex. RR; Ex. SS at 188 (“Was the
concept of the Fantastic Four your idea or Stan Lee’s?” Kirby: “It was my idea. It was my
idea to do it the way it was; my idea to develop it the way it was…”) ; Ex. TT at 181 (“In
many ways [The Challengers of the Unknown] were the predecessors of the FF”); 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.’”). Lee has admitted
he co-created the Fantastic Four with Jack Kirby. Tob. Dec. Ex. UU at 57 (“Let me tell
you right up front why I’m still frankly fascinated by the concept of the stunning Ms.
Storm. At the time that Jack Kirby and I put our noggins together and decided to come
up with a new team of super do-gooders, there wasn’t much happening in those circles.”);
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Ex. VV at 6 (Lee:“I co-created The Fantastic Four and the Hulk with Kirby.”); Ex._J
(12/8/10 Stan Lee depo) at 307:11-25; 338:16-339:19; 340:20-341:1); Ex. WW at 13
(“When such fabulous features as the Fantastic Four, the Mighty Thor, and the Incredible
Hulk were just a-borning, it was good ol’ Jack[] with whom I huddled, harangued and
hassled until the characters were designed…”). Lee also co-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 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
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Surfer, and the name was certainly euphonious and we decided to keep it.”); Ex. G at
124:4-9.
81. Plaintiffs’ Statement: Lee developed the concept behind Marvel’s new
team of heroes, The Fantastic Four, including the genesis of their superpowers, their
realistic personalities and their relationships with one another. Lee Dep. at 59:16-60:16,
61:10-62:15; Singer Decl. Ex. 11,Track 9; id. Ex. 33 at MARVEL0017694. While Lee
conceived of the main characters Mr. Fantastic, Invisible Girl and The Thing, his idea 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.
Response: Disputed. See Response to Statement No. 80.
82. Plaintiffs’ Statement: Lee typed up a synopsis laying out the plot of the
first issue of The Fantastic Four comic book and then assigned Kirby to draw the story.
Lee and Kirby discussed Lee’s ideas in a plotting conference, after which Kirby
proceeded to produce the pencil drawings for the first issue of The Fantastic Four based
on Lee’s synopsis and their discussion. Singer Decl. Ex. 30;Lee Dep. at 36:15-18, 60:17-
61:2, 65:5-10, 384:18-21.
83. Plaintiffs’ Statement: Throughout the process of creating the first issue
of The Fantastic Four, and even after several issues had already been published, Lee
continued to make changes to the characters and story, for example to the personalities,
abilities or appearances of the characters. Lee Dep. at 67:6-70:2, 81:21-82:5; Singer Decl.
Ex. 53 at 36.
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84. Plaintiffs’ Statement: The Fantastic Four was originally published in its
own comic book, The Fantastic Four, Vol. 1, No. 1, with a cover date of November
1961. See Bard Decl. Ex. 1 at MARVEL0001026-25.
Response: Admitted.
85. Plaintiffs’ Statement: In 1962, Lee conceived of the story of The
Incredible Hulk, a sympathetic monster who was also a hero. Lee was inspired by the
story of the misunderstood monster in the Boris Karloff film Frankenstein, as well as
with the story of Dr. Jekyll and Mr. Hyde. Lee Dep. at 80:10-81:19, 83:14-84:14; Singer
Decl. Ex. 33 at MARVEL0017749. Lee assigned Kirby to draw the first issue. Lee Dep.
at 83:5-13, 84:18-23.
Response: Disputed. Stan Lee co-created The Incredible Hulk with Jack
Kirby. Tob. Dec., Ex. C at 56:7-21; Ex. VV at 6 ( I co-created The Fantastic Four and the
Hulk with Kirby.”); Ex. WW at 13 (“When such fabulous features as the Fantatsic Four,
the Mighty Thor, and the Incredible Hulk were just a-borning, it was good ol’ Jack[] with
whom I huddled, harangued and hassled until the characters were designed…”); Ex. RR;
Ex. BBB at 1; Ex. YY at 23 (“When I created Hulk with Artist Jack Kirby, we had the
feeling that people love a guy who isn’t perfect.”); Ex. U at 88 (“For their second
superhero, Lee and Kirby came up with a monstrous figure…the result was The
Incredible Hulk.”); Singer Dec., Ex. 41 at MARVEL17226 (“The Hulk I created when I
saw a woman lift a car. Her baby was caught under the running board of this car.”); 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
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Mighty Thor,’ ‘The Incredible Hulk,’ ‘X-Men’ and ‘The Avengers.’”); Ev. Dec. Ex. A at
15; Mor. Dec. Ex. A at 10.
86. Plaintiffs’ Statement: The first issue of The Incredible Hulk, Vol. 1, No.
1 was published with a cover date of May 1962. Bard Decl. Ex. 1 at MARVEL0001100.
Response: Admitted.
87. Plaintiffs’ Statement: The Hulk was originally gray-skinned, but after the
printer had trouble printing the color consistently throughout the book, Lee decided to
change the coloration of the hero’s skin to green after the first issue was published. Lee
Dep. at 81:20-83:4; Singer Decl. Ex. 33 at MARVEL0017750; see also id. Ex. 11, Track
12.
Response: Disputed to the extent Stan Goldberg claimed he chose the
color green for the Hulk character. Tob. Dec., Ex. UUUat 16.
88. Plaintiffs’ Statement: In 1962, Lee decided to introduce a new comic
book story centered on Thor, the Norse god of thunder. Lee gave a synopsis of the plot to
his brother Larry Lieber, who wrote a full panel-by-panel script for the first Thor issue
based on Lee’s outline and made up the name of Thor’s alter ego Don Blake and his
enchanted Uru hammer. Because Kirby had an interest in mythology, he was given the
script that Lieber had written and assigned to draw the first issue to feature Thor and the
subsidiary characters of the Asgaardian realm. Singer Decl. Ex. 11, Track 14; Lee Dep. at
87:11-89:8, 89:13-90:19, 91:2-3; Lieber Dep. at 19:9-19, 20:8-21:17, 48:25-49:4;
Singer Decl. Ex. 33 at MARVEL0017848 (Lee notes that he provided an outline to
Lieber; explaining that “[e]ven though [he] wouldn’t be writing the script, [Lee] always
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tried to ensure that the basic concepts would be [his]”); see also Evanier Dep. (12/6/10) at
190:2-9, 190:15-22, 238:6-21.
Response: Disputed. The record shows that Lee and his brother did not
create Thor and then present it to Kirby to draw. (¶ 88) Kirby’s well documented love of
Norse mythology and drawing of an earlier incarnation of Thor in 1942 indicates at a
minimum that Thor was a collaboration between Kirby and Lee. Even Lieber admitted he
had no idea whether Kirby and Lee discussed Thor before he was assigned to write the
first script. Tob. Dec., Ex. E at 80:23-81:4; 81:14-82:25; WW at 13 (“When such
fabulous features as the Fantatsic Four, the Mighty Thor, and the incredible Hulk were
just a-borning, it was good ol’ Jack[] with whom I huddled, harangued and hassled until
the characters were designed…”); Ex. RR; Ex. DDD at 4; Ex. MM at 151 (“Certainly 90
percent of the ‘Tales of Asgard’ stories were Jack’s plots, and they were great! He
certainly knew more about Norse mythology that I ever did (or at least he enjoyed
making it up!)”); Ex. C at 56:7-21; 57:14-58:10; Ex. EEE at 95 (“What prompted you to
reinvent Thor for the comics in 1962? Jack Kirby: Well, I knew the Thor legends very
well, but I wanted to modernize them.”); Ex. D at 203:18-204:14; 233:13-234:9; Ex. G at
50:14-52:14; 83:21-84:25; 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.’”); Ev. Dec. Ex. A at 16; Mor. Dec. Ex. A at 11-12.
89. Plaintiffs’ Statement: Thor first appeared in Journey Into Mystery, Vol.
1, No. 83, published with a cover date of August 1962. Bard Decl. Ex. 1 at
MARVEL0001182.
Response: Admitted.
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90. Plaintiffs’ Statement: In 1962, Lee came up with the idea and name for
Spider-Man, a realistic and nerdy teenage hero who had the power to stick to walls and
ceilings like an insect. Initially, Lee assigned the artwork for the Spider-Man story to
Kirby. However, when Lee saw that Kirby’s initial pencil drawings depicted an overly
muscular and heroic-looking character and did not capture his expectations for the
appearance of the hero, Lee paid Kirby for his work, took him off the comic book and
replaced him with artist Steve Ditko. Singer Decl. Ex. 11, Track 11; Lee Dep. at 37:3-
38:3, 74:6-75:5, 75:9-23, 376:3-15; see also Evanier Dep. (11/9/10) at 133:13-20;
Morrow Dep. at 236:11-16, 237:5-19; Singer Decl. Ex. 33 at MARVEL0017803-04
(“But alas and alack, when I saw the first few pages that Jack had drawn, I realized we
had a problem. They were too good. Try as he might, he had been apparently unable to
deglamorize Spidey enough. . . I realized it might be better to let someone else try Spider-
Man . . . I asked Steve [Ditko] to draw Spider-Man. And he did. And the rest is history.”).
Response: Disputed. Jack Kirby was involved in the original creation of
Spiderman, which was based upon a character called The Fly that Kirby and Joe Simon
had developed in the late 1950s. This character was based on an earlier Kirby character
called the Silver Spider. Ev. Dec. Ex. A at 16-17; Mor. Dec., Ex. A at 12; Tob Dec., Ex.
J at 320:4-322:1; Ex. D at 198:7-199:13; Ex. C at 62:8-23; 234:22-235:19. Jack Kirby
drew the cover of Amazing Fantasy No. 15. Ev. Dec., Ex. B at 126-127. In the past Stan
Lee repeatedly stated he was unsure of whether Ditko or Kirby came up with Spider-
Man’s iconic costume. Tob. Dec., Ex. J at 320:4-325:7; Ex. G at 97:18-98:13; 103:9-19;
140:14-23; Ex. RR; Singer Dec., Ex. 53 at 36 (“To this day, I don’t know who made up
the Spider-Man costume. It might have been Kirby who did those first few pages and
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Ditko might have copied Kirby’s costume. Or Ditko might have just made up the
costume and disregarded what Kirby did. I can’t remember.”).
91. Plaintiffs’ Statement: Lee assigned Kirby to draw the cover of the first
appearance of Spider-Man in Amazing Fantasy. Kirby drew the cover for the first
appearance of Spider-Man after the comic book art was completed. Lee Dep. at 38:23-
39:5.
92. Plaintiffs’ Statement: The first appearance of Spider-Man was in
Amazing Fantasy, Vol. 1, No. 15, published with a cover date of September 1962. Bard
Decl. Ex. 1 at MARVEL0000988.
Response: Admitted.
93. Plaintiffs’ Statement: The Spider-Man character was so 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.
Response: Admitted.
94. Plaintiffs’ Statement: In early 1963, Lee came up with the idea for the
character Iron Man, who was a hero in an incredibly powerful suit of metal armor; he was
a millionaire playboy but was also tragically vulnerable due to an injury to his heart.
After conceiving of the plot and characters, Lee assigned Larry Lieber to write a detailed
panel-by-panel script for the first comic book to feature Iron Man; Larry Lieber
conceived of the hero’s “civilian name,” Anthony Stark. Singer Decl. Ex. 11, Track 13;
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Lee Dep. at 84:24-85:24, 86:6-87:8; Lieber Dep. at 23:22-24:7, 24:19- 25:25, 48:25-49:4;
see also Evanier Dep. (12/6/10) at 190:2-9, 190:15-22, 246:5-7; Morrow Dep.
at 260:16-261:7.
Response: Disputed. Kirby was the first to design Iron Man’s costume,
which he did for the cover of Tales of Suspense No. 39. Tob. Dec., Ex. U at 99 (“‘[Kirby]
designed the costume,’ says [Don] Heck, ‘because he was doing the cover. The covers
were always always done first…’”); Ex. RR ; Ex. B at 74:15-75:1; Ex. C at 245:12-15;
246:11-248:7; Ex. D at 259:24-260:6; 260:16-261:7; 277:23-278:15; Ex. E at 88:6-89:2;
92:4-9; Ex. G at 108:13-18; Ex. TT at 181 (Jack Kirby: “Anyway, I laid out the first Iron
Man and plotted it and Don Heck finished it up.”).
95. Plaintiffs’ Statement: Lee then assigned artist Don Heck to do the
artwork based on Lieber’s script. Lee Dep. at 36:19-23, 85:21-86:5; Lieber Dep. at 26:2-
11. Lee assigned Kirby to draw the cover of the first issue to feature the Iron Man
character. Lee Dep. at 36:25-37:2, 85:25-86:5.
96. Plaintiffs’ Statement: The Iron Man character first appeared in Tales of
Suspense, Vol. 1, No. 39, published with a cover date of March 1963. Bard Decl. Ex. 1 at
MARVEL0001452.
Response: Admitted.
97. Plaintiffs’ Statement: In 1963, Martin Goodman asked Lee to create
another team of superheroes. Lee conceived of The X-Men, a team of mutants who were
born with their superpowers. After Goodman directed Lee to revise the original name he
had made up – The Mutants – Lee decided on the name The X-Men, based on the main
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character Professor Xavier and the fact that the heroes had “extra” powers. With the new
name, Goodman approved of the project. Singer Decl. Ex. 11, Track 15; Lee Dep. at
92:25-94:23. Lee assigned the artwork for the new book to Kirby.Lee Dep. at 94:24-95:4.
Response: Disputed. Jack Kirby co-created the X-men with Stan Lee.
Mor. Dec., Ex. A at 10; Ev. Dec., Ex. A at 15; Tob. Dec. Ex. WW at 14 (“No sooner did I
discuss the basic premise with Jack than we were off and running. We decided to create
two groups of mutants, one evil and the other good. One would be eternally striving to
subjugate mankind, and the other would be ceaselessly battling to protect the human
race.”); Ex. U at 111-112 (“Once again, Jack Kirby joined Lee as co-creator of the comic
book. ‘Jack was the best guy to work with you could imagine,’ says Lee. ‘Any idea I
would give him, he could make it better. When Jack brought in the first story, it opened
with all the X-men fighting in the place they called The Danger Room, where they were
trained. That was Jack’s idea. And it was the most brilliant opening because it started
with action and showed all their abilities immediately.’”); Ex. J at 316:22-317:22;
317:25-319:5.; Ex. G at 129:9-131:19; 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.’”).
98. Plaintiffs’ Statement: The first issue of The X-Men, Vol. 1, No. 1 was
published with a cover date of September 1963. Bard Decl. Ex. 1 at MARVEL0001654.
Response: Admitted.
99. Plaintiffs’ Statement: In 1963, Lee created yet another team of
superheroes, in which existing popular superheroes on Marvel’s roster would gather
together to become a fighting team called The Avengers. After he had conceived of the
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initial plot and had obtained Goodman’s approval, Lee assigned the first issue of The
Avengers to Kirby to draw. Lee Dep. at 96:19-98:9.
Response: Disputed.Jack Kirby co-created the Avengers with Stan Lee.
Mor. Dec., Ex. A at 10; Ev. Dec., Ex. A at 15; Ex. U (Five decades) at 108; Ev. Dec., Ex.
B at 131; 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.’”).
100. Plaintiffs’ Statement: The first issue of The Avengers, Vol. 1, No. 1, was
published with a cover date of September 1963. Bard Decl. Ex. 1 at MARVEL0001020.
Response: Admitted.
101. Plaintiffs’ Statement: Lee initially conceived of the idea of Ant-Man as a
miniature hero. After Goodman “okayed” the project, Lee assigned the story to Larry
Lieber, who wrote a detailed panel-by-panel script for the first comic book to feature
Ant-Man, and also named the hero’s alter ego, Henry Pym. After the script was
completed, it was assigned to Jack Kirby, who drew the pencil artwork for the first issue.
Lee Dep. at 98:14-99:15, 99:21-24; Lieber Dep. at 27:11- 28:9, 28:13-23, 48:25-49:4.
Response: Disputed. Jack Kirby co-created the Ant-Man with Stan Lee.
Ev. Dec., Ex. A at 15; Tob. Dec., Ex. E at 91:23-92:3; Ex. G at 68:23-69:14; Ex. U at 97-
98; Ex. GGG at 139; Ex. RR; Ev. Dec., Ex. B at 128 (“…Tales to Astonish got its first
super hero feature in 1962: Ant-Man, a shrinking super-hero…Kirby drew the first
stories…); 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
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Fantastic Four,’ ‘The Mighty Thor,’ ‘The Incredible Hulk,’ ‘X-Men’ and ‘The
Avengers.’”
102. Plaintiffs’ Statement: The first appearance of Ant-Man and his 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.
Response: Admitted.
103. Plaintiffs’ Statement: In 1963, Lee decided to reintroduce a popular
Marvel character from a war series called Sgt. Fury and His Howling Commandos, which
Marvel had discontinued years earlier. Lee assigned the artwork for the new series to
Kirby because he thought it was “right up [Kirby’s] alley” and oversaw the creation of
the comic book under the Marvel Method. Lee Dep. at 95:13-96:18; see also Morrow
Dep. at 201:2-6.
Response: Disputed. Largely based on his own combat experience in
World War II, Jack Kirby brought Nick Fury to Marvel. Mor Dec. Ex. A at 12-13; Ev.
Dec. Ex. A at 15; Ex. B at 127-131 (“From 1963 to 1964, Jack drew eight of the first
thirteen issues, tapping into his endless cache of World War II memories and fashioning
the lead character, the cigar chomping Sgt. Nick Fury, on himself…[Kirby] explained,
“Nick Fury is how I wish others saw me. [The Thing] is probably closer to the way they
do see me.”); Ex. RR; Ex. HHH at 31; Ex. C at 58:20-59:8; Ex. D at 199:14-200:25; Ex.
G at 74:17-75:13; 124:4-12; 126:4-9.
104. Plaintiffs’ Statement: The Nick Fury character was first 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.
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Response: Admitted.
105. Plaintiffs’ Statement: Lee created The Rawhide Kid for Goodman
because Goodman loved westerns. Lee decided on the title because Goodman liked
names that involved “the Kid.” Lee wrote the first issue of The Rawhide Kid, and Kirby
was assigned to draw the pencils. After Kirby moved on to drawing superhero books, the
writing and artwork were reassigned to Larry Lieber. Lee Dep. at 99:25-100:24; Lieber
Dep. at 33:9-18.
Response: Disputed. WhileKirby did not create the Rawhide Kid character, he
substantially “revamped” it in 1960. Ev. Dec., Ex. B at 112.
106. Plaintiffs’ Statement: The first issue of The Rawhide Kid 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.
Response: Admitted.
107. Plaintiffs’ Statement: In 1966, Lee conceived of a new super-villain
called Galactus to be featured The Fantastic Four. Lee told Kirby his idea and assigned
him to draw the issue. In the course of the assignment and fleshing out Lee’s ideas, Kirby
inserted a new character, a silver-toned figure on a flying surfboard, who would serve as
Galactus’s herald in space. Lee approved the addition and included the character, which
he 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.
Response: Disputed. See Response to Statement No. 80
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108. Plaintiffs’ Statement: The Silver Surfer did not appear until Fantastic
Four, Issue No. 48 in 1966, so the character is not subject to the Termination Notices. See
Singer Decl. Ex. 16.
Response: Admitted. See also Response to Statement No. 80
109. Plaintiffs’ Statement: Susan Kirby was born on December 6, 1945 and
was between the ages of approximately thirteen and eighteen during the years 1958 to
1963. S. Kirby Dep. at 9:10-11.
Response: Admitted.
110. Plaintiffs’ Statement: Neal Kirby was born on May 25, 1948 and was
between the ages of approximately ten and fifteen during the years 1958 to 1963. N.
Kirby Dep. at 7:18-19.
Response: Admitted.
111. Plaintiffs’ Statement: Barbara Kirby was born on November 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.
Response: Admitted.
112. Plaintiffs’ Statement: Lisa Kirby was born on September 7, 1960 and
was approximately three years old in 1963. L. Kirby Dep. at 6:2-3.
Response: Admitted.
113. Plaintiffs’ Statement: None of the Defendants was present during any
meeting between Kirby and Lee, and none of the Defendants has any personal knowledge
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regarding the substance of any meetings or discussions that Kirby had with Lee or any
other non-family member about the Works or any of the work he did for Marvel. N.
Kirby Dep. at 55:18-56:19, 57:8-17, 77:2-6, 97:5-8, 117:10-15; L. Kirby Dep. at 96:14-
18; S. Kirby Dep. at 10:25-11:8.
Response: Admitted that neither Lisa Kirby nor Neal Kirby personally
attended a meeting between Stan Lee and Jack Kirby, otherwise disputed to the extent
that this is not relevant to nor dispositive of whether or not the subject works by Jack
Kirby were owned at inception by Marvel as “works made for hire” or purchased by
114. Plaintiffs’ Statement: Defendants have no personal knowledge as to
whether any of the characters to which Kirby contributed were created pursuant to
specific assignments or commissions from Marvel, or whether any of the stories to which
Kirby contributed were the result of a collaboration between Kirby and Lee. N. Kirby
Dep. at 72:1-6, 169:8-18; S. Kirby Dep. at 27:3- 9, 76:17-23.
Response: Disputed to the extent that both Susan Kirby and Neal Kirby
testified to witnessing their father create characters in the basement of their home. Tob.
Dec., Ex. G at 50:14-52:14; 83:21-84:25; Ex. H at 9:15-10:18. Further disputed to the
extent that this is not relevant to nor dispositive of whether or not the subject works by
115. Plaintiffs’ Statement: Neal Kirby has no way of knowing whether Kirby
ever worked from a script or synopsis. Defendants did, however, acknowledge that Kirby
worked on deadlines and often would work 16-18 hours per day to meet those deadlines,
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and that he never worked on spec. N. Kirby Dep. at 91:16-25, 117:16-22, 127:25-128:5
(“My father didn’t do work on spec, he was getting paid by the page.”); S. Kirby Dep. at
52:4-14.
Response: Disputed. Neal Kirby testified he “never saw a script or
synopsis by his [father’s] drawing board.” Tob. Dec., Ex. G at 117:21; 118:13-17. Neal
Kirby testified that his father did pitch ideas on spec to Marvel: “Q: You have indicated
very clearly that your father never did work on Marvel on spec, correct? Neal Kirby: In
terms of – maybe I need to qualify that, okay? In terms of would my father have pitched
an idea , if you don’t mind my using the word ‘pitch,’ you know, met with somebody
else saying gee, I have this good idea for a character, you know, would you like to go for
it, that he would have done it you know. Definitely I would consider that coming up with
an idea and speculation.” Tob. Dec. Ex. G at 167:21-168:5; 233:15-234:5 (“Q: …[I]n the
instances where Marvel said it liked the idea and [Kirby] proceeded to do work, did you
consider that work to be on spec or not 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. Plaintiffs’ Statement: Neal Kirby has no information to dispute the fact
that Lee had discretion to, and routinely did, ignore the notes that Kirby would sometimes
make in the margin of his pencil drawings. N. Kirby Dep. at 218:15-219:5.
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Response: Disputed. Neal Kirby testified that his father provided margin
notes “to guide the person adding the dialogue in the balloons.” Tob. Dec., Ex. G at
218:19-25. Lee would consult and use margins notes provided by Kirby in published
Marvel comic books, both of which were available to Neal Kirby. Ev. Dec., Ex. A at 9-
10; Tob. Dec., Ex. D at 66:8-22; Ex. FF; Ex. GG at 192-199.
117. Plaintiffs’ Statement: Neal Kirby acknowledged that Stan Lee was “in
charge” of Kirby’s submission of artwork for publication. N. Kirby Dep. at 56:10-12.
Response: Disputed. This statement is not relevant to nor dispositive of
whether or not 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.
Further disputed to the extent Kirby was not legally “required to report to Lee and to
abide by his ‘marching orders’” as he had no contract with Marvel. Mor. Dec., Ex. A at
76:25-77:6; Ex. F at 194:11-21; 204:6-19; 204:24-205:15; Ex. J at 256:25-257:25; Ex. L
started with the intention to sell to Marvel, nor to revise material requested by Marvel..
Kirby was free to reject any of Marvel’s requests or to submit material that Marvel did
not request. See Opp. at 13-20. Ev. Dec. ¶ 17, 19, 20; Ex. B at 355-56 (Captain Glory);
Ex. C (Jack Kirby’s Gods portfolio), D (New Gods presentation pieces). Tob. Dec., Ex.
MM at 6 (“Some artists, such as Jack Kirby, need no plot at all. I mean I’ll just say to
Jack, ‘Let’s let the next villain be Dr. Doom’ … or I may not even say that. He may tell
me. And then he goes home and does it. He’s so good at plots, I’m sure he’s a thousand
times better than I. He just about makes up the plots for these stories.”),151; Ex. GG at
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193; 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.
118. Plaintiffs’ Statement: In their depositions, Defendants were unable to
identify any specific facts regarding the circumstances under which any of the Works
were created. N. Kirby Dep. at 64:10-20, 69:15-18, 97:13-17, 99:6-22, 104:4-17, 104:25-
105:7, 108:7-12, 108:25-109:2, 109:3- 11, 109:21-24, 111:19-112:18, 113:9-114:14,
117:23-118:7, 120:9-121:19, 126:13-127:18,128:14-18, 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 34:6-11, 92:15-94:3,
94:18-95:3, 95:8-17, 99:22-23, 103:24-104:5, 107:20-108:23, 109:5-8, 113:3-6, 113:17-
24; S. Kirby Dep. at 28:11-17, 43:19-22, 59:24-60:4, 64:21-25.
Response: Disputed. Both Neal Kirby and Susan Kirby testified about the
creation of works by their father, Jack Kirby. Tob. Dec., Ex. G at 50:14-52:14; 74:9-
75:13; 83:21-84:25; 97:18-98:13; 103:9-19; 124:4-12; 126:4-9; 129:9-131:19; 140:14-23;
Ex. H at 9:15-10:18.
119. Plaintiffs’ Statement: Neal Kirby did no research prior to serving the
Termination Notices regarding whether any of the Works were in fact created or co-
created by Kirby. N. Kirby Dep. at 194:14-195:1.
Response: Disputed. Neal Kirby testified that he did research on this
subject in the very testimony cited by Marvel: “Q: Did you do any research to determine
whether any of the characters that were the subject of your notices were in fact created by
your father or co-created by him? Neal: I did some. Q: What research did you do? Neal:
Oh, just some with books that I have or a little talking with my sister and so on.” Tob.
Dec., Ex. G at 194:14-195:12.
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120. Plaintiffs’ Statement: Lisa Kirby has no personal knowledge regarding
the circumstances of the creation of any characters to which Kirby contributed while
working for Marvel, and she was too young at the time to have any personal knowledge
of the relevant facts. L. Kirby Dep. at 34:6-11, 92:15-94:3, 94:18-95:3, 95:8-17, 99:22-
23.
Response: Disputed to the extent this statement is not relevant to nor
dispositive of whether or not the subject works by Jack Kirby were owned at inception by
by Marvel.
121. Plaintiffs’ Statement: Neal Kirby has no personal knowledge or
recollection of the circumstances under Kirby created any of the Works. N. Kirby Dep. at
64:10-20. Neal Kirby’s best recollection of the events concerning Kirby’s work are
outside the Time Period. Id. at 92:24-93:3.
Response: Disputed.Neal Kirby testified about the creation of works by
his father. Tob. Dec., Ex. G at 50:14-52:14; 74:9-75:13; 83:21-84:25; 97:18-98:13;
103:9-19; 124:4-12; 126:4-9; 129:9-131:19; 140:14-23.
122. Plaintiffs’ Statement: Defendants can point to no evidence to dispute
Lee’s testimony that he, and not Kirby, conceived of The Fantastic Four. N. Kirby Dep.
at 117:23-118:7, 120:9-121:19; S. Kirby Dep. at 28:11-17.
Response: Disputed. Neal Kirby testified that his father created the
Fantastic Four in the very testimony cited by Marvel: “Q: What information, if any, do
you have concerning the creation of the Fantastic Four? Neal: In discussions with my
father The Fantastic Four basically was derivative of the, from what he told me, basically
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he came up with the idea just as a derivative from the Challengers of the Unknown that
he had done several years earlier. Q: So your father told you that The Fantastic Four was
his idea? Neal: Yes.” Tob. Dec., Ex. G at 117:23-118:7. See also Response to Statement
No. 80.
123. Plaintiffs’ Statement: Neal Kirby has no specific firsthand knowledge
regarding the circumstances surrounding the creation of Iron Man and his only basis to
dispute Stan Lee’s statements in this regard is speculation. N. Kirby Dep. at 108:7-12,
108:25-109:2, 109:21-24, 109:3-11, 111:19- 112:4. Neal Kirby knows nothing about
what other creative forces might have existed at Marvel during the Time Period and
Kirby never told Neal that he (Kirby) was the sole creative force at Marvel. Id. at 111:25-
112:18, 113:9-114:14.
Response: Disputed. Neal Kirby testified about his father’s creation of
Iron Man’s costume. Tob. Dec., Ex. G at 108:13-18. See also Response to Statement No.
94.
124. Plaintiffs’ Statement: None of the Defendants has any specific
information on the circumstances surrounding the creation of The Incredible Hulk. L.
Kirby Dep. at 107:20-108:2; N. Kirby Dep. at 141:20-142:1, 142:6-17; S. Kirby Dep. at
43:19-22.
dispositive of whether the subject works by Jack Kirby were owned at inception by
by Marvel. See also Response to Statement No. 85.
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125. Plaintiffs’ Statement: Neither Neal nor Lisa Kirby has any specific
information on the circumstances surrounding the creation of Spider-Man, although Neal
Kirby has acknowledged that Kirby did not contribute artwork to the published first issue
of Spider-Man. L. Kirby Dep. at 103:24-104:5; N. Kirby Dep. at 97:13-17, 99:6-22. Neal
Kirby can only “guess” that Kirby conceived of Spider-Man because he was not privy to
what might have been discussed between Lee and Kirby with respect to Spider-Man or
any other character. N. Kirby Dep. at 104:4-17, 104:25-105:7.
Response: Disputed. Neal Kirby testified his father drew the cover to
Amazing Fantasy No. 15, the first appearance of Spider-Man. Tob. Dec., Ex. G at 98:1-
13. Further disputed to the extent these statements are not relevant to nor dispositive of
whether or not 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 also Response to Statement No. 90.
126. Plaintiffs’ Statement: Lisa Kirby has admitted that Spider-Man was not
drawn by Kirby, and has noted that she has “heard [her] mother correcting people if they
alluded to that fact.” Singer Decl. Ex. 55 at MARVEL0017407. Defendant Susan Kirby
also acknowledged that the Spider-Man character “is not [Kirby’s].” S. Kirby Dep. at
41:25-42:6.
dispositive of whether the subject works by Jack Kirby were owned at inception by
by Marvel, nor relevant to whether Jack Kirby is the author or co-author of material on
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which Spider-Man is derived and the author of the first Spider-Man cover to the first
published comic book, published by Marvel, featuring Spider-Man .
127. Plaintiffs’ Statement: Mark Evanier, proffered as both a fact 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.
Response: Admitted.
128. Plaintiffs’ Statement: Evanier also has commented that Kirby had a
notoriously poor memory. Evanier Dep. (11/9/10) at 130:9-131:4; Singer Decl. Ex. 57 at
MARVEL0017057.
Response: Disputed. Evanier did not say that Kirby had a “notoriously
poor memory” but instead that his mind “wander[ed] in nineteen directions at once” and
that Jack actually had “crystal clear” recollections from thirty years before. Singer Decl.,
Ex. 57 at MARVEL17057. Evanier further noted that “Stan Lee’s memory is also, by his
own admission, poor.” Id.
129. Plaintiffs’ Statement: Neither Neal nor Lisa Kirby has any knowledge
regarding the circumstances of the creation of the Thor character. N. Kirby Dep. at
126:25-127:18; L. Kirby Dep. at 108:3-23.
Response: Disputed. Neal Kirby testified about his father’s involvement
in the creation of the Thor character. Ex. G at 50:14-52:14; 83:21-84:25. See also
Response to Statement No. 88.
130. Plaintiffs’ Statement: Lisa Kirby has no specific information on the
circumstances surrounding the creation of The X-Men. L. Kirby Dep. at 109:5-8. Neal
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Kirby’s only basis to dispute Stan Lee’s testimony regarding the creation of The X-Men is
that he has no reason to disbelieve his father. N. Kirby Dep. at 130:12-131:2.
Response: Disputed. Neal Kirby testified that he witnessed his father
drawing X-Men No. 1 as well as talked to jim about it. Tob. Dec., Ex. G at 129:9-
131:19. See also Response to Statement No. 97.
131. Plaintiffs’ Statement: Neither Lisa nor Neal Kirby has any specific
information on the circumstances surrounding the creation of Nick Fury. L. Kirby Dep. at
113:3-6; N. Kirby Dep. at 126:13-24.
Response: Disputed. Neal Kirby testified about his father’s creation of
Nick Fury. Tob. Dec., Ex. G at 74:9-75:13; 124:4-12; 126:4-9. See also Response to
Statement No. 103.
information on the circumstances surrounding the creation of The Rawhide Kid. L. Kirby
Dep. at 113:17-24; N. Kirby Dep. at 137:17-23; 139:10-13; S. Kirby Dep. at 64:21-25.
by Marvel.
information regarding the timing or circumstances under which Ant-Man was created,
and neither Neal nor Susan Kirby even knows that Ant-Man was a character published by
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Marvel. N. Kirby Dep. at 69:15-18, 128:14-18; L. Kirby Dep. at 108:24-109:4; S. Kirby
Dep. at 59:24-60:4.
by Marvel. See also Response to Statement No. 10.
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.
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.
136. In 1939, Martin Goodman founded Marvel’s predecessor, Timely
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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. 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.
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.
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.
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.
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.
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.
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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.
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.
144. In 1956, Kirby began to submit freelance work to Timely/Marvel. Ev.
Dec., Ex. A at 9; Mor. Dec., Ex. A at 7.
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 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.
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,
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14; Adams Dec. at ¶¶ 6-14; Ster. Dec. at ¶¶ 8-14; Sinn. Dec. at ¶¶ 9-15; Ayers Dec. at ¶¶
8-14.
147. The first written agreement between Marvel and Kirby was fully executed
on June 5, 1972. Tob Dec., Ex. L ¶¶1, 3; Ex. M.
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
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.
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.
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.
151. Between 1958-1963, Kirby did not receive any health benefits or
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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 428; Colan Dec. at ¶ 8; Adams Dec.
at ¶ 10; Ster. Dec. at ¶ 10; Sinn. Dec. at ¶ 9; Ayers Dec. at ¶ 10.
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.
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.
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;
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72:22-73:8; 73:11-74:5; 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.
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.
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.
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.
158. The earliest checks to a freelancer with a legend on the back,
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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 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.
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.
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.
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
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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.
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.
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., 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 ¶¶
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13-14; Ayers Dec. at ¶ 15.
Dated: March 25, 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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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: March 25, 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

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Marc Toberoff (MT 4862)

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

Kirby, Neal L. Kirby and Susan N. Kirby
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
MARVEL WORLDWIDE, INC.,

MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC,
Civil Action No. 10-141 (CM) (KF)
Plaintiffs,
[Hon. Colleen McMahon]
-against-
[ECF Case]
NEAL L. KIRBY and SUSAN N. KIRBY,
Defendants.
CONFIDENTIAL DECLARATION OF GENE COLAN IN SUPPORT OF

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS'
OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
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I, Gene Colan, hereby declare as follows:
1. I am familiar with the facts set forth below and make this declaration in
support of defendants' motion for summary judgment and defendants' opposition to
plaintiffs' 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 have been a comic book artist for the past six decades. I have drawn all
sorts of comic books - superhero, W estems, horror and romance books. I am perhaps
most well known for drawing the artwork for almost all of the Daredevil comic books
from issue no. 20 in September 1966 through issue no. 100 in June 1973; for the entire
70-issue run of The Tomb of Dracula from April 1972 through August 1979, and for
many issues of the Howard the Duck title, from issue no. 4 in July 1976 to issue no. 31 in
May 1979.
3. In 2008, the Cartoon Art Museum in San Francisco honored me with the
Sparky Award, named in honor of Peanuts creator Charles "Sparky" Schulz. In
conjunction with the award, the museum presented the exhibit "Colan: Visions of a Man
without Fear" from November 15, 2008 to March 15, 2009. The Comic Art Professional
Society presented me with its Sergio Award in October of2009. I also was inducted into
the Will Eisner Comic Book Hall of Fame in 2005. I was also nominated in 1975 by the
Academy of Comic Book Arts for the Shazam Award as Best Penciller (Dramatic
Category); The Tomb of Dracula was also nominated that year for the Shazam Award for
Best Continuing Feature. I also was nominated in 1979 and 1980 for the Eagle Award,
given by comic book fans in the United Kingdom, for Favorite Comicbook Artist (US).
4. I know that Marvel preferred to purchase artwork from freelancers rather
than to hire staff artists. I was hired in 1946 as a staff artist by Timely Comics which
later became Atlas Comics and then Marvel Comics. While on staff, I drew The Human
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Torch (July 1948), Complete Mystery comic book (August 1948), the gangster comic
books All True Crime Cases (April 1948) and Lawbreakers Always Lose (Spring 1948),
and other titles on an anonymous basis. But in the late 1940s, I and virtually all the other
Timely staff artists were let go. After that, I sold artwork on a freelance basis to Timely,
to National Comics, which later became DC Comics, and to other companies too.
5. To Timely!Marvel I sold artwork published in Adventures into Terror
(August 1951 to March 1954), Battle (August 1952 to August 1958), Battle Action
(August 1952 to August 1957), Battleground (May 1956 to September 1957), Gunsmoke
Western (October 1956 to August 1957, September 1962 and May 1963), Journey into
Mystery (March 1955, November 1956, June 1962 and July 1962), Marines in Battle
(December 1955 to February 1956 and April 1957 to September 1958), Strange Tales
(July 1952 to October 1952, May 1953 to March 1954, December 1956 to July 1957,
February 1962 to November 1962), the Sub-Mariner feature in Tales to Astonish
(February 1962 and August 1965 to November 1966), the Iron Man feature in Tales of
Suspense (March 1963 and January 1966 to March 1968), and Doctor Strange
(September 1968 to November 1969 and February 1975 to June 1977).
6. To National/DC I sold freelance artwork for many titles, including
Hopalong Cassidy (February 1954 to April1957), All-American Men of War (February
1953 to February 1954, March 1957 and November 1965 to February 1966), Falling in
Love (February 1965 to November 1966), Girls' Romances (June 1964 to March 1967),
Our Army at War (December 1952 to February 1954), and Secret Hearts (December
1963 to October 1967). I also sold artwork to such publishers as St. John Publishers,
Charlton Comics and Dell Comics in the 1950's and 1960's.
7. After I had a falling out with Marvel editor Jim Shooter, I sold stories to
DC Comics for Batman (October 1981 to September 1982), Detective Comics (January
1982 to October 1986), and Wonder Woman (February 1982 to July 1963).
8. I paid my own way as a freelancer. I did not work in Marvel's or DC's
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offices, but out of my own space. I paid my own overhead, and I bought the art supplies
with which I created my freelance artwork, and neither Marvel nor DC reimbursed me for
any of these costs.
9. I did not have a written contract with Marvel until 197 5. Before that in the
1950's and 1960's Marvel just paid me on a per-page basis for the artwork it accepted
and purchased. On the occasions when Marvel requested that I change or redraw any
pages, I did so in order that Marvel would accept the artwork, and without any additional
compensation for my time. Marvel only paid for the final freelance work it accepted and
purchased for publication and did not pay for rejected material or material it wanted you
to revise.
10. In March 22, 1975 I entered into an employment agreement for the first
time with Marvel, a true copy of which is attached as Exhibit "A." The employment
agreement had a three year term, and would automatically be renewed afterwards year to
year unless terminated by either party. In contrast to my prior open-ended relationship in
which neither I nor Marvel were obligated to one another, in this employment agreement
I was obligated to provide 396 pages of penciled artwork at approximately 33 pages per
month, and I agreed not to provide any comic book or magazine material to anyone other
than Marvel. Marvel was obligated to pay for this minimum supply of artwork on a bi-
weekly basis at an agreed starting page rate of$53, and for any pages which exceeded
this minimum at the same rate. I was also eligible for and received health benefits under
this agreement, unlike before.
11. Significantly, this agreement states that "WRITER/ARTIST will make all
changes and rewrite/refrain all Material as reasonably required by the Publisher of
Marvel without charge (that is, rewrites/redrawing and changes shall not constitute pages
for purposes of computing re fee payable hereunder)." This carried forward Marvel's
customary practice regarding redraws.
12. I didn't think that the artwork I created as a freelancer in the 1950's and
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1960's could be called "work for hire." Nobody at Marvel ever told me that they
considered my artwork to be "work for hire" in the 1950's or 1960's. At that time I
understood that Marvel would own the artwork I submitted once they accepted it because
I was selling it to Marvel. I remember that my Marvel checks in the 1960s had writing
on the back, but this did not state that my artwork was "work for hire." It stated that I
was granting or transferring all my rights in my artwork to Marvel.
13. Even as late as my 1975 agreement with Marvel, the agreement makes no
mention of Marvel owning artwork as "work for hire." On the contrary, it states, like the
language on the back of Marvel's checks, that the parties understanding is that
"WRITER/ARTIST grants to Marvel the sole and exclusive right to" the artwork.
14. I remember that it was not until the late 1970's that the words "work for
hire" and "work made for hire" were inserted in the statement on the back ofMarvel's
checks. I think Marvel began calling everything "work for hire" starting in the late
1970's. For instance in 1978, Marvel editor Jim Shooter insisted that everyone suddenly
sign a form "agreement" issued by Marvel which said that all artwork and materials
created in the past or in the future are to be considered a "work made for hire." I was
required to sign the form ifl wanted to continue to work with Marvel. Attached as
Exhibit "B" is a true copy of the "work for hire" form I signed on May 30, 1978.
15. I also recall that Marvel suddenly began returning original freelance
artwork in the late 1970's, early 1980's because, as I understood it, they were very
concerned that they would otherwise owe a tremendous amount of New York sales tax on
all the freelance artwork they had purchased over the years.
16. Because I had very little to show for my enormous creative contribution to
Marvel since 1946, and no financial security whatsoever, not even a small pension, on
April28, 2008, I wrote a letter to Marvel's editor Joe Quesada requesting a substantial
retirement package. My health was waning and I was in desperate need of financial aid.
A true copy of this letter is attached as Exhibit "C." Marvel agreed to pay me only 5% of
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the retirement sum I requested, and insisted that I must sign a lengthy additional
agreement drafted by Marvel's attorneys, before it would contribute anything to my
retirement needs. Even though I had not contested Marvel's ownership of all rights in my
material, assigned to it so long ago, and even though I had signed Marvel's mandatory
retroactive "work for hire" form in 1978 (Exhibit B); Marvel still found it necessary to
repeat in this agreement that everything I had created since 1946, that Marvel published,
was "work for hire." A copy of this agreement dated May 31, 2008 is attached hereto as
Exhibit "D."
I declare under penalty of perjury that to the best of my knowledge the
foregoing is true and correct.
Dated: Marc~!z..,_, 2011

Gene Colan
5 JA2151
CERTIFICATE OF SERVICE
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 8

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Case 11-3333, Document 79, 01/26/2012, 509519, Page1 of 205

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME VIII OF X

TOBEROFF & ASSOCIATES, P.C.

CASE NO. 11-3333

Marvel Characters, Incorporated, Marvel Worldwide, Incorporated,

APPELLANTS’ JOINT APPENDIX, VOLUME VIII OF X

TOBEROFF & ASSOCIATES, P.C.

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JACK KIRBY: A BY-THE-MONTH CHRONOLOGY

Link to: 1938-1949 • 1950-1959 • 1960-1964 • 1965-1969 • 1970-1979 •

This chronology covers the sequential timeline of the original publication of

Each era of Jack's work is chronicled on seperate pages. Following is the

Jan 1950 (15)

Feb 1950 (29)

Mar 1950 (27)

Apr 1950 (23)

May 1950 (29)

June 1950 (18)

July 1950 (18)

Aug 1950 (25+)

Sep 1950 (43)

Oct 1950 (72)

Nov 1950 (19)

Dec 1950 (77)

Jan 1951 (25)

Feb 1951 (70)

Mar 1951 (16)

Apr 1951 (46)

May 1951 (23)

June 1951 (27)

July 1951 (14)

Aug 1951 (15.5)

Sep 1951 (31)

Oct 1951 (19)

Nov 1951 (10.5)

Dec 1951 (11)

Jan 1952 (12.5)

Feb 1952 (13)

Mar 1952 (25.5)

Apr 1952 (15)

May 1952 (10.5)