Honoring A Fallen King, Part 3

What of the Wings of the House That Steve Built?

Bear with me, now, as we pursue the meat of the matter—creatively, legally, morally, ethically.

Let’s table conjecture for a time, and just talk about facts—or, at least, one set of facts as set out by two co-creators of a number of comicbook characters.

What goes into co-creating a character, when a writer and artist collaborate?

Taking the first of two calculated risks for this single post, let me take the plunge and offer two examples from my own personal experience that seem relevant, especially since they were characters co-created in 1992 to quite specifically echo and honor the Jack Kirby/Stan Lee and Steve Ditko/Stan Lee creations of 1962–1963 (along with a few favorite characters of that era by other co-creators, and from other publishers).

Bear with my seeming coy, however, since the prominent co-creator of these characters has formally insisted his name never be cited, his credit never again lettered or printed.

Funny folks, these creators.

As with all creator rights, I honor and defend his right; hence, his name will never appear in conjunction with these characters again in any venue I have control of, until such time as he either changes his mind, or they cease to appear in any media, or such time as I or my heirs are dead and gone.

Let me also add that I’ve decided to introduce this material because both of these characters are part of a legally-settled division of co-created characters/properties. Both are in fact characters that were legally deeded and assigned to the artist co-creator by the co-creator quite consciously in Stan Lee‘s seat—the writer, who in this scenario was also satirically embracing the “Stan Lee” persona with intent to evoke and provoke fond memories and not-so-fond memories for comics fans of the 1990s.

These are characters I have fully and legally owned since 1998 because once it became clear the 1992–1993 team could no longer function, and the property as it had existed in 1993 could no longer be built upon, exploited, extended, reprinted, or in any way continue to “live” as a creative property co-owned by its original co-creators, I demanded the original co-creative team deal with the legal division of the property. After initial reluctance, the entire team (or legal representative, in my case, since I wasn’t permitted to speak to or communicate with the writer), the writer insisted that I should and must own these three (and their respective supporting characters/titles/concepts). We all respected his wishes in this regard, and we all co-signed the legal separation of properties.

______

In 1992, I co-created a handful of characters with he-who-must-not-be-named. In the case of two of those characters, I took a major hand in determining, as artist, what they ultimately would look like, and “who” these characters would be.

First off, consider N-Man.

The only instruction I was given by N-Man‘s co-creator was that he was the result of a fusion of vertebrate man and invertebrate (of an undetermined species, at that time), and, literally, “he should look good coming through a wall.”

Here, via the original N-Man ashcan (1992), are excerpts from my sketchbooks with my hand-lettered brief of how N-Man became N-Man (note the blanks where the original co-creator’s name was erased, except for “Aff” in two captions):

So: the writer originally intended N-Man to be named H-Man; while I drew up design concepts, another artist in the threesome (Rick Veitch) also proposed a design that wasn’t used; the writer didn’t know what N-Man should look like, but knew what he shouldn’t look like; the writer finally suggested “he should look good coming through a wall.”

You see, this “character design stuff” isn’t so straightforward, folks. It rarely is.

With the Fury, I actually drew the co-creator’s original design concept, in rough form, just as it was described to me via telephone conversation in the summer of 1992. I quickly decided it just didn’t work. I took the initiative to propose something radically different from what the co-creator had pictured and suggested verbally, via phone conversation:

Now, I am not doing this (though I’ll no doubt be accused of doing so) to shamelessly promote my own work or characters amid this tragedy. I proffer these in this context because:

(a) we were consciously working in the classical so-called “Marvel Method,” primarily to save the writer time. Said writer/co-creator was in fact squeezing this planned 6-issue-plus-Giant-Annual project in between a crushing workload, and the “Marvel Method” indeed streamlines the timeframe so that the artist is dedicating more time and energy to the venture, freeing up the writer to work on multiple characters, titles, projects.

And, also because:

(b) with the exception of a single character—the Hypernaut—none of the characters we co-created ended up looking in any way like they had been described, unless you count “he should look good coming through a wall” a valid and cohesive verbal character design conception capable of being copyrighted, merchandized, and put to paper without input from another hand or two.

(In fact, back in 1998 while negotiating the legal division of all the characters, I initially refused Hypernaut, as that character was, in fact, wholly created visually as well as conceptually by the writer co-creator; at least I felt I had a legitimate stature with N-Man and the Fury as the member of the collaboration who had proposed and defined the final visual form of both characters. The writer/co-creator insisted absolutely upon the character being turned over to me, and I conceded, since I really wasn’t permitted to converse, much less argue the point.)

I would love to show you that original sketch by the Hypernaut co-creator, but since he has made it quite clear I cannot and should not ever name him or present his work in any context again regarding these characters/properties, I won’t.

Suffice to say, for those of you who own copies of the original 1992 ashcans from this project, the sketch did see print there, and be found there; and those of you who do will see and verify that Hypernaut, conceptually and visually, was completely the original creation of the writer. While there was no written description of Hypernaut, he topped that with a full-blown and detailed character sketch that was sufficiently detailed to serve as a proper model sheet!

Now, that is a writer who can claim to wholly creating a character, conceptually and visually.

Furthermore, I share this information and these graphics because

(c) Stan Lee, Marvel Comics, and John Byrne (among others) continue to cite a document that was reportedly discovered by writer Roger Stern in an old desk at Marvel‘s offices that is a written plot outline for Fantastic Four #1.

If this document is available in print or online, I’d love to see it, if only as a historian, scholar, fan, and teacher!

To the point, though:

Writing alone—sans any character sketches—is not by any stretch of the imagination the full creation of a character in comic books.

That FF #1 document would perhaps have been something that could have been registered or copyrighted, as a script or plot outline, in some venue (though likely not the U.S. Copyright Office, circa 1961 or 1962), but it does not invalidate Jack Kirby’s legal and moral claim to have been the co-creator of the Fantastic Four—creating the full and visual expression of Stan Lee‘s concept, and all that was in fact copyrighted by Marvel Comics—and it does not verify Stan Lee‘s claim to somehow being the primary (hence, the dominant) co-creator, legally, morally, or ethically.

Until and unless Marvel or Stan or somebody comes up with a Stan Lee sketch of the Marvel characters under dispute—one as fully realized as that the co-creator/writer of Hypernaut presented via FAX in 1992 to me, the co-creator and artist of Hypernaut—or so detailed a written description of all four characters that they would be drawn in the same way by more than one artist without significant deviation, I’m sorry, I just don’t buy the argument that Jack Kirby doesn’t have a legitimate co-creator claim, status, and moral, ethical, and legal claim to all that entails, which should also belong (by inheritance) to his rightful legal heirs.

Now, many have argued, in the plethora of online posts over the past week-and-a-half (has it only been that long?), we must take Stan Lee‘s deposition at face value.

They bristle and/or argue with anyone asserting some or any merit to the Jack Kirby family’s lawsuit, or anyone asserting the primary importance of Jack Kirby to the co-creation of the characters Kirby had a hand in creating and co-creating, almost always arriving at the dismissive phrases, “how do you know? Were you there?”

Leaving aside, then, the hard reality of Stan Lee‘s position—as a co-creator who has asserted himself as a primary creator of Marvel’s stable of character, titles, and concepts since at least 1964; as a co-creator historically and in fact enjoying favored status in that role since 1962; as a Marvel Comics employee rather than freelancer (Jack Kirby was never an employee, in fact; he was a freelancer, working outside the offices sans employee weekly payment or benefits, completing the majority if not all his work at home or in a studio he owned/rented/subsidized out of his own pocket, and delivering work to his editors at the Marvel offices); as a Marvel Comics figurehead of public renown since at least 1964 (and arguably as far back as 1947, as author of Secrets of Comics!); as a man paid annually by Marvel Comics to publicly and, since at least 1972, legally assert Marvel Comics as the sole legal proprietor of those characters, titles, concepts, and properties; as a paid shill of Marvel Comics in all its incarnations from 1947 to the present.

Leaving that aside—a leap the judge in the Kirby/Marvel judgment apparently made without much difficulty, given the court record—let’s hear from someone who WAS there.

First of all, let me make something clear, up front: I have not yet cleared permission to quote the following materials with either the author (Steve Ditko) or the editor/publisher (Robin Snyder).

I am in touch with Robin in hopes of doing so, but taking the plunge regardless; if this post is gone or truncated later this week, you’ll know why.

For now, though, on faith—let’s soldier on.

And please, pay attention.

Someone who was there, from the late 1950s until his departure from Marvel in the mid-1960s, is sharing his memories and perspective of key events; in fact, despite his reputation for being a recluse, Steve Ditko has shared them numerous times, for the record and in great detail from 2001—2004, if nowhere else… almost a full decade ago.

This is hardly news, folks.

And yet, it still is.

Don’t strain your eyes, please. You’ll be able to read the key passages below.

I offer the above just to verify what I say has existed now for quite some time does indeed exist; was in print; and is accessible to serious researchers, scholars, biographers (hint), and fans, in the permanent collections of the Center for Cartoon Studies Schulz Library (White River Junction, VT) and The Stephen R. Bissette Collection at HUIE Library at Henderson State University in Arkadelphia, Arkansas. I personally purchased triple sets of these issues years ago and donated them, in editor/publisher Robin Snyder‘s name, to both libraries. Those are the only two libraries I have such privileges with; surely, some other serious comics librarian is also a subscriber, and has ensured this historic text is preserved for future generations?

See my earlier posts about this material,

  • here
  • and

  • here,
  • both from 2008.

    I’ll post a quote or two:

    From the latter post: “For those who don’t have $200 to drop in these troubled economic times, allow me to steer you to the primary texts, depending upon your particular orientation to Ditko’s work:

    * The August 18, 1999 letter from Stan Lee (on Stan Lee Media letterhead) stating, “I would like to go on record with the following statement… I have always considered Steve Ditko to be Spider-Man’s co-creator,” (ellipses are Stan’s), was originally published in The Comics, November 1999, and is reprinted in Steve Ditko’s 32-Page Package, Volume 5 of the Ditko Package Series (May 2000; 2nd printing, December 2002), pg. 31. This saddle-stitched volume reprints Ditko’s comics-format discussion of creator’s rights that were originally published in various issues of The Comics, July 1999-March 2000.

    * The Avenging Mind is another 32-page (plus covers) saddle-stitched collection of Ditko’s essays and comics-format discussions of creator rights, these very specifically addressing Ditko’s body of creative work for Marvel Comics. These originally appeared in The Comics, various issues (2007), including Ditko’s written essay “Toyland” (from The Comics, September-October, 2007), prompted in part by Marvel’s Joe Quesada saying, “These toys are meant to be broken… they’re meant to be thrown against a wall, smashed together, and built back up again…” (Joe Quesada, interview at Newsarama.com, September 10, 2006).

    Even more essential to those with an interest in sorting out the various claims over the years proffered about who did what at Marvel in the early 1960s, Ditko’s “Roislecxe,” “Creator or Co-Creator?,” “He Giveth and He Taketh Away,” “Lifting and the Lifter,” “Revealing Styles,” “Martin Goodman/Stan Lee,” “They Are The…,” and “The Mark and the Stain” (pp. 8-28) spells it all out in rigorous detail. As Ditko says from the first sentence of this series of essays, these were written “in response to claims in Stan Lee and George Mair’s book, Excelsior! The Amazing Life of Stan Lee…”, and represents Ditko’s most public airing of his experiences at Marvel Comics and most intensive analysis of the various claims Stan Lee and others have made over the decades (as codified in Lee’s semi-autobiography).

    * Equally — more — essential are the back issues of The Comics featuring Ditko’s essays specifically addressing the Spider-Man years, which incorporate more insights on his work on The Hulk and Dr. Strange. …you need these issues — all of them, as this is Ditko’s own 15-chapter autobiographical account of his relationships at Marvel, with Stan Lee, Martin Goodman, Spider-Man and its supporting cast, and Ditko’s incredibly detailed introspective analysis of all that went down, under greater ethical scrutiny than anyone involved has ever offered. I can only compare this, really, to reading Dave Sim’s accounts of self-publishing. Why hasn’t anyone properly ballyhooed this incredible work? Let’s make up for that right now!

    Until Steve Ditko and Robin Snyder collect these in an upcoming volume of the Package series, these back issues of The Comics are what you need:

    The Comics Vol. 12, No. 5 (May 2001) launches the series with “A Mini-History: Some Background”, which functions as an introduction; “A Mini-History” was composed of “1. The Green Goblin” (Vol. 12, No. 7, July 2001); “2. Amazing Fantasy #15″ (Vol. 12, No. 10, October 2001); “3. The Amazing Spider-Man #1″ (Vol. 12, No. 11, November 2001); “2. The Amazing Spider-Man #2″ (Vol. 13, No. 1, January 2002); “5. The Amazing Spider-Man #3″ (Vol. 13, No. 4, April 2002); “6. Spider-Man/Spider-girl” (Vol. 13, No. 5, May 2002); “7. The Amazing Spider-Man #4″ (Vol. 13, No. 8, August 2002); “8. Others, Outsiders (OOs): Complainers and Complaints Against Betty Brant” (Vol. 14, No. 2, February 2003); “9. The OOs and Aunt May” (Vol. 14, No. 4, April 2003); “10. The OOs and JJJ” (Vol. 14, No. 5, May 2003); “11. Further Complaints and Influences of the OOs” (Vol. 14, No. 6, June 2003); “12. Guest Stars: Heroes and Villains” (Vol. 14, No. 7, July 2003); “13. Speculation” (Vol. 14, No. 8, August 2003); and “14. The Mistrial” (Vol. 14, No. 9, September 2003); “Wind-up” (Vol. 14, No. 11, November 2003).

    In this masterwork, Ditko lucidly spells out his every memory of these years, comics and core issues, based on “a rough record of my early involvement with” the characters the Ditko wrote for himself back in 1966 (“Some Background,” The Comics, V. 12, N. 5, May 2001, pg. 35). Ditko winds up with a pretty (justifiably) caustic assessment of fandom’s role in all this — what should have been done, what was left undone, and the myths that spun as a result of both action and inaction. It’s the most direct imaginable communication from Ditko himself, and a final accounting for anyone who cares…”

    There’s plenty more; as you can see, I wrote at length about this way back in 2008; Robin Snyder published this work from 2000 to the present. Why it remains relatively “unknown” material, especially in light of this past week’s Kirby/Marvel judgment, is anyone’s guess.

    (I mean, Robin Snyder has been steadily publishing the newsletter now for well over a decade, and remains the primary publisher of Ditko‘s new work (also for well over a decade); Diamond won’t carry any of it, and Robin doesn’t engage with the internet. What options are left to him? He’s happy with what it’s grown into, Ditko‘s obviously still satisfied working with Robin, and it’s almost willful ignorance on the part of so-called Ditko fans when such an ongoing body of work—including a complete serialized book-length ms. on Ditko‘s own years at Marvel!—has been made available. Nobody’s banging on Robin‘s door to subsidize, fund, or get this work out there. When he can afford the money and time, he tells me the book will see print as a book, and let’s hope that’s soon. I drop a couple hundred dollars with Robin every two-three years to re-up and order copies of the in-print work. You want to read this stuff, order it, support it. Self-publishing is always an uphill struggle; and it’s a miracle folks like Robin continue plugging away. Here’s another notification it exists; act on it, if you’re interested!)

  • Here’s where you can order what’s still in print—this should be essential reading, for anyone truly interested in the ongoing Stan Lee collaboration controversies.
  • In any case, in the opening paragraphs of Part 2 of “A Mini-History,” entitled “Amazing Fantasy #15,” published and available to the interested world in October of 2001—almost a full decade ago—Steve Ditko wrote:




    Hmmmm. Let’s see; this is pretty significant. I wonder, did co-creator Stan Lee ever talk about this in any venue, in print or in videotaped or filmed interviews?

    As of today, I’ve personally scoured over 22 Stan Lee books, interviews, tapes, etc., and this still pretty much sums it up: the Stan Lee interview from Jonathan Ross‘s BBC documentary In Search of Steve Ditko:

    Now, there’s more—much more—that Steve Ditko has to say. Much more.

    Jack Kirby is no longer here to speak for himself. For some, that cinches it: Marvel and Stan Lee outlived him, Jack‘s signatures are on documents damning Jack, and that’s that.

    But Steve Ditko is still with us.

    “Why wasn’t Steve Ditko called to testify?,” some have asked this past week.

    I don’t know.

    I haven’t asked.

    It’s none of my business, really. None of this is.

    But I don’t have to wonder for long, knowing as well as I do what each of these three men—Jack Kirby, Stan Lee, Steve Ditko—have chosen to share with us publicly over the decades.

    Having read every Jack Kirby interview I could get my hands on all my life, having read every stitch of anything Steve Ditko has ever written or drawn about his comics work, I think it’s fair to say that the two men were philosophically light years apart.

    Let me put it to you this way, to make sense of why I brought N-Man and the Fury into this at the start:

    Would I, or my heirs, rationally call the co-creator of the Fury and N-Man to the stand, given the differences so great between us since the mid-1990s that I am banished, exiled, from his life and world, real and imaginary?

    I wouldn’t advise it. Ever.

    Now, I don’t know of any similar infraction, upset, or division between Jack Kirby and Steve Ditko—I don’t believe there was any such split between the men—but I do know that Steve Ditko has stated things in print that were contrary to Jack Kirby‘s statements, revealing fundamental divisions of their personal philosophies, how they worked, how they saw their work, how they saw their relationships with the editors and publishers, and so on. (More on that next installment, later this week, as time permits.)

    I think it fair to say, too, with no slight intended or inferred, that Jack, even if he were here, and of the soundest mind and soundest body he ever had, was never as articulate a man or creator as Steve Ditko has been in dissecting, detailing, or presenting as carefully constructed a written or verbal argument as Steve Ditko did and does in “A Mini-History” and its related texts.

    Jack spoke, wrote, with his hands, with his pencils, via his stories.

    That was the coin of the realm—what Jack could do with his imagination and with those incredible hands of his—and, arguably, that was all that was of value to Jack, to his collaborators, to his editors, to his publishers.

    That was all that was of value to Stan Lee and Marvel Comics

    [To Be Continued....]

    _____________________

    The Comics! title © and TM Robin Snyder; “A Mini-History” excerpt ©2001, 2011 Steve Ditko. The Fury™ and N-Man™ are TM and ©1993, 2011 Stephen R. Bissette, by contractual arrangement with the original co-creator; all rights reserved.


    Discussion (32) ¬

    1. msbissette@yahoo.com

      PS: Permission has been granted by THE COMICS! editor/publisher Robin Snyder to quote from THE COMICS! publications, via personal email (Monday, August 8, 2011 12:28 AM):

      “As for your quoting from “A Mini-History”: Yes. Please make note of the date of the issue and that this is material copyrighted by Ditko.”

      Done and done, and it will be done throughout, Robin; thank you!

    2. Tim

      Been a lackadaisical collector and appreciative fan of Ditko for decades, and some of the information you have here is news to me. Time to catch up (as much as time and money will allow). You rock, Steve!

    3. msbissette@yahoo.com

      Update: I’ve been steered to the online posting of the Stan Lee FANTASTIC FOUR #1 document, which can be read in its entirety HERE: http://fakestanlee.blogspot.com/2008/09/worlds-greatest-comic-synopsis.html

      Special thanks to Frank Strysik for providing the link via Facebook conversation; apparently the complete ms. was published in ALTER EGO at some point (anyone able to cite issue #, date, please, do!).

    4. patrick ford

      The Lee FF #1 synopsis is meaningless. There is no way to know when it was written. Evanier says Sol Brodsky told him Goodman asked for a super hero team, and Lee proposed using the old Timely heroes. Brodsky says it was Kirby who proposed using a new team (keeping a revamped Torch). The similarity of the origin plot for FF #1 to the origin of Kirby’s Challengers of the Unknown mirrors the similarity of Kirby’s Spiderman to the Simon and Kirby Fly origin. The origin story of Iron Man is very similar to the Green Arrow story “The War That Never Ended.” THere is also John Severin saying KIrby had proposed they work on a strip Severin describes as being almosy identical in concept to Sgt, Fury, and KIrby having done a Thor story for DC in 1958. See the pattern.
      Kirby didn’t take Lee’s ideas and run with them. Lee was clearly taking the very basic core ideas which Kirby was bringing him.
      The FF synopsis was most likely created after Kirby showed Lee the concept drawing for the FF he created at home and then offered to Lee. Kirby’s daughter Susan says she recalled Kirby creating the proposals because her father told her he would name the Invisible Girl after her.
      Jim Shooter says he saw Kirby’s Spiderman character pitch page while at Marvel, held it in his hands,
      Kirby said any assertion he had ever seen the Lee synopsis (it WAS found in Lee’s desk) was,
      “An outright lie.”
      The situation with Spiderman is particularly curious. How is it Lee could have produced a plot for Kirby which was so similar to the origin of The Fly that when Ditko saw Kirby’s five page story he said, “That’s Joe Simon’s The Fly.”
      If Lee objected to the muscular looking Kirby Spiderman why was he planning to have Ditko ink the pages until Ditko pointed out the plot was borrowed from The Fly?
      And has does the “muscular hero” Lee created myth smell funny? In the early 60′s KIrby was still drawing lanky looking characters. IN fact the early versions of Bruce Banner, Reed Richards, and Don Blake, are all pencil necks.
      And does Ditko’s Spider-Man look any less buff than Kirby’s Thor?
      http://goodcomics.comicbookresources.com/wp-content/uploads/2009/10/amazing3.jpg
      http://media.comicvine.com/uploads/0/4/5510-1497-6023-1-journey-into-mystery_super.jpg
      Kirby was covering both bases. He created the core concepts and brought them to Lee.
      The core concepts are key to the copyright, and what Lee claims he created. And Kirby ran with and expanded the core concepts (along with Lee) as the books developed, which is how Ditko sees creation, what most of us are interested in, but not how copyright law defines creation.
      It was KIrby who seeded the test tube with stem cells.

    5. patrick ford

      The Lee synopsis for F.F. #1 is printed in Alter Ego, Vol. 2, #2.
      In sending the synopsis to Roy Thomas Lee felt the need to add he wrote the synopsis before ever having spoken to Kirby about the FF.
      Kirby called the suggestion he had ever seen the synopsis, “An outright lie.”
      Lee showed his eagerness to Lee on cue in his recent deposition.
      After Toberoff finished questioning Lee about Kirby’s Spiderman, James Quinn (Disney attorney) brought Lee back to the deposition table after a short break. Lee then said he paid Kirby for the rejected Spiderman pages, and that he always paid artists for rejected pages.
      Marvel paying for rejected pages was contradicted by every other witness who gave a deposition.
      The early use of a short a synopsis was likely to assist Lee in remembering the plots Kirby had given him in the years before Kirby began using margin notes to assist Lee in keeping track of the plots.

    6. srbissette

      PS: Marvel didn’t pay for “rejected pages,” by my own hard experience, in the 1970s!

    7. BobH

      That so-called synopsis of FF #1 first appeared in print in FANTASTIC FOUR #358, still readily available for less than half price:
      https://www.mycomicshop.com/search?q=fantastic+four+358
      I’m sure there’s also an official copy of it somewhere in the documents filed in the recent case, but it’s not easy to find a particular item there, especially if you’re not a trained legal researcher:
      http://dockets.justia.com/docket/new-york/nysdce/1:2010cv00141/356975/
      (might be a good CCS/Schulz Library project to go over all the filings and exhibits in that case and index them for easy reference in the future)
      I’ll see if I can find the issue of ALTER EGO that reprints it.

      It’s funny, until just last week I didn’t realize there was a “Fearless Fury” ashcan in addition to the “N-Man” and “Mystery Incorporated” ones I already had, and I just ordered a copy last week so I should have it soon.

      Regarding Ditko not being deposed in the recent case, that didn’t surprise me. I’ve read that, contrary to the surprise courtroom declarations that are a staple of fiction, lawyers will generally not ask questions on the record unless they’re reasonably sure what the answer will be. I think both sides probably regard Ditko as a “loose cannon”, and can’t be sure if his testimony will help or hurt their side (I’m also not familiar enough with the law to know, can someone be compelled to testify in a civil matter like this?). I’ve probably read well over 90% of what Ditko’s published, and I wouldn’t presume to say what his answers would be, and you can see all over the place people who’ve read less than me confidently declaring what Ditko must believe, putting their own beliefs (however contradictory) in his mouth.

      I’ll have more to say on this later (and I need to re-read all of Ditko’s “Mini-History”), until then, happy 50th Anniversary to Jack Kirby’s Fantastic Four.

    8. patrick ford

      (3/28) Letter to the judge from Marc Toberoff.

      Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I

      indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested

      a break even though the parties had just recently already taken a break. At this break, on

      my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently

      speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon

      resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which

      Lee immediately responded without any hesitation or reflection.”

      MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
      STAN LEE: Right.
      Q. Did Mr. Kirby get paid for those rejected pages?
      STAN LEE: Sure.
      Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
      STAN LEE: 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.

      Marvel paying for rejected pages is contradicted by Sinnott, Ayers, Colan, Steranko, and Adams, in new declarations of support filed by Toberoff, and other artists in past interviews have said they weren’t paid for rejected pages.

    9. BobH

      Ah, thanks Pat. I’d forgotten about ALTER EGO v2, which was a flip-book magazine with COMIC BOOK ARTIST.

      So the “synopses” was also printed in ALTER EGO: THE COMIC BOOK ARTIST COLLECTION in 2001, and you can probably see it in the Google Books preview for that book, starting on page 32, over here:
      http://books.google.com/books?id=LfgGmF3aoigC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
      Along with Roy Thomas’s notes and what Stan Lee told him about it.

      The payment for rejected pages is interesting, especially with Spider-Man, since I’m not sure Lee “rejected” Kirby’s pages the same way he did others (and perhaps not for the reasons he’s always claimed). I’ll have to re-read Ditko’s account, but my memory is that when Ditko saw the pages, he was being asked to ink them (so Lee would have accepted them at that point) and that only changed later to Ditko being asked to re-design the character and draw the story from scratch.

    10. srbissette

      Patrick, Bob, this is TERRIFIC research and thank you for sharing what you have. Please, continue, and may I cite these comments in upcoming MYRANT posts, with your permission (and with full credit/links citing you)?

      Bob, Re: “I’ve probably read well over 90% of what Ditko’s published, and I wouldn’t presume to say what his answers would be, and you can see all over the place people who’ve read less than me confidently declaring what Ditko must believe, putting their own beliefs (however contradictory) in his mouth.”

      Exactly right, and that’s why (a) I used my own personal/pro experiences to indicate the “loose cannon” issue might BE an issue, rather than arguing or presuming any such thing, and (b) you will never, ever see me “declaring what Ditko must believe,” and instead citing ONLY what DITKO HAS ACTUALLY WRITTEN. It’s up to me to provide a context, if necessary, for anything that I think is relevant to the Kirby/Marvel case at hand.

      Again, gentlemen, THANK YOU, and carry on. Extraordinary feedback, incredibly informative and invaluable.

    11. patrick ford

      Bob, Note that Lee expands his testimony that Kirby was paid for the rejected Spiderman pages to include “Any artists.”

      STAN LEE: 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.

      Lee’s deposition was redacted by three quarters so we have only seen the parts of it Disney used or would allow Toberoff to make public. The judge had granted Marvel’s request for a protective order covering Lee’s (and the other) depositions (Lee gave one in May 2010, and another for Toberoff in Dec. 2010).

      One point Toberoff may have been trying to make was establishing if Kirby hadn’t been paid for the Spiderman concept drawing mentioned by Shooter, or the five page story Lee was going to have Ditko ink (Lee was about to give the pages to Ditko to ink), then how could the character have been sold to Marvel? Kirby wasn’t paid, so wouldn’t that establish the name (minus a hyphen), wall walking and other spider powers, the teen living with an aunt and uncle, and a mechanical web-shooting device, were brought by Kirby to Marvel on spec?
      The key point the judge, Disney, and Lee all recognize, but many Marvel fans continue to ignore is the judge reasons that because testifies he created every single basic plot and character alone before ever speaking to the artists, then everything that followed was done at Lee’s direction, Lee alone set the creative process in motion by handing off his creations to the artists to pencil.
      It is important for Disney to have Lee claim he was the sole creator because Kirby was never paid as a writer at Marvel. The so called “creative freedom” the Marvel Method supposedly “gave” “the ARTISTS” was in fact a way for Lee to take the full writers page rate which would have been divided if Kirby had been paid for plots. Since Kirby was never paid as a writer how could his plotting been “work for hire?”
      Ditko was credited and paid for plotting, and apparently Lee was so angered by Ditko cutting into the page rate that he quit speaking to Ditko. Lee indicated in his deposition he was paid a freelance page rate for “writing” on top of his salary as editor.

      Steve Ditko’s letter to Comic Book Marketplace magazine published in issue #63. :

      In your Comic Book Marketplace #61, July 1998. page 45, Stan Lee talks about “…a very famous scene…” of a trapped Spider-Man lifting heavy machinery over his head. The drama of that sequence was first commented on and popularized by Gil Kane. Stan says “I just mentioned the idea…I hadn’t thought of devoting that many pages to it…” I was publicly credited as the plotter only starting with issue #26. The lifting sequence is in issue #33. The fact is we had no story or idea discussion about Spider-Man books even before issue #26 up to when I left the book. Stan never knew what was in my plotted stories until I took in the penciled story, the cover, my script and
      Sol Brodsky took the material from me and took it all into Stan’s office,
      so I had to leave without seeing or talking to Stan.
      Steve Ditko, New York

    12. Henry R. Kujawa

      Thought I’d share this from KIRBY_LAND…

      Patrick Ford wrote:
      “Tim, What I dispute is the use of the word “promotion” for a method of creation which took credit (and a plotters page rate) away from writer/artists like Kirby, and transfered that credit and money to Lee.”

      Remember “The Marvel Method” thread at Masterworks? In my initial post, I mentioned that several artists were writing the stories WITHOUT PAY OR CREDIT. Of course, the next 100+ pages of argueing didn’t touch on this much at all.

      “Promoting the idea that a writer/artist is just an illustrator is not promoting the writer/artist, it is promoting an idea which served only Lee. The proof of this should be obvious.”

      Let me put it into words other than the ones you’ve been repeatedly using of late…

      “Promoting” would be something that somehow BENEFITTED Jack professionally, leading to MORE assignments, MORE pay, MORE recignition in the field for the work he was doing. As a result of Stan, many people to this day have no idea who Jack is, and many who do, are under the impression that he was ONLY an artist. Not only that, thanks to Stan (AND MARTIN GOODMAN), Jack became so valueable to the company, that the new owners refused to negotiate a new contract, then sent him a very insluting one, and told him, “SIGN THIS OR GET OUT.”

      What kind of “promotion” did Stan think he was doing here?????

      And yet, the A**H***S (I’m sorry, there IS no more polite word to use in this case) at Masterworks insist that after Jack cut his deal with DC, he SHOULD have let Marvel know, so they could make a counter-offer.

      They just don’t understand how some work conditions can become SO intolerable, that as soon as Jack got the offer, and signed the deal, all he wanted was to GET THE F*** OUT OF THERE.

      Once in my entire life I walked out of a job, WITHOUT a new job waiting for me. It was traumatic, believe me. But I HAD to do it. I HAD to get the F*** out of that place. Kirby had a better contract already signed. It must have been a lot easier fot him.

    13. srbissette

      Henry, can you provide a link for this exchange? THANKS for sharing it here; indeed, one must ask: With friends/”promoters” like Stan Lee for folks like Jack Kirby, who’d need enemies?

    14. srbissette

      I was being only a bit glib; clearly, Carmine Infantino was offering Kirby more than just a way OUT of Marvel, at a time when there were precious few alternatives for a creator like Kirby. Infantino was offering Kirby a venue to create with FULL CREDIT for his creations.

      It’s also worth reminding anyone who wonders what Kirby himself thought about his recent employ at Marvel, and what he’d left behind, spend the time/money to visit or revisit his “Funky Flashman” stories in the early Fourth World installments. See MISTER MIRACLE #6 (cover dated January 1972), and note that “Houseroy” is Jack’s take on a youthful Roy Thomas.

      As I note, implicitly: would you want Funky Flashman testifying for OR against you in a court of law?

    15. BobH

      Feel free to use anything I’ve posted here or elsewhere. I’m happy to see the word get out some more about Ditko’s first-hand accounts. For a while I’ve urged anyone who wrote me curious about them to write to Snyder urging him to collect those essays, hopefully some new urging will do the trick.

      By the way, could you make the link to the Ditko work in print go to this:
      http://ditko.blogspot.com/p/ditko-book-in-print.html

      Both pages are identical now, but when I do an eventual re-design of the page that’ll be the correct link, the other will just be a pointer.

      One of my favourite bits in Veitch’s run on SWAMP THING was Funky Flashman meeting Swamp Thing (who was “wearing” John Constantine’s body at the time). Something about Funky and Constantine being two sides of the same coin felt right…

    16. patrick ford

      Steve, Nothing I’ve posted is really mine, just things I’ve read, please use as you see fit.

    17. James Robert Smith

      I would have to agree that the Kirby lawyers and the Marvel lawyers would both be afraid of what Ditko might say. There’s really no telling. He is his own man and his world view is so etched in stone (or encased in concrete) that any answer might come. I can very well see that not having Ditko on hand would be the only thing both sides would agree on. It’s too bad, though. Historically I would love to see what Ditko would have said under oath in a deposition. Unlike Lee, he would not have lied.

    18. Jorsh

      Hadn’t seen that Ditko documentary clip before. Thank you once again, Steve, for reminding me just how detestable a person Stan Lee really is.

    19. Bryan Munn

      Wonderful research and great points by all. That Ditko quote is a killer.

    20. ChrisW

      This is the first I’ve ever heard that Ditko has produced a 15-installment professional biography about these things, and I have a fair number of Ditko comics from this century. I do have some of his essays about the creation of Spider-Man. I also have my 1963 ashcans.

      Stan probably signed clauses early on that said he’d testify on behalf of Marvel for any character ownership lawsuits for the rest of his life, as did Jim Shooter. If I were a lawyer, I wouldn’t even consider dragging a frail old man who hasn’t sought publicity into court unless he were confirmed ahead of time to be as cooperative as Lee and Shooter.

      I also think it’s one of the cosmic jokes on comics that we finally have a creator (Ditko) that everybody would line up to applaud and Marvel would give him a comfy lifestyle forever as long as he signs a few forms. They’ve still been nurtured by Neal Adams’ work for Siegel and Shuster, they know Kirby was screwed, TCJ’s petitions and the Creators Bill of Rights found fertile ground. Paul Levitz and Dick Giordano and Karen Berger and Denny O’Neill and Jeanette Kahn (and yes, Jim Shooter) did many things to improve the company’s approach to creators on a day-to-day, issue-to-issue basis. Even Image is a positive influence. Finally someone could get a share of the wealth they made possible in this wonderful medium while he’s still alive.

      And we all look at Ditko and he says ‘not interested’.

    21. BobH

      ChrisW, I’m not sure we can say definitively if Ditko’s said “not interested” or anything resembling that. If you scratch beneath any statement made about Marvel’s offers to Ditko, you realize they’re nothing more than unsourced rumours, often spread by people with their own self-interests.

      Unless and until Ditko makes a public statement on the matter, I’d say we don’t know if Marvel has offered him anything, we don’t know what any such offer might have been, we don’t know what conditions they require of Ditko if there was any offer and we don’t know Ditko’s response, if there was anything to respond to.

      I will note that Marvel can, at no cost to themselves, put Ditko’s name in every Spider-Man and Doctor Strange comic with the phrase “… created by Steve Ditko and Stan Lee”, and ask Lee to state clearly on the record “Steve Ditko is the co-creator of Spider-Man”, without any of his “I consider” or “I’m willing to say” or “if he wants to be called” bullshit embellishments. Free to them (unless you consider Lee having to swallow his pride a cost), I don’t think they need Ditko to sign anything to do that, and I believe consistent with what he has explicitly said in print (anyone who thinks I’m misinterpreting feel free to correct me). Marvel hasn’t done that much.

    22. Thad

      Thanks again for all this, Steve; I think I’ll have to buy some of those books. (FYI your link to them is broken; it’s got two garbage characters in it.)

      I suspect Ditko wasn’t deposed by either side because he could have done a lot of damage to either side. He’s got a lot of choice words to say about both parties, and it wouldn’t be worth the risk to find out which side his testimony would ultimately back up (if either).

    23. Thad

      @Patrick: Great post and informative. I’d heard that Ditko had denied the persistent rumors that he quit Spider-Man over arguments with Stan Lee about Mary Jane’s appearance or the Green Goblin’s identity on the simple grounds that he and Stan never discussed anything beforehand; the letter you quote is consistent with that claim.

    24. patrick ford

      Personally I think the estate made a huge mistake by not taking a deposition from Ditko.
      Ditko’s non-working relationship with Lee on plots, and the fact Ditko was paid for plots while Kirby was not would have contradicted Lee’s testimony that he alone generated the plots and characters.
      Ditko’s personal definition of creation is quite similar to my own. It’s really what a person does with basic ideas, and how they develop them which is the important part of creation to me, but copyright is secured by the initial ideas in their first concrete form.
      Ditko could be counted on to answer honestly if he had ever seen Kirby character concept presentations, if he plotted without speaking to Lee. If he recalled the circumstance of why he left Marvel, and what promises had been made to him, and Kirby. Ditko did in fact try and convince Kirby to quit Marvel along with him. As Ditko says, Kirby wanted to, but felt unable to take the chance because he had a wife, and children who were depending on him. Ditko with no wife or children was in a much better position to act.
      Ditko has never disputed Kirby gave Lee a Spiderman character. What he says is that he doesn’t see much similarity to the published version (just his opinion, I see very obvious similarities), and that he has no idea who came up with the Spider-Man concept. He says “that’s for Lee and Kirby to work out.”
      I’m not sure Ditko’s testimony would have helped much, but I don’t think it could have hurt.

    25. Thad

      Patrick: Hindsight is 20/20. Now that the decision has been rendered, it’s quite clear that the Kirbys had nothing to lose and potentially something to gain by deposing Ditko, but I don’t think that was clear at all when they started.

      I’m sure none of this is lost on Toberoff. Don’t know if he’ll succeed on appeal or if he’ll be able to bring a new case on similar-but-not-quite-the-same claims, but if he does I wouldn’t be surprised if we heard out of Ditko.

      Me, I’m interested in what he has to say more to hear his perspective than anything. Of course, the point of this post in the first place is that he already has and I just haven’t read it yet; I’ll see about getting my hands on those back issues…

    26. Frank Strysik

      Okay, it turns out the FF #1 synopsis was published in Alter Ego v2 #1…. the flipside to Comicbook Artist #1. And it’s an interesting read. Roy Thomas basically backs up Stan Lee’s version of things, which is no surprise. To me, this doesn’t prove anything because we’ll never know what Stan and Jack discussed before this thing was typed up but Alter Ego is a great resource for people who are interested in how Stan Lee really worked. I never did find that Marvel Age article that talked about how Roger Stern “found” the synopsis but maybe it was published somewhere else and I’m just not remembering where.

      Just a comment I would like to add. All the artists who had to work with Lee were at a huge disadvantage because Lee was not only the writer but their boss. Lee decided what the credit boxes would read and he made sure they read Stan Lee as writer, no matter who else worked on the story with him. Ditko had to go over Lee’s head right to Goodman to get plotting credit but the rest of the artists went along with Lee giving himself full writing credit or stopped working with him, like Wally Wood. And if you notice, Lee gave himself plotting credits for the few times a new superhero appeared and he didn’t actually write the story. And the few stories Kirby wrote at Marvel, Lee put his editor credit ahead of Kirby’s credits. He knew what he was doing and how valuable that creator credit was, and how he didn’t want to share it with anyone!

    27. patrick ford

      In the very beginning I doubt Lee’s primary motivation was credit for credits sake. By not crediting the artists with writing Lee was able to take the whole writing page rate for himself.
      Very possibly the reason Lee was so angry with Ditko he wouldn’t speak to him for over a year was because Ditko cut into Lee’s take home pay.
      Marvel was paying only about half what DC was paying for penciled pages in the early 60′s, and the extra dollars Kirby would have made for producing what was often 90-100 pages a month would have been a good deal of money in early 60′s dollars, money Lee took for himself.
      To make matters worse Lee often credited himself with plotting stories plotted by Kirby, even when Larry Leiber, or Rick Bernstein was writing the dialogue.
      Lee testified in his deposition that he was paid a freelance page rate for his writing on top of his salary as editor.
      Far from a way of “giving the artists freedom” as Lee describes the Marvel Method, it was a way of getting them to do work Lee was paid for.

    28. ChrisW

      BobH, hence my point that Ditko isn’t interested. If he were, then someone would call him and ask ‘hey, are you doing anything with Marvel about this?’ and he would say yes or no. Ditko has no public correspondence (website, letter’s page, official spokesman, twitter) and any of these would be utilized if there was any movement from his end. Marvel would insist on it if nothing else, so they could say “see? We did everything we could for Ditko while he was still alive!” They’d have Stan Lee give him a Ferrarri at the Super Bowl because that would be cheaper than what Ditko otherwise holds over their heads by remaining silent.

      Say Marvel gives Lee and Ditko creator credit, then they would be using Steve Ditko’s name to sell everything Spider-Man and Dr. Strange do without his consent and without paying for it. Stan Lee’s name is a trademark, Marvel pays for the rights to it and Stan takes their money. Ditko only took the money they paid him to draw pages 45 years ago.

      I noticed they were doing something with Speedball lately, and I suspect that is a genuine attempt on Marvel’s part to give Ditko something with a character he co-created, like using him in that teen book. Maybe the small checks they pay (because of Shooter and Defalco) would entice Ditko to make a bigger deal? So far, no good.

    29. BobH

      Frank, “Ditko had to go over Lee’s head right to Goodman to get plotting credit”

      Curious where you heard that, because Ditko himself wrote in 2008 “I never met Martin Goodman. I may have seen him on the Marvel floor but that is the extent of my knowing him” (THE AVENGING MIND, page 26, “Martin Goodman/Stan Lee”). So at best he would have gone to Goodman through an intermediary.

    30. Devlin Thompson

      While I haven’t gone back to check, it seems that I recall seeing more than a few romance, teen, and western stories from the ’50s that bear Stan’s name in the splash even where the artist didn’t sign the work. So, I’d say that getting the credit WAS pretty important to him… but I expect that getting paid for other folks’ plots was probably something that he quickly came to enjoy, as well!

    31. Jim Brocius

      I’m curious if the paper the FF # 1 synopsis was manufactured prior to the publication of FF # 1. It seems like something that is determinable. I’d certainly want verification of when that paper was made.

    32. gene phillips

      Patrick said:

      “Evanier says Sol Brodsky told him Goodman asked for a super hero team, and Lee proposed using the old Timely heroes. Brodsky says it was Kirby who proposed using a new team (keeping a revamped Torch). The similarity of the origin plot for FF #1 to the origin of Kirby’s Challengers of the Unknown mirrors the similarity of Kirby’s Spiderman to the Simon and Kirby Fly origin.”

      I regard Lee and Kirby as co-equal co-creators. That means that Lee’s claim to primary creation is invalid, and so is Kirby’s, when he made such claims.

      To me the example of CHALLENGERS disproves the notion of Kirby’s primary creation of the FANTASTIC FOUR, as some have argued. What Kirby produces with (nominal?) writer Dave Wood cannot hold a creative candle to what Lee and Kirby produced in the FF.

      The Brodsky recollection is interesting, but I wouldn’t rush to credit it as full support for primary Kirby creation. I find it dubious to imagine Kirby proposing the use of a revised Torch, given that in the first 30-something issues Kirby barely seems to give a crap for the character, beyond assorted comic bits. Kirby focuses all his dramatic attention on Ben, Reed, and Sue. Noting that, I tend to imagine Kirby being saddled with the character by Stan but subtly rebelling by making him the foursome’s “fifth wheel.”

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