EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 9, 2013

What a Marvel: 2nd Circuit Finds Expert Evidence Inadmissible in Jack Kirby/Marvel Appeal

Jack Kirby is one of the fathers of many of the most iconic characters that still have cultural currency today, including the X-Men, the Hulk, Captain America, Thor, and the Fantastic Four. Yesterday, however, the Second Circuit found that these characters were "works for hire" now owned by Marvel Entertainment, a Walt Disney Co. subsidiary. Specifically, in Marvel Characters, Inc. v. Kirby, 2013 WL 4016875 (2nd Cir. 2013), rejected the claims that Kirby's heirs made to reclaim the rights to the famed comic book characters that he helped create. In doing so, the court made an interesting evidentiary ruling.

In Kirby, the heir sought to introduce testimony by John Morrow and Mark Evanier, who purported to offer historical perspective concerning the relationship between Marvel and Jack Kirby. The district court, however, deemed this expert testimony inadmissible, and the Second Circuit noted in Kirby that

We have no doubt that a historian's “specialized knowledge” could potentially aid a trier of fact in some cases. A historian could, for example, help to identify, gauge the reliability of, and interpret evidence that would otherwise elude, mislead, or remain opaque to a layperson....He or she might helpfully synthesize dense or voluminous historical texts. Id. Or such a witness might offer background knowledge or context that illuminates or places in perspective past events

That said, the court then noted that

Morrow and Evanier do not bring their expertise to bear in any such way. As the district court recognized, their reports are by and large undergirded by hearsay statements, made by freelance artists in both formal and informal settings, concerning Marvel's general practices towards its artists during the relevant time period....Drawing from these statements, they then speculate as to the motivations and intentions of certain parties...or opine on the credibility of other witnesses' accounts....

According to the Second Circuit, such proposed testimony was not good enough. The court acknowledged Federal Rule of Evidence 703, which states that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

But the court then concluded that

Although the Rules permit experts some leeway with respect to hearsay evidence, Fed.R.Evid. 703, “a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.”...The appropriate way to adduce factual details of specific past events is, where possible, through persons who witnessed those events. And the jobs of judging these witnesses' credibility and drawing inferences from their testimony belong to the factfinder....We therefore think the district court clearly did not abuse its discretion in declining to admit this evidence



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