Wednesday, August 3, 2011

Gerber and the Duck – Part 3

Suits and Lawsuits


In early 1981, Steve Gerber sued Marvel Comics over ownership of Howard the Duck.

I wasn’t at Marvel when the Duck first came to be. Almost all of what was at issue happened before my time, or during the time that I was associate editor, and not involved in a management capacity. Therefore, I wasn’t much involved in the litigation. 

The litigation took place while I was Editor in Chief, however, so I was copied on many documents and otherwise made aware of the progress of the thing. I have copies of a number of letters, memos and documents relating to the case. No, I’m not going to post them here, except for two letters, below.
As I understand it, the gist of what happened is as follows: 

  • A mountain of motions and responses were made by both sides. 
  • Gerber’s side lost the war of motions. 
  • Gerber’s side’s likelihood of prevailing on anything of substance was virtually nil. 
  • In order to avoid wasting more money on legal expenses, Marvel made a de minimis settlement offer. 
  • Being in a hopeless position, Gerber’s side accepted. It was that or scorched earth. 
The settlement offer essentially included Howard the Duck in Marvel’s standard character-creation incentive plan, one of the several incentive plans I had installed. It also guaranteed a limited publishing program of Howard the Duck publications and specified Gerber’s terms of employment. None of those terms were novel or extraordinary. They were, in fact, much the same as had been offered to Roy Thomas.

Marvel sincerely wanted to publish HTD anyway, because of the impending movie. Marvel also sincerely wanted Gerber as the writer for obvious reasons.

From the point of view of Marvel’s top brass, they had made the suit and legal expense go away for nothing. They were very pleased. And unconcerned about whatever grief doing so might engender for me.

So, the time came to publish and we set out to do so. Gerber delivered a script.  I read it and expressed my concerns to Publisher Mike Hobson and President Jim Galton. Mike wrote Marvel’s responses to Gerber and his attorney. Here they are: 

Gerber refused to accept the changes offered or propose alternatives.

And so, for then at least, there was no Howard book by Gerber.


And, By the Way….

Disney’s legal threats and demand for the Duck to be redesigned happened while I was associate editor. I wasn’t involved. The redesign was handled on Marvel’s end by John Romita. Disney artists ultimately provided Marvel with a design Disney deemed acceptable. John actually seemed pleased to have gotten Disney to do the work for us. Here are the results: 
(As usual, click the images to embiggen - JayJay)


NEXT: More Strange Tales

29 comments:

Pariah said...

ironic now seeing as how Disney own Marvel completely.

demoncat said...

was wondering if your were around marvel when steve filed suit for the ownership of howard jim. and also find it interesting now over Disney back then demanding changes be made to howard since they own howard as part of owning Marvel now. which is one of the things that made Steve really pissed over howard the duck.

~P~ said...

OK, so where is the newly designed corner box illustration?

While I did not know Steve Gerber, I have been in similar creative circumstances and think I may be able to empathize with how he might have felt and what he may have been thinking (althoug, that said, I do NOT claim to know anything definitively).

Poor Steve... I can understand his disappointment and frustration with all of this. Dejected by having to accept a deal he probably thought was crap, but the best he could hope for... assaulted by a redesign he probably thought was unnecessary... insult added to injury by an edited script.

Three strikes.

He may have felt he was being told; "Here, Steve. Write OUR character as if he was your own. But change his look to satisfy a totally different outside company. Oh, but feel free to write him as how you see fit, we'll only peek over your shoulder to see how you're doing... oh, and don't do this, this or that. Here; we'll edit it FOR you. We don't think you'll mind at all. It's better now!"

Waugh!

That explains why Howard returned with continued numbering (instead of a new # 1) in two of the worst issues ever (although, the Paul Smith artwork was nice).

SMH said...

Fascinating! What were the editorial changes?

Benoît Leblanc said...

After the settlement with Disney (or "Sidney Wallis", in the B&W mag), Howard started wearing pants... but the changes depicted above regarding the size of his eyes and the shape of his beak were practically ignored by everyone but Michael Golden. Gene Colan's Howard certainly didn't change much, and Marshall Rogers' had a thinner beak than usual, if anything. I wonder if Disney really cared, or if they were just happy with having won the legal battle.

czeskleba said...

Jim, I'm also curious what the specific edits you made to Gerber's script were, if you can recall.

Benoît is correct that how closely artists adhered to the duck redesign seemed to vary. Colan seemed to draw Howard somewhere between the original version and the redesign... he made his beak shorter and more puffed up, but not to the extent shown in that style guide. Obviously Disney was not closely scrutinizing every issue to ensure compliance. The redesign was ugly, but it seems like artists were able to get around it to a large degree.

ireactions said...

... I don't think there's anything about the Disney redesign of Howard that couldn't be re-interpreted by another artist into a great looking Howard. Phil Winslade didn't have any trouble in the MAX series, although changing Howard into different animals was a perfectly valid story direction. When Winslade did draw Howard as a duck, he looked great.

Marc Miyake said...

Has anyone ever confused Howard the Duck with Donald Duck? I confess that I never even noticed the resemblance until I recently learned about the lawsuit. In my eyes, Howard and Donald are as alike as any two random human beings.

I wonder who did Disney's Howard model sheet.

Dear Benoît,

Good point about Disney possibly not really caring. I can't imagine someone at Disney reading each and every Howard comic after the lawsuit, looking for deviations from the model sheet. Maybe somebody merely glanced at the comics once or twice before Disney's legal department moved on to other matters.

czeskleba said...

ireactions, I think Winslade pretty much ignored the model sheet when he did the 2002 series, and reverted to the old design. I get the impression they decided they could get away with doing that, as long as Howard didn't appear as a duck on any of the covers of the books. I think they correctly deduced that if Disney noticed the books at all, it would only be the covers, which were more widely disseminated than the interior content.

Cassie Blade said...

I think its more that they didn't want Howard to look like a 'Disney Duck', of which Donald is the most well known next to Scrooge. They didn't want people to see this cartoon duck that looked like how Disney drew ducks and people thinking he was a Disney character, even though Marvel didn't publish any Disney comics to my knowledge you can't underestimate people's ability to overlook details like that. So to prevent any likelihood of confusion they sued saying "Howard shouldn't look like Donald." and then end up providing a list of general changes to make so keep him from looking like he was a refuge from Duckburg.

ireactions said...

If that were the case, czeskleba -- and it might well be -- why did Gerber and Marvel feel the need to transform Howard into different animals for most of the story? Why not just go with Howard the Duck in HOWARD THE DUCK? Why didn't they just use Winslade's version of Howard, ignoring the Disney design aside from the pants?

Steve Gerber, in his interviews, made it sound like Jemas and Quesada were ready to cancel the HOWARD mini-series when they discovered Marvel was legally obligated to use the Disney design.

The situation seems strangely contradictory, and I have to assume Gerber having Howard shape-shift was simply to act out his aggravation with the Disney design even though it was workable. It might also explain why Gerber didn't do another MAX mini-series with Howard despite Jemas and Quesada loving every page of Gerber's work.

jimshooter said...

Dear SMH,

I can't recite them from memory. Basically, as little as possible, and only to remove or deflect the jabs at other writers. Others besides me, that is. I considered myself fair game.

Glenn Greenberg said...

These last few columns really take me back to the time when I was working with Steve--on a Howard the Duck project, no less--when I was at Marvel.

Some of what happened during that experience has already been made public on the Internet, particularly by Tom Brevoort and Steve himself, so if you Google you can probably find it and at least get the gist of what happened. I've never really discussed it publicly.

But I spent lots of time with Steve on the phone during that time, I liked him a lot--until he threw me and Brevoort under the bus--and I found him to be a really interesting guy, immensely talented, who definitely marched to the beat of his own drum.

Brunomac said...

I remember as a kid being bothered by the "pantsing" of Howard. And of course reading somewhere (I think it was a non-comics publication like one of the LA free papers) that Disney had done it to them. Even as a kid I knew this was bullshit. I love a lot of Disney stuff (including Duck Tales and the old Carl Barks stories), but have always had a bit of an eye cocked at the House of Mouse throughout my life. Like they were Satan or something. That mouse...that bland, uninteresting mouse being such a worldwide sensation still chaps my hide.

I can still enjoy certain Disney and Disney owned properties, but when I heard they were buying Marvel I seriously felt like shit about it. It just seemed...wrong.

JediJones said...

Here is another interesting footnote concerning the original Howard the Duck design. In 2004, Toy Biz produced an action figure of Howard the Duck based on his original design as a smaller bonus figure packed in with their 6-inch Silver Surfer figure. I don't think Howard was named on the packaging but he was plainly visible through the front of the package. Eventually, Toy Biz stopped making the Howard figure and continued to ship Silver Surfers with an empty space where Howard used to be.

Jesse Falcon of Toy Biz says that they were simply unaware that there were legal issues with the Howard design until after the toy was released and their legal department notified them. But there are rumors that they did know and simply hoped to get the figure out "under the radar" or perhaps ask for forgiveness later instead of asking for permission first.

Currently the unopened figure with Howard sells for about $40 on eBay although the average internet storefront is asking for $80. This store's promotional shot has Howard making convenient use of the Surfer's board.

http://www.cmdstore.com/marvel-legends-action-figures-series-5-silver-surfer.html

czeskleba said...

ireactions wrote:why did Gerber and Marvel feel the need to transform Howard into different animals for most of the story? Why not just go with Howard the Duck in HOWARD THE DUCK?
*****************

I don't know. It is a confused situation. I know that Gerber said they decided to have Howard transform into other animals in order to avoid using the Disney duck design. Yet Howard does appear as as duck at times during the series, and when he does Winslade doesn't appear to be following the Disney style sheet. Winslade's duck had a thin, non-puffy beak and taller, larger eyes than were "allowed." The fact that Winslade deviated from the style sheet is what leads me to guess that maybe they thought they could get away with it as long as they didn't feature him on the cover as a duck. But I'm just speculating.

As to why Gerber didn't do any additional Howard stuff after the Max series, the answer was sales, pure and simple. Gerber said he would have been happy to do more otherwise. That's why it's particularly galling that they decided to put out that Ty Templeton miniseries when Gerber was still alive.

ireactions said...

It seems to me that so long as Howard was wearing pants, the artists were free to do whatever they wanted with the rest of the design? It's an art design, not a building blueprint, after all: artists reinterpret things all the time.

In interviews, Gerber declared his revulsion for the Disney design and made no mention of whether or not the artists could just draw Howard in pants and do what they wanted with the rest of him. He proposed licensing Leonard the Duck to Marvel so that the original Howard design could be used. That doesn't strike me as willingness to write Howard so long as he had to wear pants.

As I recall, Ty Templeton wrote a short HOWARD THE DUCK story for a CIVIL WAR book that met with such positive response that his mini-series was commissioned. Regardless of whatever Gerber owuld have felt, Marvel does own Howard, Gerber had publically stated he didn't want to write Howard as redesigned and had gone out of his way to avoid it... and Templeton did a very nice job in his mini-series.

Rob Peters said...

I read somewhere (and I can't find it now) that Marvel was attempting to sell a Howard the Duck newspaper comic strip written by Gerber around this time. Supposedly, it was the comic strip that worried Disney about the supposed similarities to their ducks since they didn't pay attention to comic books. Is there any truth to this?

czeskleba said...

After the Max series, Gerber publicly stated he would have liked to do more Howard stories, so whatever problems there were with the design must have been settled to his satisfaction by then. I haven't read the Templeton series so I can't comment on its quality, but I'm skeptical anyone besides Gerber could write a really good HTD story, just as I wouldn't want to see anyone except Schulz to do Peanuts. Of course legally Marvel does own Howard and had no obligation to give Gerber first crack at any duck series before offering it to other writers. But from a creative standpoint, it's ridiculous to hire someone to write a pastiche when the original writer was willing to do more stories.

Rob, there was a Howard the Duck newspaper strip which started in 1977 and lasted for about a year. I've never heard that the newspaper strip is specifically what caught Disney's attention, but that seems quite possible.

jimshooter said...

Dear Rob,

Marvel sold an HTD strip to United Features, I think, in 1977. It was cancelled in 1978, largely because Gerber was routinely, disastrously late before he left the strip and Marvel, and because it was not very good afterwards, albeit on time.

ireactions said...

From http://www.stevegerber.com/interviews/diamond.php3 :

"I was just heartsick [after learning that Marvel was legally obligated to use the Disney design]. We really were on the verge of abandoning the whole project [HOWARD THE DUCK as a MAX mini-series], when a bizarre idea occurred to me. What if we changed Howard into another species entirely? If the character wasn't a duck, how could Disney complain? I suggested the idea to Stuart. He was intrigued, but wasn't sure Joe Quesada or Bill Jemas would accept such a radical change. To help make the argument, I asked Glenn Fabry if he'd be willing to do a couple of sketches of Howard as a mouse, to see if we could successfully transplant his personality into a rodent. When I saw Glenn's sketches, I was overjoyed. He'd come up with a mouse that was unmistakably Howard. I sent them on to Stuart, who showed them to Joe and Bill and explained the whole idea to them."

Gerber on what he would do if the readership preferred that Howard were a duck instead of a mouse:

"Part of me wonders whether Disney would or could object if we adopted Glenn's duck design and, say, exposed Howard to gamma rays and turned his feathers green, so it was absolutely impossible to confuse him with Donald. That would still be a technical violation of the agreement with Disney, but I'm not sure they'd have any real basis for objection.

"Another possibility is to change the character's name. The agreement only pertains to Howard the Duck. If I were to license Leonard the Duck(Note: A character Gerber created as the result of an extremely clever, unofficial crossover between a Spider-Man/Howard the Duck issue of Marvel Team-Up vol. 2 and the Image Comics-published Savage Dragon/Destroyer Duck one-shot, both of which were written by Gerber – PO)to Marvel for five bucks a year, that character could look however we wanted it to, as long as it didn't infringe on any extant trademarks. We could just move Howard's entire supporting cast over to the Leonard book and continue on as before. The only question is whether readers would accept the change of nomenclature."

So, if Gerber said he wanted to keep writing HOWARD THE DUCK, I have to think that he meant that he would like to do it if he could do it on his very specific terms.

czeskleba said...

I was reading some of Steve Gerber's comments about the unpublished HTD script (over on the yahoo Howard the Duck group). He really had a different perception of what happened than what Jim recalls.

One thing he wrote was:
"I strongly suspect that Marvel would have rejected *anything* I turned in. They didn't want me working there again, and they *especially* didn't like the idea of a creator who sued the company returning to his creation."

I've wondered why Gerber would object so strongly to minor changes in his script, to the point of walking away from the project. Based on the above comment, it seems there was just too much lingering mistrust and bad feeling, likely stemming from both the lawsuit and the circumstances of his departure from Marvel in 1978. I suspect Gerber must have been taking a pessimistic "domino theory" view of the script changes... that the minor changes asked for were a harbinger of major changes and/or other editorial problems would become apparent down the line.

Chris Hlady said...

Interesting, the problems at Marvel, at that time.
That Disney forced an awful, redesign on poor Howard, reinforces the notion that Marvel is an awful place for creative people.

For the life of me, I can't figure out why Marvel was so popular among my peers. I always sensed that lameness ... except for a few of the classics.

Oh well, more reason to despise Disney. More reasons to despise Marvel. Vile stuff, to be sure.

Tony O'seland said...

I have only one thing to say on the Marvel/Disney marriage: Gooferine! I am disappointed at the direction that Marvel has taken since it has become a cash product for Disney. How did a company who went out of their way to revised and bastardize European folks tales manage to destroy one of the better multiveres in comics? Does no one remember the Canon anymore, or does it only matter that at one time, Marvel was cutting edge but now it's only a product?

kintounkal said...

Chris Hlady,

If Marvel was so lame, why are you even reading this blog?

Chris Hlady said...

kintounkal asked...
----
Chris Hlady,

If Marvel was so lame, why are you even reading this blog?
----
Most Marvel comics are lame. That doesn't mean they are insignificant. Moreover, this isn't Marvel, it's post-Marvel. Marvel is dead. We're doing the dissection, at least from my perspective.

Interesting questions arise: why did it die? what made it special? popular? influential?

Jim is one of the first writers I ever read, and enjoyed, in comics. I don't mind his perspective. I think he's honestly reflective, and realizes the value of passing on the accumulated mythology of making-comics to an eager generation.

I don't think he benefits from any candy-coating. There was enough of that with the comics code.

Bottom line is, I love comics, in principle. Not the crap. Not the hype, and definitely not the corporations, but the creators need to always be respected, encouraged, and heard, if only to help others avoid preventable pitfalls. Cheers.

Hunter said...

Do note that on the aforementioned "crossover" Spider-Man Team-Up issue Howards appears pantsless, even though it happened many years AFTER the Disney lawsuit.

As far as I know, Disney hasn't said a thing about it.

Lou Mougin said...

Hate to say it, as I loved Gerber as a human being and a writer, but some of this does ring true. I liked DESTROYER DUCK as a comic, but had my misgivings about Steve's trashing of Marvel and his seeming ignorance that, when you create a character in a company-owned book, it becomes the property of the company. Made my feelings known in a letter to the book, which they printed. Also, Gerber's taste for over-the-top violence turned me off in his later work. I bought the Marvel Max HOWARD, gave it a quick read, and brought it back to the comic store for a refund. Not to suck up, but your satire of him in SW2 was spot-on.

Jeff Clem said...

Lou,
Of course, I recognize your name from countless fanzines and some letter columns of the past, so I do respect your opinion, especially concerning the Gerber lawsuit.
Are you familiar with an article Jan Strnad wrote for Comics Journal # 80 (I think)? It addresses the Gerber lawsuit and it is thought-provoking and recommended reading.
Emotionally, I was for Gerber winning ownership of Howard the Duck at the time, simply because I wanted more Gerber HtD stories! Ah, the naive, narrow-minded ways of youth! However, after reading Strnad's article, I realized that, legally - and maybe morally speaking, Gerber might not have a leg to stand on.
It was some years later when I read a Gerber interview (I don't remember where it was published) and, it seems, there might have been promises made by Marvel to Gerber, regarding HtD - promises that were not kept and apparently that breach was sufficient enough in Gerber's and his lawyer's eyes to go ahead with the lawsuit. The specifics of those so-called promises were not made public, as far as I know...pretty much like the details of the settlement weren't made public as well.
Destroyer Duck, plot-wise, was not Gerber at his best. There was some good stuff there (as I said in a previous post at this blog) in the dialogue and narrative captions, but the overall plot seemed to be Gerber violently trashing Marvel and conglomerates, regardless of how often Gerber denied he was attacking Marvel in the DD letters pages.
Anyway, it's good and refreshing to read posts on this blog from such a well-known commentator of the comic book world.