Tuesday, February 14, 2012

The Spirit of Vengeance


Gary Friedrich sued Marvel over rights to Ghost Rider. Gary lost. Marvel sued Gary for unauthorized exploitation of their trademarked Ghost Rider property. Gary lost. He is obliged to pay Marvel $17,000.

The web is a-Blaze with controversy about the above. Lots of people, including many notable comic book creators, have weighed in with their thoughts and theories.

Most of them have a flawed understanding of intellectual property law, work-made-for-hire and the circumstances of Gary’s services to Marvel way back in the 1970’s.

There has been discussion, for instance, about whether or not the W4H acknowledgement on the backs of the checks Gary received for his services back then specified certain rights, or whether or not Gary crossed out certain parts, and what those things might mean.

There has been much vitriol hurled against big, mighty Marvel for suing little, helpless Gary. Doing so has been characterized as petty, vindictive and cruel. Some speculate that Marvel’s coming down on Gary was a deliberate warning to all others who might dare contest ownership of properties. A few defenders of Marvel pointed out that Gary sued them first, cost them a ton of money in legal fees and apparently, given the decision, was in the wrong.

Some people brought up the fact that Ghost Rider was created by more than one person and many people along the way have made significant contributions.

Marvel’s suit against Gary raised another, related issue. There has been debate about whether or not artists selling sketches of characters owned and in most cases trademarked by the various publishers constitutes infringement.

And more. You get the drift.

I’m not a lawyer, but for over nine years, as Editor in Chief at Marvel, I was obliged to represent Marvel’s legal position to creators with regard to their work. I worked closely with Marvel’s house counsel and outside counsel. I attended an intellectual property law seminar. I was called upon to give depositions in several cases. In more recent years, I have served four times as an expert witness on cases involving IP issues. I know a good bit about the subject.

I don’t know all the particulars of the Ghost Rider suits, so I won’t attempt to pontificate on those, specifically. I will offer a few general thoughts:

1.  Doing work-made-for-hire means that you are selling your services, not whatever results from the services you perform. No rights need be specified, though for belt-and-suspenders purposes, they often are. What was on the back of the checks, crossed out or otherwise, is probably of no significance. Even if there was no legend on the back of the checks, it probably wouldn’t change anything. In those days, before the copyright law of 1976 took effect (January 1, 1978), nothing needed to be signed to effect a work-made-for-hire situation. The arguments would more likely be about whether or not the services rendered were a contribution to a “collective work,” was the W4H policy of the employer consistent, was the work done under the direction and control of the employer…and more.

2.  Speculating about Marvel’s motives seems like a road to nowhere. From the outside, Marvel’s suit against Gary looks to me like one of those defend-the-trademark things. If you know someone is violating your trademark and you don’t do anything about it, you may lose your trademark. You must take action. You can’t pretend to take action. No “just kidding, we don’t really want the money.” I believe that a judge would frown upon that. You have to at least look like you’re serious. That said, is it possible that Marvel will show a little compassion and never bother to collect, or in some other way let Gary skate. Could be. We’ll see.

While I was at Marvel, several times when someone violated our trademarks, I convinced the upstairs bosses to give the infringer, if he or she wasn’t truly evil, a retroactive license for a dollar.  Our marks were protected, they weren’t hurt, all was well.

The best known of those instances was when Dave Sim did a parody of Wolverine in an issue of Cerebus—which sold so well that he did it for another three issues. Parody is protected. Once is okay.  Four times constitutes infringement. But Sim wasn’t an evil guy. We liked him. We intended to do business with him.  So we handled it reasonably, I think.

The difference here, it seems to me, is this: When litigation is going on everything done or said by either side may and likely will be forged into a weapon for the other side. Being generous might be seen as a tacit admission that the other side has a point.

3.  Multiple creators tends to lend credence to the collective work argument. I’m willing to be corrected on this if I’m wrong, but I believe that I coined the tagline “Spirit of Vengeance” back when I briefly wrote the Ghost Rider. I’m not expecting a check in the mail for that anytime soon. I wonder if Mike Friedrich ever got a nickel for coming up with the Bat-moniker “Dark Knight?”

4.  Selling sketches of trademarked characters at conventions and elsewhere…now there’s an interesting situation. Collectively, a vast amount of money must be made that way. To my knowledge, the publishers haven’t ever taken notice. But, I guarantee, it’s on the radar now.

One person said that as long as it’s a private transaction between an artist and a collector, no harm no foul. To that person, I’d suggest setting up a booth at the San Diego Comic Con and selling sketches of Mickey, Donald and Goofy. See what happens. Disney once succeeded in preventing Carl Barks from selling paintings of Uncle Scrooge and fellow Ducks, though later, I think, they worked out a license deal. And Disney owns Marvel now. Hmm….

I think the business of selling sketches is just about to blow up like Krakatoa.

Once again for the record, I believe that the comic book industry has always treated creators unfairly. It should have been different all along the way. It should be different now. But, it was the way it was and it is the way it is.

Here’s the kicker. I believe that the publishers would be wise to rectify the injustices of the past as best as can be done, and to install enlightened policies going forward. I honestly think that would lead to far more great things being created, far greater profits in the long term…and far fewer lawsuits right away.

NEXT:  The Doctorow Doctrine and Other Techno-Tectonic Upheavals

299 comments:

1 – 200 of 299   Newer›   Newest»
Graeme said...

Mike Friedrich shouldn't get anything for "Dark Knight" since it's a term from the 1939-1940 issues of Batman and probably coined by Bill Finger.

Jerry Bonner said...

"the web is a-Blaze" Oh, it's so bad it's good! :^)

Thanks for weighing in, Jim. Hopefully, saner/cooler heads will prevail here and they'll let Gary go with a slap on the wrist, as it were. Not that I think he deserves even that but I understand that they have to protect their properties.

Anonymous said...

Thanks for weighing in, Jim. And great title for this blog entry too

Huw-j- said...

Jim thank you , At last a voice of reason weighs in to the conversation.
Having had my own IP litigation to deal with and having an understanding from both the artist and the owners point of view, it is very easy to point a finger, Bll or otherwise, and blame the publisher. I have no doubt that there are plenty of talented artists and writers out there who would love a peice of the pie that the publishers get from the characters they created while under WFH Leifelds Deadpool comes to mind here. But the fact is if you want to get more than your very reasonable paycheque for your creative talents then go self publish. Dont work for Warner, DC, Marvel and certainly not Disney ... Its easy to voice an opinion but in the end you choose to work under a contract that you have read and understood the terms of or you choose not to.
And while I personally am a Bill Finger supporter I have to say if you choose to sign that contract, you give up your rights according to that contract.

Marc Miyake said...

Dear Jim,

I second Anonymous at 6:12 PM. You are more qualified than almost anyone to comment on this issue.

Could you give a concrete example to differentiate "your services" from "whatever results from the services you perform"?

I think what makes the Friedrich case different from the usual infringement case is that Friedrich was one of the creators of Ghost Rider, whereas, for example, Dave Sim did not create Wolverine and Carl Barks did not create Donald Duck (though he did create Uncle Scrooge). But the fact remains that Friedrich, like Sim and Barks, did not have the rights to Ghost Rider.

Why have publishers allowed the sales of artists' sketches "of trademarked characters at conventions and elsewhere" for so long?

Do you have ideas for "enlightened policies" other than those that you were able to implement at your previous companies: e.g., royalties at Marvel?

I'm hoping your next post will build upon what you said at the Screen Future panel last year.

Anonymous said...

Where would an artist stand if he gave sketches away - say as a loss leader or to promote his artwork (or for any other reason)?

What would happen to someone writing fan fiction about Spiderman or Superman? Could they be similarly open to being sued?

Christopher Helton said...

Part of the problem with this situation is that Friedrich wasn't selling his own sketches, he was selling prints of Ploog's cover art from Ghost Rider issues. I think that is an entirely different matter, and one that would deserve legal action.

Sweattshop said...

Jim, Thanks for taking the time to respond to this issue. I have reposted your article on our comics art forum: http://outcaststudios.com/forums/index.php/topic/11832-the-spirit-of-vengeance-jim-shooter/

Kid said...

Most ordinary people are in the same boat, aren't they? When we get a job, wherever and whatever it is, the employer usually sets the terms and conditions, the rate of pay, etc. We may not think we're getting what we're worth, we may not think we get long enough breaks or holidays, we may think there should be a bonus scheme in place to reward us for record profits or whatever, but we have bills to pay, families to support, etc., so we just get on with it. That's the way it is in the REAL world.

Should comic creators really be treated differently to anyone else?

If we have something of value, whether it be material or intellectual property, and we sell it to a purchaser for less than it later turns out to be worth (whether we were unaware of the potential value at the time or not), then do we really have a case to complain later.

A lot of 'properties' are only worth what they're worth largely because the purchasers/publishers invested a truckload of money into nurturing them and keeping them going for so long. Had DC not invested in Superman for so many years, the value of the concept would probably be worth squat. Surely if a publisher buys a property and puts up the money to launch and continue it throughout the years, then they're entitled to the lion's share of the profits? After all, they took the financial risk?

Having said all that, I still wish Kirby, Colan, and the rest had benefitted a little better than they did, but the fact that they didn't is surely mostly their own doing?

And let's not forget that Seigel and Shuster, for example, made a very tidy profit for a number of years from selling Superman to DC/National, but seem to have squandered it and then asked for more. (In the 1940s, the average American yearly wage was $1,299 - S&S each earned about $50,000 a year, according to a 1942 source, not counting other payments which DC gave them from time to time.)

Looking at things in that context, they don't seem to have been as hard done to as it would appear.

Anonymous said...

@Christopher - so you're saying that Marvel was going after him for Ploog's sake??

What exactly is a writer supposed to sell?? Excepts from old scripts?? lol

Anonymous said...

I have no first hand information about this, but from what I read the circumstances regarding Disney's injunction against Carl Barks paintings was pretty complicated. Barks' paintings were reproduced and sold by fans who had not obtained permission to do so, either from Disney or Barks. After the earlier case against the individuals who had produced, again without obtaining permission, "Mickey Mouse and the Air Pirates," in which Disney lawyers had to go to court to assert their clients rights to protect the image of their characters, they seem to have adapted a much more aggressive attitude.

Not stating what is right or what is wrong. Just saying that it is complicated.

pfgavigan

Anonymous said...

@kid - not really

For one, in other industries - workers have formed unions and gotten a fair shake. In comics they have not, and do not.

Even in Hollywood, the unions have done better at creative people avoiding getting reamed

Also, can you really think of a lot of analogs for a situation where somebody can do some work, and that company can make millions of billions off of it 60-80 years later??

Intellectual property might be the key problem with comparing comic creators to mailmen or what have you

Anonymous said...

why do people today never take a stance and then say "it's complicated"

Is that a new generation thing or something??

Matt I. said...

Well, that's the problem, isn't it? It's not about what's legal, that's obvious, it's about what's right, which is different things to different people. I'm not on Friedrich's side, here, but this piece makes me think of Kirby and Siegel and Shuster, who didn't have any legal right to the characters, but they (arguably) deserved more than they got (doing the right thing regardless of laws is what superheroes are all about, right?)

Also, selling unique art pieces is totally legal. Friedrich was selling reproductions of another person's drawing of Ghost Rider (and I doubt he gave that artist any money, which makes him a hypocrite, doesn't it?), which is not legal.

cesare said...

"Surely if a publisher buys a property and puts up the money to launch and continue it throughout the years, then they're entitled to the lion's share of the profits? After all, they took the financial risk?"

That's a good point.

I always wondered how artists in the alley at cons were allowed to sell character sketches. Seems like a blind eye being turned there, perhaps so as not to rankle the brotherhood of artists? But who would / could participate in a big-publisher boycott anyway? How effective would one be? So, if not that, then why would any publisher allow someone else to make money using their property?

But I don't know IP laws and rights, to the letter that is.

But can I sell my models of Tie Fighters or other branded Space ships? Am I breaking a law there?

If I asked Neal Adams to sketch me LeBron, is that breaking the law? People doing caricatures on street corners? Am I mixing apples and oranges here?

What about selling published pages? How is that different and how does Jim's "you are selling your services, not whatever results from the services you perform." apply there?

Ultimately, I think Jim is right though, and we'll see something come up sooner than later. I wonder how that would affect artist's participating at cons?

sirandal said...

@Anonymous re: it's complicated

Not according to Steve Ditko--black or white, baby!

Christopher Helton said...

No, what I'm saying is that this case is different from an issue of someone selling sketches as a convention.

Kid said...

Anon, not really. "A fair shake" is objective. Unions may have got more than what employers were initially prepared to give their workers, but I doubt that there's many out there (outside of the super-privileged) who truly think they are paid what they're worth.

And just about any company which makes those kind of profits does so from the blood, sweat and toil of their workers, who never get to see a fair share of the profits they collectively make for their employers. Why should it be different in the comic industry?

As for making billions off something 60-80 years later, DC have invested billions into the property for that same period. Without their money, Superman would probably still be lying in a drawer somewhere, gathering dust.

And I make no distinctions between "intellectual" property or any other kind. If you sell something that later turns out to be worth more than you sold it for, then tough cheese.

Dan said...

This is why no one wants to give Marvel or DC any good characters anymore. You just get screwed for it.

What was the last top tier character created for Marvel? Some might say Deadpool (20 years ago). I'd say Wolverine (almost 40 years ago). Compare that to Marvel by '63, and DC by '41...

The industry's main genre, superheroes, is DEAD creatively.

Everybody remembers Kirby. Everybody remembers Siegel and Shuster. Why give the publishers anything new? Why endure that much heartache?

Vinnie Bartilucci said...

"It's not about what's legal, that's obvious, it's about what's right"

No, for the company, it's about what's legal. The company has a legal document, or a number of same, and that is effectively the end of it.

The trick is whether or not the company can be convinced, either with reasoned arguments, or in extreme cases, economic pressure, to amend its legal responsibilities in a way to reward the creators for the work that earned the company so much money, while at the same time in no way weakening the company's claim on the work.

Many checks were sent out to creators before the batman movies were made. Jerry Robinson got an emeritus position at DC (the first since Julie Schwartz, unless I miss my guess) and finally got official creator's credit for The Joker. Ditko got creator credit for Spider-Man when the first film came out (and I hope to god he cashed the check) And I'll lay odds very large legal documets were signed in exchange.

Marvel was not "wrong" to sue Gary, they were just foolish. It's made them look bad. But so far, there's not been too many mainstream reports about the story. And with the film out this week, that's rather a surprise.

I find it interesting that Marvel editorial has been able to avoid making a comment about the whole thing.

Dan said...

@kid --"Without their money, Superman would probably still be lying in a drawer somewhere, gathering dust."

What a monocular point of view! Only the publisher gets credit? I'm not buying it.

Superman INVENTED the comic book superhero as we know it. Give the guys a little credit.

If National hadn't chosen Superman, the genre wouldn't have happened. And where would DC be? Gone like EC. You ever read the rest of Action #1? Every one of those genres died in the 50s.

I think Siegel and Shuster deserve a BILLION times more credit than the publisher.

DC would have put ANYTHING in its new titles--they were DESPERATE for new material. S&S handed them the acorn that grew million dollar oaks. National handed S&S nothing beyond a day job. Not even a retirement, not even health insurance. Not till the movie embarrassed DC badly for their mistreatment of S&S.

Defending National/DC to that degree is ridiculous.

SMOOTHDADDYRIDE said...

the name Ghost Rider was already a golden-age western property owned by Marvel featuring a masked gunslinger on a white horse. The series featured several famous Frank Frazetta covers.

Additionally, Marvel already owned a character that had a flaming skull for a head. The look of the modernized motorcycle version bears a striking resemblance to the golden age Timely character called the Blazing Skull.

I don't remember where I read that the idea was to update the western character and incorporate the look of the Blazing Skull, but maybe Roy Thomas has some interview posted somewhere online to confirm some of this?

http://tytempletonart.files.wordpress.com/2012/02/now-it-makes-sense-revised.jpg

World Famous Psycho Chicken said...

The laws need to change to make Work For Hire retroactively illegal.

You should no more be able to sell your creations wholesale than you can sell your kidneys.

It will never happen with Big Media buying Congress. But it should,

Anonymous said...

@Vinnie - Steve Wacker has made some sarcastic comments on his Twitter about how he's "a total sellout who hates creators" - and Dan Slott has made the generic "people don't know the facts" statements on Twitter

But what do you expect from any company men

Anonymous said...

It just makes me read more webcomics and manga.

Anonymous said...

@World Famous Psycho Chicken --"The laws need to change to make Work For Hire retroactively illegal."

That would be an "ex post facto law", and not only is it unconstitutional in the USA, it is tyrannical. I don't think you understand the negative consequences that would arise if what you wanted would happen. By allowing people to declare past legal actions unlawful, you put everyone in jeopardy. How would you like it if the govt arrested you for an action you did 10 years prior which was legal then, but which the government made illegal just the day before?

Anonymous said...

@ last Anon

Rubbish. We're not talking about making something illegal. We're talking about compensating people for something they did in the past. It's been done before

Kid said...

Dan, what you have to remember is that for every success a publisher has, there are many more failures. One success allows the publishers to risk (and ultimately lose) money on those that fall along the wayside. That means that many other contributors get the chance to make a living for a while, and then get the chance again with another idea when the previous one fails.

And nobody's saying that only the publisher gets credit - but the publisher puts up all the money to begin with, so (in the absence of creators negotiating a better deal for themselves when they sell their property) the publisher should therefore be entitled to a larger share of the profit.

25% (or whatever) of something is better than 100% of nothing and, as I already pointed out, Siegel and Shuster were earning $50,000 a year each at a time when the average yearly wage was only $1,299. $100,000 a year is not to be sniffed at. The boys did well, and any attempts to portray them as exploited paupers seems to be an over-simplification of the facts. Their later financial hardships were partly (perhaps even mainly) as a result of monetary mismanagement and foolishness on their part.

Remember, if the genre had never happened, S&S would never have got their hands on that $50,000 per year, and it happened because National took a chance with a project that several others had already declined.

If I pay an artist to do a painting for me and he thinks it fair to charge me $300 dollars for it, then he gets paid what he's prepared to accept. If, ten years later, someone buys that painting off of me for $30,000, is the artist entitled to expect or demand a portion of the sum which I obtained from selling that which belongs to me?

If the artist later falls on hard times, is he entitled, legally, morally or ethically, to claim that I exploited his ignorance of what his painting would one day be worth (even if I wasn't aware myself) and that he is entitled to a share of the money I made? And what if that painting changes hands several times over the years, jumping in price each time it is sold? Is he entitled to a share from each seller's profits?

As unfair as it may sound to some, I would suggest not. If you've sold it, then kiss it goodbye.

Anonymous said...

I think what Kid is advocating, in a roundabout way, is that comic creators need to grow some balls and demand more rights - ie stop signing up for these work-for-hire deals

If he's not advocating it, I am

Skab said...

This is hardly only a comics issue.

Software is the same way.

Brian Kernigan and Dennis Ritchie developed the core ideas of C Language and the Unix operating system in the sixties.

C is used all over the place, and Unix or its offspring form the heart of the Internet.

Surely, they deserve some riches, right?

The answer, for me as well as them, is no.

All of my daily work is for hire, and I'm fully aware that I don't own it. I am taking none of the risks related to the COMMODITIZATION and MONETIZATION of my labor.

Turning your daily labors into money is a lot harder than you think. The only reason that Captain America is worth more than The Shield, is that Marvel kept spending the money to increase it's value, and whomever published The Shield didn't...

Don't mistake quality as the reason; there is plenty of popular stuff that isn't very good. A lot of it is a ton of marketing, sales, distribution, and deep pockets to weather any storm.

That's why the company deserves the cash... They take literally all the risk. Do the artists and writers give back the money they got paid if the product doesn't sell? I know that I have never given back a paycheck...

-john

Anonymous said...

Sorry John - I don't buy it. There just aren't that many Spider-Man, Superman, or Darth Vader's out there.

Spider-Man was lightning in a bottle. Somebody fucking created him


Your argument might work for some lower-tier, more generic characters like Catwoman or Daredevil

Robert Stanley Martin said...

Ditko got his credit on the Spider-Man movies because director Sam Raimi went to the mat on it. And he isn't credited with co-creating the character. The language of the credit says "Based on the Marvel comic book by Stan Lee and Steve Ditko."

Does anyone know if that is because there is an agreement between Marvel and Stan Lee that says he is to be credited as the sole creator of the '60s characters?

Skab said...

What do credits have to do with it? Nothing at all.

Coprights have nohing to do with credits.

Stay on topic.

czeskleba said...

Robert Stanley Martin wrote: Does anyone know if that is because there is an agreement between Marvel and Stan Lee that says he is to be credited as the sole creator of the '60s characters?
*********************
I've never heard anything about there being such an agreement between Lee and Marvel. Can you cite any instances where he is credited as creator of a character but Ditko or Kirby is not? My guess is that they refrained from giving Ditko creator credit because they are worried it might in some way lend credence to a lawsuit down the line. Typically creator credit is given after someone has signed documents clearly renouncing all possible ownership of a character, as was the case with the deal Siegel and Shuster made in the late 70s.

Tom Hartley said...

For Disney/Marvel to sue people for selling sketches of Marvel characters at conventions would not just be greedy, it would be stupid. Marvel would be suing its own freelancers, for whom selling sketches, and pages of original art, at conventions is a good source of income. To forbid them to sell sketches would be like asking them to take a huge pay cut. Someone please explain to me how this would be an incentive for talented people to continue working for Marvel.

Tom R said...
This comment has been removed by the author.
Tom R said...

Sorry, too many typos on my previous comment.

Doing an original sketch of a copyrighted character upon the unsolicited request of another person is very different from doing them under a sign that reads : "Git Yer Wolverine Drawrins' Here!" A private individual can commission an artist to create a piece of original art of virtually anything they want, even copyrighted characters, and it is a one-of-a-kind original. However, doing a batch of batman sketches and selling them as a product is different, and reproducing a sketch of a copyrighted character and selling the prints is a definite no no.

Tom Hartley said...

Every professional artist who rents a booth at a convention or has his own website IS saying, "Getcher Wolverine drawrins here."

jimshooter said...

Dear Graeme,

RE: "Mike Friedrich shouldn't get anything for "Dark Knight" since it's a term from the 1939-1940 issues of Batman and probably coined by Bill Finger."

And Bill Finger's estate didn't get anything either, I'll bet. It was oft said around the biz that Mike Friedrich came up with "Dark Knight," but I do not doubt you. Maybe Mike just revived the name or came up with it independently.

jimshooter said...

Dear Marc,

RE: "Could you give a concrete example to differentiate "your services" from "whatever results from the services you perform"?"

What I mean is that a W4H penciler is selling his penciling, not his penciled pages, and not even the pencil marks that wind up on those pages. He is selling his time/effort, more or less, not the resulting end product created by his time/effort. The employer is for all intents and purposes the author of W4H work. It's as if the entity called Marvel wrote and drew the first Ghost Rider story.

RE: "I think what makes the Friedrich case different from the usual infringement case is that Friedrich was one of the creators of Ghost Rider...."

Sadly, though we tend to talk about the people we know really did the creating, under the law, as it exists, Marvel Comics created the Ghost Rider, not Friedrich, not Ploog. Yes, that sucks, but there it is.

RE: "Do you have ideas for "enlightened policies" other than those that you were able to implement at your previous companies: e.g., royalties at Marvel?"

I have many ideas. Too long to explain here, but I will soon.

jimshooter said...

RE: "Where would an artist stand if he gave sketches away - say as a loss leader or to promote his artwork (or for any other reason)?

What would happen to someone writing fan fiction about Spiderman or Superman? Could they be similarly open to being sued?"

In this country, pretty much anyone can sue anyone for anything. If you're making money off of someone else's trademarked property, you're asking for it. If there is no money or any other valuable consideration involved, as I understand it, the plaintiff would have to prove that they were damaged in some way. For instance, even if the Air Pirates had given away the infamous poster of the Disney characters engaged in disreputable behavior, Disney, I believe, would still have had a case against them for the deleterious effect such a portrayal might have on the images of their squeaky-clean properties.

Any lawyers out there want to confirm or dispute the above layman's assessment? Brandy?

jimshooter said...

Dear cesare,

RE: "But can I sell my models of Tie Fighters or other branded Space ships? Am I breaking a law there?"

I'm not a lawyer. I don't even play one on TV. And I didn't stay in a Holiday Inn Express last night. But I suspect that selling an object you own, legitimately, be it a model or a page of comic book art you acquired honestly is probably okay. And it's really not about breaking the law in the sense of committing a crime -- it's more like, are you damaging a rights holder under the rules of fair play that have been codified?

RE: "If I asked Neal Adams to sketch me LeBron, is that breaking the law? People doing caricatures on street corners? Am I mixing apples and oranges here?"

Now, I'm getting out of my depth. LeBron is a public figure...I doubt that anyone selling a drawing of him would have any liability. But, I suspect that if someone established a lucrative business selling his likeness, LeBron might have a case, like TV star Ed Sullivan's estate did against a restaurant upstate called "Ed Sullivan's" (even though that was the owner's name!). I suspect that, again, the issue would be damages. Anyone can sue anyone for anything. And my real answer is, beats me. Help, lawyers!

jimshooter said...

Dear Tom,

RE: "For Disney/Marvel to sue people for selling sketches of Marvel characters at conventions would not just be greedy, it would be stupid. Marvel would be suing its own freelancers, for whom selling sketches, and pages of original art, at conventions is a good source of income. To forbid them to sell sketches would be like asking them to take a huge pay cut. Someone please explain to me how this would be an incentive for talented people to continue working for Marvel."


What if Disney/Marvel suspected that continuing to turn a blind eye to con sketching would invalidate all their trademarks? Let's see...upset creators or risk rights issues? There are lots of creators, many out of work these days, some of whom would cheerfully observe a con sketch ban if it meant having a job.

jimshooter said...

Dear Tom R.,

RE: " A private person can commission an artist to draw or paint anything they want, even Mickey Mouse, as a piece of original art, and the copyright holder has little to say about it."

The issue is damages, not the first amendment. The convention and commission sketch business is huge. Anyone can sue anyone for anything. Trademarks can be lost if not defended. Coke and Pepsi really do send people to restaurants to check that if their product is ordered, the other one isn't presented. Xerox actively militates against copies being called "Xeroxes." Bayer lost the U.S. trademark for "aspirin."

Tom Hartley said...

Jim, I have no doubt that so long as Marvel continues to publish comics (which may not be much longer), it will always find people who are willing to write and draw them, no matter how low the pay or how bad the working conditions may be... especially in this crappy economy. The history of American comics publishing is a history of doing things on the cheap: "It doesn't have to be good; it only has to be on time." But the top talent, people like George Perez, can find work elsewhere. They can walk away from Marvel. Of course, there are plenty of past examples of comics publishers alienating their top talent. If Marvel were to forbid freelancers from selling original art featuring its copyrighted characters, it would one more example of Marvel treating its freelancers with contempt, and proof that "on the cheap" is still its business model. It's a business model that has worked for comics publishers in the past, but is it still viable today?

Anonymous said...

Just off the top of my head, I know a couple of dozen excellent artists who would cut off their ear and agree to any kind of commission ban to work for one of the Big Two. Big name artists can be replaced by up-and-comers who become the new big names, and the current crop knows it. They'd be fools to pick up their dollies and walk away just because they were told to quit breaking the law.

giantsquidstudio said...

Do you think artists selling their pages is in jeapoardy now as well? Selling sketches and pages is a much-needed source of income for comic book artists as page rates really aren't enough to earn a comfortable living, unless you are one of the "super stars".

GePop said...

A couple of quick things...

It hasn't been unheard of for Marvel and DC to work out some sort of compensation deal with creators long after the fact of their work-for-hire service on a character, particularly if that character is being translated into a film or TV series. The sums, understandably, aren't vast, but for an artist or writer who is perhaps now in retirement on a fixed income, it's surely welcome. This isn't just the publishers throwing a bone out of the goodness of their hearts...they're wisely looking to head off potential lawsuits when a character starts to generate real Hollywood money. Perhaps Marvel declined to offer such a deal to Gary from the get-go because they did not consider him a primary creator of Ghost Rider, and thus felt he had no legal grounds to file a suit.

However, Marvel and DC have been inconsistent in their determinations of who ought to get such deals and who shouldn't, seemingly leaving it largely to the whims of lawyers (who, I'm sure Jim can attest, almost never have the slightest inkling of how comics are made and who plays what role in making them happen).

And regarding fan fiction, I know that it is becoming a standard among publishers of media tie-in novels to include in their contracts with writers a clause expressly forbidding them from reading any fanfic. There's no sure way to determine if an author is adhering to that clause, of course, but it nonetheless is believed to protect the publishers; say, for instance, they publish a Star Trek book with a plot strikingly similar to a work of fanfic that was posted to the web a few years previous...the publisher's lawyers believe they can rebuff a suit by the fanfic writer on the grounds that their own author never read the fanfic, because their contract prevents them from doing so.

BrittReid said...

smoothdaddyride sez...
"the name Ghost Rider was already a golden-age western property owned by Marvel featuring a masked gunslinger on a white horse. The series featured several famous Frank Frazetta covers."

Actually, the Frazetta covers were on the FIRST Ghost Rider series from Magazine Enterprises.
ME went out of business, and Marvel decided to use the name Ghost Rider after the trademark lapsed.
(A practice they began with Daredevil and continued with Captain Marvel, both of whom had non-Marvel Golden Age versions)
Oddly, they not only used the Ghost Rider name, but the exact same costume and weapons/gimmicks (they did change the character's origin and secret identity.)
And, they had the artist of the original series, Dick Ayers, draw the new series!

BrittReid said...

"@World Famous Psycho Chicken --"The laws need to change to make Work For Hire retroactively illegal."

That would be an "ex post facto law", and not only is it unconstitutional in the USA, it is tyrannical. I don't think you understand the negative consequences that would arise if what you wanted would happen. By allowing people to declare past legal actions unlawful, you put everyone in jeopardy. How would you like it if the govt arrested you for an action you did 10 years prior which was legal then, but which the government made illegal just the day before?"

Unfortunately, that's exactly what happened recently when numerous PD books, movies, etc were removed from the Public Domain...
http://yro.slashdot.org/story/12/01/18/2247223/us-supreme-court-upholds-removal-of-works-from-public-domain

Tom Hartley said...

I thought the Johnny Blaze version of Ghost Rider (never mind the '50s western) was based on a biker tattoo. Wouldn't the artist of that tattoo be the real creator of Ghost Rider?

Anonymous said...

"Help, lawyers!"


Shh, Jim! They might hear you... :)

t.k.

Shane T said...

I've got to say, for someone that isn't an attorney in IP, Jim certainly has a firm grasp on the issues at hand in this matter. He really nailed many of the more complex parts of what constitutes work for hire in a simple, easy to understand manner, and kudos to him for bringing up the complexities rather than jumping on the bandwagon and simply stating as the Hulk might, "Bad company hurt artist!".

While I'm not intimately familiar with the entire background of this suit, I have to say that the decision to go after sketches drawn for profit made at conventions does seem excessive, but as Jim pointed out, if you have a trademark, you're OBLIGATED to protect it against infringement or dilution. Failure to do so can be construed as trademark abandonment, or even if not that heavy a consequence, as a civil version of selective prosecution, meaning that if you are Marvel, and you decide to let the issue of the sketches slide, (especially if it's been entered into court proceedings that this had been taking place, say, in a lawsuit brought against you) you may not be able to go after someone that's infringing on your trademarked property in the future, since you did nothing to protect your mark against unlawful use in the past.

In a lot of ways, this reminds me of the issue that hit bakeries around the country in the early to mid 90's. I'm sure many of you remember, and have fond memories of, having a birthday cake made for you at a local cake shop with Spidey, the Hulk, Fantastic Four, etc. heroically adorning the cake top, sculpted in icing. Then, seemingly without warning, your local baker Mario (you didn't know he baked before getting into plumbing?), told you he couldn't make that cake for you anymore, lest he would be sued, by the big, evil companies that owned the rights to these characters. Ten year old, heartbroken tears ensued.

That came about because of exactly what I'm talking about above. Marvel and other big companies didn't really care (and more importantly, didn't really know) what small-town baker Mario was doing to decorate his cakes, their problem was with the big supermarket and bakery chains, who were using their characters without any kind of license, all across the country. When the owners of these copyrights stepped in, and said to the big supermarkets, "Hey, pay us for our characters and designs, you're using them to sell cakes!", the big chains said, "Well, every bakery around the country does this, and you do nothing to stop them, why are you focusing on us? That isn't fair." You can see where this is headed, or at least companies like Hostess, Sarah Lee, Nabisco, Kraft, and others could. "You mean we don't have to pay millions in dollars to use these characters?!?!" Drooooool.

Of course, what actually happened was that the copyright and trademark holders had to step in, and tell small bakers like Mario not to use their property anymore, resulting in many tear-faced youngsters across the country. Did they want to do that? Probably not. Did they have to do that in order to protect their property? Damn skippy.

If Ben Grimm went into law rather than aeronautics, he probably would have put it something like this, "What's legal ain't always fair, and what's fair ain't always legal, but sometimes you get a little bit of each to get by.", and that's the truth here. I doubt that anyone at Marvel or their outside counsel saw the $17k that they were awarded as a "payday", which wouldn't even cover 1/2 of a month of legal bills in a case like this, but they were compelled to act because they were made aware of the selling of sketches by this individual. Now, Marvel may decide to become woefully unaware of other individuals selling similar sketches, but if it becomes prominent, through a lawsuit, TV program, etc. then they'll have to act, and now there's a legal president that they have in their favor.

Greygor said...

If this was an ex-employee of Apple who designed how the iPod looks and who had taken Apple to court because he wanted a cut of Apples profits. In addition during that time he'd been selling iPods at electronic conventions.

Would anyone be surprised that he didn't win his case in court or been countered sued by Apple.

I think the answer for many is no. Apple are protecting there IP because as a business they are expected to do so.

Of course this is not a directly related example, but I'm just using it to try and illustrate what I mean.

For some reason when a comic company is involved a storm of protests seem to happen. It's almost as if readers think that the creative world is different from the business world. Comic companies are a business, they are there to make money. Hopefully they do that by producing great comics that we like to read. But bottom line, they are a business that must show a profit and will protect there property in the same way as Apple, Mercedes, GE would.

Jerry Bonner said...
This comment has been removed by the author.
Anonymous said...

I'm not sure why people believe there is a legal difference between a print and a commission. There isn't.

Selling a commission is an infringement of copyright and a violation of law unless you have a license to do so. no different than paying someone to make a movie with the Star Wars characters.

In practical terms, mass produced prints, like t-shirts, are noticed more and cracked down on more.

The money in commissions used to be small and it wasn't worth it plus old creators had no money so why not? Good publicity for the company and the companies-other than Lucasfilm and Disney-did not crack down much.

But now people are getting huge sums for commissions.

Take John Byrne. He bad mouths Marvel constantly. He publically calls Quesada-a big shot at Marvel-a liar. He's attacked him for being late on something when his mother was dying. He's called him many names.

How much publicity is he really giving then? and, based on # of commissions, which he handy dandy keeps track of on his site, along with his well known prices, its easy to see that he's made hundreds of thousands fo dollars just in the last 7 or 8 yrs on commissions. For Marvel and DC (note Byrne refused to do commissions on litigious company characters like Disney or Lucasfilm-but now Disney IS Marvel).

He seems to be an attractive target/warning.

I mean Disney sent a cease and desist to a nursery school that painted the characters on their walls (Universal stepped up and agreed to let the nursery school put up their characters instead. for good publicity/shot at Disney).

Moreover, they could even put enforcement on the big cons for commissions and prints sold there.

Whether they will, i dont know. But they can. Every instance of selling/publishing (which includes a website image) of a copyrighted/trademarked character is a violation of copyright law and a potential weakening/dillution/infringement of trademark.

Rob

Jerry Bonner said...

First, in regard to the Gary selling the GR artwork, I assumed he was doing the sketches/art himself; not selling old Mike Ploog reproductions. If he wasn't giving Mike a cut of that (or even asked for his permission) then, yeah, that's utter bullshit and he shouldn't be allowed to do it...lawsuit or not. I'm surprised Ploog hasn't jumped on this bandwagon as of yet. Does anyone know if he has commented on this fiasco as of yet?

Secondly, in regard to fanfic...ask Steven Vander Ark about that topic. He's the poor guy that broke down on the stand when JK Rowling's lawyers beat him into submission over his fanfic site and the Harry Potter Lexicon. I lost a ton of respect for Ms. Rowling that day...but I'm sure she'll get to worring about that once she's done counting her MOUNTAINS of money.

Anonymous said...

Friedrich also commmissions original drawings and then was selling prints of those (wth knowledge of the artist) from what i heard.

Ploog is irrelevant even if prints are made of his work. It's all Marvel.

Rob

Brent E said...

Rob,

Thanks for posting that, you beat me to the punch.

Many people on here seem to be lumping together the available defenses to a copyright or trademark infringement. Sure parody is one, however that's definitely not the case with commissioned artwork. I think the most applicable law on this subject involved an individual selling prints of the three stooges that he drew himself. (Somebody asked about drawing Lebron, and this same thing also came up in actual case regarding Tiger Woods.)

In that case, the court used what's sometimes called the transformative test, essentially: whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative."

As with much of judge made law, this is based on numerous factors (essentially a totality of the circumstances approach). Again, going back to Lebron James, the court would ask, "does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted?"

Essentially, commissions at a convention have not been put before the court today, but it's very possible each commission is in fact an infringement of the original companies IP rights.

(See http://www.law.cornell.edu/copyright/cases/25_Cal4th_387.htm for the full case)

Anonymous said...

One other aspect to consider...
Disney and the rest want our laws to match European copyright law EXCEPT in one important aspect, how work for hire creators are treated...
In Europe, work for hire creators have the right to refuse to allow reprints of their work produced within a collaborative framework (a right Alan Moore has exerted several times with both Marvel and DC reprinting his British stories), and, if their fictional creations (even within the work-for-hire context) are re-used by others, they have to be compensated!
The most famous example of this are the Daleks of Dr Who fame!
Terry Nation created the Daleks for the second Dr Who serial.
They became so popular that "Dalekmania" swept thru Europe in the mid-1960s, matching Bond-mania and Bat-mania for both fannish intensity AND merchandise sales!
There were two movies, one of which didn't even mention Dr Who in the title!
Every time a toy Dalek was sold or they appeared on the show, Nation got a piece of the profits!
Nation was in so strong a position that he was able to wrangle certain licensing and merchandise right from the BBC in return for them to be able use the characters in new Dr Who stories!
(Imagine if Siegel & Shuster or Jack Kirby had THOSE rights back in the day!)
Nation was able to produce his own non-BBC Dalek books, comics and other merchandise (which avoid the use of Dr Who, his companions, and other aspects of the WhoVerse)!
That's why, when Dr Who returned in 2005, one of the mandates was that any NEW characters would be created in-house, then assigned to writers!

Brent E said...

Regarding the commission issue, artist Sean Murphy has also realized the legal implications:

"Regarding the debate of whether comic artists should continue selling unauthorized prints/sketches of characters they don’t own, I think Bissette and his legal advisor are 100% correct. So from now on, I won’t be doing any sketches or commissions at shows of any character that I don’t own. Am I rolling over in fear of Marvel? Maybe, but as it states below, they’re in their legal right to come after me if there’s ever a dispute. I love to complain about the Big Two, but I can’t (in good conscience) get upset at them if I’m breaking the rules myself. Being DC exclusive, maybe I can get a waiver that allows me to sketch DC characters, so I’ll keep you updated."

eRAWtic said...

I’m in over my head when it comes to Law, so I’ll just offer a few observations:

1] Am I understanding this correctly, that if Gary Friedrich had purchased a Marvel-approved print / poster and then charged the money for his signature on it, he would be in the clear on that issue?

2] Mr. Shooter has stated that, by law, entities can - and do - lose their Trademarks for failing to defend their properties sufficiently. Is it possible that publishers have ALREADY allowed the Artist Alley / commission / eBay /sketchbook sales go on too long to legally reverse the situation now?

3] As I recall, the publisher Blue Water only pays its comic book creators if the book turns some type of profit. There are some exceptions, and I have no idea if the profit is “net” or “gross,” but just the same they seem to have little difficulty finding people to produce their books to that model. I could see mainstream publishers loosing superstar creators to tougher W4H conditions, but there would also be no shortage of new, raw talent for them to bring in and promote into the superstars of the future.
4] Sidetracking a bit to Jack Kirby: I don’t understand why the Kirby estate is only suing Marvel and not DC as well – where [at DC] there seems to be a clearer claim to previous and sole creation of the Fourth World properties. Is DC already giving the Estate some participation in their Kirby properties that Marvel is not, or will the Kirby Estate be making a claim on DC at some more appropriate time down the road?
5] You own a professional sports team in the NFL, NBA, etc. You’re taking the financial risk for salaries, coaching, training, equipment, venue, promotion, etc. You think that you should get the lion’s share of the profits – but – to make your investment pay off you need to put people in the seats and have those same people willing buy tons of the merchandise associated with your team. To do that you need a class of players who will win in a manner that brings those people on board. The better your team is the more people are willing to pay you for seats and merchandise. To get the players who will make your team “saleable’, you see the logic in compensating these players well – you don’t have to give them the biggest piece of the pie, but you see that they are going to give you a BETTER pie when they don’t have to settle for just some of the crumbs.
I think Publishers would be wise to follow the sports model and start seeing their creators as being an integral element in getting and keeping large numbers of people interested enough in their properties to spend the money on them. Right now publishers are lucky to still be riding on the nostalgia associated back to their glory days - Down the road, I think publishers are going to have little choice if they hope to survive. The poor state of sales clearly tells us that CURRENT generations show little interest in comic book properties. One or two decades down the road these generations are unlikely to be spending much money for merchandise and movies based on properties they care nothing about.

Anonymous said...

Shane T..."president"? I think you'll find it's "precedent".

Anonymous said...

I'm sure we could have figured that out, anonymous.

One creator has announced no more commmissions of the Big Two characters

http://seangordonmurphy.deviantart.com/journal/No-More-Unauthorized-Artwork-285030622

"So from now on, I won't be doing any sketches or commissions at shows of any character that I don't own. Am I rolling over in fear of Marvel? Maybe, but as it states below, they're in their legal right to come after me if there's ever a dispute. I love to complain about the Big Two, but I can't (in good conscience) get upset at them if I'm breaking the rules myself. Being DC exclusive, maybe I can get a waiver that allows me to sketch DC characters, so I'll keep you updated."

Rob

Anonymous said...

eRAWtic,

There was a change in copyright law that allowed those who had copyright and then transferred it to another, to reclaim that copyright. Kirby estateargued he had the copyright to the marvel characters and transferred.

However, the time to reclaim 1970s properties has not come up yet. (its also possible that there are other issues, as well. I understand DC treats old creators better with royalties and stuff so maybe they never will go after DC. Or the contractual language may be stronger on the Work for hire issue but it's still too early regardless).

Rob
The time period for doing so

Anonymous said...

The big companies are aware. I live in Tulsa Ok.and even here I know of examples of companies defending their properties, TM, etc. There is a convenience store here called "Batman's". DC went after the owner. The owner's last name is actually "Batman" believe it or not. I guess in some parts of the world that is actually a surname. anyway, the store owner won the use of "Batman's" but with major restrictions. The company I work for bought new banners for one of their locations. Orange and purple, very striking. They were up less than a week when we received a "cease and desist" from Fed Ex. So now someone in the company has $20,000 worth of new banners in their garage. I know of a car lot that used the name "Tulsa United Motor Sales"--TUMS. logo--"The no heartburn deal". Cease and desist. They had to change all the signage and use the full name. I know of others, but you get the drift.

Neil

jimshooter said...

Dear giantsquidstudio,

RE: "Do you think artists selling their pages is in jeapoardy now as well?"

My guess is no. I think that the terms of the artwork return are pretty bulletproof, so the publishers have no loss-of-rights exposure But, who knows what evil lurks in the hearts of publishers? : )

BrittReid said...

In the early 1980s, DC was preparing to unleash the Super Powers line of merchandised products which had a heavy emphasis on Fourth World characters created by Jack Kirby.
Jeanette Kahn, Paul Levitz, and Joe Orlando, realizing that, based on Kirby's old contract, the King wouldn't get a cent from the licensing, arranged for Jack to redesign the Apokolips and New Genesis characters, enabling Kirby to receive royalties based on the idea that these were "new" versions of the characters, and that they would be covered under the recently-revised contract structure that gave creators both reprint royalties and a percentage of merchandise sales for characters created after, IIRC, 1982.
(The New Gods, Mr Miracle, et al, were "legacy" characters created before 1982 and thus not covered by the revised contracts.)
Now THAT'S the sort of thing Marvel should be doing!

Anonymous said...

Mr. Shooter,

Does a write get paid more or an artist, generally?

Im curious becuase it seems that the artist has a lot more ways of making money. A writer can sell a script he wrote but he can't really make a commission as easily as an artist and sell it at a con, and the artists get the bulk of original art (as i understand it).

So pretty much, a writer has to keep writing new stuff i guess.

Do writers get original art? Even now when there is often no dialogue on the page?

Rob

giantsquidstudio said...

@Anonymous: I don't know about other companies, but at Marvel writers DO get some pages. The pages redivided between the penciler, inker and writer, the 1st two getting the bulk of the art.

Mark said...
This comment has been removed by the author.
giantsquidstudio said...

@Jim: Regarding pages....I certainly hope things don't change there, as it is the only way that creators can make additional money. This makes me wonder though that if the publishers DO go after those selling pages, will they be trolling sites like EBay as well...asking the times to be removed from the sites? Will publishers go after profits made retroactively?

This would ruin so many lives.

Mark said...

Kid wrote:

Siegel and Shuster were earning $50,000 a year each at a time when the average yearly wage was only $1,299.

When adjusted for inflation, the $50k that was earned in 1942 is the equivalent of earning $692k in 2012. It certainly puts those claims of ill usage in perspective, doesn't it!

Anonymous said...

The pages are owned by the people who have them so i dont see how they could stop those from being sold. It's not the same thing as creating a new work. it's like selling an authorized DVD.

Rob

jimshooter said...

Dear Rob,

RE: "Does a write get paid more or an artist, generally? (...) Do writers get original art? Even now when there is often no dialogue on the page?

Generally, artists are paid more per page than writers. Writers do not receive original art pages these days. At Marvel, under Roy Thomas's art return policy (in the 1970's), writers got a small share of the pages and last choice.

Anonymous said...

A previous poster said there had been no top tier characters created in the last few decades. I agree. He mentioned Deadpool. Maybe, but does he have legs. Gambit. He seems to have faded.

The problem is the big 2 have no motivation for the creator to create an iconic character. I guess as long as they are writing/penciling the issues with the character they would get a bonus for high sales, but as soon as they are off the title it's over. It seems the big 2 would have a program for creators that gave them a piece of the character from now on. I know that it is usually a different incarnation that takes off, but they would still get some percentage. Yes, it would get diluted between creators over time, but they would still have residual income coming in if one of their characters took off. Even if it was years later. For example, the Dire Straits song "Money for Nothing". Sting sang the intro and they used the "hook" from "Don't Stand So Close to Me". Sting got part of the royalties for his contribution.

Neil

cesare said...

Some artist openly sell NEW artwork on-line featuring characters they don't own for HUGE money. I don't get it.

I can draw pretty well, I can even ape other artists styles. What if I decide to sell sketches on ebay, say a an Adam's Supes, not claiming that its a real Adams, just a a repro? I've thought about it, but it seems to me that I would be asking for it.

I'm not coming down on any side here though, I'm just very curious because I DO think that sooner or later, this issue is going to blow up.

Kirk Lindo said...

I would like to give the following advice to my fellow artists.

#1- From now on, do not sell any original art, prints or commissions of characters for which you do not own the Trademark or Copyright.

#2- If you have in the past sold any original art, prints or commissions of characters for which you do not own the Trademark or Copyright, Do not attempt to sue Marvel/Disney, DC/Time Warner or anyone else from which you have made a profit from their intellectual property.

It's always better to be safe than sorry.

Aaron Scott Johnson said...

Dan said:
"This is why no one wants to give Marvel or DC any good characters anymore. You just get screwed for it.

What was the last top tier character created for Marvel? Some might say Deadpool (20 years ago). I'd say Wolverine (almost 40 years ago). Compare that to Marvel by '63, and DC by '41...

The industry's main genre, superheroes, is DEAD creatively.

Everybody remembers Kirby. Everybody remembers Siegel and Shuster. Why give the publishers anything new? Why endure that much heartache?"
-----------------------------------

I agree with this wholeheartedly. Some might argue that other publishers like Image offer creators an opportunity for exposure while retaining full ownership of their properties, but even some highly-paid creators (Warren Ellis having come out and said as much after releasing Fell) cannot afford covering the upfront cost themselves, waiting for their payment on the back end.

There will never be another Kirby or another Finger if creators fear being treated like...well, Kirby and Finger.

Anonymous said...

The decision against Friedrich is sad and probably will threaten the whole concept of Artist's Alley.

But it also confirms in my mind something that I've posted before and others in this thread have echoed.

Namely, that the continued failure of modern writers to win any legal concessions for their ideas -- including ancillary characters (DeCarlo on Josie, Wolfman on Blade, etc) -- pretty much guarantees NO writer worth his salt is going to create something new with real potential just to see the Publisher alone (particularly Marvel, DC) to reap the profits.

Some writers might finagle a deal going in (Gaiman on Sandman, Johns on Star-Spangled Kid II) but mostly we are at looking continued retreads (or vast overhauls) of existing characters that the Publisher already owns.

How many writers are holding back because they know they will probably get nothing if the BIG NEW CREATION really takes off and gets licensed -- esp to movie and TV studios?

And how many really GOOD writers have left the mainstream field altogether to either take jobs with independents (whose financial situation is probably very precarious at times) or left the field for those greener (movie, tv) pastures?

When I think of all the true "idea factories" of my youth that no longer write mainstream comic books, I feel even stronger than ever that the modern comic book industry is continuing a downhill slide towards oblivion.

Not with a bang but a whimper.

Jim, I know you experienced terrible editing and artistic interference when you last worked for DC on LSH and that's probably soured you on working for them in the near future.

However, if circumstances changed to induce you to take a DC/Marvel writing gig, would you still bring your full creativity to the table if you knew you would simply be WFH with no profits for whatever you do?

You are NOT obligated to answer that if you don't want to do. Who knows who read this thread?

Dennis

PS: As much as I admire your writing, I wish you would get hired as an editor (or preferably an EIC). You have SO much you could teach these clowns.

giantsquidstudio said...

@Aaron:Agreed. I know of one fellow creator that has said as much. He saves his better creations or ideas for himself.

Anonymous said...

On a somewhat related note, Alan Moore spoke out about the Watchmen prequels yesterday. He said he was heartened by fans' negative reactions to it - I was very glad to hear that

Bobby P said...

Great topic.

In relation to copyright the laws seem to change every few decades. It was only a recent change in law that allows for the Termination of Copyright.

As is it with the Superman ongoing case.

I wonder if the copyright laws change one day, and it's determined in the creative fields, that the people who are labelled "Word For Hire" get a partial ownership of the characters and stories they create.

What then would happen in comic books? All it would take is one simple change in law.

And then suddenly people who had no legal right to what they created, will suddenly have "legal rights".

Kind of interesting when you think about it that way. One legal law change is all it would take.

I'm sure big companies like DC, Marvel, and all other creative fields would hate if that day ever happened.

And while I mentioned the topic, I wonder what Mr. Shooter things of the Superman case?

I'm sure DC is living in fear of losing half and then later all of the copyright.

Anonymous said...

@Bobby - I think that is just it though. Laws don't just simply change. Writers and artists will have to band together somehow and force a change - whether it be some kind of unionization, or some of the really big names banding together first, what have you

But as with human nature, writers and artists themselves are currently standing in the way of this - whether it be people like McFarlane - who founded a company based on creator's rights, and then kept money from Neil Gaimen, or whether it be the mindless yes-men that currently write and draw for Marvel, and who spout the company line in opposition to creators' rights

giantsquidstudio said...

@Anaonymous reply to Bobby: Sadly, I think that will never happen. As long as there is a kid who dreams of becoming a comic book creator or even a veteran fallen on tough times, there will always be someone out there to underprice whatever guidelines/rates are set up. And publishers will hire those individuals.

Anonymous said...

@giantsquid - I agree. It is probably unlikely. And big change like that is painful, and will take a fight. But, given how archaic some of the policies in comics are, there is an impetus for a big change, so it just could happen

Vinnie Bartilucci said...

Jim mentioned something that I've been saying all along - a one dollar limited license.

All those harry potter sites that WB threatened to shut down SHOULD have instead been offered a "non-profit non-exclusive website license" dealie. Include this bit of legalese on the website, no porn, and if you make more than XYZ amount on the site via advertising or some such, we reserve the right to re-assess. Same for any fan-run website. It proves that the company enforced its copyright. Maybe donate the dollar to a charity to take the curse off money changing hands.

DC and Marvel (all publishers, really) could, and indeed may have to based on this mishegas, put together a similar agreement. In order to legally draw our characters, you have to do x, y or z. Yes, it's more restrictive than the Do What Thou Wilt world of Artists' Alley today, but it'd be cheaper than all those lawsuits, and likely make the publishers look GOOD by nipping this hysteria in the bud.

There is enough money on the table now that if something reasonable isn't done soon, something stupid will be done later.

JayJayJackson said...

Vinnie makes a very good point and I think if companies were being run by actual humans with brains of their own that's something they would consider. But since these companies are corporate entities who's every decision has to be justified to stockholders and parent companies who want a bigger and bigger return on their investment and don't understand anything else except the money the company is putting into their pocket no decision that makes that kind of sense can be implemented. It's sad.

Video Beagle said...

An issue that gets left out in these "The creator should get blah" discussions is the TRUE issue of what's fair.

Let's look at Ghost Rider, since it's the topic of the day.

Gary Friderich created him...maybe.
Or he retooled an older western character Marvel owned and/or merged the idea with the Blazing Skull character...

How about Mike Ploog? Or Roy Thomas who helped Ploog design the visual look of the character.

What about Howard Mackie & Javier Saltares. They revamped the 70's character, not necessarily unlike how Friederich (may have) revamped the western character...and they're version is what led to the character's lasting popularity (and certainly the visual look used in the films and cartoons). Even the new female Ghost Rider visually resembles the 90's biker look more than the 70's stunt cycle design. Do they get a slice of the pie too, or no because someone else had the idea of mixing the Exorcist with Evil Kanival?

Anonymous said...

They may save them for themselves but on the other hand, while there's been a handful of successful/great independent characters, there hasn't been too many of those either, and certainly not a whole universe full like was done in the 40s and 60s.

I think more than creators holding back, its simply that comic book readers like their old characters. They dont spend much money on the new ones. Even good new ones.

Rob

giantsquidstudio said...

@Video Beagle: Great point, that's actually part of the debate too. So many talented people contribute to the mythos of these characters and they should get some credit/compensation as well. Unfortunately this specific case isn't about what what is right, but what the legalities are.

Jim made a great point in that Marvel HAD to defend it's copyright.

Anonymous said...

There is the comic book Ghost Rider and the licensing Ghost Rider. I can promise you no one is going to be making a female Ghost Rider movie anytime soon. It depends on what incarnation is being used as to who gets what.

If the current comic book version is female, rides a Harley, is more of a biker then Friedrich would get less of a percentage. But they aren't using the female version in the movies, they are using "Johnny Blaze" which is arguably the definitive version. Ala, Hal Jordan. Friedrich created the version, he would get a much bigger percentage. If they used the biker motorcycle instead of the stunt bike then whoever came up with that aspect, I guess the creator from the 90's version, would get a smaller percentage for that part. It's all about contribution to the incarnation that is being used.

Neil

cesare said...

There is original art up for auction on Ebay in support of Mr. Friedrich. It features a character not owned by the artist. (And the asking price is not insignificant) The artwork, a cover, was done W4H, I would think, and now its the equivalent of a page sold at cons.

It just smacks of irony if you ask me......

MACHINE-HEAD said...

I've no sympathy for this pr*ck whatsoever. He didn't think Marvel owned Ghost Rider lock, stock & barrel? Yeah, right. He took a big gamble and it didn't pay off. Was cash suddenly going to be dished out to everyone that had a hand in any concept(or revamp) regarding these characters over the years? He should have quietly went about his business, making a few bucks on the convention scene or internet. And what about Marvelous/Distinguished sketches, prints, and commissions:We'll have to wait and see what kind of damage has been unleashed; and for that alone, Friedrich should pay. That's it. I've got to go now and vomit somewhere.

Brent E said...

Cesare,

I think it's already been covered here, but original artwork (the actual pages given back to the artists, inkers, writers) is quite different from commissions or prints of characters done unauthorized.

I can't see any illegality whatsoever to selling the former, while the other is fraught with IP infringements

jimshooter said...

ANSWER:

RE: "Jim...if circumstances changed to induce you to take a DC/Marvel writing gig, would you still bring your full creativity to the table if you knew you would simply be WFH with no profits for whatever you do?"

There are some incentives for creators at the big houses. If I take a job I do my best. I always do. I hold nothing back. I never do.

When last I wrote The Legion of Super-Heroes, I created new characters every issue -- heroes, villains, supporting cast -- and new concepts. Some would have become significant if I'd been allowed to continue -- like Gazelle, M'rissey, the Imperatrix, Spy, Ikilles, Cazhmir, the Commodore, Kublai, Meander, Idjit, and the U.P Young Heroes. Even when I wrote the Gold Key line for Dark Horse, for which the title properties were licensed from Classic Media, and therefore I had no possibility of participation in any exploitations, besides redeveloping the properties, I created over 40 new villains and heroes plus supporting cast. Some of those never saw the light of day.

When I was a kid, there were new villains, heroes, supporting cast and new concepts all the time in Spider-Man, the Fantastic Four, etc. That was part of what made those books exciting. That's what I'm going for.

I understand the reluctance to give up any rights to something you have created. I think some of the people who are very precious about their ideas, however, are afraid they'll never have another one.

Thanks for the kind words.

cesare said...

Thanks Brent, right, it was discussed, and I do see the difference, but still a mine field if you ask me, like what about a cover re-creation sold for tons of money? Anyhow, those are the types of details I suppose will be hammered out if / when this issue goes to litigation (which, for the record, I hope it does not).

Anonymous said...

Jim Shooter wrote, in two comments:

... For instance, even if the Air Pirates had given away the infamous poster of the Disney characters engaged in disreputable behavior, Disney, I believe, would still have had a case against them for the deleterious effect such a portrayal might have on the images of their squeaky-clean properties.

Any lawyers out there want to confirm or dispute the above layman's assessment? Brandy?
February 15, 2012 12:31 AM

... I suspect that selling an object you own, legitimately, be it a model or a page of comic book art you acquired honestly is probably okay. And it's really not about breaking the law in the sense of committing a crime -- it's more like, are you damaging a rights holder under the rules of fair play that have been codified?

RE: "If I asked Neal Adams to sketch me LeBron, is that breaking the law? People doing caricatures on street corners? Am I mixing apples and oranges here?"

Now, I'm getting out of my depth. LeBron is a public figure...I doubt that anyone selling a drawing of him would have any liability. But, I suspect that if someone established a lucrative business selling his likeness, LeBron might have a case, like TV star Ed Sullivan's estate did against a restaurant upstate called "Ed Sullivan's" (even though that was the owner's name!). I suspect that, again, the issue would be damages. Anyone can sue anyone for anything. And my real answer is, beats me. Help, lawyers!

---------------

First off, a personal note: Yesterday afternoon, I got hit with a nasty flu bug. The whole nine yards: Headache, dizziness, vomiting, high fever, uncontrolled chills, and the worst, body aches. Since I have some muscular problems in my back and legs anyway, that part is excruciating. I've been reduced to tears on pretty much an hourly basis, and I am one tough broad. What I'm getting at is, I'm not at my best and my concentration is iffy, but I'll do what I can by way of answering.

IP/copyright/TM was not an area in which I practiced, so my knowledge is fairly limited. (I should probably clear up the confusion generated when I wrote "my former profession" ... This simply means that where I currently reside, outside the USA, I do not practice. I am, however, an attorney in good standing, licensed in three states and the District of Columbia. I still pay my bar dues and do the required CLE, etc.

Sorry, rambling. Christ.

So, as for the Disney poster, of which I'd never heard but might have to Google now, yes, you are correct that no money need be generated by the violation for Disney to have a valid cause of action. The issue would be damages, as you wrote. The more scandalous the representation is, the more money Disney will likely win, especially given their nauseatingly wholesome image.

I agree with you about selling something to which you acquired title legitimately, as well. Not sure what you'd make selling model kits you built, but perhaps if you're skilled it at, people would pay for a talented execution.

As to LeBron, people can and do protect their names and likenesses, including via trademark, though it is not required to pursue your legal remedies. You can't just take a picture of anybody and throw it up (no pun intended) on a website, or otherwise publish it. This falls under the "invasion of privacy" rubric, and celebrities and public figures have the same rights as anyone else -- as long as you had a reasonable expectation of privacy when the photo was taken, you can block its use or sue for damages. An expectation of privacy might be a little harder to establish for a public figure than the average Joe, granted.

(continued next comment)

Anonymous said...

The public figure concept ties into defamation suits -- they are afforded far less leeway than the average Jolene. They have to show not only untruthfulness in the defamatory writing, a requirement for everyone, but must also prove malice or a reckless disregard for the truth by the writer or publisher.

A third IP name and likeness issue is using either, or both, to imply or state that the person in question is endorsing a product.

And I concur that making money by selling a likeness would likely get you into hot water -- at the very least, you may be buying yourself a lawsuit.

You've mentioned several times that anyone can sue anyone else for anything. While there are ways to make the more preposterous suits get thrown out of court, such as a Motion for Summary Judgment (you argue to the court that no set of facts as presented by Plaintiff could result in a successful case against you, and if the judge agrees, the suit is shitcanned) and many bases for various Motions to Dismiss a suit. If these fail, you can wait for the Plaintiff to present his or her case, and when they rest (all facts are presented and now it's your side's turn) you can usually present an oral "Demurrer" to the evidence, which means that with the facts as presented, the Plaintiff has failed to satisfy his or her legal burden of proof, and the case is then dismissed if the Court so finds.

However, you and I both know that filing a lawsuit, even a frivolous one, can be one hell of a nasty club and can be ruinous financially and emotionally. I do not advocate restricting access to the courthouse, but I would heartily endorse awarding attorney's fees and all costs associated with defending such a suit. I have actually come out with this sort of judgment, mostly because judges hate having their time wasted when their dockets are already overcrowded with meritorious lawsuits.

One thing I have always advocated is that the Defendant should have the right to file an Abuse of Process counterclaim contemporaneously with the Answer (typically this must be filed in a second proceeding after the Plaintiff's case has failed or been dismissed, and you, the wronged party, must now become the Plaintiff, incur filing and attorney's fees, and so forth). In my universe, the Abuse of Process would cover all Plaintiffs AND all the attorneys representing them, and a monetary judgment entered against them all separately, but in one Order. In addition, I would urge the adoption of a "three strikes" rule whereby once an attorney has three AoP judgments against him or her, an automatic and mandatory license suspension of no less than six months and no more than one year is to follow.

I'm not holding my breath. But I can dream....

Brandy

PS -- did you see my question about the Seven T-shirts?

jimshooter said...

Dear Bobby P,

ANSWER:

RE: "I wonder what Mr. Shooter things of the Superman case?"

I'm not up to speed on it. Seems to me last I heard was the the estates had won the rights to Superboy, which is why, for a while, DC wanted me to create a new "Super Lad."

jimshooter said...

RE: "But as with human nature, writers and artists themselves are currently standing in the way of this - whether it be people like McFarlane - who founded a company based on creator's rights, and then kept money from Neil Gaimen, or whether it be the mindless yes-men that currently write and draw for Marvel, and who spout the company line in opposition to creators' rights"


The Image seven rebelled against Marvel's W4H policy and struck out on their own -- after working for Marvel had, conveniently, made them millions. They were hailed as crusaders, champions of creators' rights. But, have you seen the W4H documents they make the artists and writers who work for them on the properties they created sign? I saw a couple of them, some time ago, I admit. They were the most Draconian, scorched-earth docs imaginable. Maybe those Image guys' W4H's I haven't seen are less onerous, maybe they've all gained enlightenment since then, I don't know. But those companies "based on creator's rights," were based on the founders' creator's rights, not the rights of the other creators they employed. Neal Adams used to give out a pretty harsh W4H for work done on his Continuity characters, too. Marvel, DC and especially Dark Horse seem pretty reasonable by comparison, last I checked.

jimshooter said...

Dear Brandy,

Thanks, once again, for your expertise.

RE: "One thing I have always advocated is that the Defendant should have the right to file an Abuse of Process counterclaim contemporaneously with the Answer...."

If there had been such an opportunity when Marvel sued DEFIANT, claiming that Warriors of PLASM infringed their at the time yet-to-be-created Plasmer character, TM'ed with "intent to use" in the U.K., that would have been useful. As it was, the Judge, Michael B. Mukasey lectured/warned Marvel's attorneys about using spurious suits as "business weapons," but it still cost DEFIANT $300,000 to win hands down. Our counsel advised us that pursuing a counterclaim would cost far too much. Mukasey warned Marvel not to appeal. They didn't and withdrew the suit.

It seems to me that winning a summary judgment is relatively rare. Maybe it has become more prevalent in recent years (when I haven't been paying attention so much) in which the courts are so overwhelmed. Although, I believe someone said that one of the decisions in the GR suits was a summary judgment. I could be wrong.

I forgot about the tee-shirts.

JayJay makes tees. What about it, Jay? I guarantee no infringement issues.

JayJayJackson said...

Hmm. Possibly.

Anonymous said...

So how will John Byrne make a living now? Hes the most flagrant abuser of using other peoples' properties out there.

Anonymous said...

jim shooter wrote:

It seems to me that winning a summary judgment is relatively rare.

----------

It is, indeed. The standard is high (the Plaintiff can show no facts on which he could prevail) and courts do not favor shutting litigants out of the process. Ordinarily the suit has to be so frivolous on just the Complaint's asserted facts that there is no point in hearing it.

Your 300K story was exactly the thing I was referring to; using a lawsuit as a business (or personal) weapon. Makes my blood boil as much as prosecutors who doctor evidence to secure a conviction.

Glad your judge stuck up for the right thing.

The thing about my counterclaim AoP idea is that, unlike a regular counterclaim which you have to litigate, the Defendant could just file it in the form of a Motion for Costs and Sanctions, and the judge would just grant or deny at the end of the case. The judge knows all she needs to know at that point, having watched the trial. So, maybe a small extra filing fee, but nothing else need be submitted. Cheap for the wronged party, and you can bet these types of lawsuits would decline in a hurry if money and suspension are on the line.

Someday, if you're interested, I'll tell you one of my trials in this kind of lawsuit (I did it pro bono because this was the personal weapon type of case, and it's got a surprise ending! Oooh!)

Back to bed for

Brandy.

PS -- you're welcome my expertise anytime. Should I shoot you a bill or do you want to go the retainer route? Either way, your cost is the same: more blogging!

Anonymous said...

re: the last question about Byrne

I hate to quote this article that just went up - because basically Joe Q and Dan Buckley say nothing substantive in it, except a kind of "put out the fire" damage control - but the very last answer by Buckley at the end indicates that they don't want this Frederich stuff to spill over to artists at conventions



http://www.comicbookresources.com/?page=article&id=37017

Anonymous said...

Jim,

Brandy is not an attorney, she just plays one on your blog. However, I am an attorney and your analysis of work for hire is spot on; Marvel owns the Ghost Rider. No artist has any right to make money off of, or denigrate, Marvel's properties without the permission of Marvel.

Marvel also created the Ghost Rider.

ultraaman said...

There is one issue that I am curious about and perhaps you can weigh in. Artists have been creating sketches of trademark and copyrighted characters for decades. To date, I am not aware of any action taken against artists (of course I could be wrong in which case all of this becomes moot). Anyway the point I am trying to get to is - Marvel, DC, et al have appeared to have taken no action to protect their characters when it comes to artists selling sketches at Cons (specifically this type of instance). In reviewing the discussions so far, I have not seen where the defense brought up this issue or if it was, no one has discussed what the court said about it.

Letting this practice continue for so long, while continuing to pursue other groups of people who attempt to infringe on character portrayals in other ways, could indicate that said companies are not interested in protecting their characters in the specific instance of artists doing impromptu sketches at a limited event like a Con. I know lack of defense of a copyright is no lisense to infringe but do you think this inconsistency matters? If not, why?

The one thing I did notice about this case was that Friedrich was selling pre-made Ghost Rider merchandise (that also happened to feature images and issue covers that he did not originally create). For that reason alone, I completely agree with the court.

Anonymous said...

Jim,

Another good example is Kleenex. Kleenex nearly lost the trademark rights to Kleenex because they were not defending the property and the word Kleenex was being transformed by common parlance into meaning any tissue. Kleenex had to start getting tough with folks using their name or lose the trademark.

giantsquidstudio said...

@Ultramaan: If I may...I worked on the "Ghost Rider Blaze:Spirits of Vengeance" book for Marvel and have done commissions for fans so I can speak from experience. No one from the major publishers has ever had an issue with artists and commissions. However, I think that this new lawsuit WILL have publishers taking a closer look at Artist Alleys at cons. From my understanding, Marvel is within legal rights to stop me from selling any drawings of Marvel characters. This is a terrible blow for creators, since most don't make enough on a page rate to make ends meet and the con income is a big help in supplementing their income.

Anonymous said...

Winning by Summary Judgment is extremely common. That is how most frivolous suits end (with a 12b6 motion).

Celebrities and public figures DO NOT have the same privacy rights as other people. That statement is laughable and absurd on its face. Celebrities and public figures do not have the same expectation of privacy as you and me, which is why the media can print, and make all kinds of loot off of, their images and stories about them.

When a lawsuit is frivolous, you can ask for sanctions against the other party (rule 11) but it is rarely granted.

Anonymous said...

Also, the demurrer no longer exists in the Federal system (and in the vast majority of state systems) which is where this, and all other, copyright suits are filed since the copyright act is a federal law.

So, once again, Brandy is full of shit.

Anonymous said...

Finally, 12b6 is a motion to dismiss which can be converted into a motion for summary judgment, which replaced the demurrer in the Federal system.

So, technically, the 12b6 motion to dismiss is NOT a motion for summary judgment.

However, the rest of the above anon statement is correct. Brandy's contention that celebrities have the same privacy rights has you or me is ridiculous.

And a party may move for sanctions under rule 11, but they are rarely applied.

Anonymous said...

I'm wondering why there isn't much discussion of how Marvel originally acquired the Ghost Rider character? Did Marvel purchase the rights from Magazine Enterprises, or was the character just considered fair game having ceased publication in 1954. Iron Mask was another M.E. character that showed up as a villain in Marvel westerns of the 1960s. How did Marvel get the rights to the character? Why aren't Vin Sullivan, Gardner Fox, Ray Krank, and Dick Ayers given credit for Ghost Rider's creation. After all they were clearly telling Ghost Rider stories ever since Tim Holt #11 was published in 1949!

BrittReid said...

"I'm wondering why there isn't much discussion of how Marvel originally acquired the Ghost Rider character? Did Marvel purchase the rights from Magazine Enterprises, or was the character just considered fair game having ceased publication in 1954."

Marvel, much as they did with Daredevil and Captain Marvel (both of whom had Golden Age versions whose trademarks had also lapsed) took the name for a new character.
Unlike DD & CM (who were totally-new characters with different powers/costumes/secret identities), Marvel's Ghost Rider utilized the costume and weapons/gimmicks of the 1950s hero, changing the origin and secret identity in the new version.
They also had Dick Ayers, who had illustrated the original 1950s character, pencil the new series!
And they didn't pay a penny to Vin Sullivan, publisher of the now-defunct Magazine Enterprises.

NOTE: Magazine Enterprises also published a comic called The Avenger (singular).
Think Marvel paid them for The Avengers?

giantsquidstudio said...

Which is why as Jim pointed out, a publisher HAS to defend any copyright infringements in court, or lose said copyright.

jimshooter said...

Dear Ultraaman,

The inconsistency may matter. We'll see.

Shane T said...

For those interested, Comic Geek Speak had a really good episode about this and the Kirby case on their recent podcast -

http://www.comicgeekspeak.com/episodes/comic_geek_speak-1490.php

eRAWtic said...

Sorry - Marvel has not challenged the use of their characters in commissions and sketchbooks in the past, they claim that they have no plans to challenge it now, but they sue just Friedrich for copyright infringement. How can Gary Friedrich’s legal counsel NOT claim that the suit is only an act of punishment / vengeance by Marvel for the suit against them?

Maybe Mister Friedrich just wants it to go away – I’m not sure - The CBR article doesn’t make total sense to me – “By agreeing on a number for the profits Gary made from selling unlicensed Johnny Blaze/Ghost Rider merchandise after the court has decided that Marvel is the owner of that copyright, it allows Gary's attorneys to file his appeal now rather than have Gary litigate further. It is in no way a "fine" or "punishment" for Gary. It is something that the court asked both parties to do and agree upon. This is one more step in an expensive and time-consuming legal process initiated way back in 2007.” His attorneys can file an appeal [To the infringement fine, or the ownership of the character?] but Gary doesn’t have to litigate further? I’m not sure what that all means.

While I believe Joe Quesada and Dan Buckley honestly don’t want to see any changes to the Artist’s Alley situation, they will, in the end, have to abide by whatever the Disney/Marvel attorneys ultimately find to be in the best interest of Disney/Marvel. That said, this whole incident has done a great job of reporting and publicizing that for years Marvel has not done much to protect their copyrights and trademarks. I suspect that Disney/Marvel is going to be left with no choice but to get that "genie back in the bottle" or risk loss of copyright and/or trademark.

Anonymous said...

From what I understood, the unlicensed merchandise was t-shirts and posters. In other words, Gary was printing up his own t-shirts and then selling them for a big profit (I guess signing them too). That is what makes it different than an artist alley sketch

I could be wrong about these details - but that is what I saw when the story first broke a few days ago

Brent E said...

Anonymous who wrote:

"Celebrities and public figures DO NOT have the same privacy rights as other people. That statement is laughable and absurd on its face. Celebrities and public figures do not have the same expectation of privacy as you and me, which is why the media can print, and make all kinds of loot off of, their images and stories about them."

I'd say this statement is a bit of an exaggeration. Celebrities do still hold numerous Privacy and Publicity rights, though as you correctly assert they are different from non-celebrity individuals. Again, I would direct any interested to read the case I cited earlier regarding depictions of the Three Stooges (who were dead at the time of the case). An excerpt:

"...the Legislature has granted to the heirs and assigns of celebrities the property right to exploit the celebrities images, and that certain forms of expressive activity protected by the First Amendment fall outside the boundaries of that right. Stated another way, we are concerned not with whether conventional celebrity images should be produced but with who produces them and, more pertinently, who appropriates the value from their production. Thus, under section 990, if Saderup wishes to continue to depict The Three Stooges as he has done, he may do so only with the consent of the right-of-publicity holder."

I'm not sure if you are the same anonymous telling Brandy she's not an attorney, but either way the law is not a simple "this is legal, this is illegal" situation. It is a multifaceted situation where many of the rules are defined by tests which balance competing factors and thus decided only on a case by case basis.

I'm not an expert on IP or Entertainment law, but I know enough to see plenty of correct assertions in this thread so far, and plenty of misrepresentations of the law.

Anonymous said...

OK, Couple things here to point out:

1) Writers never get original art back as part of an art return from the company. There will be times where either the penciler or inker will gift a page or two to the writer, but that is at the artist's preference only, as it is considered his or her physical property.

2) Yes artists have more "Creative" opportunities for secondary income than writers, but it also takes significantly longer (at least in general) for an artist to create a book. Even at 20 pages, outside of Mark Bagley you will never see an artist penciling more than one book a month. This is based on the reality (borne out by years of publication) that most writers can turn out 3-4 books a month. If they can produce 3 times the amount of work in the same time an artist can produce one, simple economics tells you that a company will pay less for that work. However, it triples the chances for a writer to receive royalties (royalty structures are the same paid per book to both penciler and writer even though page rates aren't, inkers less so as they are generally considered more of the production cog like letterers and colorists, so they do not receive a large royalty rate if they get one at all) So those secondary opportunities that an artist does, including original art sales and private commissions, are how they make up that gap.

3) Re: Con sketches at shows/private commissions. This has been feared for years. The reality is that the companies know their artists make a ton of money at these shows by doing this. This is how they make a living. The alternative to them allowing this is to prevent it, then have to pay them more in order for the artists to break even and keep their homes (this speaks to the B and C level artists for whom any month they don't produce a book they may not be able to pay their rent, not the Jim Lee's or David Finch's for whom it is presumed receive a lot more in page rate). And they are not going to pi-- off their A-list talent because they need them working for them. So essentially, they look the other way as long as those artists do not market any reproductions (outside of shows, hence you can't get Adam Hughes prints on his website and at shows they are limited to 50, etc.) or see the characters portrayed in a "overtly" sexual manner with nudity, etc.

Anonymous said...

I can provide some general guidance on the area of copyright law, although Jim's summary has pretty much been spot on.

First, a copyright is only violated by an act of "copying." So, drawing a picture of Superman, complete with enough copyrightable elements (his costume, engaging in one or more powers, etc.) is an act of copying the copyrighted character Superman.

But there is a notion of fair use that allows copying in certain circumstances. Profit from the copying is one factor, but not the only factor. Fair use generally requires an added "transformative element" -- meaning that you are using the copyright to make some editorial statement, like parody or criticism. So, giving away a a sketch of Superman to promote your own artwork is both copying and non-transformative -- its also not "free" in the sense that you are profiting by using the sketch as advertising.

Second, selling copies of original artowrk returned to you by the rights holder or TIE models that you built is not copying. In the first instance, while you performed copying in creating the original artwork, that act of copying was authorized by the rights holder. Sale or transfer of the physical artwork afterwords is not copying, and copyright law does not prohibit it. In the example of the TIE model, you never performed any copying -- the person who manufactured the model did.

Third, trademark rights are different. Trademarks cover symbols and names (Superman and the stylized "S"). It is correct that you have to defend a trademark and cannot turn a blind eye when others use the trademark. The reason being that you cannot allow your trademark to become identified with someone else's product. But a convention sketch or commission that has Superman wearing the "S" is probably not trademark infringement because the artist is using the trademark to identify the right holders' character. If someone slapped the "S" on their own character that would be trademark infringement because their using the trademark to identify their own product.

Anonymous said...

Brent E wrote:

"I'd say this statement is a bit of an exaggeration. Celebrities do still hold numerous Privacy and Publicity rights, though as you correctly assert they are different from non-celebrity individuals. "

Which is pretty much what I wrote. The public figure burdens apply mainly in the defamation area, and as I wrote, a public figure admittedly has a tougher road proving a reasonable expectation of privacy in other circumstances (you can photograph them on the beach, for example, but via hidden spycam in the toilet bowl).

I don't know who's claiming I'm not an attorney, since I no longer read unsigned anonymous comments, but it just goes to show what complete morons some people are.

Brandy

Brent E said...

Brandy,

That's a good policy to have (regarding anonymous posters). I like to think that attorneys can recognize each other through their writing. In the United States at least, so much of how we are taught the law goes back to specific examples that have been interpreted through cases. Examples that we provide in argument tend to be based similarly on those cases. I think it's quite different from individuals who just read interpretations of the law off wikipedia or other online websites. Anybody who doesn't believe you're an attorney is way off base.

Anonymous said...

Brent E wrote:

"I think it's quite different from individuals who just read interpretations of the law off wikipedia or other online websites. Anybody who doesn't believe you're an attorney is way off base."

As to the last point, thanks. As to the first, yes it's pretty glaringly obvious who's substituting Wikisearches for actual knowledge --- especially when what I wrote is twisted and forced into a completely different scenario! The friend who led me to this blog emailed me that response on demurrers -- What a joke! I never used Federal Court OR a specific area of the law; I was citing the fact that they are another tool to dismiss a frivolous lawsuit. That one must be in a jurisdiction which allows them at the first instance rather goes without saying, you know?

My friend suggest I read and answer this, and I will tell everybody what I told her: these kind of responses get as much attention from me as a pustule on a gnat's behind. I have discovered that what you wrote regarding my ban on reading unsigned anonymous comments is 100% true -- I really do try to give people the benefit of the doubt, it's nearly always these creeps who engage in blisteringly stupid behavior. The weird part, to me, is how they expect to even WANT to respond when you can't tell them apart!

And while I enjoy reasonable discussions with reasonable people, with whom I agree or not, I'm not about to waste my time with grudge matches, people who can't stay on the issue raised, cannot understand comments like "public figures have the same rights we do," or attempts at dick measuring.

Brandy

Anonymous said...

Brandy says:

Sorry for dropping a few words in my last comment; still under the weather and hit Publish, not Preview. Not that i mightn't have missed them anyway with this fever.

I think you can fill in the gaps, Brent, but if you need clarification,by all means, just ask.

Brandy

Anonymous said...

Brandy to Brent:

Huh, my response to you isn't showing up (the one which contained the word drops). I'll wait because I hate to double-comment and frankly I'm not up to recreating it now. Cold washcloth and aspirin time.

I very rarely get sick and have only had the flu once before as a child. This is just hideous, any good advice out there? I'm drinking Panadol and effervescent Vitamin C and my homemade chicken stock. And ginger ale.

Brandy

Anonymous said...

So, Brandy...now you're wanting remedies? What was that about sticking to topic? There's something about you that doesn't ring true.

Robert White said...

I think that a reasonable compromise would be for certain artists who either directly created certain characters, or had a strong hand in making them successful, could cut a deal with Marvel and DC to do commissions, with the companies getting some agreed upon amount from each sale. The creators would only be allowed to do commissions on the characters that they themselves were involved with or created.

Now, it goes without saying that if you create something you should get a small bit of the profits. I agree that Marvel and DC are fronting all the money for promotion, production, etc, but you can't compare an average worker who did not create the product in question, simply "maintaining" it, to a person who actually put forth the mental and creative energies necessary to create something from nothing. Ethically, this person will always deserve to be included in the profits, at least in proportion to their personal contributions.

Anonymous said...

I think a fair compromise would be for comic companies to give royalties to writers and artists who created characters - when they can determine the creators and when they continue to use those characters


"Allowing" artist to do commissions - what condescending and patronizing mindset

Anonymous said...

... the mindset from the comic companies, not from you Robert (is what I meant)

Gregg H said...

@ Robert White.

I think you are 100% wrong in that last post. Just creating a charachter should NOT be automatically entitled to ANYTHING other than what you signed up for. End of story. Do not pass go.
Wolverine was actually created by Len Wein and John Romita Sr. and first drawn in a book by Herb Trimpie (IIRC). He was an absolute zero, just another in a long line of throw away charachters that would have sat on a shelf somewhere at Marvel IF he hadn't been used by Wein in the X-Men re-boot.
Gil Kane changed the mask from the original to the FAR more distinctive version that became synonymous with the charachter.
John Byrne is the one who kep the charachter from being killed off early on, way before he started to take off in popularity.
Claremont and Byrne are the ones who REALLY make him into the icon that he ended up being, instead of another Swordsman or some other charachter who was just kind of there taking up page space before getting killed off.
Certainly CC and JB deserve the lion's share of the credit, well above the credit that should go to Wein, Romita, Trimpe, or Kane.
Do you know what Chris and John deserve for making this charachter into a huge cash cow for Marvel? They deserve to get paid for the work they did. They deserve the royalties that they got because they had made the charachter, and therefore the book, sell really well. They deserve the higher page rates that they got based on the success they had making Wolverine really successful.
The people before them don't really deserve squat, beyond getting paid for the work they were hired to do.

Anonymous said...

Gregg H...it's character...not charachter.

czeskleba said...

Gregg H:
Just wanted to point out that in your summary of people who contributed to the creation of Wolverine you left out Dave Cockrum. Cockrum was the first artist to draw Wolverine without a mask, and designed his distinctive hairstyle. The look Cockrum created is arguably more iconic and recognizable than any costume Wolverine has worn.

Anonymous said...

Gregg H - your conspiracy theories on the nursing and augmenting of Wolverine are just that - conspiracy theories, cooked up from your imagination. "He was a throw-away character". "He would have been killed".

Good stuff man - you should be a fiction writer

Anonymous said...

Celebraties and public figures do not have the same privacy rights as common folks. Anyone who says otherwise simply does not know what they are talking about.

jimshooter said...

Dear Brandy,

A slight tangent re: "demurrers," etc.: Marvel, my companies and I have had some of the most absurd suits in history leveled against us. On several occasions those suits were thrown out of court one way or another, but every time the plaintiff managed to get the suit reinstated.

Anonymous said...

And to call that statement an exaggeration is to show you don't know your ass from a hole in the ground. The comment is spot on.

Like Brandy, you may not be a lawyer, but you like to play one on this blog.

Anonymous said...

Brent E,

I am the same anonymous who is telling Brandy she is not an attorney.

The reason why is because she makes so many mistakes and sweeping judgments about the law. I've pointed her errors out on other threads as well.

You are clearly not an attorney either, or you would know that, yes, it is as simple as public personalities and celebrities do not have the same privacy rights as common folks. That is why we make the distinction between public and private personalities. Its laughable and absurd to suggest otherwise. Thanks for the little lecture about the law though, I'm sure Brandy found it very helpful.

Also, my statement did not say that celebrities and public figures do not have ANY privacy rights, only that they do not have THE SAME privacy rights as most regular folks. I'd read a bit more carefully next time if I were you.

Brandy, this is what you wrote with respect to privacy rights: "celebrities and public figures have the same rights as anyone else"

This is simply untrue. The gap is huge and celebrities and public figures are subject to all sorts of invasion of privacy, and parody, that a private individual would not have to put up with. Take a look at the newstand the next time you check out at the grocery store.

You also went on with some nonsense about demurrers. Demurrers do not exist in the federal system-which is where copyright suits are filed.

Finally, you said you don't respond to anonymous posts. Yes, you do. You responded to one of mine on the last thread.

Did you stay at a Holiday Inn last night?

Anonymous said...

Yes, unlike Brandy's comment about the difficulties of motions for summary Judgment (or demurrers, as Brandy calls them) they are not uncommon.

More common is the 12b6 motion for dismissal which often gets frivolous suits tossed at the get go.

Much, much less common (unfortunately from the point of view of some) are sanctions for ridiculous and frivolous lawsuits.

Anonymous said...

Re:'This is simply untrue. The gap is huge and celebrities and public figures are subject to all sorts of invasion of privacy, and parody, that a private individual would not have to put up with.'

When you say 'don't have to put up with', do you mean because they are not famous so no-one bothers, or do you mean that their actual rights are different? Can you give us details of the differences, if so?

QW

Brent E said...

Anonymous,

Once again, you are trying to make absolutes where they are not applicable in the law. My original post was stating that celebrities have privacy and publicity rights, and that they are not the same as ordinary individuals. You have the same habit that other anonymous posters (possibly just yourself) have had on this blog of accusing people of saying and doing things that they did not say.

If this were not such a hostile posting environment, perhaps anonymity would not be important. However, based on the numerous posts that have attacked me since I began posting on here, there's no way I would disclose my full identity. That being said, I don't assume other people are liars until they give me a reason to believe so. If Jim Shooter or Jay Jay is interested in my legal expertise/credentials, I'll gladly provide it to them.

I don't see why anybody would provide you with anymore identity than they need to when on this blog you only have a history of insults, accusations, and (possibly) bigotry.

Anonymous said...

For me the real huge boost to the Wolverine character came from the Claremont/Miller mini-series.

That was the one all my friends (not to mention myself) thought was just so brilliant back in the day. The Wolverine Bible so to speak.

and that mini probably is what made him a viable solo character.


Claremont ultimately is most responsible for his popularity IMO. Though obviously he had to be created in the first place.

Rob

Bobby P. said...

Thank Mr. Shooter for the reply. :-) I always wondered about Image comics, and the paid employees of the creators. Very interesting.

I'm sure everyone here by now has heard of The Walking Dead lawsuit and how the original artist Tony Moore is saying he was tricked out of his shares.

It's a very recent case and I guess we will see if he was tricked, or if he just made a bad decision and is only now saying otherwise?

@ Gregg H as for Wolverine. Now you know why I hate it when someone in the press says: Wolverine created by Len Wein.

As if it were fact. Reality is far different. His original plan stated on record was a teenager wearing claw gloves.

So many people are responsible for who became Wolverine that Len Wein deserves little credit IMO.

And speaking of comic creations, this might be off topic. But with VALIANT comics returning and X-O Manowar being their first flagship title.

I wonder if Mr. Shooter has or can make a post explaining how the character was created and who was responsible? X-O was definitely one of the big name books back in the day.

Jerry Novick said...

Gregg H and Bobby P. bring up a very interesting point: the difference between creating a character and making that character popular. There is a huge difference between Lee & Ditko's creation of Spider-Man and say Wein's creation of Wolverine.

Spider-Man was pretty much fully formed in back-story, personality, powers, motivations, and unique look (with an assist from Jack Kirby), and he has not changed substantially since his conception (albeit with a bit of tinkering by Romita on the costume). Plus, the character's popularity, as measured by his awareness in the public zeitgeist has been rather high and steady throughout his existence. What should that get Lee & Ditko? Co-Creator credit and a nice slice of cash for life plus nice bonuses from movies and other licensing. What should it get subsequent writers and artists who work with Spidey? Just the paycheck they received for the work.

By contrast, Wolverine was created as one thing initially by Wein (the supposed kid with clawed gloves), appeared as something else (the short Canadian with claws), and transformed mightily in look and personality under the hands of other artists and writers. Plus, Wolverines popularity went from obscure one-off to big time character over the course of time.

However, it cannot be denied that Wein got the Wolverine ball rolling. Thus in my mind, he is the co-creator (unless he also did sketches which the artist then played off of, in which case that would make him the creator). What should that get him? A nice mention, maybe a trip to the movie premieres, perhaps a small thank you check. What should it get Claremont, Byrne, and so on? Nothing. They got paid for the work, they made nice page rates, and they benefit monetarily from the reprinting of their more popular works.

Such is the world of the shared sandbox that is comic books: creation can take on many forms and have any number of fathers (think a character that comes out of group spit balling, such as Ghost Rider vs a character that comes over the transom from one person).

Of course, my "what should it get him/them" is my opinion only based on the history of the characters used as examples. It is my own vision of justice and fair compensation. What should it legally get them? Only what their contracts allow for.

Yeah, in cases of work-for-hire, there is a big gap between what is legal and what is just.

Chris Hlady said...

Interesting thread, Jim

I don't know if having lawyers in the house helps or hinders the conversation, especially when the topic is creativity.

I'm noting your point about giving it your all when employed, and creating countless characters, in your work, and it being part of the thrill of the reader's experience.

Also, I'm noting the "organizational" effort required to keep a property alive and economically viable. While it's true, without an excellent idea, an organization's work will hardly be noticed. It's also true that an excellent idea will flounder without appropriate support.

I'd like to focus a bit, on the effort required to "support" an excellent idea. For whatever reason (eg. pay-check, esprit de corps, etc), a large number of people are required to bring that idea to the reader.

It must be a humbling experience to be part of that support team. Especially when one provides an expertise that is essential to the publishing enterprise.

It was also mentioned, previously in the comments, that people are paid for doing their job. It concerns me in the Marvel/Disney, etc model, that profit/equity-increase benefit seems to be directed to the share-holder/owners, as opposed to those who are responsible for the profit/equity-increase.

Shooting the golden goose, seems to be the area that needs the most concern, right now. Gary Friedrich may fairly be criticized for some of his practices, but he was a part of growing the equity of the Ghost Rider property, and there needs to be something more-fair, if further creators will "give it their all" in an atmosphere of growing cynicism.

Jerry Novick said...

(Sorry for the "blank" post here. It was the only way to subscribe to the comments going forward.)

Anonymous said...

I think Chris H Lady and Jay Jay's point about shareholders and profits is a key one

I'm not really a fan of Michael Moore, but his thesis in his last film, that capitalism and democracy are 2 distinct things, and that capitalism has had a corrosive and insidious effect on the nobler principles of democracy, is a real eye-opener. I tend to look at things differently after understanding that thesis

cesare said...

How is this a hostile place to post? There are however, hostile and intolerant posters. Some people need to take a chill pill, and demonstrate a little patience and courtesy. I can't believe how people seem to like being instigators.

Anonymous said...

These lawsuits seem to boil down to this: no one seems to have expected these characters to last as long as they have or generate as much revenue as they do. If these facts were known up front, creators would have been able to strike a better bargain. But, they didn't, the companies rolled the dice and invested in these characters (and a bunch that have not been so wildly successful) and they've won pretty big in comparison to their investment in a lot of cases.

So, you can't really blame the companies for wanting to keep the profits, since they put up the initial investment. And you can't really blame the creators for trying to take advantage of technical loopholes to reclaim lost rights because they had no idea what they were giving up.

Brent E said...

Cesare,

You are right, and I apologize for stating as much. You stated it better/more correctly than I did. The comments section of this blog is generally one of the most interesting and informative resources online, to the point where I see people posting links to it on other websites for some of the in depth discussions found here.

Anonymous said...

"The Web is a-Blaze"

Jim's been reading too much Azzarello

Robert White said...

Greg H, if you reread my original post I said that not only the creators should be compensated, but those that played a major role in making certain characters successful, regardless if they created them or not. Your Claremont and Byrne are a perfect example. I'd add Cockrum as an equal partner. So, as far as Wolverine royalties go, I agree that those three creators have played the most important part in making Wolverine a superstar character and deserve the most compensation for that fact.

That being said, I do not agree at all with your claim that Wein, Romita, Kane, etc, don't deserve to get anything. That's absurd. If we take this to the extreme, we could say that Siegel and Shuster don't deserve anything for Superman as he was in the 70's being that Wayne Boring and Curt Swan played a bigger role in his mass appeal. Any creator involve in the direct creator or elevation of a major character deserves just compensation, in relation to their contributions. But everyone involved DOES deserve something.

Anonymous said...

Of course such a benevolent policy would just lead to creators spending decades in court fighting amongst themselves over who created who

Sad but true

Robert White said...

Yeah, the specifics of such a deal would be a headache to say the least. Particularly when guys who didn't create a certain character started getting more money because they played a bigger part in expanding the characters mass appeal. A slippery slope to say the least. You'd like to think that reason would play a big part, but when money's involved...

ja said...

Seems to me, the bottom line of all this is that every creator is at the mercy of the company they work for. Duh, right?

Marvel during Jim Shooter's reign, produced many benefits for the creators that have since been whittled down, or completely eliminated.

In my fantasy comic book company, it would be an interesting public experiment to transparently operate the way you believe the industry should, even despite the creative restrictions and denials that are codified by law, or instituted by corporations whose only focus is the bottom line.

There are legitimate protections and policies that the publishing company must employ. But my instincts tell me that the more you include the creators as (for lack of a better way to phrase this) 'junior partners', contractually benefiting them with residuals for having created characters, or significantly increased the value of such when they 'create' a significant 'augmentation' to said character(s), the more you would end up with a solid product that would be more and more popular in the comics industry.

Granted, this all relies upon the good sense of the publishing company, in this case being my fantasy company that is out to create a better creative/remunerative balance between publisher & creator.

If all this were to happen one day - and they did good quality work that is well received - then I wonder if enough readers would/could get behind this experiment enough to make it a success. With general readership at such a terrible low, that's one helluva gamble.

This is what I fantasize about. Mostly. I like cute butts, too.

=P

Defiant1 said...

I had a reply typed yesterday. I thought I posted it, but I didn't.

I have a problem with Marvel suing someone they exploited for monetary gain. Gary may have signed over his rights in a work-for-hire situation, but my problem with Marvel is more related to principles, not legalities.

Marvel won their lawsuit and showed they aren't heroes. Now... I'm less interested in seeing movies with the Marvel name on it. Statistically, my opinion is nothing. I still tend to stick to my principles.

Anonymous said...

Defiant - I voiced a similar opinion a few days ago - especially as more details came out, and Neal Adams spoke out to help raise money for Frederich. The whole thing just makes me not want to buy Marvel comics or see their movies for a long time

Anonymous said...

Does it not boil down to this; Marvel had to sue, to protect itself. The company has yet to follow through in claiming the money. Aren't people assuming the worst before it actually happens, and striking an attitude which may be unwarranted?

On this blog, if any, I would have thought the need to understand all sides of a situation before jumping to conclusions would be an assumed starting position.

QW

Anonymous said...

Sorry QW, I don't go around ascribing harmless characteristics to spiteful and vindictive companies

Defiant1 said...

QW,

Marvel could make a public announcement that they are not seeking to collect on damages.
Until that happens, I have a problem with it.

Gregg H said...

Mr. White-\I saw that you did in fact say that folks who did additional development should be compensated as well as the original creators. And I STILL disagree with your entire premise. My pointing out the evolution of Wolverine was how I framed my disagreement. Clearly, the people who came later did a million times more for Wolverine than Wein and Romita (who I have seen credited as doing the actual original creation).
My premise is that these people all got paid for what they did. It was a collaborative effort over MANY years that got Wolverine to the cash cow he became. And every one of them got paid for what they did. The ones who did the most to make him so popular made out pretty well it would seem in the form of increased royalties that came with the increased success, and the bigger paychecks that came down the line specifically due to that established success. So why should any of them get paid for what other people did AFTER them?
And as for some anonymous @$$ claiming that I'm writing some kind of 'fiction'...
First-how about you at least have the balls to put a name to your statements
Second- what I stated is pretty much EXACTLY how the creators involved said things were. Granted, I WASN'T in the room with Claremont, Wein, Cockrum, Byrne etc. but THEY were, and that is what they say happened. So unless you were there to dispute what THE PEOPLE INVOLVED say, then you gan go blow it up your tailpipe, or at least find some sort of source that you can point at.
Perhapse Jim could shed some light on the subject if he remembers any of the specifics to either concur or refute what I wrote in my example.

ja said...

"Why do people say, "Grow some balls"? Balls are weak and sensitive! If you really wanna get tough, grow a vagina! Those things take a pounding."

- Betty White

Gregg H said...

I really can't see how you can call giving a guy like Gary work 'exploiting for monetary gain'. Whenever someone is hired by a company, the entire POINT is to get monitary gain. That is why you hire someone to work for you. TO MAKE MONEY. So everyone should be self employed, because employers are inherently doing something wrong?
If it wasn't for Marvel hiring him to work on Ghost Rider, then he wouldn't have done it. Nobody wins there. What happened was that EVERYBODY won. Gary got a paycheck. Marvel got a property that EVENTUALLY (a couple of decades later) became worth a lot, and the readers got stories that we hopefully enjoyed.
Seriously, should Marvel/DC go back to people that created books that flopped in the 70's and say "actually, I know we paid you XXX for writing that book, but in the long run it ended up not working out, so could you refund us 1/3 of your pay because Red Wolf or War Hawk never caught on."?

it seems like a lot of people are asking that the writers and artists have the best of both worlds, and the companies to have the absolute WORST of all worlds.
The companies should have to pay a decent wage up front for work that may or may not be initially successful, and may or may not eventually find an audience, and may or may not find success outside of the comic format. AND THEN you want they to get paid even MORE on the back end just in case any of these things happen.
It sounds like people are advocating that all creators should be independant publishers who just happen to have a big company subsidize and underwrite all of the costs for bringing product to market that they don't even get to own outright.

Anonymous said...

Hi everyone,

I don't write in support of Marvel particularly - I have an issue or two with them too. However, would not publicly stating that they were not taking the money weaken any future cases. Furthermore publicly taking the money would allow us to further brand them as vicious. A workable alternative, I think, if I were working for their P.R. machine, is to quietly let it lie and perhaps come to a non-disclosure deal with GF - you don't have to pay us so long as you don't tell anyone you don't have to pay us.

Another thing to think about; if Marvel is really as rapacious as some think, we should expect the artists in Artists Alley and those taking commissions to be sued. When THAT happens, I'll be right there with the nay-sayers. To my mind, sketches which do not damage the characters through misrepresentation are keeping those characters in the public eye and (minutely) increasing their equity.

QW

Anonymous said...

Gregg H said...
Mr. White-\I saw that you did in fact say that folks who did additional development should be compensated as well as the original creators. And I STILL disagree with your entire premise. My pointing out the evolution of Wolverine was how I framed my disagreement. Clearly, the people who came later did a million times more for Wolverine than Wein and Romita (who I have seen credited as doing the actual original creation).

------

Also, one has to consider that the editors also contributed to the creative process. They say yay or nay to ideas, scripts, lines, etc. Claremont and Byrne weren't working in a vacuum, and their success with the Wolverine character owes much to the input of their editors.

Sure, it's the editor's job, but writing and drawing were C&B's job, and everyone was duly compensated at the time. To give creators extra money seems unfair to the rest of the team. (And they did get more than page rates at that time -- thanks to our host.)

Jim Shooter mandated the famous death of Phoenix. How much of that pie should he get?

@ ja: I think your idea is lovely! I don't agree with all of it 100%, but it's a great starting plan, and it seems fair, workable, and designed to generate a lot of good will and loyalty (both from the fans and the employees). The Big Two's business model does not overly bother me, capitalist that I am, but just because THEY do it that way needn't mean it is the only way.

Brandy

Anonymous said...

Greg H - your throw-away character idea is a total joke and utter fiction. Anybody with a brain can see when a character has some legs and when it does not. I knew Venom would catch on the first time I saw in him Amazing #300. I knew the Gibbon was d-list the first time I saw in him amazing #110.

As far as the "developers" getting as much or more credit - get a grip. So I suppose Burroughs only deserves some of the credit for Tarzan - with his publishers, his editor, and heck even Marvel comics, since they worked on the character - getting credit as well. What a joke of an argument. I suppose the idiot filmmakers who have been exploiting Dr Seuss characters should get credit for developing HIS creations too huh?

Guess what "Gregg" - why don't these filmmakers CREATE something of their own and see how viable their own properties are. The reason Marvel and others protect their properties is because they know THE PROPERTIES are goldmines - and not their paltry contributions to tweaking them

Gregg H said...

Oh yeah, I guess EVERYBODY just 'KNOWS' when a particular concept is eventually going to get hot. Or are you some sort of special hot-shot with ESP?
I can't imagine how Marvel ever put out Sleepwalker, or DC did their revamped Doom Patrol or any of a hundred other ideas that didn't take off. After all, they should just go and ask you, since it is so obvious to you what will and won't work eventually.

But then again, you can't even put your own name to anything, that must be why they can't find you and offer you the big job, right?

Anonymous said...

Gregg

I'm sorry that you lack discernment, or the ability to distinguish good from bad. I'm sure lashing out and using all caps to Internet strangers will cure you of that

cesare said...

@ANON above

I think it is a bit silly to think you can absolutely tell what characters are going to make it big, don't you think? For instance, which minor characters appearing in comics today, from whatever universe or publisher, are going to be blockbuster properties tomorrow?

Not so easy is it? And I'm not ridiculing anyone, not at all, I'm just chiming in cause I like this blog.

Anonymous said...

QW,

Celebrities do not have the same expectations to privacy as non-public individuals. They can be subject to news stories, parody, and even unintentional false statements ("rumours").

Brent E,

I am not trying to make absolutes where they don't exist. However, it is well settled that public personalities have a lower expectation of privacy than non public personalities. While every case may be different, it is absolutely true that this distinction exists.

What is hostile is your insistence on carrying forward an argument that can be resolved by a casual glance through the national enquirer.

What is also hostile is your insistence on putting words in my mouth and implying that I don't realize the law is fluid simply because I've expressed the notion that some areas of law are more settled than others. You also accused me of saying something you did not say. I never said you said something you did not say.

You're wrong, get over it and stop being an argumentative douchebag.

Gay marriage is awesome. Peace.

Anonymous said...

Hey Jim, Are you doing okay? I just wanted to post and find out if you're doing okay.
Hey I was thinking about elevators and found this:
http://www.tcj.com/archive-viewer-issue-74/?pid=4866
I really hope you're doing okay Jim.

Skab said...

The signal to noise ratio on this topic is becoming quite low...

Ole M. Olsen said...

Skab said:

The signal to noise ratio on this topic is becoming quite low...

You should see the other one. ;-)

Anonymous said...

expectations of privacy are different from rights of privacy. Earlier in this thread, it was stated that celebs do not have the same rights as ordinary mortals. Is that true?

QW

Anonymous said...

Qw wrote

expectations of privacy are different from rights of privacy. Earlier in this thread, it was stated that celebs do not have the same rights as ordinary mortals. Is that true?

-----

Not one whit.

Brandy

Anonymous said...

@QW,

I hit publish too soon.

Now, To be fair, first you have to distinguish the people writing that public figures do not have the same "expectation of privacy" from those who maintain public figures do not have the same "rights".

The former statement is correct, and is what I originally wrote. The second is not, and is, at best, sloppy writing from one who knows the difference but can't be bothered, and at worst someone who actually can't see the difference.

Public figures have exactly the same privacy rights nonpublic figures do. When they go to the courts to seek redress, they bring a lawsuit for, let's say, defamation. There is no different cause of action because of the public status of the Plaintiff. The right for which they seek redress is the same, as is the remedy. Zero differences there.

What IS different is the standard imposed upon a public figure once the violation of the right is raised in a complaint. Public figures must prove different things than the nonpublic person, and it is a higher and harder standard to meet.

Similarly, in regard to an invasion of privacy suit over a photograph, the right in question is the same. The Plaintiff's burden again changes if the Plaintiff is a public figure, for though the standard, in general, is the same --was the reasonable expectation of privacy violated? -- the public figure's definition of "a reasonable expectation" is much lower than the nonpublic person's.

The rights, themselves, are the same. The proof required in pursuing them is not. This is not a distinction without a difference, or nitpickery over word choice. One does not -- or should not -- want to dilute the term "rights". In casual conversation? Fine, but unfortunate. In a discussion of a legal nature? Unacceptable, or at best, sloppy and inaccurate.

In other words, the public person's right is the same as the nonpublic person's. If they each carry their respective burden, they will each attain the remedy sought. The burden is the difference, not the underlying right. This concept is vitally important for theory reasons far too involved to get into here. But, speaking in a generalized but accurate sense, that is the gist of it.

Before I stopped reading anonymice, I did in fact agree in part with what some of them wrote, as far as it went. But they were such argumentative assholes, just in it to flap their gums or to go on the attack instead of reading carefully and reasoning it all the way through, that really, why bother to point out the error? Hostility does not rate, with me at least. And I'm probably old enough to be their grandmother in most cases -- I'm not old enough to be Mr. Shooter's mother, but not by much. I've seen a lot of disagreeable sorts, even taught some. Don't have to like 'em, or debate 'em. And so I don't.

Hope this helps. Feel free to ask for clarifications if you need them. And don't forget, gay marriage IS awesome. Although I do miss the old gays-against-gay-marriage "aping heterosexual values" crowd. They could be assholes, too, but some of them were damn fun to talk with.

Brandy

One has to wonder about the nonpublic person's future regarding these issues, given all the cameras trained on the average person on the street (literally) and the capacity of the Government to listen in on conversations.

Anyway, you asked and seemed serious, so there is your answer, at least from my perspective, and from the POV in my mind when I wrote the original statement.

Anonymous said...

You're right cesare - I'm sure the creators did not know the difference between the Punisher and the Spot. I'm sure they figured it was all up to public whimsy to figure out which character had legs

Hell, even in the Ghost Rider case, when Friedrich first came up with the idea, before the character was even put to paper, Roy Thomas said "That idea is too good to just be a villain in Daredevil"

cesare said...

are my feelings supposed to be hurt now? I can't tell.

Anonymous said...

Hi Brandy,

Thanks for taking the time to answer my query - much appreciated.

QW

Kev From Atl said...

It is really ridiculous to say that anyone with a brain can see which characters will take off and which will not. Remember, please, that Superman was rejected numerous times before DC took a chance on him. Batman was one of many pulp-based detective characters, any one of whom might very well have become popular. No one knew for certain that these characters or a thousand others would become popular. They took a chance on them, and in those cases it paid off, and in many cases it did not. Read any Crimson Avenger comics lately?

And don't forget the huge numbers of characters whose popularity waxed and waned over the years. Daredevil poked along for nearly 2 decades, holding down 1 book and coming close to cancellation many times, before Frank Miller came along and turned Daredevil into (briefly) the best-selling book at Marvel. Do you think there ever would have been a Daredevil movie(even if you did not like it) if Miller had never taken over the book? No way. And of course since Miller left the character's popularity has once again waned and waxed, never again achieving the level of popularity he had under Miller.

Swamp Thing is another good example. The character was created by Len Wein (that guy again) and Bernie Wrightson as a throwaway character in a short story in House of Mystery, but proved popular enough to get his own book. Do you think anyone saw that coming? The solo book was popular until Wein and Wrightson left, shortly after which it was canceled. When the book was revived it limped along near cancellation levels of sales until Moore, Bissette, and Totleben took over and catapulted the character into popularity again. And what happened when they left the book? It limped along for a while (running on momentum and fumes, really, despite some good work) until it was canceled and revived at least twice, maybe more.

And how about Animal Man? A backup feature who made a few appearances and then disappeared for decades until Morrison came along and breathed new life into the character, and he has been around in one form or another ever since, although I would argue nowhere near as popular as the Morrison days. Do you think Animal Man would have been part of the New 52 Universe if not for the Morrison run? No way; the character would be a forgotten silver age obscurity.

The point is that no one knows which characters will be popular and which will not. They may think they do, but they are frequently proven wrong. When Nova came out it was touted as the next Spider-Man, but was canceled after 25 (I think) issues. Despite numerous revivals since then I don't think that anyone would argue the character has lived up the "next Spider-Man" billing he originally got.

When Siegel and Shuster came out with "Funnyman" many people thought they had the next Superman (hard for me to imagine how anyone could think so, but they did) on their hands. 6 issues later it was gone. How could they go wrong with an original creation by the creators of the biggest character in comics? Who knows, but they did. (continued)

Kev From Atl said...

Sometimes you catch lightning in a bottle without even trying to, and often no matter how hard you try you can't catch a break with a character.

Wolverine was a throwaway character. No one, and I mean no one, had any idea what he would become. Yes, the Claremont and Miller mini-series did much to make him popular, but why was he the first X-Man to get his own solo series in the first place? Because Claremont, Cockrum, and Byrne had already made him popular enough to warrant it. And all of that built on the original creation from Len Wein and Herb Trimpe. Without that scaffolding to build on they would have had to come up with a totally new character, and that character would not have been the same as Wolverine, and may never have achieved the same level of success. In fact I believe the story was that everyone thought Nightcrawler was going to be the breakout character of the New X-Men, but obviously that did not happen. So how do you cut Wein and Trimpe from the rewards of the Wolverine character? And how do you even begin to assign percentages of his creation to the various people who worked on him over the years to figure out who gets what? It is impossible.

cesare said...

what Kev From Atl said......

Jason said...

I sincerely hope this nearly-week-long silence means that Jim has, or is near to having, a pro writing gig again.

(OK, my REAL hope is that someone decided to put him in charge of a comic company to clean house and restore the medium's greatness, but that's pretty much a pipe dream.)

Dan said...

@Anon - "Earlier in this thread, it was stated that celebs do not have the same rights as ordinary mortals. Is that true?"

Yes, it is. "Public" figures are people who put themselves out for public scrutiny--particularly politician and entertainers. When you do that, you choose to attract attention. That's why it's okay to poke fun at these people. They're not "private" citizens anymore.

This doesn't mean you can go digging through their emails or anything. That kind of privacy is still protected. But if you made a Saturday Night Live sketch of your workaday neighbor, you can be successfully sued--whereas if you spoofed the idiots on Jerseylicious you wouldn't.

Dan said...

To clarify my previous point... if you have to work harder to protect your rights (i.e. your burden of proof his higher), then you effectively don't have the same rights as others.

Gregg H said...

@Kev from ATL

I think it is pretty easy to cut Len and Herb out from the later success of Wolverine, as they essentially had nothing to do with it. All they came up with was a very basic visual (that was soon modified slightly and later changed HEAVILY before the real breakout in popularity) and a backstory that ended up getting scrapped nearly immediately.
I also submit for thought the possibility that if Chris and John (et al) had chosen another member of the team and did exactly what they did for Wolverine to them, then THAT would have been the breakout instead. What if they did kill off wolverine instead of Thunderbird as originally planned? And what if they developed Thunderbird (who was also pretty much a blank slate with certain similarities to Wolverine in his brief life) with the attributes that they ended up putting into Wolverine? Of course there's no way to know for sure, but I think it was those attributes created by Claremont/Byrne and not the name and basic costume that they were handed that were the keys to the success. Just food for thought and consideration.
Of course, to me it is a moot point. Everyone got paid for the work they did and I really don't see how anyone can think they should be entitled to anything beyond that.

Gregg H said...

On a completely unrelated note, am I the only one who would love to see Jim show up as a guest on the new Kevin Smith show "Comic Book Men"?

Dan said...

Something that bugs me about this thread... all the people defending the companies out of hand--that they somehow deserve full ownership and the profits because they "risk" more.

Yeah, they risk money. But the talent risks their LIFE. I mean, a writer or artist dedicates their life to a craft--which is a HUGE gamble. If they choose poorly, they can't just change gears and step into a different profession. Most invest their teens and twenties training and breaking in. That's something you can only give once.

And ideas don't grow on trees. Why don't people respect this? The ONLY reason companies hire human beings is because investors and bean counters have no ideas or talent--they just know money.

What a tragedy that only money matters and to hell with the humans who actually produce what earns that money. Let the CFO create a character and write and draw the comic, and then let's see how much money he makes...

Work for hire is an affront to human dignity. An outright abomination. It's not slavery, but it deserves the same expulsion from human industry (and will take almost as much effort).

No respect for people who give their lives--not just some cash--to entertain us. Amazing.

Kev From Atl said...

"I think it is pretty easy to cut Len and Herb out from the later success of Wolverine, as they essentially had nothing to do with it."

So the guys who came up with the name, the basic look, and the retractable claws of the character had essentially nothing to do with the success of the character? That is a logic I cannot follow.

Gregg H said...

So Dan, what makes a writer, artist or whatever, any different from a mechanic, librarian, computer salesman, or cable TV installer who ALSO dedicate their life to a particular craft where they have an aptitude?

They all do their jobs and get paid for it, but you want writers to get paid AGAIN because they actually did their jobs right the first time and wrote a good story?

marco said...

Wolverine was hauled out by his wing-tip hair from the dismal quagmire of of Claremont's awful and unreadable X-Men by Frank 'I Used To Be Your Biggest Fan But Now You're Dead To Me' Miller. You couldn't read that crap. The dialogue would make a Jim Cameron film sound like Shakespeare. The rendering of accents was inept and agonising. Characterisation was no more subtle than clumsy caricature. The way those pages were basted with amped-up melodrama and soul-gouging angst would have been risible if you hadn't already been seeded with suicidal feelings by how wretched the damned thing was. Jim wrote recently about how shrewdly Claremont recruited his collaborators, and only a succession of excellent artists gave X-Men even a curiosity value. I believe it was on an airplane journey, with a captive audience so he couldn't run like mad in the opposite direction, that Claremont badgered poor Frank into doing the Wolverine limited series. Instant credibility for the series, and the birth of the Wolverine phenomenon. If Frank had been gifted fertile loam by guys like Herb and Len, then so much the better. Credit should also go to Paul Smith. Smith and Miller created such powerful visual narratives that you could become engrossed in those breakout Wolverine stories, with their beautifully controlled action sequences, without having to grapple with Claremont's incredibly prolix claptrap.

Anonymous said...

Dan said...
To clarify my previous point... if you have to work harder to protect your rights (i.e. your burden of proof his higher), then you effectively don't have the same rights as others.

--------

That is certainly one way of looking at it, and you expressed it very well.

I think a better way to view is, as you wrote in your prior comment, public figures accept the higher burden by virtue of choosing to place themselves in the public eye. It is not involuntary. Contrast this with the misuse of a name or likeness to promote a product. Average Joe is pretty much SoL, because he must prove that people know who he is. But the public figure is actually at an advantage here, as this is generally not at issue by definition. I would not think you would say that effectively Average Joe doesn't have the same rights in this case. A disadvantage in his burden, yes.

The reason this ends up mattering is when you get into the deep dish pizza legal discussion of rights. I am 100% sure that even if you know this, you didn't mean it in this context, and I mean absolutely no disrespect, but your view is regularly used to justify some pretty racist and sexist arguments. Again, I know that you didn't mean to even suggest such a thing -- just offering my personal reason for why I resist that logical conclusion.

Brandy

Anonymous said...

Work for hire is an affront to human dignity. An outright abomination. It's not slavery, but it deserves the same expulsion from human industry (and will take almost as much effort).

****
A Civil War with 600,000 dead? lol seems unlikely

Rob

tnthielen said...

this is an interesting tidbit about selling sketches from Sean Murphy
http://robot6.comicbookresources.com/2012/02/sean-murphy-on-the-affair-of-the-wolverine-abcs/

Dan said...

@Rob - A Civil War with 600,000 dead? lol seems unlikely

I know. So creators may be stuck for a long time.

But I was referring more to the legal process. Decades of legal maneuvers plus populist uprisings followed by the corporations (plantation owners) willing to risk all to stop it.

It would be nearly as big a fight, I believe. No one's going to give up that much control without being forced to.

Sadly, talent has the power to make this happen, but it would take a monumental organized effort. Refusal by anyone to work under such conditions would force a change. But I couldn't imagine the corporate heads giving in without first handing over every job to overseas people. They would rather radically change immigration law than yield an inch to employees.

The only thing I liked about Image was that the industry's hottest talent was breaking away from the W4H system to own and control their output. I was hoping this would revolutionize the industry. It didn't.

Dan said...

@ Brandy -- "The reason this ends up mattering is when you get into the deep dish pizza legal discussion of rights. I am 100% sure that even if you know this, you didn't mean it in this context, and I mean absolutely no disrespect, but your view is regularly used to justify some pretty racist and sexist arguments. Again, I know that you didn't mean to even suggest such a thing -- just offering my personal reason for why I resist that logical conclusion."

Huh? How does this lead to justifying racism or sexism?

I'm only comparing degrees of public vs private identity. Seems to me it applies the same regardless of race or gender.

Dan said...

@Gregg - "So Dan, what makes a writer, artist or whatever, any different from a mechanic, librarian, computer salesman, or cable TV installer who ALSO dedicate their life to a particular craft where they have an aptitude?

They all do their jobs and get paid for it, but you want writers to get paid AGAIN because they actually did their jobs right the first time and wrote a good story?"

I don't follow you. Librarians don't create. Repairmen don't create, they just fix. Creator's rights only apply to those who create the product, not use them. So while they did need training, they don't apply to this conversation.

I'm saying the people who create deserve a fairer share of the ownership and profit than they're getting. I'm saying creators should get a piece of every sale based on their creations--be it movie deal, t-shirts, whatever. If the company sells their idea twice, then the creator should get paid twice.

I'd rather publishers have the headache of figuring out how much goes to which participating creators, than creators be treated like office supplies.

What happened to Siegel, Schuster, and Kirby (being the highest profile examples) should never have happened, and never happen again. It is absurd that people indirectly involved in the creation of a property get all ownership, control, and virtually all profits while the talent gets paid like the janitor.

Investment capital is only a PART of the process, yet so many people treat them as if they are somehow more deserving than anybody else. You can say nothing happens without money, but also nothing happens without talent. It's symbiotic, not parasitic as so many seem to believe.

Brent E said...

Anonymous who called me a douchebag:

Stay classy.

«Oldest ‹Older   1 – 200 of 299   Newer› Newest»