Category: Politics

Work-for-Hire, Royalties, and Freelancing

In my previous post, I linked to a piece on Ken Penders written by TheAmazingSallyHogan, and I said that I had a few minor quibbles with it that I'd come back to. So here they are.

Ms. Hogan says this about work-for-hire law:

Under Work for Hire contracts, a creator is paid a flat fee for producing content. All artwork, stories, characters, plots, symbols, etc. become the property of the employer (or a third party, which would be SEGA in this example). Under Work For Hire, a creator does not receive further compensation/royalties if their work is reprinted, if their characters are reused due to popularity, or even if their work results in merchandise/mass media. This is not a salaried position – at any point a publisher can decide to simply stop asking a creator to submit work.

While that's true of Archie's work-for-hire agreements, it's not true of work-for-hire in general as Hogan suggests. It is entirely possible to have a work-for-hire agreement that does allow for royalties, or other profit-sharing arrangements; for example, the audiobooks I've recorded were all produced under work-for-hire agreements that only pay royalties, with no money upfront. Likewise, while the creators who produce work for Archie Comics are freelancers and not employees, it is possible (and indeed standard practice) for an employment agreement to include a work-for-hire clause.

And while Hogan correctly notes, here, that Ken was not an employee on salary, she incorrectly uses the word "employment" several times throughout the article to describe his work for Archie. But a job is not the same thing as employment. Ken was not an employee; he was a freelancer and Archie was his customer.

Hogan goes on to say:

These “no royalties” contracts are no longer the norm in the industry for creators working extensively on titles.

This is true (though the qualifier "extensively" is unnecessary); DC and Marvel both have royalty clauses in their work-for-hire contracts (Comic Book Resources has discussed both DC's current royalty policy and Marvel's). Archie is not the only comics publisher that does not pay royalties, but it is lagging behind the Big Two in terms of compensating its creators.

The point of all this is that all work-for-hire means is: Alice hires Bob to create something, under a contract which stipulates that for legal purposes, Alice is the creator.

That's it. That's what work-for-hire means.

How Alice pays Bob, whether Bob is Alice's employee or Alice is Bob's customer, and any other details of the arrangement between Alice and Bob are separate issues, and not determined by whether or not the work is for-hire. All work-for-hire determines is who is the legal creator of the work.

Some work-for-hire agreements pay a flat fee, some work-for-hire agreements pay royalties, some work-for-hire agreements are between a freelancer and a client, some are between an employee and an employer.

But in Archie's case, Hogan is correct: money upfront, no royalties; freelancers, not employees.

Go, Ken, Go! -- Part 6: Penders v Sega Dismissed

I'm going to talk about Ken Penders for a bit, because apparently somewhere along the line my blog became the Internet's foremost resource for information on Archie v Penders. And I never did get around to writing about the conclusion to the other suit, Penders v Sega et al, so I should probably start there.

To read my previous Ken Penders coverage, peruse the handy Ken Penders tag.

The gist: Archie forgets to make Ken Penders sign work-for-hire agreements prior to his work on the Sonic the Hedgehog comic, Penders asserts that he still owns or co-owns the copyrights to all that work and will be working on his own sequel, Archie sues him and writes all his characters out of the comic, fanboys flip out, Archie and Penders settle for undisclosed terms. And that's where I left off back in 2013.

Well, there were two lawsuits: Archie v Penders, where Archie sued Penders to assert that his work was for-hire and he held no ownership stake in it, and Penders v Sega et al, where Penders sued Sega and EA over Sonic Chronicles: The Dark Brotherhood, a game which featured characters similar to the Dark Legion he had created in the Knuckles the Echidna comic.

Last I talked about this, Penders v Sega was still awaiting resolution, but I learned recently that last year it was dismissed on a technicality.

I took a look at Ken Penders's messageboard a little while ago (I'll come back to that in a future post), and he linked to a Tumblr post by TheAmazingSallyHogan, citing it as an authoritative and scholarly rundown of the case.

I have a couple of minor, tangential quibbles with Ms. Hogan's piece, such as how she defines work-for-hire; I'll get to them in a later post. But they're not relevant to the specifics of the Penders case, which, near as I can tell, she has exactly right, and describes in great detail.

And as for the conclusion of the Sega case, here's what she has to say:

On September 26, 2011, Penders’ lawsuit against SEGA/Electronic arts was dismissed, with the Judge essentially telling Penders that he needed settle matters with Archie first, and then he could re-file. Penders re-filed on September 30, just four days later. The same Judge dismissed the case a second time, saying very firmly that Penders needed to settle matters with Archie before re-filing against SEGA/Electronic Arts.

[...]

In May 2012, Penders’ council appealed the dismissal of his case against SEGA and EA. Penders’ determination to have a case in progress against SEGA/Electronic Arts, instead of just waiting to re-file, was because there is a three year statute of limitations on US copyright claims – a legal time limit intended to make sure cases are tried while the evidence is fresh. Sonic Chronicles was released September 25, 2008, almost exactly three years earlier. Filing a new case later would mean he would lose the chance to sue SEGA for Sonic Chronicles’ sales, so Penders appealed the dismissal. The importance of these dates was not stated in his appeal, an omission that would later prove crucial.

[...]

On October 11, 2013, Penders’ appeal (concerning his case against SEGA/Electronic Arts) was heard. While the judges agreed that the timeline was highly relevant and that if the case was dismissed he would largely lose the ability to seek compensation for Sonic Chronicles, his previous lawyer had failed to state why the dates were important in the appeal, and thus the judges could not take that issue into consideration. Shortly after, the court rejected his appeal and upheld the dismissal. While he could re-file, Sonic Chronicles had been released September 2008. It was now well past three years later, putting essentially all sales outside of the three year statute of limitations window. However, any new usage of the characters introduced in that game (such as an appearance in the comic), could potentially lead to a lawsuit from Penders. Late October, Penders stated “this case may yet end up in the US Supreme Court if a resolution isn’t found prior to that”.

So there it is: due to a mistake in Penders's lawyer's legal filing, Penders v Sega was dismissed, and he missed the statute of limitations for collecting any of the money generated by Sonic Chronicles. No ruling, no settlement, no resolution. While I wouldn't be surprised to see some fanboys take the words "case dismissed" to mean that Penders's case against Sega was flimsy or lacking in some way, that is not what this dismissal means; the case was dismissed due to a mistake in filling out the paperwork, and no other reason.

I wouldn't expect to see Sega re-release Sonic Chronicles any time soon, as that would open them up to a new suit.

Penders's allusions to a Supreme Court case notwithstanding, this is most likely the end of it, though he's still got his own series coming at some point, whatever form it may take.

I noted before that a lot of the other writers and artists who worked on Sonic around the time Penders did could potentially file for their own copyrights (and that Scott Shaw already had). I haven't heard anything more about that. However, given how the Penders case went, I would expect Archie to quietly settle with any other creators who made similar claims, on similar terms, without suing them, and it's entirely possible this has already happened. It's one of those things we'll most likely never know.

Meanwhile, if you're interested in the case at all, I highly recommend that you read the entire piece by TheAmazingSallyHogan. It's as good and thorough a summary of the case as you'll find anywhere.

Try Them and You May, I Say

Dear Senator Cruz,

I enjoyed your courageous Senate speech on the importance of Senator Ted Cruz. I was particularly interested in the part where you read Green Eggs and Ham, and stated that it was analogous to the healthcare debate, saying Americans "did not like Obamacare in a box, with a fox, in a house, with a mouse."

Senator, I have two questions.

The first is, is your copy of Green Eggs and Ham missing the last few pages, or did you legitimately miss the point of a book that is easily understood by a typical four-year-old?

And, as a followup: do you next intend to quote 1984 in support of the NSA's domestic surveillance program, or are you more interested in citing Soylent Green as a great agribusiness innovation that will create jobs and feed the hungry?

Important Comics

Today's the anniversary of a couple of things.

It would have been Jack Kirby's 96th birthday.

And, more importantly -- as the King himself would surely have acknowledged --, it's the fiftieth anniversary of the March on Washington.

I was at a loss for precisely how I was going to tie these two events together in the same post -- and then I remembered Congressman John Lewis has a comic book out.

Stephen Colbert interviewed him a couple of weeks back:

Lewis discusses not only his new comic trilogy, March, but a comic that inspired him in 1957: Martin Luther King and the Montgomery Story. An excellent summary by Andrew Aydin at Creative Loafing Atlanta says:

Richard Deats, [the Fellowship of Reconciliation]'s Director of Communications in the 1990s, laid out FOR's motivation and purpose behind the comic in a 1997 letter, saying, "The comic book was originally intended to convey to semiliterate persons the story of nonviolence and its effectiveness as seen in the Montgomery movement. The medium of the highly popular comic book was believed to be the best way to reach masses of exploited African-Americans."

And that's what comic books were: they were a way of reaching the masses. They were literature for the illiterate.

And as with all mass-media means of distributing information to the poor, this upset the elites.

When comics first appeared in American newspapers around the turn of the twentieth century, they were seen as gutter trash. In the decades that followed, they were scapegoated for society's ills, culminating in Senate hearings, the Comics Code Authority, and the devastation of an entire American art form.

In a way, Martin Luther King and the Montgomery Story was exactly what the elites feared: it upset the social structure. It gave teenagers like John Lewis ideas.

It's ironic that the comics medium's greatest foe, Fredric Wertham, was also an ardent progressive in the Civil Rights Movement -- if he had never written Seduction of the Innocent, he would instead be best remembered for the doll study used in Brown v Board. Wertham was right, in a way, about comics' potential as a disruptive force, as a powerful tool for influencing young people -- but he chose to fear the imagined impact of fictional crime and horror stories, rather than see the true potential of comics as a force for good, for education, for organization, for social justice.

Kirby, of course, saw boundless potential in comics, in a way few people ever have. He used comics to advocate for social change, too, though he preferred fiction and metaphor, and is best remembered as a superhero artist (though his work crossed all genres and invented some). He saw superheroes as modern mythological figures -- as New Gods -- as aspirational avatars.

In the 1940's, Kirby co-created Captain America, advocating for US intervention in WWII when that was still a controversial position. In the 1970's, his Forever People were technologically-advanced, alien hippies. In the 1960's, The Fantastic Four gave us The Hate-Monger, a supervillain in a Klan hood who turned out to be Adolf Hitler himself. It also gave us this guy:

The Black Panther

That image is courtesy of Brian Cronin's Comic Book Legends Revealed, which notes that the Black Panther didn't look like that in the final published comic -- his half-mask was replaced with a full mask, making it less immediately obvious that the Black Panther was, in fact, a black man -- indeed, possibly the first black superhero. (Inevitably when you refer to a comic book character as "the first" of anything, that's going to lead to debate -- sometimes that debate can miss the point entirely and turn into mere nitpicking over comic book trivia, though other times, as in Who Was the First Black Superhero? by JV Halliburton II, it can explore the richness of comic history and highlight all the important characters who have helped to build and shape it and make it more diverse.)

Today Mark Evanier wrote a lovely remembrance of his friend and mentor, and among many other things he had this to say:

Jack was all about something new, something exciting and something that took whatever he was doing to the next level. [...] Jack was first and foremost interested in producing something that would take comics to some new plateau, creating new opportunities and new possibilities.

Kirby believed in comics. So did Martin Luther King and Alfred Hassler. So does John Lewis.

And so does Jillian Kirby. I've written before about her Kirby4Heroes fundraiser for the Hero Initiative, a charity that helps struggling comic creators. As we celebrate her grandfather's birthday, don't forget about the less fortunate who have helped shape the comics medium over the years and decades.

Customer Service Survey

I have no complaints about the representative who I spoke with; he was great. He was knowledgeable, professional, and responsive, and told me that they were aware of the outage and working on it.

HOWEVER, I have some pretty serious complaints about Cox's level of service.

First of all, my Internet outage lasted for over 12 hours.

Second, when I called, there was no recorded message informing me that there was a known outage in my area; I had to wait on hold for an extended period of time just to be told something that could have been handled by a recording as soon as I called in.

And speaking of recordings: you're seriously going to make me listen to the same four commercials, over and over again, on a continuous loop? Hey, kudos for finding a way to make being on hold an even MORE unpleasant experience; I didn't think that was actually possible. But I have to wonder, does Cox hate its employees AND its customers? Because this is just about the best way I've ever seen to ensure that a customer is as angry and frustrated as humanly possible before getting to speak to a support tech.

Put bluntly: Cox's Internet service is poor, rates keep increasing even as services are dropped (thanks so much for discontinuing Usenet support and then jacking up my rates five bucks), and saying that calling technical support is like pulling teeth is an insult to dentists everywhere.

Continuing bluntly: the only reason Cox has managed to keep my business is by virtue of being a local monopoly. The only other option for broadband Internet at my address is CenturyLink at 3.0Mbps, which is even more unacceptable than Cox's poor service, frequent outages, high prices, and legitimately terrible hold experience.

And, what's more, I strongly believe that Cox knows this, that the company is well aware that it has a captive audience and can therefore charge high rates for poor service and there is nothing else its customers can do but sit here and take it, because the broadband market has no competition to speak of.

In the short term, I begrudgingly admit that Cox has my business simply by default, because I have nowhere else to go.

In the long term, the market is going to change, competition is going to increase, and all the customers like myself who have spent the past decade being grossly dissatisfied with Cox's service are going to jump ship at the very first opportunity. A hard rain is going to fall.

I strongly suggest that Cox study the lessons of companies like Microsoft -- or, more dramatically, Blockbuster Video. Both of these are examples of companies that had a virtual monopoly in their respective industries. This monoculture allowed them to become bloated and unresponsive, and keep collecting money from their captive customers -- because where else were they going to go?

It didn't last. Technology changed. The markets changed. Blockbuster went bankrupt and, while Microsoft has held on to its majority share in the desktop/laptop OS and office suite markets, it has utterly failed to gain a foothold in emerging markets like phones and tablets, its browser market share has plummeted, and even companies that are using the latest version of Microsoft Office are likelier to use Google Docs for online collaboration.

Did this happen because Blockbuster didn't offer comparable, competetive services to Netflix and Redbox? Did it happen because Windows Phone is a poor operating system, or because Internet Explorer is an inferior browser?

No. Blockbuster offered very competetive prices to Netflix (no, it didn't offer streaming, but Blockbuster went bankrupt before streaming became Netflix's dominant distribution model). Windows Phone has received positive reviews, and Internet Explorer now performs comparably to other standards-compliant browsers.

So why did customers eagerly drop Blockbuster and Microsoft the first chance a viable alternative appeared?

Because that's what happens when you spend a decade taking your customers for granted, charging them a ridiculous rate for a barely-functional product or service, and generally treating them like livestock.

Yes, Blockbuster and Microsoft improved the quality of their products and services once competition started to pressure them into doing it. By then it was too late.

I know Cox is a monopoly in my area. I know there's no short-term incentive for it to improve its service or decrease its cost, because it doesn't have to in order to keep my business.

But if I were running Cox, I would think long and hard about the future. Someday, you ARE going to have a viable competitor. If you want to keep your existing customers' business when that day comes, you should probably start treating them better, right now.

The first thing you should do is stop making your customers listen to commercials when they're on hold.

The Propaganda Schlock of Starship Troopers

The last time I saw Starship Troopers was on VHS. I'd have been about 15, so you can forgive me if what I remember most about it is Denise Richards's titties. Which should give you some idea of just how well I remember it, because Denise Richards's titties are not actually in the movie. (Denise Richards's titties are actually important to the theme of the movie. I will be getting back to them in a moment.)

I also remember the film getting pretty mixed reviews on release -- it's quite clearly a big dumb action movie, with extra big and extra dumb, but there was also a vocal contingent of critics lauding it as a brilliantly subersive piece of satire of wartime propaganda. In the years since, it's become a cult hit among people who enjoy it for both -- because it manages a pretty interesting tightrope walk of playing itself totally straight while also being a wicked piece of satire.

More specifically, Starship Troopers the movie is a parody of Starship Troopers the book.

Well, maybe "parody" is a little strong -- again, it plays itself far too seriously to be considered a comedy per se. But it's certainly a movie about crazy, over-the-top wartime propaganda -- and the novel is crazy wartime propaganda (or, almost -- it was too late for Korea and too early for Vietnam).

Heinlein's an interesting dude, and Starship Troopers fills an interesting place in his oeuvre. For a guy who's typically identified as a libertarian, he sure has some weird ideas about only allowing soldiers to vote, and how public floggings are the best tool for disciplining them. With an extra bonus chapter where he really goes off the rails with that public flogging thing and rants about how anyone who doesn't spank their children is stupid.

Starship Troopers the movie gets how ridiculous the book is, ratchets its ridiculousness up to 11, and plays it completely straight.

And while the homages to WWII-vintage propaganda films are great, what it gets most about the nature of wartime propaganda is the dehumanization. Not only Heinlein's choice to very literally dehumanize the enemy by making them giant bugs, but the heroes are dehumanized, too -- and here's where I get back to Denise Richards's titties.

Because the coed shower scene is disquieting.

It goes beyond the obvious ideas of discipline and respect in a coed military and straight on into having a bunch of men fail to even notice Denise Richards as female. And when the Main Guy finally does go for a perfunctory roll in the hay with her, it's all just rote, mechanical "this is happening because it's a movie and the leads have to hook up" stuff.

All in all? Well, to make another Spinal Tap reference, there's a fine line between stupid and clever, and Starship Troopers walks it. It's a winking, biting homage to the source material, that looks and feels like it's a dumb movie made by people who just don't get it. (And it could be both -- there are a whole lot of people involved in making a movie.)

Its cult status is well-deserved -- and even if its comedy is intentional, it seems unintentional enough that it's perfect fodder for Rifftrax.

Which is what I'm headed to see right now, as I write this, though by the time you read it I should already be home. Maybe I'll share more tomorrow!

Funky as an Old Toenail

A 2008 interview with George Duke -- this one's got little directly to do with Zappa, but he gets a namedrop and there are certainly moments that are Zappa-esque.

Uploaded by HeadsUpRecords.

It's Marvel v Kirby, not Kirby v Marvel

I haven't had time to read the full judgement yet in the appellate court's recent decision in Marvel's favor in Marvel v Kirby.

What I have had time to read is multiple otherwise-reliable comics sites getting the basic facts of the case wrong -- indeed, the most basic fact of the case, which is who sued whom.

Matt D Wilson's article on the story at ComicsAlliance says,

Kirby’s heirs brought their suit over the characters in 2009, as the push to make huge-grossing movies featuring characters Kirby co-created (like The Avengers, which has made more than $1.5 billion) was really heating up. Marvel and parent company Disney countersued the next year.

(Wilson also incorrectly claims that the rights to the Silver Surfer were part of the dispute -- they weren't; the dispute concerns works created between 1958 and 1963, and the Surfer first appeared in 1966 -- and then misspells Gary Friedrich's name.)

Heidi McDonald's piece at Comics Beat -- a site which is ordinarily one of the best for coverage of comic book copyright disputes, due to lawyer Jeff Trexler's contributions -- is titled "Marvel wins appeal in lawsuit brought by Jack Kirby’s heirs", and its first sentence also refers to "a lawsuit bought by Jack Kirby’s heirs". Which is fucking baffling considering that right there on the same page Ms. McDonald has embedded a PDF named marvel-v-kirby.pdf that starts out like this:

11-3333-cv
Marvel Characters, Inc. v. Kirby

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Argued: October 24, 2012 Decided: August 8, 2013)
Docket No. 11-3333-cv
-------------------------------------
MARVEL CHARACTERS, INCORPORATED, MARVEL WORLDWIDE,
INCORPORATED, MVL RIGHTS, LLC,
Plaintiffs-Counter-Defendants-Appellees,
WALT DISNEY COMPANY, MARVEL ENTERTAINMENT, INCORPORATED,
Counter-Defendants-Appellees,
- v -
LISA R KIRBY, NEAL L. KIRBY, SUSAN N. KIRBY, BARBARA J.
KIRBY,
Defendants-Counter-Claimaints-Appellants.
-------------------------------------
Before: CABRANES, SACK, and CARNEY, Circuit Judges.

Again, I haven't had time to read the full judgement yet -- but Heidi McDonald apparently hasn't had time to read the first line, the list of parties, or the filename.

And look, I really like Heidi McDonald, and I really like Comics Beat. But I think this is terrible. It's one thing for somebody in the comments section to spout the common misconception that the Kirbys sued Marvel -- hell, it's pretty much a given! --, but it's another entirely to see it in the headline on a reputable site.

The Kirbys did not sue Marvel in 2009. They filed for termination of copyright transfer. Marvel sued them in 2010; only then did the Kirbys countersue.

I am sure that this is an honest mistake, on McDonald's part, on Wilson's part, probably on the part of some (but certainly not all) the people who repeat the same misinformation in various comments sections across the comics Internet.

But while it may be an honest mistake, it is not a trivial one.

Facts are important. Details are important. The question of who sued whom is important.

The claim that the Kirbys sued Marvel in 2009 is false. That is not a matter of opinion; it is not subject to dispute. The Kirbys did not sue Marvel in 2009 -- that is a fact.

Any narrative which maintains that the Kirbys sued first is, likewise, false, and presents an incorrect, misleading picture of the very nature of the suit.

And that even someone like Heidi McDonald, who is sympathetic to the Kirbys, has inadvertently bought into and repeated the false narrative that they sued first says a lot about how pervasive that narrative has become.

Private Prisons

I wrote something yesterday that forumgoer Mothra referred to as "a Thad mic drop", so I figured it might be a good idea to repost here. For posterity and stuff.

Mothra had brought up the Kids for Cash scandal, which has been in the news recently due to the Third Circuit's rejection of Mark Ciavarella's appeal.

The short version of the story is that two judges accepted bribes from the owner of a private juvenile detention center, in exchange for sending as many children there as possible.

I'm not a religious man, so when I say that there is a special place reserved in Hell for them, what I actually mean is "a minimum-security prison".

Anyhow, here's what I wrote yesterday; originally posted on Brontoforumus.


There are a lot of industries I hate. A lot I see as hopelessly, incurably corrupt, as industries whose very function is to profit from human suffering.

Health insurance. Investment banking. Oil and coal. Weapons. Newscorp.

But the private prison industry is the very worst.

The very proposition of creating a profit incentive for putting people in prison and keeping them there is one that should result in only two reactions: laughter that the notion is farcical; disgust at the realization that people are serious about it.

Have I mentioned the private prison lobby's role in crafting SB1070 lately? Because here, let me just link this again:

Prison Economics Help Drive Ariz. Immigration Law, by Laura Sullivan, NPR, 2010.