Tag: Copyright Law

Concerning Tolkiens

2012-12-28, 8:59 pm
Categories: Books, Comics, Movies, Politics, Stream of Consciousness

A few weeks back, Tom Spurgeon had this to say:

[F]or some reason I ended up with this Christopher Tolkien Le Monde interview in my bookmarks folder. It's instructive to read something about a family wanting certain rights returned or better rewarded when most people really like what's been done with those rights as opposed to their either not caring or actively hating the result. One of the reasons a lot of our comics-related issue discussions remain unsophisticated is that we frequently choose to fight our battles along fundamental "I like it"/"I hate it" lines and then kind of furiously stare at the other issues involved until we can find a way to make them comply to our initial impression. It's no way to move forward.

He's not wrong. Given my established stance on creators' rights -- and creators' heirs' rights -- I'd be remiss in not confronting this conundrum.

Now, I like the movies. They're not perfect (The Two Towers, in particular, completely botches the narrative arc, overemphasizing the importance of Helm's Deep and an inexplicable new Osgiliath subplot while shunting the two actual climaxes of the book to the first act of the third movie -- and in one case, removing it from the theatrical cut entirely), but on the whole they're really pretty good. But yeah, there are some uncomfortable facts surrounding them.

To reiterate: my stance is that copyright law lasts far too long; in my opinion The Hobbit should have been public domain by now. But given that it isn't, we should respect the rights of the creators -- and given that, in this case, JRR Tolkien is no longer with us, we should respect the rights of his heirs. For legal purposes, the Tolkien Estate is JRR Tolkien.

But there are a couple of other factors at work here, too.

It was JRR himself who sold the film rights. Willingly, and with the intent to make sure his heirs were cared for financially.

That said, he was taken advantage of. Ever hear of the first ever Hobbit movie? It was made in a month, ran 12 minutes, and was only screened once -- because Tolkien's lawyers were incompetent, and left a loophole allowing the studio to retain the rights to Lord of the Rings as long as they produced a full-color film by a given deadline. Length and distribution were not specified; a 12-minute movie screened once satisfied the contract.

It wouldn't be the last time lawyers worked to game the system. Forty years later, Warner would produce the blockbuster Lord of the Rings film trilogy, and, through the usual Hollywood creative bookkeeping tactics, claim that it had not turned any profit and therefore they didn't owe any money to the Tolkien Estate. It took a lawsuit for the Estate to receive any money from the films.

(This is the point in any creators' rights debate where some corporate apologist inevitably explains to me that publicly-traded companies are beholden to their shareholders and therefore obligated to hoard as much money as humanly possible and do everything they can to avoid paying a single cent more than they have to. Why, it would be unethical for them not to try and get out of paying the Tolkien Estate! I welcome any such apologist to explain to me precisely how it was in Time Warner shareholders' best interest to expose the company to multiple lawsuits -- not just from the Tolkiens but from Peter Jackson and Fran Walsh, who New Line also tried to stiff -- and trap The Hobbit in development hell for the better part of a decade, to the point where it appeared for quite some time that it wouldn't get made at all.)

And there's one more sad old saw that the apologists like to trot out: "Well, what did the heirs ever do?" That's one I see a lot in the conversations about the heirs of Jack Kirby, or Jerry Siegel, or Joe Shuster, et al.

I think it's a hollow argument. Creators do their work expecting to leave something for their families, and dismissing heirs outright effectively means giving luck-of-the-draw based on the age at which a person dies. (Do you believe Jack Kirby should have received money from The Avengers if he had lived to 95, and would have left that money to his children? If so, why do you believe his children don't deserve that money just because he died at 76? If not, then what the hell does it matter whether his heirs did the work or not, if you don't think the guy who did do the work shouldn't have been compensated for the adaptation?)

But even if you don't buy that line of reasoning, well, this is one case where "What did the heirs ever do?" is a pretty piss-poor rhetorical question. Because in this case the answer is "Assemble, edit, and publish about 30 of his books." Make no mistake -- Christopher Tolkien hasn't simply sat back and waited for checks to roll in; he has made it his life's work to get as much of his father's work into print as humanly possible. And it's not so simple as just finding old pages and retyping them -- many of the writings are fragmentary, and many would be incomprehensible without Christopher's extensive annotations. Without his work, Tolkien's body of published work would be far poorer.

Actually, that brings up another point entirely: the Hobbit movie isn't simply an adaptation of The Hobbit. It includes material from Unfinished Tales -- a book which I'm fairly confident Warner, MGM, et al do not have the movie rights to.

Now, I'm sure Warner's got very expensive lawyers on this. And maybe I'm misremembering -- it's been years since I read Unfinished Tales, longer since I read Lord of the Rings, longer still since I read The Hobbit. Maybe the LotR appendices have enough information about the Fall of Erebor, how Thorin earned the name Oakenshield, Gandalf's meeting with Thráin, and the White Council that Jackson, Walsh, Boyens, and del Toro can plausibly claim that they only adapted material from The Hobbit and LotR -- but if I were the Tolkien Estate's lawyers, I'd be poring over the movie right now looking for material from Unfinished Tales and any other posthumously-published Tolkien work that the studios never bought the rights for.

All that said? I like the LotR films and the Hobbit film. I'm sorry that Christopher Tolkien wishes they didn't exist, and I feel a little bad about that. I feel worse still about how the studios have treated the Tolkien Estate, and I believe it's genuinely unconscionable that they tried to stiff them out of compensation for the films. And yes, I suspect that the latest movie does adapt material from books it's not legally allowed to. (I'm also none too happy about the reports of union-busting and animal mistreatment, come to that.)

Stuff like this is personal. I believe that, for example, The Avengers hit a point where I couldn't in good conscience pay to see the movie; I believe that The Hobbit, despite the caveats above, did not. I believe the point that Tolkien's heirs do get a substantial amount of money from their father's work -- even if they had to go to court for some of it -- while Kirby's and Heck's heirs don't is a major reason for that. Spurgeon's point is intriguing -- but I really do like to think I've formed my opinions based on the circumstances of the dispute, and not simply looked for facts that made me feel good about seeing a movie I already wanted to see.

tl;dr I think The Hobbit was pretty great. There are some uncomfortable things going on behind the scenes and we should think about those. Personally I don't think they justify a boycott -- but everyone should be aware of them, consider them, and come to their own conclusions.

Business

2012-12-22, 11:21 pm
Categories: Movies, Music

Frank Zappa: Portrait of the Artist as a Businessman, by Rob Partridge and Paul Phillips, Cream, 1972. Courtesy once again of afka.net.

Frank discusses the business side of things. He was certainly a much savvier and more thorough businessman than most rock artists, then or now -- but his comments about what a good deal he has with Warner Brothers are an indication that he still had some hard lessons left to learn; he'd be singing a much different tune a few years later.

This Will Probably Get Me Put on a Watchlist Somewhere

2012-12-11, 2:27 pm
Categories: E-Mail, Politics

Dear Senator McConnell,

Hi, me again. You presumably recall my E-Mail of two weeks ago, where, discussing Senate gridlock, I closed by asking you, "Are you going to start filibustering your OWN bills now?"

For the record, Senator, that was intended as a joke. I meant it as an example of ridiculous hyperbole, the sort of crazy, offbeat hypothetical situation that a person of average intelligence would see as self-evidently ludicrous. The kind of thing where someone would read that and think, "Haha, filibustering his own bill. That is humorous, because no rational, sane human being would ever do such a completely asinine thing."

In other words, I was not actually seriously recommending that you start filibustering your own bills.

Despite the misunderstanding, I am absolutely flattered that you took my words to heart, and if I may have a moment of your time I have some more suggestions I would like you to consider.

  • Copyright -- please hire Derek Khanna, recently ejected from the Republican Study Committee, to address the subject of copyright reform. Unless you're as cozy with Hollywood lobbyists as your colleagues in the House, of course.
  • Corporate personhood -- please revert to pre-Santa Clara v Southern Pacific policy and clarify that the equal protection clause is intended to protect actual human beings, not abstract social constructs.
  • Science -- please acknowledge the existence of science, and pressure your colleagues to do the same.
  • Women, black people, brown people, gay people, and disabled veterans -- maybe your party could show some basic human decency to these demographics. Just a thought.
  • Filibuster -- please restore to pre-1975 rules, or eliminate entirely. The way the minority party has been abusing it recently is a joke. Literally.

Thanks!

Best/Worst of Times, etc.

2012-12-05, 8:53 pm
Categories: Comics, Movies, Stream of Consciousness

Yesterday I talked about Karen Berger's imminent departure from Vertigo, the disappointment I feel as a Vertigo fan, and the excitement I feel wondering what she'll do next.

And you know, that's kind of the perfect metaphor for what it feels like to be a comics fan in general right now. There's just so much bullshit -- but there's so much gold, too.

Since the 1940's, the American comics industry has gone through a regular, 20-year boom-bust cycle. We're in an odd-numbered decade, so if the pattern continues that means we've got another bust coming. And while I think Marvel and especially DC are full-speed-ahead on stupid management decisions to cause the next one, this one's not going to be like the others -- it's going to be smaller, it's going to be confined to those two major publishers, and it's going to happen even as their characters and brands increase in popularity.

Now, both companies seem dead-set on repeating most of the worst excesses of the 1990's -- variant covers, new #1's, big summer crossovers, increasingly muddled continuity reboots, Jim Lee -- and don't seem to get the idea that this is going to go much like it did in the '90's, with a brief boost to sales followed by a crash as everybody gets sick of this crap. DC, in particular, is currently being run by bean counters at Warner who think their best shot at relevance is pushing the Reset button on their universe again and putting out prequels to Watchmen.

Even still, DC's still managing to put out some great books. Dial H is fantastic, Demon Knights is a joy, and Animal Man and Frankenstein were both pretty great until they muddled into an unnecessary crossover. I really don't think it's a coincidence that the best books coming out of DC are the ones that are subject to the least corporate interference and are the least subject to the whims of shared-universe continuity.

And that's just DC proper. Take the the industry as a whole and there's a stunning variety of wild, beautiful, original books -- Saga, Chew, Manhattan Projects, The Massive, to name just a few. There are even some wonderful licensed books -- Adventure Time, Popeye, Godzilla: The Half-Century War. Prophet shows that even a 1990's Liefeld property can turn into a brilliant, offbeat science fiction series worthy of classic Heavy Metal. Dark Horse Presents demonstrates the depth and breadth of modern comics at its greatest, at 80 pages for $8 a month.

And that's just the new stuff. As far as classic comics, there's an embarrassment of riches. When I gave my cousin a copy of The Completely Mad Don Martin -- a collection of the cartoonist's entire Mad output, in two oversized hardcover books in a slipcase, weighing in at about 25 pounds -- my uncle looked at it and said "Did you ever think you'd see anything like this?" The mere idea that, in two generations, Mad has gone from being dismissed as trash to being given reverential treatment.

There's so much in print -- Floyd Gottfredson's Mickey Mouse, Carl Barks's Donald Duck and Uncle Scrooge, exhaustive collections of Peanuts, Calvin and Hobbes, Bloom County, Terry and the Pirates, Dick Tracy, Prince Valiant, Mary Perkins On Stage, Pogo, Tintin. You can get the complete Bone in a single black-and-white volume or a dozen color trades from Scholastic. Love and Rockets is collected in paperbacks or hardcovers, pick your Poison River. The other day I was at the library and saw a huge hardback collection of Walter Simonson's entire Thor run (only the worthy may lift it). There are glorious hardcover collections highlighting the work of Kirby, Ditko, Wood, Davis, Kurtzman, Wolverton, Eisner -- the choices are staggering.

And that's just the stuff that's in print.

You wanna talk about digital? You can buy the entirety of Quantum and Woody right the fuck now (and there's a rumor of two finished-but-never-published issues on the way too). Sure, digital comics has its issues -- DRM and the inevitable platform fragmentation and compatibility problems that DRM causes -- but it's still early days and that stuff'll get ironed out.

And that's just the stuff you have to pay for. Head on over to a site like Digital Comic Museum and you can gaze upon thousands of public-domain comics, completely free of charge.

And that's just the stuff that's available legally.

You want a comic that, for various rights reasons, will never be reprinted? Jack Kirby's 2001? Moore, Bissette, Veitch, et al's 1963? The infamous Air Pirates Funnies? Can't stop the signal; they're easier to find now than they were when they were in print.

So, all in all? It's plenty easy to get frustrated with the direction DC and Marvel are going in. It's easy to foresee their readership tanking and bringing on another crash and panic. But Avengers and Dark Knight Rises are still Hollywood blockbusters; their publishers aren't going away -- and even if they vanished overnight, there would be so much good stuff left to fill the vacuum that I, for one, wouldn't miss them...much.

Truth is, for all the bullshit, I don't think there's ever been a better time to be a comics fan -- not even the 1940's.

And I shouldn't have to say this, but just to be perfectly clear: I am absolutely not advocating illegally downloading comics that are commercially available. Support publishers you like. Support creators you like. Support your local comic shop.

And if you download a work that's out-of-print, or otherwise acquire a book that doesn't benefit the creators or their families, it's a good idea to buy something that does. You like 2001 (or, for that matter, any of Kirby's Marvel work)? Buy Kirby: Genesis and send some money his family's way. Like 1963? Pick up some Swamp Thing trades, and keep an eye out for Bissette's Tales of the Uncanny.

Or whatever it is you're into. Bottom line? Find something you love, support the people who make it happen, and tell your friends.

Rolling Over

2012-11-18, 9:11 pm
Categories: Politics

Yesterday I praised the Republican Study Committee for putting out an excellent paper on what's wrong with copyright and how to reform it.

Today they pussied the hell out and retracted it under pressure from Hollywood lobbyists.

Who the hell do you guys think you are, Democrats?

My continued support and praise to everyone who still supports copyright reform. And a great big raspberry to all the craven little shits who backed down.

This isn't over.

Strange Bedfellows

2012-11-17, 5:21 pm
Categories: Politics, Stream of Consciousness

I can't say I agree with the Republican Study Committee on many things -- among other things, their leadership is responsible for holding the budget hostage to pursue more tax cuts for the 1%. (At least they're willing to discuss cutting the budget for the military.)

But, per Cory Doctorow and Mike Masnick, they've put out a paper called Three Myths about Copyright Law and Where to Start to Fix It, and while so far I've only skimmed it, it looks pretty fantastic.

There is a strong conservative case to be made against modern American copyright law: it's a big-government handout to Hollywood that grants artificial monopolies, interferes with the free market, stifles innovation, and is clearly not what the Founding Fathers intended when they wrote the Constitution.

I'm not optimistic about the Republican leadership, or the Democratic, picking up the baton on this one. But I think it's a pretty big deal that people are actually talking about it -- and that some Republicans still remember that what "conservative" actually means isn't just "tax cuts for the rich".

All the major copyright landgrabs of the past couple of decades, from the DMCA to TPP, have been bipartisan efforts by lobbyist-owned politicians, with as little input from the voters as possible. SOPA/PIPA showed that while their support among politicians may be bipartisan, their opposition from an informed public is nonpartisan.

Even if nothing comes of this right away, I'm sure we haven't heard the last of it. Kudos to any politician willing to speak truth to power on this subject, regardless of party and regardless of disagreements we may have on other issues.

Shooting Yourself in the Hoof

2012-08-20, 10:47 pm
Categories: Games, Movies, Stream of Consciousness, TV

You know how a single ill-considered comment can overshadow absolutely everything else you say in an interview?

Well, if you've read the news today you can probably think of a pretty good case-in-point, but that's not what I'm here to talk about today.

Last Thursday I went to a Rifftrax presentation of Manos: The Hands of Fate, which ended with a fan video entitled Take It Easy, Torgo Style which I duly posted here.

The fellow in the video is Rupert Talbot Munch, who runs the site torgolives.com and who is working on an honest-to-God sequel to Manos, featuring as much of the original cast, and their families, as he could find.

The other night I poked around his (turn-of-the-century throwback red-on-black Flash) site and, after a series of dead-end "Coming Soon" links that directed me back to the main page with its autoplay music, eventually ran across a link to a Fangoria interview with Munch.

Now, Munch seems like a neat dude. Clearly he's an über fan; he's got a good costume, a sense of humor, and has shown legitimate dedication in getting the band back together and getting this sequel made. Plus a documentary. Plus...well, this is where everything goes wrong.

And if that wasn't enough, Munch and co. have been busy spiffing up MANOS: THE HANDS OF FATE for high definition. "We, the people who represent the original cast and all things MANOS, have been working on the HD restoration for over 14 months," he says. "Recently, some kid who found a print of MANOS at an auction is trying to cash in with the same idea. Myself and Joe Warren do not acknowledge, recognize, or approve of what this kid is doing. In the end, we just ask that the fans hold onto their money and wait for our version. It will include tons of never-before-seen footage, plenty of extras, cast and crew commentary, interviews...plus surprises. And the proceeds will go back to Joe Warren and the MANOS faithful."

Now -- possibly due to how legitimately difficult it is to find the link to this article from the torgolives site -- there are only 5 comments at the bottom of the article. And four of them are eight months old and the fifth is from me. But I do think it's telling that four of them (including mine) are negative responses to that one little paragraph out of the entire article.

Let's back up a bit. The "kid" he's talking about is Ben Solovey, and the restoration project he's talking about is Manos in HD.

Solovey, as Munch notes, got his hands on a work print of Manos and decided to restore it; he wrote about the experience.

Here is a truly independent horror film from the 60′s, a contemporary of 1962′s Carnival of Souls and 1968′s Night of the Living Dead. The main difference being, of course, that those movies came from career filmmakers Herk Harvey and George Romero, who had already made commercials and industrials and knew how a set should be run. Hal Warren, director of Manos, did not have that sort of experience and the deck was truly stacked against him.

[...]

If you yourself have ever been involved in an independent movie, Manos becomes somewhat poignant as you see evidence of the problems that have arisen and have been worked around or willfully ignored. [...] It's all very relatable stuff. And because this is a movie where the artifices of filmmaking are constantly crumbling and being rebuilt, a little shakier every time, it holds a certain fascination to film buffs that places it above worse and more boring films (which there are no shortage of, then or now). Simply put, it's memorable.

[...]

So rather than have Manos fade away as a footnote with only a cruddy video transfer to remember it by, I've resolved to make it a personal project to restore it.

[...]

In addition to making a digital restoration of Manos of sufficient quality to produce a new print or digital projection files, I will be creating a limited run Blu-ray and making the restoration available for repertory screenings. While it remains to be seen if this film is for anything but a niche market, I also feel that if I don't restore it no one else will.

Film restoration is something that too often falls by the wayside in troubled economic times. Though it's doubtful I will change anyone's minds about Manos, I would like to send a message that every film, regardless of the place it holds in movie history, deserves a fair shot to be maintained and presented in the best way possible.

Now does that sound to you like "some kid trying to cash in"?

Because, okay, first of all? If a guy were looking for a get-rich-quick scheme, and he told you he had a plan to release Manos: The Hands of Fate on Blu-Ray...well, look, that's a pretty fucking terrible get-rich-quick scheme, is what I'm getting at.

Yes, Solovey wound up exceeding his Kickstarter goal by some $38,000 -- but he had no idea that was going to happen when he bought the print. Even with the extra money, it's not clear if he's turned a profit or simply put that money back into making the project better than he had originally planned.

Point is, this sounds a lot more like a labor of love, born of a genuine desire to preserve a historical curiosity. And Munch kinda just pissed all over it.

And here's the thing: Manos has a pretty fucking small fanbase. If "fanbase" is even the right word. There is a whole hell of a lot of overlap between Munch's audience and Solovey's audience.

And I can relate to Munch realizing this and being upset -- to him, Solovey is unwelcome, unexpected competition, and threatens not just his bottom line but the exposure of a project that, to him, Joe Warren, and the rest, is also a labor of love.

But dude, one fan dumping on another fan? Very bad form. And incredibly off-putting to the fellow fans who you are trying to convince to buy your product instead of his.

So Mr. Munch, if you're reading this? (Not implausible, really; I'm often surprised by what kind of searches pull this site up.) Here's how I think you should handle it:

"We are aware of Ben Solovey's unofficial restoration project; he is not affiliated with myself, Joe Warren, or the Search for Valley Lodge team. We wish him the best but believe our restored version will be the superior product, as we have access to a higher-quality print, a larger restoration team, and many of the original cast and crew members."

Something like that. Make your case, explain why you think people should buy your version instead of his -- by all means! Nothing wrong with some friendly competition! But don't insult the guy. Don't mock his skill or his motives.

And I also get that Joe Warren may have a sense of ownership over his father's film. That's totally understandable! But the thing is, he doesn't own Manos. Manos belongs to all of us -- and that's not in some fanboy "Star Wars belongs to all of us" sense; Manos is public domain and legally belongs to all of us.

Somebody besides you and Warren wants to restore Manos? He has every right to. Somebody else wants to adapt it as a Zelda 2-style iPhone game? Totally acceptable too. And -- not to put too fine a point on it -- some guys from Minnesota want to put it on a show where a couple of puppets make sarcastic remarks about it? Yeah, that's legal too.

And so while, again, it's totally understandable if Warren has a sense of ownership toward the property, and is miffed when somebody else exploits its public-domain status without his family's blessing -- well, if somebody hadn't exploited its public-domain status without his family's blessing, we wouldn't be having this conversation. If Manos hadn't entered into the public domain and wound up in a box of movies that eventually made their way to Frank Conniff and MST3K, there would be no Manos sequel, no Manos restoration, no Manos documentary -- because nobody would know what the fuck Manos was.

All of this may seem a little harsh, but really, if you ever read this, Mr. Munch, I'd like to repeat that you seem like a cool guy, I love what you're doing, and I look forward to seeing your finished work. I just think you've made a pretty unfortunate misstep on this -- unfortunate enough that it overshadows all the cool stuff you talk about in that interview -- and in the future I'd advise a couple of things:

  1. Remember that Ben Solovey is a fan just like you and me, and just like you and unlike me he has put a whole lot of blood, sweat, and tears into making something lasting out of this silly-ass movie.
  2. And dude, seriously, do something about that website.

Real Alternatives

2012-08-08, 4:52 pm
Categories: E-Mail, Politics, Stream of Consciousness, Tech

To: NPR's All Things Considered

On this afternoon's All Things Considered, you referred to the computer-illiterate, failed copyright bills SOPA and PIPA, and spoke with economist Steve Siwek. You noted, "Although both bills seem to be on permanent hold, Siwek says their critics have offered no real alternatives." You did not challenge this assertion.

A Google search for the phrase "alternative to sopa" produces 41,100 results. A Google search for the phrase "real alternative to sopa" produces 4,930.

These proposed alternatives range from simple -- focus on the biggest infringers -- to the more radical -- completely overhaul copyright law to provide shorter copyright terms and broader exceptions for fair use.

Indeed, there is a proposed alternative to SOPA and PIPA working its way through Congress right now; it's called the OPEN Act.

To put it bluntly, it is impossible that Siwek is unaware of these proposals. When he says no one has offered any alternative to SOPA and PIPA, he is lying.

Friedrich Appeal

2012-08-02, 6:55 am
Categories: Comics, Movies

Since everybody loves my Creators' Rights posts: per 20th Century Danny Boy, Gary Friedrich is making good on his plan to appeal the ruling on the Ghost Rider rights.

Quick recap: Friedrich sued Marvel for the rights to Ghost Rider, claiming he had never signed over his ownership stake in the character. (He co-created Ghost Rider with Roy Thomas and Mike Ploog, though he claims he created the character in 1968 and that Marvel failed to register the copyright for the published story in 1972.)

Marvel countersued, on the grounds that Friedrich was selling signed Ghost Rider prints -- and Friedrich is a writer, not an artist, keep in mind, so the art wasn't his work.

The suit ended in a Marvel victory, with Marvel agreeing to drop the countersuit in exchange for $17,000 as payment for the prints and Friedrich agreeing not to refer to himself as "the creator of Ghost Rider" for financial gain.

Friedrich is penniless and in poor health and, as you might expect, regardless of its legal merits this rankled a whole lot of fans and pros.

Speaking of which, you can buy a Generic, Non-Infringing Flaming Skull T-Shirt for $12 at World of Strange, with the proceeds going to Friedrich; the art is by Steve Bissette, Rick Veitch, Bob Burden, Billy Tackett, Nathan Thomas Milliner, Sam Flegal, and Denis St. John.

So now Friedrich is appealing the ruling.

The most interesting piece of new evidence he's introduced: a creator-owned Lee/Kirby Silver Surfer book from 1978. Why this is important, quoting Daniel Best:

At one point during Friedrich's deposition he was asked the following question: "Q. Are you aware of whether any other freelance writer of Marvel comic books owned the rights in any of the characters or stories created by that writer," in relation to the period of 1971 to 1978. The answer was no, and Marvel's lawyers accepted that, for the understanding in this case is that everything produced by Marvel in the 1970s at least, belonged to Marvel and was duly copyrighted. This isn't the case. In 1978 Marvel published The Silver Surfer, a graphic novel which contained a copyright legend naming not Marvel, but the books authors - Stan Lee and Jack Kirby. Importantly it falls on the cusp of the work-for-hire contracts, but a savvy lawyer might well be able to argue that Marvel did indeed produce work that was owned not by the company, but by the authors from the time period of 1971 to [1978]. Unfortunately this news might have come a bit late to be of any use to Gary Friedrich, but the battle isn't over yet.

The book seems like a pretty serious outlier; it was a case of Kirby, already unhappy with his work-for-hire situation with Marvel, pushing for a different arrangement (and indeed a different publisher, as the book was published by Simon and Schuster). I find it hard to believe that a court will rule that Friedrich's work on Ghost Rider was not necessarily for-hire just because Kirby and Lee put out a creator-owned book with a Marvel character six years later.

The previous ruling did hinge on Friedrich signing back-of-the-check contracts, and that sticks in my craw. Back-of-the-check contracts are coercive (you already did the work expecting to be paid for it, and the company only shows you an agreement to sign after the work is already done?) and I would very much like it if an appelate court determined that they are not legally binding.

But I still don't think that's going to help Friedrich. The judge in Marvel v Kirby determined that Kirby's work was for-hire based on the instance-and-expense test and stated outright that it was irrelevant whether he signed a back-of-the-check contract or not. Similarly, precedent doesn't necessarily favor Friedrich's "I created the character 4 years earlier" argument; even if he can prove it, the judge in Wolfman v Marvel ruled that the Blade character who appeared in Tomb of Dracula was so substantially different from Wolfman's original pitch as to constitute a distinct, work-for-hire creation.

In short: I don't think Marvel's in the right here ethically, but I don't think Friedrich's prospects look good legally. I hope I'm wrong and I hope he gets something out of this, but I'm concerned that he's doubling down on a losing hand.

Ideally, this would be settled out of court. Ideally, Marvel would open itself to renegotiation with its pre-1980 creators and allow them to get the same equity deals that current creators do (something that DC has done -- DC's not perfect but it's better than Marvel on this subject at this time). Ideally, Friedrich would get some small share of Ghost Rider comics and movies, and be satisfied and not feel the need to sue to get that piece.

But unfortunately I don't see any of that happening. I'm worried that Friedrich is going to be pounded into the concrete once again -- but if he does win, it'll be a great thing not just for him but for creators everywhere.

Shot Across the Bow

2012-07-05, 6:43 pm
Categories: Comics, Movies, Stream of Consciousness

Warning: This post contains spoilers for the ending of the Avengers movie. (Though if you've made it two months without hearing about it, you probably don't care.)

So I've made it just past a month of posting every day, and closer to two months with Regular Updates. The post that kicked it off was about Avengers and creators' rights, and those types of posts seem to be my most popular ones. I've gotten E-Mails from a couple of unexpected readers at this point thanking me for my comments, and given that I get a couple of dozen visitors on a good day and most of those are people looking for Final Fantasy 7 mods, I'm a little surprised and flattered by that.

So here's another post about Avengers and creators' rights. Today we're going to talk about Jim Starlin and his creation, Thanos.

Thanos shows up in the end of the Avengers movie. He's only onscreen for a short tease, but it's a big moment, the reveal of the bad guy who set all this in motion and is now positioned as the major antagonist for the sequel.

More than that, actually: Marvel's working on a Guardians of the Galaxy picture, widely speculated to feature Thanos and give him some background before Avengers 2.

The LA Times' Hero Complex interviewed Starlin after Avengers came out, and it included this exchange:

HC: I spoke to Jerry Robinson once and I congratulated him on the billion-dollar success of "The Dark Knight" and he winced like I had poked him in the eye. Of course I instantly realized that watching Alfred, the Joker, Two-Face, etc. fill the coffers of Warner Bros. was like watching a son raised in another house with another family's name. I don't know the arrangements on this film, but has this project and its success been a mixed experience in any way?

JS: Very mixed. It's nice to see my work recognized as being worth something beyond the printed page, and it was very cool seeing Thanos up on the big screen. Joss Whedon and his crew did an excellent job on "The Avengers" movie and I look forward to the sequel, for obvious reasons. But this is the second film that had something I created for Marvel in it -- the Infinity Gauntlet in "Thor" being the other -- and both films I had to pay for my own ticket to see them. Financial compensation to the creators of these characters doesn't appear to be part of the equation. Hopefully Thanos' walk-on in "The Avengers" will give a boost to a number of my own properties that are in various stages of development for film: "Dreadstar," "Breed" and the novel "Thinning the Predators."

Of course, Thanos's appearance in Avengers has ignited some interest in the character; Marvel's got some new series with him coming out, as well as reprinting some old ones. In a recent post at Bleeding Cool, Rich Johnson saw a press release for a "new" Thanos miniseries and misunderstood Marvel's present-tense copy to imply that it was new work from Starlin rather than a reprint.

But it isn't. Starlin quit freelancing for Marvel back around the beginning of '04, citing the standard "irreconcilable differences".

And while I expect Starlin would get royalties if Marvel reprinted work he'd done in the past 25 years or so, these reprints are books he did back in '77, so he's most likely getting nothing for them.

So that's the story so far. Marvel is preparing a big marketing push involving Thanos, which may culminate in a major role in two Hollywood blockbusters. And it's not sharing anything with his creator.

So when Starlin posted a picture of Thanos on his Facebook account the other day, with these words:

This is probably one of the first concept drawings of Thanos I ever did, long before I started working at Marvel. Jack Kirby's Metron is clearly the more dominant influence in this character's look. Not Darkseid. Both D and T started off much smaller than they eventually became. This was one of the drawings I had in my portfolio when I was hired by Marvel. It was later inked by Rich Buckler.

that may sound like just a "Hey, here's a neat historical artifact I found, check it out" post. But Heidi MacDonald reads it as something much bigger, and I'm inclined to agree.

That seemingly-offhand reference to it being in his portfolio before he was hired by Marvel? What that actually says is, "Thanos was not created as work-for-hire, and I have proof."

I've talked, at some length, about the Kirby heirs' legal battle for the rights to Kirby's characters. Marvel v Kirby to date has hinged on Stan Lee's testimony and a lack of hard evidence contradicting it. Stan says everything Jack did at Marvel was work-for-hire and none of his characters were created independently of Marvel's requests, and Jack's heirs have been unable to produce art proving that he created characters on his own time before pitching them to Marvel. (I have opined, more than once, that such evidence was probably in the box or boxes of Kirby art stolen from Marvel in the 1980's before it could be returned to him; there is of course no proof of this but things certainly worked out well for Marvel.) There's no such problem here; Starlin has solid proof that he created Thanos before he went to work for Marvel, and therefore Thanos was not created for-hire.

Now, there are some other questions that arise.

The biggest is, did Starlin transfer the rights to Thanos to Marvel?

Marvel didn't keep good records at that point. Contracts were seldom formal affairs; more commonly, Marvel printed a legend on the back of a freelancer's paycheck saying that in exchange for the pay he transferred all rights to them.

Back-of-the-check contracts are dicey affairs. There's an argument to be made that they're coercive; after all, waiting until after an artist has already done his work expecting a payout for it -- a check he may very well need for rent and food -- and then hitting him with a "By the way, give up ownership or we won't pay you" doesn't exactly create an even playing field for negotiations.

Be that as it may, Marvel's back-of-the-check contracts were upheld recently in Friedrich v Marvel. I've heard that they were also upheld in DeCarlo v Archie but I can't find a primary source to verify that; the summary judgement I found appears to be based on later, more formal contracts that DeCarlo signed, not an original back-of-the-check contract.

But that still means that, if Starlin were to claim ownership of Thanos in court (and this is pure speculation, mind; he's made no indication that he intends to do so), Marvel would want to produce a copy of any contract he signed with them, back-of-the-check or otherwise.

(I've also heard that Starlin crossed out the legend on the back of his checks before signing them, though I haven't seen any primary-source verification on that claim. That would itself make for an interesting legal case -- even assuming back-of-the-check contracts are legally binding in the first place, what if you don't sign, or cross the contract out, and the check still clears? That might not be a wise thing to risk an entire suit on, but it would be fascinating.)

There's another wrinkle, as noted by Nat Gertler in The Beat's comments section:

We’re more likely to run into the Blade situation, which ended up resting (in my not-a-lawyer understanding of the case) not on the question of whether it was work for hire, but on the question of whether the similarities between the original Blade and the movie Blade were sufficient to be infringing.

That's an important point too. Marv Wolfman sued Marvel over the rights to Blade under similar circumstances, and a judge ruled that Marvel's Blade was so substantially different from Wolfman's version as to be legally distinct. And given that so far we've only had a brief tease of Thanos, Marvel's still got two films to make the "substantially different" case.

And there's another point to consider: even if Starlin did transfer the Thanos rights to Marvel, he's permitted to terminate the transfer after 56 years. Thanos first appeared in '73, so Starlin (or, if he doesn't live that long, his statutory heirs) can reclaim him in 2029. And Kurt Busiek (also in the comments section of that Beat post) suggests that this might be a negotiating tactic -- Starlin could agree not to seek reversion in exchange for a percent of royalties for Thanos's use, for example.

Indeed, that comments section is well worth reading, largely because of Nat and Kurt's input. There are a couple of the usual anti-creator types in there (and I'm pretty sure at least one of them is a troll, seeing as he wades right in and immediately says the most provocative and factually wrong thing he possibly can) but if you step over them and get to the people who actually know what they're talking about, you might learn something.

Speaking of anti-creator fanboys? Well, in the Kirby case the constant refrain has been "Kirby's heirs didn't do anything so they don't deserve anything." This, of course, is a case where a creator is still alive. Will that change anything? Will the people pooh-poohing the Kirby heirs' suit rally behind Starlin?

Well, to be fair, some of them might. But in general? Well, here's what one guy said to me a couple of months ago when I brought up Starlin's complaint that Marvel hadn't so much as bought him a movie ticket:

I think Starlin was about as uninvolved in the making of the movie as a person could possibly be. I'd wager I had as much to do with making The Avengers as Jim Starlin did. Granted, I didn't have a character show up for all of a 2 second reveal, but beyond that, our contributions were the same. Where's my free ticket?

(By the way, I got a free ticket to see Avengers. So that means I got more for the movie than Jim Starlin did.)

He went on to make a slippery-slope argument that compensating creators is equivalent to just putting the characters right out into the public domain and will end DC and Marvel, an absurd position I've dismantled previously. (tl;dr no dude a few million dollars for creators is not going to bankrupt the company that just made a billion dollars on its movie.)

Guys like that? It's not about the law and it's not about the ethics. It's The Spice Must Flow. It doesn't matter how Marvel treats creators, as long as it keeps putting out product to consume.

There's always a fresh rationalization on the horizon. "He signed a contract." No he didn't. "Well, he's dead now." Okay, but this guy's alive. "The character we know is the work of dozens of creators over a period of decades, so no one person can really claim credit to him." Even if that were true in some cases, Thanos is unmistakably Jim Starlin's character. "Well, it was only a tiny cameo, so he's not entitled to anything." And once Thanos has more than a cameo, it's going to be "Well okay, that's terrible, but the industry's not like that anymore; it's all better now." (A point Scott Kurtz raised recently, right about two weeks before Static co-creator Robert Washington III died of multiple heart attacks at the age of 47 and his family had to turn to charity to get him buried.)

There is and will continue to be a vocal minority of comic book fans who will side with the publishers no matter what. (Oh God how I hope it's a minority -- but I think it is. You can find a vocal population of people on the Internet who will angrily, zealously defend absolutely any dumbass position you can possibly think of.) And it's particularly galling when that includes guys like Kurtz, an actual cartoonist who makes an actual living from actual creator-owned comics. But The Spice Must Flow -- they like Marvel, they like the comics and the movies and the characters and the shared universe, and they see attempts at compensation by the people who actually created those characters as a threat. A threat to the free flow of those comics and movies or, perhaps even worse, the threat of making them feel guilty for enjoying them.

I think that's why justifications like "Well the heirs didn't do it so they don't deserve anything" and "Well okay, that's how it was in the Bad Old Days but it just doesn't happen anymore" are so prevalent: because they show a sympathy toward creators without actually indicting the current management at Disney/Marvel for any kind of wrongdoing. It means they don't have to feel bad about buying the latest issue of Daredevil (which, don't get me wrong, I hear is a really excellent comic -- and I'm certainly not asking you to feel bad if you buy it!).

But strip those away and there's always another excuse, always another justification.

And hell, maybe I'm just as knee-jerk in coming down on the side of creators over corporations. (Ken Penders might disagree -- I'm not allowed to post on his forums and I suspect it's because I once described his claims against Archie as "some legitimately crazy shit" -- but truth be told I hope he's right and I hope he wins. And yeah that comment was pretty out-of-line and I should probably walk it back to "I am skeptical but wish him luck.") But you know, I don't feel too bad about knee-jerk support of human beings. I don't mind being the guy who says "You know, if a movie makes a billion dollars, the guys who created the characters it's based on should get a higher share of that than zero percent."

Course, appeals to emotion aren't going to help Starlin get any compensation.

The good news is, he seems to have a better case and more leverage than most of the other comic creators who've fought Goliath.

Or maybe he just wanted to show people a drawing of Thanos. I dunno, I'm not a mind reader.