Tag: Corporate Greed

Zappa's Senate Testimony

Frank Zappa speaks to the Senate on the subject of labeling records for mature content, September 19, 1985. He doesn't really start in until about 3:30.

Transcript (via downlode.org; I've lifted HTML tags for formatting, not just the text, and hope I haven't overstepped):

Mr. Zappa. My name is Frank Zappa. This is my attorney Larry Stein from Los Angeles. Can you hear me?

The Chairman. If you could speak very directly and clearly into the microphone, I would appreciate it.

Mr. Zappa. My name is Frank Zappa. This is my attorney Larry Stein.

The statement that I prepared, that I sent you 100 copies of, is five pages long, so I have shortened it down and am going to read a condensed version of it.

Certain things have happened. I have been listening to the event in the other room and have heard conflicting reports as to whether or not people in this committee want legislation. I understand that Mr. Hollings does from his comments. Is that correct?

The CHAIRMAN. I think you had better concentrate on your testimony, rather than asking questions.

Mr. ZAPPA. The reason I need to ask it, because I have to change something in my testimony if there is not a clearcut version of whether or not legislation is what is being discussed here.

The Chairman. Do the best you can, because I do not think anybody here can characterize Senator Hollings” position.

Mr. ZAPPA. I will carry on with the issue, then.

Senator Exon. Mr. Chairman, I might help him out just a little bit. I might make a statement. This is one Senator that might be interested in legislation and/or regulation to some extent, recognizing the problems with the right of free expression.

I have previously expressed views that I do not believe I should be telling other people what they have to listen to. I really believe that the suggestion made by the original panel was some kind of an arrangement for voluntarily policing this in the music industry as the correct way to go.

If it will help you out in your testimony, I might join Senator Hollings or others in some kind of legislation and/or regulation, unless the free enterprise system, both the producers and you as the performers, see fit to clean up your act.

Mr. ZAPPA. OK, thank you.

The First thing I would like to do, because I know there is some foreign press involved here and they might not understand what the issue is about, one of the things the issue is about is the First Amendment to the Constitution, and it is short and I would like to read it so they will understand. It says:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

That is for reference.

These are my personal observations and opinions. They are addressed to the PMRC [Parents’ Music Resource Centre] as well as this committee. I speak on behalf of no group or professional organization.

The PMRC proposal is an ill-conceived piece of nonsense which fails to deliver any real benefits to children, infringes the civil liberties of people who are not children, and promises to keep the courts busy for years, dealing with the interpretational and enforcemental problems inherent in the proposal’s design.

It is my understanding that, in law, First Amendment Issues are decided with a preference for the least restrictive alternative. In this context, the PMRC’s demands are the equivalent of treating dandruff by decapitation.

No one has forced Mrs. Baker or Mrs. Gore to bring Prince or Sheena Easton into their homes. Thanks to the Constitution, they are free to buy other forms of music for their children. Apparently, they insist on purchasing the works of contemporary recording artists in order to support a personal illusion of aerobic sophistication. Ladies, please be advised: The $8.98 purchase price does not entitle you to a kiss on the foot from the composer or performer in exchange for a spin on the family Victrola. Taken as a whole, the complete list of PMRC demands reads like an instruction manual for some sinister kind of “toilet training program” to house-break all composers and performers because of the lyrics of a few. Ladies, how dare you?

The ladies’ shame must be shared by the bosses at the major labels who, through the RIAA, chose to bargain away the rights of composers, performers, and retailers in order to pass H.R. 2911, The Blank Tape Tax: A private tax levied by an industry on consumers for the benefit of a select group within that industry.

Is this a consumer issue? You bet it is. PMRC spokesperson, Kandy Stroud, announced to millions of fascinated viewers on last Friday’s ABC Nightline debate that Senator Gore, a man she described as “A friend of the music industry,” is co-sponsor of something she referred to as “anti-piracy legislation”. Is this the same tax bill with a nicer name?

The major record labels need to have H.R. 2911 whiz through a few committees before anybody smells a rat. One of them is chaired by Senator Thurmond. Is it a coincidence that Mrs. Thurmond is affiliated with the PMRC?

I cannot say she’s a member, because the PMRC has no members. Their secretary told me on the phone last Friday that the PMRC has no members, only founders. I asked how many other District of Columbia wives are nonmembers of an organization that raises money by mail, has a tax-exempt status, and seems intent on running the Constitution of the United States through the family paper-shredder. I asked her if it was a cult. Finally, she said she couldn’t give me an answer and that she had to call their lawyer.

While the wife of the Secretary of the Treasury recites “Gonna drive my love inside you” and Senator Gore’s wife talks about “Bondage!” and “oral sex at gunpoint” on the CBS Evening News, people in high places work on a tax bill that is so ridiculous, the only way to sneak it through is to keep the public’s mind on something else: “Porn rock”.

Is the basic issue morality? Is it mental health? Is it an issue at all? The PMRC has created a lot of confusion with improper comparisons between song lyrics, videos, record packaging, radio broadcasting, and live performances. These are all different mediums, and the people who work in them have the right to conduct their business without trade-restraining legislation, whipped up like an instant pudding by The Wives of Big Brother.

Is it proper that the husband of a PMRC nonmember/founder/person sits on any committee considering business pertaining to the Blank Tape Tax or his wife’s lobbying organization? Can any committee thus constituted “find facts” in a fair and unbiased manner? This committee has three that we know about: Senator Danforth, Senator Packwood, and Senator Gore. For some reason, they seem to feel there is no conflict of interest involved.

The PMRC promotes their program as a harmless type of consumer information service providing “guidelines” which will assist baffled parents in the determination of the “suitability” of records listened to by “very young children”. The methods they propose have several unfortunately [sic] side effects, not the least of which is the reduction of all American Music, recorded and live, to the intellectual level of a Saturday morning cartoon show.

Children in the vulnerable age bracket have a natural love for music. If, as a parent, you believe they should be exposed to something more uplifting than “Sugar Walls,” support Music Appreciation programs in schools. Why have you not considered your child’s need for consumer information? Music Appreciation costs very little compared to sports expenditures. Your children have a right to know that something besides pop music exists.

lt is unfortunate that the PMRC would rather dispense governmentally sanitized heavy metal music than something more uplifting. Is this an indication of PMRC’s personal taste, or just another manifestation of the low priority this administration has placed on education for the arts in America?

The answer, of course, is neither. You cannot distract people from thinking about an unfair tax by talking about Music Appreciation. For that you need sex, and lots of it.

The establishment of a rating system, voluntary or otherwise, opens the door to an endless parade of Moral Quality Control Programs based on “Things Certain Christians Don’t Like”. What if the next bunch of Washington Wives demands a large yellow “J” on all material written or performed by Jews, in order to save helpless children from exposure to concealed Zionist doctrine?

Record ratings are frequently compared to film ratings. Apart from the quantitative difference, there is another that is more important: People who act in films are hired to pretend. No matter how the film is rated, it won’t hurt them personally.

Since many musicians write and perform their own material and stand by it as their art (whether you like it or not), an imposed rating will stigmatize them as individuals. How long before composers and performers are told to wear a festive little PMRC arm band with their scarlet letter on it?

Bad facts make bad law, and people who write bad laws are, in my opinion, more dangerous than songwriters who celebrate sexuality. Freedom of Speech, Freedom of Religious Thought, and the Right to Due Process for composers, performers and retailers are imperiled if the PMRC and the major labels consummate this nasty bargain.

Are we expected to give up article 1 so the big guys can collect an extra dollar on every blank tape and 10 to 25% on tape recorders? What is going on here? Do we get to vote on this tax? Do we get to vote on this tax? I think that this whole matter has gotten completely blown out of proportion, and I agree with Senator Exon that there is a very dubious reason for having this event. I also agree with Senator Exon that you should not be wasting time on stuff like this, because from the beginning I have sensed that it is somebody’s hobby project.

Now, I have done a number of interviews on television. People keep saying, can you not take a few steps in their direction, can you not sympathize, can you not empathize? I do more than that at this point. I have got an idea for a way to stop all this stuff and a way to give parents what they really want, which is information, accurate information as to what is inside the album, without providing a stigma for the musicians who have played on the album or the people who sing it or the people who wrote it. And I think that if you listen carefully to this idea that it might just get by all of the constitutional problems and everything else.

As far as I am concerned, I have no objection to having all of the lyrics placed on the album routinely, all the time. But there is a little problem. Record companies do not own the right automatically to take these lyrics, because they are owned by a publishing company.

So, just as all the rest of the PMRC proposals would cost money, this would cost money too, because the record companies would need — they should not be forced to bear the cost, the extra expenditure to the publisher, to print those lyrics.

If you consider that the public needs to be warned about the contents of the records, what better way than to let them see exactly what the songs say? That way you do not have to put any kind of subjective rating on the record. You do not have to call it R, X, D/A, anything. You can read it for yourself.

But in order for it to work properly, the lyrics should be on a uniform kind of a sheet. Maybe even the Government could print those sheets. Maybe it should even be paid for by the Government, if the Government is interested in making sure that people have consumer information in this regard.

And you also have to realize that if a person buys the record and takes it out of the store, once it is out of the store you can’t return it if you read the lyrics at home and decide that little Johnny is not supposed to have it.

I think that that should at least be considered, and the idea of imposing these ratings on live concerts, on the albums, asking record companies to reevaluate or drop or violate contracts that they already have with artists should be thrown out.

That is all I have to say.

The Chairman. Thank you very much, Mr. Zappa. You understand that the previous witnesses were not asking for legislation. And I do not know, I cannot speak for Senator Hollings, but I think the prevailing view here is that nobody is asking for legislation.

The question is just focusing on what a lot of people perceive to be a problem, and you have indicated that you at least understand that there is another point of view. But there are people that think that parents should have some knowledge of what goes into their home.

Mr. ZAPPA. All along my objection has been with the tactics used by these people in order to achieve the goal. I just think the tactics have been really bad, and the whole premise of their proposal -- they were badly advised in terms of record business law, they were badly advised in terms of practicality. or they would have known that certain things do not work mechanically with what they suggest.

The CHAIRMAN. Senator Gore.

Senator GORE. Thank you very much, Mr. Chairman.

I found your statement very interesting and, although I disagree with some of the statements that you make and have made on other occasions, I have been a fan of your music, believe it or not. I respect you as a true original and a tremendously talented musician.

Your suggestion of printing the lyrics on the album is a very interesting one. The PMRC at one point said they would propose either a rating or warning, or printing all the lyrics on the album. The record companies came back and said they did not want to do that.

I think a lot of people agree with your suggestion that one easy way to solve this problem for parents would be to put the actual words there, so that parents could see them. In fact, the National Association of Broadcasters made exactly the same request of the record companies.

I think your suggestion is an intriguing one and might really be a solution for the problem.

Mr. ZAPPA. You have to understand that it does cost money, because you cannot expect publishers to automatically give up that right, which is a right for them. Somebody is going to have to reimburse the publishers, the record industry.

Without trying to mess up the album jacket art, it should be a sheet of paper that is slipped inside the shrink-wrap, so that when you take it out you can still have a complete album package. So there is going to be some extra cost for printing it.

But as long as people realize that for this kind of consumer safety you are going to spend some money and as long as you can find a way to pay for it, I think that would be the best way to let people know.

Senator GORE. I do not disagree with that at all. And the separate sheet would also solve the problem with cassettes as well, because you do not have the space for words on the cassette packs.

Mr. ZAPPA. There would have to be a little accordion-fold.

Senator GORE. I have listened to you a number of times on this issue, and I guess the statement that I want to get from you is whether or not you feel this concern is legitimate.

You feel very strongly about your position, and I understand that. You are very articulate and forceful.

But occasionally you give the impression that you think parents are just silly to be concerned at all.

Mr. ZAPPA. No; that is not an accurate impression.

Senator GORE. Well, please clarify it, then.

Mr. ZAPPA. First of all, I think it is the parents’ concern; it is not the Government’s concern.

Senator GORE. The PMRC agrees with you on that.

Mr. ZAPPA. Well. that does not come across in the way they have been speaking. The whole drift that I have gotten, based upon the media blitz that has attended the PMRC and its rise to infamy, is that they have a special plan, and it has smelled like legislation up until now.

There are too many things that look like hidden agendas involved with this. And I am a parent. I have got four children. Two of them are here. I want them to grow up in a country where they can think what they want to think, be what they want to be, and not what somebody’s wife or somebody in Government makes them be.

I do not want to have that and I do not think you do either.

Senator GORE. OK. But now you are back on the issue of Government involvement. Let me say briefly on this point that the PMRC says repeatedly no legislation, no regulation, no Governnient action. It certainly sounded clear to me.

And as far as a hidden agenda, I do not see one, hear one, or know of one.

Mr. ZAPPA. OK, let me tell you why I have drawn these conclusions. First of all, they may say, we are not interested in legislation. But there are others who are, and because of their project bad things have happened in this country in the industry.

I believe there is actually some liability. Look at this. You have a situation where, even if you go for the lyric printed thing in the record, because of the tendency among Americans to be copycats -- one guy commits a murder, you get a copycat murder-now you’ve got copycat censors.

You get a very bad situation in San Antonio, TX, right now where they are trying to pass PMRC-type individual ratings and attach them to live concerts, with the mayor down there trying to make a national reputation by putting San Antonio on the map as the first city in the United States to have these regulations, against the suggestion of the city attorney, who says, I do not think this is constitutional.

But you know, there is this fervor to get in and do even more and even more.

And the other thing, the PMRC starts off talking about lyrics, but when they take it over into other realms they start talking about the videos. In fact, you misspoke yourself at the beginning in your introduction when you were talking about the music does this, the music does that. There is a distinct difference between those notes and chords and the baseline [sic — error in Congressional report] and the rhythm that support the words and the lyrics.

I do not know whether you really are talking about controlling the type of music.

The CHAIRMAN. The lyrics.

Mr. ZAPPA. So specifically we are talking about lyrics. It began with lyrics. But even looking at the PMRC fundraising letter, in the last paragraph at the bottom of the page it starts looking like it is branching into other areas, when it says: “We realize that this material has pervaded other aspects of society.” And it is like what, you are going to fix it all for me?

Senator GORE. No. I think the PMRC’s acknowledging some of the statements by some of their critics who say: Well, why single out the music industry.

Do I understand that you do believe that there is a legitimate concern here?

Mr. ZAPPA. But the legitimate concern is a matter of taste for the individual parent and how much sexual information that parent wants to give their child, at what age, at what time, in what quantity, OK. And I think that, because there is a tendency in the United States to hide sex, which I think is an unhealthy thing to do. and many parents do not give their children good sexual education, in spite of the fact that little books for kids are available, and other parents demand that sexual education be taken out of school, it makes the child vulnerable, because if you do not have something rational to compare it to when you see or hear about something that is aberrated you do not perceive it as an aberration.

Senator GORE. OK, I have run out of time.

Thank vou, Mr. Chairman.

The CHAIRMAN. Senator Rockefeller.

Senator ROCKEFELLER. No questions, Mr. Chairnan.

The CHAIRMAN. Senator Gorton.

Senator GORTON. Mr. Zappa, I am astounded at the courtesy and soft-voiced nature of the comments of my friend, the Senator from Tennessee. I can only say that I found your statement to be boorish, incredibly and insensitively insulting to the people that were here previously; that you could manage to give the first amendment of the Constitution of the United States a bad name, if I felt that you had the slightest understanding of it, which I do not.

You do not have the slightest understanding of the difference between Government action and private action, and you have certainly destroyed any case you might otherwise have had with this Senator.

Thank you, Mr. Chairman.

Mr. ZAPPA. Is this private action?

The CHAIRMAN. Senator Exon.

Senator EXON. Mr. Chairman, thank you very much.

Mr. Zappa, let me say that I was surprised that Senator Gore knew and liked your music. I must confess that I have never heard any of your music, to my knowledge.

Mr. ZAPPA. I would be more than happy to recite my lyrics to you.

Senator EXON. Can we forgo that?

Senator GORE. You have probably never heard of the Mothers of Invention.

Senator EXON. I have heard of Glen Miller and Mitch Miller. Did you ever perform with them?

Mr. ZAPPA. As a matter of fact, I took music lessons in grade school from Mitch Miller’s brother.

Senator EXON. That is the first sign of hope we have had in this hearing.

Let us try and get down to a fundamental question here that I would like to ask you, Mr. Zappa. Do you believe that parents have the right and the obligation to mold the psychological development of their children?

Mr. ZAPPA. Yes, I think they have that right, and I also think they have that obligation.

Senator EXON. Do you see any extreme difficulty in carrying out those obligations for a parent by material falling into the hands of their children over which thely have little or no control?

Mr. ZAPPA. Well, one of the things that has been brought up before is talking about very young children getting access to the material that they have been showing here today. And what I have said to that in the past is a teenager may go into a record store unescorted with $8.98 in his pocket, but very young children do not.

If they go into a record store, the $8.98 is in mom or dad’s pocket, and they can always say, Johnny, buy a book. They can say, Johnny, buy instrumental music; there is some nice classical music for you here; why do you not listen to that.

The parent can ask or guide the child in another direction, away from Sheena Easton, Prince, or whoever else you have been complaining about. There is always that possibility.

Senator EXON. As I understand it from your testimony — and once again, I want to emphasize that I see nothing wrong whatsoever; in fact, I salute the ladies for bringing this to the attention of the public as best they see fit. I think you could tell from my testimony that I tend to agree with them.

I want to be very careful that we do not overstep our bounds and try and — and I emphasize once again — tell somebody else what they should see. I am primarily worried about children.

It seems to me from your statement that you have no obligation — or no objection whatsoever to printing lyrics, if that would be legally possible, or from a standpoint of having the room to do that, on records or tapes. Is that not what you said?

Mr. ZAPPA. I think it would be advisable for two reasons. One, it gives people one of the things that they have been asking for. It gives them that type of consumer protection because, if you can read the English language and you can see the lyrics on the back, you have no excuse for complaning if you take the record out of the store.

And also, I think that the record industry has been damaged and it has been given a very bad rap by this whole situation because it has been indicated, or people have attempted to indicate, that there is so much of this kind of material that people object to in the industry, that that is what the industry is.

It is not bad at all. Some of the albums that have been selected for abuse here are obscure. Some of them are already several years old. And I think that a lot of deep digging was done in order to come up with the song about anal vapors or whatever it was that they were talking about before.

Senator EXON. If I understand you, you would be in support of printing the lyrics, but you are adamantly opposed to any kind of a rating system?

Mr. ZAPPA. I am opposed to the rating system because, as I said, if you put a rating on the record it goes directly to the character of the person who made the record, whereas if you rate a film, a guy who is in the film has been hired as an actor. He is pretending. You rate the film, whatever it is, it does not hurt him.

But whether you like what is on the record or not, the guy who made it, that is his art and to stigmatize him is unfair.

Senator EXON. Well, likewise, if you are primarily concerned about the artists, is it not true that for many many years, we have had ratings of movies with indications as to the sexual content of movies and that has been, as near as I can tell, a voluntary action on the part of the actors in the movies and the producers of the movies and the distributors?

That seems to have worked reasonably well. What is wrong with that?

Mr. ZAPPA. Well, first of all, it replaced something that was far more restrictive, which was the Hayes Office. And as far as that being voluntary, there are people who wish they did not have to rate their films. They still object to rating their films, but the reason the ratings go on is because if they are not rated they will not get distributed or shown in theaters. So there is a little bit of pressure involved, but still there is no stigma.

Senator EXON. The Government does not require that. The point I am trying to make is — and while I think these hearings should not have been held if we are not considering legislation or regulations at this time, I emphasized earlier that they might follow.

I simply want to say to you that I suspect that, unless the industry “clears up their act” — and I use that in quotes again — there is likely to be legislation. And it seems to me that it would not be too far removed from reality or too offensive to anyone if you could follow the general guidelines, right, wrong, or indifferent, that are now in place with regard to the movie industry.

Mr. ZAPPA. Well, I would object to that. I think first of all, I believe it was you who asked the question of Mrs. Gore whether there was any other indication on the album as to the contents. And I would say that a buzzsaw blade between a guy’s legs on the album cover is a good indication that it is not for little Johnny.

Senator EXON. I do not believe I asked her that question, but the point you made is a good one, because if that should not go to little minds I think there should be at least some minimal activity or attempt on the part of the producers and distributors, and indeed possibly the performers, to see that that does not get to that little mind.

Mr. Chairman, thank you very much.

The CHAIRMAN. Senator Hollings.

Senator HOLLINGS. Mr. Zappa, I apologize for coming back in late, but I am just hearing the latter part of it. I hear that you say that perhaps we could print the words, and I think that is a good suggestion, but it is unfair to have albums rated.

Now, it is not considered unfair in the movie industry, and I want you to elaborate. I do not want to belabor you, but why is it unfair? I mean, it is accurate, is it not?

Mr. ZAPPA. Well, I do not know whether it is accurate, because sometimes they have trouble deciding how a film gets to be an X or an R or whatever. And you have two problems. One is the quantity of material, 325 films per year versus 25,000 4-minute songs per year, OK.

You also have a problem that an album is a compilation of different types of cuts. If one song on the album is sexually explicit and all the rest of it sounds like Pat Boone, what do you get on the album? How are you going to rate it?

There are little technical difficulties here, and and you have the problem of having somebody in the position of deciding what’s good, what’s bad, what’s talking about the devil, what is too violent, and the rest of that stuff.

But the point I made before is that when you rate the album you are rating the individual, because he takes personal responsibility for the music; and in the movies, the actors who are performing in the movie, it does not hurt them.

Senator HOLLINGS. Well, very good. I think the actual printing of the content itself is perhaps even better than the rating. Let everyone else decide.

Mr. ZAPPA. I think you should leave it up to the parents, because not all parents want to keep their children totally ignorant.

Senator HOLLINGS. Well, you and I would differ on what is ignorance and education, I can see that. But if it was there, they could see what they were buying and I think that is a step in the right direction.

As Senator Exon has pointed out, the primary movers in this particular regard are not looking for legislation or regulations, which is our function. To be perfectly candid with you, I would look for regulations or some kind of legislation, if it could be constitutionally accomplished, unless of course we have these initiatives from the industry itself.

I think your suggestion is a good one. If you print those words, that would go a long way toward satisfying everyone’s objections.

Mr. ZAPPA. All we have to do is find out how it is going to be paid for.

Senator HOLLINGS. Thank you, Mr. Chairman.

The CHAIRMAN. Senator Hawkins.

Senator HAWKINS. Mr. Zappa, you suy you have four children?

Mr. ZAPPA. Yes, four children.

Senator HAWKINS. Have you ever purchased toys for those children?

Mr. ZAPPA. No; my wife does.

Senator HAWKINS. Well, I might tell you that if you were to go in a toy store — which is very educational for fathers, by the way; it is not a maternal responsibility to buy toys for children — that you may look on the box and the box says, this is suitable for 5 to 7 years of age, or 8 to 15, or 15 and above, to give you some guidance for a toy for a child.

Do you object to that?

Mr. ZAPPA. In a way I do, because that means that somebody in an office someplace is making a decision about how smart my child is.

Senator HAWKINS. I would be interested to see what toys your kids ever had.

Mr. ZAPPA. Why would you be interested?

Senator HAWKINS. Just as a point of interest.

Mr. ZAPPA. Well, come on over to the house. I will show them to you.

Senator HAWKINS. I might do that.

Do you make a profit from sales of rock records?

Mr. ZAPPA. Yes.

Senator HAWKINS. So you do make a profit from the sales of rock records?

Mr. ZAPPA. Yes.

Senator HAWKINS. Thank you. I think that statement tells the story to this committee. Thank you.

The CHAIRMAN. Mr. Zappa, thank you very much for your testimony.

Mr. ZAPPA. Thank you.

I've read this a number of times throughout my life, and am always struck by just how intelligent it is. Zappa doesn't pull punches; he's biting and sarcastic -- but he also addresses the problem, the proposal, what's wrong with it, why music is distinct from film (over and over and over again, because the Senators clearly are not fucking listening to him), and a sensible alternative solution. He also lays out what he thinks the RIAA's ulterior motives might be, and makes an appeal for better music education in the bargain.

The Senators -- well, Gore comes off the best; a little on the obsequious side but reasonable and conciliatory.

Gorton (I loved him as the Riddler) comes off the worst; he contributes absolutely nothing to the debate and, as all reactionaries inevitably do, simply takes a moment to say something condescending to his obvious intellectual superior.

(In The Real Frank Zappa Book, Frank adds that Gorton is wrong and that in fact he got an A in high school civics.)

Exon -- who, as Zappa notes in the book, is not exactly the most liberal guy (and indeed would continue to push legislation for government censorship, sponsoring the Communications Decency Act of 1996) -- also comes across as fairly reasonable, agreeing with Frank's fundamental point that making the lyrics available to buyers is preferable to a ratings system.

So where'd we end up?

Well, there was no legislation, and no ratings system.

But lyrics were never visibly included with albums either.

As "compromise" there was a voluntary, vague "PARENTAL ADVISORY: EXPLICIT LYRICS" sticker.

Eventually, physical media gave way to digital, and, thanks in large part to fans who just don't give a fuck about copyright, it is totally trivial to look up the lyrics to virtually any song.

But the argument persists, of course.

I headlined my first Zappa post "As True Now", and unfortunately time flows like a river and history repeats. Video games are the boogeyman now, and the same damn-fool arguments keep rearing their ugly heads: "Well, a child can just walk into a store and buy a copy of Grand Theft Auto!"

Though that's calmed down since Brown v EMA, where the Supreme Court soundly rejected the notion of government regulation of violent video games.

And here's the funny thing: the closest recent analogue I can think of to Zappa's Senate testimony...is the words of the Justices themselves in oral arguments.

Sotomayor referenced Bugs Bunny and Spock. Kagan mentioned that her clerks had grown up playing Mortal Kombat and seemed to have turned out all right. Scalia -- God. I am not president of Scalia's fan club, so it pains me to say he fucking hit it out of the park. Hell, he even used Zappa's response to that hypothetical I just mentioned:

JUSTICE SCALIA: Not too many 13-year-olds walk in with a $50 bill, do they?

Even Breyer's dissent was well-reasoned. He's got a point: it is absurd that the government can restrict the sale of magazines that show nipples but not video games that show decapitation. He and I are absolutely agreed on that point -- we just disagree on what conclusion it implies.

Basically, we've got eight Justices who made intelligent, insightful arguments in Brown v EMA, and one who appears prominently in a Google search for "Long Dong Silver".

Well, the fight continues and it'll continue through whatever the hell medium is the next boogeyman. And while it's sad that Zappa is no longer with us to argue eloquently for common sense, I think history shows that common sense always wins out in the end.

Access

In the previous post, I mentioned two shows: Mad Men and the new Thundercats.

Mad Men is one of the most successful and critically acclaimed shows on TV, by a network that has at least two more of them and has become synonymous with drama on cable TV.

It's also availble on Netflix Streaming. Despite some missteps in the past year, I believe that Netflix represents the future of TV distribution. Eight bucks a month for access to a huge library of movies and TV shows new, old, and, in the case of the upcoming season of Arrested Development, original.

Thundercats is available online too. You can go to cartoonnetwork.com, click on Full Episodes, and get this charming little notification:

FULL EPISODES... AWESOME!

Watch the newest episodes of all your favorite shows. Get your parents to fill in their cable info and you're good to go.

That's right: you can watch Thundercats online...if you already have a cable subscription!

And there are three whole episodes available: today's, the one from three weeks ago, and the one from four weeks ago!

So all you have to do is pay seventy dollars a month, and you, too, can get access to a seemingly completely fucking random selection of episodes from all your favorite shows online! Plus you get to pay for Fox News and the Christian Broadcasting Network, whether you want them or not! AWESOME!

Cable TV as we know it will not exist in 20 years. Good fucking riddance.

On Alan Moore

Arguments on the Internet are waged through cliché.

Before Watchmen is out today. Alan Moore isn't too happy about it, and has made it abundantly clear that he did not approve it.

Bring this subject up, and sooner or later somebody -- perhaps even an ordinarily intelligent person -- is going to introduce the false-equivalence argument, "Did JM Barrie approve Lost Girls? Did Bram Stoker approve League of Extraordinary Gentlemen?"

I shouldn't have to explain why that is a stupid comparison, but let me just get it out of the way:

JM Barrie did not approve Lost Girls and Bram Stoker did not approve League because JM Barrie and Bram Stoker are fucking dead.

Alan Moore: Not dead. Still alive. Vocally complaining about the use of his characters and concepts.
JM Barrie and Bram Stoker: Dead. Not still alive. They do not have an opinion about Alan Moore.

Not remotely the same thing.

So, okay, point that out and whoever brought it up might concede that point, but then next on the list is "But Watchmen is based on the Charlton Comics characters; it wasn't original in the first place."

Well, you're getting warmer, but still no.

While it's true that the Watchmen cast is deliberately derivative, it is distinct. Rorschach is not the Question, Dr. Manhattan is not Captain Atom, and Nite Owl is not Blue Beetle.

I do think it would have been nice for Moore, Gibbons, DC, or somebody to offer Steve Ditko a check for inspiring their runaway success. (Ditko would likely have refused, because he is Ditko, but it would have been a nice gesture.) But I also think that that's a fundamentally different situation than if, say, the story actually had featured the Question, Captain Atom, and Blue Beetle and Ditko had been asking them not to make it.

Being able to create original characters who are clear analogues to existing characters is a good thing, and the comics industry is built on it. Superman is based on Doc Savage and Batman is based on the Shadow. But they are most certainly not Doc Savage and the Shadow; they're not merely distinct legally, but also morally and artistically. Just as the characters in Watchmen are distinct from their inspirations.

Even in current issues of League, where Moore is clearly using still-living creators' characters with the serial numbers filed off -- most notably Voldemort --, it's still not the same thing. Including a popular, culturally-important character in a minor role or cameo in an ensemble book and never referring to him by name is qualitatively different from making him the main character and sticking him on the cover.

All that said, there are some people who have made a fair point and a rational comparison in this debate: Alan Moore did spend most of the 1980's working on other people's characters. Superman, Batman, Green Lantern -- for someone who now bemoans DC's predatory contracts, he didn't seem too concerned about Jerry and Joe's cut when he wrote Whatever Happened to the Man of Tomorrow?

And that is a fair point. You can take this a number of different ways, I suppose -- it could be that Alan Moore was simply young and naive and didn't think about things like that in those days. Or it could be that he, Scott Kurtz-like, knew about the injustices of the past but naively believed that things were All Better Now.

Or, cynically, it could just be that he didn't care about unfair contracts until one affected him, or until after he was already rich enough that he could afford to tell DC off.

Honestly, that's a valid interpretation. I can respect that opinion. It's not flattering, but it's at least logically consistent.

And the other thing is, you know, Alan Moore is kind of a dick.

First, there are the blanket statements he constantly makes about everyone at DC and Marvel being terrible and doing nothing but rehash his ideas from 25 years ago. Now unfortunately, I do believe there's some truth to that -- grim-'n'-gritty stories attempting to duplicate Watchmen and Dark Knight Returns are a blight on the superhero genre -- but to say that there's not one person with a single original or creative idea at either company is just, by Moore's own admission, an insult delivered from a position of ignorance.

There's also a whiff of the paranoid conspiracy theorist to Moore's ranting about DC. I don't really think DC bought WildStorm just to get Moore back. And neither do I think that Steve Moore (friend, no relation)'s novelization of the Watchmen movie was scrapped out of petty revenge against Alan, acted out through coded threats transmitted through an unwitting Dave Gibbons -- I find it far more likely that someone at DC just realized that making a novelization of a movie that tried its hardest to be a shot-for-shot adaptation of an existing comic book they already published was a fucking stupid idea.

But his claim that DC was using Gibbons to send weird coded threats brings us to another problem I have with Moore: he has a pretty spotty history with his co-creators.

I think it's wonderful that he refused his share of royalties from V for Vendetta and Watchmen and insisted that it be given to David Lloyd and Dave Gibbons, respectively. I also think that it's a damn shame that, afterward, he accused them of being ungrateful and refused to speak to them ever again.

And that's something that I think too many people have ignored here: comics is a collaborative medium, Alan Moore didn't make these comics by himself, and unfortunately he doesn't just have a history of falling out with his collaborators, he also has a history of blocking their old work from being reprinted.

Steve Bissette -- who says he still has no idea what he said that made Moore refuse to speak to him anymore -- has spoken at length about his attempts with Rick Veitch to reprint 1963 and Moore's refusal to let it happen, and has noted, sardonically, that as much as he hates work-for-hire, it's his WFH collaborations with Alan that are still in print and earning him royalties, not their creator-owned work.

So while I still think Moore and Gibbons should own Watchmen, I acknowledge the very real possibility that if they did, Moore might still have declared Gibbons to be persona non grata and might very well have forced Watchmen out of print. We'll never know.


To the matter of the Watchmen contract: I don't think anyone was attempting to hoodwink Moore and Gibbons with the reversion clause; neither they nor DC had any expectation that the book would stay in print and never revert.

To that end, I can see DC's point that it tried, for decades, to reach an agreement with Moore that would be favorable to all parties, up to and including offering him the rights back if he'd write the prequels himself, and that he was intractable. And I can see Moore's point that DC was moving the goalposts and offering him what it had already agreed to give him, in exchange for more in return from him.

In that sense, it can be viewed as simply a dilemma, as two parties unable to reach an agreement (with Gibbons trapped in the middle) and both sympathetic to a certain extent.

On the other hand, there were cases where DC clearly took advantage of Moore and Gibbons, most notably in the case of the Watchmen buttons it sold as "promos" so that it wouldn't have to pay them their cut for merchandising.

And Moore has recently claimed that his contract actually stipulated that if he ever refused to agree to anything DC proposed to do with the property, they could hire their own lawyer to sign in his stead. And if that's true, then yeah, I think the contract was predatory.

Which does, of course, mean that Moore should have had a lawyer go over his contract in the first place -- I don't think anyone, including Moore himself, disagrees with that.

But what I don't quite get is the frequent line of reasoning, "He signed a contract, therefore he deserves anything that happens as a result of that." Well, legally, sure, but ethically that's far too callous a worldview for my tastes. The notion that it's Moore's fault for allowing DC to take advantage of him -- well, certainly he deserves some share of the blame, but what I don't get is how that absolves DC of any blame for actually taking advantage of him.

JM Straczynski's "Did Alan Moore get a crummy contract? Yes. So has everyone at this table. Worse was Segal [sic] and Shuster, worse was a lot of people" dismissal is particularly galling.

But JMS inadvertently brings up another point -- by being, himself, a perfect example of a famously difficult person to work with, a guy known for publicly criticizing the people who sign his checks, who DC puts up with anyway because he brings in good money.

Moore may seem intractable, but DC hasn't gone to much trouble to keep him happy. As Heidi MacDonald recently noted, he was willing to collaborate with them on a Watchmen retrospective back in 2000 -- but after that, DC pulled one of his stories, almost didn't publish Black Dossier, and never did publish it in the format Moore and O'Neill wanted.

Hell, Moore was even consulted for the V for Vendetta movie up until he read a script written by Americans who didn't even have a working idea of how British people talked or the basic structure of the British government.

Moore may be a crank, but MacDonald's point is sound: DC is making the same mistake it's been making since 1939. It's focusing on the characters as its treasure trove instead of their creators.

Way I see it, Before Watchmen will sell well at first and be largely forgotten in a year or two. It's another example, like the New 52, of short-term gimmick thinking -- it'll be a blip on the radar, rather than something that brings in new long-term readers and fans.

You know what could have brought in new readers and fans? New material by Alan Moore.

DC is so singularly focused on wringing every last penny out of Watchmen that it hasn't even stopped to consider what made the book great. It wasn't Ozymandias and the Comedian. It was Moore, Gibbons, and colorist John Higgins.

And maybe Moore was always going to get pissed off and take his ball and go home. Maybe nothing DC could have done would have been enough to get him to stay. Or maybe, if they'd gone to more trouble to keep their biggest-name creator happy, he'd still be around churning out new bestselling books for them -- we'll never know.


Course, there's also the point that Before Watchmen is a terrible idea in the first place, and it would still be a terrible idea even if Moore gave it his blessing -- even if Moore wrote it himself. (And yes, he was planning on it at one point.)

Watchmen is a complete story with a beginning, middle, and end. It stands alone, and should continue to do so. I love Darwyn Cooke and Amanda Conner (and I've enjoyed some stuff by JMS and Azzarello), but I'd much rather see them working on something new.


Discuss this in the Watchmen thread at Brontoforumus!

All or Nothin'

The most baffling argument I've been seeing lately to bolster the "Kirby's family shouldn't get any money" line is, "Well, it wasn't just Lee and Kirby who created the Avengers, it was Lieber and Heck, and Ditko designed the red and gold Iron Man armor, and Millar and Hitch made Nick Fury look like Sam Jackson and and and and and..."

Well, you know, I absolutely agree: Lieber, Heck, Ditko, Millar, Hitch, and plenty of other guys did very important work on Avengers over the years, work which made it into the movie.

The part where it gets fucking baffling isn't the first part, the "Lots of people made Avengers what it is" part. I get that. The part I just can't make sense of is "therefore none of them deserve any money."

Honestly, what the fuck is that?

I saw a guy on the ComicsAlliance comments section the other day argue that if Marvel compensated everyone whose work was adapted in Avengers, it would bankrupt the company.

What?

Tom Spurgeon recently wrote a lovely post titled These Comics-Makers Created The Avengers, spotlighting the writers and artists who made major contributions to the franchise that were used in the movie. He lists Stan Lee (the Avengers, Iron Man, Hulk, Thor, Loki, Black Widow, Hawkeye, SHIELD, The Cosmic Cube, Pepper Potts, Jarvis, Nick Fury), Jack Kirby (the Avengers, Iron Man, Captain America, Hulk, Thor, SHIELD, Loki, the Cosmic Cube, Jarvis, Nick Fury), Don Heck (Iron Man, Black Widow, Hawkeye, Pepper Potts, and a good chunk of the early Avengers), Larry Lieber (Iron Man, Thor, Loki), Brian Michael Bendis (Maria Hill, Ultimate Nick Fury), Mark Millar and Bryan Hitch (The Ultimates, which the Avengers movie is largely based on, most notably in the casting of Samuel L Jackson as Nick Fury), Joe Simon (Captain America), Don Rico (Black Widow), David Finch (Maria Hill), Mike Allred (Ultimate Nick Fury), Steve Ditko (the red-and-gold Iron Man armor and a shitload of other refinements of Kirby et al's characters), and Jim Starlin ([SPOILER]). I would have added Adi Granov to the list, too, as that's his version of the Iron Man armor up on the screen, but unlike most of the others he actually worked directly on the movies, adapted the armor for film himself, and got a paycheck and a spot in the credits that's not "Special Thanks".

So okay. That's fourteen dudes.

Let's say that you gave each of those guys (or their heirs, where applicable) a million dollars for making The Avengers. It doesn't have to be a million; that's just a number I'm picking -- partly because it's what Marvel gives Stan Lee every year, and partly because it's a pretty big chunk of change that you can reasonably assume none of them would refuse. (Except Ditko.)

So okay. That's fourteen million dollars. (Thirteen if you acknowledge that Ditko would certainly refuse; twelve if you take Stan out because he already got his million dollars.) Out of a movie that has grossed over a billion so far. Without factoring in merchandising, cable, DVD, etc.

According to mathematics, fourteen million is 1.4% of one billion. Or, 28% of the $50 million that Robert Downey Jr. allegedly made from the movie (according to anonymous sources, reported by Hollywood Reporter). Now, before anyone accuses me of saying Downey got paid too much or didn't deserve that money -- that's not my argument. He was in the movie; he's the main talent that this entire franchise was built on. And he's a great actor. Good for him, and I don't begrudge him a single thin dime he's earned from it. No, my point is merely that if Marvel Studios, Disney, Paramount et al can afford $50 million for one guy, it can afford a total of $14 million for fourteen guys.

"But," goes the inevitable argument, "it won't stop there! If you give money to those fourteen guys, everyone will want some! Where do you draw the liiiiiine? If you give money to those fourteen people, you have to give money to every single person who ever worked on an Avengers comic! And then the guy who drove the delivery truck is going to want a piece of the action!"

(I would like to add that that last bit is not an exaggeration. I saw a guy use that exact argument once in a debate about the Superman rights. I am not kidding even a little.)

Well, first of all, that's a stupid slippery-slope argument. Just because you agree to compensate fourteen or so people does not mean you agree to compensate everybody. That's stupid. If you make that argument, you're stupid, or at least pretending to be stupid.

(Well, I shouldn't say "at least" -- I happen to think pretending to be stupid is much worse than actually being stupid.)

You can draw a clearly-defined line. For me, it's a pretty simple one: the people who deserve compensation are the writers and pencilers who created any of the specific characters, costumes, locations, devices, or stories adapted in the movie.

And yes, there's ambiguity there. But guess what? Marvel's already got to sort out ambiguity. Is Scarlet Witch an Avenger or an X-Woman? Do the Spider-Woman movie rights belong to Marvel Studios or Sony? There are already lawyers whose job it is to sort out those distinctions; they can sort out whether Jim Steranko had a significant hand in the Avengers source material too.

(And an aside: on the "What about the inkers, colorists, and letterers?" question, I don't believe they qualify as creators but I do believe they deserve royalties. I don't think they should get royalties from the Avengers movie, but I absolutely think they should get royalties from any Avengers comics they personally worked on.)

Cartoonist Scott Kurtz recently put this asinine argument to work:

And to say that Jack Kirby is responsible for that Avengers movie is a ridiculous notion and insulting to the combined hard work of thousands, if not tens of thousands, of creators who have put their efforts into keeping our modern mythos of super-heroes alive and well.

Well, okay, there may be tens of thousands of people who have worked on superhero comics. Maybe. And yes, arguing that every single person who has ever worked on a superhero comic should get compensated for the Avengers movie would be incredibly fucking stupid. Which is, I suppose, the main reason that nobody, anywhere, ever has actually made that argument.

But for shits and grins, let's say a thousand people have worked on Avengers over the past 50 years or so. I think that's a pretty high number, but let's go with it.

So okay. In that case, if you were to compensate every single one of them, you couldn't afford to give each of them a million dollars.

But you know what? If you gave each of them ten thousand dollars, you would then be giving them about one percent of what the movie has grossed.

I am not, of course, literally suggesting that every single person who ever worked on an Avengers comic should be paid ten thousand dollars. I'm just saying that they could, and it would amount to a rounding error, which makes the weaksauce "If you give money to the Kirby heirs you have to give it to eeeeverybodyyyyy!" slippery-slope argument that much weaker.

Anyhow, that's a lot of words, and there are guys who've made this point a lot better than I have, in under 140 characters.

Evan Dorkin:

So, others worked on The Avengers et al after Kirby et al. That's your answer? Really? Buildings without foundations collapse, assholes.

Kurt Busiek:

Speaking as one who worked on AVENGERS after Kirby, @evandorkin -- I couldn't have done it without someone creating the characters and book.


Oh, and I updated my Preemptive Response post of answers to all the most obnoxious clichés that inevitably crop up in every discussion of the Kirby heirs' attempt to reclaim rights to his characters. Why, no reason at all.

Thad Doesn't Review The Avengers

Here's the thing: I'm boycotting The Avengers.

It was Steve Bissette who convinced me, in a blog post last summer just following the summary judgement against Jack Kirby's heirs. After that judgement it looks like the heirs will never receive their due through the legal system, and the court of public opinion is their last recourse. I haven't bought Kirby-derived Marvel product since.

People have argued this one up and down, and done it well -- James Sturm, David Brothers, Chris Roberson, Heidi MacDonald, Steve Bissette again -- so I'm not going to go into an extensive retread just at this moment. But to summarize:

Yes, Jack Kirby is dead. No, his children didn't write or draw those comics. Neither did Bob Iger or Roy Disney III, both of whom stand to make massive bank on this movie and both of whom are in the position of making a lot of money on this movie because of who they are related to. Captain America should be in the public domain by now, but he's not, again thanks to Disney.

Marvel gives Stan Lee a million dollars a year. His contract stipulates that if he dies before his wife, then she (who also did not write or draw any of those comics) will continue to get a million dollars a year until she dies.

Kirby should have gotten the same deal Lee did. And if he had, he would have left his money to his children.

Never mind the rights questions and the work-for-hire versus spec questions. (Personally I believe Kirby did at least some of his work on spec, and Marvel "lost" the evidence among the thousands of pages of art they contractually agreed to return to him and then didn't. But again, never mind that for now.) Just giving some form of compensation to the Kirby heirs at this point would be a step toward rectifying the injustices Marvel did to Kirby over the course of his life. Plus, as Kurt Busiek recently noted, if Marvel (and DC for that matter) started retroactively applying their current standard contracts to past creators, people like the Kirby heirs and Gary Friedrich would spend less time suing them and more time promoting their movies.

Anyway, here's the other thing: last night somebody handed me a free ticket to go see The Avengers, and I realized that yes, this was a loophole in my boycott. If I don't pay to see it, I'm not supporting it.

Now granted, Marvel/Disney/Viacom/whoever paid for my ticket, and it was part of a marketing strategy -- word-of-mouth, buzz, what-have-you. So here's my thinking: if I talk about the movie, then they've accomplished their goal, and I've broken my boycott.

So I'm not going to talk about the movie. If I say I liked it, then I'm doing just what Disney wants me to. If I say I hated it, then that misses the point -- then I'm suggesting people shouldn't see it because it's a bad movie, not for ethical reasons. If you choose not to see a bad movie, that's not actually a boycott. (I remember lots of people in various comments sections saying they would boycott Ghost Rider 2 over Marvel's treatment of Gary Friedrich -- I reminded them that it's only a boycott if they had planned on seeing the movie in the first place.)

But yeah, I saw it. And I'm going to talk about my moviegoing experience.

I suppose you could argue that I'm still giving them what they want, if you really believe there's no such thing as bad publicity and any mention of the movie is good for them...but, well, read on.


The movie was at 7 PM, and my fiancée and I arrived before 5. She'd eaten and I hadn't, so she grabbed us a spot in line while I found the nearest place to grab a slice of pizza.

The slice I bought was mediocre and I would probably not go back. I felt particularly disapponted inasmuch as the theater is a couple of blocks from my favorite pizza place ever, but I didn't have the time or the money for that spot.

(Tangentially, several nights before I'd had a dream where I was lost in the New York subway system trying to find a good slice of pizza. Because yes, of course you can find a slice of pizza on any given corner in Manhattan, but I was trying to find a really good place. I am sure that this is a metaphor for something.)

So anyway, I got back and grabbed my 3D glasses and my spot in line. I love my fiancée but I think I may have to fire her from holding-my-place-in-line duty. Holding someone's place in line requires more than just waving him over when he walks in; you also need to make sure that you leave enough room around you for a human adult to stand comfortably in.

And so began the hours-long wait in line. It went about how these things usually go: standing in line sucks, but you're there with other people who share a common interest. I was next to a kid who had just read Knightfall and gushed about it while describing The Brave and the Bold as "unwatchably terrible" -- well, at least he's a kid who's enthusiastic about comics.

'Round about 5:45, a manager came up to the line and announced that no cameras would be allowed in the theater.

Including camera phones.

IE, a thing that every single fucking person carries in their pocket, because this is two thousand and goddamn twelve.

Now, I know that this completely fucking boneheaded policy was Disney's and/or Viacom's fault, not the theater's. But what is the theater's fault is that they waited until we'd been in line for an hour to tell us. Yes, as it turns out it was written on our tickets -- in an illegibly-tiny, illegibly-antialiased font way down at the bottom —, but how the hell hard is it to post signage and tell the guy at the door to let everyone know as they come in?

So I went back to the car, along with at least one person from every single group in line. Fortunately, this allowed the line to rearrange itself in a way so that I actually had room to stand comfortably when I got back. And hey, it could have been worse -- as I discovered when the line started moving, the guys who got there first had to stand in a really cramped spot, next to lighted movie posters that gave off a noticeable amount of heat.

And then came the wands.

They didn't pat us down, at least, but there were actually people in suits outside the theater entrance who wanded us to make sure we didn't have cell phones on us.

Let me fucking tell you something, Disney and Viacom.

Captain America did not go to war and punch Hitler in the goddamn face so that he could wake up 70 years later in an America where people have to pass through security to see a goddamn movie.

All so that somebody wouldn't record a 3D movie with their fucking phone and post it on the Internet. Because that would really hurt this movie's business, I'm sure.

Well, the good news is it totally worked and nobody managed to sneak a camera into any of the screenings and post the movie on the Internet within a matter of houohhhhh I'm just messin' with you guys, of fucking course somebody did. I checked this morning, just for curiosity's sake, and yes, surprising absolutely no one, a bootleg cam video of the movie is now readily available on the Internet.

What, you mean irritating and inconveniencing law-abiding customers didn't actually stop anyone from pirating something? I sure never would have guessed that from every single time anyone has tried it, ever!

Anyway. After the wanding we were admitted into a theater that really was not big enough for the size of the crowd. I'm given to understand they opened a second one -- which means we would have gotten better seats if we'd shown up later, because as it was we wound up way too damn close to the screen. (We were in the second row. We were told the first row was reserved for press. If the people who wound up sitting there were press, they must have been there for their high school paper.)

The seats sucked, but on the whole I was surprised to find that they didn't really suck any more for a 3D movie than they would have for a 2D one. There was a sense that the whole thing was hovering above us, and of course since you are actually looking at a plane, yes, shapes distort depending on your viewing angle. And there were bits where the screen had some single massive object filling it that made my eyes cross. But still, I don't think it was any worse than if I'd watched a regular movie from that seat. The problem isn't 3D, it's poor theater design.

All in all, I would say the theatergoing experience left a lot to be desired, and I'm certainly going to remember it the next time I think about attending a prerelease screening -- or even a popular new release.

But I will say one good thing about it: it's the only time this century I've gone to a movie and nobody in the audience had a damn phone.


There's been some talk about credits over the last few days -- an interviewer asked Stan Lee why Jack Kirby wasn't credited in the movie and Stan gave the kind of tone-deaf response he often makes when people ask him questions about credit: he actually said "In what way would his name appear?" (He added that "it's mentioned in every comic book; it says 'By Stan Lee and Jack Kirby'"; I'm going to give him the benefit of the doubt and assume he's referring to the original comics that Jack actually co-wrote and drew with him, because no, Jack does not get a creator credit on most of the current Marvel books.) I know Stan doesn't make these decisions (anymore), but I think he should have responded with "Well, that doesn't sound right; I'll ask around and see what I can do."

People have pointed out since that Kirby's name is in the credits. I didn't see it, but I think it was probably in the "special thanks" section 2/3 of the way down; the credits went by fast and the only names I caught there were Millar, Hitch, and Lieber. (And I'm certainly not saying those names don't belong there, mind; Lieber co-created Iron Man, and this movie is largely adapted from Millar and Hitch's The Ultimates -- indeed, I read an interview where Millar says they're not getting any compensation from the movie and if that's true I think it's outrageous.)

At any rate, my point is, I didn't see Kirby's name in the credits, and I was looking for it.

So, to answer Stan's question, "In what way would his name appear?" Well, Spider-Man had a big "Created by Stan Lee and Steve Ditko" credit right at the beginning, and I think the Marvel Studios movies should have the same thing. I realize that Avengers, in particular, has a lot more creator credits, but I don't care; I still think they should be up onscreen in the opening titles, every one of 'em.

(An alternative idea, that I know could never actually happen but would like to see: in the end credits you get a prominent credit for each of the leads. The Iron Man helmet with Downey's name, the shield with Evans's, and so on. You could couple those with creator credits. Prominent, middle-of-the-screen credit saying "ROBERT DOWNEY JR.", and then, lower down and in smaller type, "Iron Man created by Stan Lee, Jack Kirby, Larry Lieber, and Don Heck". Then the big "CHRIS EVANS", with a smaller "Captain America created by Joe Simon and Jack Kirby". And so on down the line. No, this would never happen in real life, because I am talking about messing with the top-billed actors' credits, but...a man can dream.)


Playing: Xenoblade
Reading: The Neverending Story
Drinking: Lumberyard IPA. It was on sale at my local liquor store, and I checked the label only to discover that "Lumberyard" is actually the Beaver Street Brewery, my old college watering hole. It tastes like the good ol' days. And hops.

Tempin' Ain't Easy

I try not to think about the fact that it's been seven years since I got my CS degree and I haven't put it to use professionally.

I entered the field at the wrong time and in the wrong place. It's rough all over, and the housing bubble hit Arizona disproportionately hard. I've spent the past few years working as a temp and building the odd website on the side.

The first temp gig lasted two years -- ironically, longer than any other job I've had. But I got laid off about a year ago.

There's this kind of paranoia you get. It could happen again any time. And it has absolutely nothing to do with how hard you work or how good a job you do. You could be out on your ass tomorrow, on the whim of some guy you've never met.

I've heard some of the "get a job" rhetoric lately and it's just baffling. A hell of a lot of people would like very much to get a job. I've been either unemployed or underemployed my whole adult life, and that's with a degree that, fifteen years ago, could have gotten me six figures.

Not that I intend this as a pity party. I've got work now, and it pays well enough to live comfortably while still squirreling away enough each week that I'll be okay for a few months if I find myself unemployed again. There are a lot of guys who have it a lot worse than I do.

And if you take anything away from this comedy of errors, let it be that: this is the story of a guy who's doing okay in this economy.

Job 1: Fortune 500 Company, Real Estate Business

Job: Imaging laptops, working in a warehouse, inventory duty
Distance from Home: 3.5 miles
Best Thing: Laid-back atmosphere most of the time
Worst Thing: Lung fungus
Length of Service: 2 years

This wasn't a bad gig, really. Not intellectually challenging, but I worked with some good people, I got some good exercise in, and most times things were pretty laid-back.

But it wasn't worth giving up my health for, and ultimately that's what I did.

I did a lot of work out in a dusty warehouse, and I managed to contract valley fever. For those of you not from around here, valley fever is a lung fungus, and it lives in dust. The Valley and valley fever are like the Internet and Hitler comparisons -- you stay there long enough, it's something you're eventually going to have to deal with.

So I contracted a lung fungus working there, and I've still got asthma. It's manageable now, but I'm not what I was. Before I took that job I was healthy.

The next-worst thing about the job, after the lung fungus, was the meddling from up the chain. People with little-to-no grasp of our actual day-to-day operations had very strong opinions of what those operations should be, and precisely which boxes we should check on which forms each and every single time we did them. Precisely what those opinions were tended to change from week-to-week, producing an ever-changing, increasingly complex system for dealing with very simple tasks.

And as this went on, the environment became less and less laid-back, and more and more stressful.

There was a real disconnect between the building I was in and management out on the west coast. Within my office I was regarded as an essential member of the team, and indeed my bosses not only recognized my value, they realized that I could probably be doing more for the company than just counting how many sticks of RAM were left in inventory, and fought hard to get me not only hired on but promoted.

It's no small comfort to me that every single person who actually worked with me was pulling for me. To the point that when Corporate decreed that all the temps would be let go, my boss's boss's boss got reassigned for telling his boss's boss's boss exactly how he felt about that.

It was nothing personal. And it was nothing to do with my performance. I was just caught up in a bloodbath. I was part of the first wave, but it kept going. Last I heard, they'd laid off another third of my department, every help desk tech in Arizona, nearly everyone in the front office, and most of the people up the chain to VP. And demoted my boss back down to tech.

But before all that, I got a layoff for Christmas. I lost my job two years, to the week, after I'd gotten it.

There's a fatalism that kicks in after awhile. A knowledge that no matter how hard you work and how much you're appreciated, there's some clown in a corner office somewhere who's never met you but has the power to decide whether you're drawing a paycheck next week.

But ultimately there's something liberating about that, too. After awhile you stop trying to impress the clowns in the corner offices who have never met you. You realize the only people worth giving two shits about are the ones you deal with every day -- and that trying to impress them isn't about whether you'll have a job next week, it's about doing a good job for its own sake and for the sake of your team.

Those guys had my back. And that means more to me than a paycheck ever did.

Unemployment

Unemployment sucks. But it could be worse.

It's a pretty damn smooth process in this day and age -- all online, no driving across town and waiting in line. You fill out an online form, they take a week or two to make sure your story checks out, and then they open up a bank account for you, send you a card, and put money in every week.

Once a week you'll have to resubmit your claim. You tell them you're still looking for work (and keep evidence on file in case they ask for it -- I kept rather a long Excel spreadsheet with a list of everybody I'd contacted) and declare any money you've earned.

The whole thing's demoralizing and more than a little Kafkaesque -- Ursula K Le Guin recently described it quite wonderfully in a short story called Ninety-Nine Weeks: A Fairy Tale, and it's barely an exaggeration. That spreadsheet I mentioned where I kept track of all the dozens jobs I applied for? Only one of them ever actually got me an offer, and it was out-of-state -- more on that below. By the time I did finally get work again, it wasn't from the job search, it was from the same temp agency I'd been working for since '08.

Job 2: Local Non-Profit, Medical Industry

Job: Imaging laptops
Distance from Home: 13 miles
Best Thing: A job!
Worst Thing: Poor pay, sporadic availability
Length of Service: 3 months, off and on

This one wasn't too bad either. Neat office, nice people, and a certain degree of autonomy. The cramped little room I worked in got pretty crowded and hot as time went on, and there was a whole lot of downtime as I waited for laptops to finish imaging, but hey, I got time to catch up on my reading.

I also learned some interesting things about security policy. I've never had to lock things down so tightly from the BIOS -- a unique strong boot password on every machine, USB boot disabled, Bluetooth disabled, and on and on.

The toughest thing was that this wasn't a 40-hour-a-week job. It was "We just got these laptops in; image them and when you're done we'll send you home and call you back in when we get more."

And, without getting into the specifics of my pay, here's where that got frustrating: often I didn't make significantly more money than if I'd just stayed at home and collected unemployment.

Unemployment in Arizona works like this: you get a weekly stipend of up to $240. I was eligible for that maximum amount.

Every week, you report how much you've earned. You can earn up to $30 before they start subtracting your earnings from your unemployment check.

So there's this sort of dead zone between $30 and $270 where you are making the same amount of money whether you work or not.

And at this job, I frequently worked a weird part-time schedule and fell into that zone. Once I got past that first $30, I wasn't actually making any money; I was just getting a paycheck from the temp agency instead of the state.

Obviously there are still reasons to work. For its own sake, first of all. And second, to stay eligible for my healthcare, which was set to expire after three months without work. (I got back into the market just in time, but not fast enough to keep someone from fucking up my paperwork and taking me off their books even though I was still paying in every week. I had to call three different departments to get it corrected and my last prescription covered.) But there's still a definite sense of frustration in knowing that you're effectively working for free.

More than one other tech actually told me I should slow down and deliberately take longer to do the work so that I wouldn't get sent home in the middle of the week to await the next shipment. What a position to be in -- effectively being punished for being efficient, and incentivized to slow down and waste time.

This, as you will see, was to become a recurring theme.

Job 3: Company You've Probably Heard Of If You Live in North America, Retail Business

Job: Phone support
Distance from Current Home: 30 miles
Distance from Apartment Where I Lived 4 Years Ago: Directly across the street
Best Thing: Coworkers seem like all right guys
Worst Thing: The single worst job I have ever had. Fuck these people.
Length of Service: About a month

On some level, this fucking fiasco was my own doing.

I'd been poking through listings on some job site or other (probably not CareerBuilder; I quit using it after I discovered it was the thing that kept locking up my browser and hanging my entire system) and I noticed an IT job being offered through my temp agency which my rep hadn't brought to my attention. So I E-Mailed him and asked about it. In hindsight, I should have assumed there was a good reason he hadn't approached me about it.

It was phone support. Not phone support like I'd done before, but in a phone bank -- I had a few feet of shelf that I wouldn't really refer to as a desk, partitioned off from the guys next to me by small dividers that I wouldn't really refer to as a cubicle. Every morning at 6 AM I pulled up whatever broken chair nobody was sitting in, put on a headset if it was still where I'd left it the day before, and started working my way through a list of branches to call to walk their managers through installing new kiosks that didn't work very well in buildings that, half the time, weren't cabled correctly. (Ever walk a retail manager through recabling a patch panel? I've done it six times before breakfast.) It was dimly lit and it was dehumanizing -- I'd compare it to an assembly line, but the assembly lines I've seen are a whole lot livelier and more fun.

(I will grant one thing to the "cog in a corporate machine" setup: this is a company with hundreds of stores, all organized exactly the same. Each store has the same patch panel with the same numbered ports that go to the same rooms and assign IP's based on the same scheme. There was this in-house .NET program we had that would let you plug in a store number, automatically populate the IP address for every port in the place, and give you a one-click ping for each one. That's the advantage of a company that treats its stores as unifom, cookie-cutter widgets. The disadvantage is that it treats people exactly the same way.)

I spent most of each day on hold listening to the same fucking 16 bars of piano music over and over again. Periodically interrupted by a recorded voice telling me I was on hold, of course -- and if I ever meet the son of a bitch who decided to stick voice recordings in the middle of hold music, I am going to gouge his eyes out with my thumbs. I know I'm on hold, asshole; that's why there is music playing. About the only thing that could trick me into thinking that I wasn't on hold would be if the music abruptly stopped and I heard a human voice instead.

There were a couple of guys there who I'd gone to high school with. One of them I recognized but hadn't really known very well; the other used to pick on me but claimed not to remember me (he blamed it on the drugs he'd been doing back then and I am inclined to believe him). Now, remember how earlier I expressed frustration that my career hasn't really gone anywhere? Well, if you want a symbol that will hammer that little insecurity home, suddenly finding yourself sitting next to a couple of guys from high school is a pretty good one. But probably not as good as being directly across the street from the apartment where you lived back when you worked a previous dead-end job. Man, that would have been a sweet commute in 2007!

So no, let's say that this job wasn't the best fit for me. But dammit, I got up every morning at 4:30, put on a smile, went in, did my job and did it well. I blew through every task they gave me and asked for more.

This, as it turned out, was a problem. But nobody ever actually bothered to tell me that.

One morning I walked in and found that my login wasn't working. I asked the guy who'd been training me; he hemmed and hawed and wandered off for awhile, then came back and told me to turn in my badge.

It bears repeating, at this point, that I had just driven 30 miles to show up to work at 6 AM.

My rep told me that they'd called his office the previous evening to tell him to call me and tell me not to come in to work in the morning -- after he'd already gone home for the day.

He added that I'd been sacked because they thought I didn't schmooze enough with the end users over the phone -- something that nobody had ever actually complained to me about. I wasn't rude, or even brusque; I was just, in my rep's words, "too focused on getting the job done". I'm used to support jobs emphasizing getting the task done quickly, because the user doesn't want to be on the phone and wants to get back to what she was doing. But apparently that's not how it worked at this company; they wanted me to slow down and shoot the breeze -- except nobody ever bothered to tell me that. Come on, guys, if you want me to talk about the weather, just say so -- I have quite a lot to say about the weather in Phoenix in June, even when half the state isn't on fire.

Anyhow, it's the only job I've ever been fired from. And nobody even bothered to tell me there was a problem, let alone that I'd been fired.

The guy who walked me to the door was apologetic and told me not to worry about it, that people get fired from that place all the time through no fault of their own; maybe just for looking at somebody the wrong way. And it occurred to me that I'd passed my boss early one morning in the hall and, when she asked how I was doing, cracked a grin and responded "Hanging in there" -- and she apparently took offense that I hadn't said something more enthusiastic.

On the whole, pretty demoralizing and upsetting, and far and away the worst professional experience I have ever had.

Of course, I use the term "professional" in its loosest possible sense.

Job Interviews

Through it all, of course, I was interviewing wherever I could.

There are lots of stories I could tell. The temp agency I spent half an hour trying to find. The interview where I referred to a former coworker as "A temp like me, but kind of a slacker" but the interviewer just caught the "like me, kind of a slacker" part and that pretty well torpedoed me. The interviewer who asked me about a comment I'd posted about Spore's DRM on the FTC website back in '09 and then followed up by asking my opinion about SB1070. But the best story is the hosting company I saw advertised on a billboard.

"Do you know Linux? We're hiring!" said the billboard, with a colorful mascot next to the words. I would see it on the freeway on my way to work. Or maybe it was on my way home from work. Maybe it was both; I think they had more than one billboard.

Well, hell yeah I know Linux. I pulled up the website and submitted a resume. Turned out it was a hosting company -- even better. I spent most of '07 running the backend of a local ISP singlehandedly; I know my way around Apache httpd and MS IIS pretty well.

So they called me back, and the most immediately odd thing was that they told me the job was in Austin. Why would a company in Austin advertise in Phoenix?

Well, of course the answer is that they couldn't find anybody in Austin willing to accept the shitty salary they want to pay for Linux administration, so they're advertising in depressed markets that are full of desperate, unemployed Linux admins. But as you might expect, they didn't come right out and say that.

No, they gave me some talk about how they're expanding into new markets, and how they'd pay for my relocation, and they didn't balk when I gave them a deliberately high figure for my expected salary. They made the whole process seem very exclusive, putting me through three different interviews -- a general one, a second one with a series of technical questions, and a third where they had me SSH into one of their servers and demonstrate that I know my way around bash.

And then they offered me an hourly rate that was maybe fifty cents better than what I was currently getting in the phone bank. And a relocation fee that might have covered a U-Haul rental, deposit, and first month's rent on an apartment.

I hear Austin is a neat place, but no thank you.

It was about this point that I decided to read some employee testimonials on the place, and it sounded suspiciously like the terrible job I was already working at.

The billboards are down now. I wonder if they ever found anybody desperate or gullible enough to take their offer.

Job 4: Contractor for a Contractor for a Contractor, Insurance Industry

Job: Imaging laptops
Distance from Home: 32 miles
Best Thing: Getting work immediately after the previous fiasco; autonomy and people who were happy to see me
Worst Thing: Night crew fired after their first day
Length of Service: 6 weeks

Actually, before this job my rep sprang into action and got me a half-day gig fixing a company's QuickBooks setup, a mere 5 days after the debacle at my previous job. But I'm not counting that as its own section. My rep's cool, though.

Anyhow, shortly after the half-day QB fixer-upper, he found me something else and, at last, I got to be part of a Windows 7 refresh -- the precise thing that my boss, the previous December, had assured me would ensure my job security for another year, the week before announcing that the Windows 7 rollout had been canceled and so had my employment.

Anyhow, this one was interesting. The idea was to provide a minimum of disruption for the employees, while upgrading most of the office to Win7 in a matter of weeks.

So we had a night crew. They came in, ran a script to back up the user's files, either reimaged the user's existing computer or grabbed a new, freshly-imaged one that I'd already put together, restored from backup, and left it to me to walk the user through initial configuration the next morning.

At least, that's how we eventually got it working. The first night, things failed rather spectacularly.

I got in the next morning to find the night crew still there, a small handful of computers actually in working condition, and the rest in various states of completion.

The way I heard the story went something like this: one tech on the crew had asked the guy in charge what the plan was -- how they were going to split up the workload, what the schedule was, etc. He had made some vague "Just get started" noises. She asked him a few more times; he responded similarly. Finally she just went to work; she was responsible for the handful of machines that had actually been finished, while the other techs hadn't really worked out a plan for how to get their work done.

So the company fired everyone else and put her in charge of the new team.

After that it went really smoothly most nights. There were a couple exceptions -- one weekend when the generator had to be turned off for maintenance and so they couldn't come in to get computers ready for Monday, and one night when the AC was out and it was too hot to work. But no more problems from the techs themselves; the second crew did a really great job and made my life much easier.

Job 5: Company You've Probably Heard Of If You Live in the Southwestern US, Real Estate Business

Job: Imaging laptops
Distance from Home: 22.5 miles
Best Thing: Autonomy
Worst Thing: Still a bit of a drive.
Length of Service: 4 months so far, out of a one-year contract.

And from there I moved on to my fifth job of the year, not including freelance Web design or that one-day gig fixing QuickBooks.

This one comes with a one-year contract, so hopefully that'll hold and I'll still be there through next August. But I'm not going to take that for granted; one of the many lessons I learned in the Dank Pit of Phone Support last summer is that a six-month contract can turn into a one-month contract with absolutely no warning. Course, I've been working this one long enough that I am confident in saying that this time I am working for decent human beings, but again, it's not the people I've actually met I'm worried about. And every time I hear the Windows 7 rollout's been delayed, I get a little nervous.


I guess it's worth asking, what motivates me to come to work every day and do a good job? Here's what I can come up with:

  • Need for money
  • Need for health insurance
  • Pride
  • Loyalty to my coworkers

It's instructive to note the things that aren't on the list. "Hope for promotion" and "fear of losing my job" are conspicuously absent -- yes, I do feel both of those things, but as I've mentioned several times, I have absolutely no sense that my employment or advancement is tied to my performance in any way. They're motivating factors just as much as the potential for finding a $100 bill on the ground or tripping and cracking my skull -- they're both things that have some potential for happening, and my job performance has about as much to do with the likelihood of either one.

Also missing: "company loyalty". And unlike those other two things, this isn't something I have in the slightest. I am, as I said, loyal to my coworkers, and I appreciate my rep at the temp agency, but that's not the same thing as being loyal to either the company I'm working for or the company that placed me there. If I get a better offer I'll take it -- and those last two bullet points are the only reasons I'll give two weeks' notice.

On the whole I'm not entirely sure this is a bad thing from my perspective -- hell, the ideal list would probably have two bullet points instead of four. Company loyalty, the stick of firing and the carrot of advancement -- I don't need those things to do a good job. But from the company's perspective, it's probably a bad thing.

And if I may be so bold, I think I'm probably representative of a good solid chunk of my generation. Educated, underemployed, unable to hold down a job for more than two years through no fault of my own -- what happens when that's your workforce? In the coming decades we're going to find out.

The King's Ransom

So, another month, another piece of news on Jack Kirby's heirs seeking termination of copyright transfer from Marvel. And another thread made up of the exact same absurd comments.

For the sake of my time and blood pressure, I've decided to just copy down all the very very stupid comments people keep making, followed by explanations of why they are very very stupid, and just preemptively copy-paste it into the comments thread of every article I see on the subject from now on.

I'll probably come back and revise this post here and there, so if it pops up new in your RSS feed every now and again, well, consider it a Living Document.

(Thanks to Nat Gertler for feedback and corrections.)

Revision notes:

  • 2018-07-12: Updated a Robot 6 link to the Wayback Machine version, as the comments are no longer available on the live site
  • 2011-08-02: Updated to comment on the outcome of Marvel v Kirby
  • 2012-05-23: Updated to discuss the Avengers movie, correct some bits where I conflated modern work-for-hire law with pre-1976 work-for-hire law, and include some brand new clichés I'm sick of seeing
  • 2014-06-24: Rephrased a remark about the now-overturned Superman ruling; updated the instance-and-expense section with some information on the current challenge to the lower court's ruling; updated some dates and links.
  • 2014-09-26: Updated to reflect the news that the case has been settled and will not be taken to the Supreme Court.
  • 2014-10-01: Added a link to a Kurt Busiek post on CBR.
  • 2014-10-10: Added a few more lines about the settlement, and one new numbered comment/response since I've been seeing a lot of the "The Kirbys may not have sued bu they provoked a suit" argument.

Thad Boyd's Preemptive Response to Comments We Are Definitely Going to See in This Thread

  1. "Kirby's heirs didn't do the work, Kirby himself did! Therefore, they don't deserve any money for it!"

    Yes, that money should go to the people who actually did the work. Like Disney. Who could forget Bob Iger's classic run on Fantastic Four?

    Snark aside, there's a valid point to the argument that Kirby's heirs shouldn't get the rights. I personally believe that copyright law lasts far too long and these characters shouldn't belong to Kirby's heirs OR Disney/Marvel at this point, and should be in the public domain. But until that day comes, can we at least acknowledge that Bob Iger didn't contribute any more to the development of these characters than Kirby's heirs did? And that, if Kirby had made more money in his lifetime, he would have left it to his children?

  2. "The Kirbys shouldn't have sued Marvel!"

    You've got it backwards. MARVEL sued the KIRBYS; only then did the Kirbys countersue.

    The Kirbys simply filed a request for termination of copyright transfer; it was MARVEL who responded with a lawsuit.

  3. "The Kirbys may not have sued Marvel, but they knew that filing for termination would RESULT in a lawsuit. The suit is the Kirbys' fault, regardless of who filed it."

    While it is true that the Kirbys would have known that Marvel would probably choose to sue them, it was still Marvel's choice. Marvel didn't have to sue; it could have chosen to negotiate outside the court system.

    As it eventually did, with the final settlement in 2014. Marvel CHOSE years of litigation before agreeing to a settlement.

  4. "Kirby didn't do all the work himself! Don Heck and Larry Lieber co-created Iron Man, Steve Ditko gave him red and gold armor, Joe Simon co-created Captain America, Ang Lee's Hulk is based on Peter David's run, the movie version of Magneto is way more like Claremont's version than Lee and Kirby's, Mark Millar and Bryan Hitch made Nick Fury look like Samuel L Jackson, and on and on!"

    I completely agree -- all of those people should receive a share of the profits from the films based on their work, too.

    What I don't understand is taking that line of reasoning to the conclusion that NONE of them should receive anything.

  5. "Marvel can't AFFORD to pay everyone involved in creating the characters and stories adapted in its movies."

    Of course it can. Avengers grossed over a billion dollars.

    It is especially clear, following the settlement, that Marvel can afford to make a deal with the Kirbys -- because it has.

  6. "Isn't it convenient how Kirby's heirs waited until there were successful film franchises based on his work before they asked for the rights back? If it's so important to them, why didn't they do this years ago?"

    Because they couldn't. Copyright transfers can't be terminated until 56 years after the property's creation.

  7. "The Kirby kids should just get jobs!"

    The youngest of the Kirby "kids" was born in 1960. Do you really think they've all just been sitting around, unemployed, for the past several decades, waiting for the moment when they could try and get Dad's copyrights back?

  8. "It was work for hire, so Kirby never had any claim to the rights."

    Yes, that's what the judge ruled on July 28, 2011.

    But consider this: There was no work-for-hire contract. Jack Kirby was a freelancer. There is no evidence that he signed ANY contract with Marvel prior to 1972.

  9. "Kirby was an employee of Marvel, so he never had any claim to the rights."

    No, he wasn't. There was no employment contract. Jack Kirby was a freelancer. There is no evidence that he signed ANY contract with Marvel prior to 1972.

  10. "But he KNEW it was work for hire, because that's just how things were DONE in those days."

    The law does not recognize "just how things were done". What it DOES recognize in determining whether a pre-1978 work was made for-hire is the instance-and-expense test -- that is, did the creator make the work on his own initiative ("on spec") and then sell it, or did he create it at the publisher's request, to the publisher's specifications, and get paid a set rate by the publisher regardless of whether or not the work was published?

    The question of whether Marvel paid Kirby for art it didn't use is key. And the judge's ruling was based on Stan Lee's deposition.

    Other people who did freelance work for Marvel, including Stan's brother, Larry Lieber, said that freelancers were not paid for unused pages. Ultimately, the judge relied primarily on Stan Lee's deposition to support the claim that Kirby was paid for unused pages.

    Marvel's key documents were agreements Kirby signed in 1972 and 1986 claiming his previous work had been done on a for-hire basis. Kirby's agreement, in writing, that this was the case is legally damning, but still not hard evidence that the works actually WERE for-hire; Kirby signed these documents under duress, and the 1986 one was famously a condition for Marvel returning his original art.

    It bears noting that work-for-hire agreements cannot be made retroactively; if Kirby's 1963 work was not for-hire, he couldn't MAKE it for-hire in 1972. Furthermore, the 1972 document itself is contradictory -- it asks Kirby to assign all his copyrights to Marvel, and then suggests he never had any.

    The Kirby heirs attempted to appeal the ruling to the Supreme Court; they submitted an amicus brief challenging the instance-and-expense test and its application in the lower court's ruling. Bruce Lehman, former director of the US Patent and Trademark Office, filed an amicus brief arguing that the instance-and-expense test violates Supreme Court precedent. And, ultimately, Marvel chose to settle, just days before the Supreme Court would have decided whether or not to take the case. This suggests that, at minimum, Marvel believed there was a CHANCE that the Kirbys might prevail, and was unwilling to risk that outcome.

  11. "This will destroy Marvel Comics and all my beloved characters!"

    Most of Kirby's characters were co-created with Stan Lee. Stan has already agreed not to seek termination of copyright transfer (presumably because Marvel gave him a much, much better deal than Kirby), so that means Marvel will keep a 50% stake in them no matter what. The Kirbys will not be given editorial control and will not have veto power over Marvel's decisions; all they get is royalty payments -- which, incidentally, Jack never got from Marvel.

    This was exactly how the Superman rights operated between 2008 (when Jerry Siegel's heirs were awarded 50% of the rights) and 2012 (when that ruling was overturned): DC continued to publish Superman comics, they just had to compensate the Siegels.

    Kirby's lack of fair compensation during his lifetime is relevant here: stuff like this doesn't happen in a vacuum. It's too late for Jack or Jerry to get their due, but these legal battles have an impact on still-living creators -- chiefly, publishers will give better deals to their talent in order to keep them happy and avoid future lawsuits. Every time a writer or artist gets a royalty check from Marvel or DC, he has guys like Siegel and Kirby -- and their heirs -- to thank for fighting that fight.

  12. "I work hard at my job, and I don't expect an ownership stake in my work."

    Unless you were doing freelance work in the comics industry prior to 1978, your job is not analogous to Jack Kirby's job, your agreement with the company you work for is not the same as Jack's agreement with the company he worked for, and your heirs' claim to the work you do is not equivalent to Jack's heirs' claim to the work he did.

  13. "So if I built a house --"

    Copyrights are not houses.

  14. "So if I bought a house --"

    Copyrights are not houses.

  15. "So if I sold my house --"

    Copyrights are not houses.

  16. "So if I filed for a patent --"

    Getting closer, but copyrights are not patents, either.

  17. "Marvel lived up to its end of the bargain and doesn't owe Jack anything."

    Even assuming this is true (and I think the King would have something to say about that if he were still with us), you could just as easily frame this as "Kirby lived up to his end of the bargain and his heirs don't owe Marvel anything." Marvel got sole ownership of the copyrights for 56 years, which is exactly what Jack agreed to. That agreement is about to expire. What you're suggesting is that Marvel should automatically get to keep the copyrights for 29 more years than Kirby ever agreed to, in exchange for nothing.

  18. "This is an insult to Jack's memory! He would have wanted all the money to go to Marvel, not his family!"

    Have you ever noticed how most people on the Internet would rather crank out an ill-informed, knee-jerk response than spend the same amount of time using Google to find out whether they're actually right or not?

    Leaving aside the question of how many people would REALLY rather see the profits from their work go to the company they work for than their children, Kirby's relationship with Marvel is a matter of public record, and it wasn't a positive one. He did not feel that he received either the compensation or the credit that he deserved.

  19. "If it was so bad, why did he keep working there?"

    He actually quit, on several occasions, due to disputes with the company: once in the 1940's, again in the 1960's, and finally for good in the 1970's.

  20. "If it was so bad, why did he keep coming back?"

    He came back in the 1950's because the market was crashing and many of the other publishers were going out of business. He came back in the 1970's because he had been offered a better deal than he'd had before -- that was the point at which he sold his rights, though it bears repeating that this was prior to 1978 and the sale would have expired at 56 years from the date of each character's creation.

  21. "Jack Kirby didn't create anything; all he did was design costumes for characters Stan Lee came up with."

    Have you ever noticed how most people on the Internet would rather crank out an ill-informed, knee-jerk response than spend the same amount of time using Google to find out whether they're actually right or not?

    Even if all Kirby had ever done was design the look of characters, that would be sufficient for an ownership stake. But he did considerably more than that.

    Writing at Marvel was a collaborative process. The "Marvel Method" was that Stan would float a plot outline, the artist would draw the pages, and then Stan would fill in the dialogue. Sometimes Stan's outline was detailed, sometimes it was rough, and sometimes there was no outline at all and he wouldn't know what was in the comic until he saw the art. In those cases he'd just write the dialogue -- and even then, he would often use the artist's dialogue suggestions.

    Artists at Marvel had an active role in developing characters and stories. Kirby, Ditko, and others felt that they were not given the credit they were due, and their contributions were underplayed. The fact that you didn't know how much Kirby did and believed all the heavy lifting was done by Lee would seem to prove that point.

  22. "What about Spider-Man? Kirby didn't create him!"

    Kirby worked on an early version of Spider-Man that bore little resemblance to Ditko's final version. I would tend to agree that his claim to Spider-Man is tenuous, but the court may decide that his heirs are entitled to some share in the copyright -- probably not the 50% they'd expect for the Fantastic Four, but some smaller portion.

    I've seen some commenters speculate that the Kirbys never expected to win the Spider-Man rights but asked for them as a tactical maneuver -- in a legal dispute, it's good practice to ask for more than you want, wait for a counter-offer, and negotiate from there. This seems plausible, but Kirby DID claim that he had co-created Spider-Man.

  23. "Marvel took all the risk; Marvel should get all the reward!"

    I see this one all the time, and it's rather baffling. Are you arguing against the very CONCEPT of royalties? Try running that one by most comic book writers or artists today and see how far you get. And that's without getting into other creative industries like books, music, film, and television.

    Aside from that, the notion that Marvel took all the risk relies on the assumption that Kirby was paid whether his work was published or not. Again, while the courts have upheld this claim, it is widely disputed.

  24. "This is unethical!"

    Ethics are personal and subjective. I think it's unethical for a company to pocket billions of dollars on the back of a man it never paid more than a modest page rate, 20 years after his death. You, presumably, believe it's unethical for a dead artist's next-of-kin to try to turn a profit from characters he willingly sold off 40 years ago. We can agree to disagree on the ethics of the situation.

    The law, on the other hand, is much less ambiguous. When Jack Kirby sold his rights in 1972, he did so under a copyright law that stated they would go into the public domain starting in 2014. When Congress changed that law in 1976 (effective in 1978), it changed the terms of the agreements Jack and others had signed. As such, the new law included an escape clause for anyone who had sold his copyright under the old law: he -- or, in the very likely event that he didn't live long enough, his statutory heirs -- could terminate the transfer when the original expiration date came up.

    Whether you think the law is ethical or not, it's the law, and it's not being disputed in this case. If Kirby's works were not for-hire, then he owned a portion of their copyrights, and his heirs are legally entitled to reclaim that portion.

    The size of the portion, and that "if", are the only legal points in question here. Did Kirby sign any work-for-hire contracts? His heirs contend that he didn't, and the court agrees that there is no evidence that he did. Marvel's work-for-hire case is based partially on documents that Kirby signed years after the fact, and partially on Stan Lee's widely-disputed contention that Kirby never worked on spec.

    If this exact same set of circumstances were to occur today -- a freelancer were to create a work without a prior written agreement acknowledging it as work-for-hire -- then the freelancer, not the publisher, would own the rights.

    And if the Kirby heirs could actually produce hard evidence that Jack worked on spec and submitted ideas, on his own initiative, that Marvel never used and that he was not paid for, then that would prove that at least some of the work he did was not on a for-hire basis.

    I can't help thinking that, if any such evidence exists, it was somewhere in the piles of original art that Marvel agreed to return to him and which someone then left unattended next to an elevator.

I grant permission for anybody to reuse this post, in whole or in part, so long as they grant attribution. And don't go nuts with that "or in part" part; no selectively excerpting partial sentences to make it seem like I meant the opposite of what I did.

And, for further reading, check out the following links, which have much more thorough rundowns of what copyright law says, why it says it, and how it specifically applies in the Kirby case:

Buffaloes in the House!

Arizona's Fifth Congressional District -- the Fightin' Fifth!

I was born there. I've lived most of my life there. I went to high school there -- more on that in a bit -- and I still spend a solid chunk of my time there most weekends. I live a ways northwest of there at the moment, but my permanent address is there and that's where I'm registered to vote. It's my district. And Tempe may not be my favorite place on Earth, but it's my hometown.

So, like most people from Tempe, regardless of political party or stripe, I like Harry Mitchell. He's widely regarded as the greatest mayor the city ever had; City Hall is named after him and has a 30-foot-high abstract statue of him out front. He and I went to the same high school, forty-some years apart, and he was a teacher there, though he retired four years before I started there.

In short, the man was a dedicated educator, and a good mayor, a bipartisan type -- in the Bill Clinton "reach across the aisle and accomplish things" sense, not the Joe Lieberman "capitulate to your opponents' every whim and say that criticism of the President imperils the nation" sense. He's still pretty moderate for my frothing-at-the-mouth liberal tendencies, but he's a good guy. Frankly I'd have voted for just about anybody over Hayworth, but -- in this race, at least -- it wasn't enough just to be the Democratic candidate. Harry won because he had Tempe at his back, the Democrats and Republicans alike, and because he got the endorsement of the Arizona Republic -- no small feat given that they endorsed Hayworth the last six times he ran. But with JD balls-deep in the Abramoff scandal, seen as an extremist on immigration even by Arizona standards, and widely regarded as a partisan bully (his last set of campaign ads included one that said Harry Mitchell was soft on child molesters -- the old Rovian tactic of trying to turn an opponent's greatest strength into a liability, but in this case executed extremely clumsily and backfiring spectacularly), a guy with bipartisan appeal like Harry was just what District 5 wanted.

Harry's also had the class not to declare himself the winner until all the absentee, provisional, and early ballots are counted. Which I appreciate, considering mine's in that stack somewhere. And even if it weren't, well, I'm a fan of democracy and, you know, counting votes.

...Speaking of immigration, I'm much less thrilled to report that all three of our immigrant-scapegoating propositions seem to have passed. (ThehTUHKerJUHBS!) But -- and it's a close call, with ballots still being counted -- it looks like the anti-gay amendment failed. 107 was disguised as a proposition banning gay marriage, but gay marriage is already banned in Arizona -- what it was really about was banning benefits for unmarried couples, whether gay or straight. The only reason it was even close is that it pretended to be something it wasn't -- like the "limit the government's power of imminent domain" prop that passed, which actually means if I don't want a corporation polluting my neighborhood, I have to pay him off based on hypothetical lost profits. Or, to be fair, the winner of the Best Orwellian Name contest, the Non-Smoker Protection Act, which was funded by big tobacco, which the voters had the good sense to see through and vote down.

Minimum wage is up too. And about to go up on a federal level, now that the Dems have the House.

I'm sure I'll have plenty more to say about this later. And I'm sure my cynicism will eventually settle back in. But at the moment, I can call myself a Democrat without any feelings of self-loathing for a change -- and really, that's a great place to start.