Tag: Creators’ Rights

The Return of MST3K -- Part 4: The Old Cast

A lot of the discussion about the MST3K reboot has centered around fans who want to see the old cast come back. Joel has said he'd like to bring them on as writers, and to appear in cameos. But the thing is, most of them don't seem to want to do it.

Here's what Mike, Bill, and Kevin said when Chris Ford asked them about it in a Diffuser interview last year:

Speaking to Wired, Joel Hodgson mentioned that he’d consider revisiting ‘MST3K.’ Is that something you’d consider?

Nelson: I probably wouldn’t. It’s just sort of a personal preference. I mean, I already have RiffTrax going, and that’s taken my last seven years, and I’m fond of how that’s working. So there’s just no need, I feel. And I wonder about revisiting something like that. But who’s to say that it couldn’t be. You know, it survived a lot of changes, so it could start again. Who knows?

Corbett: It would depend completely on the arrangement. I loved doing ‘MST3K,’ was honored to be part of such a great show and had a wonderful time during my years there. But the owners of the show cut me off as soon as it was over. Haven’t made a cent from it since I filmed my last show in 1999, and all attempts to change that arrangement have been rejected. A few attempts to revive ‘MST3K’ have already failed because of such issues. So I’d be skeptical.

Murphy: You know, I’m really not interested. As I said, where I am right now, I’m really loving what I do. We’re having great fun with RiffTrax, and to go back and do that again would … it has this ‘Return to Gilligan’s Island’ feel to it. You know, they did that again, and it just looked sad and lame because it was the same characters, except they’d gotten old. Or they’d substituted in new characters, and it didn’t really feel right. I think they had a fake Ginger in there. I don’t remember, but it just never felt right. It never felt like the real thing. We made that real thing for 10 years, so I’m really not interested in going back. It’s like going back down to your basement from when you were a kid when you’re an adult and making the same kind of car models that you did when you were a kid. It just doesn’t ring true to me anymore. What I’m doing right now with Mike and Bill at RiffTrax is a blast. We’re having a great time doing it, and people seem to like it. So I’m happy to do that. And if Joel wants to do the show again, God bless him, and I hope he has a lot of fun doing it. But I think I’m happy where I am.

Since the announcement of the Kickstarter, Mike and Bill have both reiterated their non-involvement, as have Mary Jo and Josh. Trace has ruled out even showing up in a cameo.

Joel addressed this in a Kickstarter update:

What about everyone else? Are the other MST3K writers and actors coming back?

This is the hardest question to answer, because there are several moving pieces involved.

Right now, I don't know who will agree to come back and work on the next season of MST3K… but if the Kickstarter is successful, everyone will be invited to take part.

Until yesterday, I wasn't even sure this whole Kickstarter idea would work. I've reached out and spoken with some of the old cast and writers, but until I knew how much money we'd have to work with – and when we'd start writing and shooting – there was just no way to make the specific offers that I hope will bring many of them back.

Plus – as many of you know – so far, the old cast haven't been compensated as well as they (or I) might have liked. I wish I could go back and fix that, but if I'm going to ask them to participate in the next season, I want to be certain we can pay them what they deserve this time. As soon as we pass our initial goal of $2,000,000, I'm hoping to start making the invitations official, and I hope some of them will be able to join us before we start working in January.

And guys, as much as I'd like to see the old cast and crew back, given their responses so far I really don't think it's going to happen.

I think it's great that Joel is talking about royalties. I believe that Shout! Factory should pay royalties to all the former writers and cast members, not as leverage to get them to participate in the new show but because it's the right thing to do.

But while royalties have certainly been a sticking point for some of the former cast members, I don't think they're the only reason people are holding out on participating in the new show. Look at what Mike and Kevin said in the Diffuser interview I quoted above -- it doesn't sound to me like they're holding out for a better deal; it sounds like they just plain don't want to do it. And Josh has said he's working on two documentary films, so it sure sounds like his non-participation is because he's too busy with other projects.

Aside from what they've said in public, I can't speak for individual cast members' motivations. Mary Jo has complained about the lack of profit participation in the past, while Frank has said it doesn't bother him. I've seen a lot of fans assume that the reason the old cast members aren't interested in being part of the new show is because of their lack of profit participation, and that if Joel gives them a good offer they'll be onboard after all -- but I think that's fans' wishful thinking. I've seen no hard evidence to back it up; the only thing I've seen that even looks like a "maybe" is Bill's "It would depend completely on the arrangement" in that Diffuser interview.

There are other reasons why people might not want to participate -- Mike and Kevin have suggested that they're just plain not interested. As for other former cast members, the geographical issues that brought an end to Cinematic Titanic are still present; the simple fact is that many of them don't live in the place where the new show is going to be produced. Even if, say, Mary Jo gets a profit-sharing offer that she's agreeable to, she still lives in Austin.

In short, I think that while fans are absolutely right to call for a new royalty agreement for every former cast member and writer on MST3K, they should also tamp down their expectations that this will lead to the old team returning for the new show. I just don't think that's gonna happen. Look forward to the new show for what it is, not for what you wish it was going to be.


I think that's it for now on the subject of the upcoming MST3K relaunch. The Kickstarter page, one more time, is bringbackmst3k.com; I haven't pledged yet but I plan on throwing in at the $35 level. That'll get you the first episode of the new series, plus three classic episodes as DRM-free downloads. (The three classic episodes are not currently listed in the Rewards section, but Joel said in an update that they're being added to the $35 tier as a bonus. He has not yet specified which three episodes they will be.)

And on the subject of compensation for the cast and crew of the old series: Rifftrax has just started selling MST3K episodes; as of this writing they have Mitchell, Pumaman, Final Sacrifice, and Future War, each priced at $10, with another episode going up for sale every Monday. And here's the most important part:

A significant share of the profits of all MST episodes sold on RiffTrax will be paid out directly to ALL the principal cast members of MST – Mike, Joel, Kevin, Bill, Mary Jo, Trace, Frank, Josh and Bridget. We feel it’s important that the original artists benefit directly from their awesome work. So if you want to support them, buy your MST here on RiffTrax!

There's no mention of Paul Chaplin; I wonder if that's an oversight, or if they don't know how to get in touch with Paul these days or what. I hope he gets a cut too.

At any rate, much as I love the DVD sets, I have to recommend from here on in that if you want to buy old episodes of MST3K, you buy them through Rifftrax, because right now that's the only way the cast and writers get a percentage of your purchase dollars. Again, I'm hoping that changes and the series' new owners at Shout! reach a deal to give them a piece of all purchases and streaming revenue. But for now, they only get paid if you buy them through Rifftrax. So do that.

Fanboy Rationalizations

There's one more thing I want to get to before I close out my run of Ken Penders posts, and that's fanboy rationalization.

There's a meme that I've seen infect the anti-Penders fanboys, since the suit was settled: "If only Ken had been nice when he asserted his copyrights, the fans wouldn't be so angry at him."

Here's somebody named Strike Carson making that argument to me in a 2013 comments thread at TSSZ News (via archive.org since TSSZ News appears to have nuked its comments section in a software upgrade):

Penders did something behind the backs of Sega and Archie that strained the relationship and almost got the comic cancelled. Maybe I’m mixing the two stories up… But still, Archie may have ignored him for the royalties, but it was Penders decision not to let Archie know what he was going to do if he wasn’t given the compensation he deserves as stated by law. You know, that whole threatening legal action thing if he’s not paid for what’s legally his? Had he done that in the first place, perhaps he would have had much more sympathy from us.

And here's the same argument, as put forward by Tylinos on the Ken Penders messageboard:

While it'd be silly to deny that The Spice Must Flow is a significant factor in it, it should be pointed out that the most commonly cited reason here was the attitude of the whole thing, and how absurd it all looked. (Even outsiders who don't read or even dislike the comic have been among those against how Ken went about it.)

Ken could've even underminded The Spice Must Flow mentality a bit by easing into the situation with some psychology, starting out slow with a "Well, I did make these characters" and nothing more and slowly building support up to saying "I should get payment for their use," instead of immediately starting out with that.

Heck, odd as it is, even among people against how he's acted, there's been near-unanimous agreement toward him getting reprint compensation for the stories he wrote. (Which, I know, isn't in the way of the spice anyway.)

The Spice Must Flow definitely factored in, but it's fairly clear that going about the whole thing a different way would've changed fan reaction immensely, and could've bitten past it.

And jameygamer in the same thread:

If he had been a lot less uptight when this whole mess started, he would be better off in terms of reputation.

These are people who, during the years Archie was suing Penders, said they were mad at Penders because his claims were frivolous and false. Since it turned out his claims weren't actually frivolous or false, they've changed their rationalization; now they say they would totally have been on Penders's side if only he hadn't been so rude about the whole thing. We have always been at war with Eurasia.

Of course, that's nonsense; it's rationalization. They're not arriving at their conclusion based on facts; they're starting with their conclusion (Rrrr, Penders bad!) and then cherry-picking facts to support it.

A rational person changes his opinion when confronted with new facts. When I first heard about Penders asserting his copyrights, I reacted with disbelief; I thought it was unfathomable that Archie would have neglected to make him sign a contract.

As it became clear that I was wrong and that was exactly what had happened, I changed my opinion. (Not for nothin', I also admitted I was wrong and apologized for being kind of a dick about it.)

These fanboys, of course, are not rational; they haven't changed their opinions, only their justifications for those opinions.

And, needless to say, I don't believe for a second that there is anything Ken Penders could have done differently that would have prevented fanboys from howling for his blood. If he'd done exactly what Strike Carson, Tylinos, and jameygamer said he should have done, then Strike Carson, Tylinos, and jameygamer would be up there saying that they would have taken his side if only he'd done something else instead.

Well, maybe not Tylinos. He seems like a pretty reasonable guy, at least.

And I'm not just saying that because he was (at least partially) agreeing with something I'd said earlier. When he said "The spice must flow," he was referring to a phrase I'd used in a post about Jim Starlin back in 2012:

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

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

There is and will continue to be a vocal minority of comic book fans who will side with the publishers no matter what. (Oh God how I hope it's a minority -- but I think it is. You can find a vocal population of people on the Internet who will angrily, zealously defend absolutely any dumbass position you can possibly think of.)

And here's what I said to Strike Carson:

Every single comic book copyright dispute in history says the fanboys would have been just as enraged no matter what he did.

Siegel and Shuster sell Superman for $130? Tough titty; they signed a contract.

Jack Kirby gets no royalties for any of the work he did at Marvel? Tough titty; he signed a contract.

Point out that Jack Kirby didn’t actually sign a contract? Well, that’s just how things were done back then, man!

DC continues to exploit Watchmen against Alan Moore’s wishes, even though in 1985 they made a big thing of how it was a creator-owned book? Tough titty, man, he signed a contract!

Marvel demands $17,000 from broke Gary Friedrich and demands he stop referring to himself as the creator of Ghost Rider? They’re just protecting their interests!

Archie screws creators out of royalties for decades, grinds anyone who legally challenges them into paste, actually removes Dan DeCarlo’s name from reprints, then a creator comes along asking for what Archie legally owes him, Archie doesn’t respond, he provides sufficient evidence to back them into a corner and get them to agree to a settlement — and you’re complaining that he didn’t issue enough legal threats beforehand? Seriously, dude?

Yeah. I’m sure if Penders had threatened to sue Archie in 2010, all the people in this thread who are crying for Penders’s head for the crime of, um, asking for the rights he is entitled to by law, would have totally been on his side.

To the anti-creator fanboys, the facts don't matter, the law doesn't matter, the ethics don't matter, and actual human beings do not matter. All that matters is that they get the comics they want.

They'll tell you differently, and they probably believe it -- after all, most people don't realize when they're rationalizing, and most of these are individual people opining on individual cases. By and large, the guy dumping on Penders is probably not the same guy dumping on the Kirbys is not the same guy dumping on the Siegels is not the same guy dumping on the Shusters is not the same guy dumping on Wolfman is not the same guy dumping on Friedrich is not the same guy dumping on Starlin (or Ditko or Gaiman or Moore or DeCarlo or whoever). If you're not the sort of person who follows these stories, who's seen this conversation play out dozens of times in different permutations, you don't see the pattern.

But there is a pattern. And the pattern is, there are always fanboys who care more about the product than about the human beings who created it. That's the long and short of it. The justifications may change from case to case, but the attitude is always the same: "Fuck that guy, I just want my comics."

That's it for my Penders coverage. But I'm sure we'll be right back here talking about exactly the same things the next time a comics creator has a dispute with a publisher.

Fanboys Miss the Point

The plan was that this would be my last Ken Penders post for awhile, because this is not the All Ken Penders All the Time blog. Sometimes it is the Long Rambling Post About the Past 20 Years of Web Design blog.

However, the post wound up running long, and had a nice natural break in the middle, so now it's going to be two posts. There will be at least one more Penders post after this one.

But while Ken Penders is the focus, these posts aren't just going to be about Ken Penders. I intend to make a few unflattering generalizations about anti-creator fanboys in a minute here, and you may be interested to read them even if you don't care about Penders, Archie, Sega, or Sonic. If you like my posts about creators' rights, this is one of them, and the next one will be too.

So what brought me back to Ken Penders, anyway?

Well, awhile back I was looking at my site stats, and found a referral from a DeviantArt post titled A Summary of ACP Vs. Ken Penders, posted in a group called Save Archie Sonic, which is dedicated to petitioning Archie Comics to bring back all the Penders-created characters that it wrote out of the series. It was a pretty old post by the time I saw it, but at any rate it flatteringly linked to my previous Penders coverage.

And the second comment down, by a guy named CMAugust, had this to say:

The rest of this guy's articles on the subject are great too, well worth reading. On another cool note, this is the same fan who got the first online letter printed in the comic, way back in issue 40.

Holy God, what a thing for somebody to remember after all these years.

Yes, ladies and gentlemen, there you have it: the most obscure and inconsequential piece of Sonic the Hedgehog trivia ever. And it's me.

CMAugust went on to say:

Oh yeah, and if you check out his stories about other comic book people tagged under "creators rights," you'll find that whenever there's a creator vs publisher court case, the fanboys will dump on the creator every time. Sad but true, most fans only care about whether their favorite characters are featured month after month and attack anyone who rocks the boat. No matter who it is.

This is a depressing but entirely accurate observation. I will be coming back to it in my next post.

The third reply down took rather a different and less coherent tack. Somebody posting as THEATOMBOMB035 wrote:

where do we stand? same as last time
Penders is a greedy prick who doesn't deserve the right to even be remembered in the Sonic world after what he is done
he is now a living reason why we exist and why we must stand as are own group of Freedom Fighters
Penders, you are a shame to Sonic fans everywhere

It's the third line that really got me. The part where he compared the fanboys -- the people calling the guy who created or co-created a raft of their favorite characters "a greedy prick" -- to the Freedom Fighters.

And this got me thinking about something I've thought of often before.

The fanboys in these stories -- the ones who insult Jack Kirby's family, or Jerry Siegel's family, or Joe Shuster's family, or Marv Wolfman, or Gary Friedrich, or Jim Starlin, or whoever -- are, invariably, fans of a certain type of fiction. Specifically, these are fans who are extremely passionate about stories where a ragtag band of underdogs strives against impossible odds to defeat an evil empire that is far bigger and more powerful than they are.

And they sure like those stories, but they really don't seem to understand them.

Here is a guy, right here, who looked at Sonic the Hedgehog -- the story of a scrappy band of Freedom Fighters squaring off against an evil empire to regain control of their homeland -- and then looked at Archie v Penders -- the story of a lone cartoonist squaring off against a multi-million-dollar corporation to regain control of his own work -- and thought that in this analogy, the people siding with Archie were the Freedom Fighters.

I just don't get it, man. I don't get how you can be so passionate about a work of fiction while simultaneously failing so utterly to understand its message even a little bit.

Speaking of utterly failing to understand a message, I also found my Penders coverage linked from a comments thread under a piece of fan art called Bunnie's Choice. A user named AlcyoneSong said,

yeah its just sad, because the whole comic has had a reboot due to Penders lawsuit.

And then he linked to my Ken Penders coverage.

My Ken Penders coverage which contains the following passages:

And it is important to remember, throughout this discussion, that while fanboys continue to misstate the basic facts of the case, Archie sued Ken Penders, not the other way around.

and

If Archie does permanently drop Penders's characters and cease reprinting his comics, make no mistake: that's out of spite, not legal obligation. That's not Archie being forced to stop using those works, it's Archie choosing not to use them so it doesn't have to pay Penders for them.

Emphasis in originals.

I mean, for fuck's sake, maybe actually read the thing you're linking to before you describe it.

There was a time in my life where I would probably have gone to the trouble of signing up for a DeviantArt account just so I could argue with year-old posts misstating the basic facts of the case and the content of my posts. Fortunately, I'm past that now, and content to merely criticize them in really long blog posts.

Work-for-Hire, Royalties, and Freelancing

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

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

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

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

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

Hogan goes on to say:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[...]

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

[...]

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

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

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

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

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

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

Kirbys and Marvel Settle

Today, Marvel and the Kirby Estate released a short joint statement:

Marvel and the family of Jack Kirby have amicably resolved their legal disputes, and are looking forward to advancing their shared goal of honoring Mr. Kirby’s significant role in Marvel’s history.

It's finally over.

I've revised my 2010 form post, The King's Ransom, for what I hope will be the last time.

A bit of context, since I wasn't updating the blog back in June (though I did tweak the aforementioned form post): the Kirby heirs were appealing the case to the Supreme Court, and a number of amicus briefs were filed in the case by prominent groups including the Artists' Rights Society and the International Intellectual Property Institute. Among others, Bruce Lehman, former director of the USPTO, argued that the instance and expense test that the previous judgement against the Kirby heirs hinged on violated Supreme Court precedent.

The Supreme Court was set to decide whether or not to take the case in just a few days.

Kurt Busiek says, in the comments section at The Beat:

Considering that the Kirby Estate didn’t seem to have anything to lose by going to the Supreme Court, but Marvel/Disney had a lot on the line, I’m thinking (or hoping, at least) that this was a decent settlement for the Estate. Given the timing — if the Supreme Court had chosen to hear the case, no settlement would then be possible — it virtually has to be a deal spurred on by the side that doesn’t want the case to go to the Court.

However unlikely onlookers think it might be that the Court would take up the case, and however corporate-friendly the Court may seem to be, the stakes are very high, and a settlement may have seemed a better plan than rolling the dice.

Busiek, of course, doesn't have any inside knowledge of the case, but I find he's been extremely knowledgeable about the facts and issues involved.

Mark Evanier -- who does have inside knowledge of the case -- started off this morning by joking that he can finally finish his Kirby biography, and then added, in a second blog post:

If you're coming to this page in search of details and commentary, you've come to the wrong place. I will be saying nothing about it other that I am real, real happy. And I'm sure Jack and his wife Roz, if they're watching this from wherever they are, are real, real, real happy.

I noted, back in a 2013 post about Archie v Penders, that the thing about settlements is that their terms are typically confidential. It's likely that we'll never know the precise details of the Kirby settlement. (If I were a betting man, I'd say Marvel probably agreed to give them the same profit-sharing deal that it gives current creators -- but that's just a guess, and it's worth what you paid for it.)

One thing we will know is whether the settlement involves more prominent creator credits for Kirby. Marvel's creator credits have been inconsistent up to this point -- the original 2002 Spider-Man movie has a "Created by Stan Lee and Steve Ditko" credit right upfront, and Agents of SHIELD credits Lee and Kirby at the top of each episode, but other movies have buried creators' names at the bottom of the end credits under a nebulous "special thanks" section. I expect from here on in we'll be seeing much more prominent "Created by Jack Kirby" credits in comics, movies, and TV shows. Guess we'll know soon enough.

And speaking for myself -- I guess my boycott's finally over.

Which is good, because that Mike Allred Silver Surfer sure looks great.

It's Marvel v Kirby, not Kirby v Marvel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Marvel's Statement of Purpose

I'm in the home stretch of Sean Howe's excellent Marvel Comics: The Untold Story, and this quote from the beginning of chapter 17, I think, sums up what's wrong with the company in a nutshell:

The Los Angeles Times, CNN, and USA Today all chimed in about Liefeld, Lee, McFarlane, and the other renegade artists who were standing up to big business. In response, Marvel president Terry Stewart made a statement that "the importance of the creative people is still secondary to the (comic book) characters," a stance that hardly discouraged Marvel's new image as a corporate overlord.

(Brackets in original.)

Howe comes back to this point in chapter 19:

In June 1994, Frank Miller paid tribute to Jack Kirby, delivering a keynote speech at an industry seminar in Baltimore. [...]

Marvel Comics is trying to sell you all on the notion that characters are the only important component of its comics. As if nobody had to create these characters, as if the audience is so brain-dead they can't tell a good job from a bad one. You can almost forgive them this, since their characters aren't leaving in droves like the talent is. For me it's a bit of a relief to finally see the old "work-made-for-hire talent don't matter" mentality put to the test. We've all seen the results, and they don't even seem to be rearranging the deck chairs.

Creators who complained about defections to Image and other companies, he continued, were "like galley slaves complaining that the boat is leaking." The age of company-owned superhero universes -- the Jack Kirby age -- was over. "It's gone supernova and burned itself out, and begun a slow steady collapse into a black hole. We couldn't feed off the genius of Jack Kirby forever. The King is dead, and he has no successor. We will not see his like again. No single artist can replace him. No art form can be expected to be gifted with more than one talent as brilliant as his. It's a scary time because change is always scary. But all the pieces are in place for a new proud era, a new age of comics. Nothing's standing in our way, nothing too big and awful, nothing except some old bad habits and our own fears, and we won't let that stop us."

The crowd rose to its feet.

(Ellipsis mine.)

Miller was right in some ways and wrong in others.

The bottom fell out of the market soon after, for both Marvel and Image. Jim Lee is now one of the Editors in Chief at DC; McFarlane and Liefeld have become punchlines (and so, for that matter, has Miller). Post-bankruptcy Marvel has done a pretty damn good job feeding off the genius of Jack Kirby -- in films. As for the comics, well, they're selling decently enough but are, at this point, largely the R&D branch for upcoming Disney movies.

Marvel still believes the creative people are secondary (and that's giving them the benefit of the doubt). Marvel is wrong.

Yes, Iron Man is more popular now than he was during Jack Kirby or Don Heck's lifetime. That's not just because Iron Man's a great character -- though I happen to think he is --, it's because of Robert Downey Jr, and Jon Favreau, and Gwyneth Paltrow, and Jeff Bridges.

When you think the characters are primary and the creative people secondary, you get a film like Daredevil. Or, at best, Fantastic Four. Compare the numbers -- and you'll forgive me from switching over to DC for this, but they've got a much longer history of film franchises -- compare the numbers from Batman and Robin to the numbers from The Dark Knight, or the numbers from Superman Returns to the numbers from Man of Steel, and tell me that the characters are more important than the creative people.

And that, of course, is just looking at it from a mercenary standpoint -- because really, that's what Marvel as a company cares about. That's not even getting into quality. My unsurprising opinion is that you're a lot likelier to get a high-quality film or comic when you've got high-quality creative people working on it.

And Marvel's policy of treating its characters as primary and their creators as secondary has resulted in fewer and fewer original characters added to its stable. Sure, lots of creative people still love to play in Marvel's sandbox -- and then save their original ideas for creator-owned work.

Take a look at the characters who've starred in films or TV shows over the past couple of decades. Superman and Batman are from the 1930's. Green Arrow and Captain America are from the 1940's. The Fantastic Four, Spider-Man, Iron Man, Daredevil, and the Avengers are from the 1960's. The X-Men are also from the 1960's, though their most popular character, Wolverine, is from the 1970's. Blade, Ghost Rider, and Swamp Thing are from the 1970's too (and so is Howard the Duck, if you really want to bring that up). The New Teen Titans, Elektra, the Tick, the Teenage Mutant Ninja Turtles, and the Mystery Men are from the 1980's. Static, Spawn, Hellboy, and the Men in Black are from the 1990's. The Walking Dead started in 2003, Kick-Ass in 2008.

It's not an exhaustive list (see Nat Gertler for that), but it's an eye-opening one. Marvel and DC have a strong library of characters -- from decades ago. Most of the successful new characters, though, are creator-owned.

But hey -- Disney's biggest franchises are already from the 1920's to the 1950's (and many of them are based on public-domain material that's a lot older than that). Disney doesn't need to create new product. When the copyrights to the first Mickey Mouse cartoons come close to expiring, Disney can bribe Congress to extend them. If Disney needs to add new material to its portfolio, it can buy a company like Pixar or Marvel.

And as Disney's purchase of Lucasfilm and, to a lesser extent, Viacom's purchase of the Teenage Mutant Ninja Turtles, shows, even the most successful creator-owners eventually want to retire and are willing to part with their works.

Star Wars -- hm. Maybe I have found an example where the characters are more important than the creator.

Course, that's just because he was ripping off Jack Kirby.

Quantum and Woody and Complex Feelings

Quantum and Woody was something I loved when I was a teenager -- and then it went away. 13 years later it shows back up, but under less than ideal circumstances. It's not the book I remember, and I don't know if I should be happy it's back or pissed about it being something less than what I expected and hoped for.

Even if you've never read a Quantum and Woody comic before, I'm guessing that the previous paragraph was suitably unsubtle that you realized it was a metaphor for the plot of the comic.

I posted about the status of Quantum and Woody previously. The gist: the original comic was published by Acclaim, and the creators, Christopher Priest and Mark Bright, had a reversion clause in their contract that should have allowed them to buy out the copyrights to the comic after it went out of print. But Acclaim went bankrupt and the rights were sold at auction instead. They were eventually bought by a new company, Valiant (which takes its name from the Valiant Comics that Acclaim bought out in the first place, but is not the same company), which has opted to start a new series written by James Asmus and drawn by Tom Fowler.

Priest has said nothing about the new series, and Bright has said little -- but he did say that their relationship with Valiant is "amicable", and that was good enough for me to go ahead and pick up issue #1 of the new series.

It's...well, it's good, but it's not as good as the original.

First of all: it's not very funny.

I mean, I laughed a few times. But the biggest laugh was at a running gag from the old series. Technically it still counts as a joke -- they're invoking a running gag, not merely doing a Family Guy-style "Hey, remember that thing from that other thing?" -- but it's not Asmus and Fowler's joke, it's Priest and Bright's.

And the whole thing feels a little like that, really. The book doesn't just borrow the premise of the original, it borrows Priest's specific storytelling techniques -- it's got chapter titles with white text against a black background, and it jumps around and tells the story out-of-sequence. Yes, that's one of the things the original Q&W was known for -- but it wasn't a Q&W thing, it was a Priest thing. He used the same technique in Black Panther and Deadpool. For my tastes, this strays a little too far from the notion of a loving homage to the original series and too close to stealing another guy's bit. It's uncomfortable.

And it's also absurd, given that Valiant chose not to ask Priest and Bright to do the new series themselves, ostensibly because they wanted to do something different, that the new book hews so close to the old one stylistically.

And yet, for all that, page 2 passes up a perfect opportunity to use "noogie". What the F-word? I just don't understand how Asmus can crib so shamelessly from the original series (and Priest's general comics vocabulary) and yet draw the line at noogie, of all places.

...okay, that got a little inside baseball. Point is, the book, at its worst, feels like a cover tune that's uncomfortably close to the original without ever hitting the same notes quite right.

But at its best?

It's got heart, man.

Asmus may not have a good grip on Priest's gift for satire -- and couldn't get away with his brand of pointed commentary on race in America even if he did -- but what he does get is the relationship between the leads. It's real and it's raw -- these are two guys who really do love each other (but they're not a couple) but are so fucking furious at each other over something that happened a long time ago that it takes a near-death experience to even acknowledge it -- almost.

Asmus gets that. And it just so happens to be the emotional core of the book. More important than the jokes, and certainly more important than "Hey look you guys we put the goat on the cover!" -- it's the heart.

Aside from that, the plot actually hews pretty close to the original, despite an important change in apostrophe placement -- now, Eric and Woody are reunited after their father's murder, not fathers'.

That's been the change fans of the old series have been most nervous about -- well, the story change that fans of the old series have been most nervous about. But it works.

Ultimately, Eric and Woody's fathers weren't important to the original story; they were the McGuffin that got everything started, but we knew less about them than we knew about Uncle Ben (and only slightly more than we knew about Thomas and Martha Wayne in the original version of Batman's origin). Woody's father is only important because he's what got him to come back to town -- it's his mother who we see is mostly responsible for what shaped him as a child, for better or worse.

And all that would seem to be intact -- in this version, Eric's father took Woody in as a troubled foster child. And, while the circumstances of Woody's departure from the family are left as a mystery for now, I wouldn't be surprised if they were similar to what happened in the original series: he went to live with his mom, things went south fast, and he wound up living on the streets.

All of which is still entirely possible if Mr. Henderson was his adoptive father. Mr. Van Chelton is completely unnecessary to the story.

Through all this chatter, I guess I've focused on Asmus's writing over Fowler's art. Fowler's art is like Asmus's writing, I suppose -- it's solid but it hasn't blown me away, and unfortunately a whole lot of it seems to be just recreations of scenes from the original series (like the opening of Q&W falling out a window while the news media mock them).

Still -- it's good. It's not what I'd hoped for, but it's not bad.

It's good enough that I'll pick up #2. And hope that this generates enough interest that maybe someday we'll see something new from Priest and Bright. New Quantum and Woody, the release of the completed-but-unpublished issues of the original series, or something else entirely -- it doesn't matter, I'd be happy to see anything by them that I haven't seen before.

Because that's the real point, here -- yeah, I like Quantum and Woody. But not nearly as much as I like Christopher Priest and Mark Bright.

Go, Ken, Go! -- Part 5: Settlement!

For my previous coverage, check out the Ken Penders tag. In particular, the first post has a relevant disclaimer that (1) I tend to side with creators over publishers generally and (2) I corresponded with Ken Penders in the 1990's and he was a nice guy.

Anyhow, looks like I'm a bit behind on this, but last week brought the biggest news yet: per TSSZ News, Archie and Penders have settled and the suit has been dismissed.

What I predicted in Parts 3 and 4 still holds: we'll learn some of the terms of the settlement in the coming months (we already know Ken is moving forward with The Lara-Su Chronicles so I think we can safely say he has the rights to publish original comics with Lara-Su in them); some will stay confidential. Penders v Sega and EA is still ongoing, though this puts him in a better position as it establishes that he does have standing to sue for infringement, even if it still has to be established that Dark Brotherhood infringes his copyrights.

I think it's also safe to say that Ken would be happy for Archie to continue using his characters and reprinting his stories -- so long as they pay him his share for that use. And that if, say, the echidnas stay lost in that warp ring, that's Archie's decision not to pay Penders, not Penders's decision not to let Archie pay him.

But I think there's something much bigger coming.

Penders wasn't the only guy freelancing for Archie's Mamaroneck office in the mid-1990's. And he wasn't the only guy doing it without signing a contract first.

There are potentially dozens of other Sonic alums who have been watching this case and waiting to see if they've got a shot at winning their rights back, too. Scott Shaw has already filed for copyrights on his Sonic work. He won't be the last.

Archie v Penders is over. But this is only the beginning.


Update 2015-09-24: And Penders v Sega is over too; it was dismissed in 2014. I discuss it more in Part 6.

As for Scott Shaw and other creators seeking to reclaim their copyrights in the same way that Penders did, I haven't heard any news on that front, though I suspect we won't; given how the Penders case turned out, Archie is unlikely to file any more lawsuits, and I suspect that if other creators raise similar challenges Archie will settle with them quietly without getting the courts involved. It is possible that this has already happened, though it's likely that we'll never know.