That time that comics didn’t die

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201308290335 That time that comics didnt die
For some reason, this post I wrote in February 2012 popped up on my feed; it was called Comics Crisis: Doujinshi Nation and at the time, people seemed to think that Gary Friedrich’s loss in his Ghost Rider suit—and Marvel’s subsequently telling him he owed them $17,000 for selling unauthorized Ghost Rider merch was viewed as maybe the beginning of the end of Artist Alley. Even at the time, people who worked at large corporations were telling me off the record that this probably wouldn’t happen, and so far, it doesn’t seem to. In fact, while the many worries about how to make a living in any creative field remain, the one thing I thought while re-reading it was that artist Ulises Farinas seems to work pretty steady now (including Judge Dredd, above). So maybe things have actually improved for a few people?

Comments

  1. Pedro Bouça says:

    Not making the connection here, sorry.

  2. Jeff Trexler says:

    It’s an interesting issue. Just yesterday I read a post by an artist who shall remain nameless concluding that commissioned work based on DC & Marvel characters is legal, since it happens all the time in Artists’ Alleys. Thing is, it’s it not so simple.

    There’s a law/norms thing going on here. Technically, under copyright law, drawing & selling these characters without a license is a violation of copyright. Yet what we’ve seen emerge is a culture in which DC & Marvel turn a blind eye to such sales if they are done in a certain manner – say, lacking certain trademarks, not mass marketed, no product tie-ins, no slash scenarios and so forth. Arguing that there’s an implied license probably wouldn’t win in court, but culturally that’s how it functions.

    Unlike in trademark law you don’t lose the copyright if you let this sort of thing happen, so it’s a low-risk proposition for DC & Marvel. In fact, given how many artists have been able to get a steady income from such work after drawing the characters for the companies, it serves as something one might factor into the decision when deciding to accept certain work–page rate and royalties might not be ideal, but there’s also the subsequent income stream from commissions to consider. One analogy might be signings and appearances by former TV & film stars associated with certain characters, a la stars of Star Trek and Doctor Who.

    It’s the sort of thing companies could write into a contract to sweeten the pot while setting boundaries. Either way, putting the hammer on Artists’ Alleys could substantially hurt PR and future business interactions, so on it goes. There’s law and then there’s what’s optimal within a given context–just became copyright law gives you a right to control reproductions/derivative works doesn’t mean you have to exercise it.

  3. Jeff Trexler says:

    That’s “Just because …”

  4. Synsidar says:

    Yet what we’ve seen emerge is a culture in which DC & Marvel turn a blind eye to such sales if they are done in a certain manner – say, lacking certain trademarks, not mass marketed, no product tie-ins, no slash scenarios and so forth. Arguing that there’s an implied license probably wouldn’t win in court, but culturally that’s how it functions.

    Porn versions of Marvel and DC characters, in both artwork and in prose stories, are pretty widespread. As far as I know, neither company has ever tried to eliminate them. One reason might be that the results wouldn’t be worth the expense; another might be that the artwork and stories actually promote sales of the comics. In an industry with minimal marketing, they might figure that any marketing is better than none.

    SRS

  5. Jeff Trexler says:

    One theory re porn versions – and I think there would be a difference between a porn version by a third-party company and porn images by, were he still with us, Curt Swan at a convention – is that the companies are letting ‘em go because they don’t want to risk a precedent officially recognizing them as parodies. That would take the sting out of C&Ds you don’t see or enforcement efforts vs. slash images at cons.

    (Some conventions have anti-piracy security circulating the floors to get stuff like that pulled. I once struck up a conversation with a con badge-wearer in an elevator & it turned out to be an anti-piracy monitor going to a team meeting. Fascinating stuff.)

    There’s also the Streisand effect + an aggressive argument to be made re trademark, given the long history of non-enforcement re this kind of the thing. Were one of the parodies to go the full Deep Throat — lines around the block at theaters, a must-view on Netflix – the stakes would likely get high enough that non-enforcement could tarnish the brand even more.

  6. I think using phrases like “Unlike in trademark law you don’t lose the copyright if you let this sort of thing happen” leads people to keep thinking that an unacknowledged trademark infringement leads to some kind of automatic loss of your trademark protection. Not that it matters too much, but this seems to be the prevailing misunderstanding in “Fan Court.”

    Failure to police is just one test a judge would use to decide a trademark lawsuit — something extraordinary would have to happen to make a single bootleg Spider-Man mini-comic lead to Marvel losing its Spider-Man trademark.

  7. Jeff Trexler says:

    Jesse, “fan court” notwithstanding, a brief note in a comment in a post is simply not a place for me to go into all the possible caveats. The potential consequences of not policing a mark go into decision-making on a regular basis – I could tell you some interesting stories in that regard, but alas, some of the best ones are confidential, so I’ll just note the fun of being a lawyer for Kleenex.

  8. Torsten Adair says:

    Hmmm…. We’re seeing an influx of the general public (via Hollywood) to comics conventions.

    Will unlicensed Artist Alley drawings become an embarrassment to publishers like the costumed street performers in Times Square?

    What happens when someone deliberately and publicly flaunts the gentleman’s agreement that currently is in place?

  9. Jeff Trexler says:

    Torsten, those are the big questions. All it takes is one or two kerfuffles to spark systemic change. Imagine a 17-year old dropping some coin for a risque image and then getting busted by his or her parents. Or a middle-aged guy commissioning a Wally-Wood-does-Disney take on the Teen Titans. The wrong person, the wrong time & there’s pressure to shut the practice down or at least to formalize the boundaries.

    This may not be as imminent as the manga-prosecuted-as-child-porn issue I started warning folks about years ago, but the risk is there.

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