The Curse of Santayana

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Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.

George Santayana, The Life of Reason, Volume I: Reason in Common Sense

SSSuperman The Curse of SantayanaOver thirty-five years ago, a major comics company was set to release a Hollywood blockbuster based on one of their most popular characters.  The original creators had been forgotten by the public, forced into near poverty while that company made millions of dollars in profits.  It took a publicity campaign by comics professionals to persuade that publisher to acknowledge their proper credit, and to pay a stipend to those creators.

Today, history repeats itself once more.  This time, the company is Marvel Comics.  The creator: Gary Friedrich, who has filed a copyright lawsuit against Marvel to reclaim his creation Ghost Rider.  Daniel Best reports on the current state of the suit, which was recently decided in Marvel’s favor.

What makes it unsettling is this:

As per the courts instructions Friedrich has to account for any and all money that he has received, “…relating to the gross and net amount derived from Plaintiffs’ sale of goods bearing the Ghost Rider image, likeness, or Marvel trademark.” This means that Friedrich has to account for every cent each and every time he sold a print at a convention or any other item to anyone, that has the Ghost Rider image or name on it, and he has to account to all of the defendants in the case, and there’s quite a few of those, including, but not limited to, Marvel Defendants, Movie Defendants, Hasbro, Inc. and Take-Two Interactive Software, Inc. If the defendants don’t like, or don’t agree with, the numbers that Friedrich supplies then they can, and probably will, ask for a deposition whereby they can question him, under oath. It was no secret that Friedrich commissioned artists such as Herb Trimpe, Arthur Suydam and others to draw Ghost Rider images which were then sold as prints over the years. If you bought one thinking you were helping Gary, well, that cash will most likely end up in Marvels pockets. This amount will be factored into any damages that the defendants can claim from Friedrich, all of which will be bundled up neatly into a final judgement so the case can then proceed to the appeal stage.

gary friedrich The Curse of SantayanaWhat makes this worse: Gary Friedrich is currently unemployed from his corporate courier job (Joe Shuster was a deliveryman with failing eyesight, Jerry Siegel a file clerk when they could no longer make a living making comics).    Friedrich also has health issues, which make it difficult for him to travel to attend any settlement conferences.  In the attorney’s letter to the judge asking for a teleconference (denied by the judge), the law firm states that they are already owed $100,000 in legal fees for this case.

This lawsuit was first filed when the original Ghost Rider movie was released in 2007.  That movie grossed $228,738,393 worldwide. With licensing of ancillary products, Marvel made quite a bit of money.  On February 17, 2012, the sequel, Ghost Rider: Spirit of Vengeance will be released.

Marvel could do the right thing and settle the case, which they won, by offering an equitable settlement, an annual stipend, perhaps even some sort of consulting role.  Would they?  It’s unlikely.  (For every Dave Cockrum, there’s a Marv Wolfman.)  Could a media campaign geared towards embarrassing Marvel, Sony, and a certain celebrity comics fan starring in the movie help convince Marvel to Do What Is Right? I don’t know… but it would be fun to find out!

To every comics creator who has Worked For Hire, and has sat behind a table in Artists Alley: you may one day be forced into an accounting not unlike the metaphorical Final Judgment, although much more painful.  Every fan sketch you draw, every print you sell, of a copyrighted and trademarked corporate character could and probably will be used to numerate damages awarded to that company.

James Bond Con Sketch by gattadonna 200x259 The Curse of Santayana

The first result under Google image search for CON SKETCH

Yes, that’s the sleeping tiger in the room when comics creators rant and rave over swipe artists and plagiarists:  EVERYONE who draws a character they do not own is engaged in some sort of illegality.  Most companies allow this to happen, partly because actual licensing is problematic, partly because it would be bad publicity to enforce, partly because it encourages creators to show up at cons and participate in corporate-sponsored publicity (panels, booth signings, media interviews).  That “paper tiger” you think is harmless… well, paper can be quite nasty, as the courts prove every day.  Don’t think it could happen to you?  What if a giant corporation wanted to punish an artist?  A simple copyright/trademark infringement suit is all it takes.  Grab a few sketches sold on eBay, or pay a kid to purchase a sketch at a con (just like those underage buyers of cigarettes and beer) with a “father” making a video with his smartphone , and the case is quite simple.  No need to negotiate a settlement… you ruin the creator with court fees, an audit not unlike one from the IRS, and awarded damages.  AND they cannot ever draw those characters ever again.  If the company is really devious, they issue the artist’s work as legitimate merchandise, then cause more heartache when a fan asks the artist to sign the poster/print/book.

Then the company “encourages” other artists to join the official “bullpen” at conventions, an “Artists Alley” which is part of that company’s booth.  The artist gets a free table, airfare, hotel, and money from sketches; the company gets an artist who draws every hour of the con, which brings people to the booth, plus they sell con-exclusive blank-cover variants for a premium which the artist then sketches on!  (Or they sell trades!)  Convention organizers probably make more from selling corporate space than from Artists Alley tables, so they wouldn’t care.  They would probably encourage this, as the publisher would then supplement the guest list which the convention could then publicize.

Sound crazy?  Boom! Studios does this quite frequently.  Amy Mebberson sketched hundreds of Muppet covers at conventions when she was a Muppets comics artist.  Boom’s Disney comics artists did the same thing.  If I remember correctly, the special comic cost $5, the sketch $10.  It was beneficial to both artist and publisher, as the artist had greater visibility at the publisher’s booth, while the publisher was able to sell more comics and trade collections.  (Not unlike an author signing at a bookstore, except that the artist sits behind the table for hours each day.)

Creators, keep a detailed paper trail.  Keep a journal, especially when creating new characters.  At conventions, have an assistant note what is commissioned and for what amount (and report it as income… you don’t want an IRS audit as a result of not reporting income discovered from the court ruling!)  Copyright is also important, and quite simple and inexpensive to file.  Know not only what you need to know, but also what could happen.

Because history repeats itself, forcing us to do it over and over until we get it right.

[Hat tip to Stephen Bissette's Facebook page.]

Comments

  1. Are those FUCK MARVEL t-shirts still available somewhere?

  2. “EVERYONE who draws a character they do not own is engaged in some sort of illegality. ”

    That’s not true on several levels. Trademark covers only certain categories of effort. Copyright has some broad exceptions, particularly for transformative works, which sketches often can be. And some characters which one does not own are owned by no one. This isn’t to say that selling a mass-reproduced print of a trademarked character from copyrighted works doesn’t step over the line, but there is plenty of case law that shows that the line is not as clear as you claim.

  3. Non-compete contracts have traditionally been limited by a strong public policy against depriving people of their livelihoods. It’s about time this policy was both strengthened and applied to copyright cases like this.

    In the meantime I am fed up to the teeth with the psychopathic clowns running our corporate culture, buying our government and destroying this country. These damn twits not only want to plunder with impunity, they want their victims to bow down and worship their damn greed like it’s a pagan idol.

    Marvel, go to hell.

  4. Hikaru says:

    Is it really surprising? Everyone should have seen these things coming from a mile a way when Disney bought Marvel. Their lawyers basically invented modern copyright law.

    Ugh…Corporate owned comics are turning into the goddamn music industry…except rock stars in comic books are middle class at best.

  5. John Byrne may be in trouble !!! At least he posts all his illegal works to his website – be easy to do the math on ho much he owes Marvel and DC.

  6. Scott says:

    Makes it easy to continue to not buy Marvel comics. Even easier to go look for some Ghost Rider torrents after I click submit.

  7. jacob lyon goddard says:

    How can I help, and how can I prevent this from happening to anyone else?

  8. People should look into this story more before taking sides. All people see are an evil corporation and a poor defenseless artist. A quick web search of articles reveals some alcoholism, a conflicting artist account from the man who first drew ghost rider and a standard work for hire scenario. Who knows who is telling the truth here. It’s not as obvious as Siegel and Shuster creating Superman.

  9. Bytowner says:

    Mr. Gertler, my suspicion is that now that Disney owns Marvel, Marvel is required to help overturn that case law in Disney’s overall favour wherever possible. In as many nations as possible.

  10. jacob lyon goddard says:

    How can I help, and how can I prevent this from happening to anyone else?
    The possibility of the creator’s drinking be damned.

  11. Torsten Adair says:

    The one thing I want readers to note is the penalty quoted above. Everything else is secondary (but important).

    Every artist who sketches copyrighted characters can be brought to court. Would the case be decided as Mr. Gertler mentions above? Possibly. But how many artists can afford representation or the loss of productivity? What if, in the discovery phase of the trial, or during the trial, it is discovered that the artist didn’t report convention income? Ignoring the possible audit, can an artist find the money to pay the back taxes and penalties?

    What chilling effect does that have on Artists Alley? What if every company started licensing artists, like Lucasfilm does? What if a company requires exclusivity, so one can only draw certain characters? What happens when a corporation sends out copyright cops to patrol Artists Alley for compliance?


    What can you do in this particular case? You can organize and try to shame Marvel.
    You can vote with your pocket change.
    You can ask Marvel questions at convention panels.

    In general, you can volunteer at: http://www.heroinitiative.org/
    which helps comics creators in need.

  12. Jerry Smith says:

    The system sucks, but it is the system. I don’t think Marvel has a moral obligation to do squat. But don’t they realize the PR volcano they would ignite if they announced they were doing the right moral thing? Help Gary Friedrich. Give to the Kirby family. Admit their is no legal obligation, then do it anyway.

    Do they dislike positive publicity?

  13. Earth-2 Chad says:

    I don’t think Marvel has a moral obligation to do squat.

    Really? I think they have no legal obligation to do anything, but a HUGE moral obligation.

    On what planet does it make sense that Gary Friedrich, or Len Wein, or Marv Wolfman, or anyone who created these characters gets zero from the millions made off their characters, when it would do almost nothing to Marvel’s bottom line to toss them some share of the profits?

    But I agree with you that the positive publicity would be HUGE if they stepped up to the plate.

  14. MBunge says:

    Uh, would any of this be happening if Friedrich hadn’t sued Marvel?

    Mike

  15. Earth-2 Chad says:

    Probably not. But would any of this be happening if Marvel had done the right thing and basked in the good publicity that would have generated? I’m guessing that giving Friedrich the lawyers’ fees alone probably would have helped him a great deal.

  16. Interested Observer says:

    Someone needs to talk to Roy Thomas about this case. I feel very sorry for Gary but he brought this on himself.

  17. Synsidar says:

    From Wikipedia’s guidelines for submitting artwork:

    Images of characters/objects/scenes in books are subject to any copyright on the book itself. You cannot freely create and distribute a drawing of Albus Dumbledore any more than you could distribute your own Harry Potter movie. In either case you need permission from the author to create a derivative work. Without such permission any art you create based on their work is legally considered an unlicensed copy owned by the original author.

    A search on drawing copyrighted characters showed that Disney is feared far and wide for enforcing its copyrights whenever it learns of infringements, even when they seem to be innocuous.

    SRS

  18. Jerry Smith says:

    You’re right, Earth-2 Chad, I misspoke. I meant Marvel had no “legal” obligation to help. They have every moral obligation.

  19. Bytowner says:

    Jerry: Marvel management may well realize it…but they answer to Disney now. And Disney will make Marvel play by Disney rules. Not anyone else’s.

    A reading of Cory Doctorow’s essay “When Love is Harder to Show than Hate” may be instructive here in what changes should be made in copyright/trademark law in our several countries.

  20. Mike L says:

    My question is why didn’t Friedrich try creating something new and leverage his status as the creator of Ghost Rider? Even if he didn’t feel up to actually producing the comics himself I’m sure he could’ve found a couple of hungry young creators to work with him on it. One of the smaller publishers at least might’ve seen the value of having that name connection with a relatively popular film . . . if the material had some sort of merit.

    Not saying this situation is right or that Marvel doesn’t have some kind of moral obligation, but did he really think this was going to work out in his favor, given how long these lawsuits tend to go on? Seems like it would’ve been more productive to put pen to paper instead of calling a lawyer.

  21. Horatio Weisfeld says:

    Am I the only one who considers that combining “moral” and “obligation” creates an oxymoron?

    Obligations can be found by following religion and a sense of morality (right and wrong) can be gained from living a life – a corporation does neither.

    Marvel can and will do as it please. It has no obligation.

    What Marvel chooses to do reveals the character of Marvel and the community of which it is part. There is nothing else to it.

    If you cannot accept this then you should not waste time posting here – you should spend your time searching for another dimension where you will be happy.

  22. Brett Canavan says:

    I think it’s time for the bigger companies to begin treating fairly the artists who made them big in the first place. Imagine hearing Gary say “Marvel cut me a nice 10 thousand dollar cheque when GR came out” or Marv saying “I get 1% of every dollar BLADE makes”. I remember speaking with JMS when they wanted him to do commentary on the BABYLON 5 DVD box sets – free. Why should he when everyone else is getting extra money? He only wrote & created the thing. Give them half a cent for each dollar the movie makes, if it flops, oh well, if it makes money, you have happy creators and more who might just want to work for you in the first place.

Trackbacks

  1. [...] Adair has a great post at The Beat that gives more details on Friedrich’s current situation and raises (as does the [...]

  2. [...] things might be escaping our attention. Over at THE BEAT last week Torsten Adair posted this very interesting piece on “creator dangers”. Definitely on my suggested reading list for anyone taking a career in comics seriously these days. [...]

  3. [...] particularly when rights are held by publishing companies rather than the music’s actual writers. In a recent outrageous case, the creator of the character Ghost Rider must account for any money he has made off of selling [...]

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