The Legal View: Could Alan Moore regain the WATCHMEN copyright?

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alan moore The Legal View: Could Alan Moore regain the WATCHMEN copyright?
By Jeff Trexler

Today Bleeding Cool noted Section 203 of the Copyright Act of 1976, which provides that in 2013 authors may terminate a copyright transfer or license for work created on or after January 1, 1978.  [link: ]

Who knew?

In his post, Rich Johnston goes on to wonder whether Alan Moore could eventually terminate the Watchmen transfer from 1985. Commenters argue that this is absurd, but depending on the contract Moore could actually re-claim his share of the property.

Like the Siegel heirs, creators of post-1977 properties have a legal basis for taking back the copyrights in their original properties. As with the rights of earlier creators, Section 203 termination rights do not apply to works for hire.

Without a copy of Moore’s Watchmen contract it’s not possible to assess the situation with absolute certainty, but there are indications that the contract might not classify Watchmen as work-for-hire. The biggest tell–the alleged provision that the rights will revert to Moore & artist Dave Gibbons after Watchmen goes out of print.

A finding that Moore did indeed transfer the Watchmen copyright to DC in 1985 would appear to give him a clear right to take it back as of 2020, but there are a few additional things we need to consider.

First, if the 1985 contract did indeed treat Moore and Gibbons as co-creators, Moore would likely not be able to re-claim all of the copyright for himself. Just as Siegel and Shuster each had 50% of the original Superman copyright, Moore and Gibbons could be co-owners of Watchmen. 

In short, Moore could not on his own keep Watchmen out of public circulation. As co-owner of a joint work, Gibbons would also have a legal right to sell or license the property without having to get Moore’s permission, provided that he accounts for Moore’s share of the profits. 

Next, it should be noted that the contract could also give DC an ongoing share of the property. Let’s suppose for the sake of argument that the property was established to be a derivative work of the Charlton characters owned by DC. Moore and Gibbons would own their original material, but DC would also retain ownership of the portion derived from the Charlton characters.

Finally, we need to remember that Section 203 places significant constraints on a co-owner’s termination rights. For example, it can be argued that if the transfer or license was made by two or more authors, the termination may be made only with the agreement of a majority of the co-owners.

In other words, if Moore and Gibbons are equal co-owners and, say, DC makes Gibbons an offer he can’t refuse, Moore arguably would not be able to terminate the transfer by himself. Still, there is also an incentive for Gibbons to agree to pursue termination–he could maintain public goodwill and any relationship with Moore without losing his right to enter into a side-deal with DC or another company.

Of course, all of this would be moot were Moore and Gibbons to miss their window for filing their termination claim. Inasmuch as there’s a possibility they could have had a right to file such a claim as early as 2010, one would expect that their respective attorneys have at least explored their options.

For more on Section 203–especially if you’re someone who created a comics-related property after 1977–the Author’s Guild has a useful guide.

Comments

  1. Shags says:

    “Still, there is also an incentive for Gibbons to agree to pursue termination–he could maintain public goodwill and any relationship with Moore…”

    Except that Gibbons has already burned his bridge with Moore and Moore has clearly stated he doesn’t want the rights back: http://www.seraphemera.org/seraphemera_books/AlanMoore_Page3.html

  2. Jeff Trexler says:

    @Shags The currently cindered bridge is why I chose the words “any relationship.” Given time and exposure to enough episodes of My Little Pony, things could change.

    Also, just to clarify–the focus of the post was “could” not “would.” If Moore’s personal preferences are a distraction, view it as a legal thought experiment with possible applications beyond Moore himself.

  3. Obviously, I haven’t seen the contract, but judging from Dick Giordano’s statements about DC reversion clauses way back in TCJ 119, Moore may be in error when he says the rights revert when Watchmen goes out of print. According to Giordano, the reversion clauses say (or said) creators can apply for reversion when the property stops generating income for a year. It’s not the same thing, as any money from licensing (such as movie residuals) would prevent the contractual reversion process from starting even if the comics went out of print. That type of deal would make a lot more sense for a company such as DC, which has traditionally made far more money from licensing than comics publishing.

    To the best of my knowledge, though, this doesn’t have any bearing on termination rights.

  4. People can change their mind. That’s (on some level) what the reversion clause is about.

  5. Jeff Trexler says:

    @Robert Stanley Martin – Useful info re the contract. Re the termination rights, I agree–a provision such as this would still have reversion language and all that it implies (namely, that it wasn’t work-for-hire but a copyright transfer/license), whatever the reversion trigger.

    Assuming Giordano’s description is correct, honestly, I’m surprised anyone thought that reversion would ever be a real option. Given how long the Charleton characters had survived, you’d figure that DC would find a way at least to keep the trademarks viable for a few decades to get a decent return on investment. Even apart from the rest of the story, the Comedian’s blood-spattered smiley badge was a licensing natural.

  6. @Jeff “Given time and exposure to enough episodes of My Little Pony, things could change.” I can’t disagree with that.

  7. Doc Arkham says:

    I find this scenario interesting when applied to a similar comic-related situation – that of Jeff Dee & Jack Herman, the creators of Villains & Vigilantes (arguably the first popular superhero role-playing game), and it’s original publisher, Fantasy Games Unlimited. The two parties have been in a struggle for the last couple of years over the rights to the game since the Internet revived interest in the property.

  8. Fortran Max says:

    Hey, AFAIK, it doesn’t matter because Moore has washed his hands of Watchmen and given Gibbons carte blanche in his dealings with DC (even though neither DC nor Gibbons need it, by all accounts). I don’t see how the situation would change at all. If Moore wanted to fight for a 50% stake in Watchmen he’d probably be fighting for a 50% stake in Watchmen, given how much money it’s made.

  9. Re: The Comedian’s Smiley badge: I wonder how much DC is paying the guy who invented the original smiley (w/o the bean juice). IIRC the owner of that has been suing left and right.

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