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Harvey Kurtzman Estate and Al Feldstein File to Regain Copyrights to 1950s Comics

Haunt of Fear #8 ©1951 William M. Gaines.

The Journal has learned that legendary EC writer/editor Al Feldstein and the estate of Mad editor/cartoonist Harvey Kurtzman have filed notices to reclaim the copyrights on their work. Feldstein confirmed the filing and told the Journal he has already reached a settlement with the William M. Gaines Agency, which owns all the EC horror, science-fiction and crime properties that Feldstein worked on as editor and writer in the early 1950s. Those titles include the classic Crypt of Terror, Vault of Horror, Tales from the Crypt, Haunt of Fear, Weird Fantasy and Weird Science. Gaines agency administrator Dorothy Crouch confirmed the agency has reached an agreement with Feldstein, but declined to comment further.

Harvey Kurtzman was the mastermind behind the launch of Mad, which began life in 1952 as a comic book before changing to a magazine format with its 24th issue in 1955. Literary agent and publisher Denis Kitchen confirmed that papers have been filed to reclaim the copyrights for the Kurtzman estate. The Gaines agency no longer owns Mad, however, having sold the property to Time/Warner/DC. Kitchen told the Journal the relevant parties are in early stages of negotiation, but declined to make any further public comment.

The claims filed by Feldstein and the Kurtzman estate are based on the Copyright Law of 1976, the same law that allowed Jerry Siegel’s estate to reclaim its share of the Superman copyrights. The law was intended to address the fact that, over the years, the terms of copyrights have been extended again and again, giving them a value far beyond the compensation originally paid to authors. The extensions have kept properties like Mickey Mouse from falling into the public domain. When Siegel and Shuster sold their rights to Superman, the initial term of a copyright was 28 years. When that term expired, the copyrights could be renewed for another 28 years. The Copyright Law of 1976 and the 1992 Sonny Bono Copyright Term Extension Act allowed copyright terms to be further extended, but provided that authors could reclaim their copyrights whenever they came up for renewal by the corporate owner.

That opportunity, however, is only extended to authors who created the property independently and then sold the rights. If a property is created under the direction of an employer, then it is considered work for hire and the employing company is considered the “author” of the work for copyright purposes. In recent cases, creators or their estates, including Marv Wolfman and the Jack Kirby estate, have found it hard to prove their work was created beyond or outside the terms of their employment. Even Siegel’s estate, which obtained a ruling in its favor in 2009, is still fighting appeals by Time/Warner/DC.

The papers filed by the Kurtzman estate call for the termination of DC’s copyrights for the entirety of Mad #1-7.  The termination of the copyrights on issue #1 is to take effect in July of 2013, with the terminations for each subsequent issue taking effect every two months until the rights assignments for issue #7 are terminated in July of 2014. All such terminations are pending the outcome of negotiations. The Journal asked Time/Warner/DC about its legal position regarding the Kurtzman copyrights, but the company declined to comment.

Feldstein told the Journal his filing covered “everything I did for them [EC]” prior to the Mad issues that Feldstein took over editorially from Kurtzman. His work from that period was excluded from the claim, he said, because he was by then an employee of EC. According to Feldstein, at the time he was editing the EC horror, science-fiction and crime books, he was a “subcontractor” and the same was true of Kurtzman when he launched Mad. “There was a stamp on the backs of our checks that gave the copyrights to Gaines and EC,” he said.

Feldstein’s settlement with the Gaines agency entitles him to a percentage of the agency’s income from his EC work. He described the percentage as “small,” but said the settlement also allows him free use of his EC art and scripts for his upcoming autobiography, which had been a major goal of his negotiations. “They were saying I was an employee [at the time of the EC work],” he told the Journal, “and I didn’t have the money I’d need to bring a full suit against them. It would’ve cost an awful lot of money to go to trial with it. Most of the cream was already off the crop anyway.” Feldstein identified that cream as the money received by EC for licensing rights to HBO for its Tales from the Crypt series. Since the copyrights were held by EC, Feldstein and the other EC creators received no share of those profits.

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71 Responses to Harvey Kurtzman Estate and Al Feldstein File to Regain Copyrights to 1950s Comics

  1. Scott W says:

    Does this affect Fantagraphics reprints of EC material?

  2. bkmunn says:

    I’m sure DC/Warner would love to return the copyrights on the first issues of Mad to the Kurtzman estate. This should be speedily resolved to everyone’s satisfaction.

  3. R. Maheras says:

    Why should the estates of Kurtzman and Feldstein get the copyrights? What about Davis, and the estates of Wood, Frazetta, Kamen, Krigstein, J. Severin, Williamson, Craig, Elder, Evans, Ingels and everyone else?

    The artists deserve an equal share of any comic book copyright as well. Without the art, no comic book exists.

    If their copyright claims are only for work they wrote, penciled and inked, then fine. But I suspect that isn’t the case.

  4. Let’s recapitulate the dreary, obnoxious debates that fanboys have whenever this comes up in superhero comics! I’ll get us started: man, what did Harvey Kurtzman’s estate ever create? Anyway, Kurtzman and Feldstein knew what they were getting into, they were fairly compensated for their work, etc. etc.

  5. Robert Stanley Martin says:

    If Kurtzman put together the MAD and war comics without any input or direction from Gaines, paid the artists and any outside scriptwriters out of his own pocket, and was free to take the material to other publishers if Gaines rejected it, then the law says his estate is entitled to terminate and reclaim the copyrights.

    However, if, as I’ve always understood, Gaines hired Kurtzman to put together the comics, cut the checks to the artists and other contributors himself, and was entitled to sit on any material he didn’t publish, then the Kurtzman estate can expect a summary judgment against them if this ends up before a judge.

  6. Andrew McIntosh says:

    I’m pretty sure transfer of ownership can’t affect contracts already signed. But then, I’m neither a lawyer, nor American.

  7. Robert Stanley Martin says:

    Caveat: I’m not a lawyer, this is a layperson’s opinion, etc.

  8. Mike Rhode says:

    Excellent catch for a story, Michael

  9. R. Fiore says:

    Kurtzman had a more than ordinary case for owning the material due to the detailed layouts he provided to the artists. Feldstein has already settled, recognizing the difficulties and ambiguities of the case, so the question is moot. Both could claim to own the underlying stories, since they wrote detailed scripts.

  10. James says:

    I was going to say wait for it, but the anti-artist already struck

  11. Pingback: Comics A.M. | Feldstein, Kurtzman estate seek to reclaim EC rights | Robot 6 @ Comic Book Resources – Covering Comic Book News and Entertainment

  12. Fuck those old assholes and their families! This better not keep me from getting new Cryptkeeper comics!

  13. Knut Robert Knutsen says:

    The “legend” of the Feldstein/Gaines collaboration had Gaines, the insomniac (perhaps related to his use of diet pills), spending his sleepless nights reading books, magazines and short stories and compiling “springboards” for stories that he then discussed with Feldstein, who wrote them.

    Contextually, that’s a clear case of him being “directed” by Gaines, which makes the case for “work-for-hire” very strong.

    In the case of Kurtzman, since the concept of Mad as a magazine was created by Feldstein, it’s only individual stories in the comic book version that might be at stake. Now, Gaines “created” the book for Kurtzman, so that’s one strike against Kurtzman. At the point where Gaines said “Go forth and do parodies and funny gags”, he was directing Kurtzman.

    Since Gaines’ “heirs” (i.e. those who bought the rights, Time Warner) own all the copyrights related to the contributions by the artists, Kurtzman’s estate can’t claim anything past 50%. Which means, in this case, zero control but a fairly accounted portion of profits from reprints. Which is not a lot, but some.

    So the most the claims can do is generate some royalty payments from reprints to the Kurtzman estate.

    As the article says, Feldstein was quite happy with simply securing rights to use artwork for his autobiography and the Kurtzman estate wouldn’t be due much of a payday either.

    This lawsuit is nowehere near in the league of the Siegel/Shuster case or the Kirby case. This one is solely about book-keeping. (And if the Kurtzman estate’s ask isn’t too unreasonable I see no reason that DC/Time Warner wouldn’t just settle this with a royalty at industry standard rates. )

  14. Robert Stanley Martin says:

    I don’t let sentimental attachments to artists’ work, or knee-jerk pro-artist/anti-publisher partisanship, blind me to legal and business realities. Nor do I think that artists (and by extension, their estates) enjoy some sort of exalted status that gives them license to abrogate contracts or engage in other unethical behavior. If that makes me the “anti-artist,” then so be it.

  15. shaun clancy says:

    I interviewed Al Feldstein last year and Adle Kurtzman also (I never tried to publish either)….so I knew this was coming. In fact, Al Feldstein went into the deatils of his contributions and his knowledge of law to great extent so it was obvious to me he had ideas of his own plus he was very angry over the no credit for the HBO series. If Harvey Kurtzman created the MAD name then there is a big problem for Time Warner.

  16. shaun clancy says:

    Oops….also Kurtzman DID create the name & character of Alfred E. Newman which is still being used today and not in the 1st several issues so the case is a long way from settlement.

  17. R. Fiore says:

    Nor a sense of justice, either.

  18. James says:

    Bah

  19. R. Maheras says:

    The bottom line is that both the writers and artists are all co-creators for such copyrighted comic book material, regardless of how the workload was split up. The artists weren’t just doing art plates for a novel here; they were an integral part of the creative product.

  20. Knut Robert Knutsen says:

    It was my understanding that MAD once faced a copyright infringement suit from someone who claimed to have created Alfred E Neuman’s likeness before MAD used it and the lawsuit was fended off by demonstrating that it was based on an old public domain cartoon of a country bumpkin.

    I may misremember the details, or it may just be an urban legend, but if true wouldn’t that mean that Alfred would not be an issue in settlement discussions?

  21. It looks like it all comes down to the exact status of Feldstein and Kurtzman. Were they sub-contracting freelancers, or exact employees of EC? Lotta grey area, there. I read how after Mad was created, Kurtzman wanted 51 percent ownership of Mad, and Gaines showed him the door. Feldstein’s name should appear in the credits of any “Tales from the Crypt” movie or TV productions. He was very much a crucial part of the horror mags they were producing, whether it was designing the horror hosts and/or coming up with the stories.

  22. DiamondDulius says:

    “In the case of Kurtzman, since the concept of Mad as a magazine was created by Feldstein”

    What makes you say that? It was Kurtzman’s idea to turn Mad into a magazine and he also edited the first 5 magazine issues… Feldstein had nothing to do with it.

  23. R. Fiore says:

    So, based on comments above saying “Hey, why don’t you edit a humor comic for me” is equal to creating the trade dress, establishing the point of view and sensibility, writing all the stories and laying out the artwork in minute detail. O-kaaaay.

    Most likely outcome given the value of the property is that DC will make a cash settlement commensurate to the strength of the case/scale of the potential legal costs, and will retain all rights in return. I doubt that the emotional involvement on the Kurtzman side in anything like that of the Siegel and Kirby factions, and in those cases the properties were far more valuable.

  24. Justice Potrzebie Stewart says:

    Yes. When MAD was sued by a woman claiming that her husband had “created” the image, it was discovered that she hadn’t protected her copyright, and also that versions of the Alfred E. Neuman face date back to the 19th century anyway. With that legal claim already established in court for 40+ years, the chance that Kurtzman’s estate would win (or even contest) ownership over the Neuman image is nil.

  25. Oliver Shermlock Shomes says:

    “So, based on comments above saying “Hey, why don’t you edit a humor comic for me” is equal to creating the trade dress, establishing the point of view and sensibility, writing all the stories and laying out the artwork in minute detail. O-kaaaay.”

    The problem is that Siegel & Shuster, who brought a finished product to the door of DC, had a stronger legal case than Kurtzman, who was already employed by Gaines when “EC’s Mad Mag” first hit the drawing board. And the Siegels’ trip through the courts hasn’t been smooth sailing.

  26. Knut Robert Knutsen says:

    The regular features and the look of MAD as it turned out over the next 50 years was through Feldstein’s work as an editor. I may have misremembered if it turns out Kurtzman did some magazine issues, but what Kurtzman did and what Feldstein turned it into are two completely different things.

  27. Knut Robert Knutsen says:

    No, it’s not “equal to”. It doesn’t have to be. “Legend” (again) has it that Kurtzman was sick from being overworked and Gaines decided to start-up a humor magazine for him to work on that would be a lighter workload than the research-heavy war-books.

    In terms of Work-for-hire, that’s enough. Gaines put up the money and told Kurtzman to write and edit a humor book. That’s all that is needed to make it work-for-hire in that period. How much work you put into it is not important in legal terms.

    All the “exceptions” that get legal traction are cases where someone creates an idea on spec and submits it in finished form to an editor or publisher as something that he can either accept or reject and where no money is paid if rejected. That is what happened in the Siegel and Shuster case, that is the case with Joe Simon and Captain America and that was what was alleged (but not proven) with the Kirby vs. Marvel suit.

    It is not about hard work or “sweat”, it’s about money, risk, employment conditions and other formal criteria.

    If Kurtzman had written and drawn an entire issue of MAD on spec and submitted that, then it would have been a clear issue of copyrights and ownership. But a collective work initiated by the publisher? No. Kurtzman’s estate has no presumptive “in” on this case.

  28. Are Robert Stanley Martin and Knut Robert Knutsen the same person?

  29. Robert Stanley Martin says:

    Let the moral preening and demagoguery commence! It’s a Journal tradition!

  30. Robert Stanley Martin says:

    What did Feldstein have to do with the first seven issues of MAD?

  31. DiamondDulius says:

    No, Mad’s identity was created by Kurtzman. Feldstein was merely following Kurtzman’s trail. The first 5 issues of Mad Magazine edited by Kurtzman set the tone that Mad follows to this day. Also, according to various documents, Kurtzman specifically went to Gaines and suggested doing a humor mag, Gaines just gave the OK. Kurtzman chose the artists and wrote the entire book. It’s definitely NOT a case of a publisher telling an artist/editor what to do.

  32. R. Fiore says:

    Sorry, I stand corrected. It’s not “equal to,” it’s “greater than.” Kurtzman wasn’t an employee, he was a freelancer. The publisher of a novel risks his capital the same way the publisher of a comic book does, but that doesn’t entitle him to all rights of all kinds in the property in perpetuity. To say something is legal is not to say that it’s just. Comics publishers exploited an unjust system to strip the creators of properties which in some cases were ultimately worth hundreds of millions of dollars of their creations. The Copyright Law of 1976 gives the creator to challenge whether these brigands dotted every i and crossed every t in completing this thievery, and you complain about that, too.

  33. Knut Robert Knutsen says:

    Sorry, I was digressing into the issue of MAD magazine as opposed to the comic book. Got a little ahead of myself, because I anticipated that inevitably the conversation would turn to the 500+ issues of MAD and rights to that and how copyright in the first seven issues might be extrapolated into rights for the Magazine concept.

    wrong discussion.

  34. Andrew McIntosh says:

    Actually, my understanding is that KUrtzman went to Gaines looking for more money. He was working his ass of researching his war books, while Feldstein was cranking out the material as fast as he could. As Feldstein was more prolific, he got a lot more money. Kurtzman felt he worked harder, so he should get compensation for it. Gaines valued Kurtzman, but couldn’t just throw money at him—Feldstein was the one whose stories were actually generating most of the revenue for the company. So Gaines suggested Kurtzman do a humour book, based on his memory of the “Hey Look!” strips he saw back in 1949 that got Kurtzman in EC’s door in the first place. Gaines figured a humour book would not require the intense research and preparation that the war books did, and figured Kurtzman could knock one off in a weak, increasing his paycheck 50% and still leaving him all the time he needed to research the war books. As it turned out, Kurtzman ended up putting just as much attention into Mad, so he never really saw the pay increase, as it would have been dependent on producing more work in the same time frame.

  35. R. Fiore says:

    You’re wrong but you’re right. Feldstein started from a template created by Kurtzman but his version of Mad had a personality all its own. He never had the ability to do the kind of one-man show Kurtzman did, but what he did was to develop a stable of contributors who could put forth a distinct and consistent humor product. It was like a series of parallel streams going from issue to issue. You had your Don Martin and your Sergio Aragones and your Dave Berg and your Al Jaffee and your Mort Drucker and your Prohias and so on. There were ways in which Feldstein was a little hipper than Kurtzman; he was much more open to the Mort Sahl/Lenny Bruce wave of comedians than Kurtzman was, for instance.

  36. N Savory says:

    Thank Fucking God that someone finally said this.
    Why is it that comics readers, of all stripes, are always always making the argument that a company or corporation should own your shit forever and ever amen?
    The thinking in comics has always been that the makers of comic books are the same as someone stitching sleeves onto t-shirts in a factory.
    Why do traditional book publishers manage to create millionaires out of a Stephen King or a J.K Rowling and stay in business and Comics leave behind paupers with lawsuits for what novelists and writers take for granted?
    Thank you Mr Fiore.

  37. Knut Robert Knutsen says:

    You have to separate what the law is from pushing an abstract ideal of fairness.

    In the 1950s, any magazine publisher could rely on certain work-for-hire presumptions, where if they directed someone to write or draw something, it was theirs. This law was changed in 1976 to one where any assignment of rights or establishment of work-for-hire had to be spelled out in a contract.

    Since 1976 the presumption has been on the side of creative people, where you retain any and all rights that you do not specifically sign away in return for the paycheck. Which is good.

    That doesn’t change the fact that the law under which the various EC Comics (and MAD) were created gives Gaines all the presumptions in favor of work-for-hire ownership.

    It might be argued, of course, that it would be substantially just for rights to be returnable to Kurtzman (as long as one doesn’t forget to include the artists in this argument) but that doesn’t change the fact that it would be formally unjust.

    Of course you can say that Kurtzman’s work should be rewarded with ownership, but you might just as well try to shout down a thunderstorm. It is completely irrelevant at this point. It was almost 60 years ago and almost everyone involved is dead. (Feldstein being the most notable exception, of course)

    Publishers, evolving out of the “creative management” half of printers shops, have owned copyrights since the invention of print. Even Shakespeare never owned copyrights to a single work he wrote. It took a long time to get to the point we’re at now, with all formal rights residing in the creator of a work unless he signs them away.

    Let’s appreciate that.

    Refighting the old fights is pointless, even more so since it is a significant (and Human Rights based) point of Western Jurisprudence that no laws can be made retroactive.

    I, too, find the argument that a publisher’s investment of money somehow outweighs a creative person’s investment of labor to be tasteless, offensive and even unintelligent. But that is not what the work-for-hire law says, either.

    “Work-for-hire” says “You get a steady wage, we pay for eveything, but we own everything”. That is in fact what the Kirby case was based on, the idea that Stan Lee had gone against the most basic requirements of work-for-hire by not paying for all the work Kirby produced in the course of their regular informal work process.

    Though I react a bit to the comparison with people stitching shirts together in a sweatshop. Personally I would say that there’s no reason to distinguish between the two, as if somehow one job is less “worthy” than the other. The difference being that the people who stitch our shirts together (as well as the ones assembling “our” iphones etc.) are being mistreated and underpaid today and precious little is being done to remedy the situation for them.

  38. And what happened to Pat O’Neill?

  39. Robert Stanley Martin says:

    Harvey Kurtzman would probably have gotten rich if he had stuck it out with Gaines. Instead, he demanded a business arrangement he was all but certain Gaines wouldn’t agree to, and then threw his lot in with Hugh Hefner, which didn’t work out anywhere near as well as he expected. Sometimes you win when you roll the dice, and sometimes you lose. That’s life.

    As for other creators, Siegel and Shuster made the equivalent today of about $5 million off Superman in the ’30s and ’40s. Their contract gave them non-publishing licensing royalties, so they would have made a lot more if they hadn’t agreed to a buyout as part of their lawsuit settlement. Their financial hardships during the period between the 1948 settlement and the 1975 pension agreement were due to their imprudence with money. Siegel was in such a rush to marry his second wife that he pretty much gave all his assets to his first wife in exchange for a quick divorce. Shuster spent money like there was no tomorrow.

    Will Eisner got rich. Bob Kane got rich. Al Feldstein got rich. Kirby’s annual income from Marvel was the equivalent of about $185,000 in 1963, $210,000 in 1969, and $250,000 in 1975. Steve Ditko made the equivalent of about $150,000 from Marvel in 1963.

    A basic rule of the publishing world is that the more money you make up front, the less you make on the back end, and vice versa. J. K. Rowling’s advance for the first Harry Potter novel was £1500, which after converted to dollars and adjusted for inflation, comes to around $3500. She got a modest amount up front, but she gets to share in all the money Harry Potter makes. Assuming Jack Kirby’s 1961-1962 page rate was comparable to his 1963 one, he was paid the equivalent today of about $52,000 for the first year of The Fantastic Four. Up front, he makes almost 15 times as much money, but he gets no royalty from the property.

    I’m speculating, but if Bloomsbury had offered Rowling Kirby’s deal in 1996, I think she might have taken it. But I seriously doubt Kirby, Kurtzman, and the others would have accepted Rowling’s deal if the publishers had offered it as an option.

  40. Don Druid says:

    Anyway, the Crypt Keeper was really invented by HBO, since that’s the Crypt Keeper I think about when I close my eyes. And you don’t see them suing! Only cynics want to fight about “who created what” and all that nonsense.

  41. Don Druid says:

    Morals aren’t important, you see.

  42. R. Fiore says:

    What was J.K. Rowlings “advance” on? It was an advance on royalties. Royalties are a payment made by a licensee to the owner of a property which it has licensed. This is why when Marvel and DC pay their creators a percentage of the proceeds, as they do these days, they are careful to call them “incentives” rather than royalties. When Rowling received advances in the millions she wasn’t expected to surrender ownership of her work. These are the standard practices in the book publishing industry. The character of the practices of the comics industry is revealed by the fact that the contract by which creators surrendered their copyrights was printed on the back of their freelancer’s paychecks, which could not be cashed without signing the contract. If you are arguing that cartoonists were being paid some sort of premium for surrendering their intellectual property rights, well, leave us not become abusive.

  43. Marbury v. Melvin says:

    Perhaps the example of the 100% creator-owned “Humbug” might suggest that Gaines brought something else to the table besides stamping contractual agreements on the backs of checks.

  44. Mike Gold says:

    Russ, this is why we invented lawyers.

    Well, this and the fact that there’s only so much ammo available to the public.

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  46. Lance Miller says:

    Where is Will Elder in this discussion? While Harvey provided the structure, Will provided the soul in their collaborations.

  47. R. Fiore says:

    The Elder estate is entitled to file the same kind of claim as the Kurtzman estate.

  48. Mike Hunter says:

    ———————-
    R. Fiore says:

    …So, based on comments above saying “Hey, why don’t you edit a humor comic for me” is equal to creating the trade dress, establishing the point of view and sensibility, writing all the stories and laying out the artwork in minute detail. O-kaaaay.
    ———————–

    “Work for hire” is an exceedingly legally well-established situation. All those researchers working for computer or chemical companies are, in effect, likewise told “go and see what useful, profitable discoveries and inventions you can make.” And the company owns it all, is legally considered the creator.

    A trade-off many are glad to make, what with the vicissitudes of the job market. A regular paycheck, health insurance, benefits, in exchange for work which may or may not yield any substantial returns to the employer? Sign me up!

    ————————
    …The publisher of a novel risks his capital the same way the publisher of a comic book does, but that doesn’t entitle him to all rights of all kinds in the property in perpetuity.
    ———————–

    But, authors routinely offer finished manuscripts (or at the very least, detailed outlines) to publishers to see if the latter are interested.

    Stephen King and J.K. Rowling offered finished manuscripts of their first novels to publishers. The crucial creative work all done except for the printing.

    Whereas comic book creators rarely do so. And in cases where the tasks are split up between writers, pencillers, inkers, letterers, colorists, it gets even more complicated; the comics company usually putting that “team” together, paying them.

    ————————-
    Knut Robert Knutsen says:

    You have to separate what the law is from pushing an abstract ideal of fairness.
    ————————–

    It’s obnoxious, if predictable, that noting “these are the contractual realities, warts and all, under the law” is denounced as saying, “The hell with all those creators! They deserved to get shafted!” And, “Hooray for those greedy soul-sucking giant corporations!”

    As shown by the “law of unintended consequences,” an attitude of “who cares about the letter of the law, it’s fairness and justice that should matter!” and retroactive reworkings of unfair old laws would wreak all manner of horrendous havoc.

    For instance, you and the spouse have worked hard, scrimped and saved, and manage to buy a little house.

    But then some Indians show up: “This was our land, until you white invaders showed up! This property belongs to us!”

    In the interests of justice and fairness, indeed we white-eyes should abandon the Americas, sail en masse back to Europe, and let the Indians have it all back again.

    But, guess what? Unfair as it is — on a scale that makes the sorry situation of many a comics creator look like a triviality — it’s not going to happen.

  49. Mike Hunter says:

    Am reminded of Clive Barker getting the chance to screenwrite/direct his first big-budget (relatively speaking), theatrical movie — Hellraiser — but contractually losing control of what would turn out to be his most memorable, iconic horror characters: Pinhead and the Cenobites. Barker, no naïf, was aware of what the deal was; but with no big-budget filmmaking experience, considered losing those rights worth getting his foot in the Hollywood door. (And didn’t expect the film to be such a hit, as told at http://en.wikipedia.org/wiki/Hellraiser_%28franchise%29 )

    Another example of the “law of unintended consequences.” From S. R. Bissette’s blog:

    ————————-
    After working hard all through 2010 with former 1963 creative partner(s) to arrive at a planned (with Alan’s permission throughout 2010) reprint edition of the original 1963 series ([created] circa 1993) that would adhere absolutely to Alan’s demands—including that of not using or mentioning his name or affiliation with the project (yes, we found a publisher despite that)—it all ended in a heartbeat early in 2011.

    Alan simply pulled the plug, and thus it was all over but the tears.

    …For what it’s worth and not worth, 1963 will never be legally reprinted in any language in our lifetimes.

    …So, consider this:

    In creator co-ownership, one partner can forever and willfully deep-six any future in any co-owned work—even completed, published work, that still has perceived or potential market value.

    That, too, is part of creator ownership, and co-ownership, and creator rights, and must be taken into account in any discussion of the subject.

    All of us who worked hard on 1963 back in 1992–93 earned whatever we would or will ever earn from that work back in 1993, and that was that.

    We will never see a dime from any of that work again, while the quarterly royalties from the DC/Vertigo collected Swamp Thing editions…and John Constantine/Hell[blazer] arrive, for the most part, like clockwork.

    If you had told the Bissette of 1990 that he’d never see a dime on any work done with Alan save the work-for-hire collaborative ventures we’d already put behind us by 1990, the Bissette of 1990 would have laughed and spit and ranted about the evils of work-for-hire.

    Given the past decade’s long-distance and close-range spectacles related to Alan wanting to remove his name from, and/or the existence of, key collaborative works from prior decades, and experiencing first-hand the repercussions of his doing just that (with 1963), and surviving first-hand being exiled forever by said previous pal and creative partner, the Bissette of 2011 can only thank his lucky stars that he did his most extensive and lasting work with Mr. Moore under work-for-hire conditions for DC Comics.

    …Suffice to note, the ironies cannot be overstated.
    —————————-
    http://srbissette.com/?p=13933

  50. Groth says:

    Just for the record, Mike and all, Steve is wrong in this excerpt you quoted, at least if he is claiming that Alan could unilaterally legally veto Steve selling 1963 to a publisher (or republishing it himself). That sounds like what he’s saying when he writes,

    “In creator co-ownership, one partner can forever and willfully deep-six any future in any co-owned work—even completed, published work, that still has perceived or potential market value.”

    (If he’s saying that he wouldn’t republish it against Alan’s objections on ethical grounds, that’s a different, non-legalistic argument, of course.)

    The fact is, a co-owner of a copyright may unilaterally grant a non-exclusive license to the work in question, with a duty to account to the other owner(s) for any profits derived. In other words, the consent of the other owner(s) is not required.

    If Steve believes otherwise, he’s gotten bad legal advice.

    Sorry I’m adding this so late to the game, but I just noticed it.

  51. Actually, Gary, I’m right.

    Alan, Rick Veitch, and I negotiated and co-signed a binding contract in 1998 dividing the properties between the three of us.

    One of the terms I agreed to was to never reprint any of the existing material; that agreement, circa 1998, supersedes any prior right I would have had to authorize or participate in a reprint without Alan’s permission.

  52. PS: Can someone let Gary know about this reply, please?

  53. As I noted in the comments thread of the MYRANT post cited above:

    “Remember, however, that this situation is unique in a number of ways.

    1. We negotiated, drafted, and cosigned an agreement dividing the creative properties back in 1998. It is that agreement, and not just copyright law (which would, legally, arguably allow for the reprint to exist as long as Alan were paid his fair share of the income, whether he wished it to be reprinted or not—IF a publisher could be found willing to invest in a reprint under those conditions, sans Alan’s signature/contractual involvement), that determined the fate of “1963.”

    2. Comics are a collaborative work beyond, for instance, the co-authoring of a novel by two writers. In this case, much of 2010 had been spent tracking down almost all the various creative partners in “1963″ and arranging for permission, pending contracts, to proceed with the reprint. For the record, we tracked down and were granted permission by all but two letterers we could not reach—and all concerned gave permission, pending final contracts.

    3. In this case, the most marketable, “powerful” member of the creative team was, from the beginning and in the end, the writer. Finding a publisher willing to proceed without permission to cite or even infer the writer’s name was in and of itself an almost insurmountable obstacle; however, even having that, once the writer deep-sixed the project, that was that—due, again, to the conditions of our 1998 agreement, not simply standing copyright law.

    These three conditions are unusual, and make this a decidedly unique case history.”

    There’s also the fact that with Alan, Rick would and will never proceed, either. As Gary accurately states, that is an ethical, not a necessarily legal, issue—however, the 1998 agreement we all signed makes this legally binding and, again, unusual.

  54. R. Maheras says:

    Kurtzman took an old public domain image and gave it a new name. That’s not really “creating” in my definition of the word.

    Speaking of public domain, if not for Sonny Bono, et al, the early issues of “Mad” would also be public domain right now.

    Fie upon ye, Sonny Bono!

  55. Tony says:

    “There’s also the fact that with Alan, Rick would and will never proceed, either.”

    Don’t you mean “without Alan”?

  56. Tony: Oops—meant to say “with Alan refusing,” but yes, you get it. “without”, whatever.

  57. Kim Thompson says:

    As someone who remembers genuinely enjoying 1963 I’m sorry it will never be finished or collected (and it sucks for Alan Moore’s co-creators, none of whom is in a position to quite so cheerfully blow off additional income as Alan is willing to do on their behalf as well as his own), but thanks to the insanely high Image-and-Alan-Moore-motivated print runs of the time, it’s not that hard to still find issues at, if not cover price, then the cover price of an equivalent comic today. And the cheap newsprint format is probably a better way to enjoy them than any possible graphic-novel compilation.

  58. Tony says:

    “I’m sorry it will never be finished or collected”

    Yeah, especially the former. To think we’ll never see that 80-page Giant-sized Annual Grand Finale, drawn by Jim Lee, in which the 1963 pastiches met the steroid-ridden Image superheroes: WildCats, Youngblood, Spawn…

    The funny thing is, IIRC, that around 10 years later Moore said he could still tell the story that was supposed to appear in 93, making the necessary adjustments due to the elapsed time, and I bet he could do the same right now, and give us a satisfactory finale adjusted to the year 2013, 14 or whatever…

  59. Groth says:

    Hi, Steve.

    I just noticed your responses.

    I didn’t know about the contractual agreement among the three of you —you, Rick, and Alan— in which you agreed never to reprint the work; that obviously would supersede copyright law, which would absolutely allow any one of the collaborators to publish it.

    I’m not sure why you would sign such an agreement. But, the lesson here is, well, not to sign such an agreement, right?

    But, I’m curious as to why you did. Under duress? In 1998, you were a seasoned pro, not a wide-eyed kid. Why would you sign an agreement that obviously negates your own interests in profiting from your own work in the future?

  60. Mike Hunter says:

    Couldn’t help but be reminded of contractual arguments among rock band members; how some new greatest-hits compilation or concert tour using the band name can be sabotaged or delayed by a recalcitrant musician.

    Not keeping up with that stuff, did a Google search for examples, and ran across this legal Q and A:

    “A buddy of mine asked me if my band has an internal band contract. I said no because I don’t know what that is and he laughed at me and said I was stupid. Is this something I should have?”

    ————————-
    Lawyer for Independent Media | Sue Basko:

    I write internal band contracts. I highly recommend that every band should have one. This is a contract that tells how the band will do things within the band. One topic such a contract addresses is who will own copyright on the songwriting. Will it be just the main songwriters or will it be the whole band, if they each contribute on creating the music? Who will be in charge of registering copyright and how will they inform the others? Who will pay for the registrations? Other topics covered include who will own the sound recordings, who will decide if the band will sign a contract with a manager, agent, studio, or record label; what happens when a band member quits, what happens when some member want to kick out another band member, who owns the band name, who gets to control the sales accounts, who makes creative decisions on recordings, who decides which songs will be recorded, who owns the social media accounts and email list, who books shows and how, who pays for what, who gets nominated or wins awards on behalf of the band and its music, and on and on.

    There are different ways that bands can structure these issues of power and balance and fairness. When there is no contract in advance, when situations arise, there can be lots of financial, personal, and legal trouble. It is a great idea to have a contract in place. I write these. Each contract is special for that particular band and its purposes.

    I would like to say I have seen it all. I have seen band coups. I have seen people kicked out of the band they started. I have seen people register copyright in their own name on songs written entirely by their band mates. I have seen managers lord it over band members. I have seen producers steal the rights to recordings from music artists. But I have not seen it all, because I am sure there’s a lot more shenanigans left in the rock band world. If you have a band, get a band contract.
    —————————
    http://www.lawqa.com/qa/whats-an-internal-band-contract

    Clearly, an independently-produced comic with a batch of creators involved can benefit from a similarly careful approach.

  61. Groth says:

    I’m still looking forward to hearing from Steve, but it sounds like they did have an “internal band contract” — just a really bad one. Well, bad if you’re Steve Bissette, good if you’re Alan Moore.

    A contract among the co-creators BEFORE one engages in a collaboration or even agrees to it would make the most sense. My original point was that in the absence of any such agreement —and I didn’t know they had one that disadvantaged Bissette when I wrote this— the default legal position is that any of the collaborators can sell the work as long as the other collaborators get a fair share (which can also be litigated; as everyone knows, everything can be litigated endlessly). In this case, it looks like Steve would’ve been better off WITHOUT a contract.

  62. Chris B says:

    I suspect that part of the matter here is that despite legal standing, Bissette a) didn’t want to cause any additional, unnecessary friction between the partner with whom he’s still friends and the other, and b) knew that without Moore’s name on the work, it would have at best a fraught and messy delivery into the direct-only marketplace, before losing breath altogether, instead of a couple of healthy printruns and settling down to quietly tick along as a perennial in both bookshops and comic stores.

    When you add Moore’s actual objection onto that latter, the effort for return could easily seem to become more trouble than it’s worth.

    (/speculating about other peoples’ lives and careers on the internet)

  63. Robert Stanley Martin says:

    I’d have to go digging back through Bissette’s blog posts to make sure, but my recollection is that the trade-off is that Moore relinquished his co-ownership of the 1963 characters. Bissette is now the sole owner of the properties he co-created. He’s free to do more with N-Man and so on without Moore’s involvement. In the long run, depending on how successfully the properties are exploited, that could prove a lot more worthwhile.

  64. Rob Clough says:

    That is correct. An ashcan of new N-Man stories came out at MOCCA a few years ago. The problem, of course, is that without the context of the original properties, it may be a tough sell.

  65. Allen Smith says:

    Agree with you, Russ. The copyrights to work should belong to the men and women who created the work.

  66. R. Haining says:

    Harvey Kurtzman’s estate may not have created anything, but Adele Kurtzman created a life with Harvey Kurtzman and she should be entitled to make any claim that her husband could if he were still alive.. While one may make a case that an artist’s grown children shouldn’t have much of a claim to the copyright of their parent’s work, I don’t think the same moral argument applies to widows.

    An interesting aspect to all this is that the Kurtzman estate is apparently not attempting to regain the copyrights to the war comics as opposed to the early issues of Mad. I wonder if they see any differences between the respective situations, or if it is simply that they decided that any benefit they would receive through litigation over the war material would not be worth the cost (I suspect it is the latter.)

  67. Gary: Sorry, just catching up on this long-forgotten-by-me thread.

    The contract was our division of properties in 1998; the “never reprint the existing stories ever” was something Alan insisted upon, and my long-term goal was just to clearly define and free myself and my kids/heirs from future legal entanglements, period. This meant, though, too, Alan and Rick could not proceed without ME in any reprint.

    Still, it was, at the time, the ONLY option/course of action available. The window of opportunity was brief, and resolution was the goal. I wasn’t a tenderfoot, as you note. Alan was insistent, it was made clear this was the only condition under which he would agree to sign ANYTHING, so I made my decision and live with it.

    Walking away free and clear with the characters/concepts as property was better than nothing. Sacrificing the stories, so to speak, was the cost of my freedom. C’est la vie.

  68. PS: YES, this made me sole proprietor of the clutch of characters (by Alan’s definition of what was “mine,” they were: The Fury, N-Man, Sky Solo, The Hypernaut, Queep) and ONE title (TALES OF THE UNCANNY). It was, as I say, the best option—and the condition of never reprinting the existing stories, and NEVER using Alan’s name ever, was absolute and non-negotiable.

    “Bad contract,” Gary? Better than a never-to-be-resolved-in-our-lifetime lack of agreement/contract. It was the best alternative possible, under the conditions I had no control over (i.e., Alan’s exile of moi). I’m sure in Alan’s world, the “best alternative possible” was that I simply ceased to exist.

    Thanks, Chris B., Robert, Rob, your assessments are spot on.

  69. I continue to be amazed by the drooling comic book fans and the pro-corporate Libertarian asswipes who never fail to take up the cause of the folk who stole the intellectual property of men like Harvey Kurtzman, Jack Kirby, Steve Ditko, Siegel & Shuster, etc.

    Let’s hear it for the robber barons!

  70. Knut Robert Knutsen says:

    It never ceases to amaze me that some people think our (I’m one of those who argue that the law is on the side of the corporations in many of these cases) insistence on clarifying what the law says and how we have to relate to that is seen as us being “useful idiots” for those same corporations.

    The sad fact is that the power dynamic between a creator and a corporation is always going to be asymmetrical. The corporation will always be more powerful.

    In the Siegel and Shuster cases, the Kirby case and even (incredibly) the Friedrich case, I’ve had debates with people who argue that the law should be set aside so the creators heirs can be handed wads of cash.

    In the Kirby case, people even suggested that Stan Lee should have testified on Kirby’s behalf, ignoring the fact that he would have then contradicted previous testimony and laid himself open to charges of perjury, he would have admitted to gross negligence on his own part (conducting business in a way that negated the presumption of work-for-hire) which could have left him open to financial liability for every dime Marvel’s owners had to pay tp the Kirby heirs. Et cetera. And that’s even ignoring the possibility that he might have been telling the truth in his testimony.

    We can’t lose sight of the fact that the law is the only recourse creators have to compensate for the pressures of an asymmetrical relationship. Even if it is sometimes too costly and time-consuming to avail oneself of the law.

    Setting aside the law only benefits corporations in the long run.

    What is truly important about these lawsuits and legal maneuverings is that they show us what needs to be addressed. The last 30-odd years has provided us with a steep learning curve in just how impoirtant it is to have a contract, a good contract, and what exactly needs to be in that contract.

    They are lessons for future generations.

    The US Comics community already has a CBLDF and a Heroes Initiative. What they need now is a Legal Aid option along similar lines, an entertainment contract lawyer on retainer to help comics creators read the fine print and point out possible stumbling blocks. Or someone to help create or explain standard contract language. Many cannot afford a lawyer (especially emerging talent working for small publishers) or don’t know how to get the right lawyer, trained in the particular issues relevant to comics work.

    Look at the Siegel case. Toberoffs strategy these last 10 years seems to have been to find creative ways to get out of a legal contract. How many creators would benefit from those kinds of contract law tactics? Compare that to how many corporations would find them useful.

    Comics creators need to look to the future and be concerned with establishing clear, equitable contract standards that will help prevent such problems in the future.

    Also of interest to creators might be that the complaints about DC Comics lowballing the payments to the Siegels and the Shusters seem to be based on a presumption that they should get a share of EVERYTHING. Including materials and concepts created WFH by others for the Superman “Universe”. The royalty payments being paid to post-1980 (ish) creators on Superman? Isn’t that part of what Toberoff thinks the Siegels and the Shusters should get?

    And in the Kirby case, what consideration do you think is made (in accounting for potential profits) of the significant contributions of others under WFH? They say Kirby created Iron Man. Where is Don Heck in all that?

    The argument seems to also be that “S+S created Superman. Superman is now worth X”. Failing to take into account that the current Superman is also the work of 100s of other creators.

    The Comics Community has for years lobbied for extending royalty payments to creators back to before the 1980s, so that (at least in those cases where creators can be identified) their work will be honored. The current high-profile cases are in conflict with that.

    Oh, I know, it’s is entirely unrealistic to think that there would be such an extension of royalties, but that, to me at least, is more interesting, if we’re going to talk about setting aside the law and acting on “morals”.

  71. Daniel K says:

    Also, Iron Man’s suit was crap until Steve Ditko redesigned it.

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