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”.

Let’s hear it for the robber barons!

“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.

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.

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.)

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)

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.

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?”

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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.
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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.

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?

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…

Don’t you mean “without Alan”?

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!

“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.

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.

“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.

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

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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

…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.

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Knut Robert Knutsen says:

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

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

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.

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.

wrong discussion.

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.

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.

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.

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.